I. Composition and number of judicial organizations
Both the Criminal Procedure Law and the Civil Procedure Law stipulate the trial organization as a special chapter, among which there are two forms of trial organization that often play a role: collegiate bench and sole trial. There is no special chapter in the Administrative Procedure Law on the organization of trial, but only the collegiate system in the trial of administrative cases is stipulated in Articles 6 and 44, which shows that sole trial is not applicable in administrative litigation.
The Criminal Procedure Law and the Civil Procedure Law have different provisions on the trial organization applicable to first-instance and second-instance cases. Except that the grassroots people's courts can apply sole trial to some first-instance cases, other first-instance and second-instance cases have different provisions on the number of collegiate bench members. Now it is divided into the following three situations:
(1) The only trial of a case of first instance
Both the Criminal Procedure Law and the Civil Procedure Law stipulate that cases subject to summary procedure can be tried by judges alone. Cases that can be tried by summary procedure should be cases with clear facts and sufficient evidence, and the victim's personal, property or other rights have been slightly infringed.
In administrative litigation cases, there should be cases similar to those stipulated in the Civil Procedure Law that can be tried by summary procedure. In the original interpretation of the draft administrative procedure law, it is explained that the trial of administrative cases is difficult, so the draft stipulates that the trial of administrative cases should be composed of judges. The author believes that the difficulty is relative. With the gradual improvement of various legal systems and the continuous improvement of law enforcement level, it is easier to judge whether the administration is illegal than in the past. For some administrative cases with little social impact and simple cases, summary procedures can be applied, and a judge can try them alone.
(2) the number of members of the collegial panel of first instance cases
The Criminal Procedure Law has different provisions on the number of collegiate benches in different levels of courts. It is stipulated that the basic people's court and the intermediate people's court shall try cases of first instance by a collegiate panel of three people; The Higher People's Court and the Supreme People's Court consist of three to seven collegiate panels. The number of members of the collegial panel shall be odd. The Civil Procedure Law simply stipulates that the number of members of the collegiate bench trying cases of first instance must be odd, but does not stipulate the number of members of the collegiate bench according to the court level. Article 46 of the Administrative Procedure Law stipulates that the members of the collegial panel shall be an odd number of three or more.
(two) the number of members of the collegial panel of second instance cases
According to the provisions of the Criminal Procedure Law, when the people's court hears an appeal or protest case, it shall be composed of three to five judges, and the number of members of the collegiate bench shall be odd. The provisions of the Civil Procedure Law on the number of members of the collegiate bench in cases of second instance are the same as those of the first instance, only emphasizing that the collegiate bench must be composed of judges. The collegial panel stipulated in Article 46 of the Administrative Procedure Law consists of judges or judges and jurors. According to the principle that the collegial panel of cases of second instance should be composed of judges, the provisions of Article 46 of the Administrative Procedure Law obviously only apply to cases of first instance in administrative litigation, so it is necessary to make provisions on the trial organization of administrative litigation of second instance.
It is not difficult to see from the provisions of the three major procedural laws on the number of trial organizations and collegiate bench members that the provisions of the criminal procedural law are almost cumbersome, the provisions of the administrative procedural law are too simple, and only the provisions of the civil procedural law are the most scientific, principled and flexible.
The author believes that it is of no practical significance to determine the number of collegiate bench members according to the level of the court in the criminal procedure law. Under the principle that the number of collegiate bench members must be singular, the number of collegiate bench members should be at least three. The Criminal Procedure Law sets the number of collegiate bench members in first-instance cases of grass-roots courts and intermediate courts at three, which is actually a restriction on the number of collegiate bench members. This restriction is not in line with the ever-changing criminal trial situation, because there are many major and complex cases involving the same crime, which require the participation of multiple judges and brainstorming, and it is difficult for three people to complete the trial activities with heavy workload. Therefore, this restriction on the number of collegiate bench members should be lifted. The provisions of the Higher People's Court and the Supreme People's Court on the number of collegiate benches should be redundant, and the provisions of five or seven people should limit the upper limit of the number of collegiate benches, rather than guarantee the number of collegiate benches.
From the perspective of saving trial human resources, it is necessary to limit the number of members of the collegiate bench to the maximum, so as to prevent disputes that may be caused by too many people and improve trial efficiency. The three major procedural laws can respectively stipulate the number of members of the collegiate bench as follows: "The people's court tries criminal (civil and administrative) cases of first instance, and the collegiate bench consists of judges and jurors or judges; In the trial of criminal (civil and administrative) cases of second instance, the people's court consists of a collegial panel of no more than seven judges. The number of members of the collegial panel shall be odd. "
Second, the provisions on the challenge system.
(a) the situation of withdrawal
The Criminal Procedure Law and the Civil Procedure Law respectively contain special chapters on the challenge system. According to the provisions of the Civil Procedure Law, a judge must withdraw in any of the following circumstances: (1) is a party to this case or a close relative of a party or agent ad litem; (2) Having an interest in the case; (3) Having other relations with the parties to the case, which may affect the fair trial of the case. The provisions of the preceding paragraph shall apply to clerks, translators, experts and inspectors. The provisions of the Criminal Procedure Law are basically the same as those of the Civil Procedure Law, except that witnesses, defenders and agents ad litem who have held positions in this case are also listed as those who need to be avoided.
Although the Administrative Procedure Law also stipulates the implementation of the challenge system, it does not stipulate the circumstances of challenge.
The Supreme People's Court's "Several Provisions on Strictly Implementing the System of Judges' Withdrawal" summarizes the situations of judges' withdrawal into five items: (1) the parties to this case or the lineal blood relatives, collateral blood relatives and in-laws within three generations; (two) I or a close relative has an interest in the case; (3) Having served as a witness, expert witness, inspector, defender or agent ad litem in this case; (4) Having the relationship of husband and wife, parents, children or brothers and sisters with the agent ad litem or defender in this case; (5) I have other interests with the parties to this case, which may affect the fair handling of the case. And in Article 3, it is stipulated that any judge who has participated in the trial of this case in one trial procedure shall not participate in the trial of other procedures in this case. It should be said that the Supreme People's Court's provisions on challenge are comprehensive and should be incorporated into the three major procedural laws.
According to the spirit of Article 3 of the Supreme People's Court's regulation, the provisions on the composition of collegiate bench in the three major procedural laws are essentially the contents of the challenge system. Therefore, the provisions of the chapter on trial organization and other chapters in the three major procedural laws on the formation of a collegiate bench should be specifically stipulated in the chapter on avoidance.
Articles 192nd and 206th of the Criminal Procedure Law respectively stipulate that a collegial panel shall be formed for a case remanded for retrial and a case retried according to the procedure of trial supervision. The provisions of paragraphs 2 and 3 of Article 41 of the Civil Procedure Law are basically the same as those of the Criminal Procedure Law. The administrative procedure law does not stipulate how to form a collegiate bench for cases remanded for retrial and retrial in accordance with trial supervision procedures. The Supreme People's Court's Opinions on Several Issues Concerning the Implementation of the Administrative Procedure Law of the People's Republic of China (Trial) stipulates that the people's court that originally tried an administrative case shall form a collegial panel for trial, but there is no provision on how to form a collegial panel for cases retried according to the trial supervision procedure. Therefore, the administrative procedure law should be improved through legislation.
In the opinions of the Criminal Procedure Law, the Civil Procedure Law and the Administrative Procedure Law, it has been clearly stipulated that the court of first instance should form a collegiate bench after remanding for retrial, but there is no provision on how to form a collegiate bench for cases where one party still refuses to accept the judgment of first instance and enters the second instance. Paragraph 3 of Article 31 of the Supreme People's Court's Interpretation on Several Issues Concerning the Implementation of the Criminal Procedure Law of People's Republic of China (PRC) stipulates that members of the collegial panel who participate in the trial of this case in one trial procedure shall not participate in the trial of other procedures in this case. This provision is consistent with Article 3 of the Challenge Clause of the Supreme Court. The above provisions include the single judge or juror who has participated in the trial of a case into the situation that needs to be avoided when the case enters other procedures, that is to say, after the end of one trial procedure, when the case enters other procedures again, a collegial panel shall be formed for retrial. The so-called trial procedure refers to the litigation process from the date when the parties file a lawsuit or appeal or the superior court decides to retry the case at a lower court to the date when this judgment is made. Some people think that a case is still the same case after retrial and appeal, and the same second instance procedure is still applicable, and there is no need to change the members of the collegial panel; Others think that remanding for retrial is only procedural and does not involve substantive treatment. After the appeal, it should still be tried by the same undertaker or the same collegial panel. The author believes that the above two views are contrary to the provisions of the Supreme Court on withdrawing the lawsuit. Theoretically speaking, when a judge has participated in the trial of a case, such as the judge of second instance has participated in the trial of a case, and the case is sent back for retrial after deliberation by the collegial panel, no matter which party refuses to accept the new judgment after retrial, if the original judge of second instance still participates in the trial after appeal, it is easy to have a preconceived idea, that is, the mindset is not conducive to the correct handling of the case. Therefore, cases remanded for retrial and appeal should be tried by the collegial panel. It is suggested that when revising the three major procedural laws, "cases sent back for retrial and appeal should be tried by a collegial panel".
(two) the decision-making power of the person who needs to be avoided.
The provisions of the three major procedural laws on who decides to withdraw a judge are the same, that is, the withdrawal of the president as the presiding judge is decided by the judicial Committee; The withdrawal of other judges is decided by the president. However, there are different regulations on who decides to withdraw the clerk, translator and expert witness.
The Criminal Procedure Law stipulates that the provisions on the withdrawal of judges also apply to clerks, translators and appraisers. That is to say, in the trial stage, the withdrawal of clerks, translators and appraisers is decided by the president, while both the Civil Procedure Law and the Administrative Procedure Law stipulate that the withdrawal of judges is decided by the president; The withdrawal of other personnel shall be decided by the presiding judge. Since the clerk is not a judge, according to the provisions of the Civil Procedure Law and the Administrative Procedure Law, the withdrawal of the clerk is decided by the presiding judge.
The author believes that in judicial practice, the clerk is engaged in the work of truthfully recording the court trial activities and making other transcripts, and the judge takes the transcripts made by the clerk as the basis for identifying the facts of the case and putting forward the handling opinions. Therefore, the work of the clerk is as important as that of the judge, and besides the speed recorder, the clerk himself is the court staff. Therefore, the clerk and the judge should treat the challenge equally. As a court,
For translators, appraisers and inspectors, their job is only to provide evidence services for trial activities, so their behavior is different from that of clerks. If it belongs to the court judge himself, the provisions on the withdrawal of judges shall apply; If they are not members of the court, their withdrawal shall be decided by the presiding judge.
In view of the different provisions of the three major procedural laws on the withdrawal of judges and clerks, translators, appraisers and inspectors, the author suggests that the three major procedural laws be revised in a unified way: "The withdrawal of judges and clerks is decided by the president; The withdrawal of other personnel is decided by the presiding judge. "
(3) Reconsideration of the application for withdrawal
The three major procedural laws only stipulate that if an applicant refuses to accept the decision to reject the application for withdrawal, he may apply for reconsideration after receiving the decision. The administrative procedure law does not stipulate the number of times of reconsideration, and the implementation opinions of the Criminal Procedure Law, the Civil Procedure Law and the Administrative Procedure Law stipulate that you can apply for reconsideration once. The Civil Procedure Law and the Implementation Opinions of the Administrative Procedure Law also stipulate that the reconsideration decision shall be made within 3 days. As for who makes the reconsideration decision, there is no clear stipulation in the three major procedural laws. The author believes that the three major procedural laws should specify the number of applications for reconsideration and who will make the reconsideration decision within a long time.
Three. Provisions on the time limit for trial
The Criminal Procedure Law stipulates that "a case to which summary procedure applies shall be concluded (pronounced) within 20 days after acceptance; Cases of second instance and cases tried by ordinary procedures shall be closed within one month after acceptance, and no later than one and a half months. " The rule that a case should be concluded (pronounced) within one month has expired because there is no corresponding legal restraint mechanism. In practice, it is generally believed that the case can be closed within one and a half months, and it is not necessary to divide the trial period of one and a half months into two stages. Therefore, it is appropriate to delete the provision that "the case shall be concluded (pronounced) within one month after acceptance".
According to the provisions of the Civil Procedure Law, cases applying summary procedure should be concluded within three months from the date of filing, and cases applying special procedure should be concluded within 30 days from the date of filing or after the expiration of the announcement. Cases of first instance that are tried by ordinary procedures shall be concluded within six months from the date of filing the case. A case of second instance that refuses to accept the judgment of first instance shall be concluded within three months from the date of filing the case; A case of second instance that refuses to accept the ruling of first instance shall make a final ruling within 30 days from the date of filing the case.
Article 57 of the Administrative Procedure Law stipulates that the people's court shall make a judgment of first instance within three months from the date of filing the case. For cases of second instance, it is stipulated that the final judgment shall be made within two months from the date of receiving the appeal.
Based on the above three procedural laws, we can see that the civil procedural law has the longest trial period, followed by the administrative procedural law and the criminal procedural law has the shortest trial period. By comparison, the author thinks that the time limit stipulated in the Administrative Procedure Law is reasonable.
As far as criminal proceedings are concerned, due to the grim social security situation, the number of criminal offences is increasing year by year, and large-scale cases such as joint crimes and high-intelligence crimes are on the rise. It is difficult to conclude such a major and complicated case within the trial period stipulated in the Criminal Procedure Law. If you apply for extending the probation period at will, it will inevitably increase the burden on the examination and approval department. Therefore, it is suggested to extend the trial period of criminal proceedings appropriately.
The civil procedure law has a long trial period for cases judged by ordinary procedures, which makes the cases that should be concluded in time unresolved for a long time, and it is difficult for the parties to get rid of the litigation, which consumes too much time and energy, which is not conducive to the parties to devote themselves wholeheartedly to their work. As far as the whole society is concerned, due to the development of social productive forces and the acceleration of the pace of life, the time required for some civil litigation activities has been greatly shortened. In fact, long-term litigation has hindered the increase of social wealth and increased the cost of social litigation, which is not suitable for the rapid development of modern society. Therefore, it is necessary to shorten the trial period of civil litigation.
The author suggests that criminal proceedings that apply summary procedure should be concluded within 30 days, and cases of second instance that decide to appeal should be concluded within 30 days; Cases tried in the ordinary procedure of first instance and cases of second instance against the judgment shall be concluded within 60 days. When the summary procedure is applied, the civil litigation shall be concluded within 60 days, and the cases applying the special procedure shall be concluded within 30 days; Cases of first instance and cases of second instance that are tried by ordinary procedures shall be concluded within 90 days for appeals against the verdict, and within 30 days for cases of second instance against the verdict. The trial period of first-instance and second-instance judgments stipulated in the Administrative Procedure Law shall not be changed. If it is necessary to increase the summary procedure, the trial period shall be concluded within 60 days. There is no provision in the Administrative Procedure Law for cases of second instance in which the ruling is appealed. It is suggested that the case of second instance appealing against the ruling should be concluded within 30 days.
The three major procedural laws all stipulate the extension of the trial period. If the criminal procedure law stipulates that the case cannot be closed within the trial period, it may be extended for one month with the approval or decision of the Higher People's Court. If the civil procedure law stipulates that a case of first instance cannot be closed during the trial, it may be extended for six months with the approval of the president of the court. If it needs to be extended, it shall be reported to the higher court for approval; For cases of second instance, the Civil Procedure Law only stipulates that the extension of the trial period shall be approved by the president of our hospital, and there is no provision for how long. The Administrative Procedure Law only stipulates that the courts below the Higher People's Court shall extend the trial period with the approval of the Higher People's Court, and the Higher People's Court shall extend the trial period with the approval of the Supreme People's Court, without specifying how long. Comparatively speaking, it is more serious and scientific for the Higher People's Court to approve or decide that the courts at all levels below the superior court apply for extending the trial period. It can effectively prevent the president of the court at the same level from abusing his power to extend the trial period and urge the judge to close the case as soon as possible.
In view of the fact that the extension period stipulated in the Civil Procedure Law is too long, which easily leads to the accumulation of cases, and the Administrative Procedure Law does not stipulate the number of times to extend the trial period, it is necessary to make the following provisions on the extension of the trial period in the three major procedural laws: the trial period shall not be extended for cases that are tried by summary procedure; Cases tried by other procedures may be extended for 30 days with the approval of the Higher People's Court if there are special circumstances that need to be extended; If the case tried by the Higher People's Court needs to be extended, it may be extended for 30 days with the approval of the Supreme People's Court. Under no circumstances shall the probation period be extended again.
Four. Comparison of appeal channels and time limits
The Criminal Procedure Law stipulates that the appellant may appeal through the court of first instance or directly to the court of second instance. If the appellant appeals through a higher court, the court of second instance shall submit the appeal to the court of first instance and send it to the people's procuratorate at the same level and the other party within three days. According to the civil procedure law, the appeal should be filed through the people's court of first instance. If the parties directly appeal to the people's court of second instance, the people's court of second instance shall submit the appeal to the court of first instance within five days. "Administrative Procedure Law" and "Opinions on the Implementation of Administrative Procedure Law" have not made clear provisions on this.
The author believes that with the development of modern communication technology and the acceleration of transportation, directly appealing to the court of second instance will not prolong the delivery time, but will shorten the time from the time when the parties complain to the court of second instance, and prevent the case undertaker of first instance from delaying the transfer of case files to the court of second instance because of prejudice against the parties' complaints. Therefore, we should implement the litigation system of directly appealing to the court of second instance and cancel the way of appealing through the court of first instance. In view of the restriction of the personal freedom of the defendant in criminal cases, the parties to criminal cases may be allowed to appeal through the court of first instance. For civil and administrative litigation cases, it should be stipulated to appeal directly to the court of second instance. The specific operating rules of the appeal are as follows: When the court of first instance serves the judgment document, it also issues the People's Court Service Judgment (Ruling) to the parties, which shall indicate the service time of the judgment document and affix the seal of the people's court. If a party appeals to a higher people's court within the statutory time limit, it shall provide copies according to the number of the other party. The court of second instance shall confirm whether the appeal period has expired with the judgment (ruling) delivered by the people's court to the court of first instance. If an appeal is filed immediately within the statutory time limit, the court of second instance shall directly collect the legal fees; if it fails to pay the legal fees within the prescribed time limit, it shall automatically withdraw the appeal. After receiving the appeal, the court of second instance shall promptly send a copy of the appeal to the court of first instance, which shall serve it on the appellee within a specified time. After serving a copy of the appeal, the court of first instance shall submit all the case files to the court of second instance within a specified time, and the court of second instance shall hear the case according to the procedure of second instance.
With regard to the time limit for appeal, both the Civil Procedure Law and the Administrative Procedure Law stipulate that the time limit for appeal against the judgment is 15 days, the time limit for appeal against the ruling is 10 days, and the time limit for appeal against the ruling is 10 days.
During the appeal period of 10 stipulated in the Criminal Procedure Law, if the victim and his legal representative request the procuratorial organ to protest, they shall submit it to the procuratorial organ within 5 days after receiving the judgment, and the procuratorial organ shall make a decision on whether to protest within 5 days after receiving the protest request. Since the procuratorate can also protest against the ruling, if the victim and his legal representative request the procuratorate to protest against the ruling of the first instance, it will be difficult to complete a lot of work within the five-day appeal period. In view of this, the author believes that it is necessary to extend the appeal period of criminal cases in order to ensure that the parties fully enjoy the right of appeal and that the people's procuratorate has enough time to study whether to make a protest decision against the judgment or ruling. It is suggested that in the revision of the Criminal Procedure Law, the appeal period against the judgment should be 15 days, and the appeal period against the judgment should be extended accordingly, and the appeal period against the judgment should be 10 days to reflect the consistency of the three procedural laws. As far as the procuratorial organ is concerned, after the extension of the appeal period, if the victim and his legal representative request the procuratorial organ to protest against the judgment of first instance within 5 days after receiving the judgment, the procuratorial organ may have 10 days to study and decide whether to protest, so as to ensure adequate preparation and avoid making a hasty decision.
Verb (abbreviation of verb) The name of the legal document when the judgment of the first instance is upheld in the second instance.
Both the Civil Procedure Law and the Administrative Procedure Law adopt the form of written judgment when rejecting the appeal and upholding the original judgment, while the Criminal Procedure Law stipulates that the form of written judgment is adopted when rejecting the appeal and upholding the original judgment. It is also the conclusion of upholding the judgment. Why are the provisions of the Criminal Procedure Law different from those of the Civil Procedure Law and the Administrative Procedure Law? Some people think that the reason why the Criminal Procedure Law is upheld by ruling is that the substantive handling of the upheld cases has not changed, which is only a procedural issue. In my opinion, all rulings upholding the first-instance judgment of criminal cases contain legal language formatted as "ascertaining the facts clearly and sentencing appropriately". To judge whether the facts are clear, we must pass the trial to reach a conclusion. Therefore, even if the conclusion of maintenance is reached, the entity still needs review and trial. Therefore, it is unscientific to maintain the format of the original judgment by making a ruling on the settlement procedure, and it is more serious to maintain the original judgment in the form of a judgment.
Both the Criminal Procedure Law and the Civil Procedure Law stipulate that the judgments and rulings of the second instance and the Supreme People's Court are final. The Civil Procedure Law also specifically stipulates that the people's court shall make a final ruling within 30 days from the date of filing the case in the second instance. The administrative procedure law does not make clear provisions like the criminal procedure law and the civil procedure law.
Since the ruling of the second instance is final, it is natural to write "This ruling is final" after the conclusion of the ruling. This sentence did not exist in the previous style of criminal litigation documents, because at that time, some people thought that after the new judgment was made in the first instance, the parties would appeal and the trial would continue, so it was not appropriate to write "this ruling is final." At present, there is a legal term "this ruling is final" in the writing format of the ruling, but because there is no new style of civil ruling, there is still no legal term "this ruling is final" behind the conclusion of the civil ruling.
Should the appellant's appeal be rejected or upheld? The three major procedural laws provide for the dismissal of appeals. The author believes that the right of appeal is the right of the parties, and no unit or individual may illegally deprive it. After the appellant's appeal was heard by the court of second instance, the appellant's appeal behavior has been recognized, the appellant's right to appeal has been guaranteed, and the court of second instance will not reject it. As for whether the appellant can win the case, it belongs to the category of substantive treatment. The dismissal of appeal stipulated in the three major procedural laws actually rejects the appellant's appeal request, not the right of appeal itself. Therefore, the three major procedural laws should change the rejection of appeal to the rejection of appeal request to eliminate ambiguity.
6. Comparison of some languages in the three major procedural laws
1. In the description of the starting time of the time limit, both the Criminal Procedure Law and the Civil Procedure Law stipulate that the starting time and date of the period are not counted in the time limit. Therefore, the Civil Procedure Law stipulates that the starting time of an act within a certain day (month) from the date of occurrence shall be counted from the next day. If it is stipulated, if a party refuses to accept the judgment of first instance of the local people's courts at all levels, he has the right to appeal to the people's court at the next higher level within 15 days from the date when the judgment is served. The same regulations do not necessarily have the same description. What is inconsistent with the description of the starting time of the appeal period in the Civil Procedure Law is the Criminal Procedure Law, which stipulates that the starting time of the appeal period is "the day after receiving the judgment or ruling". This rule is purely redundant.
In the description of the starting time of the trial period, the criminal procedure law takes "after acceptance" as the starting time of the trial period, and the civil procedure law stipulates that it should be counted from the date of filing the case. The Administrative Procedure Law also stipulates that the case of first instance shall be counted from the date of filing, and the trial period of second instance shall be counted from the date of receiving the appeal.
The differences in legal language between the three procedural laws on the starting time during the trial show that China's legislative technology needs to be further improved. Article 8 of the Supreme People's Court's "Several Provisions on Strictly Implementing the System of Time Limit for Trial of Cases" makes a unified provision: "The time limit for trial of cases is calculated from the day after the case is filed." Because there is a stipulation that the time and date of the beginning of the period are not counted in the period, it is not necessary to say that it is counted from the day after the case is filed, and it can be directly stipulated that the trial period of the case is counted from the date of filing. As for the determination of the date of filing a case, the Civil Procedure Law stipulates that the case should be filed or ruled inadmissible within 7 days after receiving the complaint. It can be seen that in the provisions of the Civil Procedure Law, the date of filing and the date of acceptance are actually the same thing.
The author believes that the cause of action comes from the active prosecution of the parties, so we should establish the concept of "there must be a case when there is a complaint" and reduce the authoritarianism of the people's courts. For those who fail to meet the conditions for prosecution after examination or trial, the prosecution is ruled to be rejected, thus canceling the "inadmissibility" ruling that harms the interests of prosecutors under authoritarian conditions, and completely solving the problem of not filing a case and appealing without evidence.
2. On the question of what conclusion should be made at the end of the trial, the criminal procedure law uses the word "sentence" in the first instance procedure and "conclusion" in the summary procedure and the second instance; The civil procedure law uses the word "concluded" in both the first instance and the second instance; The administrative procedure law uses the "judgment of first instance" in the first instance and the "final judgment" in the second instance.
After a case is examined or tried, only two conclusions can be drawn: ruling and judgment, referred to as referee. Therefore, in the three major procedural laws, the legal language and characters used in case review and trial results should be unified and standardized, and "make a judgment of first instance" or "make a judgment of second instance" or stipulate that "it should be concluded within a certain date".
Article 57 of the Administrative Procedure Law stipulates that the people's court shall make a judgment of first instance within three months from the date of filing the case. For cases of second instance, the Administrative Procedure Law stipulates that "the final judgment shall be made within two months from the date of receiving the appeal", but Article 58 of the Law stipulates that if a party refuses to accept the ruling of first instance, he may appeal. Ignoring the judicial principle that the ruling should be applied to the appeal against the ruling. If we use the word "make a judgment" uniformly, we can avoid inconsistency and neglect of one thing at a time.
3. Retrial and retrial
The word "retrial" is used in the second instance procedure and trial supervision procedure of the Criminal Procedure Law, and the words "retrial" and "arraignment" are also used in the trial supervision procedure. It can be seen from its provisions that "retrial" in the procedure of trial supervision includes "arraignment" and "retrial". The Civil Procedure Law uses the words "retrial" and "arraignment" in the procedure of trial supervision, but does not use the word "retrial". The provisions of the Administrative Procedure Law are the same as those of the Civil Procedure Law.
The word "retrial" in the trial supervision procedure stipulated in the Civil Procedure Law broadly includes the arraignment of the superior court, and narrowly refers to the retrial of the court that made the original judgment.
4. Trial and trial
The Criminal Procedure Law calls the litigation activities of the people's courts trials or trials, while the Civil Procedure Law and the Administrative Procedure Law call them trials.
The Criminal Procedure Law uses "trial" and "trial" in different articles, of which the word "trial" is the most commonly used. Judging from the language environment in which these two words are used, the word "trial" focuses on the process of litigation activities, and the word "trial" pursues the result of litigation activities, that is, making a judgment or ruling.
The word "trial" is used in the Civil Procedure Law and the Administrative Procedure Law respectively.
In order to show the people's court's respect for the proceedings, it is suggested that the word "trial" be used instead of the word "trial".