The Supreme People’s Court and the Separation of Powers in China: Rethinking and Reinterpretation
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This article explores the recent development of the Supreme People’s Court of China, seeking to achieve a thorough understanding of the world’s largest highest court that has so far remained largely obscure. Recognizing that the Court’s approach to exercising power in an authoritarian context has to a great extent challenged the Western understanding of judicial power in both democratic and non-democratic legal settings, this article intends to capture the essence of the Court through its institutional design as well as functional practice. It argues that regardless of the deep-seated political and institutional constraints, the Court has demonstrated a highly pragmatic interest in fulfilling its primary functions and prudently expanding judicial power in the era of transformation. Nevertheless, the Court’s incompetence and reluctance to challenge the bureaucratism and politicization suggests that the call for an impartial and authoritative judicial power would continue to be placed in jeopardy as long as the Court remains to operate in the shadow of the Party authority and lacks meaningful checks and balances at the institutional front. Drawing from the experience of the Court, this article eventually reflects on some deep-rooted misunderstandings of the legal development in China, providing a source of inspiration for reconceptualizing the internal logic of a distinct category of judicial power beyond the core Western democracies.
Abstract
This article explores the recent development of the Supreme People’s Court of China, seeking to achieve a thorough understanding of the world’s largest highest court that has so far remained largely obscure. Recognizing that the Court’s approach to exercising power in an authoritarian context has to a great extent challenged the Western understanding of judicial power in both democratic and non-democratic legal settings, this article intends to capture the essence of the Court through its institutional design as well as functional practice. It argues that regardless of the deep-seated political and institutional constraints, the Court has demonstrated a highly pragmatic interest in fulfilling its primary functions and prudently expanding judicial power in the era of transformation. Nevertheless, the Court’s incompetence and reluctance to challenge the bureaucratism and politicization suggests that the call for an impartial and authoritative judicial power would continue to be placed in jeopardy as long as the Court remains to operate in the shadow of the Party authority and lacks meaningful checks and balances at the institutional front. Drawing from the experience of the Court, this article eventually reflects on some deep-rooted misunderstandings of the legal development in China, providing a source of inspiration for reconceptualizing the internal logic of a distinct category of judicial power beyond the core Western democracies.
참고문헌 (60)
- Alter K., "Establishing the Supremacy of European Law" (2003), Oxford University Press
- "China: The Death Penalty in China: Breaking Records, Breaking Rules" (1997)[URL]
- Bell J., "Reflections on continental European Supreme Courts", Legal Studies, 24, pp.168~ (2004)
- Butt S., "Economic Reform When the Constitution Matters: Indonesia’s Constitutional Court and the Article 33 of the Constitution", Bulletin of Indonesian Economic Studies, 44(2) (2008)
- Carolan E., "The New Separation of Powers: A Theory for the Modern State" (2009), Oxford University Press
- European Commission for the Efficiency of Justice, "European Judicial System, Edition 2012 (2010 data): Efficiency and Quality of Justice", Council of the Europe Publishing, ~ (2012)
- Finder S., "Reforming the People's Courts: Disputes and Cases", China Law & Practice, 20(5), pp.74~ (2006)
- Garoupa N, "Judicial Roles in Nonjudicial Functions", Washington University Global Studies Law Review, 12 (2013)
- Ginsburg T., "Judicial Review in New Democracies: Constitutional Courts in Asian Cases" (2003), Cambridge University Press
- Ginsburg T., "Rule by Law: The Politics of Courts in Authoritarian Regimes" (2008), Cambridge University Press
- Gong P., "The Modernization of China's Legal System" (2004), The China University of Politics and Law Press
- Gordon M., "Parliamentary Sovereignty in the UK Constitution: Process, Politics and Democracy" (2015), Hart Publishing
- Guarnieri C., "The Power of Judges: A Comparative Study of Courts and Democracy" (2002), Oxford University Press
- Haljan D., "Separating Powers: International Law before National Courts" (2013), T.M.C. Asser Press
- Establishing a Sound Adjudication Mechanism for Conflicts of Law (Jianli Falu Chongtode Liangxing Jiejue Jizhi), "Han Z.", ~ (2003)
- He W., "Demobilized Servicemen of the People’s Liberation Army Now Serving at Courts (Fuzhuan Junren Jin Fayuan)", South Weekend, ~ (1998)
- "'Who Comes First in the 'Three Supreme' (Sange Zhishang Shui Zhishang)" (2008)[URL]
- He X., "The Party's Leadership as a Living Constitution in China", Hong Kong Law Journal, 42(73) (2012)
- Hirschl R., "The Oxford Handbook of Law and Politics" (2008), Oxford University Press
- Hou M., "The Mentality and Expression of the Petitioners at the Supreme People’s Court (Zuigao Fayuan Fangmin de Xintai yu Biaoda)", Peking University Law Journal, (3) (2011)
- Hou S., "The Judicialization of Politics in Asia" (2012), Routledge
- Hu Y., "Study on the Functions of the Supreme People’s Court (Woguo Zuigao Fayuan Gongneng Yanjiu)", pp.2008
- Huls N., "The legitimacy of Highest Courts' Ruling: Judicial Deliberations and Beyond" (2009), T.M.C.Asser Press
- Ip E., "The Supreme Court and the Making of Public Policy in Contemporary China", The Michigan Journal of Public Affairs, 7 (2010)
- Kawagishi N., "Japanese Supreme Court: An Introduction", National Taiwan University Law Review, 8 (2013)
- Keith R., "Judicial Interpretation of China's Supreme People's Court as "Secondary Law" with Special Reference to Criminal Law", China Information, 23 (2009)
- Keith R., "China's Supreme Court" (2014), Routledge
- Kong X., "The Choice for the Judges When Facing Conflicts of Law (Faguan zai Falu Guifan Chongtu Zhongde Xuanze Shiyong Quan)", Legal Daily, ~ (2003)
- Le Sueur A., "The Judicial House of Lords: 1876-2009" (2009), Oxford University Press
- Li L., "The ‘Production’ of Corruption in China’s Courts: The politics of judicial decision-making and its consequences in one-Party state'", Journal of Law and Social Inquiry, 37(4) (2012)
- Liebman B., "Chinese Justice: Civil Dispute Resolution in Contemporary China" (2011), Cambridge University Press
- Liebman B., "The Beijing Consensus? How China Has Changed the Western Ideas of Law and Economic Development" (2016), Cambridge University Press
- Liebman B.L., "China's Courts: Restricted Reform'", The China Quarterly, 191, pp.638~ (2007)
- Lubman S., "Bird in a Cage: Legal Reform in China after Mao" (2000), Stanford University Press
- Mak E., "Judicial Decision-making in a Globalised World: A Comparative Analysis of the Changing Practices of Western Highest Courts" (2013), Hart Publishing
- Mak E, "Justice at a New Scale: Introducing a Conceptual Framework for the Analysis of Highest Courts' Role in a Globalised Context", The Hague Institute for the Internationalisation of Law (HiiL) Law of the Future Conference (2008)
- Meng W., "Shanghai Launched the Pilot Reform on Adjusting Specified Number of Judicial and Procuratorate Personnel (Shanghai Qidong Sifa Gaige Shidian, Jiang Shixing Faguan Jianchaguan Yuan'e Zhi)", Legal Daily, ~ (2014)
- Minzner C., "Xinfang: An Alternative to Formal Chinese Legal Institutions", Stanford Journal of International Law, 42(1), pp.179~ (2006)
- Minzner C., "China's Turn against Law", The American Journal of Comparative Law, 59(4) (2011)
- Moellers C., "The Three Branches: A Comparative Model of Separation of Powers" (2013), Oxford University Press
- Morris R.J., "China's Marbury: Qi Yuling v. Chen Xiaoqi - The Once and Future Trial of Both Education & Constitutionalization", Tsinghua China Law Review, (2), pp.273~ (2009)
- Moustafa T., "Law and Courts in Authoritarian Regimes", Annual Review of Law and Social Science, 10 (2014)
- Peerenboom R., "China's Long March toward Rule of Law" (2002), Cambridge University Press
- Peerenboom R., "A Government of Laws: Democracy, Rule of Law and Administrative Reform in the PRC", Journal of Contemporary China, 12 (2003)
- Peng X., "The Legitimacy and Legalization of Regulating the Litigation-related Petitions: Study on the basis of Legal Practice between 1978 and 2015 (Shesu Xinfang Zhili de Zhengdangxing yu Fazhihua: 1978-2015 Nian Shijian Tansuo de Fenxi)", Legal Studies, 5 (2016)
- "Who Gave "Judicial Independence" a Death Sentence?" (2015)[URL]
- Rogoff M., "Fifty Years of Constitutional Evolution in France: The 2008 Amendments and Beyond", Jus Politicum, (6) (2011)
- Shapiro M., "On Law, Politics, and Judicialization" (2002), Oxford University Press
- Shapiro M., "Courts: A Comparative and Political Analysis" (1981), The University of Chicago Press
- Song Y., "The Incorporation of Public Policies into the Adjudication Process: Discussion on the Abstract Judicial Interpretation of the Supreme People’s Court (Gonggong Zhengce Ruhe Jinru Caipan Guocheng: Yi Zuigao Renmin Fayuan de Sifa Jieshi Weili)", Law and Business Study, (6) (2009)
- Tate N., "The Global Expansion of Judicial Power" (1997), New York University Press
- Uzman J., "The Dutch Supreme Court: A Reluctant Positive Legislator?", Electronic Journal of Comparative Law, 14(3) (2010)
- Wang C., "Law-making Functions of the Chinese Courts: Judicial Activism in a Country of Rapid Social Changes", Frontiers of Law in China, 1(4) (2006)
- Wilson J., "Bureaucracy: What Government Agencies Do and Why They Do It" (1989), Basic Books
- Wolfe C., "The Rise of Modern Judicial Review: From Constitutional Interpretation to Judge-made Law" (1994), Rowman & Littlefield Publishers
- Yardley J., "A Judge Tests China’s Courts, Making History", The New York Times, ~ (2005)
- Yu Z., "The Political Functions of the Supreme People's Court: Based on the Annual Working Reports of the Supreme People's Court (Lun Zhongguo Zuigao Fayuan Shiji Chengdan de Zhengzhi Gongneng)", Tsinghua Law Review, (7) (2006)
- Zhang Q., "The Constitution of China: A Contextual Analysis" (2012), Hart Publishing
- Zhang X., "President Zhou's Speech on May 4th to All the Court Police (Zhou Qiang zai Zuigao Fayuan Wusi Qingnianjie Zuotan Huishang Jiyu Qingnian Ganjing)", People's Court Daily, ~ (2013)
- "'People's Courts Must Dare to Show the Sword against the Erroneous Western Ideologies such as(Yao Ganyu xiang Xifang Sifa Duli deng Cuowu Sixiang Liangjian)" (2017)[URL]