As the days count down to the 19th Party Congress, all Party/government institutions are preparing for it, including the Supreme People’s Court (SPC). On 19 September, the SPC issued an emergency notice (pictured above), calling on the lower courts to strengthening law enforcement work to provide a good judicial environment for the holding of the 19th Party Congress. The SPC, as other Party/government institutions, issue emergency notices from time to time (here’s one from the Ministry of Education), generally linked to a politically significant event. The full text for the SPC notice hasn’t been released (or if it has, it has escaped me). It is meant to send signals to the SPC staff and to the lower courts.
Some of the signals:
improve performance indicator systems (indicating too many courts still have dysfunctional performance indicators);
handle more cases, handle them well, handle them quickly (多办案、办好案、快办案, language better suited to the factory floor);
ensure that the goal of having difficulties in enforcement basically resolved in three years is achieved (again….);
clear up those unresolved cases (要抓好长期未结案件清理,确保依法妥善清理案件)–this is being taken seriously by court leaders, again judges (and their clerks, assistants and interns). The PhDs (and Master’s degree holders) praised by the SPC may feel they are somewhere between a model production worker and a real judge (or clerk.). (Of the SPC quota judges, about 1/3 have PhDs, with over half holding a master’s degree), and PhDs are not unusual in the lower courts, at least in major cities.) An unscientific survey shows judges and their support staff doing more overtime during the pre-19th Party Congress and pre-Golden Week holiday to meet this target;
reminds the lower courts about the case registration reform and reminds judges that cases should be accepted, even towards year end, when courts are concerned about their case closing numbers, especially the number of cases that will be carried over to the next year, and warns them against reporting false closing statistics (坚决杜绝人为抬高立案门槛、拖延立案、年底前提前关门不收案等突出问题), （切实防止虚假报结、强迫撤诉);
reminds courts about another important but controversial judicial reform, implementing the judicial responsibility system (insightful analysis and research from within the courts on this is coming out, see this recent article in the National Judicial College’s journal);
it reminds judges of ways to deal with the increase and cases and reduction in headcount–use diversified dispute resolution, separate simple from complicated cases, and try similar cases together.
The SPC released some year to date (end August) statistics (I’m drilling down on the state of transparency in this area)–close to 16 million newly accepted cases (15.89 million), no breakdown on how cases are categorized, closed cases up to 12.67 million (up 15.7%). This indicates continued high pressure on first instance judges and their assistants. I’m awaiting data on what the vortex of reforms means for retaining high quality judges.
A draft of the first comprehensive overhaul of China’s court law since 1979 (the organic/organizational law of the people’s courts) is now open for public comment (until 4 October). A translation of the draft is available at Chinalawtranslate.com (many thanks to those who made it possible). A translation of the current law is here and an explanation of the amendments has also been published. The draft is significantly longer than the earlier version of the law (66 vs. 40 articles). It retains much of the framework of the old law, incorporates legislative changes as well many of the judicial reforms, particularly since the Third and Fourth Plenums, and leaves some flexibility for future reforms. As with the current law, Communist Party regulations address (and add another layer to) some of the broad issues addressed in the draft law. Some comments:
The drafting process (the explanation has the details) reflects the drafting of much Chinese legislation (further insights about the process from Jamie Horsley here)–several years of soft consultation by the drafters of relevant Party and government authorities, plus one month of public consultations. Among the central Party authorities consulted were: Central Commission for Discipline Inspection, Central Organizational Department (in charge of cadres); Central Staffing Commission (in charge of headcount); Central Political Legal Committee. On the government side: Supreme People’s Court and Procuratorate; State Council Legislative Affairs Office; Ministry of Finance, National People’s Congress Legal Work Committee. Investigations and consultations were also done at a local level.
Some of the dated language from the 1979 version has been deleted (references to the “system of the dictatorship of the proletariat,” “socialist property,” and the “smooth progress of the socialist revolution.” replaced by “lawful rights and interests of legal persons,” and protection of national security and social order. Although the draft court law deletes language that distinguishes among owners of different types of Chinese companies, Chinese criminal law still does (see this chart setting out sentencing guidelines, for example).
Article 10 of the draft incorporates judicial responsibility systems into the law (a prominent feature of the recent judicial reforms), but a topic regarding which dispassionate analysis is hard to find.
The draft contains clear statements about judicial openness and the right of the masses (i.e. ordinary people, that term is alive and well) to know about the work of the courts (according to law).
Organization of the courts
The draft mentions some of the specialized and special courts that have been established over the last thirty years:
Maritime courts, legislation found here; translation of SPC regulations on jurisdiction found here.
Intellectual property courts, legislation found here, a summary of SPC regulations on jurisdiction found here.
The military courts still lack their own legislation (an earlier discussion of this issue is found here).
Article 15 of the draft crystallizes the SPC’s circuit courts (tribunals) into law (SPC regulations on the jurisdiction of those courts found here).
Article 24 gives space for establishing cross-administrative region courts (the time has not yet been ripe for establishing them).
Articles 26 and 27 give courts some flexibility on their internal structure (courts in remote areas with few cases need not establish divisions, while large city courts can have multiple specialized ones. (Earlier blogposts have mentioned establishing bankruptcy divisions, for example.)
This section of the draft law incorporates the current judicial reforms in several ways, including:
In Articles 30-31, on the operation of collegial panels and requiring the court president to be the presiding judge when s(he) participates in a collegial panel;
Mentioning in Article 32 that the members of the collegial panel are the ones to sign their judgments and dissenting opinions are to be recorded;
Article 34 gives space for eliminating the role of people’s assessors to determine issues of law;
Article 37 incorporates into law previous SPC regulations on judicial interpretations and guiding cases, specifying that they must be approved by the SPC judicial committee;
Article 40 contains provisions imposing liability on members of the adjudication/judicial committee for their comments and their votes. It also incorporates into the law SPC regulations on disclosing the views of the judicial committee in the final judgments, except where the law provides it would be inappropriate;
Article 41 also incorporates into the law the specialized committees mentioned in judicial reform documents (briefly discussed in priorblogposts).
Article 42 requires court presidents to have legal knowledge and experience. It has long been an issue that court presidents have been appointed more for their political than legal expertise.
It appears that the reform of having judges below the provincial level appointed by the provincial level is not yet in place,
This section of the draft court law incorporates the personnel reforms set out in the judicial reform documents in several ways: quota judge system; selecting higher court judges from the lower courts; the roles of judicial assistants and clerks (changed from the old model); other support personnel in the courts; a new career track for judges, including judicial selection committees; preference to hiring judges with legal qualifications;
Safeguards for the courts’ exercise of authority
Article 56 gives courts the right to refuse to engage in activities that violate their legally prescribed duties (with this end the phenomenon of judges sweeping streets?);
Article 57 relates to reforms relating to enforcement of judgments (and the social credit system);
Article 59 relates to threats to judges’ physical safety and personal dignity, that occur several times a year in China, and have been the subject of SPC regulations;
Scope for further reforms for judicial personnel management (including salary reform!) are included in this section.
Article 60 reiterates the principle that judges may only be transferred, demoted, dismissed according to procedures specified by law (Party procedures to which most judges are subject,are governed by Party rules.)
Article 62 relates to judicial (and judicial personnel training)–some earlierblogposts have shed light on this topic.
Article 64 incorporates into the draft law President Zhou Qiang’s focus on the informatization (including use of the internet and big data) of the Chinese courts.
My apologies to readers for the long gap between posts, but several long haul trips from Hong Kong plus teaching have left me no time to post.