Next, the author will talk specifically about how to implement the purpose of the judicial examination from the examination aspect. This link mainly includes: how to take the test, who can take the test, what to take and how to implement it.
1. Questions about how to take the judicial examination and who can take it.
As for how to take the judicial examination and who can take it, in fact, the "Measures" have stipulated it. Article 6 of it stipulates, “The national judicial examination is held once a year. The specific examination time shall be announced to the public three months before the examination is held.” Chapter 4 of it stipulates the registration conditions. Among them, Chapter 4, Article 3, Item 4, lists “meeting the academic and professional requirements stipulated in the Judges Law, Prosecutors Law and Lawyers Law” as one of the registration conditions. Item 6 of Article 9 of the "Judges Law" stipulates that one of the conditions that must be met to serve as a judge is "a bachelor's degree in law from a higher education institution or a non-law major from a higher education institution with professional legal knowledge, and has been engaged in the legal profession for two years. Among them, those who serve as judges of the Higher People's Court and the Supreme People's Court must have engaged in legal work for three years; have obtained a master's degree or a doctoral degree in law or a master's degree or doctoral degree in non-legal majors, have legal professional knowledge, and have practiced law for one year, including serving as Judges of the Higher People's Court and the Supreme People's Court shall have engaged in legal work for at least two years." One of the conditions that must be met to serve as a prosecutor stipulated in Article 10, Item 6 of the "Prosecutor Law" is "a bachelor's degree in law from a higher education institution or a non-law major from a higher education institution, with professional legal knowledge, and two or more years of legal profession. Years, including those who serve as prosecutors in the people's procuratorates of provinces, autonomous regions, and municipalities directly under the Central Government, must have engaged in legal work for three years; have obtained a master's degree or doctoral degree in law or a master's degree or doctoral degree in non-legal majors, have legal professional knowledge, and have engaged in legal work for at least one year , among which those who serve as prosecutors in the People’s Procuratorates of provinces, autonomous regions, and municipalities directly under the Central Government must have engaged in legal work for two years or more.” Article 6 of the Lawyers Law stipulates that “persons with a college degree or above in law from a college or university or equivalent professional level, as well as a bachelor’s degree or above in other majors from a college or university who pass the lawyer qualification examination shall be granted lawyer qualifications by the judicial administrative department of the State Council. ". Article 8 of the "Lawyers Law" stipulates that one of the conditions for applying for a lawyer's practicing certificate is "one year of internship in a law firm." Through the above regulations, the following problems can be found:
1. Item 6 of Article 9 of the Judges Law and Item 6 of Article 10 of the Prosecutors Law stipulate that it is one of the conditions for serving as a judge and prosecutor. So, is this condition a requirement for registration? Can fourth-year undergraduates and freshly graduated undergraduates without judicial practice experience apply?
2. The Lawyers Law obviously separates registration conditions and practice conditions. The academic qualifications for registration are a bachelor's degree or above in law from an institution of higher learning or equivalent professional level, and a bachelor's degree or above in other majors from an institution of higher learning. According to the registration conditions of the Lawyers Law, as long as you can apply for judges and prosecutors, you will definitely be able to apply for lawyers. However, if you meet the registration conditions of the Lawyers Law, you will not meet the conditions for applying for judges or prosecutors. One of the original intentions of establishing a unified judicial examination system is "unification", which violates its original intention.
In fact, the registration conditions for the judicial examination stipulated in Article 13 of the "Measures" are equivalent to the previous conditions for applying for the lawyer's examination. This defeats the purpose of establishing the judicial examination system.
So how to solve the problem of how to take the exam and who can take the exam? The author believes that to solve this problem, we must first make it clear that the legislative purpose of establishing the judicial examination system is to realize the elite selection of professional lawyers, find out the professional qualities that elite professional lawyers should have, what kind of people they are, and how to test these Only people can measure these qualities. As Hamilton said, "There are many kinds of problems caused by human weakness, and the cases are so vast that only those who study hard for a long time can get a glimpse of them. Therefore, only a few people in society have enough legal knowledge to become Qualified judges." 2 In addition, the legal profession is a highly practical profession, which requires judges to turn abstract and profound legal provisions into vivid, concrete and realistic precedents. This transformation from abstract to concrete and from written to individual cases relies to a large extent on the judicial practitioner's practical ability to implement and implement legal norms.
In addition, judicial officers are also required to have rich judicial and social experience, excellent character and noble professional ethics, and a broad knowledge structure. In short, professional lawyers should be high-level, complex, applied and ethical legal professionals, and the judicial examination should be set as the most difficult exam to screen professional lawyers.
Obviously, it is not easy to comprehensively and accurately test the legal knowledge, abilities, judicial experience, and professional ethics that professional lawyers should possess through examinations, and it cannot be completed in one examination. It would undoubtedly be a fantasy for a newly graduated undergraduate to talk about judicial experience and judicial professional ethics; if the judicial examination is not open to all those who study law and are interested in engaging in the legal profession, it will lose social justice (such as a junior law student graduates), while ignoring the actual national conditions. In our country, undergraduate education has not yet reached universalization, and is currently in the transition stage from elite to universal. In addition, in addition to judges, prosecutors and lawyers, there are a large number of other law-related professions in our country, such as police, judicial administrators, forensic doctors, court and procuratorate clerks, people's congresses, administrative legal affairs offices, banks, insurance, etc. The legal affairs offices (sections) of the financial system, the legal advisory offices of companies and enterprises, and even civil servants should administer according to law. If all legal-related professions are compared to a pyramid, then judges, prosecutors, and lawyers are at the top of the tower, and the rest are at the base. Therefore, there should be testing of both the top of the tower and the base of the tower. These two tests constitute a unified judicial examination. The design of the secondary examination is not original to me. This is the case in Japan and Germany with civil law systems. Japan's "Judicial Examination Law" stipulates that the judicial examination is divided into two times. The first examination is held in January of each year. The purpose of this exam is to determine whether you have the training and college graduation level to take the second exam. Therefore, only those who pass the first exam can take the second exam. The second examination focuses on legal subjects and aims to determine whether those who wish to become judges, prosecutors, or lawyers have the necessary legal knowledge and application abilities. The Japanese Judicial Examination is known as the most difficult exam in the country. 3 Since 1878, Germany has implemented a national examination system integrating the professional qualifications of judges and lawyers. At the same time, a second national examination is required before qualifications can be awarded. The first national examination was taken after three and a half years of studying law at university. It was called the examination to obtain the qualification of "trainee civil servant". Those who pass the examination for the first time can obtain the qualification of "trainee civil servant", but they cannot serve as lawyers. If you serve as a lawyer, you still need to participate in two and a half years of internship (the internship content includes lawyers, judges, prosecutors, companies, banks, etc.), and after about 10 months of preparation, you need to take the second national examination, which is called "candidate" "Civil Service" qualification examination. 4 It should be pointed out in particular that Japan’s judicial examination has no academic requirements, and all Japanese nationals can apply for it; German nationals can take the judicial examination after completing more than seven semesters of courses at a university law school. Few people criticize the quality of professional lawyers in these two countries; on the contrary, the high quality of contemporary legal professionals in Japan and Germany is well-known in the world.
There are also scholars in my country who favor the two-examination system. He Weifang, a professor at Peking University Law School, believes that the entire exam should be divided into two parts, namely the first exam that focuses on testing the basic knowledge learned during college and the second exam that focuses on the use of legal knowledge and technology to analyze and solve problems. 5 Xia Lu from the China Bar Examination Center once wrote that the bar examination should be divided into two stages. The first examination mainly tests the theoretical foundation of law. After passing the examination, you will participate in an internship in accordance with the training plan uniformly formulated by the Ministry of Justice or the All-China Lawyers Association, and then participate in the second examination. The content of this exam is mainly about legal practical knowledge. Only those who pass the exam can obtain the qualification to practice law.
In addition, there are three reasons why the author advocates adopting the "two-examination system".
First, due to the examination technique itself and the fairness of the examination. It is obviously unfair for a fourth-year college student to test his judicial practice ability and professional ethics compared with a law undergraduate with three years of judicial practice experience. The former has almost nothing to say about judicial practice and experience and judicial professional ethics. In addition, the examiner is required to test not only theoretical law, applied law, and current legal regulations, but also legal practice and legal professional ethics. It is not easy to comprehensively and accurately test a person's true level.
Second, the "two-examination system" can also alleviate the problem of immature operation of the current judicial examination system.
The significance and impact of establishing the judicial examination system is undoubtedly far-reaching and huge, but because it comes in a hurry, it must be implemented when all parties have insufficient awareness, incomplete understanding and insufficient preparation, so it appears to be a hasty response. This can be seen from the extremely simple "Method". It would be more reasonable to conduct the first exam now, and then conduct the second exam after all parties have discussed, fully understood the judicial examination system, and been fully prepared; because the second exam is the final exam and the most critical.
Third, it is the requirement of the actual situation of judicial personnel at this stage. Our country has a vast territory and uneven development in various regions. Some courts and procuratorates in remote areas do not even have undergraduate law students. If these areas really need to appoint first-time judges and prosecutors, they can appoint those who have passed the first examination based on their first-time examination results.
Therefore, the author recommends the implementation of a "two-examination system" in the judicial examination. The first test focuses on the basic principles of law, basic knowledge of law and current legal regulations that the candidates have learned. The first examination questions are mainly objective questions and subjective test questions. The requirements for applying for the first time are not restricted by academic qualifications. This will encourage those who are self-taught in law. The second examination mainly tests the candidate's ability and professional ethics to engage in the legal profession, while also taking into account the basic theories and basic knowledge of law. The questions in the second examination should include both objective questions and subjective questions. The minimum academic qualifications and judicial practice experience required for registration for the second examination are strictly limited to the conditions stipulated in Article 9, Item 6 of the Judges Law and Article 10, Item 6 of the Prosecutors Law.
2. Regarding the question of what to take.
The reason why the author puts what to test after how to test and who can take the test is because only by determining the former can the latter problem be solved. At the same time, how to implement the two depends on the judges and What kind of professional qualities should prosecutors and lawyers possess? In fact, the "Measures" have stipulated what should be tested. Article 7 of the "Measures" stipulates that "the National Judicial Examination mainly tests the legal professional knowledge and the ability to engage in the legal profession that candidates should possess. The content of the National Judicial Examination includes: theoretical law, applied law, current legal regulations, legal practice and Legal professional ethics." The author disagrees with this, so it is necessary to not only explain it theoretically, but also to expand it. As the author said before, in order to make the judicial examination more scientific, we must first find out the knowledge levels and abilities that judges, prosecutors, and lawyers should possess, and then find out the most common points between them. Key points Test the similarities while taking into account the differences.
According to the provisions of the "Judges Law", "Prosecutors Law" and "Lawyers Law", it can be considered that judges are judges who exercise national judicial power in accordance with the law. Their main responsibility is to judge, including civil, criminal, The trial work of administrative cases also includes case filing, review and supervision, execution and other work. Prosecutors are prosecutors who exercise state procuratorial power in accordance with the law. Their main responsibilities are to conduct legal supervision in accordance with the law, including conducting public prosecutions on behalf of the state, investigating self-investigation cases, approving arrests and supervising the execution of judgments and rulings, etc. But their most important His job is to engage in criminal prosecution. Lawyers are practitioners who provide legal services to society. What is different from judges and prosecutors is that their business scope includes both litigation business and non-litigation business. Its business scope not only involves criminal, civil, administrative and other legal issues in the judicial field, but also involves a large number of non-litigation finance, real estate, corporate consulting, negotiation, intellectual property and other work. It can be said that from the perspective of their responsibilities and business scope, lawyers, prosecutors, and judges are reduced in order. However, from the perspective of professional and business requirements, judges should have higher depth of legal knowledge and ability to apply it than prosecutors, and prosecutors should have higher At lawyer. From the perspective of professional and business roles, prosecutors mainly represent national interests and social public interests; lawyers mainly provide various legal services to others, and they are paid, so they are more inclined to take into account the interests of the parties involved in the case. ; And judges are mainly intermediate referees, only obeying the law, passive, passive, neutral, independent, detached, and rational, while the work of prosecutors and lawyers requires them to be proactive. The author below discusses the professional qualities required to do these three professions well.
As far as a judge is concerned, in order to be a true judge, he must at least meet these requirements. The first is a deep level of legal expertise. The second is professional ability.
The learning of any principle lies in its application. Law is a science that applies to the world. It integrates human legal experience and legal experience, and technology is its prominent content. This technical ability is mainly reflected in: (1) The ability to control and command the court; (2) The ability to analyze, identify and judge legal issues; (3) The ability to identify legal sources; (4) The ability to annotate and interpret laws; ( 5) Legal logical reasoning and reasoning ability; (6) Written language expression ability; (7) Ability to remedy legal loopholes and balance interests. The third is judicial experience. The fourth is professional ethics.
As far as prosecutors are concerned, to be a competent prosecutor, he should have the following qualities. The first is solid legal foundation; the second is rich legal logical thinking ability; the third is rapid response and adaptability; the fourth is strong ability to collect, judge and use evidence; the fifth is the overall ability to grasp the case; the sixth is stability The seventh is strong oral and written language expression skills; the eighth is rich prosecutorial work experience; the ninth is noble prosecutorial professional ethics.
As far as lawyers are concerned, generally speaking, in order to do a good job as a lawyer, in addition to having political and professional qualities, they should also have professional experience and abide by professional ethics. In terms of professional qualities, first, lawyers should have relatively rich legal knowledge, be familiar with relevant laws and regulations, and have a good grasp of the concepts, principles, and systems of basic departmental laws; second, they should have good logical thinking skills and Super strong error correction ability; third, eloquence and certain adaptability; fourth, necessary writing skills; fifth, lawyers should also be a generalist, requiring a broad knowledge structure including economics, technology, foreign languages, etc.; Sixth is good interpersonal relationships. Finally, a lawyer should also have a good appearance and demeanor.
Through the above analysis, we can find that although judges, prosecutors and lawyers have different work scopes and ability requirements, as well as the breadth and depth of knowledge, the professions they want to engage in are all the same. It is inseparable from the support of the basic principles and basic knowledge of the law, which requires them to master the current laws and regulations proficiently. At the same time, they are required to have the ability to apply legal principles, the ability to summarize, analyze and judge the process of individual cases, and they are required to have With good professional ethics and rich professional experience, their ultimate goal is to achieve social justice.
It can be seen that, as pointed out above, the judicial examination should be set as two times. The first examination mainly tests the candidates’ breadth and depth of basic legal principles, basic knowledge, laws and regulations, and their ability to engage in the legal profession. The potential ability of Judgment ability, legal thinking ability, written expression ability, ability to use legal knowledge to resolve disputes) In addition, the candidate's professional beliefs and professional ethics are also tested.
3. Concrete implementation.
In fact, the formulation of the "Measures" laid a certain foundation for the legal implementation of the purpose of the judicial examination system. However, this "Measures" is too simple and not very operable. As far as the implementation of the national judicial examination system is concerned from the examination stage, the author believes that it is necessary to do the following work.
(1) Establish a national judicial examination committee. This committee is the center of the judicial examination, providing decision-making guidance on major matters in the judicial examination, rather than "negotiation" (referring to Article 4 of the "Measures", which stipulates that the Ministry of Justice, together with the Supreme People's Court and the Supreme People's Procuratorate, shall form an examination coordination committee to make decisions on the national judicial examination. This practice is practiced in many countries around the world. For example, Japan has a Judicial Examination Management Committee, and Germany and France have a Judicial Examination Committee. The members of the committee are generally composed of personnel designated or recommended by the Ministry of Justice, courts and procuratorates, or lawyer institutions and legal academic circles.
(2) Establish a proposition committee. Selection of legal talents is the most important function of the judicial examination. As a means of testing, the key to whether the examination can fully and truly reflect the knowledge level and ability of the testee within a limited time and scope lies in whether the proposition is scientific. The proposition here includes both the content and the question type that reflects the content and form of the proposition. . The person responsible for this responsibility is the proposition committee. Therefore, it can be said that whether an authoritative and high-level proposition committee can be established is directly related to the success of the judicial examination.
The members of the proposition committee are nothing more than from the legal field and judicial practice department. In addition, the author believes that some experts who specialize in examinations should also be recruited.
(3) About the subjects and composition of the judicial examination
The first examination mainly tests the candidates’ mastery of the basic principles of law, basic knowledge of law, current laws and regulations, At the same time, the candidate's epistemology, methodology, world view, and professional beliefs are tested; the first test mainly takes into account the application of knowledge, highlighting the breadth of knowledge while taking into account the depth and comprehensive application ability. The first test can be divided into five papers, with a full score of 500 points , each paper is worth 100 points. Paper 1 covers Marxist philosophy, Deng Xiaoping Theory, the Constitution, basic legal theory, international law, private international law, world trade law, professional beliefs, etc. The function of setting up this test paper is to enable candidates to have a correct worldview, methodology, epistemology, and legal professional beliefs, that is, to use these worldviews, professional beliefs, and theoretical laws to guide applied law; the second paper is civil and commercial law, including civil law, civil litigation law, Contract law, marriage law and intellectual property law, etc. Paper three is criminal law, including criminal law, criminal procedure law, and individual regulations and judicial interpretations related to criminal and criminal litigation; paper four is administrative law, including administrative penalty law, administrative reconsideration law, administrative procedure law, and state compensation law. The reason why administrative law is set as a test paper is that the author believes that this setting can reflect the requirements of the development of the times. If slave society and feudal society are the era of criminal law, and capitalist society is the era of civil and commercial law, then modern society places more emphasis on administration according to law and is the era of administrative law. Therefore, it is specially designed. Paper 5 is a comprehensive examination, which tests applied law, focusing on the application of civil and commercial law. It also integrates substantive law with substantive law, procedural law with procedural law, penetration of substantive law with procedural law, and the intersection of civil, criminal and administrative, highlighting the comprehensive examination. . The author designed it this way based on his own experience. The author once personally handled a civil complaint case. As a result of being kidnapped, the complainant wrote an IOU of 10,000 yuan to the kidnapper. Afterwards, the kidnappers sued the court based on this IOU. The court only ruled that the kidnapped person lost the lawsuit and repaid 10,000 yuan to the kidnapper. This case has extremely negative impact on society. If the person in charge knew that the case should be a criminal case, he should have recommended that the case be filed as a criminal case first, and then the facts should be ascertained before handling. The above-mentioned wrong judgment would not have been made. In judicial practice, we sometimes encounter administrative, criminal, and civil cases. If you only understand the rules of a certain department, you will not be fully qualified to handle the case, especially for those who work in the review and supervision department.
The second examination tests the candidates’ application of legal principles and basic legal knowledge, that is, it tests their professional abilities, and it also tests their professional ethics, that is, it tests their professional qualities, including professional ethics, and tests their professional ethics. Depth, test its application, test its synthesis, test its thinking process, etc. The 4+X method can be used for the second examination paper. The first paper is civil law; the second paper is criminal law; the third paper is administrative law; the fourth paper is professional ethics and professional practice; the fifth paper allows candidates to choose a group of subjects (such as , the first group is international law, private international law, international economic law, and world trade law; the second group is marriage law, inheritance law, and labor law; the third group is commercial law including company law, bill law, bankruptcy law, finance, insurance, Securities, etc., the fourth group is intellectual property law including copyright law, trademark law, patent law, the fifth group is economic law including consumer rights protection law, anti-unfair competition law, anti-monopoly law, anti-dumping law, etc., and the sixth group is Environment and environmental protection law, the seventh group is notarization and grassroots legal practice, the eighth group is forensic and judicial appraisal business, the ninth group is public security business, and the tenth group is legal English). The reason why the author designed it this way is to provide a reference basis for candidates to choose careers or for selectors to select talents. For example, a person who has passed the second examination and scored high marks in Paper 2, Criminal Law, can choose a career as a prosecutor. If a candidate is interested in pursuing a career as a lawyer and focusing on environmental litigation, he can choose environmental law in paper five. This also has the advantage of saving examination costs and overcoming the phenomenon of too many professional qualification examinations related to law (such as notaries, securities lawyers, legal service workers, corporate legal advisors, patent agents, trademark agents, etc.), thus providing these Qualification found a "platform").
(4) About the design of test questions
When talking about the design of test questions, we have to mention the previous bar exam questions.
Since the judicial examination is specifically implemented by the Ministry of Justice, and coupled with the issue of inheritance, the style of past bar examination questions is bound to have an inertia that affects the design of the judicial examination questions. It should be said that since the first bar exam was held in 1986, after 12 exams, the design of test questions has become more and more standardized and mature. The main manifestation is that the design of test questions has changed from decentralized to centralized, from easy to difficult, and from simple to complex (from initially testing only one regulation to a group of regulations to cross-departmental laws). The test question types have basically taken shape, mainly single-choice, multiple-choice, non-directional multiple-choice questions, case analysis and legal document production questions. However, looking at the previous test questions, especially the test questions in recent years, there are still the following problems to be solved.
First, the content of memory is over-tested, and the most prominent one is that too many judicial explanations are tested.
Second, the candidates' written expression ability and legal logical thinking ability are not sufficiently tested, especially the ability to use existing case circumstances and evidence, analyze the case, and use evidence to explain the facts.
Third, the content of the examination questions that year did not reflect the new results of legal research or the new requirements that the development of the times has put on the legal profession, such as governing the country according to law, administration according to law, accession to the WTO, judicial internationalization, and environmental protection. , knowledge economy, etc.
Fourth, there are not enough questions in the comprehensive examination.
Fifth, the question type is incomplete.
In response to the above problems, the new test questions should be designed to reflect the new characteristics of the judicial examination. The author believes that the judicial examination should be set as a secondary examination. According to the different characteristics of these two exams, the content of the test questions and the corresponding question types are designed respectively. The details are as follows:
The principles for designing the first exam questions should be: first, knowledge should be given priority and application should be taken into account; second, comprehensive examination should cover a wide range of areas; third, the outline should be based on the basics; fourth, the difficulty should be moderate to accommodate the majority. ; Fifth, the question type is objective and does not disparage the subjective. In short, the design of test questions should reflect the talent training model of general education in legal education and the basic ideas of wide caliber, solid foundation, high quality, and emphasis on application. 7 The question types of the first examination can basically inherit the question types of the bar exam, focusing on objective questions and machine marking. At the same time, fill-in-the-blank questions can be added to test the accuracy of the candidates' mastery of legal knowledge. The principles of designing the questions for the second exam are to test understanding, application, ability and comprehensiveness (for example, the laws involved in the second question of Paper 4 in 2000 include "Company Law", "Contract Law", "Guarantee Law", "Commercial Banking Law", spanning economic law, commercial law and civil law), test tendency (that is, the tendency to determine propositions based on various current situations, for example, the design of the 2002 test questions should be conducive to serving judges and prosecutors, because Currently, a large number of first-time judges and prosecutors need to be appointed; in 2003, we should tend to select talents for foreign-related cases because China has joined the WTO), new content of the test (that is, the difference between the current year's syllabus and the previous year's syllabus), and the depth of the test , test difficulty. Regarding examination ability and application, Chen Weidong, professor and doctoral supervisor at the Law School of Renmin University of China, believes that the examination of written expression ability and logical thinking ability should be strengthened. 8. The question types are designed so that subjective test questions and objective test questions are equally divided. The objective test questions can be inherited from the multiple choice questions of the Bar Examination. In indefinite multiple-choice questions, there must be both problem groups and problem domains. For example, Question (4) of the 1999 Bar Exam Paper 2, multiple-choice question with four multiple-choice questions, examines almost all the contents related to the crime of organizing, forcing, seducing, harboring, and introducing prostitution in Section 8 of the Criminal Law. In addition to inheriting the case analysis questions and legal document production questions from the bar exam, the subjective test questions can also add a material question. Although this kind of material question also includes the content of writing legal documents based on the case, it is not completely equivalent to the legal document production question. It examines broader and deeper areas and content. This kind of material question can provide case information, evidence, judicial process, etc. Through these materials, the candidate's reading ability, analytical judgment ability, error correction ability, legal logical thinking ability, ability to analyze and use evidence, and written expression ability (for example, can Based on this material, you can write an indictment, public prosecution statement, defense statement, judgment, and issue a legal opinion, which can identify violations of procedural laws and flaws in evidence, etc.).
(5) About candidate registration and admission
In order to prevent candidates from taking the exam for themselves, candidates must take digital photos when registering. This technology is currently used in postgraduate registration. As for the admission ratio, I think the first test can be between 20% and 30%. The admission rate for the second examination must be controlled at 5% to 10%.
Finally, the author particularly emphasizes that there should be a gap of 2 years between the first and second examinations. During these two years, those who pass the initial examination must enter the judicial practice department for internship and gain judicial practical experience.
Hope this solves your problem.