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Judicial Democracy of Contemporary China

Author: WangLi
Tutor: HuangWenYi
School: Jilin University
Course: Legal Theory
Keywords: judiciary democracy deliberative democracy judicial democracy judicial professionalism judicial democratization
CLC: D926
Type: PhD thesis
Year: 2012
Downloads: 418
Quote: 1
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Abstract


For a long time, China’s judicial system has always faced with the twopath-oriented confrontations of judicial professionalism and judicial democratization.The previous studies on judicial democracy focus only on the appearances of thedispute, and a theoretical confrontation is not truly realized. In fact, the true challengeof theory under the dispute are: the friction between western patterns and localizationexperience, the contest between legal thinking and thinking of morality, the conflictbetween procedures for rationality and substantive rationality, the dispute between casepriority and universal justice priority, and the root causes can be eventually revealed inthe opposition between the individual rights and society interest. Therefore, it is thetrue problem of the study on contemporary Chinese judicial democracy only to explorepractical and effective path aiming at resolving these conflicts and differences.There are roughly three theoretical approaches used by Chinese and foreignscholars to study judicial democracy. These are the Subject democracy approach,Constitutional democracy approach and Procedure democracy approach, respectively.However, due to the misunderstanding and differences on the core concept of"democracy", these three approach roads are unable to construct persuasive and can betruly effective to resolve disputes "judicial democracy" concept. Therefore, theanalysis turned to the deliberative democracy theory and the use of semantic analysisto clarify the modern connotation of "democracy" and "justice", this paper tries to openup a Deliberative democracy approach to conceptually reconstruct judicial democracy.Based on the theory of deliberative democracy approach, not only a reasonabletheoretical correlation was established between "democracy" and "justice", but also themodern meaning of "judicial democracy" was further revealed. Thus, it is necessary toensure the equally and rationally allocation of judicial resources in society, to establishthe "publicity" character of judicial idea, and to realize the equal emphasis ofindependence of the judiciary and judicial responsibility. All are not only the properroutes to modern democratic ideals of justice, but also are important factors for themeasure of democracy of judiciary and the degree of the democratic character. However, is it convincing after the reconstruction of the concept of judicialdemocracy? Under the guidance of this questioning, we must turn the viewpiont fromtheory and concepts to history and reality. Attributing to long-termed accumulation oftheoretical and experience of trial and error, democratic theory and practice of Westernjustice revealed that: in the face of practical difficulties and theoretical challenges,based on the deliberative turn of the democratic theory, the idea of judicial democracycomplete its transformation to further advance the system of innovation andimprovement of the operating mechanism of judicial democracy. Reflection andrethinking on the history of judicial democratization in China, we also found that it isdifficult to reform judicial democracy in China because a wrong interpretation of thejudicial democratic ideas was formed under the influence of the misunderstanding todemocratic concept, which led to the dysfunctional judicial democratic system.Therefore, under the guidance of the concept of judicial democracy in the contextof deliberative democracy, based on the care and reflection of the Western and Easternhistory and reality, the following five aspects should be paid attention: the legalizationand institutionalization of the judicial independence; conversion of the mechanisms ofjustice Subject from the perspective of the "providers" to that of "demanders"; centralconversion of operating mechanism of the judicial process from the "adversarial" to"cooperation"; standardization construction of judicial accountability and oversightmechanisms; construction of the epiphytic mechanism of justice from "centralized"to "diversified".

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CLC: > Political, legal > Legal > Chinese law > Justice system
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