Update on Judge Xi Xiaoming


Judge Xi Xiaoming

In the run up to the Sixth Plenum of the Central Committee of the Communist Party, which will focus on “intra-Party political life in the new situation,” the Supreme People’s Procuratorate (SPP) released further information concerning former Supreme People’s Court (SPC) Vice President Xi Xiaoming.  As this blog noted over one year ago, his case was transferred from the Party disciplinary authorities to the SPP for further investigation.  According to a recent report, The SPP has finished its investigation and has transferred Judge Xi’s case to the Second Branch Procuratorate of the Tianjin People’s Procuratorate.  The procuratorate has filed its case in the #2 Tianjin Intermediate People’s Court. The authorities apparently considered these institutions reliable,  because they had dealt with other sensitive cases earlier this year. 

The charges against Xi include:  using his office and position to obtain benefits for others or using his authority and position to provide conditions [for obtaining benefits], and obtaining improper benefits through the acts of other state staff in the course of their work, illegally accepting huge amounts of money and assets.  The judgment to which the charges relate has been published.

The report repeated statements made about Judge Xi earlier by Meng Jianzhu, head of the Central Political Legal Committee, and SPC President Zhou Qiang.  In August, 2015, Meng said: “Xi Xiaoming has shamed the judiciary, as an experienced judge who has worked in the Supreme People’s Court for 33 years, who has colluded with certain  illegal lawyers, judicial brokers, and lawless business people by accepting huge bribes.” During his report to the NPC in March, 2016, Zhou Qiang said: “especially the effect of Xi Xiaoming’s case of violating law and discipline is terrible, has deep lessons” (尤其是奚晓明违纪违法案件影响恶劣、教训深刻). The report also mentioned that Judge Xi’s case has been used as a typical case by the Central Commission for Discipline Inspection.

Although the SPC and several other central criminal justice institutions have recently issued a policy document on making the criminal procedure system trial-centered, the first principle of which is “no person may be found guilty except by the lawful judgment of a people’s court,” Judge Xi’s case seems to be yet another instance in which the exigencies of the political system trump respect for the formalities of the operation of the criminal justice system.



China’s #2 circuit court investigates petitioning about administrative cases



petitioners outside the #2 Circuit Court (from CCTV)

Annually thousands of petitioners visit China’s courts, particularly the Supreme People’s Court (SPC) and its two circuit courts, to seek relief from injustices in the lower courts (and sometimes other injustices).

The #2 Circuit Court, located in Shenyang, Liaoning Province, has as one of its goals improving the way the courts in China’s northeast deal with cases in which ordinary people challenge government action, under the Administrative Litigation Law.  (Additionally, it hears a range of of civil cases, as well.) The court is doing that through issuing a set of documents (to be analyzed in a future blogpost) and a research report.  (For those not familiar with what the SPC does, when the SPC looks into an issue, it often designates a research team to visit lower courts and review some of their files.) The chief judge of the #2 Circuit Court, Judge Hu Yunteng, and two colleagues looked into the question of why so many petitioners in Shenyang have grievances about administrative litigation in the lower courts.

According to the study, one-quarter of the 5000 petitioners that visited the court in the first 11 months of 2015 complained about injustice in administrative cases, while those cases constituted only 2% of the overall caseload of the three northeastern provinces. Who are these petitioners in these cases, why are they petitioning, and what should be done about it?

Who are the petitioners?

  • The petitioners are mostly older, uneducated men from Liaoning Province. The demographics:
  • 47%  are over 60, with 33% between the ages of 50 and 60;
  • 64% are men, 80% from Liaoning, with the remaining 20% from Jilin and Heilongjiang;
  • Most are from the countryside or unemployed, with very few represented by lawyers.

They often come repeatedly and in groups. They come in groups because of a group grievance, often relating back years and sometimes several decades. Why Liaoning? The court’s location in Shenyang means that it is more accessible to them, the province is more populous and has historically had more administrative cases. The peak of petitioning was in March, 2015 and is now has stabilized at a lower number.

Their grievances

The grievances are what the SPC (and the Communist Party) entitle “people’s livelihood,”–cases challenging government land requisition and compensation demolition of real property; administrative inaction, and release government information. Of those, 66% are related to land requisition, generally when the government requisitions land in old city and shantytowns.  The core reason, according to the judges’ analysis, is local government failure to comply with the law in the process, causing all sorts of administrative litigation and large numbers of petitioners.

Another reason for petitioning is that the rationale in court decisions in these administrative cases is inadequate or totally unclear, with overly simple descriptions of the facts.  The decisions often do not make sense; the result is sometimes correct but the reasoning entirely  wrong.

If court decisions do not make sense, naturally it will lead to the  litigant reasonably  suspecting their legality. In some cases the courts failed to review the legality of the administrative action, failing to mention obvious illegalities, simply saying the defendant had not infringed the litigant’s rights. .

Why administrative cases?

Judge Hu and colleagues identified a number of factors causing the ongoing large number of petitioners aggrieved by administrative cases, both external and internal to the courts. The report often refers to “some courts” acting in a certain way, without quantifying the percentage–leading the careful reader to wonder whether it really means “most,” but the judges are reluctant to say so. Their analysis is summarized below.

  1.  Status of the courts

The basic reason is that the constitutional status of the court has not been implemented. “Big government, small court” (大政府,小法院) is an undeniable fact. A court has the status of a department at the same level of government, so under this structure, it cannot be a countervailing force vis a vis the same level of government. When a court is hearing a case, the defendant county head, as deputy Party secretary  calls the court president in “for a chat.” If the status of the court in the political system is not changed, it cannot decide cases independently and the rate of petitioning about administrative cases will not go down.

2.  Structure of administrative trial divisions

Local courts have jurisdiction over most local administrative cases, but they are under the control of local government, which interferes in every aspect of the case.  The local courts make decisions that violate the law, ordinary people’s faith in the justice system declines, so many petitioning cases.

3.  Court problems

The ideal of justice for the people not implemented, because some courts, in the name of  “serving the greater situation,” stress protecting local stability but fail to protect people’s rights, issuing illegal decisions, harming the prestige of the judiciary, causing disputes between officials and ordinary people that could have been resolved through legal means to be pushed into petitioning.

Cases are bounced back and forth between courts, with no court undertaking a serious review of the case.Courts are seeking to close cases without resolving the underlying issues. With the courts as the place for resolving social disputes and amendment of the Administrative Litigation Law (expanding its jurisdiction), aggrieved litigants, holding sheafs of court decisions are petitioning higher courts, particularly the #2 Circuit Court. If the reasoning is not clear or transparent, ordinary people will just think it is “officials all protecting one another” and petition.

Compounding the problem is weakness in the administrative divisions in the courts and the reception office of the courts. The administrative divisions do not have many cases, so outstanding judges are reassigned, and the team of judges in these divisions is unstable.   In the reception office of the lower courts, staff often fails to explain the law to litigants, and are high-handed.


Litigants often not educated, do not understand the law, and insist on their view, thinking that if they make a fuss, the issue will be solved.(My former student wrote an account of her experience dealing with petitioners in the #1 Circuit Court, linked here, while the issue of litigation-related petitioners (涉诉信访) receives attention in this long academic article.)

What to do?

The issues with the status of the courts in the political structure a are beyond the authority of the #2 Circuit Court,  so what Judge Hu had within his authority to do included:

  • doing a better job dealing with petitioners at the court;
  •  training lower courts to better handle administrative cases;
  • better communicating with Party/government, including arranging training for the courts and Party/government, so that officials better understand their obligations under the law;
  • doing a better job of public education (宣传教育) through publicizing cases.


The authors do not venture comments on whether the situation that they describe is typical for other areas of the country, but a quick search reveals courts in other areas of the country raising many of the same issues.

Will the current judicial reforms be able to deal with some of the issues raised by the authors of this study?  Only partially, it seems.  The future change in appointment and funding, better training for and treatment of local judges should be helpful. The 2015 regulations forbidding leading official interference in court cases should, in theory, reduce local government official interference in the local courts, but more needs to happen to educate local officials to comply with the law.  Regulations issued earlier this year mandating legal counsel for Party and state organs may be helpful in the long term. It may be helpful for the #2 Circuit Court to reach out to local lawyers to advise petitioners, as the #1 Circuit Court has done, but whether local lawyers are willing to do so (on a pro-bono basis, as is true in Shenzhen), or possibly that they are concerned that they may be accused of trouble-making under new Ministry of Justice regulations remains to be seen. It is clear from the report that deep-seated attitudes towards law and ordinary people held by government officials are changing only very slowly.



Why are Chinese prosecutors resigning?

Chinese prosecutors (procurators, this blogpost will use the terms interchangeably, although the functions of the procuratorate are broader than public prosecution) do not receive the international attention that Chinese judges attract. There is no Supreme People’s Procuratorate Monitor to review its reforms, structural and legal issues.

Chinese prosecutors, like judges, are leaving the procuratorate in significant numbers, although recent statistics do not appear to be easily available,According to statistics for 2011-2013, over 6000 prosecutors were resigning annually. Li Bin, a former senior prosecutor who now works for the legal media company Wusong,(whom I met on a recent trip to Beijing) published the results of her survey of over 4000 members of her cohort this spring.  The study gives important insights.

Who is leaving?


Prosecutors resigning, by sex

In the two surveys she that she did, she found that men were resigning in greater numbers than women, with 70%/30% ratio in the survey done this spring. This may explain why many of the  criminal cases streamed by the courts have an all women team of prosecutors.

Age and education


Age of resigning prosecutors

Like the judges who are resigning, most are in the 31-40 age bracket, with 45% between the ages of 31-35 and 36% between the ages of 36-40.  About 10% are under 30, 6% between 41-45, and no one over 46 responded to the survey. 59f43639-99a0-47ad-b1d9-a9961f257d37-1

Most (80%) resigning prosecutors have at least 5 years experience, with about 40% with over 10 years experience, and 1/3 with 6-9 years experience.


Educational background

Most prosecutors who resigned had at least a master’s degree.


Almost half (45%) the resigning prosecutors had worked at the basic level, with another 20% leaving provincial level procuratorates, and another 20+% leaving municipal level procuratorates.


Most (70%) had done public prosecution, with about 20% having worked in investigation.

Most (67%) of those who responded had resigned within the past  year, with the remainder having resigned within the past three  years.


Over 40% of those prosecutors who reisgned became lawyers, while 44% became in-house counsel.  Very few went into teaching or other non-profit professions.

Reasons for leaving

Three-quarters of the resigning prosecutors identified poor benefits (and other treatment) as their reason for leaving. Other  reasons identified by over half the respondents included: insufficient opportunity for promotion, no feeling of accomplishment in their work; overly bureaucratic management, insufficient professional respect, inability to travel abroad.  Other reasons such as too much work pressure or risk were identified by less than 30%.  Others mentioned chaotic management, lack of opportunity to learn anything.

Procuracy reforms

Prosecutors who had resigned were generally pessimistic about judicial (i.e. including the procuracy) reforms.About half said “it was hard to say anything about the future of the reforms,” while about 1/3 thought that there was no hope, with about 19% having some hope.

Almost 90% of resigning prosecutors thought that raising the salary was the most urgent need, with three-quarters believing that it needed to be doubled or tripled to retain prosecutors, with 70% agreeing that the administrative burden should be reduced, almost 60% agreeing that bureaucratic management should be reduced, and 47% agreeing that prosecutors should have more autonomy concerning their cases.

Social media

Finally, the reasons for resigning identified by the editor of Empire Lawyers (mentioned in my earlier blogpost on judges) likely apply to prosecutors. Social media, particularly Wechat,is likely important to prosecutors too, for the same reasons.  It has given them a new universe of social connections outside the procuratorate. It also gives them easy access to information about the life of former prosecutors similar to themselves. Moreover, through Wechat they can create a circle of friends and connections who can provide moral support when they have made the decision to resign.

Money is a big factor, particularly in major cities with high costs of living. The fact remains that middle-class life in China’s major cities, particularly for couples with a child, is expensive and salaries, tied to civil service rank, are inadequate.

At least judging from this survey, prosecutors are concerned that the judicial reforms will not result in a better quality of work for them personally.

As with judges, there is also the rigidity of the Party/state cadre management system. While law firm partner classmates are posting photos of themselves at Yosemite or in the Grand Tetons on Wechat, prosecutors must obtain permission to leave the country.

Further violence against Chinese judges

screen-shot-2016-09-18-at-1-09-54-pmDuring the Mid-Autumn festival, several of the major legal Wechat accounts carried articles deploring the latest report of violence against judges in a Shandong bank (which occurred on 8 September) (and making caustic comments about the local authorities), attracting hundreds of thousands of page views.  An official statement about the incident has now been issued by the central authorities decrying “no matter what the reason, violent resistance to law in any country is very serious legal event, it has touched the base line of the rule of law, respect of the dignity of the individual, it is about the authority of the law, if even in a judge’s personal safety can not be guaranteed in the society, what is the rule of law?”

A video of the incident (from which the above photo was taken) has been circulating of the incident, which originally had been deleted from Tencent video but now has been restored.The video shows two judges from the enforcement division of a county court at a local bank being attacked by personnel from the defendant company. The video states that the judges were taken to “headquarters,” with one kept as a captive and the other taken back to the bank.  A subsequent local government statement said that the investigations were continuing and the two judges were safely escorted from the county.

The official statement, made first by the Supreme People’s Court on its Weibo account , was subsequently reprinted in other official media, including on the front page of the People’s Court Daily and the website of the Central Political Legal Commission.

Presumably social media was flooded with thousands of messages from local judges on the lack of respect for the judiciary by the public and officials.

Comments on public accounts include:

 Wang Dong, prosecutor, author of CU检说法: Today enforcement division judges were beat up, maybe tomorrow it will be the criminal, civil court, and administrative division judges.

Today  Shandong judges were beaten, maybe tomorrow it will be Anhui, Henan, or Zhejiang judges.

Today those who were beaten were judges executing their public duties, maybe tomorrow it will be public prosecutors (procurators), police, or lawyers.

Everyone will not always be just a spectator.

If we say that the safety of judges, prosecutors, and police officers in the execution of public duties is not guaranteed, how can we expect them to protect the safety of social justice yet.

And a last sentence to say: If the judge can not feel justice when he encounters violent resistance to law, how can he make people feel justice in every case?

From a retired intermediate court judge, published on Legal Readings (法律读品):

If there is no limit on public power, judicial power loses its authority (公权无抑遏,司法失权威).

Which Chinese cases are most persuasive?

23885878-1_x_2Chinese courts are paying more attention to the use of precedent in considering how to decide cases.  (Two of my fellow bloggers, Mark Cohen and Jeremy Daum, have recently published on this issue, as have I.)  One of the many issues remaining to be settled as China constructs its own case law system is a hierarchy of precedent, so that the Chinese legal community, in particular its overworked judges, have clear rules on this issue.  (This is one of the questions subsumed under #23 of the Fourth Five Year Court Reform Plan).

We know that the hierarchy of precedent is not settled because two recent authoritative Chinese publications take a similar but not identical approach:

  •   The first, as cited in an article by Judges Jiang Huiling and Yang Yi of the Supreme People’s Court Center for Applied Jurisprudence, highlight the list set out in “The Beijing IP Court Guiding Case Work Implementation Methods (Draft)” (summarized in Jeremy Daum’s article); and
  • The second, an article by Judge Wang Jing, a senior Nanjing Intermediate People’s Court judge, published (and re-published) in a number of prestigious Wechat public accounts, including the account of the Shandong Higher People’s Court.  (Wang Jing has frequently published in SPC publications and she published her views on the judicial quota system (on Judge He Fan’s public account).

(As helpfully translated in Jeremy Daum’s article, the Beijing IP court draft regulations list, from most to least persuasive:

  1. SPC guiding cases
  2. SPC annual cases
  3. other SPC cases
  4. High People’s Court model cases
  5. High People’s Court reference cases
  6. Other prior cases from High People’s Courts
  7. Intermediate People’s Court precedent,
  8. Basic-level Court precedent,
  9. Foreign (non-mainland) case precedent.

I’ll focus on Judge Wang Jing’s analysis.

Judge Wang Jing

1.SPC guiding cases


2.Cases published in the monthly SPC Gazette.  Those are of two types: selected judgments (裁判文书选登) and cases  (案例), generally totalling 20-30.  The first type are cases decided by various trial divisions of the SPC and reflect their views on certain issues, while the second model cases submitted by the local courts (through the provincial high courts), which have been reviewed by the various trial divisions of the SPC.


3.Other cases published by journals of the SPC such as Selection of People’s Court Cases(人民法院案例选),  (a quarterly publication of the SPC Center for Applied Jurisprudence), China Case Trial Highlights (中国审判案例要览) (an annual publication of the National Judicial College and the Law School of People’s University)、and People’s Justice–Cases (People’s Justice is a biweekly publication,but the Cases section is published monthly). She notes that these cases reflect issues considered difficult and disputed in practice.z4573143


4. Trial Guides edited and written by the trial divisions of the SPC (最高法院各审判业务庭编写的审判指导丛书).  The People’s Court Press publishes a series entitled China Trial Guide (审判指导丛书), with separate publications by various trial divisions of the SPC, including the case filing, civil, administrative, #2 civil and #4 civil divisions. These publications often contain cases from the lower courts, or in the case of the #4 civil division, cases that have been reported to that division for review under the Prior Reporting system.


5. Case publications by various higher people’s courts (各地高级法院等编辑的案例刊物).

She notes that many provincial higher people’s courts (and some intermediate courts) publish cases, with cases published by the ones that have been in operation the longest and are more influential considered the more persuasive.  She mentions the Jiangsu Higher People’s Court Gazette as an example, which has cases decided by that court and model/typical cases from the lower courts.  (These are similar to categories 4-6 above).

Although her list does not specifically mention non-guiding (and non-model or typical cases) in her list of authoritative sources, she addresses them in her advice for lawyers providing precedent cases in litigation, with three common sense items of advice: when  you provide a case, it should be according to the court hierarchy, and date issued, provide the source, and use cases to provide a mind map for the judge to follow.  (A prestigious intermediate people’s court (the Shenzhen Intermediate People’s Court) recently also mentioned litigants (positively) using cases from the SPC’s case database, China Judgements Online, as a reference to judges.)

Some comments

This is another area in which Chinese law appears to lack firm guidelines about order and terminology (as I wrote about this theme in a series of articles for Practical Law China, ( note that they are behind the company paywall).The SPC and its divisions (and even one of its Circuit Courts) issue collections of model/typical cases (and summaries of such cases) under a variety of titles.  Terminology (aside from the guiding cases) is not entirely consistent.   The SPC issues notices and replies (generally of divisions of the SPC), acknowledged by Vice President Shen Deyong as a source of law, in an introduction to the book Collection of the Supreme People’s Court’s Judicial Rules (2nd edition)–how do these relate as sources of law vis a vis various types of cases or case summaries?  The legal community (domestic and foreign) awaits greater guidance.




SPC Judge Zhou Fan–another fallen tiger?

A report in Caixin on 8 September revealed that Judge Zhou Fan, vice president of the Supreme People’s Court (SPC)’s First Circuit Court in Shenzhen (and member of its Party committee) has been cooperating with Central Commission for Discipline Inspection (CCDI) investigators (i.e. taken into custody (according to Caixin’s English version)) for at least two mo10a1b5488422ac8b06c1c2cd0177d54cnths. [The original Caixin report has been taken down, but has been republished by Hong Kong’s Economic Journal.]  Judge Zhou has worked in the SPC for over 20 years, focusing on commercial matters, both domestic and cross-border, and would have been considered to be technically outstanding to be selected to be a senior judge for the First Circuit Court.

According to the Caixin report, he is one of the judges linked with former Vice President of the SPC, Xi Xiaoming (earlier posts on Xi found here and here).

The Caixin report mentions other allegations against Judge Zhou, such as cooperating with litigation brokers and interfering in major commercial disputes.The dates of the alleged conduct are not specified.

Over a year ago, this blog had the following comments on Xi Xiaoming’s case:

it is likely that the anti-corruption investigation into Judge Xi will touch on parties, including other judges, related to the case(s) in question.  It is also likely that the full extent of the investigation will not be made public.

So returning to the social context of 2011. A number of Chinese lawyers and academics have privately noted that at the time of the case in question, it would not be unusual for supplemental payments to be made to Court judges in connection with commercial disputes involving large amounts of money, and refusing payment could also have been awkward for those involved.

Although Judge Zhou’s photo remains on the First Circuit Court website, the publication of this report and allegations do not augur well for his tenure there.



Why are Chinese judges resigning?

Much has been written on why Chinese judges are resigning (but not enough about Chinese prosecutors–to be the subject of a later blogpost), but this blogpost (written on the road) adds some more detail and analysis. Comments (and criticism) are welcomed.

In May (2016), Chen Haiguang, the head of the judicial management department of the Supreme People’s Court (SPC) revealed that over 1000 judges had left, which he described as about 1% of the judiciary. The number appears to be an underestimate.  The legal Wechatosphere often mentions that a Wechat chat group of former Beijing-based (including the SPC) judges has reached its maximum of 500 members.

More data and analysis comes from two sources: a survey conducted in the fall of 2015 and published by Wusong (a big thank you to another “authoritative person” for bringing this to my attention) and a recent article by one of the more popular Wechat public accounts, Empire Lawyers ( 法客帝国).

Respondees to survey


Six hundred former judges responded to the survey, conducted through social media, of which 72% had left within the past year, while almost 19% had left within the past 2-3 years.

Who is leaving


Judges resigning, by sex (82.2% men, 19.67% women

It is mostly men leaving the judiciary, out of proportion  with the ratio of men:women in the judiciary (2:1). (This confirms what I have been saying when I have spoken on this issue). The survey gives the rationale that men are more interested in a challenging career than women, and are able to deal with a more pressured life.

Judges are resigning in their 30’s, for the most part (see below), and my own analysis is that the reason women are staying in the judiciary is that (married) women at that age also have responsibilities to children and elderly parents. Women are prepared to deal with the stresses of working in the judiciary because the work is more “stable,” and does not involve marketing work after business hours.

Age and education

Over half (55%) of the judges resigning are in their 30’s. Most (70%) have been in the judiciary for at least 6 years, with practically all (91%) with at least 4 years of experience, over 99% with an undergraduate degree and 37% with a master’s degree.

Type of court and area of work


Most judges who have resigned recently  are from the basic level (78%) and intermediate level courts (18%).


Many (almost 80%) of the judges who had resigned were in the civil/commercial divisions, with division chiefs and deputy division chiefs accounting for 14% and 19% respectively.

Reasons for leaving:

  • benefits insufficient (66% selected this as primary reason);
  • too much pressure and too much work (60%);
  • not enough opportunity for promotion (34%);
  • professional risk and lack of professional respect (31%).

Those that have resigned are generally pessimistic about judicial reform (47%) or can’t say for certain whether it will be successful (32%). Their “judges’ dream” is to be able to try cases independently, without reporting their case up to the leadership, worrying about parties to the case petitioning because they are unhappy with the outcome, etc.

Another analyst (the editor of the Wechat account Empire Lawyers) gave three reasons for the wave of judges submitting their resignations.

  • Wechat;
  • Judicial reform;
  • Other factors (especially money).

Why Wechat?  Because it has given them a new universe of social connections outside the judiciary. It also gives them easy access to information about the life of former judges similar to themselves. Moreover, through Wechat they can create a circle of friends and connections who can provide moral support when they have made the decision to resign. According to the editor, Wechat is often a vehicle for judges preparing to resign. Some judges establish their own Wechat public accounts while still in the judiciary, publishing articles that bring much more attention from legal professionals to their expertise than their judgments ever do.

The increased stresses of judicial reform are another set of factors–the lifetime responsibility system,  case registration system, and particularly, the bright line quota on the number of judges (no more than 39%) means that promotions will come more slowly than previously and others will not even be eligible to participate in the examinations for qualifying as a judge.

Other factors?  The editor cited money, particularly judges in major cities with high costs of living.  The fact remains that middle-class life in China’s major cities, particularly for couples with a child, is expensive and judicial salaries, tied to civil service rank, are inadequate.   As the editor mentioned, some judges supplement their wages with (legal) inome from writing or lecturing. (It seems likely in the current atmosphere, fewer judges are willing to risk soliciting illegal income.)

There is also the rigidity of the Party/state cadre management system. While law firm partner classmates are posting photos of themselves at Yosemite or in the Grand Tetons on Wechat, judges must obtain permission to leave the country

Finally, this couplet is popular on legal oriented Wechat:


Q: Do you regret resigning from the court?


A: Regret.


Q: Why do you regret it?


A: I regret that I left too late.