Several Provisions of the Supreme People's Court on Further Strengthening the Duties of the Collegiate Bench

最高人民法院关于进一步加强合议庭职责的若干规定

Promulgating Institution: Supreme People's Court

Document Number: Fa Shi [2010] No. 1

Promulgating Date: 01/11/2010

Effective Date: 02/01/2010

颁布机关: 最高人民法院

文    号: 法释[2010]1号

颁布时间: 01/11/2010

实施时间: 02/01/2010

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正文

(Adopted at the 1479th meeting of the Trial Committee of the Supreme People's Court on December 14, 2009)

（2009年12月14日最高人民法院审判委员会第1479次会议通过）

In order to further strengthen the adjudicative duties of collegiate benches and bring into full play the functions of collegiate benches, these Provisions are formulated in accordance with the Law of the Organization of the People's Courts of the People's Republic of China and relevant legal provisions and based on the actual work of the people's courts.

    为了进一步加强合议庭的审判职责，充分发挥合议庭的职能作用，根据《中华人民共和国人民法院组织法》和有关法律规定，结合人民法院工作实际，制定本规定。

   Article 1   The collegiate bench is the fundamental adjudication organization of a people's court. All the members of the collegiate bench equally participate in the hearing, deliberation and judgment of a case and perform their adjudicative duties in accordance with the law.

     第一条 合议庭是人民法院的基本审判组织。合议庭全体成员平等参与案件的审理、评议和裁判,依法履行审判职责。

   Article 2   A collegiate bench is made up of a judge, assistant judges or people's assessors selected randomly. The members of a collegiate bench are relatively fixed and shall conduct exchanges on a regular basis. People's assessors joining the collegiate bench shall be selected randomly from the list of people's assessors.

     第二条 合议庭由审判员、助理审判员或者人民陪审员随机组成。合议庭成员相对固定的,应当定期交流。人民陪审员参加合议庭的,应当从人民陪审员名单中随机抽取确定。

   Article 3   The judge in charge shall perform the following duties:

(1) takes charge of or guide adjudication assistants to handle pre-court preparation work such as pre-court conciliation and the exchange of evidence;

(2) drafts the outline for court hearing and prepare records of review;

(3) assists the chief judge to organize court hearing activities;

(4) prepares hearing reports in a timely manner within the stipulated period;

(5) designated by the chief judge to report a case to the Adjudication Committee in the event that the case has to be transferred to the Adjudication Committee for discussion;

(6) prepares judgment documents for submission to the collegiate bench for review;

(7) handles other matters relating to the adjudication.

     第三条 承办法官履行下列职责:

    (一)主持或者指导审判辅助人员进行庭前调解、证据交换等庭前准备工作;

    (二)拟定庭审提纲,制作阅卷笔录;

    (三)协助审判长组织法庭审理活动;

    (四)在规定期限内及时制作审理报告;

    (五)案件需要提交审判委员会讨论的,受审判长指派向审判委员会汇报案件;

    (六)制作裁判文书提交合议庭审核;

    (七)办理有关审判的其他事项。

   Article 4   All the members of the collegiate bench shall review cases that are not heard in court in accordance with the law and shall submit opinions on the review in writing where necessary.

     第四条 依法不开庭审理的案件,合议庭全体成员均应当阅卷,必要时提交书面阅卷意见。

   Article 5   All the members of the collegiate bench shall jointly attend court hearing, shall not be absent, retreat during the court session or be engaged in activities not related to the court hearing. If a member of the collegiate bench does not attend court hearing, retreats during the court session or is engaged in activities not related to the court hearing and the party concerned raises objection, rectification shall be made. If the collegiate bench does not make rectification, the parties concerned may request the court to adjourn the hearing and include the relevant situation in the court hearing records.

     第五条 开庭审理时,合议庭全体成员应当共同参加,不得缺席、中途退庭或者从事与该庭审无关的活动。合议庭成员未参加庭审、中途退庭或者从事与该庭审无关的活动,当事人提出异议的,应当纠正。合议庭仍不纠正的,当事人可以要求休庭,并将有关情况记入庭审笔录。

   Article 6   All the members of the collegiate bench shall participate in the deliberation of the case. When deliberating on a case, the members of the collegiate bench shall voice their opinions on issues of the case, such as the adoption of evidence, the ascertainment of facts, applicability of the law, judgment results and litigation procedures. Where necessary, the members of the collegiate bench may submit opinions reached at the deliberation in writing.

Members of the collegiate bench who give opinions during deliberation will not be subject to liability.

     第六条 合议庭全体成员均应当参加案件评议。评议案件时,合议庭成员应当针对案件的证据采信、事实认定、法律适用、裁判结果以及诉讼程序等问题充分发表意见。必要时,合议庭成员还可提交书面评议意见。

    合议庭成员评议时发表意见不受追究。

   Article 7   Save as cases transferred to the Adjudication Committee for discussion, the collegiate bench will make judgment or ruling on cases for which all the opinions or the majority of opinions reached at deliberation are the same in accordance with the law. The chief judge may request the president or tribunal director to organize relevant adjudication personnel to discuss the following cases and the members of the collegiate bench shall participate in the discussion:

(1) major, difficult or complicated cases or new types of cases;

(2) cases for which members of the collegiate bench show great divergence of opinions on ascertainment of facts or applicability of the laws;

(3) cases for which the opinions of the collegiate bench may be inconsistent with the judgment of the court or court of a higher level on previous cases of the same type;

(4) cases of strong collective dispute reflected by the parties concerned;

(5) other cases that are requested by the chief judge to be discussed or that need to be discussed according to the opinion of the president or the tribunal director.

The opinions on the above cases reached at the discussion shall be submitted to the collegiate bench for reference and shall not affect the judgment made by the collegiate bench in accordance with the law.

     第七条 除提交审判委员会讨论的案件外,合议庭对评议意见一致或者形成多数意见的案件,依法作出判决或者裁定。下列案件可以由审判长提请院长或者庭长决定组织相关审判人员共同讨论,合议庭成员应当参加:

    (一)重大、疑难、复杂或者新类型的案件;

    (二)合议庭在事实认定或法律适用上有重大分歧的案件;

    (三)合议庭意见与本院或上级法院以往同类型案件的裁判有可能不一致的案件;

    (四)当事人反映强烈的群体性纠纷案件;

    (五)经审判长提请且院长或者庭长认为确有必要讨论的其他案件。

    上述案件的讨论意见供合议庭参考,不影响合议庭依法作出裁判。

   Article 8   The presidents, vice presidents, tribunal directors and vice tribunal directors of the people's courts at all levels shall join the collegiate bench in hearing the cases and shall gradually increase the number of cases heard.

     第八条 各级人民法院的院长、副院长、庭长、副庭长应当参加合议庭审理案件,并逐步增加审理案件的数量。

   Article 9   The people's courts at all levels shall establish an appraisal mechanism for the implementation of the collegiate system and shall include the appraisal results in the post performance appraisal system. The appraisal may be conducted by the random inspection of citations, the evaluation of cases, the examination of the court hearing situation and the interview of the parties concerned. The appraisal shall cover the following areas:

(2) the status of participation in court hearing by all the members of the collegiate bench;

(2) the status of the participation of the president and tribunal director in the collegiate bench in court hearing;

(3) the status of the Adjudication Committee's participation in the collegiate bench in court hearing;

(4) the status of the judge in charge's preparation of records of review, hearing reports and judgment documents;

(5) the status of the submission of review opinions and the giving of opinions reached at deliberation by other members of the collegiate bench;

(6) Other matters that should be appraised.

     第九条 各级人民法院应当建立合议制落实情况的考评机制,并将考评结果纳入岗位绩效考评体系。考评可采取抽查卷宗、案件评查、检查庭审情况、回访当事人等方式。考评包括以下内容:

    (一)合议庭全体成员参加庭审的情况;

    (二)院长、庭长参加合议庭庭审的情况;

    (三)审判委员会委员参加合议庭庭审的情况;

    (四)承办法官制作阅卷笔录、审理报告以及裁判文书的情况;

    (五)合议庭其他成员提交阅卷意见、发表评议意见的情况;

    (六)其他应当考核的事项。

   Article 10   Members of the collegiate bench engaging in illegal adjudication acts shall be subject to corresponding liabilities in accordance with provisions such as the Measures on Imposing Liabilities for Illegal Adjudication by Adjudication Personnel of the People's Courts (For Trial Implementation). Members of the collegiate bench shall not assume liability if the case heard by the collegiate bench belongs to any of the following cases:

(1) the original judgment of the case is changed or the case has to be re-tried due to deviation in legal understanding and knowledge;

(2) the original judgment of the case is changed or the case has to be re-tried due to deviation in the understanding of the facts and evidence of the case;

(3) the original judgment of the case is changed or the case has to be re-tried due to new evidence;

(4) the original judgment of the case is changed or the case has to be re-tried due to amendment of the laws or policy adjustment;

(5) the original judgment of the case is changed or the case has to be re-tried due to revocation or changes in the other legal documents which serve as the basis of judgment;

(6) Other situations under which liability shall not be assumed for the performance of adjudication duties in accordance with the law.

     第十条 合议庭组成人员存在违法审判行为的,应当按照《人民法院审判人员违法审判责任追究办法(试行)》等规定追究相应责任。合议庭审理案件有下列情形之一的,合议庭成员不承担责任:

    (一)因对法律理解和认识上的偏差而导致案件被改判或者发回重审的;

    (二)因对案件事实和证据认识上的偏差而导致案件被改判或者发回重审的;

    (三)因新的证据而导致案件被改判或者发回重审的;

    (四)因法律修订或者政策调整而导致案件被改判或者发回重审的;

    (五)因裁判所依据的其他法律文书被撤销或变更而导致案件被改判或者发回重审的;

    (六)其他依法履行审判职责不应当承担责任的情形。

   Article 11   A collegiate bench that has to be set up in accordance with the law when performing job duties shall be set up in accordance with these Provisions. 

     第十一条 执行工作中依法需要组成合议庭的,参照本规定执行。

   Article 12   In the event that the judicial interpretations issued previously by this Court are inconsistent with these Provisions, these Provisions shall prevail.

     第十二条 本院以前发布的司法解释与本规定不一致的，以本规定为准。