Tradition And Surmounting

During the turn of the new century, judicial reform has become a hot topic of conversation in the Chinese rule of law. Mechanic dislocation, judge unfairly and corruption seem the important reasons that the people query the justice. Why has justice become the key point in rule of law today while the fast developing economy, gathering talents and flourishing politics in China? The most difficult problems in judicial reform facing us are those like independence of judicature, fair trial,prohibiting inquisition by torture, protecting human rights, litigious rights, burden of proof, elite administration of justice or peoples' participation in, etc.. Judicial reform, in nature, means to adjust the judicial standards, but Chinese judicial system establishment has only repeated to correct some fundamental problems, which shows that Chinese justice still remains immature. Although Chinese legal system looks quite similar to the western countries, there is still a gap between China and the developed countries. In the country that traditional justice has been abolished over one hundred years and the new type of people's justice has been practiced for more than fifty years, these judicial problems that need to be resolved in the beginning of 21st century, actually are still the basic ones which should have been settled since the end of Qing Dynasty. Thus, an inevitable question has arisen: since the judicial system changes in Qing Dynasty, few things or cultural sources could be employed for today's justice. This causes the author to ponder deeply into the judicial history. To trace back the original power of Chinese judicial reform, besides studying the basic characteristics of the traditional classic justice and influence of the traditional culture,viewing from the transform of political system the author analyzes the objects, reasons and effects in recent important judicial reform; presents the complex situations and factors of the judicial system transform in the past century; relates the defects of Chinese justice in the historic social changes. During the recent twenty years, the spring time for Chinese judicial reform has come in the peaceful, stable and developing open society. So, we should grasp the good chance to establish the modem, democratic, effective judicial system in China step by step.As a research method, this dissertation pays much attention to the vertical and horizontal comparison, both ancient and modem, Chinese and foreign histories. Through such kind of research, it will help us to understand correctly the different types of judicial systems in history. With the study methods of sociology, science of culture, statistics and even a single case, the author tries to expound from different angles how to experience the judicial reform works in the history.The whole dissertation is divided into three parts. Part One: Analysis of Chinese traditional justice - power and culture. Taking the Qin and Han Dynasty for example,the author analyses the characteristics of Chinese ancient justice lasting for over thousands years, points out that the j.udicial system and procedure with criminal law playing the dominant role during that period. Not to distinguish the civil law from criminal narrowed the knowledge of ancient judicial officers, and hindered the development of judicial function. To prove the crimes and punish the criminals had enforced the absolute monarch. The judicial culture of feudalist society, power meant justice, the law saw only status; rights attached not to the human being but to the status. National interest came above everything else. Judges paid more attention to substantive law than to procedural law. All these judicial ideas have greatly influenced the modern Chinese society.Part Two: Transition of the traditional justice-evolution and wandering. The author chooses the three periods of Qing Dynasty, Guomingdang Government and the People's Republic of China to analyze their relations in creating the modern Chinese judicial system, points out that the transition of traditional justice started at the end of Qing Dynasty. Since then revising the laws has encouraged the judicial reform. After the Revolution of 1911, the Guomindang government tried to build up the modern judicial system and rules, but in vein. In 1949, Guomindang government overthrown by the people's war. Foundation of PRC made it possible to establish modern judicial system. However, it is not going smoothly to create the people's judicial system in China by way of practice, which needs devotion, rational knowledge, stable development of the society and guided by the idea of rule of law.Part Three: Current Chinese justice in progress - expectation and surmounting. The author suggests that current Chinese judicial reform be based on democratic politics,keeping the idea of ruling the country by law, holding high the banner of human rights,educating the career judicial officers to take over from the past and set a new course for the future. At the same time, in view of existing problems in our judicial practice,we must prohibit exacting a confession by torture, maintain the legal rights, focus on mediation as well as on litigation; in this way, justice will be the strong protective screen for the country and for the people.