نوع مقاله : مقاله علمی - پژوهشی
استادیار گروه حقوق، دانشگاه پیام نور، تهران، ایران.
عنوان مقاله [English]
The principle of independence and impartiality of judicial proceedings are two significant components in criminal procedures and a key constituent in a fair trial, which can be seen as natural law and primary requirements of human societies.The concepts of independence and impartiality are regarded as two independent and separate legal-judicial institutions, though they have been used together and overlapped. An important and basic condition for realizing judicial independence, the independence of the judiciary as a whole from other governmental institutions can be met with the observance of the principle of separation of powers. On the one hand, the realization of judiciary independence involves assurance of the structural independence of the Judiciary, and, on the other hand, it calls for a mechanism for ensuring judges’ individual independence. Similarly, impartiality in the litigation process suggests the absence of improper partiality in the Judge’s mind toward either of parties or the main disputed subject, which is a constituent of fair trial and a necessary condition for realizing it. Accordingly, independence is an essential precondition, and impartiality is an essential prelude to this purpose, which is regarded as an essential feature, obligation of the judge, and the central depiction of the Judiciary. The two fundamental principles can be observed in Iran’s and China’s Constitutions and penal codes. However, this does not necessarily suggest a complete and desirable judicial independence in these two countries, as it is criticized by lawyers in such cases as the Judiciary’s financial dependence on the government and the manner of judge selection and election. Iran’s legal systems have ensured the Judiciary’s structural independence more reliably than that of China,but there are some deficiencies in guaranteeing the individual independence of judges in both countries.In order to safeguard citizenship rights in the subset of judicial independence in these two systems, two aspects of judicial security and judicial supervision are also examined.China has performed better than Iran in compensating for its legal system damages, but Iran has been more observant of human rights issues regarding detention. The idea of the rule of law is a relatively new one in China. When the imperial system fell apart at the turn of the 20th century, the idea became the center of attention. In contrast to the prevalent idea in the rest of the world, its goal with Chinese characteristics is to implement a certain level of social and economic development and social stability.