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Three Key Issues in the Reform of the Judicial System in China
发布时间:2003/12/27 16:42:00 作者:贺卫方 点击率[10298] 评论[0]

    【出处】賀衛方, Professor of law, and Director, The Center for Judicial Studies, Peking University Faculty of L

    【中文关键字】暂缺

    【学科类别】法理学

    【写作时间】2004年


    With the transformation of the whole society, an increasingly large-scale reform has also been carried out in the Chinese judicial system.1 However, today, more than 20 years after the beginning of the judicial reform, all those who have participated in or promoted the reform seem to have a feeling of helplessness: although new reform measures have been adopted one after another, their results are far from satisfactory. A cover story in onea recent issue of China Newsweek even used the titled “Chinese Judges Encounter Public Confidence Crisis.”2 Much evidence has shown that the judicial reform in China has not become an effective means of enhancing public confidence in courts and judges, as was expected by the decision-makers, but on the contrary, has aggravated the existing problems, even leading to new problems. Why this contradictory phenomenon? As a scholar who has continuously called for and actively participated in the relevant reforms during the past years, I will try to analyze the current difficulties faced by the Chinese court system in the process of reform.
      
      
      
      Judicial Reform as Part of Social Transformation
      
      
      As an ancient Roman saying goes, “where there is society, there is law.” However, the law, as part of society’s norms, is always closely linked to the history, the structure and the cultural tradition of a specific society. Building a western-style modern judicial system in China, which began in the late Qing DynaDynasty, has a history of only about 100 years while the China’s history of law and social control goes back at least 2000 years. This historical comparison indicates that modern court system is only a newborn baby in China and the construction of the new system is a very difficult and arduous task. Judicial reform involves not only the reform of the court or other judicial organs, but also the adjustment of society, the change of modes of ruling the country, and the transformation of social consciousness, even the transformation of people’s thinking mode.
      
      
      
      ForAn example,: in the western tradition, judicial independence is something self-evident; Montesquieu’s doctrine of separation of powers is a well-known social consensus. In China, however, the traditional mode of government is basically against the separation of powers. There had never been a specialized judicial organ independent of administrative organs. Officials handling cases did not have any legal training. It was not possible for them to give a detailed and balanced interpretation of the law, which was very crude in itself. The resulting trial mode was tantamount to what ]Max Weber described as “Khadi justice.”3 Therefore, China had neither a group of well-trained legal professionals nor a judicial procedure in which professional legal knowledge could be applied in dispute resolution. The centralized ruling tradition contributed to Chinese people’s lack of familiarity with judicial independence.
      
      
      
      In the process of building a modern state in the twentieth century, China established a modern state system by imitating those in the western countries. However, it was easier to change the surface structure of the system than to change the actual operational methods and processes. The new system introduced into China was distorted under the influence of the traditional forces. Take the judicial system as an example. Although China has established a court system independent of the administrative organs and clearly provided for the independence of the court in the Constitution, neither the international environment nor the internal political aims were conducive to fully implementing a constitutional system embodying the principle of judicial independence. More importantly, the social consciousness and the concrete knowledge supporting such independence have not been extensively established in Chinese society and the development of the legal profession and legal education have suffered many setbacks. All these have led to a situation in which the independence of the court exists only in name.4
      
      
      
      Such a sharp contrast between the system on the paper and its operation in practice is also the main obstacle faced by China today in the implementation of judicial reform. The independence of the court means, above all, independence in personnel and financial affairs. In practice, however, the court is controlled by the partyParty committee and the government at the same level in these important matters.5 Just imagine: if the court is not independent in matters of finance and the selectionappointment of judges, how can it be expected to be independent in judicial decision-making?6 If the law has promised judicial independence, the parties to the lawsuit naturally have reason to expect the court to turn this promise into reality in its judicial decision-making. However, due to the local control over judicial organs, in a case that involves parties from different localities but able to be tried only by the court of the locality of one of the parties, the local court is liable to unfairly favor the party from its own locality. This will inevitably increase public dissatisfaction with the judicial performancesystem. The best way to solve this problem is perhaps to set up a system of judicial jurisdictdivisions different from that of administrative jurisdictdivisions, thereby separating the judicial power from administrative and legislative power of the same level. This is the most basic guarantee of judicial independence.
      
      
      
      At the same time, we should also be aware that, although the general public are often the victims of the control of administration of justice by external power, the current legal and political culture is indeed permeated by an atmosphere not conducive to the establishment of the principle of judicial independence. The expression of “the number one person” often used in political discourse, the habitual thinking mode of serving the “central task,” and the preference of some intellectuals and the general public for social mobilization forces produced by the current politics are all factors that can inhibit the development of judicial independence. Moreover, with the establishment in China of the legitimacy of the market economy, and of the rule of law, courts play an increasingly important role in social life and relations and, as a result, have naturally become the foci of attention of the whole society. However, because of the apparent gap between the expectations of the society and the efforts made by the courts in abandoning long-standing malpractice and adapting themselves to the new social needs, the mass media are flooded with exposèeés of various kind of malpractice of the courts; “judicial corruption” has become a popular topic of street talk. Such a public opinion climate does not encourage people to pursue judicial independence, but rather leads to fear of this principle, and the call for strengthening the supervision and control over the judiciaryl organs. The result is an inevitable vicious cycle: the low quality of the judges has led to stricter control, rather than more independence, of the courts; stricter external and internal control has led to further loss of the already very weak sense of dignity and honor by judicial officials. How can you expect good behavior from someone who has lost theirhis or her sense of dignity? Hence, more corruption and miscarriage of justice by judicial officials. This, in turn, leads to even stricter supervision and control of the judiciaryl organs.
      
      
      
      How can we break this vicious cycle? Perhaps we are not in a position to find out a decisive breakthrough point. In my opinion, more extensive dissemination of the basic knowledge and ideas of modern administration of justice and modern government structure is indispensable in this respect. Meanwhile, it is also very important for the courts themselves to carry out more clear-cut and forceful reforms in the areas of selection and appointment of judges, the mode of exercising judicial power, the management of the court and the professional ethics of judicial personnel.
      
      
      
      Selection and Appointment of Judges
      
      
      Compared with other reforms, prominent achievement has been made in the reform of the system of selection and appointment of judges. Raising the standard for the selection and appointment of judges is also an issue on which it is easy to reach social consensus. Although people have different opinions on issues such as the mode of exercising judicial power and ways of achieving non-administrative management of the court, there is no major controversy over the demand that judges should possess high qualifications. This, of course, has its historical background. For the past 40 years beginning from the 1950s, there were no clear requirements as to the educational background and professional knowledge for the selection and appointment of judges. This resulted in general low levels of education and lack of professional knowledge among judicial officials.7 It was not until 1995 that the “Judges Law of the People’s Republic of China,” adopted by the Standing Committee of the National People’s Congress, clearly provided that judges must be graduates from colleges or universities. At that time, the so-called colleges and universities included colleges institutes for three years of professional training (three years). A few short years after promulgation of the lLaw, public dissatisfaction with and expectation of the judges had increased. Meanwhile, more and more people had realized that judicial fairness would be an empty word without a contingent of high quality judges. Especially, the increase of complexity of the cases handled by the courts required judges to have the ability to make reasonable judgement on complex social affairs. In view of the above facts, in June 2001 the Standing Committee of the National People’s Congress revised the Judges Law. The new lLlaw raised the minimum academic qualification of judges from a 3-year graduate from a vocational college, to a 4-year graduate from regular college or university. Article 9 (6) of the lLaw provides that a judge must possess the following academic qualifications: “to have engaged in the legal work for at least two years in the case of graduates of law major of colleges or universities or from non-law majors of colleges or universities but possessing the professional knowledge of law, and among whom those to assume the posts of judges of higher people’s courts and of the Supreme People’s Court shall have engaged in the legal work for at least three years; or to have engaged in the legal work for at least one year in the case of those who have Master’s Degree of Law or Doctor’s Degree of Law, or those who have Master’s Degree or Doctor’s Degree of non-law majors but possess the professional knowledge of law, and among whom those to assume the posts of judges of higher people’s courts or of the Supreme People’s Court shall have engaged in the legal work for at least two years.” However, the lLaw has left some space for adaptation under certain circumstances: “…...for the places where it is really difficult to gain academic qualification, after being examined and determined by the Supreme People’s Court, the academic qualification for judges may be eased for a specific period as three-year graduates of law major of colleges and universities.”
      
      
      
      My great concern is that such exceptions could become a common practice, or the legal requirements for judges may be laid aside and ignored in practice. The fact that the 1995 Judges Law has not been implemented in many local courts has proved that such worry is not unfounded.8 In fact, even today, people who do not possess judge’s qualifications can still be appointed as judges, even as presidents of courts. As a result, the professionalization of judges seems to be an endless process. What are the reasons behind this phenomenon?
      
      
      
      Here we can see once again that judicial reform should not be limited to the area of administration of justice. As has been mentioned before, under the current system, the power of appointment and removal of judicial personnel does not lie entirely in the hands of the court. By taking advantage of their power of arrangement of personnel in the court, local partyParty committees and governments can assign unqualified persons to judgeships against the will of the court. Meanwhile, the assignment of demobilized army officials to judgeships has even become a so-called “political task” that the court may not resist.9
      
      
      
      Another reform adopted during the revision of the Judges Law and Procurators Law, namely the establishment of a system of uniform barjudicial examination, may contribute to the improvement of the practice of selection and appointment of judges and procurators. According to the revised Judges Law, Prosecutors Law and Lawyers Law, only those who have passed the uniform bar judicial examination can enter the above three legal professions. This reform, if it can can be be truly implemented in practice, will certainly raise the threshold of the court. It will not only improve the quality of the three kinds of judicial personnel, but also contribute to the formation of a contingent of legal professionals and to the achievement of the uniformity of law through the administration of justice.
      
      
      
      The Court Management System
      
      
      Here, the court management system refers to the internal organizational structure of the court and the rationalization of its power, the safeguarding of the independent status of judges and the adjustment of relations between courts at different levels. The key issue of this system is the independence of the judge. In recently years, the Supreme People’s Court has carried out several reforms in that direction. For example, it abolished the Economic Adjudication Division, a division of the Court parallel to the Civil Adjudication Division, established a system for the selection and appointment of chief judges to give greater independence to judges with higher qualifications, and separated judges’ rank from that of court clerks. However, these reform measures have failed to touch upon some of the systems that are apparently administrative in nature, most prominently the system of adjudicatory committee, which have been implemented in China for a long period of time.
      
      
      
      The adjudicatory committee has played a positive role in the judicial process in the past. However, with the passage of time, its shortcomings become more and more apparent.10 The trial of cases by adjudicatory committee has violated the principle of open trial, damaged the effectiveness of the withdrawal system, and resulted in the low efficiency of the administration of justice. More importantly, it has led to a vicious cycle between stricter control over judges and lower quality of judges similar to the vicious cycle mentioned above: the low quality of the judges leads to stricter control by the adjudicatory committee over the results of the trial, which leads to the weakening of the power of judges, a sense of loss among judges and contempt toward judges shown by the parties and their lawyers, which lead to further self-abandonment and self-degradation on the part of the judges, which in turn leads to justification for even stricter control over judges.
      
      
      
      The same is true for the system of approval of judgements by the president of the court or by the headpresident of the adjudication division. Also in need ofreform is the complicated system of rank for judges provided for by the Judges Law. This system, which divides judges into 12 grades, has increased the hierarchical differences among judges and is not conducive to the cultivation of the sense of independence in judges. An atmosphere of pursuing fair administration of justice should be cultivated among the judges and a mechanism of combining responsibility with honor should be established so as to arouse judges’ passion and wisdom in the pursuite of justice, thereby turning the vicious cycle into a benign one.
      
      
      
      Conclusion
      
      
      If we look at the current judicial reform in China within a greater historical context, we will see that it is a huge undertaking that will ultimately push this ancient country out of the absurd historical cycle of peace and chaos. It is unrealistic to expect such a huge reform to be accomplished overnight and it is quite normal for China to encounter some confusions and difficulties in the process of reform and for the promoters of the reform to have some disagreements among themselves. The key issue is that, at a time when profound changes are taking place in the social, economic and political systems, the judiciaryl circles should make a correct assessment of the situation, adopt rational reform measures so that the court may, in the process of regulating social relations, rationally restrict the power of the government, make fair judgement on disputes, effectively protect human rights, and gradually increase people’s trust and reliance on judicial power. This is a great challenge as well as a great opportunity faced by lawyers in China.
      
      ¾--Translated by Bi Xiaoqing
       Revised by David Kelly

    【注释】
    1. Among English workmaterials on the judicial reform in China, the most authoritative and recent one is Stanley B. Lubman’s book titled Bird in a Cage: Legal Reform in China after Mao, especially Chapter 9 (“The Courts under Reform”), Stanford University Press, 1999. Cf. also Donald C. Clarke, “Dispute Resolution in China,” Journal of Chinese Law 5 (1991), pp. 245-296; Clarke “Power and Politics in Chinese Court System: The Enforcement of Civil Judgments,” in Columbia Journal of Asian Law 10, nNo. 1 (1996), pp. 1-92.
       

       
    2. The author of the article, Mr. Zhang Jingping, reported that during the “two-meeting period” (the period during which the National People’s Congress and the National People’s Political Consultative Conference were in session) in 2001, a survey conducted on the website (in which 504 persons had been interviewed) showed that judges werse the most unpopular among the 4 legal professions. According to this survey, the popularity rates of the 4 legal professions were: lawyers: 59.7%; prosecutors: 22.66%; policemen: 8.9%; judges: 8.7%. This result was supported by another survey conducted by the research firm, Horizon Research in the same year. The firm conducted a survey in which 5,673 randomly selected adult (over 18 years of age) urban citizens in 11 cities, including Beijing, Shanghai, Guangzhou and Wuhan, were interviewed. The result showed that over 40% of those interviewed had a negative general impression of judges and 40.7% had very negative impressions of judges, such as disorder, low quality, bending the law for personal gains, bureaucracticy, etc. See China Newsweek, no. 44, 2001, no. 44.
       

       
    3. Cf. Max Weber on Law in Economy and Society, ed. Max Rheinstein, Oxford U. P., 1954, pp.212-213.
       

       
    4. For analysis of the process of establishing an independent judicial system in modern Chinese history, see He Weifang, “Development of Judicial Independence in Modern Chinese History,” in Su Li and He Weifang, ed., China in the 20th Century: Academic Research and the Society (the volume on Law), Shandong People’s Publishing House, 2001, pp.172-213.
       

       
    5. For discussions on the lack of independence of courts due to their dependence on local partyParty committees and governments in matters of personnel and finance, see He Weifang, “The Realization of Social Justice through Judicature: A Look at the Current Situation of Chinese Judges,” in He Weifang, Judicial Idea and Judicial System, China University of Political Science and Law Press, 1998, pp. 1-84, esp. pp. 41-56.
       

       
    6. As Alexander Hamilton had once said, “InAs far as the general courseondition of human nature ins concerned, a powerthe control over a man’s means of subsistence amounts to a powermeans the control over his will. And we can never hope to see realized in practice the complete separation of judicial from the legislative power, in any system which leaves the former dependent for pecuniary resources on the occasional grants of the latter.Under any system that makes the financial resource of the judicial personnel dependent on the charity of the legislative organs, the separation of judicial power from the legislative power can never be realized.” In Papers of Tthe Federalists, no. 79, (emphasis by the original author).
       

       
    7. For the standard relating to the selection and appointment of judges in China, see Lubman, supra note 1, pp.at 251 ff.; He Weifang, supra note 5, at pp. 17-41.
       

       
    8. On January 2, 1998, I published an essay in the Southern Weekend Nanfang zhoumo titled “Demobilized Soldiers in the Courts,” which criticized the practice of assigning demobilized army officers with no legal training to work as judge in some courts. To my surprise, my essay had drawn strong criticisms from army newspapers. Some of the opinions expressed in and some of the problems exposed by this debate (for example, I had been unable to publish further arguments on this issue in theany newspaper afterwards) have shown that, to some people, the provisions of the Judges Law are only empty words on a sheet of paper and that the professionalization of judges is still a very difficult task in China. The debate had also drawn some international attention. Cf. Elisabeth Rosenthal (a journalist for New York Time) , “On Chinese TV, Muckrakers Get A Free Hand, Up to a Point,” in International Harold Tribune (July 3, 1998): “Some less prominent programs and certain publications with looser government ties, like Southern Weekend and Beijing Youth Daily, have pushed the boundaries of discourse a bit farther. But there are always limits. When a legal affairs columnist for Southern Weekend recently criticized the common practice of awarding judgeships to retiring army officers, for example, his weekly column disappeared for two weeks). In a cover story of Far East Economic Review (August 20 1998), columnist Frank Ching mentioned that retired army officers still made up a large percentage of the judges in the courts at the grass-roots level and few people dared to raise this sensitive issue. However—“He Weifang, a law professor at Peking University, was one of the courageous few. In a January 2 article in Southern Weekend, a Guangzhou-based newspaper,. He asked whether it was appropriate for military men with no legal training to be assigned to work as judges. Would anyone, he asked, assign military men with no medical training to work as doctors? The People’s Liberation Army published a rejoinder in China Defense News. Why can’t retired army men join the law courts, it asked, pointing to the military’s contributions to the country. Under heavy pressure from the PLA., Southern Weekend published an apology, declaring that ‘“the People’s Liberation Army (including demobilized soldiers at every historical juncture) has made major contributions at each stage of socialist construction’.” (p.14).
       

       
    9. During an investigation of several intermediate and higher people’s courts, I found out that even after the revision of the Judges Law in 2001, demobilized army officials without university-level education can still be assigned to the judge’s post in the court.
       

       
    10.] Scholars have different opinions as to the advantages and disadvantages as well as the fate of the adjudicatory committee. Professor Su Li believes that, in view of the current conditions in China, especially in grass-roots level courts, adjudicatory committee has its contextual reasonableness. Cf. Su Li, Sending the Law to Countryside, China University of Political Science and Law Ppress, 2000, p.88 ff. For the opposite opinion, see He Weifang, “Commentaries on the System of Adjudicatory Committee,” in supra note 5, at pp. 139-151.

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