证据、事实、法律规范与法官助理的诉讼准备

Evidence,Facts,Legal Norms and the Assistant's Preparing of Lawsuits

诉讼是一个程序和实体逐步展开与形成的过程,案件梳理和诉讼准备仅是其中的阶段性事务,程序正当性要求并不高。通过梳理一定数量的民事判决书可以看出,我国基层、中级法院应对的95%以上民事纠纷可以划归为简单或一般案件,且类型比较集中,以证据、事实和法律规范梳理为主的诉讼准备任务均在法官助理能力承受范围内。法官助理按照类型化、流程化模式管理、准备案件,待诉讼要素初步形成,案件审理时机成熟,再交由法官听审和裁判。法官助理管理和准备案件,法官听审、裁判案件,二者按流程分段操作诉讼程序,是配置司法人力资源比较恰当的选项。

Civil litigation is a forming process of procedure and entities,and in this process,only the final hearing procedure has a higher legitimacy requirement.By contrast,the preparation of lawsuits in pretrial is a temporary task,so it may demand a low legitimacy requirement.The task of preparing lawsuit can be delivered to the assistant of judges,and the pretrial procedure can be mastered by him/her.When the elements of lawsuit are formed,and the time of trying is appropriate,the case can be handed over to judge for hearing and judging.By sorting out many civil judgments,we can find that more than 95% civil disputes in our country can be classified as simple or general cases.The preparation task of lawsuit with evidence,facts and legal norms are all in the working capacity of the assistant of judges.The assistant preparing the case,the judge hearing and judging the case,and they deal with the different stages of the proceedings respectively in accordance with the process of staged operation procedure,which is the best option for judicial personnel allocation.