Let's look at the definition of justice first. Judicature refers to the special activities of the state judicial organs and their staff to try cases by law in accordance with legal authority and procedures. From the western theory, judicial power is judicial power, that is, only judicial organs, that is, courts, exercise judicial power, while judicial power in China also includes procuratorial power. This paper starts with the analysis that judicial power only includes judicial power for the time being. Judicial independence means that judicial organs and judges independently exercise judicial power in the process of trying cases according to law. As a basic principle of modern judicature, judicial independence is the product of the separation of powers in the west. 17 and 18 centuries, bourgeois enlightenment thinkers put forward the idea of decentralization in view of the phenomenon of monopoly power and abnormal concentration of rights of feudal monarchs. Montesquieu, its representative, believes that the state should be exercised by different organs, namely, legislation, justice and administration. The current political system in western countries is based on the separation of powers, and judicial independence has been well operated. In China, the principle of judicial independence is legally embodied as "the principle that people's courts exercise judicial power independently". However, this principle has different expressions in different periods. From 65438 to 0954, China's first socialist constitution was born. It affirmed the independent status of the people's court for the first time. Articles 78 and 79 of the law respectively stipulate: "The people's courts conduct trials independently and only obey the law." "the Supreme People's Court supervises the trial work of local people's courts at all levels and special people's courts." However, the Cultural Revolution, which began in 1966, made the achievements of legal system construction made by 1954 Constitution come to naught. During the Cultural Revolution, the people's court, as a judicial organ under the Military Management Committee of the public security organ, had no independent status at all, let alone judicial independence. Moreover, the Constitution of 1975 adopted during this period also abolished the provision that "the people's courts conduct trials independently and only obey the law". After the Cultural Revolution, the country began to restore the legal system, but it was not until 1982 that the people's courts independently exercised judicial power as a legal principle. 1The Civil Procedure Law of People's Republic of China (PRC) (Trial) promulgated on March 8th, 982 stipulated this principle for the first time. Then, the Constitution of People's Republic of China (PRC) (1982 Constitution) adopted in the same year further promoted it as a constitutional principle. Article 126 of the law stipulates: "The people's courts independently exercise judicial power in accordance with the law and are not subject to interference by administrative organs, social organizations and individuals." Compared with 1954 constitution, the provisions of 1982 constitution are more detailed and specific, but at the same time, it also narrows the scope of "independence" of people's courts. The legislature and procuratorial organs are not within the scope of "independence" of the people's courts. Therefore, judicial independence in China has a constitutional basis. The author believes that judicial independence is an inevitable requirement of the rule of law, a kind of jurisprudence, and does not have ideology and class nature. No matter which country or region, as long as it wants to realize the real rule of law, the judiciary will inevitably move towards independence!
Second, the necessity of judicial independence.
Due to the independence of the judiciary, many cases, especially typical cases with great influence, have not been fairly tried by the law, and there have also been many unjust, false and misjudged cases, from the first death case of An Le who left people by the sword after the founding of the People's Republic of China to the death case of president Liu Shaoqi who was persecuted during the Cultural Revolution, the injustice case of loyal minister Liang Shuai Peng Huaide, the female martyr Zhang Zhixin who was brutally hacked to death, to the injustice case of She Xianglin who killed his wife since the reform and opening up, and the young Sun Zhigang who was mutilated to death. Are filled with creepy blood and shock. There are many heinous cases of relationships, money and human feelings in China. There are still many people who violently interfere in the administration of justice under the banner of safeguarding the overall situation. On July 10, a group fight occurred between Shandong Coal Mine in Boluo Town and Fanhe Village in Boluo Town, Hengshan County, Yulin City, Shaanxi Province. This is not a simple fight. This incident in the mountainous area is rooted in a dispute over mineral rights, and the fuse is a long-delayed "people's accusation" case. This seemingly uncomplicated dispute over mineral rights was decided by the Yulin Intermediate People's Court and ruled by the Provincial Higher People's Court, but it has not been implemented so far, resulting in the collective property worth hundreds of millions of yuan being owned by individuals. Incredibly, in the face of the effective judgment, the Provincial Department of Land and Resources held a "judgment" coordination meeting and decided to deny the effective judgment of the court. The dispute eventually led to the intensification of contradictions and the escalation of the situation. All these tragedies are caused by judicial independence, so it is necessary to improve judicial independence in China.
Third, the significance of improving judicial independence.
1. Judging from the operation procedure of law, justice is the last procedure, and the value advocated and protected by law can be embodied and established through justice. Judicial independence is the premise and important guarantee of judicial justice. Justice is the essence and life of justice. Without justice, justice has no credibility and authority. Therefore, in order to maintain the impartiality of the judiciary, the judiciary must remain independent.
2. Judicial independence can also guarantee judicial efficiency. Justice should also pay attention to efficiency. There is a famous saying in the law that justice that is late is injustice. In addition, efficient justice is an effective use of resources, saving the time of the parties. Delaying justice will also prompt the parties to give up judicial relief and turn to self-help relief. In this way, the authority and credibility of court justice will be greatly reduced. Judicial independence can ensure judicial efficiency. Of course, the judiciary should not blindly pursue efficiency, but should pursue efficiency on the basis of following due process.
3. The independent exercise of judicial power can really and effectively restrict administrative power. At present, the restriction on administrative power needs to be strengthened, especially in some local governments where mountains are high and emperors are far away. It is common to use power to suppress the law. Take demolition as an example. Several of them were demolished for the benefit of the public. Even in the public interest, there should be a court to enforce them. At present, Chinese citizens protect their legitimate rights and interests with their lives, but the administrative personnel still ignore the law and act rashly, which leads to tragedy. Especially in the special economic system of China, the executive power holds a lot of resources, and the transaction of power and money is more likely to happen. It is urgent to have a power to restrain the executive power in order to safeguard social justice and the interests of most people. The independence of judicial power can well restrict administrative power. The independent operation of judicial power can also support China's constitutional government. Professor He Weifang has made a report on the nine pillars of China's constitutionalism, and judicial independence is one of them. The role of constitutionalism in a country's long-term healthy and sustainable development is self-evident and has been proved to be correct.
Fourth, improve the methods of judicial independence.
1. The author thinks that judicial independence is first and foremost economic independence, that is, the operating expenses of the court and the salaries of judges need to be listed separately in the budget, rather than being trapped in the administrative department. There is a saying in the countryside: whoever eats is in charge of the meal. Since the property of the judiciary comes from the administrative department, it will certainly be under pressure from the local government, and people's complaints and cases involving the interests of the local government will certainly not get a fair trial.
2. The court organization is independent, that is, the people's courts are not interfered by administrative organs, social organizations and individuals in the process of exercising judicial power according to law. Specifically, first, the judicial organs must be separated from the administrative organs, and the judicial organs cannot be subordinate to the administrative organs, and the administrative organs cannot lead and replace the judicial organs. Second, in the process of exercising their functions and powers independently according to law, judicial organs are not subject to interference from administrative organs. Leaders of administrative departments at all levels shall not interfere in judicial affairs or hinder the judicial organs from exercising their functions and powers normally. Third, judicial power must be unified and should not be interfered by local governments. The source of funds, budget, the determination of the president and the selection of judges of the judicial organs should not be controlled or managed by the administrative organs.
3. Judges are independent. Judges are the specific exercisers of judicial power, and every case must be tried by judges. Therefore, the independence of judges is of vital significance to the independent exercise of judicial power. The value of legal protection is also reflected in the judge's judgment. Bacon bluntly said: An unfair judgment is worse than many unfair behaviors. Because these unjust acts only pollute the water flow, but unfair judgments corrode the water source. Judges play the most important role in maintaining social justice in legal operation. Therefore, we should give judges the privilege of exercising their rights independently, such as the high salary system for judges, which will ensure that judges will not make judgments that violate the law and justice because they accept property from others. In some places, judges' salaries are too low, which makes it easy for them to bend the law for money. Because judges enjoy certain privileges, the selection and appointment of judges should be strictly controlled. Moreover, judges who violate the law should be severely punished, not only because they know the law and break the law, but more importantly, their illegal acts are extremely harmful to society, and the harmful results are greater than ordinary people. In the process of promoting judicial independence, to ensure the quality of judges, we must not only master the legal provisions, but also have their understanding of jurisprudence. To improve the judicial independence of China, all judges who have no judicial examination certificate must take the national judicial examination, and those who have obtained the certificate can remain in office. If you fail, you must study; if you fail, you must be laid off! Let a judge like the president of Shanxi Three Blindnesses leave his post. It is impossible for judges to be exempted from inspection for life at one time, because laws are constantly developing and improving, and new laws and interpretations are constantly being introduced, so judges should continue to learn and have continuity in their assessment. For example, they can be assessed every five years, but this assessment can be reduced, and the court only takes criminal examinations. Without the above measures, judicial independence will lead to very bad results. Because before the national unified judicial examination in 2002, a large number of demobilized soldiers, party and government cadres and teachers were transferred to the court system. After short-term training, they started the trial work, but their professional level could not meet the needs of case trial. Now the judicial committee of the court should be abolished, because this will lead to a bad situation of having a trial but not a judgment, and it will also seriously affect the independence of judges.
4. Mass base. In China, the concepts of "official standard" and "gold standard" in feudal society for thousands of years are deeply rooted. People generally advocate "blue sky" and "wise monarch", and rarely believe in the independence of court decisions. Citizens neither trust nor consciously safeguard judicial independence, so we need to publicize judicial independence, cultivate citizens' trust in the judiciary, and recognize and safeguard judicial independence.
5. Improve the lawyer system. Professor Jiang Ping once said: Lawyers are the symbol of a country's rule of law and civilization, and lawyers rejuvenate the country-only when the lawyer system is developed can the country's democracy and legal system be more perfect, and the success or failure of the lawyer system is related to the rise and fall of the country. At present, it is common for lawyers to bribe judges with clients' money. Judges use their power to benefit lawyers, which will inevitably lead to judicial corruption. In fact, both sides complained about the result. The court said that this was a lawyer luring the court. The lawyer said that the judge had jurisdiction and had no choice but to go through the back door. I think lawyers' complaints should attract our attention, that is, their status is really too low, and they are really vulnerable groups in front of judges and prosecutors. The improvement of the lawyer system will have a good effect on the supervision of judicial power, which also answers the problem that there is no supervision after judicial independence.
Conclusion: China's constitution also stipulates that procuratorial organs should exercise procuratorial power independently according to law, but the reality is that procuratorial organs have almost no independent power. According to the data just released by the Supreme People's Procuratorate, from 2005 to June 2009, among the defendants convicted of duty crimes in China, * * * was sentenced to exemption from punishment or suspended sentence, accounting for 69.7%, while the number of people who protested against duty crimes in the same period only accounted for 2.68% of the total number of people convicted of duty crimes. A big reason why procuratorial organs dare not protest is that they have no independent rights! Moreover, China's procuratorial organs have the right to arrest, that is, as long as the procuratorial organs think that the evidence is insufficient, they can not arrest. In this way, She Xianglin-style and Zhao Zuohai-style tragedies will not happen.