The Judicial Reform In Shensi-Kansu-Ningsia Border Region And The Formation Of The "Tradition Of Politics-law"

The"tradition of politics-law"is often regarded as an institutional backgroundand operational logic behind many legal phenomenons in our real life. The existingresearch indicates that the"tradition of politics-law"is a modern legal tradition withChinese characteristics, which is derived from the Soviet period (marked with MaXi-wu-Styled Trial), formed in the Shensi-Kansu-Ningsia Border Region, and based onthe national conditions of China. Its basic meaning is that law and politics are closelyrelated, and the law services for political purposes. However, the existing analyses onthe meaning and characteristics of the"tradition of politics-law"are largely confinedto the brief sketch, and their investigations to the source of the tradition, the judicialpractice of Shensi-Kansu-Ningsia Border Region are meeting the problem of topicscattering and object fragmented. Besides, the existing analyses on this issue failed tomerge the modern legal tradition of China, the"tradition of politics-law"and thejudicial practice of Shensi-Kansu-Ningsia Border Region, through which we canexamine the source and the overall characteristics of the"tradition of politics-law".Undoubtedly, such an examination will both help us to understand the reason for theformation of the"tradition of politics-law"we have inherited and its close relation tothe particular judicial environment, and help us to deepen the understanding the currentjustice issues.From the perspectives of Shensi-Kansu-Ningsia Border Region's judicial reformand the trial committee of the Border Region Government as the final trial agencyduring the period, with judicial archives of Shensi-Kansu-Ningsia Border Region asthe main material, and using the method of historical research and case study, thisdissertation concentrates on the formation process of judicial"tradition of politics-law"in the border area, as well as summarizes characteristics of this tradition and analyzes its causes. Simultaneously, this dissertation will reveal a valuable and complete historyof the judicial reform, especially the history of reform of the trial committee of theBorder Region Government.The author insists that, on the basis of transplanting the former Soviet Union'slegal system, the judicial system of the Soviet base areas was modified to adapt toreality, with its judicial institutions tending to centralization, the procedures tending tosimplify, and the judicial functions emphasizing on counter-revolutionary repression.All the above has shown a prototype of revolutionary"tradition of politics-law", whichbecomes the foundation of judicial development of Shensi-Kansu-Ningsia BorderRegion.The judicial reform of Shensi-Kansu-Ningsia Border Region from 1941 to 1944 isa critical period to the formation of the"tradition of politics-law", including the earlystage of judicial regularization reform and the later stage of Ma Xi-wu-Styled trial andits impact. The background of KMT-CCP cooperation, the relative stability of the rearenvironment and a number of legal professional intellectuals throwing themselves intothe border region, promoted the reform of the judicial regularization aiming atestablishing a new democratic legal system. The reform under the leadership of LeiJing-tian turned to administration due to a misunderstanding of regularization. Thecomprehensive reform was implemented in Li Mu-an period with the content ofimproving the trial-level system, specializing of judicial officers, standardizing oflitigation and advocating criminal reconciliation and civil mediation, which madejudicial system of Border Region into a initially standardized track. However, theimplementation of a unified political system and the rescue movement in the laterperiod of rectification lead to the appearance of judicial review and the transformationof the reform. In the review and reflection on the reform of the judicial regularization,the regularized reform with unrealistic tendency was ceased, the new democraticjudicial system was sharply separated from National Government, and the judicialsystem of new democracy implementing the democratic centralism and the mass linewas explored from practice. The idea of the tradition of politics-law is gradually becoming clear.In parallel with review and reflection on the judicial regularization reform, theBorder Region Government and the judiciary began to turn their attention to thejudicial practice. With the summary of the primary judicial experience, test andcomparison of judicial regularization reform, Ma Xi-wu-Styled Trial was promoted,which could spread the mediation movement. Besides, on basis of integrating wholesociety's resources, diversification mechanism of dispute resolution was formed,which indicates the formation of the"tradition of politics-law"with the border regioncharacteristics.With the final third trial, the trial committee of the Border Region governmentestablished in the reform as a specific inspection point, this dissertation furtheranalyzes the formation process of the"tradition of politics-law". By analyzing itsestablishment and history, this dissertation shows the conflict between the tendency ofjudicial independence and the unified political system in the Border Region. Byanalyzing the litigation process of land purchasing case between An Cheng-fu andZhao Ji-yu, this dissertation demonstrates the Border Region litigation model with thecharacteristics of strong powers doctrine, litigant principle and administration. Byanalyzing the case between Wang Sheng-xiu and Hu Sheng-xiang to compete forcave's right, this dissertation reveals that the second trial(Higher Chamber) which ismore close to the grass root has more advantage. Above all, this dissertation reveals theinflexible rules of political system in the formation of the"tradition of political-law",the alternative of the litigation mode in practice and the ideas of establishing judicialhierarchy. Moreover, it reveals that it is of great importance for the modern rule of lawto be based on the local environment.The"tradition of politics-law"forming gradually in the judicial reform is basedon the border region's complex legal environment and the successful experience ofChina's revolution theory. At the level of concept, it reflects the idea that justice servesfor people and politic power with the multi-function of washing away the old,renewing the social foundation and resolving disputes. At the level of institution, it appears as the centralization characteristics of justice structures and cylindricalcharacteristic of the trial-level structure. At the level of operation, it reflects thecharacteristics of ordinary cadres of the judge elected, simplify of litigation process,administrative of litigious process and diversification of solutions to disputes. Theabove characteristics have their own logical self-consistency. The reasons are mainlythat revolutionary form and nature with the hard core of political party in theunder-developed states, the ecological environment of the border region and thetraditional concept of legal culture. Simultaneously, it meets the problem of neglectingstandard and constrain of power, as well as the limitation of ignoring the judges'professional quality and rule of practice. With the conversion of the historicalbackground, the"tradition of politics-law"is also facing the difficulties andopportunities for self-renewal.