THE INDEPENCE OF JUDGES IN CHINA AND GERMANYPDF电子书下载

Introduction 13

Ⅰ. Why China? 13

Ⅱ. Why the Independence of Judges? 15

Ⅲ. Why Germany? 17

1. Tradition 18

2. The Qualifications of Judges 19

3. The Selection and Appointment of Judges 20

4. The Status of Judges 21

Ⅳ. Purpose, Methodology and Main Conclusions 22

Part Ⅰ Basic Principles 30

Chapter Ⅰ Principles of the Independence of Judges 30

Section Ⅰ Necessity for the Independence of Judges 30

(1) The Principle of the Independence of Judges and the Separation of Powers 31

(2) The Independence of Judges and the Principle of the State under the Rule of Law 32

Section Ⅱ Material Aspects of the Independence of Judges 34

(1) Substantive Independence 34

(2) Independence of status 38

Chapter Ⅱ Historical Aspects of the Independence of Judges 42

Section Ⅰ Development 42

(1) The Feudal Period 42

(2) Modern Times 44

(3) From the Founding of New China to the Cultural Revolution 47

(4) After the Third Plenum of the llth Central Committee of the CCP 50

Section Ⅱ Historical Development of the Independence of Judges in Germany 54

Section Ⅲ Comparison 55

(1) The Transplantation of Laws and Legal Education 55

(2) Establishment of the Idea of the Rule of Law 57

Chapter Ⅲ The Court System and the Independence of Judges 59

Section Ⅰ The Situation in Chinese Courts 59

(1) The Relationship between Courts and Legislative Authorities 59

(2) The Relationship Between the Courts and Executive Authorities 62

Section Ⅱ Establishment and Authority of Chinese Courts 63

(1) The Organisation and Authority of the Local People's Courts at various levels 65

(a) Basic People's Courts 65

(b) Intermediate People's Courts 66

(c) Higher People's Courts 67

(2) Organisation and Authority of the Special People's Courts 69

(a) Military Courts 69

(b) Maritime Courts 71

(c) Railway Transport Courts 72

(3) Organisation and Authority of the Supreme People's Court 75

(a) Supervising the adjudication of the local People's Courts at various levels and special People's Courts 75

(b) Handling three kinds of cases which it adjudicates: 75

(c) Examining and approving death sentences 76

(d) Judicial Interpretation 78

Section Ⅲ Judicial Organisation of Chinese Courts 79

(1) Single-judge Bench 79

(2) Collegial Panel 79

(3) Judicial Committee 81

(a) Discussing important or difficult cases 81

(b) Summarisingjudicial experience 82

(c) Discussing other issues relating to adjudication 82

Section Ⅳ Basic System of Adjudicative Work 83

(1) Public Trial System 83

(2) System in which the Second Instance is the Final Instance 84

(3) System of Judicial Review of Death Sentences 86

(4) System of Trial Supervision 87

(a) Brief Introduction 87

(b) Rehearing or Retrial Lodged by a People's Court 87

(c) Rehearing or Retrial Lodged by the People's Procuratorate 88

(d) Rehearing or Retrial Lodged by a Party 88

(e) Trial Procedure of Rehearing Cases 89

Section Ⅴ Comparing the Court Systems 89

(1) German Federal Court System 89

(2) Comparing the Court Systems of China and Germany 92

(a) The Position of the Courts within the Organisation of the State 92

(b) The Configuration of Courts 93

(c) Forms of Adjudicative Organisation 94

Part 2 Elements of the Independence of Judges 97

A Substantive Independence 97

(A) Independence from the Executive 97

Chapter 1 Selection of Judges 97

Section Ⅰ Selection Criteria for Judges in China 98

(1) Posts and Grades of Judges 98

(2) Conditions for Judges in China 101

(a) History 101

(b) Provisions of Laws Currently in Effect 103

Section Ⅱ Conditions for Judges in Germany 110

(1) Types of German Judge 110

(a) Judges Appointed for Life (Richter auf Lebenszeit) 110

(b) Judges Appointed for a Fixed Term (Richter aufZeit) 110

(c) Probationary Judges (Richter auf Probe) 111

(d) Judges on Commission (Richter kraft Auftrags) 111

(2) Conditions for German Judges 112

(a) University Education in Law 112

(b) The First State Examination 113

(c) Preparatory Service 114

(d) The Second State Examination 115

Section Ⅲ Comparison 116

(1) Age Requirements 116

(2) Educational Requirements 117

(3) Requirements for the Judicial Examination 117

(4) Health Requirements 118

(5) Practical Experience Requirements 119

(6) Miscellaneous 120

(a) Different Levels of Court 120

(b) Differences Between Areas 121

Section Ⅳ Process of Judicial Selection in China 122

(1) Civil Service Examination and Recruitment of Candidate Judges 122

(2) Procedures for Judicial Selection 124

(a) Statutory Principal Organs and Procedures 124

(b) Principal Organs and Procedures in Practice 126

Section Ⅴ Process of Judicial Selection in Germany 129

(1) Judges of the Constitutional Courts 130

(a) Judges of the Federal Constitutional Court 130

(b) Judges of Land Constitutional Courts 131

(2) Federal Judges 132

(a) The Federal Court of Justice 132

(b) Other Federal Courts 133

(3) Land Judges 135

Section Ⅵ Comparison 139

Chapter Ⅱ Service Supervision (Dienstaufsicht) of Judges 141

Section Ⅰ The Service Supervision of Judges in China 143

(1) External Supervision 143

(a) Legally Binding Supervision 143

(b) Non-Legally Binding Supervision 150

(2) Internal Supervision 154

(a) The System of Examination and Appraisal of Judges 154

(b) The System of Disciplining Judges 159

(c) The Influence of Internal Supervision on the Independence of Judges 171

Section Ⅱ The Service Supervision of Judges in Germany 174

(1) The Scope and Limitation of the Service Supervision 174

(a) The Federal Constitutional Court 175

(b) Law Courts 175

(c) Administrative Courts 175

(d) Labour Courts 176

(e) Social Courts 176

(f) Finance Courts 76

(2) The Manner of Service Supervision 77

(a) Observation (Beobachtung) 77

(b) Correction (Berichtung) 78

(3) Service Courts 79

(4) The System of Appraisal of Judges 80

(a) The Character and Purpose of Appraisal 80

(b) The Organs of Appraisal 81

(c) The Content of Appraisal 82

(d) The Result of Appraisal 82

(5) The System of Discipline 82

(a) Disciplinary Organs 183

(b) Grounds for Disciplinary Measures 183

(c) Disciplinary Measures 188

(d) Disciplinary Procedure 191

(6) The System of Impeachment 193

(a) The Organs of Impeachment 193

(b) The Grounds for Impeachment 194

(c) The Punishment of Impeachment 194

(d) The Procedure of the Impeachment Trial 195

(e) Relief Measures 196

(f) The Relationship Between Crime and Impeachment and Between Discipline and Impeachment 196

(7) Summary 197

Section Ⅲ Comparison 198

(1) The System of Appraisal 198

(2) The Disciplinary System 199

(a) Legal Provisions 199

(b) Organs of Discipline 199

(c) Subjects of Disciplinary Measures 200

(d) The Grounds for Discipline 200

(e) The Disciplinary Measures 200

(3) The System of Impeachment 201

(4) Other aspects 201

(B) Independence from the Legislature 202

Chapter Ⅲ The Independence of Judges from the Legislature 202

Section Ⅰ Formal and Informal Influence of the Legislature 204

Section Ⅱ Means of Balancing the Legislature- Judges Power of Judicial Review 206

Section Ⅲ The Luoyang Seed Case and Judges Power of Judicial Review in China 213

(1) Main Pointsofthe Case 214

(2) Issues 215

(3) Reflection and Comparison with Judicial Review by Judges in Germany 218

(a) Courts' Limited Powers of Judicial Review 218

(b) Comparison with Germany 219

(c) The Abuse of Judicial Review in China 220

(d) Proposals for Improvement 221

(C) Independence within the Judicial branch 222

Chapter Ⅳ The Administration and Organisation of Courts 222

Section Ⅰ The Provision of Goods and Materials to the Courts 224

Section Ⅱ The Autonomy of Courts 228

Section Ⅲ Prohibiting Extraordinary Courts (Ausnahmegerichte), Ad-Hoc Courts(Ad-Hoc-Gerichte) and Special Courts (Sondergerichte) 230

Section Ⅳ Hierarchical Dependence (hierarchische Abh?ngigkeit) 232

(1) Control by the Judicial Instances (instanzgerichtliche Urteilskontrolle) 232

(2) The Internal Dependence of Courts 234

Section Ⅴ Manipulation in the Distribution of Work 237

(1) German Protection of the Principle of Statutory Judges 239

(2) The Chinese Practice of Distributing Work 241

Section Ⅵ Conclusions 243

(1) Comparison 243

(2) Opinions on Reform 245

(a) Funding 245

(b) Reform of the Internal Organisation of Courts 246

B Independence of status 248

Chapter Ⅴ Guaranteeing the Status of Judges 248

Section Ⅰ The German System of Guaranteeing the Status of Judges 249

(1) A Summary of Guaranteeing the Status of Judges 249

(a) Preconditions 249

(b) The Ban in Principle on Dismissal, Suspension, Transfer and Retirement 250

(c) Exceptions 251

(2) Dismissal 251

(a) Ipso Iure Dismissal 252

(b) Appropriate Dismissal (Entlassung durch Verfugung) 254

(c) Procedure for Dismissal 256

(d) Effect of Dismissal 257

(3) Ipso Iure Termination of Employment as Judge 259

(a) Termination by Court Decision 259

(b) Termination due to Election to the Bundestag or a Land Legislative Body 260

(4) Relocation (Versetzung) and Suspension (Amtsenthebung) of Judges 261

(a) The Concept of Relocation and Suspension 261

(b) The Subject of Relocation and Suspension (Paragraph 1 of Article 30 of the German Judges Act) 262

(c) The Procedure of Relocation and Suspension 264

(5) Retirement 265

(a) Types of Retirement and Grounds for Retirement 265

(b) Procedure for Retirement 267

(c) Benefits to Retired Judges 269

(6) Secondment (Abordnung) 269

(a) The Meaning of Secondment 269

(b) Procedure and Consequences of Secondment 270

(c) Secondment under Special Circumstances 271

(7) Effects of the Independence of Status on Court Organisation 271

(8) The Independence and Promotion (Bef?rderung) of Judges 272

(9) Salaries 273

(a) Summary 273

(b) The Opinions of the Federal Constitutional Court 273

(c) Latest Developments in Judges Salaries in Germany 274

Section Ⅱ The System of Guaranteeing the Status of Judges in China 275

(1) Removal 276

(a) Grounds for Removal 276

(b) The Procedure of Removal 283

(2) Demotion from a Post 283

(a) Grounds for Demotion from a Post 283

(b) The Procedure of Demotion from a Post 285

(3) Dismissal 285

(4) Disciplinary measures 286

(5) Judicial Independence and the Retirement of Judges 286

(a) Types of Retirement and Grounds for Retirement 286

(b) The Procedure of Retirement 290

(c) Retirement Benefits 290

(6) Guarantee of the Status of Judges and Their Wages and Benefits 291

Section Ⅲ Comparison 292

C Internal Independence 300

Chapter Ⅵ The Internal Independence of Judges 300

Section Ⅰ Social Influences 304

Section Ⅱ Influence of the Party 310

Section Ⅲ Brief Summary 316

Outlook 318

Bibliography 321

Reports / Documents / Interviews 337