Gao Zhikai

Born in 1962, he is currently the senior vice president, general counsel and company secretary of China National Offshore Oil Corporation (China) Co., Ltd. Mr. Gao graduated from Soochow University in 1981 with a bachelor's degree in English literature; from Beijing Foreign Studies University in 1983 with a master's degree in English literature; in 1990 from Yale University Graduate School and received a master's degree in political science; from Yale Law School in 1993. Received a Juris Doctorate (J.D.). Mr. Gao is a registered lawyer in the State of New York, USA. He was a financial advisor licensed by the Securities and Futures Commission of Hong Kong from 1994 to 1999. Mr. Gao has extensive work experience, and has worked for companies and institutions including the Ministry of Foreign Affairs of China (Beijing), the United Nations Secretariat (New York City), Milbank Tweed Hadley & McCloy Law Firm (New York City), and Morgan Stanley Investments Bank (Hong Kong), China International Capital Corporation (Beijing and Hong Kong), PCCW, Henderson (China) Investment Co., Ltd., etc. From 1999 to 2000, Gao Zhikai served as the China Affairs Advisor to the Hong Kong Securities and Futures Commission.

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Gao Zhikai: From judicial power to legal power: Tailor-made clothes for court judges

As our country further deepens reform and strengthens opening up to the outside world, legal work The importance of law is increasing day by day, the necessity of establishing and governing the country according to law is becoming increasingly obvious, and the role of courts and judges is also constantly strengthening. Although the definitions of titles such as "court" and "judge" are basically the same between China and developed countries with the rule of law, the definition and interpretation of "judicial power" are very different and almost incomparable.

The definition of judicial power is vague

In developed countries with the rule of law, the definition of "judicial power" is very clear and its status is very important. It specifically refers to the handling of relevant disputes by courts and judges in accordance with the law. Power to conduct trials and other related powers.

When my country translated legal documents from Western countries at the end of the Qing Dynasty and the beginning of the Republic of China, the definition of "judicial power" followed the original text, specifically referring to the judicial power of courts and judges, and was compared with "executive power" and "legislative power". Even so, because in our country's long feudal society, there was no self-contained system of courts and judges. Government officials often held multiple positions and took over administrative and judicial powers. Therefore, the imported term "judicial power" does not exist in our country. The exact counterpart is still an erratic concept in my country's legal theory and practice. For more than half a century, my country's politics, economy, society and other aspects have undergone earth-shaking changes. New titles continue to emerge, and the definitions, explanations, cognition levels and usage methods of many traditional titles are also changing. "Judicial power" is a typical example. Along with the development of New China from a poor new regime to a world-famous and important power, the focus of our country's judicial work and the definition and interpretation of "judiciary" are also constantly changing.

As for "judicial power", our country can be divided into broad sense, middle sense and narrow sense. Judicial power in a broad sense includes the power of trial, prosecution, investigation, prison, lawyer, notarization, arbitration, etc. Judicial staff include staff of courts, procuratorates, public security agencies, national security agencies, judicial administrative agencies and other departments. Zhongyi judicial power refers to the judicial power exercised by the public security organs, procuratorates and courts, commonly known as the "one-stop service of public security, prosecution and law". Even if we take the currently generally accepted narrow sense of judicial power, judicial organs also include courts and procuratorates. Judicial power also includes the judicial power of courts and the procuratorial power of procuratorates. The current common dictionary explanation is "judiciary refers to the procuratorial organs or courts in accordance with the law." Conduct investigation and trial of civil and criminal cases." Internationally, there are essential differences between the judicial power of courts and judges and the procuratorial power of prosecutorial agencies. Referring to them collectively as "judicial power" can easily cause unnecessary confusion and misunderstanding. Due to various reasons, the definition of "judicial power" in our country is either vague or ambiguous, and its precise meaning is difficult to determine. This has caused a lot of unnecessary confusion and inconvenience to our country's legal work and legal reform.

Coincidentally, in our country's daily work and life, there are many titles and idioms that make the definitions of "judiciary" and "judicial power" more ambiguous or even contradictory. For example, our country's Ministry of Justice does not have "judicial power" and is not considered a "judicial organ"; "China Justice" is not a magazine of the Ministry of Justice, but a magazine of the courts; the "National Judicial Examination" held by the Ministry of Justice is not a judicial Instead of the ministry’s recruitment examination, it applies to judges, prosecutors and lawyers; the latest revision of the Securities Law will also add “quasi-judicial powers” ??to the China Securities Regulatory Commission, and so on.

It is worth noting that the word "si" in "judicial power" contains strong active meanings such as "execution, presiding, operating, operating", such as "driver, stoker, commander, division number" Wait, this is actually incompatible with the passive characteristic of courts and judges that "no lawsuits will be brought to court". In addition, the court emblems of many countries in the world are marked with a scale. Some court emblems are marked with a woman with her eyes covered holding a scale, which symbolizes the fairness and justice of the court and the judge. This is the coat of arms of the International Court of Justice.

Using judicial power to specifically refer to judicial power

In view of the current confusion in the definition and interpretation of "judiciary" and "judicial power", and considering the increasing importance of legal work, the author It is believed that it is necessary to keep pace with the times, simplify the complex, remove the complex and make it clear, and redefine some major definitions and concepts in our country's legal work. Therefore, it is necessary to create a new term specifically for courts and judges and their jurisdiction to get rid of the many inconveniences caused by the current vague definitions.

The author would like to suggest creating a new term "judiciary power" in Chinese to specifically refer to the judicial power and other corresponding powers of courts and judges, corresponding to the "Judiciary Power" of Western developed countries. . "Heng" means "measurement"; "Law" refers to law; "Hengfa" specifically refers to courts and judges using law as the yardstick to measure and determine the legal relationships and rights and interests between parties through legal procedures and means, and make decisions. A legally binding judgment; "equitable rights" specifically refers to the unique equitable rights and other corresponding powers of courts and judges. "Weighing the law" symbolizes the fairness and justice of the courts and judges, while "trial" and "judgment" are the means of weighing the law. Compared with the word "si" in "judiciary", the word "heng" in "hengfa" can more accurately express the main responsibilities and work characteristics of courts and judges. Related terms may also include "equity personnel" (referring to judges, judge assistants and other relevant personnel of the court); "equity system" (referring to the court system); "equity reform" (referring to the courts and judge system) Reform); "China Hengfa" magazine, "China Hengfa News", etc.

At present, my country's "judicial power" also includes the "procuratorial power" of the procuratorate. The author would like to suggest that "procuratorial power" be expressed separately and no longer be included in the "judicial power" in general. Accordingly, the sentence "promote judicial reform and ensure institutionally that judicial organs can independently and impartially exercise judicial and procuratorial powers in accordance with the law" can be adjusted to "promote judicial reform and procuratorial reform and ensure institutionally that judicial and procuratorial The agencies shall exercise their judicial and procuratorial powers independently and impartially in accordance with the law.” For another example, the phrase "improve judicial efficiency and ensure fair administration of justice" can be adjusted to "improve judicial efficiency and procuratorial efficiency, and ensure fairness and justice and impartial procuratorial work." And so on, and so on.

Let the judiciary return to its original meaning

After the introduction of the new term "justice", since the two concepts of "justice" and "procuratorial work" have become the same as the title "judiciary" However, the concept of "Ministry of Justice" has been widely used and generally accepted. The author would like to suggest that the title "Judiciary" can be continued to be retained in the future, but the title "Judiciary" should be used the same as "Ministry of Justice". The concept of "justice" is equated to the concept of "Ministry of Justice" and its related concepts. In this way, "China Justice" will become a newspaper of the Ministry of Justice; "judicial organs" will refer to the Ministry of Justice and its relevant departments; "judicial personnel" will refer to the Ministry of Justice and its relevant personnel; "National Judicial Examination" can be adjusted to " National Law Examination”; and so on. This adjustment of the concept of "judiciary" can also reserve space for future functional adjustments of the Ministry of Justice.

In addition, public security, armed police, customs, taxation, border defense and other agencies can be collectively referred to as "law-enforcement agencies" (law-enorcemntagencies).

In this way, under the People's Congress (the "legislature"), the highest organ of state power in our country, there are the "legal organs" (i.e. the courts) and the "procuratorial organs" (i.e. the procuratorates). Under the State Council, there are "judicial agencies" (i.e. the Ministry of Justice) and various "law enforcement agencies" (including public security, armed police, customs, taxation, border defense and other agencies). This kind of innovation and adjustment in the title will help clarify some unnecessary confusions in my country's current legal concept, help our country integrate with international standards, and help our country's further reform, opening up, and peaceful development.

(The author is a J.D. from Yale Law School and a director of the China International Cultural Exchange Center)

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