A Study On The Judiciary Immunity System In China

Nowadays,how to make the judicial authority run independently,has become a common issue which is not limited to a state and needs to be replied by all countries carrying through judicial reforms,and the hinge to the issue lies in the approach for making out and dealing with the relationship between the independence of judicial power and judicial accountability.In a degree,judiciary immunity system is the very institution,which is established not only to guarantee that a court hears cases on its own,but also to strengthen the responsibility of judges in the judicial process.From1990s,China set up the judiciary immunity system preliminarily,and courts of different levels commenced to explore the practical approach of judiciary immunity.However,there are still problems,relating directing to the yardstick,the procedure of standard,the manner of judiciary immunity system integrating into the judicial tradition and the system of politics and law in China,and then to bring out positive influence synthetically,which demand adequate solutions.Judiciary immunity system includes a two-way dimension,composed of theory and practice,and it should be in accordance with the institutional law of judiciary immunity and judicial conditions and mechanisms with Chinese characteristics,reviewing the practical operation of the system and developing the system simultaneously,based on the operational principles and professional traits of judges via system construction and theoretical analysis.Thus,this thesis intends to make a relatively comprehensive study on the fundamental rationale,evolution process,operating status,positive efficacy,existing problems and causal factors of judiciary immunity system,on this basis,to indicate the validity,necessity and feasibility of developing the system,and to illuminate systematically the basic principle,specific design,coordination mechanism of moving the system and workable proposition of innovating the very system.Judicial independence works as the premise of judicial fairness,safeguarded by judiciary immunity,and this means the realization of judicial fairness should unite judicial independence and judiciary immunity.Judiciary immunity system in China is just an active reflection of judicial independence and judiciary immunity,originating from the practice of judicial reform and going through the evolution process of concept conceiving,initial shaping and gradual perfection.Judiciary immunity system in China regards judicial fairness and human right protection as value pursuit,points up inner unity of vesting and limiting powers.Owing to the connotation and nature of the system,judiciary immunity system in China plays a vital role in achieving judicial independence,in providing an institutional guarantee for the reform of judicial system,professional safeguards of judges and judicial fairness.However,as a result of the traditional view of Chinese justice,governance mechanism of Chinese court,and individual qualities of judges themselves,Chinese judicial accountability places extra emphasis on how to claim responsibility of judges,and makes light on the immunity mechanism of judges.This leads to the flaw of the institutional design of judiciary immunity system,the bureaucratization of the operation of the system,the impairment of the execution of judiciary duties,therefore,weakens the actual effectiveness of the system and exerts a negative effect on the target of judicial fairness.Grounded on realistic considerations,to push the development and perfection of judiciary immunity system has immanent validity,necessity and feasibility.In terms of validity,the system will not destroy judicial accountability;on the contrary,it lays down the code requirement for investigating and claiming the responsibility,and changes the situation of“intensifying accountability and neglecting the immunity”.In fact,judicial immunity system is an important part of the professionalization of judges,and the boost of the system necessarily ranges over process of reforming the system.Maintaining the neutrality of judges is an essential safeguard of judicial fairness,and the reform of the judicial immunity system acts as the way leading to judicial neutrality and removing the interference of difference kinds in judicial adjudication.As far as necessity is concerned,the unbalanced power-responsibility of judges,the increment of the professional risks of judges,and the professional pressure of judges,cannot meet the requirement of the independence and fairness of judicial authority,and the development and perfection of judicial immunity system is the approach to the balance of judicial power-responsibility,the precaution of professional risks and the remission of professional stress.As for the feasibility,the reform of judicial immunity system does not contradict the character of state of socialist China,and possesses the foundation of Chinese Constitution 1982 and other legislation,what is more,it carries out the constitutional principle that“people's court exercise judicial power independently ipso jure”.At the same time,the modernization construction of judging system and capability works as an intellectual and institutional support for the reform of judicial immunity system.What is more,the practice of the construction of the guarantee system of judicial profession exercised by the Supreme People's Court and local people's courts will provide the reform of judicial immunity system with reliable ground.The 19^th National Congress of the Communist Party of China reiterates the theme of contemporary era,i.e.pushing forward the rule of law comprehensively,and makes the fairness and justice of individual cases as the value goal of the practice of the law-based governance of the country,requires to deepen the supporting reforms of the reform of judicial system,implements in an all-round way of judicial responsibility.Taking this as an opportunity,it is a must to consider the situations and forge ahead steadily the reform of judicial immunity system to explode mystery and fear hanging over judicial immunity.First,to make clear the principles which need to be followed by the reform of judicial immunity system,i.e.according to the inherent law of judicial reform as a whole,a limited immunity,and planning and coordinating all relative factors.Secondly,to improve the interior structure of judicial immunity system by optimizing related legislation,expedite its running system and intensifying supervision in order that the system has a detailed and intact legislation,efficient operation and effective implementation.Finally,to establish some supporting systems,i.e.judicial accountability system,judicial stuffing system,judicial professional ethic system and judicial professional safeguard system,to facilitate benign interaction of the systems,to overcome the obstacles to the reform of judicial immunity system and reach the purpose of the reform of judicial immunity system.