Judicial Reform: China and the World
Professor He Weifang pointed out on the topic of "Judicial Reform: China and the World" that judicial reform is not only a topic of China, but also a common topic of all countries in the world. Today's judicial reform has three development trends: first, the differences between ideology and social system have begun to fade; Second, national consciousness, religious conflicts and the rise of local culture; Third, the liberalization of trade has made it easier for countries to communicate in law, and foreign legal knowledge has increasingly influenced China. The judicial reform in China has the following characteristics: first, the judicial reform in China is characterized by the dominant socialist factors; Second, the rise of professionalization is the most remarkable phenomenon in 10 years; Thirdly, foreign knowledge is constantly introduced, but it is constantly hindered by local culture, which is manifested in the concept of appealing to people's hearts, excessive dependence on official power and the influence of post-modern legal thoughts.
In response to Professor He Weifang's speech, Professor Fang Lixin believes that the judicial reform in China has made remarkable progress, which is manifested in the scholars' wide recognition of the concept of judicial independence and the success of the judicial examination. At the same time, we should also pay attention to two aspects: first, judicial elite should be combined with democratization; Second, we should pay attention to the protection of human rights after elitism and specialization.
Professor Suzuki gave a keynote speech on the security law during the Japanese colonial rule of Korea: firstly, the characteristics of the security law before the merger of Japan and South Korea were introduced; Second, the emergence of penalty clauses for ideological crimes; Third, the simplification of the trial procedure in North Korea; Fourthly, criminal justice and the system of first instance and final adjudication in Taiwan Province Province.
Professor Zhang believes that while studying the judicial system in depth, the research level should be further improved: first, from systematic research to type research; Second, the study of foreign judicial system should interact and see through the background knowledge of China's judicial system; Third, we should conduct a more in-depth and systematic study of foreign judicial systems.
Professor Fei Anling delivered a speech on the topic of "Roman Law Research and Chinese Civil Code", arguing that the study of legal history is very important for the design of legal system and legal procedure. In the process of drafting China's civil code, the study of Roman law can give us inspiration. It can not only provide institutional origin for China civil and commercial law, but also provide ideological origin for humanistic care. This is what China's century-old civil and commercial law culture pursues. At present, there are two kinds of cultural conflicts in China's legal circles: advocating comprehensive international integration and highlighting China characteristics. We should reflect deeply on this.
Professor Xu Guodong analyzed two fragments of the legal ladder. First of all, it briefly introduces the research methods and texts of Pinci. Second, the previous explanation of the two-stage theory; Third, the transformation relationship between Marxism and the above two stages; Fourth, the significance of the two-stage theory; Fifth, the contradiction of degradation theory; Sixth, the influence of degeneration theory on Greek culture; Seventh, the influence of degeneration theory on the present; Eighth, the origin of the advanced legal status of natural law.
Reform of Anglo-American judicial system
Dr. Li Honghai expressed his views on the reference significance of common law judicial technology to China's judicial practice, pointing out that judicial technology is a technology used by judges in the judicial process, which is of great significance to judicial independence, can promote grassroots judicial practice, and make China's judicial system adapt to the requirements of WTO rules. The contents of judicial technology include: distinguishing technology, finding the controversial point of the case, transforming the dispute of value into the dispute of tools, and so on. Judicial technology is a personal experience. We should sum up general knowledge from personal experience, sum up other people's experience into general knowledge, then turn it into personal experience, and then turn spontaneous things into conscious understanding.
Professor Gao Hongjun believes that the rule of legality comes from the experience and society of the same subject, so a unified system design should be avoided; In practice, British common law emphasizes experience, while China does the opposite.
Professor Fang Lixin believes that legal technology is of great significance to emphasize the professionalism of the judicial profession; Legal belief of judicial personnel is more important than technology; We should learn from the western judicial system and distinguish its advantages and disadvantages, not absoluteness.
Teacher Li Yongjun believes that the jury system is one of the most distinctive judicial systems in the United States, and it is also one of the symbols of judicial justice in modern America. Democratic belief, individualism and anti-authority spirit, due process and case law system are the social and cultural basis for the existence of American jury system. In fact, its own good mechanism plays a positive role in realizing judicial justice. However, the principle of unanimous judgment, the interference of emotional factors and the low efficiency of litigation have also had some adverse effects on the realization of judicial justice.
Professor Li Changdao believes that the jury system should be used in coordination with other systems such as litigation system, lawyer system, evidence system and legal concept. Horizontally, the jury system in America should be compared not only with that in Britain, but also with that in Germany. In addition, the unanimous verdict system in the American jury system is about to be abolished, which we should pay close attention to.
Teacher Shang Gao believes that there are many specific systems in the American jury system that are worth learning. There are problems in the compatibility between the jury system and the judicial system in China, which are manifested in three aspects: First, the theoretical basis of the democratic function of the jury system in China and the United States is different; Secondly, there are cultural background obstacles in the integration of the two, including four aspects: obeying authority, court decisions, the unprofessional tendency of jurors failing to change the weakness of judges' professionalism in China, and the lack of remedies for jurors' misconduct; Thirdly, the current judicial situation in China is not suitable for the implementation of the jury system, and we should take the third road similar to that in Japan.
Professor He Weifang believes that the jury system is an issue of interest to jurists all over the world, but without English-speaking countries, the jury system cannot survive well. The biggest function of jury system in Britain and America lies in lightening and shirking judicial responsibility.
Professor Jiang Yanbo believes that there is no inefficiency in the jury system. In terms of time, continuous trial can speed up the trial; From the perspective of money, the jury system can reduce the cost of litigation. Therefore, considering the whole system, it is in line with the efficiency value.
Professor He Weifang thinks that we should pay attention to the following issues: first, the conservatism and reform of the British legal profession; Second, the correlation between the British lawyer profession and the judge profession; Third, how to find the theory in British legal research; Finally, the relationship between British legal profession and China society.
Professor Dong Maoyun pointed out: the reform of judicial system is both national and global, and nationality is the mainstream; The reform of judicial system is supported and restricted by traditional culture; China should not transplant plea bargaining system.
Professor Zhou Wei believes that justice and the efficiency of justice are not necessarily a pair of opposing values. At present, judicial injustice in China is rarely caused by the pursuit of efficiency. America's acceptance of plea bargaining lies in its constitutional spirit, emphasizing the spirit of freedom of contract. However, the constitutional spirit of our country is different from it, and it cannot be judged simply according to our standards.
Reform of Japan's judicial system
Teacher Qu Yang gave a keynote speech on the topic of "the change of the concept of rule of law and the reform of the judicial system", pointing out that the judicial reform in Japan today is not only a reform at the institutional level, but also a change in the concept of rule of law, which has triggered many changes in the judicial system. The changes in the concept of this judicial reform mainly include: establishing the concept of "rule of law"; Justice is the pillar of "public space". The enlightenment of Japanese judicial reform to China is: the idea comes first; The direction of judicial reform; The role of scholars; Strengthen the position of justice in society.
Teacher Peng Bo believes that the three judicial reforms in Japan have their own characteristics: the reform in Meiji era widely introduced western systems, carried out reforms from top to bottom, and synchronized with political reforms; The reform after World War II mainly imitates the United States and passively accepts it under external pressure, which is also synchronized with political reform; This reform mainly refers to the American model, but it belongs to the bottom-up reform and is decoupled from political reform.
Professor Li Daogang put forward the following viewpoints: First, when Japan introduced the western judicial system, it was vertical, while China was horizontal; Second, the concept of a modern country ruled by law has changed, and it has begun to shift from form to substance; Third, judicial reform should not enter the misunderstanding of relativism.
Professor Deng Zengjia believes that the opinions on Japan's temporary judicial reform and the debates surrounding it are the first judicial reform independently carried out by the Japanese government after the post-war democratization of the legal system led by the United States. Its basic content mainly includes two parts: the unified system of law and Cao and the specific measures to improve the judicial system, with three key aspects: improving the treatment and status of judges; Rationalization of trial procedure; Reform the summary procedure.
Professor Feng Zhuohui believes that Japanese nationals have actively participated in judicial reform, especially lawyers. However, lawyers in China are excluded from the judicial reform because of their own quality and other reasons. We should advocate the concept of "reform of the Ministry system", incorporate the reform of the lawyer system into the judicial reform, and improve the quality of lawyers.
Dr Li Honghai believes that Britain and the United States are different from Germany in the rule of law. Britain and the United States are from openness to democracy and then to the promotion of personal dignity, while Germany is a country ruled by law under the supervision of one person. In this respect, China and Germany are similar.
Professor Guo Zhixiang believes that the evolution of Japanese rule of law is similar to that of China, so it is necessary to establish the same legal system. China should learn from the west and construct its own legal system, and the growth of law must have the basis of citizenization.
In his keynote speech, Master Wang Xiaofeng introduced the structure, contents and shortcomings of Japanese jury law 1923, and analyzed the reasons for the failure of Japanese jury law and the reference significance of Japanese judicial reform to China from the perspective of legal transplantation.
Professor Qiang Ren believes that the jury system in western countries is a symbol of judicial justice. Spontaneous order does not exist in China; Hegel's theory that existence is reasonable doesn't work in China.
Teacher Chen Yi thinks that taking the ups and downs of the Japanese jury system as a lesson, it seems that the current judicial reform movement in China should not go from one extreme to the other. We can consider adopting a model similar to "mixed regime" in the judicial process and integrating elite factors and civilian factors in judicial operation.
Professor Zhang Ruizhi discussed the role of American judicial review system in power supervision, and held that American judicial power has a strong restrictive effect on legislation and executive power. The spirit and specific system of "supremacy of constitution", "supervision power" and "ruling the country according to law" in American judicial review system have certain enlightenment significance for perfecting the rule of law in China.
Professor Zhang Wenzheng believes that there is a time difference in law; Judicial review is a problem of rule of law; The essence of unconstitutional review and power balance lies in "democracy first"
Judicial system reform in Asia and Africa
On the topic of "Oral African Law: Judicial View of Traditional Customary Law Culture", Mr. Brian He pointed out: from the judicial basis, African customary law has no written text, and there is no written procedure in the judicial process; The oral communication and development of customary law culture is manifested in rich oral culture. This oral customary law contains the judicial experience and wisdom accumulated by African people for a long time, which is of great research value.
Professor Xia Xinhua believes that oral African law is a part of summing up African legal culture and has its own characteristics, but it can only reflect the value of justice at the judicial level.
Professor Hong Yonghong believes that oral African law is the most distinctive legal phenomenon, which has reference significance for the study of customary law of ethnic minorities in China.
Professor Xu Guodong agrees with Brian Ho's research method, but holds different views on his research perspective. He thinks it is not advisable to study African law from the perspective of colonists. He Wen's customary law is essentially written law. At the same time, Professor Xu questioned the name of "African Law".
Judicial Examination and Judge System in China
Master Leng Xia analyzed the modern judicial examination system in China, and thought that the purpose of the modern judicial examination system in China was to select judicial talents, which was different from the purpose of forming a legal profession and a strong judicial force in the current judicial examination system. This purpose also determines the characteristics of the coexistence of advantages and disadvantages of the judicial examination system in modern China.
Professor Wang Jian pointed out that the judicial examination in modern China is a developing process, and the recovery of extraterritorial jurisdiction runs through the whole legal development process in modern China, which is an important feature of the development of the rule of law in modern China.
Professor Gong Rufu believes that there were some legal elites in China during the Republic of China; Professor Feng Zhuohui believes that judicial examination can guide judges to expand their knowledge, a tradition that has existed in China since the late Qing Dynasty.
Teacher Yu Hui put forward her own opinions on the topic of "China judge system: development and change", and thought that the basic trend and overall development trend of the judge system reform under the background of social transformation and system transition in China is to gradually dilute the administrative and popular colors of judges and constantly strengthen the professional and elite characteristics of judges.
Professor Xu believes that the reform of the judge system is the highlight of the judicial system reform. Judicial independence should include three aspects: judicial independence, court independence and judge independence. However, judges should be civilians.
Dr. Zhu Xiao believes that besides examining the reform of the judge system in China from the perspective of institutional changes, we should also examine the judge system in China from the perspective of judges and researchers.