中美司法法律制度比較.doc

精品文檔A Comparison of Judicature And legal System between China and USChina and the United States are two main powerful counties in economic and military fields in the world. Nevertheless, in the political system and social and cultural aspects, there are many crucial differences between them. These differences are too excessive too tremendous and too deep-going, as a result, the two counties diverge markedly when it comes to almost every international affair. We dont have that wisdom and strength of researching and probing those differences. That being so, lets give it a head start in the judicial system and law.Judicial systemJudicial system of US is totally different from ours. Firstly, Americas judiciary is one branch of that three branchesthe legislative branch, the executive branch and the judicial branch. Those three branches divide national governments power into three. This division of authority is known as a system of checks and balances established by the Constitution, which is meant to prevent any of the three branches from having too much power. Each branch has certain controls over the other branches. Each branch can limit the other branches from gaining too much power. In other words, each branch of the three branches is equal to each other. Its impossible to let one be dominated by another. So Courts in America dont care about what the administrators think. They just make the verdict according to the Constitution and law and on the basis of evidence. But in China, the case is completely different. Inversely, China government pursues the centralization political system rather than the tripartite political system of checks and balances .Judicial system in China is not a party of checks and balances, not at all. More importantly, in order to segment and weaken judiciarys power, status and weight, the judicial system itself has been divided into many branches, mainly the Court and Procuratorate. Courts in China is just a little department in national political system, which can be controlled and impacted by many other governments branches, for example, National Peoples Congress Standing Committee, Office of Legislative Affairs ,judicial bureau and Law Council of various levels CPC Committee and so on. To some degree, Chinas judiciary is just a mouthpiece. Laws are just reference. Leaders written instruction or comments are real and potential criterion. So we can see that the status and importance of judicial system in America are higher and more significant than it in China. Whats more, Americas judicial system is independent and self-governed, but a mighty and independent judicial system cant be found in China. A cases affirmation and verdict have to be directed and interfered by many individuals and organizations in China. For instance, if a governments leader or official breaks the law and commits, the judicial department cant accept the lawsuit and enquire him at once, before the CDIC(Commission for Discipline Inspection of the CPC) investigate his behavior and make decision that whether he should be pushed into the judicial system. If the offender is a departmental or higher level cadre, reviewing him have to be approved and ratified by the central committee of the Communist Party of China. That is to say，if a leader or official killed hundreds of people, raped hundreds maidens and corrupted hundreds millions, the courts cant do anything to him before the CDIC confirms his atrocities and crimes even though victims have prosecuted him thousands times. Thus it can be seen that in our country, there exists an organization which has much more power and much higher status than any other organizations. Before its rules, the laws are humble, faint and impotent. So, why do so many unjust and unequal events take place pervasively and constantly? Why do so many innocent persons have been extorted confessions by means of torture? Why do those malfeasants and noble culprits can get away unpunished beyond the arm of the law and constitution. The reason is that we havent a completely independent and adequately powerful judicial system to restrict and contend against other political systems or individuals. Secondly, a notable characteristic of Americas Judiciary is its Jury system. Every court from the Supreme Court of the United States to a civic court has its own jury which is made up of 12 adults who are chosen at random from the local Electoral Register. In occidental countries, the jury plays a crucial role in verdict, while judges in a court just provide evidence and host the arguments between parties and then give the “charge”, or instructions to the jury. The jurys verdict is based on the evidence and on the judges instructions as to the law. After the jury has reached its verdict, judges and the court can declare its final court decision. So those twelve jurors who are all law-blindness are the real adjudicators and decider to a case. Jury institutions make sure that a case cannot be misjudged and that an innocent person cannot be unjustly treated. It can ensure the trial justice, fair and impartial. It can guarantee the inculpable persons cant be sentenced improperly and mistakenly. It can prevent those corrupt officials and illegal merchants from escape of law. Most importantly, because the jury is made up of twelve ordinary citizens who are chosen at random, it can let more people know the power of law and be proficient at trial procedure. Hence the laws concepts circulate among people diffusely and deep. By on, we can see that the jury system is on a sound footing in the United States and it is very fascinating to the public. Actually, its popular overseas, including in countries without jury trials, maybe even in countries without rule of law. For instance, last year, Japan introduced a jury system for the first time in major criminal cases. But in china, jury system is a remote and shadowy dream. The Chinese governments judicial idea is absolutely different from United States. Chinese government could not put the right of trial to people, at least not now. The reason is quite complex and hard to tell. But it is undeniable that our government has unshakable responsibility in this issue. The right of trial and even the rights of governing the country should be returned to people by practical action rather than just saying something. If we can do this, there wont be so many undeserved persons and mistaken cases. Courts and those judges will not bend the law for personal gain too. Jury system has numerous advantages and merits. In short, not only that juries are competent decisionmakers, but also that the jury system is an important democratic institution. Courts need democracy too. But there isnt any democracy in a countries political system, the jury system, of course, is a remote dream.Third, the two countries judicial systems still exist many other nuances which determine their judicial process is totally different, for example, the basic standpoint to suspects and attitude of treating criminals. The American judiciary pursues a principle to guide the criminal court trial. That is, the accused is held innocent until proven guilty. The defendant doesnt have to open his mouth. The court must prove that accused persons guilt beyond any reasonable doubt. Reasonable doubt refers to the doubt that could arise in the mind of an ordinary, impartial, honest, reasonable and cautious person with reference to the accuseds guilty. The concept of holding the accused innocent until proved guilty makes sure that a case is not misjudged and that an innocent person is not unjustly treated. Even though the criminal suspect is proved guilty by court and finally sentenced by jury, as a man, he still has basic and fundamental personal rights which he deserves. He has been denied his entire or partial liberty. Or even his life would be denied. But he remains his dignity and some rights which God gave him and no one can violate no matter in terms of law or in terms of ethics. Its influence and meaning is far-reaching and multitunous. But in China, the situations are absolutely different. Rather than Americas principle of innocence until proven guilty, China pursues a contrary principle to guide the criminal court trial. The principle is that the accused is guilty unless he (she) can prove his (her) innocence. A suspect, who are just suspected guilty, if he (she) cant prove his (her) innocence and purity, would be adjudicated breaking the law or be sentenced guilty by court. So in China, policeman can arrest any individuals in street randomly and then transfer him (her) to the judicial administration. The individual can be you and also can be me. Mostly, before transferring to court, the individual has been tormented with some inhuman methods. It is clear to him (her) that he cant fight with so