Tong Zhiwei 

This article [points, the southern weekend special commentator's article (the editorial) form, published in2013Years6Month6On the "Southern Weekend" comments page. Publish original text. I think, this paper reflect the typical agency constitutional faction idea and technology characteristics of the implementation of the constitution. ]

Recently has readThe Supreme Court Dean Zhou Qiang and legal scholars, Media Forum reports andMr. Zheng Xiaolou wrote "judge corruption report", have feeling very much.In China today, the people's courts at all levels, all bear in the trial work restraint judge corruption, the reform of the judicial system, effectively promote the arduous task of judicial justice. The court to resolve these issues is one of the most important premise is true, the people's court in accordance with the provisions of the constitution of the independent exercise of jurisdiction.

The relationship between the Constitution and the court trial activities, people usually emphasize the constitution is the basic code of conduct the courts at all levels of the independent exercise of powers must abide by, this course is on. But now it seems, only if we look at the problem is not enough, should also fully understand the constitutional provisions on the people's court to professionalism of law, and will guide strong security and the method of converting to the independent exercise of powers of the courts at all levels. These Provisions refers to the ConstitutionArticle123The nature of the position of "court is the judicial organs of the state", the126"The people's court in accordance with the law to exercise judicial power independently, shall not by administrative organs, social groups and individuals" and article135The court, procuratorate and the public security organs shall, in handling criminal cases, "the division of responsibilities, cooperate with each other, mutual constraints, to ensure the correct and effective enforcement of the law"Regulations.

However, how to give full play to the relevant provisions of the constitution guarantee and guide? Many people think that, for the implementation of the problem,A few courts can do. This is a partial understanding of the Constitution and the relationship between the courts. China's courts at all levels while not directly apply the constitution, but they must abide by the Constitution and are widely used in accordance with the constitution of the laws, which is an important part of the implementation of the constitution. The Supreme Court and courts at all levels, some involving constitutional issues too wide, they do not easily play a decisive role in them, but at least they can also is one of the main parties to solve this problem, can have positive as.The constitution since the courts at all levels of qualitative to "the judicial organs of the state", the court naturally onlyIn accordance with the will of the state or legal provisions to hear the case, efforts should be made to promote exclude specific cases to the court of law system from outside interference.

Take the constitution as the guarantee and guide the independence of court trial, the key is to implement the relevant provisions of the Constitution in the following several aspects or participate in the implementation of the constitution.

(a) the most difficult for court is according to the Constitution in its dealing with external bodies, but even so, they still should be in accordance with the constitution DOSOMETHINPREVIOUSLYUNRELEASED. This transaction can be divided into three parts:1Straighten out the relationship between the court and the party organization. Our country should deal with the relationship between the law, but in fact no, also lack other determined, transparent, can in the country generally applicable written or unwritten rules. According to the construction of system constitution, straighten out the ruling party and the relationship between the courts, the court did not play a decisive role, they are the important participants, including at least the Supreme Court can actively put forward proposals to straighten out this relationship.

2Straighten out the relationship between the court and the other state organs. The people's congresses at various levels in accordance with legal supervision court not interference, has been relatively institutionalized. But the provisions of the existing many law is in conflict with the constitution, for example, if according to the current Constitution Act, the court's procuratorate should not accept the NPC members questioned, nor should report to the NPC work. I repeated with proven. As to the relationship between the court and the procuratorate, the Constitution does not shun, but the law some link but not by the courts exercise judicial power independently principle completely straighten out. In addition, the relationship between the court and the administrative organ, the Constitution does not shun, but the law was not strictly in accordance with the provisions of the Constitution and the spirit of independence guarantee against administrative organs of the court. The court is now in staffing, budget and other key aspects are greatly influenced by the administrative organ. The Supreme Court can do some research, suggestions and urged efforts to straighten out these relations in accordance with the constitution in.

3The relationship between constitution judicial independence also requires rationalizing the court and individual citizens and groups, including the courts and the relationship between public relations, judicial system and the petition system. For public opinion, the court Dean Zhou Qiang argues that both"Can'tThe public opinion completely indifferent, but not for the public opinion about ", I feel very good. Can not be completely indifferent now discretion range, not about public opinion should be understood as shall not thus breaking the law.

(two) in the framework of the existing constitution, courts, especially the Supreme Court can take measures to rationalize the relationship with a court the judge and the court of other members, to establish a balance between the independent trial and independence of the courts to exercise jurisdiction. The court since the constitutional court, the judge should have the right of independent judgment, there should be a condition according to their own inner conviction, in accordance with the law rather than others, indicating the opinion to adjudicate the case. Therefore, in the case of the trial and adjudication, status and authority of judges should be equal. But in fact, my relationship in the inner court has highly the administrative. So, in the face of this situation, the same level of court, the objective need according to the judicial nature of constitutional provisions, straighten out the caseThe relationship between members, vice president and President of the party members, director of the political department, the president, deputy director and other court. Of course, also need to rationalize the relationship between the judge and the judicial committee, the court party. The relevant provisions of the Constitution and the spirit of the same basic requirements of the court, the judge in the trial of cases are all equal status and authority.

Of course, the provisions of our constitution system of ownership is the trial courts exercise judicial power independently, not judges exercise judicial power independently, therefore, from this point of view, the court as a whole, is first represented by the judicial committee and the president of the. In this way, the nature of the national judicial organs exercise their functions and powers according to the constitution of the members of the equal and independent, and implement the courts exercise judicial power independently, form the tension between the obvious. Therefore, a comprehensive understanding of the constitution, in the trial work of the construction of balanced treatment of the independent status of judges and court equal tension between independent adjudication system, is also the courts, especially the Supreme Court can do contribution to the field. The Supreme Court when necessary, seems to be pushing court organization law, so as to form in the national standard behavior in this connection.

Three.According to the constitution to straighten out the courts at all levels between longitudinal authority relationship, safeguard judicial independence.According to the constitution article123And127In China, between the lower court is the relationship between supervision and being supervised, rather than administrative leadership and leadership. However, for a long time, the relationship between China's courts at all levels have obviously become administration. The specific performance is: the superior court, the Supreme Court from time to time to the lower court sent to the lower court and judge independently in accordance with the internal standard of handling the documents; superior court called the lower court judges, speech, on speech, proposed law outside of the work of the trial; the superior court to examine the lower court members work, carry out and strengthen administrative control; the lower courts in various forms is the case to a higher court to request, the superior court of reply or reply; the superior court to a lower court "guidance", etc.. All of this, is the constitutional court superior subordinate relationship between supervision and being supervised into the administration of the relationship between leaders and staff. The results of the implementation of these practices, is largely destroyed the constitution judicial independence requirements and the law of the trial grade system.

Strict implementation of constitutional courts subordinate relationship is a return to constitutional article123Article,127The provisions of the relationship between supervision and being supervised. In solving these problems, the high court, especially the Supreme Court, should be able to do. Guide the superior court to a lower court trial activities, should be in the second, the retrial or arraignment of specific cases, the form of decision for implementation.

(four) the implementation or promote the implementation of article125The provisions of. The constitution of the regulations:"The court hearing the case of special circumstances, in addition to the provisions of law, shall be heard in public security ";" the accused has the right to defense". Historically, the case or the defendant to obtain a speedy and public trial, the accused in criminal defense, all belong to the basic human rights of the state should guarantee. In Chinese constitution, although they are not recognized in the constitution of the basic rights of citizens2Chapter, but they are also confirmed by constitution, constitutional status so that they truly are the basic rights of citizens. According to the nature of basic rights should be made by the National People's Congress or its Standing Committee to enact legislation to protect.

However, because of the fundamental rights of our citizens have the right to public trial and the right of defense of the lack of enough understanding, the highest organ of state power has failed to ensure the basic rights, and to establish the order in terms of the two aspects, the basic are handed over to the courts at all levels. However, from the actual situation, the open trial should at least include civil liberties, freedom in criminal prosecution lawyers and other rights, the court system has not been implemented well. In addressing these issues, the Supreme Court can use the existing authority distribution pattern, attempt to establish a constitutional requirement of trial in public security system and the criminal suspect's right safeguard system. Happily, the Supreme CourtPresident Zhou Qiang took office, on the deployment of construction of trial, the execution of public, open document open platform three, a public hearing in the case of the implementation of constitutional provisions out of the very system construction value step.

(five) fullyMobilize and use of existing resources restriction clause of the Constitution contains the power, to promote judicial fairness, justice. The current constitution of our country will be democratic centralism as a principle of organization and activities of state organs, institutions, but in some specific areas of powers, also learn and adopt the power restriction principle. The constitution article65Article, article103Members of Standing Committee of National People's Congress on all levels shall act as the administrative organ of the state, the provisions for trial and procuratorial organs, is the constitution recognized academic reference examples of power restriction principle. Similarly, article135Is an example of the power restriction principle. This is a Constitution: "the people's court, the people's procuratorates and the public security organs shall, in handling criminal cases, division of responsibilities, cooperate with each other, mutual constraints, to ensure the correct and effective enforcement of the law."

According to the constitution of the135Shall exercise their functions and powers, court, procuratorate and the public security departments and three body, should restrict each other, and with each other should be limited to join the process. Comprehensive constitution135This provision and article126Regulations on the courts exercise judicial power independently, we should get three points clear conclusion:

1All levels of courts, judges exercise judicial power independently, have rejected the constitution obligation of any form of instructions;

2Members of the courts at all levels have declined to attend to any specific constitution directly affect the result of the case of the joint meeting of external obligations, including the widely criticized the so-called big three conference etc.;

3The trial court in any case, should be independent, not should advance organization consultation and public security departments, the procuratorial organs. For example, must not continue to engage in the kind of innocence of the accused the court not acquitted, but with the procuratorate negotiation let a transaction the case withdrawing. In fact, according to the provisions of the constitution, the procuratorate should also like Courts independently exercise procuratorial power.

Finally I want to say, in the protection of judicial independence, and gradually strengthen the authority and responsibility to judge individual cases, should be the direction of the court. The data shows, the independence of court trial in our country just to the judge's independent trial phase arrangement, did not think it was immobilized in today. The independence of judges exercise judicial power is the inherent requirement of justice the professional nature of activities. The judge's independent trial reflects the world maintain common experience and constitutional justice arrangements. Of course, to implement must have a technical very ingenious arrangement of judge independence of judicial system, including to fully reflect the verdict court judge individual opinion based production methods. The judge's independent trial and the implementation of the personal responsibility and peer, effective public supervision, in two different aspects of the same process. The judge's independent trial in our country although regulations is not the system of the constitution, but the supreme organ of state power and the Supreme Court should pay attention to the development trend of justice.

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