On Due Process: A Perspective From China's Judicial Reform

Due process is a key concept in Anglo-American constitutional law. It includes a universal idea of value, i.e., the notion of rule of law, which requires a public judicial procedure, an independent judge and enforceable judgments. In the US, due process makes other ideas of value, including economic freedom, autonomy of individuals, free from the infringement of government activities, more concrete. The tripartite political system creates an independent judicial department, federal court of justice, who set up a procedure of judicial review during its judicial activities, using the due process clause in the constitution into judicial procedures. In the judicial reviewing of un-constitutional activities of legislative and administrative branches in federal and state level, the federal system is reserved, the life, liberty and property of individuals are protected, and infringement by the illegal activities by government is prohibited. The core issue in China's judicial reform is to reform the system of court itself and perfecting the procedural rights of the parties as well as protecting them. The theories and practices of due process have very much for reference in China's judicial reform. This thesis researches the theory of due process on the perspective of China's judicial reform, expecting that a procedural idea is availed under the premise of constitutionalism.Three parts consist in this thesis, which develop a discussion on due process theory on the perspective of China's judicial reform.Chapter one is the general examination of due process. Firstly, due process is a constitutional principle in Anglo-American law. The theoretical premise of due process is the principle of natural justice, and the preference of procedure of common law is the legal tradition of due process. The expression of due process in Anglo-American constitutional law is:"without due process, the life, liberty and property of anyone is free from deprivation."Secondly, due process is the judicial principle in the law of the US. The authority of Supreme Court is not only in the text of constitutional law, but also deeply rooted in the belief of the US people, which is from the justice, impartial, and broadly supported judgments. The judgment of Marshall established the right of judicial review, for which the constitutional law could be the basis, and the due process clause became a judicial principle in the US. Thirdly, procedural and substantial due process should be separated. Procedural due process means the rights of the parties whose interests are affected by the judgment have the rights to be informed the nature and reason of litigation, to state his/her opinion, and to be heard. Substantial due process means"the court ensures the law has the function not only to be made in process, but also has its aim of justice, reasonability and equity."Substantial due process has the cause to make its contents from protecting economic rights to individual privacy. Fourthly, the idea of due process embodies the notion of rights of American public.Chapter two is the historical development of due process. Firstly, the origin of due process. The idea of due process originated from Magna Carta in 1215 in England, and the birth of common law make it possible for due process. The struggle of nobles to the king made due process legalized. From the Magna Carta in 1215 to Bills of Rights in 1689, the principle of due process was written and reaffirmed in a series of constitutional documents and laid the foundation of British constitution. Secondly, due process being made a principle of federal constitution and judicialized. The"due process clause"in the constitution of the US has its profound historical origin and practical basis. It is an accidental rooted in the inevitable of historical procedure. With the adoption of common law and litigation structure of antagonism, the US succeeded the legal tradition of common law. The 5th and 14th amendments of federal constitution established due process clause and made due process constitutionalized. The political system of separation of the three powers, and the precedent of judicial review made due process judicialized. Thirdly, the internationalization of due process. After the World War Two, with the inter-action of states in the world, the influence of due process exceeded the scope of Anglo-American Law and became international. Due process was firstly embodied in the legal documents of the United Nations, and expressed in regional legal documents. Some non Anglo-American Legal family countries also imported the contents of due process and make it a part of domestic law.Chapter three, due process and the reform of court system in China. Firstly, courts in the perspective of due process. Due process requires the establishment of independent and impartial tribunal. Secondly, a critical reflection of China's judicial system. The courts of China are under the leadership of CCP committee, and under the auspice of the People's Congress as well as its standing committee in the same level, the courts are responsible to the People's Congress and report to it. The statues of the courts themselves are not clear despite that their presidents are half-level lower than administrative officials in the same jurisdiction. Therefore, the judicial system in China has the nature of administration, and the jurisdiction of courts is identified with administrative regions. The bodies and personnel regulation, the inter-relation of courts, the operation of judicial matters inside the courts, and the regulation of judges are all in the method of administration. The courts are not divided into first instance and appeal. Every court, except for primary courts, has the jurisdiction of first instance and appeal cases. Due to the disorder of jurisdiction, the system of ending at the second hearing is actually not realistic. Also, when hearing the cases, fact and law are not quite separated. Therefore, in each level of court, the identification of fact is paid greatest attention. The evidence of the case is in the way that at every stage, new evidence could be supplied; hence many cases have to be reheard. The procedure of judicial supervision is always promoted and the stability and coherence of law is lack, the reputation of courts is damaged. Thirdly, the reform and perfection of China's court system. It is necessary of amending constitutional law to legalize the independent judgment of court; re-distribute jurisdiction to separate the judicial and administrative jurisdiction; reform the court hierarchy to set up courts of first instance, appeal courts and supreme courts; legally support judges to exercise their duty to realize the independent statue of judges so to secure the independent of judgment.This thesis explores the theory of due process based on China's judicial reform, cares due process rights of the parties in litigation. The judicial reform of China is a great cause and could not be achieved easily. It is quite necessary to import the theory of due process to make directions of judicial reform in China, so as to prevent the illegal activities of the government and protecting rights of the citizens."We may discover, it is an impossible nonsense in expecting judicial procedure to be rationalized at once. However, there's no reason that we do not try our very best for this."...