Analysis Of The Early Republican Period (1912 ~ 1927), Judicial Independence System

The theory of trial independence originates from Montesquieu's theory of Separation of Powers, which is the result of political revolution and cultural development of nearly 300 years in the western countries. Ever since the American ideologists and founders applied the theory in the concrete social system, trial independence has become a common judicatory principle worldwide, which can be seen in various international law documentations. The trial independence, the core of modern western law theory, did not exist in the traditional Chinese society. Ever since trial independence was first introduced to the traditional political system, a series of conflicts and maladjustment occurred between judicial and administrative systems in both the short Nanjing Temporary Government and the turbid Northern Warlords Period. Limited by the late development of the whole society and other traditional factors in politics and economy, the trial independence was limitedly known and carried out in practice. But as a symbol of modernization of legal system, its positive value cannot be devalued.A necessity of system reform is initiated from the understanding of reality. At present China is experiencing profound social reform, with acceleration of Chinese melting into the trend of globalization and the establishment of a nation of rule of law and the conduct of judicial reform with judiciary justice as its aim, the trial independence naturally becomes a hot topic and is also concerned by national leaders and the common citizens. No mater from theory and practice or from history, present situation and the experiences of the nations of rule of law, the primary requirement in constructing a nation of rule of law is the existence of asound legal system, which not only means a sound legislation, but also the systematical insurance for it. There is no doubt that the judicial independence is the most concerned problem in the judicial system, there will be no judicial justice without it. In all, the research on the road to realize trial independence is a topic that needs serious consideration.The present situation of China, though much different with the situation in temporary times, is much different with western society. Therefore, in order to achieve of trial independence in the present China, we need not only absorb the advanced experience of western nations in the constructing a nation of rule of law, but also base our system on the special situation of present China. We have had a zigzag way in pursuing the trial independence in the past 100 years, and even we can say that we feel sorry when we look back at the roads we walked though. Just because of the heavy and sorrowful history, we need to consider the historical experience of People's China and construct our trial independence system under the great goal of constructing a nation of rule of law.This article briefly introduces the ideological source and development of trial independence; summarizes some key factors that limited trial independence practice in the initial period of People's China through an analysis on its establishment and practical process; elaborates on the main routes in achieving the trial independence of China, which is to stick to the leadership of the Party, absorb the foreign advanced experience and construct a trial independence system with Chinese Characteristics under the government.