Constitutional Analysis On The Reform Of Unified Management Of Personnel And Property In Courts Under Provincial Level

The people's courts are the judicial organs of the state.The jurisdiction of the State shall be exercised by the people's courts at all levels,including the local people's courts.On the Constitutional Status of the People's Court.According to the provisions of constitution,the people's courts should accept the leadership of the Party and the supervision of the People's Congress.The people's courts and administrative organs are in equal constitutional status,and the court supervise and restrict the administrative organs according to law through administrative litigation.The people's courts have the functions of human rights protection,dispute resolution,power restriction and safeguarding the unification of the legal system.On the constitutional features of the judicial power of the people's courts.The judicial power of the people's courts has the characteristics of nationalism,unity and independence.First,people's courts at all levels exercise jurisdiction on behalf of the state.Secondly,the judicial power of the people's courts is indivisible,the exercise of judicial power is holistic,and the people's courts uniformly apply the laws of the state.Thirdly,the exercise of judicial power of the people's courts is independent,and the courts and judges exercise judicial power independently.Fourthly,based on the basic characteristics of the people's Congress system,local people's courts at all levels are created by local state power organs at the same level,responsible for and supervised by them,and the president of the court shall be elected and removed by the People's Congress at the corresponding level,and other judges shall be appointed and removed by the Standing Committee of the people's Congress at the corresponding level.Therefore,local people's courts at all levels have obvious local attributes in the source of power and the responsibility of work,etc.However,no matter which level of state power organ the people's court is produced by,it represents the whole country in exercising its jurisdiction and does not represent local interests.In practice,the organization establishment of the court is mainly managed by Party committees at the same level,ect.Local Party committees at the same level carry out cadre management in accordance with the authority of management.the judges of the local people's courts at all levels in our country are appointed and removed by the people's congresses at the same level.The property and fund of the courts are mainly provided by the local governments at the same level,supplemented by the provinces and central governments.The formation and operation of the personnel and property management system of local people's courts at all levels are closely related to China's historical tradition,basic national conditions and the basic political system of the People's Congress,which embodies the nature of people's ownership and has obvious Chinese characteristics.However,with the deepening of reform and opening up,great changes have taken place in China's all aspects such as politics,economy,culture and social life.and the traditional judicial system also needs to complete the process of modernization.The judicial system of local people's courts,whose personnel and property are controlled by local Party committees and governments at the same level,has brought about many malpractices such as "justice intervened by the local government" and "administration of justice",which are obviously incompatible with the economic and social development of China's market economic system.From the constitutional point of view,the inadequate supervision of the local people's congresses and their standing committees to the administrative organs,the constraints of the personnel and property of the local people's courts at all levels by the local government organs at the same level,and the lack of constitutional awareness of some party and government organs' leaders are the important reasons for the above-mentioned drawbacks.At the Third Plenary Session of the Eighteenth Central Committee of the CPC Central Committee,"Promoting the reform of unified management of personnel and property in courts under provinces" aims to improve the management level of the personnel and property of the local people's courts,change the dependence of local people's courts under provinces on local government at the same level,to guarantee the independent trial of local people's courts under provinces in system,and to solve the problems of judicial local protectionism from the root.This reform conforms to the basic spirit of our Constitution.However,major reforms must be justified by law.The reform of unified management of personnel and property in local people's courts under provincial level is an important reform involving constitutional issues,which should be carried out in accordance with the Constitution and the principle of the rule of the law.The theoretical basis of unified management reform of courts under provinces is the conclusion that judicial power is the central power.This viewpoint is inconsistent in content,logic and jurisprudence.It does not fully conform to the basic connotation and characteristics of the central powers and the common criteria for the division between the central powers and local powers,nor does it fully conform to the basic characteristics of the system of the People's Congress of China.Through research,we can find that the allocation of power in central and local affairs generally follows the principle of “determining the nature of power by affairs and allocating power according to the nature of affairs.” Most of the affairs dealt with by the power of the People's Court are not central affairs;the judicial power of the local people's courts has obvious locality under the constitutional system;Constitutional provisions on the division of powers and powers between central and local state organs do not support the fact that judicial power is a central power.the exclusive legislation of the national people's congress on the judicial system does not necessarily indicate that the judicial power is the central administrative power;the local people's courts are not the local courts assigned by the central organ or supreme people's courts.The history of the emergence and development of judicial power does not support that judicial power is the central power;the practice of provincial management reform itself shows that judicial power has local attributes in the source of power and other aspects.Through the review of the Constitution,there are Constitutional Conflicts in the reform of provincial unified administration: the reform of unified management of personnel in courts below the provincial level does not fully comply with the provisions of the current Constitution and law,which severs the power of appointment and removal of judges by the Standing Committee of the local people's congress,the reform of provincial unified administration changes the basic constitutional framework of state power under the system of the people's congress,and weakens the supervision of the local people's Congress.At the same time,in the case of imperfect safeguard mechanism,provincial unified management reform may infringe on the supervisory relationship between the people's courts at the lower level and the higher level stipulated in the Constitution in judicial business.From the experience of court's personnel and property management system in overseas countries and regions,the Constitution and laws strictly guarantee the independence of the court and judges.The judges are generally selected and audited by relatively independent selection committees through democratic and open procedures,and then are appointed by the higher-level organs,and the court funds are generally guaranteed by the central or state finance and other high-level financial organs.Most of them are guaranteed by the central finance.In the aspect of court administration,there are three modes: court autonomy management mode,administrative organ management mode and judicial committee management mode.Court autonomy management mode is the mainstream model and development trend of court administration.However,all kinds of administrative modes share the same goal,that is,to guarantee the independence of courts and judges,and to improve judicial justice and efficiency.In the relationship between court administration and judicial work,"trial-centered" is the basic principle of court administration.The administration of court has the characteristics of dependence.It must obey and serve the judicial work,but not interfere with the judicial independence.The administration of court and judicial trial belong to different sequences and are strictly separated.There is also an important common feature in the administration of the courts,that is,the establishment of a meeting of judges to jointly decide the matters of judicial administration of courts,in order to balance the interests of courts at all levels,weaken the relationship of leadership,command and obedience between courts at higher and lower levels,and maintain the independence of the judicial business of courts at all levels.In order to make the reform of provincial management on the track of the rule of law,it is necessary to reconstructing the theory of reform : The lower level of management of human and property in courts under provincial level is not conducive to guaranteeing their judicial independence.provincial management reform is necessary and should be further promoted.The judicial power of the people's courts has the characteristics of nationalism,unity and independence.The local people's courts at all levels have obvious local attributes in the source of power and the responsibility of work,etc.The judicial power of local People's Court is not the central power.According to the constitutional characteristics of the judicial power of the people's court,from the point of guaranteeing judicial indepence,we should scientifically determine which level of state organs are responsible for the administration of people's property in the courts below the provincial level according to the actual situation of our country.Provincial management should adhere to the principle of constitutionality.It is necessary to amend the relevant provisions of the Constitution and law in time according to the specific circumstances and actual needs.The path of provincial management reform can be improved from the following aspects: Firstly,the choice of the mode of personnel property management system in the courts below the provincial level.According to the actual situation of our country and drawing lessons from the experience of overseas countries and regions,the appointment of judges of local courts below the provincial level by the provincial people's congresses and the unified management of property at the provincial level should be an important goal of judicial reform for a long time.In order to carry out the reform on the track of the rule of law,the relevant provisions of our constitution and law should be amended accordingly.When the time is ripe,we can continue to deepen the reform in the future.The long-term goal of the future reform of the people's court's personnel and property management is: the personnel and property of the provincial high people's court is under the central control,and the personnel and property of the people's court below the provincial level is under the control of the Provincial level.More long-term reform objective is: the personnel and property of provincial high people's courts are under the central control,the judges of people's courts below the provincial level are under the provincial control,and the property is under the central control.Second,the supervisory relationship between local people's congress and local people's courts under provincial control.Under the mode of "provincial appointment of judges and provincial administration of property in courts below provincial level",it is necessary to adjust and improve the supervision relationship and mode between local people's congress and local people's courts.The people's congresses at the municipal and county levels will no longer listen to the comprehensive work reports of the people's courts at the same level,nor should they adopt the supervision methods of questioning and listening to the report on duty.However,they can supervise by means of checking,inquiring,investigating specific problems,proposing representative bills,making suggestions and inspecting representatives.Provincial people's congresses will have a more comprehensive way of supervision.In order to cope with the predicament of "the provincial people's congresses are weak in supervision,insufficient in supervision ability,and difficult to implement supervision,while the municipal and county people's congresses lack effective supervision means",it is necessary to explore and establish the working mechanism of "the provincial people's congresses entrust the municipal people's congresses to listen to and examine the work reports of the people's courts at the middle and grass-roots level,the reports on duty of court leaders and court division leaders,pre-appointment review of judges.Other supervisory work of provincial people's Congresses is assisted by the Standing Committee of municipal people's congresses,and a mechanism for periodic reporting of supervisory work by municipal people's congresses to provincial people's Congresses shall be established.At the same time,the provincial people's congresses should strengthen the supervision and guarantee of the financial funds of the local people's courts at all levels.Provincial people's congresses are empowered to make financial decisions,and the budgets of local people's courts at all levels are approved by provincial people's congresses before provincial finance allocates funds to eliminate or reduce the control and interference of administrative organs in the courts.Third,the improvement of the constitutional relationship between the people's courts at higher and lower levels.As for the relationship between the people's courts at higher and lower levels,provincial supervision should be based on the principle of ensuring the supervisory relationship between the people's courts at lower levels and the independent trial of the people's courts and judges.Second,the provincial judge selection committee should work under the supervision of the provincial people's congress.The selection committee of judges should be relatively independent of the executive and judicial organs;Gradually expand the scope of the functions of the Judge Selection Committee,in addition to participation in the selction of new judges,by participating in the job promotion and rank promotion of judges.the legislation should guarantee the independence of the selection committee of judges;the review decision of the selection committee of judges should be binding;the members of the selection committee of judges should be pluralistic and professional;in terms of the mode of membership,committees composed of permanent and non-permanent members are relatively independent and can be implemented;and the selection procedure of judges should be open and democratic,provincial judges' selection committees may set up “municipal judges' selection investigation committees” composed of local legal professionals and social impartial persons in local cities to widely collect information on judges' candidates.In this way,restricts the increasingly serious administrative tendency between the higher and lower people's courts.Third,in the judicial administration of the people's courts at higher and lower levels.we should guarantee the supervision relationship and judicial independence of the people's courts at higher and lower levels.The administrative management of the court should adopt the mode of court autonomy,so as to resist the interference of external power and guarantee the overall independence of the people's courts at higher and lower levels.There should be a clear boundary between the administrative management of the people's courts at higher and lower levels and the judicial work.It is necessary to clarify the boundaries between the administrative power of the court and the judge's jurisdiction over trial cases,between the judicial management of the higher people's court and the independent exercise of the jurisdiction of the lower people's court according to law,and to standardize the judicial guidance of the higher people's court to the lower people's court.Establish a meeting of judges with representatives of judges of people's courts at all levels as the main body and participation of public figures,etc,to exercise the decision-making power of the judicial administration of the people's courts,so as to check and balance and weaken the leadership relationship between the people's courts at higher and lower levels.Through improving the above contents,the anticipated goal of the reform of unified management of personnel and property in courts under the province can be achieved in accordance with the Constitution and law.