法搜网--中国法律信息搜索网
濠电姷鏁告慨鐑藉极閹间礁纾绘繛鎴旀嚍閸ヮ剙绾ф俊顐㈢仛濡炶棄顕f禒瀣垫晝闁挎繂楠告禒娲⒒娓氣偓濞佳嚶ㄩ埀顒€鈹戦垾铏枠闁糕晝鍋涢鍏煎緞鐎n剙甯楅梻浣哥枃濡椼劎绮堟笟鈧鎶藉即閻樼數锛滈梺瑙勫絻椤戝棛鈧熬鎷� | 濠电姷鏁告慨鐑藉极閹间礁纾绘繛鎴旀嚍閸ヮ剙绾ф俊顐㈢仛濡炶棄顕f禒瀣垫晝闁挎繂楠告禒娲⒒娓氣偓濞佳囁囬锕€鐤炬繛鎴烆焸濞戞鐔哥附閽樺绉洪柟顔瑰墲閹棃鏁愰崱妯烘灈濠碉紕鍋戦崐褏鎷嬮敐澶婄闁跨噦鎷� | 濠电姷鏁告慨鐑姐€傛禒瀣婵犻潧顑冮埀顒€鍟村畷銊р偓娑櫭禍閬嶆⒑閸涘﹣绶遍柛銊╀憾椤㈡洘绂掔€n偆鍙嗛梺缁樻礀閸婂湱鈧熬鎷� | 缂傚倸鍊搁崐鎼佸磹妞嬪孩顐介柨鐔哄Т缁愭淇婇妶鍛櫣缁炬儳娼¢弻鐔煎箚閻楀牜妫勭紓浣哄Т濠€閬嶅箟閹间礁妫樻繛鍡樺劤濞堛劌顪冮妶鍡楃瑨閻庢凹鍓熼幃娆愮節閸ャ劎鍘撻梺鍛婄箓鐎氼剟寮冲▎蹇婃斀闁绘垵娲︾€氾拷 | 闂傚倸鍊搁崐椋庣矆娓氣偓楠炲鏁嶉崟顒佹濠德板€曢幊搴ㄥ垂閸屾壕鍋撶憴鍕婵炴祴鏅滈幈銊╁箮閼恒儳鍘繝鐢靛仜閻忔繈宕濆Δ鍛厸閻庯綆鍋嗘晶鐢告煛瀹€瀣瘈鐎规洖鐖奸崺鈩冩媴闁垮鐓曟繝鐢靛仜椤曨參濡寸€n喖绠柨鐕傛嫹 | 濠电姷鏁告慨鐢割敊閺嶎厼绐楁俊銈呭閹冲矂姊绘担瑙勫仩闁告柨鐬兼竟鏇㈩敇閵忊€虫疅闂備緡鍓欑粔瀛樺劔闂備線娼чˇ顓㈠垂濞差亝鍊堕柛鎰靛枟閳锋垿鏌涘┑鍡楊仾鐎瑰憡绻堥弻娑氣偓锝庡墮閺嬫垿鎮楅棃娑栧仮闁轰焦鎹囬弫鎾绘晸閿燂拷 | 缂傚倸鍊搁崐鎼佸磹閹间礁纾瑰瀣捣閻棗霉閿濆洤鍔嬬€规洘鐓¢弻鐔衡偓鐢登瑰暩闂佹椿鍘奸悧鎾诲蓟閿濆鍋勭紒瀣儥濡酣姊洪崫鍕靛剱闁绘濞€瀵鏁撻悩鑼€為梺瀹犳〃濡炴帡骞嬮柨瀣閻庡灚鎮堕埀顒€顑夐獮蹇涙晸閿燂拷 | 闂傚倸鍊峰ù鍥х暦閻㈢ǹ纾婚柣鎰暩閻瑩鏌熸潏鍓х暠閻庢艾顦伴妵鍕箳閹存繍浠煎┑鈽嗗亝閿曘垽寮诲☉姘勃闁诡垎鍛Р闂備礁鎼鍡涙偋閻樿钃熼柨鐔哄Т閻愬﹪鏌嶆潪鐗堫樂闁规挳鏀辩换娑氣偓鍨偠閳ь剙顑夐獮蹇涙晸閿燂拷 | 闂傚倸鍊峰ù鍥х暦閸偅鍙忛柡澶嬪殮濞差亜围濠㈢櫢绠戝ú顓㈢嵁鎼达絿椹抽悗锝庡亝濞呮捇姊绘担鍛婅础闁稿鎹囧鍛婄附缁嬪灝鍤戦梺鍝勭▉閸樹粙鎮″☉銏$厱闁靛鍨哄▍鍛归悩娆忓幘閸︻厽鍏滈梺鍨儏椤忥拷 | 闂傚倸鍊搁崐椋庣矆娓氣偓楠炲鏁撻悩鍐叉疄婵°倧绲介崯顖炲磻鐎n喗鐓曢柡鍥ュ妼閻忕娀鏌i幒鎴犱粵闁靛洤瀚伴獮瀣晲閸♀晜顥夊┑鐐茬摠缁挾绮婚弽褜娼栨繛宸簼椤ュ牊绻涢幋鐐垫噽婵☆偄绻樺铏圭矙濞嗘儳鍓遍梺鍦嚀濞差厼顕g拠娴嬫婵妫欓崓鐢告⒑缂佹ê濮﹂柛鎾寸懇椤㈡棃鏁撻敓锟� | 濠电姷鏁告慨鐑姐€傛禒瀣婵犻潧顑冮埀顒€鍟村畷銊р偓娑櫭禍閬嶆⒑閸涘﹣绶遍柛銊╀憾椤㈡洘绂掔€n偆鍘繝銏n嚃閸ㄤ即宕锔藉€跺┑鐘插暕缁诲棝鏌曢崼婵堢闁告帊鍗抽弻娑㈡偄閸濆嫧鏋呴悗瑙勬礃閸ㄥ潡鐛Ο鑲╃<婵☆垳绮鐔兼⒒娴h姤纭堕柛锝忕畵楠炲繘鏁撻敓锟� | 濠电姷鏁告慨鐑藉极閹间礁纾绘繛鎴旀嚍閸ヮ剙绾ф俊顐㈢仛濡炶棄顕f禒瀣垫晝闁挎繂楠告禒娲⒒娓氣偓濞佳囁囬锕€鐤炬繛鎴烆焸濞戞﹩娼ㄩ柍褜鍓熷璇测槈閵忕姈銊︺亜閺嶃劎鐭岄柡鍡欏У缁绘繂鈻撻崹顔界彲闂佺懓鍤栭幏锟� | 闂傚倸鍊搁崐椋庣矆娓氣偓楠炲鏁撻悩鍐叉疄婵°倧绲介崯顖炲磻鐎n喗鐓曢柍鈺佸暟閳藉绱掗悩宕囧⒌闁哄瞼鍠栧畷婊嗩槾閻㈩垱鐩弻娑㈠Χ閸℃浼岄梺鍝勬湰閻╊垶鐛崶顒€惟闁挎梻鏅ぐ鍡涙⒒娴g儤鍤€闁搞倖鐗犻獮蹇涙晸閿燂拷 | 濠电姷鏁告慨鐑藉极閹间礁纾绘繛鎴旀嚍閸ヮ剙绾ф俊顐㈢仛濡炶棄顕f禒瀣垫晝闁挎繂楠告禒娲⒒娓氣偓濞佳囨晬韫囨稑绀嬫い鎺嶇贰閸炶泛鈹戦悩鎰佸晱闁哥姵顨堥幑銏ゅ磼閻愭潙鍓堕梺缁樻尭鐎诡偊鏁愭径瀣闂佽法鍣﹂幏锟� | 闂傚倸鍊搁崐椋庣矆娓氣偓楠炲鏁撻悩鍐蹭画闂佹寧娲栭崐褰掑磻閵堝鐓涢柛銉e劚閻忊晠鏌i幒鎴犱粵闁靛洤瀚伴獮鎺楀幢濡炴儳顥氶梻鍌欑閹芥粓宕伴幇鏉跨闁规儼妫勮繚闂佺ǹ鐬奸崑鐐哄吹瀹ュ鐓忓鑸电〒閻i亶鏌涢弬鎸庡殗婵﹨娅i幑鍕Ω閵夛妇褰氶梻浣烘嚀閸ゆ牠骞忛敓锟� | 
濠电姷鏁告慨鐑藉极閹间礁纾绘繛鎴旀嚍閸ヮ剙绾ф俊顐㈢仛濡炶棄顕f禒瀣垫晝闁挎繂楠告禒娲⒒娓氣偓濞佳囁囬锕€鐤炬繛鎴欏灪閸婂嘲鈹戦悩鍙夊闁绘挻娲樼换娑㈠幢濡ゅ唭銏ゆ煕閺冣偓閼归箖鍩為幋锔绘晪闁糕剝锚椤忥拷 | 闂傚倸鍊峰ù鍥х暦閸偅鍙忛柡澶嬪殮濞差亜围濠㈢櫢绠戝ú顓㈢嵁鎼达絿椹抽悗锝庡亝濞呮捇姊绘担绛嬫綈鐎规洘锕㈤、姘愁槾缂侇喚绮€佃偐鈧稒岣块崢閬嶆⒑闂堟侗妲归柛銊ф暬瀹曨垱瀵煎ǎ顑藉亾娓氣偓閺佹捇鏁撻敓锟� | 闂傚倸鍊烽悞锕傛儑瑜版帒鏄ラ柛鏇ㄥ灠閸ㄥ倸霉閸忓吋缍戠紒鐘靛劋缁绘繃绻濋崒婊冾暫闂佸搫顑勭欢姘跺蓟閺囥垹閱囨繝闈涙搐濞呮繈姊洪崫鍕靛剱闁绘濞€瀵鏁撻悩鑼€為梺鎸庣箓濡厼岣块幋婵冩斀闁绘劗鍋i埀顒€顑夐獮蹇涙晸閿燂拷 | 濠电姷鏁告慨鐑藉极閹间礁纾绘繛鎴旀嚍閸ヮ剙绾ф俊顐㈢仛濡炶棄顕f禒瀣垫晝闁挎繂楠告禒娲⒒娓氣偓濞佳囨晬韫囨稑鐒垫い鎺戝绾惧鏌熼幑鎰靛殭闁圭鍩栭妵鍕箻鐠鸿桨绮х紓渚囧枦閸╂牜鎹㈠┑鍡忔灁闁割煈鍠楅悵顖炴⒑閻熸澘娈╅柟鍑ゆ嫹 | 濠电姷鏁告慨鐑藉极閹间礁纾绘繛鎴旀嚍閸ヮ剙绾ф俊顐㈢仛濡炶棄顕f禒瀣垫晝闁挎繂楠告禒娲⒒娓氣偓濞佳囁囬锕€鐤炬繝濠傜墛閸嬪倿鏌涚仦鎯х劰闁衡偓娴犲鐓熸俊顖濇硶缁ㄥ潡鏌涜箛鎾剁劯闁哄矉缍佹俊鎯扮疀閺傛浼� | 濠电姷鏁告慨鐑藉极閹间礁纾绘繛鎴旀嚍閸ヮ剙绾ф俊顐㈢仛濡炶棄顕f禒瀣垫晝闁挎繂楠告禒娲⒒娓氣偓濞佳囁囬锕€鐤炬繝濠傜墕閻撴洟鏌熼悜妯诲蔼濞存粍绮撻弻锟犲磼濮樺彉铏庨梺鎶芥敱濡啴寮婚悢鐓庢闁靛牆妫楅锟� | 濠电姷鏁告慨鐑藉极閹间礁纾绘繛鎴旀嚍閸ヮ剙绾ф俊顐︽涧閹碱偊鍩為幋鐘亾閿濆懎顣崇紒瀣箲缁绘繈濮€閿濆棛銆愰梺鍝勭墱閸撶喎鐣锋导鏉戝耿婵炴垶鐟ч崣鍡椻攽閻樼粯娑ф俊顐g⊕閺呭爼鏌嗗鍡欏幈闂侀潧鐗嗙换鎴犫偓姘炬嫹 | 闂傚倸鍊峰ù鍥х暦閻㈢ǹ绐楃€广儱鎷嬪〒濠氭煙閻戞ɑ鈷掗柣顓炴閵嗘帒顫濋敐鍛闁诲氦顫夊ú婵嬶綖婢跺瞼鐭夐柟鐑樻煛閸嬫捇鏁愭惔婵堝嚬濡炪們鍎茬换鍫濐潖濞差亜绠归柣鎰絻婵绱撴担鍝勑i柛銊ョ埣楠炲牓濡搁埡鍌涙闂佽法鍣﹂幏锟� | 闂傚倸鍊峰ù鍥敋瑜嶉~婵嬫晝閸屻倖鏅梺鍝勭Р閸斿酣銆呴崣澶岀瘈闂傚牊绋撴晶娑㈡煕韫囨梻鐭掗柡灞剧洴楠炴﹢鎳犵捄鍝勫腐闂佽绻愮换鎺楀极婵犳艾钃熼柕濞炬櫆閸嬪棝鏌涚仦鍓р槈妞ゅ骏鎷� | 濠电姷鏁告慨鐢割敊閺嶎厼绐楁俊銈呭閹冲矂姊绘担瑙勫仩闁告柨閰e顐ゆ嫚瀹割喖娈ㄩ梺鍝勮閸庨亶锝為崨瀛樼厽婵妫楁禍婵嬫煟韫囨挸鏆f慨濠冩そ瀹曨偊宕熼鈧粣娑欑節濞堝灝娅嶇紒鐘崇墵閺佹劙鎮欓悜妯绘闂佽法鍣﹂幏锟� | 闂傚倸鍊峰ù鍥х暦閻㈢ǹ纾婚柣鎰暩閻瑩鏌熸潏鍓х暠閻庢艾顦伴妵鍕箳閹存繍浠煎┑鈽嗗亝閿曘垽寮诲☉姘勃闁诡垎鍛Р闂備礁鎼鍡涙偋閻樿钃熼柨鐔哄Т閻愬﹪鏌嶆潪鎵偧妞ゆ帊闄嶆禍婊勩亜閹伴潧澧悗姘炬嫹 | 缂傚倸鍊搁崐鎼佸磹閹间礁纾瑰瀣捣閻棗霉閿濆洤鍔嬬€规洘鐓¢弻鐔衡偓鐢登瑰暩闂佹椿鍘奸悧鎾诲蓟閿濆鍋勭紒瀣儥濡酣姊洪崫鍕靛剱闁绘濞€瀵鏁撻悩鑼€為梺瀹犳〃缁插潡顢楁担鍏哥盎濡炪倖鍔﹂崜姘扁偓姘炬嫹 | 闂傚倸鍊搁崐椋庣矆娓氣偓楠炲鏁嶉崟顒佹濠德板€曢幊搴ㄥ垂閸岀偞鐓曢柟鎹愬皺閸斿秹鏌涜箛鏃傜煉闁哄本鐩獮姗€鎳犵捄鍝勫腐闂佽绻愮换鎺楀极婵犳艾钃熼柕濞炬櫆閸嬪棝鏌涚仦鍓р槈妞ゅ骏鎷� | 缂傚倸鍊搁崐鎼佸磹妞嬪孩濯奸柡灞诲劚绾惧鏌熼崜褏甯涢柣鎾存礃缁绘盯宕卞Δ鍐冦垽鏌涢弬璇测偓妤冩閹烘绠涙い鎾楀嫮鏆︾紓鍌欒兌缁垳绮欓幒鎴殫闁告洦鍘搁崑鎾绘晲鎼粹€茬敖濡炪倧瀵岄崣鍐蓟閿濆鍊烽悗鐢登归弳锟犳⒑閻熸澘娈╅柟鍑ゆ嫹 | 濠电姷鏁告慨鐑姐€傛禒瀣婵犻潧顑冮埀顒€鍟村畷銊р偓娑櫭禍閬嶆⒑閸涘﹣绶遍柛銊╀憾椤㈡洘绂掔€n偆鍘繝銏n嚃閸ㄦ壆鈧凹鍙冨畷鏇㈡焼瀹ュ棛鍘介柟鍏兼儗閸ㄥ磭绮旈棃娴㈢懓饪伴崟顓犵厜闂佺硶鏅紞渚€寮幘缁樻櫢闁跨噦鎷� | 闂傚倸鍊搁崐椋庢濮橆兗缂氱憸宥堢亱閻庡厜鍋撻柛鏇ㄥ亞閿涙盯姊洪悷鏉库挃缂侇噮鍨堕幃陇绠涘☉娆戝幈闂佺偨鍎辩壕顓犵不閺夋5鐟扳堪閸垻鏆┑顔硷攻濡炶棄螞閸愩劉妲堟繛鍡樕戦ˉ鏃堟⒒娴e懙褰掝敄閸℃稑绠查柛銉墮閽冪喖鏌¢崶銉ョ仼妤犵偑鍨介悡顐﹀炊閵婏箑鐭繝銏㈡閹凤拷
转型中的人民法院:中国司法改革展望

  
  The academic community also shares part of responsibility for providing shoddy recommendations. Recently some Chinese scholars propose that announcement of judicial decisions on court, right before the litigants at the end of arguments, as effective means both for curbing judicial corruption (since it reduces the chance that the litigants can influence the judges’ decisions by bribery and personal relationship behind the scene) and improving trial efficiency (since it saves the time for deliberation). And the press reports are quick to applaud for the clean dockets of some courts by the end of each year. Of course, the judicial efficiency of the Chinese courts need be greatly enhanced, but that does not simply mean the increase in the numbers of cases that a judge tries per day.[111] The Chinese scholars are quick to learn the English idiom that ‘delayed justice is no justice’, but they seem to have forgot that mistaken ‘justice’ is no justice either! The emphasis on the speed of judicial decisions itself is dangerous since it may seriously undermine the quality of the decisions, which is by no means high as it currently stands. It is well recognized in the west that equity and speed of justice have always been a pair of contradictions,[112] but China is yet to overcome the ‘hopeless worldly optimism’ that Max Weber associates with the Chinese culture, which have in the recent decades created human tragedies of great scale.[113] Although parts of the current Chinese judicial process might be cut short without undermining equity, the emphasis on numbers at best misunderstood the western system and at worst could lead the on-going reform astray. Articles often cite how many cases an average American judge decide every year, but fail to note that the numbers are greatly inflated by overwhelming amount of small-claims cases such as parking violations and rent payment disputes, and that the Chinese counterparts can easily ‘get the numbers right’ once similar courts are established there (and indeed a few of such courts are being set up in major cities like Beijing). But that would simply miss the key aspect of the judicial reform.
  
  Despite the apparent successes, then, a neutral diagnosis is still needed for the Chinese judicial reform.
  
  
  2. Success or Failure? A Tentative Prognosis
  
  The Chinese judicial reform contains many components that are likely to meet different degrees of success. Although almost all areas of the judicial reform are expected to encounter difficulties of various kinds, but some reform measures are more easily implemented than others. Here I distinguish three types of measures, designated by the variables discussed in Part I; the measures taken by the Chinese judicial reform may fall in any one of the categories or a combination of them. The first category is the ‘material’ variables, referring to the physical conditions, such as Xwc. The material variables are perhaps the easiest to improve if it is technically feasible, since it is unlikely to offend and thus invite opposition from any particular block of power holders. They will be improved immediately as long as the government is able and willing to do so. The second category is the ‘personal’ variables, referring to relatively pure personal quality of the judiciary, for example, those as measured by Xedu and Xtrain. This respect of the judicial reform is likely to illicit social consensus, but improving the variables could be difficult owning to their nature. The third and most important category is the ‘institutional’ and ‘cultural’ variables. For our purpose they include the most significant group of the variables identified in this paper, such as Xind and Xapr. They are also the most difficult to change because the improvement is likely to be resisted by some dominant political forces, which perceive change in the current institutional setting as adversely affecting their interest. Of course, these categories are by no means neat and clean, but rather interact with each other (for example, one way to improve the professional quality of the judiciary is to make the court institutionally attractive to the college graduates trained in law). And a few variables may defy single classification; Xmi and Xcor, for example, are as much personal as institutional or cultural. Nevertheless, the simple characterization offered here will still be helpful to the analysis of different aspects of the judicial reform.
  
  First, The material measures are technically feasibly and are unlikely to encounter significant human resistance. Increasing the judges’ salaries and the funding necessary for carrying out investigations, improving their working conditions and providing them with trained assistants (Xwc) -- these measures can be accomplished as long as the material (particularly, financial) conditions are satisfied. Yet, although progress in this respect might come surely, it turns out to be exceedingly slow for a large number of courts located in the poor areas, which are seriously handicapped in providing judicial finance.[114] The situation in some areas might get aggravated owning to the economic reform, which has resulted in the shutting down of many state-owned enterprises, severely reducing the local tax income. Since even the Outline for judicial reform did not mention a word about helping out these local courts by the central government, we expect to see that the disparity in judicial quality will continue (or even enlarge) at the national scale. And, of course, money is obviously not the only issue. A higher salary and better working conditions do not necessarily improve the quality of judicial judgments; they may not even be effective in curtailing judicial corruption.[115] So other aspects of the reform must follow simultaneously, yet their success is even less guaranteed than the material improvements.
  
  Second, the personal variable can be slow to change because some aspects of human endeavor are set by the law of nature, and it simply takes time to modify the current situation no matter how strongly humans wish to change. Improving the quality of the judicial personnel (Xprof), for example, is bound to be a long-term project, and cannot be accomplished alone by a government-initiated movement; it is often the case that the ‘software’ develops much more slowly than the ‘hardware’. As the old Chinese proverb says, ‘It takes ten years to grow a tree, a hundred years to establish a person’; it will take efforts of several generations for the Chinese judiciary to reach a level of professional competence comparable to their western counterparts, provided that everything else goes smoothly.[116] The Chinese government has attempted to speed up the change by introducing competition to the courtrooms, but as discussed above, the measures taken here seem to be misconceived at the first place and the effects are at best mixed. Probably the most ‘malleable’ variable that the reform can tamper with is the judicial training (Xtrain), to which the government has already devoted much effort. Yet post hoc training may have some inherent limits that it simply cannot transcend; to be a qualified judge one need not begin preparation in kindergarten, but it will be too late after he has grown up without the right kind of education.
  
  Finally, there are aspects of the judicial reform that will follow even less certain paths since they depend on the interactions of various sections of human interests and the ability to dissolve or circumvent the major resistant forces. Of course, some technical (and in a sense ‘material’) reforms might be easier to accomplish, such as streamlining the judicial process and cleaning up bottlenecks, but these are also rather trivial and insignificant to the main purpose of the judicial reform.[117] The core tasks are much harder to accomplish. Switching to the vertical management style, with the central government controlling the purses of all courts nationwide, is likely to be resisted by the local governments and, even if it is fully implemented, it is still difficult to predict how much impact the measure will have on reducing local protectionism. One must remember that the judges still depend on the local congresses for their reappointments and promotions, and on the administrative power for funds and benefits. And even though the judges are made independent by name, they will still be subject to administrative and political control now made less invisible. The tangible incentive provided by Articles 27 and 28 of the Judges Law for good judicial performance reminds one of the traditional reward-punishment scheme designed for an ordinary bureaucracy. Indeed the competition mechanism introduced by the Outline might further reduce rather than enhance judicial independence. It is likely to instigate political battles among the judges, facilitate the Party’s paramount control over the judicial process, and pave the way toward building a new patron-client network within the courts. For one thing, in the examination of judicial performances, the evaluation of the party committee would count for 40 percent of the total score.[118] Politics still holds overwhelming discretionary power over the supposedly tribunals of justice.
  
  
  3. Inherent Limits to Judicial Independence: Party Politics versus Courts and Rule of Law
  
  The most direct and fundamental limit to the Chinese judicial reform is still its political system.[119] Political control of the judiciary has been a perennial feature of the CCP history; the working style of authorizing the party committee and secretary to approve the judicial decisions, and the Political and Legal Committee [Zhengfa Weiyuanhui] to settle disputes, had been established as early as during the Yan’an period.[120] The current Constitution, enacted in 1982, formally recognizes in its Foreword the leading role of the CCP; as the party was not mentioned elsewhere in the Constitution, the limit of its power remains undefined. On the other hand, the 1982 Constitution explicitly stipulates that ‘The People’s Courts independently exercise the judicial power according to the provisions of law, and are not to be interfered by administrative agencies, social organizations, and individuals’.[121] It seems that, to avoid logical contradiction, any judicial independence is to be interpreted within the contour of the political power of the party; that is, the courts are ‘independent’ only insofar as they deal with cases without adverse effects to the party, and are obliged to accept the party’s command as soon as the party’s interest is implicated. The latter is true whenever the case deals with any ‘political question’, as in the recent judgment on the appeal of the former Beijing major, Chen Xitong, who was sentenced to 16 years imprisonment for embezzlement. Although the SPC offered some legal reasoning,[122] it can be safely expected that the judgments of the lower courts was simply to be affirmed since Chen’s sentence was already politically decided. The same can be said about the case against the former vice chairman of the NPC Standing Committee, Cheng Kejie, who was sentenced to death for alleged embezzlement.[123] In this type of political judgments, the Chinese court has no alternative but to formally confirm what the Party has already decided. In fact, the Outline itself requires the judicial reform to follow the principle of the party leadership, along with principles of the ‘democratic dictatorship’ as the form of the state and the political institutions represented by the NPC (Para. 4). The official ‘point of departure’ [Chufadian] is always the ‘particular circumstances of the Chinese state’ [Guoqing], though ‘beneficial experiences’ of foreign courts and judicial management can be borrowed. In a high-level conference about the on-going judicial reform, the president of the SPC expressly turned down the possibility of pursuing the type of judicial independence in the western model of separation of powers, and reinstated the need for the party leadership and the ‘party control of [judicial] cadres’ [Dangguan Ganbu].[124]
  
  The party can intervene a judicial decision in several ways.[125] First and most obvious, the president and vice presidents of any court are usually party members, who are subject to the party discipline. Since the president is held responsible for the whole court, the party can achieve effective control over the court through the presidential responsibility system.[126] Further, it is still common for the party secretary of the Political and Legal Committee, often the same person as the chief of the Public Security Bureau, to discipline the court president with the party principles. Finally, the party in fact is responsible for initiating and pushing forward all major political and legal reform activities. The most recent amendment on ‘rule of law’, for example, was first raised as a proposal in the CCP Charter during the 15th Party Congress before it was copied verbatim to the Constitution. Nor could the judicial reform be launched without approval of the major party leaders. Thus both the mobility and inertia of the Chinese judicial system depends crucially on the party. This brings serious question to the possibility of establishing a true independent judiciary in which individual judges are held ultimately responsible not to the political will, but to the law. After all, the administrative leadership and the trial committees are still the integral part of the court structure, through which the party can step in and supervise judicial judgments whenever the cases are deemed ‘important’, ‘complicated’ or ‘difficult’.


第 [1] [2] [3] [4] [5] [6] [7] [8] [9] 页 共[10]页
上面法规内容为部分内容,如果要查看全文请点击此处:查看全文
【发表评论】 【互动社区】
 
相关文章




婵犵數濮烽弫鎼佸磻濞戔懞鍥级濡灚妞藉浠嬵敃閿濆骸浠洪梻渚€娼ч¨鈧┑鈥虫喘閸╃偛顓兼径瀣帗闂佸疇妗ㄧ粈渚€寮抽弴鐘电<闁规彃顑嗙€氾拷 | 婵犵數濮烽弫鎼佸磻濞戔懞鍥级濡灚妞藉浠嬵敃閿濆骸浠洪梻渚€娼чˇ顐﹀疾濞戞娑樜熸總钘夌秺閹剝鎯旈敐鍡樺枛婵$偑鍊х拋锝夊箯閿燂拷 | 婵犵數濮烽。浠嬪礈濠靛鈧啴宕ㄧ€涙ê浜遍梺鍛婁緱閸ㄩ亶顢曟禒瀣叆闁绘洖鍊圭€氾拷 | 缂傚倸鍊搁崐椋庢閿熺姴绐楁俊銈呮噹绾惧潡鏌熼幆鐗堫棄缂佺姴婀遍幉鎼佸棘濞嗘儳娈ㄥ銈嗗笒鐎氼剟鎮欐繝鍥ㄧ厓闁告繂瀚弳娆忊攽閻戝洦瀚� | 闂傚倸鍊风粈渚€骞夐敍鍕殰婵°倕鎳庨崹鍌溾偓瑙勬礀濞测晜鎱ㄩ幎鑺ョ厪濠电偛鐏濋崝妤呮煛鐎n偆澧甸柡宀嬬節瀹曞爼鍩℃担閿嬪煕濠电偛顕妴瀣箯閿燂拷 | 婵犵數濮甸鏍窗濡ゅ嫭鎳岄梻浣规偠閸斿瞼澹曢銏″殟闂侇剙绉存儫闂侀潧顦崹娲倶閸愵喗鈷戦柛婵嗗瀹告繈鏌涚€n剙鏋戦悗闈涖偢閺佹捇鏁撻敓锟� | 缂傚倸鍊搁崐鎼佸磹妞嬪海鐭嗗ù锝囧劋瀹曟煡鏌熺€电ǹ啸闁活厼鐗撻弻锝夋偄缁嬫妫庨梺鍝勵儐閻楃娀寮婚敓鐘茬倞闁宠桨妞掗幋閿嬬箾鐎垫悶鈧骞忛敓锟� | 闂傚倷娴囧畷鐢稿磻閻愮數鐭欓柟杈剧畱鐎氬銇勯幒鎴濐仼婵☆偅锕㈤弻娑氫沪閹呭姲闂佸搫顑嗛悧鐘诲蓟閿熺姴鐐婇柍杞版閹撮攱绻涚€垫悶鈧骞忛敓锟� | 闂傚倷娴囧畷鍨叏閺夋嚚娲Χ婢癸箑娲獮搴g驳鐎n偅娅撻梻浣告贡閸嬫捇寮告總绋垮嚑闁哄稁鍘介悡娑㈡煕閵夈垺娅呭ù鐘欏厾鍦兜闁垮顏� | 闂傚倸鍊风粈渚€骞夐敓鐘冲殞濡わ絽鍟崑瀣煕閳╁啰鈽夌紒鐘崇墵閺屻劑鎮ら崒娑橆伓 | 婵犵數濮烽。浠嬪礈濠靛鈧啴宕ㄧ€涙ê浜遍梺鍛婁緱閸ㄩ亶顢曟禒瀣厪濠㈣鍨伴崯顐︽倶婵犲啩绻嗛柕鍫濈箳閸掍即鏌涢悢鍝勨枅鐎规洘鍨块獮妯肩磼濡粯顏熼梻浣芥硶閸o箓骞忛敓锟� | 婵犵數濮烽弫鎼佸磻濞戔懞鍥级濡灚妞藉浠嬵敃閿濆骸浠洪梻渚€娼чˇ顐﹀疾濞戞娑橆潨閳ь剟寮诲☉銏犖ㄦい鏍ㄧ矌閺嗙姵绻濆▓鍨珯闁瑰嚖鎷� | 闂傚倸鍊风粈渚€骞夐敓鐘冲殞濡わ絽鍟崑瀣煕閳╁啰鈽夌紒鐘崇墵閺岀喖宕滆鐢盯鏌涢妶鍡楃伌闁哄本鐩獮鍥Ω閿旂晫褰嗛梻浣烘嚀閸ゆ牠骞忛敓锟� | 婵犵數濮烽弫鎼佸磻濞戔懞鍥级濡灚妞藉浠嬵敃閿濆骸浠洪梻渚€娼ч敍蹇涘礋椤掍緡鍞跺┑鐘愁問閸犳鎹㈤崒鐐村剶闁绘挸瀹敐澶嬫櫢闁跨噦鎷� | 
婵犵數濮烽弫鎼佸磻濞戔懞鍥级濡灚妞藉浠嬵敃閿濆骸浠洪梻渚€娼чˇ顐﹀疾濞戙垺鍊峰┑鐘叉处閻撴洘绻涢崱妤冃㈤柛鏃€鑹鹃埞鎴︻敋閸℃ê顏� | 闂傚倷娴囧畷鍨叏閺夋嚚娲Χ婢癸箑娲獮搴g驳鐎n偅娅撻梻浣筋潐瀹曟﹢顢氳缁粯瀵肩€涙ḿ鍘遍梺闈涱槹閸ㄧ敻宕导娣偓渚€鏁撻敓锟� | 闂傚倷鐒﹂惇褰掑春閸曨垰鍨傚ù鍏兼綑缁犵儤绻濇繝鍌滃闁哄绶氶弻鏇㈠醇濠靛洤娅濋梺鍝勵儐閻楃娀寮婚敓鐘茬倞闁挎繂妫ḿ鎴濃攽閻愮偣鈧骞忛敓锟� | 婵犵數濮烽弫鎼佸磻濞戔懞鍥级濡灚妞藉浠嬵敃閿濆骸浠洪梻渚€娼ч敍蹇涘焵椤掑嫬纾婚柟鎹愵嚙閹硅埖銇勯幘璺轰粧缂侇喛鍩栫换婵嗏枔閸喗鐝梺鐟板殩閹凤拷 | 婵犵數濮烽弫鎼佸磻濞戔懞鍥级濡灚妞藉浠嬵敃閿濆骸浠洪梻渚€娼чˇ顐﹀疾濠婂牊鍋傞柛灞惧焹閺€浠嬫煟濡法绨块柛蹇撶焸閺岋綁濡惰箛鏂款伓 | 婵犵數濮烽弫鎼佸磻濞戔懞鍥级濡灚妞藉浠嬵敃閿濆骸浠洪梻渚€娼чˇ顐﹀疾濠婂牆鐓曢柟鐑樻尪娴滄粓鏌¢崒姘变虎闁抽攱妫冮弻鐔煎棘閵堝棗顏� | 婵犵數濮烽弫鎼佸磻濞戔懞鍥级濡潧鎼埞鎴犫偓锝呭缁嬪繑绻濋姀锝嗙【闁哄牜鍓熷畷浼村幢濞戞瑧鍙嗗┑鐘绘涧濡稒鏅堕柆宥嗙厱闁靛牆绻戠€氾拷 | 闂傚倷娴囧畷鐢稿窗瀹ュ拋娓婚柟鐑樻⒒閻棗銆掑锝呬壕閻庤娲濋~澶岀矉閹烘柡鍋撻敐搴濈凹妞ゃ儲绻堝娲箹閻愭彃濮风紓浣哄У閸ㄥ爼骞堥妸鈺傛櫢闁跨噦鎷� | 闂傚倷娴囬褍顫濋敃鍌ゆ晪闁哄秲鍔庨々鍙夌節闂堟稓澧涢柛蹇旂矒閺屾盯骞橀懠璺哄帯闁诲繐绻掗弫濠氬蓟閵娾晜鍋嗛柛灞剧☉椤忥拷 | 婵犵數濮甸鏍窗濡ゅ嫭鎳岄梻浣规偠閸斿酣寮拠宸殨闁哄被鍎遍~鍛存煟濮楀棗浜濋柣蹇撳暣濮婃椽宕崟顒€绐涙繝娈垮櫍缁犳牠鏁愰悙鐑樻櫢闁跨噦鎷� | 闂傚倷娴囧畷鐢稿磻閻愮數鐭欓柟杈剧畱鐎氬銇勯幒鎴濐仼婵☆偅锕㈤弻娑氫沪閹呭姲闂佸搫顑嗛悧鐘诲蓟閿熺姴鐐婇柍杞扮悼椤掍降浜滄い鎰靛墯鐎氾拷 | 缂傚倸鍊搁崐鎼佸磹妞嬪海鐭嗗ù锝囧劋瀹曟煡鏌熺€电ǹ啸闁活厼鐗撻弻锝夋偄缁嬫妫庨梺鍝勵儐閻楃娀寮婚敓鐘茬倞闁宠桨绲块浣典簻妞ゆ劦鍓氱€氾拷 | 闂傚倸鍊风粈渚€骞夐敍鍕殰婵°倕鎳庨崹鍌炴煕閹捐尙鍔嶉柛蹇旂矒閺屾盯骞橀懠璺哄帯闁诲繐绻掗弫濠氬蓟閵娾晜鍋嗛柛灞剧☉椤忥拷 | 缂傚倸鍊搁崐椋庢媼閺屻儱纾婚柟鍓х帛閻撴洘绻涢崱妤冃㈤柛鏂诲€楃槐鎺楀箛椤撗勭暦缂備胶绮粙鎺戭嚗閸曨厸鍋撻敐搴′簽妞わ富鍙冮弻锝夋倷鐎电ǹ鏆¢梺鐟板殩閹凤拷 | 闂傚倸鍊风欢姘缚瑜嶈灋鐎光偓閸曨偆锛涢梺鐟板⒔缁垶鎮¤箛娑欑厱闁炽儱纾粻鏉棵瑰⿰鍫㈢暫婵﹥妞藉Λ鍐ㄢ槈濞嗘ɑ顥旈梻浣呵归鍡涘箲閸ヮ剙钃熼柡鍥ュ灩楠炪垽鐓崶銊﹀矮濠㈢櫢鎷�