Study On Criminal Law Regulation Of Endangering The Court Order

The act of endangering the court order exists in various degrees in all countries of the world.Foreign countries and regions generally call it“contempt of court”and have set up a corresponding disciplinary system.At present,the criminal,civil and administrative procedure laws of our country have made detailed regulations on the act of endangering the court order.However,from the aspect of criminal law,the regulations in this respect are incomplete,which makes the connection between the substantive law and the procedural law disjointed.Since the 18^thh National Congress of CPC,in order to improve the credibility of the judiciary and promote the strategy of governing the country according to law,the Communist Party of China（hereinafter referred to as“the Party”）has formulated a series of documents which call for improving laws and regulations that punish the act of preventing judicial organs from exercising their functions and powers in accordance with the law and defiance of the court authority,so as to promote the reform of criminal proceedings system centered on trial.Although the“the ninth Amendment of Criminal Law”（hereinafter referred to as the“Amendment Nine”）has made certain amendments to the law against crimes in harming the order of the court and has added new charges against some acts that seriously flout the authority of the court.However,there is still a gap between the improvement of the system that punishes the act of contempt of court authority and the promotion of trial centered reform.Therefore,it is of great value to study the criminal law regulation the order of the court.The full text amounts to more than 180,000 words.Apart from the introduction and the residual theory,it is divided into four chapters.ChapterⅠA Basic Definition of the Acts of Endangering the Order of the CourtCourt is not only a physical space for the litigant participants to settle disputes,but also a virtual space for the judicial staff to maintain fairness and justice.Court order is an order that all the personnel who take part in the trial activities or the persons related to the trial activities should abide by,including place order,personnel order,function order and the like.Its core is the functional order of fair trial,and its extension includes maintaining the order of fair trial before,during and after the court hearing.Endangering court order refers to all kinds of acts that impeding the trial activities and flout the court authority,which are mainly manifested in the acts of violence,insult,defamation,violation of the court order,illegal interference in the judiciary and so on.In time,it may happen in the stage of property preservation,assistance investigation and evidence collection before court hearing,as well as in court investigation,court debate,and final statement stage of court hearing.It may also take place at the effective stage of judgment after the court hearing;in space,it may occur within the court,or may occur outside of the court related to trial activities;in the category of litigation,it may occur in criminal proceedings,civil proceedings or administrative proceedings.Its similarities are to damage the fair trial right of the litigants and damage the authority of the court.ChapterⅡAn Investigation into the Regulation of Acts of Endangering the Order of the Court by Foreign Criminal LawThe regulations of Anglo-American Law System on the act of endangering the court order are earlier than that of Civil Law System.In 1631,Britain made its first case in contempt of court.In 1789,the United States,on the basis of the British contempt of court system,promulgated the Judicial Act,which stipulates that the court is able to impose imprisonment or fines on all words and deeds that hinder or insult the judiciary.In 1791,the United States Constitution stipulated for freedom of the press and speech.Since then,the legitimacy of contempt of court has been called into question in the United States.In 1831,the United States Congress promulgated the Act of Declaration of the Law Concerning Contempt of Court,which limits the scope and object of contempt of court and regulates that the federal judges are required to summarily punish the misconduct occurring in court and“near”or“similar”misconduct,but contempt of court proceeded by prosecutors can still be punished.And the stipulation does not apply to state courts.In 1981,the United Kingdom enacted the contempt of Court Act which stipulates that an unfair comment on an ongoing judicial process constitutes contempt of court.Meanwhile,the innocent behavior that has paid the duty of care,fair and accurate factual reports,and goodwill incidental comments can be used as a defense.The Civil Law System takes two paradigms for the regulation of crimes against the order of court.One is to take serious harm to court order as a crime against state power and detrimental to public affairs,which is represented by Germany,Ukraine and other countries.The other is to specially set up the crime of disrespecting the judiciary,impeding the judicial activities,despising the trial and other similar crimes.France,Italy,Russia,South Korea and other countries adopt this model.Although different countries have different ways of setting charges or punishing behaviors against the act that seriously endangers the court order,their purposes are to maintain the court order,to ensure the fair trial right of the parties and to establish the legal authority.Through a comparative study,the following revelations can be obtained:firstly,in order to balance the value conflict between judicial justice and freedom of speech,the penalty is used to punish the serious harm to the order of the court;the second one is to adopt the obvious and immediate dangerous principle to the crime of endangering the order of the court,and to require the act that causes urgent and real damage or obstruction to the litigation procedure or judicial decision,and reaches a serious degree;thirdly,the penalty for the crime of endangering the order of the court is mainly the fine,the short term free punishment or the compulsory labor.ChapterⅢThe Evolution and Analysis of Criminal Law Regulation of Endangering the Court OrderIn 1979,in the spirit of“being coarse rather than fine”,the Criminal Law set up the crimes of refusing to execute the legally effective judgments and orders.According to the analogy principle,the other acts seriously endangering the order of the court shall be punished as the crime of impairing public affairs or disturbing the public order.In 1997,the Criminal Law abolished the analogy principle and added the crime of disturbing the court order apart from retaining the crime of refusing to enforce judgments and orders.Since then,in order to solve the problems in judicial practice,the legislature has adopted ten amendments to the criminal law by means of expanding charges and adding new crime names.Among them,the“Amendment Nine”numerates the crime of disrupting the court order as part of the expansion,absorbing the participants in the proceedings as the protected objects,adding the unit crime and especially serious circumstances for the crime of refusing to execute judgments or orders,and adding the crime of disclosing the case information that should not be disclosed and the crime of disclosing and reporting the case information that should not be disclosed.However,the amendment of the criminal law has not unified the serious harm to the court order,such as serious violation of the court order,unlawful interference in the judiciary and so on,and has yet to be perfected in the system of charges and the establishment of individual crimes.With the development of human society,crime will continue to evolve and the criminal law is also in the dynamic development.Judging from the legislative track of the Criminal Law in 1997 and the ten amendments to the criminal law,the criminal law is constantly changing from“severe but not strict”to“strict but not severe”by expanding old crimes,adding the means of crime and the target of crime,or abolishing the old crime and adding the ways of crime,so as to improve the crime system continuously.Meanwhile,the penalty is also moving towards a gentle and slow process,from life penalty,body punishment to freedom penalty,property penalty.Tight legal net but mild punishment is the development direction of criminal law in the future.In the course of studying the criminal law regulation of endangering the order of the court,we should abandon the concept of heavy punishment and authoritarianism,and set up the idea of modesty,human rights and trail centralism and carry out the view of punishment with appropriate degree.Criminal law may be used only if it is really necessary.Moreover,the scope of criminal law should be limited and the intensity of punishment should be reduced,thus maintaining the balance between crime controls and the safeguard of the parties’fair trial rights.ChapterⅣThe Perfection of the Criminal Law in Our Country on the Regulation of Seriously Endangering the Order of the CourtUnder the dual punishment structure of law breaking and crime,criminal law is the last resort.There are two levels in the regulation of acts endangering the order of court in our country.The first level is to impose sanctions on judicial measures stipulated by three procedure laws for the acts that generally endangering the order of the court,such as admonitions,fines,detention,and etc.The second level is to punish the act that seriously endangering the court order by exerting property penalty,liberty penalty and so on.For general acts of endangering the court order,judicial measures can be taken instead of using penalty.For serious harm to the court order,judicial measures are not enough to achieve the purpose of punishment and prevention.At that time,the necessary penalty measures are irreplaceable.In order to protect the judicial order,the present criminal law specially establishes the crime of“obstruction of justice”and the crime of“disturbing the order of the court”,but this is only a relatively reasonable and expedient measure because the crime of obstruction of justice includes contempt of court authority crime,obstruction of supervision order crime,evidence crime and stolen goods crime,a total of four aspects of 20 charges.Such classifications are a little general.In order to protect the court order,the Amendment Nine has expanded the crime of disturbing the order of court,but the crime can only regulate the serious harm to the order of the court that occurs in the court and the conduct with an equal nature cannot be included.For the other serious violations of court orders,and the acts of illegal interference in the judiciary that affect judicial justice cannot be applied to regulate the crime that disturbing the order of court and cannot be applied to the crime of obstruction of official duties,insults,libels and other charges of effective placement,forming a loophole in criminal law regulation,and the stipulations of procedure law are also out of touch with each other.Therefore,the criminal law in our country should continue to be perfected on the basis of the Amendment Nine.One is to revise the crime of disturbing the order of the court to the crime of contempt of court.The other is to separate the crime of contempt of court authority from the crime of obstruction of justice and set up a separate section so that the criminal law can protect the court order more reasonably and strictly.First of all,the serious violation of court order should be brought into the scope of contempt of court.The breach of court order means that the person who has the obligation of litigation can fulfill the court order and refuse to do so,which is the source of damage to the judicial authority.The public’s faith in the law should begin with compliance with court orders,which must be an insurmountable baseline.In this crime,“serious circumstance”refers to substantial risks that have a significant impact on judicial decisions or proceedings.This danger is not an accidental one,but a real and urgent one that can be identified by the rules of thumb.The first one is that the criminal witnesses who influence conviction and sentencing refuse to testify in court.In the course of criminal proceedings,the testimony of a witness must be cross-examined and verified by both the prosecution and the defendant in court before it can be used as the basis for the determination of the case.When the defender,the prosecutor or the party disagrees with the witness’s testimony which affects the conviction and sentencing,the witness has the necessity to testify in court.If the witness refuses to testify without justifiable reasons,without security and financial security,or after being summoned legally,he or she escapes,or refuses to testify after his or her appearance in court by using violence against a warrant.It is not conducive to judging the truth of the verbal evidence,nor to the defendant exercising the right of cross-examination,which often leads to the fact that the crime is difficult to find out,or even indulges or wrongs the defendant.The second one is the serious act that obligatorily assisting the judicial authorities to investigate the evidence but refusing to do so.Although our civil procedure law and administrative procedure law stipulate that the court has the right to take judicial measures against those who are obliged to assist in the investigation and take evidence if they obstruct the investigation,delay or refuse the investigation without any reasons.However,the responsibility in the procedural law cannot replace the responsibility in the substantive law,and the judicial measures in the procedural law can only be directed against the general harm to the order of the court.Therefore,it is necessary to bring the serious circumstances into the scope of the adjustment of contempt of court,so that the substantive law and the procedural law are unified and coordinated,and the court order can be protected more comprehensively.In the next place,the acts of illegally intervening in the judiciary and affecting judicial justice are brought into the scope of contempt of court.From the perspective of judicial centralism,the core of justice is the fair exercise of judicial power.Justice is the last line of defense to safeguard justice.It must return to the law,must eliminate interference,and must not be overstepped.One is to bring the state functionaries’acts of intervention in the judiciary and affecting judicial justice into the scope of the crime of contempt of court.Some state officials are accustomed to giving orders to the judiciary to intervene in cases that have not yet been adjudicated,resulting in judicial injustices.Since the 18^thCPC National Congress,our country has issued a series of documents,repeatedly prohibited leading cadres from interfering with the judiciary.However,as far as the"level of effectiveness"is concerned,the will of the ruling party should be raised to a legal norm,and the acts that the state functionaries interfering in the judiciary and affecting judicial justice,especially the leading cadres interfering in the judiciary and hindering the judicial organs from exercising their functions and powers in accordance with the law,should be criminalized.We should not indulge individual state functionaries to substitute the law with power,press the law with power,break the law for interests,and bend the law for personal gain.Otherwise,they will corrupt the image of state organs and erode the foundation stone of governing the country according to law.The other is to bring the judicial intervention of media which infringes the parties’right to a fair trial into the scope of contempt of court.The objective reporting of judicial cases by the media is conducive to satisfying the public’s right to learn the truth and will not affect the court order.However,due to the profitability and marketability of the media itself,it may be mixed with subjective assumptions in the report of judicial cases.Once the media reports deviate from the objective authenticity,the publication of conclusion reports or non-factual reports on the pending cases that have entered the judicial process will have a serious impact on judicial justice.This will not only violate the personal rights of citizens,but also damage the court order.In this regard,whether from the standpoint of protecting the defendant from the‘court trial’rather than‘public opinion trial’,or from the point of view of protecting the victim from the‘secondary injury’of public opinion,or from the maintenance of the value of the proper legal procedure,those acts should be taken as the crime of contempt of court.The last one is to especially establish contempt of court authority crime.The crime of contempt of court authority is set up as a special section in the sixth chapter of the Criminal Law,which includes the crime of disclosing the case information which should not be made in public,the crime of disclosure and the crime of reporting the case information which should not be made in public,the crime of contempt of court,and the crime of refusing to execute the sentence and conviction,a total of four charges.Although the revision of the criminal law section will have a great adjustment,it is conducive to make the types of criminal law more reasonable,to systematically regulate the behavior of contempt of court authority and to provide strict substantive law protection for the promotion of the trial-centered litigation system reform.In summary,The court is the place where the judicial authority exercise judicial power on behalf of the state.It assumes the sacred duty of settling disputes.In the period of social transformation,Litigation disputes are frequent.It is not only necessary to carry out prospective research on the theory of criminal law,to make a reasonable connection between criminal liability with administrative.So as to maximize the protection of the right of the parties,and safeguard social fairness and justice fundamentally.