On The Attribution Of Criminal Jurisdiction

If one can say criminal trial is the center of criminal procedure, then one should say who should have adjudicative power is the key issue of criminal trial. The study of this issue shall direct the reform of forms of criminal trial and will be of great importance to the-deepening of the reform. It will also fill up the blankness in criminal trial studies and deepen criminal trial studies.This dissertation consists of three chapters, besides an introduction and an epilogue.With an eye to the disjoint of law and practice, Chapter 1 demonstrates that the adjudicative power shall belong to adjudicator de jure. In China, adjudicator de jure includes only judges and people's assessors who undertaking criminal trials. In practice, those who do not undertake criminal trials, including the administrators within a people's court, the judges of superior courts, Party leaders, members of People's Congress, even practitioners of the mass media, become adjudicators de facto. In this Chapter, the author begins with the study of adjudicator de jure. After redefining judicial independence, the author finds out that the independence of individual judges shall be the elementary factor of judicial independence.' Without personal independence of individual judges, the institutional independence will be pointless. With an eye to the systematic of judicial interpretation, the inherent requirement of judicial independence, the nature of criminal adjudication, the accordance of power and responsibility, and the semanteme of judicial independence, the author finds out that the principle of "the people's courts shall exercise judicial power independently" shall also include the personal independence of individual judges. On this basis, the author reviews the adjudicative power endowed with the adjudicatory committee by law and holds that this provision has its historical significance, yet its application in today brings more malpractice than benefits. Its application goes against the justness, the quality and the efficiency of the administration of justice, and goes against the realization of other important functions of the adjudicatory committee, the improvement of the skills and abilities of the judges. The proposals aimed at preserving the adjudicatory committee do not overcome these malpractices. Thus the adjudicative power of the adjudicatory committee but not the committee itself shall be canceled, and adjudicator de jure shall only be judges and people's assessors carrying out criminal trials. With the judges and people's assessors carrying out criminal trials exercise adjudicative power independently, it will not necessarily lead to adjudicators taking the law into their own hands, or lead to corruption, because we have measures preventing and disciplining these practices. On the contrary, it will urge judges study hard and work hard to improve their skills and abilities. If the adjudicators do not feel competent in deal with cases, with the institutions of asking superior courts deal with the cases or the superior courts exercise jurisdiction over cases within thejurisdiction of inferior courts with their own initiative, hard cases, complex cases and cases of graveness shall be dealt with properly and justly.After demonstrating that adjudicative power shall be allocated to adjudicators de jure, the author discuses the disjoint of adjudicator de jure and adjudicator de facto in section II of this Chapter. The independence of the judiciary requires that, when exercising judicial power, individual judges shall be independent with their superiors and colleagues, and nobody shall direct the adjudicators how to handle a case. When deciding a case, the only bases should be the law and the facts ascertained according to law. Whereas in practice, the checking of case by the president of a people's court and by the chief judge of a divisional court, asking for instructions from superior court judges, superior courts' judges' advance interference of cases handled by inferior courts, make the president of a people...