The judicial independence in China
Name: LinJun Student ID: S08164
Research paper supervisor:Dr.Sekou Conde
Law School Minzu University of China
2008-2009 Academic Year
Abstract ：Justice is an activity that the court make the referees and to solve the disputes just according to the law. It’s a very important power of each modern country. Though it was included by the administrative power and neglected by the ruler and the rulee in the ancient time, with the development of the society and the theory about dividing the three powers of one country that was put forward by Montesquieu[1], it became more and more significant for a country. But comparative to the developed country, the judicial independence of our country is very frail. In the judicial practice of our country , the judicial activity is disturbed by many forces, such as the party, the legislative department, administrative department and so on. So in our country, there remains a long distance to built our own judicial independence system, it needs all the country systems especially the justice to change their machanisms step by step, therefore to meet the demands of the development of society and then to catch up with the developed country.
Key words: justice ; judicial power; judicial independence ; supervision
Just as Montesquieu said: “There would not be the judicial independence if there isn’t the divided power.”[2] So we can see, the divided power is the prerequisite of the judicial independence; And he also said that, “If the judicial power can’t be independent from the legislative and the administrative power, the freedom won’t exist; If the judicial and legislative power being one thing, it must be the arbitrary power that hold the citizen’s life and freedom, because the court it the legislative body, if that, the court would have the oppressor.”So we can conclude that the divided power is the prerequisite of judicial independence.[3]. And we can see that almost all the modern country has established the important principle in their judicial institutional system, the judicial independence is the core of the judicial system, if have ‘t, the whole government system will lose vigorous and even set up nominally.
I.The contends and essence of judicial independence in China
1.The contends of Judicial independence of our country
Through most modern country has established the judicial independence in their legal system early or late, but another aspect is that there aren’t nearly completely identical judicial independence in each two countries. For example, in the German law, the judicial independence can include eight aspects:(1)independent from all the power of the country and the society;(2) independent from the superior organization;(3) independent from the government;(4)independent from party; (5)independent from news media;(6)independent from parliament; (7)independent from the people’s fashion and hobby; (8)independent from one’s hobby、prejudice and enthusiasm. [4]So we can see, removing the unrational in content of the judicial independence of German. But it’s different from the judicial independence of our country. In our country, it includes three levels: The first is political level, called the independence of judicial power; The second is the system level, called court independence; And the third is the highest lever, called the justice independence. So we can conclude that Chinese judicial independence means independent judicial power 、independent court and independent judge, it’s a whole unity, we can’t ignore any one.
2.The body of the judicial independence
There are many debates about the body of the judicial independence in China. For the judicial power is independent from the administrative power and the legislative power, it’s the point of judicial independence, the biggest focus is about whether the court or the judge is the object of the judicial independence. Some learner contends that from the view of the court organization law of our country, the court is just a part of the court, the judges have the independence just on some justice behavior and on something that is authorized, except this, they must reliable to the court.[5] It also some contentions that the judicial independence is just judge independence.[6]But I can’t agree with him. As we know, different from other power, justice is an activity that to verdict some dispute in according to the law, so it has a great objective characteristic. Just think about, when we want to make a decision, but there are so many elements around us to interfere us, how can we make a fair decision; where is the court independence. Just as a learner said :”judicial independence—not just an aim, but a tool …his aim is to make the judge solve the dispute justly and selflessly.”[7]So in my opinion, the object of the judicial independence not only include the judicial system (court), but also include the judge. And more important, judge independence is the core and essence aspect.
3.The limitation to the judicial independence
The experiences of human tell us that:”Each person has the possibility to abuse his power as long as he has some powers.”[8].It’s a truth that is set up by old generations. Here is a example to elaborate this point. It’s reported by Jinghua news. During the eight years, Guo Shenggui, the prior judge of Xicheng district of Beijing accepted bribe the amount reaching to seven 1000 thousand. Among these, there are 3670 thousand from the lawyer, and 320 thousand from one side of the clients. [9]So we can see, if we lay stress on the independence too much, and neglect the control completely, the judicial independence may become the special power and tool for one person to arbitrary and seek the personal power. So it’s also important to limit the judicial independence appropriate. About this, we can through some supervision mechanism, such as impeachment、government compensation、criminal responsibility and so on; and we also can reliable to several power of supervision, such as the superior court, the news medium, the public and so on. Through this, we can ensure the justice system do their job independence, at the same time make sure they will do the things that is benefit for people.
II .The problems of Chinese judicial independence
From the last part, we know that our Chinese judicial independence include three aspects, they are the judicial power independence, the court independence and the judge independence. The constitution of our country has established the former two aspects, it said:” the court exercise their authority on the law, don’t disturb by the administrative system, society organization and person.” It’s a big guarantee for judicial; But about the court independence, there isn’t any standard in our constitution, just in the court law, it makes the rule that judge exercise the try power independently.[10]. So we can see, in our country, there remains aren’t completely legal system to support the judicial independence , so this theory is devoid of sense actually. There are many problems in our judicial independence.
1.Reliable to the government and legislative department seriously, it’s very difficult to reach the independence lever actually.
Influenced by the institutions of the ancient time, we know, in the history(including Qing and Ming dynasty), there are no real judicial system, the judicial department is subordinate to the administrative department, actually it’s just one part of the administrative system, and the leader of judicial department is just the administrative leader. [11]After the country is founded, our country has established the judicial system step by step. But based on the planed economy, it appears more and more not harmony with the development of our country. The independence characteristic becomes more and more pursuit by the judicial system. But there remains a lot of problems in our judicial independence reform. The biggest and remarkable ones are the following:
(1)The personnel is affiliated on other department, especial to the executive department.
The personnel of judicial department is controlled mostly by the executive and the legislative department in our country, especial by the executive department. The first, according to the law, the legislative department has the power to nominate and decides the final leading cadre of the judicial, through this, they can control most of the personal affairs of the judicial department. Besides this, the executive department has a great power on the personal decision of the judicial department. According to the institutions about the personal affairs of our country, the personal of the court not only needs to suit to the court law, but it must has the permit of the government. If not, he can’t become a real public official. Though, the court has no power to decide the personal affairs actually, the objects they ever can’t control themselves, how to do the official business independently.
(2) the financial independent to the executive department [...]
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