The Empirical Research About The Conflict Between The Lawyer And The Judge

According to the principle of criminal procedure, the structure of criminal proceedings is consisted of three sides:the complaint, the defense and the referee.The statue of the complaint and the defense is equal and the court is in the center referee role. The occupation relationship between lawyers and judges should be a relationship of "expression and judgment". The lawyer in the court fully safeguard the legitimate interests of justice according to the law. And the judge taking facts as the basis,taking the law as the criterion of judgment. Therefore, we can see that the lawyers and judges should be a relationship of a partner rather than conflict.In principle,there is no conflict between the two.However, in recent years, the phenomenon of conflict between lawyers and judges has been happened often. Such conflicts are called “debate conflict.” This paper tries to analysis the conflict between the lawyer and the judge by using empirical analysis and combining theory and practice method.This paper is divided into four parts besides the introduction,a total of more than 20000 words.The first part is the empirical analysis of related cases about debate conflicts.Mainly through statistical the case about debate and trial conflict to analysis the type of the case,the basic form and the results of plea instance conflict;The plea instance conflict cases mainly concentrated in underworld organization cases, cases involving torture to extract confessions, cases of the maintenance of rights and other major, sensitive cases;The basic form of plea instance conflicts including by limiting defense right that produce conflict of four types, due to procedural defense that produce conflict, because of the court trial discipline that produce conflict and because of public opinion and report that produce conflict; the processing results of plea instance conflict including claim was rejected, the right to request was satisfied and lawyers were expelled from the courtroom and so on.The second part is the essence of the conflict between debate and trail. Mainly from judges and lawyers perspective to elaborate the understanding of this paper that arguing about debate and trail conflict.In the judge’s opinion, the plea instance conflict is mainly about lawyers in court that make trouble out of nothing; In the lawyer’s opinion, plea instance conflict is mainly because of the lawyer protecting their own right in the trial; While the opinion of this paper is that the essence of the debate debate conflict or control conflict is the conflict between the lawyer and prosecution.The third part is the analysis of the reason of China’s plea instance conflict.From three aspects of our system to deep-seated reasons of China’s plea instance conflict:the aspect of our country’s system,judges and lawyers. The Institutional reason, this article mainly from these three aspects to analyze reasons of relief way :China’s judicial system is not completely independent, the statue of judges is not fully independent and lawyers lack of ways for relief when their rights are infringed; From the aspect of judges, this article mainly from the judge’s insufficient ability in controlling the trail and the psychology of prejudice and exclusion of attorney to analysis the reason; From the aspect of the lawyer, this paper mainly from these two aspects to analysis the reason:in and out of the court,lawyers do not respect the judge and some of the lawyers personal quality is not good.The fourth part is to put forward the way of solving and eradicating the debate and trail conflicts. The Charge of contempt of court and the establishment of the judge centered system.Mainly includes the establishment of independent judiciary system, the system of the relief of the lawyers right,the crime of contempt the court and the trial centered system. The construction of the independent system of judicial mainly through the perspective of the Constitution and legal aspects to fill loopholes in the law; The construction of the relief of lawyer’s right system mainly through two aspects to perfect :perfect the system of the relief of the lawyer’s right and punish violations of the rights of lawyers.The construction of the crime of contempt the court can be accomplished by the appropriate expansion of the content of article 309 of the criminal law; The construction of trial centered system can through the construction of mechanism of judicial review on the investigation of the activities to complete.