On The Judicial Collegiate System

This doctoral dissertation is composed of fours parts, including introduction, fivechapters, conclusion and appendix.The introduction demonstrates the scope, methods and purposes of this article. First ofall, some theoretical defects of the judicial collegiate system are discussed, including theresearch of deviation and limitation of the collegiate system. Secondly, because of the defectsof the practice and theory, the difficulties of the researching are also explained. The chinesejudicial collegiate system of criminal trial of first instance is the research object, by taking theempirical approach and cadre group analysis approach.The purposes of this thesis are toanalyse the essence of the collgiate system and the current situation. The fundamental purposeof this thesis is to establish a impartial, efficient and democratic collegiate system. In the endof the introduction, it is necessary to define two problems: the replace of the related conceptsand the limitation of the research, which are caused by the convenience of the researching andthe lack of researching materials.The first chapter is the concept and origins of the judicial collegiate system. This thesisanalyses the superordinate notion of the judicial collegiate system, which is the concept of thecollegiate system. The collegiate system contains three factors, which are the groups, theindividuals and collegiate rules. Basing on the analysis of cadre group, the content of rules,this thesis introduces the structure and basic features of the collegiate system and the thequalifications and contents of the individuals.To make a distinction between the judicialcollegiate system and other collegiate system, this thesis analyses the different collegiatesystem in different areas, including the political collegiate system, social collegiate system.Thus, the judicial collegiate system is put forward, which is a tial organization of severalpeople making the decision in group, according to the procedure, evidence and law. Thisthesis discuss briefly the origins of the judicial collegiate system. The genuine judicialcollegiate system of the west country can only trace back to the jury system of11thcentury.The collegiate system of Greece and Roman is similar to the social collegiate system or thepoliticial collegiate system. In China, there is also a similar collegiate system since thewrittern records of the zhou dynasty. Hence, on the grounds of the particuliar situation ofChina, the establishment of judicial collegiate system should be constructed on the roots ofChina; the institutional transplant is improper for the collegiate system. At the same time, thecurrent problems of judicial collegiate system is the legacies of the chinese ancient judicial collegiate system.The second chapter is the basic function and value of the judicial collegiate system. Itbelieves that the judicial collegiate system has four basic functions, namely realizing judicialjustice and democracy through concrete system; resisting judicial corruption by groupdecision-making and collegiate procedure; regulating the reform of judicial authorityconfiguration by promoting the positive reform while alleviating the negative reform;generating a professional judicial group by accelerating new emerging judges to be integratedinto the judicial gruop and by ascending their respect for procedure. Study into the judicialcollegiate system is not only conductive to find the problems in the functioning of the judicialcollegiate system, but also define the essential requirements that the reform of the judicialcollegiate system should reach. Whereas the value of the judicial collegiate system is thevitality of it, this chapter firstly analyzes the connotation of the value of the judicial collegiatesystem, namely the value of the judicial collegiate system basing on the relationship of thejudicial collegiate system and its main body, including the meaning of the judicial collegiatesystem to its main body and the satisfaction of the judicial collegiate system to the need of themain body. Secondly, this chapter discusses the meaning of studying the value of the judicialcollegiate system, mainly including providing a direction for reform, supplying themethodology for searching problems, etc. It suggests that the value of the judicial collegiatesystem includes justice, democracy, efficiency, and order, among which the most importantare justice, democracy and efficiency. Lastly, to resolve all kinds of conflicts in the value ofthe judicial collegiate system, this chapter puts forward a plan for establishing a value systemof the judicial collegiate system, which regards the value of justice as the supreme value whilethe value of democracy and efficiency as the subordinate value, hence the reform of thejudicial colletiate system should take realizing the three values of the judicial collegiatesystem as the starting point and end point.The third chapter is the theory design of collegiate procedure and efficiency throughthe theory of group decision-making. The main purpose of this chapter is to establish acollegiate procedure which is consistent with the law of group decision-making, namelyproviding a theoretical support and pattern for the reform of the judicial collegiate system. Itargues that collegiate is essentially group decision-making, thus the theory of collegiate, to alarge extent, can be replaced with the theory of group decision-making. Firstly, it brieflyintroduces the branches and current situation of the theory, then introduces the three theories which are closely related to the judicial collegiate system, namely the theory of grouppolarization, CJT, and Asymmetric information decision theory. This chapter also brieflysummarizes the advantages of group decision-making, that groups tend to perform best as thecomplexity of a task increases, groups are better at judgment decisions than individuals are.Then this chapter dismisses about the collegiate procedure according to the law of groupdecision-making, including defining some basic concepts, such as the procedure andorganization scale of collegiate; analyzing some basic elements about collegiate, such asinformation and group network; and analyzing the collegiate procedure both subjectively andobjectively, among which objective analysis is mainly static analysis of collegiate procedure,including the norm of collegiate in the functioning of the judicial colletiate system and theprocedure of collegiate, while subjective analysis is mainly dynamic analysis of collegiateprocedure, namely summarizing the subjective phase change of individuals in collegiateprocedure. Furthermore, in the end of this chapter, it gives a conclusion of the primary factorsaffecting the efficiency of collegiate, holding that the efficiency of collegiate is depended onthe attitudes and the types of behaviors, among which the attitude include positive attitude tothe group of collegiate, being creative, and appropriate comments, while the type of behaviorincludes positive words and appropriate expression. Furthermore, it concludes the features ofefficient and fair collegiate, including fully appreciation of the validity and effectiveness ofother’s opinions, comprehensive and precise evaluation of all resolution options, accuratepremise for the use of collegiate group, and positive affects of some influential groupmembers to the whole group.The fourth chapter is to investigate the function of the judicial collegiate system inpractice. Firstly, it describes the environment of the current judicial collegiate system, holdingthat the judicial colletiate system is functioned not only under the environment in which manysystems interact with each other, such as the hierarchy of the court, internal powers setting inthe court, judicial administrative of the court, judge system, the relationship between the courtand other judicial organs, but also under the environment of our special Chinese economicsystem, our special Chinese social structure, and the interrelationship between the court andother external main parts. The environments mentioned above constrain the function of thejudicial colletiate system as well as the status of the judicial colletiate system reform. Thesecond section elaborates how the judicial colletiate system is functioned in practice fromfour aspects, namely the matching of procedures, the setting of the collegiate rules, the main body participating in the collegiate, and the disposition of comments. Therefore, it analyzes indepth that there are three patterns of the matching of procedures in the current judicial system,namely trial after collegiate, trial with collegiate, trial before collegiate. It explores undertakersystem, crossover marking system, division of responsibility system, and some principles ofvoting, such as the rule of majority, prohibiting abstains from voting, revealing free proving,opinion equality, and democratic centralism. It describes some specifics in appraisal andassessment, including the time of the collegiate, speech order, and the scope of the collegiate;it also analyzes abstractly the effect of various main bodies participating in the collegiate onthe function of the judicial collegiate system. The third section of this chapter explores thefunctioning result of the judicial collegiate system, holding that it can be concluded from theinvestigation into the functioning of both the judicial colletiate system and the specificcollegiate panel, namely that the judicial colletiate system does not have a significant benefitover any other single-judge system. The last part of this chapter sums up the problems in thejudicial collegiate system, believing that there are some problems in terms of the impartiality,such as improper matching of procedures, inappropriate decision making brought by multiplebasis of the judicial collegiate system, formalization of the judicial collegiate system, andlosing the advantage of group decision-making; some problems in terms of the efficiency,such as too rough specifics of appraisal and assessment to perform, generalization of thecontent of the judicial collegiate system; some problems in terms of the democracy, such asthe voting principle of democratic centralism, diversification of the main bodies of the judicialcollegiate system, and the inequality in reality among the members of the collegiate panel.The fifth chapter states the reform of the judicial collegiate system. Firstly, itsummarizes and evaluates the situation of the study on the reform of the judicial collegiatesystem, and puts forward that the reform of the judicial colletiate system should pay attentionto some realistic factors, such as judicial interpretation system, the particular status of thecourt, and the situation of judicial group. As for the aim of the reform, this chapter clarifiesthe basic position of the reform and sums up the target of the judicial colletiate system reform,believing that the target of the judicial colletiate system reform should further improve thecapacity of the judicial colletiate system to handle complicated cases, further make use of theadvantages of group decision-making in the judicial collegiate system, and establish thejudicial colletiate system for the values of justice, efficiency and democracy. Then it expoundsthe concrete steps of establishing a judicial collegiate system with impartiality, efficiency and democracy, namely, in terms of the impartiality, we should reform the main bodies of thejudicial colletiate systemin by increasing the qualification of judges, establishing aprofessional judicial team, and legalizing the executors of the judicial collegiate system; weshould put the judicial colletiate system under the premise of justice by justice disposal of thecollegiate discussion with improper information and appropriate identification of the scope ofthe collegiate discussion; we should establish the voting principle in which the unanimousrule, overwhelming majority rule, and simple majority rule are united together, according todifferent types of cases; and we should dispose the collegiate procedure in stages according tointrinsic motivation and subjective logic of the judicial collegiate system; in terms of theefficiency, we should provide the premise of efficient function of the judicial collegiatesystem by establishing relevant systems, such as the reposition of cases, and the clarificationof procedures; in terms of the judicial collegiate system itself, we should match appropriateprocedures to the judicial collegiate system; divide the job of the bench and court clerks indetails; arrange the voting procedure of the collegiate panel in more scientific and reasonableway; in terms of the democracy, we should reform both the internal environment and theexternal environment, namely, for the reform of the internal environment, we should establisha more active collegiate panel, reduce the restriction of improper collegiate rules and cancelthe operation of the court；for the external environment, we should put emphasis onreconstructing both the classification system of judges and the relationship between one courtand its subordinate courts.The conclusion states the studies conducted in this article, the basic results and theproblems for further study.The appendix is about the questionnaire survey and analysis of all kinds of main body,mainly aiming at studying the cognitive level and focus of the main bodies to the judicialcollegiate system, on the one hand, comparing the conclusion of theoretical analysis with thatof proof analysis, on the other hand, understanding the requirements of the main bodies to thejudicial collegiate system, namely answering what kind of judicial collegiate system isrequired. The main part of the content is the analytical basis of the fourth chapter and fifthchapter.