The Multiple Faces Of Court: Study On The Functions Of China’s Court

Based on the judicial practice of the China’s court, this article attempts toobserve the functions of the court and their changes through the different faceswhich the court shows and different roles which the court plays in dailyoperation, and thoroughly probe the dilemmas which the court is confrontedwith,establishing and implementing the various functions of the court, theconflicts arise in the process which the court establishes and implements thefunctions, and the institutional, structural reasons for these plight and collusions.Finally, this paper tries to explain the current situation of the Justice of China,and predict the direction that the future development of the Justice of Chinashould go, through the above analyses of the functions and the discussions of thespecific problems.The thesis is divided into six chapters, and including introduction of sevenparts.Regarding the introduction as a primer, this article questions the so-calledideal model of the court based on the foretype of China’s court, thoroughly studies the functions of court, explains the reality and builds the future on thebasis of this study, and illustrates the objects of study, philosophies and methods,based on the multiple faces of court.The First Chapter expounds the functions of court. By explaining thecontent of the functions, content, characteristics of court and the study path indetail, this article deems that the court possesses four functions: disputeresolution, social control, rule establishment and power restriction. Because thefour functions have different goals and demands, they show differentcharacteristics and operations of logic. As the fundamental function, the functionof dispute resolution demands that the court plays a neutral role. Even if theconstitutional judicial independence can not be achieved, it can be processedtechnically. Meanwhile, for sake of the public credibility and authority of thejudiciary, the judgement or mediation should have the finality. The strengtheningof the court’s function of social control is relevant to the propagation of the ideaof Rule of Law and the establishment of legal order. As a part of the politicalorganization, the court inevitably takes part in the control and governance of the society. The exertion of the court’s function of social control is deeply affectedby these political, economic and cultural factors. And this function has differentboundaries and limits in the responsive justice and the active justice. Thefunction of rule establishment embodies the possibility which the court createsrules, the type of rules created by the court and the scope within which the courtcreates rules and comprises the efficacy which the court converts the law writtenon the paper into the law in action and formulates the actual rules by the judicialprocedure. According to Separation of Powers, the court exercising the judicialpower certainly possesses the function restricting the legislative power andexecutive power. Besides the judicial review, the court uses other means, forexample judicial opinions, to balance the public power sectors. In order toanalyze the functions of China’s court, this chapter completely introduces andanalyzes the court’s functions.The second chapter discusses the status, characteristics, forms and causesof court’s function of dispute resolution during China’s transform period. Thenumber of actions in China has been large, but the court does not exert its function of dispute resolution fully. The court commonly resolve disputes byjudgement and mediation, but under the influence of the sense of “harmoniousjustice”, the court excessively emphasizes the mediation, even puts it into aprior position. These judicial ideas with good minds and goals, for example“Justice for People”“,Active Justice”and “Case Closed with Matter Resolved”,have affected the court’s function of dispute revolution in practice, because thecourt pursues the political achievements. The court is so dynamic that it breaksaway from the neutral position; the court pursues matter resolved so that thefinality of justice is broken. Under the China’s current background of time andsocial demands, the trial and mediation are indispensable means of disputeresolution, but mediation is only a supplement and an appropriate alternative,while the judgement becomes “correct and mild” because the trial can takeaccount of law and specific situation of case. The activity of court is positive,but should be confined to the construction of the service justice and not exceedits neutral position.The third chapter focuses on the court’s function of social control. The function of social control is prominent in the diary operations of China’s court.As a response of governance structure in China, this function reflects thedynamic characteristic of state governance in China, focuses on the achievementof national policy, the implementation of the task maintaining social stabilityand the participation in national development, and is distinct from the otherfunctions of the court. These characteristics of this function also determine thatit is likely to destroy the elements of justice and make the court be similar to theadministrative agencies. We should treat this function correctly, make thefunction play its role properly, admit that it is helpful to the social order andeconomic development and also pay attention to its potential destruction of thejustice and rule of law. In order to deal with this destruction, we should concernthe legitimate crises which this function may encounter, for example violentresistance against enforcement of law, hard to enforce, letters and visits andcorruption of justice etc. We should insist on the basic logic of justice, andpromote the unified justice.The fourth chapter studies the China’s court who plays a role of rule establishment。To handle the changeable social demands and resolve the variousnew types of disputes, China’s court has played the role of law maker. Takingthe Supreme People’s Court for example, the part of judicial interpretationsissued by it shows the function of making law. The typical cases are also theimportant reference in the process of litigation. The case directing system inpreparation embodies the court’s efforts to make law and institutional distress,theoretical problems and practical obstacles suffered by the court. Besides thepractice of erecting new rules, converting the law written on the paper into thelaw in action, that is, putting the rules into effect and making them become thepractical rules to guide and shape the public’s behavior, also reflects thisfunction.The fifth chapter studies the China’s court who plays a role of constrainingpowers. According to the sense Separation of Powers, China’s court lacks in thefunction applying the judicial power to restrict the legislative and executivepower, but still restricts the powers. In fact, it can restrict the powers byadministrative litigation as well as the principle:“checks and balances” between the public security organs, the procuratorial organs and the people’s courts incriminal proceeding. But in practice, its function of restricting powers is weakerthan its other functions, because the court is attached to the authorities andcooperates with the public security organs and the procuratorial organsexceedingly.The sixth chapter summarizes the functions of the China’s court. We thinkthat the function of social control dominates these functions and its dominanceshould be consistent, the function of dispute resolution should be strengthenedand modernized, the function of making law is being extended and the powersrestriction is still frail. The article believes that the court’s future functionsshould be oriented to strengthening the function of dispute resolution, balancingthe function of social control, regulating the function of making law andintensifying, extending the function of restriction powers.