[abstract] how do people choose their “rulers”? Do people enjoy full freedom of expression? In what way do people protect this freedom? These are the three criteria to measure the shape of a society. Obviously, the “only GDP” theory is difficult to explain this problem, and the members of this society, mainly in what way to live, should be the most important factor. Democracy, freedom of the press and judicial independence are the three cornerstones of modern society. Take it as a standard to judge what kind of social state China is in, and the answer will be clear.
On May 16, 2016, the theoretical channel of the people’s Daily published a keynote speech by Professor Yan Jirong, executive vice dean of the School of Government Management of Peking University and vice president of the Beijing Society of political Science and Administration, on “the Unity of National Governance in China”.
How to define “modern state”? Professor Yan Jirong said, “it has something to do with the legitimacy of the construction of domestic public order based on modern industrial civilization.” Its’ modernity’is closely related to the form of civilization (industrial civilization) in the specific historical stage mentioned above, and it has different characteristics from ‘pre-modern’ countries in social, economic, political, cultural and other fields, among which, the main difference lies in the differences in national organization and governance. “
Professor Yan Jirong further pointed out that the construction of a modern state is actually a process of transforming the concept of republicanism from ideal to reality. This idea is that “the world is shared by the people”: we all form a country together, regard the “country” as a “home”, and share blessings and difficulties. Therefore, all citizens should share not only the responsibility and suffering of the country, but also the interests and prosperity of the country. If this idea is to be transformed into reality, it needs to be guaranteed by system. What kind of system? The democratic system, the responsibility system, the decentralization system, the rule of law system, the basic rights and obligations system of citizens, the state structure system (central-local relationship system) and so on. Therefore, the modernization of national governance is actually to realize the realistic transformation of the above-mentioned ideas: to make the people become the masters of the country, not only to share the worries and difficulties for the country (distribute responsibilities), but also to share the national interests (distribute interests) equally.
The author agrees with Professor Yan Jirong’s definition of “modern state”.
Professor Yan Jirong also explained that the reason why he put forward the proposition of “the unity of China’s national governance” is based on two considerations: first, it is based on the consideration of China’s national development goals. Realize modernization and become a modern country in 2049. Second, based on the consideration of modern state construction. Unity is the goodness of the country, and promoting the unity of the country is an important task in the construction of a modern country.
Professor Yan Jirong also laid out a timetable for China’s modernization, that is, “realizing modernization in 2049”. As to whether this goal can be achieved as scheduled, this is the main content of this article.
What conditions do democratic countries need to have?
In fact, the timetable set out by Professor Yan Jirong for China’s modernization proves on the contrary that China has not yet entered the threshold of modernization.
Mr. Xu Liyun believes that a democratic state symbolizes the establishment of a political community with shared sovereignty by its citizens by means of a constitution or a similar mechanism. This community is a generation of citizens who use the law to protect their own rights and interests, and also regularly supervise the government entrusted to exercise their power with their own will. Generations of citizens have gone through the same contract mechanism, constantly revising the power structure and function of this community.?. In theory, any community built by contract can change its connotation and denotation through participants, that is, voters (“the Dilemma of Modern Western mainstream Civilization”, Institute of philosophy, Sichuan University, June 12, 2014).
Mr. Min Liangchen even believes that Mr. Robert Dahl, a tenured professor at Yale University in the United States who died at the age of 98 in early February 2014, has spared no effort in studying and advocating democracy. It should be the authoritative in the study of democracy.<1>
When Robert Dahl died, a mainland author named Han Shizhou published an article in memory of Robert Dahl, “who is Robert Dahl?” on the WeChat space called “House of Cards”, followed by a list of Robert Dahl’s works. We can see from the list that the vast majority of works are about democracy, which is really called a lifelong study of democracy and the promotion of democracy.
Robert Dahl’s books on democratic politics are as follows:
2006-on political Equality.
2003-the Literature of Democracy (anthology: Robert Doyle, Ian Shapiro, Jose Antonio).
2002-Democratic criticism of the Constitution of the United States.
1997-“towards Democracy-Journey: reflection, 1940-1997”
1989-Democracy and its criticism.
1985-“Control of Nuclear weapons: democracy and Guardianship”
1985-Preface to Economic Democracy.
1983-the Dilemma of pluralistic Democracy: autonomy and Control.
1971-pluralistic Politics: participation and opposition.
1968-“pluralistic Democracy in the United States: conflict and consent”
1966-“political antagonism in Western democracies”
1963-“Contemporary political Analysis”
1961-“who rules?: democracy and Power in American cities”
1957-“decision-making in Democracy: the Supreme Court as a National decision maker”
1956-Preface to Democratic Theory
In addition, we know from Han Shizhou’s article: “Dahl devoted all his life to the study of democratic issues. at the age of 25, he obtained a post-doctorate in political science from Yale University. He has his own words and has become a recognized ‘master of democratic theory’ in global political circles.” In addition, in 1985, the American Foreign Affairs magazine called him a “master of American politics.” Professor Ian Shapiro, a political scientist at Yale University in the United States, said, “if there is a Nobel Prize in the field of political science, it should be awarded to him for the first time.” With the above works and his reputation, he has every reason to think that Robert Dahl is an authority on human democracy.
Let’s take a look at how Robert Dahl defines a democratic state in his article on Democracy.
This book on Democracy consists of four parts, 15 chapters and several appendices. From what he said in Appendix 3, if you want to know where his country is in the sequence from ‘democracy’ to ‘despotism’, it will be clearer if you look at what he said in Chapter 8.
Chapter 8, which belongs to the third part, happens to talk about “the democratic system needed by large democratic countries”, which is more in line with the comparison with China. What we usually call a political system is in fact a kind of “political arrangement”, and only when political arrangement becomes a “political practice”, that is, to make it “more of a habit”, can this political arrangement be “more lasting” and thus become a veritable social and political system of a country.
In Robert Dahl’s view, what we usually call ‘institutions’ are all rooted after a long period of hard work and passed on from generation to generation. When a country changes from an undemocratic government to a democratic government, the initial political ‘arrangement’ gradually becomes a ‘convention’, and in due course, it becomes a fixed ‘system’. ” After reading these, we understand why democracy is not an abstract term, it must become the living habit of government officials, including all citizens, otherwise, even if it is not a democratic society, it cannot be called a democratic country.
Of course, this kind of situation is far from being seen in China at the moment, because we have never seen the kind of democratic “political arrangement” that Robert Dahl called it in China.
So what political systems are needed for “large-scale democracy”? Robert Dahl believes that the political systems needed for large-scale democracy are:
1. An elected official.
2. Free, fair and regular elections.
3. Freedom of expression.
4. Multiple sources of information.
5. The autonomy of the community.
6. Inclusive citizenship.
Robert Dahl sees that whether a country’s government can be called democracy needs to be widely recognized, that is, some “national governments, not only their own people think that they are democratic governments, but there are also many people in other countries. Scholars, journalists and so on all think that it is a democratic government. In other words, these countries are regarded as democratic countries in daily language and in academic discussions. “
Robert Dahl also said in the ninth chapter of the book: “No matter how beautifully said by a country’s leaders and propagandists, only when it has all the political systems necessary for democracy can the country be called a democracy.”
By comparison, is there a Chinese elephant? Is there any in China? Not to mention how many people on Chinese mainland think that we are a democratic country, the United States, which is recognized as the most democratic country in the world, and the European Union, which has adopted a democratic system, do they recognize China as a democratic country?
Let’s see from Robert Dahl’s book on Democracy whether the United States is a democratic country and whether the United States is qualified to “talk about democracy in the international arena.”
The United States is a new country with a history of no more than 200 years since the founding of the people’s Republic of China. Even when the country was a British colony, it already had democracy. And it can further prove that the United States is the most democratic country in the world, that is, the first mass election party in the world is in the United States– even in China (including many countries, of course) more than 200 years later, we are still unimaginable.
In order to prove American democracy and prove that the United States is a true democratic country, Robert Dahl quoted the important work on American Democracy written by French historian and political thinker Tocqueville.
As mentioned above, Robert Dahl listed six political system conditions necessary to become a democratic country, and when Tocqueville came to the United States, he saw that five of them had been implemented in the United States, when “he saw that these systems were so deep-rooted. Deeply rooted in the hearts of the people, he did not hesitate to call the United States a democracy. He said that in this country, the people are the sovereign, ‘society manages itself’, and the majority of power is not restricted in any way. He saw that Americans seemed to organize societies for any purpose, and he was dumbfounded by the number of societies. The two main political parties are on the pinnacle of these societies, and in Tocqueville’s view, there is no more thorough democracy one can imagine. “
So what is the situation in China?
In less than 700 words at the beginning of his book on Democracy, Robert Dahl mentioned that China “in its glorious 4,000 years of history”, “there has never been a democratic government.”
If China wants to become a democratic country, the “six political and institutional conditions” listed by Robert Dahl should also become a universal standard. But how far is China from such a standard?
Why has freedom of the press become a “sensitive word”?
In a country where the Constitution provides for “freedom of the press”, in recent years, this constitutional right has become a “sensitive word” and has been repeatedly deleted.
Mr. Wu Si is one of the most famous thinkers in the mainland academic circles. As the editor-in-chief of Yan Huang Chunqiu magazine, he has deep feelings about the control of public opinion. In his view, freedom of speech in China can actually be divided into at least five levels.
The first layer is the beautiful picture conferred by the Constitution of the people’s Republic of China, in which Article 35 stipulates that “citizens of the people’s Republic of China shall have freedom of speech, publication, assembly, association, procession and demonstration.” This clause, known as the “six freedoms”, does not have any restrictions and looks beautiful. If you compare the area of the house, it can be compared to 100 square meters.
China’s Press Law still cannot be promulgated after many twists and turns, so administrative regulations fill the vacancy on the second floor. On the one hand, it directly stipulates who can enter the publishing industry and who has the publishing right. On the other hand, administrative regulations also stipulate what you can say. In the second floor, apart from talking about romance, we can talk about 70 to 80 square meters. If we want to talk about state affairs, the actual space for speech may be reduced from 100 square meters to 10 square meters in the Constitution.
The third tier of freedom of speech is the “executive order”. Mr. Wu explained that it stipulates what can be said and what cannot be said. In this case, the freedom of speech we enjoy is not as miserable as the 10 square meters stipulated in the second layer of administrative regulations, which can be about 20 square meters.
On the fourth floor, some magazines and newspapers are relatively “fierce”; others are not managed by a certain department in a certain administrative system, and their access status is relatively vague, has the nature of a company, and the management is not so smooth; in addition, some magazines may still be hard in the background, and the front desk is also relatively hard. If it is relatively hard before and after, it is possible to prop up the speech space from 20 square meters to 30 square meters, or even 50 square meters. This is the space we may enjoy when faced with a less well-behaved editor-in-chief.
On the fifth level, tens of millions of people post Weibo, which is beyond control, and there is no access system. This is a big space, so there is a fifth layer of freedom, which is a little more relaxed than the previous four layers. On the basis of the 30 to 50 square meters of the editor-in-chief of the “fierce” magazine mentioned just now, it may be able to reach 60 to 70 square meters.
Therefore, in Mr. Wu Si’s view, the structure of speech space in China is relatively complex, and freedom of speech is neither “all” nor “nothing”, but contains at least these five levels. Freedom of speech has shrunk from 100 square meters to 10 square meters, and then expanded to 60 or 70 square meters, not from written regulations or official gifts, but from the struggle between media people and ordinary citizens.<2>
Mr. Sun Xupei, a former director of the Institute of Journalism and Communication of the Chinese Academy of Social Sciences and now a professor at the School of Journalism and Communication of Hebei University, is known as “the most outspoken journalism scholar in China” because of his academic interests in press freedom, press legislation and news reform. For more than 30 years, the question he pondered most was: “China had private newspapers and freedom of publication from the late Qing Dynasty to the Republic of China. Why did the history suddenly stop in 1949?” If China embarks on the road of freedom of the press again, how can we solve a series of problems in reality that do not adapt, do not match, or even do not allow it? “
Sun Xupei believes that China is a country that is not in line with universal values, which also makes China a bit weird. All countries in the world take the Constitution as the highest standard, and the presidents of many countries take the oath of office with their hands on the Constitution, but in China, it is still a risk for anyone to propose constitutional administration and constitutionalism according to the socialist constitution; the Constitution stipulates that there is freedom of speech and the press, but the media all think that the word is too sensitive and try their best to avoid it. It can be seen that if it is not in line with universal values, it is not in line with the Constitution.<3>
Sun Xupei also bluntly pointed out that Mao Zedong’s theories and practices in the field of journalism came from the Comintern, but not from Marx and Engels.
The main part of Marxist journalistic thought is the thought of freedom of the press and the thought of the people’s press. Even the press of the proletarian party pays attention to formal independence and can be discussed and criticized in the party’s program and strategy. The second International inherits the journalistic thought of Marxism. However, when it came to the Comintern, Lenin formulated “iron discipline” against the Communist Party of various countries, which existed as a branch of the Comintern, and the party’s newspapers and periodicals could not conduct any discussions and arguments that went against the spirit of the Central Committee. After taking power, freedom of the press was also banned in society. This set of theories and practices of the Comintern are interpreted as proletarian journalism in China, which is more systematic and institutionalized after the demonstration of Mao Zedong’s journalistic thought.
Nowadays, when we talk about the education of Marxist concept of journalism, we talk about the Comintern, that is, we do not talk about the journalistic thoughts of Marx and Engels. In the era of reform and opening up, this news system has become a tundra in China’s reform, with almost no sign of thawing.<4>
The third International, the Comintern, founded by Lenin, advocated violent revolution, carried out the dictatorship of the proletariat and practiced the so-called “democratic centralism”. It stipulates that “the Communists of all countries that join the world are its branches, and the International Executive Committee has the power to decide their lines and policies, to give orders to them, and even to reorganize and dissolve their leading bodies until the whole organization is reorganized and disbanded.” he also proposed that “ironclad discipline such as military discipline should be applied in party organizations at all levels”.
Lenin strongly praised and advocated the freedom of the press before the October Revolution, but after the October Revolution, he opposed yesterday’s self with his present self and lashed out at the freedom of the press many times. A scholar made rough statistics on Lenin’s critical attribute on freedom of the press in the West. there are more than a dozen kinds of people, such as false, extremely hypocritical, capital enslaved to newspapers and periodicals, capitalists, the rich, suppressing public opinion, bribing newspapers and periodicals, poisoning people, drugging people, and so on.
History has proved that the highly centralized journalistic concept and model of the third International are not in line with the development direction of the history of human civilization, and have been basically subverted after more than 70 years of trial and error, but the third International and Stalin have sent a centralized model to China.
Mao Zedong and Lenin have similar attitudes and practices towards freedom of the press. After the founding of New China, he was a different person than before.
Before they came to power, the two leaders of the proletarian revolution were in line with universal values and strongly praised freedom and democracy, including freedom of the press. After taking power, they only wanted to engage in dictatorship, so they strongly criticized the freedom of the press.
Freedom is always the freedom of those who think differently.
What we need is civil liberties, not class freedoms. The proletariat’s claim of freedom of the press is unconstitutional. “Class Theory” uses the freedom of speech and the press, which is an area of right that everyone should have, which is both absurd and inoperable.
It is this kind of journalistic thought and policy that violates both the Constitution and Marxism, which leads to the news media constantly adding fuel to despotism and wrong line in the decades after the founding of the people’s Republic of China, causing great disasters to the country and the people. It has also led to the fact that since the reform and opening up, while we have made great economic achievements, in the face of increasing corruption, widening disparity between the rich and the poor, and serious environmental pollution, it is difficult for the news media with very low degree of freedom to make a difference. It makes the great cause of reform and development face new difficulties.<5>
After combing the development of the news theory of the Communist Party of China, Chen Hui pointed out that from 1941 to 1942, the rectification movement of Yan’an Liberation Daily became the historical source of the party news theory.
As far as the party-oriented journalistic theory itself is concerned, its theoretical construction has two starting points: first, to further improve the control and domestication of the party and government power over newspapers and journalists, so as to make it more instrumental. Second, through the introduction of materialistic philosophy to demonstrate the rationality and legitimacy of the news system of the new regime and its news regulation, the purpose is not to guide practice.
Chen Hui pointed out that the official, as the main constructor of the current party-oriented journalistic theory, packaged it as a “Marxist view of journalism”, and then regarded itself as the interpreter and defender of Marx’s journalistic thought. But to be practical and realistic, Marx’s theory and journalistic thought are fundamentally “discussing the disease” for modern society, with a strong critical edge and a sense of concern at the bottom, and its spearhead is often directed at those in power and social strong strata. it is really incompatible with the current party-oriented journalistic theory packaged with “Marxist journalistic view”.
Chen Hui further pointed out that the creed of the theory of party journalism has increasingly lost its appeal and attraction, but its control and restraint on the government-run media, especially the party newspaper, the party magazine and the party platform has not been weakened. As a result, the credibility of the official mouthpiece of the media is deteriorating.
Driven by market forces, the rise of citizen journalism theory driven by journalism professionalism and new media breaks the monopoly of party journalism theory and indicates the development direction of journalism theory in the future.<6>
Zhang Yong believes that the fundamental purpose of the press law is to protect the freedom of the press. Specifically, it is to protect the right of citizens to know the situation and express their opinions through the news media, to protect the legitimate right of interview, reporting, criticism and comment of the news media, and to resist the abuse of freedom in accordance with the law. In the absence of specific press law, it is an inevitable choice to introduce the constitutional provisions of principle into the specific protection of the right to freedom of the press.
First, the judicialization of the Constitution is an inevitable requirement for the protection of the right to freedom of the press.
Second, the judicialization of the Constitution will strengthen the protection of the right to freedom of the press.
Third, the judicialization of the Constitution is the inherent requirement for judicial organs to hear cases of the right to freedom of the press.
If the law is not actionable, then it has only one function, that is, it only has the declarative function, but not the normative function.
Freedom of the press is a right stipulated in the Constitution, which belongs to the category of democracy and human rights. from a legal point of view, it is mainly composed of the news media, citizens and the government. Its extension naturally includes freedom of speech and freedom of the press, so freedom of the press is a fundamental political right, and modern democratic countries mostly include freedom of the press in the category of rights protected by the Constitution. The press media, citizens, the government and other social organizations all need freedom of the press, but it may also endanger the freedom of the press for some reason. Only through the restriction and coordination of the law can the right of freedom of the press be realized.<7>
How far is the road to judicial independence?
Like the fate of freedom of the press, judicial independence has become a sensitive word in current politics.
Qin Qianhong, a professor at the School of Law at Wuhan University, believes that since the 1980s, society has been calling for political reform one after another. However, on the premise of insisting on institutional confidence, the government could not ignore the expectations of society, so it strategically chose the so-called lowest-risk and lowest-cost division reform as a breakthrough or test field for political reform to prevent cliff changes as a result of political reform. But the question is: when the administration of justice does not adapt to the political system, of course, we should choose the reform of the Secretary. If the political system is not adapted to the administration of justice, is it wise to evade the political reform?. In fact, without competitive electoral democracy and broad civil liberties and freedom of the press, justice is just a broken-winged bird.<8>
Tong Zhiwei, a professor at East China University of political Science and Law, points out that the constitutional status of Chinese courts is lower than that of Europe and America. Legally, the status of Chinese courts (such as the Supreme Court) has been further depressed by legislation below the provisions of the Constitution. Moreover, the political status of the court is lower than the legal status.
Some basic facts show that the most important reason for the lack of impartiality and credibility of Chinese judicature is that judges and courts are subject to too much internal and external interference, making it difficult for judges and courts to adjudicate cases according to conscience in accordance with the provisions of the law from a neutral and impartial position. The main manifestations are as follows:
In terms of concept, Chinese courts have been unable to get rid of the stereotype of “judicature stresses politics”; the internal relations of the courts at the same level are highly administrative; the relationship between superior and subordinate courts in the court system is highly administrative; from the perspective of external factors, courts and judges also lack objective conditions for exercising judicial power independently in accordance with the law.
This determines that the relationship between the upper and lower courts is the relationship between supervision and supervision, not the relationship between the leadership and the leadership of administrative organs. But the reality is that the higher courts in China have developed many means of extrajudicial control over the lower courts, and these means have been politically tolerated and even encouraged.
The relationship between the higher and lower courts is highly administrative, and one of the results is that the division of trial level and supervision at the trial level are almost meaningless, and the second result is that the party’s leading bodies such as the Central political and Law Commission or the political and Law Commission at a higher level have expressed their intentions and made instructions in cases. the trial of the court, the appeal of the parties, the defense of lawyers, and so on, have become performances with no practical significance.
The local party committee and its political and legal committee are fully capable of influencing the outcome of any case through the leading party group of the court to a large extent.
The leadership of the Communist Party of China has constitutional legitimacy and should be maintained, but to what extent and how to lead is an issue that needs to be studied and regulated. In any case, allowing the local organizations of the ruling party to have the power to determine the outcome of any judicial case is not in line with the provisions and spirit of the existing Constitution, and it is totally unreasonable.
In the process of handling criminal cases, on the one hand, the procuratorate is the public prosecutor and the parties, on the other hand, it is the supervisor of the court hearing the case, these two identities contradict each other. Of course, this is a legal arrangement, but this arrangement restricts the courts and judges beyond legal principle and normal logic.
In view of these chronic diseases of the rule of law in China, Tong Zhiwei pointed out that judicial neutrality is, first of all, the political neutrality of courts and judges, and the slogan of judicial politics should be completely negated in order to promote the political neutrality of courts and judges to improve the CPC’s leadership over judicature and achieve independence and impartiality in trials.
In the judicial field, we should not only recognize the legitimacy of the leadership of the Communist Party of China, but also eliminate the myth that the leadership of the Communist Party of China is constantly tightening all kinds of screws, and there can be no degree of relaxation in any link at any time.<9>
The fact that China’s judiciary is not independent is also reflected in the fact that Chinese judges are accountable to the bulls.
Lin Laifan, professor of the Law School of Tsinghua University, director of the Public Law Research Center, and vice president of the Constitutional Law Research Society of the Chinese Law Society, believes that to whom Chinese judges are accountable? I think they are now divided, and they have at least five kinds of responsibility: first, they are responsible to the law. This is also the requirement of mature countries under the rule of law for judges, even requiring them to obey the law only; second, they should be accountable to their higher levels, including to the leaders of their own units or courts at higher levels; third, they should be accountable to the people, and we advocate justice for the people to the satisfaction of the people; fourth, to the people’s Congress; and fifth, to the party.
In view of this, I think judges should first be accountable to the law, and by being accountable to the law, they should be accountable to the people, to the National people’s Congress, and even politically to the party, but not to their superiors, or even to specific party organizations.<10>
Xie Hui, a professor at Beijing Institute of Technology Law School, believes that the basic law of the judiciary is judicial independence. Therefore, judicial reform is to achieve judicial independence, and through judicial independence, to achieve internal supervision of state power, to achieve unconstitutional and illegal judicial review. The important symbol of the rule of law is whether the power is subject to social supervision and judicial review.
How to measure the clarity of power?
In my opinion, only when all the public power of a country (whether legislative power, executive power or judicial power) can be sued by citizens, legal persons or legal organizations, can the power be clear.
The vague relationship of power means that the judicial supervision of the power of other countries loses its credentials.
In China, as we all know, judicial power consists of two parts, one is procuratorial power, the other is judicial power. Strictly speaking, procuratorial power and judicial power are very different powers. In many countries in the world, procuratorial power is a part of administrative power, but in China, the procuratorate is an independent institution. In the current China, in the vast majority of cases, the first intervention is not the procuratorial organs, but the Commission for discipline Inspection. In this way, the Party organs have vacated the procuratorial power. Although the appointment of the president of the court and judges in our country is formally said by the National people’s Congress, the premise is that it is first inspected and recommended by the party organization, so it is often decided by the party organization. As a result, the personnel power over the selection and appointment of judges through the National people’s Congress has in fact been emptied and replaced by party institutions.
Judicial independence includes at least two aspects, one is that the judicial power must be independent, and the other is the independence of judicial responsibility, because the independent power must perform the independent responsibility.
In fact, realizing the judicial review of party power and administrative power by judicial power through judicial reform is an important, key and core content of the political system reform. therefore, the judicial system reform must be linked with the political system reform.
What is the legal status of the ruling party in power and leadership? How to ensure that it is ruled by law? How to keep the power structure of the ruling party within the legal system? This is a premise, and only by solving this problem can other powers be settled.
The power of the ruling party must be strictly limited to the scope of the law and the Constitution, and outside the scope of the Constitution and the law, the ruling party does not have any powers or privileges to speak of.
In terms of the process of the rule of law, the establishment of a society ruled by law is not the result of the active construction of the ruling party, because any power is not willing to put itself in a cage and can only be passive.
The completion of the task of judicial reform or judicial independence means the general completion of the reform of China’s political system.<11>
Wang Yong, a professor at the School of Civil and Commercial Economic Law of China University of political Science and Law, believes that the direction of judicial reform is the establishment of judicial authority, which will greatly reduce the cost of social dispute resolution and is a sign of the success of the judicial system. But the so-called “judicial authority” is not only power and force, but also the respect and trust of the public to the administration of justice from the bottom of their hearts. In China, judicial authority and political authority are closely linked, political authority can not be established, and it is difficult to establish judicial authority. Therefore, it is a naive fantasy to expect the Chinese judiciary to gain authority overnight.
Macroscopically, the final establishment of judicial authority still needs several hard elements, which should be the long-term goal of China’s judicial reform.
First, the institutional “judicial relative independence” ruling party should learn from the experience of the Roman Empire and fully realize that the judiciary is relatively independent of the party. In fact, if the ruling party controls the legislation, it is not necessary to absolutely control the administration of justice, because a large number of lawsuits are private disputes. According to the data of 2015, more than 11.44 million first instance cases were received in the whole year, of which civil and commercial cases accounted for 88.23%. Criminal cases accounted for 9.84%, and administrative cases accounted for 1.93%. In these private disputes, the ruling party has no direct interests and can let go. In the feudal English society, the king was quite bored with the trial of civil cases, and judicial independence was an excellent way to relieve the king of his burden. businessmen set up their own courts, and the king never intervened, so that an independent merchant law system was formed.
To establish a real Supreme people’s Court, the current judicial committee can be the main body and gradually be composed of judges of the Communist Party, democratic parties and personages without party affiliation.
The second is the establishment of new ideology or discourse system. If our discourse system is only an empty slogan of “the supremacy of the people” or “judicial surname party”, it will not be effective, and its effect will not be as effective as medieval theology. Medieval theology is deceptive and absurd, but it can be foolish, settle disputes, and dispel resentment in people’s trust in God. In modern society, it is impossible to establish an effective ideology or discourse system similar to theology. Since there is no such magic, we should honestly build the discourse system in the secular dimension and cultivate the secular authority of the judiciary.
The third is to build a contingent of Chinese judges in the spirit of “cultivating people in a hundred years”.
The ruling party should put judicial reform in the position of national strategy. Although the judicial reform after the fourth Plenary session of the 18th CPC Central Committee is getting better, the risk of deterioration has not been eliminated.<12>
The above is basically the current political, news and judicial situation in China.
Let’s go back to the question at the beginning of the article. There are still more than ten years to go before Professor Yan Jirong sets out a timetable for China’s modernization, “realizing modernization in 2049.” Can China solve the above problems quickly in such a short period of time?
Therefore, for the construction of “modern China”, we still need to make extremely strenuous efforts!
This seems to go back to the historical scene when Dr. Sun Yat-sen warned the party: the revolution has not yet succeeded, and comrades still need to work hard!
China’s modernization drive is still on a long journey.
As the saying goes: the journey is long, I will not stop pursuing!
<1>: min Liangchen, where is the Hope and Future of Democracy, Love thought Network, October 5, 2014.
<2>: Wu Si, the five levels of Freedom of speech in China, Source: Sina blog.
<3>: sun Xupei “marching in the tundra of news reform”, Tencent observes “Master” No. 89.
<4>: sun Xupei “marching in the tundra of news reform”, Tencent observes “Master” No. 89.
<5>: sun Xupei, the Destiny of Press Freedom in China, Source: love thought Network.
<6>: Chen Hui’s “A brief Analysis of the Development of the Journalism Theory of the Communist Party of China”. Source: Chen Hui’s blog.
<7>: Zhang Yong, the judicialization of the Constitution and the Protection of the right to Freedom of the Press, Source: legal Education Network, December 4, 2003.
<8>: Qin Qianhong’s “the mystery of reform”, “consensus Network” thinker blog, April 20, 2016.
<9>: Tong Zhiwei’s Road to Independent trial in Chinese Courts, Source: Phoenix New Media University, February 2, 2016.
<10>: Lin Laifan’s “to whom Chinese judges should be accountable”, Source: Phoenix Review “High opinions”, March 22, 2016.
<11>: Xie Hui’s “the Core of Judicial Reform is the Independent trial of the Court”, consensus Network, 5 December 2014.
<12>: Wang Yong, “how far can technological judicial reform go?”, Caixin, March 25, 2016.