西南政法大学人权研究院执行院长、教授 张永和  （赵一帆 摄）


少数民族文化与司法审判方式改革 

　　少数民族地区与汉族地区在案件纠纷的具体类型、解决方式、解决条件等方面都存在许多差异。针对少数民族地区案件纠纷及其解决的特点和要求，少数民族地区在司法审判方式改革方面进行了诸多的探索。少数民族地区人民法院为方便人民群众诉讼，组成了巡回法庭，定期或不定期地巡回深入农村及交通不便、人员稀少等偏远地区，就地立案、就地开庭、当庭调解、当庭结案。巡回审判立案、审案的时间和地点具有较大的灵活性，弥补了我国当前法治不够接地气的现状短板，此举能够降低民众诉讼成本、提高法院工作效率、增强司法透明度，同时还能避免既有矛盾激化，且有利于指导人民调解工作和进行法制宣传。不过，这一方式也存在如案件受理范围模糊、民族语言的法律文件翻译滞后、易出现形式主义、可能会对非诉讼解纷解决机制造成冲击等问题。而且少数民族地区案件纠纷产生的原因往往较为琐碎，诉讼标的小，因自然条件等方面的原因造成办案成本高，而涉案因素性质较为复杂。经调查，少数民族更容易接受法院通过一些已经融入了民族习俗和民族个性的传统矛盾解决方式，因此，在纠纷解决中审判力量与社会力量有机结合的诉调衔接是有其必要性的。不过，少数民族地区的诉调衔接，在客观上面临各级法院经费紧张、人民调解员素质参差不齐和有关单位或个人不愿意参与调解的困难，在主观上则存在不适当地夸大调解的优越性和作用以及片面追求调解结案率的误区。由于随机抽取的人民陪审员经常无法按时参加案件审理，主审法官倾向于选择与自己关系较好的陪审员造，这样就造成了“陪审专业户”的现象。少数民族地区法院经费紧张，很难及时按规定给陪审员发放补助，影响了陪审员参加审判活动的积极性。因此，少数民族地区的司法实践中，虽然近几年来人民陪审员参审案件的数量呈逐年增加的趋势，但人民陪审员的参审率仍处于较低状态。
 

On Ethnic Minority Cultures and the Reform of Judicial Trial Proceedings

Zhang Yonghe

 In view of the differences in the specific types, settlement modes and conditions of disputes between areas inhabited by ethnic minorities and those inhabited by the Han Chinese, the largest ethnic group in China, many attempts have been made in the reform of the trial modes in areas inhabited by ethnic minorities on the basis of the characteristics and requirements of disputes and settlement in these areas. To make legal services easily accessible to local people, the people’s courts in the areas have formed circuit courts to operate in rural areas, remote and sparsely populated areas on a periodical or irregular basis and try to register lawsuits and open a court session on the spot, mediate and wind up a case in a single court session. The flexibility in the time and place of lawsuit registration and trial, which is conducive to improving the accessibility of the current legal system in China, can reduce the cost of litigation and improve the efficiency of the court, and thereby enhance judicial transparency, prevent the intensification of disputes, facilitate people's mediation, a unique Chinese institution aimed at increasing judicial efficiency and reducing litigation cost, and increase the public awareness of law.

However, owing to such shortcomings such as fuzzy delimitation of case registration, untimeliness and inadequacy in the translation of legal documents into ethnic languages, the circuit courts sometimes become pestered by formalism, which may adversely affect the non-litigious dispute resolution mechanism. The causes of disputes in these areas are often trivial and the subject matter of an action is small, yet they nonetheless tend to involve an array of factors. Consequently, such disputes are often rather costly to process due to restrictions placed by natural conditions and other factors. At the same time, since minority ethnic groups tend to identify with dispute settling modes integrating their ethnic conventions and characters, it is therefore desirable to integrate litigation and mediation by combining effectively judicial authority and ethnic social customs. However, the integration of litigation and mediation in ethnic minority regions has encountered a number of objective and subjective challenges. The former include insufficient funding of courts on various levels, inadequate qualifications of court mediators, the unwillingness of parties concerned to accept mediation, and the latter category of challenges includes the over-exaggeration of the advantage of mediation and the one-sided pursuit of a high rate of conclusion or settlement of disputes. Due to the fact that the people’s assessors who are randomly selected often cannot participate in a case trial on time, the presiding judges tend to choose their favorite assessors, some of whom even become "professional assessors", while people’s assessors are supposed to be lay people randomly selected from citizenry. Since it is financially difficult for courts in ethnic minority regions to give subsidies to assessors in time as required, assessors are not motivated to play an active role in trial activities. In view of this, in the legal practice in such regions, the rate of assessors’ participation remains low, despite the gradual annual growth in the numbers of cases that assessors participate in.