Research On The Criminal Judge-defense Conflict

This paper gives discussions on the judge-defense conflict during the criminal litigation, which refers to the conflicts between the judge and the defense counsel. It is quite an objective phenomenon in the criminal judicial practice and can be seen in part of the criminal cases. The criminal judge-defense conflict is an unbalanced trial status in part of the criminal cases after the year 1996 when litigant mode was introduced to the Criminal Procedure Code, and the triangle structure of the prosecutor, the defense and the judge was established, i.e. the judge, who is supposed to be centered, independent, and to preside over the trial in justice and the ‘prosecution representative’ may become the party to be against the lawyers, and the phenomena of ‘dislocated conflicts’ or ‘conflicted dislocation’ shows at this time. In this case, the ‘isosceles triangle structure’ among the charger, the defense and the prosecutor is broken on the court or through the trial stage. There are ‘conflicts’ between the prosecutor and the defense or the judge and the defense, even though there are many forms and large gaps between the contents, forms and the lawful nature to be against. Judge-defense conflict exposes that the judge is no longer a centered and fair one to be convinced. They have lost their judicial authoritativeness and the judicial credibility is lowered.The author gives introductions on the forms of the judge-defense conflict and obtains the opinion that the nature of the judge-defense conflict is in fact the unbalanced criminal trial structure. The forms of the judge-defense conflict include the discriminating security check of the court on the defense lawyers, the defense lawyer’s ‘procedure’ defense on purposes, the court disorder because of the ‘court havoc’ of the lawyers, the dismiss of the lawyer’s defense rights, the lawyer has been expelled or detained by the court, the defense lawyer posing pressure on the judge by the ‘behavior art or the public opinions, etc.There are many perspective of reasons for the judge-defense conflict: there are inappropriate behaviors of the judge and the lawyer, including the role dislocation in part of the judges and the lawyers, the lack of professional ability and rationality in them, the lack of judicial authoritativeness for the judge; there are also reasons of the judicial opinions, including the influence of the traditional judicial opinions, the impact of rooted idea of regarding substantiality and depreciating procedure, the unformed opinion of legal community; there are contradictions in the legal system, including the contradiction that Illegal evidence exclusion rule in judicial proof, and the contradiction between the dossier transfer system and the court trial structure of adversarial system; there are flaws in the judicial system, including the administrative nature of judicature, the local nature of judicature, the weak status of the defensed ones and the weak rights guarantee of the defense counsel.Our country has been making efforts to solve the judge-defense conflict. In 2004, the Supreme People’s Court and the Ministry of Justice jointly issued the <<Several Provisions on Specifying the Correlation between Judges and Lawyers and Maintaining the Judicial Justice>>. In 2016, the Supreme People’s Court issued<< Stipulations on Guaranteeing the Lawyers’ Litigious Rights According to Laws>>, both of them are efforts by the country for solving the judge-defense conflict. In the author’s opinion, besides issuing the relevant files, there should also efforts be made to improve relations between the judge and defense, that is, from the perspective of regulating the behaviors of the two parties, improving the judicial opinions, perfecting the legal system and improving the judicial system. To be specific, the two parties need to locate themselves clearly, improve the two parties’ judicial abilities and qualities, respect the judges’ judicial authoritativeness, strengthen the opinion of the justice of procedures, strengthen the communications between the two parties, specify the proof standard of the illegal proof exclusion for defender, proceed the system reform of court procedures and the court centering system, erase the administrative nature of judicature and the local nature of judicature, guarantee the lawyers’ rights during the trial stage and strengthen the objective care for the defender.