The three major procedural laws involve all aspects of production and life, and are also swords for safeguarding people's rights and promoting the general plan of governing the country according to law. What is the focus of this revision? What's the impact on promoting democracy and the rule of law in China? The reporter of "Legal Daily" interviewed authoritative experts in related fields and authoritative people who participated in the discussion on legal revision, and made an in-depth analysis of these issues.
Revising the procedural law is expected to solve the problem of "people suing officials"
Although the "Administrative Procedure Law" has been implemented for more than 20 years, the road of "people suing officials" is not smooth. According to the news from the Administrative Law Office of the National People's Congress Standing Committee (NPCSC) Law Committee, the National People's Congress Standing Committee (NPCSC) has initiated the revision of the Administrative Procedure Law.
In what aspects should the Administrative Procedure Law be amended? The reporter of Legal Daily interviewed Ma Huaide, vice president of China University of Political Science and Law.
Expand the scope of accepting cases in administrative litigation
"The purpose and function of administrative litigation need to be repositioned. Increase effective ways to resolve administrative disputes and resolve administrative disputes. " Professor Ma Huaide, vice president of China University of Political Science and Law, said in an interview with the reporter of Legal Daily.
It is understood that when formulating the administrative litigation law in China, due to various considerations, the scope of accepting cases in administrative litigation has been strictly restricted. The administrative procedure law stipulates the scope of administrative cases accepted by the court in two ways: one is a general rule, which stipulates the scope of administrative cases accepted by the court in principle; The second is listing, that is, listing the cases that the court should accept and cannot accept from the perspective of administrative behavior. There are two standards in the Administrative Procedure Law to define the scope of accepting cases in administrative litigation: one is the specific administrative behavior standard, and the other is the personal property right standard.
Ma Huaide believes that practice has proved that the adoption of the above-mentioned methods and standards to stipulate the scope of accepting cases in administrative litigation objectively limits the scope of accepting cases by the court and the plaintiff's right to appeal, which is not conducive to safeguarding the legitimate rights and interests of citizens and organizations, supervising the administration of administrative organs according to law and maintaining the order of administrative rule of law, and it is necessary to make necessary adjustments to the provisions of the scope of accepting cases in administrative litigation.
According to Article 12 of the Administrative Procedure Law, the people's courts shall not accept the lawsuits filed by citizens, legal persons or other organizations on the following matters: administrative regulations, rules or decisions and orders with general binding force formulated and issued by administrative organs. ...
In fact, in reality, some things that infringe on citizens' rights and interests with normative documents (red-headed documents) happen from time to time.
"When drafting the administrative procedure law, considering that it is unrealistic for the parties to be free from any restrictions, we used a concept-specific administrative act, which stipulates that only specific administrative acts can be brought to court. Abstract administrative acts other than specific administrative acts such as administrative regulations, departmental rules and government rules. Can't sue. " Ma Huaide said.
Ma Huaide believes that according to the provisions of the current administrative procedure law, the counterpart may not file a lawsuit against abstract administrative acts, and only through other supervision channels can the problem of illegal implementation of abstract administrative acts be solved. However, from the actual situation, it is difficult for other supervision mechanisms to play their roles effectively. With the gradual increase of abstract administrative acts, the problem of illegal implementation of abstract administrative acts is becoming more and more serious. Moreover, the abstract administrative act is made against the common object, and its applicable effect is repeated more than once. In addition, it has the characteristics of multi-level and wide range, and its influence is far greater than the specific administrative act. If the people's court can't accept the lawsuit against illegal abstract administrative acts and revoke it, it may lead to the infringement caused by improper abstract administrative acts in a certain range, which will cause more people to suffer losses. In this sense, abstract administrative acts are more dangerous and destructive than specific administrative acts, so there is more reason to bring abstract administrative acts into the scope of administrative litigation.
In addition to abstract administrative acts, Ma Huaide proposed that two types of administrative acts also need to be included in the filing criteria: internal administrative acts. Because the internal administrative behavior is aimed at a wide range of objects, civil servants are bound and regulated by internal administrative behavior. If this behavior is illegal or wrong, it may damage the legitimate rights and interests of civil servants, so it is necessary to bring it into the scope of litigation for supervision. There are other acts of administrative organs, including administrative guidance and administrative contracts.
"The phenomenon of disorderly sending red-headed documents is more common now, and it is rarely subject to effective legal constraints. When the Administrative Procedure Law was enacted 20 years ago, I probably didn't realize that red-headed documents might be the carrier and form of infringing the legitimate rights of citizens, legal persons or other organizations. At that time, I thought that many red-headed documents were the basis of administrative law enforcement and should not be included in the scope of litigation. But now it seems that after 20 years of rapid development of China's legal system construction, especially the enhancement of administrative consciousness of administrative organs according to law, the specific administrative actions of administrative organs have basically been bound by various laws. However, the supervision and restriction mechanism of abstract administrative behavior is not perfect. Therefore, the phenomenon of disorderly sending red-headed documents is still relatively common, and the supervision of the National People's Congress, the society and the news media is not normalized enough to form effective institutional constraints. Therefore, I advocate establishing a system that can file a lawsuit against abstract administrative acts as soon as possible to restrain red-headed documents. " Ma Huaide said.
Amend the administrative procedure law to facilitate prosecution.
Not long ago, a news reported by the media attracted social attention. An old man in Hubei Province found that his file was transferred to the "Dead Person" file of Huanggang Labor Security Agency Service Center in Hubei Province on June 5438+February, 2006, and was declared dead. The old man took the relevant units to court.
During the trial, Huanggang Grain Bureau did not deny that the old man was recorded in the "death file", but asked the court to reject the old man's claim on the grounds that the Grain Bureau was not the subject of infringement and the elements of civil liability that constituted infringement of reputation rights were missing.
Accordingly, the Huangzhou District People's Court of Huanggang City held that there was insufficient evidence for the elderly to sue, and the first-instance judgment rejected his claim.
Ma Huaide believes that due to the numerous administrative organs and complex levels in China, there are a large number of internal organs, temporary organs, joint law enforcement agencies, dispatched agencies and organizations authorized by laws and regulations, how to determine the litigation status of these subjects is a big problem.
"It is necessary to amend the Administrative Procedure Law, improve the trial system and jurisdiction system of administrative cases, and ensure that the people's courts independently exercise administrative jurisdiction according to law. At present, there are a series of problems in administrative litigation, such as difficulty in filing a case, difficulty in litigation and difficulty in trial. As an administrative organ, the defendant may interfere with the court, and may refuse to appear in court, submit a defense, refuse to appear in court, fail to appear in court or exert pressure on the court in various ways. Therefore, it is necessary to reform the administrative trial system or make technological changes, such as cross-jurisdiction of local exploration and jurisdiction in different places, which can also be reflected in the revision of the Administrative Procedure Law. " Ma Huaide said.
Modifying the scheme is conducive to solving the implementation difficulties.
It is understood that in addition to the difficulty of prosecution, the difficulty of implementation is also one of the reasons why many people regard "people suing officials" as a fear of the road.
Ma Huaide believes that the difficulty in executing administrative judgments has been a thorny issue for a long time. The main reason is that the defendant, as an administrative organ, dares to resist the court's decision. At present, the implementation methods such as "fine" and "making judicial suggestions to administrative organs" stipulated by law are far from solving all the difficult problems in implementation. So this needs to be solved by amending the administrative procedure law.
"When amending the administrative procedure law, we should constantly improve the administrative procedure. First, according to the experience of administrative procedure law for more than 20 years, some systems will be reconsidered and effectively dealt with. For example, administrative litigation can solve disputes through coordination. Second, to improve the trial efficiency, some cases with little controversy can be carried out through summary procedures. Third, the types of judgment methods need to be further clarified when amending the law. Fourth, increase the executive power of administrative judgments. We advocate that when the administrative procedure law is amended, the legal responsibility of administrative organs for refusing to execute court judgments and rulings should be increased. Those who refused to execute the court's judgment in the past will be fined by the administrative organ. I think this fine should be transferred to the administrative organ. " Ma Huaide said.
How to get out of the predicament of "people suing officials"
Ma Huaide believes that the Administrative Procedure Law will be revised for the first time in the past 20 years, which is a great opportunity to get rid of the difficulties of "people suing officials" and promote the construction of a government ruled by law.
"The main aspect of the above-mentioned revision of the Administrative Procedure Law is to make it easier for plaintiffs to file administrative litigation cases. The court can remove some obstacles in the trial, try these cases more fairly, and let the judgments be executed. All this is to let the' people's accusation' gradually get out of the predicament. " Ma Huaide said that administrative litigation is a very important way of judicial supervision to supervise administrative organs to administer according to law and build a government ruled by law, and it is also an important litigation channel to protect the legitimate rights and interests of citizens, legal persons and other organizations.
"From the 20-year history of the implementation of the Administrative Procedure Law, the Administrative Procedure Law has played an important role in promoting the administration of administrative organs according to law and building a government ruled by law. I believe that if there is a perfect administrative litigation system, especially if all disputes are included in the effective channels of administrative litigation settlement, a large number of disputes between the government and the people can be solved, and at the same time, the level of administration by administrative organs can be improved. The most important thing is to relieve the legitimate rights and interests of the counterpart, especially for plaintiffs who have been infringed by administrative actions, they can obtain social fairness and justice through administrative litigation and obtain the protection of their own rights and interests. " Ma Huaide said.
Amend the criminal procedure law or contact lawyer law
Interlocutors
Tian Wenchang, director of the Criminal Professional Committee of the National Lawyers Association.
"Legal Daily" reporter Zhao Li
Dialogue motivation
How to amend the criminal procedure law and what principles to follow is the key to truly improve the criminal procedure system and promote the progress of the rule of law. To this end, the reporter of Legal Daily had a dialogue with Tian Wenchang, director of the Criminal Professional Committee of the National Lawyers Association, who had participated in the discussion on the revision of the Criminal Procedure Law for many times.
have a conversation
Reporter: The criminal procedure law implemented at this stage has been implemented for many years. When did the legal profession begin to discuss the revision?
Tian Wenchang: About three or four years ago, experts, scholars and practitioners all suggested that the criminal procedure law implemented at this stage needs to be revised. Therefore, it should be said that the revision of the criminal procedure law has been going on in recent years, which belongs to the process of revision, but it has not been introduced for various reasons.
Reporter: Why didn't you come out?
Tian Wenchang: Mainly, some problems have not been solved, some are controversial, and some need further study. As far as I know, the revision of the Criminal Procedure Law this year has been put on the agenda of the National People's Congress Standing Committee (NPCSC), indicating that the revised Criminal Procedure Law will be officially promulgated this year, so the relevant departments are now stepping up discussions and drafting.
Reporter: What is the main purpose of this revision of the Criminal Procedure Law?
Tian Wenchang: It involves many aspects, one of which is to link up with the Lawyers Law which came into effect on June 6, 2008. In fact, before the drafting and promulgation of the Lawyers Law, the main problems reflected in the laws and regulations of the Lawyers Law were involved in the revision and discussion of the Criminal Procedure Law. However, the amendment of the criminal procedure law did not come out before the lawyer law as expected, but came out first. In this way, some problems originally intended to be reflected in the revised criminal procedure law have been reflected in the lawyer law.
Reporter: Since the Lawyers Law has already stipulated some issues, why should it be amended in the Criminal Procedure Law?
Tian Wenchang: Because the Lawyers Law and the Criminal Procedure Law are still different in many aspects, and there are some controversies after the promulgation of the Lawyers Law. Therefore, the next important task is to coordinate the lawyer law with the criminal procedure law, that is to say, some related contents in the lawyer law should be reflected in the revised criminal procedure law.
Reporter: Please brief us on the main concerns of all parties involved in the revision and discussion of the Criminal Procedure Law.
Tian Wenchang: People are more concerned that the defendant cannot be forced to testify against himself, which is related to the right to silence. In addition, witnesses appear in court, lawyers meet and read papers, the crime of perjury of defenders in Article 38 of the Criminal Procedure Law, and the exclusion of illegal evidence are also concerned.
Reporter: Last year, two schools and three departments issued "two regulations" on excluding illegal evidence. Recently, it has been reported that the revision of the Criminal Procedure Law may raise the "two provisions" to formal provisions.
Tian Wenchang: After the introduction of relevant regulations on the exclusion of illegal evidence, certain results have been achieved. However, in practice, there are still some problems that are difficult to implement. For example, the burden of proof for excluding illegal evidence is not clear. What needs to be solved now is how to further implement the problem of excluding illegal evidence, because this will directly affect the correct judgment of the case.
Reporter: Apart from the exclusion of illegal evidence, what other problems need to be solved urgently in the revision of the Criminal Procedure Law?
Tian Wenchang: At present, experts and scholars agree that the problem of witnesses appearing in court must be solved. This problem exists all over the world. If the witness does not appear in court, then the evidence belongs to hearsay evidence, and there is no way to cross-examine hearsay evidence. Another issue is the trial of the second instance. Now the second trial is only a written test. We believe that the second trial cannot be called a trial without a trial, and it belongs to a review activity. Because the trial has several basic elements such as cross-examination, debate and cross-examination, if these links do not exist, the basic characteristics of court trial will be lost. At the same time, there are many discussions, as well as the right of lawyers to be present when interrogating suspects (defendants).
Reporter: What suggestions do you have for the revision of the Criminal Procedure Law?
Tian Wenchang: I specifically raised the issue of the right to initiate judicial expertise when we discussed the revision of the Criminal Procedure Law last time. At present, in China, only the prosecution has the right to initiate judicial expertise, but the defendant has no right to initiate judicial expertise. Therefore, as lawyers, we call for giving the defense the right to initiate judicial expertise.
If both the prosecution and the defense have made their own judicial expertise, then the judicial appraiser must appear in court for cross-examination, and finally the court will determine the accuracy of the judicial expertise and other related issues.
The revision of civil procedure law should pay attention to system coordination
Interlocutors
Vice President of Peking University Law School
Pan Jianfeng
"Legal Daily" reporter Ren Xue
Legal Daily Intern Zhao Chenxi
Dialogue motivation
It is understood that in 2007, the Civil Procedure Law was revised for the first time. So, what aspects will this revision focus on? What problems can be solved? The reporter of Legal Daily had a dialogue with Pan Jianfeng, vice president of Peking University Law School who participated in the revision of the Civil Procedure Law.
have a conversation
Reporter: It is understood that in 2007, the Civil Procedure Law was revised for the first time, but there were not many amendments. This year, the the National People's Congress Standing Committee (NPCSC) Law Commission initiated the revision of the Civil Procedure Law again. Please talk about your views on this revision.
Pan Jianfeng: Generally speaking, the current civil procedure law is a bit outdated and does not meet the requirements of the development of the times. It is very necessary to make corresponding amendments to it. In particular, the current civil procedure law does not make corresponding provisions on public interest litigation and small claims, but the actual situation now is that there are a large number of public interest litigation and small claims, so it is necessary to make corresponding provisions to better solve such litigation problems.
In addition, the relevant provisions of the current civil procedure law are mostly general and the operating system is somewhat backward. For example, the provisions on summary procedure and evidence are relatively general, but the actual situation is that a large number of cases apply summary procedure. Therefore, summary judicial interpretation was introduced in 2003. The revision of the civil procedure law should be detailed, and the production of summary judgment, mediation and summary trial procedures should be added to the revised civil procedure law.
Reporter: Earlier, it was reported that the core of the revision of the Civil Procedure Law was to strengthen the protection of the litigant's right to appeal, and to emphasize solving the problems of difficulty in prosecution, evidence collection and appeal. What do you think of this?
Pan Jianfeng: I am more concerned about the difficulty of prosecution, evidence collection and enforcement. Take prosecution as an example. This revision should lower the threshold of prosecution and reduce the difficulty of prosecution. The elements of prosecution in the current civil procedure law are actually equivalent to the elements of judgment in some aspects, but in fact the provisions of the elements of judgment are higher than those of prosecution, so the threshold of prosecution is higher now. Therefore, this revision should modify this part of the content, distinguish between the elements of prosecution and the elements of judgment, and lower the threshold of prosecution.
Reporter: It has also been suggested that the content of relief should be reflected in the Civil Procedure Law.
Pan Jianfeng: When the Civil Procedure Law was revised in 2007, the issue of relief was emphasized and strengthened. Personally, I think it is good to increase relief and attach importance to the modification of relief. In my opinion, this time to further modify the relief, we should refine the procedures for applying for reconsideration, such as the conditions for applying for reconsideration and the judgment of the court, and make clear and detailed provisions.
Reporter: In your opinion, what are the current civil procedure laws that need to be revised urgently?
Pan Jianfeng: I think what needs to be revised urgently is to add a system to prevent malicious litigation. At present, malicious litigation can be said to be a serious problem. Some parties are dishonest enough to harm the interests of the country, society or the third party through litigation. Others are actually not for the purpose of litigation, but for their own benefit through litigation. These actions are malicious lawsuits. However, the current civil procedure law does not make any provisions on this, which is not conducive to punishing and stopping this kind of behavior.
In addition, the application of evidence in the current civil procedure law is not detailed enough. Therefore, this revision should be refined and improved in terms of evidence acquisition, evidence review and evidence judgment.
Reporter: Is there any difficulty in amending the Civil Procedure Law?
Pan Jianfeng: I think the difficulties are mainly concentrated in two aspects. First, it is more difficult to introduce a new system like malicious litigation. Because we have no clear rules and experience before, it will be difficult to make them. Another difficulty is to do a good job of cohesion and coordination between systems. It is not difficult to improve and modify a system alone, but it is more difficult to integrate and coordinate the systems well. For example, the relationship between first instance, second instance and retrial, the first instance is a necessary procedure, and retrial is a supplementary procedure. Now the rule should be litigation. If it is retried, it should not return to the first instance. However, the actual situation now is that it is unreasonable to return to the first-instance procedure after the retrial finds problems. This requires more in-depth research, summing up experience, referring to and combining other systems and regulations.
Reporter: What principles do you want to follow in the revision of the Civil Procedure Law?
Pan Jianfeng: I hope to make a comprehensive and detailed revision of the civil procedure law to make the original system more perfect and more operational; The original system should also be supplemented to enrich the content and coordinate the various systems to avoid contradictions.
Reporter: At what stage is the revision of the Civil Procedure Law going on?
Pan Jianfeng: It's just the initial stage, and the draft hasn't come out yet. I think the draft was submitted as early as June 5438+this year 10, and then it was gradually carried out. (Reporter Du Xiao)
Intern Li Yuan)