The Study About Judicial Examination During Modern China

Judicial examination during modern China is an importance component part of the law modernization of China,and not many people are researching it systemly,and only researched it in a certain respect or at one stage about judicial examation.This thesis research judicial examination during modern China for a longitudinal study of it.I both research it from three periods,and research it by a comparative study.It’s content of study includes the system of judicia examination,judicial examination and judicial training.I analyse the positive significance and deficiency of judicial examination by historical matarials.It can enlighten us to reform judicial examination today by the study of judicial examination during modern China .Two methods of study are used in this thesis:method of literature study and method of case study.This thesis is consist of five sections:motive of holding judicial examination during modern China,judge examination at late Qing Dynsaty,judicial examination during Early Republic,judicial examination during NanJing Republic,influence and enlightenment ofjudicial examination during modern China.It’s main content includes: Judicial examination that was carried out during modern China was related to international and internal situation at that time.For official system reformation was developed at the end of Qing Dynasty,selecting officer from school was the main content.Many law schools were setted up at the end of Qing Dynasty,and student studying law increased quickly,so Qing Government may select officers from lawers. Consular jurisdiction broken our country’s judicial sovereignty,so taking back judicial sovereignty needed our own organizing judicial organ and personnel. Taking back judicial sovereignty was the basic starting point of the system of judician examination,was also history mission of the examination and training system of judge.Modem law education developed quickly,especially public and private school were setted up successively,so lawers from law school was the foundation of the examination system of judge drawn up and put into effect.Along with all levels judicial organ established,it needed judicial examination to select excellent judicial person.Late Qing Dynasty is a key period of China history,Qing Government changed national organization’s establishing after drawing lessons from external judicial system during this period,e.g. establishing the supreme court and law ministry. Along with all levels judicial organ established successively,selecting qualified judge was also essential to judicial organ.The system of judicial examination was drawn up firstly at the end of Qing Dynasty.In order to normalize judge examination,Qing Government promulgated a series of examination system of judge that provided judge examination completely. The examination system of judge at the end of Qing Dynasty was carried out availably,Qing Government holded the first judge examination that selected many qualified lawers for judicial organs in the whole country according to it in 1910.Judicial examination at the end of Qing Dynasty went through the process from selecting based upon experience and longevity to selecting based upon examination.Judicial occupation needed judge candidate to understand legal professional knowledge and judicial experience. Selecting judge was combined with studying the western experience and inheriting traditional civil service examination system. The examination system of judge at the end of Qing Dynasty was a unprecedented undertaking in Chinese political system history, and was the first one in moden China. followly, it was inherited by NanJing Provisional Government, Early Republic and NanJing Republic.Although it was complete and concrete,it was not embodied it’s value in practice,for example, examination qualifications was too high to cause margin between the ideality and the reality;Qualified personnel admitted in practice was mostly old officers; Discipline provided by it was not carried out strictly.The Early Republic is a special period that warlord confused conflict long term,but the system of judicial examination was followed down. The system of judicial examination in the Early Republic inherited one of Qing Dysnaty and NanJing Provisional Government,and reformed it. It’s system is better because there was complete system that guaranteed judicial examination.It had the following characteristics:It’s content is concrete and operability;It include some humanized clauses that is helpful to the people;It provide the process and organize organizations of judicial examination that guarantee judicial examination’s holding etc.And it also have some shortage :It’s content don’t include responsibility clause that violating the law can not be punished during judicial examination;Category and method of oral test is not explicit so that we can not select elitist during judicial examination;It’s qualification too pay attention to foreign language etc.The examination system was carried out in practice,and obtained good social effect,and selected elitist for judicial organs by holding six judicial examination.Judicial examination went through the process from register for examination,to investigate qualification,to arrange test field,to test questions,to read and appraise questions,to compute score,to distribute qualified personnel,to exam again according to it’s provision.qualified personnel was mostly graduate students from law school,so it was helpful to judge’s elite and form common body of legal occupation.Judicial examination is one of higher officer examination in NanJing Republic,so judicial examination ought to cite higher officer examination system.At the same time,Government also promulgate a series of system of judicial examination,for example, Provisional regulation of first examination, Regulation of higher judicial examination, Provisional regulation of judge appointed,Regulation of judicial examination etc.Differ from one of the end of Qing Dynsaty and Early republic,it’s legal system is the most whole and integrity,and reformed the system provision of examination.It’s content is very concrete,it provided qualification of registering for examination, organizations, process, category,content and computing score and so on.At the same time,it also provided a series of enforcement regulations.Although it went through the War of Resistance Against Japan(1937-1945),it holded judicial examination most in modern China.Nearly fifty judicial examinations were holded altogether,and enrolled many qualified personnel for judicial organations.Legal knowledge and ability of applying legal was payed attention to during examination,and examinee’s political character was also one of examination’s important content,e.g. meaning of Party and guiding principle of Party.In addition to holding formal judicial examination,eight provisional judicial examinations was holded so as to solve difficulty of shortage of judge.But qualification of examination too pay attention to practice experience,e.g. personnel of judicial experience was excused from an examination.This provision can not be seized in practice,and gave some people an opportunity of seizing every chance to gain advantage by trickery.Judicial examination was close to connect with judicial training in Modern China history.Although judicial training was not holded at the end of Qing Dynasty,it provided qualified personnel ought to be distributed study.System of judicial training was a very important accessory one of judicial examination at the period of Early Republic and NanJing Republic.Government promulgated system or rule of judicial training,and holded many judicial trainings in practice.In order to train qualified personnel,Government of Early Republic started judicial lecture and study institute and school storeing up talent for judicial organizations successively.In order to train and store up judicial talent,Government of NanJing Republic started institute of training judge that holded training class for the qualified personnel of first examination and judge on-the-job training.System of judicial training perfected the examination system of judge in modern China.Legal education,judicial training and judicial examination are an entity,If legal system lack one among them,so it is not complete and single-system can not be carried out.Holding judicial training trained an excellent legal talent and stored up talent for Chinese legal modernize.The system of judicial examination was not only perfect during modern China,but also judicial examinations that judicial personnel were selected for all level judicial organizations were holded according to it’s regulation by three stages.Quality of judge was an importance content of the system of judicial examination and judicial training.There was a question that there were different between indeal,system and reality to not be settled during holding judicial examination.At present we are holding justice reform in our country,and judicial examination reform is one of its.we ought to draw lessons from judicial examination during modern China,and we must reform process,qualification,form of judicial examination,judicial examination ought to be connected with judicial training,judicial examination ought to be connected with legal education.