My summer social practice research report

My summer social practice research report
From July 15th, XXth to August 14th, XX, I conducted a one-month internship in the first court of the civil trial of the District People's Court of this Municipality. I was fortunate to have the Vice President Zhu and Li Duanting, who have rich experience in handling cases and high level of business. The guidance of two long judges. During the internship, my main job was to draft a civil judgment or civil ruling that the judge handed over to me, copying, proofreading, and modifying the civil judgment drafted by the judge in the text, and serving the civil judgment and civil ruling that I handled. , drafting the announcement and handling the announcement. During the internship, 10 civil judgments and two civil rulings were drafted. More than 10 civil judgments were proofread, and several civil judgments and civil rulings were served. The announcement was drafted and the "People's Court Newspaper" was reported four times. The cases I handled at work involved loan disputes, divorce disputes, disputes over payment of goods, contract disputes, personal injury compensation disputes for traffic accidents, labor disputes, and so on. In the course of practical work, there are a lot of gains.

1. The legal person must have a comprehensive and solid legal knowledge and good written expression skills.

Thanks to the trust of the two judges, the first task assigned to me on the first day of my internship was to draft a judgment on the loan dispute case that was tried by Judge Zhu for the simple procedure. The case is very simple: B borrowed RMB 100,000 from A and issued a “borrowing” to A. After the expiration of the loan period, B refused to repay it without any reason. A recovered several times and failed to appeal to the court, requesting that order B repay the principal of the loan. And interest, B did not appear in court, the case was absent from trial. Although the case is simple, and I have not felt the vacancy of legal knowledge in substantive law, but since I did not learn the civil procedure law, I don’t understand the "simple program". In the program, my trial of this case is not Clear and almost ignorant of how the costs of litigation are shared. Fortunately, the drafting of the judgment is only a specific part of the litigation process. The lack of understanding of other aspects of the litigation does not affect the operation of this link. However, I still deeply understand that as a legal person working from the facts, I must fully enrich my legal knowledge. Importance: Entity legal knowledge and program legal knowledge are equally important, and they are indispensable. Only knowing substantive law and not knowing the program will not be able to start in practice. I don’t know where to start, only have comprehensive and sturdy laws. Knowledge can work better from the facts.

For the above-mentioned loan dispute case, the case is simple and the facts are very clear: there is a loan contract relationship between Party A and B. The behavior of B constitutes a breach of contract. According to the plaintiff’s claim, B shall be liable for breach of contract according to the Contract Law. The evidence in this case is only one copy. , that is, the "borrowing" issued by B to A. However, the simple case does not mean that it is easy to draft a good judgment. Generally speaking, a civil judgment can be divided into six parts: the first part explains the basic situation of the original defendant in the case, including the name or gender, date of birth and address, and the basic situation of the agent; The case, the situation of the judges, the appearance of the plaintiff and the defendant, and the end of the trial of the case; the third part outlines the original statement and the defendant's defense, this part highlights the higher requirements of the legal practice for the legal person's ability to express words. . Because in civil cases, only about 20% of the parties hired professional lawyers as agents to take full responsibility for litigation matters, including the drafting of legal documents, so the complaints and defenses of most cases were drafted by non-professionals. The content is cumbersome and the legal language is extremely non-standard. Therefore, when summarizing this part, the legal person is required to have considerable textual summarization ability. The concise and accurate legal language should be used to summarize the request of the party and the facts and reasons. The defendant has not arrived. The respondent should indicate that “the defendant XX has not responded”; the fourth part states that the basic facts of the case determined by the court based on the legal and valid evidence provided by the parties, and also requires a brief and accurate legal language as the next applicable law. The fifth part is based on the facts to clarify the court's discussion of the applicable law of the case and the judgment results and legal basis. The argumentation requirements are strict, and most of them are demonstrated in the form of logical "syllogism". The applicable law must be comprehensive and accurate. Part of the legal foundation and textual expression of the legal person It requires the abilities of extremely high; the last part explain who disagrees with this decision filed a protest to protest the court's term and, finally inscribed, giving the judicial officers and the court clerk's name and the date.

In the judgment drafting the above-mentioned loan dispute case, the first four parts are relatively simple, and it is only necessary to summarize the case according to the format, but in the fifth part, that is, the "this court thinks" part of the argument that the law of the case is applicable, I obviously feel it. Lack of writing skills and experience in handling cases: This case is obviously a breach of contract for the loan contract, so I expressed it in the argument as follows:

"... The defendant borrowed RMB 100,000 from the plaintiff and agreed that the loan period was three months. The defendant issued a "debit" issued by the plaintiff to prove that the loan contract between the original defendant was legal and valid, and the defendant refused after the loan term expired. Reimbursement of the loan, the agreement of the breach of the contract, the plaintiff requested to order the defendant to repay the principal interest of the loan, in accordance with the law, the Court will support. According to the provisions of Article 107 of the Contract Law of the People's Republic of China, the judgment is as follows..."

Later, the judge revised it to:

"... The defendant borrowed RMB 100,000 from the plaintiff and agreed to borrow for a period of three months. The defendant issued a "debit" issued by the plaintiff to prove that the creditor's debt relationship established between the original defendant was legal and valid, and was legally protected according to law. The plaintiff requested that the defendant repay the interest on the principal of the loan, which is in compliance with the law and is supported by the court. According to Article 107 of the Contract Law of the People's Republic of China, the judgment is as follows..."

I just why the case did not determine that the original defendant had set up a loan contract to consult the judge. The judge explained that the parties involved in the case did not enter into a written loan agreement, but only had a “debit”. Therefore, strictly speaking, the parties in the case established Oral loan contract, generally does not recognize the oral contract in the judgment, but the essence of the contract relationship is nothing more than the creditor-debt relationship, so the court generally determines the legal creditor's debt relationship between the parties. At the same time, the absence of the words "loan contract" in the judgment may also prevent the parties from claiming that the contract is not established in the protest. The judge's words made me feel that the judge's experience in handling cases is rich, and the language and writing skills are superb: the different expressions of the same meaning of the same legal issue in this case, my expression may lead to the defendant's defense of the contract is not established, and the judge's expression and My meaning is consistent but impeccable. This is a manifestation of a legal person with comprehensive and solid legal knowledge and good written expression skills.

Second, the process of judges breaking the case is actually the process of ascertaining the facts and applying the law.

"Based on facts, we take the law as the criterion." Before I entered the law school, I was familiar with this sentence. However, my understanding of the facts and how to apply the law is a deeper understanding after the internship in the court. The principle of "based on facts and taking the law as the criterion" is embodied in the court investigation of the factual issues in the trial and the collegiate panel on the applicable law.

How to achieve "fact-based"? This is actually how to find out the facts in the court investigation. According to the law, the facts can only be based on the evidence provided by the parties. Therefore, the key to the facts is to examine the legality, authenticity and relevance of the evidence. This is mainly examined by the evidence and cross-examination of the parties in the trial. The evidence includes documentary evidence, physical evidence, audio-visual materials, witness testimony, statement of the parties, appraisal conclusions, and transcripts of the investigation. In the trial practice, the most common are the documentary evidence, the statement of the parties and the testimony of the witness. The evidence must be verified and verified as a basis for determining the facts. In general, evidence provided by a party at the court investigation stage and not subject to authenticity by the other party's cross-examination will be accepted by the court; for evidence provided by one party and the other party has objection to its authenticity, the judge will generally source the evidence. Wait until the party is asked to decide whether to accept the letter after understanding the legality, authenticity and relevance of the evidence. According to the observations and experience in the practice of the court, I found that in the case of documentary and witness testimony, the documentary evidence is more easily accepted by the court, and the witness testimony is usually less credible, and the judge usually does not directly testify with the witness when determining the facts. In order to rely on a certain fact, but to seek documentary evidence or other evidence, witness testimony is only for reference. I think the reason is that the documentary card is generally legal and has high authenticity. It is not easy to be questioned by the other party. The witness testimony is vulnerable to external influences and the testimony is not credible. The examination of evidence to ascertain the facts of the case is the basis and key to the judgment, and the absence of legal facts means the existence of no legal application.

After the facts of the case are ascertained, the next task is to make a fair judgment by “taking the law as the criterion”. When a judge decides a case, he or she generally forms a general judgment direction based on the facts of the case according to the spirit of the law, so that "there is a number in mind", and then in the search for the code, the specific provisions are applied. As in the loan dispute cases listed above, after identifying the facts of the case, I have determined that the case is a contract breach. According to the civil law spirit of civil liability for breach of civil obligations, I formed the general direction for the defendant to breach the contract and assume the liability for breach of contract. Then, look for the contract code to decide to apply the provisions of Article 107 on the liability for breach of contract.

Regarding the applicable legal provisions in the judgment, I have roughly counted the judgments held by the two judges in my office and found that although the types of cases under the jurisdiction of the People’s Court are extremely complex, for a specific type of case, the applicable legal provisions They are concentrated on a few articles of a certain law. For example, cases involving contract breaches are mostly used in Article 107 of the Contract Law. Divorce disputes are often used in Article 32 of the Marriage Law. Involving insurance companies must use the provisions of Article 76 of the Road Traffic Safety Law. The infringement of property rights is mostly subject to Article 117 of the General Principles of Civil Law. The personal injury compensation is more applicable to the General Regulations of the Civil Law. Provisions and the relevant provisions of the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Personal Injury Compensation Cases, etc. In addition, the judges reflected that in the case of civil cases, the basic laws enacted by the NPC and its Standing Committee are better than the "Contract Law", and can directly apply more articles to solve practical problems. Most of the laws are not easy to use and cannot be directly solved. Actual problems often need to be combined with the judicial interpretation of the Supreme People's Court to solve actual cases. China's legislative level needs to be improved. I think this is mainly the result of the rush of legislation by the legislators because they did not go deep into the people's understanding of the national conditions and under the leadership of the "nanny awareness." This may be related to the fact that scholars at this stage of China are involved in the legislation, because basically scholars are "academics", and the law of scholars in the office to close the door to draft is inevitably out of national conditions. Of course, I am unable to verify whether the facts are so.

Third, some understanding of the judge

In the office of the Vice-President, working with the two judges for a month, more or less the judges have a better understanding.

First of all, the pressure on the work of the judge is enormous. First, the workload is large, especially in the case of the people. For example, in the court of the people's court in my internship, the court accepts an average of 800 cases per year, and there are only six judges in the court. The number of trials per person per year is more than 133! Except holidays and weekends, each judge will have to complete a case and make a judgment on average two working days. This is a very intense workload, because for some complicated cases, some need to sit several times, and civil cases are civil The complexity of relationships is mostly complex cases. During the middle of my internship, the judge had assigned me a heavy responsibility to draft a preliminary draft of the two labor dispute cases with more than one million lawsuits and supervised by the superior. The case of the two cases was similar. First, the plaintiff sued the defendant for labor disputes. Afterwards, the defendant counterclaimed the plaintiff in a personal injury dispute. The case was held four times in total. It lasted for more than two years. The legal relationship was complicated and the evidence was numerous. The case file was one or two pounds. I spent three days reading the case file to understand the case basically. It took a week to work overtime to draft the first draft; I also saw that the judge spent six days drafting a judgement of more than a dozen pages, many in civil cases. From this we can see how arduous it is to judge one case on average two working days, and how much pressure the judges are subjected to.

Second, the judge has been subject to more interference. At the same time as my internship, I also conducted a research project on the student research project “Sociology of Judges' Cases”. I also conducted a questionnaire survey on the judges of the People’s Court, the Criminal Court and the Executive Board while experiencing the judge’s case. When asked "what is the biggest pressure when you handle the case?", six judges chose the "administrative stress" option, accounting for 60%. It can be seen that the judge's judgment is subject to administrative interference, and the judge's judgment is still subject to Interference with many other factors. In summary, the judge’s trial independence is not high. According to my observation, the judge's judgment is often related to the parties through administrative interference. Usually, the parties exert pressure on the presiding judge through the administrative leadership of the court. In addition, for a difficult case or a major case, the judge will often take the initiative to ask the court leader or even request the judgment of the higher court, and then make a judgment based on the opinion of the superior. In the labor dispute case mentioned above, the counterclaim plaintiff is rated as four. In the case of disability, one of the claims is to request the decree to counter the defendant’s payment of more than 300,000 yuan of nursing expenses after 20 years of disability, but may request compensation for post-disabled care for the specific level of disability. Fees, the law does not clearly stipulate, for this reason, the court specifically asked the city's intermediate people's court on this issue, the answer was to wait for the similar case in the middle court to be judged after the decision was made, the implication is that the Intermediate People's Court has no specific Comments, it can be seen that the judge's judgment is affected by many factors.

Moreover, many judges are in a sub-health state. The judge's living conditions are worthy of attention. As mentioned above, the judge's work pressure is very great. Under the great work pressure, the judge's body is in a sub-health state. On the second day of my internship at the court, a younger judge in the next office was ill for up to 20 days. According to Judge Li, a former Vice-President of the People’s Court has already suffered from cancer in the years of hardship because of his busy work. Now he is still in chemotherapy, just like a candle. According to my observations, many of the judges in the 30-year-old courts of the People’s Court have already had their white hair. Therefore, we have dubbed the emblem of the judge of the White Head. This is due to the scarcity of judge resources in our country today and the general over-representation of judges. To solve this problem, it is feasible to expand the ranks of judges and reduce the workload of judges per capita. In order to attract more outstanding legal talents to join the ranks of judges, it is necessary to improve the treatment of judges, which may achieve the purpose of "high salary and low security."

Fourth, a few senses

About the trial. It has long been known that the trial of the Chinese court is just a walk through the scene, and this is not unreasonable. In trial practice, the trial is the core way for the court to find out the truth of the case through court investigations and court debates. However, for cases where there are some facts that are clear, controversial, and applicable to simple procedures, if the defendant does not appear in court, I personally think that it is not meaningful to conduct a trial. There are three reasons: First, because the defendant is absent, mediation The procedure cannot be carried out. Second, the plaintiff only needs to prove the evidence in the court investigation stage, and there is no evidence and cross-examination of the defendant. Therefore, the plaintiff does not need to present evidence in court, but can only submit it to the court. Third, the court debate cannot be carried out. Under this circumstance, the court clerk read the court records, the judge announced the opening of the court, the plaintiff complained that the claim was closed, and the trial was not meaningful. Therefore, it is not an exaggeration to say that such trial is a passing. I think it can be simplified, and the judge can make a judgment without having to go to court to save the court resources. Some people may insist on the sacredness of the court's judicial power in the form of a court trial, but I think it is understandable to take this action in the current situation where China's judicial resources are extremely scarce. Of course, the non-trial judgment should be limited to cases where the facts are clear, the dispute is not large, the summary procedure is applied, and the defendant is absent. Other cases must be heard in court.

The role of lawyers in civil litigation. I have learned from Hong Kong film and television since childhood that lawyers are a very challenging profession. To be eloquent, a person who can fight in the court can be competent. A powerful lawyer can make people exonerate and blame. The role is unparalleled. Perhaps the role of Hong Kong lawyers in the Anglo-American legal system can be described above, but in civil law and Chinese courts, the role of lawyers is not comparable to that of lawyers in the Anglo-American legal system. The trial of the Chinese courts was confrontational, emphasizing the mutual evidence and debates of the two defendants, and the courts were passively centered. The trial mode should have provided a perfect stage for lawyers to exert their initiative, but this is not the case. In practice, whether it is the plaintiff’s prosecution or the defendant’s defense, it is usually carried out in writing, with written complaints and defenses, as well as with the agent’s words. Even in the trial, the plaintiff usually reads the complaint and the defendant’s defense stage is omitted; At the stage, the evidence of the lawyer’s evidence and the facts of the evidence usually have a written list of evidence submitted to the court, and the process of proof has become a textbook. During the court debate, according to my experience, the lawyers debated in the courts. The focus summarizes the reasons and evidence that have been reported by the party, and there is nothing new. Therefore, in general, the role of lawyers in the trial is not significant, and its role in the trial is mainly reflected in the evidence of the other party's evidence in the court investigation, through the cross-examination, negating or at least weakening the other party's evidence. The authenticity, legitimacy or relevance of the evidence to achieve the purpose of the evidence is not accepted by the court; second, in the court debate stage, the lawyer focused on the evidence by summing up the evidence and trying to put forward new debates in the existing evidence. At the same time, to criticize the other side's point of view, break the combination, and guide the judge's thinking to the side of thinking. I believe that in civil litigation, the most important role of lawyers is reflected in the collection of evidence before the court, because the basis of the judge's judgment is to find out the facts of the case and make a judgment based on the factual applicable law. As mentioned above, the judge determines the facts. The core lies in the evidence, as long as the lawyer can gather evidence before the trial to prove that the facts on which the claim has been based are sufficient to win.

About the relationship between judges and lawyers. During the internship, I found that many lawyers and judges have a very good relationship. There are always lawyers who come to our office to have tea chat. The relationship between the judge and the lawyer is subtle. In the court, the judge represents the state to conduct the trial. The lawyer acts as an agent on behalf of the parties and conducts a legal game with the other party in the court. Because the judgment of the judge is related to the interests of the parties and also to the interests of the lawyer. For the sake of justice, the law does not allow judges and lawyers to mix any personal feelings in court. On the other hand, many lawyers and judges maintain good friends in private. This is a contradiction - there is no reason to show lawyers and judges. Make a good relationship with no utilitarian ingredients. The judge once said to me profoundly: As a lawyer, how to deal with the court is a profound art. Perhaps, for legal persons interested in working as lawyers, how to deal with the court is a question we should ponder.

About legal skills. The law requires skill. Perhaps it is precisely the legal skills that our legal people rely on to settle down in the future. Because the law is written in black and white on the text, as long as the literate can understand it, the difference between the legal person and the ordinary person lies in us. Not only do we understand the law, but we also know the legal skills and use legal skills to seek benefits for the parties. In the last contract dispute case that was dealt with before the end of my internship, there was such a case: the original told the judge to dismiss the purchase contract signed with the defendant. One of the facts and reasons was that the plaintiff had issued a Notice of Dissolution to the Defendant. However, the defendant denied the existence of the plaintiff’s “Notification of Dissolution” in the argument. The reason was that the plaintiff’s “Declaration of Dissolution” was not confirmed by the signature of the defendant. The plaintiff’s statement was that he personally “dismissed the contract notice”. "Sent to the defendant and the defendant refused to sign." If you open another case in this case and make another hypothesis, the situation will be quite different: if the plaintiff did not personally serve the "de-credit notice" but sent the "de-contract notice" to the defendant by express mail ems, then The above problem does not exist, because the express delivery ems must be signed, as long as the defendant's signature on the express mail envelope is confirmed, the defendant can not be denied, this is a legal skill. The key to quickly finding a case is also a legal skill. For example, the key to successful divorce in divorce cases is to prove that the relationship between husband and wife is completely broken. For rural hukou victims, the compensation for traffic accident death and disability compensation should be based on urban residents. The key to standard calculations is to prove that the victim has lived in the city for one year and has a fixed income. and many more.

V. Conclusion

Although my internship time in the court is only a short month, my gains in this month are self-evident—learning from full theoretical knowledge to zero-distance participation in trial practice, learning the law, feeling the law, Understand the court's handling of the case and personally feel the judge's judgment. I firmly believe that this month's internship will leave a deep mark on my legal career.