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
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 pro