main premises of the Shenzhen intermediate court
The National People’s Congress (NPC) Standing Committee recently revised the Organic Law of the People’s Courts （People’s Courts Law, English translation available at Chinalawtranslate.com), the framework law by which the Chinese courts operate. The NPC took the lead in drafting it, rather than the Supreme People’s Court (SPC). It retains the framework of the old law, incorporates legislative changes and many judicial reforms, leaves some flexibility for future reforms, and updates some of the general principles in the old law that apparently are on the dust heap of history (历史的垃圾堆). Some of the principles newly incorporated reflect the reorientation of the Chinese courts, over the past 40 years while others represent long-term goals. Some provisions originally in earlier drafts have been deleted because the NPC Constitution and Law Committee considered that the time was not ripe for incorporating them.
The law contains some oddities, such as using two terms for judges, both “审判员” (shenpanyuan) (used four times) and “法官” (faguan)(used 38 times). None of the official commentary has explained the reason for the mixed terminology. My own guess is that it is linked to the use of “审判员” in the Constitution, but anyone with more insights into this is welcome to provide clarity.
The People’s Courts Law does not stand on its own. It is connected with other legislation, such as the Judges’ Law (amendments under consideration, with the drafting led by the SPC (this 2017 article criticizes some of the disconnects between the two) .the three procedure laws, the Civil Servants Law, as well as with Communist Party (Party) regulations. As the courts are led by the Party, its regulations also affect how the amended People’s Courts Law will operate when it becomes effective on 1 January 2019.
Some of the principles newly incorporated into the law reflect the reorientation of the Chinese courts over the past 40 years towards more civil disputes and an increasing number of administrative disputes, while others represent long-term goals.
Article 2 has relegated some of the dated language from what was previously Article 3 to the dust heap of history–references to the “system of the dictatorship of the proletariat,” “socialist property,” and the “smooth progress of the socialist revolution”). Those have been replaced by language such as “ensuring the innocent are not prosecuted,” “protecting the lawful rights and interests of individuals and organizations,” preserving national security and social order, social fairness and justice, and the uniformity, dignity, and authority of the state’s legal system.
The principle of “ensuring the innocent are not prosecuted” makes its first appearance in the People’s Courts Law. I recommend this new article by a member of the Beijing Procuratorate, (in part) criticizing the poisonous effect of the “declared innocent” performance indicators of procurators on Chinese criminal justice.
On protecting the “lawful interests of individuals and organizations,” rapidly changing judicial policy and inconsistencies between criminal and civil law may mean that what is recognized as valid under civil law may be considered a bribe under criminal law. Additionally, although the People’s Courts 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 6, on judicial fairness, contains language on respecting and protecting human rights. Foreigners may think it is directed at them, but it is more likely aimed at Chinese citizens.
Article 7 calls for the courts to carry out judicial openness, except as otherwise provided by law. It is generally recognized that the courts are much more transparent than before, although specialist analysis in and out of China points out that there remains much to be done.
Article 8 incorporates judicial responsibility systems into the law (a prominent feature of the recent judicial reforms), described by two judges as the “sword of Damocles hanging over judges” (( 法官办案责任追究是时刻悬挂在法官们头上的“达摩克利斯之剑”) and a topic regarding which more dispassionate analysis is making its way into print.
Article 11 has important language about the right of the masses (i.e. ordinary people, that term is alive and well) to know of (知情), participate in (参与·), and supervise the courts (according to law). However, the devil is in the details, as procedures for exercising these rights remain limited and sometimes lacking.
Organization (set up and authority) of the courts
Article 15 mentions some of the specialized 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.
- Financial courts, see the SPC’s regulations on the Shanghai financial court.
- The military courts still lack their own legislation (an earlier discussion of this issue is found here).
Article 14 relates to the special Xinjiang Construction & Production Corps (Bingtuan) courts (not a specialized court under Chinese law, rather a court with its own special jurisdiction). Those interested can look to its NPC Standing Committee legislation, SPC more detailed regulations, and Professor Pittman Potter’s research on these courts.
Article 16 incorporates the new China International Commercial Court’s first instance cases.
Article 18 incorporates the guiding case system into the law.
Article 19 crystallizes the SPC’s circuit courts (tribunals) into law (SPC regulations on the jurisdiction of those courts found here).
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.) Article 27 also mentions establishing (or not) comprehensive divisions (the administrative departments of courts, that according to a recent academic article can constitute close to half the headcount in a court and that some court leaders value more highly than operational divisions (the divisions hearing cases).
This section of the law incorporates the current judicial reforms in several ways, including:
- In Article 30, 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 31 that dissenting opinions are to be recorded and that members of the collegial panel (or sole judge) are the ones to sign their judgments and the court is to issue it;
- Article 34 gives space for eliminating the role of people’s assessors to determine issues of law, linked to Article 22 of the People’s Assessors Law;
- Articles 36-39 includes new provisions on judicial/adjudication committees. It consolidates current reforms by crystalizing specialist judicial committees (civil/criminal). An important reform is requiring the views of the judicial committee to be disclosed in the judgment (the view is binding on the collegial panel that has submitted the case. These articles also include related stipulations such as quorum requirements and making judicial committee members responsible for their views and votes. (See previous scholarship on this important institution).
- Article 37 incorporates into law previous SPC regulations on judicial interpretations, specifying that they must be approved by the full (plenary) SPC judicial committee while guiding cases can be approved by a specialized committee of the SPC judicial committee.
This section of the law uses the terminology :”审判员” (shenpanyuan) and “法官” (faguan). It also 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;
Article 47 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. Under the Chinese court system, an effective court president requires both sets of skills.
It appears that the reform of having judges below the provincial level appointed by the provincial level is not yet in place,
Safeguards for the courts’ exercise of authority
This section of the law links with the Judges Law and the People’s Police Law (in relation to judicial police).
Article 52 gives courts the right to refuse to engage in activities that violate their legally prescribed duties (will this end the phenomenon of judges sweeping streets?);
Article 53 relates to reforms relating to enforcement of judgments (and the social credit system);
Article 55 relates to judicial (and judicial personnel training, both theoretical/(ideological) and professional)–some earlier blogposts have shed light on this topic.
Article 56 indicates that headcount for court personnel is subject to special regulation（人民法院人员编制实行专项管理, distinct from other civil servants.
Article 58 incorporates into the law President Zhou Qiang’s focus on the informatization (including the use of the internet and big data) of the Chinese courts.
The drafting process (the explanation and other articles have the details) reflects the drafting of much Chinese legislation (further insights about the process from Jamie Horsley here). The SPC Party Group designated personnel to research specific issues and engage with the drafters. The drafting involved several years of soft consultation by the drafters of relevant Party and government authorities, plus limited 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.