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The independence of the judiciary in the United States and its reference to us

Author: XuChuanZuo From: www.yourpaper.net Posted: 2007-11-19 14:02:27 Read:
As China's economic reforms carried out, the requirement to gradually promote judicial reform and the rule of law in our country to achieve, has become the consensus of the community and state leaders. To accomplish this reform to do in-depth analysis of China's national conditions, as well as in the light of the judicial system and practice of other countries.
Based on this understanding, this paper will focus on visits to the U.S. Department of Justice in the status and functions of the American government, in order to summarize the recommendations and conclusions of the reference we have. In Western society, the United States judicial system to be recognized as typical of the independence of the judiciary. There are several different understanding of judicial independence. Meaning adopted a national judiciary by the Constitution and other has quite with the executive and legislative branches of power and status, and, in the exercise of its authority, without the intervention of the executive and legislative branches. As representatives of Western judicial independence, the pros and cons of the U.S. Department of Justice, can provide useful lessons to us.
This article is divided into three main sections. The first part focuses examine the relevant provisions of the Constitution of the United States justice; discussed in the second part of the functions the same mutual restraint between the executive and legislative branches of the U.S. Department of Justice in the practice and it played; Part III (concluding part) tried for our the judicial status quo, extracted from the American judicial system and the practice of constructive conclusion, noting that the U.S. judicial system, we need to avoid the deficiencies and shortcomings. Due to space limitations, but also because of their importance, this paper will focus on the comment on the judicial system of the United States federal, states only occasionally mentioned. In general, however, said the federal level, is also applicable in the U.S. states.
The relevant provisions of the Constitution of the United States justice
The impact of European thinker Montesquieu (Charles-Louis de Montesquieu) and Locke (John Locke), the founder of the Constitution of the United States judicial independence as an important principle of the American founding. In Hamilton (Alexander Hamilton) seem judiciary only take orders from the legislative and executive branches, in order to uphold justice, protection of life, property, and freedom of the citizens. The reason why the founders of the United States is so dear to the independence of the judiciary, is also due to George III forced the colonial judges obey His will, his oppressive policies unimpeded. To overthrow the rule of the British Empire, the American Founding Fathers put judicial independent written into the Constitution, and the hope of Justice of the executive and legislative branches to be restrained to prevent their abuse of power.
Provisions of the U.S. Constitution on judicial quite succinctly. In the first chapter of the second chapter of the legislative powers granted to Congress, executive power granted to the President, Chapter III of the Constitution, the judicial power granted to the Federal Supreme Court and its subordinate courts, and provides that the term of office of a judge, the wages, the scope of the judicial power and so on. In addition to the Chapter devoted to justice, Chapters also have a small amount involved in the relationship between the judicial, legislative, judicial and administrative regulations. These provisions mainly include:
Federal jurisdiction belongs to the Federal Supreme Court, and Congress to establish a number of lower courts. Judge as long as proper behavior, was appointed for life and receive remuneration. (Section 1 of Chapter III of the Constitution of the United States) the remuneration shall not be diminished during his tenure. Jurisdiction to the Supreme Court defined the distinction of the judicial, legislative and executive departments, at least in the text, so that Congress and the president should not interfere in the judicial field. In this way, the founders of the United States with the first three chapters of the Constitution provides for the vesting of the legislative, executive and judicial powers, the clear separation of powers of the government structure. After the jurisdiction conferred on the court, the Constitution immediately comes to the tenure of judges and wages are fairly trivial problem, this arrangement at first glance puzzling, actually fundamental consideration for the maintenance of the independence of the judiciary. During the colonial era, George III, can be arbitrarily decide the term of office and remuneration of judges, judges largely determine compliance with the administrative department. So, in the eyes of the founders of the Constitution, the tenure of judges and wages constitute a fundamental issue of the independence of the judiciary. By requiring a judge's tenure and to give them more favorable wage Constitution tried to put an end to judge in the processing of cases in order to preserve jobs and salaries succumb to pressure from the outside, to be in an independent and impartial.
Second, the Supreme Court justices are nominated by the president is formally appointed by the President after Senate consideration and recognition (Chapter II Section II of the Constitution of the United States). This provision reflects the founders of the Constitution requires the executive, legislative and judicial branches, while relatively independent, but also with each other constraints intent. Mastered by the executive and legislative branches of the federal judge's sources, the ideology of the judiciary can be controlled to some extent, and coordination with each other, and also prevent by incompetent personnel in the judicial powers of the executive and legislative branches. This provision also not help a democratically elected federal judge. This arrangement with the judges of tenure provisions, all the independence and impartiality of the justice activities. If a judge is elected by the judgment, he can not help but to consider the interests and attitudes of their constituents. If he does not tenured, should more consciously or unconsciously, to take care of the interests of their constituents in order to be re-elected. Provisions recognized by judges appointed by the president and the Senate, and tenured and fixed wages, can eliminate the worries of the judges, to maintain the independence of the judiciary. Because the president and senators are elected by them to the appointment and approval of a federal judge, basically belong to the democratic procedures.
Third, the jurisdiction of the court covers all cases involving the Constitution, federal law and the U.S. government has developed or will develop a treaty, all cases involving ambassadors and other diplomats ... all the dispute to the U.S. government as plaintiff or defendant, all interstate disputes (Chapter II of the Constitution of the United States). Affecting ambassadors and other diplomats and all cases as plaintiff or defendant to a state Supreme Court enjoys original jurisdiction. In several other cases, the Supreme Court as the Court of Appeal, the right to a review of the lower court judgment (including federal and state courts) (Chapter II of the Constitution of the United States, Article II). These provisions generally established judiciary to supervise the legislative and executive branches. For example, the laws enacted by the legislative branch will inevitably involve the question of whether the constitutional review by the court - in accordance with the U.S. Constitution, the jurisdiction to deal with all references to the Constitution, federal law and federal treaty thus in a specific case will cases (see above cited Article of Chapter II of the Constitution of the United States). This oversight and review is not necessarily directly by the Federal Supreme Court of commitment; federal lower court in accordance with the Constitution, have the right to determine whether a law is unconstitutional, necessary only by the Supreme Court of Appeal Federal Supreme Court the final say. Similarly, the executive branch activities (including, but not limited to, the activities of diplomats) must comply with the Constitution, federal laws and treaties; cases involving administrative departments, such as the federal government or a state government for the the contentious party's case, all The ruling by the Federal Court.
Fourth, however, the case shall be of all impeachment government officials (including the president, vice president or federal judge) Congress (not the judiciary) responsible. Impeachment case must be initiated by the House of Representatives (Chapter II of the Constitution of the United States), the hearing by the Senate (in Chapter III of the U.S. Constitution, Article VI). Impeachment must be based on treason, bribery or other various felony and misdemeanor (section 2.4) of the Constitution of the United States. The president to be impeached, the trial to be presided over by the Federal Supreme Court Chief Justice, the specific implementation by the Senate. All impeachment cases must be approved by two-thirds of the Members present agreed to conviction (in Chapter III of the U.S. Constitution, Article VI). These provisions seem to impair the jurisdiction of the judiciary (see previous paragraph discussion) early, but this is not true. The impeachment case with the general judicial cases, there is a strong political. By the most democratic Congress - not the executive or the judiciary - to deal with the impeachment case, may be more representative of public opinion. In addition, due to the impeachment object mostly administrative officials or judges responsible for hearing by a neutral third party - the Congress - perhaps more to be fair and reasonable. Because the president is the chief executive of Summit, jointly responsible for the impeachment of the president by the Senate and Supreme Court Chief Justice can guarantee extra careful and impartial. Treatment does not prevent jurisdiction, a more important reason for the punishment is nothing more than to be impeached dismissed from public office and deprivation of political rights, by impeachment convicted still by the judiciary, in accordance with the law of impeachment by the legislative branch trial and punishment (Article VII of the Chapter III of the Constitution of the United States). Judiciary still enjoys full jurisdiction.
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