China Court Net December 8, 2006 published an article on a ruling lawyers compensation case. I see, feel a need Xiedianshime, although people Weiyan light, but if stems in jets, Butubukuai. To readers to understand the background of the author, following the first article content to make a simple introduction.
May 2006, Ms. Sui Wen in Beijing with the law firm commissioned by the agency agreement signed, the commission heard in the law firm in Beijing Acting accident damages case and agency fees paid 3,000 yuan, Wen Law Firm in Beijing assigned Lu lawyers contractors case. SUI President Roh told his lawyers, the rural accounts, but since 2004 has been married after living in Beijing's Dongcheng District. According to Sui, the rural household registration, Lu lawyers peasant family in accordance with the 2005 annual per capita net income of 7,860 yuan standards, developed by the schedule of compensation for Ms. Sui signature confirmation, to the courts.
September 2006, Ms. Sui received in Beijing Dongcheng District People's Court verdict that in accordance with their own living in the towns of the actual situation, can be calculated in accordance with the standards of urban residents, and the court in view of the plaintiff in accordance with the standards that farmers are not above the law, Support the judgement that the amount of the plaintiff. Calculated in accordance with the two different standards, with Ms. Sui degree of disability, loss of the middle post 39,172 yuan. Ms. Sui Suiyi not aware of the relevant provisions in the circumstances, Lu told her lawyers under the 2005 urban residents per capita disposable income of 17,653 yuan of the standard grounds that the prosecution of Wen Law Firm in Beijing, Lu lawyers that non-compliance Their duties, leading to its loss of 39,172 yuan for Beijing Wen Law Firm in compensation and the return of 3,000 yuan agency fees.
Beijing Dongcheng District People's Court judgement in Beijing Wen Law Firm Ms. Sui 39,172 yuan compensation. The court held that the defendant receive assigned counsel in the commission should be provided after the corresponding legal services, and because the parties ignore the actual situation, resulting in Sui, advocates on disability compensation for damage, so the lawyers did not fulfil its responsibilities, the defendant The plaintiff actual loss should be 39,172 yuan compensation. Because lawyers in the proceedings to pay the labour, should receive compensation, and assigned the case to the defendant's lawyer because of fault and liability have been dealt with, the plaintiff asked the defendant for the return of agency fees 3,000 yuan will not support the claim.
Lu contractors case lawyers the existence of fault » Not fulfill its responsibilities » From the Beijing Dongcheng District People's Court's judgement we can see that the Beijing Dongcheng District People's Court of Justice that there Lu lawyers fault, the failure to fulfil its responsibilities is Needless to doubt. However, the Beijing Dongcheng District People's Court of Justice is so sure how this point? » Chinese courts issued by the network at the end of the article had been scheduled, "the judge said," has provided us with a clear answer. Now read as follows:
"According to" People's Supreme Court on personal injury compensation cases before the law applicable to the interpretation of a number of issues ", disability compensation, dependent people living expenses, compensation for the death of calculation standards of urban residents are divided into branch was allocated income and rural residents The per capita net income family of two.
How to identify victims of the calculation standards, not simply based on the location of household registration, but should be based on their lives, closely related to the work of the premises. April this year, the highest on the calculation of standard hospital for further explanation that the case should be based on the actual situation in reference to the victim's residence, place of residence often, the main source of income, and other factors to determine the victim's calculation standards. "
On this, we can see that the Beijing Dongcheng District People's Court of Justice finds that there Lu lawyers fault, did not fulfil their duties according to two: one is "Supreme People's Court hearing on compensation for personal injury case law applicable to a number of issues The explanation, "another hospital is the highest of the so-called further explanation. This further explain what is it » Is a Chamber of the Supreme People's Court of Yunnan Province Higher People's Court in a case asked the reply, the Supreme People's Court to the Court of a "regular place of residence in the towns of the rural population due to traffic accident victims how to calculate compensation for the cost of reply" ( [2005] The word he No. 25) of the Yunnan Provincial Higher People's Court "will be on the five-man and Zhaotong in Yunnan transport passenger transport company in a contract dispute and understand the legal implications of the application of the instructions" to make the following Answer: "personal injury compensation cases, disability compensation, death compensation payments and living expenses for dependents, should be the case, the actual situation of the victims home, the regular place of residence and other factors, determine the applicable urban residents per capita disposable Income (per capita consumption expenditure), or the per capita net income of rural residents (annual per capita consumption expenditure) standards. In this case, the victim Tang Shun-liang Although rural accounts, but doing business in the city, living, their regular place of residence and the main source of income to both For the city, the cost of damages should be based on local urban residents in the relevant standard. "
"The Supreme People's Court hearing on compensation for personal injury case law applicable to a number of issues of interpretation" of Article 25 stipulates: "The disability compensation for the loss of the ability to work under the victim or the extent of disability levels, according to the seat of the Court of Appeal on an annual per capita of urban residents Or disposable income of rural residents per capita net income standard, since the residual 20 years from the date of the calculation. "Solely on the basis of the judicial interpretation, of course, can not be launched" personal injury compensation cases, disability compensation, damages and deaths were Dependants of the cost of living, should be the case, the actual situation of the victims home, the regular place of residence and other factors, determine the applicable urban residents per capita disposable income (per capita consumption expenditure) or net income of rural residents per capita (per capita annual consumption of life Expenditures) standards. "
Well, let Beijing Dongcheng District People's Court of Justice judgement is the basis of the above-mentioned reply. According to the reply that can exist Lu lawyers fault? » Lu that lawyers can not perform their duties? » Writing from the main purpose of this paper is that the negative answer and make the necessary proof. Author reply through the demonstration effect, ruled out the reply generally binding, or the force of law, to permit legislation: reply that Lu can not be used as the basis for the fault of lawyers there can not be identified as Lu lawyers did not perform their duties basis.
"Constitution" 127th, paragraph 2: "The Supreme People's Court supervision of the local people's courts and special people's courts at all levels of judicial work, supervision of higher-level people's courts at lower levels of people's courts of justice" and "People's Court Organization Law" Article 17 stipulates: "The lower-level people's courts of justice by the higher level people's court supervision." Clearly, the Court's exercise of jurisdiction is independent, on the lower court trial is the relationship between the supervision, guidance on business relations. This relationship is different from supervision and leadership, the so-called leadership, is the leader of the leaders of the directive should fully implement the so-called supervision, is the higher level can not be directly under the instructions of their subordinates, even at lower levels are found Illegal acts, we can only follow the correct procedure. From the system level analysis, "two of Final Appeal Tribunal," the core issue is the independence of the two trials, in view of this, China's current judicial system is the ideal would be on the lower court to define the "monitoring and supervision was" within the framework of, Unlike the lower levels on the executive's "leadership and the led" model.
But so far, on the lower level between the court still has a very serious administrative relations. An executive-level administrative Amun-even on the lower court, has seriously affected the independence of the trial court, kill the judge's "independent determination" and "free spirit." Judicial practice, there are higher courts (including the Supreme Court) on the lower courts are handling the case, take the initiative to approval, notification, letter or telephone orders, and other informal means of instruction, the case of a magistrate issued advice to the lower court This almost become accustomed to the many judges "practices." And Correspondingly, the lower courts were making in order to avoid accountability, obtained judgement for the stability, are often also the case during figured out later by their superiors for the Court's opinion, or even directly to the cases "reported" to the higher court, in order to obtain prior Superior Court's judgement, thereby avoiding the magistrate concluded the case was eventually withdrawn by the higher court. It can be said that this is not normal on the lower court on the case within the "communication" and "exchanges" or even "ask" approach, resulting in lower courts more and more a lack of independence of spirit and tradition of the trial. The so-called case referrals, refers to China's lower courts in hearing specific cases, and in fact that the law applicable to such areas Na Buzhun, before the higher court referrals, and so judgement. China's law does not expressly provided, but in practice, the lower court ruling in the case not before reporting to the higher court, asked the practice is widespread, and that such practices have often been the acquiescence or even higher court approval. Especially in major cases heard in the course of the lower court to the higher court reporting, asked the phenomenon even more serious. Investigations asked the system to enable the higher court directly involved in the first instance trials, and destroyed the lower court in the trial of independence, and in effect depriving the appellant the right to appeal, so that the second trial of Final Appeal reduced to a form of a lower court in enhancing The adjudication of cases to the higher court's dependence on the lower court to bring a strong inter-dependence of the color, supervision, a mere formality, the administration of justice and undermined the justice of the triangular pattern that impedes the independence of the trial judge's power Realization of the impact of justice, destruction of the trial-level judicial system.
The so-called request, "(to higher authorities) for instructions: this matter must be decided only after seeking instructions superiors." The highest hospital reply is a product of lower-level people's courts to seek instructions, letters, "the letter: letters, communications, correspondence," is the reply against the lower court asked the letter reply. Rather, the reply is that the lower level people's court's instructions, the so-called instructions, which is "superior to their subordinates or their elders to younger people that deal with a problem of principles and methods." Request, reply or instructions, is a typical administrative work , And "constitution" and "People's Court Organization Law" established by the relationship between the courts against the will oversee the relationship evolved into the relationship between judges evolved into magistrates. Doctor of Law, the Law School of Qinghua University, Associate Professor easily on the extension of the Friends of the Shaanxi Provincial Higher People's Court cancelled the lower court hearing the case asked the higher court, told reporters: "the judges decide cases reported in advance to a higher court, asked the practice should be completely banned completely. For This is, as long as the people's court determination, does not require any reform, we can do. "
Demonstration of the above cases request, the reply is not legality. The author believes that even if the set aside request, the reply is not legitimacy aside, the reply or not universally binding legal effect. Hospital is the highest maximum reply homes for lower-level People's Court on the application of legal cases dealing with the guidance, only to be asked by the Court of guiding significance, even in the reality of China's national conditions, from the highest hospital to trigger the lower-level documents Court after the lower courts have guiding significance, nor with the highest hospital compare the effectiveness of judicial interpretation, the highest judicial interpretation of homes is to decide cases by the courts at all levels should abide by, and the reply stripping out the factors, only a guide Observations only, lower courts can refer to, but not for lower court judges are binding. In other words, the reply in the spirit of the judges in specific cases cited in the judgement of the former is only a guide, not legally binding, lower court judges need not be invoked only in specific ruling by the judge invoked only after a legal Binding, legally binding on the basis of a judgement, rather than reply. Even so, even if the courts at all levels should be observed, can not be bound by the court outside the legal or natural persons, including of course the lawyers. Here based on a fundamental principle of law has not been made public not to, that is, without a legal procedure law to the public announcement, that is not binding on the public. In other words, all levels of courts in hearing such cases, when the compensation requested by cities and towns seek compensation standards for compensation, they can not "the only law" but "only", the highest hospital reply quoted by the guidelines of the town Residents compensation standards judgement, it is understandable, what the standard mining itself is a value judgement (explained below), but can not reply as a lawyer must abide by the law, negligence is not invoked, that is dereliction of duty. Just imagine, if the request of lawyers for the people's courts every request, reply and other documents are all aware, as a lawyer obligations or duties, it can not afford lawyers are so heavy, the Law Society's role is to invoke the law to the public, and Is not within the court documents.
Back to this case, the court cited the reply only public hospital is the highest court of a lower court documents, and no homes to the highest (main) name, through legal procedures to the public announcement (such as judicial interpretation), therefore, According to the reply that there fault Lu lawyers, lawyers that Lu did not perform their duties is not correct, as the public Lu, one of the lawyers, is clearly not the judges, and not necessarily reply to understand the content and subject to reply binding obligations. Therefore, Lu lawyers did not invoke reply, and there is no fault, no breach of duty.
In addition, in order to identify lawyers Lu fault there, there dereliction of duty, unless the standard reply that the problem is the judgement of the general public knowing that normal people are rational, common-sense issue. Clearly, this is a rural accounts of citizens, in that compensation, "the case should be based on the actual situation of the victims home, the regular place of residence and other factors, determine the applicable urban residents per capita disposable income (per capita consumption expenditures) Or the per capita net income of rural residents (annual per capita consumption expenditure) of the standard "no clear understanding of the law before, is a value judgement, see-is a benevolent, wise men see the issue of Chile, was said to be a value judgement, from the The wording of the highest hospital reply "should" be reflected in the word. Since the Yunnan Provincial Higher People's Court, even dignified the judge how to proceed on the standards that must be conducted to the highest hospital referrals, then how can we force a general counsel with the highest standards of the hospital the same judgement, not Such a judgement was ruling bear the responsibility for judgement errors? » From China's history and the existing system, household registration is often a judgement of citizenship, the status of standards, according to the household registration to determine the relevant economic interests of citizens is an indisputable show. According to Lu lawyers, "the Supreme People's Court hearing on compensation for personal injury case law applicable to the interpretation of a number of issues" under the standard by urban or rural, rural-based account of Ms. Sui by rural standards of compensation requested compensation is in line with reality and in accordance with customary The.
Look forward to in Beijing and Lu Wen law firm of lawyers to appeal, regardless of the outcome of final judgement, at least can be sure of is that the eradication of the court's request, reply, and so there will be little to promote the role. From this point of speaking, as a legal person, that should have won. Finally, notice that a law should be pleased that the people, the Shaanxi High Court asked the abolition of cases taken on a gratifying step, the hospital recently adopted by the Shaanxi Provincial Court of implementing the "people's court reform outline of the second five-year" implementation Views, clearly put forward reform and improve the people's courts at lower levels on the law applicable to the difficult problem of higher-level People's Court asked the system, the phasing out of case referrals.
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