This updated blogpost muses on Judge Xi Xiaoming, and:

• phenomena of “assumption of guilt” and trial in the press
• political factors in Chinese judicial decision-making;
•  judicial corruption;
•  implications for related parties;
•  investigation-centered criminal justice system
•  effect on lower court judges;
• the intellectual legacy of Judge Xi;
•  effect on the credibility of the judicial system.

The comments below are made with no further information about Judge Xi’s case than what is publicly available.

The background

In the late afternoon of 12 July, Xinhua news issued a statement reporting that the Central Commission for Discipline Inspection (CCDI) announced that Supreme People’s Court (Court) Vice President Xi Xiaoming, was under investigation for violation of Party discipline and law.  Judge Xi has worked in the Court for over thirty years and is well known for his expertise in civil and commercial law. The announcement caused shockwaves in the Chinese legal community. Chinese press reports have linked the allegations to a case involving a 420 million RMB dispute over shareholding in a Shanxi coal mine, but the allegations have not been confirmed by the CCDI.

On 20 August, Meng Jianzhu, head of the Central Political Legal Committee, made the following statement about Judge Xi: “Xi Xiaoming has shamed the judiciary, as a 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. “作为在最高法院工作33年的老法官，奚晓明却同个别违法律师、司法掮客、不法商人相互勾结，收受巨额贿赂，这是司法界的耻辱。”

 “Presumption of guilt” and trial in the press

Judge Xi is under investigation by the CCDI and it has not yet been reported that the procuracy has yet filed a case against him.  It does not seem that the lawyers involved in the Shanxi case have been prosecuted or penalized for illegal activity.  Meng Jianzhu’s statement evidences two phenomenon in Chinese criminal justice–the presumption of guilt and “trying” suspects in the press

As Zhu Zhengfu, the vice-chairman of the All China Lawyers Association warned earlier this year, there is a widespread and dangerous “presumption of guilt” among mainland law enforcers.”  Zhu proposed a law be enacted to fully protect each citizen’s right to be presumed innocent until proven guilty.

“An arrest is made on one day, then the next day you have the suspect confessing on television, and some are forced to confess,” Zhu said.

“After the confession, [law enforcers] immediately say the case has been solved and they celebrate their achievement. So you can imagine how much pressure the court is under if it wants to pass an innocent verdict.”

As Si Wejiang of the Debund Law Firm pointed out, CCTV often declares a person guilty even before the procuracy has approved his arrest and does not give his defense lawyer a chance to speak.

Complex politics of large commercial disputes in China

In private comments, several senior Chinese lawyers and other Chinese legal experts have suggested that Judge Xi’s case is not a simple case of corruption, but is tied to more complex political factors.
As two DLA Piper lawyers commented in a Practical Law publication, “large commercial disputes between Chinese parties are usually settled with the help of political influence and/or commercial pressure, with the rule of law methods such as litigation and arbitration either not used at all or used as a bargaining tool.”

They further noted that in recent years “there has been a return to non-rule of law methods of settlement, particularly in relation to disputes involving over CNY100 million.”

The senior lawyers noted that judges hearing cases involving politically powerful litigants (called interest groups in Chinese political jargon) may be under pressure to decide the cases in particular way (as further described in the next section). As time goes on, the litigants may not be as politically powerful as before, and the judgment (and the judges who made decisions) may be called into question.

Corruption in the courts

The corruption allegations are said to be connected to the Shanxi case, reported in further detail in the Caxin report.  But the corruption allegations may be more complicated than they appear.  As several  academic studies have noted, judicial corruption in China has several root causes related to the nature of the judicial system.  In her 2014 book,  The Judicial System and Reform in Post-Mao China, Li Yuwen, Professor of Chinese Law at Erasmus University stated:

First, the lack of judicial independence leaves room for corruption.In practice, when a case is brought to court or assigned to a judge, court officials or the responsible judge are often contacted by various people–the most influential ones are those with government positions….In addition, the lack of recognition of the nature of the judiciary to enforce law fairly and efficiently also results in a puzzling perception of courts and judges….

Secondly, judicial corruption cannot be divorced from its social context…It is unrealistic to expect judges to operate completely outside the social environment, especially in the absence of a workable system to reduce the incidence of judicial corruption….

Thirdly, certain shortcomings of the court system leave the door open for corruption. For instance, the flexible use of the re-trial system leads to the easy re-opening of cases if influential people wish to interfere in the case. This not only diminishes the finality of the case but also creates opportunities for using personal networking to change a court’s judgment. Furthermore, the relatively law judicial salary makes judges an easy target for corruption…In modern-day China, a profession’s income is too often linked to the profession’s social status. Judges’ low salaries are not conducive to building self-respect amongst the profession and, moreover, they constitute a major ground for fostering judicial corruption.

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.  Whether this was in fact the case for Judge Xi is not known.

Implications for related parties

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.

Investigation-centered criminal justice system

Judge Xi is now experiencing the Chinese investigation-centered criminal justice system, in which Party members are generally subject to shuanggui, where they are subject to long periods of interrogation outside the formal criminal justice system, followed by repeated interrogations if and when the case is transferred to the procuracy. His case is part of the current anti-corruption campaign.

As Professor Fu Hualing of the Faculty of Law, University of Hong Kong has written:

The anti-corruption campaign is also a highly politicized process. Investigations are selective, politically motivated, and aim to achieve particular political consequences….

Xi’s campaign further shifts power from legal institutions to the Party’s disciplinary mechanism. Compared with anti-corruption work under the previous government, the current campaign more decisively bypasses legal procedures and institutions. After a brief moment in which law seemed to be able to play a central role in the anti-corruption process, legal institutions have been effectively marginalized to the role of initiating anticorruption
purges of ‘tigers’. There is no longer any meaningful discussion
on the end goals and limits of shuanggui, the Party’s power to detain its own delinquent members and little mention of the creation of a more neutral anti-corruption body.

Effect on other judges?

What will be the effect of Judge Xi’s case on judges in the lower courts, who may not want to find themselves involved in local parallels of his case? Will it lead to further departures of experienced judges?

The intellectual legacy of Judge Xi

Judge Xi has been a major force in the area of civil and commercial law, involved in many major legal developments in China over the past thirty years. He has been involved the drafting of major judicial interpretations, edited many books, and been involved in other major legal initiatives, including, most recently, the drafting of the Civil Code and the establishment of an environmental law research center affiliated with the Court.  The many technical legal reforms in which he has been involved are crucial to the operation of the Chinese judicial system. The initiatives in which he has been involved are likely to go on with other talented people, but he is sure to be missed.

Effect on the credibility of the judicial system

Improving the credibility of the Chinese judicial system is said one of the goals of the Chinese judicial reforms.  We will need to wait and see how Judge Xi’s case progresses, and how both official and unofficial commentators, as well as members of the Chinese public and international community view his case.