In fact, the "Measures" have provisions on how to take the judicial examination and who can take it. Article 6 stipulates that "the national judicial examination shall be held once a year. The specific examination time will be announced to the public three months before the examination. " The fourth chapter stipulates the registration conditions. Among them, in the fourth item of Article 3 of Chapter 4, "meeting the academic qualifications and professional conditions stipulated in the Judges Law, the Public Prosecutor Law and the Lawyers Law" is one of the registration conditions. One of the necessary conditions for being a judge as stipulated in Item 6 of Article 9 of the Judges Law is "graduated from a law major college or a non-law major college, with legal professional knowledge and engaged in legal work for two years, including serving as a judge of the Higher People's Court or the Supreme People's Court and engaged in legal work for three years; He has obtained a master's degree in law, a doctor's degree or a master's degree or a doctor's degree in non-law, has legal professional knowledge, and has been engaged in the legal profession for 1 year. Among them, he should be engaged in legal work for 2 years as a judge of the Higher People's Court and the Supreme People's Court. " One of the conditions stipulated in Item 6 of Article 10 of the Procurator Law is that "a person who has graduated from a law major in an institution of higher learning or a non-law major in an institution of higher learning has been engaged in legal work for two years, among whom he has been a procurator of a people's procuratorate in a province, autonomous region or municipality directly under the Central Government for three years; Obtain a master's degree or a doctor's degree in law or a master's degree or a doctor's degree in non-law, have legal professional knowledge, and have been engaged in the legal profession for one year. Among them, as a prosecutor of the people's procuratorate of a province, autonomous region or municipality directly under the Central Government, he should be engaged in legal work for two years. " Article 6 of the Lawyers Law stipulates that "a person with a college degree or above in law major in an institution of higher learning or an equivalent professional level and a bachelor degree or above in other majors in an institution of higher learning who has passed the lawyer qualification examination shall be granted the lawyer qualification 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 practice certificate is "practicing in a law firm for one year". Through the above provisions, we can find the following problems:
1. Item 6 of Article 9 of the Judges Law and Item 6 of Article 10 of the Procurator Law are one of the conditions for being a judge and a prosecutor. So, is this condition a condition for registration? Can those fourth-grade undergraduates and those who have just graduated and have no judicial practice experience apply for the exam?
2. Obviously, the lawyer law separates the registration conditions from the practice conditions. The registration qualification is college degree or above in law major in colleges and universities or equivalent professional level, and bachelor degree or above in other majors in colleges and universities. According to the registration conditions of the Lawyers Law, as long as you can apply for judges and prosecutors, you can definitely apply for lawyers, but it meets the registration conditions stipulated in the Lawyers Law and does not meet the conditions for applying for judges and prosecutors. One of the original intentions of establishing a unified judicial examination system is "unification", which violates its original intention.
In fact, according to article 13 of the Measures, the conditions for applying for the judicial examination are the same as those for applying for a lawyer before. This goes against the purpose of establishing the judicial examination system.
So how to solve the problem of how to take the exam and who can take it? In my opinion, in order 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, and make clear the professional qualities that elite professional lawyers should have, what kind of people they should have, and how to test these people to measure these qualities. As Hamilton said, "there are many kinds of problems caused by human weakness, and there are countless cases." Only those who study hard for a long time can get a glimpse of it. " So only a few people in society have enough legal knowledge to become qualified judges. "In addition, the legal profession is a very practical profession, which requires the judicial organs to turn abstract and abstruse laws into vivid and concrete practical precedents. This transformation from abstract to concrete, from written to individual cases depends to a great extent on the practical ability of judicial organs to implement and implement legal norms. In addition, judges are required to have rich judicial and social experience, excellent character, noble professional ethics and extensive knowledge structure. In short, professional lawyers should be high-level, compound, applied and ethical legal professionals, and the judicial examination should be set as the most difficult examination to screen professional lawyers.
Obviously, it is not something that can be completed in one exam to comprehensively and accurately test the legal knowledge, ability, judicial experience and professional ethics that a professional lawyer should possess. It is undoubtedly impossible 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 the legal profession, it is obviously unfair to society (such as a university law graduate) and ignores the actual national conditions. In China, undergraduate education has not yet reached popularization, and it is currently in a transitional stage from elite to popularization. In addition, besides judges, prosecutors and lawyers, there are a large number of other professions related to law in China, such as police, judicial administrators, forensic doctors, court clerks, procuratorates' clerks, the Legislative Affairs Office of the National People's Congress, administrative series, banking, insurance and other financial system legal affairs offices, and legal advisory offices of companies and enterprises. Even civil servants should be administered according to law. If all professions related to law are compared to a pyramid, then judges, prosecutors and lawyers are the top of the tower, and the rest are the towers. Therefore, both the tower top and the tower foundation should be tested. These two examinations constitute a unified judicial examination. The design re-examination is not my original. This is the case in Japan and Germany in the civil law system. Japan's judicial examination law stipulates that the judicial examination shall be conducted twice. The first exam is in June 5438+ 10 every year. The purpose of this exam is to judge whether you have the quality to take part in the second interview and the degree of college graduation. Therefore, only those who pass the first exam can take the second exam. The second examination is centered on legal subjects, and its purpose is to judge whether people who want to be judges, prosecutors and lawyers have the necessary legal knowledge and application ability. Japan's judicial examination is known as the most difficult in the country. Since 1878, Germany has implemented a national examination system integrating the qualifications of judges and lawyers, and at the same time, it must pass two national examinations before granting qualifications. The first national examination was conducted after three and a half years' study in university law major, and it was called the examination for obtaining the qualification of "trainee civil servant". Those who pass the initial examination can obtain the qualification of "internship civil servant", but they cannot be lawyers. If you are a lawyer, you need to participate in two and a half years of internship (including lawyers, judges, prosecutors, companies, banks, etc.). After about 10 months of preparation, you will take part in the second national examination, which is the so-called exam to obtain the qualification of "alternate civil servant". In particular, Japan's judicial examination does not require academic qualifications, and all Japanese nationals can apply for it; German nationals can take the judicial examination after studying in university law school for more than seven semesters. Few people criticize the quality of professional lawyers in these two countries; On the contrary, the quality of contemporary legal professionals in Japan and Germany is well-known all over the world.
Some scholars in our country are also in favor of the two-test system. He Weifang, a professor at Peking University Law School, believes that the whole exam should be divided into two parts, that is, the first exam focuses on the basic knowledge learned during college, and the second exam focuses on analyzing and solving problems with legal knowledge and technology. Xia Lu of China Lawyers Examination Center once wrote that the law examination should be conducted in two sessions. The first exam mainly focuses on the theoretical basis of law. After passing the examination, I will participate in the internship according to the training plan formulated by the Ministry of Justice or the National Lawyers Association, and then participate in the second interview, which mainly focuses on legal practical knowledge. Only by passing the exam can he qualify as a practicing lawyer.
In addition, the author advocates the adoption of the "two-examination system" for three reasons.
First, for examination skills and fairness. It is obviously unfair for a fourth-grade college student to examine his judicial practice ability and professional ethics, compared with a law undergraduate with three years of judicial practice experience. The former can hardly talk about judicial practical experience and judicial professional ethics. In addition, it is not easy for the proposer to test not only theoretical law, applied law and current legal provisions, but also legal practice and legal professional ethics. It is not easy to test a person's true level comprehensively and accurately.
Second, the "two-examination system" can also alleviate the immature operation of the current judicial examination system. The significance and influence of establishing the judicial examination system is undoubtedly far-reaching and enormous. However, due to the urgency of the situation, it must be implemented without full understanding and preparation by all parties, so it seems to be rushed to fight. This can be seen from the extremely simple "measures". It is more reasonable to take the first exam first, and then take the second exam after all parties have conducted in-depth discussion and full preparation on the judicial examination system. Because the second exam is the final exam, which is the most crucial.
Third, it is the requirement of the actual situation of judicial personnel at this stage. China is a vast country with uneven development in different regions. Some courts and procuratorates in remote areas don't even have undergraduate courses in law. If it is really necessary to appoint new judges and prosecutors in these fields, those who passed the first examination can be appointed according to the results of the first examination.
Therefore, the author suggests that the judicial examination should implement the "two-examination system". The preliminary examination focuses on the basic principles of law, basic knowledge of law and existing legal provisions that candidates have learned. The first question is mainly objective and subjective. The conditions for applying for the first time are not limited by academic qualifications. This will encourage those who study law by themselves. The second examination mainly tests the ability and professional ethics of candidates to engage in legal profession, taking into account the basic theory and knowledge of law. The test questions in the second exam should have objective questions and subjective questions. Re-examination registration conditions, academic qualifications and judicial practice experience are strictly limited to the conditions stipulated in Item 6 of Article 9 of the Judges Law and Item 6 of Article 10 of the Public Prosecutor Law.
2. Questions about what to test.
The reason why the author puts what to take after how to take the exam and who can take the exam is because only by determining the former can the problem of the latter be solved, and how to implement the two depends on what professional qualities a judge, prosecutor and lawyer should have. In fact, the "measures" have already stipulated. 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 contents of the national judicial examination include: theoretical law, applied law, current legal provisions, legal practice and legal professional ethics. " In this regard, the author does not agree, so it is necessary to explain and expand it theoretically. As the author said earlier, in order to realize the scientificity of judicial examination, we must first find out the knowledge level and ability quality that judges, prosecutors and lawyers should have respectively, and then find out their similarities and differences, focusing on testing their similarities and differences.
According to the provisions of the Judges Law, the Public Prosecutor Law and the Lawyers Law, a judge can be regarded as a judge who exercises state judicial power according to law. His main duty is to try civil, criminal and administrative cases, but it also includes filing, supervision and execution. A prosecutor is a prosecutor who exercises the procuratorial power of the state according to law. The main responsibility is to carry out legal supervision according to law, including prosecuting on behalf of the state, investigating self-investigation cases, approving arrests and supervising the execution of judgments and rulings. But his main job is criminal prosecution. Lawyers are practitioners who provide legal services to the society. Unlike judges and prosecutors, their business scope includes both litigation business and non-litigation business. Its business scope not only involves legal issues in criminal, civil, administrative and other judicial fields, but also involves a lot of non-litigation finance, real estate, enterprise consulting, negotiation and intellectual property rights. It can be said that from the perspective of responsibilities and business scope, lawyers, prosecutors and judges decrease in turn, but from the perspective of professional and business requirements, judges should be higher than prosecutors and prosecutors should be higher than lawyers in mastering the depth and application of legal knowledge. From the perspective of occupation and professional role, prosecutors mainly represent the interests of the state and the public; Lawyers mainly provide various legal services for others, and at the same time they are paid, so they are more inclined to give consideration to the interests of the parties; Judges are mainly intermediate judges, who only obey the law and are passive, neutral, independent, detached and rational. The work of prosecutors and lawyers requires them to be proactive. The following author points out the professional qualities needed to do these three occupations well.
As far as a judge is concerned, to be a good judge, at least these requirements must be met. First, deep legal expertise. The second is professional ability. The study of any principle lies in its application. Law is a practical science, which combines human legal experience and legal experience, and technology is the prominent content. This technicality 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) Ability of legal annotation and interpretation; (5) Legal logical reasoning and reasoning ability; (6) written language expression ability; (7) the ability to make up for legal loopholes and balance interests. The third is judicial experience. The fourth is professional ethics.
As far as prosecutors are concerned, to be a qualified prosecutor, they should have the following qualities. First, a solid legal foundation; Second, rich legal logical thinking ability; Third, quick response and strong adaptability; Fourth, the ability to collect, judge and use evidence is strong; Fifth, the overall ability to grasp the case; Sixth, stable psychological quality; Seventh, strong oral and written language skills; Eighth, rich experience in procuratorial work; Nine is noble procuratorial professional ethics.
As far as lawyers are concerned, generally speaking, in order to do a good job as lawyers, they should have professional experience and abide by professional ethics in addition to political and professional qualities. As far as professional quality is concerned, firstly, lawyers should have rich legal knowledge, be familiar with relevant laws and regulations, and have a good grasp of the concepts, principles and systems of the basic department law; Second, good logical thinking ability and super error correction ability; Third, eloquence and certain adaptability; Fourth, the necessary writing level; Fifth, a lawyer should also be a saint, requiring him to have a broad knowledge structure including economy, science and technology, foreign languages, etc. Sixth, good interpersonal relationships. Finally, lawyers should have good appearance and manners.
From the above analysis, it can be found that although judges, prosecutors and lawyers have different requirements on the scope and ability of their work and the breadth and depth of their knowledge, their occupations are inseparable from the support of the basic principles and knowledge of law, requiring them to master the existing laws and regulations skillfully, and at the same time requiring them to have the ability to use legal principles, summarize, analyze and judge the process of cases, and requiring them to have good professional ethics and rich experience.
It can be seen that, as pointed out above, the judicial examination should be set to twice. The first exam mainly tests the examinee's mastery of the basic principles and knowledge of law, the breadth and depth of laws and regulations, and the potential ability to engage in legal profession; The second examination is mainly from the perspective of legal profession, and it needs to test candidates' ability to apply legal principles and legal knowledge, their basic ability to engage in legal profession (for example, the ability to identify legal sources, logical thinking, analysis and judgment, legal thinking, written expression, and the ability to solve disputes with legal knowledge), as well as their professional beliefs and professional ethics.
3. Specific implementation.
In fact, the formulation of the "Measures" laid a certain foundation for the legal realization of the purpose of the judicial examination system. However, this "method" is too simple and not operable. As far as the implementation of the national judicial examination system from the examination link is concerned, the author thinks it is necessary to do the following work well.
(1) Establish the National Judicial Examination Committee. This committee is the center of the judicial examination, which gives decision-making guidance on major issues of the judicial examination, rather than "consultation" (refer to Article 4 of the Measures, the Ministry of Justice, together with the Supreme People's Court and the Supreme People's Procuratorate, will form an examination coordination committee to consult on major issues of the national judicial examination. Many countries in the world have this practice. For example, Japan has established the Judicial Examination Management Committee, and Germany and France have established the Judicial Examination Committee. Members of the Committee are generally composed of personnel and legal scholars appointed or recommended by the Ministry of Justice, courts, procuratorates or law firms.
(2) Set up a proposition committee. Selecting legal talents is the most important function of judicial examination. As a test method, whether examination can comprehensively and truly reflect the knowledge level and ability of candidates in a limited time and scope depends on whether the proposition is scientific or not. The proposition here includes both the content and the question type that reflects the content form of the proposition. And it is the proposition Committee that bears this responsibility. Therefore, it can be said that the establishment of an authoritative and high-level proposition Committee is directly related to the success or failure of the judicial examination. The members of the proposition Committee are nothing more than from the legal profession and the judicial practice department. In addition, the author thinks that some experts who specialize in examination should be absorbed.
(3) the composition of judicial examination subjects and papers.
The first exam mainly tests the examinee's mastery of the basic principles of law, basic knowledge of law and current laws and regulations, and tests the examinee's epistemology, methodology, world outlook and professional beliefs; The first exam focuses on the application of knowledge, highlighting the breadth of knowledge, giving consideration to depth and comprehensive application ability. Initial test, five papers, out of 500, each volume 100. The first paper includes Marxist philosophy, Deng Xiaoping Theory, Constitution, basic theory of law, international law, private international law, world trade law, professional beliefs and so on. The purpose of setting this test paper is to make candidates have correct world outlook, methodology, epistemology and legal professional beliefs, that is, to use these world outlook, professional beliefs and theoretical jurisprudence to guide applied law; The second test paper is civil and commercial law, including civil law, civil procedure law, contract law, marriage law and intellectual property law. The third test paper is criminal law, including criminal law, criminal procedure law and its separate regulations and judicial interpretation of criminal and criminal proceedings; The fourth chapter is administrative law, including administrative punishment law, administrative reconsideration law, administrative procedure law and state compensation law. The reason why administrative law is set as a test paper is because this setting can reflect the requirements of the development of the times. If slave society, feudal society is the era of criminal law and capitalist society is the era of civil and commercial law, then modern society emphasizes administration according to law, which is the era of administrative law. Therefore, it is special. The fifth part is a comprehensive investigation, focusing on the application of civil and commercial law. At the same time, substantive law and substantive law, procedural law and procedural law, substantive law and procedural law penetrate each other, and civil, criminal and administrative affairs cross each other, highlighting the comprehensive investigation. The author's design is based on his own experience. The author personally handled a civil appeal case. The complainant wrote an iou of 1 10,000 yuan to the kidnappers for being kidnapped. Afterwards, the kidnapper sued the court according to the debt, and the court only ruled that the kidnapped person lost the case and repaid 6,543,800 yuan to the kidnapper. The social impact of this case is very bad. If the undertaker knows that the case should belong to a criminal case, he should suggest that the case should be filed as a criminal case first, and then it will be handled after the facts are ascertained, so that the above wrong judgment will not be made. Administrative, criminal and civil cases are sometimes encountered in judicial practice. If you only know the rules of a certain department, you can't be fully qualified to handle cases, especially those who work in the supervision department.
The second examination tests the candidates' application of legal principles and basic knowledge, that is, professional ability and professional ethics, including professional ethics, its depth, its application, its synthesis and its thinking process. The second paper can be 4+X, and the first paper is civil law; The second test paper is criminal law; The third test paper is administrative law; The fourth test paper is professional ethics and professional practice; Test paper 5 allows candidates to choose a group of subjects (for example, 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, negotiable instrument law, bankruptcy law, finance, insurance and securities, the fourth group is intellectual property law including copyright law, trademark law and patent law, and the fifth group is economic law including consumer rights protection law and patent law. The sixth group is environment and environmental protection law, the seventh group is notarization and grass-roots legal practice, the eighth group is forensic medicine and judicial expertise, the ninth group is public security business, and the tenth group is legal English). The reason why the author designs this way is to provide a reference for candidates to choose jobs or talents. For example, if a person passes the second exam and gets a high score in the second volume of criminal law, he can choose the profession of prosecutor. If candidates are interested in becoming lawyers and focus on environmental litigation, they can choose environmental protection law in test paper 5. This method also has a great advantage, that is, it saves the examination cost and overcomes the phenomenon of too many legal-related professional qualification examinations (for example, notaries, securities lawyers, legal service workers, corporate legal consultants, patent agents, trademark agents, etc.). ) to find a "platform" for these qualifications.
(4) About the design of test questions
When it comes to the design of test questions, we have to mention the previous law test questions. Due to the specific implementation and inheritance of the judicial examination in the Ministry of Justice, the previous style of legal examination questions will inevitably affect the design of judicial examination questions with inertia. It should be said that since 1986, the design of the law examination questions has become more and more standardized and mature after 12. Mainly manifested in the design of test questions from decentralized to centralized, from easy to difficult, from simple to complex (from the initial examination of only one regulation to a group of regulations until cross-departmental laws). The test questions are basically formed, mainly single-choice questions, multiple-choice questions, non-directional multiple-choice questions, case analysis and legal document making questions. However, looking at previous test questions, especially in recent years, there are still the following problems to be solved.
First, the content of memory is over-examined, and the outstanding performance is that there are too many judicial interpretations.
Second, the examinee's written expression ability and legal logical thinking ability are not enough, especially the ability to use existing cases and evidence to analyze cases and use evidence to explain facts is not enough.
Third, the content of the examination questions in those years did not reflect the new achievements of legal research and the new requirements of the development of the times for the legal profession, such as governing the country according to law, administration according to law, joining the WTO, judicial internationalization, environmental protection, knowledge economy and so on.
Fourth, there are not enough comprehensive questions.
Fifth, the question type is not perfect.
In view of the above problems, the design of new examination questions should reflect the new characteristics of judicial examination. The author thinks that the judicial examination should be the second time. According to the different characteristics of these two kinds of exams, the content of the questions and the corresponding questions are designed respectively. Details are as follows:
The design principles of the first question should be as follows: first, knowledge is the mainstay, supplemented by application; The second is a comprehensive examination of extensive coverage; Third, stick to the outline foundation; Fourth, the difficulty is moderate to take care of the majority; Fifth, the question type is objective and not subjective. In short, the design of test questions should reflect the talent training mode of general education in law education and the basic concepts of broad caliber, thick foundation, high quality and emphasis on application. 7 The questions in the preliminary examination can basically inherit the questions in the law examination, mainly objective questions and machine marking, and at the same time, fill-in-the-blank questions can be added to test the accuracy of the candidates' mastery of legal knowledge. The design principles of the test questions in the second examination are comprehensibility, applicability, competence and comprehensiveness (for example, the second question in the fourth examination paper in 2000 involves laws such as company law, contract law, guarantee law and commercial banking law, and spans economic law, commercial law and civil law) and examination tendency (that is, the tendency to decide the proposition by integrating various current situations, such as in 2000). In 2003, we should tend to select talents for foreign-related cases, because China has entered WTO), the new content of the examination (that is, the difference between the outline of the current year and the outline of the previous year), the depth of the examination and the difficulty of the examination. Regarding the test ability and application, Chen Weidong, a professor and doctoral supervisor at Renmin University of China Law School, thinks that it is necessary to strengthen the test of written expression ability and logical thinking ability. 8. Subjective questions and objective questions are easily divided equally. In the objective test questions, you can inherit the multiple-choice questions in the law exam. In indefinite multiple-choice questions, there must be both question groups and question fields. For example, the fourth question of the second indefinite multiple-choice question in 1999 law examination paper examines almost all the contents of the crime of organizing, forcing, luring, sheltering and introducing prostitution in Article 8 of the Criminal Law through four indefinite multiple-choice questions. In addition to inheriting the case analysis problem and legal document making problem in the law exam, the subjective problem can also be added with a material problem. Although the topic of this kind of material also includes the content of writing legal documents according to the case, it is not exactly the same as the topic of making legal documents, and its scope and content are broader and deeper. This kind of material can provide the case, evidence, judicial process, etc. Through these materials, we can examine candidates' reading ability, analysis and judgment ability, error correction ability, legal logical thinking ability, analysis and application of evidence ability, and written expression ability (for example, we can write complaints, indictments, pleadings, judgments and legal opinions based on this material, and find out the contents that violate the procedural law and the defects of evidence, etc. ).
(5) About the registration and admission of candidates
In order to prevent candidates from taking exams instead of exams, candidates must have digital photography when registering. This technology has been applied to graduate registration. As for the admission ratio, I think the initial test can be between 20% and 30%. The proportion of re-examination admission must be controlled at 5% to 10%.
Finally, the author particularly emphasizes that there should be an interval of two years between the initial test and the second test, which requires those who pass the initial test to enter the judicial practice department for internship and gain judicial practice experience.