Born in 1962, Mr. Gao, senior vice president, general counsel and company secretary of China Offshore Oil (China) Co., Ltd. 198 1 graduated from Suzhou University with a bachelor's degree in English literature; 1983 graduated from Beijing foreign studies university with a master's degree in English literature; 1990 obtained a master's degree in political science and literature from the Graduate School of Yale University; 1993 graduated from Yale Law School with a doctor of law (J.D.). Mr. Gao is a registered lawyer in New York State, USA. 1994 to 1999 are financial advisers awarded by the Hong Kong Securities Regulatory Commission. Mr. Gao has a wide range of work experience, and his companies and institutions have successively worked in the Ministry of Foreign Affairs of China (Beijing), the United Nations Secretariat (new york) and Milbank Tweed Hadley &; Mcilroy Law Firm (new york), Morgan Stanley Investment Bank (Hong Kong), China International Capital Corporation Limited (Jinggang), PCCW, Henderson (China) Investment Co., Ltd. 1999-2000, Gao Zhikai served as the China affairs consultant of the Hong Kong Securities Regulatory Commission.
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Gao Zhikai: From Judicial Power to Equitable Power: Tailored for Court Judges
With the further deepening of China's reform and the strengthening of opening to the outside world, the importance of legal work is increasing day by day, the necessity of building a country and governing the country according to law is becoming increasingly obvious, and the role of courts and judges is also constantly strengthening. Although the definitions of "court" and "judge" in China and developed countries ruled by law are basically the same, the definitions and explanations of "judicial power" are quite different, which can hardly be compared.
The definition of judicial power is vague.
In developed countries ruled by law, the definition of "judicial power" is very clear and its position is very important, especially the power of courts and judges to try related disputes according to law and other related powers.
When translating legal documents of western countries in the late Qing Dynasty and the early Republic of China, the definition of "judicial power" refers to the judicial power of courts and judges, compared with "executive power" and "legislative power". Even so, because there is no self-contained court and judge system in China's long feudal society, government officials often hold several positions and monopolize administrative and judicial power, so "judicial power", an exotic product, has no exact counterpart in China, and it is still an erratic concept in China's legal theory and practice. Over the past half century, China has undergone earth-shaking changes in politics, economy, society and other aspects. Emerging appellations have emerged constantly, and the definitions, explanations, cognitive levels and usage methods of many traditional appellations have also changed. "Judicial power" is a typical example. With the development of new China from a poor and white new regime to a world-renowned and decisive power, the focus of judicial work in China and the definition and interpretation of "justice" are constantly changing.
Regarding "judicial power", China has a broad sense, a middle sense and a narrow sense. The judicial power in a broad sense includes the powers of trial, prosecution, investigation, prison, lawyer, notarization and arbitration, and the judicial staff includes the staff of courts, procuratorates, public security organs, state security organs, judicial administrative organs and other departments. Sino-Italian judicial power refers to the judicial power exercised by public security organs, procuratorates and courts, commonly known as "one-stop public prosecution law". Even in the narrow sense of judicial power, which is generally accepted at present, judicial organs include courts and procuratorates, and judicial power also includes judicial power of courts and procuratorial power of procuratorates. At present, the common dictionary interpretation is that "justice refers to the investigation and trial of civil and criminal cases by procuratorial organs or courts according to law". Internationally, the judicial power of courts and judges is essentially different from the procuratorial power of procuratorial organs, and it is easy to cause unnecessary confusion and misunderstanding to collectively refer to it as "judicial power". For various reasons, the definition of "judicial power" in our country is vague or ambiguous, and the exact meaning is difficult to determine, which has caused a lot of unnecessary confusion and inconvenience to our legal work and legal reform.
Coincidentally, in our daily work and life, there are many appellations and idioms that make the definitions of "justice" and "judicial power" more vague and even contradictory. For example, China's Ministry of Justice has no "judicial power" and is not a "judicial organ"; Justice in China is not a magazine of the Ministry of Justice, but a magazine of the court; The "National Judicial Examination" organized by the Ministry of Justice is not the recruitment examination of the Ministry of Justice, but is applicable to judges, prosecutors and lawyers; The newly revised Securities Law has also increased the "quasi-judicial power" for the CSRC, and so on.
It is worth noting that the word "division" in "judicial power" contains strong active meanings such as "execution, presiding, operation and management", such as "driver, fireman, commander, division number", which is actually incompatible with the passive characteristics of courts and judges "no lawsuit, no court session". In addition, the court badges in many countries in the world are marked with scales, and some court badges are also marked with a blindfolded woman holding scales, which symbolizes the fairness and justice of courts and judges. This is the symbol of the International Court of Justice.
Use equity to refer to judicial power.
In view of the confusion in the definitions and explanations of "judicature" and "judicial power" and the increasing importance of legal work, the author thinks it is necessary to keep pace with the times, simplify the complex, eliminate impurities and clarify some important definitions and concepts in our legal work. Therefore, it is necessary to create a new term for courts and judges and their judicial power in order to get rid of the inconvenience caused by the vague definition at present.
I suggest to create a new term "equity" in Chinese to refer to the judicial power and other corresponding powers of courts and judges, which corresponds to the "judicial power" of western developed countries. "Balance" is "measurement"; "Law" means law; "Equity" means that courts and judges take the law as the criterion, determine the legal relationship and rights and interests between the parties through legal procedures and means, and make legally binding judgments; "Equity" refers to the unique equity and other corresponding powers of courts and judges. "Balanced law" symbolizes the fairness and justice of courts and judges, and "trial" and "judgment" are the means to balance the law. Compared with the word "division" in "judicature", the word "balance" in "balance law" can more accurately describe the main responsibilities and work characteristics of courts and judges. Related words can also include "judge" (referring to judges, judges' assistants and other relevant personnel of the court); "Equity system" (referring to the court system); "Equity reform" (refers to the reform of the court and judge system); China Hengfa magazine, China Hengfa newspaper and so on.
At present, China's "judicial power" also includes the "procuratorial power" of the procuratorate. The author suggests that "procuratorial power" should be expressed separately and not included in "judicial power" in general. Accordingly, we can change "promoting judicial reform and institutionally ensuring that judicial organs independently and impartially exercise judicial power and procuratorial power according to law" into "promoting reform of impartial procuratorial power and institutionally ensuring that impartial procuratorial organs independently and impartially exercise impartial procuratorial power according to law". For another example, the phrase "improving judicial efficiency and ensuring fair justice" can be adjusted to "improving balance and procuratorial work efficiency and ensuring balance and procuratorial work justice". Wait, wait.
Let justice return to its original meaning
After the introduction of the new term "equity", the concepts of "equity" and "prosecution" have been separated from the title of "justice", and the concept of "Ministry of Justice" has been widely used and generally accepted. I would like to suggest that the title of "justice" can be retained in the future, but the title of "justice" is the same as that of the Ministry of Justice. In this way, "China Justice" became the newspaper of the Ministry of Justice; "Judiciary" means the Ministry of Justice and its relevant departments; "Judicial personnel" shall mean the Ministry of Justice and its related personnel; "National Judicial Examination" can be adjusted to "National Law Examination"; Wait, and so on. This adjustment of the concept of "justice" can also reserve space for the future adjustment of the functions of the Ministry of Justice.
In addition, public security, armed police, customs, taxation, frontier defense and other organs can be collectively referred to as "law enforcement organs".
Thus, under the People's Congress (legislature), the highest organ of state power in China, there are "organs for balancing laws" (courts) and "procuratorial organs" (procuratorates), and under the State Council, there are "judicial organs" (Ministry of Justice) and various "law enforcement organs" (including public security, armed police, customs, taxation, border defense and other organs). The innovation and adjustment of this title will help to clarify some unnecessary confusion in China's legal concept, help China to connect with the international community, and help China to further reform, opening up and peaceful development. (The writer is a doctor of law at Yale Law School and director of China International Cultural Exchange Center. )
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