As the readers of this blog know, Tongji University Law School Dean Jiang Huiling worked at the Supreme People’s Court for over 30 years, and for over 25 of those years, he was involved in judicial reform. He has the most comprehensive and deep understanding of the importance, challenges, and multiple implications of reforming China’s court system.
On 11 January 2023, Dean Jiang spoke on the last 10 years of judicial reform to my judicial reform class at the School of Transnational Law, colleagues and students from Tongji University, and some other visitors. This very delayed blogpost summarizes his presentation and responses to questions from the audience. The references to “we” in the summary are his, as are the unattributed quotations.
A. Roadmap of [the last ]10 Years of Judicial Reform
B. Four Fundamental Reforms
C. Judicial Organizations Reform
D. Procedural Justice Reform
E. Diversified Dispute Resolution
F. Judicial Democracy
G. Other Reforms
H. General Observations
A. Roadmap of Chinese Judicial Reform
The focus of his presentation was the last ten years of judicial reform (2013-2023), which included two five-year judicial reform plans. He first provided some historical background to the most recent two judicial reform plans, speaking about earlier judicial reform plans from a participant’s perspective.
1. Earlier judicial reform plans
Many Chinese scholars and some foreign scholars consider that those earlier ones were working method reforms, focusing on efficiency and other matters-they say is it not real judicial reform. He disagrees but says that it was only with the reforms of the last 10 years that structural (radical) reforms were made.
- The first judicial reform plan (starting in 1999)–Dean Jiang was involved in drafting it. The principal focus was making the public and judicial professionals aware of the nature of a judicial system.
- The second 5-year judicial reform plan: Setting the tone of the judicial system–procedural justice, professionalization and other basic elements of a judicial system.
- The third 5-year judicial reform plan: in 2002 the Central Government [中央] discussed structural judicial reforms, and although the environment was very helpful, after preparing detailed plans (in which Dean Jiang was involved), the government and the SPC gave up those structural or radical reforms.
2. The Last Two Judicial Reform Plans
- The fourth 5-year judicial reform plan (from 2013): Radical change of the judicial structure, organization, and nature of the legal profession. In response to my question as to why was the political leadership willing to do these reforms, Dean Jiang said that it was there had already been 15 years of judicial reform, of reforms to working methods, but it did not solve severe basic problems of judicial independence [it will be evident in this account what he means by this], fairness, and local protectionism. It is 穷则变塔–if there are no other options, then that is what needs to be done, and reflects what Chinese scholars had been calling for. As to the nature of the legal profession, he meant treating judges and prosecutors differently, not simply as civil servants.
- The fifth 5-year judicial reform plan (from 2019): comprehensive and supplementary reform and “Zhengfa” （政法 political-legal) reforms. (See his explanation in last year’s presentation).
3. Summary of the characteristics of judicial reform in the past ten years-
“It’s a new time….”
- Breadth: From the judiciary to other related areas
- Depth: From judicial system reform to broader systematic innovation
- Goal: From a fair, efficient, and authoritative judicial system to basic values of judicial system systems–touching on basic values such as independence, professionalization, and public confidence
- Method: From branch-driven to Central Committee-driven–by this he means that previously, reforms were undertaken by institutions separately, but now the reforms are driven by the Central Committee [Central political leadership]
- Nature: Chinese style and self-owned brand
B. Four Fundamental Reforms
Dean Jiang focused on four fundamental reforms, giving a quick summary and some comments. I will supplement with scattered comments, some links to some English-language academic articles, and some of my own blogposts.
Judicial Personnel Management System Reform
This is one of the most important reforms. Although the Central Government had sought to improve the quality of judicial personnel (judges and prosecutors) for a long time, they had been treated as ordinary civil servants with ranking. Now they are managed as professional civil servants. He noted that when he was in Taiwan in 2011, Taiwan had done something similar. (The reform is not complete, and the SPC’s website and casual conversation among judges and legal professionals reflect this).
(For those interested in the quota judge system, please see this article by Hong Kong University Faculty of Law Dean Fu Hualing and Zhongshan University Professor Sun Ying. )
2. Judicial Responsibility and Accountability System Reform (司法责任制)
He quoted President Xi Jinping’s description of it as “牛鼻子工程”–the nose of the cow project–crucially important. He noted that it is right to punish ethical violations and intentionally wrong judgments. Although this reform provides for more· internal Independence, it comes with strict restrictions and supervision. Jurists, prosecutors legal scholars, and others disagree with this approach. They argue that the reason for continued corruption, miscarriages of justice, and unfairness lies in the lack of reform elsewhere, The focus on judicial responsibility is a politician’s wisdom. Under that system, supervision is more important, and that is the reason for defining “four types of cases.”
See my earlier blogpost on the “four types of cases” and Straton Papagianneas’s article on the use of automated methods of supervision.
3. Professional Guarantee Reform: Salary, Rankings, Selection, Training, Disciplinary Reform
He spoke only briefly on this, saying these were needed so that judges were treated as judges.
4. Judicial Administration at the Provincial Level–
Delocalizing the Chinese judiciary–local protectionism was criticized by legal scholars and those within the judiciary [not to mention litigants and their lawyers] for many years. Judicial protectionism was terrible for fairness. Officials now characterize judicial power as a central power.
Chinese and foreign scholars consider the first and fourth most important.
See this earlier blogpost on problems with the court funding reform.
C. Judicial Organization Reform
These reforms are more technical and less fundamental.
1. Branch Courts of the Supreme People’s Court (Circuit Courts)
Six Branches in the country. The country is large but only one Supreme Court in Beijing exists. They were established to deal with trans-provincial cases, so that cases involving parties from different provinces, especially when the local government or its entities are a defendant, are heard fairly. He favored the scholars’ proposal of making the circuit courts into a separate tier (or quasi-tier), but that idea was not accepted.
Note my earlier research on the caseload of the SPC Circuit Courts, which found that most cases that these courts considered were applications for retrial, most in administrative cases. This has now changed with the reform to the four levels of the Chinese courts, as discussed here. See this article by the deputy chief of the SPC administrative division and two colleagues.
2. Specialized Courts
He noted that the Internet Court is not officially recognized as a specialized court by the Organic Law of the People’s Courts, but is an innovative action by the Chinese government.
See also Georgetown Law Professor Mark Jia’s article on China’s specialized courts.
3. Transregional Court Systems
“It’s another interesting invention in China.” Virtually all courts in China are based on the corresponding administrative area, so a county court will be established in a county, emphasizing the localized nature of the courts. So in 2015, the Central Government established the following two courts:
- Beijing Fourth Intermediate Court
- Shanghai Third Intermediate Court
Under the situation that judicial appointments and budgets have been transferred to the provincial level, this reform may not be so useful. It is his suggestion that China establishes transregional courts beyond the provincial level. This overlaps with the circuit courts. It is a scholar’s view.
5. Internal Organs of Courts
This one has many Chinese characteristics.
This involves the five-eight-ten test. If you have under 50 personnel in your court, you can establish up to give internal organs in your court. If you have between 50-150 personnel, you can establish eight internal organs, and if more than that, you can establish 10 internal organs. This means that it is possible to save some quota (headcount) for personnel [linked to the headcount system of the organizational departments–see here]. But it also pushes local courts in the direction of professional, rather than bureaucratic management.
D. Procedural Justice Reform
This is considered a “technical” reform but touches upon fairness, and what President Xi Jinping says about making each person feel fairness in every case.
Criminal Justice Reforms
Both inquisitorial and adversarial systems have the same standards of procedural justice. But in China, traditionally 公检法都是一条龙, the public security, procuratorate, and courts are a production line. “We have a long history in China with this.” They consult with one another and sometimes other bodies coordinate them. Which is the center? In this round of reforms, the Central Government pointed out that the trial, the hearing should be the center in criminal justice. It’s very difficult and the reform is not finished. But we are moving in the right direction.
2. Accesss to Justice
Case filing reforms, making it easier for a party to file a case.
3. Simplification of procedure
For judicial efficiency, enabling more cases to be closed in a short period of time, the following reforms were made:
- Sole judge and One Judge Panels
- Small claims
4. Functions of the four levels of the courts
“An old item of reform but a new action taken in recent years.”
“Cylinder or Cone”?
Traditionally the Supreme People’s Court could hear a case within the jurisdiction of a local court. But this is not good for professionalism. So now, the reform is to have the higher courts focus on legal issues and more important issues, that is for the court system to be shaped more like a cone.
See my two blogposts on this reform.
E. Diversified Dispute Resolution
ADR–in China called Diversified Dispute Resolution. This is an efficiency issue. It is also important for Chinese state governance. The courts are a beneficiary of these developments because they resolve more cases.
1. One-stop Litigation Service
2. One-stop Dispute Resolution Service
3. Judicial Platform and Governmental Platform
4. Judicial Confirmation of Mediation Settlements
–we learned from the United States and other countries in designing this. In the US, courts approve a settlement, while in China, we have a confirmation of mediation settlement procedure.
5. Arbitration–In China, we have over 260 arbitration commissions, almost one for each city, with CIETAC, Beijing Arbitration Commission, Shanghai International Arbitration Center, and the Shenzhen Court of International Arbitration being the most prominent. We have learned from overseas in arbitration.
F. Judicial Democracy
1. People’s Congress Supervision
This sometimes makes courts anxious. The president of a court does an annual report and the people’s congress votes on it. If it does not pass by much or does not pass, the court president and the court feel embarrassed. It has happened. What happens if the report does not pass? After two or three months, the court president has an opportunity to report again. It is a type of facilitation.
See my recent blogpost related to people’s congress supervision.
2. Peoples Accessors (Lay Judges) System
–although the terminology in Chinese is similar to a jury, it is actually more similar to the lay judge system in Europe. It has a long history in China (not as long as Europe), and changed in the last 20 years. Now the people’s congress appoints them on the recommendation of the people’s court.
3. Judicial Transparency: Written Judgements, and Live Broadcast of Hearings
4. Media Supervision
Very different from people’s congress supervision and he spoke about the rise of commentary on the courts through social media platforms.
G. Other Reforms
1. Constitutionality Review
The Chinese courts do not do that, it is a function of the National People’s Congress. They have established a committee. This is a big progress, although some scholars think this should be given to a constitutional commission or court, or to the courts. He is not sure which is better. The NPC Standing Committee has recently published its annual report on this. These contain legal judgments. But how should these legal judgments be made? Should they follow some procedures? The legislature is trying to reflect people’s views. The standard between the courts (black-letter rules) and people’s views is different. He hopes there will be some improvement.
2. Judicial interpretation
The SPC and Supreme People’s Procuratorate both have interpretative power within their area of competence. This is always criticized by NPC deputies, the staff of the NPC, and some scholars because the content is abstract and looks similar to legislation, but it plays an important role in unifying the application of law in the whole country. The judges love it. Without interpretations of law, given the brief provisions of law, it gives judges great discretion, so there is a risk of inconsistent application of law. He is sure judicial interpretations will be there for another decade.
3. Guiding Case System
Justice Xiao Yang found another way of interpreting the law-through cases.
4. Prosecution system
The procuratorate disappeared in the former Soviet Union but in China, it is still here. It has found a new way of life with public interest litigation, supervising administrative, civil, and criminal litigation, enabling them to oversee the executive.
5. Ministry of Justice
The State Council’s Legal Affairs Office has been merged into the Ministry of Justice. And everyone knows that President Xi chairs the Rule of Law Commission and that secretariat is located in the Ministry of Justice.
6. Public Legal Service
The Central Government just issued a reform plan.
7. Legal Profession and Pre-career Training
It is another technical but important reform for the future of the legal profession. We followed the civil law countries in planning pre-career training. I hope we can insist on two years of legal training.
H. Some General Observations
1. The first 5 years vs. the second 5 years–very different. The first five years of reforms are structural or system reform, like the identity of the judges or prosecutors, delocalization…But the second five-year reforms–comprehensive, supplementary reforms–the four fundamental reforms have finished, and we go on to the next. But those reforms and others are not finalized–it is not possible within four or five years to fundamentally change a judicial system. This reform plan is continuing the former plan, plus supplementary reforms. Unfortunately, the Central Government has invested less. This is linked to Covid-19, the unsatisfactory international environment, and the economy—many negative factors.
2. From judicial reform to “Political and legal (政法) reform”–from judicial (司法) to political-legal reform, including reforms to the people’s congress system. The comprehensive, supplementary reforms must fit into the political-legal reforms
3. Step-by-step reform: Waiting for or creating satisfactory conditions for some reforms–only a few provinces have finished the financial reforms, less than half. Reasons– now few meetings to coordinate with other branches on this.
4. How to deal with the halfway reforms and progressing with the Comprehensive supplementary reforms–there should be some evaluation–but there are no formal critical objective evaluations published. How to deal with the halfway reforms.
5. Yes and no to Politics-Driven Reform–the nationwide judicial reforms must be driven by political power. No comprehensive effect is possible without the use of political power. There should be more legal elements in this process.
6. On the Track of Rule of law–how to keep judicial reform on the track of the rule of law.–#5 of Xi Jinping rule of law thought is putting state governance on the track of the rule of law. That will take all legal professionals, foreign scholars, the international community, and internal incentives. This is what is needed to keep judicial reforms on the track of the rule of law.
In the next five or ten years, the judicial reforms will not stop. The pace might be slower. The country has so many difficulties. We hope that the rule of law will help the development of this great country.
He concluded the main part of his presentation by cautioning that these are his views, as a scholar.
In response to the question concerning which reform is the most important and what obstacles it faces, Dean Jiang said that two are the most important–the centralization of judicial power and the professionalization of judges, so that judges are sufficiently qualified to exercise greater judicial power. Time is a challenge.
A question from one of my students–what about using contract judges to supplement the shortage of judges? A: In UK, they are called part-time judges. But in China, Chinese judges must have 政法专项编制 (political-legal specialized headcount)–in China we have not changed our minds on this–we are concerned about corruption. Perhaps in the next 10 years, we will have part-time judges, more likely borrowed from the executive. Professional ethics is very important.
A second question from one of my students, concerning the constitutionality of the quota judge reform–removing the title of judge from 70,000-80,000 personnel. Dean Jiang said it was a good question and would have been challenging if done in Europe. The Central Government leadership decided, saying that many people were not doing judicial work, but were in the General Office, Research Department, etc. People thought about the legality or constitutionality of this. We didn’t use the word “removal,” but “suspension,” you keep the title of “judge,” but no longer do judicial work. Dean Jiang himself was affected by this reform. He was appointed as a senior judge by the NPC Standing Committee but was working in the Judicial Reform Office. Approximately 360 judges were appointed as quota judges by the SPC. He was not one of them, not a 员额制法官, but still enjoyed the title of “senior judge,” (of the bureau-chief ranking 正局级). If all those judges had continued to be judges, it would have been a disaster for judicial reform, it would have slowed things down. It was a balancing, at the edge of legality/constitutionality. The second question that the student asked was about the accountability of judicial assistants under the judicial responsibility system. Dean Jiang said the reason is that they are involved in judicial work and are future judges.
Another question from the audience related to reforms such as abolishing the Procuratorate and moving the prosecution function to the Ministry of Justice (like many other jurisdictions)–unlikely and why the enforcement bureau remains in the courts, when the enforcement function is elsewhere in many jurisdictions. Dean Jiang said many court presidents would welcome that, and the proposal has been made, but during the 16th Party Congress, it was decided that it was not appropriate to do so. A question was raised about military courts–he noted that they are considered specialized courts, and under the reforms moved from being under the General Political Department to being directly under the Central Military Commission (through its Political-Legal Commission).