Three Key Issues in the Reform of the Judicial System in China
贺卫方
【全文】
With the transformation of the whole society, an increasingly large-scale reform has also been carried out in the Chinese judicial system.1 However, today, more than 20 years after the beginning of the judicial reform, all those who have participated in or promoted the reform seem to have a feeling of helplessness: although new reform measures have been adopted one after another, their results are far from satisfactory. A cover story in onea recent issue of China Newsweek even used the titled “Chinese Judges Encounter Public Confidence Crisis.”2 Much evidence has shown that the judicial reform in China has not become an effective means of enhancing public confidence in courts and judges, as was expected by the decision-makers, but on the contrary, has aggravated the existing problems, even leading to new problems. Why this contradictory phenomenon? As a scholar who has continuously called for and actively participated in the relevant reforms during the past years, I will try to analyze the current difficulties faced by the Chinese court system in the process of reform.
Judicial Reform as Part of Social Transformation
As an ancient Roman saying goes, “where there is society, there is law.” However, the law, as part of society’s norms, is always closely linked to the history, the structure and the cultural tradition of a specific society. Building a western-style modern judicial system in China, which began in the late Qing DynaDynasty, has a history of only about 100 years while the China’s history of law and social control goes back at least 2000 years. This historical comparison indicates that modern court system is only a newborn baby in China and the construction of the new system is a very difficult and arduous task. Judicial reform involves not only the reform of the court or other judicial organs, but also the adjustment of society, the change of modes of ruling the country, and the transformation of social consciousness, even the transformation of people’s thinking mode.
ForAn example,: in the western tradition, judicial independence is something self-evident; Montesquieu’s doctrine of separation of powers is a well-known social consensus. In China, however, the traditional mode of government is basically against the separation of powers. There had never been a specialized judicial organ independent of administrative organs. Officials handling cases did not have any legal training. It was not possible for them to give a detailed and balanced interpretation of the law, which was very crude in itself. The resulting trial mode was tantamount to what
