Formalization and Institutionalization in the Chinese Judiciary System - Essay Example

? Chinese Judiciary Introduction XXI century was marked by essential changes on different levels. The mankind has entered a new epoch. Currently, there is a need to develop all aspects of human activity in order to follow the pace of globalization. A development of integrative state power is especially important for China, the country which in the XXI century wants to occupy its leading position in the world. Laws and regulations of China should be currently directed on the important role of justice. Judicial reform is a wide-spread phenomenon among different countries. China is not an exception. Thus, the main goal of judicial system is to guarantee justice to people, improve fair trial and democratic supervision on justice and protection of human rights (Lieberthal, 2006). It is necessary to mention that China has experienced numerous transformations during the past two decades. An important trigger of judicial system transformation was the upheaval of China’s economics. China’s reform in the judiciary system is triggered by two main factors. The first factor is protecting China’s nation and proving to Chinese people that they are in safety; thus a social stability is guaranteed. The second factor is a market economy would experience a better development under the influence of a credible legal system. Therefore there is a strong background of judiciary system development in China. Nevertheless there are advantages and disadvantages that occurred in the result of the reform introduction. An intention of China to hold a world’s leading position enabled its people to have more contacts with the international society. As a result, a social dislocation instead of a reserved social system occurred in China (Chow, 2009). The matter of human rights is often neglected in different countries because of imperfection of a judiciary system. Chinese government has clearly realized that Court should be the most decisive institution in resolving public conflicts and protect human rights (Kamis, 1997). Consequently, the SPC proclaimed a plan of the People’s Courts reformation developed for 5 coming years. This Reform was introduced in October, 1999. Chinese Courts are striving for reaching compliance with the international courts and are coming as closer as possible to the international standards of human rights protection. A brief overview of China's Judicial System In historical context, Chinese judicial system has experienced four main periods of changes. During the period of the Communist Party governing (1949 -1956) the main goal was to create a “socialist legal system” (Kamis, 1997). Further on, in 1954, “the Organic Law of the People's Courts of the People's Republic of China” was introduced in China. After this period, the people’s courts consisted from: “the Supreme People's Court, the higher people's courts, the intermediate people's courts, and the basic people's courts” (China’s Judicial Reform, 2001). During the next 10 years (1956 -1966) the legal system in China couldn’t develop properly due to the activities of representatives of the 'Anti-Rightist Movement' and the like organizations. The next decade (1966 – 1976) was marked by a Cultural Revolution in China and has essentially broken under the influence of the revolutionary processes. Starting from 1979 China has experienced a rapid growth of marketing sector because of high-speed economic development. There was a gradual development of a judiciary system and different people courts were established in China. Therefore, it is clearly seen that judiciary system of China has no options for self-perfection because of historical processes in this country. Therefore there is an urgent need in the reform of judiciary system in order to ‘smooth the sharp corners’. People's courts were wide-spread at different levels and gave hearings to criminal and civil cases. The SPC and the courts of the higher level deal with various cases (both criminal and civil ones). The main role of SPC is to supervise the compliance with the system of justice by courts at provincial and local levels. Further on, it can be said that Chinese people’s courts tend to practice a 'two-trial' system. It means that a court’s decision at a local level can be revised by the SPC. The system of people’s courts has the following structure: “a president, several vice presidents, chief judges, judges, and assistant judges. A judicial committee is set up in each court to exercise collective leadership in judicial work, composed of the president, vice-presidents, chief judges, and experienced judges” (China’s Judicial Reform, 2001). The importance of the judicial committee should be considered in detail. The hard-resolved issues are dealt with by this institutional judicial organ. It is another authority to restore a justice of a court’s decision. There is a strong hierarchy of the judges’ appointment to their positions. Thus for SPC judges are chosen on the governmental level, on the local level judges for people’s courts on the local level by special people congress. Thus, from the first perspective it may seem that in spite of historical challenges, the judiciary system of China has a reliable structure and the process of decision-making in courts can hardly be questioned. Challenges Judicial System of China If to consider China’s judicial system from European judicial system’s perspective, it is clear that it lacks safeguards to conduct both internal and external interference. In accordance with the UN Basic Principles on the Independence of the Judiciary (China’s Judicial Reform, 2001) proclaims: “the judiciary shall decide matters before them impartially, on the basis of facts and in accordance with the law, without any restrictions, improper influences, inducements, pressures, threats or interferences, direct or indirect, from any quarter or for any reason” (China’s Judicial Reform, 2001). This Basic Principles guarantees “the fair trial and the protection of human rights” (Chow, 2009). Moreover, there are also controversies in judicial system of China even if to refer to the China’s Constitution. For example, it is said in the Article 126 that “people’s courts should act with no external pressure caused by different public organizations or institutions” (Chow, 2009). In China’s judicial system, the selection of judges and financing of judicial system of people’s courts do not reflect the matter of the Article 126 (China’s Judicial Reform, 2001). Another issue is the financial stability of the judicial system in the country. It is often argued that SPC and NPC have a great influence on people’s courts. Therefore it can be claimed, that another challenge in this area is “the principle of the separation of powers among the legislature, the executive, and the judiciary” (China’s Judicial Reform, 2001). Unfortunately, these issues are not effective in China. Unlike people’s courts in different countries, the judges in China do not have the power of adjudication. In China the draft judgment may be reviewed by the supervision committee or president of a people's court. Judicial committees review the judgments behind closed doors, so how can we talk about the openness of the judicial system in China? As far as it can be seen, there are a lot of internal problems of judiciary system in China. Not only the whole system has experienced numerous challenges, but the direct performers of the judgment, the judges had hard times. In the result of numerous historical transformations, there is a lack of experienced judges in China. Starting from 1995 the level of education of judges was checked during a special exam for judges. Before these years the majority of Chinese judges didn’t have even a higher education. These scaring facts undermine effectiveness of China’s judicial system. Another problem is a lack of financing. The local governments have exerted a great influence on people’s courts at local levels. Salaries of judges were low and there is a wide-spread corruption among judges (China’s Judicial Reform, 2001). There are numerous challenges in trial proceedings as well. These are the following: “rejection of evidence gathered through improper means such as torture; the accused not to being compelled to testify against himself/herself or to confess guilt; and provision of access for defendant lawyers to evidence and related materials before trial” (China’s Judicial Reform, 2001). Starting from 1996 after the Criminal Procedural Law a provision of the presumption of innocence was acclaimed. Another important fact is the approval of the provision of the defendant lawyers with necessary materials of the accused. In spite of the listed challenges and decisions suggested by the Reform of Judicial system in this country, the ideas are not practically implemented. Advantages of Five-year Reform Plan The most important provision of the Reform suggested for China’s judicial system is “to increase responsibility of collegiate benches and independent judges in adjudication; according to the plan, except for those very important and difficult cases that should be submitted to the judicial committee for judgment, the collegiate benches and independent judges should determine all cases. The presidents of the people's court cannot change their judgments” (China’s Judicial Reform, 2001). Thus it is evident that the reform is on the right way to openness and justice of the China’s judicial system. Another step forward is the adoption of the judges’ selection system. In accordance with it, the higher court judges would be chosen by people from the local court’s judges. Thus experienced professionals would be chosen to courts of higher rank by people from judges of people’s courts. Therefore this advantage implies a promotion of judges’ quality and professionalism of judges. Therefore judges from higher-rank courts would have practice in people’s courts. Another plan of SPC is to choose judges from highly-professional judges from people’s courts. This small group of professionals would serve in courts of a higher rank. Therefore judiciary reform implies human resources improvement. It is also necessary to increase salaries among judges in order to attract real professionals to the sphere of judiciary. Another improvement directed on human resources of judiciary, is a structural transformation among judges. It is supposed: “To improve the checks and balances among judges, the reform will separate divisions and personnel responsible for different stages and aspects of a case, namely filing the case, trial, supervision and enforcement of the court order” (China’s Judicial Reform, 2001). Conducting trial requires a certain reform. The guideline issued on 31 January 2000 by SPC is a document regulating possible conflict of interests among judges. Prospects of the Reform As far as it can be seen, the Five-year Reform Plan is directed on the improvement of China’s courts quality. Nevertheless, there is a need to introduce more serious reforms directed on the security of “fair trial and protection of human rights” (China’s Judicial Reform, 2001). The drawback of the current reform is that it doesn’t cover such important problems as “external interference from the local people's congresses, the party, and the local governments” (China’s Judicial Reform, 2001). Thus there is a need to establish an independent judicial service commission that would appoint the judges. Another requirement is to establish a separate fund issuing money for salaries and resources necessary for the people's courts. In the internal transformation, there is a need to take from the judicial committee the advantage to “allow judges to have the independent power of adjudication” (Shaomin, 2003). Still, there are supporters of judicial committee which is considered by them as a guarantee of quality of trial. From another perspective, the closed-door operation of the judicial committee undermines a fair basis of committee operations. Further on, for improvement the of judiciary system process development, the primary attention should be paid to the system of judges’ selection and constant examination and training of judges. Moreover, there is a need for Chinese judiciary system to follow the regulations of the international society. The role of lawyers should be improved in the judiciary system of China. Lawyers should protect the rights of the accused in trial (Chinese Jurist Touts Judicial Reforms, 2007). In spite of the fact that there are many advantages and disadvantages of the China’s judiciary system development, it is relevant to note that the crucial factor is a shift toward changes. Moreover, the development of Five-year Reform in judiciary system may be a first step to smoothing sharp corners of Chinese judiciary system and filling in gaps of the underdeveloped system. The main direction of the reform is improvement of human resources sphere. The main emphasis is made on judges, their professionalism and training. From one point of view, this measure guarantees a professionalism of the court, but from another perspective, it is not enough to guarantee a fair trial. Reached prospect of Five-year Reform In accordance with the report of Hon. Justice Su Zelin, Vice President, the Supreme People’s Court of P. R. China (2005). It is clearly seen that set objectives were completed in the process of Reform introduction. There are five main values presented by the Reform, such as: Value of Judicial Efficiency; Value of Fair Justice; Value of Putting the People First; Value of Judicial Supervision; Value of Judicial Democracy (Jianfu, 2008). These are basic levels where it was necessary to introduce innovations and reforms. Hon. Justice Su Zelin claims that judicial capabilities and images of the lawyers of defendants in the courts became more reliable and turned into a guarantee of protection of human rights. The issue of human rights is of primary concern for China’s courts at local and national levels. Numerous measures have been directed on underlying the importance of “people’s convenience, interests and security and those measures have received much support from the public” (China’s Judicial Reform, 2001). This was reached by facilitating the process of trial procedures; an improvement in the “judicial relief system”; the importance of the necessity to mediate settling the disputes with a strict control over the time limit for concluding trials etc. The second point reached by the Five-year Reform is the optimization of the external judicial environment. In accordance with Hon. Justice Su Zelin: “The reform of people’s courts is a systematic project with different levels and points of view, which needs the coordination and mobilization of all the social sectors and also the collection of all social resources” (China’s Judicial Reform, 2001). In other words, a possibility to make a perfection of judiciary system, there is a need to cooperate with many different social institutions. With this regard, an openness and social access to the information about reforms introduced into judicial system is propagated by mediation of social organizations. Another innovation of the Reform is public hearing. Though this kind of hearing is rather new, Hon. Justice Su Zelin claims that: “The system of public hearing is all embodied in the Constitution of PRC, the Organic Law of the PRC on the People’s Courts and three procedure laws and is very important in the judicial system of our nation” (China’s Judicial Reform, 2001). Of course, there are many aspects of public hearing to be improved and the specific measures have to be taken in order to improve and put into effect this system. Moreover, on different levels of courts, the judges have an ability to actively practice and test their judicial powers. An active involvement of judicial committees is a step forward to a perfection of the judicial system. Another valuable contribution of the Five-year Reform is the possibility for judges to increase their professionalism and thus high-quality judges have already shown their positive practices. This was reached by taking the following measures: “…relevant stipulations of the Law of the PRC on Judges, made strict requirements of recruiting judges, improved the judge-selecting procedures and actively conducted experiments of judges’ assistants and separate management of clerks of the courts” (Gechlik 2009, p. 64). Thus there were two main directions of the perfection of judges’ involvement: education and training available for judges and “the reform of separate management of court personnel” (Gechlik 2009). These changes were made on different levels: from provincial to national levels. Moreover, the court-supervising system was gradually improved and the issue of incorruptibility has been actively propagated. Thus, it is another step forward guaranteeing of high-quality of courts and incorruptibility. Conclusion As far as it can be seen, the judicial system has been subjected to numerous changes and transformations. Nevertheless, there are certain gaps remained. For example, it is relevant to continue looking for the best solution of “the problem of imbalance in the court reform and underlying the necessity to unify and standardize the reformation of a court” (Gechlik 2009). Also, there is a need to continue a work at guaranteeing justice of the judicial system and improvement of judicial efficiency. A great attention should be focused on perfection of executing mechanisms. The Five-year Reform was greatly focused on human resources of the judicial system. In the future it is important to support this tendency and improve internal structure of courts. Moreover, an optimization of the system of supervision guarantees a fair trial. Consequently, we can claim that international standards of fair trial are followed by a newly-reformed China’s judicial system. A five year Reform of judicial system in China turned out into a prospective movement for justice and human rights protection. Works cited 1. China’s Judicial Reform, 2001. [Web]. 2. Chinese Jurist Touts Judicial Reforms. (September 26, 2007) The Washington Times, p. 12. 3. Chow, Daniel, 2009. The Legal System of the People’s Republic of China. 4. Gechlik, Mei Y., 2007. Judicial Review: Time for a Closer Look. The China Business Review, 34, p. 58+. 5. Jianfu, Chen, 2008. Chinese Law: Context and Transformation. Martinus Nijhoff Publishers. 6. Kamis, Tali Levine, (May 1997). National People's Congress Supports Economic Reforms, Strengthens Rule of Law. The China Business Review, p. 23. 7. Li, Shaomin, 2003. Transforming China: Economic Reform and Its Political Implications. China Review International 10, p. 34+. 8. Lieberthal, Kenneth, (September, 2006). Completing WTO Reforms. The China Business Review, 33, p. 12. September 2006 Read More