涉外文书

中国的审判制度(英)(2)

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  3. Safeguards for Judges

  The Judge Law provides judges with the following safeguards:

  Professional safeguards: Judges shall be granted adequate powers and working conditions in order to perform their duties; they shall be free from interference in exercising their judicial powers from any administrative authorities or individual; they shall not be removed, demoted, dismissed or disciplined unless for statutory reasons and procedures.

  Salary safeguards: Judges shall receive remuneration for their performance of duties and enjoy insurance and other benefits.

  Corporal safeguard: Judges shall receive legal protection for their corporal, property and residential safety.

  Others: Judges shall have the right to resign, petition or accuse, or participate in training.

  4. Promotions

  Judges are divided into 12 levels, with the president of the Supreme People"s Court being the Chief Justice and those between Level 2 and 12 being labeled Justice, Senior Judge and Judge. The level of seniority is determined by the judge"s position, performance, professionalism and seniority. Promotions are based on annual performance reviews, which are conducted by the courts where the judges serve. Performance reviews shall be conducted in an objective, impartial manner and combine evaluations by both superiors and subordinates.

  5. Rewards and Penalties

  Judges are rewarded for their outstanding performance and contributions. Rewards can be public recognition of performance, Third Reward, Second Reward, First Reward and the conferring of an honorary title.

  Judges must not engage in any of the following acts: disseminate information harmful to the reputation of the state; participate in illegal organizations; participate in anti-government gatherings, demonstrations and protests; participate in strikes; embezzle or take bribes; practice favoritism in breach of law; extort confessions by torture; conceal or forge evidence; leak state secrets or confidential information related to judicial proceedings; abuse power to violate the lawful rights and interests of citizens, legal persons or other organizations; neglect duties resulting in wrong rulings or serious damages to the litigant(s); purposefully delay proceedings; abuse power to seek profit for themselves or others; engage in business activities; meet in private with litigants and their representatives and accept their gifts and favors.

  Judges who engage in any of the above acts will be disciplined to varying degrees. These can be warnings; a record of demerit in personal files; a record of a major demerit; demotion; removal from position; dismissal from office. A removal from position is accompanied by a lowering of salary and rank; those who have committed a crime will be prosecuted for their criminal liabilities.

  6. Other Provisions

  Judges enjoy rights of retirement, resignation, training, petition and complaint. After retirement, they shall be entitled to pension insurance and other benefits as prescribed by the state.

  Forms of Court Trials

  According to the Law on the Organization of People"s Court and other laws, trials of People"s Courts take the following forms:

  1. Sole Judge Court

  This kind of court is presided over by one judge for trying simple cases. Legally speaking, these cases include:

  First-hearing criminal cases handled upon complaint and other minor criminal cases;

  Simple civil cases and cases involving economic disputes handled by grassroots courts and their detached tribunals;

  Cases tried using special procedures, except for cases involving voters" qualification or other complicated cases, which should be tried by a collegiate panel.

  2. Collegiate Panels

  Collegiate panels consist of at least three judges or a combination of judges and People"s Assessors. First-hearing criminal and civil cases are generally tried by a collegiate panel except for those simple cases for which a sole judge is sufficient. First-hearing administrative cases, without exception, are handled by a collegiate panel; second-hearing, reexamined cases and death penalty verification cases are handled by a collegiate panel.

  A collegiate panel, as a basic form of the People"s Court, is not inflexible in its composition; rather, its members are appointed on a case-by-case basis. The president or the presiding judge designates a judge to be the chief judge. When the president of the court or the presiding judge of a tribunal themselves attend a case, they serve as the chief judge concurrently. When assessing a case, the collegiate panel should follow the principle of the minority submitting to the opinions of the majority when disagreement arises. The opinions of the minority, however, should be recorded in the court log with signatures of members of the panel.

  3. Judicial Committee

  According to the Law on the Organization of People"s Courts, courts at all levels set up a Judicial Committee, the members of which are nominated by the president for appointment by the People"s Congress at the same level. The Judicial Committee is presided over by the president of the court and its responsibilities include:

  Deliberate on major, complicated cases;

  Summarize judicial practices;

  Discuss other judicial issues.

  The Fundamentals of China"s Judicial System

  1. Open Trials

  Article 125 of the Constitution provides that open trials mean that all cases tried by courts should be conducted openly unless otherwise provided for by the law. Even cases that are not tried openly should be publicized when the verdict is passed. "Open" means the entire process should be open to public auditing and to the press. For cases that, by law, should be open to the public, the court should announce before the trial opens the outline of the case, the name of the litigant, the time and the place of the trial.

  Article 7 of the Law on the Organization of People"s Courts provides that the following three types of cases are not open to the public:

  Cases involving state secrets;

  Cases involving personal privacy;

  Cases involving crimes committed by minors.

  In addition, in accordance with provisions of civil procedure law, cases involving divorce and trade secrets may, upon request by litigants, not be open to the public.

  2. Defense System

  The Constitution and the law on the organization of courts provide that the accused is entitled to the right to a proper defense. The law on criminal procedure further provides that the courts have the obligation to ensure that the accused obtains defense, and sets forth specific procedures that any suspects or accused may, in addition to exercising the right to defend themselves, appoint one or two representatives to defend them. Those eligible to defend the accused include:

  Lawyers;

  Persons recommended by people"s organizations or the employer of the suspect or the accused;

  The custodian or relative of the suspect or the accused.

  However, those that are currently serving a sentence or those that have been deprived of, or are restricted in personal freedom should not represent the suspect or the accused.

  For public-prosecuted cases, the suspect has the right to appoint a defender starting from the day the case is transferred for prosecution; for privately prosecuted cases, the accused has the right to appoint a defender anytime. Should the accused, for economic or other reasons, be unable to appoint a defender to a court where a public prosecutor appears, the court may designate a legal-aid lawyer to defend him or her free of charge. Furthermore, when the accused is blind, deaf, mute or a minor and has not appointed a defender, or when the accused may face death penalty and does not appoint a defender, the court should designate a legal-aid lawyer to defend him or her free of charge.

  3. Second Instance Being Final

  Article 12 of the Law on the Organization of People"s Courts states that the courts have to try cases on two levels, with the second instance being the final judgment. This means a case is closed after going through two levels of trial.

  The courts practice a four-level system in which the second instance is the final judgment. Jurisdiction depends on the nature and complexity of the case. Should the litigant not agree with the judgment or ruling of the first instance, he or she may, within a specified period of time, appeal to the higher court. If the procuratorate believes that the first-instance ruling or judgment is indeed mistaken, it may, within a specified period of time, protest the ruling or judgment to the higher court. If, within the specified period of time, the litigant fails to appeal and the procurator fails to protest, then the first-instance judgment or ruling stands as the legally binding judgment or ruling. The superior court, after reviewing appealed or protested cases in accordance with second-instance procedures, passes a judgment or ruling that is the final judgment or ruling. Except for cases involving the death penalty, all other cases take legal effect immediately upon announcement.

  In accordance with legal provisions, the following cases are tried with the first instance being final:

  First-instance cases handled by the Supreme People"s Court;

  Cases heard by grassroots courts in accordance with civil procedures, such as voter qualification cases, cases determining citizens to be legally disabled or partially disabled, cases pronouncing persons missing, cases pronouncing persons dead, or cases determining property unclaimed.

  4. System of Collegiate Panels

  Article 10 of the Law on the Organization of People"s Court provides that courts shall practice a system of collegiate panels when trying cases. Except for first-instance simple civil cases and other cases otherwise provided for by the law, all cases are tried with a collegiate panel present. This system refers to a panel of at least three judges or a combination of at least three judges and People"s Assessors, as opposed to trials conducted by one judge alone. The composition of the collegiate panel should be an odd number, usually three, and the principle of the minority submitting to the majority is observed, provided that the opinions of the minority are recorded in the court log. The judges and People"s Assessors enjoy the same rights.

  5. Challenge System

  The challenge system refers to a system in which judicial officers shall or are required to withdraw from the cases because of their special relationship with these cases or litigants, which may undermine the impartiality of the judgment.

  In accordance with criminal procedures, judges, prosecutors and investigators who meet any of the following conditions shall voluntarily withdraw or be challenged by litigants or their representatives to withdraw from the cases:

  They themselves are litigants or next-of-kin of litigants;

  They themselves or their close relatives hold stakes in the case;

  They have held the positions as witness, expert witness, defender or the advocate of litigants in incidental civil actions;

  They have other types of relations with litigants to the suit that may affect the fair handling of the case.

  These restrictions apply to secretaries, translators and experts as well.

  The withdrawal of judges is decided by the president of the court; while the withdrawal of the president is decided by the Judicial Committee of the court.

  The civil procedure law and administrative procedure law have similar provisions.

  6. System for Verification of Death Penalty Cases

  This system refers to the procedures and rules that have to be observed in verifying death penalty cases.

  The Law on the Organization of People"s Courts and the Criminal Procedure Law provide that all death penalty cases, unless handled by the Supreme People"s Court, are reported to the Supreme People"s Court for verification and approval. The Supreme People"s Court, if necessary, may authorize Higher People"s Courts at the provincial level to exercise that power for death-penalty cases involving homicides, rape, robbery, explosion and other crimes that seriously threaten public security and social security. Cases involving a death penalty with a two-year probation ruled by intermediate courts are verified and approved by higher courts. Death penalty cases ruled by intermediate courts are first verified and approved by higher courts before being submitted to the Supreme People"s Court for verification and approval. Should the higher court disagree with the death penalty verdict, it may want to hear the case or refer it back for re-examination.

  7. System for Judicial Supervision

  Also known as the re-examination system, this refers to a special arrangement for the court to reexamine judgments and rulings that have already taken effect. It actually represents a remedy to the system of second instance being final.

  According to the Law on the Organization of People"s Courts and the three procedural laws on civil, criminal and administrative cases, China"s system of judicial supervision comprises the following components:

  The precondition for initiating the judicial supervision procedure is that judgments and rulings that have already taken effect have been found to contain errors in establishment of facts or application of laws.

  The judicial supervision procedure can only be initiated by presidents of courts, superior courts, superior procuratorates, the Supreme People"s Court and the Supreme People"s Procuratorate.

  The way this procedure works is that presidents of courts ask the Judicial Committee to handle the matter; the Supreme People"s Court asks or designates lower courts to reexamine the case; the Supreme People"s Procuratorate and higher procuratorates protest a case in accordance with procedures for judicial supervision.

  In reexamining a case under the judicial supervision procedure, courts form a separate Collegiate Panel. If the original case was a first-instance case, then it should be re-examined in accordance with first-instance procedures; rulings or judgments arising thereof are subject to appeal or protest. If the original case was a second-instance case, or was tried by higher courts, then second-instance procedures should be followed and rulings or judgments arising thereof shall be final.

  8. System of Judicial Assistance

  This refers to a practice whereby the judicial authorities of a country (usually courts), in accordance with international treaties or bilateral/multilateral agreements (or the principle of reciprocity in the absence of a treaty), perform the judicial procedures at the request of another country"s judicial authorities or parties to a lawsuit.

  Judicial assistance in China consists of three aspects:

  Delivery of documents and investigations in search of evidence;

  Mutual recognition and enforcement of court rulings and arbitration awards;

  Criminal judicial assistance, including delivery of documents, investigation in search of evidence and extradition of criminals.

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