1, neutral

Neutrality is the first characteristic of judicial power, which has no difference between Chinese and American judicial concepts. If judges are compared to referees, the neutrality of judicial power requires judges not to run all over the court like some ball referees, so it is difficult for judges who run all over the court to be in a neutral position, and judges who are not in a neutral position are prone to make wrong judgments, which is one of the main reasons why the fairness and accuracy of the results of some ball referees are often easily doubted. Volleyball referees are different. He stood outside the court, in the middle of the court and above the net. Players may not realize when hitting the ball over the net or touching the net, but the referee in the middle can see through the details and the penalty result is rarely questioned. Therefore, judges should judge in the middle, just like volleyball referees, treat the original defendant and both the prosecution and the defense fairly, and strive to make accurate judgments without being limited by their own positions. If the referee cannot remain neutral, the fairness of the referee's result will be questioned. The emblem of China's courts is a balance set up by China watch to show neutrality. There are also many important metaphors and images of the blindfolded goddess of justice in American judicial culture. In addition, the courts of the two countries also ensure the neutrality of the courts and judges by establishing a challenge system and strict procedural rules. Another aspect of the neutrality of judicial power is its negativity. Justice is the last means to solve social contradictions, but it is not the only means. Consultation, mediation and arbitration are the first choice for the parties to solve civil disputes. Until the end, the country's judicial resources should not be used to solve civil disputes casually. American courts even applied the concept of mediation and reconciliation to criminal proceedings and established a plea bargaining system. About 90% of criminal cases can be settled out of court by prosecutors and defense lawyers or criminal defendants, which greatly saves the judicial resources of the country. The passivity of judicial power is also reflected in that judicial organs should not take the initiative to attack, but should wait passively. Generally speaking, the principle of non-prosecution and disregard is implemented, and judges cannot take the initiative to instigate the parties to go to court.

2. Independence and self-reliance

The independence of judicial power is a necessary condition to ensure judicial justice. Marx pointed out long ago: "A judge has no superior except the law." "Obeying orders is the duty of soldiers, and obeying the law is the duty of judges." However, the differences in political and judicial systems between the two countries make this feature of judicial power understood in different degrees in both countries. The United States, as a representative of a country with a "separation of powers" system, guarantees the independence of its judicial organs through the principle of "judicial independence". Their judicial organs are not only completely independent of the legislative and administrative organs, but also enjoy the right to review the violation of the Constitution, and can revoke the laws and administrative acts that violate the Constitution. Article 126 of China's Constitution stipulates: "The people's courts independently exercise judicial power in accordance with the law and are not subject to interference by administrative organs, social organizations and individuals." Therefore, in a strict sense, China implements the principle of "independent exercise of judicial power" by courts, that is, the independence of judicial power to "administrative organs, social organizations and individuals" within the framework of the National People's Congress, that is, the independence of parties, because administrative organs often become parties to courts in administrative litigation, and social organizations and individuals "act as" parties to courts almost every day. However, under the people's congress system in China, judicial power cannot be independent of legislative power. China's judicial organs only enjoy judicial review of the legality of specific administrative acts of administrative organs (abstract administrative acts can not be reviewed at present, although China made the above commitment when joining the World Trade Organization), but they have no right to conduct judicial review of the actions of the legislature, including laws and regulations that violate the Constitution. The judiciary should not only ensure external independence from the parties, but also internal independence from each other. Internal independence includes two aspects. First, the relationship between the higher and lower courts is supervision and guidance, not the relationship between the leader and the led, and the independence of the trial level is maintained. Therefore, the higher court cannot interfere with the normal trial work of the lower court before the lower court has concluded the case under its jurisdiction. Unless there are new problems in the application of the law, the lower court will report to the Supreme People's Court step by step, and the Supreme People's Court's request for approval of the case will become a new judicial interpretation. American courts absolutely prohibit superior courts from interfering with the trial activities of lower courts at any time. Only when the parties appeal can the higher court make a decision to modify or maintain the judgment of the lower court.

Step 3 be consistent

Unity has two connotations. First, judicial power is uniformly exercised by statutory organs and cannot be shared by other organs. The second is to unify the judgment standards of judicial organs at all levels in China with judicial interpretations or guiding precedents. On the unification of judicial power, there is no difference in judicial ideas between the two countries. When the principle of comparison is stipulated in Chinese laws, the Supreme People's Court's judicial interpretation can specify the understanding and implementation standards of a certain legal concept, such as the concepts of "large amount", "huge" or "extremely huge" in criminal law, and it is necessary to unify the judgment standards of judicial organs at all levels in the country with judicial interpretation. As a case law country, the United States mainly guides the lower courts to hear similar cases through the case law of the Federal Supreme Court, so as to unify the judgment standards of local courts. In ensuring the unification of judicial power, local protectionism is the common enemy of both countries. The United States foresaw the possibility of local protectionism interfering with the judiciary when it first formulated the Constitution, so when designing the jurisdiction system, it was clearly stipulated that interstate cases should be under the jurisdiction of federal courts instead of any state courts in the state where the original defendant was located. This effectively prevents local protectionism. Judging from the judicial practice of the main members of the WTO, after China's accession to the WTO, a special or centralized jurisdiction system has been implemented for cases related to international trade. For example, the United States has a special international trade court, the commercial court in France is also independent of ordinary courts, and the senior commercial court in London, England specializes in accepting international commercial and maritime cases. Therefore, from March 1 2002, the Supreme People's Court decided to exercise centralized jurisdiction over foreign-related commercial cases according to the provisions of Article 19 of the Civil Procedure Law, that is, only the intermediate people's courts and grass-roots people's courts in provincial capital cities, a few cities with separate plans and special economic zones can exercise jurisdiction over international commercial cases. The benefits of centralized jurisdiction over international commercial cases are obvious. It is not only conducive to curbing local protectionism and safeguarding the independent judicial power of the court, but also conducive to concentrating excellent judicial forces to professionally try international commercial cases and improve the quality of trials, and it is also conducive to centralized training and improvement of these judges. The most important thing is to safeguard the unity of national judicial power and fully fulfill the obligations of WTO as a member. Of course, after centralized jurisdiction, the number of courts accepting international commercial cases will be limited, and foreign-related commercial cases in remote areas will have to go to provincial capitals or other big cities for trial, which will bring inconvenience to the parties. However, the practice of international trade arbitration institutions in China and other countries shows that in the case of serious interference from local protectionism, the parties would rather travel to Wan Li to apply for arbitration in foreign arbitration institutions in Beijing, Shanghai or Shenzhen or even further away than to settle disputes nearby. It can be seen that as long as the fair referee results can be guaranteed, the parties will not care about the long journey. What's more, a one-time fair settlement of disputes will save time and avoid the hardship of constant complaints and complaints? During the two sessions last year, many NPC deputies and CPPCC members put forward good proposals, motions and suggestions, the most important of which was the proposal to establish a cross-regional civil and commercial court. The proposal proposes to set up seven cross-regional civil and commercial courts in Northeast China, North China, Central South China, South China, East China, Northwest China and Southwest China to hear civil and commercial disputes across provinces, municipalities directly under the Central Government and autonomous regions, and to set up two high-level civil and commercial courts to hear the second-instance cases of the above seven cross-regional courts. If this proposal is implemented, the problem of disunity between local protectionism and judicial power can be fundamentally solved.

4. Professionalization

Professionalism, as the characteristics of judicial power and judicial organs, is taken for granted in all countries in the world, especially in countries with common law system like the United States. Judges in American courts have not only received strict legal education and training, but also have rich experience in judicial practice. The judges of the court of first instance are mostly produced from excellent lawyers, and the judges of the higher courts should also be selected from the excellent judges of the lower courts to ensure the high professionalism of the judges. However, in the era of planned economy in China, this feature was almost completely ignored. Because the function of the court at that time was mainly to deal with criminal cases, it was enough to handle cases by experience. Most civil cases only involve marriage and family issues, and there are basically no commercial cases, and no special legal knowledge is needed. Even in the market economy period, civil and commercial cases and administrative cases have accounted for 90% of the court's workload, and the influence of the planned economy period still exists. It is common for people who have not systematically studied legal knowledge to be judges in grass-roots courts, and some grass-roots courts do not even have a regular law school graduate. Another main reason is that legal education in China was interrupted for more than ten years due to the Cultural Revolution, and few graduates from regular law schools were assigned to work in the courts, which made it difficult to support the court's demand for legal talents. At present, there are more and more stock futures cases, foreign-related cases, maritime cases and intellectual property cases accepted by the courts. It is dangerous to be a judge without professional legal knowledge. In modern society, judges hold the power of life and death entrusted by law, and the professional requirements for judges will not be lower than those of hospitals. Doctors in hospitals must be professional medical personnel with specialized knowledge, so that those who have not passed the qualification examination and professional technical level certification can be surgeons. I don't think anyone dares to joke about his life. With the strengthening of the specialization and professionalization of judges in China, the phenomenon of unprofessionalism of judges is changing. In the Supreme People's Court, for example, among senior judges and justices, there are 5-6 law doctoral supervisors, about 50 judges have obtained doctoral degrees, and more than 60 people have obtained master's degrees.

Step 5 make it public

The openness of judicial power can also be called democracy. At this point, there is no difference in judicial ideas between China and the United States, but there are differences in practice. In the United States, the jury system is used to improve the transparency of judicial exercise and public participation. The members of the jury are never randomly selected from the civil register without legal education, but the jury can only make a ruling on the relevant facts of the court trial, such as whether the criminal defendant is guilty or not, and the judge will make a ruling on the applicable law and specific sentencing. In China, through the people's jury system, non-professional judges are allowed to participate in the trial of cases and enjoy the same judicial power as judges in ascertaining facts and applying laws. In accepting the supervision of the society and the news media, the people of the two countries, legal experts and the news media can comment on the effective judicial judgment. For example, CCTV legal reports and other news media columns have launched a large number of judicial comments, which not only publicize the legal system, but also attract the attention and supervision of all sectors of society on judicial work. However, the difference is that the credibility of the judicial organs in the United States is very high, and the people's legal awareness is also very strong, so the news media also have a high respect rate for judicial decisions, and rarely make negative comments on the judgment results that take effect after the final trial. There is not much difference between the two countries in terms of public trial. Unless otherwise provided by law, in principle, all cases are heard in public, and people who are related to or unrelated to the case can appear in court with valid certificates. However, American courts do not allow live TV broadcast, and the only live broadcast of Simpson's alleged wife murder case has also been strongly criticized by all walks of life, arguing that live broadcast will affect the judge's fair judgment. However, judges in both countries believe that openness can effectively curb judicial corruption, and sunshine trial is the basic guarantee to realize judicial justice, which fully embodies the democratic value of modern judicial system.

6. Authority

As the last and most important feature of the judicial power of the two countries, authority is determined by its previous characteristics. In other words, the neutrality, independence, unity, professionalism and openness of judicial power determine that it must be authoritative. The legislature has legislative power and the executive has executive power. Judicial organs, as the executors of legislation and the supervisors of administrative law enforcement, need more authority. At this point, the judicial authority of the United States is particularly prominent. When there is a deadlock in the US presidential election, it is finally decided by the US Supreme Court. Compared with American judicial authority, China judicial authority still faces many challenges. From the inside of the judiciary, the biggest challenge to judicial authority is the quality of judges, that is, the professionalism of judicial power needs to be improved. Judging from the external environment of judicial power, the neutrality and independence of judicial power need to be more effectively guaranteed.