Abstract
Wherever there is power, there is duty. It is dangerous to have power without responsibility. In this sense, responsibility is the guarantee of the operation of power. Compare to judicial power, judicial responsibility system can prevent abuse of power. Yet it also forms reverse stimulation as an external force on judges. Pressure from excessive responsibility will affects judges’ thinking and judgment. Independent thinking is the premise and basis for judges to exercise judicial power independently and core contents of judge independence and neutrality as the cornerstone of judicial justice. Obviously, excessive judicial responsibility will affect even undermine the cornerstone of judicial justice. Excessive means there is limitation of judicial responsibility. This thesis takes this as an argument and combines on-going judicial reform in China to demonstrate the limitation of Chinese judicial responsibility system. In addition to introduction and conclusion, this thesis is divided into four chapters.Chapter one finds such a phenomenon in the history of the evolution process during the emergence and development of Chinese judicial responsibility system that it comes with judicial reform and is part of Chinese judicial reform. Chinese judicial responsibility system resulted in the endeavor of reducing administrative interference on judicial organs. In the background of judicial reform, Chinese judicial responsibility carries administration and supervision functions of judicial activities. Extension of management and supervision functions calls for accountability of trial result responsibility, comprehensive responsibility and lifetime accountability. It is these three characteristics show the punishment feature of Chinese judicial responsibility system and to certain extent manifest unlimited responsibility feature of judicial activities. This is what the author called as disciplinary mode of judicial responsibility system. In this chapter, the author focuses on the reasons of this disciplinary mode of Chinese judicial responsibility system and puts in- depth inquiry. One reason is tradition factor affected by Chinese ancient judicial system. The stress demand of modern judicial credit crisis of China is another important cause. But the most important one is path dependence of Chinese judicial administrative trial management system centered in judicial chief executive responsibility system.
Chapter two mainly compares judicial responsibility systems of extraterritorial countries, especially western countries under the rule of law. In fact, western countries do not have such judicial responsibility system in strict sense as China. They either contain so many disputes and arguments on this issue as we have in China. Judicial disciplinary system on the basis of judges’ immunities is the main body of western judicial accountability system. Hence it is immunity mode of judicial responsibility system. From the historical development of the immunity system, judge exemption experienced evolution from absolute immunity to relative immunity and includes both civil and criminal aspects. The exemption of judges’ responsibility in modern western countries under the rule of law generally includes these two aspects, only with different degrees. The purpose of the exemption of judges’ responsibility is to achieve judicial impartiality through judicial independence and neutrality of judges. It is the reason why the independence and neutrality of judges are the political cornerstones of immunity judicial responsibility system. Another content of judicial accountability in western countries is judicial punishment. In these countries, the appropriateness of judges’ conduct is the only measurement of punishment or not. This is not just the standard of behavior, but also the standard of ethics. It is an ethical standard to evaluate whether the judge’s behavior is proper. Yet it is not an absolute result standard nor indication of wrong cases. In other words, the object of judicial punishment is not the result of judgment but the behavior of judges. The judges can not and will not be punished because of the judgments they made are disputed or even be deemed as wrong. This is the soul of immunity mode of judicial responsibility system. In addition, to maintain judicial independence and neutrality, judicial immunity accountability system even sets up forbidden area that the judicial punishment body should excludes accusations directly on substantial issues of judgments including procedural verdicts. Pure judicial functions such as fact ascertainments and application of law should also be excluded as cases accepted by judicial punishment body. Apparently, the existence of judicial exemption and set-up of judicial punishment forbidden area indicate that there is limitation of judicial accountability system in western countries under the rule of law.
Chapter three starts from exploration of institutional environment of disciplinary mode and immunity mode of judicial responsibility systems. The author discovered that disciplinary mode of judicial responsibility system lives with bureaucracy justice realization system, and the immunity mode of judicial responsibility system is combined in neutral justice realization system. Based on comprehensive analysis of the intrinsic mechanism of bureaucratic justice realization system and neutral justice realization system, this thesis analyzed integration of motivations and trends of these two types and drew a conclusion that two corresponding judicial responsibility system inevitably will close to and integrated with each other. The third kind of judicial responsibility that combined disciplinary and immunity characteristics is about to come.
In the fourth chapter, on the basis of theoretical reflection and practical evaluation of current judicial responsibility system in China, it is considered more on punishment and lack of enough safeguards for judges. Such a high degree of discipline has affected judges’ thinking and judgment, disorientated from its original intention. Now the adverse effect has become the stumbling block to judicial justice. Although the western mode can effectively maintain judicial independence and neutrality of judges to the maximum extent, yet its weakness in judicial power management and supervision function does not comply with China’s national condition. China has no political will and institutional demand to directly transplant from other countries. Establishing limited judicial responsibility system complying with Chinese political will, institutional demand and judicial nature is the essence of this chapter and thesis. This argument echoes the conclusion of chapter three that limited judicial responsibility system is the third type of judicial accountability that balancing and integrating supervision of judicial power and maintain the independence of judges. This limit is demonstrated from three aspects: immunities of judges, procedural responsibilities only, and accountability with time limit.
| Date of Award | 25 Jan 2018 |
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| Original language | Chinese (Traditional) |
| Awarding Institution |
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| Supervisor | Feng LIN (Supervisor) |