How the Supreme People’s Court borrows helping hands

Screenshot 2019-04-05 at 11.52.51 AM

Book cover of the English children’s book The Borrowers, translated into Chinese as 地板下的小人

I recently visited the Supreme People’s Court’s (SPC’s) new intellectual property court (SPCIPC) (intellectual property tribunal), currently sharing a building with the Beijing Internet Court, in the Fengtai district of Beijing.  But I will leave comments on the court’s operations to Mark Cohen and other intellectual property lawyers.   From the list of SPCIPC judges in Mark’s recent blogpost, it is clear that many of them have been borrowed from the lower courts.  The blogpost includes the line “..due to the rapid establishment and staffing of this new Court, many of the judges are likely on detail from their prior jobs to the new Court, pending permanent transfer.” It is unclear whether these judges will in fact be permanently transferred to the SPC, or in fact would prefer to do so. This blogpost will shed a bit of light on the phenomenon of the SPC borrowing/temporarily detailing 借调(jiediao)  staff from the lower courts.

As with the guazhi system in the SPC described in one of last year’s blogpost, it is one of the many aspects of the personnel system of the Chinese Party/state system that shapes how the Chinese courts operate.  Under this system, a person from a lower level institution is “borrowed” to assist with work at a higher level institution.  The borrowed person’s employment relationship remains with the lower level institution.  It appears to be a practical solution to the restrictions on SPC permanent headcount imposed by the Central Staff Commission, while being able to field sufficient personnel for the new institutions such as the Intellectual Property Tribunal and Circuit Courts.  Senior judges, such as division heads and vice presidents, have many administrative obligations and less time to hear cases. It is unclear how many borrowed staff the SPC has. Some knowledgeable persons suggest that they can be found in almost every operational department of the SPC.

In my experience, the circuit courts have borrowed judges from the lower courts to serve as judge’s assistants (法官助理).  While it is an imposition for judges to be away from their homes and family, it also an opportunity for them to make themselves known to SPC judges, a connection that may be useful in their later careers, whether or not they remain in the judiciary.

He Fan, head of the planning section of  the SPC’s judicial reform office, wrote about borrowed staff in a 2015 article on his Wechat account:

For lower court judges, being seconded to the higher court to help out is a mixed event. It means that you reach a higher level of experience, broaden your horizons, increase your knowledge, and your chances of being selected by a higher court will increase.  On the other hand, it means being away from loved ones, living for others, … sometimes the opportunity for the promotion in the original court is delayed, the superior court  may not extend an olive branch, and finally only it is only in exchange for a letter of praise from the higher court.

Generally speaking, the lower-level judges are seconded to the higher courts for three reasons. First, as an assistant judge, they are incorporated into the collegial panel to handle cases; second, as a judge’s assistant, assisting the judges of the higher courts in handling the case, such as the assistants of judges in the first and second Circuit Courts of the Supreme People’s Court, who are mostly excellent candidates from the lower courts. The third is to work in the “comprehensive” (supporting) departments, to work in the higher court’s research office, the audit office, the judicial reform and other departments engaged in judicial policy research, drafting judicial rules, etc.