Research On The External Independence Of Judiciary

Social governance by law and even by judiciary is an important part of the national governance system.The ability of using the rule of law to “deepen reform,promote development,resolve contradictions,maintain stability” is an important aspect of national governance capacity.To improve the judicial governance system and to promote the modernization of judicial governance ability becomes an important step in comprehensively deepening reform,and is an important part of comprehensively promoting the rule of law.However,the current system of judicial governance and the ability of judicial governance can not afford this task.The authority of our judicial system is not very high,the credibility of the judicial system is insufficient.Therefore,the decisions of the Third and Fourth Plenary Session of the Eighteenth Central Committee deployed a series of reform measures on improving the management system of judicial power and the operation mechanism of judicial power.The decisions also proposed to ensure the independence of the judiciary.Therefore,the judicial independence has become an important issue in the new round of judicial reform.This paper argues that: Judicial independence has three meanings,the first one is independent judges inside the court,the second is independent trial level between courts,the third is independent court as a whole.This article limits the subject to the judicial external independence in the third meaning.The independence of the party committee,government,people's congress and all other power is the external independence of judiciary.Compared to the external independence of the Supreme People's Court,the external situation of the local courts is more urgent,more typical.And so,the subject is further limited to the external independence of the local courts.The article is divided into five parts.The first chapter is about the Chinese style of the external independence of judiciary.This chapter summarized the evolution history of the judicial independent in foreign and China,demonstrated the deep motivation of judicial independence from three perspectives.The nature of justice requires procedural justice,the essence of politics requires power checks and balances,the nature of the state requires neutrality.This article pointed out that the independence of the judiciary is subject to many restrictions which include the current constitutional system,the purpose of judicial reform,the degree of judicial rationality and so on.This article was limited to the subject of the external independence of the judiciary,that is,the local courts should be independent of the local people's Congress,the party committee,government and other power.From the vertical point of view,the article combed the situation of judicial external independence in different historical periods,which included the period of class struggle,the period of economic construction as the center,the period of maintaining stability as the main task,and so on.The article found that under the guidance of the concept of instrumentalism,justice is only a means of serving local development.From a horizontal perspective,local party committee controls the court's “human” through its politics and Law committee,the party group in court and other means;local government masters the court's “financial” through the preparation of judicial budget,etc.;local people's congress reviews the list of candidates from the local party committee and the budget proposal from the local government by the legal procedures.The local courts are fully embedded in the local state power system,service to the local central task actively or passively.Chapter II deals with the institutional barrier to the external independence of judiciary,finding out the deep-seated reasons for the low degree of the external independence of judiciary.According to the summary,the management system of local court can be divided into two kinds in the western developed countries,first one is centralized style that the local courts are managed by the central authorities,the other one is localized style that the local courts are managed by local authorities.It is difficult to distinguish between the two models which is better.Not whether the local court is controlled by the local or the central,but how to control it;Not how to completely separate from the controller,but rather how to properly isolate the controller;Not whether the administrative affairs are governed by the courts themselves or by the executive branch,but rather how to separate the power from the jurisdiction.By contrast,our local courts have the main features of the localized style and some of the characteristics of the centralization model.The local courts of western developed countries are managed by multiple subjects in accordance with the ideas of the commission,according to the law,under a larger autonomous space.But,our local courts are managed by local party committees and governments in accordance with the ideas of the head of accountability,according to the related policy formulated by the party committee,under less autonomous management space.The above different characteristics stem from deep roots.First of all,the concept of checks and balances derived from the theory of separation of powers is different from the service concept originating from the theory of division of power.Secondly,the legal/ judicial model of legal operation is different from the party-led model.The judicial instrumentalism is different from purpose theory.The above three reasons are also the institutional barriers to advancing the external independence of judiciary.The third Chapter relates to the directional dispute concerning the external independence of judiciary,gave some criticism and reflection on the current direction of reform.Not completely consistent with the judicial system reform,the reform of the externally judicial independence should be based on justice and authority.Such dual targets would have impact on the strategic design of external judicial independence.Currently,for the reform of promoting external judicial independence,there are two directional disputes,namely,elimination of localization and reform of localization.The main theoretical ground of elimination of localization judicial power shall be centralized,and decentralization would lead to local judicial protectionism,and a variety of centralized proposals were proposed and practiced,such as vertically central management,re-distribution of judicial district,and dual court system.The main theoretical ground of reform of localization is that judicial power shall be decentralized,and decentralization is not the main reason of local judicial protectionism,and such reform advocates that reform shall be made within the currently existing constitutional framework.Considering the relationship between central and local authority,and historical evolution of judicial power,local judicial power has more decentralization factors,which is the comprehensive balance between central and local authority.The surficial reason of local judicial protectionism attributes to the decentralization,however,deep-seated reason is the failed balance between vertical and oriental power.Seemingly,the reform method for both elimination of localization and reform of localization is how to allocate and manage the human,financial and material resource for local court.As matter of fact,the essence of reform is where local judicial power derives from,namely,whether the local judicial power derives from the local public representative authority or it is delegated from the central public representative authority.At a deeper level,after experiencing of revolution,construction and reform and opening development,as the nation's foundation,it needs to judge whether the people's congress still has vitality suitable for the needs of China's economic and social development.Within a certain extent,compromising elimination of localization and reform of localization,it puts forward the reforming thought of external judicial independence through the legal reconstruction of local court and local relationship.The fourth Chapter concerns the legal reform of external judicial independence discussing the reforming way of local court's external independence.External judicial independence reform would adjust the function and rule of judicial power and other political power under the national governance and structure.Currently,local court is deeply embedded with political power at local level with local Party Committee at its core.In essence,external judicial relationship is how to deal with Party Committee at local level.This also arises from the one dimension dual system that Party's system has gradually embedded with national political system after exploring the different stages of taking power,election and construction with connecting that Party Committee is accountable,which is led by central government.In essence,Reform the external judicial independence is to adhere and improve the Party's leadership under the rule of law.In summary,this reform could be summarized as “Two Adeptness and One Support”.In other words,to promote external judicial independence reform under the rule of law,it develops “Two Adeptness” and insists “One Support”.To orient under the rule of law,external relationship of judicial independence reform shall be shifted from the Party Committee to People's Congress at its core.Through constitutional democratic procedure,it is to complete the reconstruction of local judicial power from its substantial and formal perspective.After such completion,external relationship for local court would be changed from local Party Committee to local People's Congress.By defining the direct relationship between court and People's Congress at the same level,it could be legalized through two principle and three dimensions.By defining the relationship among the court,Party Committee at same level and government as indirect relationship achieved by People's Congress,with the help of the procedure of People's Congress,the control by local Party Committee on the “human resource” of court could be controlled,and the control by local government on the “financial resource” of court also could by controlled.The last part is the important significance of the reform of the judicial external independence to the construction of the rule of law?The legalization of the independence will bring about the rule of law in the local power relations,and even bring about the legalization of the local regime.The legalization of the local regime is an important part of the rule of law in China,is the basic work of building the rule of law in China.