Reprinted from: Frontiers of Chinese and Foreign Criminal Law Editor Recommended by Professor Chen Ruihua's latest masterpiece, through a review of the historical evolution of judicial administrative functions and a comparative law examination, it is proposed that judicial admini

Reprinted from: Frontiers of Chinese and Foreign Criminal Law

Editor's recommendation:

Professor Chen Ruihua's latest masterpiece, through the review of the historical evolution of judicial administrative functions and comparative law investigation, it is proposed that judicial administrative agencies should be positioned as managers of "macro judicial administrative affairs". To distinguish it from the "specialized judicial administrative affairs" exercised by courts, procuratorates and public security organs. Judicial administrative organs should have three major functions. Among them, the management function of the public legal service system is established to achieve the improvement of the unified legal service system; the execution function of the effective judgment of the court is established to build a unified criminal execution system and promote comprehensive changes in the civil and administrative execution system; the judicial system of is established to establish Guarantee function to solve problems such as the selection and training of legal practitioners, the management of people's jurors and people's supervisors, the affiliation of detention centers, the management of property involved in the case, and further changes in the judicial appraisal management system.

Functional positioning of judicial administrative organs

Author profile: Chen Ruihua, professor of the School of Law of Peking University, doctoral supervisor, and special professor of the Yangtze Scholar Award Program of the Ministry of Education.

Article source: "Eastern Methodology" 2018 No. 1 "Judicial Reform" column.

Summary

Judicial administrative system reform has been included in the framework of overall judicial reform, which is an inevitable development trend. In order to promote the reform of the judicial administrative system, the first thing to do is to accurately position the functions of the judicial administrative organs. Unlike the large-scale judicial administrative model of mainland law countries and the judicial administration and procuratorial business model of British, American and British law, my country's judicial administrative organs belong to a macro-judicial administrative management organ. Many "specialized judicial administrative affairs" under the supervision of the three agencies of the public security, procuratorial and judicial departments are gradually transforming into "macro judicial administrative affairs". These affairs can include unified legal service management functions, effective judicial execution functions, and judicial guarantee functions. In the future, there are expected significant changes in the scope and methods of the above functions by judicial administrative agencies.

Theme words: macro-judicial administrative affairs; specialized judicial administrative affairs; unified legal service system; effective judicial execution functions; judicial guarantee functions

1. Propose of problems

Since the launch of a new round of judicial system reform in 2014, a series of Judicial reform measures have been implemented one after another. In order to achieve the reform goals of "delocalization" and "deadministrative" of judicial affairs, reform decision makers have implemented a series of reform measures, including the transfer of people, finances and property of courts and procuratorates to the provincial unified management, judicial responsibility system, and post system. At the same time, in order to ensure the realization of the goal of judicial fairness, the reformers also proposed reform plans to separate judicial power from executive power, procuratorates file public interest litigation, and promote trial-centeredism. These innovative reform measures are all-round changes to my country's judicial system and have promoted positive changes in my country's judicial system.

However, by observing the implementation effect of this round of judicial system reform, it is not difficult to see that the areas with the most drastic changes are mainly limited to the "specialized judicial administrative affairs" of courts and procuratorial organs, while the legal relationship between the three public security, procuratorial and judicial organs did not occur. In substantial changes, the system of "dividing responsibilities, mutual cooperation, and mutual restraint" of the three agencies was not touched, and there was no sign of major changes in the field of "macro-level judicial administrative affairs". As a result, judicial administrative organs have not received attention in this round of reform and have even fallen into a marginalized situation.

Although the reform of the judicial administrative system has been intentionally or unintentionally ignored and ignored in the "top-level design" of judicial reform, the reform of the judicial administrative system has always been highly valued by the legal community in many years of academic discussions on judicial reform, and It is regarded as an indispensable and important part of my country's judicial system reform. Some reform measures that the legal community has been constantly calling for, such as transferring the detention center from the public security organ to the judicial administrative organs to the administrative organs for management , suggesting a unified criminal execution system, and the civil and administrative judgment execution rights are fully transferred to the judicial administrative organs for exercise, etc., etc. Major changes in the judicial administrative system.In the view of researchers, to make substantial promotion of judicial system reform and to re-adjust the legal relationship between the three agencies of public security, procuratorial and judicial departments, we must reposition the functions of judicial administrative agencies, so that those who have been proved inconvenient to do so by practice are not allowed to do so. All judicial administrative affairs managed by the three agencies of public security, procuratorial and judicial departments are transferred to judicial administrative departments for management. It can be said that researchers have placed great expectations on promoting the transformation of the legal relationship between the three agencies of public security, procuratorial and judicial organs by making readjustment.

The author intends to make a comprehensive investigation on the reform of the judicial administrative system from the standpoint of comprehensively promoting judicial system reform. If our discussion is not limited to the "top-level design" plan for the existing judicial system reform, but focuses on the substantive promotion of the next round of judicial system reform, then sooner or later, the reform of the judicial administrative system will be included in the reform decision makers. in the field of vision. The author will briefly review the evolution of judicial administrative functions since the founding of the People's Republic of China, so as to make a theoretical review of the functional positioning of judicial administrative agencies. On this basis, the author will analyze the unique functional positioning of my country's judicial administrative organs from the perspective of comparative law and determine it as a macro judicial administrative affairs management organ. Then, the author will determine several basic principles for promoting judicial administrative system reform based on the historical evolution of judicial administrative system reform and combined with the macro goals of my country's judicial system reform. Finally, under the premise of historical investigation and theoretical analysis, this article will put forward several macro-reform ideas for the reform of the judicial administration system.

2. Historical evolution of judicial administrative functions

As an organic part of my country's administrative organ system, judicial administrative organs were established with the founding of the People's Republic of China. However, since the early days of the founding of the People's Republic of China, with the continuous changes in my country's political system and judicial system, the functions of judicial administrative organs have also undergone corresponding adjustments. Even in the extraordinary historical period after 1959, the judicial administrative function was politically denied, and the judicial administrative organs disappeared for a time in our political system. It was not until 1979 that with the restoration of my country's political norm and the advancement of "socialist democracy and legal system construction", the establishment of judicial administrative organs was restored. Of course, from the history of the development of my country's judicial system, the abolition of judicial administrative organs is just a historical event that has occurred in 20 years. The judicial administrative organs that were restored and rebuilt in 1979 once continued the functional model of the early days of the founding of the People's Republic of China. However, since 1982, the functions of judicial administrative organs have begun to undergo substantial changes. According to the evolution of judicial administrative functions, my country's judicial administrative organs have generally gone through four stages of development, forming four institutional models: one is the "large judicial administrative model" in the early days of the founding of the People's Republic of China; the other is the "large judicial administrative model" after 1954 and after 1979 "Judicial Administration Model of Courts"; third is the "small judicial administration model" after 1982; fourth is the "mode expansion of judicial administration functions" after 2001. The following is a brief analysis of this.

(I) The "Great Judicial Administration Period" in the early days of the founding of the People's Republic of China

The so-called "Great Judicial Administration" is a functional model in which my country's judicial administrative organs fully control the judicial administrative affairs of courts and procuratorates in the early days of the founding of the People's Republic of China. According to this model, the judicial administrative organs are not only responsible for formulating judicial administrative policies and preside over lawyers, notarizations, prison administration, legal publicity and other work, but also responsible for the organizational setting, personnel establishment, cadre appointment, judicial funds, and judicial personnel of courts and procuratorates. Judicial administration work such as training, office facilities construction, material equipment, and financial guarantees. Since judicial administrative organs have comprehensive management powers for the judicial administrative affairs of courts and procuratorates, courts and procuratorates must rely on judicial administrative organs to maintain administrative guarantees for their property. Therefore, this judicial administrative functional model is called "Grand judicial administration model".

1949, with the promulgation and implementation of the "Instructions of the Central Committee of the Communist Party of China on the Abolition of the Six Laws of the Kuomintang and the Determination of Judicial Posts in Liberated Areas", the "Common Program of the Chinese People's Political Consultative Conference" and the "Organization Law of the Central People's Government", the Government Council established the Ministry of Justice, Presided over the national judicial administrative management work.According to the "separation system" between judicial administration and judicial trial, the court and the procuratorate office are responsible for trial and procuratorial business respectively, while the judicial administration work of the court and the procuratorate office is all handed over to the judicial administrative organs for management and implementation. The Ministry of Justice's Trial Organization Regulations, approved and implemented on December 20, 1949, determined 15 powers of the Ministry of Justice, including determining judicial administrative policies; setting up local courts and procuratorates; educating and training of judicial cadres; registration, distribution of judicial cadres, Appointment and removal matters; statistical matters of the types, quantity and social reasons of litigation cases nationwide; setting and management of prisoners’ reform of detention agencies; determining judicial funds; publicity of judicial laws and policies; lawyer registration and management; notarization management, etc. This is the beginning of the legal establishment of the powers of judicial administration in the New China, and it is also a sign that my country has established the "large judicial administration model" so far.

Shortly after this judicial administration model was established, the functions of judicial administration agencies were adjusted. In December 1950, the prison , labor reform team and detention center were all assigned to the Ministry of Justice and were led by the Ministry of Public Security. This began the history of the criminal execution agencies and the pending detention agencies being led by the public security organs. In July 1951, the Ministry of Justice established the Central School of Political and Legal Cadres, responsible for training judicial cadres for courts, procuratorates and judicial administrative organs. This opens the history of judicial administrative organs responsible for training judicial cadres. In September 1951, the "Interim Organization Regulations of the Supreme People's Procuratorate" was promulgated and implemented. The Supreme People's Procuratorate established personnel departments to be in charge of personnel work and deal with cadres and staffing issues of procuratorate offices at all levels. Since then, the procuratorate has begun to manage its own judicial administrative affairs, and the judicial administrative agencies no longer manage and control the judicial administrative affairs of the procuratorate. This also means that the "large judicial administration model" has been weakened to a certain extent, and judicial administrative agencies have begun an era of managing court judicial administrative affairs.

(II) After 1954 and after 1979, the "Judicial Administration Period of Courts"

In September 1954, with the promulgation and implementation of the first Constitution of New China, the First National People's Congress passed the "Organization Law of the State Council" and the "Courts" Organization Law. These laws clearly stipulate that "the judicial administrative work of people's courts at all levels is managed by judicial administrative organs", and based on this, the functional scope of the Ministry of Justice is determined, and the General Court Department, the Special Court Department, the Personnel Department, the Propaganda Department, Education Department, Justice Lawyer Department, Finance Department, People's Reception Room. Since then, judicial administrative organs have begun a historical period of managing judicial administration work in courts. In November 1955, the Ministry of Justice established a new "Legal Compilation Department" to be responsible for the drafting of laws and regulations related to judicial administration.

In April 1959, the Second National People's Congress passed a resolution to abolish the Ministry of Justice, and local judicial administrative organs at all levels also abolished them one after another. The main reason for the revocation is that "judicial reform has been basically completed, people's courts at all levels have been improved, people's courts have been enriched and strengthened, and the Ministry of Justice has no need to establish a separate establishment." Since then, all judicial administrative work of the court has been transferred to the court for management, and the "separation system" of judicial administration and judicial trial implemented since the founding of the People's Republic of China has also been terminated.

In 1979, after the Ministry of Justice was re-established, its functions generally returned to the state of "judicial administrative organ of the court" after 1954. According to the Court Organization Law passed in July 1979, the judicial administrative work of people's courts at all levels is managed by judicial administrative organs; the establishment, staffing and office institutions of courts at all levels are guaranteed by judicial administrative organs. At the same time, judicial administrative organs continue to exercise the following judicial administrative management functions: First, manage and train judicial cadres, including judicial cadres in courts, procuratorates and judicial administrative organs; Second, manage political and legal colleges and cultivate various judicial professionals; Third, It is the work of managing lawyer organizations and notarization agencies; the fourth is to organize legal publicity and legal education activities; the fifth is to compile administrative laws and regulations; the sixth is to lead the work of the People's Mediation Committee and judicial assistants of grassroots regimes, etc.

Since May 1982, the reform of the judicial administrative system has been launched again. The Ministry of Justice recommends transferring the judicial administrative work of the court to the court for self-management, and at the same time suggesting that the compilation of administrative laws and regulations be handed over to the Legal Affairs Bureau of the General Office of the State Council.In June of the same year, these two reforms were completed one after another. The Ministry of Justice formally transferred the court's judicial administrative work to the Supreme People's Court for self-management, and the compilation of administrative laws and regulations was carried out by the Legal Affairs Bureau of the State Council. Since then, the "court judicial administration model" formed since 1954 has officially ended. Judicial administrative organs usher in a long period of "small judicial administrative model".

(III) "Small Judicial Administrative Model" after 1982

Since 1982, with the court's judicial administration work being transferred to the court's own management, the compilation of administrative laws and regulations has been handed over to the Legal Affairs Bureau of the State Council, and the functions of my country's judicial administrative organs Reduced to an all-time minimum. According to the organizational structure determined by the State Council in June 1982, the Ministry of Justice mainly sets up the following departments: the General Office, Policy Research Office, Education Department, Propaganda Department, Notary Lawyer Department, Mediation Department, Foreign Affairs Department, Personnel Department, etc. The main functions of judicial administrative organs include judicial cadre training, political and legal school management, legal publicity, lawyer management, notarization management, people's mediation, etc. Since judicial administrative organs no longer manage the judicial administrative work of the procuratorate and no longer supervise the judicial administrative work of the court, this minimum judicial administrative system can be called the "small judicial administrative model."

From 1982 to 2001, the functions of judicial administrative organs increased and decreased, but they were generally maintained within the framework of the "small judicial administrative model". Their judicial administrative power over the courts and procuratorates was further compressed, and political and legal education Management was basically cancelled, but at the same time, it obtained the powers of prison management and labor education management, and was responsible for managing my country's international judicial assistance work. In September 1983, the State Council transferred the Labor Reform Bureau and Labor Education Bureau, which were originally affiliated with the Ministry of Public Security, to the Ministry of Justice, and the Ministry of Justice established a new Prison Administration Bureau and Labor Education Administration Bureau. This marks that my country's judicial administrative organs have begun to exercise the management power of criminal execution and labor education execution, and is a major reform of my country's criminal execution system. In 1987, the State Council approved the establishment of the Judicial Assistance Bureau of the Ministry of Justice, which was the beginning of the exercise of management rights of the judicial administrative organs in my country's judicial administration in international judicial assistance. In December 1985, the Ministry of Justice made adjustments to the national judicial cadre training system, setting up several colleges and universities, including the Central Political and Legal Management Cadre College, and still maintains the on-the-job training powers for cadres of courts, procuratorates and judicial administrative organs. . However, as the Supreme People's Court successively established the National Amateur Law University of Court Cadres and the Chinese Senior Judge Training Center, and as the Supreme People's Procuratorate successively established the China Senior Procurator Training Center and the Central Procuratorate Management College, the Supreme Court and the Supreme People's Procuratorate have gradually strengthened their efforts to ensure that the Self-training work for judges and prosecutors. In 1997, the Supreme People's Court established the National Judges Academy ; in 1998, the Supreme People's Procuratorate established the National Procuratorial Academy . The establishment of these two institutions marks that the on-the-job training for judges and prosecutors shall be undertaken by the Supreme Court and the Supreme Procuratorate themselves. In 2000, the Central Institute of Political and Legal Management Cadres was incorporated into China University of Political and Legal , while China University of Political and Legal and four other political and legal colleges were successively assigned to the Ministry of Education or the education administrative organs of various provinces and cities for management. This marks the complete disappearance of the educational and training functions of judicial administrative agencies for courts and prosecutors and cadres, and also means that the management functions of judicial administrative agencies for political and legal schools are basically no longer there. In 2000, there was only one Central Judicial Police College left in colleges and universities directly under the Ministry of Justice.

(IV) Moderate expansion of judicial administrative functions after 2001

Since 2001, with the gradual advancement of my country's judicial system reform, in order to solve the problems caused by the excessive concentration of power of courts and procuratorates, some judicial departments that were originally managed by courts and procuratorates were responsible for solving the problems caused by the excessive concentration of power of courts and procuratorates. Administrative work is gradually assigned to judicial administrative organs, and judicial administrative organs have gradually obtained some judicial administrative management powers. At the same time, judicial administrative organs have gained more powers in implementing effective judgments of the court. As a result, the judicial administrative function began to enter a state of "moderate expansion", thus forming a "moderate expansion model of judicial administrative function".

Since 2001, judicial administrative organs have successively obtained the power to manage various judicial administrative affairs such as national judicial examinations, legal aid, judicial appraisal, and community correction. Specifically, with the establishment of the unified judicial examination system, judicial administrative agencies have begun to exercise the management power of the national judicial examination. Anyone who applies to serve as a judge, prosecutor, or lawyer must pass this national judicial examination. In 2003, with the establishment of a unified legal aid system, judicial administrative agencies at all levels established legal aid management agencies. In 2005, with the advancement of the reform of the national judicial appraisal system, judicial administrative agencies had the right to manage judicial appraisal affairs. In addition to the appraisal institutions established by public security organs and procuratorates, other judicial appraisal institutions must go through judicial administration. The agency's assessment, certification, login and confirmation of the scope of the appraisal. In 2012, with the establishment of the community correction system, judicial administrative agencies began to exercise management rights for the execution of non-incarcerated sentences.

But at the same time, with the deepening of judicial system reform, some functions of judicial administrative organs have also undergone some changes. For example, in 2014, with the abolition of the labor education system, labor education facilities under the judicial administrative organs were transformed into "mandatory isolation drug rehabilitation centers". Judicial administrative organs at all levels began to establish drug rehabilitation management departments to distinguish them from those under the jurisdiction of the public security organs. Compulsory drug rehabilitation institutions, such drug rehabilitation institutions are called "judicial drug rehabilitation institutions." For example, as the national judicial examination system has been transformed into a legal professional qualification examination system, all people who apply to serve as judges, prosecutors, lawyers, and those who apply to engage in legal professions such as legislation, government legal system, notarization, and sanctions must pass a unified country. Legal Professional Qualification Examination. Judicial administrative organs exercise management rights over the national legal professional qualification examination.

In this way, my country's judicial administrative organs have experienced tremendous changes in both their functions and their institutional structures. So far, the functions of this state administrative organs mainly include two major categories: one is the expanding judicial administrative management power, including the national unified legal professional qualification examination, judicial appraisal, lawyers, notarization, legal aid and other judicial administration. The right to manage affairs; the second is the right to execute effective judgments that are also being continuously strengthened, including the right to manage prisons and community corrections; the third is the right to manage other legal affairs, including compulsory isolation and drug rehabilitation, people's mediation and grassroots judicial administrative affairs, Management rights of legal publicity, international judicial assistance and other matters.

3. Macro judicial administration model--functional positioning of my country's judicial administrative organs

From a global perspective, there are two modes of functions of judicial administrative organs: one is the "judicial administrative leadership and procuratorial work model" of Britain, the United States and France; two It is the "large judicial administration model" of mainland France. According to the former model, while managing government legal affairs, judicial administrative organs also exercise prosecutorial functions, that is, performing criminal prosecution functions on behalf of the government for criminal cases. For example, the U.S. Department of Justice, as the leading body of federal prosecutors, has the right to prosecute criminal prosecution for those "federal crime cases", including leading the FBI to exercise its investigative power and prosecute on behalf of the government. But at the same time, the Ministry of Justice also has the right to manage legal affairs such as immigration, antitrust, tobacco, alcohol, guns, explosives, drug control, and judgment execution. According to the latter model, judicial administrative organs, as part of the government, have the power to manage the judicial administrative affairs of courts and procuratorates, including the establishment, budget, logistics support, financial funds of courts and procuratorates, judges and procuratorates. The judicial administrative organs have the power to make plans, make suggestions and even make decisions about the establishment of officials, promotions, rewards and punishments, judicial examinations and education and training of judges and prosecutors. The similarity between these two models is that both judicial administrative organs are part of the government administrative branch, and the attorney general is even a member of the cabinet; judicial administrative organs are responsible for managing prisons and pending detention places.But the main difference between the two is that the judicial administrative organs in the previous model lead the procuratorial work and bear full responsibility for prosecution of crimes, while the judicial administrative organs in the next model manage all judicial administrative affairs of the courts and procuratorates. responsibility. The judicial administrative organs under the previous model can be called the General Procuratorate or the Government Legal Affairs Department, while the judicial administrative organs under the latter model belong to the "Judicial Administrative Affairs Management Department" of the courts and procuratorates.

In the early days of the founding of the People's Republic of China, the functions of my country's judicial administrative organs were established in accordance with the model of the mainland legal system. The so-called "large judicial administration model" is actually a microcosm of the judicial administrative organs of the state in the civil law system to a certain extent. This may be a result of a comprehensive reference and transplantation of the judicial system of the former Soviet Union in the early days of the founding of the People's Republic of China. However, with rounds of judicial system reform, especially since the restoration of legal system construction in 1979, my country's judicial administrative system and the model of the mainland legal system gradually drifted away, and finally began to develop independently after 1982. the way. However, this judicial administrative system has never turned to the British and American legal system, and there is almost no possibility of leading procuratorial work in the future. This is because, according to the "one government, one committee and two cathedral system" under the leadership of the People's Congress of my country, the procuratorate and the court are both judicial organs. Together with the government at the same level, they are produced by the People's Congress and its Standing Committee at the same level, and report to them, and accept the work. Its supervision. As an administrative department led by the government, the judicial administrative organs exercise administrative functions, which are incomparable to the procuratorate organs as judicial organs.

Since my country's current judicial administration system is different from the "large judicial administration model" of the mainland legal system and the "judicial administrative leadership and procuratorial work model" of the British and American legal system, what are the core characteristics of this system? ?

In my country, judicial administrative organs, as administrative organs that manage "judicial administrative affairs", actually no longer exercise management rights over judicial administrative affairs of courts and procuratorates. This easily leads to doubts: the "judicial administrative management functions" of judicial administrative organs Where exactly is it reflected? In fact, based on the evolution of my country's judicial administrative functions since 1982, we can find that there are actually two types of "judicial administrative affairs" in our judicial system: one is "macro judicial administrative affairs"; the other is "specialized judicial affairs." Administrative Affairs”. The former refers to common judicial administrative affairs that can be independent of the three agencies of public security, procuratorial and judicial organs, while the latter refers to judicial administrative affairs that can be managed separately by the three agencies of public security, procuratorial and judicial organs.

Since the founding of New China, judicial administrative organs have been exercising some basic judicial administrative affairs, such as lawyers, notarization, legal publicity, people's mediation and other matters. Since 1982, judicial administrative organs have gradually obtained the right to manage prisons, judicial examinations, judicial appraisals, community corrections and other matters. These matters are all "macro judicial administrative affairs". Because they do not belong to judicial administrative affairs unique to the three agencies of public security, procuratorial and judicial affairs, they are independent of the basic legal functions of these agencies and have obvious universality and commonness. These functions are either managed by judicial administrative agencies (such as lawyers, notarizations, people's mediation, legal publicity, etc.), or are gradually classified as judicial administrative agencies with the advancement of judicial system reform (such as criminal execution, judicial system) Examinations, judicial appraisals, community corrections, etc.). Of course, there is no universal standard for which judicial administrative affairs belong to this kind of "macro judicial administrative affairs", but it is gradually determined by my country's reform decision-makers through long-term institutional practice and reform exploration. Experience shows that when a certain judicial administrative matter is handed over to the three agencies of public security, procuratorial and judicial organs to manage it themselves, problems such as concentration of power, conflict of function, and ineffective protection of rights will arise, the matter should be independent from the three agencies of public security, procuratorial and judicial organs and is determined as "macro" judicial administrative affairs at the level, and were eventually classified into the management functions of judicial administrative organs.

As for the management of people, finances and property of the courts, procuratorates, and public security organs in this system, it can be defined as "specialized judicial administrative affairs."For example, in the early days of the founding of the People's Republic of China, the establishment of courts and procuratorates, the education and training of judicial cadres, the registration, distribution, appointment and removal of judicial cadres, the statistics on the types, quantity and social reasons of litigation cases nationwide, and the determination of judicial funds, etc. All matters belong to this kind of "specialized judicial administrative affairs". After the judicial administrative agency was determined to be responsible for managing the judicial administrative affairs of the court in 1979, matters such as the establishment of courts at all levels, the determination of staffing, the guarantee of judicial funds, and the arrangement of office institutions were also subject to specialized judicial administrative affairs within the court. scope. Experience shows that the courts and procuratorates manage these specialized judicial administrative affairs on their own, which will help to achieve the specialization of judicial administrative affairs within the courts and procuratorates, and will help to effectively manage people, finances and property of the courts and procuratorates, and will also be in line with the current situation in our country. Judicial system. According to the "one government, one committee and two-campus system under the leadership of the People's Congress" implemented in our country, courts and procuratorates belong to state judicial organs. They and governments at the same level are both appointed by the People's Congress and its Standing Committee and reported to them, while judicial administrative organs are responsible for the work of the People's Congress and its Standing Committee. As an integral part of the government, it does not enjoy the same political status as the courts and the procuratorate at the constitutional level. If our country continues to implement the "large judicial administration model" implemented in the early days of the founding of the People, Finance and Property of the courts and procuratorates will be subject to the control of governments at the same level and their judicial administrative organs, which is obviously not conducive to the independent exercise of courts and prosecutors. The realization of the constitutional principle of power. Since 2014, in order to achieve the reform goal of "delocalization" of courts and procuratorates, reform decision makers have implemented measures to collect people, finance and property of courts and procuratorates into provincial unified management. On the one hand, they have strengthened the financial budget and basic construction of courts and procuratorates. Provincial finance guarantees it. On the other hand, it also emphasizes that the selection and punishment of judges and prosecutors must be decided by provincial special committees. These reform measures are enough to show that any matter involving the judicial administrative management of the courts and procuratorates is not classified as judicial administrative organs for management, but is either delivered to the superior courts or procuratorates or delivered to provincial special departments for unified purposes. manage. This obviously shows that "specialized judicial administrative affairs" within courts, procuratorates and even public security organs cannot be included in the management system of judicial administrative organs.

When “macro judicial administrative affairs” and “specialized judicial administrative affairs” are separated, what judicial administrative affairs do judicial administrative agencies undertake? According to the experience of judicial administrative system reform since the 1980s, some judicial administrative affairs managed by the three agencies of public security, procuratorial and judicial departments have involved multiple interests in the department and have a certain degree of conflict with the core functions of the department. Due to problems such as low professionalism and low management efficiency, the shift from "specialized judicial administrative affairs" to "macro judicial administrative affairs". So far, the transfer of this judicial administrative function is still underway. For example, the management of courts' people's jurors and people's supervisors of procuratorates is gradually being transferred to the control of judicial administrative organs. This is indeed a landmark event in which macro-judicial administrative affairs have been strengthened in the new era.

So, what are the "macro judicial administrative management functions" of judicial administrative organs? By summarizing past reform experiences and looking forward to the prospects of future judicial administrative system reform, this macro-judicial administrative management function can be divided into three aspects: First, the management functions of the public legal service system, including lawyers, notarization, Macro-management of public legal service professions such as legal aid, judicial appraisal, community correction, and people's mediation; second, the execution function of effective court judgments, currently mainly through prisons for fixed-term imprisonment, life imprisonment, and two-year reprieve of death penalty. Execution, and the execution of non-incarceration sentences through community correction institutions; third, the judicial logistics support functions of courts, procuratorates, and public security organs, including the selection of legal practitioners, training of on-the-job personnel, legal education, judicial appraisal and other guarantee functions .

4. Construction of the public legal service system

As a series of judicial administrative affairs such as lawyers, notarization, legal aid, judicial appraisal, people's mediation, community corrections, etc. are gradually included in the management scope of judicial administrative agencies, "public legal services" as The organic component of the public service system has gradually formed an organic institutional system. Effective management of public legal services is also regarded as an important function of judicial administrative organs. From the perspective of reform, the construction of the public legal service system is regarded as an inevitable requirement for comprehensively promoting the rule of law and realizing the modernization of national governance. In order to adapt to the establishment and improvement of my country's public legal service system, judicial administrative agencies need to undergo a fundamental transformation in the management of public legal services, that is, transforming from an administrative control management model to a service-oriented management model.

(I) Formation of the public legal service system

So far, after years of judicial administrative system reform, my country has initially formed a diversified legal service system in the fields of lawyers, notarization, legal aid, judicial appraisal, people's mediation, etc. In terms of management system, judicial administrative agencies have also changed their legal service industries from the original administrative control to the direction of industry regulation. In the future, in order to ensure the healthy development of the legal service industry, judicial administrative agencies should consider establishing a unified legal service system.

As an integral part of the government administrative organs, judicial administrative organs have management rights over a series of legal service affairs. However, in the past, almost all management methods were administrative controls, that is, almost all legal service agencies were used as subordinate agencies of judicial administrative agencies, and vertical leadership was carried out through administrative methods such as issuing instructions, appointing and removing cadres, and administrative rewards and punishments. . For example, at the beginning of the restoration of my country's lawyer system, as the law positioned lawyers as "national legal workers" and lawyers' work institutions as "legal counsel office", the Judicial Assistance Bureau almost regarded lawyers as internally managed public institutions as public institutions personnel, and the Legal Counsel Department is an internally established business institution. For example, judicial administrative agencies at all levels have adopted administrative control management methods for judicial appraisal institutions in the past. Almost all matters such as the establishment of judicial appraisal institutions, the appointment and removal of persons in charge, the allocation of personnel, the issuance of wages and benefits, and the rewards and punishments of personnel. It is managed by judicial administrative agencies like civil servants. For example, judicial administrative organs once had direct management rights over political and legal colleges, but this management also had an administrative control color, from the establishment of universities, the appointment and removal of university leaders, to the administrative affairs of universities, and the judicial administrative organs. Administrative leaders are everywhere, which greatly restricts the independent exercise of political and legal schools and violates the basic laws of legal education.

Since 1982, with the gradual advancement of the entire political system reform and economic system reform, the management methods of legal services by judicial administrative agencies have also undergone fundamental changes. The basic trajectory of this change is that the color of administrative control is gradually weakening and the characteristics of industry guidance are gradually strengthening. Legal service agencies have gradually changed from "quasi-civil servants" under the control of judicial administrative agencies to professionals who engage in legal services independently; legal service agencies have also changed from public institutions under the control of judicial administrative agencies to legal services that operate independently and bear their own profits and losses. Service agencies; as independent registered associations, various legal profession associations assume supervision and management responsibilities for practitioners of this legal profession. With the gradual deepening of the reform of the judicial administrative system, the bar association's monitoring of the lawyer's profession has gradually strengthened, and a series of lawyer affairs, including on-the-job training, rights protection, and disciplinary punishment, have been gradually managed independently by the bar association. More and more lawyer associations have even shown increasing independence and autonomy in presidential elections and director appointments and removals. At the same time, although the notary office of the notary work agency is established by a judicial administrative agency, it is becoming increasingly independent in handling notary affairs. The Notary Association has education and training, rights protection, business exchanges, and discipline punishment. In other aspects, it is also increasingly managed in accordance with the laws of notarization business.

The initial completion of the judicial appraisal system reform in 2005 has fundamentally changed the working method of judicial administrative agencies in managing judicial appraisal affairs. Through this reform, judicial administrative agencies basically no longer set up judicial appraisal institutions. In addition to the appraisal institutions established within the investigative agencies, other appraisal institutions have basically been transformed into social appraisal institutions that are self-profit and loss-making and independently operated. This type of appraisal institutions have obvious advantages. business, social and service. The management of judicial appraisal by judicial administrative agencies has completely changed from the original administrative control method to the current industry guidance method. Whether it is for judicial appraisal institutions or judicial appraisers, the industry guidance and monitoring of judicial administrative agencies are mainly reflected in the following aspects: issuing judicial appraisal practice certificates, demarcating the scope of judicial appraisal activities, registering judicial appraisal institutions and appraisers lists, and formulating And maintain the professional ethics norms of judicial appraisal, conduct assessment of the integrity level of judicial appraisers, provide education and training for judicial appraisers, investigate and punish illegal appraisers, etc.

(II) Improvement of unified legal service system

In the management of legal services such as lawyers, notarization, legal aid, judicial appraisal, people's mediation, judicial administrative organs should establish a unified set of things based on summarizing successful experiences industry control system. Judicial administrative agencies should allow legal service institutions in all these fields to engage in legal service activities in accordance with the principle of self-profit and loss and independent operation, and manage the legal service personnel in these institutions as professional legal service personnel. Whether it is for legal service agencies or legal service personnel, judicial administrative agencies should adopt industry regulation methods to manage, that is, by establishing the access qualifications of the legal service industry, issuing professional certificates, determining the scope of service, registering the list, formulating and maintaining it. Supervise and regulate legal service institutions and service personnel through professional ethics norms, education and training, organizational discipline and punishment. On the other hand, the establishment and improvement of legal service associations should be comprehensively promoted, and some industry regulatory functions should be gradually handed over to the legal service associations for exercise. At present, lawyers, notarization and judicial appraisal have established relevant industry associations. In the future, legal aid, people's mediation and even judicial social work areas related to community correction, corresponding legal aid associations, people's mediator associations and judicial social workers should also be established. association. On the premise that these legal service industry associations are established, these industry associations will gradually organize education and training for practitioners, safeguard the legitimate rights and interests of practitioners, and impose necessary disciplinary punishment on those who violate regulations and discipline.

Considering that the future community correction agencies will assume more non-incarceration penalties, and the community correction personnel located at the grassroots level of the judicial administrative agency are not enough to complete this mission. Therefore, it can be considered to learn from and promote Beijing, Reform experience in Shanghai and other places, comprehensively establish social worker service institutions and include them in the legal service system. At present, the work institutions of social workers are generally located in the Communist Youth League, universities, non-profit organizations, etc., which can assist community correction institutions in providing multi-faceted services. In the future, in order to effectively regulate the work of these social work institutions, it is necessary for judicial administrative agencies to establish judicial social workers associations to strengthen management of judicial social workers' professional qualifications, scope of employment, list registration, professional ethics maintenance, rights protection, discipline and punishment of judicial social workers and Regulation will enable the service industry to develop healthily.

5. Execution function of effective judgment

Since prison institutions were transferred into judicial administrative organs in 1982, the execution of criminal punishment has gradually been included in macro-judicial administrative affairs and has become an important function of judicial administrative organs. Later, with the gradual establishment of community correction agencies, the execution supervision work against non-incarceration sentences was also integrated into the legal functions of judicial administrative agencies. But to date, my country's criminal execution power has still been exercised separately by judicial administrative organs, public security organs and courts, and a unified criminal execution system has not yet been established.At the same time, although judicial reform decision makers have proposed the reform goal of "separating judicial power and execution power", the execution power of civil judgments is still controlled in the hands of the court, resulting in excessive concentration of judicial powers of the court, which has brought about a certain degree of The abuse of power and even judicial corruption have also contributed to the problem of "difficulty in execution" to a certain extent.

The experience of judicial administration reform shows that the execution power of effective court judgments is not the right to judicial adjudication, but is an integral part of macro-judicial administrative affairs. Only by establishing a unified criminal execution system and then uniformly entrust the court's effective judgment power to be exercised by judicial administrative agencies can a series of problems brought about by this decentralized exercise of the execution power can we solve the problem. In order to effectively engage in the management of "macro judicial administrative affairs", it is necessary to gradually transfer the court's civil judgment execution rights to judicial administrative organs, thereby achieving a complete separation of judicial power and enforcement power.

(I) The historical necessity of transferring the execution rights to judicial administrative organs

In 1982, the "labor reform" institutions and the "labor education" institutions were also transferred from the Ministry of Public Security to the Ministry of Justice. This is the beginning of the unified exercise of the criminal execution rights of my country's judicial administrative organs. Behind the changes in the institutional settings of judicial administrative organs, there is a separation of functions of the right to execute the punishment and the right to investigate, the right to decide on labor education and execution.

Why did this major reform be carried out at that time? The reason is actually very simple. When the Ministry of Public Security leads the "labor reform" department, the public security organs exercise both the right to criminal investigation and the right to execute criminal punishments. On the contrary, this greatly weakens the effectiveness of the criminal investigation functions and the function of maintaining public security. This makes it impossible for the public security organs to concentrate limited manpower and material resources to fulfill their responsibilities as the "public security and security organs", and is unable to effectively increase the case-solving rate of criminal cases, which also has a negative impact on their function of maintaining social security. On the other hand, as an executive organ of free punishment, the public security organs must educate and correct criminals in detention and implement the work guideline that combines education, influence and rescue. However, the functions of the public security organs to investigate and solve cases and quickly maintain social security are obviously the same as that of the Correcting criminals' functions conflicts, often neglecting one thing, which gradually marginalizes the execution of punishment within the public security organs. Since the public security organs exercise the right to execute the criminal and criminal investigation power at the same time will bring such serious negative consequences, then separating this function and transferring the right to execute the criminal and judicial administrative organs will face heavy pressure to solve the case. For public security organs, it is not a kind of relief.

By the same token, when the public security organs exercised the right to approve and decide and execute the right to work education, the public security organs were also facing heavy pressure to manage hundreds of labor education venues across the country and carry out labor education on hundreds of thousands of people. As the public security organs are increasingly responsible for investigating and solving cases and maintaining social security, this kind of management function of labor education places will consume a lot of manpower, material resources and financial resources. Not only that, the education and correction of labor-education personnel, like the education and transformation of criminals, are not the strengths of the work of the public security organs, and there is an obvious contradiction with the functions of the public security organs as public security organs. Since the late 20th century, the application of labor education has been increasingly concentrated in repeated drug addiction, multiple prostitution, and engaging in acts that seriously endanger social security. The education and correction of these people have to be accompanied by drug rehabilitation and quit. Specialized work such as bad habits and special education. This kind of specialized work is obviously not good at the public security organs. What's more, the public security organs exercise both the right to approve and decide on labor education and exercise the right to execute on their own, which also causes excessive concentration of power, affecting the fairness and accuracy of labor education decisions. Because of this, labor education institutions are classified as judicial administrative organs, which brings about the real separation of the right to decide and the right to execute labor education, making the right to approve and decide labor education no longer subject to the execution function, and also makes the implementation of labor education gradually Going towards a professional and formal path. This also laid the foundation for the later transformation of labor education facilities into compulsory drug rehabilitation institutions after the labor education system was abolished.

"Release Reform" departments and "Release Retirement" departments were assigned from public security organs to judicial administrative organs, which eventually led to the reform and improvement of prison institutions and compulsory drug rehabilitation institutions, making judicial administrative organs a specialized agency specializing in prison administration and judicial drug rehabilitation management. . However, this reform of the criminal execution system was not promoted on a large scale later, but was in a state of stagnation. As the main criminal investigation agency, the public security organs still exercise the right to execute detention, control and some additional sentences, and use their right to manage the detention center to place criminals sentenced to short-term free punishment in the detention center for execution. This situation where the public security organs exercise part of the execution power of the punishment has undermined the unified exercise of the punishment power of the punishment power, and still caused a high concentration and functional conflict between the criminal investigation power and the punishment power.

At the same time, as the state judicial organ, the court is still exercising the right to execute the criminal punishment and the right to execute the civil and administrative judgments, resulting in a high concentration of the de facto judicial power and execution power and functional chaos. In the field of criminal execution, punishments including death penalty, fine penalty, and confiscation of property are executed by the court itself. Although those recoveries involving illegal gains are not considered independent punishments, they are actually executed by the court themselves. Obviously, the deprivation of citizens' right to life and the deprivation of personal property rights have the problem of "self-examination and self-enforcement" of the court, which not only undermines the unified exercise of the state's criminal execution rights, but also brings about the conflict between the right to judge and the right to execute. .

In the field of execution of civil and administrative judgments, the court not only exercises the right to judge and exercises the right to execute the effective judgment, but also is responsible for exercising the right to execute the right to execute the execution and the right to exercise the right to judge for changes in the execution subject matter during the execution process. The system of highly centralized exercise of judicial power and execution not only causes the abuse of judges' discretion, but also leads to structural judicial corruption, but also leads to institutional "difficulty in execution" due to the limitations of the court's own political authority and resources. question. Since 2014, judicial decision-makers have already proposed the reform goal of "separating judicial power and executive power", but this reform has not been substantially promoted for a long time. The court has only established some internal guarantees that the execution power is relative to the execution judgment power. Technical responses to separation.

(II) Construction of a unified criminal execution system

In order to establish a unified criminal execution system, ensure that the criminal execution right is unified in the hands of neutral state organs, avoid the conflict between the execution right and the investigative right, and also avoid the contradiction between the execution right and the trial right and the conflict between the execution right and the trial right, as well as the conflict between the execution right and the right to judge. , it is necessary to take all the right to execute the criminal punishment into unified exercise by judicial administrative organs.

First of all, those criminal penalties that are subject to the public security organs, including detention, control, and some additional penalties including deprivation of political rights and deportation, should be transferred to judicial administrative organs for execution. After the reform of the judicial administrative system since 1982, my country's judicial administrative organs have accumulated rich experience in prison administration and have gradually established a management mechanism for community correction, which has become more mature in the execution of imprisonment and non-incarceration sentences. management network. Therefore, in the future, criminals sentenced to detention can be considered to place them in prison and execute a separate sentence; criminals sentenced to regulated can be included in the execution system of community correction; criminals sentenced to deprivation of political rights can be included by The judicial administrative agency contacts the village, street or community where it is located to dynamically monitor the deprivation of its right to vote, the right to be elected and other political rights to ensure the effective execution of this criminal punishment. Considering that the judicial administrative organs have judicial assistance departments, such special additional sentences may be effectively executed by the department in accordance with international treaties or in accordance with the principle of reciprocity for those foreigners or stateless persons sentenced to deportation.

Secondly, those criminal penalties that are subject to the court, including the death penalty, fine penalty, and property confiscation penalty, should be transferred to judicial administrative authorities for execution. As a culprit that aims to deprive criminals of their right to life, the execution of the death penalty should be carried out by the prison institutions under the judicial administrative authority.It is possible to consider setting up death penalty execution departments and execution facilities in prison institutions. After receiving the death penalty judgment document effective by the Supreme People's Court and the order of the President of the Supreme Court to execute the death penalty, the prison execution officials should be handed over to the bailiffs for execution, and the procuratorate may send personnel. On-site supervision. At the same time, the fines and confiscation of property imposed by the court should also be carried out by the execution department under the judicial administrative authority. If necessary, property execution such as seizure, seizure, allocation, freezing, auction, and cashing may be carried out. measure. All property executed should be handed over to the treasury account set up by the financial department. The procuratorate should also send personnel to supervise the judicial administrative organs' implementation activities on property throughout the process.

Once again, after the establishment of a unified criminal execution system, judicial administrative agencies may also consider establishing new criminal execution institutions in addition to continuing to set up and improve prisons and social correction institutions. Future prisons can continue to exercise the right of execution to all criminals sentenced to fixed-term imprisonment, life imprisonment and death penalty, and can also be detained individually on criminals sentenced to detention and implement special educational correction measures. Future community correction agencies will implement non-custody penalties for offenders sentenced to control, probation, and parole, including supervision of labor, education, treatment, inspection, evaluation and other corrections, and at the same time, those sentenced to deprivation of political rights. The criminal, the community correction department is also responsible for the execution. Those criminals sentenced to deportation can be enforced by the Judicial Assistance Bureau, a department under the Ministry of Justice. As for those criminals who are sentenced to fines and confiscated property, judicial administrative agencies may consider setting up special property punishment enforcement agencies to be responsible for execution. Considering that such execution involves the issue of deprivation of personal property rights, the future execution of such punishments can be carried out by the same institution together with the execution of civil and administrative judgments.

(III) Comprehensive Changes in Civil and Administrative Enforcement Systems

As early as 2014, judicial reform decision makers proposed the reform idea of ​​"separation of judicial power and enforcement power", but the reform plan proposed by the Supreme Court was separated within the court. Set up execution implementation agencies and execution referee agencies to achieve the so-called "internal trial and execution separation". However, experience shows that whether it is the separation of the trial business court and the execution agency, or the separation of the execution authority and the execution judgment authority within the execution agency, there are some insurmountable defects and drawbacks. This kind of internal separation of trial and execution cannot solve the structural "difficulty in execution" problem, nor can it solve the problem of abuse of discretion caused by the concentration of judicial power and execution power in the court, and it is even difficult to avoid institutional enforcement corruption. Therefore, the only way to reform the civil and administrative enforcement system is to implement a comprehensive "external separation of trial and execution", that is, to hand over all the execution rights of civil and administrative judgments to the judicial administrative organs, and the court is dedicated to engaging in civil and administrative judgment activities. .

Specifically, the judgment activities of future civil and administrative litigation cases can be divided into two parts: one is substantive trial activities, that is, for cases involving civil litigation and administrative litigation, the legality of determining civil liability and administrative penalties in order to determine civil liability and administrative penalties. All trial activities carried out on sexual issues; the second is execution judgment activities, that is, during the execution process, such as changes in the subject matter of the lawsuit, changes in the execution object, or objection raised by a non-executive person, the execution implementation agency shall suspend the execution activities and The above matters are handed over to the judge for ruling, and the latter will make an enforcement ruling after review. Both of the above-mentioned judicial judgment powers should be exercised by the court, but necessary separation can be carried out, that is, the former judgment power is exercised by the civil and administrative trial departments, while the latter judgment power is exercised by the special executive judge. .

As for the future execution and implementation of civil and administrative judgments, all judicial administrative organs will be held responsible for the exercise. It is possible to consider establishing a civil administrative judgment execution department within the judicial administrative organ, which is responsible for the execution of all civil and administrative judgments.In order to ensure the smooth implementation of civil and administrative judgment execution, the execution department can be equipped with necessary judicial police and execution equipment, and a series of execution measures including seizure, seizure, freezing, auction, cashing, etc. are required. At that time, those subject to execution who hinder the execution of activities may also adopt coercive measures to deprive personal freedom with the approval of the execution judge. However, in any case, during the implementation process, if any situation occurs such as a change in the execution subject, a change in the execution object, or a non-party raises an object, the execution personnel shall immediately suspend the execution activities and submit the relevant matters to the execution judge for the ruling. Once the executive judge makes a ruling, the executive department of the judicial administrative organ will resume the execution of the execution activities.

6. Judicial Guarantee Function

In addition to the execution functions of public legal services and effective judgments, my country's judicial administrative organs are also exercising some judicial guarantee functions. Since the establishment of the national unified judicial examination system in 2000, to the advancement of the reform of the judicial appraisal system in 2005, some judicial administrative affairs that are not suitable for management by investigative agencies, procuratorates and courts have gradually been classified as the management scope of judicial administrative agencies. Become an integral part of macro-judicial administrative affairs. At present, the selection and management of people's jurors in courts, as well as the selection and management of people's supervisors in the procuratorate, are gradually being included in an important part of macro-judicial administrative affairs. Experience shows that once these judicial administrative affairs that are not suitable for exercise by public security organs, procuratorates and courts are exercised by judicial administrative organs, they can effectively solve the problems of bloated, inefficient and over-centralized powers of these specialized agencies. Administrative affairs are becoming professional and scientific, which also provides a rare opportunity for development.

However, there are still some issues worthy of attention in the judicial guarantee functions exercised by judicial administrative agencies. Although the "large judicial administration model" that appeared in the 1950s did not have a reappearance in my country, the comprehensive management of people, finances and materials by our courts and procuratorates is for judges, prosecutors and even judicial police. The education and training have indeed brought some issues worth paying attention to. At the same time, some administrative management affairs under the supervision of the public security organs, such as pending detention institutions, have also arisen similar problems. It can be said that in terms of strengthening the judicial guarantee function, my country's judicial administrative organs still have a lot of room for reform.

(I) Selection and training of legal practitioners

Since 1982, judicial administrative organs have implemented a national unified lawyer qualification examination system based on the establishment of the lawyer system. After 2000, with the establishment of the national unified judicial examination system, judicial administrative organs gained the power to organize and manage judicial examinations. This is a major change in the selection system for judges, prosecutors and lawyers, marking a big step forward in the training of legal professional practitioners in my country towards professionalism and eliteization. Based on summarizing the successful experience of the judicial examination system, judicial reform decision makers have built a national unified legal professional qualification examination system, so that more people engaged in legal professions, including legislators, investigators, notaries, arbitrators, etc., must pass Only by taking the national unified judicial examination can we have the corresponding legal professional qualifications. It can be said that from the establishment of the lawyer qualification examination system to the implementation of the unified legal professional qualification examination system in the country, my country's judicial administrative organs have made great contributions to the professionalization and eliteization of legal professional practitioners.

However, to achieve the professionalization and elitization of legal professional practitioners, it is far from enough to rely solely on the implementation of the unified legal professional qualification examination system. This examination system only guarantees high entry-level conditions for legal professions and strict selection procedures. Since the implementation of the national unified judicial examination system, this examination has been extremely difficult and has a very low pass rate, so it is called the "first test" in China.Because full-time legal education itself has institutional defects, and because there are some loopholes in the on-the-job education and training mechanism of judicial personnel, and because those who pass the national unified judicial examination are in a state of laissez-faire and have not established a corresponding country at all. With the unified judicial training system, there are still some difficult things to satisfy the professional level of judges, prosecutors and lawyers.

The experience of reform of my country's judicial administrative system shows that for judges, prosecutors, lawyers and other personnel engaged in legal professions, only by establishing a unified professional development system such as education, training, selection, training, and on-the-job training can it be ensured that only by establishing a unified career development system such as education, training, selection, training, and on-the-job training can one ensure that Professionalization and eliteization of legal professionals. According to the goals of judicial system reform since 2014, only by ensuring that those judicial elites with high quality and rich experience enter the posts of judges and prosecutors, and ensuring that judges and prosecutors exercise their powers independently can they maintain justice by ensuring that the judicial system is fully qualified and experienced. fairness and justice, and complete judicial work with high quality and efficiency. In view of this, future judicial administration system reform should play an active role in cultivating professional and elite legal professional practitioners, and include such management affairs into the important functions of judicial administration.

After 1982, full-time political and legal colleges were classified as the Ministry of Education or provincial education administrative departments. This certainly contributed to the integration of legal education and higher education in other majors, but it also brought some deep-seated problems. The most prominent problem is that the education authorities are unable to formulate targeted educational administrative policies for the talent training of legal schools in accordance with the laws of legal education. Whether it is a specialized political and legal college or a law department in an ordinary university, the education administrative department cannot establish scientific and reasonable entry thresholds, establish operational legal training standards, and cannot establish a fair exit mechanism for the law department. Since judicial administrative agencies are no longer responsible for the management of legal education, they no longer bear regulatory responsibilities for the establishment of legal departments, faculty requirements, curriculum setting, degree awarding, etc. Against this background, more and more universities have opened law departments or law majors, while the conditions and thresholds set by the education administrative department are very low. For those universities that have opened law departments or law majors Once the school obtains a bachelor's degree or above, its graduates can take the national unified legal professional qualification examination without any obstacles, and after passing the examination, they become judges, prosecutors, lawyers and other legal professionals. It should be said that the judicial administrative organs do not assume direct management responsibilities for the establishment of law departments or law majors, but whether existing full-time law graduates from higher education institutions are qualified to participate in the national unified legal professional qualification examination? Can't we set certain thresholds? Can judicial administrative agencies conduct a certain degree of review and evaluation of the level of legal talents training in various universities and impose punishments on universities that do not meet the requirements that their graduates are not allowed to participate in the legal professional qualification examination?

Judicial administrative organs should play an active role in the cultivation of legal talents, and should also consider establishing a unified judicial training system for those who have passed the national unified legal professional qualification examination. Originally, when the national unified judicial examination system was implemented after 2000, some scholars proposed the idea of ​​learning from the judicial training model of the mainland law countries and establishing a judicial training system. However, this idea received no serious response. In the future, with the implementation of the national unified legal professional qualification examination system, almost all legal professional practitioners must pass this important qualification examination before they can embark on the path of legal professions such as judges, prosecutors, lawyers. However, at best, those who pass this qualification examination have reached the minimum standards for engaging in the legal profession in mastering legal expertise, and are far from reaching the level of immediate competence in the legal profession.In this case, why can’t judicial administrative agencies open special judicial training colleges at the national level and at the provincial level to hold two-year legal practice training for those who pass the legal professional qualification examination? After this specialized legal practice training, these people are selected as judges, prosecutors, lawyers and other legal professions, and can be competent for their duties as soon as possible.

In addition to judicial training, there is no unified system for the education and training of in-service judges and prosecutors. So far, the Supreme Court has established the National Judges Academy and the Supreme Procuratorate has established the National Prosecutors Academy. These educational institutions are responsible for the education and training of in-service judges and prosecutors. At the same time, the high courts of all provinces, municipalities and autonomous regions began branch offices of the Judges College, and provincial procuratorates also opened branch offices of the Procurator College. This has formed an on-the-job education and training system covering judges and procuratorates at all levels across the country. However, on the one hand, this training system seriously disperses limited on-the-job educational resources and cannot integrate existing human, material and financial resources to improve high-quality and efficient training for on-the-job judges and prosecutors; on the other hand, there are also on-the-job judges and prosecutors. There is a problem that unified education and training content cannot be provided, and education and training cannot ensure that in-service personnel can effectively improve their judicial practice capabilities. Before 2000, our country implemented a unified education and training system for on-the-job judges and prosecutors. However, since many judges and prosecutors did not receive systematic legal professional training at that time, the education and training of judges and prosecutors needed to pay attention to basic and professionalism. The internal education and training system of courts and procuratorates came into being and eventually replaced the unity. on-the-job training system for judicial personnel. However, now judges and prosecutors have generally received professional legal training, and basic and professional education and training for in-service judges and prosecutors is no longer an urgent task, and practical training and cutting-edge training for these in-service personnel will be the future The top priority of on-the-job training. It can be said that the judicial administrative organs have established a unified on-the-job education and training system for judicial personnel, and integrating the existing judges' colleges and prosecutors' colleges into the future judicial colleges, which have already met the realistic foundation and conditions.

(II) Management of people's jurors and people's supervisors

As the main form of public participation in judicial work, the people's juror system is an integral part of my country's judicial system, and the people's supervisor system is an important part of my country's procuratorial system. In the past, people's jurors were managed by the court themselves, while people's supervisors were managed by the procuratorate themselves. Especially grassroots courts and grassroots procuratorates have great pressure on managing people's jurors and people's supervisors. All matters such as selection, roster registration, training, visits, professional ethics norms, and punishment of people's jurors and people's supervisors are managed by the court and the procuratorate themselves. This will not only bring a series of work burdens, but also prone to a series of problems such as inequality between people's jurors and interests among people's supervisors, which affects the credibility of people's jurors and people's supervisors.

In recent years, with the deepening of judicial reform of courts and procuratorates and the comprehensive implementation of the special post system, the judicial administrative staff of courts and procuratorates has been compressed to varying degrees. The judicial administrative department that was originally responsible for managing people's jurors and people's supervisors should be or Being laid off or being overwhelmed. With the gradual advancement of judicial reform, the people's jury system and the people's supervisor system are still in a trend of becoming increasingly strengthened. For example, based on the original "1 plus 2" collegial panel model, the court gradually implemented the "3 plus 4" collegial panel model, which required a large increase in the number of people's jurors participating in the collegial panel in many cases. Against this background, some places have begun to explore the establishment of people's supervisor management offices or people's juror management offices in grassroots judicial administrative organs, and transfer the management power of people's jurors and people's supervisors to judicial administrative organs.Experience shows that this kind of reform exploration is very innovative, which means that the management of people's jurors and people's supervisors has gradually transformed from "specialized judicial administrative affairs" to "macro judicial administrative affairs", so that they can go Prepare a specialized and professional management path. In the future, this reform will be promoted to all parts of the country based on a comprehensive summary, so that grassroots judicial administrative agencies in various places will fully obtain the management rights of people's jurors and people's supervisors.

(III) Affiliation issues of detention center

In the issue of detention center, the biggest problem currently exists is the problem of conflict between the right to detain and the right to investigate. Originally, the pending detention function is mainly to achieve effective control of pending criminals in detention, avoid further socially harmful behaviors, and also help effectively protect their personal safety. However, under the system under which the detention center is controlled by the public security organs, the public security organs exercise both the right to pending detention and the right to criminal investigation, which makes the right to pending detention unable to maintain basic neutrality and has to serve the needs of criminal investigation. For example, the public security organs are currently highly dependent on the "prison investigation mechanism" in the detention center, which allows more than one-third of criminal cases to be solved through the "deep digging mechanism" within the detention center. This investigation model is easy to cause the "prison investigation activities" in the detention center to lose control, causing some "special personnel" to abuse their investigation rights, and cause de facto threats, temptations, deceptions and even violent evidence collection, which even leads to unjust falsehood Wrong case. On the other hand, it also caused the suspect and defendant to "super criminalization", making them more unfavorable than the criminal, and causing their defense rights and even their personal dignity to be unreasonably deprived.

In order to achieve the separation of the right to detain the right to detain and the right to investigate, avoid investigative agencies from using the convenience of detaining the undecided criminals to carry out arbitrary investigation activities, and effectively protect the personal rights and defense rights of the undecided criminals, it is necessary to carry out comprehensive reform of the detention center system. The detention center will be separated from the public security organs and transferred to the judicial administrative organs for management. If this reform can be realized, it will mean that the exercise of management rights of the judicial administrative organs in my country's judicial administrative organs over the detention of pending criminals will also be a major change in my country's judicial administrative system.

transfers the detention center to judicial administrative agencies for management in an established place. This reform itself is not complicated and will not encounter any institutional obstacles. However, under the long-term management of the detention center, it has become a second battlefield for criminal investigation, and has become a tool used by the public security organs to "digate the remaining crimes". It is also the public security organs sentenced to short-term free punishment for those sentenced to The place where criminals execute their sentences, so the reform of the detention center system needs to be guaranteed by a series of supporting measures. First of all, the current "prison investigation" system should be completely abolished. After the judicial administrative organs exercise their management rights over the detention center in the future, they should completely abolish the "deep digging off the remaining crimes" mechanism, and they should not set up "special personnel" or "eye and ears" in the prison account. , nor shall the investigative agency use the number of "deep digging deep and digging deep and digging deep and digging deep and digging deep and the administrative level of the detention center. Secondly, detention centers should not continue to assume the function of execution of punishment. Any criminal who is sentenced to free punishment should be transferred to prison for punishment and receive professional education and correction. In the future, the detention center should become a place for special detention of pending criminals, and according to the principle of presumption of innocence, the criminal suspects and defendants in detention should be treated with dignity, in addition to fully protecting the welfare benefits of the detainees. It should also provide basic convenience for its effective exercise of the right of defense. Again, in the future, the detention center under the management of judicial administrative agencies should not only ensure the convenience of the investigative agency in interrogation in the detention center, but also give defense lawyers the opportunity to meet in a timely manner, so that the meeting and communication between the defense lawyer and the pending criminals in custody can be accessible. Implementation of .

(IV) Management issues of property involved in the case

In addition to the detention center management system, the compulsory disposal and recovery mechanisms of property involved in the case by the three agencies of public security, procuratorial and judicial departments will also cause these agencies to have inappropriate interests in the case, which will affect their neutrality Sex and detachment.At present, in the handling of problems such as seizure, seizure, freezing, auction, and cashing of property involved in the case, my country generally implements the working method of self-disposing of the investigative agency. As a result, the investigation rights and the right to dispose of property involved in the case have resulted in a high concentration, resulting in investigations The direct interest of the agency and the case outcome affects the fairness of judicial activities. Not only that, the court directly made a decision to recover the proceeds of the illegal and criminal proceeds without going through the court trial procedure, and it was responsible for the execution of the case itself. This also affects the fairness of the activities of recovering property involved in the case.

In order to avoid arbitrarily deprived of criminals' legal property and to prevent unreasonable infringement of other individuals' legal property, it is necessary to include the execution right of recovering illegal and criminal proceeds in the criminal execution system under the premise of establishing due process in the recovery process. In other words, the property criminal execution department established by the judicial administrative organ shall, in addition to fines and confiscation of property for execution, shall also exercise the execution power of the department for recovering illegal and criminal proceeds in the effective judgment of the court.

(V) Further changes in the judicial appraisal management system

Through the comprehensive reform of the judicial appraisal system, judicial appraisal institutions have separated from the court and become social appraisal service institutions supervised and managed by judicial administrative agencies, which helps maintain justice. The scientificity and authority of the identification also ensure the neutrality and transcendence of court trials. For those appraisal opinions provided by neutral appraisal institutions, whether they are adopted or not accepted by the judge or collegial panel, there is no longer the problem of the court's "self-examination" to prevent the embarrassment of "melon field and plum blossoms" and "self-examination" Situation.

However, this reform of the judicial appraisal system has not been thoroughly carried out. At that time, the public security organs and procuratorates retained appraisal agencies and appraisal personnel serving the investigation activities of their departments, but these institutions and personnel were prohibited from engaging in activities that provide appraisal services to the society. In the future, as the procuratorate's investigation power of duty crimes is gradually transferred to the state supervisory organs, the judicial appraisal institutions established by the procuratorate may also be transferred to the supervisory organs accordingly. But in any case, this institutional arrangement in which the investigative agency sets up a judicial appraisal agency by itself will still bring about the problem of "self-investing and self-evaluation", making judicial appraisal a vassal of investigative activities and losing its basic neutrality and detachment. Even the basic quality of judicial appraisal as "forensic science" is lost. From the perspective of maintaining the neutrality of judicial appraisal, those judicial appraisal departments set up within the investigative agency in the future should be gradually transferred to judicial administrative agencies for management.

Conclusion

Judicial administrative system reform should be included in the overall framework of judicial system reform. To fully launch the reform of the judicial administrative system, the first thing to do is to redefine the legal functions of the judicial administrative organs. Based on the historical evolution of my country's judicial administrative organs and taking into account the basic goals of judicial system reform, it is necessary to position the judicial administrative organs as managers of "macro judicial administrative affairs" to distinguish them from those exercised by courts, procuratorates and public security organs "Specialized judicial administrative affairs."

transforms many "specialized judicial administrative affairs" into "macro judicial administrative affairs" and makes them included in the management scope of judicial administrative agencies. This is a successful experience in the reform of my country's judicial administrative system. According to the basic experience of judicial administrative system reform, the "macro judicial administrative affairs" of judicial administrative organs mainly includes three components: one is the unified legal service management function; the second is the execution function of effective judicial judgments; and the third is the judicial guarantee function. Of course, the scope and connotation of these three legal functions have undergone various changes, which are somewhat unpredictable. However, no matter how things change, it will remain the same. As functional departments of governments at all levels, judicial administrative organs cannot move towards the traditional "large judicial administrative model" or adopt the "judicial administration and procuratorial business model" of British, American and legal law. After all, judicial administrative organs belong to an administrative organ that controls macro-judicial administrative affairs.Its functional scope will be expanded to a certain extent with the deepening of judicial system reform, from the perspective of avoiding functional conflicts in the concentration of power of courts, prosecutors, and public security organs. This is a reform direction that conforms to judicial laws.