20 Indiana Journal of Global Legal Studies 185 (2013)
This article shows that Chinese adjudication is in a dilemma: on one hand, the judicial discretion is extensive; on the other hand, public opinion supervision is adopted to control the discretion. In fact, the public opinion and judicial discretion could co-exist and compliment one another. There is no objective and stable framework regulating both. There are attempts aiming to completely negate the judicial discretion, such as computer sentencing. A strange logic of judicial reform exists in China: either eliminating the judicial discretion through such mechanical methods as computer sentencing in the hope to guarantee judgment in conformity with the law; or resorting to the arbitrary external power intervention or public opinion supervision to constrain the judicial discretion, resulting in a new form of discretion.
In the author's opinion, the critical nexus of institutional designing of good governance is an independent judiciary following the principle of procedural fairness. Therefore it is necessary for China to first establish the courts' authority through judicial reforms, laying the institutional foundation of rule-of-law. Then comes the supervising and checking of the legality of the government power. More importantly, an independent judiciary functions as a neutral arbiter of conflicting interest groups and a third-party enforcer of contracts, which enhances the predictability of market transactions and safeguards fair competition.
Compared with structural shift of political power, judicial reform is relatively less difficult and more practical. If judicial reform dooms to fail, how is it possible for a comprehensive political reform to succeed? It is admitted that the judicial reform is subject to the overall power arrangements, nevertheless, it is still probable that we resort to judicial reform, as a breakthrough or reference, a gradual switch on the transformation of political power structure, centering on fundamental requirements of rule-of-law. This roadmap, of course, has preconditions, that is, that the ruler has adequate practical rationality and that society reaches consensus on rule-of-law.
Globalization and the Law: The Next Twenty Years. Indiana University Maurer School of Law, Bloomington, Indiana, April 5-6, 2012
"The Judicial Reform in China: The Status Quo and Future Directions,"
Indiana Journal of Global Legal Studies: Vol. 20
, Article 7.
Available at: http://www.repository.law.indiana.edu/ijgls/vol20/iss1/7