中國審判權的官僚化︰ 審判分離是如何產生的？

Abstract

The reform of adjudication power exercise mechanism is one of the most crucial part of the reform of judicial system in progress led and promoted by the CPC Central Committee after the 18th National Congress of the Communist Party of China. The primary purpose of such reform is to remove the separation of trial and judgment from the operation process of adjudication power, attempting to let the judges adjudicate and let the adjudicators be accountable. However, the cause and the specific mechanism of the separation of trial and judgment are quite complicated. This thesis tries to establish a logical connection between the bureaucratization of adjudication power and the forming mechanism of the separation of trial and judgment. By analyzing the general nature and the uniqueness (the phenomenon of reinforcement and alienation) of the bureaucracy in China’s judicial system, this thesis also discusses their effects on adjudication power and its operation process, which lead to the bureaucratic evolution of adjudication power. And then a detailed formulation and in-depth demonstration will be focused on the separation of the trial and judgment caused by the bureaucratization of adjudication power, by means of relevant theory of bureaucracy and based on the Chinese judicial practice, from the perspective of three dimensions, namely organization structure, operation of power and management mode. Such formulation and demonstration will reveal the conclusion that the bureaucratization of adjudication power is the fundamental factor for determining the operation pattern of adjudication power, which provides a convincing explanatory theoretical frame for the forming mechanism of the separation of trial and judgment. Besides, this thesis will also review and reflect on the ongoing reform of adjudication power exercise mechanism, trying to point out the problems in existence and give some directional suggestions.

The problems discussed in this thesis mainly include two aspects, namely the bureaucratization of adjudication power in china and the separation of the trial and judgment caused by it accordingly. Apart from “introduction” and “epilogue”, the principal part of this thesis consists of five chapters, logically divided into part I and part II, which is current situation and consequence respectively.

“Introduction”: this part defines the theme of this thesis, which is the forming mechanism of the separation of trial and judgment caused by the bureaucratization of adjudication power, and also formulate the origin, background and significance of the research. And the literature review along with the principal research method and thesis frame, as well as the possible innovation and deficiency are also included in this part.

Part I: the bureaucratization evolution of judicial power in china. The two chapters included in this part try to discuss the process and characteristic of the bureaucratization of adjudication power in china. Part I is logically divided into three parts. The first part will analyze and conclude the general nature of the bureaucracy in China’s judicial system and the uniqueness with the phenomenon of reinforcement and alienation, which is different from the rational bureaucracy theory by Max Weber, from the perspective of the fundamental theory about bureaucracy. Based on the discussion of the judicial category theory of Mirjan R. Damaska, this part will bring the China’s judicial system into the perspective of his hierarchical ideal. In addition, the formulation of the structural elements of the judicial power operation, the specific definition and category of the separation of trial and judgment will also be included in this part. The second part will combine the structural elements of operation of adjudication power with the relevant theories of bureaucracy, to discover and discuss the five characteristics of the bureaucratization of adjudication power in China. The third part will apply the method of comparative analysis to formulate and explain the reason why the operation of adjudication power in other countries belonging to bureaucratic hierarchy judicial category does not fall into the orbit of bureaucracy and result in the separation of trial and judgment.

Part II: how do the separations of trial and judgment come into being? Part II will approximately combine the three dimensions of the bureaucracy and the relevant theories of bureaucracy to formulate the bureaucratization of adjudication power’s effect on the separation of trial and judgment and its specific mechanism. Firstly, as for the dimension of bureaucracy organization structure, the bureaucratization of adjudication power will lead to the deconstruction of the decision-making structure of equal rights of the two typical judicial organizations, namely the collegiate panel and the judicial committee, and the reconstruction of a hierarchical decision-making structure in abovementioned judicial organizations results in the separation of trial and judgment. Secondly, as for the dimension of the bureaucratic operation of power, this part will discuss the necessity and specific mechanism of the multiple separation of the trial and judgment in form and in essence from multiple perspectives, based on the model of the multi-level circulation of adjudication power built up according to the ideal category method by Max Weber. Moreover, as for the dimension of the management mode of bureaucracy, this part will focus on the effect put on by Bureaucratic management and control of adjudication power, to formulate the effect of the separation of trial and judgment and its forming mechanism which result from the incentive management, i.e. performance measurement, and the punitive management, i.e. the accountability system for misjudged cases, by means of economic analysis of law and the Game theory. 

“Epilogue”: this part will make a brief summary and reassert the research conclusion that the bureaucracy of China’s judicial system as well as its uniqueness lead to the bureaucratization evolution of adjudication power which then has become the fundamental factor influencing or determining the formation of the separation of trial and judgment. And then with the five characteristics of bureaucratization of adjudication power as reference, a comparative review of the system context and specific practice of the current judicial reform will come to the conclusion that the reinforcement instead of elimination of the bureaucracy factors in the ongoing reform will undoubtedly prevent the achievement of the goal which the CPC central committee put forward in the reform of adjudication power exercise mechanism.

Date of Award	16 Aug 2017
Original language	Chinese (Traditional)
Awarding Institution	City University of Hong Kong
Supervisor	Xin Frank HE (Supervisor)