Themiclesian Judicial System
The judicial system of Themiclesia is composed of individual courts and their associated offices, for the purpose of settlement of disputes at law. At the most general level, there are three types of laws in Themiclesia, penal law, civil law, and administrative law, all of which are administered by a single, unified court system. The deciding officer in each court is conventionally called a judge or justice in English, but there are several titles in use in Themiclesia; such officers are protected against arbitrary dismissal or reductions in salaries. Other officers of the law include court administrators and counsels at law. There also exists an appellate system by which disputes over the final judgement of procedural decisions may be reviewed.
History
The judicial power was not structurally divided from the executive in Themiclesia until fairly recently, in the 19th Century; however, judicial officers have been selected by relevant examination to assist regional magistrates to dischrage their judicial duties since the 6th Century. The judicial system has shown a trend of growing professionalism and separation since then. Initially, judicial decisions were rendered on the basis of the magistrate's personal interpretation of Kong-tsieh's teachings, as recorded by his followers in the decades after his death. Though supported by the state for political reasons, as his theories supported centralization of power, this manner of judgment created controversy, as each party may have its own view on how Kong-tsieh's message applied to the case. From the 3nd Century and later, reliance on precedent became commonplace, and after the 6th, it became the rule in the absence of statute law. It has been argued that the use of precedent instead of philosophy as the basis of judgment encouraged the professionalization of jurisprudence in Themiclesia, as proficiency in precedents could only be achieved by trained legalists, given the enormous quantity of cases that have accumulated by the 6th Century.
Statute law has been the foundation of Themiclesia's government since its very conception, as a holdover from the Menggok period, from whose government most of Themiclesia's own has been derived. In the 3rd Century, the first formal codex of laws was compiled, consisting of 20 chapters of the Tsienh-liueht (Penal Code of Tsien), 30 chapters of the Tsienh-liengh (Administrative Code of Tsien), and 40 chapters of the Tsienh-koh-jhriehh (Compendium of Precedents of Tsien). This three-part system of Themiclesia laws persist to the present day. The judicial process, structure of courts, and several other aspects have been heavily influenced by New Tyran's judicial system in the early 19th Century.
Criminal Law
Laws
Traditionally, all violations of the Penal Code fall under the broad definition of criminal law; these offences are further divided into public and private crimes, the former encompassing errors in official acts, and the latter everything else. In more concrete terms, the Penal Code punishes acts that roughly correspond to breaches of the peace in Casaterran countries.
The codex itself sets forth the types and natures of punishment possible under its provisions, currently including caning and imprisonment. In caning, every ten strokes is deemed a "degree"; in imprisonment, it is every six months. Court are to alter the punishment incrementally by degrees according to the provisions of the code itself, though some discretion is usually allowed in anticipation of extraordinary circumstances. Next, the codex stipulates definitions for some terms used later and lists prerogatives possessed by certain members of government, their families, and the imperial family; most notably, civil servants over the Sixth Rank may not be arrested or tried without their own assent or a parliamentary warrant, and all listed members possess some degree of lenience in the case of conviction. This has been a controversial subject in Themiclesian judicial debate, since it fundamentally contradicts equality before the law. Then, the minimum age of full criminal responsibility, 20, is given; the Themiclesian code is unique in Septentrion in that it provides for a maximum age of full criminal responsibility, 70. Those under 20 and over 70, or in possession of certain disabilities, have commuted, limited, or waived criminal responsibility in several degrees, of increasing youth, senility, and disability.
The body of the criminal code exists in 18 chapters, each dealing with a specific area of offences. The first chapter contains provisions punishing treasons and other violent crimes, the second, property crimes, and so forth. Dedicated chapters encompass punishments for breaching into the imperial palace, endangering the public in general, and certain crimes that only nobility are competent to commit. In general, the law provides a single penalty for each crime, with a range stated in degrees for the court to adjust the final penalty to account for the circumstances of the crime. For certain offences, mandatory aggravation or amelioration are provided, e.g. larceny at night is punishable by one degree more than when committed in daytime, and larceny breaching gates or walls, by two degrees more. Conversely, larceny is ameliorated by five degrees if committed on the possessions of a close relative. Some crimes may not be prosecuted except by complaint, with limitations on the identity of the complainant. Themiclesia endorses the maxim of nulla poena sine lege, by which no act is punishable except expressly criminalized.
The law distinguishes between pre-meditated and accidental crimes
Process
Themiclesian criminal trials generally follow an adversarial system, where the prosecution and defence present evidence to a relatively passive judge, who delivers a judgment on the basis of the evidence provided. The parties are expected to expose each other's faults in reasoning or shortcomings in evidence; the judge is not expected to inquire into the matter unless he is not sure what is meant by what is presented. Since the court does not provide assistance to either party, all parties are generally represented by counsel at court, particularly at criminal trials.
The criminal trial itself, in the most restricted sense, does not begin until the parties are at issue, though for the purposes of this article, the word "trial" is used in lieu of the entire criminal judicial process. When a criminal act is detected, usually by the police or a civilian, it is in the first instance investigated by the police; if suspects are known, the police may petition a court for a warrant of arrest. After the police are satisfied that there are reasonable grounds on which to believe a crime had transpired, the case is then reported to the local prosecutor, who makes further inquiries by conferring with persons he believes to have relevant information to the case; these conferences are not compulsory, unless the prosecutor has secured a warrant so declaring, from a competent court. Suspects may be detained with the police at the court's pleasure. After the prosecutor finishes his investigation, and also satisfied that a crime has transpired, he drafts the indictment and presents it to a court with jurisdiction over the crime he prosecutes. In most cases, this is the local court, present in every county; however, for cases involving members of the imperial family or privileged individuals, he may need to report to his superiors to secure an act of parliament authorizing him to present the indictment. The indictment sets forth the crimes that the suspect is alleged to have committed.
After the indictment is allowed by the court, upon a formalistic examination for jeofails, the suspect becomes a defendant in a case against him. At this point, he may appoint a counsel or petition the court to appoint one to represent him; he has 40 days to present his answer to the indictment. The answer may take one of two forms: a demurrer challenges the legal sufficiency of the indictment, usually along the lines that even if the alleged acts were true, the defendant would still not be guilty of the offences for which he is indicted. This occurs quite regularly when adults are indicted for crimes that may have been committed when they were still in legal minority, or when foreigners are indicted for crimes committed abroad. A rarer species of demurrer is a special demurrer, which challenges the form, rather than the substance, of the indictment. If a demurrer is sustained (accepted), the indictment is dismissed; if the demurrer is general (against the substance), the same acts may not be prosecuted again; if only the form is in error, the prosecution may present an indictment again. The second type of answer is a plea, which also takes two forms—a dilatory plea or a preremptory plea. The diloatory plea challenges the jurisdiction of the court presiding over the case. A preremptory plea gives the defendant's answer as to the validity of the charges.
If the defendant confesses, i.e. admits to the truth of the allegations, the case moves to sentencing; if the defendant traverses, i.e. denies the charges, the case is then at trial. Criminal trials in Themiclesia typically begin with arguments from the prosecutor, then witnesses summoned, and further remarks, until he rests his case. The same occurs for the defence. When each witness is summoned, both parties may ask questions of the witness, and the witness is required to affirm that all statements delivered are true to the best of knowledge. Leading questions are forbidden. Unlike common law countries, judgment is made by the bench alone. In deciding whether the defendant is guilty or not guilty, the judge must rely solely on the evidence presented and admitted in court, not his personal knowledge of the situation. The judge must also be satisfied that the defendant is guilty beyond a reasonable doubt before he pronounces the defendant guilty.
If there is more than one count on the indictment, the defendant may plead to each court separately, and trials are heard on each count before sentencing occurs. At sentencing, the judge must take into consideration if crimes absorb each other by the principle of double punishment (一罪不再罰), e.g. if the defendant has been convicted of punching a person and of breaking the victim's spectacles by occasion of that punch, only the more serious—in this case the punch—will be punished. The judge must then decide what types of aggravating circumstances apply to the punishments declared for each count. The codes provides that a single sentence must result from an entire indictment, thus, the punishments must be summed together; imprisonment sentences and caning sentences are each added to like kind to produce the preliminary figure. If a person has committed many crimes (such as stolen many items on separate occasions), the preliminary figure may be staggeringly high; however, Themiclesian law forbids imprisonment sentences over 20 years in length or caning sentences over 1,200 strokes (累加不過限). If the sum total surpasses either of those figures, only the maximal provided will be retained on the sentence. Next, imprisonment sentences absorb caning sentences (決徒不決杖), e.g. if a person is sentenced to 6 months of imprisonment and 1,100 strokes, the 1,100 strokes are absorbed into the 6 month sentence. After that, the judge tallies all the ameliorating circumstances on all convicted counts and applies their sum total to the pending figure, under the maxim of "ameliorating circumstances shall compound" (犯罪得累減). Only then is the final sentence decided.
Appeals, Interlocutory Appeals, Retrials, and Mandatory Reviews
Each case in Themiclesia may be tried once and reviewed up to three times. The first time, by a provincial court, which has appellate jurisdiction over county courts in its remit. The second time, by a regional court, possessing appellate jurisdiction over provincial courts in like fashion. The final time, by the Court of the Marshal, Themiclesia's judicial court in the dernier resort. All of these courts practice mandatory review, having no discretion over which cases they hear. An appeal usually refers to an appeal over a judgment (this may be a judgment on any count), while an interlocutory appeal is a dispute over a procedural decision by the bench. Both types of appeals dispute the set of evidence presented at the initial trial. A retrial, or in Casaterran terminology a venire de novo, is a completely new trial based on new facts if they have been discovered.
In general, the prosecutor is not permitted to appeal a judgment in criminal cases; only the defendant may appeal. If a defendant wishes to appeal, he must do so before the current term at court ends, else the judget is considered absolute. An appeal does not delay the commencement of the punishment. To conduct an appeal, the defendant must notify the Chief Clerk to the Chancellor of his intention; that official then notifies the Under-Secretary of State for Judicature to issue out a writ of certiorari to the trial court, commanding it to surrender its records of the case in question so that they may be reviewed by the appellate court. A case in appeal is only reviewed for legal errors, not factual ones. Interlocutory appeals are done by very much the same procedure. If the defendant wishes to dispute the factuality of the evidence presented in the tiral court, he must demand a retrial at the same court, which is granted upon presentation of pertinent evidence.
If a third review is sought at the Court of the Marshal a writ of error used instead, and the plaintiff-in-error obtains this writ from under the Chancellor's seal. To prevent abuse of judicial resources by unfounded appeals, the Court of the Marshal is free to impose a future bond of a pre-determined value, forfeit to the state in the event the court does not overturn the judgment of the court below. As the bond matures at a hypothetical future event, plaintiff-in-error needs not front the sum in advance. To prevent collusion of the Court of the Marshal to obtain extra income, the sum forfeit by a failed appeal is committed to the Crown Fund, of which the government is not at liberty to dispose. All sentences involving imprisonment are reviewed by supreme courts before they become absolute.
Civil Law
Laws
As opposed to penal law, which firmly is entrenched in statute, civil disputes in Themiclesia are adjudicated according to a mixture of statute and case law. Statutes are given precedence when conflicting with case law, but in the absence of statute, case law is as binding as the former. As the oldest precedents may date to the 3rd Century as preserved in state archives, a court may selectively ignore a precedent too remote, either in time, technology, or social circumstancces, from the time of dispute. There is, however, no set date beyond which a precedent must become obsolete; cases adjudicated according to overly ancient precedents tend to arouse negative publicity.
A specific branch of civil law is administrative law, which is found in the Administrative Code, dealing with disputes between government agencies and between agencies and private citizens. As the rest of civil law, administrative law also obeys both statute and precedent. Special statutes have been enacted to regulate shipwrecks, probate, and family disputes.
Civil law primarily serves the recovery of legal interests harmed by another person's actions. Under Themiclesian civil law, and its ancestral Tyrannian common law, a person has two broad category of interests, real (land) and personal (everything else). For personal interest, there are three common types of redress that may be sought, pecuniary, goods, or specific performances. Specific performances more properly belong to equity than law in Casaterran common law countries, but in Themiclesia equity and law are dispensed by the same court system, a merger not without its critics. In an age when the Tyrannian court system still distinguished between several forms of actions, such as debt, detinue, trover, replevin, and case, Themiclesian jurists who reformed the domestic system were remarkably conservative when transplanting the Tyrannian system to Themiclesia. It is in part due to the desire to regulate and define personal rights (later intended to lead to a written constitution) and their redress that this rigid, inflexible system has been introduced to Themiclesia. Each form of action recovers a particular type of damage done to the plaintiff. In total, 11 forms of actions were made available, with the remedies they offer, being:—
- Right—over land possession
- Novel disseisin—over land tenancy
- Ejectment—over forcible movement of the person
- Trespass—over direct injures to the person, his lands, and his goods
- Covenant—over contracts not fulfilled
- Debt—over debts generally, for value of the debt in money not delivered
- Detinue—over debt, but for goods
- Account—over fiduciaries' loyalty to principal interests
- Action on the Case—over indirect injuries to the person, his lands, and his goods
- Replevin—over the value of goods wrongfully taken in self-help
- Trover—over the goods specifically, as above
Process
The civil process is fundamentally similar to the penal, with several major difference as described below.
To commence a civil process, a litigant, usually represented by counsel, must sue with a writ (申狀) produced by the Master Clerk of the Chancellor in order to arrest the defendant. In this context, arrest does not mean physically seizing the defendant, but placing a legal obligation upon him to answer the charges laid against him and to appear before the court if so commanded. The writ will state the facts the plaintiff wishes to present to the court in the initial instance, phrased according to the demands of the form of action, and sets forth the redress desired by the plaintiff. As in the penal process, the defendant has 40 days to respond with either a demurrer, dilatory plea, or a plea in confession and avoidance (認辯狀). As a fourth option, the defendant may essoin, via his counsel, to claim that he is not available to appear at court, for one of three reasons, illness, being overseas, or being at war; in any of these cases, the defendant may be granted up to one year to return to court. In a plea in confession and avoidance, the plaintiff may confess and avoid (認辯), meaning to admit to the truth of the allegations but allege other facts that dispel the effect of the former, or he may traverse (否辯), which is to deny the facts alleged. If the defendant has confessed and avoided, the plaintiff may demur or file a replication (再申狀) either to confess and avoid or traverse as well. This process continues, with the fourth plea named the rejoinder (再辯狀), the fifth the sur-rejoinder (復申狀), the sixth the rebutter (復辯狀), and the seventh the sur-rebutter (又申狀); from then forth, subsequent pleas are called rebutter and sur-rebutter alternately, and at any of these stages demurrers may be filed as usual.
Once either party has traversed, the party is said to have tendered issue (請讞). This is followed by a joinder of issue (合讞) from the defendant. Once the court finds the issue valid, a trial date is scheduled, and both parties present evidence, call witnesses, and debate as in a penal trial. The decision of the trial rests upon the single fact that was traversed.
Taxing of Costs, Judgment, and Appeals
As civil procedures may last significant longer and involve very large sums of money controverted, legal costs may become quite significant to either party. As a rule, the legal costs of the winning party is borne by the losing party, in addition to all damages payable. So that a litigant with a expectation of winning does not collude with his counsel to charge exorbitant legal costs for personal gain, both parties are required to declare their legal costs to the court, which then reviews it for charges that are unreasonable. This also functions as a check on the legal profession to prevent fees from expanding beyond the litigant's ability to pay. Both parties must agree to each others' costs before the case may proceed to judgment.
As with penal trials, judgment is decided upon by the bench. The bench may alter the amount payable in damages.
The process of appeals, interlocutory appeals, and retrials function largely identically as with penal trials.
Execution
Execution is a separate process only possible in civil law; the analogous procedure in administrative law is "provision of edict" (請出制).
In order to execute, a plaintiff must prove that the defendant has not completed his obligations as required by a judgment; this is done before a judge at the same court as the judgment was passed. Satisfied that the plaintiff has not been redressed, the court certifies this via a transcript of records to the Chancellor, who then issues the writ of execution (照狀) to the Court of Correspondence Administration (more specifically, the Ministry of Judicial Administration) to being the execution process. The Ministry of Judicial Administration will then deliberate the proper avenues to achieve that objective, typically ordering local shieriffs or security services to perform the execution; in other cases, particularly involving specific performances, other professionals may be hired by the Ministry to perform said execution.
Administrative Law
Laws
Administrative law governs the relationship between government agencies and between government and the public. Because the principle of unity of government provides that every agency must answer to some sort of higher authority, agencies may not bring suit against each other; however, members of the public may bring suit against the government, for any damanges that the government may have, by executive action, done to the public, so that an impartial tribunal may hear their arguments and decide. Suits under administrative law mostly resemble suits under civil law, with damages to person, land, and property being most often controverted. However, more abstract issues, such as limitations on freedom of movement by executive ordinances or some other form of secondary legislation, are also cognizable under this branch of the legal system. The largest corpus of laws mainly controverted in administrative actions are compiled in the Administrative Code, which is a consolidated statute regulating government structure and behaviour.
Suits against the Crown
The Emperor of Themiclesia is immune from all suits; however, nor does the Emperor possess any civil rights per se, or is he capable of making laws or policies independently or entering into contracts as a citizen. All of the Emperor's decisions, of both a public and personal nature, must be countersigned by another person, who by his signature accepts responsibility for the actions to be undertaken. When this is a public decision, such as enacting a law, the proper countersignatory is the Cabinet; a personal decision, such as renovating a part of the palace, by the Superintendency of the Palace Hall, which is supervised by the Cabinet. Since the government must take ultimate responsibility for the Emperor's actions, it was not uncommon for prime ministers in the 19th Century either to refuse to accept the Emperor's instructions or to resign if the Emperor repeatedly makes requests that cannot be accommodated; into the 20th Century, such situations have become extinct, as the political relationship between the crown and government have settled into modern shape.
Primary legislation, which are phrased as the Emperor's edicts, are legally not subject to judicial dispute. The legal theory states it is the Emperor who legitimizes legislation, and who is above litigation; however, since sovereignty is widely regarded to reside in the nation's parliament, or at least in parliament's decisions as vocalized by the Emperor, a suit may not be brought against either of them.