Zhu is a full-time member of the Audit Committee.
(20 14 June 12)
Clerk is an important part of the people's court team. Under the new situation that the trial task of the court is increasingly heavy, the judge with heavy burden is of course important, but the position of the clerk is equally important and cannot be underestimated. Any link of court trial work can not be separated from the participation of clerks. It can be said that the quality and work quality of the clerk directly affect the quality of the case. Below, according to the requirements of the new situation of the current trial work for the clerk's work, combined with my experience in the clerk's work, I will study and discuss with you how to do the clerk's work well.
First, shop assistants should have good professional ethics.
The Supreme People's Court [Fa Fa (2003) 18] Article 3 of the Measures for the Administration of People's Court Clerks (Trial) stipulates the necessary conditions for being a clerk: 1, with China nationality; 2. Support the Constitution of People's Republic of China (PRC); 3. Good health, at least 18 years old; 4. Have good political and professional qualities; 5. Have a college degree or above. If it is really difficult to apply for the academic qualifications stipulated in Article 5, with the approval of the Higher People's Court, the academic qualifications will be relaxed to senior middle schools and technical secondary schools within a certain period of time. Article 4 stipulates that the following persons shall not serve as clerks: 1, who have been criminally punished for crimes; 2. Being expelled from public office; 3, suspected of violating the law and discipline is under review, has not yet reached a conclusion. At the same time, Article 10 of the Measures also stipulates the dissolution of the employment contract of the appointment clerk: 1, which seriously violates the relevant provisions on the administration of civil servants or the rules and regulations of the people's court; 2, serious dereliction of duty, corruption, causing great damage to fair justice; 3. Being investigated for criminal responsibility according to law; 4. Incompetence during the probation period; 5. Other circumstances in which the employment relationship should be dissolved according to laws and regulations. The above provisions make specific provisions on the identity, political quality, physical condition, education level, etc. of clerks, and also make clear provisions on the management of hiring clerks. It can be seen that the profession of clerks in people's courts is lofty and sacred, and not everyone can hold it. As a court clerk, you must have a good professional ethics.
Professional ethics is a special form of social morality, which reflects the general moral content to a certain extent, reflects the moral level and situation of the whole society, and is restricted by the moral level of the whole society. Professional ethics refers to professional ideals, attitudes, skills, discipline, conscience, honor, style and the resulting norms based on division of labor. Professional ethics is the sum of moral norms, moral sentiments and moral qualities that are closely related to people's professional activities and meet the requirements of professional characteristics. It is not only a requirement for the behavior of its own staff in professional activities, but also a moral responsibility and obligation of the profession to society. Different industries and occupations have different professional ethics. So what kind of good professional ethics should a court clerk have?
First, strengthen political, ideological and moral cultivation. Establish political awareness, support the party's leadership, safeguard judicial fairness and integrity, firmly establish a sense of fairness and integrity, stand the temptation, remain honest and indifferent to fame and fortune, respect and care for yourself, and consciously safeguard the seriousness and fairness of the law.
The second is to keep secrets. Establishing a sense of confidentiality is a professional ethics that a clerk must possess, because the clerk will always come into contact with trial secrets in the process of trial and participate in the whole process of trial, including the deliberation of the collegial panel and the discussion of the judicial Committee. If the clerk has a weak sense of confidentiality, places files at will, lends files or litigation materials to people who have no right to read them, and discloses relevant evidence materials, it will have extremely adverse effects on the handling of the case, and even cause serious consequences and damage the image of the court. At the same time, if words and deeds are inconsistent, talking about the trial work that should not be discussed on any occasion will also lead to the disclosure of trial secrets intentionally or unintentionally. Therefore, clerks are required to enhance their sense of confidentiality, always pay attention to their manners in the trial work, not to disclose the trial secrets to the parties or irrelevant personnel, not to talk about the trial work and people or things related to the trial work in public places, and not to inquire about the trial secrets unrelated to their own work.
The third is to abide by judicial etiquette. Judicial etiquette refers to the etiquette, ceremony, behavior attitude and way that the subject of judicial activities should abide by in judicial activities. Judicial etiquette has special significance in judicial activities. It is the external image of judicial activities, reflects the professional quality and civilization of clerks, and helps to improve judicial credibility and enhance the image of the court. At the same time, it can strengthen the sanctity of judicial activities and reflect the authority and dignity of the judiciary. If the clerk does whatever he wants in the trial, it will not only affect his own image, but also affect the image of the court, judicial authority and judicial justice. Abide by judicial etiquette includes the following contents:
1, civilized behavior, handsome. Civilized and polite manners can convey the information of judicial justice to the parties, so that they are convinced of the adjudication process and results.
2. Be polite to the parties and other participants. This not only reflects the personal quality of the clerk, but also reflects the civilized degree of judicial activities.
3. Abide by the rules of the court. The court is the main place for judicial activities, and all participants in court trials should abide by the discipline and rules of the court, and the clerk is no exception.
The fourth is modesty and self-confidence. The clerk should actively cooperate with the judge's work, be modest and prudent when receiving the parties, and do a good job as carefully as possible to calm the impatience of the parties. People should be honest and modest, study hard and strive to improve their overall quality. When dealing with problems, we should be confident, neither supercilious nor supercilious, adhere to principles, have good psychological quality, have a calm mind, and actively seek solutions to problems when encountering pressure and difficulties in our work.
Second, the duties of the clerk
Litigation is a complete activity process of a case from "acceptance" to "trial" and then to "execution", which is carried out according to law. In the whole litigation process, the clerk shoulders a very important task.
(a) the eight basic tasks of a clerk in litigation are:
First, assist the judge to do a good job in filing a case for review, carefully handle all kinds of procedures for accepting cases, and ensure the first level of litigation. The accuracy of filing a case directly affects the trial and handling results of the case. Filing a case for review, especially civil and administrative litigation cases, shall comply with the relevant provisions of the Civil Procedure Law and the Administrative Procedure Law. One is to examine the subject qualification of the original defendant, the other is to examine whether there is a clear claim, the third is to examine whether the claim and factual reasons are supported by basic evidence, the fourth is to examine whether the court has jurisdiction over the case, and the fifth is to examine whether the case is under the jurisdiction of the court. If the law stipulates that there is a clear time limit for prosecution, it is necessary to review whether it has exceeded the time limit for prosecution.
Second, make good preparations before the trial. After the case has been examined, once the trial is decided, the clerk must complete a lot of routine work before the trial according to law. Such as sending the defendant a notice of responding to the lawsuit, a notice of proof, a notice of litigation, a copy of the complaint, a court summons, etc. If the collegial panel is in session, it shall fill in the notice of the members of the collegial panel, and if the session is in public, it shall post the notice of the session. In terms of case facts, we should be familiar with the parties' claims, check the evidence provided by both parties, understand the basic case, and master the time, place, personnel, amount and special terms of the case, so as to understand the basic situation of the whole case. In addition, for cases with more complicated cases and more evidence, the clerk will also assist the judge to convene the parties to exchange evidence, organize cross-examination and determine the focus of the dispute before the trial. These pre-trial preparations are closely related to the trial and whether the trial case is legal, timely and smooth.
Third, the central link in the trial stage is the work in the trial. Before the court session, the clerk shall announce the court discipline and check the appearance of the parties and participants in the proceedings. It is most important to record all court trial activities completely and truly during the trial.
Fourth, post-trial work. This is the continuation of litigation activities after the court adjourns or adjourns. The clerk shall submit the transcript to the parties for reading and sign it without objection. Where it is changed due to writing errors or objections of the parties, it shall be sealed by the parties; Assist the judge to handle various affairs after the trial, sort out evidence materials and inquire about legal provisions. When the collegial panel deliberates a case, the clerk shall carefully record the collegial panel's deliberation and truthfully record the opinions of each collegial panel member. When difficult and complicated cases are submitted to the judicial committee for discussion, the clerk shall also make a detailed record of the discussion of the judicial committee. In addition, it is necessary to proofread the judgment documents.
Fifth, do a good job in sentencing and delivery. After the case is tried according to law, the judgment made according to law and the mediation book (ruling) presided over by mediation have legal effect, and the clerk shall assist the judges to announce the judgment and serve the mediation book (ruling).
Sixth, after the case is pronounced, if the parties refuse to accept the judgment, the procuratorate protests or the case needs to be reported to the higher court for review according to law, the clerk shall timely sort out the file and go through the formalities of transferring it to the higher court for trial.
Seventh, the last procedure in litigation-execution. This is also a key work. In addition to carefully handling the relevant execution procedures, the clerk should also actively assist the person subjected to execution to complete the execution task of the effective judgment document, make the execution record, distribute the execution funds and materials, and sort out the files.
Eighth, filing, binding and filing of litigation documents. In this way, all litigation activities in a case are over.
(2) Handling other work matters.
"Other matters related to litigation" include: carrying all relevant case materials and litigation documents when going out to handle cases; Receiving and handling letters and visits from the masses; Judicial statistics; Internet access to legal documents; Background management; Under the guidance of judges, handle minor criminal disputes and simple civil disputes, and investigate relatively simple case facts.
Third, how to do a good job as a clerk
To be a good court clerk, I think I must have the following qualities. That is, one spirit, two psychological qualities, three abilities and four consciousnesses.
A spirit is to have the spirit of hard work and dedication. As the saying goes, "Do what you do, love what you do, and specialize in what you do". Since you are a clerk, you should love your job and be dedicated. You must set a good position for yourself, love your job, obey the work arrangement of the party group, establish the spirit of not being afraid of hard work and being willing to contribute, regardless of personal gains and losses, be willing to be a supporting role, work hard and work hard.
Two psychological qualities: First, when working hard, when encountering pressure or difficulties, we should adjust our mentality, have an open mind and treat them with a normal mind. Don't be anxious, don't be full of grievances, and don't even be full of complaints and unbalanced mentality. Second, when encountering unexpected events at work, we should be calm, calm and calm, have confidence in handling problems, and actively cooperate with judicial (executive) personnel to flexibly and steadily control and handle the situation.
Three abilities:
First, be good at learning. On the one hand, it is to strengthen the study of political theory and establish correct political concepts to guide the work. In the trial, we should maintain a neutral attitude, establish a sense of justice, and ensure that the trial records are objective and true, without personal feelings. Although the clerk doesn't directly hear the case, the transcripts made are the basis for deciding the case, so whether the transcripts are objective and true directly affects the final judgment of the case. Therefore, we should have good ideology and morality. On the other hand, strengthen the study of legal knowledge. Only by mastering legal knowledge and understanding legal terminology can we ensure that the records are "fast, accurate, complete and detailed" and provide reliable first-hand materials for the judge's correct judgment. At the same time, the clerk should consult the old comrades around him with an open mind, take the business backbone around him as an example, learn by doing, be diligent in hands and feet, and be diligent in asking questions, researching and thinking when encountering problems. At the same time, we should learn the local language and be familiar with it.
Second, we should have the comprehensive ability of language and writing. Recording is a science. If you want to do this job well, you must first record it, you can't lose your original intention, and you can't choose at will. On this basis, we should strive to be concise in language and fluent in arts and sciences. Clerks should have the ability to distinguish the key points of speeches and summarize them highly. During the trial, due to the different cultural qualities of the parties, some parties often state the facts incoherently, which depends on the clerk to refine and master the key records. Therefore, it is required that the clerk must strengthen the cultivation of writing skills and improve the ability of written expression and analysis and generalization.
Third, we should have the ability of shorthand and quick record. This is the basic skill and the most important skill of a clerk. Specifically, I think to meet the requirements of four words, that is, "fast, accurate, complete and detailed." First, be quick. The clerk must record quickly and have the ability of continuous memory. Second, be accurate. The memory is accurate and can accurately reflect the trial process of the case. Three must be all. Whether interrogation or investigation, records should fully reflect the whole work process and everyone's dynamics. We should be loyal to the original appearance, and at the same time pay attention to flexibility. You must never remember what you shouldn't remember. The record should be complete, and all the details of the case should not be omitted, and the joys and sorrows should be recorded. Fourth, be careful. The clerk should work hard, especially the data and time involved must be written accurately, and there must be no typos or other words in the transcript.
Four kinds of consciousness:
First, we should have the consciousness of active service. The most basic job requirement for clerks is to have a sense of service. First, we should take the initiative, not delay, and actively serve the trial work. The second is to work closely with the judges and do their job well. Whether the cooperation between the clerk and the judge is harmonious directly affects the quality and efficiency of the trial. Judges' judgments are all written according to court transcripts. If the record is not good, the judgment will not be written well. If the record is wrong, it will lead to wrong judgment and the consequences will be very serious. Delivery is also important. If it is not delivered in time or illegally, it will lead to the inability to hold a court session or the illegal trial procedure, which will greatly reduce the quality and efficiency of handling cases. Third, after the case is tried, the file should be sorted out in time. As the last link, we must pay enough attention to the file, because the file is related to the image of the court. The final result of a case is to form a file, which is the result of our labor. Others see the quality of your case through this file. Moreover, files should be archived for decades, and even some files should be permanently preserved to form historical files. Therefore, the arrangement and filing of documents should not be sloppy: these daily tasks require clerks to have a sense of active service in order to be successfully completed.
Second, we must innovate. Establishing innovation consciousness refers to the innovation of working ideas and methods, not the innovation that violates legal procedures and work requirements, but the innovation aimed at streamlining unnecessary work procedures and improving work efficiency. Therefore, we are required to strengthen the study of laws and regulations and constantly update our knowledge. Second, we should constantly sum up work experience and guide specific work. Third, we should be good at learning the strengths of other people's works and supplementing our own shortcomings. Fourth, we should seek flexible and diverse working methods to improve work efficiency.
Third, we must have a sense of confidentiality. In the trial work, the clerk will always be exposed to the whole process of handling cases, including the collegial panel's evaluation of cases and the judicial Committee's discussion of cases, as well as many personal privacy, business secrets or state secrets. If the clerk does not have a strong sense of confidentiality, he will place the case files at will, lend the case files or litigation materials to people who have no right to read them, and talk about the facts of the case or the handling results where he should not talk about the case. Before the case handling results are issued, the handling opinions will be made public to the parties or litigation agents. Once these trial secrets are leaked, it will bring adverse effects to others and the trial work, and even cause serious consequences and damage the image of the court. Therefore, the clerk is required to enhance the sense of confidentiality, attach great importance to confidentiality and properly keep the archival materials. At the same time, be careful what you say, don't say what you shouldn't say, don't ask what you shouldn't ask, and don't disclose trial secrets to the parties or other irrelevant personnel.
Fourth, have a sense of responsibility. Although the clerk is not responsible for the judgment of the case, the quality of his work is closely related to the quality and efficiency of the case. For example, if the time or place of the summons is wrong, it will lead to the failure to hold the court session as scheduled, and even bring trouble at work. Failure to deliver it in time will lead to illegal procedures, which will also make it difficult for judges to make judgments and affect the legitimate rights and interests of the parties. Especially now, courts at all levels are paying close attention to quality and benefit evaluation. If the work is not in place, it will affect the next step. Therefore, as a clerk, we must have a sense of responsibility in our work, be careful and meticulous, not careless, not careless, and not casually lose our tasks.
Four, the people's court commonly used transcripts and production requirements
The transcripts commonly used by people's courts in handling cases include: hearing, inquiry (interrogation), investigation, collegiate bench review, case discussion by judicial committees, on-site inspection, evidence exchange, seizure and seizure, mediation, sentencing, acceptance and execution, etc. Focus on understanding the requirements of making transcripts such as trial, collegial panel review, discussion by judicial committees, mediation and execution.
(1) transcripts of court hearings. It is a written record of the whole trial process made by the clerk when the people's court hears various cases according to law.
Specific production requirements:
1. At the stage of announcing the court session, the following contents shall be recorded: the time and place of the court session, the announcement of the court discipline, the presiding judge (or sole judge) checking the parties, the announcement of the cause of action, the announcement of the members of the collegial panel (sole judge) and the clerk, and other participants in the proceedings, informing the parties of their litigation rights and obligations, and asking whether the parties apply for withdrawal.
2. In the stage of court investigation, we should pay attention to: ① the plaintiff's claim; (2) the defendant's defense; ③ Supplementary statements by both parties; (4) The judge further inquired about the relevant facts of the case and verified the situation.
3. In the stage of court cross-examination, it should be recorded: the process of proof and cross-examination by both parties, including the name of the evidence provided by both parties and the matters to be proved, and the cross-examination opinions of the other party on the evidence.
4. The judge summarizes the facts of the case and the focus of the dispute stage, and remembers the focus of the case dispute.
5. In the stage of court debate, we should pay attention to: ① the arguments made by the plaintiff and the litigation agent; (2) Debate opinions expressed by the defendant and his agent ad litem; (3) Arguments or defenses made by the third party and its agents ad litem; (4) New ideas of mutual debate.
6. In the final statement stage, it is necessary to record the final statement of the parties.
7. In the court mediation stage, attention should be paid to clearly stating the mediation opinions put forward by the parties. If a mediation agreement can be reached, the contents of the agreement should be clearly stated. If no agreement can be reached, it shall be stated that the court will no longer preside over mediation or suggest that the parties consider it before conducting mediation.
8. When announcing the "adjournment" or "closure" stage, it shall be clearly stated that the parties have the right to consult the court record and apply for correction within the specified time, as well as the requirements for the parties to sign the court record.
In addition, in the transcript, it is necessary to remember who is a member of the collegial panel and who is the party or agent.
(2) The record of collegial panel deliberation. It is a written record of the specific contents and comments of the discussion, the ruling on related matters, the determination of the facts of the whole case, the application of the law and the opinions on handling when the clerk discusses the case in the collegiate bench.
Specific production requirements:
1, time, place, members of the collegial panel, clerks, and examination of the xx case (or event) are the most basic requirements.
2, the trial and review of cases must be conducted by the same collegial panel.
3. The case undertaker introduces the case. Names of the parties, causes of action, arguments of the parties, evidence provided by both parties to support their claims, what evidence the undertaker thinks is admissible after cross-examination in court, and what are the reasons, and the reasons shall also be stated for the evidence that is inadmissible; According to the defense opinions and the evidence adopted, the facts that the undertaker thinks can be identified, and the legal basis for how to deal with them.
4. Record the speeches of other members of the collegial panel in detail.
(1) Opinions on the evidence provided by the parties. What evidence is admissible and justified, what evidence is inadmissible and justified, and what evidence is the final basis?
(2) opinions on the determination of the facts of the case. According to the accepted evidence, we can determine the facts of the case and whether we can draw a conclusion based on the facts of the case.
③ How to determine the nature and legal basis of the case.
(4) the specific treatment opinions, "agree" and "disagree" should explain the reasons.
5. Record the evaluation results. After the undertaker and other members express their opinions, the presiding judge shall make a summary. Where opinions are unified, unified opinions are the evaluation results. In case of disagreement, according to the principle that the minority is subordinate to the majority, the majority opinion is the final evaluation result. According to the case, although most people agree that it needs to be reported to the Audit Committee for discussion, the discussion opinions of the Audit Committee are the final results, and the evaluation results should include four contents: fact finding, case characterization, applicable law and handling opinions. In addition to the opinions of the majority, the different opinions and reasons of the minority must also be recorded.
6. Tail requirements. The members of the collegial panel and the clerk shall sign the record.
(3) Records of cases discussed by the judicial committee.
The record of cases discussed by the judicial committee is a written record of discussions and decisions on important matters or difficult cases involving trial business submitted to the judicial committee for discussion.
Specific production requirements:
1, remember to discuss the name of "XXX incident" or "XXX case".
2, remember the source of the case and the basic situation of the case and the difficult questions raised by the collegial panel.
3. Write down the discussion process of the CRIC and the contents (main points) of the members' speeches.
4. Write down the matters resolved by the Audit Committee, including the confirmation of the facts and nature of the case, the commitment of responsibilities, the legal basis and the handling results. If you have different opinions, you should also record them truthfully.
5. The minutes of the meeting shall be signed by the members of the audit committee at the end.
(4) Mediation record. It is a written record of the mediation process and contents made by the clerk when the people's court mediates the civil part of a civil case, a criminal private prosecution case, a criminal incidental civil action case and an administrative case.
Specific production requirements:
1, the parties must follow the principle of voluntariness and shall not be forced.
2. The contents of the reached mediation agreement shall not violate the legal provisions, and shall not harm the interests of the state, the collective, the third party and the public.
3. The contents of the agreement shall be expressed in standard terms and comply with relevant laws and regulations.
4. After the mediation record is finished, both parties, judges and clerks shall sign and indicate the date of mediation. If the court invites relevant units or individuals to assist in mediation, the invited personnel shall also sign the record.
(5) Execution record. It is a written record of the people's court's compulsory execution of the property of the person subjected to execution, compulsory delivery of property, compulsory demolition of houses or withdrawal from land and demolition of buildings.
Specific production requirements:
The name, serial number, effective date and contents to be implemented of the legal documents on which 1. is based must be accurately and completely stated.
2. Reasons and methods for starting execution.
3. Implement objectives and measures.
4. In the process of execution, it is necessary to record truly and objectively, especially the unexpected circumstances in execution, such as the outsider's objection to execution and the person subjected to execution obstructing execution. , to record clearly in detail.
5. The final signature shall be signed by the executor, the recorder, the person subjected to execution and the person present.
6. If the person subjected to execution or the person present refuses to sign, it shall truthfully record the situation in the transcript.
The use of several other commonly used manuscripts;
Investigation record: it is a record used by the people's court to send personnel to investigate and collect evidence in order to find out the case, when the parties are unable to collect evidence by themselves for objective reasons or the people's court considers it necessary to hear the case.
Inquiry record: it is a written record used by the people's court to inquire about certain matters in order to further ascertain the facts of the case.
On-site inspection record: it is a record used by the people's court to record items related to the case or conduct on-site investigation and inspection when trying various cases.
Reception record: it is a record used by the people's court to record the problems or requirements encountered when receiving the parties (visitors).
Transcript of conversation: it is a written record used by the people's court to explain or communicate with the parties on certain matters.
Interrogation record: a record used by a judge to make a written record when interrogating a criminal defendant.
In short, no matter what kind of records you make, you must first record the time, place, judge (executor) and recorder; The second is to explain the identity of the judge and the clerk in the transcript and ask the parties to state the facts or reflect the problems realistically; Third, the record should be objective, true and detailed, highlighting the key contents; Fourth, if the rights of the parties are involved in accordance with the law, it must be clearly stated; Fifth, the judge, the clerk and the parties should sign at last, and those present should also sign.
Five, file sorting, filing problems
(1) Problems existing in the arrangement and filing of existing documents.
1. Incomplete collection of materials, such as lawyers and legal workers appearing in court as agents (defenders), no letter of appearance, the defendant being a company or other legal person, no registration information of relevant departments, the case being tried through procedures and no attachment of court announcement;
2. The documents filled in are incomplete, such as the court summons attached, which only writes the surnames of the judges and clerks, and the stub attached with the execution notice only writes the total amount of the execution target, with no itemized amount;
3. There are errors or missing words in the judgment document;
4. The binding order of materials is reversed;
5. The content and time of supplementary litigation documents do not conform to the procedural logic;
6, the file binding is not standardized, and the materials are not neat;
7. The file cover is untidy, the content is incomplete and there are typos. For example, there is no content in the column of the court of first instance, only the column of the first instance result of the divorce case is filled with "judgment" and the column of "procuratorate" is filled with "procuratorate".
(2) Problems that should be paid attention to in filing.
The general requirement is to arrange the litigation materials in the prescribed order according to the requirements of the Measures for Filing and Filing Litigation Documents in People's Courts and the Specification for Filing and Filing Litigation Documents in People's Courts promulgated by the Supreme People's Court and the National Archives Bureau. When filing according to the litigation files of our hospital, we should also pay special attention to the following specific issues:
1, be responsible, earnest, meticulous and timely;
2, to comprehensively collect relevant materials, repeated materials submitted by one person should be eliminated;
3. Fill in the completed legal documents in a standardized and complete way;
4. The relevant contents and time of supplementary legal documents must conform to the procedural logic in litigation;
5, document binding must be standardized, neat, binding orderly;
6. Be sure to separate the positive and negative volumes;
7. The cover should be neat, the handwriting should be neat, the content should be complete, and the evaluation and filing should be timely.
Ending of intransitive verbs
As a court clerk, one should be dedicated, willing to contribute and take the initiative to serve; Second, we should strengthen our study, be familiar with the law and improve our comprehensive skills; Third, we must abide by the trial discipline and keep the trial secret; Fourth, we should be loyal to the law on the premise of establishing the overall situation; Fifth, we must be strict with ourselves and be honest.
In short, we should constantly enrich ourselves, temper ourselves and grow up in the palace family.