Tradition and Beyond

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 limited 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 without significant breakthroughs; the trial philosophy centered on pleading guilty and punishing as the priority, although it improved criminal judicial skills, ultimately fell into the quagmire of autocratic monarchy due to the lack of rational guidance and professional support, leading to a repetitive cycle. Part 2: The Transformation of Traditional Judicial—Transformation and Hesitation. This part selects the historical facts of institutional reforms with different natures and effects from the late Qing Dynasty, the Republic of China, and the People's Republic of China over a century of judicial transformation, 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 during the brief and rushed late Qing legal reforms, aimed at saving the nation and self-preservation, initiated the modern transformation of traditional judiciary, and its historical progressiveness should be affirmed. Part 3: The Path of Contemporary Chinese Judiciary—Guarding and Transcending. 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, avoiding wrongful convictions and leniency, upholding rights and resolving disputes, expanding the right to sue and enhancing constraints, and improving the three major litigation procedures as urgent tasks.