Dissertation
Dissertation > Political, legal > Legal > Chinese law > Justice system

Expression of freedom and independence of the judiciary conflict and its trade-offs

Author Hu
Tutor ZhangGuangJie
School Fudan University
Course Legal
Keywords Freedom of expression Freedom of speech Independence of the judiciary
CLC D926
Type Master's thesis
Year 2011
Downloads 207
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The right to freedom of expression is one of the fundamental human rights recognized in modern constitutionalism, and the principle of the independence of the judiciary is an essential element required by the modern constitutional balance of powers principles. Despite their different understanding, but the Constitution of the vast majority of countries in the world are admitted in different forms both statutory. However, although both consistent constitutional value targets, but can not avoid the inherent conflict between. The media and the public rely on the right to freedom of expression and opinion to the jurisdiction, but in this case, it is likely to damage the independence of the trial court. Especially in our country in recent years, public opinion supervision of judicial behavior is increasing and the accompanying public trial, moral judgment began to highlight the expression of the conflict between the freedom and independence of the judiciary are becoming increasingly apparent. However, the legislation of only a handful of relevant domestic adjustment to express the relationship between freedom and the independence of the judiciary. In comparison, in many developed countries, for weighing the expression of the conflict between the freedom and independence of the judiciary, legislative and legal practice has accumulated abundant experience. This paper tries to Legal Analysis of the expression of the freedom and independence of the judiciary, to learn from foreign experience, while making reference to China's legislative and judicial practice, some normative recommendations in this article on the legislation of the relationship between freedom and the independence of the judiciary in dealing with expression is divided into four chapters, organized as follows: Chapter 1 Overview express the basic concept of the freedom and independence of the judiciary. The author summed scholars description of some of the terms used in this article the concept of the definition of the expression of the freedom and independence of the judiciary concept. And analysis of the expression of the freedom and independence of the judiciary jurisprudence. Part in the analysis of the legal principle of freedom of expression, the author begins with a brief review of the history of the development of the theory of freedom of expression, and then make their own discourse to express the fundamental value of freedom in the framework of the mainstream view, finally, the boundaries of freedom of expression and on expression of some of the free boundary theory. Part in the analysis of the legal principle of the independence of the judiciary, the author begins with a brief review of the course of and analysis of judicial independence in the system build, and then discusses two aspects of legal principles on the independence of the judiciary. I believe that the value of judicial independence lies not only in the separation of powers, judicial fairness demand that judicial activities behind. The second chapter from the perspective of the theoretical analysis of the relationship between the expression of the freedom and independence of the judiciary were analyzed and weighed the expression of the freedom and independence of the judiciary, conflict resolution standards. The author first analyzed the legitimacy of judicial oversight through the exercise of freedom of expression, and then on tyranny of the majority opinion on the administration of justice may endanger freedom of expression on the consequences of the independence of the judiciary affected in turn derived from the analysis of the course of justice angle, then from The paradigm of judicial activities start to analyze the significance of the independence of the judiciary to get rid of the influence public opinion, and public opinion on the independence of the judiciary have an impact criteria, and at the same time the boundary of the independence of the judiciary. Finally, on this basis, the author proposed treatment guidelines to express the relationship between freedom and the independence of the judiciary, and a brief discussion of the meaning of freedom of expression and judicial independence synergistically promote the development of the rule of law. Chapter I first introduced the practice of extraterritorial laws, and then presents and analyzes the case and the provisions of relevant domestic and several performing system design should follow the principle of our special. The fourth chapter from a practical point of view, the legislative expression of the conflict between the freedom and independence of the judiciary on the trade-off to make some normative recommendations.

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