Northwestern University Law Review: Volume 6, Issue 1

Author: Editorial Committee of "Peking University Law Review"
Publisher:
Publishing Date: 2005-01-01
Features: China, whether as a nation or as a society, is undergoing tremendous transformation. Only by understanding and recognizing the judicial process within this macro background can we gain a profound insight into the current state of the judiciary and its future development 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. As early as 1999, it organized thematic discussions on "China's Adjudication Committee System" and "Law in Rural Chinese Society." In the following years, it continued to publish articles on judicial issues. The emphasis on judicial issues is also evident in other magazines and publications. This is indeed because there are numerous shortcomings in China's judiciary, and the judiciary holds an extremely important position in China's rule of law. This thematic discussion once again focuses on this issue. The main articles in this issue are selected from the completed and commissioned papers presented at the academic symposium "The Judicial Process in a Transforming Society," organized by "Peking University Law Review" on May 15, 2004.
The first article is Wang Yaxin's "Civil Adjudication in Practice (II) — The Operation of Civil First-Instance Procedures in Five Intermediate Courts." Professor Wang Yaxin has always emphasized the investigation of social life behind the law. In the thematic discussion "Law in Rural Chinese Society" (Volume 2, Issue 1 of "Peking University Law Review"), his article "Around the Acquisition and Allocation of Adjudication Resources" is the result of a thorough investigation into civil and economic adjudication at grassroots courts. This paper shifts the focus to intermediate courts. The "Provisions of the Supreme People's Court on Civil Procedure Evidence" are regarded as a culmination of experience in the reform of adjudication methods. The article focuses on whether the procedural operation of the target courts changed before and after the implementation of these provisions on April 1, 2002.
Chen Ruohua's "An Impartial Adjudicator — A Study on Recusal and Changes in Jurisdiction" examines the two systems of "recusal" and "changes in jurisdiction" in criminal procedure. Using logical reasoning and case studies, the author highlights the problems encountered by these systems in judicial practice. Subsequently, the author explores the theoretical origins of these systems, proposing that "the neutrality and impartiality of adjudication" are requirements and guarantees of fair trial and the common foundation of both the "recusal" and "changes in jurisdiction" systems. From the perspective of procedural justice, the author redefines these two systems. Finally, the author proposes his own ideas for reforming and restructuring these systems from the aspects of "reconfiguring the right to sue and the right to adjudicate" and "procedural sanctions," while reflecting on the limitations of system design.
Yi Yanyou served as the discussant for Professor Chen Ruohua 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 Status of Grassroots Legal Services in China — A Window Through Rural Grassroots Legal Service Offices" is an initial outcome of the "Current Status and Development of Grassroots Legal Services in China" project. This report focuses on the field of "quasi-judicial" research. Through literature surveys, seminars, individual interviews, and field or participatory observations, the author investigates the basic structures of grassroots legal service offices and judicial offices in three cities (A, B, and C) in Hubei, Sichuan, and Shanxi provinces. The author also examines their interactive relationships with judicial offices, mediation committees, legal aid centers, and law firms, among other elements of the broader judicial context. The preliminary research conclusion is that allowing grassroots legal workers, as a lower-tier service group, to exist at certain levels and within certain scopes is not only necessary and feasible in China at present but may also be 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 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 judicial knowledge production. The knowledge the Supreme People's Court uses to address judicial issues is incomplete. The author highlights the influence on the Supreme People's Court's judicial knowledge from competitive game 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 thematic discussion follows the title of the May academic symposium because all the articles are related to the transforming judicial process in China. Justice Cardozo of the U.S. Supreme Court compared the judicial process to "brewing a compound," where judges use the power of "logic, history, custom, and utility" to achieve the highest ideals of the judicial process—judges creating law. 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, and 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, rationality, knowledge, and various intertwined social forces, will go where?
China, whether as a nation or as a society, is undergoing tremendous transformation. Only by understanding and recognizing the judicial process within this macro background can we gain a profound insight into the current state of the judiciary and its future development 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. As early as 1999, it organized thematic discussions on "China's Adjudication Committee System" and "Law in Rural Chinese Society." In the following years, it continued to publish articles on judicial issues. The emphasis on judicial issues is also evident in other magazines and publications. This is indeed because there are numerous shortcomings in China's judiciary, and the judiciary holds an extremely important position in China's rule of law. This thematic discussion once again focuses on this issue. The main articles in this issue are selected from the completed and commissioned papers presented at the academic symposium "The Judicial Process in a Transforming Society," organized by "Peking University Law Review" on May 15, 2004.