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Published: Fri, 02 Feb 2018
The lack of judicial independence has been argued to be the main …
China began its reform and openness to the world from 1978. After that China changed dramatically not only on economy but also on the legal system. In late 1970s, China decided to rebuild the legal system which was totally destroyed during the Cultural Revolution. Judicial system is a crucial component of legal system. In present China, the judicial system basically consists of the People’s Court, the People’s Procuratorate, Public security organ and other judicial administrative organs. The People’s Procuratorate is a state organ of legal supervision which learned from The Soviet Union. According to the International Bar Association judicial independence consist of personal independence (guarantee that judge is not the subject to executive control; judge should obtain adequate salary and pension and so on), substantive independence (a judge is subject to nothing but the law and the commands of his conscience),.internal independence (a judge should be independent vis-à-vis his colleagues and superiors in the decision-making process) and collective independence (the judiciary as a whole should have autonomy vis-à-vis the Executive) (Li Yuwen, 2001). China stated its opinion on judicial independence in the Chinese Constitution that “the People’s Court exercises judicial power independently, in accordance with the provisions of the law and are not subject to interference by any administrative organ, public organization or individual” (Zou keyuan, 2002). Although China has got a number of successes in building up a legal system during the last 30 years, it still has a lot of problems for example the judicial independence. It still has distance between the laws on the paper and the law in the practice. China’s legal system is governed by party and also a bureaucratic one, so it means that the Chinese Communist Party and administrative authorities would influence the legal institutions (Chen jianfu, 2008). As a result, judicial independence is not an independent problem; it related to political, social and other aspects of the whole society. Indeed the lack of judicial independence is a great challenge for China. Building up an independent judicial system is not only a requirement of market economy but also a requirement of protecting human rights and democracy of the whole society. This essay begins with examining the legal development since 1978 and problems which still remained. Subsequently, I will explain the facts and reasons that China lack of judicial independence. Thirdly, I will examine the relationship between the judicial independence and economic growth and demonstrate the importance of judicial independence in present society. The final part will emphasize on how to achieve judicial independence with the consideration of overall development of whole society.
As early as the beginning of the reform, China started to make effort to build up a legal system compatible with the market-oriented reform. However, the legal system still has got a number of problems. In the December of 1978, the communiqué of the Third Plenum of the 11th Central Committee stated to rebuild the legal system which was totally damaged during the Culture Revolution. Firstly, in the year 1979, when two organic laws on courts and procuratorates were enacted, the rebuilding up of the courts and the procuratorates began (Chen Jianfu, 2008). Initially, China paid main attention on the legislative work and passed numerous laws on different aspects (Li Yuwen, 2001). China adopted the Criminal Procedure Law in 1979, the Administrative Litigation Law in 1989 followed by Administrative Supervision Regulations and Administrative Reconsideration Regulations and Civil Procedure Law of China in 1991. In the 1990s, the focus of legislation changed from quantity to quality and to ensure the implementation, so some existing laws were amended including the Economic Contract Law, Foreign Economic Contract Law and diverse intellectual property laws (Peerenboom Randall, 2002). In the year 1999, China amended the constitution. Besides the legislation work, China also rebuilt the legal profession and opened law schools. In 1980, China issued the Provisional Regulations on Lawyers, so the present lawyer system formally established (Chen Jianfu, 2008). Furthermore, with the promulgation of the Arbitration Law in1994, the arbitration system was thoroughly checked. However, with the development of the legal system, more and more people argue that China’s laws are just on the paper but not work in practice. In recent years, the application of the law has become more and more important than before.
Although China’s legal system develops extremely fast, this system still has got a number problems. Firstly, the administrative sanction by the police is supposed too powerful; sometimes the administrative sanction would be against the human rights because of the abuse of the power by police. In the civil sector, it is quite vague that what the role the state plays in Chinese Civil law and whether the state is the subject of the Chinese Civil Law. When we mention the problems of the judicial system basically the problems of the courts and procuratorates, the troubles of legal transparency and judicial independence come to our mind.
China’s judicial system lacking independence is revealed on the interference of the government, the CCP and individuals and so on. The court system is divided into the Supreme People’s Court, High People’s Courts (established at provincial level), Intermediate People’s (established in cities and prefectures within provinces) and Basic People’s Courts (established at county level). According to the Constitution of PRC “the Supreme People’s Court is responsible for the National People’s Congress and its Standing Committee”. Courts are responsible to the people’s congress at the corresponding levels (Chen Jianfu, 2008). Further more the local governments are the main provider for financial resources, personnel and logistic support for the corresponding courts. The president of the Supreme People’s Court is elected and removed by the NPC and the vice-presidents and other members are nominated by the president of the court to the Standing Committee of the NPC for appointment and removal (Chen Jianfu). Similar with the Supreme People’s Court, local people’s courts’ personnel is elected and removed by the local Corresponding NPC. As a result, it is very difficult for the legal personnel to avoid the influence of the people’s congress and government. China started the shared taxed system in1994; according to it, taxes are shared by state and local governments and the local governments are responsible for the financial expenses for operation and social development. Consequently, local governments pay a lot attention on the achievement of local business and economy, so they are keen to protect the local businesses during the proceeding of the courts, especially the local State Owned Enterprises. Due to this complex relationship of dependence, the courts are always reluctant or cautious when dealing with cases involving governments.
Not similar with other western states, China is governed by one party: the CCP. Although the Constitution of the PRC states that any administrative organ, public organization and individual should not intervene in people’s courts’ affairs, the relationship between the CCP and the court system is still a common topic today. The Political-Legal Committee of CCP gives instructions to the relevant courts addressing how to handle cases and has the power to issue with the courts or the procuratorates (Zou Keyuan, 2002). In addition, most of the court cadres are the members of the CCP, so the judges are easily influenced by the party decisions and policies. Similar with the court system, the procuratorate system also has the problem of intervening of administrative organs and the CCP. The people’s congress and the government also control the appointment and financial matters of the corresponding level procuratorates. Judiciary corruption is also an important element which influences the judicial independence. In particular cases the judicial corruption undermines judicial independence directly and is bad for the long-term reform of judicial system (Peerenboom Randall, 2010).
The reason why China’s judicial system lacks independence is showed at three aspects. To begin with, China’s traditional view on law has a great influence on people. China is a country which has one the longest history in the world. During the long history, the law was not founded on a democratic system but a totalitarian system. This kind of notion still remains in different people’s minds even today. The notion of modern law of people is not as strong as the western states. Secondly, not like some western countries which were established based on the principles of separation of the power, China is governed by one party. The CCP has the power to influence judicial system. As some scholars augured that the judicial independence in an authoritarian regime was impossible, although I am not agree with this argument the political background still have great effects on the judicial system. The final reason is the professional level of the judges. If the judges have the notion that they are independent during the decision making and not influenced by other colleagues and superior organs, it should make great contribution to the independence of the judicial system.
According to the general economic theory, independent judicial system facilitates economic growth, but this argument seems to be ambiguous (Klerman Daniel M., 2006). When we mention China’s market-oriented reform, it basically implies the transition from the planned economy to the market economy. Based on the background of market economy, judicial independence is good for economic growth because independent judicial system help enforce contracts and protect property right. Because of the protection of the property right, investment would increase. Judicial independence is especially important when private enterprises have disputes with the state or State Owned Enterprises. It ensures that the court’s decision wouldn’t be influenced by the government. It protects the private enterprises’ rights which contribute to the operation of the whole company.
On the contrary, the argument seems to be ambiguous. As I mentioned above, independent judicial system is good for enforcing contracts and protection of property right, but government also can implement policies to enforcing contracts and protect property right. In other word, this can be achieved not only by independent judicial system. Furthermore, judicial independence is difficult to measure. Therefore it is difficult to say that how independent the judicial system should be, and to what extent it promoting the development of the economy. Investment is a crucial element to promoting economic growth, but when people invest they concerned not that much about legal system or judicial independence. Economic growth started before independent judicial system. China is an extremely suitable example. As we all know that China is experiencing an economic boom after the reform. It is a miracle for the rest of the world. In the year 2009, China’s GDP growth was 8.7 percent and its economy has already been the second largest economy in the world. China plays a more and more important role within the international economy. At the same time, there is no doubt that China lacks judicial independence. For many, China is exception of the rule that economic growth needs independent judiciary (Peerenboom Randall, 2010). Notwithstanding the facts is much more persuasive than the general rules. Since the beginning of the reform in 1978, China adopted a lot of policies to promote the development of the economy and give the priority to the economic development. Foreign investment exploded after 1992 because of the openness to the world and government’s policies to stimulate the foreign investment. For the investors they concern a little about the legal system but concern more about the whole business environment, for example market, human resources and so on. However this is not to say that China doesn’t need judicial independence. With the step of China’s reform, China’s market economy is more and more mature and the whole society changed a lot. Judicial independence benefits for the protection of human rights and democracy; therefore judicial independence is a requirement along with the development of the society. China joined in WTO in 2001. In consequence, judicial independence is not only one of the legal targets which required by the development of the economy and the whole society but also required by the international world. After China joined in the WTO, the participation of the Chinese economy increased a lot, so China’s judicial system should keep in line with international regulations (Zou keyuan, 2002).
The question of judicial independence is quite challenged and there is no certain path to it. The problem of judicial independence cannot be solved by the judiciary itself, and this is a problem related with political and ideological areas; in other words, the future of Chinese legal and institutional reform will be largely influenced by reforms outside rather than inside of the system (Chen Jianfu, 2008). Due to the short time of modern legal development in China, the notion of law is still not that wholly accepted by people much less the judicial independence. Moreover, China is governed by one party. The CCP lead everything within the country. As a result, it is difficult to make sure the CCP won’t influence the judicial system. Many people even argue that judicial independence is impossible in an authoritarian regime and law plays a limited role (Peerenboom Randall, 2010). On the contrary, it is generally accepted that democratic regimes favor judicial independence but the judicial system of democratic regimes whether in Europe or in Asia shows that democracy does not guarantee judicial independence (Peerenboom Randall). According to Henderson’s empirical studies, not matter in the democratic regimes or in the authoritarian regimes, the judiciaries in developing countries suffer from judicial corruption (Peerenboom Randall). Therefore, we can not say that democratic regimes mean judicial independence and authoritarian regimes mean the lack of judicial independence. Judicial independence is not just based on the political structures. However, this is not to say that judicial independence have noting to do with political regimes.
There is no single path towards judicial independence. Some people argued that China should transplant the western practice. At the same time, Garapon argued that this approach ignored the political and cultural background of China (Peerenboom Randall). Judicial independence is not an independent notion but a notion related with political and social environment. We should pay more attention on the reform process and move slowly, as Deng Xiaoping said “feel the stones while crossing the river”. Realizing judicial independence, the existing conditions and obstacles should be taken into consideration. The relationship between judicial independence with other social norms should be recognized clearly, because the judicial independence is not the final goal but a means to other goals. Imagining that China follows the western way and practices separation of the power, China would be most likely to attain the judicial independence. Nevertheless, this would cause instability of the whole society and damage to economic development. We desire judicial independence because it can protect human rights, property rights and promote the economic growth and so on. We cannot sacrifice the stability and other crucial aspects of our society to attain judicial independence.
In 2008 the State Council claimed that the funding was to be centralized (Peerenboom Randall). This is a right step to judicial independence. Centralization of funding would decrease the influence of the government’s intervening into courts. Central appointment should also implement. Anti-corruption become a more and more important issue in society. The CCP and government pay a lot attention on the anti-corruption. Although because of the centralization of funding the government would intervene fewer into the courts and procuratorates, the CCP and the People’s Congress are still easy to interfere into courts and procuratorates. Corruption is still a common phenomenon among judiciary. Judicial independence is still a big challenge for China.
In conclusion, China began to build up a legal system compatible with market-oriented reform from the start of the openness and reform in late 1978. Since then China started do a lot of legislative work and build up basic legal system. During the 30 years’ development, China has got a large number of success and a legislative boom. However China’s legal system has also got a number of problems for example, the abuse of the administrative sanction, the problems of legal transparency and lack of judicial independence. Because of the historical reasons, the political structure and the professional level of judges, the CCP and administrative organs are easy to influence the courts and the procuratorates. Judicial independence is crucial because it is not only the demand of economic growth but also the demand of protection of human rights as well as democracy. Especially after China joined in WTO in 2001, judicial independence is also a need with the integration of Chinese economy into global market. The participation in WTO is both a challenge and an opportunity to the improvement of China’s legal system. Judicial independence is big challenge because it cannot be attained by judiciary itself, but should be shaped by political and ideological reform. China should take more practical approach to achieve judicial independence but not just transparent other countries’ system. China has already stepped to the right direction of achieving judicial independence, for instance the centralization of funding. However it should be a long march towards judicial independence. To build up a legal system compatible with market-oriented reform, China still has got a lot to work on, for example the professional quality of judges, efficiency of the courts and supervision of courts. Legal system is not similar with the economy, and the development of it should take a long time. Nevertheless, with the interference into the international network and development of the domestic society, China’s legal system will become more and more mature and compatible with market system.
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