A Research On The Alienation Of The Relationship Between The Judge And The Defense Lawyer

The so-called relationship between judges and defenders refers to the relative position and interrelation between the two parties in the criminal procedure.It is generally assumed that the right of defense in a narrow sense only refers to the self-defense right of the accused,and it in a broad sense includes the self-defense right of the accused and the independent defense right of the defender as well.What needs to be emphasized is that the relationship between judges and defenders studied in this paper refers to the relationship formed between the judge who undertakes the function of adjudication and the defense lawyer who undertakes the function of defense in criminal trial procedure.The relationship between judges and defense counsel is an important issue in criminal proceedings.The relationship concerns not only judicial fairness and the promotion of judicial credibility,but also the healthy development of the criminal defense system.Studying the alienation of the relationship between judges and defense counsel and seeking solutions not only facilitate promotion of the sufficient realization of judicial fairness but also help defense counsel to mitigate risks in practicing and help bring the defense function into full play,and thus can improve the social identification of the profession of lawyer.The ideal structure of criminal trial procedure should be that the prosecution and the defense confront equally and that the judge who is the neutral judicator deliberates and weighs the evidences and opinions provided by both the prosecution and the defense and then makes judgements based thereon.In order to persuade the judge to accept their respective claims,the parties of prosecution and defense generally will respect the judge;and in order to accurately determine case facts and apply laws correctly,the judge also has an internal need to listen to the opinions of both parties.So,the relationship between defense lawyers and judges in criminal proceedings should be rational persuasion and to be persuaded.Accordingly,the relationship between defense counsel and judges should be mutually respectful and harmonious.However,the relationship between judges and defense counsel in China has been showing a trend of alienation,and the conflicts in judicial practices have deviated from the expected nature of the relationship between judges and defense counsel.In recent years,the facts about alienation of the relationship between judges and defense counsel have been reflected in a series of influential cases.The phenomenon concerning the alienation of the relationship between judges and defense counsel in the typical form of conflicts between judges and defense counsel has been emerging.For example,actions of lawyers characterized by "fighting to the end",unauthorized withdrawal,or exclusion of lawyers from courtroom,and pressures imposed by lawyers on judicial organs with the help of new media,which serve as some forms of conflicts between judges and defense counsel.The disputes between judges and defense lawyers unveiled the original appearance of the relationship between judges and defense lawyers,which is not harmonious.The typical manifestation of conflicts between judges and defense lawyers in China is "fighting to the end".The style of defense lawyer characterized by "fighting to the end",which has the features of diversity,conflict,extremity and appealing to public opinions,has stirred up a huge controversy.Supporters expect it to "facilitate governance by law",while some skeptics believe that it undermines the rule of law.Although "fighting to the end" helps promote judicial self-discipline,this practice deviates from the spirit of legal professionalism.The conflict between judges and defense lawyers in essence reflect a kind of unbalance of the litigation structure.The existence of such conflicts reveals the distortion of the relationship between judges and defenders.It not only undermines judicial authority and credibility,but also imposes negative impacts on the criminal defense system and impedes the realization of judicial fairness.Still,it is far from enough to only analyze the harms of alienation in the face of the chaotic phenomena caused by the alienation of the relationship between judges and defense lawyers.Facing growing conflicts between judges and defense lawyers,we should attach importance to those in-depth issues behind them.So,it is necessary to explore the root cause of the disorder of judicial practices from the perspective of litigation structure theories,sum up the contents from which such conflicts may deviate in the existing system and mechanism,so as to provide a clear thought for the prompt correction of the unbalanced litigation structure.In a word,the main reasons for the alienation of the relationship between judges and defense lawyers are the alienation of the criminal judicial power,no notable improvement of the practicing environment for defense lawyers,and the fact that defense lawyers sometimes do not fulfill their duties,and so on.There are drawbacks in some aspects of the criminal proceedings in our country and the system and mechanism issues that restrict judicial fairness are to be solved.It can be seen from some typical cases that conflicts between judges and defense lawyers have something to do with the violations of court disciplines by lawyers and their unreasonable demands,and the professional quality of lawyers is indeed uneven.However,it also reflects some problems such as the inadequate neutrality of judges,the unbalanced relationship between the prosecution and defense,and the lack of protection for the right of defense.The emergence of conflict between judges and defense lawyers is often related to the non-neutrality and non-independence of judges.In most instances,the stand made by some defense lawyers against procedural issues of cases was triggered partly by the inappropriate trial practices of some judges.During the 4th plenary session of the 18th CPC Central Committee,a proposal for pushing forward the reform of the litigation system centering on trials was made.This important decision conforms to the judicial rules and the rule of law.Promoting the reform of the trial-centered litigation system is a great reform concerning improvement of the judicial style,allocation and optimization of power and adjustment of the litigation structure.The trial-centered litigation system reform requires the restoration of the relationship between judges and defenders.On the one hand,the establishment of authority of judges needs higher trial fairness;on the other hand,lawyers are required to be rational in their defense activities.The promotion of the trial-centered litigation system reform brings both opportunities and challenges to the development of the relationship between judges and defense lawyers,which requires our close attention and study to solve.The restoration of the relationship between judges and defense lawyers should be carried out simultaneously with the reform of the trial-centered litigation system and be included in the development of the reform.The restoration of the relationship between judges and defense lawyers to the ought-to-be state requires multiple measures and requires seeking solutions at the levels of idea,litigation structure and the system.The key to solving the alienation of the relationship between judges and defense lawyers is to continue to improve the criminal trial system and even the judicial system of China based on the compliance of the judicial rules.The governance of the alienation of the relationship between judges and defense lawyers should focus on the improvement of the system,make sure that judges can exercise their power of trial independently and impartially in accordance with law,improve the defense protection system for lawyers,intensify the defense function,and allow defense lawyers and judges to effectively perform their roles of persuader and neutral judge.Not only that,but new elements need to be added with the deepening of the judicial reform and in the face of the alienation of the relationship between judges and defense lawyers by reflecting on the former common solutions,so as to unceasingly make improvements and develop towards the direction in line with the judicial rules,and finally establish an ideal relationship between judges and defense lawyers.The cooperation-based litigation pattern is an important theory in civil procedure.It emphasizes that judges and litigants should coordinate mutually to advance the judicial proceedings.This idea can be used for reference for the relationship between judges and defense lawyers in criminal proceedings after it returns to the existing legal framework.Through moderate inclination to the weak party in the criminal procedure by the judge,the substantial difference between the litigation abilities of the parties of prosecution and defense will be made up and the role of justice safeguarding in trial will be played.With continuous deepening of the judicial reform,the alienation of the relationship between judges and defense lawyers will surely be solved to a certain extent.Meanwhile,under the guidance of the idea of cooperation-based litigation,the future relationship between judges and defense lawyers in China will evolve to a certain degree of cooperation instead of opposition,and the goals of substantial trial and "trial centralism"will be gradually,eventually and successfully achieved.