Judicial Papers 1 On the Supervision of News and Public Opinion and Judicial Independence
In contemporary society, the development of newspapers, radio, television, internet and other mass media provides favorable channels for the supervision of news and public opinion. The legal profession in China generally recognizes the legal supervision of public opinion. Public opinion legal supervision refers to the legal supervision carried out by the news media, which is an indispensable kind of legal supervision in a broad sense, and can play a role in preventing minor delays and nip in the bud. [1] Therefore, there is no essential conflict between news public opinion supervision and judicial independence in theory, on the contrary, it is a complementary relationship.
But the actual situation is far from it. Journalists' pursuit of social hotspots prompted them? Press freedom? Lay the foundation for continuous participation in all aspects of political, economic, cultural and social life. And then what? The contents contained or displayed in the judicial process, as well as the wonderful performance of the judicial process itself, have eternal appeal to the media; The facts and problems derived from the judicial office have always been the focus of media attention? [2]。 The powerful power of the media exposes such problems as offside function and acting as a judge in the report on the judicial process. This powerful public opinion guiding function will cause different degrees of pressure on judicial trials and impact the independence and authority of the judiciary. Therefore, the judiciary asked the news media to come out and resist. Shut up? But this behavior does violate the public's right to know.
Judicial independence and freedom of the press are two basic rights endowed by the Constitution. Why do they form such a strong conflict in practice? The author will analyze it from the following aspects.
First, the conflict between judicial independence and news supervision by public opinion.
Judicial independence is an important principle stipulated by the Constitution and laws of our country. Article 126 of the Constitution stipulates that the people's courts shall conduct trials in accordance with the law and shall not be interfered by administrative organs, social organizations or individuals. In addition, Article 4 of the Organic Law of the People's Courts also stipulates that the people's courts conduct trials independently and only obey the law. Therefore, judicial independence should exclude the influence of interests and emotions, and naturally, it should also exclude the influence of news media, and maintain awe of the law and loyalty to the facts of the case. At the same time, an old English proverb says: Justice should not only be realized, but also be realized in a visible way. ? And then what? Visible way? It is necessary for the news media to report the case and put the process of justice realization in the public eye. While fully protecting citizens' right to know, its supervision by public opinion plays a positive role in promoting judicial justice. However, with its powerful intervention power, the media constantly invaded the judiciary, and finally developed from news public opinion supervision to? News trial? .
? News trial? This is an exotic product, which has attracted extensive attention of scholars since it was introduced into China. ? News trial? The meaning of ""refers to the existence of news media in advance, which goes beyond the normal judicial process to report the reported object. Trial presupposition? . [3] From the previous cases to the Yao Jiaxin case and Li case in recent years, every case has been poured into excessive enthusiasm by the media ―― when the news media reported news and commented on right and wrong, they lost their objective and fair position on criminal cases before or during the trial, and expressed or implied that they advocated or opposed the defendant's crime, or what kind of crime they committed, which more or less affected the trial. [4] It is precisely because of the powerful guidance and evaluation function of the news media that the judicial organs are under the pressure of public opinion in the process of hearing cases, and the final judgment is more or less influenced by public opinion.
Second, the significance of news supervision by public opinion
(A) news supervision by public opinion is conducive to the realization of judicial justice.
? There is no justice without publicity? . [5] Article 125 of our Constitution also stipulates that the people's courts shall hear cases in public, except for special circumstances stipulated by law. It is with the supervision of news and public opinion that the judicial power of the court operates in the sun, effectively curbing the improper content in the exercise of judicial power and promoting the realization of judicial justice.
(two) the supervision of news and public opinion is conducive to preventing judicial corruption.
Judicial corruption is always an unavoidable problem in the judicial process. Judicial corruption not only damages the vital interests of the parties and the judicial authority of the country, but also erodes the public's confidence in the judicial system. The famous American reporter pointed out? Sin, meanness and corruption are most afraid of newspapers, so no law, ethics and system can compare with newspapers. ? The news media's reports on judicial corruption can often arouse the general concern of the public, and at the same time attract the attention of relevant departments. The joint efforts of the government and the people have ruined the reputation of corrupt elements. Such a large cost of corruption has effectively prevented judicial corruption.
(C) conducive to promoting judicial reform
The analysis and comments of the news media on the judicial system provide valuable reference opinions for judicial reform, which is helpful to comprehensively deepen judicial reform.
Third, the restriction of judicial independence on freedom of the press.
Judicial independence includes judicial independence and procuratorial independence. Article 126 of the Constitution stipulates that the people's courts shall exercise judicial power independently in accordance with the law and shall not be interfered by administrative organs, social organizations or individuals. Article 130 stipulates that the people's procuratorates shall exercise procuratorial power independently in accordance with the law and shall not be interfered by any organ, social organization or individual. From this perspective, the freedom of the press is not absolute, and the exercise of legal supervision by the news media also needs to be restricted to a certain extent.
The independence of the judiciary excludes the freedom of the press to some extent.
Judicial trials are very professional. What do judges need to rely on? Reason and conscience? Be loyal to the law and facts, and make a cautious and fair judgment after eliminating any form of interference. The news media, on the other hand, make unfair judgments on cases through articles with strong feelings, which forms a kind of pressure of public opinion in society, becomes an obstacle to judges' decision-making, and makes them lose their position as independent judges.
(B) the contradiction between the judge's trial and news gathering and editing
There is a certain degree of opposition between judicial trial and news editing. Because judicial trial is related to people's life and death and the commitment of rights and obligations, it must be a process of rational judgment; The propaganda of news media has strong emotional factors, often mixed with moral feelings, and its language also emphasizes originality and gripping. Therefore, for the same issue, judges and journalists have different concerns based on different positions and perspectives, which will inevitably lead to opposition and conflict in the process of news public opinion supervision.
Fourth, the balance between public opinion supervision and judicial independence.
Lucas has profoundly revealed the professionalism required by the judicial office: a country that values justice, law and freedom is bound to be an important sense of inequality, that is, judges must occupy a position of real power, and not everyone has the ability to become a judge. ? Therefore, the news media should realize its offside behavior in news trial and return to the status of legal supervision subject. Seeking the balance between news trial and judicial independence should be solved from the following aspects:
(1) Strengthen legislative norms and fill legal gaps.
The root of the conflict between them lies in the lack of legal norms to coordinate their relationship. The legislature can learn from relevant overseas experience and combine with China's current actual situation, formulate relevant laws and regulations, set a reasonable boundary for the supervision of news public opinion, and eliminate the contradictory relationship between the judicial organs and the news media at present.
Strengthen journalists' legal knowledge and guide them to abide by professional norms.
By strengthening their relevant legal knowledge and guiding them to abide by professional norms, they can abide by the law from the heart, safeguard the independent position of the judiciary, strictly abide by professional ethics and norms, avoid unfair reporting of cases, and be communicators of facts instead of emotions.
(3) Strengthen the communication between judicial organs and news media.
There is no fundamental opposition and conflict between the two. Therefore, we should sit down and communicate with the media on key issues such as how to intervene, how to report and how to comment, * * * discuss solutions together, formulate a rule recognized by both parties, regulate the behavior of both parties according to the rules, and promote judicial civilization and justice.
On judicial initiative and judicial restriction
First, the basic connotation of judicial initiative and judicial restraint
What does the so-called judicial activism mean? A judicial theory that encourages judges to get rid of strict compliance with judicial precedents, allows judges to consider personal views on public policies and take other factors as guidance when making judgments, and protects or expands individual rights that are inconsistent with precedents or legislative intentions through judgments. Following this theory will lead to the result that some judgments infringe on legislative power and administrative power. ? [ 1]
Blake's legal dictionary defines it this way, and judicial activism refers to:? In the specific process of hearing cases, judicial organizations do not follow precedents, but follow the literal meaning of written laws. This is a judicial concept and an action based on this concept. When the judiciary exerts its judicial initiative, its interpretation of the law tends to respond to the current social reality and the new trend of social evolution, rather than sticking to the old written legislation or precedents to prevent unreasonable social consequences. Therefore, judicial initiative means that courts create and supplement laws through legal interpretation. ? [2]
On the contrary, in the process of law enforcement, judges should handle cases in strict accordance with established rules, oppose the role of judges as legislators, and oppose the integration of judges into personal values and his own understanding and belief in the law. This is called judicial passivism. Scully thinks: The so-called law-abiding doctrine refers to an ethical attitude, which regards whether to follow the rules as the standard to judge moral behavior and regards moral relationship as the relationship between rights and obligations determined by the rules. Just like all strongly felt and widely accepted moral legalism is not only reflected in personal behavior, but also in philosophy, political ideology and social system. ? [3] Its essence is that the legal issues involved in social life deviate from the existing legal provisions and precedents, and should be solved through legislation, rather than the judicial organs taking the initiative to change the existing provisions. What is the appearance? Judicial self-restraint or self-restraint? [4]。
Judicial activism and judicial restraint are not directed at specific laws, but the creative boundary enjoyed by judges in legal interpretation under the background that existing legal provisions or precedents are inconsistent with the new trend of real life. Judicial activism emphasizes that in order to achieve justice, judges can break through the restrictions on judicial power to a certain extent on the premise of observing the basic principles and concepts of law, and are not bound by existing laws and precedents; Judicial restraint emphasizes that judges can only try in strict accordance with the law, but can only obey the law. Statutory law is the only source of law, and legal interpretation is limited to literal interpretation, trying to explore the original intention of legislators. ? On the other hand, judicial restraint tends to emphasize the limitation of judicial power in democratic countries and limit judges' discretion in various ways? [5]2。 So? Judicial activism or judicial restraint is a question of how much freedom a judge enjoys or how much he is restricted in exercising his discretion. , that is? The difference between initiative and restraint is not so much a problem of different nature as a problem of different degrees. ? [5]2-3
Second, the respective value analysis and limitations of judicial activism and judicial restraint.
(A) the value analysis and limitations of judicial initiative
In today's society, relying solely on legal provisions to deal with cases is far from meeting the litigation needs of society. The fixity and limitation of the provisions often make it difficult for judicial judges in China to handle certain cases. What if in order to complete all the cases? Is there a law to follow? Constantly modifying or adding or subtracting legal provisions will not only cause the turbulence of the concept of social behavior rules, but also greatly damage the prestige of legal stability. Judicial activism has many applicable values in the process of handling legal events, but it also has certain limitations.
First of all, judicial initiative is closely related to the quality of judges themselves. Over the years, jurists in China have gradually changed from illegal experts to legal persons, that is to say, most of them have received some legal knowledge and training in legal practice and have a certain reserve of legal knowledge. When there are no legal provisions that can be directly followed in the case, we can use appropriate legal methods in combination with our own legal skills, analyze the case through certain legal reasoning, legal interpretation, legal continuation and legal discovery, and seek the most appropriate provisions in the existing laws and regulations to deal with the case. However, because there are no directly detailed laws and regulations to follow, the judicial judge in the same case may produce completely different judgments because of the different legal qualities of individuals, which often leads to judicial instability, affecting the predictability of the law and guiding people's behavior.
Secondly, the judicial initiative has a certain relationship with the ideological and moral value tendency of the judiciary. When judicial organs use judicial activism as a free weapon, a high proportion of legal decisions are in the hands of judges. When judges tend to be public order and good customs, or are mechanically led by public opinion, or tend to be power rather than right, the verdict of a case will be completely different, or even quite different. The referee may give consideration to the interests of many parties and decide the case in a balanced way, or it may produce a result that makes the public stunned, or a result that conforms to public opinion. Therefore, whether the judicial initiative can be truly realized is inseparable from the ideological and moral tendency of the judiciary.
Thirdly, judicial initiative requires judges to have rich judicial experience and rigorous dialectical logic thinking. In our country, judges are not experienced lawyers like the United States, but graduates of school law departments or other less authoritative legal persons. Due to the lack of rich legal experience or meticulous thinking logic, it is easy to appear omissions or deficiencies in judging cases, which affects the quality of legal application. The alienation of legal thinking, the alienation caused by the change of legal thinking position and the degree of legal operation skills will all affect the exertion of judicial initiative and limit its scope and degree.
Although the exertion of judicial initiative can make up for some loopholes and ambiguities in China's laws, it can not be used at will. Only when the above conditions are relatively complete, can we give full play to its initiative, make it have legal essence, and make the judiciary active and authorized rather than authorized. This measure can help the judicial organs scientifically, effectively, fairly and legally at the assembly point of the case, and give the parties a legal judgment to solve the case, so as to persuade the parties, punish the criminals and deter other members of society.
(B) the value analysis and limitations of judicial restraint
When judicial initiative realizes its legal value, judicial restraint often affects the exertion of judicial initiative to a certain extent, or inhibits the excessive exertion of judicial initiative.
Judicial restraint emphasizes that the judge should ask the legislator's original intention in the process of interpretation, which is a respect for the rules [6]. Judicial restraint requires judges to be loyal to the law; Self-denial and law-abiding, honesty and self-discipline, respect for legal rules; We should keep a modest attitude towards legislative power, executive power and other social public powers. Although judicial restraint is indispensable in judicial activities, there are still many limitations in actual operation.
First, judicial restraint must be combined with China's national conditions and judicial development. In China, judicial restraint is quite necessary: China has a large population and complex folk customs, and the law enforcement in some areas is still relatively backward, or local control is more serious. If we only pay attention to judicial initiative and ignore judicial restraint when dealing with legal issues, it will have serious consequences. It is very likely that the holders of power use the law as a tool to achieve some illegitimate and illegal purposes. Just as in the case of Wen Qiang, Wen Qiang, as the director of the Chongqing Municipal Bureau of Justice, colluded with the underworld and raped female students, and his protective umbrella was the power in his hands. As a legal person, he has done all the bad things in his hand, and the judicial initiative has become a weapon. At this time, if there is no judicial restraint and law to punish his behavior, won't this evil deed be punished by him?
Second, judicial restraint's understanding of legal provisions varies from legal person to legal person, which requires the supervision and suggestions of the public. At this time, public supervision does not mean that judicial activities are led by the people, but that judicial activities need to consider the opinions of the people in a certain sense, which is conducive to balancing the judgment results with legal and social interests and achieving the best state of interest measurement.
Just like the drunk driving case in Nanjing, Zhang Mingbao caused five deaths and four injuries, but in the first-instance judgment on February 23rd, 2009, he was only sentenced to life imprisonment. In this regard, the author believes that Zhang Mingbao knows that drunk driving is strictly prohibited in China's laws, which caused such a tragedy. Although Zhang Mingbao had a good attitude of pleading guilty after the crime, he said that he had admitted the crime and was willing to accept the punishment of the law. However, the sentence of life imprisonment in this case obviously failed to achieve the substantive justice pursued by the law and seriously deviated from the track of interest measurement. Therefore, the author believes that in order to realize the harmony between law and justice, social justice and the actual value of law, judicial initiative should be exerted under the premise of judicial restraint and death penalty should be imposed. Judicial restraint should not be a stumbling block or an excuse to realize substantive benefits.
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To sum up, judicial activism and judicial restriction are indispensable in the development of China's current legal system. Legal rules are normative and fixed words, while legal thinking of legal persons is speculative and flexible. However, for this serious legal problem, legal persons need to give full play to judicial initiative, properly handle cases, and achieve a balance between the interests of the parties, legal requirements and punishment of evil. However, excessive judicial initiative will inevitably lead to excessive use of power, and law will become a weapon and lose its original meaning. Therefore, judicial restraint is accompanied by the process of judicial active application, and the legal person must take the legislative intention as the benchmark. Take facts as the basis and law as the criterion? Judicial activism and judicial restraint should be applied at the same time, and the proportion of judicial activism or judicial restraint should be appropriately increased or decreased according to the actual situation, so as to gradually improve the legal system of a society ruled by law.
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