Some Considerations On The Challenge System Of Litigation

The challenge system of litigation, running through the whole judicial activities,embodying the democracy of the modern legal system, is a very important litigationsystem confirmed by various countries in their litigation laws. China's stipulations on thechallenge system, is still not mature enough, existing lots of problems in the practicing ofthe system. Some Regulations issued by the Supreme People's Court in the year 2000made much progress, but there are still lots of problems to be solved. The following article,will use the method of comparison, to penetrate the basic structure of the challenge system,make deep study and considerations on the important items, and to put forward its ownopinions on how to improve our challenge system. Firstly, the author discussed the issue about the persons to be challenged. The trendof the persons to be challenged in the law or judicial interpretations of recent years, ismore and more broad and detailed. Though providing more securities on the fairness ofthe procedures, too many persons to be challenged will be a big waste of the litigationresources and the extremely low efficiency of the litigation to finally lead to anothernew unfairness. The author believes that the challenge system is set for the judges and 1its assistants who have the judicial authority, aiming for the fairness of the judge. Otherpersons including civil procurators, criminal investigators, lawyers shall not be challenged.Even they are needed , they are challenged for the profession, for their authority ofprocurator, investigation and attorney. The challenge of the above persons can be surelydone by the way of perfecting other regulations, administrative procedures. The authoralso suggests to set up a court challenge system with Chinese characteristics. The reason of challenge is the key item and also the foundation stone of thechallenge system of the litigation. For the reason of the challenge, the author emphasizeson its two attributions i.e. definition and gradation. Through the method of comparison,the author thinks, in the eyes of the legislation body, the reason of challenge of the judgesis not treated equally, but of obvious gradation, which is of important influence on thedesign of the whole challenge system. The author puts forward his own opinion on the cryof necessity to broaden and perfect current challenge reason in the field of theory andpractice. The author believes, to broaden the challenge reasons doesn't means the increaseof the judicial fairness. Therefore, the author makes further study on the issue of the proofresponsibility in the applying of the challenge. The author thinks the principle of "whoadvocate, who prove" is not suitable in the application of the challenge. In the dealing ofthe application of the challenge, the judges are absolutely not the negative objects to beproved, but the main body who should undertake the main responsibility for proving. Theauthor also studies the relevant standards of the proving, and suggests, in order to remedyshortcomings and rigidity of the current system, set up a new challenge system, we shoulduse and absorb the good experience of the countries which adopt the system of non-reasonchallenge like America and United Kingdom. Among the existing problems in the challenge system, procedure problem takes thelead. Therefore, the author emphasizes on the issues like the main body, the notification, 2the period, the propose, the dealing with, the decision in the application of the challenge,the remedy of the rejection, etc, and puts forward his new ideas like the change of themain body and form to make the decision, and the re-definition of the procedure. Theideas includes the challenge of the judges shall be done by the collegiate system; thedecision made shall be in the form of an award; before making decision, the authorityshall...