Reflection and Reconstruction

Author: Yao Li
Publisher:
Publish Date: 2005-03-01
Features: Rule of law, building a socialist rule-of-law state, is a fundamental governance strategy established by the Constitution of our country. The 16th National Congress further proposed judicial system reform in line with the requirements of fair adjudication and strict enforcement to ensure fairness and justice throughout society. Against this backdrop, the Chinese legal academia and judicial practice have devoted great enthusiasm and concern to judicial system reform, with the reform of judicial organizations becoming the focal point of this historical attention: whether as a unified judicial organization of the court or as specific adjudicating bodies such as solo judges, collegiate panels, and the adjudication committee, their institutional construction has become a fundamental issue in judicial system reform. The success or failure of these reforms directly relates to the realization of the rule-of-law concept. In China's legal context, a narrow definition of judicial organizations refers to the specific organizational forms for courts to adjudicate cases, including solo judges, collegiate panels, and the adjudication committee; while a broad definition refers to the court as a whole. This paper's research takes the broad concept of judicial organizations as its starting point and explores the reconstruction of judicial organizations against the backdrop of judicial system reform. Therefore, it must consider the position of the court as a complete judicial organization system within the national power structure, the reform of the court's system, institutional improvement, and structural construction, as well as the reform and improvement of the systems of solo judges, collegiate panels, and the adjudication committee within the court, and the coordinated operation mechanisms of the court's internal operations. In terms of research methodology, this paper focuses on exploring the intrinsic connection between the value concepts of modern judicial systems and the construction of judicial organizations, and uses this as the foundation for constructing China's judicial organization system. The independence of judicial power is the basic starting point for constructing modern judicial organizations. In the political structure of modern rule-of-law states, the core of judicial independence is the separation of judicial power from legislative and executive powers. Its value significance includes two aspects: first, it curbs the expansion of state power and protects the interests of the people; second, an independent judicial power, separate from executive power, helps alleviate the tension between the state and citizens due to the state's exercise of administrative power in the form of commands. In fact, whether curbing the expansion of state power or alleviating the conflict between the state and citizens, the value significance of judicial independence can be attributed to one point: ensuring citizens' rights. Therefore, the independence of judicial power is an essential feature of the institutional structure of modern rule-of-law states, and without judicial independence, democratic institutions would cease to exist. In China, although the concept of national power structure does not include the principle of separation of powers, but rather implements the system of "deliberation and implementation by the same body," both the Constitution of China and the Organization Law of the People's Courts have affirmed the principle of the court exercising judicial power independently according to law. In this sense, China's people's congress system has already made significant institutional arrangements for judicial independence. The key issue is whether appropriate arrangements can be made within the specific national system to realize the principle of judicial independence. Given the current situation in China, constructing a judicial organization system under the concept of judicial independence requires solving two aspects of issues: first, completely separating national judicial power from executive power and entrusting it to the court to exercise uniformly; second, allowing the court to break free from the influence of the organizational model of executive power in both its external and internal structures, forming its own independent organizational form. Ensuring judicial fairness is a significant value goal pursued by modern judicial organizations, and the core of judicial fairness is the realization of social justice. Based on the concept of realizing judicial fairness, the construction of judicial organizations should focus on promoting the realization of judicial independence. Therefore, different levels of courts should maintain sufficient independence, and the institutional structure within the court should take as its basic value orientation the guarantee of judges' equal and independent exercise of judgment power. By reforming the adjudication committee system, adjusting the relationship between adjudicating divisions, solo judges, collegiate panels, and judges, true judicial independence can be achieved, thereby reaching the goal of realizing judicial fairness. Judicial efficiency is another important value goal pursued in the construction of modern judicial organizations. As the constructor of judicial systems, the state provides society with a means of resolving disputes by constructing a judicial organization system and, through the construction of procedural rules, ensures that the judicial dispute resolution mechanism operates in practice. All of this requires the investment of resources, forming the cost of the state in constructing judicial systems. On the other hand, through the operation of judicial systems, disputes are resolved, the state realizes the fairness and justice it advocates, and achieves a good social order, ensuring the smooth progress of its political and economic lives, thereby also gaining benefits. However, the judicial system only provides a framework for protecting citizens' rights, and the resolution of disputes still requires the actual participation of the conflicting parties, and the resources invested due to their participation constitute the cost of citizens' participation in judicial procedures. Through judicial procedures, disputes are resolved, citizens' rights are protected, and their losses are compensated, which is the benefit they gain from the operation of the judicial system. Judicial efficiency from the state's perspective constitutes the social efficiency of the judiciary, while judicial efficiency from the perspective of individual citizens is reflected in the individual efficiency of the judiciary. In the judicial organization structure, both social and individual judicial efficiencies mutually restrict and promote each other, forming an organic whole. Under the basic concepts of judicial independence, judicial fairness, and judicial efficiency, the choice of a country's litigation structure model also affects the construction of judicial organizations. Since the mid-1990s, China's litigation system has undergone significant changes, but from its basic value orientation, it still retains strong characteristics of a functionalist model. This reality must be taken into account when constructing China's judicial organizations. In addition, the construction of judicial organizations is also related to the social functions they undertake. In modern society, judicial organizations undertake the functions of resolving disputes, allocating power, and maintaining legal uniformity. Resolving social disputes through the means of public remedy and maintaining legal order is the function of resolving disputes by the court; reflecting the social allocation of power through the diversity and multi-level nature of judgment power is the social function of power allocation by the court. Its diversity makes the court's judgment not only refer to disputes between citizens but also form a constraint on state executive power through the judgment of disputes between the state and citizens. Its multi-level nature makes the allocation of power between the central government and local governments possible; through judicial adjudication activities, interpreting and applying law, and maintaining the consistency of judgments to reflect the unity of law, this is the function of maintaining legal uniformity by the court. The construction of judicial organizations aims directly at the full realization of their social functions. Based on the discussion of the above value concepts and their relationship with the construction of judicial organizations, and drawing on the construction experience of judicial organizations in foreign countries, the author proposes a plan for reconstructing China's judicial organization system. In terms of the external structure of judicial organizations, the issue of court setup is at the core. The primary principle for setting up trial courts is to improve judicial efficiency. This requires the setup of trial courts to be able to facilitate litigation by citizens at the grassroots level and to achieve a balance between the number of appeals accepted by higher-level courts and the convenience of parties in litigation. At the same time, it must also be conducive to the full development of litigation procedures. In terms of the setup of appellate courts and higher-level courts, the realization of judicial fairness and uniformity is of greater significance. Based on these factors, the author believes that it is generally possible to set up courts according to county and district administrative divisions, with appropriate adjustments: larger counties can have two courts, and smaller urban districts can have one court for two districts; it is generally possible to set up regional courts according to prefecture-level city administrative divisions; to set up appellate courts according to provincial administrative divisions; to set up circuit courts of appellate courts within regional courts as non-permanent judicial organizations, regularly hearing appeals and appeals from trial courts; and to set up the Supreme Court at the central level and to set up circuit courts of the Supreme Court within appellate courts, also as non-permanent judicial organizations, regularly hearing appeals and appeals from trial courts or appellate courts. In terms of the division of labor among different levels of courts, that is, the appellate system, trial courts are for applying procedures and special procedures to adjudicate cases; regional courts are for applying ordinary procedures to adjudicate cases; appellate courts are for appellate review; and the Supreme Court mainly realizes the function of maintaining legal uniformity by selectively handling some legal appellate cases and special appellate cases. The reform of the internal structure of judicial organizations involves the construction of judicial organizations such as the adjudication committee, collegiate panels, and solo judges, as well as the reform of related issues such as court management systems and the coordinated operation mechanisms between different parts of the court. The direction of reform of the adjudication committee should be to make it a large court that adjudicates cases according to ordinary procedures, by adjudicating major, difficult, and complex cases, to play its role in having higher judicial capacity and authority; to abolish the administrative level system of courts, abolish the position of court presidents and replace it with the system of chief justices, abolish the positions of division heads of adjudicating divisions and replace them with the systems of "criminal chief judges," "civil chief judges," and "administrative chief judges" respectively, to strengthen the judicial power and function of collegiate panels. In addition, in terms of the setup of other institutions within the court, given that courts as judicial adjudicating bodies do not have the conditions and means necessary for executing judicial judgments, and also to improve the fairness, efficiency, and authority of the judiciary, the execution department of the court should be abolished, and the execution power should be transferred to the judicial administrative department. In the court, a court affairs management bureau should be set up to manage administrative affairs, with business matters under the management and supervision of various levels of judicial administrative departments. The jury system, as a special judicial organization structure, is a procedural arrangement that helps to achieve the legitimacy of adjudication. On one hand, it is set as a means of litigation relief enjoyed by parties based on their citizens' rights; on the other hand, it also constitutes a means of judging the standards of litigation evidence in the course of litigation, and thus has important procedural value. Achieving the value goals of the jury system requires a series of procedural and extra-procedural conditions. According to the characteristics and development trends of China's litigation procedures, the rational choice for reconstructing the jury system should first be to grant parties the right to choose the application of the jury system, improve relevant systems regarding the qualifications, methods of selection, and scope of application of jurors, and on this basis, gradually enhance the role of jurors in the joint deliberation system, and then, when conditions are ripe, implement a limited jury system. Judges are the basic elements of judicial organizations and bear the important mission of realizing judicial fairness, making the judge system the foundation of the construction of judicial organizations. Although the judge systems of the two legal systems have different characteristics, they all regard systems related to the status, qualifications, selection, promotion, and professional guarantees of judges as the main content of the judge system. Since 1949, the development of China's judge system has gone through three stages, and overall, it has basically been able to adapt to the needs of judicial work, but the quality of judges and the issue of judicial independence are still the basic issues restricting the construction of China's judge system. At the current stage, reconstructing China's judge system involves establishing a sound system of judge selection, salary and treatment systems, and a system of functional classification of judges, and on this basis, expanding the independence and authority of judges in adjudication, while establishing a self-discipline mechanism for judges to improve the assessment and impeachment systems of judges, thereby providing a prerequisite and foundation for the overall construction of judicial organizations. The internal structure of the court includes three functional systems: adjudication, judicial assistance, and administrative management. Among them, the judicial assistance system includes departments that provide procedural assistance directly to judicial organizations, while the administrative management system provides logistical services. Although the adjudication system is at the center of the internal structure of the court, the performance of the court's adjudicative functions is the result of the overall operation of all its internal systems. Therefore, the three systems should have inherent integration. The goal of reconstructing the operation mechanism of the court is to maintain good operation of each system within the court through the separation of organization and function, and to achieve full integration between the systems through coordination, thereby maximizing the overall adjudicative function of the court. Promoting the transformation of China's judicial organization system from a traditional to a modern type is the ultimate goal of the reform of judicial organizations, and this goal must be achieved through an overall and comprehensive reform. China faces very special difficulties in establishing a reasonable judicial system, let alone the entire legal system. This difficulty is not entirely in establishing a set of so-called "modern" systems through legislation, but also in whether the specific, even quite detailed, small systems attached to the large system can also be established, and whether the concepts of the people operating this large system and small system are adapted to the requirements of the system and the system. Therefore, the reform of China's judicial organization system also requires the efforts of theory and practice from all sides. However, under the theme of fairness and efficiency of this era, China's judicial organization system will certainly complete its historic transformation.