On Judicatory With Administrative Characteristics

The problem of judicatory with administrative characteristics is a representative one of problems that emerged in the judicial reform of recent years. The problem has much negative influence on legal construction, so how we recognize and deal with the problem is of much significance to the construction of Chinese legal system. This thesis adopts a perspective of functionalism and sociological methods, trying to conclude all factors of the problem of judicatory with administrative characteristics, on the basis of which the thesis clarifies the logic of development of relevant institutions, and then proposes the schemes of improvement and resolution.The subject of the problem of judicatory with administrative characteristics is courts of all levels and judges who exercise jurisdiction or partake in judicial decisions. The dimension of the problem includes administrative characteristics of court structures and adjudication, as well as administrative characteristics in court management. The core of the problem is the problem of"pan-democratization"of jurisdiction, which is also the key point of the thesis. There are various institutions and systems indicating the problem, including formal institutions and also informal institutions. These informal institutions may impact on the problem as well, so necessary attentions should be paid to. The institutions indicating the problem of judicatory with administrative characteristics are as follows: institution of personnel management, institution of case quality management, institution of court president's resignation, institution of case approval, institution of judge-in-charge, institution of tribunal judicial meeting, institution of presiding judge and presiding judge meeting, institution of case instruction, institution of judicial committee. The general features of the problem can be summarized as follows: policies as judicial basis, highly initiative of judicial act, and substantive rationality of decree. These features are somehow dangerous signals, indicating series of consequences that the problem may lead to.There are multiple origins of the problem of judicatory with administrative characteristics. Firstly, courts and judges lack in recognizing judicial regularities. The value of judicial separation has not been fully recognized, and"pan-democratization"of jurisdiction violates the collegiate bench system. On the other hand, due to the prevailing ideology of judicial initiative, China also lacks necessary ideas of procedure in judicial acts. Secondly, another origin of the problem is the path-dependence of history. The tradition of mixing jurisdiction with administration, the characteristic of authoritarianism, the feature of highly judicial initiative, hierarchy of administration and poor quality of judges have led China's judicial system to a way of administrative characteristics. Thirdly, the unification of judicature function is also one origin of the problem. China's judicature function is confined to resolution of disputes, and ignores the function of creating public policies. This may cause judges to apply laws mechanically and tend to resort to"pan-democratization"of jurisdiction.The foundation of resolving the problem lies in the following matters: to understand functions of institutions as a system, and functions of sub-systems, including institutions of court management and institutions of adjudication, and interactions between them. As a system, the function of the problem includes responding to the unification of judicature function and enforcing substantive rationality of law. As a sub-system, the function of institutions of court management is to restrict and supervise judges, While that of adjudication is to avoid risks. As an interaction between the two sub-systems, court management controls the allocation of jurisdiction resources, as a response, courts and judges construct institutions to disperse the risks caused by jurisdiction. Thus, China's courts are facing a dilemma of inadequate supply of resources and excessive pressure, in order to sustain themselves, courts take a path of inner control by court management institutions. Hence, the main problem of improvements lies in court management institutions. In detail, improvements should start with judges'incentive measures and mechanism of responsibility.According to the adaptability theory of functionalism on organization with environment, there are two ways of alleviating strains between organization and environment, one is to rationalize structures in the organization and realize a reallocation of resources; the other is to change the circumstance of resource supply from externals. Based on this, the thesis proposed two schemes:resource-supply type and inner control type. Resource-supply type of scheme proceeds from the origin of the problem, trying to change the inadequate supply to judiciary, establish budgetary support system of courts, retrieve power of personnel matters, and change the way of supervision by the National People's Congress. Inner control type of scheme proceeds from inside of organization, trying to eliminate the influence of court management imposed on dispersing jurisdiction, change the hierarchy of court management, enforce separation of decision making power and executive power in court management, and carry out rational institution of case quality management and institution of judge discipline and punishment. Obviously, Resource-supply type of scheme has a much larger cost than inner control type of scheme. In the view of feasibility, the former scheme involves many changes in political system, so it may not be feasible. The latter scheme advocates a progressive reform, the content of which has more resemblance with the official route of judicial reform. Therefore, inner control type of scheme is a relatively rational way of improving and finally resolving the problem of judicatory with administrative characteristics.