Discussion Of Power Constraint To Basic Level Judges In Context Of Judicial Reformation

Basic courts lie on the lowest hierarchy in domestic court system and own first trial power in most cases and closest relationship with the masses of the people. Basic level judges who have diverse situation of role definition are both “legal personalities” who end disputes and “administrative personalities” who satisfy leaders as well as “social beings” who live a common life. It is duty requirement thatbasic level judges exercise “litigating direction power”, “fact verification power” and “entity adjudication power” to pass fair judgments according to law and defense substantive equality of parties involved.Theory and consensus of “power constraint” is facing a Chinese predicament of “ideology of imperial power” and “honest and upright official complex”. The original intention of “power constraint” tobasic level judges is to restrain and eliminate judicial corruption. However, high risk population of judicial corruption is leadership of local intermediate or superior courts as well as basic courts. Thus basic level judges handling cases on frontline bear undeserved stigma and then take the attitude to power of prudent avoidance instead of eager expectation. First part is description of relevant definitions.The current power constraint pattern to basic level judges is combed and analyzed starting from four aspects including legal provisions, organization and personnel, judicial management and external supervision in part of this paper. In our country, the constitution and law that constraint judges are complete with regulations and rules all in readiness and official documents are transmitted by degrees. The existing problemsareomission of constitution implementation and current “Civil Servants Act” and “Judges Law” failing to highlight the specificity of judge professional which objectively result in relatively lower ranks and treatment of judges, dampening working creativity and enthusiasm of judges and weakening cohesion and stability of judge team. In the aspect of organization and personnel, the two ideas of cadres of party and government and judicial profession selection have been interacting and gambling in basic level practice for many years. Compared with the power separation mechanism of various subjects that is implemented while appointing judges in foreign countries(“nomination-examination-appointing”), it is still lack of democratization, publication and rationalization in choosing and appointing process of Chinese judges. The fine tradition of “the central judicial power partly independent of executive power” that existed transitorily in ancient China has also failed to continually develop. In the aspect of evaluating judges, there are considerably lots of problems in evaluations that refuses discussion or consideration and evaluations of quality and efficiency that are only statistics oriented with the former encouraging the administrative tendency and “small circle” mentality of courts and the latter impacting on judicial independence in spite of post-supervision. Besides, the evaluation items to basic level judges are excessively complicated and overloaded, that is, young judges in the front line undertake not only performance assessment but also multiple additional missions including information, publicity and investigation which occupy too much energy and then put effects on judicial work. Although “non-replacement regime” is accepted in our country in principle, it is likely for judges to lose their jobs due to broad displacement and dismissing excuses as well as relatively simple process and even some factors outside the law. There is severe deficiency in privileges and dignity of basic level judges. Judges are required to be responsible for every word without judicial immunity while have to undertake multiple pressures including workload, parties involved, evaluation, common customs and system which lead to disturbance in case judging and likely result in the inclining of justice balance. In the aspect of judging management, the constraint of collegiate bench presents a unified administrative situation from above to below which lead to a undoubted weakness of basic level judges in the face of numerous leaders. The self-identity and support to judicial committee is a sort of resistance to lobbying of human feeling as well as objectively hoping to trade releasing judicial power to self-protection in order to avoid investigation into misjudged cases. The trail level supervision is a one-way supervision implemented by superior court to lower court, and the system of asking for instruments knowledge derived from the trail level supervision cut short “second instance being the final instance process” into “first instance being the finality process” which makes the Appeal Right of parties involved exist in name only. It is a question deserving discuss whether effective constraint to basic level judges is generated from the multiple supervision of the National People’s Congress, Commission for Discipline Inspection, Procuratorate, Politics and Law Committee and public opinion since necessary tolerate is needed for society with rule of law and the premise of guaranteeing fairness and justice is maintaining the judicial authority.It is the year for deepening and promoting judicial reformation in 2015. Although is the top-level design of central powers, judicial reformation will still be castle in the air without boots in the ground if it break away from practice in primary levels. The effect of judicial reformation on power constraint to basic level judges will be discussed preliminarily starting from three aspects including improving judicial responsibility system, specified number of judicial personnel system and provincial level unified management of personnel and properties in basic level courts in part 3 of this paper. The premise of improving judicial responsibility system should be that judges own complete and independent jurisdiction. However in designing of judicial system following“legal theory” of constitution, it is courts that exert judicial authority independently instead of judges exerting judicial authority independently nor judges independence. There is insufficient trust to judges in current society environment. Appreciable amount of people consider that basic level judges has no sufficient morality and talent to undertake the heavy responsibility for independent adjudication. In addition, although the reversed transmission of the pressure of “judges take responsibility” truly force judges to keep refining on judicial work, the personal interests of judges are dragged into cases with “lifelong liability to judicial quality” which is to the disadvantage of judges remaining neutral. It is probably capriciousness of “powers” under the surface of “power constraint”thatjudges are supposed to possibly undertake overall negative effects without grasping complete and independent jurisdiction.It is a loss of fairness that lifelong responsibility system of case quality as an incantation of the golden hoop that hoops around basic level judges who can’t exert judicial power independently. It is forcing basic level judges to meet head-on mighty force with only empty hands and stand in a dilemma of maintaining fairness and justice and balancing interests of all parties to blindly emphasize “lifelong responsibility system of case quality” without supporting guarantee of “judicial immunity” in the situation of depletion of law soil, intensified social contradictions and booming cases. It is impossible to realize the target of “tracing accountability constraints power” with one way “responsibility system” which only leads to the result that presiding judges euphemistically hand in judicial authority for personal safety and vote with feet in order to struggle to free themselves out of the prisoner’s cage of “life-long tracing accountability”which is definitely no original intension of judicial transformation. Analyzing from the aspect of system designing itself, judge post system is not only an intrinsic requirement of judicial operation rule but also a specific extending and embodying of ideas including labor division in modern society,pursuing efficiency and cost saving in area of judicial work. However, rational system designing is in face of basic level dissimilation and is taking no more steps. It involves in state ethic how to make judges appointed by NPC quit previous orders. It is a question of reality who remains in staffing and who decides this. The readjustment of benefits pattern leads to panic inside basic level courts. The original intention of specified personnel is to resist exceeding administration inside current courts with professionalization and elite of judiciary while “specified personnel system” is promoted with “administrative” approach in test courts which generates concern about ”get apart further and further”. Are people grasping judicial power really up the standard? How to supervise quality of cases that “official judges” conduct in person? Will specified personnel system leads to micro-administrative inside courts? It is urgently needed to establish a assessing, prevention and controlling mechanismfor hidden trouble of power derived from judge specified personnel system. Flourishing pilots inevitably leads to reshuffling in the future and the necessity of high cost reformation is worthy of discussion. The province level unified administration of personnel and properties of basic level courts is on schedule in the slogan of “delocalization”. Since the subject of province level unified administration is still unclear, it will hardly avoid aggravation of administrating tendency inside if Province High Court takes this position. There are new issues that need to be resolved, that is, how will courts reply to marginalization panic and undertake responsibility of politics and lay after delocalization, whether potential petition people and possibly triggered mass disturbances are included within the considering category of judicial work of judges, how do judges in areas with greater economic gap plan and allocate as a whole.In the fourth part of this paper, track search of power constraint to basic level judges in the wave of judicial reformation. First, make it clear that power guarantee is the premise of power constraint. The power guarantee of judge occupation is that judges are entitled to independent judicial authority on the judgment and refereeing of cases without interference of administrative body, social organization or other people as well as non-procedural illegal interference inside court system. Power guarantee of judge occupation is the most important content in judge occupation guarantee. It is actually non-confidence to basic-level judges to talk about power constraint without the premise of power guarantee. Second, remodeling judicial authority is the basis of power constraint. The affectionate image of basic level judges is established through a series of activities including “judicature for people”, “general situation of judicial service”, ”Ma Xiwu adjudication method” and “alley judges”while social status of judges is objectively lowered down since nobility in black robe owns no authority. The focus view on judiciary mostly rest on enhancing supervision, restraint of corruption and promoting public trust while the attitude of selective ignorance is adopted to political authority condition of judiciary. It is presented in various theories and proposition that constraint is valued while maintenance and guarantee are underestimated tendentiously even including risk of cutting down judicial power and hazarding judicial authority in some practice. Third, maintaining rank and honor of judges is the critical part of power constraint. It is the basic starting point of legal construction to understand and trust judges. Treating judges with alert attitude and legal system and judicial process will be transformed even dissimilated. Maintaining rank and honor of judges is actually a kind of power constraint. The rank and honor of judges is at the cost of lonelinessand solitude of living a secluded life. Only the loneliness far from the madding crowd leads to maintaining their mind settling as still waterand rationality for distinguishing right from wrong as well as abiding by unbiased fairness and justice and finally results in transmitting incontrovertible judicial authority. Objectively speaking, the rank and honor of judges is decided with the court where they take charge and the leading force in the court. The soundness and maturity of social idea of rule by law is in direct proportion to the rank and honor of judges. Analyzing in the microcosmic view, the rank and honor of judges is of close relationship with guarantee of judges. Currently the professional stability of judges is far apart form judicial rational standard with excessively arbitrary deposition and transferring. Nourish honesty is obtained with high salary. High income of judges is capable of promoting confidence and ability to resist outside benefit temptation, reducing the probability of power rent-seeking and handling money case. “Judicial immunity” is the assistor for judges to exert independent adjudication power bravely. It is only by respecting and treating judges well that the positive cycle of power constraint could be realized in judicial reformation process.