Wearing the Robes: The Future Record of Three Legal Scholars

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Legal Weekly Reporter Wu Jie

"On December 28, 2012, the 11th session of the National People's Congress Standing Committee's 30th meeting passed a grounp of personnel appointment and removals, and three eminent legal experts were appointed as Deputy Division heads within the Supreme People's Court." (SPC)

 

"The SPC's statistics show that as of the first half of 2011, there were already 14 provincial, city or district basic courts receiving some Law Schools Professor or core practitioners to take adjunct positions as deputy court presidents, court president clerks, or division chief clerks. This is the first time, however, that the SPC has invited scholars to take adjunct postitions on a somewhat larger scale. "

 

"According to a list of appointments and dismissals, Beijing Normal University's Criminal Law Science Research Institute's Deputy Director of Daily Operations Lu Jianping was appointed the Deputy Division head of the third criminal trial section; Renmin University Law School Civil and Commercial Law Research Office Director, Yao Hui, was appointed as deputy division chief of the first civil trial section; Dean Xue Gangling (female) of China University of Politics and Law, Law School, was appointed as deputy director of the Administrative Chamber."

 

"These three scholars, all born in 1960s, are all qualified professors and doctoral candidate supervisors, and taking this adjunct position at the SPC does not at all mean that they are leaving their original teaching positions. Their engagement, however, has still become a major event in legal circles, and been closely followed from many sides."

 

“学而优则仕”

 

"At present, the three legal experts have not formally taken office."

 

"Before Beijing Normal University Criminal Law Science Research Insitute Deputy Director for Daily affairs, Lu Jianpin received the invitation to be a Deputy-division chief at the SPC, he already had experience taking up adjunct positions; in 2008 he held a post as the Vice-president of the Haidian District Procuratorate in Beijing."

 

Lu Jianping holds a bachelors in law from Renmin University, a Masters in Law from France's Montpellier University, and a PhD in Criminal Lawal law. His primary research area is Chinese criminal law, criminology, criminal policy and foreign criminal law one of the fourth season's "top ten outstanding young Jurists in China"

 

When Lu Jianping was not yet 16 years old, he entered university, during his time at Renmin University he studied under Gao Mingxuan, Wang Zuofu and others of the older generation of criminal law scholars. Shortly after the Reform and Opening, he was sent overseas as an exchange students sent by the government, and was also the first of the students sent to France for study to graduate early and return to China.

 

In the eyes of Lu Jianping, legal scholars' mission is not just to engage in academic research, but is also to actively go participate in practice. Lu Jianping has said that the Criminal Law is relatively stable and it society that is changing; only through flexibly supplementing policy can the justness of the criminal system be tested by practice.

 

In 2008, Lu Jianping said in a media interview that while his post as a procuratorate's vice-president was for a limited term, he had already fully immersed himself in the procuratorate's work. He felt that handling matters in the procuratorate involved an element of deep thinking and prudence, beyond that in his university work.

 

He has always believed in "practice before theory", and that practice and legislation are the two paths for promoting the overall progress of rule of law. He said that although some view adjunct positions as 'fake positions', he is fresh and excited, whatever may come, and hopes that through his own hard work he can bring something of use to the judicial organs.

 

Renmin University Law School Professor Yao Hui was appointed as the deputy division-chief of the first civil trial section. Yao Hui has a bachelors in law from East China University of Politics and Law, and a Masters and Doctorate in law from Renmin University. His research areas are general principles of civil law, personality rights and torts. He has served concurrently as a member of the Beijing Municipal Government's Legislation Experts Committee, the Beijing Procuratorate's Expert Advisory Committee on Civil Administration Prosecution, and the Tianjin Municipal Procuratorate's First Expert Advisory Committee.

 

When this professor, who combines teaching with inspiration and pays equal attention to both theory and practice, holds class, a lot of people tend to show up. His class is always a packed house, and sometimes when there are no seats, some will pull in stools.

Although his work at the university is far from relaxed, Yao Hui thinks that taking the adjunct position at the court will be good excercise. "The Court's judges might all have similar ways of thinking, if a legal expert can bring some academic legal knowledge to the table and quickly explain his thinking or raise a few suggestions, it may stimulate everyone's thinking, and has a lot of advantages.

 

Yao Hui said that he has often been invited to participate in SPC meetings or the formulation of judicial interpretations before, but now these things could become part of his own work.

 

By convention, adjunct positions do not require one to keep office hours, but might only require one workday each week; it won't have too large an impact on university teaching duties.

 

Dean Xue Ganglin of Renmin University Law School, the only woman selected this time, was a National Top Ten Young Legal Scholar in the fifth season, and is given a lot of credence in legal circles.

 

Xue Gangling concurrently serves as a special procurator at the procuratorate, a member of the experts committee at the Central Government Leadership Office for Governance of Commercial Bribery, a member of the experts committee at the State Council Office on Reform of the Administrative Approvals System, A member of the Beijing Municipal Politics and Law Office Administrative Review Committee, A leg consultant of the Fengtai district government, a member of the Chaoyang district expert consultants group on governance under law, and a member of the Beijing municipal legal experts group on environmental law.

 

Xue Gangling has said: "A true legal must be grounded, be dedicated to addressing China's problems, whether they be theoretical problems or problems in practice. It's not how many articles you publish, but how many problems you resolve.

 

法律实践需要学术营养

 

On July 22 of this year, the Supreme People's Court issued the "Guiding Opinion on Establishing a Mechanism for Two-way Communication Between Courts and Law Schools (hereinafter referred to as the Guidelines), calling for the adoption of measures such as "going out, please come in" to promote the merging of legal theory and trial practice, and actively explore mechanisms for training excellent legal personnel.

 

The procuratorate began this kind of two-way exchange comparatively early.Back in 1994, the Beijing Haidian District People's Procuratorate launched an adjunct scholar position system. After the Haidian District Procuratorate adjunct situation bore fruit, the Beijing People's Procuratorate released its " Opinions on Furthering the Recruitment of Legal Expert to Serve as Adjunct Deputy Chiefs in Branch, District and County Pocuratorates" , the first regulation to create procedures for adjunct placement of legal experts.

 

"It is necessary that the adjunct placement of legal experts continue as a program." said Zeng Jianming, Chief of the Supreme People's Procuratorate at the welcome recetion for the second wave of legal experts to take adjunct positions at the SPP.

At the 11th plenary session of the National people's Congress , "selecting legal experts and scholars for adjunct placements in the procuracy" was put into the work report of the Supreme People's Procuratorate for the first time.

 

Actually, a person in authority at the Supreme People's Court Governance Department revealed long ago during an interview that Supreme Court authorities would employ some expert scholars as testing exercise of an adjunct position system, to participate in research on adjudication, summarizing trial experience, formulating judicial policy, debate over judicial interpretations and collection guiding case examples.

 

Han Dayuan, Dean of Renmin University of China Law School, believes that giving professors adjunct placements can provide theoretical support for the judicial practice, and can also feedback new cases and experience from judicial practice into teaching. Moreover Supreme Court has promulgated a guiding opinion specifically on this, that is expected to institutionalize and standardize all forms of this two-way communication.

 

曾在北京市第二中级人民法院挂职工作的中国政法大学法学院教授许身健对法治周末记者说:“目前法学教育与法学实践之间存在一道鸿沟,专家学者到法院参与审判或调研工作,等于在理论与实践之间架起一道桥梁。法学专家到法院挂职是卓越法律人才教育培养计划的内容。”

 

许身健所说的卓越法律人才教育培养计划的内容,是2011年12月中央政法委和教育部《关于实施卓越法律人才教育培养计划的若干意见》。加强人员相互交流是《指导意见》的核心内容。经组织部门同意,各高级人民法院可定期向法学院校选派2至3名优秀专家、学者到本院或下级人民法院挂职锻炼,担任相应领导职务,参与人民法院的审判或调研工作,具备条件的可列席审判委员会。

 

最高人民法院政治部有关负责人介绍说,对于卓越法律人才培养计划中选派1000名法学教师到法律实务部门挂职的规定,选派到法院的专家人数应该占到总人数的三分之一,而每名专家的挂职时间为1至2年,以10年为期,各省高院应该每年选任2至3名专家,这就与中央政法委与教育部制定的卓越法律人才教育培养计划衔接了起来。

 

最高人民法院院长王胜俊在学习贯彻十一届全国人大四次会议精神电视电话会议上也曾强调,“要加强与政法院校的人才和业务交流,充实审判力量,提高司法水平”。

 

一位在法学院任兼职教授的区人民法院院长曾说:“专家请进来,法官的眼界提高了,资深法官走出去,为法学研究注入来自审判一线的鲜活资料,法学理论与司法实践在交流平台上碰撞出火花,法官学者实现了双赢。”

 

法学研究需要实践土壤

 

许身健表示,其实,法律学者更需要司法实践的机会。他说,在学校时虽然知道法律教育存在一定的问题,但是到法院之后才发现这种脱节比想象的严重。“在学校封闭的环境中,我们也不知道要开设怎样的课程或制定怎样的教学内容才能真正培养出能够解决问题的法律人才,很多学生毕业的时候还没有做好职业准备。”

 

正是在法院挂职的过程中,许身健渐渐了解了法官们思考问题、解决问题、处理问题的一些共同特点。回到学校后,他开始思考如何就这个职业特点,在教学的过程中作出调整,根据现实需要去设计课程内容,提升教育方法。

 

不仅在教学上有了思考,对于法律实践,许身健也有了更深的认识。“以前研究专业问题的时候会比较简单,就是从法律到法律。有了挂职的经历后,看问题时可能就会换一个角度,现在的思考更加现实、理性,也会更深入地了解每个司法裁判背后的一些动因。”

 

同时,法院方面也常常会做一些调研或者课题。许身健说,以前的话可能是法院拿出一个成品,这些专家去开会,论证这个结果是好还是不好。如果学者到单位挂职,那么就会去参加更加细致的工作,甚至包括制定问卷,调查计划,并在这个过程当中发挥法律人的特长,随时去总结,改进或者提升。

 

当然,既然是双向交流机制,更多优秀的法官到学校任职、授课,这个机制才是完整的。

 

法官到学校来上课,他们教的课程更加的鲜活、生动。许身健接受法治周末记者采访时表示,现在法学院不能说没有案例的教育,但是都是一些非常陈旧,非常简单的案子。希望通过法官、检察官的授课,让学生接触一些符合现在法律环境的新案子,为学生打开一扇窗户,了解司法实务的具体状况,激发他们对法律深层次的思考和反思。

 

而对于法官、检察官到高校任职,韩大元院长认为目前交流机制尚有些制度需要对接。“学者在法院中挂职一般是一年或两年,但法官或者检察官来高校担任教师,最长就一个学期,短期的仅仅一两个月。”

 

韩大元说,如果他们能够有一年以上来学校任教,就能系统地开设课程,但从法院检察院方面来看,人事制度还不能完全对接,“现在普遍案多人少,法官检察官通常以讲座形式来参与教学,但我们的确希望他们能起码保证参与一个学期的长度”。

 

中国人民大学法学院办公室主任乔鹏对法治周末记者说,学校一直有教授到司法部门挂职的情况,大家也都是比较支持的。理论联系实际,教学和科研都需要一些鲜活和生动的案例。

 

挂职不如职业转换

 

对于三位法学专家被任命为最高人民法院相关业务庭副庭长,在叫好声中,也有一些不同观点。

 

清华大学法学院副教授程啸也通过微博表示,即便是法学教授,如果没有通过国家统一司法考试取得资格,也不得担任法官。全国人大常委会任命三位法学教授担任的是业务庭的副庭长,而依据法官法第2条,副庭长属于法官。鉴于三位教授属初任法官,故必须通过国家司法考试取得资格才可以。

 

法律学者、北京理工大学司法高等研究所主任徐昕告诉法治周末记者,目前的挂职形式意义不会太大。他呼吁应该依行政逻辑运作,尽快建立从律师、学者到司法官的法律职业转换制度。法官、检察官可以面向社会选拔,特别是从律师中来选拔,这才是建立中国法律职业共同体的根本。

 

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