On The Allocation Of Judicial Power

The system of court establishment reflects the basic framework of judicial power allocation in a country.The allocation of judicial power in China is stipulated by the Constitution and the organic law of the people's courts.The party's Fourth Plenary Session of the the third Plenary Session of the 18 th Central Committee new judicial reform initiatives: "reform the judicial management system,promote the district court below the provincial Procuratorate,wealth,unified management,explore the establishment of judicial jurisdiction system and appropriate separation of administrative divisions,to ensure the correct implementation of a national legal system." One of the most striking part is to explore the establishment of judicial jurisdiction system separation and administrative divisions,a new round of judicial reform seems to be the allocation of the localization of judicial power,judicial power and administrative judicial injustice caused by the problem is due to the judicial power and administrative correspondence,try to change the configuration to promote judicial jurisdiction the system reform,and provide institutional guarantee for the construction of the rule of law China.Then,whether the jurisdiction must correspond with the administrative districts,what is the value concept behind the judicial district? This needs to return to the origin of the judicial power: the nature and attribute of judicial power.With regard to the nature of judicial power,the legal circle has basically reached a consensus: passivity,procedure,neutrality,independence,judgment and finality.These six characteristics can be said to be the special nature of the judicial power in operation,which has provided a logical starting point and a prerequisite guide for China's judicial system reform.However,the power attribute of judicial power,especially the social attribute of judicial power,seems to be neglected by the academic circles.The power attribute of judicial power refers to the unique attributes of judicial power and legislative power and administrative power in the state power system and structure.On the one hand,judicial power is the exclusive state power of the state.Theoretically,legislative power and executive power are also state power,and all state organs under the framework of the Constitution also have the obligation to ensure the unification of the rule of law.However,as the legislative and executive power have the characteristics of relative initiative,the finality of judicial power is the most important in maintaining the unity of the rule of law.According to the provisions of our constitution,the local judicial organs at all levels are responsible to the National People's Congress,under the supervision of local judicial system,people,property and property in the hands of local government departments,this institutional arrangement objectively provides the conditions for the breeding of local judicial protection.Local reform is imperative.On the other hand,the law is based on society,and the law is the product of society.Judicature is the life of the law,and judicial power is inevitably social.By Professor Zhang Yonghe of Southwest University of Political Science and Law presided over the "judicial culture in minority areas and the construction of rule of law" research group in Xinjiang city of Urumqi Urumqi County People's court Banfanggou court conducted an investigation found that,in order to facilitate the masses for the ethnic Kazakh language to participate in the proceedings,Urumqi City Intermediate People's court appointed Urumqi County People's court accepted Urumqi centralized jurisdiction within the scope of the Kazakh case.Such a way of being governed by language,not by administrative division,is a reflection of typical multivariate social factors in judicial jurisdiction.In fact,in addition to language and culture,political,economic,geographical,traffic,cultural and other social factors are bound to be reflected in the jurisdiction.With the development of economy,the social division of labor and professional services are becoming more and more detailed.Relying on the development of tourism industry,economic areas have correspondingly increased the allocation of resources for the Judicial Services of tourism.The tourist jurisdiction and intellectual property court of scenic spot mobile court can be seen as the embodiment of economic development and industry development in the judicial power allocation.In some special cases,the geographical traffic factor is also an important factor in the division of jurisdiction.For example,the maritime court jurisdiction is based on the trend of river and sea lines and Distribution Division,its jurisdiction is not confined to the city.In addition,such as the Olympic Village Court,the free trade zone court,the Yiwu court in the business city tour court,are judicial power allocation and jurisdiction,respect for and response to multiple social factors.Then,when the country carries out the institutional reform of the judicial power allocation,we should fully respect and respond to the rich and diverse social factors.Because of the nature of judicial power,the most important function of judicial power is to resolve social disputes.This kind of natural local attribute,which is based on society as its starting point and ends with society as its destination,is the social attribute of the so-called judicial power.The natural social attribute of judicial power determines that judicial power is bound up with local knowledge,that is to say,judicial power also has certain local characteristics.Then,in the national judicial power as the theoretical foundation to local reform,in order to ensure the national unity and the unity of the legal system of justice,and to multiple social factors of judicial power based natural local characteristics,opposing and contradictory? What kind of theoretical guidance should the judicial power be configured and in which ways will it be adjusted and optimized? This is the question that the thesis wants to discuss and answer.As an important component of state power,the most important attribute of judicial power is its national attribute.According to the constitution of our country,the judicial power is exclusive to the country.However,the provisions of the constitution of local courts at all levels produced by the NPC,and is responsible for it,subject to the supervision,coupled with the local court of human financial and property are held in the hands of local,shall be guaranteed by the place,such a system arrangement,provided the conditions for the breeding of local judicial protection,it is imperative to reform the localization.On the other hand,the judicial practice belongs to legal action,combined with China's large population,wide distribution,national habits and other characteristics,but also due to the application of law as well as the practical application of various folk law,customary law,mediation system,social and local characteristics of the inevitable judicial power.Then,between social attributes in the jurisdiction of the state property and judicial power,between the natural local characteristics to natural local reform and judicial power in judicial power,how to resolve the contradictions and conflicts between this,we need to respond in the judicial practice of reform.The reason why the judicial power is emphasized is the national nature,mainly because the judicial power has the unique function of safeguarding the unification of the legal system.Theoretically,the legislature,the administrative organ and the judicial organ have the obligation to ensure the unification of the legal system.But the court as judicial organs,the exercise of Jurisdiction Act itself is the correct application of the law,and due to the relatively active characteristics of legislative power,administrative power,judicial power and the status of finality in maintaining the unity of the legal system is the most important.As far as legislative power is concerned,if a certain interest that is advocated by oneself can stand out among many competitions,trade-offs and trade-offs,it can only exercise its initiative and exercise its power.As far as administrative power is concerned,whether it is in the process of starting or running,it is necessary to maintain and realize the interests of the state and the society through active intervention,management and control of social life.The judicial power with a strong active intent and purpose of legislation and administration of this power,the correction function for the political structure and power stability,the government is of vital significance.Law is the manifestation and product of social relations,recognition,abstraction and generalization.It is in this sense that law is essentially a local knowledge.In other words,the connotation of law should be understood in the context of localization.The judicial power in modern society manifests especially obviously.The judicial power embodies the characteristics of various local and the combination of the actual situation,the operation and the exercise is more dependent on the specific social context,showing a different place and form due to geographical diversification,the difference between the economic and political,cultural and historical traditions multiple social factors inevitably should also be reflected in the judicial power configuration.Through a comparative study of federalism in the United States,Germany,and a unitary system of France and Japan judicial power configuration of the basic state,found that the judicial power is a top-down unified configuration in a unitary state,federal states have relatively independent and complete the whole judicial autonomy,although both judicial power allocation the significant difference,but the judicial power of the countries in the strengthening process,most of the countries in the judicial district division is not only overcome the political purpose of the judicial protection of local and regional intervention based on,but multiple social factors such as economy,politics,geography,population and culture as the judicial division of standards,and most of the principle of separation according to the jurisdiction of the court and court management right in court management structure set on.As a unitary state Chinese,the judicial power of the national judicial power by the national unified configuration,and try to change the jurisdiction and administrative jurisdiction coincide situation,explore the establishment of management system to guarantee judicial independence trial affairs management system and transaction system separation.The dual attributes of the judicial power of the state and society should become China's current judicial power allocation theory reference,there is no contradiction between the jurisdiction of local places and the reform of judicial powers to the social basis of the judicial powers to the country as the theoretical basis,to overcome the localization of jurisdiction and judicial administration the reform on the road,on the one hand we want to deal with the relationship between the party and the judicial organs and people's Congress,and the executive authorities,isolation mechanism and the establishment of human financial and material within the court system,the judicial powers of the national security attributes;on the other hand,to reflect the social attributes of judicial power the cross administrative court jurisdiction is set according to the specific practice.Set the court in cross administrative areas,should be considered in geography,geographical area,population,economic conditions and other factors,to abandon the court setting and administrative region under the jurisdiction and the number of complete correspondence approach,with the relative balance of judicial resources,the litigation cost minimum principle,and steadily push forward the reform of administrative divisions across the court.The rule of law to perfect the judicial power in our country is the feasibility of construction scheme,the constitution is the fundamental law,there are some provisions of the constitution are obviously unable to adapt to the reform of the judicial system and the demand of social development,so as to guarantee judicial power allocation,should revise the related provisions.The organic law of the people's courts is the general constitution for the work of the people's courts,and it should also amend the organizational law of the courts in a timely manner so as to provide legal support for judicial reform.