转型中的人民法院：中国司法改革展望
The People’s Court in Transition: The Prospects of the Chinese Judicial Reform
张千帆
【摘要】For a long time the Chinese courts were beset by the lack of impartiality and autonomy owning to the heavy political influence exerted by the ruling party, the shortage of well trained judicial personnel and, more generally, the absence of social respect for the traditionally insignificant judicial branch in a primarily administrative state. Thus the existing judicial system is woefully inadequate for sustaining a market economy, as it fails to meet the Weberian conditions for a politically neutral legal system that uniformly enforces the economic relationship forged in market transactions. The uniform administration of justice is further jeopardized in China by the enormous diversity of local conditions and interests typical to a developing state, and by the intimate relations between the courts and local political branches. The necessity of reforming the current court system hardly need any argument, yet how to reform it -- especially in a politically feasible manner -- is by no means clear. Divided into four parts, this paper is essentially an analysis of the current judicial problems in China and their proposed solutions. First, it presents a preliminary theoretical model for analyzing a judicial system. Next, it categorizes the problems that constitute the ‘judicial syndrome’ in China. It then outlines solutions that have been put forward to cure the syndrome. The paper ends with a brief discussion of the likelihood that these solutions will actually work.
【全文】
Observers generally agree on two aspects about the development of rule of law in China. On the one hand, since its first experiment with ‘reform and opening’ in 1978, China has made a ‘great leap forward’ on the road toward rule of law; on the other hand, China still has a long way to go before it becomes a state truly governed by rule of law. In the span of two decades recovering from the trauma of the Cultural Revolution, the National People’s Congress (‘NPC’) and its Standing Committee have made over 160 laws, the state council has issued some 770 administrative decrees [Xingzheng Fagui], and the local authorities have made over 5200 local decrees [Difangxing Fagui].[1] The judicial system did not remain stagnant. The courts and the procurators’ [Jiancha] offices were reorganized in 1979 to better serve the new economic reform. [2] By 1997 the number of persons employed in the various courts and the procurators’ offices exceeded 290,000 and 210,000, respectively.[3] In the meaning time the number of lawyers has grown to the size of 100,000, the public registry has been established all over the country, and the legal aid centers begin to emerge in the cities.[4] Both the legislations and legal framework seem to have served their functions to buttress a burgeoning market economy, so far the major driving force of the Chinese reform. In 1999, the constitutional amendments explicitly avow, for the first time in the constitutional history of the People’s Republic, to ‘govern the state according to law’ [Yifa Zhiguo] and ‘establish the socialist state of rule of law’.[5] Yet observable marks, including ‘solid’ ones like statistical data, can be deceptive and misleading; the quantity of achievements normally fails to tell the quality. In fact the remarkable Chinese achievements, by contributing to the rising expectation for steady progress in rule of law, only make its deficiencies all the more conspicuous. Although China can now claim that the laws necessary for sustaining a stable flourishing society are by and large there, these laws are yet to be obeyed and effectively enforced -- hopefully before the common people become so disappointed as to treat them as pure sham. Writing down the words on paper is, after all, only the first and comparatively easy step in a hitherto lawless society; making them count in daily life is a much tougher task, but its fulfillment is the very touchstone for rule of law. This task now confronts the Chinese government, particularly its judiciary – the very focus of this paper, as it is commonly believed that the court is the last place that makes the laws count.[6]
The Chinese courts are loaded with tasks that are difficult to accomplish even from the view of their western counterparts: they are to strike reasonable balances in civil disputes arising from the ever more complex economic relationship; they are to keep in check crimes of all sorts that come with a mobilizing society where the previous constraints to human behaviors are dissolving, while paying due regard to the basic rights of criminal suspects;[7] they are also to contain the operations of the hitherto omnipotent administrative powers within the orbits of law, at the same time ensuring their own judgments consistent with the guidance and political imperatives of the Chinese Communist Party (‘CCP’).[8] Are the Chinese courts up to their jobs? Even a cursory examination of the current conditions would point to a dismal answer. Plagued by too many long-standing problems, the Chinese judiciary is clearly not in a good shape.[9] The courts are in serious shortage of funding; the judges are poorly paid, and the professional quality is low compared to their western counterparts; relying on the local government for finance and appointments, the ‘people’s court’ has come close to be the ‘lieutenant of its local government’ for protecting its territorial interests; the trial process was inefficient and lent itself to biases and personal influences of litigants; the enforcement of judicial judgments has long suffered from low rates of success, making a significant portion of the legal decisions unfulfilled promises of the state; the judicial corruption has been rising in proportion to the economic growth: trading the power of law with personal favors and material benefits has been a prominent phenomenon among the Chinese judges, and private dealings between the judge and lawyers at the expense of the litigants are becoming commonplace.[10] And so on. The consensus of the Chinese legal community is that the problems of the Chinese judicial system have grown to such a critical extent that it must be reformed.
As a result, judicial reform has become a ‘hot’ topic among the Chinese legal scholars as well as the judicial officials, all seeking to remedy what I call the Chinese ‘judicial syndrome’ in this paper. In October 1999, the Chinese Supreme People’s Court (‘SPC’) published, for the first time in its fifty-year history, a blueprint of legal reform: ‘The Outline of a Five-Year Reform of the People’s Court’ (hereinafter ‘Outline’). The Outline avows to improve the existing judicial structure in China, to enhance the power and autonomy of the individual judges, and to guarantee judicial efficiency as well as fairness. The judges [Faguan], whose qualifications are yet to be precisely defined, will be carefully selected from the existing stock of judicial tribunals and lawyers who have established records of good performance, and will become ‘judges in the real sense’.[11] In the mean time, those judicial personnel unable to meet the standard will be put off the post [Xiagang]. Apparently, the institutional reform currently carrying out in ordinary government agencies has also entered the Chinese courts.
The Outline has created much hope to the prospect of the badly needed judicial reform. Is it likely to achieve the intended effects? Divided into four parts, this paper is essentially an analysis of the current judicial problems in China and their proposed solutions. First, it presents a preliminary theoretical model for analyzing a judicial system. Next, it categorizes the problems that constitute the ‘judicial syndrome’ in China. It then outlines solutions that have been put forward to cure the syndrome. The paper ends with a brief discussion of the likelihood that these solutions will actually work.
I. A Preliminary Theoretical Model
Every practical inquiry begins with a normative aim, and the aim for the Chinese judicial reform is very clear: a working judicial system, that is, a system of courts that can decide legal disputes fairly and efficiently.[12] The next step, which is to be dealt with by the rest of the paper, is about the means: What does it take to build such a system? Here we need to integrate the macro (statistical) and micro (rational choice) models to analyze the judicial behavior. A judge sitting in the court hears a case and decides it. To reach a ‘fair’ or ‘impartial’ decision means that she decide the case by properly applying the law to the facts, without being influenced by ‘irrelevant factors’ in the eyes of the law, such as her own personal opinion or interest. She must have the right education and training to acquire the professional ability of understanding and applying the law and relevant facts,[13] and in some way acquire the moral integrity to steer clear of various interferences. These interferences come from multifarious sources that can potentially find infinite number of connections with the person sitting on the judicial bench. The most obvious source is the government authority from the other departments or a dominant political party, especially if these entities control some of the goods that the judge regards important to her personally. Powerful social groups may also influence the judge’s decision; indeed the fear for bad publicity may deter a judge from deciding in the way that the law dictates. The other common source, especially familiar in China, is the influence of relatives and friends in the broadest sense, who may impose a pervasive pressure upon the judge’s daily life. And a litigant may succeed in influencing the judge’s decision simply by bribing her. Of course, if the judge’s integrity is impregnable before all sorts of pressures, threats and temptations, then she in theory does not need any shield from the outside interference; in real world, however, such a person is hard to find. Although the judge’s professional and moral quality is indispensable, institutional guarantees are provided precisely to make judicial independence possible for judges who share both the virtues and weaknesses with common fallible human beings.
Even though this study is not meant to be quantitative, a more definitive model may help to make clear the mechanism for achieving judicial impartiality. Such a model should, as the foregoing discussion shows, contain the ‘dependent variable’ (labeled as Yj), which measures judicial fairness, and a number of ‘independent variables’ that affect the judicial functioning. [14] Variables are designated since they are quite numerous. There are two types of independent variables: internal (‘subjective’) and external (‘objective’), both of which are explained below.
1. Internal variables
The internal variables refer to the judge’s personal quality, including the professional ability (Xprof) and moral integrity (Xmi) of deciding cases in the right way.[15] Variables of subjective nature are difficult to measure, however, and can be usefully reduced to objective variables if possible. Since the professional ability is acquired through legal education and training, we can decompose Xprof into objective variables Xedu and Xtrain,[16] which may be expressed in turn by the years and the level of education and training. On the other hand, it is difficult to decompose moral integrity into totally objective variables. The tendency and tenacity to resist judicial corruption have been partly caught by the four institutional variables explained below, but they do not take into account personal differences. Without a clear understanding of the objective causes for moral integrity or the lack thereof, we cannot properly objectify this variable. So the residual term, Xmi, is kept to indicate the subjective difference. Although it is difficult to measure this term, its presence seems to be necessary to make the model complete.
2. External variables
The external variables refer to those environmental factors that would affect judges’ decisions; they mainly include (but are not necessarily limited to) the terms of appointment and removal (Xapr), the judges’ remuneration and working conditions (including funds for judicial operations; generally labeled as Xwc), and the judges’ personal responsibility for individual case decisions (Xind). High values for the external variables will lead to an independent judiciary, as they indicate that the judges are more entrenched in their positions, that the courts have sufficient financial capacity for independent operation and are less likely to succumb to the administrative power in exchange for funds, and that the judicial decisions are less likely to be replaced or modified by a superior external power. High values for both internal and external variables will lead to a working judicial system in the sense that it can decide cases fairly and efficiently.
3. Judicial corruption
Finally, there is the problem of judicial corruption. In a way it is the opposite of judicial fairness, as it occurs when the internal and external variables take low values, but it also serves as a constraint to judicial reform, especially regarding judicial independence. Since no judicial system in the real world can achieve perfect condition for the independent variables, the tension between judicial independence and corruption is always there. Obviously, judicial corruption will be deterred to some extent by penal law that punishes such devious behavior, and the effects of deterrence are designated by Xcor.
