Law and justice

At the people's University law school forum comments

He Weifang

 

Today our forum, a total of two half day morning, afternoon, morning schedule many officials, therefore, near noon when I came. In the afternoon of this field, we really heard several people from a very distinguished, more insightful lawyers some wonderful speech.

   

Zhao Xiaoluo lawyers who work in the government, in the lawyer industry has a very profound experience. I am very surprised he is speaking from the return of the Marx doctrine from the topic, found in the writings of Marx, a lot of help lawyer occupation of discourse and theory, in order to prove that, some official practice today is in violation of our "oceanic ancestors" teaching. This is a "the spear", such a perspective is of course a very subtle. I also feel that some government behavior we exist for lawyers guard even hate, analysis need a powerful way to. For example, last year after Chongqing court sentenced Li Zhuang, a lawyer, the Justice Department immediately issued a document request, lawyers throughout the country to learn from. At that time I feel very strange, according to said Wen was more serious than the Li Zhuang incident, Wen as the judicial administration officials out of trouble, as the Chongqing Judicial Bureau's boss, the Department of justice is not issued, not self review, but the lawyer is a problem, the old long hand, go to the national lawyers make carping comments on, not the monstrous absurdity?

   

However, Zhao lawyers criticism is also worth to make further analysis. In fact, all the older friends will remember, when the beginning of the reform and open up, there are many measures on reform and opening up is the argument of the start from the Marx doctrine. People continue to demonstrate the reform and open policy is not in violation of the Marx doctrine, even it is the proper meaning of questions in the Marx doctrine. I was very impressed by a few eloquent of Professor Li Honglin's article. This of course is a very good strategy. However, there are some problems, such as Zhao lawyer quotes Marx resolutely opposed to law state, this is no problem, but Marx said is against the bourgeois state, including whether the opposing lawyer proletarian state? Notably, Marx himself did not conceive of a law, a lawyer of the Communist countries, communism is no country, no law, everyone here unemployment time is our best era. However, later communism but in Russia where the first establish, destroy the country and law that is difficult to achieve, so there will be a special difficulties in the relationship between socialism and the law and lawyers. If the lawyer socialist countries can exist in the folk force way, whether can become a private power to restrict the government, at least in the traditional socialist theory, we can draw the conclusion that the lawyer.

   

Not only that, because digestion of class struggle and the interests of justice, the traditional socialist political philosophy is actually anti law doctrine. Our system deficiencies and difficulties, including lawyers the tough situation, to a certain extent, to the Marx doctrine to assume responsibility. That is to say the Marx doctrine because it creates such a theory, the economic base determines the superstructure, basically is to law as a professional power and law as an independent value of existence, to a fundamental solution, because it is the economic basis decision, is derivative, to serve the economic foundation. Also, it is a self denial process, that is to say we're in a socialist country, the existence of lawyer is to destroy the law, the existence of law is to destroy the law, are eliminated, the most beautiful Communist will descend to earth. This is a how to say some content among Marx's theory is the core of. This is also more or less echoed Kong Fuzi's thought, "sentence to sentence," the law, because by operation of law and ultimately destroy the law. The Marx doctrine to be one of the reasons is the mainstream theory Ruma coincide in Chinese.

   

Mr. Qian Lieyang is a friend of mine for many years. All these years, he made some very important criminal defense, has been widespread concern in society. His question is why not guilty verdict in Chinese legal is very little? A trial China decision, a guilty verdict is accounted for99%Above. This is a very serious problem. Because if not possible not guilty verdict, the defendant will be suspected of criminal cases, thought I this case please don't ask a lawyer to have what difference? This is a big problem for the development of lawyer. I used to sit in some cases, even finally sentenced to many years in prison cases didn't lawyer agency.

   

We have English friends to participate in this forum, a professor Chen Weidong organization and China lawyers and scholars and British law together to discuss the criminal defense. We asked the British counterparts, what is the role of lawyers in criminal proceedings in England? A British lawyer, said the lawyer, is all criminal proceedings condition, no lawyers, criminal procedure can not be started. We also reflect on, why?

 

Then again, the guilty verdict rate is not necessarily that the protection of human rights is low. Comparative jurist Dave (FranceR. David) had French and Anglo American criminal justice, said France conviction rate is much higher than the common. This is because the pre procedure of France, is the judge of the program is very important, it makes it an innocent person most early by screening out, don't need to experience the open court trial. In the Anglo American countries, the judicial process is more dramatic. The lawyer, told the jury about the existence of the. In a jury trial of the case, because the jury of two elderly members refused to believe the fingerprint evidence efficiency, finally can't convict. The old man asked the fingerprint science? Fingerprints are not the same? The old man said you have compared the world all people's fingerprints are the same? No wonder a American driver I've ever met, their legal system is always bad. But, I must say, with our national conditions with the French situation is not the same; our innocent wronged many people, over the years has been uncovered case illustrates this point. Where is the root? Lawyer Qian Lieyang made some very worthy of our reflection problem for everyone. Unreasonable appraisal system, judge's occupation is no guarantee, lawyers speak in court have no immunity, so the judges are trembling in the written judgment of the hand, very difficult to achieve real justice. I think the more fundamental reason is the problem of judicial independence. If the court can not be independent decision, how can you expect the judges to the innocent circumstances, firm a verdict of not guilty? The case of Li Zhuang, the prosecutor withdrawal, why not a judge declared Li Zhuang innocent? You can see the configuration of our country judicial, procuratorial and public security organs of the strong.

   

Later in the Li Zhuang case, Wang Cailiang lawyers because published questioned some lawyers conduct article, in the network under a lot of criticism, I know he has a very strong anti strike capability. But, I have to criticize Wang Cailiang's lawyer, my main problem is put forward, your lawyer to win the people's understanding and support, I am very much in favor of, you raised a lawyer to pursue certain social understanding of the goal of justice, I also very much in favour, lawyers should pursue this thing. However, what is the target actually practicing lawyer? I think Professor Liu Zhiqiang's view is to restrict and balance, is a public authority, it is a force for. If the lawyer is the pursuit of justice, it is from the result rather than the process of.

   

Professor Dershowitz of Harvard Law School who call a spade a spade: prosecutors have a tendency to innocent people are said to be guilty, the lawyer is the opposite, tend to think of the guilty man said to be innocent. The lawyer must maximize the maintenance of the interests of customers, the only way to form a force confrontation and balance. If the lawyer said I must seek truth from facts, the seek truth from facts is not, in the middle of the legal field, probably like into the people's University, although the big stone that seek truth from facts, but you can only or left, is to the left, or right, if you insist on seeking truth from facts, will bump head broken and bleeding in stone. I hope our lawyers to gradually get to this unique industry sympathetic understanding of a society, we at least on the surface, seems to give the "bad guys" to speak, to help them escape punishment. However, it is the balance between the force and the prosecution, and can reduce the wronged and judicial power.

 

Lawyers and legal groups pursuing some interests may also benefit the whole society. For example, there is a widespread prejudice, lawyers are expensive. But, like other industries, sometimes charge high product quality is associated with. Why the British lawyer guild has been through the license to strictly limit the lawyer's scale, because they know that limit the scale means that the legal quality guaranteed, and lawyers have the quality of security, is the quality and price of products is guaranteed. As we all know, we usually buy watermelon with legal products are not the same, buy watermelon you can pat, but for not being trained in the law of the people's quality, legal opinions on how to judge? In most people cannot judge the quality, if the product quality uneven, the result is that people are inclined to buy cheap goods. So, you try to provide high quality legal services lawyers can also cut corners, the final hurt the whole society.

 

So, we need to understand the lawyer's occupation ethics. Some ethical rules look often distance and high still, and loyalty was bound tightly. Such as a practicing lawyer at the intermediate client confidentiality, what lawyers are embarrassing situation? Your customers and you say, they only know I robbed the bank money, don't know that I killed two people last year. How do you do? You as a moral good lawyers, Is it right? To expose? No, absolutely not exposed, because the foundation revelations will shake lawyer occupation, that is the national counsel for the trust. The foundation does not exist, the rule of law building will be destroyed on one day. In fact, even in the country under the rule of law, the general public on the lawyer occupation also often disparaging words, popular with many bitter lawyer joke. One is this: a lawyer's tombstone engraved two words: This is a law of the tomb, he was a man of integrity. Someone saw, asked: how may be buried two people in a cemetery?

   

Jiang Yong lawyers question I sounded very technical, but he reveals the middle of our country judicial decisions, judicial process some problems are worth solving. For example, a judicial system is very important to achieve stability of judicial decisions itself prudence and the judicial decision. And between the two there are often contradictory, must ensure that its rigorous, impartial and accurate. But on the other hand, you can't tolerate some error, perhaps no one can guarantee that all the judicial decision is correct, but can not guarantee the wrong reserved, find errors are corrected, this is no way to achieve the goal of.

   

Jiang lawyers, today in such a system, there is a very weird, like the unspoken rule as the retrial mode, seems to be the second instance being the final instance into a quasi three trial system. There's still a lot of problems worthy of our attention, I want to mention a Supreme Court, is constantly in such a retrial, the referee for the fact of case, if the parties are still questioning the decision the Supreme Court finally, what is the remedy? The Supreme Court retrial judgment can still turn, the judicial authority and how to maintain? We must consider a state supreme court functions, it can't handle the fact a lot of problems easily, should put the question of fact on the lower court judge, more of their own work is to unite the law, even to restrict power and legislative power working in countries of constitutional government.

   

Six suggestions Li Xiaobin lawyer I mostly agree, but you said that in order to enhance the position of lawyers, suggested that President of the bar association to participate in politics and Law Committee, this is afraid is not good? Clean the association to what the place? In our country, you'll find out the size of power to a person's position in the party is directly proportional. However, the association president you into the politics and Law Committee, political status is improved, but you don't.

   

Liu ZhiqiangPut forward six aspects. I told you a little to recommend Mr. Liu, Professor, is a great scholar, he to the human rights theory especially in modern times China own human rights theory starts with study very exquisite, his book about Luo Longji's works have been published. It is not easy to do such research in China, because it is very sensitive. So here I express to you my respect, any views on you all took a favorable attitude.

   

Finally, I would like to add four points, the center is how we make the society more understanding of the value of law occupation.

   

First, the lawyer is a very important part of civil society. From the European civil society development history, the lawyer plays the crucial role. We say that the civil society, English calledCivil SocietyAmong themCivilIs the meaning of civilization, it bid farewell to the savage. A society what marks to civilization? Civilization is the most important symbol of the social conflicts can be inside the courtroom through rational way, lawyers and prosecutors professional discourse confrontation, everyone to follow strict rules of procedure, the court judgment neutrality, respect, this is the most civilized. On the contrary, a society without rational impartial courts, people can only resort to private force or violence, it is not a civilized society. So, a lawyer is respected and exert the function of occupation, is a scale to distinguish between civilization and savagery.

   

Second, lawyers in the division of jurisdiction at the same time, also in the shape of a national judicial procedures, including the trial model. I think a very important aspect of the inside, for example in the UK, the court of law, because of the jury, the jury are not literate early, so we must lawyers through oral procedure for expression, questioning the witness, the witness must be legal reasons, but also to the court, lawyers receive challenge in front of the judge and the jury, resulting in the evidence law system is complex and strict. Many of the features of Anglo American judicial mode, the lawyer is very important factor.

 

Third, the lawyer is also transformed a national political form. We can see the degree of democracy of a country and the rule of law, a very important measure, is to observe the lawyer soldier in political status. Forces in the political life, the higher the status of the country more brutal, more low countries more civilized. In contrast, a lawyer in a country's political status, more and more civilized, more low cross-country brute.

   

Fourth, the relationship between law and public opinion. In fact, the lawyer has influence character by environment effects on the entire national civilization, the occupation most closely contact with people, a country's cultural traditions tend to have around public opinion on the lawyer's imagination, restrict the behavior of lawyers, but also directly or indirectly affect the lawyer management mode. I agree with Mr Wang Cailiang, we should try to let people understand, but understand not indulge, but active reverse to create conducive to our lawyers but also conducive to the national rights of the public opinion environment.

 

I'm from22Start has been immersed in a joy, with Chongqing as saying "me very happy oh!" The current situation in Chongqing, despite the overall is not very optimistic, I also do not know the what, but, I believe, thirty years of reform and opening up has laid a solid foundation of law including the law occupation development, including the concept and system of law, including the industry and wider society. I believe, this is a road of no return, Chongqing is very difficult to exception. I think of a joke said Chengdu, Chengdu aircraft pilots to the sky, and if they cannot find the airport, listen to the sound of Mah Jong below have to know Is it right? Chengdu. I don't like about Chongqing another argument -- the pilot Chongqing can not find, can't find the Jiangbei Airport, the best way is to listen to the following have resounding loud and clear "red songs" sound, as well as lawyers feel helpless sigh and groan.

 

Thank you!

 

(this is2011Years4Month24At the Renmin University of China law school the first Forum on the comments, according to the transcript were revised some text.)