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Analysis of Summary of Judgment in Criminal Cases by Supreme People’s Court (Part II)
Liu Shude
《China Law》2012年2期
Analysis of Summary of Judgment in Criminal Cases by Supreme People’s Court (Part II)

Liu Shude

official with Judicial System Reform Office of the Supreme People’s Court

Analysis of Summary of Judgment in Criminal Cases by Supreme People’s Court (Part II)
  Focus on the Supreme People’s Court Gazette Papers Issued in 2004-2010
  III. A package of 10 proposals for future publication of the Summary of Judgment

  (I) Prudent consideration of appropriate reform of the setup of the court system in China:

  Generally speaking, the socialist judicial system in China can now basically meet the requirement of the basis of the socialist market economy in the country. Meanwhile, it is undeniable that there still exist barriers on the part of systems, mechanisms and safeguards to bringing into play the advantages of the socialist judicial system in the country. Under such a circumstance, it is necessary to keep pace with the times by conducting self-reform and self-improvement. Speaking from the perspective of the setup of the court system in China, a greatest question now is how to rationally put an end to the phenomenon of local judicial protectionism that did not appear to be conspicuous in the years when China was practicing a centrally planned economy before 1978, but that has turned increasingly obvious in the current age of development of a market economy in the country. Presently, Chinese courts are established on the basis of administrative divisions, which will inevitably cast direct or indirect impacts on judicial unity in the country, and which will proceed to negatively impact effective application of the system of typical case guidance. As reform of the court system will involve the national constitutional system, it is necessary to conduct prudent research in this endeavor. The successful experience of Vietnam in working out the Strategy for Judicial Reform in the 2005-2020 Period is of reference value to China in this respect. This Strategy, “in accordance with the organization and functions of People’s Courts, and establishment and development of the organizational structure of judicial organs”, proposes that steps be taken to “change the current approach of establishing the court system on the basis of administrative divisions, and reorganize the court system on the basis of the scope of jurisdiction of trial.” It says: “District courts in the court system shall be the courts of first instance, which shall exercise jurisdiction over one or more district-level administrative regions.

  For courts exercising jurisdiction over appeals, they shall mainly take charge of trying cases of appeal or counter-appeal against judgments given by courts of first instance, and selectively trying part of the first-instance cases. Where the parties concerned refuse to accept judgments given by them, they can appeal their cases to courts at an even higher level established on the basis of regional divisions.”

  (II) Appropriate reform to realize a shift of the system of typical case guidance over adjudication from the “administration- power” pattern onto the “judgment-reasoning” pattern. An American scholar expressed the points of view that the operation of judicial power will show different characteristics under different structures of government power; that in judicial procedures under the structure of a bureaucratic ideal-type government power, there is a strict hierarchical order between judicial organs at higher levels and those at lower levels, with the existence of de- facto administrative relationship of vertical leadership; and that in judicial procedures under the structure of a cooperative ideal- type government power, the distribution of power appears to be in a parallel or horizontal relationship, rather than a vertical relationship of affiliation between those at higher levels and lower levels. As a result, there have generally formed the pattern of bureaucratic judicial system and the pattern of cooperative judicial system. On the basis of the centuries-old tradition of centralism and universal generalization of administrative mindset in China, guidance over the work of adjudication at courts also shows the characteristics and attributes of the “administration- power” type. For example, for the system of level-to-level submission of planned judgments for approval in court trials (e.g. the trial judge → the deputy chief judge → the chief judge → vice-president of the court →the adjudicative committee of the court), for level to level request by courts at lower levels for instruction from courts at higher levels, and for the making of judicial interpretations in an abstract sense (which are eventually granted legal effects), they are all similar to the “issuance of orders” by the superior to the inferior or inhibition of the will, and show the tinge of “inhibition of authority”. As far as the most essential attribute of “impartial judgment” of court decisions is concerned, the most appropriate approach should be “convincing by reasoning”. According to Klaus Tolksdorf, the president of the Federal Court of Justice of Germany, and other justices met, the Bundesgerichtshof (Federal Supreme Court) is not supportive of applying the system of key points of judgment with binding force. Only by relying on the quality of judgments, can the decisions issued by the Bundesgerichtshof gain de-facto binding force through long-term accumulation, according to them.

  (III) Rational setup of the focus of judgment in preliminary trial and trial on appeal:

  The Anglo-American law system generally differentiates preliminary trial from trial on appeal, with judgment in preliminary trial focused on the determination of facts in cases, and with judgment in trial on appeal focused on the application of law. In comparison, it has been a relatively long period of time since the civil procedure laws of leading countries of the Continental law system, such as Germany and Japan, adopted the practice of implementing the “trial of law” system in the trial of third instance (appellant instance). In China, judgment in the trial of cases by the four levels of courts is generally identical. Therefore, it is necessary to make rational changes in an appropriate way. In particular, it is necessary to make different arrangements for proceedings in light of the different types of cases (civil cases and criminal cases, general cases and major cases, simple cases and doubtful and difficult cases). For example, as far as the cases taken by the Supreme People’s Court for adjudication is concerned, a majority of the civil and commercial cases should be limited to the “trial of law”, while the death-sentence cases can be referred to the “trial of facts” and the “trial of law” at the same time.

  (IV) Scientific setup of legal issues up to the relevant procedures of the Supreme People’s Court:

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