| The relation between higher and lower courts is an important isssue that must be dealt with in the process of legal system construction and judicial reform of China. The scientific and reasonable relation between higher and lower courts is the important condition for courts to perform constitutional judicial functions and shoulder the responsibility of maintaining social fairness and justice. Article 127 of the current Constitution of China has made principle provisions for the relation between higher and lower courts, “The Supreme People's Court is the highest judicial organ. The Supreme People's Court supervises the judicial work of local people's courts at various levels and special people's courts, and the people's courts at higher levels supervise the judicial work of those at lower levels.” However, from the perspective of practice situations, the relations between higher and lower courts in China are basically similar to the relations between higher and lower procuratorates and government agencies, and there is obvious difference between the “state-should-be” as determined in the constitutional law and the “actual state”.The court system and administrative system in vast majority of countries are similar, and have been set with different levels. But different from the graded responsibility architecture in administration, the courts are divided into different higher and lower levels, the most direct goal of which is to form different levels of trial in case trial, so as to ensure that the case trial reflects the value pursuit of justice both in entities and procedures, and promote that the legal application for courts is relatively uniform in the trial. In a particular historical period, certain countries are always influenced by the form of state structure, power setting of courts, judicial operation target, history and culture and other factors, and form various patterns of relations between higher and lower courts in the judicial practice; the different relation patterns in turn have a profound impact on the judicial function and state governance system.In the modern society, every country has its own political system and state institutions. However, all countries no matter if they are of Anglo-American Law system or of continental law system, as long as they treat the rule of law as the main way of the state and society governance, it will put the judicial independence as an important rule-of-law principle. In China, such requirement is reflected in the provisions set out in the Constitution that “the people's court shall exercise judicial power independently in accordance with the law”. Judicial independence not only requests the courts to be independent of other state organs, social organizations and individuals and away from their illegal intervention, but also requests the relative independence within the court system, that is while playing their respective trial-level functions, higher and lower courts shall keep the independence of the case trial, and shall not mutually interfere with each other. Such requests for the rule of law have been embodied basically in China's constitution and the law. Article 127 of the Constitution clearly states that “the higher court shall supervise the lower court's judicial work”, which means that in judicial work, the relation between higher and lower courts is supervising and being supervised, rather than administratively leading and being led. By summarizing the provisions and inner spirit of the Chinese constitution and other laws, it can be seen that the basic setting of relations between China's higher and lower courts is: in terms of relations judicial work, the higher court shall supervise the lower court to correctly apply laws in accordance with legal procedures; in terms of non-judicial work relations, through exerting influences, the higher court shall serve, secure and support the lower court to correctly apply laws, provided that this kind of influence shall not injure the trial-level independence of the lower court.In order to to find and solve problems, we must summarize and analyze the present situation, problems and influences of the current relation between higher and lower courts in China. In terms of relations judicial work, there are many problems, e.g. different trial-level courts fail to realize function gradation, case reports for instructions out of the procedure still exist widely, and the higher court's improper implementation in remanding for retrial and raising retrial, etc. Because of the imperfect system and the value deviation in implementation of some trial-level system, the lower courts are suppressed by the higher courts at the individual-case level, and the higher courts fail to exert supervision function in some cases and deviate the proper track in other cases, which injure the trial-level independence of lower courts.In terms of the relation between trial guidance and trial management, the higher courts including the supreme court are committed to set clearer rules for the lower court's trial beyond the law and give guidance to the lower courts through judicial interpretation, normative documents, case guiding and other means. At the same time, the higher court continuously strengthens the trial management of the lower court, evaluates the performance of the lower court and judges on the basis of numerical indicators, organizes the assessment of case quality, and adds reward and punishment measures on the basis of quantitative assessment. Through these methods, the higher court can realize the administrative control to the lower court's trial in the macro level. The higher court's judicial guidance and management activities towards the lower court tend to interfere with the lower court's independent trial in accordance with the law, increase the administrative factors in the trial work relation between higher and lower courts, and obstruct scientization of the lower court in fair trial and self-management.In the judicial administrative relations, the higher court, with its “assistance administrative power” to court cadres and the leading position in judicial reform, has enormous influence to the cadre appointment, assessment and implementation of personnel classification reform in the lower court. Affected by the traditional “upward centralized” power structure, the higher court also undertakes the responsibility of strengthening the ideological and political education and honest administration in the lower court. In addition, the higher court has management, supervision and other responsibilities towards the lower court's property, equipment, judiciary and police affairs. In a word, the judicial administrative relation between higher and lower courts is significantly shrouded, non-procedural, leading and mandatory, and shows the comprehensive “leadership” characteristics. Under the condition that the judicial administrative affairs are not effectively separated from the trial work, especially after the implementation of the reform that the district court's “personnel, finance and object” will be managed uniformly at the provincial level, the court system will have a tendency of “vertical management”, and the value goal of neutrality, independence, passiveness and pursuit of justice required by the will be damaged to some extent.Confronting the shortage of the reality, the relation between higher and lower courts in China needs to be reformed and return to the right orbit set by the constitution and laws. Combined with the enlightenment from the relation between higher and lower courts in foreign countries, in the long run, the relation between higher and lower courts in China should be improved continuously to be beneficial to uphold and improve CCP's leadership over the judicial work, achieve judicial fairness, maintain the court's independent trial and the parties' litigation right, and enhance the judicial authority in social governance. Based on the present, we should also see that there are still many deficiencies in the objective conditions of perfecting the relation between higher and lower courts in China: the profound “order and obedience” historical and cultural tradition exists in the whole society, the distinction between judicial power and administrative power in nature has not been widely recognized, the legislation related to the relation between higher and lower courts still is not perfect, social elements of rule of law are obviously lacked, the coordination of delocalization and de-administration in the judicial reform is not enough, etc. Based on the requirements of “relative rationalism”, we should be based on the existing conditions, promote the reform of higher and lower court relations as far as possible, make efforts to scientifically play the trial-level functions between higher and lower courts, pursue the intended return of higher courts' trial instruction to lower courts, stick to the trial management that higher and lower courts should respect the trial rule, establish scientific judicial administrative relations between higher and lower courts, and realize the effective delivery of the concept of judicial policy.In practice, on the basis of establishing long-term goals, the basic setting of higher and lower court relations in China provided in Article 127 of the Constitution and relevant laws, and combining with present judicial reform and economic and social development, we should properly promote the reform of higher and lower court relations according to the principle requirements of “relative rationalism”. On the reform of trial work relations between higher and lower courts, we should gradually cancel the report for instructions of pending cases, perfect the retrial procedure, reform the higher court's retrial system, standardize the jurisdiction change, and further define the trial-level function orientation for four levels of courts; as to perfecting the higher court's judicial guidance to the lower court, return the judicial interpretation system to principle gradually, make reform of guiding methods of the supreme court's normative documents, promote the development of the supreme court's case-instruction work, and promote the high court and intermediate court to perfect their guidance towards the lower court's trial; in promoting the scientization of the trial management relation between higher and lower courts, ensure that the high court's trial management will be implemented out of the lower court's jurisdiction, limit the intervention of the higher court's trial management to the case treatment, grasp the method of case-quality assessment and its data application, and grasp the method and limit of the higher court's trial performance assessment; in lifting the judicial administrative level between higher and lower courts, promote that the power over personnel of three levels of local courts belongs to the provincial party committee and provincial people's congress from legislating the judicial administrative system for higher and lower courts in China, set up a relatively independent agency that manages the judicial administrative affairs daily, play the higher court's guidance and coordination functions towards the lower court's judicial administrative affairs, and strengthen the higher court's supervision towards the lower court's judicial administrative affairs.In the context of the current judicial reform, according to the fixed goal and overall reform plan, we should effectively promote the reform of higher and lower courts' relations, maintain basic independent trial-level of the court, guarantee the judicial fairness and the procedural rights of the parties, and scientifically carry out that the “personnel, finance and object” of the lower court shall be managed uniformly at the provincial level, all of which are problems to be solved for perfecting the relation between higher and lower courts. But we should understand that this goal cannot be achieved only by the simple reform of some system or the “self-salvation” of court system, and it needs the cooperation and support of more macroscopic national governance structure's perfection, the formation of social rule of law consensus and other factors. |
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