Judicial reform in China

 

II.

Maintaining Social Fairness and Justice

Maintaining social fairness and justice is the value to be enforced in China's judicial reform. China aims its judicial reform at strengthening its judicial organs' capability in maintaining social justice by optimizing the structure of the judicial organs and allocation of their functions and power, standardizing judicial acts, improving judicial proceedings, and enhancing judicial democracy and legal supervision.

1. Optimizing the Allocation of Judicial Functions and Power

The rationalization and optimization of judicial functions and power has a direct bearing on the materialization of justice. China, starting from removing the institutional barriers that affect judicial impartiality, has enhanced internal checks in judicial organs, clarified the work relationship between the people's courts and the people's procuratorates at different levels, standardized and improved retrial procedures, and established consistent law-enforcement system and judicial authentication management system. These reforms have improved judicial organs' capacity for maintaining fairness, helped to safeguard social equity and justice, and fulfilled the public's new expectations and demands for the judicial system in maintaining justice.

Separation of filing, trial and execution of cases. The people's courts at all levels have established case-filing tribunals, execution bureaus and other departments in addition to the original criminal, civil and administrative adjudication tribunals. Case-filing, trial and execution are handled separately by different offices, which act independently and exercise a mutual-check function to ensure the fair exercise of adjudicative and execution power.

Standardizing the retrial of remanded cases and designated cases. To correct the irregular practices in the procedures regarding retrial of remanded cases and designated cases, the Civil Procedure Law amended in 2012 revised and improved the procedure for the retrial of remanded cases. The new provisions clearly state that after the original people's court makes its ruling in the retrial of a remanded case, if the litigant makes an appeal, the people's court of second instance shall not send the case back for a retrial. The Criminal Procedure Law, amended in 2012, articulates that a criminal case designated for retrial by a lower-level people's court shall be tried by one other than the original court in principle.

Regularizing and improving a unified execution mechanism for civil and administrative cases. Full and effective execution of a judgment or verdict given by the court bears on effective protection of the lawful rights of all parties involved and the expression of judicial authority. In recent years, local people's courts have established a mechanism of execution that works closely with departments in charge of public security, procuratorial work, finance, land resources, construction, business and commerce, as well as exit-entry administration. The people's courts exercise separation of jurisdiction from execution. The higher and intermediate people's courts have established execution command centers for unified management and coordination of execution, and, when necessary, can have their power elevated or allow them to carry out the execution beyond the prescribed region. The reform of the execution system has further strengthened the internal checks on the exercise of execution power, promoted impartial and standardized execution, and effectively protected the legitimate rights of the parties concerned.

Reforming the procedures for examining and approving arrests in power-abuse cases. To prevent arrests by mistake, China has reformed the procedure for examining and approving arrests in power-abuse cases. For power-abuse cases filed with and investigated by a people's procuratorate below the provincial level, the approval for an arrest shall be examined and determined by the people's procuratorate at the next higher level.

This reform has strengthened the supervision of a people's procuratorate at a higher level over one at a lower level on law enforcement.

Improving the system of judicial authentication management. Judicial authentication refers to the activity of an authenticator applying scientific technology or specialized knowledge to identify and determine the specialized issues involved in a lawsuit and giving authentication opinions. Before the judicial reform, the judicial authentication system in China had problems as legislation was incomplete, management was not standardized and standards were not consistent. To solve these problems, China's legislative organ promulgated the Decision on the Management of Judicial Authentication in 2005, thereby establishing a uniform management and registration system for judicial authentication. The judicial administrative departments of the State Council take charge of the registration and management of judicial authenticators and judicial authentication institutions in China, while the judicial administrative departments of the people's governments at the provincial level are responsible for the registration upon examination, roster formulation and roster announcement of judicial authenticators and judicial authentication institutions. The people's courts and judicial administrative departments do not have judicial authentication institutions any longer; judicial authentication institutions already set up by investigation organs to meet the needs of their work will not provide judicial authentication services to the public. The state promotes a mechanism that combines administrative management with trade associations' self-disciplinary management, and adopts the system of judicial authenticators' independent practice in accordance with the law, which ensures that judicial authentication is standardized and neutral. By the end of 2011, there were 5,014 judicial authentication institutions and 52,812 judicial authenticators approved and registered in China.

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