A Study Of The Judicial Pre-remedy System And The Judicial Post-remedy System

Justice, as a notion and a value, has always been pursued by human beings. Judicial justice, which includes procedural justice and substantive justice, is an important part of social justice. It is the inevitable demand of the realization of the constitutional state, the cornerstone of the protection of peoples’ legal rights and interests, and the most a critical means of the guarantee of social stability. However, in the judicial practice, due to the characteristics of being procedural, responsiveness, passiveness, legality and the need for cost, the current judicial remedy system sometimes ends up with the failure of violated people launching the procedure of judicial remedy, of the judicial efficiency meeting the need of the parties, of the judicial procedure including criminal victims, also the difficulty of execution, seriously limiting the efficacy of judicial remedy system and the realization of judicial justice as well as social justice.Having the concern of the above, this dissertation creatively and constructively suggests the construction of a judicial pre-remedy system (JPRS) and a judicial post-remedy system (JPOS) supplementary to and basing on the current judicial remedy system, with the aims of making up to the deficiencies of the current system and guaranteeing the realization of social justice and judicial justice at the same time.The JPRS is a legal system in which a specific subject who represents the state provides advance remedy to the victims who meet certain criteria. This system has the characteristics or features of contingency, simplicity, timeliness, purposiveness, temporariness, inexhaustiveness, and advancedness. The author discusses the theoretical basis on which the JPRS shall be constructed and the necessity and feasibility of it from the aspects of the nature, aim, value and notion of jurisdiction. Firstly, the author discussed the positioning of the value goal of the JPRS, which is being a system that can help the victims to start the judicial remedy procedures without obstacles or delay, ensure the realization of the rights of the parties during the judicial proceeding, remedy the party whose legal interests has been violated, ensure that every victim can start the judicial remedy procedures equally. Following is the discussion of the construction of JPRS:first, deciding the subject of responsibility and the enforcement body; second, positioning the object of JPRS; third, illustrating the conditions of enforcement; forth, combining the features and demands of the JPRS, explaining the substantive and procedural conditions of a citizen to achieve the remedy; fifth, illustrating the details of the JPSR, including four concrete legal systems which are, the remission and postponement of costs of the action, the providing of legal aid being a complete invention and need to fit in a series of legal conditions, advance payment of the compensation, and advance execution, among which the system of advance payment is completely a creation by the author which needs to meet a series of legal conditions, and the other three systems are based on the current systems which are amended, integrated and then absorbed into the judicial remedy system as parts of it. To construct the process of the running of the JPSR, the author addresses the principles, the procedure of application, the procedure of investigation and decision, the procedure of reconsideration and the procedure of execution.The judicial post-remedy system (JPOS) is a remedy system in which the victims are provided with state compensation after the judicial remedy procedure with the condition that the victims still do not get the legal compensation to their violated legal rights and interests. The author illustrates the reasons of building a JPOS form the aspect of necessity and feasibility. Three value goals of the JPOS are provided: protecting the authority of judicial decisions, protecting the rights of the victims, and realizing judicial justice. The purpose of judicial post-remedy is to remedy the rights of the victims who can not get due compensation from the judicial procedure, ensuring a tangible realization of judicial justice and its organic unity with social justice. The author reviewed and compares the compensation systems for victims in four countries including Germany, the United States, Japan and New Zealand, and discusses the similarities and differences of them, seeking to find the experiences and models to use for reference in constructing a JPOS with the content of state compensation for victims in our country. The construction of the JPOS includes: first, establishing the state’s responsibility for the compensation for the victims as well as a special organization to execute it; second, positioning the object and the scope of application of the JPOS from the aspects of the range of time and categories of the cases; third, internal conditions of the enforcement of the JPOS; forth, criteria that the application of the victims should meet; fifth, defining specific contents of the JOPS, which includes the grounding, object, amount, principle and subsequent legal effects of the compensation; sixth, setting of the procedures of the JPOS, including the phases of application, verification, investigation, decision, reconsideration and execution. The establishment of the JPOS, from a legal perspective, can have its contribution to the resuming and enforcing of the authority of law. From a point of view of the social significance, the JPOS also embodies the inherent needs of the human-oriented harmonious society, ensuring the realization of substantive justice and protecting the stability of the society.It has major legal significances to establish a JPRS and a JPOS and form a unified judicial remedy system:the first is its contribution to peoples’ equality in exercising their rights to judicial remedy; the second is helping people gain remedy timely after the violation of their legal rights; the third is promoting the realization of the two contents of judicial justice and their unification; the forth is contributing to the maintenance of a good legal order; the fifth is promoting the scientificness of the judicial remedy system. A unified judicial remedy system also has profound significances form the social aspect:first, it helps to protect the interests of the disadvantaged groups of society; second, it helps to strengthen the legal belief of the people; third, it promotes the building of a service-oriented government; forth, it contributes to the realization of the unification of judicial justice and social justice; fifth, it contributes to the constructing of a harmonious socialist society featuring fairness and justice. The author suggests that the spirit of the JPRS and the JPOS shall be integrated into to existing laws and regulations, forming a unified judicial remedy system, maintaining the consistency and internal coordination of the legal system.