On The Deconstruction And Reconstruction Of The Subjective Function Of Chinese Courts

Whether it is the statistics of petitions received by the supreme court system published by the Supreme People's Court each year or the reports of approval rates reported by Supreme People's Courts on various media websites almost every year in the six reports are enough to show that the courts The most important dispute resolution function of the system has not been fully benignized so that the people hope that the demand for the defense of their legitimate rights through the courts can not be effectively met.The purpose of this essay is to make a historical restoration of how the subjective function of the court maintaining its own existence(dispute resolution)has been gradually deconstructed in the torrent of history.Combining this historical clues and the contemporary Chinese rule of law Context to discuss the court reshaping the subjective function of the way.The first part of the text makes a jurisprudential discourse on the content of court functions and their mutual relations: Dispute settlement is the subjective function of the court,social control is the political function of the court,and the social control function of the court must pass through the court Dispute resolution function of the full benign operation to achieve,overemphasize the political functions of the court will go to the politicization of the court function,affecting the court dispute resolution function.The second part begins to jump out of the macroscopic view of jurisprudence,and then to investigate the function of the court in the early judicial practice of the Communist Party from the microscopic judicial techniques: Firstly,it is from the widely used public trial in the popular judiciary in the Shan-Gan-Ning border region,It discusses that the functional orientation of the courts in the Shaanxi-Gansu-Ningxia Border Region is not to solve disputes,resolve contradictions and shape the culture of citizens,but to realize social control through transforming the society.The second is a detailed anatomy of the judicial techniques popularized in the political judiciary popularized throughout the nation after the founding of the People's Republic of China.The judicial function of the courts in the period of political judiciary is not explained through social justice,But to create social identity by using the judicial technology of appeal to promote hatred and mobilize the masses to participate in political life.As a result,the social foundation(civil society)of the good functioningof the rule of law has been destroyed and the subjective functions of the courts have been completely lost.The third part sorts out to a certain extent the reform of the reform of China's court subjectivity: With the disintegration of a unitary society since the founding of the PRC,civil society began to recover.Due to the extensive legislation and the surge of social contradictions in transition,Dispute settlement has become the only choice for the court to deal with disputes.The subjective function of the court gradually returns.However,under the influence of the judicial traditions and the stereotypes formed in the early judicial practice,this movable justice,which originally belonged to the methodological sense,was transformed into an active judicial service for the general interest.Under the banner of "serving the overall interests," local courts began to actively participate in social management innovations,which led the courts to gradually deviate from the logic of the judiciary to embody the logic of administration.The court no longer focused on outputting the expected behavior through high-quality judgments In order to achieve social control by extending the trial function to the grassroots level,the subjective functions of the courts are alienated.Courts are less and less like courts.The fourth part mainly combines the current context of the rule of law in China to discuss the basic approach of the court to reshape its subjectivity.Due to China's special political system and well-known political taboo,it is impossible for Chinese courts to follow the path of judicial activism centered on unconstitutional review like the United States.Therefore,it is an acceptable choice to let the court system return to judicial logic and respect judicial rules.The first is that courts should return to the resolution of cases and disputes,and the second is that judges should rely on a high degree of professionalism and self-discipline.