中国の人民法院の独立裁判原則とその問題点 -行政裁判を素材に-

• 영문명: The principle of independent trial of the people s courts in China and its problems -Taking administrative trial as a perspective
• 발행기관: 원광대학교 법학연구소
• 저자명: 崔東日(Cui Dongri) 呉 東鎬(Wu Donggao)
• 간행물 정보: 『원광법학』제34권 제4호, 457~476쪽, 전체 20쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2018.12.30

영문 초록

There is no western-type independence of jurisdiction in China, which uses the democratic centralism as the basic principle of the Governing Body. However, as functional division of labor, jurisdiction is allocated to the People s Court which is a professional judicial body, and the principle of independent trial of the People s Court has been established in the Constitution. The provision of the same purpose is also established in the Administrative Procedure Law, and the principle of independent trial in administrative lawsuit has been established. However, as in Japan, a concrete judicial system to back up its independent trial principle has not been established, and there are many theoretical and practical opacity. Therefore, in China, there have been two major legal disputes over the independence of the trial principle over the past, and various problems have been pointed out. In particular, the Constitution clearly states the construction of a state of law as a national goal (Article 13 of the constitution amendment draft of 1999) The significance of this problem is getting bigger today. However, most of the studies so far have been limited to pointing out the problem of the national system, do not discuss about the ideal way of the concrete judicial system and the issue on the theory of interpretation of the constitution. In this paper, I will discuss the problems of interpretation of constitutional articles concerning the Independent Judgment Principle of People s Court; the positioning of principle of independence of judgment in the national system; problems of the judicial system in practice. I will also examine the whole picture of the so-called independent trial of People s Court in China through comparison with Japan s judicial system.

목차

Ⅰ. 서론

Ⅱ. 중국헌법제126조의 해석과 문제점

Ⅲ. 국가기본체제에 있어서의 재판독립원칙의 위치

Ⅳ. 인민법원의 재판시스템과 재판의 독립

Ⅴ. 결론

키워드

People s Court Independence of jurisdiction Judicial system