Northwestern University Law Review (Volume 6, Issue 1)

Author: Editorial Committee of "Peking University Law Review"
Publisher:
Publish Date: 2005-03-01
Features: China, whether as a nation or as a society, is undergoing tremendous transformation. Only by understanding the judicial process within this macro background can we gain a profound insight into the current state of the judiciary and its future trends, thereby formulating recommendations that truly align with China's national conditions and meet the needs of its people. "Peking University Law Review" has long been concerned with issues in China's judiciary. Since 1999, it has held thematic discussions on topics such as "China's Trial Committee System" and "Law in Rural Chinese Society." In the following years, it continued to publish articles on judicial issues. The emphasis on judicial matters is also evident in other magazines and publications, which indeed reflects the numerous shortcomings in China's judiciary and the extremely important role of the judiciary in the country's rule of law. This thematic discussion once again focuses on this issue. The articles in this issue primarily consist of partial completed works and commissioned contributions from the academic symposium on "The Judicial Process in a Transforming Society," organized by "Peking University Law Review" on May 15, 2004.
The article by Wang Yaxin is titled "Civil Trials in Practice (II) — The Operation of First Instance Civil Procedures in Five Intermediate Courts." Professor Wang Yaxin has always emphasized the investigation of social life behind the law. The article "Around the Acquisition and Allocation of Judicial Resources" in the thematic discussion "Law in Rural Chinese Society" (Volume 1, Issue 1 of "Peking University Law Review") is the result of a thorough study of civil and economic trials in grassroots courts, while this article shifts the focus to intermediate courts. The "Supreme People's Court's Provisions on Several Issues Concerning Civil Procedure Evidence" is regarded as a culmination of the experience in reforming trial methods. The article examines whether the procedural operations of the targeted court changed before and after its implementation on April 1, 2002, and the nature of those changes.
Chen Ruihua's article, "An Impartial Adjudicator — A Study on Recusal and Changes in Jurisdiction," explores the two systems of "recusal" and "changes in jurisdiction" in criminal procedure. Using logical reasoning and case studies, the author identifies the problems encountered in the judicial practice of these systems. Subsequently, the author traces the theoretical origins of these systems, arguing that "the neutrality and impartiality of adjudication" are both requirements and guarantees of fair trial and the common foundation of both "recusal" and "changes in jurisdiction" systems. From the perspective of procedural justice, the author redefines these systems. Furthermore, the author proposes his own ideas for reforming and restructuring these systems, focusing on "the reconfiguration of procedural rights and adjudicative power" and "procedural sanctions," while reflecting on the limitations of system design.
Yi Yanyou served as the discussant for Professor Chen Ruihua at the May symposium. His article, "The Legitimacy of Judicial Power — Examining the Flaws of Criminal Procedure from the Perspective of Recusal," is a commentary and extension of Professor Chen's work. Fu Yulin's article, "Preliminary Investigation Report on the Current State of Grassroots Legal Services in China — A Window Through Rural Grassroots Legal Service Offices," is an initial outcome of the "Current and Development of Grassroots Legal Services in China" project. This report delves into the field of "quasi-judicial" research. Through methods such as literature review, seminars, individual interviews, and field or participant observation, the author investigates the basic structures of grassroots legal service offices and judicial offices in three cities—ABC—across Hubei, Sichuan, and Shanxi provinces. The study examines their interactions with the broader judicial context, including judicial offices, mediation committees, legal aid centers, and law firms. The preliminary findings suggest that allowing grassroots legal workers, a lower-tier service group, to operate at certain levels and within specific scopes is not only necessary and feasible in China's current situation but may also remain essential in a large country like China.
Hou Meng's article, "The Reproduction of the Supreme People's Court's Judicial Knowledge System — Taking the Supreme People's Court's Judicial Process in Economic Regulation as an Example," points out that behind judicial reforms lies the reproduction of the judicial knowledge system. Therefore, the entire judicial system must address the phenomenon of judges monopolizing judicial knowledge production or engaging in a cartel-like dominance with a few interest groups. The knowledge of the Supreme People's Court in handling judicial issues is incomplete. The author identifies the influence on the Supreme People's Court's judicial knowledge from various sources, including competitive strategic forces (information or perspective sources), experts (thinking), and the media (value judgments). The author argues that the judicial market should be open to everyone and that the Supreme People's Court should establish its own judicial knowledge tradition.
This issue's thematic discussion follows the title of the May symposium, as all the articles are related to the evolving judicial process in China. Justice Holmes of the U.S. Supreme Court once the judicial process as "brewing a compound," where judges use the forces of "logic, history, custom, and utility" to realize the highest ideals of the judicial process—judges creating law. The "judicial process" we refer to here is not entirely the same as the one described by Holmes. In China, judges implement the law while also creating it, and this process is part of the law's realization. Judges and courts, both active and passive, within the broader judicial process, under the constraints of norms, systems, ideals, rationality, knowledge, and various intertwined social forces, will ultimately go where?