Written by Gao Yifei (高一飞), a law professor at Southwest University of Political Science and Law, from World-China Bridges:
Since the first “Five-year Reform Outlines for People’s Court” promulgated in 1999, China’s judicial reform has now gone through nearly 10 years. But though it has made relatively large progress, this judicial reform has also obviously erred on the direction it has taken. This is manifested in its emphases on structural reform over procedural reform, judges’ professional quality over moral quality, and judicial independence over judicial restraint. It is precisely because of this that judicial corruption in China has remained unresolved even as its judicial efficiency has increased. Due to the expansion of judicial work covered, ordinary people have actually felt that judicial corruption has become more and more serious.
On this, I agree with Supreme Court President Xiao Yang that the fundamental problem is judiciary’s localization, administratization, and deprofessionalization. Nevertheless, the essence of these three big problems is not a judicial problem itself; it is, rather, a problem of political structure, and to resolve such a problem, the duty is heavy and a long way to go. In many respects, reforming the judiciary itself can only slightly affect the whole political structure. Then, does this mean that judicial reform under existing political structure can accomplish nothing? I believe something can be accomplished, but we should adjust the direction of present judicial reform to reflect proper reform priorities. We can consider the following three aspects:
1) More emphasis on procedural reform over structural reform
Usually, we divide judicial reform into structural and procedural reforms. Judicial structure is the organization system of judiciary, while judicial procedure refers to the specific steps and rules that judicial activities should adhere to. The vast majority contents of the two five-year reform outlines issued by the Supreme Court deal with judicial structural reform, while contents relating to judicial procedure are rare. Is this emphasis on structural reform over procedural reform reasonable? How should we handle the relationship between the two? Should we really wait until after the structure completely straightened out that we then pay more attention to improve procedures?
