Yang Fan | The Institutional Function of Open Court Trials from the Perspective of Comparative Law
*Author Yang Fan
Professor of Theoretical Law Research Center of Jilin University
Abstract: The system of court trial openness is related to the value orientation and functional orientation of a country's judiciary. It cannot simply transplant the practice of other countries, and it must be carefully determined on the basis of functional comparison. The openness of court trials in France, Russia, and the United States respectively represent three institutional practices of "non-openness" under judicial conservatism, strengthening supervision with openness, and case exploration under legal pragmatism. They are rooted in the different political and social environments and legal traditions of the three countries, reflecting the different functions and roles of the judiciary. Under the "political and legal tradition", the ultimate goal of my country's judicial openness should be to enhance judicial credibility. Therefore, we should properly learn from the system design of foreign trial disclosure, pay attention to individual cases in our country, and balance the role division of various disclosure systems within an appropriate functional system according to the implementation effects of different systems, so as to realize the transformation from pursuing the number of disclosures to improving disclosure. quality shift.
Key words: open court hearing functionalism comparative law live broadcast of court hearing judicial credibility
1. Presentation of the question: the perspective of functionalism and comparative law on the openness of court hearings
The open trial system occupies a very important and special position in a country's judicial system. It is related to the value orientation and functional orientation of the country's judiciary. It is an academic issue that requires careful consideration from a broader perspective. In a broad sense, openness of court hearings includes the activities of disclosing the process of judicial court hearings to the public in various forms. Together with the disclosure of judgment documents and the disclosure of the execution process, it constitutes all aspects of the judicial disclosure system. In the context of our country, today's open court trial activities are mainly reflected in related measures to broadcast the court trial process online. This is an important innovation and focus of this round of judicial reform. Courts at all levels have attached great importance to this and invested a lot of manpower and material resources. The openness of court trials represented by online live broadcast of court trials has been implemented in my country's court system so far, and has achieved remarkable achievements in terms of the number of openness and the effect of openness. But at the same time, this open trial mechanism has always been accompanied by a certain range of controversies. The focus of disputes generally lies in how to strike a balance between value goals such as "protecting citizens' right to know", "strengthening trial supervision and management", "protecting the privacy of the parties and state secrets", and "guaranteeing the court's independent exercise of judicial power in accordance with the law". Therefore, there is still room for further discussion on the theory of open trial system.
In the past, Chinese academic circles discussed the system of court trial openness, mainly focusing on the introduction of foreign systems and the evaluation of our country's system. The quantity and depth of relevant research are slightly insufficient, and most of them lack the coherence of theory and value, and fail to integrate the introduction of other countries' systems and the evaluation of their own systems and practices into a macroscopic logical unity. This article will start from the perspective of functionalism in comparative law, and conduct research on the open trial system outside the territory, and hopes to provide reference for my country's open court trial measures. This perspective of legal functionalism means that the analysis and evaluation of a system should not be limited to the system itself, but should be related to the political and social environment in which it is located, focusing on the function of the system in the environment. sexual role. Functionalism perspective is the most mainstream paradigm of comparative law research. It contains two levels of meaning: one is to explain the function of a certain legal system in a specific social environment, which is mainly a study at the actual level; second, it also has the significance of system evaluation at the supposed level. That is to say, under the guidance of a certain value goal, the functionalist perspective can be understood as evaluating the practical efficacy of the legal system, with the purpose of positioning it in an ideal state. This article will follow these two approaches, and conduct a comprehensive and systematic study on the system of court trial openness in the sense of comparative law.
Theoretically speaking, both the openness and the closedness of court trials have a specific social function orientation. It is the competition and cooperation relationship between these two functions that determines the degree and limit of the openness of court hearings. For this issue, the most commonly cited theory in the academic circle is the assertion of social theorist Niklas Luhmann that law is a system that is closed in operation but open in cognition. Of course, this only describes the nature of the legal (judicial) system at the most abstract level. In practice, on the one hand, the closed nature of the judiciary is usually emphasized by "insiders" such as legal professionals (mainly judges). Especially in the civil law tradition, this point of view is an important consensus held by jurists since the revival of Roman law. Modern continental legal scholars such as Hans Kelsen, Karl Larenz, and François Gény all advocated that internal autonomy and self-consistent certainty are laws. The most important attributes of their theories can be regarded as the theoretical basis for restricting the openness of court hearings. It's just that as jurists, they seldom discuss this attribute from the perspective of social function, while Luhmann's theory is just oriented towards social function. In Luhmann's social system theory, emphasizing the closure of the legal (judicial) system is emphasizing the social function of the law to meet the public's "normative expectations". Because the legal system can only provide certainty to society if it can operate independently according to a set of self-consistent, professional logics and without interference from other fields. With the guarantee of certainty, the general public can believe and act in accordance with the guidance of the law, and accept the expected results. Luhmann sees this as the primary social function of the legal system. Therefore, the restriction on the disclosure of the trial process is an important system to ensure the realization of this function.
But on the other hand, in modern society, the open nature and functions of the judiciary have been emphasized again and again, especially in the field where jurisprudence and various social sciences intersect and combine. It is an important path to improve legal "legitimacy". As Luhmann's opponent, Jürgen Habermas, argued, the greatest crisis of modern law lies in the separation of "legality" and "legitimacy" in its closed operation. In other words, if the law always emphasizes closedness and independent operation, it may be farther and farther away from the justice concept of the public. Some "legal but unreasonable" controversial cases in the judicial practice of various countries are typical examples. In order to solve this crisis, Habermas and many other scholars have advocated that the concept of justice in the "life world" should be injected into the legal system through a democratized procedure, so that "legitimacy" and "legitimacy" Sex" can be unified as much as possible. The openness of judicial trials is naturally an indispensable part of this democratization. Because ideally, the openness of court trials can remove the mystification of judicial operations, allow full communication between the public and the judiciary, and enhance judicial credibility. Of course, how to specifically design the open trial system? How does it function with other democratic procedures? These issues require further detailed discussion.
Taking the two different orientations of closed and open as the coordinates, the mainstream of judicial practice in the world today has chosen a relatively limited openness of court hearings—most countries allow court hearings, but few allow live video or detailed reports of court hearings. Its purpose, as mentioned earlier, is to ensure that judicial operations are free from outside interference, and to promote the stability of the legal system and the fulfillment of normative predictability functions. But on the other hand, in countries around the world, the rapid development of new media, the expansion of citizens’ right to supervise, the questioning of the corruption of the judicial system and “closed room negotiations”, the proposal of the concept of freedom of the press, and a series of specific evolutions of modern social democracy , have brought a strong impact on the closedness of the judicial system, and further highlighted the tension between the two attributes of the judicial system, "open" and "closed". Under the competition and see-saw of these two concepts, each country has chosen a corresponding open court trial system according to the actual situation of its own political and social development. Of course, the establishment of institutions in various countries is in a relatively dynamic process and will be adjusted accordingly with changes in the external political and social environment.
After a wide range of combing and comparison, the author believes that the openness of court trials in France, Russia, and the United States can be regarded as a typical representative of the practice of the three systems. They present three different dimensions of judicial openness, which are worthy of further study. Of course, according to the functionalist point of view, the reason for such differences is that each of them plays a different role in the specific political and social soil of the country. In the past, there were many introductory studies on the open trial system of the United States in the Chinese literature circle, but there was almost no functional comparison of the open trial system in the United States, France, and Russia. Therefore, next, while introducing the openness of family trials in these three countries, this article will focus on analyzing the functional background behind them, and how these backgrounds justify the corresponding openness of court trials, so as to provide the significance of the comparative law in the following article. Provide a basis for reference in making institutional recommendations.
2. France: "Closed trial" under judicial conservative style
(1) Functional background
In the comparison of the judicial styles of countries around the world, the French judiciary has always been known for its mystery and conservatism. The long-standing monist constitutional tradition in French history is an important source of this judicial conservatism. From the era of the Great Revolution, Rousseau's "general will" thought has been the mainstream theoretical basis of the French constitutional system. Its theory holds that the legislature representing democratic power is the source of all state power, and both executive power and judicial power are subordinate public powers. This unitary power structure makes the judiciary very small. As Montesquieu said, in France, "judges are just the mouth of the law." There is also almost no phenomenon of "judges making the law". After the representative institutions have assumed the most direct and major democratic political functions, it seems redundant to open the judiciary to the public on a large scale. Because in an ideal legal system, the representative system will transmit public opinion through legislation to the judiciary, which only needs to strictly apply the law to reflect public opinion. Theoretically, the degree of openness of the judiciary mainly depends on whether the representative institution delegates democratic political functions to it, and whether there is such motivation and need in practice. It can be said that France's constitutional separation of powers, which tends to be "unified", is the main functional background of its "closed" court hearings.
In addition, France is also the first country to learn and inherit Roman law, and to complete the codification. From the revival of Roman law to the enactment of the French Civil Code, the mainstream of civil law jurisprudence is to make the law a formalized and mystical system to ensure its stability and independence. This judicial conservatism is even the main feature of the "Roman sub-law system" represented by France in the civil law system, which is different from the later "Germanic sub-law system". In the first 30 years of the 20th century, there was also a big discussion in French legal circles. Mainstream French jurists represented by Ghani all advocate the need to maintain the independence of the judiciary and keep it free from interference from other political and social forces through formalized and simplified adjudication reasoning and a relatively mysterious adjudication process. Against such a background, the openness of court trials in France must be very limited and conservative, even if it is accompanied by several controversies and discussions.
(2) The interactive evolution of the open trial system and political society
As early as the 1930s, during the French Third Republic, many conservative politicians called for legislation to limit journalists' access to courtrooms. The question was raised again after World War II, as some notable criminal trials received much media coverage. At the time, lawmakers proposed adding a rule to the law banning recordings of court hearings, while allowing the attorney general to grant occasional exceptions. This proposal was passed without any opposition in the parliament, which shows that the prohibition of public hearings was the consensus of all sectors of French society at that time. Although most courts in France have auditoriums, it is absolutely forbidden to report the trial process to the public without permission. In 1954, France amended its general law on freedom of the press, prohibiting the use of devices capable of recording images once trial proceedings have begun in court, and the presiding judge has the power to seize and confiscate any device used in violation of this rule. Since then, France promulgated a new "Criminal Procedure Code" in 1958, of which Article 308 strengthened this prohibition: once the trial begins, it is prohibited to use any recording, broadcasting or camera equipment, and offenders are fined 18,000 francs. This was a very severe punishment at the time and is still used today.
Since then, France has continued for a long time the system design that the trial process cannot be publicly reported. Only a few important cases were allowed to be recorded, but they were only kept as archives, and publicity was absolutely prohibited. It wasn't until the 1990s that filming court proceedings was occasionally permitted by judges and sometimes by the Justice Department. Television stations and film companies also produced and screened several documentaries about the trial, which once again sparked discussions on whether the trial should be made public, but these discussions still did not substantially change the principle of prohibiting the public hearing of the trial. In 1998, France passed a new law to grant legal status to remote trials. Three years later, it was stipulated that audiovisual or sound recordings should be made in remote video conference trials, especially the interrogation of minor victims of sexual crimes. The process should be recorded. However, the records are still prohibited from being published, and penalties are provided for illegal publication and dissemination. Remote video trials have been increasingly used in French judiciary today. Although it technically solves the problem of open court trials, it has not substantially changed the situation that prohibits the publicity and dissemination of court trials. The reason behind it is still the judicial tradition of extreme conservatism and mysticism in France.
(3) Summary and outlook
Even compared with Germany, which is also a civil law country, the French judiciary is very conservative. Because of some "disgraceful" performances during the Nazi rule, the German judiciary carried out many reforms after the war, including strengthening the substantiveness of judgment documents, sufficient reasoning, and enhancing the transparency of court trials, with the purpose of making the judiciary more subject to public opinion supervision, Embody the principles of substantive justice. But in France, the reform process clearly lacks momentum. Although most of the effective judgment documents of the French high-level courts (such as the Supreme Court and the Supreme Administrative Court) are released for free on the official website, it is not very easy to find them, and key information such as the names of the parties are also hidden, and due to their reasoning Simplify the features, and the disclosure effect is not obvious. Today, many countries are actively promoting the application of big data and artificial intelligence technology in judicial adjudication, but in March 2019, France explicitly prohibited the use of big data to study the rules of judges' adjudication. All these show that it is difficult to make a breakthrough in the openness of court trials in France under such a state of conservatism, unless a decisive political event occurs.
3. Russia: Enhancing Citizen Supervision through Open Court Trials
(1) Functional background
Compared with the situation in France, Russia's judicial trials are very open and transparent, at least at the level of legal norms. This has a very important connection with Russia's past legal traditions and today's political environment. In the Russian tradition, the relationship between law or jurisprudence and politics has always been relatively close. In the empire and the former Soviet Union, there were some public trial initiatives (such as the "public trial" in the 1930s) that embodied this judicial tradition. From the perspective of constitutional separation of powers, Russia's judicial organs and their staff, like other state agencies and their staff, have assumed more political functions and responsibilities. President Putin has also emphasized in his speeches many times that laws need to match the political goals of the country. In this context, the primary function of the open trial system in today's Russian politics and society is to enhance the credibility of state power organs, share the pressure of democratic politics, and stabilize public power. After the disintegration of the Soviet Union, especially since the Putin era, on the one hand, Russia has been influenced by external politics and actively promoted the process of democratization in various fields. On the other hand, it has been committed to promoting the openness of court trials, etc. The work of enhancing judicial transparency has achieved more results.
(2) Standardization and debugging of open court hearings
Article 123 of the "Russian Federation Constitution" stipulates: "All courts shall review cases openly. The act of filming a case trial needs to be permitted by federal law." This is the highest source of law for Russian court hearings to be open. Russia is also a relatively rare country that stipulates in detail the principle of open court hearings in its constitution. Article 241 of the Russian Criminal Procedure Law and Article 10 of the Civil Procedure Law also make similar expressions, and further stipulate that during the court session, anyone (including media professionals) has the right to make written records and use audio equipment to listen to Hearings are recorded without informing the court of the intention to use this right or seeking permission for this activity. However, permission from the court (or the presiding judge) must be obtained for the following situations: photographing, videotaping, and broadcasting proceedings by radio or television. On the basis of these laws, in 2010, Russia promulgated two more important laws related to the disclosure of court hearings—the "Law on the Provision of Information on Obtaining Information on the Activities of Government Agencies and Local Self-Government Organs" and the "Russian Court Information Disclosure Law". The former is the basic law that regulates the information disclosure of various public departments in Russia, including courts, while the latter stipulates the specific content of court information disclosure in more detail. These two laws (especially the latter) are of great significance in establishing the openness of court hearings in Russia. First of all, they clarify that the scope of court trial disclosure is very wide, involving all aspects of court activities; secondly, they stipulate that there must be various ways to obtain court information, including Internet platforms and other ways; thirdly, in During the process of court information disclosure, special attention was paid to the rights of the media and citizens, and corresponding relief procedures were stipulated.
In addition to national legal norms, the most important promoter of the openness of court hearings in Russia is its Supreme Court. As an important branch of the central state power, the Supreme Court of the Russian Federation also regards the improvement of judicial credibility as an important functional goal of the exercise of power. In the past few years, it has been working hard to promote the judicial system throughout Russia by issuing judicial interpretations and judicial guidelines. Publicity, including the publicity of judgment documents and court hearings. In 2010, the Russian Supreme Court promulgated the "Resolution of the Plenary Session of the Supreme Court of the Russian Federation on the Court's Application of the Statute of the Russian Federation on Mass Media", which stipulates that unless there are special circumstances (substantial evidence that can affect a fair trial), The court shall not refuse media or individuals to record and disseminate court hearings. At the same time, the "Resolution" further explained the procedures for using audio-visual equipment in court, and the Supreme Court provided an important reference point for judges when deciding whether to allow the use of audio-visual or broadcasting equipment in court: on the one hand, judges should Balance everyone's right to freedom of information, on the other hand, should also take into account the right to personal privacy. It is also the first time in history that a Russian court has been instructed to consider the need for citizens' right to know in this case.
At the end of 2012, in order to further respond to social expectations, especially in response to the new measures of the Russian Higher Arbitration Tribunal in terms of disclosure, the Supreme Court of the Russian Federation issued an important "plenary meeting resolution", proposing that any journalist or individual record and broadcast Absolute protection policy for trial information. Although these resolutions did not change the previous legislation, nor did they deprive judges of the right to review and decide on court hearing information records and reports, they clearly guided judges not to easily deny applications for rebroadcasting court hearings under non-special circumstances. The resolution further narrowed the conditions for the court to refuse to open the court hearing, including specific cases involving personal privacy and endangering national security, and gave detailed explanations for each situation; it also stipulated that the court should provide as much information as possible to the media reporting the court hearing. If the court refuses to record and rebroadcast, it needs to provide detailed reasons; journalists can first enter the court with a rebroadcasting device and then obtain permission; judges will be punished accordingly if they intentionally restrict the media to report on the court hearing, etc. The above resolutions and interpretations of the Russian Supreme Court supplemented the legal provisions on the openness of court hearings, and for the first time proposed the necessity of considering citizens' right to know, thus providing a relatively complete institutional guarantee for the openness of court hearings. In practice, Russia’s judicial openness will also encounter some conflicts of norms and values, including the protection of portrait rights and privacy rights, conflicts between media reports and final judgments, etc. Courts generally tend to issue typical cases and judicial policies. way to solve these problems.
(3) Comparison and summary
On the whole, based on the relatively urgent functional goal of improving the credibility of the judiciary, the Russian government has a very positive attitude towards the openness of court trials, and has made clear regulations in the law. However, because the legal provisions themselves are abstract and the reality is complex and changeable, the law sometimes lags behind the reality. Therefore, legal loopholes need to be filled by issuing judicial interpretations (resolutions), collecting and evaluating precedents, and other methods. This point can also reflect Russia's legal tradition different from that of the West. Compared with most western countries, Russia's judicial disclosure system is the most thorough and comprehensive, and it is relatively close to the corresponding system in my country—to some extent, they all follow the policy of "disclosure as the principle and non-disclosure as the exception". Also similar to the situation in our country, the Russian legislature and the Federal Supreme Court have a strong binding force on the entire judicial system. In laws, judicial interpretations, and various regulations, they emphasize the necessity of open documents and court hearings, and require that the judicial system must be opened to citizens as much as possible in order to gain public trust. This is the most important institutional guarantee for the smooth development of Russia's court trial disclosure work.
In practice, there are also significant differences between Russia's live broadcast of court trials and the situation in my country. The most important point is that Russia has been pursuing the principle of "passive" disclosure upon application. That is to say, through laws and judicial policies, the rights of the media and citizens to watch, record and report on the trial process are guaranteed as much as possible, but they have not chosen to actively and large-scale live broadcast of court trials. It is conceivable that taking such measures will bring about two functional and practical positive effects: one is to save costs; the other is to better reflect the subject status of citizens in supervising the judiciary. In theory, the court only needs to provide guarantees and services for this citizen supervision process as much as possible, and does not need to use its own means to actively broadcast the trial process. This will also reduce citizens and the media's doubts about the "selective disclosure" of judicial trials, so it is an operable system that is more conducive to the realization of the functional goal of trial disclosure (enhancing judicial credibility).
With the development of Russia's political society, this open approach to court trials will also encounter various controversial issues in reality. For example, some researchers have pointed out that the part of the Russian judicial process that is disclosed in court trials is relatively limited and formalized, and a large amount of substantive content is considered and resolved in non-public links such as pre-trial meetings. Influence. In the face of these problems, the judicial and academic circles in Russia are constantly discussing, revising and improving the judicial disclosure system to meet the needs of practical development.
4. The United States: Case Study and System Evolution under Legal Pragmatism
(1) Functional background
If the French judiciary is rooted in the systematic and conservative features of the civil law system, then the judicial practice of the United States embodies more the spirit of pragmatism in the Anglo-American law system. Pragmatism is one of the most important functional backgrounds for the evolution of the open trial system in the United States. The difference in openness between Anglo-American law and civil law has long been talked about by comparative law circles. Continental law is generally regarded as the law of jurists, while Anglo-American law is closer to ordinary people's empirical concept of justice, so Anglo-American law is considered to be more open than civil law. Of course, within the Anglo-American legal system, there are differences in this openness. British law is considered to be more formal, while American law is more flexible and open due to its pragmatism. Against this background, the evolution of the judicial system in the United States, like the development of other legal systems in the United States, does not pay much attention to systematization, nor does it have a unified "guiding ideology". Explore and evolve.
Courts in the United States are divided into federal and state systems. With the evolution of judicial practice, the courts of various systems have developed very different regulations and practices on the openness of court hearings, which are relatively chaotic and complicated, and the differences between states are also relatively large. In general, because the issues dealt with by state courts are more relevant to ordinary people's daily life, they are more practical and the hearings are more open than federal courts. There was even a case where a judge of a certain district court invited a local TV station to film his court session, and then became a famous "Internet celebrity" judge. But the federal court system is far more conservative and controversial in this regard. In 2017, noted judge and scholar Richard Posner argued that federal court hearings should also be fully livestreamed. That created a serious disagreement with other justices on the Seventh Circuit Court of Appeals, where he sits. Posner eventually "retired" in anger and published a book explaining his advocacy for federal judicial reform measures such as live court hearings. These practices and controversies all illustrate the unsystematic, complex and diverse aspects of disclosure in various court systems in the United States, with pragmatism as an important background. In view of this diverse and complex situation, this part mainly focuses on the institutional changes in the federal court system in the openness of court hearings.
(2) Institutional evolution and the role of landmark cases
In early judicial practice, the U.S. federal courts explicitly forbade the openness of court hearings to the general public, believing that it would seriously interfere with the independent trial of judges. Since the 1940s, Rule 53 of the Federal Rules of Criminal Procedure promulgated by the U.S. Supreme Court stipulates: "Except as otherwise provided by statute or these rules, the court shall not permit the taking of photographs in court or the transmission of court trial.” This clause has also become the basic norm for the closed trial of criminal cases in the US federal court system, and its effect has been affected to this day. In 1972, the Judicial Conference of the United States (JCUS) passed the "Prohibition Prohibiting Broadcasting, Video Recording, or Photographing of Courtrooms and Immediate Areas" and included it in the Code of Conduct for American Judges. This prohibition has also been inherited and followed by various written rules of the federal court system and has become a universal norm. At the same time, the legal professional community in the United States has also banned various forms of public hearings in the form of industry norms, especially the media's in-depth reports on criminal cases are strictly controlled. In 1935, the "Lindbergh Trail" sparked a media and public frenzy. This incident prompted the American Bar Association to revise the industry norms, emphasizing that filming and live broadcasting court proceedings in court is detrimental to the dignity of the court, and prohibiting video equipment from entering the courtroom. In 1965, in the famous Estes v. Texas case (Estes v.Texas), the Federal Supreme Court held that television recordings would interfere with jurors, witnesses and parties, affect the fair trial of the case, and make the public Prejudice to the verdict, so the verdict prohibits cameras from entering the courtroom.
However, since the 1980s, some changes have taken place in the ideological landscape of American society and the Federal Supreme Court. Some judgments at that time also opened a window for public opinion to supervise judicial cases. In Chandler v. Florida in 1981, Chief Justice Warren E. Burger revised the 1965 precedent in the majority opinion, holding that "in particular cases , the danger that the jury may be disturbed by the cameras is not sufficient to justify a complete ban on news coverage of criminal cases." Media coverage of court trials is not unconstitutional, so states can explore this area. Accordingly, the American Bar Association also revised the previous industry norms in 1982 with a vote of 162 to 112, recommending that states allow courtroom cameras under the condition that there is no hindrance to litigation participants and the process is not disturbed. Since then, federal courts and state courts have gradually liberalized the control of trial cameras. In 1995, the famous "Simpson case" was a symbolic event that the American criminal trial was opened to the media. A large number of media have intensively reported on this sensational case, but some media still use "court sketches", while others have already used a small amount of audio-visual materials.
Beginning in the late 1980s, under the leadership of the Supreme Court, the Federal Judicial Conference, and the Federal Judicial Center, the US federal court system has carried out a series of pilot projects to investigate the impact of television broadcasts and other behaviors on judicial trials. This kind of experiment is very consistent with the characteristics of pragmatism and empiricism in American law, and has achieved certain results. Trials and refinements continued for more than two decades. In the meantime, many federal courts except the Supreme Court have tried to conduct live broadcast of court trials, but the scope of cases is still very limited, mainly for civil cases, and the number of live broadcast of criminal cases is very small. During this period, there were also some judgments of the federal court system, which took a more cautious and conservative attitude towards the live broadcast of large-scale court trials.
So far, the U.S. federal courts are still very cautious about the openness of court trials represented by live broadcast of court trials. In May 2020, under the influence of the epidemic, the Supreme Court of the United States held the first remote trial in history, and in order to protect the right of citizens to attend, the court debate was broadcast live online. This is an attempt by the Federal Supreme Court to limit the disclosure of trial content, but it remains to be seen what significance it will have on the development of open trial in the United States. The author also discovered by browsing the official website that among the federal circuit courts of appeals in the United States, only the District of Columbia Circuit Court and the Ninth Circuit Court have published live audio broadcasts of oral arguments on their websites. Playback on demand. A handful of other federal courts, such as the Sixth Circuit, upload a certain amount of audio after a hearing.
(3) Comparison and summary
Looking at the gradual development of open court trials in the United States over the past century, it is not difficult to find that the core essence behind it is still the protection of citizens' right to know (involving freedom of speech and media reports, etc.) and the independent and fair exercise of judicial power by the courts. tension between. The functional difference between the judiciary of the United States and that of countries with civil law systems such as France lies in the fact that to a certain extent, it has to face public doubts and the pressure of democratic politics more directly. This is caused by the relatively "unique" constitutional separation of powers in the United States. Unlike France, the three branches of power in the United States—judicial, executive, and legislative—need to directly undertake certain functions of democratic politics (although there are differences in degree and form among them), rather than just passing them on to the judiciary from representative institutions. In this context, the function and significance of the open trial system in the United States are highlighted. Coupled with the pragmatism tradition of American law, it seems to be an important trend in the development of American judiciary to treat the publicity of court hearings step by step and on a case-by-case basis.
But also according to the functionalist point of view, the openness and openness of judicial trials in the United States depend to a large extent on the political and social environment of a specific period, especially the political leanings of the justices of the Supreme Court, and whether they are open or not. The occurrence of landmark cases that strongly influence public opinion, etc. The "retirement" event of Judge Posner mentioned above is not enough for the federal court system to undergo a thorough reform. According to the current ideological structure of the US Supreme Court, judicial conservatism still has a large market in high-level courts. It is foreseeable that in the future these high-level courts in the United States will still maintain very limited public hearings. At the same time, the pressure of democratic supervision and the gradual reform of state courts and district courts may prompt them to make slight adjustments in the future to respond to social expectations.
5. From the practice of extraterritorial systems to the functional orientation of open court trials in my country
(1) Typed summary and comments from the perspective of functional comparison
The above article introduces and analyzes the experience and functional background of three typical court hearing openness systems in the world today. In general, the openness of family trials in major countries is basically within this range. For example, some data show that the openness of court trials in Japan is similar to that of France, and both belong to the more conservative type; the openness of court trials in the UK is slightly stronger than that of France, but is still relatively conservative; the openness of court trials in Canada and Brazil is stronger than that of the United States, but Not as open as Russia. Before discussing China’s court trial openness system, we can first make a typological abstraction and summary of the court trial openness in major countries in the world based on the above discussion (see Table 1).
Table 1 The institutional experience and functional background of the three court hearing disclosures
As shown in the table above, from a functional approach, the degree of openness of a country’s judiciary mainly depends on its political and social foundations (constitutional decentralization structure, macro-political practice, law and jurisprudence tradition, etc.) The functional requirements and expectations of social media are also deeply affected by contingency factors such as specific social events (especially judicial cases with huge public influence). Conversely, whether the role of trial disclosure in a country’s institutional system is appropriate mainly depends on whether it can properly respond to the country’s political and social traditions and practices. If the degree and method of court trial openness are understood as dependent variables in social science research, then the other items listed in the table—the structure of constitutional separation of powers, important cases, and legal (jurisprudence) traditions—are the The important independent variables abstracted. In an ideal functionalist model, the degree and method of open court hearings will change with the changes of these independent variables, and it can also be used to evaluate the practical performance of a country's open court hearing system.
Of course, the induction and summary so far in this article are still a little rough. It only provides an explanation mechanism for the issue of court hearing disclosure from the perspective of functionalist comparative law, and has not taken into account other laws and regulations that are compatible with it in the domestic legal system. Institutional variables—especially other publicity measures related to the publicity of court trials, such as the publicity of judgment documents and the publicity of the execution process. Therefore, the research in this paper is only a preliminary functionalist modeling in the sense of comparative law. It is hoped that it can be used for subsequent academic discussions, especially for the evaluation and research of various judicial disclosure systems in my country from the perspective of functionalism, and to propose a possible model. starting point.
(2) my country's "Political and Legal Tradition" and the Openness of Court Trials
As a study of comparative law, the domestic issues that this article can deal with are relatively limited, and can only be discussed at the initial level as a continuation. To re-examine my country's open trial system from the perspective of functionalism in comparative law, we can at least draw the following preliminary conclusion: the design of the judicial open system, including open court hearings, must take my country's actual political and social conditions and legal traditions as the starting point , we can’t just learn from the institutional design outside the region without considering the functional background behind it; it must also be based on the realization of some important value goals of our society, and proceed from the perspective of whether the system can properly play the corresponding social function. Design and Debug.
Compared with other countries, the most prominent feature and essential attribute of my country's judiciary lies in the "political and legal tradition" and the consistent implementation of the principle of "judiciary for the people". "Political and legal tradition" means that my country's judiciary is under the leadership of the Communist Party of China, with "serving the people" as its fundamental goal. The role of the judiciary in the national system and the exercise of its powers must be based on this value goal. We can see that "judiciary for the people" is the guiding ideology throughout from the judicial practice during the revolutionary period to the various macro-policies on judicial reform introduced in recent years. General Secretary Xi Jinping's famous saying "Let the people feel fairness and justice in every judicial case" is almost prominently displayed in judicial organs at all levels across the country today. "Concentrated embodiment.
"Political and legal tradition" is the starting point when we think about the value and function of our country's open trial system. It requires that my country's judicial work must be oriented to the masses, not just to the legal professional community or the parties involved. In practice, my country's judicial organs (especially the courts) are also the main body most directly facing the masses to resolve disputes and realize judicial governance, and they have assumed important political functions. Therefore, similar to the situation in Russia, the primary functional goal of my country's trial disclosure should be to enhance the credibility of the judiciary among the people. Under the guidance of such a goal, we certainly cannot pursue French-style judicial conservatism and mysticism, which will widen the distance between the judiciary and the people. However, this does not mean that thorough judicial disclosure should be carried out without reservation. That would damage the judicial function of independently exercising judicial power in accordance with the law to a certain extent. "The realization of value goals.
(3) Reflect on the effect of open court hearings through individual cases
As mentioned above, in the process of designing and debugging the open court trial system in various countries, cases that have received wide attention have played an important role. Therefore, the ideal functionalist approach to promoting the openness of court trials should be based on a general principle (in my country, it is the "political and legal tradition"), and constantly make detailed adjustments according to specific situations (especially influential cases). Next, we can also briefly analyze the relationship between judicial openness and the improvement of credibility through several typical cases that have occurred in my country in recent years.
In the "Yu Huan case" in 2017, the judiciary did not speak to the public in a timely manner, lagging behind the media's speed of reporting the case. And because there is a gap between the legal knowledge mastered by the public and professional legal practice, the case has aroused great controversy and discussion in public opinion, and even seriously endangered judicial credibility. Even though the sentencing of the first-instance judgment did not exceed the statutory penalty, the public still strongly questioned it based on a simple concept of justice. In the end, when the Supreme People's Procuratorate intervened and the sentence was changed in the second instance, the public opinion gradually subsided. In order to establish the principle of unification of "legal effect" and "social effect" in future trials, the second-instance judgment of this case was identified as a guiding case by the Supreme People's Court. Compared with the first-instance judgment that caused widespread controversy, the second-instance judgment differs most not only from the sentencing, but also in the addition of a lot of detailed substantive reasoning. The dispute process of the "Yu Huan case" shows that in the face of "sensitive" cases, judicial disclosure must not only be timely, but also combined with detailed reasoning, based on the principles accepted by the common people, and avoid formalistic and simple procedural disclosure. It may be helpful to improve judicial credibility. At the same time, the more influential a case is, the more detailed it must be made public. The "social effect" achieved by the detailed disclosure of such typical cases is functionally far stronger than the disclosure measures that only pursue quantity.
In the "Zhang Kou Kou case" that aroused great public attention in 2019, the defendant's defense lawyer published his defense words on the Internet during the first instance, trying to arouse the emotional resonance of the public with vivid rhetoric. Many members of the public applauded this. However, a well-known law professor made severe criticism from a professional point of view, arguing that legal professionals should pursue "artisan spirit" instead of promoting "ethical appeal" to the public. The follow-up debate of the case also continued to burn in the public domain. This shows that in the process of judicial disclosure, which stages are suitable for disclosure and who should make disclosure, these issues deserve special attention, and different choices will bring about significantly different effects. Just like the situation encountered when discussing the openness of Russian court trials above, if the court hearings are too formalized and "go through the motions", the improvement of judicial credibility brought about by the openness will be very limited, and the public's attention will instead be attracted by other links . Trials are an important part of the judicial process. If the public has doubts and concerns about other links or the degree of substantiveness of court trials, then the distribution of judicial openness in different procedural stages should be adjusted appropriately, or the substantiveness of court trials should be strengthened.
The last related case was the "Yang Mi reputation infringement case" that occurred in the same year. Since the party involved in the case is a well-known entertainment star, the live broadcast of the trial of the case has attracted widespread attention. Judging from the effect of the implementation, the openness of the trial, which was supposed to undertake the functions of reasoning and popularizing the law to the public, has aroused various emotional actions from the public: some "fans" even made speeches against the national judiciary in order to protect their "idols". At the same time, the behavior of some "black fans" made the judge concerned "enjoy countless fans" in the sense of entertainment. This is a typical case where the public selectively "reads" the disclosure of court hearings. Because of the possibility of selective disclosure and selective "reading", the presentation of the above three cases proves to a certain extent that the relationship between simple disclosure and the improvement of judicial credibility is not a simple positive relationship, but requires more Sophisticated system design can play an open and positive social function.
(4) Localization debugging of overseas public experience
This leads to another question that can be further discussed from the perspective of functionalism, that is, how to promote the openness of court trials step by step and effectively? This question requires more detailed research to answer accurately. As far as the standpoint of functionalist comparative law adopted in this paper is concerned, drawing on the experience of foreign countries, the author believes that the construction of our open court hearing system should first try to avoid the one-size-fits-all simplification of policy formulation, and avoid the lack of effective research and pilot projects. In particular, it is necessary to avoid disclosing only a large number of simple cases based on concerns about public opinion, while selectively not disclosing some complex and "sensitive" cases. Although doing so can quickly show numerical and formal achievements, it may ignore the actual effect of improving judicial credibility in important cases.
Looking at the evolution of the court hearing disclosure system in various countries, the process is basically prudent and slow, and great attention is paid to the role of individual cases in promoting the disclosure system. Because the occurrence of some cases with wide influence is itself a touchstone for testing the actual effect of judicial openness. Full discussion and reflection on individual cases can more effectively measure the gains and losses of the open trial system in each link, and further improve the system. In the past century, the U.S. federal court system has gradually promoted the openness of court trials on a case-by-case basis based on a pragmatic standpoint, which is a typical example. Even in Russia, which is closer to my country's institutional principles, the problems presented by individual cases often receive a lot of attention. Paying attention to individual cases does not mean that once a case occurs, we should simply deal with it across the board, but to reflect on the system setting on the basis of sufficient research on the individual case. For example, the three cases mentioned above are very good research samples for reflecting on the system of judicial openness.
Secondly, to promote judicial openness, we must also pay attention to the implementation effects of various systems, and balance the roles of various open systems within an appropriate functional system. The previous article discussed from the perspective of comparative law that various macro-power organs (such as representative institutions and judicial organs) should play complementary functional roles when undertaking political functions. Similarly, some micro-systems of judicial disclosure (such as the disclosure of judgment documents and court hearings) and the more detailed micro-systems of court hearing disclosure (such as recording and broadcasting and live broadcasting, disclosure by ex officio and disclosure by application) should also cooperate with each other. Different functions of judicial disclosure. Under the guidance of this principle, the next research on judicial openness in my country should be practice-oriented and functional-oriented—through scientific empirical research methods, to evaluate the actual impact of different judicial openness mechanisms on credibility issues, and on this basis to compare Dynamically configure and improve the disclosure mechanism. Before policy formulation, in addition to consultation and scientific investigation and research, trials and evaluations should be carried out on issues such as the openness of court hearings at different levels and levels, so as to fully grasp the actual effect of openness. After the policy is formulated, we should not only be satisfied with the formal results such as numbers, but should pay more attention to the actual public effect. In these processes, scientific social research methods are indispensable. These measures can effectively promote the openness of court trials in my country to move from the pursuit of quantity to the pursuit of quality, and this is an important step in effectively improving judicial credibility.
In addition, the enlightenment brought to us by the open experience of court trials outside the territory lies in the choice of "active" and "passive" methods of openness. Also based on the standpoint of functionalism, this article believes that we can learn from Russia's experience and properly introduce a "passive" system design for open court hearings upon application. At the level of legal norms, it is necessary to protect the rights of the people and the news media to understand, report, and disseminate judicial trials except for very special statutory cases, rather than just actively posting live broadcasts of most court trials on the Internet and letting them go. Because even if the court voluntarily broadcasts a large number of court trials online, but does not specify the detailed criteria for judging whether to broadcast live or not, and does not announce the reasons for non-disclosure of those cases that are not broadcast live, then there will still be concerns from the people about "selective disclosure". "Questions. But if it is the other way around, as long as it is a judicial trial that the people want to know, except for very special statutory cases, the courts will guarantee their right to actively understand and disseminate it, then such doubts from the masses will be resolved accordingly, and judicial credibility will also be improved. has been further improved. Such a system design can also moderately reduce the human and material investment of courts at all levels in the live broadcast of court trials, allowing courts at all levels to devote more energy to specific disclosure measures that can truly improve judicial credibility.
Looking at the publicity system and practice of court trials in various countries in the world, most countries have chosen different system designs based on their actual conditions and focusing on the different political and social functions of the system. Of course, the practice of open court hearing system in various countries is also in the process of constant discussion, controversy and change. No matter what kind of system needs to be tested in practice, there is no perfect system, only the most suitable system for the environment, which is the basic position of the functionalist approach. The most important conclusion drawn from the study of functionalist comparative law in this paper is that under the guidance of a functional goal and within an appropriate functional system, the roles of various judicial disclosure systems should be balanced, and more attention should be paid to various disclosure systems actual effect. In order to achieve this goal, our future research on the openness of court trials should be supported by scientific social research methods and focus on the actual effect of improving judicial credibility.
In the past few years, my country's court system has invested a lot of manpower and material resources in judicial openness measures such as live broadcasting of court trials, and has also achieved world-renowned achievements. This paper believes that the future development of open court trials in my country should be based on the above-mentioned achievements, and pay more attention to the quality of openness, so that the system design of open court trials will be more conducive to achieving the functional goal of improving judicial credibility, and finally effectively realize judicial justice. lofty ideals of the people. At this year's "Two Sessions", some members of the CPPCC suggested that judicial openness be included in the legislative plan, and a special "Judicial Openness Law" be formulated to regulate various openness measures, including court hearing openness, to make them clear and standardized. This shows that the importance of judicial openness is becoming more and more prominent, and relevant in-depth research and system exploration will also become hot spots. In comparison, my country's legislature and the Supreme People's Court have high authority in the entire legal system, which is an institutional advantage in promoting and reforming the openness of court trials under my country's existing system. By making good use of this institutional advantage and having a solid grasp of my country's "special" political and social environment, we can truly make the openness of court trials a bright business card for China's judiciary.