Xu, Yaliang (2009) Judicial independence in the People's Republic of China: an analysis of the historical and current role of Chinese judges. Doctoral thesis, University of West London.
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The aim of this research is to examine the criminal justice system in the People's Republic of China (PRC) to illustrate the role of judges, and to describe the current scale of judicial independence within the realm of Chinese legal culture and the current political system. The importance of this research is to collect evidence which defines the nature of policy debate on China's judicial reform project to promote greater independence.
The thesis begins with an overview of the current Chinese judicial system. Chapter One takes account of the considerable problems of the judiciary and the debate over reform which is addressed in existing literature, including the most recent policy guidelines of judicial reform announced in late 2007. According to the policy, it is clear that judicial reform is ongoing; what the Chinese Communist government requires is a mature, realistic and overarching reform program that promotes justice, ensures rule of law, and serves to engender political and social stability in China. Put simply, judicial reform towards greater independence must be compatible with the characteristics of Chinese society. Based upon such a background, the research questions and methodology are introduced in Chapter Two. This thesis focuses on two research questions:
Question One - How can 'Chinese characteristics' be understood in relation to judicial reform?
Question Two - What are the current factors that have limited judicial independence?
Three methods were employed to obtain data relevant to my research. Firstly, I employed content analysis of secondary data, whereby I reviewed Chinese constitutional and criminal legal codes, and literature on Chinese judicial culture, independence and reform. Secondly, I generated primary empirical data, and employed a structured interview with 60 judges in order to understand judges’ feelings regarding judicial independence. Thirdly, I undertook participant observation, in which I acted as a lawyer's assistant involved in a criminal case, in which a suspect had pleaded not guilty. During this period, I conducted unstructured interviews with five lawyers and one county-level Chief-Prosecutor.
Chapter Three aims to answer the first research question by illustrating ‘Chinese characteristics' relevant to judicial reform. On considering Chinese characteristics, according to the most recent CPC guideline policy, judicial reform invokes relationships with legal culture, contemporary political and economic circumstances. Therefore, an analysis of relevant literature is made in order to understand Confucian legal traditions, Marxist and Maoist legal ideology, current political principles and economic conditions. At the end of this chapter, a brief of analysis of the significant relationship between rule of law and economic growth is made in order to explain why China needs greater judicial independence.
Chapter Four, Five, Six and Seven form the core of the dissertation, and answer the second research question, intended to provide an overview of the extent of existing judicial independence in China, and highlight the major factors that could influence judges' decisions. I have analysed judges' responses regarding the current constitutional and institutional design, and on the recommendation of some judges, selected some additional evidence to highlight influences over the judiciary from other government bodies. In Chapter Four, findings from the interviews with judges concerning their occupational environment are analysed, to give a picture of the judge's position in China today. Chapter Five explores the Congress' lawful power of supervising judicial decisions on individual cases. This presents one of the core Socialist constitutional configurations, whereby all state organs are answerable to the Congress. Following this, findings are given from the participant observation of a criminal trial in which a suspect pleaded not guilty. These findings are analysed in Chapter Six in order to provide a detailed examination of the links between the executive and the judicial branches. Chapter Seven analyses the relationship between the Communist Party and judges, which is the most sensitive, yet unavoidable topic regarding judicial reform in China.
Chapter Eight brings the findings of the two research questions together to engage in a comprehensive debate of policy and draft possible judicial reform suggestions which may promote judicial independence within the parameters of established 'Chinese Characteristics'.
|Item Type:||Thesis (Doctoral)|
|Uncontrolled Keywords:||China, law, criminal justice system, judicial reform, judicial independence|
|Subjects:||Law and criminal justice > Criminal justice
Law and criminal justice > Law
|Depositing User:||Rod Pow|
|Date Deposited:||19 Jan 2015 10:47|
|Last Modified:||31 Mar 2017 10:50|
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