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Deepen Reform of the Judicial System

Submit Time:24-12-2013 | Zoom In | Zoom Out

Author:Meng Jianzhu | Source:People’s Daily, November 25, 2013, p. 6

Abstract:

  The political report of the Eighteenth National Party Congress (the Report) states we need to “further deepen reform of the judicial system, adhere to and improve the socialist judicial system with Chinese characteristics, and ensure that judicial and procuratorial bodies exercise their respective powers independently, impartially and in accordance with the law.” This is an important strategic arrangement our Party has made from the vantage point of developing socialist democracy and more quickly building a law-based socialist country. The Decision of the CPC Central Committee on Some Important Issues concerning Comprehensively Deepening Reform (the Decision) passed at the Third Plenary Session of the Eighteenth National Party Congress further clarified the basic requirements for deepening reform of the judicial system. Thoroughly understanding and conscientiously implementing the guiding principles of the Report and the Decision is of great significance for building a law-based socialist country, finishing building a moderately prosperous society in all respects, comprehensively deepening reform and opening up, and achieving the great rejuvenation of the Chinese nation.

  I. Thoroughly Understanding Great Importance of Deepening Reform of the Judicial System

  Our country’s socialist judicial system is an important component of the socialist system with Chinese characteristics and is the judicial guarantee of the cause of socialism with Chinese characteristics. Our judicial bodies have the sacred mission of consolidating the position of the Communist Party of China (CPC) as China’s ruling party, preserving the country’s long-term stability, ensuring that the people live and work in contentment, and serving economic and social development. At present, our country is in a crucial stage of rapid economic and social development, all kinds of contradictions and problems are emerging, we face both opportunities and challenges, and the position, role and influence of judicial work are more prominent in state and social affairs than ever before. Further deepening reform of the judicial system and building an impartial, highly effective, authoritative socialist judicial system is of enormous importance.

  1. Deepening reform of the judicial system is the key step in comprehensively advancing governance in accordance with the law and more quickly building a socialist law-based country.

  The Report stresses, “The rule of law is the basis of governing a country. We need to promote scientific legislation, strict law enforcement, impartial judicial practice and universal respect for the law. We must uphold the principle that everyone is equal before the law, ensure that laws are obeyed, enforce the law strictly and punish those who break the law.” At present, our country’s socialist system of laws has already basically taken shape, and the main problems facing the establishment of the rule of law in our country are: we have not fully implemented the principle that laws must be obeyed, they must be strictly enforced and violators of the law must be punished; the law lacks the authority it needs; and laws are not sufficiently respected or effectively enforced. Therefore, ensuring that the Constitution and laws have unified, correct and strict implementation has already become the key to comprehensively implementing the basic strategy of governing the country by the law. Establishing an impartial, highly effective, authoritative socialist judicial system is for now and the foreseeable future the focus of improving the rule of law. The Decision further states that deepening reform of the judicial system is an important aspect of strengthening the rule of law. Judicial bodies are a special force for enforcing the law. They should not only exercise their powers strictly within their statutory authority and in accordance with procedures and ensure judicial justice, but also carry out oversight to ensure administrative bodies exercise their powers in accordance with the law and citizens act in accordance with it and to promote law-based administration and universal observance of the law. Building an impartial, highly effective, authoritative socialist judicial system is both an important aspect of promoting the rule of law and also an important guarantee for building a socialist law-based country. Only by deepening reform of the judicial system, ensuring that judicial and procuratorial bodies independently and impartially exercise their respective powers in accordance with the law can we ensure that a legal order prevails throughout the whole of society under which powers are linked with responsibilities, the exercise of power is subject to oversight, violations of the law are punished and compensation must be paid for infringing on others’ rights, and that the unity, dignity and authority of the law are genuinely safeguarded.

  2. Deepening reform of the judicial system is a necessary requirement for achieving social fairness and justice and preserving social harmony and stability.

  Fairness and justice are the lifeblood of judicial work and the foundation stone of social harmony and stability. It is possible to ensure long-term stability and harmony only by preserving social fairness and justice. At present, our country’s overall social situation is stable. At the same time, we must realize that our country is in a unique historical period of social transformation. In the short run it will be difficult to eliminate the frequent occurrence of social conflicts, there are many factors that affect social harmony and stability, and it is urgently necessary to use judicial powers to provide relief and settle conflicts. For many years, judicial bodies have made important contributions to safeguarding social stability, resolving social conflicts, and promoting social fairness and justice, and have won the approval of the people for doing so. However, we must also realize that the problems of the law not being applied strictly, not being standardized and not being impartial still exist, people sometimes receive favorable treatment in the courts because of their contacts, personal relations with judges or the use of bribes, all of which has a very bad effect and damages the authority of the law. We must intensify reforms of the judicial system, expand the depth of reform of the judicial system, constantly raise judicial credibility, get the people to feel that justice will be served in every case before the courts, and make the judiciary the last line of defense safeguarding social fairness and justice.

  3. Deepening reform of the judicial system is an urgent necessity for satisfying the people’s ever-increasing demands on the judiciary and safeguarding the people’s fundamental interests.

  Achieving, safeguarding and developing the fundamental interests of the vast majority of the people is the basic starting point and end point of judicial work. This is determined by the fundamental purpose of our Party and the socialist nature of our country’s political regime. As the building of our country’s democracy and the legal system progresses, citizens’ understanding of democracy and their rights constantly deepens, and it is becoming common for parties to a dispute to resort to the law and discuss the legalities of their case, with the result that large numbers of disputes enter the judicial arena in the form of lawsuits, and legal means have become the principal means of adjusting social relations. Three kinds of problems the people are very concerned about—protecting their rights and interests, public security and justice—are all intimately related to the administration of justice. The public’s demands concerning judicial work are constantly rising, and they demand not only that social stability be preserved but also that human rights be respected and protected, demand not only substantive justice but also procedural fairness, and demand not only the right to know and voice an opinion but also the right to participate and oversee. The conflict between the people’s ever-growing demands on the judiciary and its ability to deliver has already become very acute, and how to correctly resolve it is a test of our Party’s ability to govern. We must have a sense of responsibility and urgency that we are in a race against time, pick up the pace of judicial reform, make judicial processes more open, promote judicial democracy, improve the judicial system for protecting human rights, and effectively satisfy the people’s demands on the judiciary and their expectations for social fairness and justice.

  II. Correctly Grasping the Main Tasks in Deepening Reform of the Judicial System

  Reform of the judicial system is a long and difficult task. Since the advent of reform and opening up and especially since the Sixteenth National Party Congress, our country has steadily carried out reform of the judicial system and work mechanisms, and has achieved important results by stages and accumulated valuable experience. However, compared with our country’s economic and social development, the progress of democracy and the rule of law and people’s demands on the judiciary, there are still a number of aspects of our country’s judicial system that are ill-suited or badly coordinated. We must further deepen reform of the judicial system, eliminate obstacles in institutions, mechanisms and guarantees that affect judicial justice and constrain judicial capacity. We need to be rooted in the present but look to the future, constantly improve and develop the socialist legal system with Chinese characteristics and make full use of the strengths of our socialist judicial system.

  1. Ensuring that the people’s courts and people’s procuratorates exercise their respective powers independently and impartially.

  The Constitution explicitly prescribes that people’s courts and people’s pocuratorates exercise their respective powers independently and impartially, and this is the key to ensuring that state law is uniformly and correctly administered. In recent years, a common complaint has been that the personnel and financial resources of judicial bodies are under the control of local governments and local protectionist interests readily influence judicial activities, which adversely affects the unity of the legal system and damages judicial authority. For this reason, the Decision specifically states that it is necessary to ensure that judicial and procuratorial bodies independently and impartially exercise their respective powers. This can be done principally in two ways.

  First, the personnel and financial resources of courts and procuratorates at and below the provincial level should be placed under unified management. Our country has a unitary system of government and judicial powers that derive from the powers of the central government. In light of our country’s basic national condition that it will for a long time remain in the primary stage of socialism, placing the personnel and financial resources of judicial bodies completely under unified central management will be difficult. The judicial management system should be reformed step by step, first placing the personnel and financial resources of people’s courts and procuratorates below the provincial level under unified provincial-level management. The operating expenses of local people’s courts and procuratorates and special courts and procuratorates at all levels should be provided for uniformly by governments at the provincial level, with the central government providing part of the funds.

  Second, exploration should be carried out on drawing up judicial jurisdictions that differ to an appropriate degree from government administrative districts. A judicial jurisdiction includes the area of jurisdiction of the judicial body and the area from which cases can be brought to court. The lines of jurisdiction of judicial bodies are drawn up following the lines of administrative distircts, but this overlap of jurisdictions makes it easy for local protectionism to interfere in judicial cases. In addition, development between China’s regions is unequal and this has the consequence that there is a large disparity between the workloads of different judicial bodies and the judicial resources of some areas are underutilized. We should start with the framework of the current Constitution and explore how we can draw up judicial districts that differ to an appropriate degree from government administrative districts. Trials of administrative cases, regional civil or commercial cases and environmental protection cases should be tried in high-level jurisdictions or centralized jurisdictions.

  2. Establishing a judicial personnel management system suitable to the profession

  Our country recruits, selects, trains and appoints judicial personnel using civil-service personnel methods used throughout the government. Eighty percent of cases are heard in lower courts, 80% of judicial personnel work in lower courts, and the judicial workforce is large. As a result, there are many employees at the level of lower courts, but few positions for them to be promoted into. The professional level of lower-court judges, procurators and people’s police is low, they are low paid, and they have poor prospects for advancement, all of which makes it difficult to raise their overall professional level and ensure the quality of their handling of cases. For this reason, the Decision sets forth the requirement of establishing a judicial personnel management system suited to the characteristics of the profession. There are four main proposed reform measures:

  First, we need to carry out reform to implement the system of classified management of judicial personnel. We need to give prominence to the dominant position of judges and procurators in the handling of cases, and improve the ranking of professional positions (or job titles) of judges and procurators that different from those of civil servants. We need to improve the ranking of police positions and of police and technical positions in law enforcement agencies and the system for managing judicial support staff such as clerks and professional and technical personnel. We also need to draw up supporting measures such as the proportion of judicial support staff of each type in order to further professionalize judicial personnel.

  Second, we need to improve the system of hiring and assigning judges, procurators and people’s police. We need to establish a system of unified recruiting, centralized training, assignment to lower-level bodies, orderly transfer to new positions and stepwise promotion for new judges, procurators and people’s police. We also need to set up a training system for preparatory judges and procurators, and make completing the professional training of preparatory judges and procurators and passing the assessment test the legal requirement for becoming judges and procurators. We need to set up systems and mechanisms for selecting lawyers and legal scholars to be judges and procurators. We need to specify different professional qualifications for judges and procurators in courts and procuratorates at different levels, and implement a system of stepwise promotion of judges and procurators. We need to further improve the system of selecting and training people’s police and increase the proportion of graduates of police academies in the police force.

  Third, we need to improve the system of appointing and removing judges and procurators and disciplining them. We need to set up scientific, proper, objective and fair systems for evaluating their performances and mechanisms for assessing and promoting them to higher ranks. People’s courts and procuratorates have under them appointment committees and discipline committees whose members include members of society and whose duties are to appoint and remove judges and procurators and to discipline them respectively, and formulate open and fair appointment and dismissal procedures and punishment procedures, in order to ensure that the lawyers who enter the ranks of judges and procurators have good political qualities and professional ethics and are professionally competent and that actions of judges and procurators that violate the law and discipline are promptly punished.

  Fourth, we need to strengthen the job security system for judges, procurators and people’s police. In terms of professional requirements, judges and procurators need to have proficient legal professional knowledge and also a definite level of work and social experience, and people can be appointed judges or procurators only after they have passes a legal qualifications exam and civil service exam and done legal work for a period of time. From the perspective of occupational risks, our country is in a period in which there are many prominent social conflicts and the issues involved are sensitive and incite antagonism, so judicial personnel, especially people’s police, face higher occupational risks than before. The current judicial personnel security system does not reflect their professional characteristics and risks and are a hindrance to making the ranks of judicial employees more specialized, professional and standardized. According to the principle of commensurability of responsibilities, powers and interests, at the same time that we make the professional requirements of judicial personnel stricter and impose more responsibilities on judicial personnel in handling cases, we also need to provide judges, procurators and people’s police the job security they require to carry out their duties in accordance with the law.

  3. Improving judicial power operating mechanisms

  Judicial power operating mechanisms in which powers and responsibilities are clearly specified are necessary to ensure that judicial work is impartial, highly effective and clean. In recent years, judicial bodies have carried out numerous active explorations to improve judicial power operating mechanisms, but some localities still have the problem of subjecting the judiciary to excessive administrative procedures. The main manifestations of this are: the trying of a case and sentencing are dissociated—those who try a case don’t sentence the convicts and those who sentence the convicts don’t try the case; there are many levels of approval in a trial; powers and responsibilities are not clearly specified; it is difficult to hold anyone responsible for wrong verdicts; and reporting and approval between lower and higher courts required by administrative procedures undermines the independence of trial levels. It is necessary to observe judicial norms, focus on improving the judicial responsibility system, straighten out the relations judicial powers have to judicial administrative rights and to oversight rights, and improve judicial power operating mechanisms so that rights and responsibilities are correlated and each is perfectly clear.

  We need to establish a responsibility system in which a chief judge tries a case in full court, and explore how to establish a responsibility system for handling cases under which a procurator is in the dominant position. We need to have the person who tries a case decide it, and hold the person who decides it responsible. Whoever has power must have responsibility; whoever exercises power must undergo oversight; dereliction of duty must be held accountable, and whoever violates the law must be punished.

  We need to reform the system of judicial committees so that the main task of judicial committees is to investigate the application of the law in legal cases, and implement the system under which the chief judge, deputy chief judge, members of the judicial committee or the judicial committee itself directly try major, complex or difficult cases.

  We need to clarify the functions of the four levels of courts, and explore how to functionally differentiate the courts on the basis that courts of first instance pass judgment on right or wrong, courts of second instance pass verdicts, retrial courts correct wrong verdicts, and the Supreme Court ensures that the law is applied uniformly and correctly. We also need to further standardize and implement oversight between lower and higher courts and ensure that all levels are independent.

  4. Deepening judicial openness

  “Light is the best disinfectant.” Deepening judicial openness and having judicial powers be exercised openly is beneficial for ensuring the people’s right to know concerning judicial proceedings, strengthening effective oversight, promoting judicial justice, raising judicial capacity, building judicial credibility, and increasing the people’s level of satisfaction with judicial work.

  We need to focus on judicial openness. Except for cases in which the law prohibits openness, all trials should be open. Courtroom proceedings are the central link in trials and the platform where the accuser and accused have the right to give testimony, cross-examine the opposition and debate their positions. All court proceedings should receive audio and video recording that are archived. Making audio and video recordings of entire court proceedings is beneficial for constraining the judicial activities of judicial personnel, encourages the accuser and accused to exercise their right in accordance with the law, and is beneficial in appeals and trial judge oversight cases for providing original and objective resources for determining whether a case had been handled fairly. The Supreme Court established the Judicial Opinions of China Network and is progressively putting online all effective trial judgments that can be made public from all four levels of the courts, which gives them more argumentative force.

  We need to work to make procuratorial work more open. We need to establish a system under which final legal instruments of procuratorial bodies that decide not to open a case, make an arrest, bring a lawsuit or file a protest are made public. This will give legal instruments more argumentative force. We will enable litigants to use the Internet to conduct a real-time search for information concerning whether reports, lawsuits and appeals were accepted, circulated or handled. We will improve the system of open examination and open reply. In appeals cases in which there is considerable dispute concerning the facts of a case or the application of the law or a case has significant impact in its locality, and a lawsuit is not brought or there is dissatisfaction with the procuratorial body’s handling of the case, the procuratorial body should take the initiative to or be asked to hold an open hearing and make an open reply.

  We need to constantly make police and prison work more open. We need to further improve mechanisms of openness, make innovations in open methods, keep avenues of openness unobstructed, use modern telecommunications methods to ensure that openness measures are implemented and promote justice through openness.

  5. Improving the system of people’s juries and establishing a system of people’s overseers

  The system of people’s juries is the most important and most direct way in which ordinary people participate in and oversee judicial work. Jury members come from the people and represent the people and their strong point is they are in touch with popular sentiment and know popular opinion, and so they can work with professional judges to raise the level of collective thinking and knowledge and play an effective role in resolving conflicts. They also contribute to making judgments more transparent, promoting judicial impartiality and increasing judicial credibility. The system of people’s juries has played a positive role for a long time, but the phenomena of juries made up of judicial personnel, acting as unofficial judges, juries being excluded from making judgments and jurors saying “I agree” whenever asked for input still occur to various degrees, so the system of people’s juries still needs to be improved. We need to expand the number of people’s jurors and draw them from a larger pool, ensure jurors’ rights to participate in trials, increase the proportion of cases in which jurors participate and get the system of people’s juries to fully play its role.

  The people’s oversight system is a social oversight system that takes as its starting point the investigation of job-related crimes in areas that are of most concern to the people and where oversight is weakest, and ensures that procuratorial power, especially the investigation of job-related crimes, is carried out correctly. It is an important way in which the people participate in the judicial process. Trial implementation of the people’s oversight system began in 2003, and it has already spread to all the country’s procuratorial bodies. It is necessary to further improve the system by further standardizing it, scientifically establishing a process for selecting people’s overseers, expanding its scope of oversight, standardizing and improving oversight procedures, make oversight more effective, and spurring the scientific development of oversight work.

  6. Strictly standardizing procedures for commuting sentences and granting parole and medical parole

  Commuting sentences and granting parole and medical parole are an important way of modifying sentences. Commuting sentences is a way of shortening sentences for prisoners who have genuinely repented or rendered meritorious service. Granting parole is a way to release prisoners who have repented and no longer pose a danger to society and satisfy other conditions before the completion of their sentence. Medical parole is a method for temporarily releasing a prisoner with a serious medical condition in the hands of a guarantor so the prisoner can receive medical treatment in a facility outside the prison. All three are concrete examples of justice tempered with mercy in the execution of punishment, and are of great importance for encouraging criminals to reform and assimilating released prisoners in society. At present, there are a number of shortcomings in carrying out modifications of sentences. For example, some prisoners end up serving too little time in prison, commutation of sentences for job-related crimes occur too widely and too often, and the proportion of paroles and medical paroles is high. These problems give rise to doubts about judicial impartiality in society, and the system for commuting sentences and granting parole and medical parole must be improved.

  Every stage of procedures for commuting sentences and granting parole and medical parole, from application to hearing to ruling, need to be strictly standardized; in particular, the oversight system for procedures for hearing an application must be strengthened; and a method of online collaborative handling of cases concerning granting parole and medical parole and carrying out out-of-prison enforcement by administrative bodies, people’s courts and people’s procuratorates needs to be established to prevent corruption from arising in the process of modifying sentences. We need to strengthen supervision of the process for granting parole and medical parole and carrying out out-of-prison enforcement and strengthen management responsibility to prevent gaps or neglect in the oversight process in order to reduce recidivism and raise the effectiveness of correction.

  III. Always Adhering to the Basic Principles of Deepening Reform of the Judicial System

  Reform of the judicial system is an important component of our country’s political reform, and it has a strong political, strategic and legal character. To ensure that reforms do not get derailed or take detours and ensure that the socialist judicial system with Chinese characteristics always conforms to the reform and opening up tide of sound development, always advances along with the progress of building the rule of law and always deepens in response to the people’s demands for fairness and justice, it is necessary to adhere to the following basic principles:

  1. Upholding the Party’s leadership

  The Party’s leadership is the basic guarantee of the socialist legal system. Adherence to the Party’s leadership is the political strength and an important characteristic of our country’s judicial system, and an important guarantee that reforms of the judicial system will solve difficult problems. To deepen reform of the judicial system, we must persevere in scientific, democratic and law-based decision making under the leadership of the Party Central Committee, and integrate the Party’s leadership, the role of the people as masters of the country and the rule of law.

  2. Upholding the orientation of socialism with Chinese characteristics

  Socialism with Chinese characteristics is the fundamental orientation of contemporary China’s development and progress, and the basic guiding thought that reform of the judicial system must adhere to. To deepen reform of the judicial system, we must unwaveringly take the path of the socialist rule of law with Chinese characteristics, and reject both the old and rigid closed-door policy and any attempt to abandon socialism and take an erroneous path. Reforms must conform to the state system of a people’s democratic dictatorship and the political system of people’s congresses, persevere in taking the concept of the socialist rule of law as the guide, and give impetus to the self-improvement and self-development of the socialist judicial system with Chinese characteristics.

  3. Upholding the dominant position of the people

  Socialism with Chinese characteristics is the cause of hundreds of millions of Chinese people. The mass line is the lifeblood of the Party and the basic line of its work. Reform of the judicial system is an integral component of political reform, and it must closely rely on the masses, respect people’s pioneering spirit, fully listen to the views of the people, give full expression to their will, address the problems the people are most dissatisfied about first, and focus on solving practical problems of fairness and justice that concern the people and affect them most directly. We need to willingly accept the oversight and criticism of the masses, and take the people’s level of satisfaction as the yardstick for measuring reforms, genuinely ensure that reform is carried out for the people and relies on the people and that the people share in its fruits.

  4. Upholding the principle of taking national conditions as the starting point

  What kind of judicial system a country follows is ultimately determined by the country’s national conditions. The world does not and cannot have a one-size-fits-all judicial system. Our country’s reform of the judicial system must be grounded on the basic national condition that China is and for a long time will remain in the primary stage of socialism. We should conscientiously study and adopt beneficial achievements of other countries’ legal systems but not slavishly copy their judicial systems and structures, and we should progress with the times but not make exorbitant demands that ignore the realities of the present stage.

  5. Upholding observance of the inherent nature of judicial activities

  Judicial activities have an inherent nature, and we can achieve our reform goals on schedule only if with understand, grasp, observe and make use of the inherent nature of the judicial system. Reform of the judicial system can create a just, highly effective and authoritative socialist judicial system with Chinese characteristics and make its rightful contribution to the development and progress of human legal culture only by observing the objective laws governing judicial activities and fulfilling the requirements of unifying powers and responsibilities, constraining power, being open and fair, following procedures, and being effective and authoritative.

  6. Upholding proceeding in an orderly way in accordance with the law

  Deepening reform of the judicial system involves adjusting judicial powers and the allocation of judicial resources, so it is of great importance and must proceed in an orderly way in accordance with the law. In the course of implementing every reform measure, we need to feel our way in the practical situation while carrying out the overall arrangements of the CPC Central Committee. Major reforms must have a basis in law, and where it is necessary to revise the law, reforms can proceed only after necessary revisions have been made. When major reform measures must receive legal authorization, they must be carried out in accordance with legal procedures to preserve the unity and authority of the law.

  7. Upholding overall coordination

  Reform of the judicial system must be based on making judicial bodies better able to perform their duties and functions prescribed by law; coordinate relations between central and local governments, between judicial bodies and other departments and between present and long-term interests; coordinate relations between higher-level and lower-level judicial bodies and between different judicial bodies; and consider both fairness and efficiency. We need to ensure that all reform measures are suited to the requirements of our country’s economic and social development, the development of democracy and the level of our citizens’ legal attainment and are suited to the characteristic of the legal profession. We need to carry out overall planning and scientific analysis and ensure that reforms are implemented actively and steadily.


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