| In this round of judicial reform(2014 to now),the judicial accountability system is the core of the whole reform.From a macro point of view,the reform of judicial accountability system includes the classified management of judicial official,professional guarantee,and the unified management of staff members and properties of courts below the provincial level.The system approval in the normalization level has two aspects,that is," hear the case and judge,judge and bear responsibility".The former is actually to solve the issue of trial independence,while the latter is to resolve the problem of how to monitor and restrict trial power since independence.The meaning ‘judicial accountability' is not a single concept,but a compound concept including the division of powers of jurisdiction,trial management,trial supervision,and multiple responsibilities management responsibility and result responsibility,internal responsibility and external responsibility.First of all,the judicial trial is responsible for itself.The most important thing to maintain judicial independence is the organ itself,which should form a set of system to ensure the independent and fair of judgement.Secondly,to some extent,the judicial power should be responsible to the representative organ.Even in western countries,the supervision and restriction of the judicial power by the representative organ still exists,but there is a strong and weak difference in the degree.Finally,the judicial power should be responsible to the people.As prescribed in article 78 of the 1954 s Constitution,the People's Court conducts trials independently and only obeys the law.The reason why did not refer to the "independence of judges" stipulated in the constitutions of other socialist countries atthat time can be analyzed from three aspects: ideological factors,the status of judicature and the constitutional system.The emphasis on the trial independence and not the judge independence,embodied the proletarian state view and the ideology of legal class.Beyond ideological factors,another important reason is to guarantee the judicial quality through the way of collective decision-making.With the victory of the Communist Party,the system of "Six Laws" representing the regime system of the Kuomintang was completely abolished,resulting in the general absence of legal norms at the national level.At the same time,the reformation of the old judicial personnel in the judicial reform movement from 1952 to 1953 has also had a profound impact on the specific trial work of the people's court from the perspective of the structure of judicial personnel.Viewed from the point of the historical background of Article 78 of the 1954 s Constitution,the objective factors such as the change of political power and the instability of social aspects,determined that the trial had strong political and instrumental attributes,and the Constitution stipulated that "the independent of judges" was not in line with the reality.The social environment,the abolition of laws,and the changes in judicial personnel will inevitably objectively affect the quality and level of trial.Therefore,establishing that the court trails as a whole is an important way to guarantee the quality of trials under the conditions of imperfect laws and uneven levels of personnel quality.During the revolutionary base area period,the judicial policy emphasized that the court was one of the two components of the People's political power;The emphasis on the affinity to the people of trial would inevitably form the characteristics of decentralization.To make the judicial work obey the policy,service center work and adhere the mass line,it was necessary to restrict the judicial trial from the tektology views.At the beginning of the formulation of the 1954 s Constitution,when democratic centralism was regarded as the principle of work,the system of collective leadership was mainly manifested in the judicial organs.The People's Court rather than the judge could make judgement independently,which clearly embodied the meaning of collective leadership.In terms of the democracy of the democratic centralism,there are two aspects in the organizational structure of the court: one was the trial committee system,the other was the collegiate system.In terms of organizational structure,the judicial committee was actually the expansion of the collegial system.The combination of the system of leadership and responsibility of the president and the system of the trial committeereflect the centralization the democratic centralism.Judging from the historical development of China's system of judicial committee,it evolved from the administrative organ,which was essentially the product of the unity of the party and the government,the unity of the legislation and the administration,and the integration of Judicial and administrative.Therefore,the court as a whole to judge a case often reflected profound administrative color.In the historical context of taking the 1954 s Constitution as the system framework,the responsibility of judicial organs in China could only reflect a collective responsibility,not individual responsibility.The judicial responsibility framework of the integrity of the court established by the 1954 s Constitution inevitably leaded to the operational characteristics of the bureaucracy system within the court organization.Under the overall responsibility and supervision and restriction mechanism,the rights and responsibilities are unclear,the hearing and judgment were separated,and judicial decisions were not made public.After the Third Plenary Session of the Eleventh Central Committee,the judicial trial has entered a period of reform.After the 18 th NPC,the judicial organs gradually become relatively independent of other local organs,especially the independence from the local party and government institutions has become increasingly apparent.The conclusion that the justice belongs to the central authority highlights the overall independence of the judicial organs.From the narrow definition of judicial power,the so-called justice is 'interpret the law' in a case,that is,applying the law in a case." On the other hand,as a judicial organ,not all the power activities of the court is part of the narrow sense of jurisdiction.The jurisdiction as the central authority can be divided into two levels:the unified management of staff members and properties of courts from the perspective of national administration;the universality and nationality of jurisdiction.After the judicial reform,the unified management of judicial administration is conducive to the realization of the overall independence of the court.The national nature of jurisdiction needs to re-understand the principle of democratic centralism.The relationship between the court and the People's Congress is different from that between the government and the People's Congress.The unified selection of judges below the provincial level does not violate the principle of democratic centralism.In the future,if the National People's Congress or the Provincial exercise the power of appointment and removal of judges in a relatively unified way,it can better realize the supervision of the trial.Independence of judges is also an important part of this roundof judicial reform.The judicial independence mainly refers to the independence of the executive,not the legislature.The most important thing of judicial independence is still the independence of the judgement.After the reform,we can understand Article131 of the current constitution from the following aspects: the independent trial of the court is not same to the overall exercise of judicial power of the court;the principle of independent trial includes two aspects: the independent trial of the court and the independent trial of the judge;the latter is the embodiment of the law of trial activities.Therefore,the meaning of Article 131 of the current constitution "the People's Court exercises judicial power independently in accordance with the law" should be as follows: that is,the judicial power belongs to the People's Court exclusively,and other subjects such as the administrative organ cannot exercise this power;the judge participates in the judicial organization to arbiter independently,and the administrative organ,social organization and individual cannot interfere with the judge to dispense the law.However,the committee's discussion on cases is still far from the principle of independent trial and the principle of statutory judge.Based on the principle of trial independence,the reform of the trial committee can cancel the function of discussion taken place in the grass-roots courts.The judicial committee's discussion of legal issues in individual cases is the exercise of judicial power,and in principle,litigation procedures should be applied;the judicial committee is the party's connection point for the leadership of specific trials,so the scope of its discussions should be limited.From the perspective of the responsibility of the court to the People's Congress,on the one hand,it is an empty form that the court is responsible to and supervised by the People's Congress and the role of the People's Congress in the process of supervision has not been fully played.On the other hand,after hearing the court's report,some local people's congresses vote the bill down or questioned the court's trial cases,which lacked the support of the legal system.The court organization and jurisdiction come from law,which in turn means that Judicial power must be exercised according to law and can only be regulated by law.For this reason,the National People's Congress as the legislative body,the court is legally responsible to the NPC for the its function,and indirectly responsible to the people as a whole.The National People's Congress can supervise the trial.The local People's Congress is the organ for the election and appointment of the members of the local court.It supervises the work of the local court based on the election,mainly the members of the electionand appointment.The responsibility of the local court to the local People's Congress only partially reflects the democratic political attribute.The work report system of the National People's Congress actually comes from the party system.It is the court that reports to the NPC,not the president of the court.The report does not reflect the trail itself,but the work of the trial management,which is directly incarnated in the judicial efficiency after the implementation of the trial management initiatives.The rejection of the court report by the people's Congress just means the denial of the judicial management and not of the trial.Under the framework of the judicial accountability system,the trial management,supervision and evaluation within the court is an internal system.China's current position on trial management is a collection of case management and personnel management in the trial process.Its purpose and function have two dimensions: one is to supervise the behavior of judges and other subjects through the management of cases;the other is to make the fair and efficient judgement through the adjustment of trial human resources and the supervision of behavior.In matters of trial management and judicial administration,there is a relationship of leadership between superior and subordinate courts in China and within a single court.The function and purpose of trial management is to realize the justice and efficiency in the case.The process management is the most important in trial management,but at present,there is a confusion of the right of management and supervision.The adverse effects on trial independence may be reflected in two aspects.First,the resources for trial management are naturally inclined to the president of the court.Second,it makes it possible for the supervision of a case to be superior to the jurisdiction which independent exercise by the trial group.Therefore,under the principle of trial independence,the supervision and management should be separated.The management in the trial process should meet predetermined and collective requirements.The trial management also includes the evaluation and punishment of judges.The evaluation of judges should be based on the supervision rather than the management.There are some deficiencies in the current punishment mechanism for judges in China.From a comparative perspective,the extraterritorial legal system emphasizes the litigation trial of disciplinary procedures.China can regard the evaluation committee as the point to improve the disciplinary mechanism.The public justice reflects court's accountability to the public.The standpoint of judicial reform is to improve the credibility of the judiciary.One of the measures is toincrease the transparency of the judiciary.There is no specific corresponding relationship between the system construction of justice and the public's trust in justice.The public's perception of judicial behavior often has its own forming logic.As one of the ways to the application of law,the judicature not only realizes its social integration function,but also requires the parties,the public who participate in the Judicature,to respect the judicature and cooperate in the judicial procedure.Therefore,whether the trial can be trusted by the society depends not only on whether the justice can really promote social trust and social cooperation,but also is affected by themselves.However,the lack of trust in justice with the present situation,on the one hand,is due to the rapid changes in social structure,and the stable and mature social relations are not yet formed;on the other hand,most of the public awareness has not accepted the modern thinking of fair cooperation and equal competition.At the same time,the unrestricted advocacy of comprehensive publicity of the judicial process through media means is also a misunderstanding involving the control of public opinion.In order to change the improper influence of public opinion on justice,on the one hand,we should strengthen the normative construction of public opinion about litigation,on the other hand,we should strengthen judicial neutrality for avoiding the tendency of judicial moralism,pay attention to rule Induction,and weaken the value judgment and experience judgment. |
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