律师眼中的好法官是什么样的（What is a good judge in a lawyer´s eye）

律师眼中的好法官是什么样的（What is a good judge in a lawyer´s eye） 律师眼中的好法官是什么样的(What is a good judge in a lawyer's eye) In recent years, in view of the judicial reform in full swing in China, there has been a lot of discussion about the quality of judges. [1] but until now, this kind of analysis is mostly normative, which is deduced from some basic judicial concepts and is often idealized. [2] because this kind of analysis is often carried out by law scholars, it can be said that this reflects the ideal angle of view of Chinese judges in the academic circle of law. In real life, there are many outstanding judges about social perspective and discourse, such as deeds reports about judge Shang Xiuyun years ago, reports about the deeds of song Yushui since 2005 [3]; these reports often reflect on the social evaluation of outstanding judges. These perspectives are important to our understanding of the good judges that Chinese society needs, but in real life, the perspective of an important group is ignored, which is the lawyer's point of view. Even if an occasional lawyer or part-time legal expert writes articles, he often repeats a lot of scholars' views or popular views of society, which can not reveal the lawyer's point of view. [4] in view of this situation. In the past year, the author has interviewed some working lawyers informally, asking them for their views on "good" judges and trying to sum up the lawyers' perspectives. Firstly, the constitution of lawyer's view Today, almost all attorneys in the agency have received stricter legal education. Therefore, many people assume that the views of lawyers will be more influenced by this law education, that is, jurists. However, the views of lawyers are in fact different from those in the academic circles, and with the development of the legal profession, this difference may be further expanded. First of all, lawyers are often more experienced and judge the merits of judges than scholars. Lawyers involved in litigation, generally speaking, there will be strong in the interests of the parties involved, because the interests of the parties often with the lawyer's personal interests tied together, therefore, lawyers are not from the normative level to discuss the judge, not in the general sense to discuss whether the judge qualified or excellent, but the judge's quality the more experience a more specific level. Second, the general concept of good judges in the minds of lawyers comes from the long-term accumulation of cases, from the judgment of specific judges, but not from a specific judge. Third, the practicability and maneuverability of judicial law relative to stronger, so not easy to see or attention in the eyes of the jurist details may be very important in law eyes, become the important standard of judge evaluation law. It is easy to question that lawyers have their own interests in litigation. Does this kind of interest affect their impartiality? Indeed, due to interest, in specific cases, lawyers almost always hope that the judge in the case, the more their own bias. But that does not necessarily affect the lawyer's ability to produce an abstract summary of good judges. It's like students who always want to get high marks in their exams, but in practice, not every teacher who gives them high marks must be considered a good teacher. In fact, both Chinese and foreign, a common phenomenon is that students tend to think that the higher grades of teachers compared to "water."". This shows that the general judgment of man is not always determined by immediate interest. In judging a good judge, the lawyer's point of view is different from that of the society. Of course, there is not a unified social perspective, social perspective, the so-called subdivision, it may be the first party's perspective, this is the most common; secondly, in some social impact cases, as well as the media or the general public view; third, sometimes when the leaders of the party and government organs or perspective. Fourth, the court leadership perspective. For example, these people also have the difference of outstanding judges understanding, and in some cases involving major local interests, some local party and government leading judge judge standard is one of the he / she could consider that - in fact is more care of local interests; The evaluation standard of the president of the court may be that the number of investigators is high and the quality is high (mainly means no problem). These perspectives are generally not very concerned about judicial skills and abilities, often result oriented, and specific case results: the winning or losing of the lawsuit, who loses, who wins, and how the public opinion. In contemporary China, this view tends to favour mainstream ethics. [5] as far as the grounds and grounds for judge's decisions are concerned, the social perspective is generally not concerned; and because of the lack of legal knowledge and the urgency of time, people who are from a social perspective are generally unable to care. In the words of the jurists, the social point of view is often substantive justice. The lawyer's perspective overlaps with the social perspective, but does not overlap completely. Of course, lawyers are concerned about the winning and losing of the lawsuit, and also about substantive justice. However, due to professional characteristics, lawyers are not only concerned with substantive justice. This is not only because most of them graduated from law school, know the difference between substantive justice and legal justice, know the difference between moral and law; more importantly, the program or legal issue is directly related to the interests of lawyers. If you only care about real justice, it is difficult to become a lawyer occupation occupation, will lose a lot of fun; [6] lawyers will according to the parties in a case of substantive reasons and evidence quality to select agents, agents will compete for the rational side refused to proxy unjustifiable party. But this is not the case in the litigation agency market. The lawyer is generally not just because a party not Zhanli refused to agency, they pointed out to the parties, this case is very difficult to win, but at some point you can also win: more than pay less pay or other points out the fault of the parties or sentencing lighter etc.. Therefore, lawyers in litigation to judge always has some legal occupation based on the requirements, asked him not to identify all right and wrong, and should be a detailed investigation of reasons and evidence of all parties, the provisions of the existing legal consideration -- even if these Provisions may not be entirely reasonable in this case. Lawyers are more concerned about judges' respect for procedural law than ordinary social perspectives. Even lawyers will have some more private considerations. For the occupation moral requirements, the lawyer knows their side of the reason is not sufficient, will still be in court for the purpose of What one says is plausible.; just to let the parties see themselves is best; at this time, they do not want to judge in the court judgment, and even make you embarrassed. These considerations are both different from those of the academic community as well as the general parties or the public. Therefore, we can theoretically say that lawyers have not only their own point of view, but also the lawyer's point of view and academic perspective and social perspective will have some differences. Two 、 good judge in lawyer's eyes First of all, with the case parties, the media, the general public and the party and government departments are very different evaluation, lawyers judge the judge is obviously very professional. Even lawyers such as analysis of legal literacy, high strict professional training and excellent problem-solving skills, just ask the quality is now popular in academic discourse, but the support of these words of the content is often occupation, so it is unique. This situation has been in the legal practice of my personal interview and my lawyer, a party may be just because of a case results (often because the verdict in his favor) is to judge a judge's quality; the public, media and government agencies are often according to some non occupation considerations such as handling attitude, verbal ability, moral tendency and political quality to the judge. But these judgments are often directly linked to the verdict and are therefore easily destroyed. The parties may because the judge, and tell the patient to listen to a benign countenance very well on his / her initial impression, but once the verdict did not meet expectations, they will immediately turn to negative evaluation. Lawyers are more different from the parties at this point. It is true that when the judgment is disadvantageous to one's own party, the lawyer often expresses his appeal, and even considers the judgment unfair, But this is often because he for lawyers to consider their own responsibilities and the parties in the case of economic interest; at least a considerable number of lawyers will accept their persuasive judgment in the heart of such a judge will give more positive evaluations. Therefore, lawyers often have two sides of the judge's evaluation, one is for direct interest, on the other hand is out of the legal occupation standard; generally speaking, the stronger the ability of business lawyers tend to value the latter. Second, the term "judicial justice", which is often used by different people or groups, has a more pragmatic meaning and understanding in the perspective of lawyers, and is not primarily a moral concept. Lawyers, of course, are eager for justice. The lawyers I interviewed almost universally regarded the public as the first criterion for good judges. However, different from the ordinary people to understand is, first, justice in the eyes of the lawyer is a more general judgment based on the number of contacts, not always for the outcome of the case second, just do not have a strong moral meaning in law in nature, often with judicial technology. In fact, many lawyers have said that if the normal, they will accept a party for his negative verdict, even for some reason the "errors" can also give some understanding in the mind. They pay more attention to whether the judge has followed the procedure of the law, whether the confirmation of the relevant evidence is basically reasonable, whether the interpretation of the law is reasonable or not, however, is far fetched and whether the application of the law is basically appropriate. Although they appear in court as if there is only one correct answer to a case, it seems very intolerant, but in fact they do not think a case has only one right outcome. In this respect, they are often more tolerant of the verdict than the law and the public, especially when they do not directly represent the case. A number of factors that have contributed to this distinction in a lawyer's profession. Although the easiest thing to think about is that the lawyer has a claim to the judge, he does not wish to offend the judge and do not wish to be involved, but according to my interview and my personal experience, this is not an important factor. The more important factors are as follows: one is that the law is a long-term occupation, the relationship between lawyers and judges is a multi game relationship, so long, lawyers must be long-term experience on the formation of the judge's judgment, they pay more attention to judge whether the behavior is regular. [7] contrast, relationship between the parties and the judge is often once again, winning or losing is on the basis of all parties judge evaluation, a win is often all winning, so the parties to judge evaluation tend to go to extremes. Second, due to the long engaged in the legal occupation, frequent contact with legal affairs, lawyers should more experience feel the discretion to determine the different judges must be different than scholars, understand the "law of life experience, rather than logic, [8] understanding all kinds of error is inevitable in judicial process. They are for those who served as a judge of the intelligence, judgment, cognitive weaknesses have a realistic understanding, therefore, if a judge is not obvious favoritism, obvious incompetence. They are tolerant of the inevitable weaknesses of these human beings. The third is the representative of the parties, lawyers often appear rational or not, reasonable and inadequate, so they don't really think of myself on behalf of the party is always rational, but also know the legal skills yourself or other lawyers for their respective parties and take the "trick", this time forced or empathy the Preview prompted at least part of occupation requirements on their own and each other's Lawyer Litigation, secretly actually have some reservations, or have a certain range of expectations (rather than a certain expected); and many times each other lawyers and their acquaintances and friends. In this case, there are few lawyers really think only claim the win, only their own laws to explain; they would argue, but not stubborn. This is therefore very different from many law school scholars, The scholars discussed the judge is often a great judge, often some of the classic cases of great love is used to judge, comparative analysis and normative analysis of the concept, so scholars have in mind a good judge often ideal. [9] ordinary lawyers contact a lot of judges in reality, so their evaluation is a more secular evaluation, but also a relatively objective evaluation. A good judge lawyer in mind actually are some mistakes will judge, rather than the kind that has never made a mistake "Bao" type of judge, they know that the judge does not exist. But the most important factor is probably due to the long-term game between lawyers and judges, the lawyers did not pay more attention to the external inducement of the judge thinking, analysis, judgment itself with the rules, because the rules will be beneficial to the prospects of his lawyer litigation has a relatively stable expectations. Of course, lawyers hope to win the lawsuit, but also use some illegal or semi legal means to influence the judge's decision, but the lawyer is not really hope the judge because of interest or because of "man" in favor of a party, even if it is a party of their own; because in the face of such judges, lawyers on the case may result in heart still no end, because of illegal or semi legal means other lawyers will also use while he is unable to understand and control the influence of the judge. If faced with such a judge, the lawyer's work pressure is more practical, more uncertain expectations, which means that lawyers have to pay a higher price, more use of non legal knowledge and relations. But if the judge is fair, even if occasionally lawyers in some cases lost, but in the long term, the lawyer paid cost is relatively low, because they can put more focus on the professional knowledge of law, this is a more fair competition, but also a more efficient competition. This not only makes to improve the lawyer's professional skills, but also can enhance now generally lack the credibility of lawyers and lawyers occupation occupation should be the pride and honor. In my opinion, this may be the reason why lawyers regard the justice of the system as the most important reason more than ordinary people. Third, lawyers also have a series of more detailed and specific judgment criteria for judges, covering the capacity, experience and quality of the judges throughout the judicial process. For example: (1) the lawyer asked the judge to have acumen and insight, can accurately find the facts of the case, and this is the result of the trial is the prerequisite of justice. Although lawyers are always good at and willing to make articles on evidence, and sometimes distort and confuse facts to get their own favorable judgment, it is often a fluke to win the lawsuit. If a judge is able to see the problem through a careful analysis of the evidence, he will be convinced by any lawyer, and will therefore have an admiration for the ability of the judge. The interview shows that no lawyer would think that a fact is unclear even the judge, even if he is good, just and stern, not to mention the respectable. (2) due to the case of more and more complex, often involving many outside the legal knowledge, so this kind of agency lawyers often hope the judge in legal knowledge, but also should have relevant professional knowledge more extensive and rich life experience. Particularly in relation to some of the more specialized field of criminal and civil and commercial cases (such as computer crime, some financial crimes, complex real estate and intellectual property cases etc.), lawyers are expected to judge related fields have more knowledge of the background and rich trial experience, but is not only familiar with laws and can be used the law. Because in these cases, only the legal knowledge is not enough, even if the case involves the basic interests are not understand, it is difficult to analyze, lawyers and argue their persuasion, so the result is also not sure. [10] (3) is not consistent with the popular view of legal circles over the past few years. [11] lawyers do not always value the judge's ability to judge, Even if these judgments are fair. In many cases, lawyers are even more interested in resolving conflicts and ultimately resolving disputes. Because the lawsuit result even completely according to the law, there will always be a win, as long as there are some contradictions between the parties or, at least will not eliminate, even aggravated, and lasted until the execution stage (which is why the China universal existence carries out an important reason for difficult). [12] lawyer will therefore bear a heavy burden of litigation, to start the second instance and retrial procedures in an effort to meet the requirements of the parties concerned, although it is difficult to meet the basic ability; the parties often do not have the evaluation of judicial judgment, often the result of heroes, because with the case of losing will be made negative and even moral evaluation of occupation the lawyer. Therefore, many lawyers even starting from their own long-term interests, at least in many civil and commercial cases, that judge should not only make legal judgments accurately, clearly the focus of controversy in the trial found that has the ability to fully demonstrate, the mediation of the judge and the ability to compromise. This ability not only greatly reduces the litigation costs of the parties, so that disputes can be solved fundamentally, but also conducive to the practice of lawyers, reducing the professional risk of lawyers, and enhance the professional reputation of lawyers. Even lawyers see the ability as a manifestation of the judges' overall quality. (4) court trial ability. Including the accurate determination of control ability, the focus of controversy in the trial, to avoid unnecessary details, familiar with the law and the legal but appropriate words and thus facilitate the exchange and the ability to resolve contradictions, these are also the factors and agency litigation lawyer practice environment is directly related to the. In addition, (5) in the lawyer's eyes, a good judge should generally at least a professional knowledge of law, judicial experience, personal character, occupation ethics and law I have similar or even slightly higher, but do not think that higher education is very important. This is primarily because, in the field of relatively definite knowledge, the average person is reluctant to accept the opinion of a person who is considered inferior to himself. This is also the important reason that some western developed countries always insist on selecting judges from excellent lawyers. Another reason is that the law is very pragmatic, and long-term with the judges to deal with, so they use good judgment in the judge is a substantive standard (people are smart acquaintances, people how), rather than a stranger (standard identity, degree how). Only when they are not familiar with each other, the identity mark of education will have the function of transmitting information. Three, what is the significance of studying the lawyer's point of view? The above generalization is only preliminary, but it still has certain practical and theoretical significance for us to study Chinese judges and judicial reform. Because of the existence of a lawyer's perspective, we can expect that in a particular case, society, academia, and the community of lawyers are bound to have overlapping views of good judges or competent judges, and at the same time there will be separation. The first is overlap, which is the justice and the ability of the judges. But for a fair and capable understanding, the perspectives are slightly different and sometimes very different. From the social perspective more often affected, substantive justice and result oriented; academia may emphasize mastery of the law, legal interpretation, generally focus more on the legal provisions, including the procedure law, sometimes may also include some policy analysis. The lawyer's perspective may be even higher. In addition to the above requirements, they will also emphasize the actual performance of judges in court trials. The lawyer not only wants the judge to be a legal person, but also a reasonable legal person; otherwise, the judge is not easy to listen to, let alone to listen to the lawyer's various legal debates and analysis. This is of practical significance for us to re judge the standards of judges and to select judges. At present, despite the emergence of some good judges as role models, the standard of good judges in the professional sense of law has not been universally established. Social standards are dominant, such as "good judges for people's satisfaction", In principle, it is correct, but it is not only difficult, but sometimes impossible to do, especially when the judge is in a case where neither party is willing to compromise and the law requires such a judgment. Although the legal profession emphasizes the professional nature of judges, the normative view of the academic circles is not perfect enough. Some abstract concepts must be specific to the system. And, as the analysis above shows, even these abstract standards are not paramount in judicial profession (e.g., judgment and mediation). Therefore, in order to truly establish a standard of professional judges in China, the perspective of lawyers is indispensable. Because of these different perspectives, and different expectations implied, we can expect that in a longer period of time, the judge may be caught in a dilemma -- sometimes not only can not make everyone satisfied in some cases, even in some cases may make all the people are not satisfied with. In some cases, he may offend the lawyer when he is satisfied with the party or the public; in some cases, when they are satisfied with the law, profession or academia, they may offend the public. At the end of 2003, the Liu Yong case could be partly true. If we are fully aware of this, we can not only give some enlightenment to the self positioning of the judges, but also to the public as well as to the legal profession. Although the leading behavior is still expected to judge social society, but with the development of Chinese legal occupation, with the occupation groups about a good judge in public and in the expansion of academic law circles, with the diversification of expression of social ideas and interests, is likely to affect the legal occupation group of lawyers for judges expected will increase gradually in the judicial field. Only when this effect is large enough, including judges, lawyers and legal person, all academic legal personnel may actually form a relatively consistent occupation consensus about a good judge, but the current consensus is also very weak, even very lack. Therefore, even under the present social conditions, even a reasonable judge may be attacked from different perspectives, and all kinds of reasonable, but not necessarily based doubts. Taking into account the ongoing judicial reform, Chinese I think, in the legal permission, the judge should consider more about the necessary accommodation even in the public view, but must be fully aware that the occupation for the rule of law, governance from the perspective of law emphasizes the rule -- has extremely important significance. Because, as mentioned earlier, the lawyer's perspective is always more specific, and tend to require more regard to judge rules and procedures and restrictions of many highly skilled due to the formation of judicial practice, rather than to the people or intuition about justice. The lawyer's point of view basically stems from the expertise and interests of the lawyer, but the lawyer's claim is also good for the community as a whole. If the results more judges of social justice based on intuition, is often subject to social instability evaluation, not only conducive to the formation of the rule of law and legal technology development and creation, but also brought the results difficult to predict; too accommodating people actually allow judges judicial discretion more subjective, but not to restrict the arbitrary exercise of power, and even some of the judges is not dutiful, cater to the social trends to justice. From the perspective of law and occupation implicit requirements, although sometimes too technical, too trivial, so may be more conducive to those who can afford to hire a good lawyer client, but the system from the revenue point of view, this law perspective is likely to gradually force the strict strict rules to pay more attention to the judge.