1. How to take the judicial examination and who can take it.
As for the question of how to take the judicial examination and who can take it, in fact, the Measures have made provisions. Article 6 stipulates that "the national judicial examination is held once a year. The specific examination time will be announced to the public 3 months before the examination is held. " Chapter 4 stipulates the registration conditions. Among them, in the fourth item of Article 3 of Chapter 4, "meeting the academic qualifications and professional conditions stipulated in the Judges Law, the Public Prosecutor Law and the Lawyers Law" is one of the registration conditions. One of the necessary conditions for serving as a judge stipulated in Item 6 of Article 9 of the Judges Law is that "a college graduate majoring in law or a college graduate majoring in non-law has legal professional knowledge and has been engaged in legal profession for two years, among whom a judge serving as a higher people's court or the Supreme People's Court shall be engaged in legal work for three years; Master's degree or doctor's degree in law or master's degree or doctor's degree or doctor's degree in non-law has legal professional knowledge, and he has been engaged in legal profession for one year, among whom, he should be engaged in legal work for two years as a judge of the Higher People's Court and the Supreme People's Court. " One of the requirements for being a public prosecutor stipulated in Item 6 of Article 11 of the Public Prosecutor Law is that "a person who has graduated from an institution of higher learning with a bachelor's degree in law or a non-law major has legal professional knowledge and has been engaged in the legal profession for two years, among whom a person who is a prosecutor of a people's procuratorate of a province, autonomous region or municipality directly under the Central Government shall be engaged in legal work for three years; Master's degree or doctor's degree in law or master's degree or doctor's degree or doctor's degree in non-law has legal professional knowledge, and has been engaged in legal profession for one year. Among them, as a prosecutor of the people's procuratorate of a province, autonomous region or municipality directly under the Central Government, he should be engaged in legal work for two years. " Article 6 of the Lawyers Law stipulates that "a person who has a college degree or above in law in an institution of higher learning or an equivalent professional level, and a bachelor degree or above in other majors in an institution of higher learning, who has passed the lawyer qualification examination, shall be granted the lawyer qualification by the judicial administrative department of the State Council". Article 8 of the Lawyers Law stipulates that one of the conditions for applying for a lawyer's practice certificate is "practicing in a law firm for one year". Through the above provisions, we can find the following problems:
1. Item 6 of Article 9 of the Judges Law and Item 6 of Article 11 of the Prosecutors Law are one of the conditions for being a judge and a prosecutor. So, is this condition a condition for registration? Can those fourth-grade undergraduates and those who have just graduated without judicial practice experience apply for the exam?
2. Obviously, the Lawyers Law separates the conditions for registration from those for practice. The qualifications for registration are college degree or above in law or equivalent professional level in institutions of higher learning, and bachelor degree or above in other majors in institutions of higher learning. According to the registration conditions of the Lawyers Law, as long as you can apply for judges and prosecutors, you can definitely apply for lawyers, but the registration conditions that meet the requirements of the Lawyers Law do not meet the conditions for applying for judges and prosecutors. One of the original intentions of establishing a unified judicial examination system is "unification", which violates its original intention.
In fact, the conditions for applying for the judicial examination stipulated in Article 13 of the Measures are the same as those for applying for a lawyer before. This defeats the purpose of establishing the judicial examination system.
so how to solve the problem of how to take the exam and who can take it? In my opinion, to solve this problem, we must first make it clear that the legislative purpose of establishing the judicial examination system is to realize the elite selection of professional lawyers, find out the professional qualities that elite professional lawyers should have, what kind of people they should have, and how to test these people to measure these qualities. As Hamilton said, "there are many kinds of problems caused by human weaknesses, and the cases are vast. Only those who study hard for a long time can get a glimpse of them." Therefore, only a few people in society have enough legal knowledge to become qualified judges. " In addition, the legal profession is a highly practical profession, which requires the judiciary to turn abstract and abstruse laws into vivid, concrete and realistic precedents. This transformation from abstract to concrete, from written to individual cases depends to a great extent on the practical ability of the judiciary to implement and implement legal norms. In addition, judges are required to have rich judicial and social experience, excellent character and noble professional ethics, and extensive knowledge structure. In short, professional lawyers should be high-level, compound, applied and ethical legal professionals, and the judicial examination should be set as the most difficult examination to screen professional lawyers.
Obviously, it is not easy to comprehensively and accurately test the legal knowledge, ability, judicial experience and professional ethics that a professional lawyer should have through the examination, and it is not something that can be completed in one examination. It is undoubtedly impossible for a newly graduated undergraduate to talk about judicial experience and judicial professional ethics; If the judicial examination is not open to all those who study law and are interested in legal career, it will obviously lose social justice (such as a college law graduate) and ignore the actual national conditions. In our country, undergraduate education has not yet reached popularization, and it is currently in the transitional stage from elite to popularization. In addition, in addition to judges, prosecutors and lawyers, there are a large number of other occupations related to law in China, such as police, judicial administrators, forensic doctors, court clerks, clerks of procuratorates, legislative affairs offices of people's congresses, administrative series, legal affairs offices of financial systems such as banks and insurance, and legal advisory offices of companies and enterprises. Even civil servants should be administered according to law. If all professions related to law are compared to a pyramid, then judges, prosecutors and lawyers are the top of the tower, and the rest are the tower. Therefore, it is necessary to test both the tower top and the tower foundation. These two tests constitute a unified judicial examination. Designing the second exam is not my original creation. This is the case in Japan and Germany in the civil law system. Japan's Judicial Examination Law stipulates that the judicial examination is divided into two times. The first exam is held in October every year. The purpose of this exam is to judge whether you have the accomplishment to take the second exam and the degree of university graduation. Therefore, only those who pass the first exam can take the second exam. The second examination is centered on legal subjects, and its purpose is to judge whether those who want to become judges, prosecutors and lawyers have the necessary legal knowledge and application ability. Japan's judicial examination claims to be the most difficult in the country. Since 1878, Germany has implemented a national examination system integrating the qualifications of judges and lawyers, and at the same time, it has to undergo two national examinations before granting qualifications. The first national examination was conducted after three and a half years' study in university law major, and it was called the examination for obtaining the qualification of "trainee civil servant". Those who pass the first examination can obtain the qualification of "internship civil servant", but they cannot act as lawyers. If you are a lawyer, you still need to participate in two and a half years of internship (including lawyers, judges, prosecutors, companies, banks, etc.). After about 11 months of preparation, you will take the second national exam, which is called the exam for obtaining the qualification of "alternate civil servant". In particular, it should be pointed out that the judicial examination in Japan does not require academic qualifications, and all Japanese nationals can apply for it; German nationals can take the judicial examination after studying at university law school for more than seven semesters. Few people criticize the quality of professional lawyers in these two countries; On the contrary, the quality of contemporary legal professionals in Japan and Germany is well-known all over the world.
There are also scholars in China who are in favor of the two-test system. He Weifang, a professor at Peking University Law School, thinks that the whole examination should be divided into two parts, namely, the first examination focusing on the basic knowledge learned during the university period and the second examination focusing on the application of legal knowledge and technology to analyze and solve problems. Xia Lu of China Lawyers Examination Center once wrote that the law examination should be conducted in two times. The first examination mainly tests the theoretical basis of law. After passing the examination, he will participate in the internship according to the training plan formulated by the Ministry of Justice or the National Lawyers Association, and then take the second examination, which mainly focuses on the knowledge of legal practice. Only after passing the examination can he obtain the qualification as a practicing lawyer.
in addition, there are three reasons why the author advocates adopting the "two-examination system".
First, for the sake of examination skills and fairness. It is obviously unfair for a fourth-grade college student to examine his judicial practice ability and professional ethics compared with a law undergraduate with three years' judicial practice experience. The former is almost impossible to talk about judicial practice and experience and judicial professional ethics. In addition, it is not easy for proposers to test not only theoretical law, applied law and current legal provisions, but also legal practice and legal professional ethics. It is not easy to test a person's true level comprehensively and accurately.
Second, the "two-examination system" can also alleviate the immature operation of the current judicial examination system. The significance and influence of establishing the judicial examination system is undoubtedly far-reaching and enormous. However, due to the urgency, it must be implemented when all parties do not fully understand and prepare, so it seems to be rushed to fight. This can be seen from the extremely simple "Measures". It is more reasonable to take the first exam first, and then take the second exam after all parties have discussed and understood the judicial examination system thoroughly and fully prepared. Because the second exam is the final exam, which is the most crucial.
third, it is the requirement of the actual situation of judicial personnel at this stage. China has a vast territory and uneven development in various regions. Some courts and procuratorates in remote areas do not even have law undergraduates. If it is really necessary to appoint new judges and prosecutors in these areas, those who have passed the first examination can be appointed on the basis of the results of the first examination.
Therefore, the author suggests that the judicial examination should be implemented with the "two-examination system". The first test focuses on the basic principles of law, basic knowledge of law and existing legal provisions that candidates have learned. The first test questions are mainly objective and subjective. The conditions for applying for the first time are not limited by academic qualifications. This will encourage those who are self-taught in law. The second examination mainly tests the examinee's ability to engage in legal profession and professional ethics, taking into account the basic theory and knowledge of law. The test questions in the second exam should have both objective and subjective questions. The academic background and judicial practice experience of the second examination registration conditions are strictly limited to the conditions stipulated in Article 9, Item 6 of the Judges Law and Article 11, Item 6 of the Public Prosecutor Law.
2. Questions about what to take.
The reason why the author puts what to take after how to take the exam and who can take the exam is because only by determining the former can we solve the problem of the latter. At the same time, how to implement the two depends on what professional qualities a judge, prosecutor and lawyer should have. In fact, the "Measures" have been stipulated. Article 7 of the "Measures" stipulates that "the national judicial examination mainly tests the legal professional knowledge and the ability to engage in legal profession that candidates should have. The contents of the national judicial examination include: theoretical law, applied law, current legal provisions, legal practice and legal professional ethics. " In this regard, the author does not agree, so it is necessary to explain it theoretically and expand it. As the author said earlier, in order to realize the scientific judicial examination, we should first find out the knowledge level and ability and quality that judges, prosecutors and lawyers should have respectively, and then find out the similarities between them, focusing on testing their similarities and differences.
according to the provisions of the judges law, the public prosecutor law and the lawyers law, a judge can be regarded as a judge who exercises state judicial power according to law, and his main duty is to try, including civil, criminal and administrative cases, but also including filing, supervising and executing. A prosecutor is a procurator who exercises the procuratorial power of the state according to law. His main duties are to carry out legal supervision according to law, including conducting public prosecution on behalf of the state, investigating self-investigation cases, approving arrests and supervising the execution of judgments and rulings, etc., but his main job is to engage in criminal prosecution. Lawyers are practitioners who provide legal services to the society. Different from judges and prosecutors, their business scope includes both litigation business and non-litigation business. Its business scope involves not only criminal, civil, administrative and other legal issues in the judicial field, but also a large number of non-litigation financial, real estate, enterprise consulting, negotiation, intellectual property and other work. It can be said that from their responsibilities and business scope, lawyers, prosecutors and judges decrease in turn, but from the requirements of occupation and business, judges should be higher than prosecutors and prosecutors should be higher than lawyers in mastering the depth and application of legal knowledge. From the professional and professional roles, prosecutors mainly represent the interests of the state and the public; Lawyers mainly provide various legal services for others, and at the same time, they are paid, so they are more inclined to take into account the interests of the parties involved; Judges are mainly middle judges, only obeying the law, passive, neutral, independent, detached and rational, and the work of prosecutors and lawyers requires them to be proactive. The following author points out the professional qualities needed to do these three occupations well.
As far as a judge is concerned, to be a good judge, he must have at least these requirements. First, a deep level of legal professional knowledge. The second is professional ability. The study of any principle lies in its application. Law is a practical science, which combines human legal experience and legal experience, and technology is the prominent content. This technicality is mainly reflected in: (1) the ability to control and command the court; (2) Ability to analyze, identify and judge legal issues; (3) the ability to identify legal sources; (4) Ability of legal annotation and interpretation; (5) Legal logical reasoning and reasoning ability; (6) written language expression ability; (7) the ability to remedy legal loopholes and balance interests. The third is judicial experience. The fourth is professional ethics.
As far as prosecutors are concerned, to be a qualified prosecutor, they should have the following qualities. First, a solid legal foundation; Second, rich legal logical thinking ability; Third, quick response and adaptability; Fourth, strong ability to collect, judge and use evidence; Fifth, the overall ability to grasp the case; Sixth, stable psychological quality; Seventh, strong oral and written language expression ability; Eighth, rich procuratorial work experience; Nine is noble procuratorial professional ethics.
as far as lawyers are concerned, generally speaking, in order to do a good job as lawyers, they should not only have political and professional qualities, but also have professional experience and abide by professional ethics. As far as professional quality is concerned, first, lawyers should have rich legal knowledge, be familiar with relevant laws and regulations, and have a good grasp of the concepts, principles and systems of the basic department law; Second, good logical thinking ability and super error correction ability; Third, eloquence and certain adaptability; Fourth, the necessary writing level; Fifth, a lawyer should also be a sage, requiring him to have a broad knowledge structure including economy, science and technology, foreign languages, etc. Sixth, good interpersonal relationships. Finally, a lawyer should have a good appearance and demeanor.
from the above analysis, we can find that although judges, prosecutors and lawyers have different requirements on the scope and ability of their work, the breadth and depth of their knowledge, their occupations are all supported by the basic principles and knowledge of law, and they are required to master the existing laws and regulations skillfully, at the same time, they are required to have the ability to apply legal principles, summarize, analyze and judge the process of individual cases, and they are required to have good professional ethics.
It can be seen that, as pointed out above, the judicial examination should be twice, and the first examination mainly tests the breadth of the candidates' mastery of the basic principles of law, basic knowledge and laws and regulations.