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Regarding judicial reform, Qin Mu proposed several reform requirements, namely neutrality, independence, professionalism, unity and openness. These requirements seem simple, but are actually extremely difficult to achieve.
In all dynasties after the Qin Dynasty, power was greater than law. The greater the power in one's hands, the less the law would constrain them, and conversely, the greater their ability to control the law.
As the saying goes, "No official shall be punished." It was not just the emperor who was above the law. It was common for high-ranking officials and nobles in all dynasties to bully men and women and harm the people at will. Some of them were punished by the law.
Even if they are punished, it is often for political purposes rather than simply because they have violated the law.
Against this backdrop, how easy is it to establish judicial neutrality and independence
The so-called judicial neutrality, if we compare judges to referees, the neutrality of judicial power requires that: judges cannot run around the field like some ball game referees. Referees running around the field are difficult to be neutral, and referees who are not in a neutral position are prone to make wrong judgments. This is one of the main reasons why the fairness and accuracy of some ball game referees' decisions are often easily doubted.
It is different for a volleyball referee. He stands outside the court, in the middle of the court and higher than the net. Athletes may not be able to notice when the ball touches the net or goes over the net, but the referee in the middle can see everything clearly, and the penalty results rarely cause doubts.
Therefore, the judge should be impartial and fair like a volleyball referee, treating the plaintiff and defendant and the prosecution and defense impartially and fairly, and strive to make accurate judgments without being restricted by their position.
If the referee cannot remain neutral, the fairness of his or her judgment will be questionable.
In the Jianjia Palace, Qin Mu frowned and thought. Judicial reform was actually the core content of his series of reforms. Without a sound judicial system as support and supervision, other reforms would only be temporary solutions and not a fundamental solution.
To promote judicial reform, it is definitely not enough to simply dismember and split the Ministry of Justice or other judicial departments. This is a grand and complicated hierarchical design.
For example, on the issue of judicial neutrality, Liu Rushi expressed her own different views.
Outside the Jianjia Palace, the west wind was getting stronger, blowing over the high eaves, making a whirring sound. The palace was heated by the floor, and it was warm as spring. Liu Rushi was only wearing a thin palace dress, and she looked graceful and charming at first glance, with a figure as graceful as a young girl. But a closer look revealed that she was full of the charm of a plump young woman.
Qin Mu was more casual. He would write down whatever he thought of. These thoughts were usually rather scattered, so they were sorted out by Liu Rushi or Li Xiangjun.
In terms of talent, Liu Rushi, Li Xiangjun, and Dong Xiaowan were no less than first-class Jinshi, and as women, they were more thoughtful and meticulous in their work. With their help, Qin Mu felt much more relaxed.
Liu Rushi helped him organize his things and was very familiar with his judicial reform. She couldn't help but say, "Your Majesty. Officials in charge of the judiciary must remain neutral, and this neutrality itself will inevitably bring many negative effects."
"Negative impact?" Qin Mu put down his pen, asked her to come to him, and said with a smile. "Tell me in detail what negative impact this will cause."
Liu Rushi had a delicate fragrance, and as soon as she came close, it filled Qin Mu's nose, and it smelled good, even better than the ambergris in the palace.
"Your Majesty, the law is the last line of defense in resolving social conflicts, but it is not the only means. For many disputes, negotiation, reconciliation, mediation and arbitration should be the first choice for the parties involved. I think it is better not to use judicial resources to resolve civil disputes until the last minute.
Your Majesty may not know that, in fact, more than 70% to 80% of disputes among the people are successfully resolved through mediation and arbitration by the elders and respected people in the village. These respected people are actually the judicial mediators among the people.
Because they live in the local area, they often have a better understanding of the ins and outs of local disputes, and the people understand their nature. As long as they arbitrate the case impartially, it is easier to convince the parties involved. In short, the proportion of disputes among the people that actually reach the government is actually very small.
Even if the case is brought to the government, if the two parties can reach an understanding through the mediation of the officials, the case will not only be handled more quickly, but a voluntary understanding is also better than a cold judicial judgment. Because in this case, even if you use the law to force a judgment, the parties may not be convinced, which can easily lead to disputes again.
However, the judicial neutrality that Your Majesty emphasizes will play a more negative role in negotiation, mediation, and arbitration. In order to ensure the neutrality of the elders responsible for arbitration, I am afraid that their behavior must be restricted by law. I hope Your Majesty can consider this for a moment. "
Qin Mu nodded repeatedly while listening. He understood what Liu Rushi meant. He also took football referees and volleyball referees as examples. Volleyball referees sit in the middle of the net, so they are definitely more neutral, but they are also more passive. When it comes to specific legal operations, there are obviously many shortcomings. This is too passive.
As for football referees, they chase after the referees. Because they are not neutral enough, their perspective on the issue is sometimes biased, and their decisions are more likely to cause controversy than those of volleyball referees.
But in fact, the act of a football referee chasing after the opponent can stop many people from committing intentional fouls in advance, because the referee is chasing and watching them.
Moreover, once someone commits a foul, they can also stop further conflict between the two sides in time. If the football referee only sits in the midfield like a volleyball referee, the two sides will start fighting after someone commits a foul. By this time you rush to stop them, the situation has become very serious.
Qin Mu was quite moved after hearing what Liu Rushi said. He thought that one should not underestimate their talents just because they were girls and came from brothels. In fact, in places like brothels, they could come into contact with all kinds of people and things, and their knowledge often exceeded that of ordinary scholars.
At least Qin Mu himself ignored the importance of mediation and arbitration beforehand.
In most countries in later generations, the reality is that the concepts of mediation and reconciliation are widely applied to criminal proceedings. Some countries have established a plea bargaining system, and about 90% of criminal cases can be settled through negotiations between prosecutors and defense lawyers or criminal defendants outside of court, saving a lot of the country's judicial resources.
The passivity of judicial power is also manifested in the fact that judicial organs should not take the initiative, but should wait passively. Generally speaking, the principle of no lawsuit, no trial is implemented, and judges cannot take the initiative to provoke parties to go to court.
In other words, if the judge actively instigates the parties to go to court, who would still believe that officials are neutral
Now Qin Mu wants to emphasize this neutrality. If it is implemented in this way, it will have an extremely negative effect.
As he pondered, he said, "The neutrality of the judiciary must still be emphasized. This neutrality is not necessarily in conflict with mediation and arbitration outside the government."
Seeing that she had listened to him, Liu Rushi was very happy. Although she was not ambitious due to her family background, she was still somewhat proud.
Her opinions were recognized by the emperor and were helpful to the country. For her, this was a reflection of her own realization, which made her happier than any reward.
Her face was full of joy, her beautiful face was charming, and she said repeatedly: "Your Majesty is right, the neutrality of the judiciary is the bottom line to ensure judicial fairness, and civil arbitration and mediation are conducive to resolving disputes from the beginning, the two are not completely contradictory.
This is actually the same as the difference between Confucianism and Legalism. Confucianism focuses on guiding people with moral principles, while Legalism is used to safeguard the bottom line of social order. Although the two are different, they can actually complement each other. "
"Is that so? Very good. You made a very good suggestion today. How do you want me to reward you?" Qin Mu asked with a smile, hugging her soft waist.
Liu Rushi said quickly: "How dare I ask for any reward? If Your Majesty does not blame me for being too talkative, I will be satisfied."
"Rewards are a must, hahahaha..." (To be continued...)
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