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On Judicial Democracy

Posted on:2011-02-22Degree:DoctorType:Dissertation
Country:ChinaCandidate:J H LiuFull Text:PDF
GTID:1116360305953801Subject:Jurisprudence
Abstract/Summary:PDF Full Text Request
In recent years,"democracy"in the judicature has been paid more and more attention in China's judicial practice. As democracy itself is a rich and growing concept, the emphasis on the democratic nature of judicature appears extremely diverse landscapes, among which include the remarkable looks, such as: justice for the people, judicial convenience, judicial popularization, deliberative justice, harmonious justice. The theoretical significance of judicial democracy has also been attached the importance, judicial democracy has been defined by some prominent jurists and legal scholars as of guiding ideology and theoretical basis of China's judicial system and judicial reform.The theory of judicial democracy has been greatly affected by the theory of political democracy, since the Western theory of representative democracy has experienced the transformation from the elite of democracy to participatory democracy in modern times, in recent years the development of deliberative democracy theory means the rehabilitation of the traditional theory and practice of direct democracy. Marxist theory of democracy is fundamentally different from the Western theory of representative democracy not only in class position, but also has developed a unique system of logic in the specific design of the system. In different context of democratic theory, democratic role and democratic accountability of judicature is different, the connotation of judicial democracy also changes accordingly, thus formed the various research paradigms of judicial democracy, that is, the political democracy paradigm, the participation in the proceedings paradigm and the people's judicature paradigm. In the political democracy paradigm, democracy was considered only as "political democracy", the application of the concept of democracy, methods, organizational structure in other social fields was taken as the expansion of political democracy. Abide by the strict separation of powers, it studies the issue of judicial democracy solely from the perspective of the checks and balances among public powers. Through the rigorous application of law it builds the legitimacy of judicature, stressing the nationalization of dispute resolution, the technicalization of legal knowledge and the professionalization of legal groups.In the participation in the proceedings paradigm, the democratic control of the judicial power has become increasingly important role in the judicial theory. It attempts to use balance of powers or judicial independence to prove the rationality of the democracy of judicial power, reduces the explanatory power of theory. Democratic participation in the judicial proceedings has emerged new system forms, in the traditional theory of judicature, in addition to the trial jury system and the reference system, the professionalization and expertisation of judicature is almost ruled out the possibility of ordinary people involved in the administration of justice. The new development of the theory of judicature is not only emphasizes the citizen participation in judicial proceedings, but also encourages citizen action to resolve disputes outside of litigation looking for new ways, in which the most representative one is the prevail of reinstate justice and alternative dispute resolution methods, so thereby the democratic participation of citizens in dispute resolution goes further in depth. The coexistence of plural dispute settlement mechanisms, on the one hand makes citizens have the autonomous option right on procedures, on the other hand makes them participate in the distribution and decision of substantial rights.The people's justice paradigm is a concentrated expression of the idea of socialist judicature in the theoretical paradigm of judicial democracy. Unlike the first two paradigms of judicial democracy which mainly take the development of judicial systems in Western countries as their institutional bases, the people's justice paradigm takes the democratic political system and the judicial system of the socialist countries as its background. Whether the political democracy paradigm or the participation in the proceedings paradigm does not go beyond the basic background of the representative democracy system and the separation of powers system of western countries. On the surface, the people's justice paradigm stresses the democratic origin of judicature as well as the democratic participation in judicial procedure, thus it has in common with the political democracy paradigm and the participation in the proceedings paradigm, however, the people's justice paradigm generated in the context of a socialist democratic political system, it radically opposes to base its study of democratic role and democratic accountability of justice on the separation of powers, thereby is fundamentally different from the above two research paradigms on judicial democracy .Many academic debates on the theory of judicial democracy are disputes on the research paradigm, rather than the struggle of the presence or absence of the theory of judicial democracy. Judicial democracy is the macro-theoretical generalization on the democratic nature of judicial power sources, the democratic politics background of the operation of judicial power, the civic participation of judicial proceedings and democratic working mechanism of the judicial branch. The judicial branch as a complex body of public power organizations, obviously there exists not only the issue of its democratic status in the political structure, but also an issue on its own organizational democracy, at the same time, the development of participatory democracy theory and Marxist democracy theory shows us the manifestation of democracy method in the judicial procedure. Since the establishment of modern democratic political system, the administration of justice has the essence of democracy, however, the understanding on the democratic nature of judicature has gone through changes of the times. This article argues that it is necessary to identify the connotation of judicial democracy from the three different levels to achieve its correct understanding, namely, the people-nature of the origin of judicial power, the democratic nature of the judicial system and the democratic participation in the judicial procedure. Any single level of analysis, may lead to the one-sided understanding of the relationship between justice and democracy. The traditional way that focuses the study on judicial democracy solely on the democracy in the selection of judges or the jury system of justice, can not reflect the whole picture.In order to more fully understand the connotation of judicial democracy, it is necessary to clarify the relationship between judicial democracy and some relevant concepts. In the study of the theory of judicature, it is easy to take judicial democracy and judicial independence as mutual conflict concepts, while easy to confuse judicial democracy with the concepts of democratization of justice, judicial popularity, the judicial facilitation, to clarify the relationship between them is the necessary requirement for theoretical research on judicial democracy.The development of China's judicial system has always had a clear goal of socialist democracy. The 60 years'history of New China's judicial system has experienced the abolition of the old KMT legitimacy, the creation process of the establishment of people's justice of a socialist judicial system, the scientific process of reconstruction of the people's judicial system after the its destruction, and the process of deepening judicial reform. In the latest process, how to keep the people-nature of the socialist judicial system while achieving the judicial power as a adjudicate power's impartiality, constitutes a continuing inherent tension. The essence of this tension is how to respect for the inherent regularity of the development of judicial power, while consistent with the socialist nature of the people's democratic dictatorship. This tension often externalized as the competition between two different development paths of popularization of justice and professionalization of justice, sometimes over emphasized on popularization while neglected the objective needs of professionalization, sometimes professionalization in a period of time had become the main direction of reform is concerned, contemporary China's judicial system reform is precisely efforts to find a scientific meeting point of the two development paths. However, any development path did not deny the democratic nature of judicial power source, the democratic nature of the organization system of justice and the democratic participation in judicial procedures, therefore, with the background of the people's justice paradigm, the development and changes in new China's judicial system has persisted for the determining non-shift direction of democracy.The construction of contemporary Chinese judicial system is based on the background of socialist democratic politics with Chinese characteristics, which determines the basic content and the development of the practice of the theory of judicial democracy with Chinese characteristics. Socialist judicial democracy with Chinese characteristics can not do without the Chinese Communist Party leadership to the judiciary, which is the manifestation of the Chinese Communist Party as the country's leadership core, leading the people to effective governance of countries in the judicial field. In the context of people's congress system, China has formed the institutional arrangements for judicial democracy with Chinese characteristics which includes the contents of democratic judicial idea, democratic judicial system, democratic judicial mechanism, democratic judicial style and democratic participation in the judicial proceedings. In recent years, with the study and practice the scientific concept of development in depth, along with the concept of a harmonious society proposed and implemented, the judicial democracy mechanism is also advancing with the times, increasingly improved and enriched. The theory of judicial democracy is also one of the basic theories directly guided China's judicial reform. Since 1999 the Supreme People's Court laid down the first five-year reform outline, it separately formulated the second and third five-year reform outline in 2004 and in 2009, reform outline is the phased development plan of the people's court, the most reflect the basic content and direction of development of the people's courts'justice reform, from the actual content of view, three outlines to the varying degrees reflect the adherence to the direction of democracy development.
Keywords/Search Tags:Judicial Democracy, Judicial Reform, People's Congress System, Judicial Independence
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