On Judicial Authority

Judicial authority is the key to carry out function of jurisdiction, while a prominent problem at present is the loss of judicial authority in the process of Chinese legalization, it make judicial branch fail to play a due role in social life.This problem needs to be studied, and in the field it already have more achievements. This research continues to further existing work.The paper falls into three parts excluding the preface, main body and concluding remarks. The preface is about the purpose and meaning of topic selected, the research condition at home and abroad, and the structure of paper.The body of the paper includes 4 chapters. Chapter 1 is devoted largely to a description of the fundamental theory of judicial authority. It refers to the convincing power and prestige which the judiciary possesses. Judicial authority means the unity of power and prestige, and judicial power is the precondition of judicial authority. No power, no authority, but to come up to authority, judicial power must operate properly. Judicial authority also means the unity of state coercion and people’s voluntary compliance. The standards of evaluating judicial authority are judicial credibility and judicial executive force. In this chapter, sources of judicial authority are also discussed. Under the system of democracy, the most important source of judicial authority is the trust of the people; the authority of law can greatly increase voluntary compliance and engender public acceptance of the power of the judiciary, and the intricate system of the selection of judges grants authority of it; the judicial authority is not only be expressed, but also by practice, it accumulates piece by piece by way of struggling with other public powers of the state; judiciary draws its authority from all the ancient history of our people; judicial authority arises from application of complicated legal language and ancient judicial rituals. After all, nothing great cornes into be all at once, not excepting judicial authority, the growth of judicial authority is a long process. This chapter finally discuss the value of judicial authority, it differs from the judicial functions which means resolving disputes, maintenance of public order, protection of right, the promotion of formation rule and keeping balance of power, while the value of judicial authority aims to satisfy the demand from seeking the authority, to reduce social cost, to restore consensus among the divided people, last and most important is to fulfill judicial functions. Judicial authority of China in practice is discussed in chapter 2. In such feudal dynasty, judicial power confused with administrative power, and the authority of the former was cooped onto the latter. Non-professionalization of judicial functionary made poor images. When it comes to the twentieth century, the fluid situation has an effect on character and mentality of judiciary. A disordered country made judiciary in a lowly position, cause decadence of law consciousness, hampered the path of access to justice. Judiciary in this period was short of identification-based trust from the public, In this chapter, the standards used to evaluate judicial authority are judicial credibility and judicial executive force. Judicial credibility means a state that the audiences obey, convince and be faithful to itself, it depends upon great effort of three sides, on good behavior and excellent performance of judges, on understanding and respect to judiciary arise from litigant and other persons involved, and on good will and support of public. Three aspects have big problems. During the social transformation of China, criminal activities and unlawful conduct committed by judges widely exist, and it is rather serious in some ways. Statistics show that nearly three decades the judge crimes involve a large number of judges, more high-level judges, and in many cases involve groups. Criminal activities of judges have eroded people’s trust in judiciary. Meanwhile, some illustrative cases show the deficiency of understanding and respect to judiciary arise from litigant and other persons involved, they resort to using violence, or threats to use violence. Also some ordinary cases convert to public affairs that contain negative evaluation of justice demonstrates the shortage of good will and support of public. Judicial executive force simply could not be equated with extent to execution of judgments and ruling, but the scope and extent of the judicial functions come to realization. The judiciary performance features of selectivity and elusion to sensitive cases, this self-preservation strategy shows judicial relief is weak. And phenomenon that it impossible or hard to execute the judgment is widespread, this means that judicial remedies are inadequate. At present, low-lying credibility and shortage of execution suggest the loss of judicial authority.In chapter 3, this paper discusses the reasons for the loss of judicial authority. There are perhaps many reasons for this reality. First, limitation of authority is not distinct leads to lacking of appropriate independence of judicature. Next, the distribution and structure of judicial resources are not enough for its efficient operation。For these two reasons, there is a lack of the precondition to judicial authority. Thirdly, there some problems in the operation of the judiciary. Miscarriage of justice still exists; judicial system doesn’t show enough transparency and openness; unlimited appeal and system of retrial destroy the stability of the valid judgments. Finally, the reason for lack of judicial authority is the historical cultural factors. Judicial authority depends on the authority of the law, and the authority of the law roots in respect for and understanding of the law. In the history of China, people lack the sense of identity and intimation to country’s legal system. In the first half of the 20th century, legal changes so fast, what is the insight is legal pretense. After the founding of the PRC, over a fairly long period of time, we failed to application the law to govern the country, the deviation of law consciousness have not been corrected. Never formatter a new tradition of respect for and understanding of the law. Are the reasons for the loss of judicial authority.In chapter 4, what is discusses are feasible and possible measures to reinforce and boost up judicial authority. First of all, we need to establish a distinct position of judiciary. The judicial system is part of the country’s political system, so political system should be taken as the starting point for judicial research. China’s current politics is a kind of authoritarian politics, also a type of transitional politics. This political system conducts as a prerequisite and starting point, and calls for seeking the balance between universally applicable principles of value and Chinese characteristics. That means judicial authority is a relative authority. Second, the limits of authority of judicial departments and other relevant institutions need to be clearly define, protect the moderate independence of the judiciary. To be specific, the Party’s leadership should be improved, there is a gradient transition to centralized leadership by the Party, the Party’s style of leadership are done strictly according to law. The maturity of the system of people’s congresses and the modernization of the judicial system are compassable. The People’s Congress, The National People’s Congress at different parts is entitled to supervise the process of examination and decision, and the specificity of justice should take into account. The supervision should put emphasis on selection of judges, the allocation of judicial funds and judicial punishment. The condition that judicial funds for local court come mainly from local government should be changed. The third course being thereby rendered to reinforce and boost up judicial authority is to provide enough resources for implementation of judicial system. The selection of high-quality judges is necessary. During the process, the differences of courts at all levels should be given due consideration. The way funds appropriated to the agencies are spent should be open and transparent. The funds must adequately provided by the state in fixed proportion, and the quota of the funds increased normally. Fourth, in order to reinforce and boost up judicial authority, the promotion to the course of justice, the strengthening on the disclosure, to maintain the stability of judgments are necessary. Fifth, judicial responsibility system needs to be built, judicial authority demands achieving a balance between judicial independence and judicial responsibility. Finally measures to reinforce and boost up judicial authority are the cultivation of people’s legal awareness and legal faith.Generally, loss of judicial authority causes relatively serious consequences; the state and society have not paid much attention to it. Measures have been taken to reinforce and boost up judicial authority leave much to be desired. Go with economic and social development, judicial systems as part of the superstructure must respond effectively, otherwise development will be offset, and hamper development in the future. However, how to reinforce and boost up judicial authority is a huge systemic project, it cannot reach the goal in one step. Though the road of tomorrow is uneven, as a legal man should remain optimistic, with dreams of the rule of law.One major feature of the paper is textual analysis and discourse analysis used to some extent, especially in chapter 3.Apparently more research is needed to perfect the present study, some directions merits consideration. One is further supplement empirical materials, the second is comparative study of countries whose history and political experience are in some respects quite respects quite similar to China’s, and the last is that existing theory needs to be deepened by learning from other disciplines, such as political philosophy, political science jurisprudence or even psychology.