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The Variation Of Judicial Independence In Republic Of China

Posted on:2011-03-02Degree:MasterType:Thesis
Country:ChinaCandidate:Q GuoFull Text:PDF
GTID:2166360305950607Subject:Historical Theory and Historiography
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Democracy and constitutional government can be compared to a magnificent temple, upon which rests the liberty of citizens, and judicial independence acts as its indispensable support.What is judicial independence? It is usually considered that judiciary should be independent of any institutions (mainly including administration and legislature), groups and individuals. There are many arguments about whether or not judicial independence includes both independence of jurisdiction and independence of prosecution, and opinions vary about the connotation of judicial independence. I am inclined to endorsing the view that judicial independence only consists of independence of jurisdiction.In western countries, judicial independence has a history of about three or four hundred years. It originates from Britain, develops into the theory of separated powers in the hands of Montesquieu, takes roots in America, and then spreads across the world.In China, during Western Zhou Dynasty, judiciary and administration were separated. However, from Qin and Han dynasties to the late period of the Qing Dynasty, the judiciary and the administration were combined. Till January of 1901, Qing government announced that they would introduce institutional reforms. From then on, judicial independence began to take roots in China as an integral part of constitutional government. Both Late Qing government and Republican government tried to establish the judicial system modeled on western countries, however, it encountered almost insurmountable barriers at the beginning, among which the dominating factors were lack of human resources and fiscal deficit. In view of this, Republican government decided to allow the county magistrates to manage the judicial affairs, which had lots of abuses and incurred tough critiques. Republican government attempted to put it right through the measures of County Commission and County Department of Justice, and planned to annul the management of county magistrates over the judicial affairs by completing the judicial system; however, until the fall of Republican government, it was not accomplished.County management over judicial affairs is the initial variation of judiciary system, and party dominance over judiciary is the further variation. Due to party intervention with judiciary which undermines the judicial independence, Beiyang government decreed to prohibit the judges from joining parties. However, Guangzhou and Wuhan National Government tried to control judiciary through party in order to implement the Party rule. Nanjing National Government pushed forward the party dominance over judiciary. Party dominance over judiciary can be divided into "dominating judiciary with party doctrines" and "dominating judiciary with party members". Representative of the former is Ju Zheng, and representatives of the latter are Xu Qian, Wang Chonghui and CC agent system. Party dominance over judiciary was opposed by Luo Wengan and Dong Kang, and attacked by Hu Shi and Luo Longji, as it corrodes the spirit of judicial independence, and disturbs the normal operation of judiciary. In order to camouflage constitutional government, in 1947, Nanjing government emphasized that judiciary should be detached and independent, and should get rid of the interference from parties, which was stipulated in the constitution (item 80).Many reasons lead to the variation of judicial independence. On one hand, there are intrinsic restraint factors within judicial independence, such as judiciary has no fiscal power and military power, so it is weaker than administration and legislature and prone to intervention in the aspect of judiciary outlay, approval and removal of officials, and court system, besides, the quality of judicial personnel is a crucial point. On the other hand, judicial independence is susceptible to political atmosphere and fiscal allotment, social environment and traditional culture. In addition, the game between central government and local governments has influence on judicial independence during the process of judicial reform.
Keywords/Search Tags:Judicial independence, Variation, County Magistrate Management over judicial matters, Party dominance over judiciary
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