중국사법책임제 개혁에 있어 재판위원회제도의 기능에 관한 고찰

Abstract

As the highest trial organization of People's Court in China, the Judicial Committee has long played the two core functions of “summarizing trial experience” and “discussing major and difficult cases”. According to the interpretation of related specifications, it is not difficult to find that there are theoretically three viewpoints of the trial discussion function of the Judicial Committee: “traditional summarization of experience and theory of unity for case”, “theory of case discussion limitation” and “theory of application for law of case discussion”. With the advancement of legislation reform and the reform of the judicial responsibility system, the function of “discussing major and difficult cases” has become more questionable, especially, its excessive use has limited the function of “summarizing trial experience”. Article 27 of Organizational Law of the People's Court, amended in 2018, defines the function of its case discussion as “discussing the legal application of major, difficult and complicated cases”, and establishes the application of the case discussion law from the perspective of legislation, which established its orthodox status. However, it should be noted that whether from the perspective of theoretical research or the perspective of judicial practice, this positioning has not been final conclusion, and there is still much controversy, and there are many improved views on all sides of society, that the Judicial Committee issues should be studied deeply to recreate its functions. Generally speaking, looking at the reform ideas reflected by various theoretical viewpoints, “traditional summarization of experience and theory of unity for case” have basically reached a consensus at a time, and “theory of case discussion limitation” and “theory of application for law of case discussion” are difficult to define fundamental defects such as scope and operability, which leads to the failure to implement the judicial responsibility system and to be questioned. Based on this, in the context of the continuous and in-depth reform of the judicial responsibility system, the re-creating path to the function of case of the judicial committee of the people's court should be to abolish the discussion function of the judicial committee, and the decision-making power of difficult and complicated major cases should be returned to the collegial panel, at same time, the conference case consultation and discussion function of the professional judges should be fully utilized, to guarantee the return of the function of the trial committee to “summarizing the trial experience.”