Three Key Issues in the Reform of the Judicial System in China-法搜-中国法律信息搜索网

　
　¾--Translated by Bi Xiaoqing
　 Revised by David Kelly
【注释】1. Among English workmaterials on the judicial reform in China, the most authoritative and recent one is Stanley B. Lubman’s book titled Bird in a Cage: Legal Reform in China after Mao, especially Chapter 9 (“The Courts under Reform”), Stanford University Press, 1999. Cf. also Donald C. Clarke, “Dispute Resolution in China,” Journal of Chinese Law 5 (1991), pp. 245-296; Clarke “Power and Politics in Chinese Court System: The Enforcement of Civil Judgments,” in Columbia Journal of Asian Law 10, nNo. 1 (1996), pp. 1-92.



2. The author of the article, Mr. Zhang Jingping, reported that during the “two-meeting period” (the period during which the National People’s Congress and the National People’s Political Consultative Conference were in session) in 2001, a survey conducted on the website (in which 504 persons had been interviewed) showed that judges werse the most unpopular among the 4 legal professions. According to this survey, the popularity rates of the 4 legal professions were: lawyers: 59.7%; prosecutors: 22.66%; policemen: 8.9%; judges: 8.7%. This result was supported by another survey conducted by the research firm, Horizon Research in the same year. The firm conducted a survey in which 5,673 randomly selected adult (over 18 years of age) urban citizens in 11 cities, including Beijing, Shanghai, Guangzhou and Wuhan, were interviewed. The result showed that over 40% of those interviewed had a negative general impression of judges and 40.7% had very negative impressions of judges, such as disorder, low quality, bending the law for personal gains, bureaucracticy, etc. See China Newsweek, no. 44, 2001, no. 44.



3. Cf. Max Weber on Law in Economy and Society, ed. Max Rheinstein, Oxford U. P., 1954, pp.212-213.



4. For analysis of the process of establishing an independent judicial system in modern Chinese history, see He Weifang, “Development of Judicial Independence in Modern Chinese History,” in Su Li and He Weifang, ed., China in the 20th Century: Academic Research and the Society (the volume on Law), Shandong People’s Publishing House, 2001, pp.172-213.



5. For discussions on the lack of independence of courts due to their dependence on local partyParty committees and governments in matters of personnel and finance, see He Weifang, “The Realization of Social Justice through Judicature: A Look at the Current Situation of Chinese Judges,” in He Weifang, Judicial Idea and Judicial System, China University of Political Science and Law Press, 1998, pp. 1-84, esp. pp. 41-56.



6. As Alexander Hamilton had once said, “InAs far as the general courseondition of human nature ins concerned, a powerthe control over a man’s means of subsistence amounts to a powermeans the control over his will. And we can never hope to see realized in practice the complete separation of judicial from the legislative power, in any system which leaves the former dependent for pecuniary resources on the occasional grants of the latter.Under any system that makes the financial resource of the judicial personnel dependent on the charity of the legislative organs, the separation of judicial power from the legislative power can never be realized.” In Papers of Tthe Federalists, no. 79, (emphasis by the original author).



7. For the standard relating to the selection and appointment of judges in China, see Lubman, supra note 1, pp.at 251 ff.; He Weifang, supra note 5, at pp. 17-41.



8. On January 2, 1998, I published an essay in the Southern Weekend Nanfang zhoumo titled “Demobilized Soldiers in the Courts,” which criticized the practice of assigning demobilized army officers with no legal training to work as judge in some courts. To my surprise, my essay had drawn strong criticisms from army newspapers. Some of the opinions expressed in and some of the problems exposed by this debate (for example, I had been unable to publish further arguments on this issue in theany newspaper afterwards) have shown that, to some people, the provisions of the Judges Law are only empty words on a sheet of paper and that the professionalization of judges is still a very difficult task in China. The debate had also drawn some international attention. Cf. Elisabeth Rosenthal (a journalist for New York Time) , “On Chinese TV, Muckrakers Get A Free Hand, Up to a Point,” in International Harold Tribune (July 3, 1998): “Some less prominent programs and certain publications with looser government ties, like Southern Weekend and Beijing Youth Daily, have pushed the boundaries of discourse a bit farther. But there are always limits. When a legal affairs columnist for Southern Weekend recently criticized the common practice of awarding judgeships to retiring army officers, for example, his weekly column disappeared for two weeks). In a cover story of Far East Economic Review (August 20 1998), columnist Frank Ching mentioned that retired army officers still made up a large percentage of the judges in the courts at the grass-roots level and few people dared to raise this sensitive issue. However—“He Weifang, a law professor at Peking University, was one of the courageous few. In a January 2 article in Southern Weekend, a Guangzhou-based newspaper,. He asked whether it was appropriate for military men with no legal training to be assigned to work as judges. Would anyone, he asked, assign military men with no medical training to work as doctors? The People’s Liberation Army published a rejoinder in China Defense News. Why can’t retired army men join the law courts, it asked, pointing to the military’s contributions to the country. Under heavy pressure from the PLA., Southern Weekend published an apology, declaring that ‘“the People’s Liberation Army (including demobilized soldiers at every historical juncture) has made major contributions at each stage of socialist construction’.” (p.14).



9. During an investigation of several intermediate and higher people’s courts, I found out that even after the revision of the Judges Law in 2001, demobilized army officials without university-level education can still be assigned to the judge’s post in the court.



10.] Scholars have different opinions as to the advantages and disadvantages as well as the fate of the adjudicatory committee. Professor Su Li believes that, in view of the current conditions in China, especially in grass-roots level courts, adjudicatory committee has its contextual reasonableness. Cf. Su Li, Sending the Law to Countryside, China University of Political Science and Law Ppress, 2000, p.88 ff. For the opposite opinion, see He Weifang, “Commentaries on the System of Adjudicatory Committee,” in supra note 5, at pp. 139-151.