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E. On going process of judicial reform and growth of the legal profession
The people’s courts of China are working on judicial reform.[58] We might generalize the aims as judicial justice, efficiency and rationalization of organization of the courts. Below are the some aspects of judicial reform.
First is law enforcement. The courts of law ought to be the guardian of social justice so it should have enough authority to realize this mission. However, the courts have been dependent on administrations for more than two thousand years. The government officials had judicial functions in the old Chinese Empire. Traditionally the magistrate was much more influential than the chief judge of the court was. Many persons do not follow the judgements of the courts because they do not think that the courts are real authoritative organs. Therefore, the people’s courts of China have conducted a campaign called “ the year of enforcement of the judgements” for two years since 1999. The main purpose of the campaign was to enforce the judgements of the courts. The by-product of that campaign would be to strengthen judicial authority.
The second is the reform of civil procedure. The important reform of civil procedure is to introduce the adversarial system. The judges do not have to collect evidence any more, because the lawyers of the two parties have to do more to win the case, which avoids a lot of corruption[59] and saves the budget of the courts.
The third is reform of the internal organization of the courts. In China, judicial independence takes the form of the courts independence instead of the judge’s independence. The problem is that the internal system of the court is organized as an administrative hierarchy in which some senior judges act as the presidents of the courts or the chief judges of the divisions and they can unfairly influence other judge’s decisions. The courts and the lawmakers have begun to take these issues seriously and have started to change the situation.[60]
The fourth is the cultivation of the autonomy of the legal profession besides those institutional reforms. The competence, conscience and ethics of the legal profession are important to realize the rule of law and judicial justice. This is true in every country and more important in the current process of the rule of law in China. At the present it is important to build up an autonomous legal community within which the members will be disciplined by the community. That can maintain the integrity of legal profession on the one hand and prevent the interference from outside influences on the other hand. That is what legal education and legal studies need to do and what they are doing. Now, The Supreme Court of China has started to publish the judgements of the court step by step in the media and on the Internet, in order to increase transparency and receive the supervision of the people.[61] The publication is significant because it will not only speed up the cultivation of the autonomy of the legal profession, but will also act as a check and balance on the powers between the government branches in the future. The author even dares to foresee the dawn of Chinese case law system.
The most recent development of this aspect is that the first national uniform judicial exam will take place in the beginning of 2002. It is decided jointly by the Supreme People’s Court, the Supreme People’s Procuratorate and the Judicial Ministry in accordance with the amendments of Law of Judges P. R. C. and Law of Prosecutors of P. R. C. in July 2001. The new uniform exam will replace the old separate exams among lawyers, judges and prosecutors. [62]Because people complained that the many judges and prosecutors were not qualified for many years and it was attributed to that phenomenon that the entry’s exams of judiciary was too easy.[63] The purposes of the new exam are to make the entry of judiciary more restricted to promote the professional qualification of legal profession and to connect the fluid channel within the legal profession.[64] It will surely better guarantee the competence, conscience and ethics of the legal profession and the potential impact of it will be the promotion of the autonomy of legal community.
In conclusion, the ideal and reality of the rule of law have interacted in a dynamic process in China. There has been only twenty-three years of construction work. Hence, the rule of law is just like a newborn baby and it is an on going process. There are still many tough issues to be dealt with. Notwithstanding, it will be realized gradually but eventually.
【注释】 *I thank Prof. Elizabeth K. Spahn, Dr.Benjamin L. Liebman, Dr. Volker Roeben and Miss Deborah Kwan for their important comments, editorial help and Mr. Jie Ning for his assistance.
> Ph. D., Associate Professor and Executive Director of the Institute of Comparative Law and Legal Sociology at Law School of Peking University, China.
Zhang Qi, “Jicheng yu Chaoyue----Ershi shiji zhongguo falixue huigu lungang” , Peking University Law Journal, Vol.12, No.1, p. 72-81; and e.g. Fazhi yu renzhi wenti taolun ji (Mass Press, 1981).
See C of this part.
See Li Buyun and Zhang Zhiming, “ Kua shiji mubiao: yifa zhiguo, jianshe shehuizhuyi fazhi guojia”, 6 Zhongguo Faxue ( Chinese Legal Science) (1997), p. 21.
Wu Zhichun, Fazhi yu minzhi, (Life Bookstore, 1946) p. 11, 14.
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