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5. The Awareness of the present
Judicial reform is a long term progressing and deepening process, which takes on the characteristic of many phases. As the saying goes “Good governance can adjust and act in a timely manner”, judicial reform should have a sense of the present, keep up with the times and take place in appropriate timing. First, judicial reform should be based on current national conditions. Current national conditions have many multi-dimensional aspects, which involve the condition of the party, society, people as well as the status of politics, economy, culture, law, social development and etc. Compared with traditional national conditions, current national conditions more directly determine the basic attributes of the judicial systems of our country, its overall framework, trend of development and outline; furthermore, it could constrain the development and implementation of reform scheme at the present stage. Take for instance, the political conditions and realities of our country, namely, form of state people’s democratic dictatorship, form of government the system of people’s congress and leadership the People’s Republic of China, have determined that the reform of political system shall not be carried out in five aspects. Correspondingly, judicial reform in China cannot imitate or copy the judicial system or model based on the “Separation of three powers” in the West. Second, before launching judicial reform, one should do an in-depth research of the present internal and external environment and status of the court. External environment includes rule of law, economy, society, politics, culture and other aspects outside the judicial system, moreover, the relationship between the court and the procuratorate, judicial administrative organ and public security organs. It produces an impact on the implementation, effect and time of specific reform measures; therefore, scientific and feasible method should be adopted to make practical judgment and evaluation. For example, the World Justice Project recommended the Rule of Law Index to evaluate the status of rule of law in a state. This index is composed of four groups, totally 16 level 1 indexes and 68 level 2 indexes. The first group emphasizes the constitutionalization and institutionalization of rule of law, to ensure the executive power been restrained. Second group emphasized that the rule of law is established based on a just, open and stable legislative system. Third group prioritizes that the rule of law should be open, fair and efficient in judicial process. Fourth group highlights that rule of law should be supported by a group of independent, capable and virtuous legal professionals. Internal environment of the court refers to judge, work staff, cases, judicial administrative facilities, judicial concept and model, operation of judicial right, trial management, organization, function and others. In other words, only when one have a thorough research on the background, could he be able to propose a practical and realistic reform scheme. What’s more, judicial reform should focus on solving the prominent issues at present. Judicial reform does not aim for reform only; rather it should keep the right stance, meeting people’s demand first. As the saying goes “apply medicine according to indications”, it should focus on solving the issues concerning people’s dissatisfaction, expectations, and judicial issues regarding the systematic, institutional and supportive aspect of the people’s court, which hinders the court from serving the scientific development and the scientific development of the court, so it can promote the court to develop soundly and in an all-round way, improve the judicial capability of the court on serving the party and the state, bring real benefits and fruits of judicial reform to the general public. Lastly, judicial reform should be conducted based on the current status and timely adjust the concept or measures of reform. Reform is never smooth and it often experiences repetition and setbacks. The reform of judicial system and working mechanism in China, in particular, has no fixed model to imitate, like the overall national reform. Timely adjustment or even necessary give-ups are sometimes needed. For instance, weight adjustment between the two dispute-solving pattern mediation and trial are necessary to adapt to the different features of the disputes in different times. The system of chief judge and law clerk are shelved in some regions because the objective conditions are not ripe yet, etc. National judicial test policies are adapted to mitigate the inadequate judge issue in western China. Judicial reform must be correspondent with the current status and environment, and then it would be vibrant and effective. Therefore, the reform feel the pulse of the times and situations and have a thorough understanding of the reality and problems. Before the reform, we should figure out what should be stuck to and institutionalized, what should be adjusted or even abandoned, what could be evolved into new reform measures, enriched or supplemented.
6. The Awareness of goal
Whether it be political party, group or individual, it maintains the stance that “Human beings are rational animal”and every act it performs is obviously or hiddenly guided by a specific goal. “preparedness ensures success and unpreparedness spells failure”, many framework documents in foreign countries always pointed out specific reform goals, such as the “Mongolia Judicial Reform’s Strategic Arrangement” issued by Great Hural of Mongolia in 2000, which is a long term strategic documents on judicial reform. It expounds the direction for the development of the judicial system in the overall judicial reform framework of Mongolia and establishes the strategic goal of Mongolia judicial system. (1) ensure the independent political, economical and social status of the court and judges and establish a corresponding judge accountability system; (2) improve the adaptability of judicial systems to meet the demand social change; (3) strive for judicial justice through appropriate application of law;(4) improve the service capacity of the court to ensure that the court respond to the request of the client in a timely manner; (5) strengthen the professional development of the ordinary courts and special courts, establish efficient proceedings. Central Committee Political Bureau of Vietnam Communist Party released “2005-2020 judicial reform strategy” on June 2, 2005 (No.49th -NQ/TW judicial reform strategy resolution), which establishes the goal of judicial reform is “to establish a clean, healthy, authoritative, democratic, rigorous , fair and just judiciary, to ensure that the judiciary develop steadily towards modernization and that the trial-centered judicial activities actively serve Vietnam socialist country and its people”.
Although the reform of our country pursued a “steady”and “pragmatic” strategy, but the economic reform goal is clear at every stage, for example, the 13th CPC National Congress proposed “a planned commodity economy”, 14th Party Congress “socialist market economy” ( of course, during the period, there is some disagreement and disputes). However, as for the purpose of the reform of the judicial system in China, the CPC Central Committee still has not pointed out a clear programmatic and directional objectives which is summarized similarly.(Of course, there is no specialized topic in this field on the CPC Central Committee plenary session ), but only made arrangements for the different stages of the judicial reform, for example, as stated in the report of the 15th CPC National Congress , “to promote judicial reform, institutionally ensure that the judiciary exercise judicial and procuratorial power according to the law independently and impartially, establish accountability system for unjust and misjudged cases; to strengthen law enforcement and development of the judicial team.” The 16th CPC National Congress report says, “to promote the reform of the judicial system. Socialist judicial system must guarantee fairness and justice in the whole society. In accordance with the requirements of justice and strict law enforcement, the systems should be improved in terms of the organization of judicial organs, division of responsibility and power as well as management. It should enjoy clear responsibilities, cooperate with each other, mutually restrain and operate efficiently. Judicial and prosecutorial agencies should be ensured institutionally that they would exercise judicial and procuratorial power by law independently and impartially. We should improve judicial proceedings, protect the legitimate rights and interests of citizens and legal persons, effectively solve and implement difficult issues. The working mechanism of judicial organs and personal property management system should be reformed to progressively realize the separation of judgment and the prosecution with judicial administrative affairs. Also, we need to strengthen the supervision of judicial work, punish corruption in the judicial field and develop a group of firm, proficient, virtuous and impartial judicial personnel.” 17th CPC National Congress report states “deepen the reform of the judicial system, optimize the allocation of judicial functions and powers, standardize judicial practices, and build a fair, efficient and authoritative socialist judicial system to ensure that the judicial and procuratorial organs exercise judicial power by the law independently and impartially” Academic sector’s understanding on this is not consistent. There are theory of“justice and efficiency”, “the independence of the judiciary”and “fair, efficient and authoritative”.
Goals guide actions, and “the reform of the judicial system should have clear goals to ensure the direction and continuity. With the national strategy of “running state affairs according to law, and building a socialist country under the rule of law” deepening, and the socialist legal system basically having been shaped, more stress will be put on “abiding by laws, strictly enforcing laws” and “prosecuting the lawbreakers” than “making sure there are laws to abide by”, which means the implementation of the constitution and laws will be more important. The “era of legislation” will be phasing out to give way to “the era of justice”. Correspondingly, CPC central committee should size up the times, and convene a plenary to discuss the reform of the judicial system. Fundamental realities and problems of the country should be carefully studied, the goals, principles, and tasks for the reform of the judicial system should be laid out, and the systematic and institutional obstacles of the “implementation of the constitution and laws” should be lifted through the deepening of the judicial system reform to ensure that the “builders and guardians of the socialist undertaking” better serve their constitutional duties of“implementing the constitution and laws, and safeguarding the legal integrity”, and to make the whole society fairer and more just.
7. The Awareness of Centralization and Decentralization
The judicial system of any country or region comprises of various aspects and specific institutions. Judicial systems differ in various degrees from each other due to the influence of different political, economic, social, legal, and culture conditions. Even countries of the same state structure, for example, countries under the unitary system or the federal system, vary from each other. For example, Germany is a federal state in terms of court establishment, because it has two levels of court systems, namely the federal court system and the state court system. In terms of jurisdiction, it has constitutional courts, common courts, and specialized courts(including labor courts, financial courts, social courts, and administrative courts). America is a federal state with its federal court system and state court system, but it has no specialized constitutional courts. Similarly, France and Japan are both centralized unitary states, but France has two judge systems of common court judge system and administrative judge system, while Japan only has one unified judge system.
China is a centralized unitary state, as the result, the problem of centralization and decentralization has existed throughout the process of the reform. Such problems as how to deal with “sameness and difference”, “principles and flexibility”, and “uniformity and diversity” also pose challenges to the reform of the judicial system. To be specific, firstly, we should properly deal with the relationship between the central and the local, and that between principle and flexibility on the macro-level. The central government should guide and outline the reform by the scientific outlook of development with the focus on grasping regular patterns, pointing out to a clear direction, erecting principles, and designing frameworks in order to create a scientific and orderly environment for the reform. For matters that require “uniformity”, the central should explicitly point it out, and firmly ensure it. For matters that allow flexibility, the central should be bold in decentralizing and leaving room. The local should not only make efforts to combine the “unified central requirement” and the “local realities” to ensure that the “compulsory exercises” are completed well locally, and take initiative to choose their“optional exercises” within the allowed room. Secondly, in the specific adjustment or establishment of judicial mechanisms, the relationship between “uniformity” and “diversity” should be properly dealt with. Many specific judicial mechanisms were designed according to the fundamental realities and judicial practices in the era of planned economy, and bear the “sameness” feature. For example, a system whereby the second instance is the final instance is compatible with the situations back then when the number of cases was small, the types of cases was limited, the handling of cases were simple, the general public’s judicial demand( e.g. judicial uniformity and fairness) was relatively low, and local transportation were underdeveloped. However, with the coming of the era of market economy, these situations are quickly changing. The rocking number of cases, more diverse types of cases, more difficulties in handling them, people’s increasing judicial demand, more convenient transportation, and more IT-based courts necessitate the transformation from a simple system whereby the second instance is the final instance to a diverse judicial hierarchy. Take another example, the introduction and adjustment of the unified national legal profession examination system proves that bad results will come if we stick to the“absolutization” or “on-sided” mentality, and don’t properly balance “uniformity” with “diversity”. A unified examination system made sense in terms of strengthening legal profession and improving judicial uniformity. However, because of the regional disparity in economic and cultural development, the tendency to appoint local judges, and the fixed working sites of judges, the examination system has shown its drawbacks in practice. (e.g.the shortage of judges in some courts in central and west China, and the “aging problem”). Therefore, the country has to make local adjustment to the system to meet the demand of local practice. Finally, we should use institutionalized or procedural mechanism to overcome the“disunity” as the result of “diversity”. The need for “uniformity”always exists for a independent sovereign country or legal jurisdiction, so relevant mechanisms are needed to guarantee the need. For example, in Germany, a country with various court systems, if a ruling is likely to contradict rulings of other courts, a decision must be made on the joint conference of state supreme courts. In America, there is a“leapfrog” system whereby appeals can be made directly to the federal courts without going through the state courts to solve the problem of different state courts applying different federal laws. With the transition from focusing on legislation to focusing on implementation in China, people are having increasingly higher demand for “same sentence for same cases” and legal uniformity. It is undoubtedly crucial for future reform that we sum up the merits and demerits of the existing mechanism for protecting legal uniformity on the one hand, and explore new mechanisms that are able to encourage the judges’ to apply laws and ensure the relative uniformity of such law application.
8. The Awareness of Learning
With deepening economic and political integration and globalization, exchanges between countries are increasingly close with more and more cooperation. This has created a useful opportunity of dialogue for judicial reformers but also presented the Inkommensurabilit of judicial reform in different contexts. Based on the assumption that China is a latecomer in terms of rule of law, the judicial reform should stick to scientific and right principles to carefully make comparative studies and learn upon the achievement of rule of law from other countries. Firstly, we should comprehensively summarize judicial reform categories of countries all over the world, discriminate and sum up differences and similarities. According to propositions of Taiwan scholars, starting from the perspective that justice is a necessary supporting mechanism to realize rule of law, there are four types of ongoing judicial reforms in the globe namely establishing rule of law, deepening rule of law, simplifying rule of law and transforming rule of law. They vary in terms of reform background, guiding principles, specific tasks, implementation environment and results but share similarities in standing from existing national tradition, meeting demand of reform, focusing on planning and establishing relatively unified and neutral reform institutions, engagement of legal professionals and public and some common reform fields (e.g. a common reform direction has been formed in justice’s proximity to the public, diversified dispute resolution mechanism, saving justice, justice openness and information justice). China today is in the time crisscross (tradition, modernization and post-modernization exist in the same time and space), judicial reform is also at the state of mixed categories, i.e. to deepen and simplify rule of law at the same time. Therefore, judicial reform is increasingly complicated and difficult. Secondly, we should discriminate different categories of judicial mechanism and figure out differences and similarities. Our current judicial system is an outcome of various traditions and elements with both factors of internal traditional legal culture and people\s justice and also external continental law system (reform in late Qing Dynasty and during the period of the Republic of China), legal system of former Soviet Union (during new democratic revolution) and the common law system (since reform and opening up). These different systems vary hugely in terms of jurisdiction’s status in the constitution, basic concepts of justice, arrangement of courts, design of litigation system and procedure, judges’ way of thinking, style of judgment document and administrative management of court. Only by making careful, detailed and scientific analysis of the countries or regions with different legal system on the above areas and to know both phenomenon of different systems and environment and reasons of specific system operation and strengthening coordination and matching study of these factors or systems so that the mixing of these different judicial system will not go to the opposite way or resulting in an undesired result because of inappropriate introduction or “transplantation”. Finally, it is important to deal with the relations between national situation and learning from other civilizations. The civilizations of rule of law in the world are diverse with different judicial systems and litigation models while there is a common trend of mutual-combination and learning. Take litigation model as an example, pure Ex Officio Doctrine and adversary system have become history. Currently, many countries developed in rule of law have adopted the mixed model of adversary system and Ex Officio Doctrine. Therefore, we can’t just have generalized understanding of national situation to exclude or refused to learn upon the fruit of rule of law from other countries or should we ignore national situation and history, deny tradition and blindly copy or simply follow foreign judicial systems and mechanisms. We should make scientific analysis of national situation, reasonably learn upon foreign system or achievement that can meet the demand of national reality of each phase.
9. The International Awareness
Since China’s opening up especially its entry into WTO, reform and opening up complement each other and reform is always faced with the direction of international view. The Party Central Committee always plan and promote reform based on both international and domestic situations. In terms of judicial reform, we should firstly establish the awareness of international rules. Since the birth of nation states, international conventions, rules and norms have been developed gradually. As member of the world, China should not only actively honor its commitment in international conventions and treaties by lawmaking but also creating terms to enter the unsigned international conventions and treaties (except those proclaimed to reserve) and also actively participate in creating new international rules to restructure global economic and political order. For instance, in criminal rule of law, UN and other international organizations formulated series of international conventions and treaties such as International Convention on Citizen Rights and Political Rights, International Convention on Economic, Social and Cultural Rights,
UN Convention against Transnational Organized Crime and United Nations Convention against Corruption etc. Take another example, in terms of regulating judicial officials and the media, there are Basic Principles of Judicial Independence passed in the UN General Assembly in 1985, Basic Principles regarding Role of Lawyers passed in the UN Congress on Prevention Crimes and Treatment of Criminals in 1990, The Madrid Principles on the Relationship between the Media and Judicial Independence(the Madrid Principles) by the International Commission of Jurists in 1994 and Fundamental Principles of Judicial Independence by United Nations Economic and Social Council in 2007 etc. As a responsible major power, China should strictly fulfill its international obligations and actively implement principles set in the international conventions and treaties which reflect demand of universal rule of law by domestic lawmaking. Meanwhile, China should also substantially shoulder the responsibility as a major power and actively participate in formulating and improving new international rules regarding rule of law. Secondly, it is conducive to establish awareness of international judicial cooperation. With deepening internationalization and globalization, countries in the world are faced with common threats and challenges which urgently need strengthening international cooperation in judicial areas such as financial crisis, energy crisis, food crisis, climate change, terrorism, organized crime, and trafficking in persons and drugs etc. Meanwhile, “in the ear of globalization, as a growing major power, the extent and capacity to participate and handle bilateral and multilateral international affairs is a necessary practice for China to grow into a mature political nation and also an indicator to evaluate the political wisdom of its ruling party and leaders”. Undoubtedly, extent and capacity to participate and handle bilateral and multilateral international judicial affairs is an important part in demonstrating national capacity and image. All of these depend on providing systems and mechanisms conducive to judicial authorities’participation in international cooperation and environment useful to cultivate international legal professionals in line with the need of international judicial cooperation through judicial reform while also setting a solid foundation for China to enter the international system of rule of law.
10. The Awareness of Synergy
Judicial reform is a complicated systemic project covering wide range of tasks which requires collective wisdom and joint forces so as to guarantee positive and orderly operation and good results. Firstly, we should stick to true professionalism and people’s position. Justice is a very professional activity and judicial reform must follow the rules of justice. True professionalism means that this intellectual activity must be conducted with professionals(mainly include but not limited to legal experts and experts in political science, reform and management science) in a truly and substantial manner and not just the participation in form (fake professionalism). It is true that while “pursuing professionalism, we must avoid professional factors’ role in increasing people’s rejection to law”. Meanwhile, justice is an activity with strong nature for the people so judicial reform must stand from the judicial needs of the people and to provide effective guarantee for people’s fundamental interests. The so-called “people’s position” means that each part of judicial reform including its timing, focus, design of reform plan, operation and adjustment of reform measures and evaluation of reform effect should all respond to people’s appeal, safeguard their interest and fulfill their wishes. In another word, we should answer the questions of why to reform, what to reform, how to reform and what is the effect of form from the perspective of the people. Secondly, we should give play of the synergy of various forces under the right leadership of the party. Judicial reform is political, sensitive and systemic in nature which needs strong organization and leadership of the party. With the approaching of era of justice and society of litigation, justice is having a bigger impact on and intervention in political, economic, cultural and social life. Jurisdiction is becoming more and more important as part of public power. The party should attach great attention to and hold tightly jurisdiction in terms of concept and actively allocate jurisdiction in a scientific and rational manner through judicial reform in action so as to play the maximum function of “establishment and safeguarding”. Judicial system is an organic system made of many organizations, systems and mechanisms. Both the relations between different components within it and the relations between the internal parts and external ones must in a state of positive interaction so as to guarantee its function to work effectively. For instance, the relationship among the party committee (politics and law committee included), NPC and its standing committee, government (including related specific functions), CPPCC, media, people (netizen) and judicial authority, court and procuratorate, pubic security organs, judicial administrative organs and the superior and subordinate relations in the court should be structured scientifically and reasonably for it directly or indirectly restrain and influence the operation state and effect of judicial power. Judicial reform usually target at the unreasonable areas of these relations and concerns the transfer of specific power or interests among related organizations. To avoid negative influence of “selfish departmentalism” and “sectionalism” to make reform scattered in departments, the central party committee should stand from the overall picture and make joint efforts to substantially strengthen coordinated planning and design at the top. Finally, it is conducive to build a platform or carrier to play the role of synergy including improve a neutral organizational structure of judicial reform and a democratic and scientific working mechanism. The current approach in practices is that a relatively loose “leading team of central judicial system reform” (with an office in central law and political committee) led by a member of the standing committee who is responsible for political and law from the perspective of party leading judicial reform. It is obvious that this team is a temporary, deliberative and procedural working mechanism and it not a fixed, regular and materialized working institution. As judicial reform is entering into a deep zone and phase of difficulties, it is necessary to make the following adjustment: firstly, given the coordination requirement and legitimacy of judicial reform, drawing upon the practices in Japan, Russia and other countries where prime minister or president act as the chief of judicial reform, it is suggested that the secretary general take the leading role supported by member of the standing committee in charge of legislation and law and political works; secondly, establish a specific organizational institution of judicial reform (the current office is the same set of staff wearing two hats) in the General Office of the CPC Central Committee and the Central Law and Political Committee. This institution should be equipped with professionals (not limited to experts in law) but also with part-timers to do related work. Mechanisms of judicial reform operation should be institutionalized and standardized as soon as possible including information collection system and public opinion communication mechanism in the survey and research phase of reform, democratic and scientific decisionmaking mechanism in the formulation of reform plans, supervision and incentive mechanism in the implementation of reform, media publicity and reporting communication mechanism in the phase of making reform plans public, evaluation mechanism of the operation results of reform measures and information feedback mechanism as well as mechanism to discover and cultivate reform talents so as to guarantee the orderly progress of reform based on rules.
Judicial reform is a long term progressing and deepening process, which takes on the characteristic of many phases. As the saying goes “Good governance can adjust and act in a timely manner”, judicial reform should have a sense of the present, keep up with the times and take place in appropriate timing. First, judicial reform should be based on current national conditions. Current national conditions have many multi-dimensional aspects, which involve the condition of the party, society, people as well as the status of politics, economy, culture, law, social development and etc. Compared with traditional national conditions, current national conditions more directly determine the basic attributes of the judicial systems of our country, its overall framework, trend of development and outline; furthermore, it could constrain the development and implementation of reform scheme at the present stage. Take for instance, the political conditions and realities of our country, namely, form of state people’s democratic dictatorship, form of government the system of people’s congress and leadership the People’s Republic of China, have determined that the reform of political system shall not be carried out in five aspects. Correspondingly, judicial reform in China cannot imitate or copy the judicial system or model based on the “Separation of three powers” in the West. Second, before launching judicial reform, one should do an in-depth research of the present internal and external environment and status of the court. External environment includes rule of law, economy, society, politics, culture and other aspects outside the judicial system, moreover, the relationship between the court and the procuratorate, judicial administrative organ and public security organs. It produces an impact on the implementation, effect and time of specific reform measures; therefore, scientific and feasible method should be adopted to make practical judgment and evaluation. For example, the World Justice Project recommended the Rule of Law Index to evaluate the status of rule of law in a state. This index is composed of four groups, totally 16 level 1 indexes and 68 level 2 indexes. The first group emphasizes the constitutionalization and institutionalization of rule of law, to ensure the executive power been restrained. Second group emphasized that the rule of law is established based on a just, open and stable legislative system. Third group prioritizes that the rule of law should be open, fair and efficient in judicial process. Fourth group highlights that rule of law should be supported by a group of independent, capable and virtuous legal professionals. Internal environment of the court refers to judge, work staff, cases, judicial administrative facilities, judicial concept and model, operation of judicial right, trial management, organization, function and others. In other words, only when one have a thorough research on the background, could he be able to propose a practical and realistic reform scheme. What’s more, judicial reform should focus on solving the prominent issues at present. Judicial reform does not aim for reform only; rather it should keep the right stance, meeting people’s demand first. As the saying goes “apply medicine according to indications”, it should focus on solving the issues concerning people’s dissatisfaction, expectations, and judicial issues regarding the systematic, institutional and supportive aspect of the people’s court, which hinders the court from serving the scientific development and the scientific development of the court, so it can promote the court to develop soundly and in an all-round way, improve the judicial capability of the court on serving the party and the state, bring real benefits and fruits of judicial reform to the general public. Lastly, judicial reform should be conducted based on the current status and timely adjust the concept or measures of reform. Reform is never smooth and it often experiences repetition and setbacks. The reform of judicial system and working mechanism in China, in particular, has no fixed model to imitate, like the overall national reform. Timely adjustment or even necessary give-ups are sometimes needed. For instance, weight adjustment between the two dispute-solving pattern mediation and trial are necessary to adapt to the different features of the disputes in different times. The system of chief judge and law clerk are shelved in some regions because the objective conditions are not ripe yet, etc. National judicial test policies are adapted to mitigate the inadequate judge issue in western China. Judicial reform must be correspondent with the current status and environment, and then it would be vibrant and effective. Therefore, the reform feel the pulse of the times and situations and have a thorough understanding of the reality and problems. Before the reform, we should figure out what should be stuck to and institutionalized, what should be adjusted or even abandoned, what could be evolved into new reform measures, enriched or supplemented.
6. The Awareness of goal
Whether it be political party, group or individual, it maintains the stance that “Human beings are rational animal”and every act it performs is obviously or hiddenly guided by a specific goal. “preparedness ensures success and unpreparedness spells failure”, many framework documents in foreign countries always pointed out specific reform goals, such as the “Mongolia Judicial Reform’s Strategic Arrangement” issued by Great Hural of Mongolia in 2000, which is a long term strategic documents on judicial reform. It expounds the direction for the development of the judicial system in the overall judicial reform framework of Mongolia and establishes the strategic goal of Mongolia judicial system. (1) ensure the independent political, economical and social status of the court and judges and establish a corresponding judge accountability system; (2) improve the adaptability of judicial systems to meet the demand social change; (3) strive for judicial justice through appropriate application of law;(4) improve the service capacity of the court to ensure that the court respond to the request of the client in a timely manner; (5) strengthen the professional development of the ordinary courts and special courts, establish efficient proceedings. Central Committee Political Bureau of Vietnam Communist Party released “2005-2020 judicial reform strategy” on June 2, 2005 (No.49th -NQ/TW judicial reform strategy resolution), which establishes the goal of judicial reform is “to establish a clean, healthy, authoritative, democratic, rigorous , fair and just judiciary, to ensure that the judiciary develop steadily towards modernization and that the trial-centered judicial activities actively serve Vietnam socialist country and its people”.
Although the reform of our country pursued a “steady”and “pragmatic” strategy, but the economic reform goal is clear at every stage, for example, the 13th CPC National Congress proposed “a planned commodity economy”, 14th Party Congress “socialist market economy” ( of course, during the period, there is some disagreement and disputes). However, as for the purpose of the reform of the judicial system in China, the CPC Central Committee still has not pointed out a clear programmatic and directional objectives which is summarized similarly.(Of course, there is no specialized topic in this field on the CPC Central Committee plenary session ), but only made arrangements for the different stages of the judicial reform, for example, as stated in the report of the 15th CPC National Congress , “to promote judicial reform, institutionally ensure that the judiciary exercise judicial and procuratorial power according to the law independently and impartially, establish accountability system for unjust and misjudged cases; to strengthen law enforcement and development of the judicial team.” The 16th CPC National Congress report says, “to promote the reform of the judicial system. Socialist judicial system must guarantee fairness and justice in the whole society. In accordance with the requirements of justice and strict law enforcement, the systems should be improved in terms of the organization of judicial organs, division of responsibility and power as well as management. It should enjoy clear responsibilities, cooperate with each other, mutually restrain and operate efficiently. Judicial and prosecutorial agencies should be ensured institutionally that they would exercise judicial and procuratorial power by law independently and impartially. We should improve judicial proceedings, protect the legitimate rights and interests of citizens and legal persons, effectively solve and implement difficult issues. The working mechanism of judicial organs and personal property management system should be reformed to progressively realize the separation of judgment and the prosecution with judicial administrative affairs. Also, we need to strengthen the supervision of judicial work, punish corruption in the judicial field and develop a group of firm, proficient, virtuous and impartial judicial personnel.” 17th CPC National Congress report states “deepen the reform of the judicial system, optimize the allocation of judicial functions and powers, standardize judicial practices, and build a fair, efficient and authoritative socialist judicial system to ensure that the judicial and procuratorial organs exercise judicial power by the law independently and impartially” Academic sector’s understanding on this is not consistent. There are theory of“justice and efficiency”, “the independence of the judiciary”and “fair, efficient and authoritative”.
Goals guide actions, and “the reform of the judicial system should have clear goals to ensure the direction and continuity. With the national strategy of “running state affairs according to law, and building a socialist country under the rule of law” deepening, and the socialist legal system basically having been shaped, more stress will be put on “abiding by laws, strictly enforcing laws” and “prosecuting the lawbreakers” than “making sure there are laws to abide by”, which means the implementation of the constitution and laws will be more important. The “era of legislation” will be phasing out to give way to “the era of justice”. Correspondingly, CPC central committee should size up the times, and convene a plenary to discuss the reform of the judicial system. Fundamental realities and problems of the country should be carefully studied, the goals, principles, and tasks for the reform of the judicial system should be laid out, and the systematic and institutional obstacles of the “implementation of the constitution and laws” should be lifted through the deepening of the judicial system reform to ensure that the “builders and guardians of the socialist undertaking” better serve their constitutional duties of“implementing the constitution and laws, and safeguarding the legal integrity”, and to make the whole society fairer and more just.
7. The Awareness of Centralization and Decentralization
The judicial system of any country or region comprises of various aspects and specific institutions. Judicial systems differ in various degrees from each other due to the influence of different political, economic, social, legal, and culture conditions. Even countries of the same state structure, for example, countries under the unitary system or the federal system, vary from each other. For example, Germany is a federal state in terms of court establishment, because it has two levels of court systems, namely the federal court system and the state court system. In terms of jurisdiction, it has constitutional courts, common courts, and specialized courts(including labor courts, financial courts, social courts, and administrative courts). America is a federal state with its federal court system and state court system, but it has no specialized constitutional courts. Similarly, France and Japan are both centralized unitary states, but France has two judge systems of common court judge system and administrative judge system, while Japan only has one unified judge system.
China is a centralized unitary state, as the result, the problem of centralization and decentralization has existed throughout the process of the reform. Such problems as how to deal with “sameness and difference”, “principles and flexibility”, and “uniformity and diversity” also pose challenges to the reform of the judicial system. To be specific, firstly, we should properly deal with the relationship between the central and the local, and that between principle and flexibility on the macro-level. The central government should guide and outline the reform by the scientific outlook of development with the focus on grasping regular patterns, pointing out to a clear direction, erecting principles, and designing frameworks in order to create a scientific and orderly environment for the reform. For matters that require “uniformity”, the central should explicitly point it out, and firmly ensure it. For matters that allow flexibility, the central should be bold in decentralizing and leaving room. The local should not only make efforts to combine the “unified central requirement” and the “local realities” to ensure that the “compulsory exercises” are completed well locally, and take initiative to choose their“optional exercises” within the allowed room. Secondly, in the specific adjustment or establishment of judicial mechanisms, the relationship between “uniformity” and “diversity” should be properly dealt with. Many specific judicial mechanisms were designed according to the fundamental realities and judicial practices in the era of planned economy, and bear the “sameness” feature. For example, a system whereby the second instance is the final instance is compatible with the situations back then when the number of cases was small, the types of cases was limited, the handling of cases were simple, the general public’s judicial demand( e.g. judicial uniformity and fairness) was relatively low, and local transportation were underdeveloped. However, with the coming of the era of market economy, these situations are quickly changing. The rocking number of cases, more diverse types of cases, more difficulties in handling them, people’s increasing judicial demand, more convenient transportation, and more IT-based courts necessitate the transformation from a simple system whereby the second instance is the final instance to a diverse judicial hierarchy. Take another example, the introduction and adjustment of the unified national legal profession examination system proves that bad results will come if we stick to the“absolutization” or “on-sided” mentality, and don’t properly balance “uniformity” with “diversity”. A unified examination system made sense in terms of strengthening legal profession and improving judicial uniformity. However, because of the regional disparity in economic and cultural development, the tendency to appoint local judges, and the fixed working sites of judges, the examination system has shown its drawbacks in practice. (e.g.the shortage of judges in some courts in central and west China, and the “aging problem”). Therefore, the country has to make local adjustment to the system to meet the demand of local practice. Finally, we should use institutionalized or procedural mechanism to overcome the“disunity” as the result of “diversity”. The need for “uniformity”always exists for a independent sovereign country or legal jurisdiction, so relevant mechanisms are needed to guarantee the need. For example, in Germany, a country with various court systems, if a ruling is likely to contradict rulings of other courts, a decision must be made on the joint conference of state supreme courts. In America, there is a“leapfrog” system whereby appeals can be made directly to the federal courts without going through the state courts to solve the problem of different state courts applying different federal laws. With the transition from focusing on legislation to focusing on implementation in China, people are having increasingly higher demand for “same sentence for same cases” and legal uniformity. It is undoubtedly crucial for future reform that we sum up the merits and demerits of the existing mechanism for protecting legal uniformity on the one hand, and explore new mechanisms that are able to encourage the judges’ to apply laws and ensure the relative uniformity of such law application.
8. The Awareness of Learning
With deepening economic and political integration and globalization, exchanges between countries are increasingly close with more and more cooperation. This has created a useful opportunity of dialogue for judicial reformers but also presented the Inkommensurabilit of judicial reform in different contexts. Based on the assumption that China is a latecomer in terms of rule of law, the judicial reform should stick to scientific and right principles to carefully make comparative studies and learn upon the achievement of rule of law from other countries. Firstly, we should comprehensively summarize judicial reform categories of countries all over the world, discriminate and sum up differences and similarities. According to propositions of Taiwan scholars, starting from the perspective that justice is a necessary supporting mechanism to realize rule of law, there are four types of ongoing judicial reforms in the globe namely establishing rule of law, deepening rule of law, simplifying rule of law and transforming rule of law. They vary in terms of reform background, guiding principles, specific tasks, implementation environment and results but share similarities in standing from existing national tradition, meeting demand of reform, focusing on planning and establishing relatively unified and neutral reform institutions, engagement of legal professionals and public and some common reform fields (e.g. a common reform direction has been formed in justice’s proximity to the public, diversified dispute resolution mechanism, saving justice, justice openness and information justice). China today is in the time crisscross (tradition, modernization and post-modernization exist in the same time and space), judicial reform is also at the state of mixed categories, i.e. to deepen and simplify rule of law at the same time. Therefore, judicial reform is increasingly complicated and difficult. Secondly, we should discriminate different categories of judicial mechanism and figure out differences and similarities. Our current judicial system is an outcome of various traditions and elements with both factors of internal traditional legal culture and people\s justice and also external continental law system (reform in late Qing Dynasty and during the period of the Republic of China), legal system of former Soviet Union (during new democratic revolution) and the common law system (since reform and opening up). These different systems vary hugely in terms of jurisdiction’s status in the constitution, basic concepts of justice, arrangement of courts, design of litigation system and procedure, judges’ way of thinking, style of judgment document and administrative management of court. Only by making careful, detailed and scientific analysis of the countries or regions with different legal system on the above areas and to know both phenomenon of different systems and environment and reasons of specific system operation and strengthening coordination and matching study of these factors or systems so that the mixing of these different judicial system will not go to the opposite way or resulting in an undesired result because of inappropriate introduction or “transplantation”. Finally, it is important to deal with the relations between national situation and learning from other civilizations. The civilizations of rule of law in the world are diverse with different judicial systems and litigation models while there is a common trend of mutual-combination and learning. Take litigation model as an example, pure Ex Officio Doctrine and adversary system have become history. Currently, many countries developed in rule of law have adopted the mixed model of adversary system and Ex Officio Doctrine. Therefore, we can’t just have generalized understanding of national situation to exclude or refused to learn upon the fruit of rule of law from other countries or should we ignore national situation and history, deny tradition and blindly copy or simply follow foreign judicial systems and mechanisms. We should make scientific analysis of national situation, reasonably learn upon foreign system or achievement that can meet the demand of national reality of each phase.
9. The International Awareness
Since China’s opening up especially its entry into WTO, reform and opening up complement each other and reform is always faced with the direction of international view. The Party Central Committee always plan and promote reform based on both international and domestic situations. In terms of judicial reform, we should firstly establish the awareness of international rules. Since the birth of nation states, international conventions, rules and norms have been developed gradually. As member of the world, China should not only actively honor its commitment in international conventions and treaties by lawmaking but also creating terms to enter the unsigned international conventions and treaties (except those proclaimed to reserve) and also actively participate in creating new international rules to restructure global economic and political order. For instance, in criminal rule of law, UN and other international organizations formulated series of international conventions and treaties such as International Convention on Citizen Rights and Political Rights, International Convention on Economic, Social and Cultural Rights,
UN Convention against Transnational Organized Crime and United Nations Convention against Corruption etc. Take another example, in terms of regulating judicial officials and the media, there are Basic Principles of Judicial Independence passed in the UN General Assembly in 1985, Basic Principles regarding Role of Lawyers passed in the UN Congress on Prevention Crimes and Treatment of Criminals in 1990, The Madrid Principles on the Relationship between the Media and Judicial Independence(the Madrid Principles) by the International Commission of Jurists in 1994 and Fundamental Principles of Judicial Independence by United Nations Economic and Social Council in 2007 etc. As a responsible major power, China should strictly fulfill its international obligations and actively implement principles set in the international conventions and treaties which reflect demand of universal rule of law by domestic lawmaking. Meanwhile, China should also substantially shoulder the responsibility as a major power and actively participate in formulating and improving new international rules regarding rule of law. Secondly, it is conducive to establish awareness of international judicial cooperation. With deepening internationalization and globalization, countries in the world are faced with common threats and challenges which urgently need strengthening international cooperation in judicial areas such as financial crisis, energy crisis, food crisis, climate change, terrorism, organized crime, and trafficking in persons and drugs etc. Meanwhile, “in the ear of globalization, as a growing major power, the extent and capacity to participate and handle bilateral and multilateral international affairs is a necessary practice for China to grow into a mature political nation and also an indicator to evaluate the political wisdom of its ruling party and leaders”. Undoubtedly, extent and capacity to participate and handle bilateral and multilateral international judicial affairs is an important part in demonstrating national capacity and image. All of these depend on providing systems and mechanisms conducive to judicial authorities’participation in international cooperation and environment useful to cultivate international legal professionals in line with the need of international judicial cooperation through judicial reform while also setting a solid foundation for China to enter the international system of rule of law.
10. The Awareness of Synergy
Judicial reform is a complicated systemic project covering wide range of tasks which requires collective wisdom and joint forces so as to guarantee positive and orderly operation and good results. Firstly, we should stick to true professionalism and people’s position. Justice is a very professional activity and judicial reform must follow the rules of justice. True professionalism means that this intellectual activity must be conducted with professionals(mainly include but not limited to legal experts and experts in political science, reform and management science) in a truly and substantial manner and not just the participation in form (fake professionalism). It is true that while “pursuing professionalism, we must avoid professional factors’ role in increasing people’s rejection to law”. Meanwhile, justice is an activity with strong nature for the people so judicial reform must stand from the judicial needs of the people and to provide effective guarantee for people’s fundamental interests. The so-called “people’s position” means that each part of judicial reform including its timing, focus, design of reform plan, operation and adjustment of reform measures and evaluation of reform effect should all respond to people’s appeal, safeguard their interest and fulfill their wishes. In another word, we should answer the questions of why to reform, what to reform, how to reform and what is the effect of form from the perspective of the people. Secondly, we should give play of the synergy of various forces under the right leadership of the party. Judicial reform is political, sensitive and systemic in nature which needs strong organization and leadership of the party. With the approaching of era of justice and society of litigation, justice is having a bigger impact on and intervention in political, economic, cultural and social life. Jurisdiction is becoming more and more important as part of public power. The party should attach great attention to and hold tightly jurisdiction in terms of concept and actively allocate jurisdiction in a scientific and rational manner through judicial reform in action so as to play the maximum function of “establishment and safeguarding”. Judicial system is an organic system made of many organizations, systems and mechanisms. Both the relations between different components within it and the relations between the internal parts and external ones must in a state of positive interaction so as to guarantee its function to work effectively. For instance, the relationship among the party committee (politics and law committee included), NPC and its standing committee, government (including related specific functions), CPPCC, media, people (netizen) and judicial authority, court and procuratorate, pubic security organs, judicial administrative organs and the superior and subordinate relations in the court should be structured scientifically and reasonably for it directly or indirectly restrain and influence the operation state and effect of judicial power. Judicial reform usually target at the unreasonable areas of these relations and concerns the transfer of specific power or interests among related organizations. To avoid negative influence of “selfish departmentalism” and “sectionalism” to make reform scattered in departments, the central party committee should stand from the overall picture and make joint efforts to substantially strengthen coordinated planning and design at the top. Finally, it is conducive to build a platform or carrier to play the role of synergy including improve a neutral organizational structure of judicial reform and a democratic and scientific working mechanism. The current approach in practices is that a relatively loose “leading team of central judicial system reform” (with an office in central law and political committee) led by a member of the standing committee who is responsible for political and law from the perspective of party leading judicial reform. It is obvious that this team is a temporary, deliberative and procedural working mechanism and it not a fixed, regular and materialized working institution. As judicial reform is entering into a deep zone and phase of difficulties, it is necessary to make the following adjustment: firstly, given the coordination requirement and legitimacy of judicial reform, drawing upon the practices in Japan, Russia and other countries where prime minister or president act as the chief of judicial reform, it is suggested that the secretary general take the leading role supported by member of the standing committee in charge of legislation and law and political works; secondly, establish a specific organizational institution of judicial reform (the current office is the same set of staff wearing two hats) in the General Office of the CPC Central Committee and the Central Law and Political Committee. This institution should be equipped with professionals (not limited to experts in law) but also with part-timers to do related work. Mechanisms of judicial reform operation should be institutionalized and standardized as soon as possible including information collection system and public opinion communication mechanism in the survey and research phase of reform, democratic and scientific decisionmaking mechanism in the formulation of reform plans, supervision and incentive mechanism in the implementation of reform, media publicity and reporting communication mechanism in the phase of making reform plans public, evaluation mechanism of the operation results of reform measures and information feedback mechanism as well as mechanism to discover and cultivate reform talents so as to guarantee the orderly progress of reform based on rules.