System Improvement of Judicial Procedure in the Progress of Social Legal System Construction

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System Improvement of Judicial Procedure in the Progress of Social Legal System Construction

Shao Yan

(Institute of LawChinese Academy of Social Sciences,ShenyangLiaoning110031)

Ⅰ.New ideas in the process of judicial procedure system improvement

1.Enhancement of public trust and the sense of identity,accelerating the specialization and democratization

Specialized and democratic judicial procedure systems are two ultimate directions of the judicial procedure,which can maximize the public trust and sense of identity.Democratization requires the judicial procedure to focus on public’s requirements on jurisdiction while specialization shall start from the determination of the target and solutions.It is natural that specialization and democratization need to be completed through systematic organizational structure reform〔1〕based on the supporting guarantee and supervision measures and systems rather than simple requirements on judicial institutions and trial organization.The individual professional level similar to a judge coupled with its popular identity positioning are also necessary.

Specialization of jurisdiction,as the strongest “weapon” against the foreign interference,is the professionalization to intensify the professional tradition of jurisdiction based on rich and solid legal knowledge and theories.However,the democratization of jurisdiction is the jury system applied to the accomplishment of the social supervision in a way of public and just trial with public participation so that the dominant positions assurance can be provided to both parties in the proceedings.Certainly,all of these shall be improved by further implementation of systems and measures,such as an appeal,defense,avoidance and other measures.

2.Combination with reality for reform,steadily promoting the improvement of the judicial procedure

“Empty talk” is strictly prohibited in the construction of social legal system.A lot of reform and improvement measures must be accomplished combining with realistic problems.It is impossible to improve the judicial procedure in one step.Fancied procedure will be nothing but departing from the requirements on the construction of social legal system.Therefore,it is necessary to face the relationship characteristics in reality.〔2〕

First,recognition of the relationship between external environment and jurisdiction reform and the relationship among the elements of judicial procedure can better accomplish the reform of the judicial system starting from the partial and overall perspectives to promote the healthy development of the legal procedure as well as to avoid the legal procedure reform only in form.

Second,legal provisions under different cultures and historical backgrounds will carry the prescriptions of their respective natures.The legal construction journey of modern China is the process of cultural background conflicts and impact.

3.Compliance with the law of cognition,promoting the reform orderly in line with the characteristics of jurisdiction

Reform of the judicial procedure is extremely complex and difficult,so that the ideal perfectionism and perfectionism must be thoroughly eradicated while rational and vigorous attitude towards the judicial procedure reform shall be maintained at any time.In particular,only the compliance with the law of cognition and various contradictory antibodies can accomplish the step-by-step promotion via design and practically address the institutional and security obstacle in the judicial procedure system.In order to comply with the law of jurisdiction,〔3〕the following content shall be ensured.First,ensure the independent exercise of the jurisdiction without outside interference so that it can complete the whole process independently based on its own legal procedures and requirements.Second,ensure the finality and authority of the judicial procedure,It is also the last line of defense for the maintenance of the justice of the judicial procedure.The final but most effective way for solving disputes shall be clearly defined for the judicial procedure as its final result will be equipped with strict finality.Third,ensure the specialization of the jurisdiction that the professional qualities.In particular,judges and prosecutors shall master specific knowledge,skills and experience after long-term practice.Judicial officers must have abundant experience and prudent logical thinking ability in regard to judicial procedure to be competent for judicial positions with stringent conditions.

Ⅱ.Necessary measures for the improvement of China’s judicial procedure

1.Strengthen the reform of the personnel and financial system to unify the jurisdiction

The personnel system shall adhere to the centrality of judicial power.Rights and liabilities for the personnel appointment,removal and nomination shall comply with the provisions of the Constitution that judges,prosecutors,judicial officers and others shall be elected,appointed and removed by the National People’s Congress and the Standing Committee of each province and autonomous regions while the High Court of each province shall be elected,appointed and removed by the NPC.

In terms of the financial system,horizontal management shall be changed to vertical management that the finance originally undertaken by local governments shall be unified and undertaken by the central government and incorporated into the national financial budget.Moreover,it will cooperate with relevant financial coordination mechanism that it is the central government to unify the planning and allocation of the funds and salaries for courts.〔4〕Furthermore,mechanism that equals the treatment of judges and prosecutors of different provinces can be established to enhance the enthusiasm of judicial officers coordinating with the unified mechanism.

2.Reform the internal management mechanism and process to unify the court administration

First,the working content and process of the judicial committee shall be developed and improved,especially the emphasis on the distinguishing between criminal and civil services to improve the specialized expertise to the greatest extent.Trials of major and difficult cases can be accomplished by the composition of the judicial committee or other judge combinations in order to achieve the process from “l(fā)istening to report” to “hearing”.And then,trial,sentence,rights and liabilities shall be unified to enhance the function and responsibilities of collegiate bench and sole-judge bench in order to reform and intensify the previous work flow and methods.

Secondly,case guidance system shall be established while the way of reporting and asking for instructions abolished thoroughly in order to make up the deficiencies and loopholes in grammar,At last,it is to unify the leadership and liability management system.The unity of the court administration authority can provide support for the establishment of the court administrative decision-making mechanism and is beneficial for itself to become more universal and democratic.A unified court administration shall combine all of its administrative facilities to create a better administrative decision-making mechanism.

3.Strengthen the status of the procuratorial organ to optimize the rights allocation

(1) Local government shall coordinate with the central government to establish the unified management system for politics and law special preparation and financial funds of local procuratorate.

(2) Improve the responsibility protection mechanism for procuratorial personnel,especially the appeal and accusation system,in order to avoid their resignation,dismissal and even punishment behaviors due to illegal reasons or procedures.And ensure the legitimate rights of the procuratorial organ through the establishment of the defensive protection and aid mechanism.〔5〕

In addition to the improvement of the status,rights and liabilities of the procuratorial organ,further enhancement of the supervision capabilities of the society and the national authorities shall also be carried out.

4.Coordinate the sound comprehensive evaluation mechanism to improve the effectiveness of the regulatory system

Establishment of a scientific and rational comprehensive evaluation index system is the most effective regulatory and management method for the existing judicial procedure system while the working procedure based on the actual judicial procedure is the core part.But the evaluation mechanism can better determine the assessment content and methods only when it takes into account the public law and characteristics of the judicial procedure.The comprehensive evaluation mechanism shall avoid the single problem for index assessment but center on the focus of the judicial procedure.It shall carry out thorough investigations and hearings focusing on the assessment index to adjust and modify the assessment content in order to ensure the objectivity and validity of the assessment index and results.In addition,mandatory and mechanical quantification of the assessment index shall be eradicated,for the assessment combining the qualitative analysis and quantitative analysis will not only give prominence to the assessment effect of the comprehensive evaluation mechanism but also highlight the focus of the entire work.

The judicial procedure directly serves the person concerned and the public.Thus,the public participation mechanism shall be improved comprehensively in order to enhance their rights to speak in the judicial procedures,which requires the center of the regulatory system must implement the principle of the democratic supervision.Besides the strengthening of enthusiasm and initiative of public to participate in the judicial procedure,opinions and recommendations of external personnel shall also be collected,which will greatly promote the democracy and science and China’s judicial procedure and further improve the authority and credibility of the judicial procedure.Symposium,auditing mechanism,group research and investigation,opinions collection are the major methods to expand the public participation in the judicial procedure improvement so as to improve the objectivity of the social evaluation on the judicial procedure.

At last,a comprehensive accountability system is necessary for the misjudged cases.First,a valid entity result determination is needed for the identification of mistake occurrence and the errors in law as well as the possible illegal content in different procedures.Second,a nationwide examination system for cases involving unjust,false or wrong charges shall be carried out irregularly or regularly to investigate and hold accountabilities for misjudged cases while giving the corresponding responsible personnel certain rights of defense,appeal and review of the examination results.Third,the principle of undertaking responsibility on one’s own shall be clearly understood.That is to say,the duties and responsibilities of each part of the whole case must be matched and clarified.And for those intentional or negligent behaviors resulting in the occurrence of cases involving unjust,false or wrong charges during the case handling process,corresponding legal liabilities shall be strictly affixed.

Ⅲ.Conclusion

The development process of the judicial procedure is a history that human beings constantly pursuing the judicial justice.It requires us to strictly follow and carry forward the judicial justice in the construction of the social legal system and permeate it throughout the entire process of the legal society construction.Meanwhile,judicial officers shall have confirmed cognition to the judicial procedures as only the understanding of its meaning and value can provide support for the promotion of the fairness and justice of the judicial procedure.A strict and sound judicial procedure system is the fundamental elements and a reliable guarantee for the maintenance of the judicial justice,as well as the lifeline and realistic demands for the social legal system construction.Only the adherence to jurisdiction for people and justice and high-efficient judicial system can achieve the development blueprint of building a well-off society in an all-around way.

References:

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〔3〕王林清、劉高：《民刑交叉中合同效力的認(rèn)定及訴訟程序的構(gòu)建》，《法學(xué)家》,2015年,第75-91頁。

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Judicial procedure,as a legal method to exercise the jurisdiction,has become an important element of the legal system construction.To improve the judicial procedure,legal procedure must be strictly complied with to complete the proceedings and the legitimate interests of the entities of the parties concerned and participants must be respected and protected.The reform of the judicial procedure system shall be strictly promoted and orderly carried out through scientific and reasonable setting,positive guidance in equal participation of both parties of the proceedings while making use of the security mechanism of supervision and restriction.

well-off society; social legal system; judicial procedure; jurisdiction

About the author：Shao Yan,doctor of judicial science,post-doctor at Law Institute,assistant professor at Liaoning Academy of Social Sciences.