(Beida Legal Review (Vol. 6, Issue 1))

Author: Editorial Committee of This Book
Publisher:
Publishing Date: 2005-01-01
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. Since 1999, Peking University Law Review has held thematic discussions on "China's Adjudication Committee System" and "Law in Rural Chinese Society," focusing on issues within the Chinese judiciary. In the following years, the journal continued to publish articles on judicial matters. The emphasis on judicial issues is evident in other magazines and publications as well, indeed, because of the numerous shortcomings in China's judiciary and the extremely important role it plays 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 manuscripts 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 Adjudication in Practice (II) — The Operation of First Instance Civil Procedures in Five Intermediate People's 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" (Peking University Law Review, Volume 2, Issue 1) is the result of a thorough investigation into the civil and economic adjudication of grassroots courts, while this article shifts the focus to intermediate people's 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 adjudication methods. The article examines whether the procedural operations of the targeted court changed or how they changed before and after the implementation of these provisions on April 1, 2002.
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 relevant case studies, the author identifies the problems encountered by these systems in judicial practice. Subsequently, the author traces the theoretical origins of these two systems, proposing that "the neutrality and impartiality of adjudication" are both requirements and guarantees of fair trial, and the common foundation of both the "recusal" system and the "changes in jurisdiction" system. From the perspective of procedural justice, the author reexamines these two systems. Furthermore, the author proposes his own ideas for reforming and restructuring these systems from the aspects of "reconfiguring the rights of petition and adjudication" and "procedural sanctions," reflecting on the limits of system design.
Yi Yanyou served as the discussant for Professor Chen Ruihua at the May symposium, and his article, "The Legitimacy of Judicial Authority — 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 Status of Grassroots Legal Services in China — A Window Through Rural Grassroots Legal Service Offices," is an initial outcome of the project on "The Current Status and Development of Grassroots Legal Services in China." This report focuses on research in the "quasi-judicial" field. Through methods such as literature review, seminars, individual interviews, and field or participant observation, the author investigated the basic structures of grassroots legal service offices and judicial offices in three cities—ABC—across Hubei, Sichuan, and Shanxi provinces, examining their interactive relationships 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, such as this lower-tier service group, to exist at certain levels and within certain scopes is not only necessary and feasible in China today but may also be perpetually necessary 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 Regulating the Economy as an Example," points out that behind judicial reforms lies the reproduction of the judicial knowledge system. Therefore, the entire judicial system must change the phenomenon of judges monopolizing judicial knowledge production or judges and a few interest groups oligopolizing it. The knowledge the Supreme People's Court uses to address judicial issues is incomplete. The author identifies the influence on the Supreme People's Court's judicial knowledge from several aspects, including competitive strategic forces (information sources or perspective sources), experts (thinking), and the media (value judgments). The author also 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 academic symposium, as all the articles are related to the evolving judicial process in China. Justice Cardozo of the U.S. Supreme Court once the judicial process as "brewing a compound." Judges use the forces of "logic, history, custom, and utility" to realize the highest ideals of the judicial process, which is the creation of law by judges. The "judicial process" we refer to here is not entirely the same as the "judicial process" described by Cardozo. In China, judges implement the law and, to some extent, create it, while this process is also part of the realization of the law. Judges and courts, both proactive and passive, within the broader judicial process, under the constraints of norms, systems, ideals, reason, knowledge, and various intertwined social forces, will ultimately go where?