On The Right To Judicial Remedy

The purposes of the article lie in discussing the constitutional affirming and carrying out in China about the right to judicial remedy, aiming to establish the core position of the right to judicial remedy and enhance the actual effects of the human rights safeguard , reducing and preventing occurrence of unjust, framed-up and wrong cases.In this article, comparative analysis and positive analysis approach are adopted .After the research into constitutional affirming and carrying out in and abroad about the right to judicial remedy, I have elicited four conclusions as the following: firstly, the definition on the right to judicial remedy which is relative scientific has been put forward. The right to judicial remedy means when people consider their constitutional rights and legal rights being violated or have dissension with other people , or even be faced with the criminal accusation , they have right to ask for court to start up the judicial procedure in order to gain the fair cognizance and verdict. These rights consist of the right appealing to court and the right of access to impartial judgment. As the part of the basic human rights, these rights are those people ought to possess and belong to constitutional rights as well. They are basic procedure rights which be used to start up the procedure of justice and remedy substantive human rights. Secondly, the right to judicial remedy ought to be admitted in our constitutional document. Many of the world human rights pacts, such as Universal Declaration of Human Rights and International Covenant on Civil and Political Rights have affirmed the right to judicial remedy as a basic human right for a long time. As a country which subscribed International Covenant on Civil and Political Rights, entered the World Trade Organization, put forward the targets of constructing a country under the rule of law, political civilization and harmonious society, even wrote "State respects and safeguards the human rights" in its constitutional document, china seems that she has no reason putting the right of judicial relief away from the constitutional spirit. Thirdly, theexplicit way of expressing should be adopted for acknowledging the right to judicial remedy in constitutional document. In some western countries, the modes with respect to affirming the right to judicial remedy are mainly implied mode, express mode and other mode. Implied mode means that the Constitution itself have no special clause expressing the right to judicial remedy explicitly. It is deduced from the related terms in Constitution. Some country (e.g : the United States)provides for the main content about the right to judicial remedy in clauses of the constitutional law. Express mode means there are not only special terms in Constitution, but main contents about the right to judicial remedy as well(e.g : Japan). Other mode refers to the way in which the right to judicial remedy neither provided for by the constitutional articles nor deduced from some related clauses, but affirmed through constitutional prejudication and granting International Covenant on Civil and Political Rights the legal effectiveness(e.g : France). China belongs to statute constitutional law nation which the system of constitutional prejudication does not exist, deduction is also used in few occasion. In China, therefore, the Constitution should adopt express mode so as to affirm the right to judicial remedy completely. Fourthly, in order to ensure the full implementation of the right to judicial remedy , China should reform the current judicial system and three common litigation system in terms of constructing the constitutional litigation system. The implementation of the right to judicial remedy require true judicial independence to ensure no intervention in judicial action, it also require the common litigation system with the fresh idea and content on the right to judicial remedy. All of these are beyond our reach now. Accordingly, we must start from the full implementation of the right to judicial remedy in parallel with reform of the current judicial system and common litigation system so as to construct constitutional litigation system.