A Tradition Broken And Renewed: On The Construction Of People' Court

Since the Jing Gang Mountains Revolutionary Base was established, the CCP has its own political and law affairs and gradually developed its own judicial tradition, namely people's judicial tradition. Facing the overall transition of present Chinese society, what about the fortune of the people's judicial tradition? How shall it be treated? The paper investigates the course of the people's court construction from 1978-2005 and demonstrates the history of the people's tradition with four periods: totally break, overall revive, partially erode and then partially renew. Thus provides a new way to reflect the Chinese society transition course and the reestablishment of its authority and order.Since the People's Republic of China was founded, the courts nationwide were established. At the same time, the principle and technology of the people's judicial emerged during the period of the revolutionary base were also practiced all over the whole country. However, the main task of China was revolution from the 1950s to the 1970s."The revolutionary mass campaigns were not completely depended on the law." "The society where continued revolution in the condition of proletarian dictatorship was even one without any litigation." At the beginning of the Cultural Revolution, the courts were destroyed by "the anti-revolutionists" and the people's judicial tradition was also broken. Those revolutionists who survived the Cultural Revolution struggled to get rid of "two directives", give up the "taking class struggle as the key link" and "continued revolution in the condition of proletarian dictatorship", thus making the shift of our party's working focus realized. Injustice, false and wrong cases were corrected, getting rid of the unequal political status among the people." We practiced the judicial principle." We must obey the law, or we will be punished by the law" which made the great change in the administration of Chinese society: from "complete dictatorship" to "comprehensive administration." But at the beginning of the 1980s, dealing with the unjust, false and wrong cases and practicing the new law put the people's courts on the rapid way. Because the courts were no longer in the turbulence of "making the case or producing", but there were a lot of unjust, false and wrong cases which needed to be solved by the courts, and there were new law justice which needed to be realized. The time which needed the construction of the people's court in the staff, materials and finance was coming.Facing the problem: How to construct the people's court, the memory and convention reminded us of the suggestion which is to recover all the people's judicial tradition mentioned in the First National Judicial Congress after the Cultural Revolution (Which that is the 8^th National Judicial Congress) without any hesitation. Such suggestions included "obey the party's leading", "Serve the Party and country," "stick to the Mass Line", "Fact is the truth "so as to recover the people's judicial tradition and technology. The course of recovering the people's judicial tradition also included its changes and development. For example, although stick to the party's leading, the convention that the party's committee had the decisive right on the case which was practiced for about 30 years had been abandoned. Although the Mass Line was still popular, the convention of inviting the majority to take a part in the court judging disappeared. Although sticking to the fact, the judicialization had been intensified and its administrative color had been reduced. Although the knowledge and good virtue were very important to the judicial carders, the concrete standard had been shifted from both red and professionally specialized to "revolutionization, young, intellectualization and specialization."But in the course of reform of "giving up power, giving up the profits", China had gradually shifted from comprehensive society to after-comprehensive society. Part of the society was like "a pan of sand". The society was in an anomic situation. Such informal social control methods as virtue, belief has been declined, but the function of solving the people's inner contradiction was also reduced. On the one hand, social contradiction and disputes were increasingly intensive. On the other hand, lacking of social capital and basic authority, the society has on longer solved many disputes. Under such situation, contradiction could only be judged by the court finally. Confronted with so many cases, there was not only way for the court to choose, it hadto reform_<sub><sub>change its own working behavior. The judicial staff changed from "thelovely mother" to "the cool bureaucrats", focusing on from the substantive justice to procedural justice. The substantive justice has been reduced, the people's judicial tradition had a partially break, the legalization of the CCP's ruling was also destroyed. At the time of the structure and ruling method of society changing , lacking the protection of the independent judicial , the people's court was involved in the local protectionism, difficulty in enforcement and rotten judicial , its situation was very embarrassed. On the hand, because of the people's court's substantive justice didn't acknowledge it any more. On the other hand, the value of the new law procedure are minimized by the local protectionism, difficulty in enforcement and the corruption of judicial members, and the open trial was left merely a form . The people's court was facing the serious legitimacy problem. The judicial not only couldn't finish the task that provided legitimacy to the whole political system, but also faced the legitimacy crisis itself. To overcome the crisis, get the majority's acknowledgement, found the firm base of legitimacy, thus making its legitimacy in enforcement enhanced, the central government took such measures as creating the ideology, improving the judicial surroundings and its running system, establishing a good image of the judicial workers, protecting the judicial justice and providing the judicial help. Sticking to run. the country by the rule of law and run the country by the virtue, practicing the topic "the justice and rate" and "justice for people" the people's judicial got its second life, the legitimacy of the central government's policy had been intensified. At the same time, the central government found a new way to construct the people's court in which the government not only could run the country by the law, but also could run the country by the virtue: on the one hand, the central government made great efforts to promote the judicial workers' virtue , display the CCP's members' spirit of selflessness , thus making the aim of justice for people played an active role, the law fruit being the same with the social fruit, the outcome of the case being near to the substantive justice. On the other hand, the central government enforced the law carefully, using the law to normalized and limit the power, thus making the judicial having a legitimacy base in theory. At the same time, the outcome of the case got the majority's acknowledgement by using the just judicial procedure in the course of solving the case.During the course of constructing the country which being run by the law, the existence of the people's judicial is always the important field for the legitimacy of the CCP, and the people's judicial tradition is always the important resource for the policy of the CCP, its fate is closely related to that of the CCP and Chinese socialism. As long as China is leaded by the CCP and China is still on the socialism road, the spirit of the people's judicial will not extinct, and its traditional view and technology will continue. Under the thought to combine into of law with rule of morals, although the law theory authority will dominate in China which is run by the law, the traditional authority and chrismal authority will still play a very important role in China.