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 in 2016 worked for the legal media company Itslaw (无讼),(she has since changed companies), published the results of her survey of over 4000 members of her cohort this spring.  The study gives important insights.

Who is leaving?

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Prosecutors resigning, by sex

The two surveys that she did revealed that men were resigning in greater numbers than women, with 70%/30% ratio in the survey done this (2016) spring. This may explain why many of the criminal cases streamed by the courts have an all women team of prosecutors.

Age and education

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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.

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Educational background

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

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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.

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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.

Destination

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.  [One local prosecutor has commented that  junior prosecutors (in his locality, at least) are to travel, although the high ranking ones are more restricted.] 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.

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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

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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.

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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.

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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.