Tradition and Beyond - The Origin of China's Judicial Reform

Author: Fang Lixin
Publisher:
Publish Date: 2006-12-01
Features: This book is divided into three parts. Part 1: Traditional Judicial Analysis—Power and Culture. This part takes the traditional judiciary that began in the Qin and Han dynasties and lasted for thousands of years as its blueprint, comprehensively analyzing the characteristics and effectiveness of ancient Chinese judiciary from aspects such as the nature of judicial power, judicial subjects, and judicial purpose. It points out that the legal system dominated by criminal law comprehensively the characteristics and effectiveness of ancient Chinese judiciary, highlighting that the legal system centered on criminal trials and punishment was formed due to the dominance of criminal law; the knowledge system that did not distinguish between civil and criminal law, with a focus on criminal law studies, led to the narrow knowledge and skills of judges, coupled with the confined agrarian economy that hindered social division of labor and failed to stimulate the expansion of judicial functions, making traditional judiciary endure for a thousand years with little qualitative breakthrough; the trial philosophy focused on pleading guilty and emphasizing punishment improved criminal judicial skills, but ultimately led to a mire of autocratic monarchy due to the lack of rational guidance and professional support, resulting in a repetitive cycle. Part 2: The Transformation of Traditional Judicial—Transformation and Stagnation. In the century-long judicial transformation, this part selects the historical facts of institutional reforms with different natures and effects during the late Qing Dynasty, the Republic of China, and the People's Republic of China, focusing on analyzing their respective roles and connections in deconstructing traditional judiciary and giving birth to and shaping modern judiciary. It points out that the judicial reforms promoted by the late Qing Dynasty's brief and hasty legal reforms, aimed at saving the nation and self-preservation, passively and briefly, marked the beginning of the modern transformation of traditional judiciary, and its historical progressiveness should be affirmed. Part 3: The Path of Contemporary Chinese Judiciary—Guardianship and Transcendence. Today's judicial reforms in China should, on the basis of understanding the strengths and weaknesses of the past, carry forward the legacy and open up new horizons; they should be based on democratic politics, uphold the concept of a rule-of-law state, raise the banner of human rights protection, adhere to the path of professionalism, and practice the judicial philosophy of independence, fairness, rationality, and openness; they should address prominent issues in judicial practice, earnestly grasp the characteristics of the national conditions, and prioritize the prohibition of torture, ensuring fairness without bias, safeguarding rights and resolving disputes with emphasis on mediation, expanding the right to sue and enhancing constraints, and improving the three major litigation procedures as urgent tasks.