中国の人民法院の独立裁判原則とその問題点 ―行政裁判を素材に―

Abstract

There is no western-type "independence of jurisdiction" in China, which uses the "democratic centralism" as the basic principle of the Governing Body. However, as functional division of labor, jurisdiction is allocated to the People's Court which is a professional judicial body, and the principle of independent trial of the People's Court has been established in the Constitution. The provision of the same purpose is also established in the Administrative Procedure Law, and the principle of independent trial in administrative lawsuit has been established. However, as in Japan, a concrete judicial system to back up its "independent trial" principle has not been established, and there are many theoretical and practical opacity. Therefore, in China, there have been two major legal disputes over the "independence of the trial" principle over the past, and various problems have been pointed out. In particular, the Constitution clearly states the construction of a state of law as a national goal (Article 13 of the constitution amendment draft of 1999) The significance of this problem is getting bigger today. However, most of the studies so far have been limited to pointing out the problem of the national system, do not discuss about the ideal way of the concrete judicial system and the issue on the theory of interpretation of the constitution. In this paper, I will discuss the problems of interpretation of constitutional articles concerning the Independent Judgment Principle of People's Court; the positioning of "principle of independence of judgment" in the national system; problems of the judicial system in practice. I will also examine the whole picture of the so-called "independent trial of People's Court" in China through comparison with Japan's judicial system.