What are the main principles of justice?

Judicial independence is a symbol of modern international legal system and an important content of modern constitutionalism. This paper expounds the present situation and connotation of the principle of judicial independence in China, deeply analyzes the subject, mode and guarantee of judicial independence in China, and puts forward the idea of construction. Key words: the subject mode of judicial independence guarantees judicial independence, which is the main symbol of a modern country ruled by law, an important content of modern constitutionalism and a basic human right of citizens. China's current constitution stipulates that the people's courts independently exercise judicial power and the people's procuratorates independently exercise procuratorial power in accordance with the law, "without interference from administrative organs, social organizations and individuals". There is a big gap between China's judicial independence system and the international "judicial independence" system in form, content and even nature. At present, with the reality of China's entry into WTO and the further deepening of the reform of the socialist market economic system, judicial independence has entered a new stage of development. How to realize the real judicial independence is the key to China's judicial reform and China's integration into the mainstream of international politics, economy and law. I. Provisions on the principle of judicial independence in China's current laws China adopted a newly revised constitution in 1982. Article 126 of the law stipulates: "The people's courts independently exercise judicial power in accordance with the law and are not subject to interference by administrative organs, social organizations and individuals." ① Article 4 of the Organic Law of the People's Courts adopted in1983, Article 3 of the Administrative Procedure Law adopted in 1989 and Article 6 of the Civil Procedure Law adopted in199/0/all provide for judicial independence. Article 13 1 of the Constitution also stipulates: "People's procuratorates independently exercise procuratorial power in accordance with the law and are not subject to interference by administrative organs, social organizations and individuals." (2) Article 9 of the Organic Law of People's Procuratorates adopted by1983 also stipulates this. The criminal procedure law promulgated in China 1979 did not stipulate the principle of judicial independence, but the criminal procedure law revised in 1996 did. Article 5 of the law stipulates: "The people's courts independently exercise judicial power in accordance with the law, and the people's procuratorates independently exercise procuratorial power in accordance with the law, without interference from administrative organs, social organizations and individuals." The above provisions provide a constitutional and legal basis for the establishment and implementation of the principle of judicial independence in China. This shows that the principle of judicial independence is not only a constitutional principle, but also the norm of judicial activities in China. As a constitutional principle, it adjusts the relationship between China's national judicial examination and approval organs, legislative organs, administrative organs and other functional departments, and confirms the specificity and independence of judicial power and procuratorial power; As the criterion of judicial activities, it ensures the independent and fair exercise of the judicial power of the people's courts and the procuratorial power of the people's procuratorates, and prevents the examination and approval activities of the people's courts and the procuratorial activities of the people's procuratorates from being improperly interfered, influenced and controlled by the outside world. With the establishment of the principle of judicial independence in China's Constitution and related laws, China's judicial system has also embarked on the track of modern judicial system, and has begun to move towards the goal of modern judicial system. Second, the connotation of judicial independence The principle and system of judicial independence is a very important content and an indispensable part of constitutionalism. Refers to the independence of judicial organs from other organs, groups and individuals; In exercising its functions and powers, the judicial organs only obey the law and are not subject to interference by any other organs, groups or individuals. It includes three basic contents and four noes. Three basic contents: first, judicial personnel independently examine and approve cases; Second, the judiciary has its own independent organizational system; Third, the law has special protection for the status of judicial personnel. "Four noes" means no infringement, no interference, no pressure and no false comments. The so-called non-infringement means not infringing on the jurisdiction of the judicial organs, that is, not arbitrarily narrowing the jurisdiction of the judicial organs. If you don't intervene, you can't illegally enter the judicial process and interfere with judicial decisions. The so-called illegal interference in the judiciary mainly refers to "outsiders" entering the judicial process to act as judges or actual judges without legal authorization and due process. In addition, non-reconnaissance inspectors exercise the right of investigation and inspection with specific judicial significance without legal authorization, which is also an illegal intervention that undermines judicial independence. No pressure means that it is forbidden to exert some pressure on judicial officials and government agencies directly or indirectly, forcing them to make judicial decisions according to the wishes of the oppressors, with specific and unspecified adverse consequences. Not making false comments refers to making reports and comments that may affect judicial independence and judicial justice in legal judgment. Because the judiciary is in a weak position in the national institutional system, it does the least harm to society, and its task is only to find out the facts of the case and apply the law correctly. Therefore, ensuring that judicial work is free from any external interference and influence, so as to safeguard and safeguard the lofty authority of the law, is the external condition for truly realizing judicial independence. Third, the construction of judicial independence system in China Now, China has joined the WTO. Only by constructing a new system of judicial independence can judicial independence conform to the actual situation in China and be integrated into the internal spirit of judicial independence, thus narrowing the gap between China and the West in judicial independence, and at the same time smoothly connecting with the international standards in judicial independence. The following author intends to analyze the subject, mode and guarantee of judicial independence in China, and put forward the idea of constructing judicial independence in China. (I) Reconstructing the Subject of Judicial Independence in China Reconstructing the Subject of Judicial Independence in China only refers to the people's courts and people's procuratorates for two reasons: First, judicial independence is judicial independence first, and the people's courts, as judicial organs, are the primary subject of judicial independence; As a public prosecution organ, the procuratorial organ is an important subject of judicial independence. As the main body of judicial independence, the people's court should be independent of other state organs as well as the superior organs of the court. At the same time, the identity and status of judges should also be independent. As the main body of judicial independence, procuratorial organs should also be independent from other state organs and higher-level procuratorial organs (but not from the Supreme People's Procuratorate). The reason why the public security organs no longer serve as judicial organs is that the public security organs themselves are administrative organs, under the dual leadership of the government at the same level and the public security organs at higher levels. Second, in criminal proceedings, if the public security organs meet the requirements of the courts and procuratorates, it is objectively not conducive to the detection of some major, complex and difficult cases. Third, even if the public security organs are independent of other state organs, they cannot be independent of the procuratorate; Independent of the government at the same level but not independent of the public security organs at higher levels; The identity and status of public security personnel cannot be independent. Second, according to the principle of separation of prosecution and trial. No prosecution, no trial; A trial without charges can only be arbitrary. The trial of criminal public prosecution cases needs the launch of procuratorial organs, and only the prosecution of procuratorial organs is powerful. Although the law can authorize the victim to initiate a trial that should have been initiated by the public prosecution agency through private prosecution, it is not conducive to the judicial protection of the legitimate rights and interests of the victim in such criminal cases. Therefore, the prosecution or non-prosecution by an independent procuratorial organ is as important as the trial by an independent judicial organ. Therefore, the people's procuratorate, like the people's court, should be the subject of judicial independence. (2) Building a model of judicial independence in China. The independent exercise of functions and powers by judicial organs in China is not based on the "separation of powers" in the West, but on "separation of powers". But we can learn from some reasonable factors in the theory of decentralization. In fact, whether it is "separation of two powers", "separation of three powers", "separation of four powers" or "separation of five powers", it can be a model to prevent judicial arbitrariness and corruption, but any model is not omnipotent and has its advantages and disadvantages. China cannot completely copy any model, especially the American-style "separation of powers". However, when constructing the model of judicial independence in China, we should learn from the reasonable factors that are beneficial to judicial justice in the theory of separation of powers and closely combine it with China's national conditions. First, the establishment of the people's court. 1. Judicial organ system: On the basis of the existing judicial system, people's courts in Northeast China, Northwest China, Southwest China, East China, North China and Central South China are added as high courts of higher people's courts, forming a five-level court system. 2. Appointment and removal of judges: Chief Justice the Supreme People's Court is appointed and removed by the National People's Congress; Other judges in the Supreme People's Court and judges in specialized judicial institutions such as military courts, railway transport courts, local circuit appeal courts and higher people's courts shall be appointed or removed by the NPC Standing Committee; The highest-ranking judges in other local people's courts at all levels are appointed or removed by the local people's congress at the next higher level, and the rest are appointed or removed by the standing committee of the local people's congress at the next higher level. 3. Functions and powers of the people's courts: cancel the power of the people's courts to impose fines and confiscate property; Cancel the people's court's civil and administrative enforcement power; The decision to take compulsory measures against criminal suspects and defendants rests entirely with the people's courts. Second, set up a people's procuratorate. 1. The organizational system of procuratorial organs corresponds to that of judicial organs. 2. Prosecutors are appointed and dismissed in the same way as judges. 3. The functions and powers of the people's procuratorate: cancel the decision-making power of the people's procuratorate to take compulsory measures against criminal suspects and defendants; Put the criminal police under the people's procuratorate, and the people's procuratorate uniformly exercises the right to file a criminal case for investigation. (III) Building a guarantee system for judicial independence in China First, guarantee the overall independence of the judiciary. The overall independence of the judiciary includes the independence of the people's courts and people's procuratorates from other state organs, social organizations and individuals, and the overall independence of the people's courts and people's procuratorates. At present, it is difficult for China's judicial organs (especially courts) to achieve overall independence, because judicial organs are not independent of administrative organs, especially local administrative forces. The crux of the problem lies in the fact that the judiciary is not independent economically. Because the economy of the judiciary is not independent, local governments at all levels directly control the economic lifeline of the judiciary through financial allocations, thus indirectly controlling the will of the judiciary. In order to survive, the judiciary has to have good relations with the local government, especially with some local party and government leaders. To this end, the judiciary has become a "revenue-generating department" and has to "support itself", transforming the legal fees directly collected into funds for handling cases, and even playing the role of "local protectionism" and "departmental protectionism". Therefore, to ensure the overall independence of the judiciary, it is necessary to ensure the economic independence of the judiciary and ensure that the judiciary eats the "imperial grain." Therefore, the current economic interest structure should be adjusted to make the court get rid of the material dependence on local governments. 1. The state finance allocates special funds for judicial administration, and the funds for handling cases, wages and benefits of judges and prosecutors at all levels are uniformly spent by the central finance; The equipment, office space, housing and other facilities for judges and prosecutors in judicial organs shall be solved by the central authorities according to unified standards, so as to cut off the dependence of judicial organs, judges and prosecutors on local political power in terms of financial and material resources, so that the equipment, funds, office space, wages and welfare housing of judges and prosecutors in different places will not differ too much due to regional differences. 2, the state financial allocation as the only source of the judiciary's economy, legal fees should be turned over to the state treasury, used as special judicial funds, and it is forbidden to use it for other purposes, so as to dispel the evil thoughts of the judiciary to "generate income". 3, according to the actual situation of judicial organs at all levels, the allocation of judicial personnel, to ensure the overall quality of judicial personnel, so as to improve the judicial ability, to ensure the effective use of national judicial special funds. Second, ensure the internal independence of the judiciary. 1, to ensure the relative independence of procuratorial organs. Therefore, the Supreme People's Procuratorate leads the work of local people's procuratorates at all levels and special procuratorates. However, local people's procuratorates at all levels should be independent of each other, so that local people's procuratorates at all levels can independently decide whether to file a case, investigate, prosecute or protest, and independently bear the legal responsibility for wrongful prosecution. 2. Ensure the absolute independence within the judiciary. Therefore, the independent judicial power of judges must be guaranteed. At present, the courts in our country are not independent because of the serious phenomenon of administrative trial, which is mainly manifested in the following aspects: the president and the president "approve" the case, which makes the administrator directly try the case and affects the judgment of the case, and it is not convenient for the judge to make an independent judgment; The judicial committee with the obvious nature of "executive meeting" has the right to discuss and decide cases, and judges cannot try independently, especially the infinite expansion of the "misjudged case investigation system", which makes judges dare not try independently, thus causing and aggravating the situation of "the judge does not judge" and "the judge does not judge"; Before the judgment of the case, the lower court "asked for instructions" and "reported" to the higher court, and the higher court "guided" and "instructed" the lower court, which strengthened the administrative dependence of the lower court on the higher court, resulting in the system of final appeal of two trials in name only. To change this situation, we should start from the following aspects: 1 The judicial administrative post is separated from the judge's post, and the judicial administrative post only manages the internal administrative affairs of the court, and the cases are tried independently by the judicial organs. 2. Abolish the "sentencing without trial" judicial committee. Most general cases are tried by judges alone, while more serious and complicated cases are tried by collegiate panels. At the same time, an expert advisory committee composed of legal experts (excluding in-service judges and prosecutors) and other relevant experts shall be established to provide expert opinions on major and complex cases for the reference of the collegial panel. While expanding the judicial power of judges, we should cooperate with the implementation of the state compensation law, improve the system of investigating misjudged cases and judicial compensation, and increase the responsibility of judges for judicial dereliction of duty. The essence of the above reform is to fundamentally "prohibit judges from being superior to judges", realize the transformation from people's courts to independent trials of judicial organizations, and be closer to the judicial principles and practices prevailing in modern countries. Third, ensure the independence of judicial personnel. We can consider the following aspects to ensure the independence of judicial personnel and establish and guarantee their qualifications: 1. Ensure the quality of judicial personnel and make them a "legal elite" team. Therefore, it is necessary to: (1) eliminate the existing unqualified judges and prosecutors and vacate the establishment of judges and prosecutors; (2) Newly appointed judges and prosecutors should be selected from excellent lawyers or law professors with a certain number of years of practice to enrich the ranks of judges and prosecutors; (3) The judicial administrative duties of judges and prosecutors are separate from their duties, but they can also serve concurrently. However, the judicial administrative leadership of the courts and procuratorates must be held by judges or prosecutors with rich legal professional experience, and it is strictly forbidden to assign people without legal professional qualifications to hold judicial administrative positions in the courts. 2. Ensure that the treatment of judicial personnel is favorable. In order to let judges and prosecutors work with peace of mind and avoid external influence and corruption, they must be given appropriate treatment. The treatment enjoyed by judicial personnel must be compatible with the bearing capacity of social resources, neither too high nor too low. It is generally believed that the treatment of judicial personnel should be higher than the average treatment of national civil servants, although China does not implement "high salary and honesty". Besides, "high salary may not keep clean", but we should let judicial personnel lose this position because of his unfairness and be subject to necessary material constraints. 3. Standardize the mechanism of appointment, dismissal, promotion, punishment and transfer of judicial personnel (1). The appointment of judicial personnel must be appointed from the above-mentioned personnel to ensure the quality of judicial personnel; Judicial personnel must be appointed by the People's Congress at a higher level and its Standing Committee (judges in the Supreme People's Court and prosecutors in the Supreme People's Procuratorate are appointed by the National People's Congress and its Standing Committee) in order to get rid of the personnel control of judicial personnel by local governments at the same level; The life tenure system of judicial personnel (currently widely practiced in many countries in the world) cannot be appointed or removed except for legal reasons (such as voluntary resignation, loss of work ability, crime and other unsuitability to continue to serve as judicial personnel) and procedures, so as to maintain a constant state of judicial work; The judicial administrative post of judicial personnel is lifelong, and they take office because of election, and leave because of expiration, recall and resignation; (2) the promotion of judges. The positions of judges are divided into administrative levels, which can be divided into 12 levels according to the provisions of the current Judges Law. The promotion of judges' posts is based on judicial performance, in accordance with legal procedures and the principle of fair competition; The promotion of judges follows the principle of "step by step" and cannot be promoted beyond the level; In addition to the standing committees of people's congresses at the county level, the standing committees of people's congresses at various levels shall set up judicial personnel assessment committees (composed of the standing committees of people's congresses, retired judicial personnel, lawyers and legal experts) to assess and promote judicial personnel appointed by the people's congresses at the corresponding levels and their standing committees. (3) Punishment of judicial personnel. Judges are not subject to arbitrary punishment in their daily work; Establish disciplinary standards for magistrates; Establish appropriate disciplinary procedures; In addition to the standing committees of people's congresses at the county level, the standing committees of people's congresses at all levels shall set up disciplinary committees for judicial personnel (which may be composed of retired judicial personnel and legal experts). (4) Transfer of judicial personnel. Judges shall not be transferred at will without legal reasons and procedures and with the consent of the judges themselves. 4. Ensure the safety of judges and their families. Because the prosecutor's prosecution or non-prosecution and the judge's judgment will affect the interests of one or more parties, the prosecutor takes revenge as the decider of prosecution or non-prosecution or the losing party. Therefore, the state should take effective measures to ensure the personal safety of judicial personnel and their families. Fourth, straighten out and standardize the supervision relationship between party committees, people's congresses and the news, create a legal environment in which judicial personnel only abide by the law, and ensure judicial independence. If any power is not supervised and restricted, it will inevitably lead to the abuse and corruption of power, and the judiciary is not independent, subject to people and hinder judicial justice; On the other hand, if the judiciary is independent, but not restricted by supervision, or the supervision is weak, there will also be cases of judicial arbitrariness and abuse of judicial power, which has been proved by history. Therefore, it is necessary to establish a standardized system of supervision relations, straighten out all kinds of supervision relations, especially the supervision relations of the party Committee, the people's congress and the press on trials, and ensure judicial independence. 1. Straighten out and standardize the supervision relationship of the Party Committee over the trial, and ensure judicial opposition. Judicial independence is not to weaken the party's leadership, let alone to get rid of it, but to better improve it. Therefore, judicial independence in China is still under the leadership of the Party. However, party organizations cannot give orders to specific cases. How to standardize the party's supervision over the trial, so as to ensure judicial justice and judicial independence? 1 Restrain Judge party member through the Party's discipline, so that Judge party member truly abides by the law; Party committees can restrict judges by proposing suggestions on appointment, dismissal, promotion and punishment to higher people's congresses and their standing committees, judges' appraisal committees and judges' disciplinary committees, so that judges can truly abide by the law. 2. Straighten out and standardize the supervision relationship between NPC and trial to ensure judicial opposition. As an organ of power, the National People's Congress has the right to supervise the work of judicial organs. The National People's Congress should set up a judicial supervision committee (composed of retired judicial personnel and law professors) to supervise the judiciary according to law. The supervision of the people's congress on the trial is the process supervision rather than the result supervision. It is overall supervision rather than case supervision; It is legal supervision rather than work supervision. The judicial supervision committee can report the supervision work to the people's congress and its standing committee, as one of the bases for the appointment, removal, promotion and punishment of judges, so that judges can abide by the law. Only in this way can we ensure that NPC will not interfere in judicial trials and ensure judicial independence. 3. Straighten out and standardize the supervision relationship between news and trial to ensure judicial independence. The supervision of the trial by the news media is mainly to make the public trial as open as possible by objectively reporting the trial activities, to satisfy the parties and the public's right to know the case as much as possible, and to make the judge bound by news media and make him obey the law. However, when reporting the trial, the news media should not mislead the public, nor should they guide the judgment of the judicial organs, thus infringing on judicial independence.