Problems in China's judicial system and Reform Analysis _10565

By Albert Wells,2014-11-28 08:44
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Problems in China's judicial system and Reform Analysis _10565

Problems in China's judicial system and Reform Analysis

     Papers Words Reform of the judicial system of existing defects

     Abstract regulate and adjust the judicial activities of the judicial system of a country in implementing the law are important.

    China's judicial system is established under the planned economic system and developed, and there are many drawbacks. Therefore, the reform of the judicial system is imperative.

     Of a country's legal system to some extent by the judiciary to

    implement and, therefore, regulate and adjust the judicial activities of the judicial system have a significant impact on the implementation of laws, play a bridge role. However, our judicial system is in the planned economy under the conditions established and developed. As the socialist market economic system, development and the establishment of a socialist rule of law, the existing judicial system has its own drawbacks, difficult to adapt to China's law, the effective implementation and the need for

    building a socialist country ruled by law and therefore the reform of the judicial system is inevitableRow.

     First, China's current shortcomings of the judicial system

     Due to historical reasons, China's current judicial system has been

    seriously hampered the effective implementation of the law, affecting judicial fairness and efficiency, its drawback is mainly reflected in the following areas:

     (A) The mode of administration of justice. An important feature of a modern legal system is a non-administrative of justice. Due to the

    political, cultural traditions and the impact of the judicial tradition, China's judicial system, judiciary, set up, judges, judicial process is to run the administration with a significant exposure. Judicial and

    administrative power is an important difference is that the executive administrative services can be positive and proactive intervention, and

the court should not adopt a proactive approach. Court is a non-decision,

    judges can only sit in the courts exercise their right to strike can not be everywhere, take the initiative to provide services. But in reality, our commitment to the Court is not the true sense of the judicial function. This is because we are the functions of judges and court positioning, and operating characteristics of power is not very clear. This situation is mainly caused by institutional problems, and if this problem is not resolved, the Court could not escape forever, "controlled by others," or embarrassing situations.

     From the court setting point of view, is basically taking the road of administrative divisions, such a system can not get rid of judicial and administrative linkages, resulting in not conducive to a fair administration of justice factor. View of the internal structure from the

    court, the court from the president, vice president of the Judge President to the ordinary form a hierarchy, this hierarchy is based on the order of sub-administrative officials to be applied, the administrative capacity of government officials have even become a judge and the level of the measurement device. From the court house on the lower level relationships, between different levels of the courts is not simply the relationship between supervision and being supervised, but rather an administrative

    sense of superior-subordinate relationship between the leadership. On a court the power to work under the guidance of a court, and even cases of the so-called "early intervention" of the intervention, under a decision in the case the court took the initiative to consult a higher court

    reporting, the relationship of justice provides a breeding ground for injustice. This administration of the judicial system itself, led to China's current trial can not be truly independent, impartial and judicial

    corruption, an important reason.

     (B) the judicial power, local. Our Constitution is the People's Congress set up under the leadership of "one government and two chambers" mode. In fact the judiciary and the government does not have a parallel status. The judiciary's financial power and the right personnel are subject to other state organs and organizations. Especially since the local judiciary are subject to local government, local authorities and the local party committee, which led to the localization of judicial power.

     From a financial point of view, China since 1980, basically implemented on a "sub-kitchen meals" as the main content of the financial system. A financial institution which, while local governments to mobilize and stimulate local economic development initiative, to some extent in certain areas or to reduce the central government's financial burden. At the same time, in the "sub-kitchen meals," the financial system, on the one hand hold the executive branch of our country as a whole the financial

    authority, the judiciary at all levels must be at the same level of funding for the Government's decision; the other hand, the judiciary in equipment, working conditions, funding for casework and so on will vary, with the economic development and financial income varies widely. But also in employee housing, wages, fringe benefits will also be a result of

    regional economic development and financial situation of the Kuomintang, big difference. As a result, the economic interests of the judiciary, the

    judiciary's personal material interests with the interests of regional economic integration, are closely related. Therefore, the economic interests of such a structure, the judiciary and judicial officers to hear cases (in particular economic case) when the enforcement of judgments,

    there is a sector-based and personal interests to consider the subjective desire to win the local parties, the local ordinary course of business profit, not loss, local banks where the money will not be designated to

    go. So judicial activities in violation of the law, looting jurisdiction, abuse of power, capricious and arbitrary, in favor of local parties, without legal assistance and other judicial logical behavior of local protectionism has emerged.

     In addition to the local judiciary financially dependent on the local government, the personnel system, but also subject to local government and local party committees. In practice, the local Party committees and local government personnel departments have a major leading cadres of the local

    judiciary, or the right to assign the right of the recommendation. In fact already decided by the party organizations at the same level, by about the same level to fulfill the people's congress election or appointment and removal procedures. Such authority and power under the power dependencies, making the local judiciary powerless to confront the powers of local government intervention, of course, impossible to get rid of the interference of local protectionism. This determined the activities of

    courts and judges in the trial only in cooperation with local government in order to work normally. In some cases, deal with property knowing illegal, unjust, but if insist on the principle of impartial law enforcement, contradicting the local regime and its leaders concerned, the court's source of funding could be cut, cut, work can not be carried out. Judge's duties and the administration of justice trial, job promotion on the threat, and may even be unwarranted dismissal, removal, was political

    retaliation. In this case, the District Court and the judges illegal abuse of judicial power, engage in the judiciary do have some compelling local protectionism. It can be said that the judiciary and the local government authority is only separated from the functions, but is still in the system of Nanshenanfen. This is the full realization of the judiciary can not be conferred by the Constitution independent exercise of judicial power of the major reasons.

     (C) The court set the trial organization and internal management

    system unreasonable. China's law, the Full Court and the Judicial Committee are the judicial organization. Full Court hears most cases, the Judicial Committee of the full court hearing is a major, complex and difficult cases to discuss and make decisions. In the trial practice, this two organizations have played a significant role, must be positive. However, many of the full court is only responsible for reviewing the facts and put forward the views of the applicable law, the final decision

    by the Court of Works Council or the judicial committee discussed and decided. The majority of the members of the Judicial Committee does not participate in the trial of specific cases, resulting in the formation of

the trial fails to sub-, sub-contractors who do not pre-trial situation,

    the trial and adjudication of serious decoupling. This collegiate system, the CRIC system, its drawback is a virtual relationship between rights and responsibilities of the judge's order for the judge to obey the law,

    distorting the relationship between pairs of the President, the Dean of the relationship between the executive subject to judicial accountability through "collective responsibility "and be replaced as no one is responsible, so that justice has lost protection mechanism. Now, with the

    growing role of judicial functions, and cases of substantial increase in the efficiency of the lower courts are increasingly influencing the court's image. The current management within the court system a way that judges lack a sense of responsibility and ability to think independently, and the trial of the low efficiency, resulting in the entire society of the judiciary "crisis of confidence."

     (D) the right of judicial restraint system is not perfect. In our

    country, from a formal point of view, judicial and supervisory mechanism has been established, the NPC and the People's Procuratorate of the legal supervision of the Constitution and the law a provision was relatively complete, but in fact due to various reasons, there is little effective

    monitoring mechanisms.

     From the National People's Congress of external oversight of the judiciary, China's Constitution stipulates that the judiciary from the organs of state power generation, and is subject to supervision by organs

    of state power. In practice, however, the levels of power relationship between authorities and the judiciary remain in the removal of only the same level person in charge of the judiciary; levels of authority on the appointment and removal of judicial officers is only used to fulfill their legal procedures, not to the appointment and removal of judicial officers and for their consideration of the specific law enforcement situations combine; levels of authority for the supervision of the judiciary

    reflected only "work" supervision, that is to listen to and consider the annual work report of the judiciary and the judicial enforcement of inspection or inspection work. At present, the people's congress supervision of the conspicuous problem is the lack of judicial oversight

    of the operation of legal rules. On the one hand led to the state power organs, especially the local organs of power of light the tendency of judicial supervision; the other hand, resulted in the judiciary, especially the local judiciary to "judicial independence" as an excuse to oppose the power of authorities.

     From the judicial system's internal oversight point of view, mainly on the judicial examination of the prosecution and the higher judicial oversight of lower-level oversight of the trial. On the inspection and supervision, the People's Procuratorate, as China's legal supervision organs, according to the Constitution and the law, it is entitled to the state of the judiciary to supervise the legality of judicial activities.

    However, the authority and effectiveness of inspection and supervision has never been truly established and realized. Following main features: First,

    to soften the intensity of inspection and supervision of the prosecution's awareness of law enforcement supervision and monitoring of acts of

    interference due to various factors and constraints, all the obstacles, so that some prosecutors believe that the current legal system is not perfect, monitoring tools are not complete, result is difficult to carry

    out inspection and supervision; Second, the supervision of the prosecution is an ex post judicial oversight, in practice, found in judicial prosecution of the illegal conduct of the trial, only to protest in the form of demands judicial redress. If the judicial refusal to rectify, the

    prosecution can not do anything, so that the prosecution is bound to undermine the authority and effectiveness; third, the prosecution is also the judiciary, how to monitor the prosecution of the prosecutorial power, apart from the organs of state power "work" supervision addition, at present there is no other express provisions of the prosecution so as to provide a convenient abuse of power. In addition, our final system, the implementation of the second trial, coupled with the conduct of the trial

    by the judicial interference of local protectionism, so in some places, the higher judicial organs to conduct the trial of the lower-level

    judicial supervision is no longer the focus of the unity of the legal system and the effective implementation of national laws, but local interests were fully protected. Such a monitoring system, it makes many of the problems in the administration of justice through the existing monitoring mechanism is difficult to be resolved, and the objective for

    the abuse of power by the judiciary and judicial corruption has facilitated the production of the phenomenon.

     (5) The judge selected system is unreasonable. The course of justice and a sound system is inseparable from the judges. Judge specialization is

    the prerequisite and basis of justice is a prerequisite for the correct outcome of the trial. At present, the majority of the judges to reach an educational level above junior college. However, this is not the judges, many of them graduates of the legal profession, a graduate of formal legal institutions are even scarcer. Of particular note, in recent years, China's formal higher education graduates, especially the master's and doctorate students and difficult to access high-level following the

    judicial judicial, has entered the high-educated people are also hard to

    stay for long due to various factors. This is the professionalism of our judges are very unfavorable. Therefore, to achieve justice, we must establish a reasonable and consistent with China's national conditions and

    characteristics of the judges professional management system.

     Second, the reform of our justice system, the basic idea

     For our current problems in the judicial system, I believe that our judicial system reform should focus on the following aspects:

     (A) reform of the judiciary's leadership system, to ensure that the judicial power and the unity of the national legal system. According to the Constitution, the People's Procuratorate under the dual leadership

    system, namely, the People's Procuratorate, and at the same level by the higher organs of state power of the leadership; people's court at the same level organs of state power under the leadership of the higher people's courts of the lower court to exercise oversight. Practice has proved that

    economic conditions in the market, this led to the independence of the judiciary system has brought great difficulties in the exercise of authority. Therefore, according to the rule of law and legal system of the law applicable to the requirements of unity, in order to break the existing jurisdictions with a system of combining administrative divisions. Specific method is to cut the ties between the two: First, cut off the local power of the judiciary and at the same level of party and

    government affiliation. At the provincial level of the judiciary headed by a person Supreme People's Court and the Supreme People's Procuratorate party recommendation, below the provincial level of the judiciary headed by a person at the provincial level party recommended the judiciary. Second, cut the upper and lower administrative relationship between the courts. At present the actual existence of the lower court on the administrative relationship between the there is no legal basis, the

    higher courts of lower courts should be strict supervision of the work process of law. This will enable local protectionists have lost the use of "human rights" interfere with, control, justice, conditions, conducive to achieving a unified national law. Reposted elsewhere in the paper for free

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     (B) reform of the judiciary's financial system. The existing financial system of the judiciary in handling cases often leads to inadequate funding for the judiciary, the judiciary, the phenomenon of low

    wages. This is the judiciary subservient to the local power at the expense of justice, or even take the initiative to sell the right to please the administration of justice in local government an important reason for the system must change. With the above-mentioned judicial reform in order to

    dovetail with the leadership of the judicial approach to the financial system could do the following: the provincial funding for the judiciary by the central government block grants; provincial level and below the

    provincial funding for the judiciary appropriations fiscal consolidation. This will not only enable local conservationists lost the use of "property right" interfere with the conditions of independence of the judiciary, local protectionism, the sphere of influence will be greatly reduced, but also conducive to enhancing the independence of the judiciary and anti-

    jamming ability, is conducive to justice.

     (C) the reform of oversight mechanisms, strengthen judicial supervision. The right to effective judicial supervision is an important

    content of China's justice reform. At present the main organs of state power should be to strengthen the supervision of the judiciary. Build on this primary task of supervision is that the systems really implement the

    powers of organs of state power to give the organs of state power within a certain range of cases with a quasi-judicial power. In other countries,

    Congress gave to heads of state, government leaders, the Chief Executive, the highest judicial quasi-judicial power. Of course, given the right to

    quasi-judicial organs of state power does not mean that an alternative

    judicial organs of state power, organs of state power is not necessary that all involved in the judicial cases.

     Therefore, the right to exercise judicial organs of state power,

    should take a "degree" issue. From the organs of state power of the judiciary to supervise judicial activities of the point of view, the state authorities can exercise quasi-judicial power of the following cases:

    First, the judiciary and the judicial officers involved in cases of abuse of power, including the judiciary and the judicial officers the judicial process in the job-related crimes erroneous acts and judicial proceedings for compensation cases; second is the law of disagreement which need to be

    made applicable to legislative interpretation cases. This strengthening of the judicial organs of state power constraints of monitoring to ensure that justice plays an important role.

     In addition to organs of state power of the supervision of the

    judiciary, but also improve the judiciary's internal oversight mechanisms. The implementation of legislation within the Court, trial, execution of the "three separate" system, that is placed on file rights, jurisdiction,

    enforcement powers exercised by three functional departments, among the formation of both complement each other, and mutually binding mechanisms, and to avoid the power excessive concentration of lost constraints. At the same time, to design and implement a monitoring system: the introduction

    of the judges and the parties isolation system; reform of the current jury system, set up an expert jury system; establish illegal judicial accountability system; development of moral law, and so the judges. In short, the right of judicial supervision, not only to set up a monitoring mechanism, and this monitoring mechanism must have scientific, authority and effectiveness.

     (D) the reform of collegiate system and the CRIC system, the establishment of an independent judicial system, judge. The Court

    strictly, just strict enforcement of law enforcement depends on the judges and the impartial justice, and the judge impartial enforcement of the basic requirements for the unity of rights and duties of judges, that judges have an independent right to hear and decide cases, while ruling his own mistakes bear the full responsibility. But the "two systems" is often the effect of the implementation phase separation between the trial and ruled that in order to cancel the trial judge characterized by

    independent institutions, weaken, virtual-based judicial liability system,

    a direct result of judges and enterprising spirit shrink, political, and professional quality decline, thus with the strict and impartial enforcement of the rule of law requires a far cry. Therefore, we must reform and improve the management of this administrative-oriented approach

    to establish consistent with the rules of trial and the law of the management model. First, we must give full play to the role of presiding

    judges and individual jurors; the second is to strengthen the role of the full court; third of the CRIC should be delegated to the vast majority of cases the jurisdiction of the presiding judge and the Full Court; Fourth, earnestly implement the responsibility system for the trial , the real

powers and responsibilities to achieve unity.

     (5) Reform of the management system of judges, the establishment of a high-quality judges. Produce a fair administration of justice, depends largely on the judge's value judgments. To this end, it is recommended to take the following measures to improve the quality of the contingent of judges:

     First, strictly regulate the transmission channels and selection of judges the conditions to improve the qualification level of judges. On the

    one hand, it is necessary to expand higher education through the formal legal personnel access to the courts; the other hand, should be strictly off the court to enter. In the future should be clear that higher education institutions and the legal profession, politics and law graduates as judges of the main source of non-college graduates or above

    the legal profession who can not serve as the selection of judges an object. Re-transfer the existing military and government organs to enter

    the judiciary's practice of diversion should be strictly controlled, as soon as possible to eliminate this phenomenon. Judge of the existing professional knowledge test to the eligible applicants reunification granted by the Supreme People's Court judge qualified, qualified

    certificate issued by a judge. Those who fail the examination, and resolutely eliminated judges. So as to enable judges to improve the treatment, to ensure that the independent status of judges as a variety of security both necessary and possible. This will not only help to prevent corruption in the judiciary, but also improve judicial efficiency.

     Secondly, a sound assessment and elimination system of judges. A sound evaluation system for judges, it is necessary to assess the quality

    of professional knowledge and case, but also assess the political quality and professional ethics. Is necessary to assess results as a judge to the post of promotion and salary increases, as well as eliminated the basis for truly capable, the commonplace, the contingent of judges in order to stimulate entrepreneurial spirit and sense of self-restraint so as to form

    a system of judges to shape the moral personality, in order to judge of moral character to support systems management mechanism.

     Third, to improve the judge's salary, benefits, improve the social status of professional judges. A very creative job of judges is a professional and moral personality demanding a special occupation, the judge's professional activity is a complex labor, society should give the

    judge the corresponding generous wages and benefits. This will not only help to strengthen the professional responsibility of judges and mission, but also conducive to fostering respect for the judges, advocating legal

    authority in society, it is a society ruled by law should have.

     In short, judicial reform is the reform of the system, but also people's reform, judicial reform to establish a correct concept of justice, and

actively explore the modern judicial models to meet China's need for

building a socialist country ruled by law. Reposted elsewhere in the paper

for free download http://

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