Characteristics of judicial power:

1. Neutrality

Neutrality is the first characteristic of judicial power, which is not found in the judicial concepts of China and the United States. difference. If we compare judges to referees, the neutrality of judicial power requires that judges cannot run around the court like some ball game referees. It is difficult for referees who run around the court to be in a neutral position. Referees who are not in a neutral position are prone to make wrong judgments. This is also one of the main reasons why the fairness and accuracy of some ball game referees' penalty results are often easily doubted. The volleyball referee is different. He stands outside the court, in the middle of the court and higher than the net. He may not be able to notice when the players touch the net or hit the ball over the net. However, the referee in the middle can clearly see the details and make the penalty result. Rarely questioned. Therefore, the judge should be like a volleyball referee in the middle of the referee, treating the original defendant and the prosecution and defense impartially, and strive to make accurate judgments without being restricted by positions. If the referee cannot remain neutral, the fairness of the referee's results will be questioned. The emblem of the Chinese court is a scale supported by a Chinese column to show its neutrality. There are also metaphors and images of the blindfolded goddess of justice holding a scale in American judicial culture. In addition, the courts of the two countries have also established recusal systems and strict procedural rules to protect the neutral status of courts and judges. Another aspect of the neutrality of judicial power is its passivity. Judiciary is the last but not the only means to resolve social conflicts. Resolving civil disputes through negotiation, reconciliation, mediation and arbitration should be the first choice of the parties. Do not be casual until the end. Use the country's judicial resources to resolve civil disputes. American courts have even applied the concepts of mediation and reconciliation to criminal proceedings and established a plea bargaining system. In about 90% of criminal cases, prosecutors and defense lawyers or criminal defendants can reach a deal outside the court and settle the case through settlement. It saves a lot of national judicial resources. The passivity of judicial power is also reflected in the fact that judicial organs should not take the initiative to attack, but should wait passively. Generally speaking, the principle of "don't complain and ignore" is implemented. Judges cannot actively provoke litigants to litigate.

2. Independence

The independence of judicial power is necessary to ensure judicial impartiality. Marx has long pointed out: "Judges have no other superiors except the law." "Soldiers have a bounden duty to obey orders, and judges have a bounden duty to obey the law." However, the differences in the political and judicial systems between the two countries make this difference in judicial power impossible. A characteristic that is understood to varying degrees in both countries. As the representative of a country with a "separation of powers" system, the United States protects the independence of its judicial organs through the principle of "judicial independence." Their judiciary is not only completely independent of the legislative and executive agencies, but also enjoys the power of constitutional review and can revoke laws and administrative actions that violate the constitution. Article 126 of our country’s Constitution stipulates: “The People’s Courts independently exercise judicial power in accordance with the law and are not subject to interference by administrative agencies, social groups and individuals.” Therefore, in a strict sense, what our country implements is that courts “exercise judicial power independently” The principle is the independence of judicial power from "administrative agencies, social groups and individuals" within the framework of the People's Congress, that is, independence from the parties, because administrative agencies often become parties to the court in administrative litigation, and social groups and individuals are almost Every day you “act” as a party to the court in civil or criminal proceedings. However, under the system of my country's People's Congress, the judicial power cannot be independent of the legislative power. Our country's judicial organs only have the right to conduct judicial review of the legality of specific administrative acts of administrative agencies (it is currently unable to conduct judicial review of abstract administrative acts, although my country made the above commitments when it joined the World Trade Organization), but has no power to conduct judicial review of the legislative conduct, including judicial review of laws and regulations that violate the Constitution. The judicial organs must not only ensure external independence from the parties, but also be independent from each other internally. Internal independence includes two aspects. First, the relationship between superior and subordinate courts is one of supervision and guidance, rather than a relationship between leaders and subordinates, thus maintaining the independence of the trial level. Therefore, the higher court cannot interfere with the normal trial work of the lower court when the lower court has not concluded the case under its jurisdiction. Unless there are new problems in the application of the law, the lower court submits a request to the Supreme People's Court level by level. The Supreme People's Court will respond to the request. The approval of the case becomes a new judicial interpretation. U.S. courts absolutely prohibit superior courts from intervening in the trial activities of lower courts at any time. Only when the parties file an appeal can the superior court make a decision to change or maintain the judgment of the lower court.

3. Uniformity

Uniformity has two aspects of connotation. One is that judicial power is uniformly exercised by statutory agencies and cannot be shared by other agencies; the other is that judicial interpretation or Guiding precedents unify the adjudication standards of judicial organs at all levels across the country. There is no difference in judicial philosophy between the two countries regarding the unity of judicial power. When our country's laws stipulate comparative principles, the judicial interpretation of the Supreme People's Court can specifically stipulate the understanding and implementation standards of a certain legal concept, such as "larger", "huge" or "especially huge" in the criminal law. " and other concepts, it is necessary to use judicial interpretation to unify the judgment standards of judicial organs at all levels across the country. As a country of case law, the United States mainly uses the precedents of the Federal Supreme Court to guide the trials of similar cases in lower courts in order to unify the judgment standards of courts in various places. In terms of ensuring the unity of judicial power, the biggest enemy faced by both countries is local protectionism.

However, when the United States was drafting the Constitution, it foresaw the possibility of local protectionism intervening in the judiciary. Therefore, when designing the jurisdiction system, it was clearly stipulated that interstate cases cannot be governed by any state court in the state where the original defendant is located. Instead, it is left to the jurisdiction of federal courts. This effectively prevents local protectionism. Judging from the judicial practice of the main members of the WTO, after joining the WTO, they have implemented special jurisdiction or centralized jurisdiction system for cases related to international trade. For example, the United States has a special international trade court, and the French commercial court has also Independent from the ordinary courts, the High Commercial Court in London, England, specializes in international commercial and maritime cases. Therefore, starting from March 1, 2002, the Supreme People's Court decided to implement centralized jurisdiction over foreign-related commercial cases in accordance with the provisions of Article 19 of the Civil Procedure Law, that is, only the intermediate people's courts and the intermediate people's courts in provincial capital cities, a few cities under separate state planning and special economic zones Only basic people's courts can exercise jurisdiction over international commercial cases. The benefits of implementing 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 improving the quality of trials. It is also conducive to the centralized training and improvement of these judges. The most important thing is to maintain the unity of national judicial power and fully fulfill the obligations of the WTO as a member. Of course, due to the implementation of centralized jurisdiction, the number of courts that accept international commercial cases will be limited. Foreign-related commercial cases in remote areas will have to be tried in provincial capitals or other large cities, which will cause litigation inconvenience to the parties. However, the practice of international trade arbitration institutions in my country and other countries shows that when encountering serious interference from local protectionism, parties would rather travel thousands of miles to apply for arbitration at foreign arbitration institutions in Beijing, Shanghai or Shenzhen or even further away. Willing to resolve disputes nearby. It can be seen that as long as a fair judgment result can be guaranteed, the parties will not care about the long distance. What's more, resolving disputes fairly and in one go will save time for the parties involved and avoid the hardship of constant appeals and appeals? During last year’s Two Sessions, many National People’s Congress deputies and CPPCC members put forward good proposals, motions and suggestions, one of the most significant of which was the suggestion to establish a cross-regional civil and commercial court. The proposal proposes that seven inter-regional civil and commercial courts should be established in Northeast China, North China, Central South China, South China, East China, Northwest China and Southwest China to specifically hear civil and commercial disputes across provinces, municipalities and autonomous regions, and two higher civil and commercial courts should be established. Hear the second-instance cases in the above-mentioned seven cross-regional courts. If this proposal is implemented, it can fundamentally solve the problems of local protectionism and inconsistent exercise of judicial power.

4. Professionalism

Professionalism, as a characteristic of judicial power and judicial organs, is taken for granted in all countries around the world, especially in common law countries like the United States. Judges in American courts not only receive rigorous legal education and training, but also have rich judicial practice experience. Most judges of the courts of first instance are selected from outstanding lawyers, and judges of higher courts are also selected from outstanding judges of lower courts, thus ensuring a high degree of professionalism among the judges. But in our country in the era of planned economy, this feature was almost completely ignored. Because the main function of the court at that time was to handle criminal cases, it was sufficient to handle cases based on experience. Most civil cases only involved marriage and family issues, and there were basically no commercial cases, and no specialized legal knowledge was required. Even in the market economy period, civil, commercial and administrative cases have accounted for 90% of the court's workload. The influence of the planned economy period still exists. The phenomenon of people who have not systematically studied legal knowledge becoming judges is still relatively common in grassroots courts. Some grassroots courts The court does not even have a single undergraduate graduate from a formal law school. Another main reason is that my country's legal education was interrupted for more than ten years due to the "Cultural Revolution". There are very few graduates from formal law schools assigned to work in the courts, and it is difficult to support the court's demand for legal professionals. Nowadays, courts are accepting more and more stock and futures cases, foreign-related cases, maritime cases, and intellectual property cases. It is dangerous to be a judge without professional legal knowledge. In modern society, judges have the power of life and death granted by the law, and their professional requirements are no lower than those of hospitals. Doctors in the hospital must be professional medical personnel with specialized knowledge. If someone who has not passed the qualification examination and professional technical level certification is allowed to be a surgeon, I don’t think anyone would dare to risk their lives. With the strengthening of the specialization and professionalization of our country's judge team, the phenomenon of non-professionalization of judges is changing. Taking the Supreme People's Court as an example, there are 5 to 6 juris doctorate supervisors among senior judges and justices, about 50 judges who have obtained doctorate degrees, and more than 160 people who have obtained master's degrees.

5. Openness

The openness of judicial power can also be called democracy. On this point, there is no difference in judicial philosophy between China and the United States, but there are differences in approach. the difference. In the trial process, the United States uses the jury system to improve the transparency of the exercise of judicial power and the participation of the people. The members of the jury are randomly selected from the register of citizens who have not received legal education. However, the jury can only judge the results of the court trial. Relevant facts are determined, such as whether a criminal defendant is guilty or not, and the judge determines the applicable law and specific sentencing.

Our country uses the people's assessor system to allow non-professional judges to participate in the trial of cases and enjoy the same adjudication power of fact determination and legal application as judges. In terms of accepting social and news media supervision, the public, legal experts and news media in both countries can comment on effective judicial decisions. For example, my country Central Television's "Today's Statement" and other news media columns carry out a large number of judicial comments , while carrying out legal propaganda, it also attracted the attention and supervision of judicial work from all walks of life. But the difference is that the credibility of the American judiciary is very high, and the people's legal awareness is also very strong. Therefore, the news media also have a high rate of respect for judicial decisions, and rarely make negative comments on the judgment results that take effect after the final trial. In terms of public trials, there is not much difference between the two countries. Unless otherwise provided by law, in principle, all cases are heard in public. People related to the case and those not related to the case can attend the court with valid certificates. However, courts in the United States do not allow live television broadcasts. The only live broadcast of Simpson's alleged murder of his wife also received strong criticism from all walks of life, believing that the live broadcast would affect the judge's fair judgment. However, judges in both countries believe that openness can effectively curb judicial corruption and that trials under the sun are the basic guarantee for judicial fairness, which fully reflects the democratic value of the modern judicial system.

6. Authoritativeness

As the last and most important common characteristic of the judicial power of the two countries, authority is determined by the previous characteristics. That is to say, the neutrality, independence, unity, professionalism and openness of judicial power determine that it must be authoritative. The legislative body has legislative authority, the administrative agency has administrative authority, and the judicial agency, as the enforcer of laws enacted by the legislative body and the supervisor of administrative law enforcement actions, needs more authority. At this point, the judicial authority of the United States is particularly prominent. When there was a deadlock in the U.S. presidential election, the outcome was ultimately decided by the Supreme Court's decision. Compared with the judicial authority of the United States, our country's judicial authority still faces many challenges. From within the judicial organs, the biggest challenge to judicial authority is the quality of the judge team, that is, the professionalism of judicial power needs to be improved. From the perspective of the external environment for the exercise of judicial power, the neutrality and independence of judicial power need more effective protection.