? (1) Jurisdiction of federal courts and state courts in the United States. The United States has two independent and parallel court systems, one is the federal court system, and the other is the state court system.
? The cases under the jurisdiction of federal courts account for about 2% of the total cases accepted in China. These cases are mainly crimes stipulated by the legislation of Congress. Most of them involve federal regulations (such as taxation and social security), cases involving interstate and international commercial control (such as aviation and railway enterprises), cases involving securities and commodity control, maritime affairs, international trade, bankruptcy, patents and royalties, and cases involving treaties, foreign countries and foreigners' rights.
? The cases under the jurisdiction of state courts account for about 98% of the total cases accepted in China. These cases are mainly crimes stipulated by state legislation, cases related to state constitution and laws and regulations, cases related to family law, real estate cases, disputes between landlords and tenants, private contract disputes (except bankruptcy), cases involving professional negligence, accidental injury, probate and inheritance, some traffic violations and motor vehicle registration.
? In some cases, both federal courts and state courts have jurisdiction, such as crimes punished by both federal and state laws, cases related to the federal constitution, cases related to civil rights litigation, cases related to environmental control, certain disputes involving federal laws, and class action cases.
? (two) unified filing and selection of mediation judges. In federal courts and state courts, all litigation cases are filed by special filing institutions and then assigned to judges according to random methods. A judge cannot choose a case by himself or "greet" the clerk in charge of dividing the case, nor can the parties choose a judge to hear the case by themselves. However, there are exceptions in some courts, that is, if the two parties reach an agreement and another judge is good at mediation, the case can be transferred from a randomly appointed judge to a "selected" judge for mediation. Usually the court will adopt the opinions of the parties. However, if mediation fails, the case will still be returned to the judge who is randomly assigned to try.
? (3) When the court accepts litigation cases, it does not stipulate hierarchical jurisdiction, and in principle, it implements the system of final adjudication by two trials. In the United States, no matter the federal court system or the state court system, there is no "hierarchical jurisdiction" restriction on all litigation cases, and all cases are tried by the court of first instance (equivalent to the grass-roots courts in China). After the judgment of the court of first instance, if the parties are dissatisfied with the judgment, they can appeal to the Federal Circuit Court of Appeals (or appeal to the intermediate court of appeal of the state court system). Only cases sentenced to death in the first instance will automatically enter the Supreme Court after the verdict is pronounced. There are some exceptions in some areas. For example, in California, within 60 days after the judgment of the Intermediate Court of Appeal, the parties have the right to apply to the State Supreme Court for a second appeal, and the State Supreme Court only accepts about 100 cases every year after examination and decision. These cases generally have the characteristics that the disputed object is particularly huge or the social impact is particularly significant. Therefore, in practice, more than 90% applications for re-appeal will not be accepted by the state supreme court.
? (4) The number of cases tried by the Federal Supreme Court each year is less than 100. The federal and state courts are divided into three levels: the Federal Supreme Court, the Circuit Court of Appeal (13) and the District Court (94); State Supreme Court, Intermediate Court of Appeal and County Court.
? There are nine justices in the Supreme Court of the United States, and the number of cases heard each year is about 80- 100. These cases come from thousands of cases (non-legal procedures) that appealed to the Supreme Court against the final judgment of the Court of Appeal. Cases involving conflicts between the federal constitution and interstate laws are decided by the Supreme Court of the United States. The judgments made by the Supreme Court of the United States in these cases have universal guiding significance, which is somewhat similar to that formulated by China and the Supreme People's Court. In addition to hearing cases, the judges of the Federal Supreme Court mainly go to the judicial circuit in charge to inspect and guide the work, or give lectures and study abroad. The Federal Supreme Court implements the principle that the minority is subordinate to the majority when discussing cases, but the opinions of the minority and their reasons should also be written in the judgment. When the Supreme Court discusses a case, all nine justices have to appear in court, express their opinions and make a final vote. If the opinion of the presiding judge is adopted by the majority, the presiding judge shall draft a judgment; On the other hand, it was drafted by a majority judge appointed by the Chief Justice.
? (5) Plea bargaining has been implemented in more than 90% of criminal cases. In the United States, plea bargaining can be implemented in criminal cases, that is, if the defendant agrees to give up his right to defense and plead guilty, the prosecutor can sue for a lighter charge or suggest to the judge that the defendant be given a lighter punishment or a shorter sentence, and submit the agreement between the defendant and the defendant to the judge for review and direct judgment. Although this kind of "plea bargaining" may make the defendant's punishment incompatible with his crime, it has reduced a lot of judicial costs for the country, which is still worthy of recognition. Plea bargaining in American criminal judicial procedure is equivalent to a kind of reconciliation, which is somewhat similar to the trial procedure in which private prosecution cases can be reconciled in China's criminal procedure, but the content of reconciliation is different from mediation, because the reconciliation of plea bargaining is based on the confession of the criminal defendant and submitted to the judge for judgment after the lawyers of both sides (prosecutors are also lawyers) reach an agreement. Instead of the prosecution and defense reaching an agreement under the auspices of the judge, the judge does not act as a "mediator" to the settlement agreement reached by the prosecution and defense, but the judge must personally ask whether the defendant's "confession" is voluntary, whether it is forced, and whether he knows the legal consequences of giving up these rights before making a judgment. If the defendant does not plead guilty, does not know the legal consequences of "pleading guilty" or the lawyers of both parties fail to reach an agreement through consultation, the case will naturally enter the ordinary procedure of jury trial.
? (6) Evidence that has not been disclosed in court shall not be presented in court. According to the federal law and most state laws, the evidence materials of criminal cases must be publicly disclosed by both the prosecution and the defense before the trial, otherwise the witnesses shall not be allowed to be present or notified to testify in court. Of course, if the prosecution thinks that the publication of the witness's name before the trial may lead to danger, it may not be published, but at a certain stage of the trial, the witness must testify in court. At the same time, the judge will decide whether to order the judicial police to "protect" the witness according to the specific circumstances of the case and the requirements of the prosecution (there are many contents of witness protection, such as changing the name and surname, changing the place of residence and even plastic surgery).
? (7) The witness must testify in court, otherwise it may constitute "contempt of court". Direct verbal evidence is one of the basic contents of American criminal justice system. According to the rules of procedure and evidence stipulated by American law, any witness testimony that has not been cross-examined by both the prosecution and the defense in court cannot be used as the basis for finalizing the case. With the consent of the court, both parties have the right to ask the judge to issue an order to force the witness to testify in court. The document informing the witness to testify in court is a summons. If the witness fails to testify in court without justifiable reasons, the judge may decide to arrest him and sentence him to "contempt of court". Before testifying, the witness must take an oath under the guidance of the assistant judge.
? (8) Defendants in all criminal cases have lawyers as defenders. Both the ordinary procedure of jury trial and the summary procedure of plea bargaining are applicable to the trial of criminal cases, and lawyers must participate. Even if the defendant does not want a lawyer to defend him, the judge should appoint a lawyer to defend him, because the judge will worry that the defendant will give up his rights (such as giving up his right to defense and asking for a jury trial) because he does not understand the provisions or contents of the law, thus affecting the fairness of the judgment.
? (9) The court of first instance is separated from the court of appeal. In the United States, there are only three levels of federal courts and state courts (Supreme Court, Court of Appeal and Court of First Instance). Under this court system, the jurisdiction and trial procedure of the court of first instance and the court of appeal are strictly separated. That is to say, in the first-level court, either all kinds of litigation cases can only be tried in the first instance (the original trial), or appeal cases can only be tried in the second instance, and there will be no overlapping. This is completely different from the system in which the intermediate and higher courts in China have the right to conduct both first instance (first instance) and second instance (appeal trial), and even have the right to review and retrial. It is understood that this practice in the United States reflects the pursuit of different values in different trial stages: for the original trial, it mainly reflects the democracy and justice of the trial; For the appeal trial, it is more inclined to pursue the legal value of the trial.
? (10) the system for examining and screening appeal cases. After the parties appeal against the judgment of the first instance, the court of appeal will not accept it unconditionally and enter the second instance procedure. The usual practice is that, first, the judge in charge of filing the case for review strictly examines and screens the reasons for appeal, and rejects the "appeal cases" that do not meet the appeal conditions (these cases generally involve the facts and evidence confirmed by the court in the first instance and the rights that the parties have explicitly waived in the first instance), and then formally accepts the cases that involve the application of the law or reflect serious violations of procedures as appeal cases.
? Second, about the execution of the effective judgment
? (1) The regional effect of the effective judgment. In the United States, although federal courts and state courts are implemented, the legal effect (res judicata) of court judgments (including rulings and orders) is the same. According to the Constitution of the United States, courts in the United States must recognize and enforce effective judgments made by other courts, whether federal or state. The "recognition" here includes ensuring the finality of the judgment and ensuring the execution of the judgment.
? (two) the parties to the effective judgment consciously perform, and there is basically no problem of "difficulty in execution". American judges believe that the reason for this phenomenon is that, on the one hand, the basis of consciously observing and executing court decisions is an idea (Americans generally abide by the law because they believe in the rule of law and believe that society will become better if everyone abides by the law), not an obligation. In fact, in a country with many cases and complicated laws, it is impossible to force everyone to abide by the law only by the coercive force of the law; Secondly, the court has the right to punish the behavior of not executing the effective judgment (contempt of court), that is, for the debtor, if he fails to execute the effective judgment of the court without justifiable reasons, he will be investigated by law. Because of this, under normal circumstances, all litigants, from the president to the common people, mostly respect the court's decision and automatically implement the decision made by the judge (including the relevant ruling or order made by the judge during the trial). For example, the case of 1974 America v Nixon. At that time, the Supreme Court ordered Nixon, then president, to submit a recording of his conversation with others to the local court. President Nixon tried to disobey the court order, but in the end he found it difficult to disobey it, because although submitting the tape would lead to losing the presidency, if he did not obey the court order, it would bring him more serious legal consequences.
? (three) the court is not responsible for the specific implementation of the effective judgment. In American courts, there are no special enforcement agencies and no special enforcement personnel. Therefore, there is no data on cases accepted, executed and unresolved in the judicial statistics of the court. However, the court's irresponsibility for the execution of the effective judgment does not mean that it is indifferent to the creditor's request to realize the rights, nor does it mean that it can stand by and watch the debtor's "inaction" of unconsciously fulfilling the obligations determined by the judgment. Instead, the right holder's "motion" on the execution of the application should be examined as a new "lawsuit", and if it is found that it meets the requirements of an effective judgment after examination, an order of enforcement measures (some translated as "court judgment enforcement order") should be issued. After the plaintiff wins the case, if the other party fails to perform the judgment within the time limit and knows where the other party put the money (such as in the bank), he can apply to the judge for a judgment. After the judge confirms that the plaintiff's evidence is sufficient, he will issue a seizure order, which will be handed over by the plaintiff to the judicial police (not compiled by the court) for specific implementation. In the process of implementation, the judicial police may also request the assistance of the local police when necessary; If the plaintiff knows where the other party's real estate (or other property) is, he can first register a "lien" in the real estate management office (in order to inform the public that the real estate has been involved in litigation), and then apply to the judge for a decree, which will be sold by public auction after being announced by the judicial police; If the debtor is an employee, the creditor may apply to the judge to issue a "third-party attachment order", the content of which is to require the company where the employee works to deduct part of the employee's salary regularly and hand it over to the creditor. And so on.
? It is understood that this separation of trial and execution system in the United States has not affected the execution of effective judgments. On the contrary, it is also conducive to the court (judge) to concentrate on trial activities without interference and influence from non-trial affairs.
? (4) The enforcement of effective judgments shall be the responsibility of specialized agencies independent of the court system. The "specialized agencies" mentioned here refer to the federal judicial police and the state judicial police. After the court decision takes effect, the parties can generally perform it automatically. For a few who fail to perform within the time limit, the creditor may request the judicial police to take compulsory measures against the debtor or the debtor's property according to the ruling issued by the judge after the "motion" of sealing up, distraining and selling the debtor's property to the judge is approved. The content of such coercive measures is very extensive. For example, in the 1950s and 1960s, the federal court's decision to eliminate apartheid was systematically resisted by whites and governors in southern states, and black students were still denied access to white schools. At the request of the federal court, the president of the United States sent federal troops to drive away the governors and whites around the school gate and let black students enter the campus.
? (5) Time limit for applying for execution. In the United States, the time limit for the obligee to apply for enforcement of the court's effective judgment is generally l0 years, and the applicant may also apply for issuing relevant orders under special circumstances. This is much longer than the application execution period stipulated by Chinese law (legal person 6 months, individual 1 year). Obviously, this idea and practice of tilting the focus of legal protection to the obligee is worth learning.
? (6) the application execution fee. Legal fees (including application execution fees) are mostly charged according to the "proportion" of the disputed amount or the application execution amount, which is obviously different from the practice in China. In the United States, the "motion" for the parties to apply to the judge for an execution order is paid by piece, and the request for the judicial police to execute the order issued by the judge is also paid according to the actual expenditure or deducted from the property after execution (somewhat similar to the "actual expenditure" charged by the courts in China when executing cases).
? Three, about the content and production method of the judgment document.
? (a) the format of the judgment document is required but not strict. In particular, there are no restrictions on the length and writing style of the judgment documents. Judges can freely make judgment documents according to the facts of the case, the provisions of the law (precedent) and their own understanding of the spirit of the law. This practice is obviously related to the implementation of "case law" and "life tenure" of judges in the United States. Therefore, it can be said that every judge has his own style of making judgment documents, and even some judgment documents can be judged by a judge's writing style and language habits without looking at the judge's signature. Under this system, on the one hand, judges try their best to pursue the fairness of the judicial judgment of the case, on the other hand, they pursue the social value of the judgment (both hope that the case tried will become a judicial precedent in the United States).
? (two) the judgment made after the plea bargaining case is only to fill in, not to approve the bid. That is, the written judgment shall be filled in the prescribed format, without stating facts and evidence, without writing the reasons for the judgment, and directly writing the judgment result. The defendant can also appeal against the judgment of plea bargaining (but usually no appeal occurs). After examination, the Court of Appeal finds that the defendant has not voluntarily accepted plea bargaining or the judge has violated legal procedures, and decides that the case will enter the appeal procedure.
? (3) issuance of judgment documents. Except for the Federal Supreme Court and the State Supreme Court, all judges draft and issue cases by themselves, and are responsible for the production and issuance of their own judgment results and judgment documents. Even if the document drafted by the judge is handed over to his assistant, it must be reviewed and revised by the judge himself and issued in his own name.