2002- 10-28
Yangpu Intermediate People's Court Investigation Team
From June 9th to18th, 2002, in order to learn from the trial experience and management experience of the courts in advanced Asian countries and regions, a group of nine members from the trial backbone of the two-level courts in Yangpu went to Singapore and Hong Kong for a study tour. In Singapore, we have listened to the Legal System of Singapore by Professor Yong Rui, a famous Singaporean entrepreneur and a visiting lecturer at Nanyang Technological University, the Legal Issues Related to WTO: Dumping and Anti-dumping by Professor Dr. Associate Professor of Nanyang Technological University, and the Internal Setup and Operation of Singapore Courts by Lawyer Huang of FOOANDQUEK Law Firm. Visit Singapore's High Court and Junior Court, and attend trials in Magistrates' Courts, Family Courts and Small Claims Courts. He visited the largest law firm in Singapore-Hong Kong Lu Yunabia Legal Service Co., Ltd., attended the trial of civil and criminal cases in the Hong Kong High Court, had a discussion with Mr. Liao, a consultant of the Hong Kong Magistrates Association, a former appeal judge and a gold bauhinia star winner of the Hong Kong Special Administrative Region, and visited Huguan Law Firm. Ten days is a short time, but we have gained a lot.
Organizational Mechanism and Trial Characteristics of Courts in Singapore and Hong Kong
Both Hong Kong and Singapore have a history of being colonized by Britain, so both politics and legal culture have laid a strong common law brand.
(1) Establishment of courts in Singapore and Hong Kong
1. Establishment of Singapore courts
According to Article 93 of the Constitution of the Republic of Singapore, the judicial power in Singapore belongs to the Supreme Court and the lower courts established under any valid statutory law. The case was finally tried for the third time. The courts enforce the law completely independently and are not bound by the government and the legislature. The Constitution guarantees the independence of the judiciary. The Supreme Court consists of the High Court and the Court of Appeal. The Court of Appeal consists of the Chief Justice and two judges. The Supreme Court has 1 1 judges, including the Chief Justice and the Court of Appeal. At the same time, the Supreme Court also has the post of Judicial Commissioner, who enjoys the same rights and immunities as judges of the High Court, and his term of office is determined by the President at his discretion. At present, the Supreme Court has five judges. The Chief Justice and other judges of the Supreme Court are appointed by the President after listening to the opinions of the Prime Minister. The Prime Minister must consult the Chief Justice before recommending to the President the appointment of any judges and judicial commissioners except the Chief Justice. In addition, the High Court also has a main bookstore. On the recommendation of the Chief Justice, the President appoints a senior judge, a deputy senior judge and several assistant senior judges. Only qualified persons who meet the requirements of section 2 of the Singapore Lawyers Act can be appointed to these positions. They have both judicial and administrative functions, and they are also executors, deputy executors and assistant executors of the Supreme Court respectively. They have the same jurisdiction, power and responsibility as the presiding judge of the British Supreme Court, the clerk of the criminal court, the principal book and similar officials. The staff of the Supreme Court of Singapore also includes commissioners for oaths, translators, clerks, subpoenaers and other staff. Judging from the appointment procedure, judges, judicial and administrative personnel of Singapore courts all have a high social status.
The appellate division of the Supreme Court is the final court, which exercises jurisdiction over civil and criminal appeals. Its civil jurisdiction is to hear appeals against judgments or court orders made by the High Court in any civil cases or matters; Criminal jurisdiction is manifested in hearing appeals against any decision made by the High Court. Of course, the appeal must comply with the Supreme Court decree or other relevant laws and regulations. The civil and criminal jurisdiction of the Court of Appeal is exercised by three or more odd-numbered judges of the Court of Appeal, including the judge of the High Court who presides as an appeal judge. This is a bit like a high court in China seconding a judge from a lower court to handle a case. The Court of Appeal is presided over by the Chief Justice. In the absence of the Chief Justice, according to the ranking order of the Supreme Court judges, the trial should be presided over by the vice president, the judge of the Court of Appeal or the judge of the High Court presiding as the judge of the Court of Appeal.
The High Court of the Supreme Court consists of the Chief Justice and the judges of the High Court, and exercises unlimited jurisdiction of first instance and appeal in civil and criminal cases. The appeal cases heard by the High Court come from appeals of local courts, magistrates' courts and other courts. Unless otherwise provided by law, all procedures and affairs of the High Court are heard and handled by a judge. The High Court may also appoint a person with more or less rich experience and expertise in matters involved in trial proceedings as a jury consultant to assist the court.
Singapore's primary courts are also called primary courts, including local courts, magistrates' courts, juvenile courts, autopsy courts, small claims courts, family courts, labor dispute arbitration centers and Islamic courts. It should be noted that magistrates, judges, coroners and arbitrators of the small claims court are all appointed by the President on the recommendation of the Chief Justice. Therefore, from the perspective of compartmentalized management, Singapore judges implement compartmentalized management.
2. Establish a court in Hong Kong
There are four courts in Hong Kong: the Court of Final Appeal, the High Court, the District Court and the Magistrate's Court.
The high court consists of the court of appeal and the original court of appeal, and has jurisdiction over both the original appeal and the appeal. During this visit, we visited the High Court Building. The Court of Appeal hears criminal and civil appeals from the Court of First Instance, the District Court and the Lands Tribunal. The court of first instance has criminal and civil appeals and jurisdiction of first instance. The court of first instance hears the most serious criminal offences, such as murder, manslaughter, rape, armed robbery, trafficking in a large number of dangerous drugs and complex commercial fraud. Such cases are tried by a judge and a seven-member jury of the court of first instance. If necessary, the judge may decide to form a nine-member jury. The court of first instance can hear all civil cases. It should be pointed out that if the party is a limited company, a lawyer must be hired in the original court of appeal unless the judge agrees not to hire a lawyer. As a court of appeal, the Court of First Instance hears criminal appeals from magistrates' courts and appeals from the Labour Tribunal, the Small Claims Tribunal, the Obscene Articles Tribunal and the Minor Employment Claims Arbitration Tribunal.
District courts have criminal and civil jurisdiction. The district court hears indictable crimes transferred by the magistrate's court and can hear serious criminal cases, except murder, manslaughter and rape. The district court can impose a maximum sentence of seven years' imprisonment, and criminal cases are tried without a jury. The most common types of civil cases tried by district courts are contract, quasi-contract, infringement, repossession of land and buildings, claims related to land ownership, and equitable claims, such as managing the deceased's estate, trust, mortgage, enforcement, supporting minors, dissolution of partnership, and seeking relief against fraud or negligence. , as well as rent collection, employee compensation cases, gender discrimination, disability and family status discrimination. Judging from the jurisdiction of the case, the subject matter involved in the contract, quasi-contract or infringement dispute tried by the district court must be between HK$ 50,000 and HK$ 600,000. If it is not within this scope, it will be tried by the small claims court or the court of first instance of the High Court.
In addition, there are magistrates' courts, family courts and coroner's courts in Hong Kong.
Interestingly, there are two different appeal mechanisms in Hong Kong. One is the appeal mechanism of the High Court, the District Court and the Land Tribunal, that is, if a party refuses to accept the ruling of the District Court, the Land Tribunal or the Court of First Instance of the High Court, he should appeal to the Court of Appeal of the High Court, and if he still refuses to accept the ruling of the Court of Appeal, he should appeal to the Court of Final Appeal. Judging from this mechanism, it is the final trial of the third instance. The other is the appeal mechanism of magistrates' courts and tribunals, that is, those who are dissatisfied with the rulings of magistrates' courts and tribunals can appeal to the Court of First Instance, the Court of Appeal and the Court of Final Appeal of the High Court step by step. Judging from this mechanism, it is the final instance of the fourth instance.
(2) Characteristics of courts in Singapore and Hong Kong.
Both Singapore and Hong Kong are influenced by the common law, so there are similarities and differences in court setting and judicature. At the same time, due to different geographical locations, the adjusted social, economic and cultural relations are not the same, so they also have different characteristics.
1. Common ground
(1) Severely punish the crime of contempt of court and safeguard the absolute authority of the court. Whether in Singapore or Hong Kong, the dignity of judges and the order of courts are absolutely guaranteed. The parties, prosecutors or lawyers must stand up when speaking or answering questions from judges. In court, when lawyers address judges, they use your honor? Your honor, there are also strict restrictions on the service style of court personnel. The court is not allowed to take photos, and some even are not allowed to bring photographic equipment into the court, such as the family court in Singapore, which is why when we read the news reports of some cases, we only see cartoons or words without photos. The court audience is not allowed to make any noise. When the observers leave the court, they must keep silent and bow to the judge before leaving the court. In Singapore, some minor misconduct may face severe punishment of contempt of court. If the person fined is accused of not paying the fine and not appearing in court, the court may issue an arrest warrant and sentence him to imprisonment; If a practicing lawyer fails to appear in court to represent his client within the prescribed trial period, he will be sentenced to contempt of court and jailed after being reminded by the presiding judge. So no one dares to face criminal charges without going to court. This is a good reference for us.
(2) Everyone is equal before the law. The court strictly enforces the principle of equality before the law. There are four words circulating in Singapore: everyone is equal before the law, everyone is free before the law, the law has no rights, and the law has no nationality. Cabinet ministers, ordinary people, rich celebrities and poor citizens, regardless of race, religion, color, language or whether they are Singaporean nationals, are equally tried by the court and enjoy the same rights of litigation and defense, and no one is above the law. In Singapore's court cases, some cabinet ministers and commercial bureau directors were sentenced to jail for corruption and deception, some American youths were sentenced to graffiti private property and were whipped, and some Filipino maids were convicted of murder and hanged. Companies that are proved to be involved in corruption incidents are blacklisted and may not participate in bidding activities for construction projects. Although the above-mentioned people who were convicted and punished were either ministers of the founding of the People's Republic of China with strong political background or foreign presidents interceded on their behalf, the court still acted in accordance with the law and safeguarded the unity of the law. These cases have played a deterrent role for all citizens and even foreigners.
(3) Adopt the pre-trial meeting procedure. In Singapore, the pre-trial meeting of civil cases is presided over by the master book, and the content is to convene all parties to consider the possibility of reconciliation; Assist the parties to narrow the scope of disputes, determine whether the litigants are ready to face the trial, and further give the parties necessary instructions to help them prepare for the trial and estimate the trial time required by the litigants. Pre-trial meetings provide impetus for the parties concerned to negotiate and settle, narrow the scope of disputes, reduce the differences of positions between the parties, and are conducive to case settlement. At the same time, the pre-trial meeting can reduce the trial time, reduce the possibility of extending the time limit of the case and facilitate the arrangement of the court date. The pre-trial meeting of criminal cases is also presided over by the master book, which determines the initial court date and informs the parties. In this way, the main office can control the prosecution speed and progress of criminal cases. At the same time, the number of cases submitted to the court before the trial date of the lower court has also decreased, thus greatly shortening the detention period of the defendant.
The pre-trial meeting of the Hong Kong court shall be presided over by the arranger.
(4) Establish numerous specialized courts. There are many specialized courts in Singapore, mainly located in primary courts, such as magistrates' courts, juvenile courts, autopsy courts, mediation centers of primary courts, small claims courts, family courts, traffic courts and night courts. These courts exercise jurisdiction according to different types of cases, or the seriousness of crimes, or the size of the subject of disputes. For example, when trying a civil lawsuit with a maximum fine of 60,000 yuan and a criminal case with a penalty of no more than 3 years, when judging a criminal case, only a maximum of 2 years' imprisonment, a maximum fine of 2,000 yuan and a maximum penalty of 6 lashes can be imposed; The local court can hear civil lawsuits with a maximum penalty of 250,000 yuan and criminal cases with a penalty of no more than 10, and can only be sentenced to a maximum of 7 years' imprisonment, a maximum of 12 whipping and a maximum of10,000 yuan. Does the small claims court deal with selling goods, providing services or damaging property with an amount not exceeding 6.5438 million yuan? Damage caused by traffic accidents is not included. However, the courts of first instance, local courts and small claims courts are all primary courts, and there is no relationship between them. Family courts handle applications for divorce, guardianship, alimony, habeas corpus and adoption of children. When a family dispute is brought to court, the trial judge must be different from the race of the parties. For example, Chinese family disputes can only be tried by Malay or Indian judges. The coroner's court will investigate unnatural deaths and unexplained deaths to determine whether there are any criminal acts in the case. The traffic court hears ordinary traffic accidents, but not fatal accidents. The special court has clear responsibilities and facilitates the litigation of the parties. At the same time, it has trained excellent professional judges for Singapore and ensured the fair handling of all kinds of cases.
There are many similar courts in Hong Kong, but they are called tribunals with different names and basically the same functions.
(5) Restrict appeals. In Hong Kong and Singapore, there are strict restrictions on appeals. In Hong Kong, you must apply for leave to appeal. If the defendant in a criminal case refuses to accept the decision of the Court of First Instance or the District Court judge, he may apply to the Court of Appeal for leave to appeal within 28 days from the date of sentencing. If you fail to file an appeal within the time limit, you must apply to the Court of Appeal for overdue leave to appeal. The local court's civil appeal permission is different. If you want to appeal, you should apply to the judge in charge of the case for leave to appeal within 28 days after the judgment of the case. If the presiding judge does not approve, the appellant may apply to the Court of Appeal for leave to appeal within 14 days from the date when the judge refuses to apply. Appeals from the Court of First Instance and the Lands Tribunal do not require leave to appeal, except for appeals purely on costs. Appeals to other courts and arbitration tribunals should be examined by the court of first instance, and only cases involving legal disputes will be granted leave to appeal. If the judge of the Court of First Instance refuses to grant leave to appeal, his decision is final.
In Singapore, the law restricts matters that can be appealed to the High Court and the Court of Appeal. If the amount of the subject matter of the dispute does not exceed S $5,000, the judgment of the local court or the Court of Appeal cannot be appealed without the permission of the High Court. If the amount of the subject matter in dispute is less than 30,000 yuan, no appeal may be filed with the Court of Appeal without the permission of the Court of Appeal.
(6) the document is served on the parties. After a party's complaint is registered, it shall send a copy of the complaint stamped with the official seal of the court to the other party by mail. In Hong Kong, if it is a lawsuit to recover land, the plaintiff must post a copy of the writ at the entrance of the building concerned. In Singapore, after the plaintiff brings a lawsuit to the court, it must also be served on the defendant. After delivery, it shall explain to the sworn personnel and confirm that it has been delivered. If one party fails to receive the judgment of the court, the other party will put it on the bulletin board of the court, and it will be deemed to have been delivered after two weeks.
(7) plea agreement. In the trial of criminal cases, if the defendant pleads guilty, both Hong Kong and Singapore have a simple procedure, which is academically called plea agreement. If the defendant pleads guilty in court after being prosecuted by the prosecutor, the judge will convict him after the prosecutor reads the summary of the case; Then the defendant stated his resume and asked for a lighter sentence. Finally, the judge sentenced him. In this way, the tedious procedures such as jury selection, court trial and prosecution, judge's summary and jury ruling are omitted. This simple procedure is most effective in Singapore. When listening to a judge of the trial court, we saw that twenty or thirty defendants were locked in the stainless steel fence on the left side of the court, but obviously they were not accomplices in a case. Soon, one defendant was taken to the court by the judge for questioning and then left the court. Later, I learned that this was a "lawsuit." If the defendant pleads guilty, the judge will immediately convict and punish him; If you don't plead guilty, you will be transferred to the local court for retrial. A judge can finish dozens of cases in one day. We sat in on another court for less than 15 minutes, and the judge has handled three cases.
(8) On appeal, the penalty may be increased. This is different from civil law countries. In Hong Kong, judges have the right to increase the penalty of criminal appeal under appropriate circumstances. For an appeal application without legal basis, the court of appeal may rule that the defendant's prison term is invalid on the grounds of wasting time. In other words, the sentence will be recalculated from the date of the order. In Singapore, the Court of Appeal can impose the principle of aggravated sentencing on unreasonable appeals and cases with lighter sentencing in local courts, with the aim of achieving consistent sentencing standards and deterring prisoners and others.
(9) The implementation mode is simple. The execution order is signed by the judge and executed by the bailiff. The main execution method is to seal up the property of the person subjected to execution for auction and enforce the debtor's due property creditor's rights.
2. Difference
Here, I mainly talk about some distinctive practices in Singapore. Singapore is a country with meticulous legislation and strict law enforcement, and court law enforcement has distinct characteristics:
(1) Severe punishment. The principle of group interest is the basic principle of Singapore's judicial system. For some violent crimes, in order to maintain good social order, Singapore imposes heavy sentences regardless of human rights concepts. Does the penalty in Singapore include the death penalty? Hanging, imprisonment? Imprisonment, flogging, fines, etc. Especially flogging is very famous. Up to 24 lashes. But the average person can only bear three or four whips at a time. Therefore, in order to ensure safety, a doctor should observe when flogging, and first draw a few flogs. If life is in danger, you should treat it first, and then whip the remaining eyelashes after it is cured. In fact, after a few lashes, the skin will be raw, leaving an eternal memory for the prisoner and deterring the crime. Theoretically, flogging is corporal punishment, which is opposed by civilized society. However, Singapore has a different understanding of this and has gained a good reputation for public security.
Like most western European countries, Hong Kong has abolished the death penalty.
Severe punishment is also reflected in Singapore's implementation of the principle of increased punishment on appeal. The judges firmly believe that the principle of aggravated punishment on appeal will not prevent appeal, but will prevent crime.
(2) Pay attention to trial management and continuously improve trial efficiency. Singapore courts attach great importance to improving trial efficiency. Justice Yang once pointed out that in the current environment, the status and performance of the court must face the evaluation of public opinion. Although public opinion cannot have any influence on the court's judicial function, as a state organ, the court has the responsibility to provide an efficient legal system for the public. To this end, Singapore courts have taken some measures to improve efficiency.
First, the diversion of complexity and simplification limits the types of cases tried by the court. All cases involving little or no legal issues are drawn from the waiting list of judges to save valuable court time. Bankruptcy cases and procedural order subpoenas that used to be tried by judges are now arranged to be tried by the main book. Some quasi-judicial courts in charge of the Supreme Court have been replaced by local court judges, including copyright courts, hotel licensing committees, tenant compensation committees, income tax assessment committees and inheritance assessment review committees.
Second, death penalty cases should be tried by judges. Before 1992, death penalty cases were tried by two judges, and the backlog of cases was serious. 1in April 1992, the relevant laws were amended, and the death penalty cases were tried by one judge, so the settlement rate of death penalty cases was three to four times that of 1990- 199 1, which greatly improved the trial efficiency.
Third, control the hearing time. In order to control the trial time and prevent a few commercial cases from abusing the trial time, Singapore has adopted a system of charging trial fees. There is no charge on the first day, and the high court charges S $ 1500 every day from the second day to the fifth day. From the sixth day to the tenth day, S $2,000 will be collected every day, and from the eleventh day, S $3,000 will be collected every day. The Court of Appeal charged S $3,000 per day from the next day. Of course, less than a day counts as a day.
Fourth, limit the time for lawyers to state the case and quote the classics in court.
(3) Actively use high-tech information tools. Singapore actively promotes the computerization of justice, legal services and government management. The Supreme Court, lower courts and various government agencies have been highly computerized. The legal network includes case law, database, comprehensive legal consultation and other systems. The computer service of its legal major has reached the degree of humanization. 1999 the supreme court has also set up two high-tech courts? Each cost 2 million Singapore dollars, with the most advanced computer and audio-visual equipment and systems. Overseas witnesses can provide evidence to the court through these devices and systems.
In Singapore, lawyers sitting in their offices can talk to the chief bookkeeper or judge of the primary court through computer video system, and even submit court documents. Up to 200 1, more than 600,000 cases or applications have been prosecuted through the court's electronic filing system. Judges can work in their own homes through the legal network, search for information and write judgment documents.
(4) Reform the royal robes. Starting from 1993, judges and judicial commissioners in Singapore no longer wear red robes and long hair, but an ordinary white lapel shirt and tie, plus a simple and light navy robe. Lawyers don't need to wear collars and wing collars when they appear in court.
In Hong Kong, although it has been five years since the reunification, the court dress of judges and lawyers in Hong Kong has not changed much compared with the colonial period.
Some inspiration
(a) the full implementation of the pre-trial meeting system in all kinds of trial business. There are similarities and differences between the pre-trial meeting system and the pre-trial hearing system. At present, Hainan courts have implemented the pre-trial hearing system in the process of civil trial, and the effect is good, especially in Yangpu court, which has achieved obvious social and legal effects. In Singapore, however, all kinds of trial activities implement the pre-trial meeting system. We believe that this system should also be implemented in criminal trials and administrative trials. This will help to improve the efficiency of the trial, protect the litigation rights of the parties and urge the parties to fulfill their litigation obligations.
(2) Establish some special courts. Grass-roots courts can set up small debt courts to hear small debt disputes quickly. With the accelerated pace of modern life and the increasing pressure of life, there are more and more cases of family disputes and domestic violence. Courts with large jurisdiction and large population can set up family courts.
(3) Reform the existing service system. When the social credit system was not fully established, a large number of debtors evaded the provisions of the law and evaded debts everywhere. A case often takes two months to be delivered because the debtor cannot be found, which greatly reduces the trial efficiency. Should we allow it to be sent by mail? Send the documents to all parties by express mail. At the same time, the time for the announcement to be delivered should be shortened appropriately. Two months is too long.
(4) Establish the dignity of the court. When the court is in session, both parties and the prosecutor should stand up when they speak. At the same time, the coercive means of judges should be strengthened. Those who refuse to appear in court without justifiable reasons do not need to be summoned twice in law, but should be summoned by the court. Whether the scope of application of the crime of disturbing court order can be appropriately expanded.
(5) Restrict appeals and appeals. The current appeal system is not specific and standardized, which often causes a case to be sent to the fourth and fifth trials, but still cannot be "final". This will seriously damage the credibility of the court and make the legal relationship unstable. Therefore, the concept of limited appeal should be based on the principle of maintaining the stability of court decisions.
(6) Trial plea bargaining system in criminal cases. If the defendant has pleaded guilty to the court during the statement, there is no need for court investigation, court debate and other procedures, and the judgment should be made in court after fully considering the relevant circumstances, which is conducive to improving the trial efficiency. Logically speaking, the defendant has pleaded guilty in court, so what is the need to spend time going through the procedure to prove his guilt?
(seven) give full play to the judicial role of the single judge. In Singapore, all death penalty cases are tried by a single judge, and we have to form a collegial panel to try simple debt disputes, which wastes a lot of judicial human resources. We should trust the conscience of judges, give full play to the role of single judges, and try cases by single judges as much as possible. On the one hand, it is conducive to the road of elite trial and the professionalization of judges; On the other hand, it can save a lot of judicial human resources and litigation costs.
(eight) as soon as possible to build Hainan legal network and make it into a practical state. The informatization and networking of trial resources can improve the efficiency and transparency of trial work, which has a good promotion effect on trial work. We should seize the time to establish Hainan court system network as soon as possible, and make full use of Tianya Law Network to provide legal services to the society, supervise the fair and efficient trial of cases, and improve the public's credibility in the fair trial of the court.