Procedural issues relate to the trial process.
Substantive issues are the determination of substantive rights.
For example, in criminal proceedings, the first-instance procedure, the second-instance procedure, the composition of the collegial panel, whether to open the trial, etc. are all procedural issues; whether the defendant committed a crime, what crime he committed, and what punishment he was sentenced are all substantive issues. Sexual issues.
Simply put, procedural law stipulates the processing procedures, and substantive law stipulates the processing results.
How to distinguish between legal substantive rights and procedural rights?
Hello, what involves the relationship between citizens’ rights and obligations is substantive rights
Why legal procedures are important
Procedural justice is regarded as "visible justice" ", is actually a legal cultural tradition and concept in countries with common law systems. This comes from a famous legal maxim: "Justice must not only be done, but must be seen to be done."
To explain it in the most popular language, the meaning of this motto is that not only should the case be decided correctly and fairly, so that it fully complies with the provisions and spirit of the substantive law, but also the fairness and rationality of the decision-making process must be seen . In other words, even if the judicial organ makes a judgment on a case that is very fair, reasonable, and legal, it is not enough. To make the judgment conclusion universally recognized, the referee must ensure that the judgment process meets the requirements of fairness and justice. Therefore, the so-called "visible justice" essentially refers to the fairness of the adjudication process (relative to the adjudication result) and the fairness of the legal procedure (relative to the substantive conclusion).
Why should we have and follow legal procedures? As a legal procedure, aiming to form the steps and procedures of legal judgment, isn't legal procedure equal to a series of "formalities"? For example, someone who has just purchased a computer needs to understand and be familiar with its operating procedures; someone who wants to hold a wedding needs to determine the "program" for the celebration; someone who wants to play golf needs to follow a series of complex exercises." program"! ...Obviously, formulating and adhering to these technical "procedures" can ensure that the machine runs smoother, things are handled more orderly, and the final victory of the game can be achieved.
Procedural justice is a value achieved through the legal process itself, rather than through the results it is intended to produce. The concept of procedural justice is a valuable asset in the human legal culture of the Anglo-American legal system, because they regard the legitimacy and rationality of the legal process itself and the substantive fairness of the results of the legal process as value goals of equal significance, emphasizing that the process of legal implementation is consistent with The basic requirements of justice, thus developing procedural justice based on the original so-called substantive justice or substantive justice, reminding people to pay attention to the justice of the results at the same time. While emphasizing the fairness of the judgment results, we must also ensure the fairness of the legal implementation process. Especially in China, where "emphasis on substance and light on procedure" and even "procedural nihilism" are extremely prevalent, it is of great significance to introduce and advocate the concept of procedural justice and emphasize the independent intrinsic value and significance of legal procedures.
When a national referee makes a ruling that is beneficial or detrimental to the interests of the parties, the parties should at least be able to negotiate rationally with the referee on how to treat themselves, that is, emphasizing respect for procedural participants as autonomous, responsible, and rational subjects. The referee's status requires the referee to participate in the processing of the referee results with him, and to demonstrate the rationality and legality of the referee results with him, thus making him a member of the entire committee. Rationality enables him to become a negotiator, interlocutor, debater and persuader in the refereeing process, so that his dignity and value as a human being can be fully respected.
When substantive justice and procedural justice conflict with each other, and you cannot have your cake and eat it too, how should you choose? We believe that the principle of procedural justice should be given priority. The reasons are as follows: First, observing due process, although crimes may be indulged, can prevent unjust imprisonment to a large extent; and ignoring due process in order to determine the reality of the entity, although specific justice may be achieved in individual cases, it is easier leading to unjust imprisonment. As Bacon said: "One unjust decision is more evil than ten crimes."
Because although crime is a disregard for the law - just like it pollutes the water, an unfair trial destroys the law - just like it pollutes the water." (Bacon: "On the Laws") and indulgence in crime, creating unfair trials In comparison, the latter has obviously a much greater impact on judicial authority. Secondly, the criminal procedure law is called the defendant's rights law, and the due process of criminal procedure contains the provisions that the defendant should be subject to. The right to protect, so complying with due process, is to protect the basic human rights of the defendant. Protecting the basic human rights of the defendant from infringement is actually to protect the basic human rights of all citizens, because any citizen can become a defendant. Third. , Complying with due process can prevent powerful public power from being abused. Compared with weak individuals, public power is always powerful. Once public power is abused, individual rights will be difficult to survive. In addition, it should be noted that in modern society. , the abuse of power is the biggest factor causing social injustice. Due to specific programs and violations...
Why should the rights list system be implemented?
The rights list refers to clarifying each. The powers and responsibilities of each unit and each position should be defined. To disclose administrative power, we must first know how much power a unit or a position has. How much power does a director or section chief have? Powers? What is the operation procedure of each power?
The power list system is particularly significant in the following four aspects:
1. Delineate the boundaries of power and promote the rule of law. Ruling the country according to law, ruling the country by law, and ruling society by law are the aspirations of the Communist Party of China and the people of the whole country. Ruling the country according to law, governing according to law, and administering according to law have always been the direction of our party's efforts. However, in practice, due to the blurring of the boundaries of power, the power of There is strong arbitrariness in the process of exercise, and various hidden rules, using words to replace the law, using power to suppress the law, and bending the law for personal gain are common, and some of these extreme cases have not only seriously undermined social fairness and justice, weakened the party's ruling foundation, and even caused political chaos. Large-scale corruption directly threatens social security and stability. Especially with the continuous deepening of reform and opening up and the continuous development of the market economy, unclear power boundaries will cause more and more social problems because all market entities have pursuits. The instinctive impulse to maximize self-interest and unclear power boundaries can easily lead to fierce conflicts of interest between governments and market entities, and between market entities. The market economy is an autonomous economy, and every market entity desires to have enough. The unclear power boundaries mean that the unlimited authority of administrative power will inevitably curb the creative vitality of the market and breed various illegal business behaviors. Clearly defining the power boundaries in the form of a list will not only limit the transgression of power. Clear standards for supervision, restriction, supervision, investigation, and punishment can effectively reduce various power transgressions, maintain the authority of laws and regulations, and also leave boundaries and bottom lines for various social behaviors, including market behaviors. It provides sufficient space for activities, which is conducive to citizens' compliance with laws and regulations and market entities to operate in accordance with the law.
2. Standardize the operation of power and improve the level of administrative management. The level of administrative management of a society depends to a large extent on the scientific allocation of administrative power and the standardization of the operation process of administrative power. The basic principle of the allocation of administrative power is the unity, complementarity and non-overlapping of powers and responsibilities. The standardization of the operation process of administrative power is mainly reflected in the proceduralization and legalization of government affairs. At present, the functional departments of our country's government have an imbalance of power and responsibilities in the allocation of power, overlapping and division, and the coexistence of gaps and gaps. The procedures and legalization processes in the operation of power are not high. These problems have led to administrative chaos. The chaos is mainly manifested in two aspects: First, it is very difficult to coordinate the internal work of the government. For those thankless matters that require free services, cannot be fined and charged, various functional departments are passing the blame to each other, and "eight ministries and commissions cannot be the leader." It is not uncommon for pigs to "ten ministries and commissions cannot play a ball"; secondly, the problem of multiple enforcement and repeated enforcement is particularly prominent. For those profitable matters that can be fined and charged, all functional departments rush to do it, and everyone wants to take advantage of it. A piece of Tang monk meat. One of the important functions of the power list is to clearly define the rights and responsibilities of each functional department and different positions, reasonably standardize government affairs processes, and help build a power and responsibility system and procedures that are unified, clear and specific, closely coordinated, and non-overlapping. The power operation process should be standardized and legalized, thereby improving the level of administrative management and controlling all kinds of inaction and disorderly conduct.
3. Strengthen system authorization and improve *** work efficiency.
Authorization is the core content of organizational establishment management and an important area of ??modern management research. Unstable and unclear authorization is a taboo in modern social organization management. Because modern organizations are large in scale, involve a wide range of businesses, and are in an era of informationization and globalization where new problems and challenges are emerging, there is an urgent need for clear and stable institutional authorization of each position to fully mobilize the organization. Members' sense of responsibility and creative spirit, thereby improving the organization's efficiency and sensitivity to environmental changes. Some large multinational organizations and governments in developed countries have actively explored institutional authorization and achieved good results. Some outstanding enterprises in our country have also gained a lot in this regard. However, in the internal management of our country's government departments, there is a serious lack of institutional authorization. Generally speaking, extensive financial control and authoritative influence are the mainstay, which is a mixture of identity control and power-based interpersonal relationships. Although some places have explicit provisions on job responsibilities, they are very general and remain on principle requirements, which have little significance in standardizing and guiding actual work. Administrative management has always had the problem of "difficult to enter, ugly face, ugly words, and difficult things to do"...
Why is administrative power mandatory?
Administrative power is a kind of political power. It is a state administrative agency that relies on specific coercive means to effectively manage the entire society in accordance with the principles of the Constitution. power to implement the will of the state.
Administrative power is the basis for administrative agencies to perform their duties. In practice, administrative agencies usually exercise administrative power in the following forms:
1. Formulating norms and issuing orders and bans
Formulating norms and issuing orders and bans are administrative An important means of administrative management often used by agencies. The formulation of norms can take the form of administrative legislation (administrative regulations and rules) or the formulation of other administrative normative documents (the formulation of administrative resolutions, decisions, etc.). The act of issuing orders and injunctions can be directed against unspecified people and things, or against specific people and things.
The main difference between norms and orders is that the former can usually be applied repeatedly to an unspecified majority of people, while the latter can usually be applied to specific people or can be applied to unspecified people once.
2. Preparation and implementation of plans and plans
Preparation and implementation of plans and plans are important means of administrative management. During the period of planned economy, it goes without saying that planning and planning means were important in the entire administrative means of our country. After the implementation of the market economic system, although planning and planning no longer have an overriding status, they will not be completely abolished. Planning and planning are still important means of administrative management. For example, our country's government must prepare a "National Economic and Social Development Plan" every year, and every few years it must prepare a medium- and long-term development plan (such as a "Five-Year Plan", a "Ten-Year Vision Outline"), and a "Five-Year Plan" Plan", "Ten-Year Vision Outline", etc. The "Annual National Economic and Social Development Plan", medium and long-term development plans prepared every few years (such as "Five-Year Plan", "Ten-Year Vision Outline", etc.), as well as "Land Use Master Plan", "Urban Construction planning", etc., still play an important role in modern administrative management.
Of course, under the market system, the use of planning and planning methods by administrative agencies to manage socio-economic and cultural affairs is very different from that under the planned economic system. The former aims to focus on giving full play to the autonomy of enterprises, individuals and organizations. Initiative and creativity, macro-control of social development, while the latter directly intervenes, thereby stifling the creativity and initiative of enterprises, individuals, and organizations.
3. Implement administrative licensing
Administrative licensing is an administrative management method widely used by administrative agencies. Through the administrative licensing system, administrative agencies can restrict the minimum qualifications for people to engage in certain professions (such as lawyers, doctors, teachers, etc.); they can also restrict the minimum quality standards for people to produce certain products (such as home appliances, food, medicine, tobacco, etc.) ; The basic safety and technical conditions for people to open certain types of enterprises or businesses (such as civil aviation, tourism, publishing, printing, schools, etc.) can be restricted to protect public interests.
The licensing system can also limit the scale and speed of development of a certain field or industry, and prevent over-production or excessive competition of certain commodities from causing damage to the interests of the country, society and practitioners.
In addition to stipulating that license applicants must meet certain conditions when applying, the administrative licensing system usually also stipulates that licensees must abide by certain rules and requirements afterwards. Administrative agencies may supervise and inspect licensees at any time, and may revoke their licenses if they are found to be in violation of regulations and requirements.
4. Taxation and financial subsidies
Taxation and finance are not only the basis for the country’s own survival and development, but also an important means for the country to carry out macro-control of the national economy. Through this method, the government can encourage and promote the rapid development of a certain region, a certain industry, a certain field, a certain economic behavior or a certain product, and can also inhibit or slow down its overheating or rapid development to ensure that Rational allocation of economic resources and optimization of economic structure.
In addition, taxation and fiscal subsidies also play an important role in eliminating the excessive income gap among residents caused by irrational social distribution, preventing polarization, and maintaining social fairness and justice.
5. Survey statistics and information release
Survey statistics and information release are also important means of modern administrative management. Through surveys and statistics, administrative agencies can understand information on various aspects of society, such as enterprise product quality, labor production safety, market demand, etc. On the one hand, administrative agencies can formulate management policies and adopt management measures based on the information obtained through surveys and statistics to implement effective management of society. On the other hand, relevant information can be released directly to the public, so that corporate producers can correctly arrange their production plans based on the information, improve product quality, and improve safe production conditions, so that consumers can choose to purchase high-quality goods and receive high-quality services based on the information. , to prevent being deceived.
On this basis, the "Information Intelligence" website will continue to update the content of "Information Intelligence".
In addition, the release of information and intelligence on illegal, illegal, and inferior products and services is actually an indirect sanction for the corresponding illegal individuals and companies. ......
Ask what legal entities and procedures mean
Refers to legal entities and legal procedures. Legal procedures refer to the legal practice process, including not only judicial procedures, but also Including administrative procedures, legislative procedures, quasi-judicial arbitration procedures, etc. Substantive rights and obligations and procedural rights and obligations are the mechanisms that regulate this interlocking legal practice process. In countries with civil law systems, procedural rights and obligations and substantive rights and obligations have been codified and belong to the abstract and conceptual category of formal law, manifested as legal norms. However, its regulatory mechanism in the process of legal practice is essentially practice. However, it is impossible to define the legal process in terms of procedural rights and obligations, because procedural rights and obligations have been formalized, and it is impossible to reproduce in flat space the complex processes that occur in three-dimensional space. From today's perspective, substantive law includes two aspects. On the one hand, it is the rights directly related to people's vital interests, such as freedom rights, personality rights, property rights, security rights, etc.; on the other hand, it is the rights to participate in various legal procedures. Such as the right to vote, the right to prosecute, the right to defend, the right to know, etc. These basic rights are the purpose and basis for people to establish laws or take corresponding legal procedures. The former aspect, such as property rights, personal freedom, etc., is not only the value goal of legal norms, but also the goal pursued by various legal procedures; the latter aspect, such as voting rights, prosecution rights, defense rights, etc., is the legal process itself. Sources of legitimacy. In contrast, legal proceedings should be the practical steps people take to establish and achieve these value goals. Therefore, the realization of these basic values ??of legal norms cannot be replaced by any expedient measures, and the discontinuity of legal norms cannot be compensated for by careful program design.
Why is administrative review a procedural act stipulated by law?
The Administrative Reconsideration Law has relatively strict procedural provisions for the implementation of administrative reconsideration. Administrative reconsideration agencies must conduct administrative reconsideration in accordance with these legal procedures. The administrative counterpart must submit an application for administrative reconsideration within the statutory time limit. If the administrative review agency, after review, considers that the case meets the acceptance conditions and needs to be heard in accordance with the law, it will make an administrative review decision within the legal time limit. Law enforcement tips: Administrative reconsideration must be noted that although administrative reconsideration is a hierarchical supervision mechanism within the administrative agency, it is a system for resolving administrative disputes within the administrative agency. However, the current administrative review system embodies a "rights-based" value orientation, which is to protect the legitimate rights and interests of the parties to the greatest extent.
Article 1 of the Administrative Reconsideration Law stipulates that this law is enacted in order to prevent and correct illegal or improper specific administrative actions, protect the legitimate rights and interests of citizens, legal persons and other organizations, and ensure and supervise the exercise of powers by administrative agencies in accordance with the Constitution. Such provisions actually highlight the legislative purpose of protecting the legitimate rights and interests of citizens, legal persons and other organizations. At the same time, the main body of the Administrative Reconsideration Law also reflects the convenience for parties to apply for administrative reconsideration and for the administrative reconsideration authorities to hear reconsideration cases. consideration. At the same time, according to the provisions of the "Regulations for the Implementation of the Administrative Reconsideration Law", during the administrative review process, if the administrative review agency deems it necessary, it may conduct on-site investigations to verify evidence; for major and complex cases, based on the applicant's application or the administrative review agency If deemed necessary, administrative reconsideration cases may be heard through hearings. These have put forward high requirements for administrative punishment work. The difference between administrative review and administrative litigation is that administrative review is a form of relief within the administrative agency, and the administrative review agency has the final decision-making power in the first instance. The agency subject to review, that is, the lower-level administrative agency that imposes administrative penalties, is less able to participate in the administrative review process, and cannot have any objections to the results of administrative review. It must implement it without hesitation, regardless of whether the result is favorable or unfavorable to itself, because administrative actions are, after all, Based on the sequence of actions. This feature is completely different from administrative litigation. In administrative litigation, administrative agencies can also participate in the litigation regarding administrative penalties and can debate with the parties in court. In other words, the administrative agencies can also participate in the litigation of administrative penalties. Question opinions and demonstrate your own opinions to safeguard the administrative penalty decision of the administrative agency to the greatest extent. This is different from administrative review, where the administrative agency can only passively let the administrative review agency review its own administrative actions. At the same time, if the judicial authority makes an administrative judgment that is unfavorable to the administrative agency in administrative litigation, the administrative agency can also appeal or even file a protest with the procuratorate. In other words, administrative agencies also have channels for relief from judicial decisions. This is unlike in administrative review, where administrative agencies can only passively implement administrative review decisions.
The procedural nature of judicial power
The procedural nature of judicial power means that the operation of judicial power is based on the order, steps and procedures of procedural law. The procedural nature of judicial power is very obvious. The three major procedural laws, namely the Criminal Procedure Law, the Civil Procedure Law, and the Administrative Procedure Law, are all procedural laws. Various procedures are stipulated in the system, such as first-instance procedures, second-instance procedures, execution procedures, special procedures, Trial supervision procedures, etc., all reflect the procedural and normative characteristics of the exercise of judicial power. Why must the exercise of judicial power follow procedural rules? This is determined by the normative nature of the law. Since the object of judicial organs and judges is the law, then the normative nature of applying the law must naturally be based on the normative nature of procedures. Procedural nature is also a major feature that distinguishes judicial power from executive power and legislative power. Although the legislative power also has a set of steps and methods in the exercise process, its procedures are far less rigorous and systematic than those of the judicial power. Moreover, the legislative power does not have a set of procedural laws to determine its operating rules. The degree of proceduralization of administrative power is lower than that of legislative power and judicial power, and it is relatively unstandardized, because administrative power often operates according to policies, and its commanding, decision-making, mobility and flexibility are its outstanding characteristics. Therefore, its The degree of proceduralization is far less obvious than judicial power. The procedural authority of judicial power refers to the fact that the exercise of judicial power produces a legal binding force on the parties participating in the procedure after the completion of one or several legal procedures. Its effectiveness shall not be changed unless the legal procedures are changed or terminated. The authority of judicial procedures is determined by the procedure itself, because since the procedure is stipulated by law, the power exercised in accordance with legal procedures will naturally produce legal authority. The authority of judicial power determined by procedure is mainly reflected in the following aspects: (a) The legality of the procedure. That is to say, the procedure must be carried out in accordance with the order, deadline, subject, conditions, etc. stipulated by the law. If these elements are violated, it will constitute a procedural violation, and procedural violation will not produce legal effect and authority. (2) Independence of procedure. It means that the legal operation of the program will not be interfered by non-procedural factors. Except for legal reasons, the program shall not be arbitrarily delayed, terminated, terminated or destroyed by human factors. Procedural independence is consistent with judicial independence. Judicial independence includes substantive independence and procedural independence. The results of cases tried in accordance with the law or in accordance with independent procedures are not only in line with legal provisions, but also in line with the characteristics and laws of judicial operation. (iii) Procedural safeguards. "The history of freedom is basically the practical history of procedural guarantees.
"This sentence shows the authority and value of the procedure. Procedural guarantees mean that the rights of all parties involved in the procedure are equally protected, and the obligations binding all parties are also equal. All parties have the rights granted by the procedure to express their opinions and provide relevant evidence. , the right to refute the other party’s arguments and dispose of their own rights; all parties equally accept the constraints of obligations and perform their obligations in a timely manner, respect the rights of the other party, etc. Only if the participants in the procedure participate equally in the procedure and accept procedural guarantees equally, then Only then can he respect and accept the results produced by the procedure, because "authority comes from conviction and recognition", so the guarantee of the procedure naturally produces authority. (iv) Since the procedure determines the outcome, once a procedure is completed. Or several procedures, the employment result has been determined and cannot be changed. For example, in the three major litigation laws, the judgment of the case after the first and second instance procedures is final. Therefore, whether it is one procedure or several procedures, it should be comprehensive. Performance, if the legal procedures are not completed, will naturally not produce the results and effects stipulated by law; at the same time, after all procedures are completed, the procedures are final and the finality is unchangeable. Therefore, its authority is determined by finality.
What basic characteristics does power need?
Characteristics of power
1. The existence of power has prerequisites (1) The content of power. Substantively, it is stipulated by law; (2) The exercise of power must comply with the relevant procedures stipulated by law;
2. The purpose of power is to achieve certain social welfare, so it is public welfare. ;
3. The power is a legal violation of the public;
4. Due to the public welfare of the purpose, the power cannot be given up.
Why should the rights of criminal suspects be protected during the investigation process
Protecting the legal rights of criminal suspects during the criminal investigation stage is an inevitable requirement for further standardizing investigation work, improving human rights protection, and achieving judicial justice. In the following aspects: First, it helps to strengthen the concept of human rights and requires investigators to strengthen their awareness of human rights protection. Second, it helps to standardize the investigation behavior. People's legal rights require investigators to act in accordance with the law and bear legal responsibility for the investigation process and results. From a procedural point of view, investigation work must be carried out in an orderly manner in accordance with legal steps and procedures, and before taking investigative measures and restraining criminal suspects. While maintaining freedom, criminal suspects must be informed of their rights in a timely manner so that criminal suspects can exercise their rights promptly and effectively.
The third is to help achieve judicial justice and standardize law enforcement. Protecting the legal rights of criminal suspects can promote judicial fairness; when judicial fairness is achieved, the rights of criminal suspects will be effectively protected. The two complement each other and promote each other.