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????????????? Key issues to the Reform of the Judicial System in China

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Key issues to the Reform of the Judicial System in China By TONG Zhiwei THANKS FOR YOUR ATTENTION ! – PowerPoint PPT presentation

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Title: ????????????? Key issues to the Reform of the Judicial System in China


1
?????????????Key issues to the Reform of the
Judicial System in China
  • By TONG Zhiwei ???

2
?????????Introduction, Some Recent Cases
3
  • (?)????????????????,?????????
  • (I)In Criminal trial, Some Typical Cases.Its
    Difficult for Courts to Exclude Illegal Evidence,
    and the Habit of Torture Spread.

4
Some cases
  • 1.??????????????
  • Bo xilai case of bribery, corruption and abuse of
    power
  • 2.????????
  • Li and others case of gang rape case 
  • 3.??????????????
  • Xu Zhiyoung case of alleged crimes organizing a
    mob to disturb public order?

5
  • 4. ???????????(2013???)
  • ZHANG Gaoping and ZHANG Hui Homicide
    Case(corrected in 2013)
  • 5. ??????(2010???)
  • ZHAO Zuohai Murder Case (corrected in 2010)

6
  • (?)????????????????
  • (II)In the Civil Trial Local Protectionism
  • ??????????????????????????
  • Typical Cases Sichuan Construction Decoration
    engineering Co., LTD., Request Deposit -return
    Case

7
  • (?)??????????????????
  • (III) Administrative Trial Courts Usually Yield
    to the Administrative Organ
  • ???? Typical Cases
  • 1. ???????????
  • 1. REN Jianyu v Chongqing's re-education through
    Labor Committee
  • 2.????????????????????????????????
  • 2. LIU Guangjia, ZHU Rongzhou v. Minhang District
    Government Forced Demolition of Private Museum
    and the Supplementary Administrative Compensation
    Case.(2013,Shanghai)

8
  • ?????????
  • I. The Scope of "Judicature" in China

9
  • ?????????????,???,????????,???????????????????
  • If admitted that "judicial" and " trial" are
    synonym, we can say that the core content of
    "judicial" refers to the trial activities by the
    courts according to Chinese Constitution.
    Although article 89 of the constitution mentioned
    the "judicial administration which belongs to a
    department under the State Council.

10
  • ?????,???????????????,??????????,???????????????
    ??????????????????????
  • In China, the word "judicature" or "judicial is
    usually defined in broad terms for the most
    cases, usually including the court,
    procuratorate, even including the police
    exercising criminal investigation and so-called
    judicial administrative department in executive
    branch.
  • The word "judicial organs" include all these
    agencies according to Criminal Law of China.

11
  • (?)?????????????????????????????
  • (I)specifically refer to the court and its
    functions and powers in the constitution. The
    following is the major clauses that are related
    with the "judicial" in Chinas constitution
  • ???????????
  • ?Constitution of the People's Republic of China?
  • ?123?????????????????????
  • Article 123 The peoples courts of the Peoples
    Republic of China are the judicial organs of the
    State.

12
  • ?126??????????????????,??????????????????
  • Article 126 The peoples courts exercise
    judicial power independently, in accordance with
    the provisions of law, and not subject to
    interference by any administrative organ, public
    organization or individual.
  •  ?127???????????????
  • Article 127 The Supreme Peoples Court is the
    highest judicial organ.

13
  •  ?131???????????????????,??????????????????
  • Article 131 The peoples procuratorates exercise
    procuratorial power independently, in accordance
    with the provisions of law, and not subject to
    interference by any administrative organ, public
    organization or individual.
  • ?132????????????????
  • Article 132 The Supreme Peoples Procuratorate
    is the highest procuratorial organ.

14
  • ?135??????????????????????,??????,????,????,?????
    ????????
  • Article 135 The peoples courts, the peoples
    procuratorates and the public security organs
    shall, in handling criminal cases, divide their
    functions, each taking responsibility for its own
    work, and they shall coordinate their efforts and
    check each other to ensure the correct and
    effective enforcement of law.

15
  • (?)?????????????,?????????????????????????????????
    ??????????
  • (II)In general law,judicial organs mainly refer
    to the court, procuratorate, but also include the
    criminal investigation department in public
    security, national security departments and the
    judicial administrative departments in the State
    Council

16
  • ???????????
  • ?Criminal Law of the People's Republic of China?
  • ?396??2??????????????????,????????????,??????????
    ???,??????????
  • Article 396(2)Judicial organizations and
    administrative and law enforcement organizations
    which violate state stipulations by privately
    distributing to groups of individuals fines and
    confiscated goods that should be turned over to
    the higher authorities, shall be punished in
    accordance with the stipulations of the preceding
    paragraph.

17
  • ?400??1??????????????????????????,??????????????
    ????,????????????????????,??????????
  • Article 400(1)Judicial work personnel who
    release without authority crime suspects, accused
    persons, or criminals from custody shall be
    punished with imprisonment or criminal detention
    of less than five years or -- for cases of a
    serious nature -- with imprisonment of over five
    years and less than 10 years or -- for cases of
    an extraordinary serious nature -- with
    imprisonment of over 10 years.

18
?????????????????II.The core issueIts very
difficult for the courts to exercise the judicial
power independently
19
  • (?)?????
  • (I) The courts have low status in the Chinese
    political and legal system
  • 1.?????????????????
  • 1. The courts constitutional status is much
    lower,compared with the courts in west
    countries,such as Europe countries,the United
    States and Japan etc.

20
  • 2. ????????????????????,???????????????????
  • 2. Legal status of the court is lower than that
    in the constitutional text. The courts real
    status is lower than that of the administrative
    organs in China's legal system

21
  • 3. ????????????????????????,??????????????????????
    ??????
  • 3. The courts political position is much weaker
    than that in the text of laws. Looking from the
    ruling partys position arrangement, the courts
    status is only equal to a department of middle
    importance in administrative branch.

22
  • (?)?????
  • (II)The Court Localization
  • ???101???128??????????????????????????????????
    ?? ?????????????????????? 
  • The article 101 and article 128 of the
    Constitution stipulate respectively Local
    peoples congresses at or above the county level
    elect, and have the power to recall, presidents
    of peoples courts at the corresponding
    levelLocal peoples courts at various levels are
    responsible to the organs of state power which
    created them.

23
  • ??????????????????,????????????,????????????????
    ???????????
  • Local organic law stipulates the president of
    court should be elected by the people's congress
    at the corresponding level, the vice presidents
    and judges should be nominated by the president,
    and appointed by the Standing Committee of
    People's Congress at the corresponding level The
    court are subject to supervision by PCs at the
    corresponding levels, responsible to the People's
    Congress at the corresponding level.

24
  • (?)?????
  • (III) Administrative intensification of the
    court
  • ??????????????????,????????????????????
    ?????
  • The Chinese constitution stipulates
    court rather than judge exercises the judicial
    power independently, but courts are collective
    organizations. There is no provision that allow
    a judge to exercise the judicial power
    independently, and only obey the law.

25
  • (?)????????????????
  • (IV)Powers are excessively concentrated on the
    party committee and the individual party
    secretary 1. ??????????????(??,2006??)?
  • 1. The case that local party secretary directly
    intervened  in. Jishan "defamation" case (Shanxi,
    sentenced in 2006)
  • 2. ???????????????????????????????
  • 2. The cases that the Politics and Law Committee
    "coordinated"SHE Xianglin case ZHAO Zuohai
    case LI Zhuang case.

26
????????????????????III. The Direction of the
Judicial System Reform Ensure the Judicial
Power Being Exercised Independently
27
  • ?????????????????
  • To ensure the judicial power being exercised
    impartially in accordance with the law
    independently.
  • ?????????
  • How to implement the idea?

28
  • 1. ????,????????????,?????????,???????????????????
    ???,???????,????????
  • 1. Perhaps the best choice is to amend the
    Constitution, let the court no longer produced by
    the local congress at the corresponding level, no
    longer subject to the supervision of local
    congress at the corresponding level, no longer
    responsible for the local congress at the
    corresponding level. Court can be created by the
    superior congress, are subject to supervision by
    the superior congress, and responsible for the
    superior congress.

29
  • 2.????????????????????
  • 2. To ensure judges handle cases independently in
    their court.
  • 3.?????????????????????????
  • 3. Implementation of the stipulation about the
    court hearing in public and the accused s right
    to defend.
  • ????124?????????,???????????,?????????????????
    ?
  • ?Article 125 Except in special circumstances
    as specified by law, all cases in the peoples
    courts are heard in public. The accused has the
    right to defend. ?

30
  • 4. ????1982???,??(??????)?????????????????????????
    ,?????????????????????????????????????
  • 4. To implement the 1982 Constitution, the court
    (procuratorate also) should no longer report
    works to the congress, the members of congress
    should no longer ask court for an explanation
    .For this purpose, the National People's Congress
    and its standing committee should review
    constitutionality of the relevant laws, and end
    the effectiveness of the relevant provisions.

31
  • 5.?????135?,?????????????????,?????????????????
    ?????????????????????
  • 5. To interpret the article 135 of the
    constitution, and make them clear the
    coordination between the court,procuratorate and
    public security organs refers only to the
    cohesion of the handling procedures , and its
    goal is to ensure the correct and effective
    enforcement of law for the purpose of ensuring
    the correct and effective enforcement of law,
    check each other between the three parties is
    basic guarantee.

32
  • 6.????????????,???(??????)????????????????????,???
    ?(?????????)??????????????????????????????????????
    ????????????(????)???????????????????
  • 6. Drawing lessons from the experiences in the
    countries or regions based on the rule of law,
    each judges legal opinion in a collegial panel
    (or a judicial committee) should be recorded in
    the written judgment, and the opinion of the
    court (the opinion of the majority in a collegial
    panel),the concurring opinion and the dissenting
    should be all clear. So its very easy to confirm
    each judges legal, moral and political
    responsibilities to the written judgment of a
    case.

33
  • ???????????????????,?????????????,??????????
  • If the judicial reforms in China can be deepened
    from these six aspects, there must be some
    constitutional resilience, more or less, and some
    of the long-awaited results can be achieved.

34
THANKS FOR YOUR ATTENTION !
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