Chinese Judiciary Independence - Essay Example

Chinese Judiciary Independence In China, the judicial system consists of three parts: Court, Procuratorate and Public Security Organs. The Court is the judicial organ of state. Procuratorate is the state organ for legal supervision, and Public Security Organs is one of the most important parts of government mandated with the function of investigating criminal and civil cases. In order to research and discuss Chinese judiciary independence, we have to talk about three representatives and explore important data. These are Disapproval Arrest rate, Disapproval Prosecution Rate, and the quantity of Counter-appeal. In a simpler way, making a complete and legitimate judgment has three procedures in China. Firstly, Public Security Organs apply the approval from Procuratorate to arrest suspects after they gather evidence. Second, Procuratorate would review the evidence. If they don’t think have enough evidence by the law to arrest criminal suspects, Procuratorate will disapprove the arrest. If they consider the evidence as enough, they will approve Public Security Organs to arrest the suspects. Then, Procuratorate transfers these cases to the court for prosecution. However, if Procuratorate consider that case should not prosecutable, then it drops the charges. Finally, the court makes a judicial decision and result after receiving cases from Procuratorate. Procuratorate can apply counter appeal if they don’t think the court’s judicial decision is fair and correct. The case then gets a retrial or transfer to the higher court to review. The Supreme Peoples Court is the highest judicial organ. After it makes judicial decisions, people cannot apply counter appeal. Disapproval Arrest rate, Disapproval Prosecution Rate, and the quantity of Counter-appeal earlier mentioned as the three representative and important data at the beginning, are all respectively produced from the above three judgment procedures. If the value of the data is large, that means the level of judiciary independence is high. If they are small, that means the level of judiciary independence is low. I will compare the three data sets from different periods and areas to draw a conclusion on whether the Chinese judiciary has had any change and improvement in the past two decades. Disapproval Arrest rate Disapproval Arrest Rate is only produced after the Public Security Organs apply the approval to arrest suspects, but the Procuratorate fails to approve it. It is the proportion of the disapproval arrest quantity divided by the whole quantity of the application to arrest. In terms of time, the average of Disapproval Arrest Rate from 1983-2007 is about 7.22%. I divided 25 years (1983-2007) by 5 time periods with each time period having five years (1983-1987, 1988-1992, 1993-1997, 1998-2002, and 2003-2007). Apparently we see that from the chat the average of Disapproval Arrest Rate is about 9% during the 1980s. However, the Disapproval Arrest Rate is very different at the beginning of 1990s and the end of 1990s. Before 1998, the average Disapproval Arrest Rate is about 6.5%, but after 1998 the value rises rapidly and nears 12%. After 2003, the Disapproval Arrest Rate drops back to 8%. Except the high growth during 1990, the Disapproval Arrest Rate gradually has declined in the recent years and indeed does not have appreciable change past 25 years. As a result, we know that the consistency of Procuratorate and Public Security Organs is high, but the independence is low. Chinese judiciary independence is still at a low level. In terms of areas, past 25 years, the Disapproval Arrest Rate of Guizhou, Heilongjiang, Xinjiang, Xizang, etc. (Chongqing became the municipality from 1997) are high, but the low rate of areas are Beijing, Hebei, Guangdong, Qinghai, Shanghai, Zhejiang, etc. The difference between the highest and the lowest average Rate is huge past 25 years. The highest average Rate area is Guizhou, whose average rate is about 11.86%. However, the lowest average Rate area is Beijing, whose average rate is about 2.6%. Overall, remote provinces and less developed areas have higher Disapproval Arrest Rate with most of them being in west of China. However, coastal provinces and developing areas have lower Disapproval Arrest Rate. Under the influence of political movement and development of economy, the Disapproval Arrest Rate of Beijing and Guangdong are lowest during 1988-1998 but Guizhou and Heilongjiang have not significantly changed. Therefore, we realize that the areas of coastal and higher status of political and economic have lower Disapproval Arrest Rate. Their consistency of Procuratorate and Public Security Organs is high, but the independence is low. The consistency of Procuratorate and Public Security Organs in remote provinces and less developed areas is lower than coastal provinces and developed areas’, but the independence is higher compared to the former. Disapproval Prosecution Rate Disapproval Prosecution Rate is the proportion of Non-Approval of the prosecution divided by the quantity of Application of the prosecution. In the past 25 years, the average Disapproval Prosecution Rate in China is 1.48%. This translates that when Procuratorate approve Public Security Organs to arrest criminal suspects and transfer them to decide whether prosecute or not, most of suspects will be prosecuted. In terms of different time periods, the average Disapproval Prosecution Rate is 4.59% during 1983-1987. This number is relatively high. However, during1988-1992 and 1993-1997, the average Rate is 0.64% and 1.03% respectively. During 1998-2002 and 2003-2007, the average Rate is 2.62% and 2.7%. After 20 years from 1987, the Disapproval Prosecution Rate is slow growth. As a result, know that due to the low average Rate past 25 years, Chinese judiciary independence is still at a low level but it has a little change and improvement. In terms of areas, in the past 25 years, Xizang, Guizhou, Neimenggu, Qinghai, Yunnan, etc. have high average Disapproval Prosecution Rate, while Shanghai, Hebei, Shangdong, Zhejiang, Jiangsu, etc. are low. The highest average Disapproval Prosecution Rate is Xizang, which is 3.2%. The lowest rate is Shanghai, with 0.42%. The gap between the highest and lowest is not so significant. From the graph, we realize that, remote provinces and less developed areas have higher Disapproval Prosecution Rates. However, coastal provinces and developed areas have lower Rate. Therefore, the judiciary independence of remote provinces and less developed areas is higher than coastal provinces and developed areas. Counter-appeal Counter-appeal is a litigation activity for adjudicatory. After the court made a judicial decision, but people don’t think it is fair and correct. Procuratorate has the right to apply a counter appeal and require the court get retrial or transfer the case to higher court to review. The Supreme Peoples Court is the highest judicial organ in China. After the Supreme Court makes its judicial decisions, the people cannot apply a counter appeal. In short, there are two types of counter appeals. One is criminal counter appeal while the other is civil counter appeal. In the last 25 years, the average quantity of counter appeals is 159. During 1983-1987 and 1988-1992 period, the average quantity is 50 and 54 respectively. After a decade, the average quantity of counter appeal had doubled. The average quantity is 140 and 114 respectively during 1993-1997 and 1998-2002. However, after 2003, the average quantity of counter appeals grew rapidly. During 2003-2007, the average quantity is 461. Therefore, we realize that the general trend for counter appeals in China increased in the past two decades.. Moreover, before 1997, the quantity of criminal counter appeal was a little bit larger than civil counter appeal. Nevertheless, after 2003, the quantity of civil counter appeal was larger than criminal counter appeal. Meanwhile, from the graph we see that Henan, Hebei, Anhui, Liaoning, Heillongjiang, Guangdong, etc. have largest quantity of counter appeal while Xizang, Qinghai, Ningxia, Beijing, Shanghai, Tianjin, etc. have the smallest. It means that the larger the population and region, the larger quantity counter appeal value they have. At the same time, it also means that people’s legal consciousness has increased. As a result, from this angel we see that Chinese judicial independence has made some progress recent years. In the past 25years, Chinese judiciary independence has made some progress but not significant change. The level of judiciary independence is still low. Remote provinces and less developed areas have higher judiciary independence, but coastal provinces and developed areas have lower. The consistency of Procuratorate and Public Security Organs is high. The court and procuratorate are influenced deeply by the local government. The Judiciary organ cannot work independently. From my perspective on judiciary independence, there are three important meanings. First, judicial organ should not be influenced by any other factors expect itself, otherwise judicial independence is impossible to achieve. Second, the activities of judicial organ do not need to get instructions from any other person, party, government, etc. They should get high degree of autonomy. Third, the activities of judicial organ only accept supervision but not order and only obey the law and not a person. Chinas Constitution stipulates: “The court and the Procuratorate are produced by the local people’s congress.” Both of them can only accept supervision and be responsible for the same level of people’s congress. Actually, it is impossible for the court and the Procuratorate to have to same status with local government in China, because the operation cost come from the local fiscal. Therefore, the local government has a deep influence on personnel and decision of the court and Procuratorate. In order to get rid of the fetter from administration and improve judiciary independence in China, the state has to cut off the connection between the local government and judicial organ. Changing the “Horizontal governance” to the “Vertical governance” is a necessary way. All operation costs and important personnel decision of local judicial organ should come from higher judicial organ. Meanwhile, the power of personnel from the court and Procuratorate in province level should belong to the Supreme Peoples Procuratorate and Supreme Peoples court but not to the party or local personnel department. Read More