Article 41, paragraph 2, of the new Civil Procedure Law, which went into effect on January 1, 2022, provides: "If an intermediate people's court concludes a civil case of second instance by applying summary procedures to the first instance or appeals against the ruling, and the facts are clear and the relationship between rights and obligations is clear, with the consent of both parties, a single judge may try the case." Article 40 of the original Civil Procedure Law stipulates that civil cases of second instance shall be tried by a collegial panel of judges, which shall be amended to be tried by a collegial panel composed of judges and one judge alone. Article 176, paragraph 1, also provides: "The people's court of second instance shall hold a hearing on an appeal case." The same paragraph also stipulates the pre-trial investigation procedures: "If, after reviewing the papers, investigating and questioning the parties, no new facts, evidence or reasons have been presented and the people's court considers that it is not necessary to hold a hearing, it may not hold a hearing." Article 169, paragraph 1, of the former Civil Procedure Law stipulates that after the pre-trial investigation procedure, the collegial panel shall decide whether to hold a trial, and the people's court shall decide whether to hold a trial.

On December 24, 2021, the Standing Committee of the National People's Congress made 16 decisions to amend the Civil Procedure Law, including 5 articles involving trial organization or related content, which for the first time clarified that a single judge can handle cases of second instance alone, and for the first time put forward legislative requirements for the accurate application of trial methods in civil proceedings of second instance. For the first time, the parties have the right to choose and object to the trial organization and trial method.

Since the 1980s, it has become the consensus and normal in the judicial circle that the second trial of civil proceedings is held by a collegial panel of judges. Court hearing is the principle, written hearing is an exception, even if written hearing, also organize the parties mediation, to ensure the parties mediation rights. The practice of adhering to the trial of civil litigation in the second instance has also guided criminal litigation to change the mode of second instance based on written trial, which has become a landmark achievement of trial mode reform.

In recent years, the second trial of civil proceedings, which is held by a collegial panel of judges, has gradually become a judicial luxury. Even if a collegial panel is composed of judges, a single judge presides over the pre-trial investigation and interview, instead of a collegial panel, which has become the standard arrangement of second instance. There are obvious problems of inconsistency between name and reality in the second trial of civil procedure, whether it is the trial organization or the trial method. From the perspective of diverting complicated and simple cases and improving judicial efficiency, the method of applying collegial trial system to all cases of second instance is indeed worth adjusting. However, the problem of the irregular organization of civil litigation in the second instance not only exists in the unclear boundary between the collegial system and the sole system, but also in the replacement of the collegial panel by the pre-trial investigation and the more prominent performance is that the assistant judge replaces the judge to preside over the pre-trial investigation and replaces the collegial panel or the sole judge to hold the trial.

Example 1: Song Moumou's application for retrial heard by Sichuan Provincial High People's Court in December 2017. Song applied for a retrial on the grounds that "the second trial organization violated the law, and three people signed the second trial judgment but only one judge participated in the trial." The Sichuan Provincial High People's Court reviewed that: "In the second instance of this case, a judge and the judge's assistant organized the parties to the case to conduct a court investigation, not a court hearing." Article 169 of the Civil Procedure Law of the People's Republic of China stipulates that the people's court of second instance shall form a collegial panel to hear an appeal case. If, after reviewing papers, investigating and questioning the parties, no new facts, evidence or reasons have been presented and the collegial panel considers it unnecessary to hold a hearing, it may not hold a hearing. Therefore, the trial organization of the second instance in this case is legitimate."

Case 2: The case of He XX applying for retrial tried by Chongqing High People's Court in June 2019. He XX applied for a retrial on the grounds that "in the trial of the second instance, it is illegal for the judge assistant to listen to the opinions of the parties", and the Chongqing Higher People's Court reviewed that: "The court of second instance formed a collegial panel to try the case in accordance with the law, and the trial organization of the second instance was legitimate." The judge assistant listening to the opinions of the parties is to assist the trial personnel to handle the case, the act does not violate the relevant provisions of the law, He XX the application for retrial does not belong to the "People's Republic of China Civil Procedure Law" article 200 of the circumstances that should be retrial, so the claim, the court does not support."

Example 3: In November 2021, the Shandong High People's Court of Second Instance confirmed case of compulsory liquidation of claims of a company in Shanghai and a company in Shandong 4. In order to prove the appeal claim, the Shanghai company put forward 12 new factual evidence and reasons, and the appellee Shandong Company also put forward two new defense evidence. According to the provisions of Article 40 and Article 169 of the original Civil Procedure Law, the second trial of the case should be held by a collegial panel of judges. The Shandong High Court issued a notice of hearing on December 7, 2021, but arranged for the judge assistant to preside over and changed the hearing to a pre-court investigation, listening to the appeals of both parties to provide evidence and cross-examination opinions, and on the grounds that the collegiate panel will organize a separate trial to hear the arguments of both parties, it is not allowed to conclude the focus of the dispute to publish the court debate opinions. After the court, the Shanghai company has five times to the Shandong High Court written application for hearing failed. On January 10, 2022, the second instance judgment of the Shandong High Court upholding the judgment of the first instance corrected a large number of errors in the judgment of the first instance, but omitted the basic case facts of hearing the contract involved as a conditional contract. Shanghai company applied for a retrial, and on April 15, 2022, the Shandong High Court retrial decided to avoid the omission of basic case facts, believing that even if both parties put forward new factual evidence and reasons, the judge assistant presided over the pre-trial investigation and replaced the collegial panel hearing, the procedure was legal, and there was no illegal trial organization problem in Article 207, Article 9 of the Civil Procedure Law. The Shanghai company has applied for a protest to the procuratorial organ and requested legal supervision.

Example 4: In January 2022, the second trial of the Second Intermediate People's Court of Shanghai, Zhang and Guan, etc. cooperated in the new share placement case 5. Both parties appealed against the first instance verdict that Ms. Zhang was not a party to the contract involved. In support of the appeal, Ms. Zhang presented five new pieces of evidence. According to Article 169 of the original Civil Procedure Law and Article 176 of the Civil Procedure Law amended by the National People's Congress, both parties to the case have appealed the judgment of the first instance, and have put forward new factual evidence and reasons, and the second instance should be held by a collegial panel of judges or a judge alone. On January 22, 2022, the Shanghai No. 2 Intermediate Court still arranged for a judge assistant to preside over a pre-trial investigation instead of a court hearing. Although the judgment of the second instance adopted some of the new evidence put forward by Ms. Zhang to confirm that Ms. Zhang was a party to the contract, it did not correct the wrong judgment of the first instance according to the contract agreement of bearing the loss in proportion to the investment, resulting in Ms. Zhang applying to the Shanghai High Court for a retrial.

To sum up, it has become the norm for the second trial of civil litigation to replace the trial with the pre-trial investigation, and the pre-trial investigation is presided over by the judge assistant instead of the judge. Similar issues have also continuously become the cause of civil litigation retrial in local courts. Since the Standing Committee of the National People's Congress revised and implemented the Civil Procedure Law, local courts have still done their own thing to investigate the reasons. There is no lack of accurate grasp of the relationship between judicial justice and efficiency, the fundamental reason is the dilution of procedural legal consciousness, the wrong interpretation of the Civil Procedure Law related to the pre-trial investigation procedure of the second instance, thinking that the law is based on the basis of reasonable action. To study the legal characteristics of the pre-trial investigation procedure of the second instance, fundamentally improve the legal awareness of the procedure, and remove obstacles to understanding in order to implement the spirit and provisions of the trial organization revised by the Standing Committee of the National People's Congress in the Civil Procedure Law6.

According to the provisions of Article 176, paragraph 1, of the Civil Procedure Law, cases of second instance shall be mainly tried in court, supplemented by non-trial. If, after investigation and interrogation, the parties have not presented new facts, evidence or reasons, the people's court may decide not to hold a hearing. The procedure of pre-trial investigation or inquiry of second instance has the following characteristics:

1. In terms of nature and purpose, the pre-trial investigation of the second instance is the pre-trial procedure of the trial. The purpose is to know whether the parties present new facts, evidence or reasons, and decide whether the case of the second instance is to be heard through the pre-trial investigation procedure, so as to divide the trial methods of the second instance cases. Cases that do not need to be heard in court shall be heard by a collegial panel or a single judge in writing. For cases with new factual evidence or reasons, a collegial panel or a sole judge shall continue to hold hearings. Somewhat similar to, but not exactly equivalent to, the pre-trial conference for criminal proceedings, only the prosecution and defense parties are heard on procedural issues such as whether the court has jurisdiction, whether the evidence is legal, and whether witnesses need to be notified to testify in court. The pre-trial investigation interview of the second instance of civil procedure can not only understand whether the parties put forward new factual evidence and reasons, but also have the function of listening to the appeals and defense opinions, providing evidence and cross-examination opinions, and carrying out the substantive trial of the case.

2. From the point of view of the preconditions, for a case in which the parties have put forward new facts, evidence or reasons, whether it is established or not, it should be tried by a collegial panel or a judge alone, and there is no need for pre-trial investigation and inquiry. The premise of organizing a pre-trial investigation is that it is not clear whether the parties have presented new facts, evidence or reasons. For cases where the parties have clearly presented new facts, evidence or reasons, the organization of pre-trial investigation and inquiry talks is actually replacing the trial with pre-trial investigation and inquiry.

3. From the perspective of the participants, since the pre-trial investigation or interview of the second instance has the function of court proceedings, it should be presided over by a collegial panel or a sole judge, with the participation of all parties and their representatives, and whether they can be allowed to observe the proceedings according to the law. If the parties apply for witnesses to appear in court, or for new and supplementary identification, they should also make decisions on whether to allow and arrange for witnesses or expert witnesses to appear in court to give evidence.

4. From the perspective of the decision of the outcome of the procedure, according to Article 176 of the new Civil Procedure Law, the collegial panel will decide whether to hold a trial, and the people's court will decide whether to hold a trial. According to the relevant provisions of the Civil Procedure Law, the parties concerned shall enjoy the right of judicial relief in accordance with the law for the decisions made by the people's court in the course of litigation. For example, Article 119 of the Civil Procedure Law stipulates that the people's court has the right to decide to take compulsory measures against the person who has obstructed civil proceedings, among which detention, fine and detention must be approved by the president. If the person is not satisfied with the decision, the person under compulsory measures may apply to the people's court at the next higher level for reconsideration once. According to Article 176 of the revised Civil Procedure Law, the right to decide not to hold a trial in court is adjusted from the court to the people's court. If a party considers that the decision made by the people's court not to hold a trial in court is not in accordance with the law, it may raise an objection. The purpose of tightening the decision of non-trial should be to implement the principle that civil litigation cases of second instance should be held in court.

1. A judge assistant is not a judge and does not belong to the collegial panel. Article 40 of the Civil Procedure Law provides that: Civil cases of first instance shall be tried by a collegial panel of judges and jurors or by judges. The pre-trial investigation interview belongs to the activities of the court and should be presided over by a member of the collegial panel or a sole judge. A judge assistant is not a judge and does not have the capacity to preside over trial activities.

2. The duties of a judge assistant are to carry out trial support services. Article 48 (1) of the Organic Law of the People's Courts and Article 67 of the Judges' Law provide that the assistant judges of the People's courts are responsible for reviewing case materials, drafting legal documents and other trial auxiliary matters under the guidance of judges. According to Article 19 of the Supreme People's Court's Several Opinions on Improving the Judicial Responsibility System of the People's Courts, the duty of a judge assistant is to assist judges in organizing the exchange of evidence before the court. There is no legal basis for the assistant judge to conduct the pre-trial investigation of the second instance.

3.The qualifications of judge assistants shall be appointed and removed by the courts at all levels. Article 11 of the Judges Law and Article 43 of the Organic Law of the People's Courts stipulate that judges of different levels of courts shall be appointed and removed by the president of the court to the Standing Committee of the people's Congress at the same level. The pre-trial investigation presided over by the assistant judge of the second instance effectively nullified and exceeded the power of the NPCSC to appoint and remove judges.

4. Judge assistants are not subject to the legal challenge. Article 47 of the Civil Procedure Law stipulates that the judge is a party to the case or a close relative of a party or an agent AD litem; Having an interest in the case; Where there is any other relationship with a party or agent AD litem to the case, which may affect the fair trial of the case, etc., he shall withdraw himself, and the withdrawal conditions applicable include clerks, interpreters, expert witnesses, and inspectors, excluding judge assistants. In the current provisions of the civil procedure law, the litigation status of the judge assistant is less than that of the clerk, and it is not listed as the object of legal application for withdrawal.

1. The trial organization is illegal. In view of the substantive nature of the pre-trial investigation of the second instance, the Law clerk does not have the functions and powers of a judge, and the Law clerk will preside over the pre-trial investigation of the second instance instead of the judge, in violation of the provisions of Article 41 of the Civil Procedure Law on the trial organization that judges should form a Judicial panel or a judge alone should try cases of the second instance. Knowing that there is new factual evidence or reasons, starting the pre-trial investigation procedure of the second instance to replace the hearing, not only obviously violates the legal provisions of "the appeal case should be heard in court", but also arranging the Law clerk to preside over the pre-trial investigation, which is a mistake again and again. According to Article 207 (7) of the Civil Procedure Law, if the trial organization is illegal, a retrial should be filed.

2. The litigation procedure is illegal. If a court session should be held but no court session is held, the Law clerk shall preside over the pre court investigation. The judge of the Judicial panel or the sole judge did not personally listen to the opinions of the parties to the proceedings on the adduction and cross examination of evidence. According to the provisions of Item 9, Article 207 of the Civil Procedure Law, it is a denial of the parties' right to debate, and the case shall be filed for retrial. Article 389 (1) and (2) of the Interpretation of the Civil Procedure Law of the Supreme Court, which came into effect on April 10, 2022, stipulate that parties are not allowed to express debate opinions; If the trial should have been held without a hearing, it shall be deemed as depriving the parties of their right to debate as stipulated in Article 207 (9) of the Civil Procedure Law.

3. It goes against the value of the second instance procedure in civil litigation. The Civil Procedure Law stipulates that the second instance should be tried by a Judicial panel composed of judges or by a judge alone, depending on the supervision and error correction mechanism of the second instance procedure and the litigation value. The Civil Procedure Law stipulates the pre court investigation procedure of the second instance, and the legislative intent is to separate the complexity from the simplicity and improve the efficiency of the second instance. It seems to improve the efficiency of the second instance and actually pay the cost of procedural violation by replacing the trial with the pre-trial investigation procedure of the second instance and presiding over the pre-trial investigation by the Law clerk instead of the Judicial panel or the sole judge, which also goes against the legislative purpose and significance of setting up the pre-trial investigation and conversation procedure of the second instance in the Civil Procedure Law.

4. Damage to judicial image and authority. The parties have paid the case acceptance fee and cannot see the presiding judge in court; The lawyer's carefully prepared evidence, cross examination, and arguments did not have the opportunity to present them in court. The court cannot be a place for the parties and lawyers to argue according to the facts, and out of court "transactions" like Judge Wang Linqing of the Supreme Court, Liu Guangsan, a professor of Beijing Normal University, and Qi Hongling, a lawyer, who offered and accepted bribes in partnership, must be rampant 8. To carry out judicial education and rectification with great force, and to apply the twelve point force to formulate and adhere to the judicial system, strictly implement the standards for civil litigation trial organization, strictly hold court hearings in accordance with the trial organization standards, allow judges to return to the court for trial, allow lawyers to argue in the court, and have the court make fair judgments, it is possible to continuously ensure the quality of trials.

1. Adhere to the concept of procedural justice. Procedural law is not only the code of conduct of litigation activities, but also the guarantee of judicial justice in litigation activities, but also the symbol of national rule of law and the symbol of safeguarding legal authority. The violation of procedure will inevitably affect the substantive justice; If the procedure is seriously illegal, the entity must be unfair, even if the entity is just, it can not play the effect of maintaining the authority of the law, and even backfire and damage the authority of the law. Lawless justice and offside justice damage not only judicial justice, but also legal authority.

2. Improve the legislation on the trial organization of second instance. It is clearly stipulated that all cases of second instance in which the parties have presented new factual evidence and reasons should be tried in court, especially if the parties' appeal is bound to cause the procedure of second instance, there is no need to review and determine whether the new factual evidence and reasons are indeed sufficient before the trial of second instance. Even if it is necessary to initiate a pre-trial investigation, it should be presided over by a collegial panel judge or a sole judge, and an assistant judge without trial authority should not be arranged to preside over the pre-trial investigation.

3. Legal consequences of strict procedural violations. For cases in which a judge assistant presides over a pre-trial investigation instead of a court trial, the trial organization shall, in accordance with Article 207, item 7 of the Civil Procedure Law, violate the law and file a case for retrial. Article 389 (2) of the Interpretation of the Civil Procedure Law of the Supreme Court, which was implemented in April 2022, also stipulates that if the trial should be held in court but is not held in court, it should be identified as the deprivation of the parties' right to debate as stipulated in Article 207 (9) of the Civil Procedure Law, and the case should be filed for retrial. Only by strictly punishing the illegal procedure can we maintain and ensure the legal procedure.

4. Effectively protect the parties' right of choice and objection. The newly revised Civil Procedure Law for the first time gives the parties the right to choose and object to the trial organization and trial method, tighens the right to decide whether to hold a trial in a case of second instance, and changes the decision of whether to hold a trial from the collegial panel to the people's court. With reference to Article 50 of the Civil Procedure Law, which stipulates the right of the person to object to the decision of the judge to withdraw from the trial, the collegial panel or the sole judge shall serve the decision of no trial in writing to the parties, and the parties shall have the right to object if they believe that no trial is in violation of the law. The people's court shall try the objection raised by the parties. If the objection is established, notice of hearing shall be issued; if it is not established, the ruling shall be dismissed.

5. Formulate duties specifications for judicial assistants. For cases that do not need to be heard again through pre-trial investigation interviews, the name of the judge assistant presiding over the pre-trial investigation interviews should be indicated in the second-instance judgment documents, so as to facilitate the implementation of the lifetime responsibility system for handling the case, urge the judge assistant to objectively and impartially preside over the pre-trial investigation interviews, and objectively and comprehensively report the pre-trial investigation interviews to the collegiate panel or the sole judge.

6. Strengthen legal supervision by people's congresses and procuratorial organs. Compared with the substantive law, the implementation of procedural law has high transparency, strong sensitivity and obvious recognition rate. Procuratorial organs at all levels and the People's Congress should strengthen legal supervision. For cases that intentionally violate the provisions of the procedural Law of second instance trial and illegally arrange for a judge assistant to replace the judge for trial, the cases that have been concluded should be filed for retrial, the original judgment should be revoked, and the case should be remanded for retrial to show the accountability of the collegiate panel or the sole judge, and there is no immediate accountability for procedural violations, how can the judge take lifelong responsibility for the case.

1. See Ma Yubao (The Second Criminal Court of Huaian Intermediate People's Court, Jiangsu Province) : "Research on the Trial of Criminal Cases of Second Instance", Legal System and Society, 2012.01 (I).

2. Sichuan Higher People's Court (2017) Chuanminshen 3482 Retrial Ruling.

3. Chongqing Higher People's Court (2019) Yu Minshen 394 Rejudgment.

April 15, 2022 Shandong High People's Court (2022) Lu Minshen 2331 retrial decision.

March 29, 2022 Second Instance Judgment of Shanghai Second Intermediate People's Court (2022) Hu02 Minzhong 713.

6. On December 28, 2022, the Supreme People's Court issued a notice on Earnestly studying and implementing the decision of the Standing Committee of the National People's Congress on amending the Civil Procedure Law, requiring: Deeply understand the significance of implementing the decision on the revision of the Civil Litigation Law, accurately grasp the spirit and content of the revision of the Civil Litigation Law, scientifically and accurately apply the form of trial organization, the trial of second-instance cases should adhere to the collegial system as the main, the sole appointment system as the supplement, strictly grasp the scope and conditions of application of the second instance sole appointment system, improve the trial organization conversion mechanism, and strengthen trial supervision and management.

7. The Supreme People's Court promulgated Several Opinions on Improving the Judicial Responsibility System of the People's Courts, which stipulates in article 19: "Judge assistants shall perform the following duties under the guidance of judges: (1) review litigation materials and assist judges in organizing pre-trial evidence exchange; (2) Assist judges in organizing pre-court mediation and drafting mediation documents; (3) being entrusted by the judge or assisting the judge in handling property preservation and evidence preservation measures according to law; (4) assigned by the judge to handle entrusted appraisal, evaluation and other work; (5) According to the requirements of the judge, prepare reference materials related to the trial of the case, and study the relevant legal issues involved in the case; (6) Drafting judgment documents under the guidance of judges; (7) To complete other trial auxiliary work assigned by the judge."

8. Xinhua News Agency, Beijing, May 9, 2022: "Professor Liu Guangsan, God knows you are not a fool", Southern Weekend, January 24, 2020, "Supreme Court Judges, Lawyers behind the joint bribery".