On Judicial Reform

The study of the formation and development of justice in China indicate that the ancient and modern judicial systems in China are essentially different. Therefore, the modern judicial system in China does not evolve directly from ancient judicial system, but from the judicial reform in late Qing Dynasty, namely, the introduction of western judicial system in late Qing Dynasty. After the foundation of the People's Republic of China, in 20 years after the reform and opening up, the Chinese judicial system has undergone reform in depth, and fast development. Judicial system of Chinese characteristics is gradually coming into shape. Sine October 1997, when the 15~th National Congress of the CPC proposed the judicial reform, the supreme judicial authorities responded actively to the proposal and execute a series of reforms on trial and public prosecution. But there are still a lot of problems with the judicial systems. The major problem is that the reform is not coordinated and it is lack of a uniform planning and definite reform procedure and method, and what's more the judicial reform is not transparent and some measures are against laws and regulations.The 16th National Congress of the CPC put forward the task for the reform of the judicial system, and thought of working out an integrated frame for the reform of judicial system and court. Bringing the reform of court into the overall planning of the political reform system is of great importance for pushing forward the legal system building, and realizing the reform of court in the real sense.In recent years, judicial organs upon urgent requirements implement a series of measures for reformation within the frame of the current legal system, and at the same time put forward some plans and ideas for the reform of the system in depth. However, on how to conduct overall reform of the judicial system, people haven't yet offered a clear idea, and it is the same case with relevant theories. The reform of China's judicial reform can be summed up as follows: effectively and completely protect the lawful rights of citizens, reasonably define the purviews of, and relationships between judicial organsand other relevant entities, and gradually form a modern judicial system of Chinese characteristics. The key for judicial reform is to redefine the powers of judicial organs and relevant entities. In recent years, the reform of judicial system mainly involves reforming the setup of the institutions of the court, deepening the reform of personnel system of the court, setting up and perfecting supervision mechanism, reforming and perfecting methods of judicial activities. At present, it is very necessary to conduct judicial reform, but without coordination, the reform is lack of uniform thinking and guideline. And furthermore, many measures for reform involves the fundamental litigation system and judicial system and laws are ignored or abated, so to speak.The judicial reform shall be oriented towards justice and efficiency, and the connotation is "efficient judicial impartiality". Judicial impartiality and efficiency are consistent and complementary to each other yet at the same time of different requirements. Judicial impartiality and efficiency consists of 7 parts: judicial independence, judicial neutralization, judicial publicity, judicial democracy, judicial authority, judicial unification and judicial timeliness. To achieve "judicial impartiality and efficiency", the tenet of "effective judicial impartiality" shall be implemented in the whole process of judicial work, and continuous efforts shall be made for the renovation of judicial system, strengthening of the administration of court so as to realize justice and efficiency. It is also needed to set up a high quality judge team to create the condition for "judicial impartiality and efficiency".At present, the problems confronting China's judicial system reform are the following: first, the problem of judicial administration, a stubborn disease of China's current judicial system. Administrative tendency of judicature operation causes loss of basic independence and fairness for the court's judicial activities, and queries to judicial authority, thus resulting in extensive judicial confidence; second, the problem of judicial localization. It is common for local courts and judges to pervert and violate the law under influences of such factors as local administrative authority as well as money, and etc, especially for cases relating to local administrative interests, which are under great interference of local administrative authority. To a certain extent, the district courtbecomes "localized court", especially in aspect of protecting local interests, posing serious challenge to unified implementation of state laws. The problem should be resolved from the following aspects: vertical management of judicial authorities, setting up state and local courts, setting up all levels of courts without referring to administrative divisions, setting up branch courts of the supreme court or circuit courts; third, the problem of professionalization of judges. Professionalization means judges not only have to fulfill obligations as public officials, but also have to perform special function—legal verdict function—with special working style due to the fact that they are in a special position. It must be reformed from aspects of qualification, accession, and appointment of judges as well as their post insurance and economic insurance, so as to achieve professionalization of judges. The fourth problem to be resolved is judicial independence. It is one of the core principles of judicial system of modern times. According to general understanding, it has two meanings: first, governmental organs are independent of each other. Abstractly, as an integral organ, judicature shall be independent of legislature and administration, which is in reality stressing on the relative separation of the three authorities. Second, officials are independent. That is, judges who exert judicial power shall be able to exercise judicial authority independently in judgment of cases, without interference from administrative and legislative authorities. Judicial independence is firstly independent from administrative power, and secondly independent of social power. The fifth problem lies in dealing with the relationship between judicial reform and the leadership of the Party. The biggest defect of current leading system of the Party is that it is not in the interest of realization of the Party's leadership in judicial field. Organizations of the Party are always trapped in some specific affairs, and encumbered with some specific social contradictions, thus not detached in status, unable to assume overall responsibility of overall situation. And then, current leading system is inconsistent with the constitution which stipulates that judicial authority shall be independent of administrative authority. However, leaders of local administrative organs at all levels are often assistant secretary of the Party committee at the same level, and Party organizations of judicial organs are representatives of Party committee at the same level. Therefore,independence in law is always replaced by unindependence in political operations. The essence of the relationship between judicature and ruling party lies in the compatibility and consistency between the indisputable and unalterable core status of leadership of the ruling party in China and paramountcy of law in ideal legal states. But generally there is a clear relationship between judicature and the ruling party, while in specific operation a series of problems should be discussed and resolved. The sixth problem in judicial reform is its relationship with supervision of People's Congress. Legislature is an authority having the closest external contact with judicature, and with the most abundant relations of rights, thus in judicial reform, the relationship between judicial and legislative authorities shall be attached the most importance. It is hard to ensure that on the one hand, prevent judicial power to be out of control, suppress creation and spreading of judicial tyranny and judicial corruption, ensuring effective implementation of legislation, and on the other hand, prevent excessive extension of legislature which will affect independent exertion of judicial rights, especially adjudicative power. The degree of authority distribution will bring great influence to operation. Judicial independence is not a simple conclusion without the premise of law. It is a dynamic process during the transforming process from rule by people and rule by law of the country. At present, because environmental conditions and basic qualities of judicial independence are far from satisfactory, the weak judicial system needs outside supervision, so as to resolve judicial injustice problem caused by all kinds of complicated factors, preventing social turbulence resulting from judicial injustice. And such outside supervision is mainly from the People's Congress. The problems await for further discussion as to principles, procedures of supervision, as well as how to exert powers collectively, and prevent individual deputies to the People's Congress to interfere with independence of adjudication. The seventh problem is to resolve the relationship between judicature and the media. As part of state authority, judicial power may be expanding or abused, therefore it is necessary for the media to suppress it. But freedom of the press cannot infringe judicial independence, and news media have the obligation to respectindependence of judicature. The value conceptions of freedom of the press and judicial independence shall be coordinated and unified with press law.The state system of people's democratic dictatorship and regime of People's Congress System determine that all legislative, administrative and judicial authorities are from the people and belong to the people. Only by judicial reform aimed at "judicature for the people" can a good judicial environment be created, winning affirmation of the Party and support of the whole society. Therefore, "judicature for the people" shall be the ultimate goal of judicial reform. The defects of simplification and movements shall be avoided, and thorough psychological preparations shall be made for obstacles and difficulties already existing in reality and hindering judicial reform. Judicial reform shall be proceeded in consideration of actual situation of the country, and according to laws of social development and judicial progress, and only in this way can a specific and effective judicial system be established, the economic, political, cultural and social development of China shall have firm judicial guarantee, advantages of socialism with Chinese features can be reflected, and revival of the Chinese Nation can be achieved in real sense.