Research On The Regulating System Upon Judicial Power

From its historical changing process, we can find that judicial power has long beencharacterized as a kind of social power. Due to judging social dispute, the operation ofjudicial power should be processed upon artificial reason. However, with theemerging of modern constitutionalism, judicial power has become a kind of importantpolitical power balancing legislative power and administrative power among specificnational power system. This has not only transitioned judicial power to modernjudicial power, but also expanded its constitutional position and function. During theabove process, there exists such possibility that the artificial element of judicial powermay be compressed even be overstepped by political operation or other nationalpower as legislative power and administrative power. This brings relative opportunitywith the operational anomie of judicial power. Observing the modern transition offoreign judicial power, we can find that it is of typical empiricism. Relative countrieshave constructed certain regulating system of judicial power to safeguard theexpansion so that the specific operation of judicial power can be interacted withlegislative power, administrative power and political operation within the frameworkprovided by law and constitution.The operation of our judicial power in transitional period should not be an exceptionapplying the common law of judicial power·s development. However, since there stillexists imperfection in the area of current specific laws and regulation, the level of ruleof law of political operation is still low, the operation of judicial power is somehow intension with the operation of political party, legislative power and administrativepower. There exists possibility for the operational anomie of judicial power in boththeoretical and practical level. Thus, in order to better safeguard citizens· fundamentalrights and create a capable national power system, we need to construct a suitableregulating system of judicial power. This dissertation, from the theme of constructingthe regulating system of our judicial power, plan to research upon the influencingelement and specific models of the construction of our judicial power based on exploring the common law of the expansion of judicial power.Chapter one primarily probes into the operational anomie of judicial power and itsspecific reason. Through the analysis upon micro and macro legal framework, weregard that there exist relative legal norms for the operation of our judicial power.However, in the specific operation of judicial power, there exists the operationalanomie of judicial power respectively in forms as directly and indirectly against legalnorms. Relative cases prove that there are no institutional regulations upon suchoperational anomie of judicial power. Further analysis shows that there are closerelation between the operational anomie of judicial power and social changing.Meanwhile, it is also related with the national power distribution.Chapter two primarily analyzes the necessity of regulating judicial power. Throughanalysis to the experience about the expansion of judicial power in some importantforeign countries, we find that there surely exists possibility for operational anomie.The reason for the occurrence of the operational anomie of judicial power may be thetension between the operation of judicial power and political power, and also may bethe contradiction between judicial power and legislative power or administrativepower. The experience of foreign countries shows that, they not only pay attention toconstitutional design of regulating system upon judicial power, but also proceed akind of empirical innovation based on respecting artificial reason of judicial power.Our country in transitional period is facing high expectation from social and politicalarea. This brings operational anomie with judicial power since its operation isinfluenced by many elements outside the legal area. It is necessary to regulate theabove operational anomie of judicial power.Chapter three primarily probes into the political party element in constructingregulating system upon judicial power. In a broad sense, the operation of judicialpower is also one form of exercising power by the ruling party. However, what theruling party aims to obtain is the legitimacy of political governance, while theoperation of judicial power adheres to a kind of specific legal argument. There areclose relationship between these two kinds of operation, while there are fundamentaldifference. If not properly handled, there will be bad influence in constructing the regulating system of judicial power. In the contemporary judicial area of our country,there are two kinds of bad trends handling the party·s leadership and judicialindependence as pan-politicalization and depoliticalization. Only by the rule of law ofpolitics and technicalization of judicial power can these two above bad trends beremedied.Chapter four primarily analyzes the heteronomy model of constructing the regulatingsystem of judicial power. For the construction of the regulating system of judicialpower, we like to provide a kind of heteronomic model through NPC·s supervisionupon judicial power and administrative power·s limitation upon judicial power.However, the imperfection of heteronomic model is: it may bring with legislativepower·s replacing judicial power or administrative power·s replacing judicial power,the operational anomie of judicial power thus occurred. Applicable heteronomicmodel of constructing the regulating system of judicial power should be a kind ofheteronomic model based upon the respect of the artificial reason of judicial power.To realize this, we need to balance the relation between NPC·s supervision and theoperation of judicial power and reasonably position the relationship between thejudicial power and administrative power.Chapter five primarily advocates a kind of autonomous model of constructing theregulating system of judicial power. The heteronomic model of constructing theregulating system of judicial power can easily bring interference factor with theoperation of judicial power. From the empirical angle, the construction of theregulating system of judicial power has to rely on the autonomous model. Toreasonably construct the regulating system of judicial power, we must foster the legalpersonality of the judicial power operator. The legal personality of judicial powerbased upon the artificial reason, should be accomplished with the help of perfectjudicial power operation mechanism, just judicial procedure.