2. Modern laws in China were established during the Republic of China, imitating the continental legal system of French Concession and German Concession, and later absorbing the Anglo-American legal system. The laws of New China were also formulated on this basis, but the remnants of feudal thoughts were eliminated, and it went through the process of establishing a socialist legal system with Chinese characteristics.
Due to the influence of modern legal modernization and the influence of the civil law system on the legal model of the former Soviet Union introduced after the founding of New China, China still tends to the civil law system as a whole, but it has absorbed some experiences from the common law system, such as trial procedures.
Japan's judicial system
(1) judicial organization
1. The formation of modern judicial organizations
In the early days of Meiji Restoration, there was no systematic court organization system in Japan, and there was no distinction between justice and administration. 187 1 year, the Ministry of Justice was established, and the jurisdiction of civil and criminal cases was uniformly supervised by it, and the magistrate was also a judicial official. 1875 enacted the constitution of the grand jury courts at all levels, stipulating that the grand jury is the highest judicial organ of the country, with superior courts, circuit courts and prefectural courts, abolishing the system of local officials serving as judicial officers, and initially realizing the separation of justice and administration.
After the promulgation of the Meiji Constitution, two systems of ordinary courts and administrative courts were established according to the French-German model, and the Law on the Composition of Magistrates' Courts and the Law on Administrative Adjudication were promulgated in 1890. The Law on the Composition of Courts was formulated with reference to the organizational system of German courts. This law stipulates that courts with districts, local courts, appeal courts and main jurisdiction courts throughout the country should implement a system of four levels and three trials. The Administrative Trial Law stipulates the organization of administrative courts and the principles and systems of administrative litigation, which consists of 4 chapters and 47 articles. According to the law, an administrative court is established in Tokyo, which is only responsible for hearing cases of administrative violations stipulated by laws, decrees and relevant administrative adjudication documents.
1893 promulgated the Law on Lawyers, stipulating that lawyers should be registered in the register of local courts and join the local lawyers' association, which is supervised by the head of the local procuratorate.
2. Post-war judicial reform
After the Second World War, according to the principles and spirit of the Japanese Constitution, the Law on Courts, the Law on Public Prosecutor's Office and the Law on Lawyers were formulated and promulgated, which greatly changed the judicial organization in Japan.
1947 promulgated and implemented the court law, which abolished the administrative court and special court established under the Meiji constitutional system and implemented a single court system; These courts are the Supreme Court, the High Court, local courts and summary courts.
1947 The Law on Procuratorial Offices promulgated and implemented set up independent procuratorates according to the trial level of the courts, which are divided into four levels: the Supreme Procurator's Office, the Senior Procurator's Office, the Local Procurator's Office and the District Procurator's Office. As a unified organ to carry out state procuratorial work, lower-level procuratorates are led by higher-level procuratorates, and the Minister of Justice has the right to give overall guidance and supervision to procuratorates. Prosecutors are no longer judicial personnel, but state administrative officials, and their status is protected by law.
1949 promulgated the Lawyers Law, which established the principle of lawyers' autonomy, changed the old system that Japanese lawyers were strictly supervised by state organs, and stipulated that the main mission of lawyers was to protect human rights and uphold justice, and set up lawyers' associations within the jurisdiction of local courts and Japanese lawyers' associations throughout the country; Lawyers' Federation is a group that all lawyers must join, and it is the highest organ to guide, contact and supervise the national lawyers' and lawyers' associations. Lawyers have the right to set up a law firm, but they must go through the declaration formalities with the local bar association. At present, there are two kinds of law firms in Japan: independent firms and the same firm. Most lawyers are concentrated in big cities in Japan, and their main business activities are to participate in court proceedings.
Judges, prosecutors and lawyers in Japan have a high social status and have strict examination, employment and training systems, which have made great contributions to the development of Japanese legal theory and the improvement of legal practice. Together, the three constitute Japan's "law and Cao" and are known as "the three pillars in legal construction".
(2) Litigation system
1. Formulation of modern procedural code
(1) Formulating the Criminal Procedure Law
1890, referring to the german criminal procedure law, Japan promulgated the criminal procedure law, which is divided into 8 chapters, 15, * * 334 articles. Its basic characteristics are: litigation is divided into public prosecution and private prosecution. Public prosecution is brought by the prosecutor in order to prove the crime and apply the penalty, and private prosecution is brought by the victim in order to return the stolen goods and obtain the damage caused by the crime. The withdrawal system of judges is stipulated in detail; Taking pre-trial as a necessary procedure before public trial; There are four forms of appeal, namely, complaint, appeal, special appeal and protest.
(2) Formulating the Civil Procedure Law
1880, Japan drew up a draft following the French civil procedure law 1807, but it was not submitted for consideration because the government was going to amend the German civil procedure law 1877. 1884, German experts were hired to help draft the civil procedure law. After several revisions by the Law Commission, it was passed and promulgated in April 1890, and implemented in October1the following year. This code is the first code of civil procedure in Japan, which is divided into eight chapters,12,805. Its main features are: implementing the principle of litigant litigation and the principle of non-interference by the court; It affirms the traditional practice of resolving civil disputes through reconciliation, and can apply to the court for reconciliation before filing a lawsuit. At any stage of the first-instance procedure, the judge has the right to try reconciliation, and if the reconciliation fails, a judgment will be made. The court's hearing of an appeal case is limited to the scope of the request made in the original trial and the appeal application.
2. Changes in the post-war litigation system
After World War II, great changes have taken place in the criminal procedure system.
(1) 1948 Japan's criminal procedure law embodies new features: ① it stipulates that all kinds of compulsory punishment must have a writ, establishes a new system of declaring reasons for detention, and embodies the principle of safeguarding human rights; (2) It is clear that the right of prosecution in criminal cases belongs exclusively to prosecutors, who have the discretion to prosecute or not to prosecute according to the criminal's situation, but it also stipulates the crime of abuse of power to prevent prosecutors from exercising their powers unfairly; (3) Abolishing the pre-trial, expanding the defense system, and limiting the defendant's self-admission evidence ability, which shows the respect for the defendant's position; (4) The public prosecutor only submits the complaint to the court when initiating a public prosecution, and does not collect the case files and evidence materials, thus implementing the principle of taking trial as the center and giving priority to debate; ⑤ The retrial that is unfavorable to the defendant is abolished, and the one that is beneficial to the defendant can be retried at his request. The indictment of the second instance was changed from the original review system to the ex post review system. In a word, this code embodies the characteristics of the combination of mainland criminal procedure system and Anglo-American criminal procedure system.
(2) 1929 The Civil Procedure Law, which came into effect, was not completely revised after the Second World War. However, with the change of the objective situation and the influence of the American legal system, the civil procedure law has been partially revised, and separate provisions have been promulgated, which has improved the burden on both parties, weakened patriarchal interventionism and democratized the proceedings. Later, there was a tendency to separate matters that originally belonged to the civil procedure law. For example, 1979 enacted the civil enforcement law, and 1989 enacted the civil preservation law, which changed the civil litigation system accordingly.
After the war, the establishment of administrative courts was abolished, and administrative litigation cases were also tried by ordinary courts. However, due to the particularity of administrative litigation cases, 1948 enacted the Law on Special Cases of Administrative Litigation. The current administrative litigation system is mainly embodied in the Administrative Case Procedure Law promulgated by 1962. The procedure of administrative cases is relatively independent.