On Choice Of The Path To Judicial Reform In China

Since the 16 th CPC National Congress expressly called for the duty of judicial reform, it has undergone transformations for three times in China, which is now at a crucial stage of deepening judicial system reform. The path to judicial reform is generally divided into two orientations in China. The former is problem-oriented, and it focus on meeting the needs of fairness and justice for all sectors of society, so the former is basically based on our national conditions and traditional culture in order to establish the judicial system which is different from the one that is based on the theory of western judicial power. The latter believes that judicial reform must adhere to universal judicial law and inherent properties of judicial power if it wants to be successful, so we need to draw on modern western judicial civilization to construct the judicial system in line with justice and popular value orientation. In recent years, the path of judicial reform in China has been changed from one side to another all the time, and thus made our judicial reform fall into anxious hesitation on lack of the support of stable and global theory of judicial reform.The paper which is based on historical evolution of judicial system selects the choice of the path to judicial reform as topic, with judicial reform as research subject, from the perspective of the relationship between the theory of judicial power and national conditions. As for research method, as an inner observer, the paper adapts empirical analysis method, comparative analysis method, historical and literature research method to analyze accurately the position of the theory of judicial power and national conditions and their impacts on judicial reform, as well as the relationship between them, aiming at finding out the answer to the direction of China’s judicial reform.In the paper, it starts with introducing the development process of contemporary judicial reform in China, and summarizes the problems existing in judicial reform, and then points out the problems’ basic characterization that our judicial reform has always been vacillating between the theory of judicial power and national conditions. The reason is that our judicial reform has not coordinated the relationship between them, and we even don’t have a clear definition of their respective intentions and extensions. Then the paper selects the relationship between national conditions and the theory of judicial power as perspective, and set the failed modern judicial reform in China and the successful judicial systems both in France and the United States as the arguments, which aims to demonstrate the conclusion that whether a nation can coordinate the relationship between national conditions and the theory of judicial power properly plays a vital role in whether judicial reform could be successful or not. According to the conclusion, we can sum up rational approaches to dealing with the problem that how to coordinate the relationship between the theory of judicial power and national conditions.Firstly, the failure of China’s judicial reform in modern history is the result of the theory of judicial power divorced from China’s reality completely, which was introduced from the western theories of the rule of law. Obviously, the unsuitable theory came to the end under the inspection of national conditions instead of guiding judicial system conforming to the development trend of society. Comparatively, the reason why the judicial system in France and the United States can be successful is that they respect the reasonable limitation of national conditions when constructing their theories of judicial power, so that the judicial system will thrive by following judicial law and meeting the needs of national conditions. The above analysis can prove that the key to make judicial reform be successful lies in how to deal with the relationship between the theory of judicial power and national conditions. In that case, how to locate both of them harmoniously in the field of judicial reform? Through empirical analysis by different processing modes, we know that successful judicial reform has one thing in common, and it never neglects the theory of judicial power or national conditions. They will not forget the one side while focusing on the other side, and on top of that they will never put the cart before the horse. As it is judicial reform, it goes without saying that we should resolve judicial problems with legal thinking and judicial methods rather than sociological or political methodology, which determines the participation degree of national conditions in the theory of judicial power. In short, theory comes first in judicial reform. Meanwhile, set national conditions as a buffer. Use the theory of judicial power which covers judicial law and basic conditions to guide the construction of judicial system.Therefore, the way to solve the problem of judicial reform in China is: Straighten the primary position of the theory of judicial power, and then in the process of constructing theory, show adequate respect to our national conditions and reasonable restrictions on the theory of judicial power, which is also my paper’s basic argument in response to the path to judicial reform. However due to our long-term negligence of the theory of judicial power and the reference of national conditions randomly, research on the theory of judicial power and national conditions is still inadequate. So the next most important task is to strengthen the study of them. Clear answers should be made to the following questions, for example, the core attributes of judicial power, the relationship between judicial law and the theory of judicial power, the key difference between national conditions and pseudo screening ones, the “invasion degree” to judicial power from national conditions and so on. Thus, not only can our judicial system meet requirements of judicial law, but also it can stand the test of reasonability for the construction of the rule of law.