Hmm. How interesting
A lot of content, I just searched.
Justice is the last barrier to safeguard individual rights, which is not only related to whether people's rights can be realized, but also the guarantee of people's ideas. The natural law school pursues a kind of natural rationality, and the judicial process is also a process of pursuing rationality, which is "fairness" and "justice". Although eternal justice does not exist, the realization of specific justice standards can only be accepted by all through a recognized organ. This institution is the judiciary. Only judicial independence can exercise this power, so what is judicial independence in the true sense?
First, the meaning of judicial independence
The word judicial independence usually has two meanings: first, in the structural sense, it refers to the independence of judicial organs from other organs, groups and individuals, so judicial independence is a "structural principle of state power"; Secondly, in the procedural sense, the original intention of judicial independence is to protect the justice of judges in the judicial process, so as to safeguard the legitimacy of the procedure and the correctness of the results, so it is also called "technical judicial rules". From this, we can use a more general concept-judicial independence, that is, judicial organs independently exercise their functions and powers according to law, without interference from any other organs, groups or individuals, and make fair judgments on cases according to legal facts and in accordance with legal provisions.
With the rapid development of China's economy and the gradual establishment and improvement of the market economy system, the judicial system based on the planned economy has long been unable to meet the needs of the times. In this regard, the state's high-level officials also have a considerable understanding, and put forward "promoting judicial reform and institutionally ensuring that judicial organs independently and impartially exercise judicial power and procuratorial power according to law." The author believes that the core issue of judicial system reform lies in judicial independence, and to realize judicial independence, we must have a clear understanding of various relations that affect judicial independence.
Second, the external relations that affect judicial independence.
Judicial independence and party leadership
China * * * Production Party is the leading core of the socialist cause. In terms of substantive power relations, the state organs must accept the leadership of the ruling China Production Party, and the judicial organs and judicial work are no exception. Although the party's leadership style has certain limitations, the judiciary does not enjoy the independence of the political structure, that is, the state power relationship. Under the current judicial system in China, the relationship between judicial organs and local party committees in some areas is abnormal. The judiciary is basically the order of the party Committee and has become a subsidiary product of the party Committee. The appointment and removal of local judges is in the hands of the party Committee. In the process of hearing a case, the Party committee often directly asks questions about the case and participates in the discussion and trial of the case. What's more, judging a case by one's own subjective judgment and personal feelings seems to cater to what some people call "absolute obedience to the party's leadership." In fact, this practice of "substituting the party for the trial" has led to some unfairness in handling cases, but it has greatly reduced the image and prestige of the party in the eyes of the people, seriously damaged the independence of the judiciary and become one of the incentives for corruption.
(2) the judiciary and local governments
German jurist Wolfgang Xu Ci once said, "Administration infringes on the judiciary, especially the independence of judges.
It is a problem in any era. "It can be seen that judicial independence is not influenced by any place, and judges try cases independently." Local influence is one of the most harmful obstacles, if not the only one, to the establishment of the legal system and civilization. "China is a socialist country. To achieve judicial independence, it is necessary to establish an independent judiciary that is not influenced by local authorities. Since the founding of the People's Republic of China, although the leadership system of judicial organs has changed several times, the establishment of courts in China is basically the old road of administrative division. Judicial work is inseparable from judicial work, and the phenomenon of administration is extremely obvious: first, judicial organs are set up according to administrative divisions, and they correspond to administrative organs one by one. This hierarchical arrangement is obviously imitating the organizational system of administrative organs, and obviously lacks consideration of the particularity of judicial work. Second, judicial personnel are managed by administrative cadres, corresponding to administrative organs. Third, it is obviously not conducive to judicial work in accordance with legal procedures to implement administrative methods such as the chief executive responsibility system and asking for instructions and reporting.
In this way, the personnel rights and property rights of judicial organs are subject to local governments. Under this system, it is difficult to effectively guarantee the independence of local judicial organs at all levels. Therefore, under the intervention of local governments, local protectionism, departmentalism and implementation difficulties have emerged. Quite a few judicial injustices are not caused by the low quality of judges themselves, but by the influence of local governments. Especially in some cases involving local economic interests, it is difficult for the court to make a fair judgment because it involves the financial resources of local governments and the court funds are provided by local finances, and the court is tempted by its own interests and influenced by state power. Due to the independence of the trial and the dependence of personnel and finance on the local government, a large number of "relationship cases" and "human cases" have been formed.
Third, the internal relations that affect judicial independence.
(a) the judicial committee and collegial panel
In western countries, judicial independence is the independence of judges. In the process of hearing a case, a judge, based on the principle of free evaluation of evidence, fully listens to the evidence of the parties, presents the evidence in court and makes a judgment or ruling. According to the Organic Law of People's Courts, the main forms of exercising judicial power in China are judicial committees, collegiate panels and sole courts. However, in practice, there is no clear scope of responsibility among the three organizational forms. In China, the main task of the judicial committee is to sum up the trial experience and discuss major and difficult cases. The Criminal Procedure Law clearly stipulates that the judicial committee not only has the right to "discuss" the case, but also has the right to make a "decision", and particularly emphasizes that "the decision of the judicial committee shall be implemented by the collegial panel". As a result, the court conducted independent trials, and public trials became a mere formality. Specifically, in the process of hearing a case, whether it is tried by a single court or a collegiate bench, once the judicial committee makes a decision, it must be implemented under five conditions, and its ruling has final effect.
In the actual trial process, the judicial committee did not participate in the collegiate bench, and could not fully understand the arguments and evidence presented by both parties, so it could only make a judgment or ruling on the case according to the report of the presiding judge. In this way, once the so-called "major" and "difficult" cases need the participation of the judicial Committee, the trial will often become a mere formality, and the judges who really participate in the trial have no decision-making power, but the actual decision-making power lies in the hands of the judicial Committee outside the court. This has caused the strange phenomenon of "the judge does not judge" and "the judge does not judge". This is obviously contrary to the "trial centralism" pursued by China and the open trial system established by China, and it is also detrimental to judicial independence.
(2) Higher courts and lower courts
According to the Organic Law of the People's Court, the relationship between the higher court and the lower court is the relationship between leadership and being led, supervision and being supervised. However, in the trial practice, it is often the lower courts. Once they encounter difficult and complicated problems in the trial, they ask the higher courts for advice on the grounds of asking legal questions, and the courts that accept cases are also open to everyone. What's more, it directly instructs subordinates how to judge. The direct result of this abnormal communication between the higher and lower courts is that the lower courts lose their independence, and the cases that should be tried by themselves are asked for instructions step by step. The accumulation of cases in the people's courts has caused a serious decline in the value of litigation benefits and brought a heavy burden to the people. Destroyed the image of the people's court in the eyes of the people. On the other hand, due to the decision made by the higher court, the lower court must abide by it, which makes the parties' desire to change the trial results that are not conducive to them fail, and in fact leads to "the final judgment of the first instance", which will inevitably lead to a large number of unjust, false and wrong cases and damage the legitimate rights and interests of the parties. Similarly, this is contrary to China's "second-level final appeal" system.
Four, judicial independence and the status, economic status and quality of judges.
Under the current judicial system in China, an important obstacle to judicial independence is the lack of economic security and unsatisfactory financial supply system. The treatment of judges is low, and the illegal interests that may be obtained in judicial activities are too tempting compared with their legitimate interests, which is easy to affect their integrity and justice and also damage judicial independence; Secondly, the identity of a judge cannot be truly independent. According to China's Constitution, the appointment and removal of judges in people's courts at all levels is decided by people's representatives at the same level. In this way, judges may ignore the intervention of the legislature in judicial infringement for their own interests, and even engage in measures to hinder judicial justice with some legislators. There is a common point behind all kinds of phenomena, that is, the judicial independence in the basic power structure of the country has not been affirmed behind the constitution and laws of our country, which leads to the relationship between the judiciary and the legislature, not the balance of power, but the relationship between the superior and the subordinate. Therefore, it is impossible to talk about the independence of a judge's personal identity. Finally, the quality of judges is closely related to judicial independence. Judicial independence must rely on a high-quality and efficient judicial group. This is the premise of dealing with and coping with all kinds of complicated relations, and it is also the inherent requirement of judicial independence. Otherwise, in real life, judicial independence cannot be achieved. Only by maintaining the nobleness of judges' profession and the high quality of judges can judicial independence be realized, and then the purpose of judicial justice can be realized. Most western countries stipulate that judges and prosecutors must have graduated from university law departments. For example, it is stipulated in Britain that only lawyers with 15 years or above qualifications can be appointed as judges of the Court of Appeal?
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Verb (abbreviation of verb) on promoting judicial independence
In view of the present situation of China's judicial system, the author thinks that the following aspects should be reformed to overcome the problems existing in the process of judicial independence.
(a) to develop a supporting system to protect the independence of the people's courts.
1. In the system of appointment and dismissal of judges, the level of the appointing authority should be raised by the people's congress at a higher level to avoid local interference.
2, by the local administrative organs to allocate funds to the state finance, to avoid the judicial organs of local financial control.
3. Reform the setting of courts, change the setting of courts from administrative divisions to cross-administrative regions, clearly divide the two systems of local courts and central courts, and set up central courts and regional courts that can transcend local interests.
(two) to develop a system to ensure the independence of the trial.
In order to ensure the real independence of judicial power, the presiding judge should be gradually given certain procedural autonomy and the corresponding supporting system should be straightened out.
1. According to the actual situation in our country, the appointment of judges will be "elitist" through the following procedures: First, the qualification of judges will be gradually set at a law college degree or above in colleges and universities; Second, gradually implement the national unified examination to hire judges; Third, a system of selecting judges from law professors and associate professors with certain practical or teaching experience is implemented throughout the country, stipulating that judges must be promoted step by step.
2. Give the presiding judge certain independent handling rights and strengthen the judicial function of the collegial panel. Strengthening the duties of the collegial panel or expanding the powers of judges is mainly aimed at the practice of separation of trials. Trial separation, power and responsibility can not be unified, the judge responsibility system can not be truly implemented, and the misjudged case investigation system is difficult to implement. In fact, the responsibility system for everyone has formed a situation in which no one is responsible, which is easy to cultivate dependence and cannot inspire the spirit of judges to be serious, responsible, fair and enterprising. Therefore, the function of collegiate bench should be strengthened and the power should be delegated to judges.
(3) Establish and improve the system of investigating misjudged cases.
At present, in view of the low quality of judges, it is beneficial to strengthen their responsibility system appropriately. However, the strengthening of this responsibility system may also lead to judges being too cautious in handling cases and lacking an independent and dedicated spirit of safeguarding justice. Therefore, the author believes that although the responsibility system should be strengthened at present, with the maturity of the judge system, this responsibility mechanism should also be reformed and its identity protection should be strengthened to ensure judicial independence. It is required that the impeachment of judges must follow strict procedures. Only judicial fraud and very serious work mistakes can be used as impeachment reasons, and it is forbidden to punish judges easily. This is both an incentive and a spur to judges, and its elimination function is helpful to improve the overall quality of judges.
(4) To supervise judicial activities by public opinion.
The supervision of public opinion on judicial organs may promote judicial justice by grasping facts, analyzing problems reasonably and reflecting public opinion, but it may also damage judicial prestige and judicial independence by misjudgment. Also for the sake of strengthening supervision, the author believes that at least for now, we should focus on strengthening public opinion supervision; In order to prevent "black-box operation" and effectively prevent and correct judicial corruption and judicial losses. However, the supervision of public opinion on the judiciary must achieve the following points: first, it is not allowed to commit crimes beyond its authority; The second is to comment afterwards, and not to make clear guiding comments on the case being tried. In addition, internal reviewers of newspapers and periodicals should be required to strictly examine such criticisms to prevent them from being untrue and inappropriate.
(5) Improve the relationship between judicial independence and the leadership of the Party.
First of all, we should make it clear that judicial independence is not about getting rid of the leadership of the party, but about how to improve the leadership of the party over judicial work, make the leadership principle of the party run more normatively in concrete real life, make the party exercise its power in strict accordance with certain norms and procedures, and restrict this power through legislation. The author believes that the party's leadership over judicial work should be as follows: ① putting forward legislative suggestions through the National People's Congress and formulating and amending laws. (2) to formulate the general line, principles and policies to guide the smooth development of judicial work. (3) It is suggested that the appointment and removal of key personnel cadres in judicial organs should be determined by the legislature. In short, the leadership of the party should serve the realization of judicial independence from a macro perspective, and should not be a stumbling block to the realization of judicial independence!
"The road to judicial independence is long", and its realization cannot be achieved overnight. It needs the close cooperation of all departments and even the participation of the whole society. In the process of reform, the interests of departments and individuals will inevitably be touched, which requires us to proceed from the overall situation of the country, obey the needs of the overall interests, earnestly promote the reform of the judicial system, promote the true independence of the judiciary, and finally realize the goal of "ruling the country according to law" in China.