The Fourth Plenary Session of the 18th CPC Central Committee deliberated and adopted the "Decision of the Central Committee on Several Major Issues Concerning Comprehensively Advancing the Rule of Law" (hereinafter referred to as the "Decision"), which is of far-reaching significance for promoting the construction of judicial civilization in China. The "Decision" of the plenary session clearly stated that "the system to guarantee the independent and fair exercise of judicial power and procuratorial power according to law should be improved". This is the overall goal of judicial reform in view of the increasingly serious tendency of judicial administration in China in recent years and the interference of various external factors on the judiciary. Various interventions in the judiciary have made it lose its role in maintaining social fairness and justice, resulting in a large number of unjust, false and misjudged cases and judicial injustice. Therefore, the main goal of judicial reform is to de-administer, eliminate all kinds of improper external interference and restore the original function of justice. The independent exercise of judicial power, as a basic legal principle generally established in a country ruled by law, is determined by the characteristics of judicial power. Its core spirit is to require courts and judges to obey the law and conscience only in judicial decisions, without interference outside the judiciary. It has at least two meanings: first, the independent trial of the court, which is the institutional performance of the independent exercise of judicial power; Second, judges try independently, that is, justice depends on judges' independent judgment. From the perspective of respecting judicial laws, the independent exercise of judicial power by courts is a necessary prerequisite for judicial justice, and this concept and principle must be adhered to. The decision of the Fourth Plenary Session of the 18th CPC Central Committee clearly stated: "Justice is the lifeline of the rule of law. Judicial justice plays an important leading role in social justice, and judicial injustice has a fatal destructive effect on social justice. "

According to China's current actual situation, to "ensure the independent and fair exercise of judicial power according to law", we should properly handle the following relations.

The relationship between the party's leadership over judicial work and ensuring the independent and fair exercise of judicial power according to law

The party's leadership over judicial work is political leadership and organizational leadership, and it is the leadership of the ruling direction, policy leadership and cadre leadership, rather than interfering in the trial of cases. The directive 1979 of the CPC Central Committee on resolutely ensuring the effective implementation of the Criminal Law and the Criminal Procedure Law clearly points out: "To strengthen the party's leadership over judicial work, the most important thing is to effectively ensure the implementation of the law, give full play to the role of the judiciary, and effectively ensure that the people's procuratorates independently exercise procuratorial power and the people's courts independently exercise judicial power ... Therefore, the central government decided to cancel the system of party committees at all levels to examine and approve cases." The party's policies become law through the legislation of the National People's Congress, and the courts exercise judicial power independently and impartially according to law, that is, they administer justice according to the will of the party, the state and the people, which must be respected by party organizations and leading cadres at all levels. Therefore, it is necessary to prohibit any party member from interfering in the trial from the party discipline. The decision of the Fourth Plenary Session of the 18th CPC Central Committee clearly stated that it is necessary to "establish a record, notification and accountability system for leading cadres to intervene in judicial activities and handle specific cases". At the same time, the crime of judicial interference should be established in law, and the criminal responsibility of the trustee should be investigated. The leadership style of political and legal committees at all levels in judicial work should also be changed, and the bottom line is not to interfere with individual cases.

The relationship between NPC supervision and ensuring the independent and fair exercise of judicial power according to law

The Decision of the Fourth Plenary Session of the 18th CPC Central Committee proposed to "strengthen the legal supervision of criminal proceedings, civil proceedings and administrative proceedings, and improve the people's supervisor system", and "never allow extrajudicial mercy, never allow relationship cases, human cases and money cases". At present, judges at all levels are appointed by the National People's Congress, and the courts report to the National People's Congress and accept supervision, which has played an important role in judicial justice. But at the same time, we should also see that some NPC representatives are asking more and more questions about cases, and even some NPC representatives are also parties to cases. They used their status as representatives to influence their litigation-related cases, and the court had to issue documents to supervise these cases, so as not to "lose votes" at NPC meetings, which greatly interfered with the independent and fair judiciary. Therefore, in improving the supervision of judicial activities by the National People's Congress, it should be made clear that the supervision of the National People's Congress is a macro supervision and cannot interfere with individual cases. In particular, the phenomenon that individual representatives use their representative position to exert influence on their litigation-related cases should be put an end to.

The relationship between the procuratorial organ's exercise of supervision power and ensuring the independent and fair exercise of judicial power according to law

The Fourth Plenary Session of the 18th CPC Central Committee decided to "improve the legal system for procuratorial organs to exercise supervision power". This involves the power restriction of the procuratorate and the court. The "multiple roles" of China's procuratorial organs are not only public prosecution organs, legal supervision organs, but also investigation organs of duty crimes. Therefore, when the procuratorial organ is caught in the "interests of public prosecution" or "interests of investigation" in litigation, how to perform the duties of trial supervision becomes a difficult problem. For example, in the "Zhang Guoxi case", the procuratorate encountered the embarrassment of these three functions. Therefore, in order to solve the problem of scientific allocation of judicial power, it is necessary to cancel the legal supervision right of the procuratorate at the same level on self-investigation cases, and raise it to a higher level by learning from the arrest mode of self-investigation cases, and the procuratorate at a higher level will perform the legal supervision duties.

The relationship between equality between prosecution and defense and ensuring the independent and fair exercise of judicial power according to law

According to the principle of judging evidence, the procuratorate, as a national public prosecution organ, should be equal to the defense in the process of presenting evidence and cross-examination in criminal proceedings. The rational allocation of judicial power is to rebuild the equality between prosecution and defense, and it is also the requirement of "strengthening the judicial guarantee of human rights" and "perfecting the legal aid system" in the decision of the Fourth Plenary Session of the 18th CPC Central Committee. Because the defense system centered on the defendant's right to defense is the basic content of human rights protection. Article 1 1 of the Universal Declaration of Human Rights regards the defendant's right to defense as a basic criminal right. Therefore, strengthening the right of defense is of great significance for maintaining the equality between prosecution and defense and strengthening the protection of judicial human rights.

In order to strengthen the right of defense, the next judicial reform in China should gradually realize the equal status of defense lawyers and prosecutors by establishing the privilege of lawyers' clients and abolishing the crime of perjury, and transform the unilateral exercise of legal supervision by procuratorial organs into the equal exercise of legal supervision by both prosecution and defense. The prevention and correction of unjust, false and wrong cases should change from relying mainly on the internal control of judicial organs in the past to relying mainly on the right of defense to limit the right of appeal. At the same time, it is necessary to strengthen the protection of lawyers' rights. One of the characteristics of modern rule of law is to set up various insurmountable procedural obstacles on the road of conviction in order to minimize the probability of acquittal. Lawyers are one of the most difficult obstacles in these procedures. China's laws on defense system focus on restricting lawyers' rights and regulating lawyers' behavior, rather than protecting lawyers' rights, which may not be conducive to the establishment of a judicial system with equal prosecution and defense.

The relationship between the four-level court and ensuring the independent and fair exercise of judicial power according to law

According to the Constitution of our country, there is no administrative subordinate relationship between the four-level courts, and courts and judges at all levels must exercise judicial power independently and impartially according to law. However, vertical intervention is still very common in the court system, which often leads to the "second instance and final adjudication system" stipulated by law becoming a mere formality. Many scholars and judges worry that after the centralized management of human and financial resources at the provincial level, the vertical administrative intervention may be more terrible than the horizontal administrative intervention, because the intervention within this system will be "more professional". Therefore, after unified management at the provincial level, it must be made clear that courts at all levels shall try cases independently, and courts at all levels shall not interfere with the trial of cases by administrative means in violation of the trial-level system. At the same time, the customary practices such as "requesting cases" or "higher courts instructing lower courts to handle cases" should be abolished.

The relationship between the propaganda system and the supervision of news and public opinion, and ensuring the independent and fair exercise of judicial power according to law

At present, some cases have just entered the investigation stage, and they have been heated by some news media, such as "Xue Manzi's whoring case" and "Guo Meimei's gambling case". The reports of some news organizations have obviously hindered the court from exercising its judicial power independently and fairly, and violated the principle of presumption of innocence. The Fourth Plenary Session of the 18th CPC Central Committee decided to "promote the whole society to establish the awareness of the rule of law", and the propaganda departments and news media at all levels should enhance the awareness of the rule of law, strengthen self-discipline and not interfere with the independent trial of the court. At the same time, we should learn from foreign experience and formulate relevant laws as soon as possible to standardize the news media's reporting of cases.

The relationship between correcting mistakes and ensuring the independent and fair exercise of judicial power according to law

At present, all walks of life pay close attention to the problem of criminal misjudged cases, but I understand that the implementation of the "responsibility investigation system for misjudged cases" decided by the Fourth Plenary Session of the Eighteenth Central Committee does not mean that "mistakes must be corrected". Because, according to the principle of evidence adjudication, the facts of a case must be based on evidence; According to the principle of presumption of innocence, there is no doubt that the evidence is insufficient, which leads to dislocation. Although "misplacing" is also a mistake, it does not need to be corrected. Therefore, it is not necessary to correct mistakes, but to insist that "it is better to judge one if it is wrong." What really needs to be corrected is the "unjust case" in which innocent people are wrongly sentenced. At the same time, for misjudged cases that are beneficial to the defendant, we must adhere to the principle of "correcting mistakes"; With the continuous progress of China's judicial civilization, the principle of non bis in idem should be established and not corrected in principle.

The relationship between judicial professional security and ensuring the independent and fair exercise of judicial power according to law

The "Decision" of the Fourth Plenary Session of the Eighteenth Central Committee clearly stated that it is necessary to "establish and improve the system for judicial personnel to perform their statutory duties.

Protection mechanism. "Judicial professional security should be based on the tenure of judges: first, lifelong protection of professional risks. At present, some provinces understand the tenure system of judges as the system of lifelong investigation of judges' faults, which is a serious misinterpretation. The essence of judicial power is judicial power, and judgments must be authoritative in order to play a role in resolving disputes. According to the principle of evidence adjudication, establish and improve the exemption system of judges' professional responsibility, so that judges have a reasonable space to adjudicate independently. Judges are not gods, and some mistakes are inevitable in the process of fact finding. We can learn from foreign practices, divide them into harmful errors and harmless errors, and do not pursue harmless errors. This is to respect and protect the independent judgment of judges. Even if it is a harmful mistake, as long as the judge did not neglect his duty or accept bribes, but made a mistake in the process of "performing his statutory duties", he should respect the judge's independent judgment and should not be investigated. In the system design, we can consider gradually replacing the accountability system with impeachment system, which is conducive to maintaining judicial authority and reducing the professional risk of judges. Second, the lifelong guarantee of professional remuneration, we can learn from the common practices abroad, give judges a proper high salary and give retired judges full pension benefits.

The relationship between "top-down" post system reform and ensuring the independent and fair exercise of judicial power according to law

The essence of judicial power is judicial power. As a referee, the judge must directly hear the case, go to the stadium in person like a sports referee, and listen to the evidence and cross-examination process of both parties to the lawsuit, so as to realize the judge's judgment. Therefore, the top-level design of the judge post system should be based on the principles of evidence adjudication and direct trial. While piloting the "bottom-up" post system reform in grass-roots courts, we should take into account the practical difficulties of "too many cases" in grass-roots courts, and also carry out "top-down" reform at the same time. Starting from the Supreme People's Court and provincial high courts, cases tried according to the case file (not in court) should be handed over to relevant courts to reduce the number of judges. This can not only change the phenomenon of "judges don't try", reduce the vertical interference within the court system, maintain the independent trial of local courts, but also enrich some excellent judges to local courts and solve the problem of "more cases than people".

The relationship between the construction of evidence system and ensuring the independent and fair exercise of judicial power according to law

The "Decision" of the Fourth Plenary Session of the 18th CPC Central Committee clearly stated that "we should persist in taking facts as the basis and law as the criterion, and promote the reform of the trial-centered litigation system". Based on facts, adhere to the principle of evidence adjudication. Because, in the process of court hearing, the facts of the case all happened in the past, and the evidence is information related to the facts of the case. The form, structure, attribute and meaning of facts will be preserved in the form of evidence. Therefore, fact finding is an empirical reasoning process using evidence. Among them, proof is to prove or refute a factual claim, cross-examination is to discover the truth, and authentication is the basis for examining and judging the fact.

Evidence law is a legal norm that regulates the use of evidence to determine facts. Evidence law is the cornerstone of the rule of law and the realization of judicial justice. Litigation is evidence. The judicial principle of a society ruled by law is evidence adjudication, and the power of judges is mainly embodied in the power to adopt and exclude evidence. Therefore, we should take the construction of evidence system as the primary task of judicial reform, standardize the judicial behavior of judges with exquisite evidence rules, realize fair justice and establish judicial credibility.