Self-examination And Reorganization About The System Of The Liability Of Misjudged Cases

Since 1980s, in the background of the social transformation and system reforms in China, the revolution with profound significance was initiated in the judicial field in order to confirm to the trend of the times. At the present time in China, after many discussions have been made on the reform in economic system, the judicial system reform has become another one of the heat issues on the social system reforms. In the movement of the judicial system reform, the trial system reform is the one of the major works that needs to be well handled. The importance of the trial system reform could be observed in the 1st and the 2nd Five-Year Reformative Guidelines which were promulgated by the Supreme People's Court.The system of the liability of misjudged cases, which came into being spontaneously in the process of the trial system reform and in the judiciary practice, played the promoting role in the development of the trial system reform. By strengthening the internal supervising mechanism of the People's Court and the trainings of the judiciary, the system of the liability of misjudged cases could promote the qualities and the incorruptibility of the judiciary and raise the quality of the judgment. However, affected by the movement of the judicial reforms around the world, the concept of the judicial independence has been accepted by many scholars after many-year arguments which has been discussed both in theoretical and practical backgrounds. In the 2nd Five-Year Reformative Guidelines, the Supreme People's Court clearly expressed the principle of judicial independence in the regulations with the Chinese feature. For example, "Constructing the responsibility system of independent trial for the judges to strengthen the trial responsibility of the collegial bench and the sole judge. The president, the vice president, the chief and the vice chief of the people's court should participate in the trial cases of the collegial bench. The responsibility of the systems of the collegial bench and the sole judge should be realized gradually." However, the system of the liability of misjudged cases, which was implemented in the judicial practice, generally took the substantial consequence as the standard of the misjudged cases and investigated and fixed the liability of the related judges by the misjudged-case-investigating organizations which were established in the people's court itself. Under this circumstance, both the standard of the misjudged cases and the charging process on the related judges were in contradiction with the judicial ideas in the procedural law and the basic legal principles, including judicial independence and judicial neutrality.In the first part of the paper, from the practice background and theory hold of the system of the liability of misjudged cases in China, the author shows the positive effect of the system; following, the author analyze its kernel -what's misjudged? and make self-examination from practice and theory in the second part of the paper, and point disharmony with its mother body; In the third sector, comparisons to the systems of the liability of misjudged cases which are adopted by some foreign countries has been made to analyze the points that we can not just blindly follow the methods adopted by some countries to abolish the system of the liability of misjudged case because of the necessity of the system at present time in China. Furthermore, we can learn a lot from the procedure ideas and the institution designs on charging the misjudged judges which was developed by the foreign countries. Therefore, the system of the liability of misjudged cases must be reformed and perfected in order to guarantee the reform of the trial style. At last, the author expressed his own ideas and suggestions on reorganization the system of the liability of misjudged cases, formulating the standard of the misjudged cases and charging the liability of the related judges.