英国留学生assignment范文:WTO对于英国司法制度的影响WTO on the British system of

英国留学生assignment范文:WTO对于英国司法制度的影响WTO on the British system of

来源:www.51fabiao.org作者:meisishow发布时间:2013-10-23 11:57
本文介绍了WTO中司法审查的内容、特点。认为英国应扩大司法审查范围、完善司法审查程序。从而促进司法审查制度尽快同WTO接轨。

Britain joined the WTO. Means that the UK must be in accordance with their commitment to accept a series of WTO rules . Judicial review (Judi · cialReview) rules in the WTO system has a very important and prominent position, and its implementation on the UK economy and legal system construction has extremely important implications. British judicial review system of judicial review and the WTO regime consistent with many places , but also different. Britain carried out reform and opening up the process of modernization . In the implementation of the Rule of Law , and constantly to the world in the process . New understanding , define and improve the judicial review system to accelerate judicial review with the WTO standards.
英国参加WTO。意味着英国务必依照自个儿的许诺接纳WTO的一系列规则。公检法检查核对(Judi·cialReview)制度在WTO规则中具备十分关紧和冒尖的地位,实际上施对英国经济建设与法制建设有非常关紧的影响。英国公检法检查核对制度与WTO中的公检法检查核对制度有很多完全一样的地方,同时也有不一样之处。

First , WTO system of judicial review
一、WTO中的司法审查制度

From the existing WTO provisions relevant legal documents of view, the basic content of judicial review includes four aspects .
从现行WTO相关法律文件的规定来看,其公检法检查核对的基本内部实质意义涵盖四个方面。

( one ) the object of judicial review
Judicial review of object can be either a specific administrative act and part of the abstract administrative act , it can be decided to conduct administrative finality . " Trade-Related Aspects of Intellectual Property Rights (TRIPS) Article 41 , paragraph 4 : litigants should have the opportunity to request a judicial authority to review decisions of administrative finality and, subject to a member of the importance of the case law relating to jurisdiction rights for the premise, the opportunity to request at least a preliminary ruling on the legal aspects of judicial review . < Dumping Agreement 13 pairs of judicial review of anti-dumping cases were made mandatory. Dumping cases relevant parties such as national authorities dealing with the case made ​​by the final award or satisfied with the results of administrative review , the right to judicial proceedings, requesting a ruling on the case again . " General Agreement on Trade in Services (GATS) Article 6 , each Member shall maintain or establish as soon as practicable judicial, arbitral or administrative tribunals or procedures, the affected service provider 's request, on the impact of trade in services prompt review of administrative decisions , and when the request is justified by giving appropriate remedy.
公检法检查核对的对象既可以是具体行政行径和局部抽象行政行径,也可以是行政终了性表决行径。《与商业活动相关的知识产权(TRIPS)第41条第4款规定:官司当事方应有机缘要求公检法当局对行政终了表决施行检查核对,并在笃守一人员相关违法案件关紧性的法律中相关公检法统辖权规定的前提下,有机缘要求至少对公检法初次审查审理决定的法律方面施行检查核对。

( Two ) the subject of judicial review
The subject of judicial review may be the court , it can be the tribunal , but also the administrative court .
WTO relevant documents subject to judicial review can have three : the judiciary , arbitration and administrative review body organs . If < General Agreement on Tariffs and Trade (GATr) Article 10 , paragraph 3 ( b ) provides that : "In order to be able to especially for administrative action relating to customs matters quickly checked and corrected as soon as the Contracting States shall establish or maintain judicial , arbitral or administrative tribunals or procedures . such tribunals or procedures shall be independent of the administration responsible for the implementation of the institutions, and their decisions , in addition to the prescribed importer appeal to a higher court or the court during the appeal , the production of these institutions be implemented , and as the future implementation of the guidelines , but if the central competent authority of these bodies have sufficient reason to believe that they are specified with the established principles of law or inconsistent with the facts , it can take steps to make this problem be through another program examination . "GATS Article 6 , section 13 Anti-Dumping , countervailing protocol 23 also made similar provisions.

( Three ) standard of judicial review
Standard of judicial review must meet the objective, impartial and reasonable request.
GATS provides that Members shall ensure that administrative decisions are subject to review procedures , in fact, objective and impartial consideration.
GATS also provides for Member States to an international review of administrative relief system , if subjected to requirements, the implementation of this program shall provide the Contracting Parties parties to provide detailed information about this program , in order that the whole of this program meets GATr of requirements to make judgments and decisions. Meet the requirements of important criteria is that these existing mechanisms and procedures are in fact able to do an objective and impartial . In other words , judicial review must not only comply with law standards , but also meet the substantive standards of objectivity and impartiality .

( Four ) the parties in the judicial review rights
WTO Agreement provides for judicial review of the parties in the range of rights enjoyed . Including: plaintiff was entitled to in accordance with the relevant procedures to defend their rights ; defendants have access to timely , complete content written notice ; both parties are entitled to independent legal counsel as an agent ; should not increase the financial burden of additional parties ; sides should ample opportunity to be heard ; right disputes should be secret information necessary security measures ; shall be entitled to the evidence, the party ordered to provide evidence ; shall reasonably determine compensation ; considerable severity with infringement when the infringement should have " access to information power " ; abuse of enforcement procedures in the plaintiff , the defendant should be made to obtain damages and so on.
WTO judicial review from the above contents can be summed it has the following characteristics: ① judicial review bodies diverse ; ② flexible way of judicial review ; ③ demanding judicial review ; ④ judicial review maneuverability ; ⑤ independence of judicial review strong ; ⑤ high transparency of judicial review .

Second, the British system of judicial review in the WTO commitments

Since the WTO's special requirements, rules of judicial review in the WTO system and the importance of English is relatively weak judicial review system status, make a clear commitment to judicial review , the United Kingdom joined WTO has become an important part of the Protocol . Britain joined WTO Protocol and other legal documents for judicial review made ​​the following two commitments : ① English should be established , to specify and maintain the adjudicative body , contact points and procedures for the prompt review of 1994 GATY first paragraph l l0 items , CATS 6 Article and the relevant provisions of the TRIPS Agreement and the implementation of the provisions generally applicable laws , regulations, judicial decisions and administrative decisions related to all administrative acts . Such ruling body should be impartial and independent of the authority to make administrative act , and on the results of the matter must not have any substantial interest ; ② review process should include the subject to be examined by any administrative action affecting individuals or business opportunity to appeal , and not so aggravating . If the initial appeal is to an administrative organ to exercise , then it should be given in any case the decision to choose the opportunity to appeal to the judiciary . The judgment of the appeal shall notify the appellant and shall provide written reasons for judgment . The appellant shall also be informed of any right to continue to appeal .
As seen from . Britain 's commitment to judicial review mainly in three aspects .

( one) UK promises very broad scope of judicial review
From the above English legal documents on accession to the WTO 's commitment to judicial review , the UK commitment to judicial review obligations clearly higher than the WTO requirements . Britain promised scope of judicial review as follows: 1994 GATr first paragraph l l0 items , GATS Article 6 and TRISP agreements stipulated with the relevant provisions of generally applicable laws , regulations, judicial decisions and administrative decisions related to all administrative acts . The range is much larger than the relevant WTO agreements clearly defined scope .

( Two ) for administrative review and judicial review in two ways
From the above legal documents added WTO provisions on judicial review , the UK chose administrative review and judicial review of two ways . In the UK the existing legal system . No review of administrative acts through arbitration space . English only recognizes two ways to review or examination . That administrative review or judicial review. Administrative review authority to make administrative behavior is independent of the organ , with no substantive issues to be examined at stake and the right to an impartial review of the exercise of authority .

( Three ) judicial review of a universal and finality
WTO legal documents from the Canadian people to see . Britain ultimately chose the judicial review system in general , that all administrative review is not final. The parties should be given the opportunity for judicial review brought to court as a last line of defense.

Third, the United Kingdom improving the existing system of judicial review

There is no doubt that judicial review is a modern democratic countries generally established an important legal system . At present , the domestic jurisprudence of judicial review of the existence of different perspectives . Some of the judicial review as part of the civil justice system ... , the dispute settlement mechanism as the main content of judicial review . Some believe that in criminal proceedings should also establish judicial review . From the United Kingdom and the WTO commitments on judicial review judicial review content and features point of view, these views apparently misinterpreted the meaning of the WTO concerning judicial review , judicial review confused with civil, criminal and other different relationship between the judicial process . We think so. Judicial review is the national judicial authorities of other countries through the exercise of state power authorities review the activities of the illegal activities be corrected through the judicial activity , and thus to the citizens, legal rights and interests given the appropriate remedy the damage caused by the legal system . From the British constitution , administrative law, Administrative Procedure Law , the Administrative Review Law and other provisions of view . British judicial review can be summarized as the main content of the following: ① the exercise of judicial review is the mainstay of the people's court ; ② standard of judicial review is the legality of specific administrative acts ; ③ judicial review is based on the domestic law ; ④ judicial review way for administrative proceedings ; ⑤ the object of judicial review of the specific administrative act .

Although the UK system of judicial review in the past l0 years has been constantly improving , but basically in line with WTO requirements , but died from the UK shows that the process of negotiations , the British system of judicial review , compared with the WTO rules , there are still large gap. Mainly in: ① narrow scope of judicial review ; ② the independence of judicial review is not strong ; ③ poor transparency of judicial review ; ④ such as lack of judicial review procedures . Britain joined the WTO, WTO rules will work, which is due obligations WTO members . As soon as possible with the world, Britain must quickly improve the judicial review system.

( one ) to formulate and perfect fit with WTO procedures for judicial review
Given the result of implementing the WTO agreement disputes and judicial review must be carried out and its impact on the complexity of the British legal system, the extreme importance of economic development , it should be formulated as soon as possible with the relevant WTO judicial review procedures and rules , for example, the court hearing the case ; the conditions of admissibility of cases ; administrative regulations and administrative rules distinguish between non- standard ; right rules, normative criteria for judging the legitimacy of the file contents , and so on. In particular, if only to allow some courts ( such as the principle only limited to the Intermediate People's Court of the above ) enjoys the dispute involving the right to judicial review of WTO rules , there will be questions about the transfer case , which requires lower courts accepting the citizen, satisfied with the decision of a corporate executive or administrative act of a complaint after the abstract , the case should be promptly transferred to the relevant court has jurisdiction . If the local courts in dealing with the case , the parties to an encounter administrative departments to develop normative documents in dispute , but no high -level local laws , administrative regulations and legal norms, or high-level laws and regulations more general provisions and principles , the court shall suspend the trial , while the contested normative documents sent to the court which has jurisdiction for review.

( Two ) according to the requirements of WTO rules to expand the scope of judicial review
Judicial Review is a modern country with generally accepted rule of law is an important legal system . For a long time , pay attention to the executive power , ignoring judicial relief is more common in developing countries, the British problem . Therefore , for most developing countries, England , to further strengthen and improve the judicial remedies , judicial review mechanism is essential. "PRC Administrative Procedure Law " was promulgated , marking the English courts have begun under its jurisdiction on the administrative powers and checks and balances , monitoring the government and become law-abiding , and earnestly safeguard the legitimate rights and interests of citizens from executive infringement of important measures. Accordingly, many scholars believe that the UK has set up a system of judicial review . However, some scholars believe that judicial review of administrative agency logo is an abstract review of the legality of administrative acts . WTO clearly does not comply with WTO rules on administrative rules , regulations and measures for judicial review requirements. Britain should be in accordance with WTO rules and requirements , and expand the scope of judicial review , which gives the people's court for judicial review of administrative acts abstract powers . Whether abstract administrative action or the specific administrative act for judicial review of the legality of both the inherent requirements of the WTO rules , but also to uphold the Constitution of the implementation of the supremacy of the Constitution safeguards requirements.

( Three ) and earnestly safeguard the independence of judicial review
Justice is an important guarantee that judicial independence. Independence of the judiciary is the judiciary to exercise judicial power only to obey the law , by administrative organs, social groups and individuals. According to WTO requirements , judicial review of an administrative decision must be independent of the authorities to ensure the objectivity and impartiality of judicial review . We believe in the separation of powers constitutional separation of powers or the structure of countries, the independence of judges has a set of structured system security and cultural heritage, which holds the independence of judicial review is not a problem . Judicial review of WTO rules established by the developed countries to the rule of law does not cause a fuss , because that judicial review of its existing level has reached or even exceeded the WTO requirements . However, the rule of law in the UK is still in its infancy, still less developed legal culture , even if the law expressly provides for an independent judiciary law enforcement position , it may not be able to get well implemented , because the interference from all sides are often very serious. In the UK this has judicial and administrative regardless, under the administration of justice in countries where the tradition , maintaining judicial and administrative separation is necessary .

( Four ) policies, laws and judicial decisions in the formulation , promulgation shall embody the principle of transparency requirements
Transparency is a fundamental principle of the WTO . It has two important features: first , they form, involves very extensive. Second, In essence, this principle has a corresponding binding and require rapid , convenient and available . Its main function is to prevent and eliminate members of the party not public laws , rules, regulations or policy measures results in discriminatory treatment and thereby to bring international trade barriers , supervising members of the party implementing the WTO agreements . In order to reflect the requirements of the principle of transparency , the current British government departments should also do the following:

( 1 ) establish the normative documents related to trade and specific administrative decisions , measures unified review mechanism . Britain 's WTO accession process , in fact, committed in accordance with international rules of the game in the process . Without such commitment , it is impossible to participate effectively in the globalization of the world economy . British participation in the WTO negotiations promised a basic principle is the principle of transparency . Under this principle, the WTO, the United Kingdom all foreign economic and trade regulations, rules and other normative documents must be open, which are not published , you can not perform , so conventional black-box operation of the internal document type can not be developed and implemented . If this principle of transparency can not be formed , the United Kingdom would be difficult to establish a fair market system, which the British economic system that must be addressed.

( 2 ) development of " Open Government Information Law" and the unity of the " Administrative Procedure Act ," the British legal system and public administration requirements for the interface between WTO rules . In the long term , we must develop < FOI Law " and a unified < Administrative Procedure Act" , to achieve the institutionalization of public administration and the Law. Through a unified Code of Administrative Procedure specific refinement of administrative principle of openness to the following system : that identity system , informing system , with justification system , advisory system , hearing system , access to information systems , open system of administrative decisions , etc. , in order to reduce executive power in the operation demonstrated the mystique and disorder , to prevent irregular operation of administrative power which led to a market economy "game rules" of evolution, to promote market economy healthy and orderly development .

( 3 ) the administration of justice production, release to reflect the principle of transparency . Since 1992, "the court litigation document style ( Trial ) >, and in 1999 ," Criminal Court clerical style > since the introduction of the People's Court of Magistrates instruments have been greatly improved , in the form of a more coherent and standardized. However, the referee instrument is still confined to the parties to send, open ; judgment document content can not fully reflect the whole process of the trial , the lack of evidence necessary to analyze , judge, without reasoning or inadequate reasoning problems is its "common problem " , to make parties and the public do not feel justice. In order to make the administration of justice , the principle of transparency embodied release , judicial review of the results of the British carrier - instrument must reform the administration of justice , the basic idea should be : ① must be objective , comprehensive and complete account of the trial process , in order to fully reflect the procedural fairness ; ② enhanced referee instruments rational spirit ; ③ referee instrument should open the whole of society , such as taking online publication or periodical publishing , etc., for public inspection , known.