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Introduction13

Ⅰ. Why China?13

Ⅱ. Why the Independence of Judges?15

Ⅲ. Why Germany?17

1. Tradition18

2. The Qualifications of Judges19

3. The Selection and Appointment of Judges20

4. The Status of Judges21

Ⅳ. Purpose, Methodology and Main Conclusions22

Part Ⅰ Basic Principles30

Chapter Ⅰ Principles of the Independence of Judges30

Section Ⅰ Necessity for the Independence of Judges30

(1) The Principle of the Independence of Judges and the Separation of Powers31

(2) The Independence of Judges and the Principle of the State under the Rule of Law32

Section Ⅱ Material Aspects of the Independence of Judges34

(1) Substantive Independence34

(2) Independence of status38

Chapter Ⅱ Historical Aspects of the Independence of Judges42

Section Ⅰ Development42

(1) The Feudal Period42

(2) Modern Times44

(3) From the Founding of New China to the Cultural Revolution47

(4) After the Third Plenum of the llth Central Committee of the CCP50

Section Ⅱ Historical Development of the Independence of Judges in Germany54

Section Ⅲ Comparison55

(1) The Transplantation of Laws and Legal Education55

(2) Establishment of the Idea of the Rule of Law57

Chapter Ⅲ The Court System and the Independence of Judges59

Section Ⅰ The Situation in Chinese Courts59

(1) The Relationship between Courts and Legislative Authorities59

(2) The Relationship Between the Courts and Executive Authorities62

Section Ⅱ Establishment and Authority of Chinese Courts63

(1) The Organisation and Authority of the Local People's Courts at various levels65

(a) Basic People's Courts65

(b) Intermediate People's Courts66

(c) Higher People's Courts67

(2) Organisation and Authority of the Special People's Courts69

(a) Military Courts69

(b) Maritime Courts71

(c) Railway Transport Courts72

(3) Organisation and Authority of the Supreme People's Court75

(a) Supervising the adjudication of the local People's Courts at various levels and special People's Courts75

(b) Handling three kinds of cases which it adjudicates:75

(c) Examining and approving death sentences76

(d) Judicial Interpretation78

Section Ⅲ Judicial Organisation of Chinese Courts79

(1) Single-judge Bench79

(2) Collegial Panel79

(3) Judicial Committee81

(a) Discussing important or difficult cases81

(b) Summarisingjudicial experience82

(c) Discussing other issues relating to adjudication82

Section Ⅳ Basic System of Adjudicative Work83

(1) Public Trial System83

(2) System in which the Second Instance is the Final Instance84

(3) System of Judicial Review of Death Sentences86

(4) System of Trial Supervision87

(a) Brief Introduction87

(b) Rehearing or Retrial Lodged by a People's Court87

(c) Rehearing or Retrial Lodged by the People's Procuratorate88

(d) Rehearing or Retrial Lodged by a Party88

(e) Trial Procedure of Rehearing Cases89

Section Ⅴ Comparing the Court Systems89

(1) German Federal Court System89

(2) Comparing the Court Systems of China and Germany92

(a) The Position of the Courts within the Organisation of the State92

(b) The Configuration of Courts93

(c) Forms of Adjudicative Organisation94

Part 2 Elements of the Independence of Judges97

A Substantive Independence97

(A) Independence from the Executive97

Chapter 1 Selection of Judges97

Section Ⅰ Selection Criteria for Judges in China98

(1) Posts and Grades of Judges98

(2) Conditions for Judges in China101

(a) History101

(b) Provisions of Laws Currently in Effect103

Section Ⅱ Conditions for Judges in Germany110

(1) Types of German Judge110

(a) Judges Appointed for Life (Richter auf Lebenszeit)110

(b) Judges Appointed for a Fixed Term (Richter aufZeit)110

(c) Probationary Judges (Richter auf Probe)111

(d) Judges on Commission (Richter kraft Auftrags)111

(2) Conditions for German Judges112

(a) University Education in Law112

(b) The First State Examination113

(c) Preparatory Service114

(d) The Second State Examination115

Section Ⅲ Comparison116

(1) Age Requirements116

(2) Educational Requirements117

(3) Requirements for the Judicial Examination117

(4) Health Requirements118

(5) Practical Experience Requirements119

(6) Miscellaneous120

(a) Different Levels of Court120

(b) Differences Between Areas121

Section Ⅳ Process of Judicial Selection in China122

(1) Civil Service Examination and Recruitment of Candidate Judges122

(2) Procedures for Judicial Selection124

(a) Statutory Principal Organs and Procedures124

(b) Principal Organs and Procedures in Practice126

Section Ⅴ Process of Judicial Selection in Germany129

(1) Judges of the Constitutional Courts130

(a) Judges of the Federal Constitutional Court130

(b) Judges of Land Constitutional Courts131

(2) Federal Judges132

(a) The Federal Court of Justice132

(b) Other Federal Courts133

(3) Land Judges135

Section Ⅵ Comparison139

Chapter Ⅱ Service Supervision (Dienstaufsicht) of Judges141

Section Ⅰ The Service Supervision of Judges in China143

(1) External Supervision143

(a) Legally Binding Supervision143

(b) Non-Legally Binding Supervision150

(2) Internal Supervision154

(a) The System of Examination and Appraisal of Judges154

(b) The System of Disciplining Judges159

(c) The Influence of Internal Supervision on the Independence of Judges171

Section Ⅱ The Service Supervision of Judges in Germany174

(1) The Scope and Limitation of the Service Supervision174

(a) The Federal Constitutional Court175

(b) Law Courts175

(c) Administrative Courts175

(d) Labour Courts176

(e) Social Courts176

(f) Finance Courts76

(2) The Manner of Service Supervision77

(a) Observation (Beobachtung)77

(b) Correction (Berichtung)78

(3) Service Courts79

(4) The System of Appraisal of Judges80

(a) The Character and Purpose of Appraisal80

(b) The Organs of Appraisal81

(c) The Content of Appraisal82

(d) The Result of Appraisal82

(5) The System of Discipline82

(a) Disciplinary Organs183

(b) Grounds for Disciplinary Measures183

(c) Disciplinary Measures188

(d) Disciplinary Procedure191

(6) The System of Impeachment193

(a) The Organs of Impeachment193

(b) The Grounds for Impeachment194

(c) The Punishment of Impeachment194

(d) The Procedure of the Impeachment Trial195

(e) Relief Measures196

(f) The Relationship Between Crime and Impeachment and Between Discipline and Impeachment196

(7) Summary197

Section Ⅲ Comparison198

(1) The System of Appraisal198

(2) The Disciplinary System199

(a) Legal Provisions199

(b) Organs of Discipline199

(c) Subjects of Disciplinary Measures200

(d) The Grounds for Discipline200

(e) The Disciplinary Measures200

(3) The System of Impeachment201

(4) Other aspects201

(B) Independence from the Legislature202

Chapter Ⅲ The Independence of Judges from the Legislature202

Section Ⅰ Formal and Informal Influence of the Legislature204

Section Ⅱ Means of Balancing the Legislature- Judges Power of Judicial Review206

Section Ⅲ The Luoyang Seed Case and Judges Power of Judicial Review in China213

(1) Main Pointsofthe Case214

(2) Issues215

(3) Reflection and Comparison with Judicial Review by Judges in Germany218

(a) Courts' Limited Powers of Judicial Review218

(b) Comparison with Germany219

(c) The Abuse of Judicial Review in China220

(d) Proposals for Improvement221

(C) Independence within the Judicial branch222

Chapter Ⅳ The Administration and Organisation of Courts222

Section Ⅰ The Provision of Goods and Materials to the Courts224

Section Ⅱ The Autonomy of Courts228

Section Ⅲ Prohibiting Extraordinary Courts (Ausnahmegerichte), Ad-Hoc Courts(Ad-Hoc-Gerichte) and Special Courts (Sondergerichte)230

Section Ⅳ Hierarchical Dependence (hierarchische Abh?ngigkeit)232

(1) Control by the Judicial Instances (instanzgerichtliche Urteilskontrolle)232

(2) The Internal Dependence of Courts234

Section Ⅴ Manipulation in the Distribution of Work237

(1) German Protection of the Principle of Statutory Judges239

(2) The Chinese Practice of Distributing Work241

Section Ⅵ Conclusions243

(1) Comparison243

(2) Opinions on Reform245

(a) Funding245

(b) Reform of the Internal Organisation of Courts246

B Independence of status248

Chapter Ⅴ Guaranteeing the Status of Judges248

Section Ⅰ The German System of Guaranteeing the Status of Judges249

(1) A Summary of Guaranteeing the Status of Judges249

(a) Preconditions249

(b) The Ban in Principle on Dismissal, Suspension, Transfer and Retirement250

(c) Exceptions251

(2) Dismissal251

(a) Ipso Iure Dismissal252

(b) Appropriate Dismissal (Entlassung durch Verfugung)254

(c) Procedure for Dismissal256

(d) Effect of Dismissal257

(3) Ipso Iure Termination of Employment as Judge259

(a) Termination by Court Decision259

(b) Termination due to Election to the Bundestag or a Land Legislative Body260

(4) Relocation (Versetzung) and Suspension (Amtsenthebung) of Judges261

(a) The Concept of Relocation and Suspension261

(b) The Subject of Relocation and Suspension (Paragraph 1 of Article 30 of the German Judges Act)262

(c) The Procedure of Relocation and Suspension264

(5) Retirement265

(a) Types of Retirement and Grounds for Retirement265

(b) Procedure for Retirement267

(c) Benefits to Retired Judges269

(6) Secondment (Abordnung)269

(a) The Meaning of Secondment269

(b) Procedure and Consequences of Secondment270

(c) Secondment under Special Circumstances271

(7) Effects of the Independence of Status on Court Organisation271

(8) The Independence and Promotion (Bef?rderung) of Judges272

(9) Salaries273

(a) Summary273

(b) The Opinions of the Federal Constitutional Court273

(c) Latest Developments in Judges Salaries in Germany274

Section Ⅱ The System of Guaranteeing the Status of Judges in China275

(1) Removal276

(a) Grounds for Removal276

(b) The Procedure of Removal283

(2) Demotion from a Post283

(a) Grounds for Demotion from a Post283

(b) The Procedure of Demotion from a Post285

(3) Dismissal285

(4) Disciplinary measures286

(5) Judicial Independence and the Retirement of Judges286

(a) Types of Retirement and Grounds for Retirement286

(b) The Procedure of Retirement290

(c) Retirement Benefits290

(6) Guarantee of the Status of Judges and Their Wages and Benefits291

Section Ⅲ Comparison292

C Internal Independence300

Chapter Ⅵ The Internal Independence of Judges300

Section Ⅰ Social Influences304

Section Ⅱ Influence of the Party310

Section Ⅲ Brief Summary316

Outlook318

Bibliography321

Reports / Documents / Interviews337