法院的類型、創設權歸屬及其司法權配置

法院創設權分概括創設權和具體創設權，其歸屬和司法權配置受制於法院法定、管轄權法定的憲法原則。該原則源於17世紀英國，18世紀被法國採納，其原旨乃反對肢解刑事司法權、禁止指定審判法官或設立刑事特別法院（庭）。憲法成文化運動致使其擴張至行民領域，但在司法科學化衝擊下其重歸原點，並成為法治國的內在要求。形式要件為法院創設權依重要性分別保留於憲法與法律，實質要件為刑事司法權絕對保留、行民司法權相對保留。司法權的外部擴張與內部分裂催生了多層次的法院類型。我國確立了該原則，但法院分類不科學，創設權下沉、司法權配置（如三審合一）等背離法治要求。2018年憲法和法院組織法修訂不僅沒有解決問題，反倒引發重大隱患，應予完善。

The powers to create courts consist of the general and the special power, and who should have this power and how to distribute the jurisdiction among the courts are subject to the constitutional principle of the courts by law and distribution by law. This principle originated from England in 17 th century and then adopted by France in 18 th century, and its aim was to oppose dividing criminal jurisdictions, prohibiting designation of the judges in a given case or setting up the ad hoc criminal court. The constitutionalization movement made the rages of the principle enlarge into the civil and the administrative field, and then, under the tide of the court science, returned to the original point which is the requirement of the rule of law. The formal requirement is that the power to create courts is retained by the constitution and the law according to its importance, and the substantial requirement is that the criminal jurisdiction be absolutely retained in the common courts while the civil and the administrative relatively retained. The expansion outside and the division inside of the judiciary caused varied types of the courts at subordinate levels. China has established the principle, but the powers to create courts authorized to the juniors and the Triple jurisdictions over civil, criminal and administrative cases by the intellectual property courts and the environmental courts depart from rule of law. The 2018 amendment to the Constitution of the People’s Republic of China and to the Organic Law of the People’s Courts did not solve the problem. Instead, it has created potential problems. In the future, the two laws should be improved.