The Supreme People’s Court’s 4th Five Year Reform Plan has finally been released to the public (linked here). An English translation will be forthcoming here. Some of the issues highlighted have been discussed in earlier blogposts (as linked) and it builds on the principles released in July, 2014 and in the 4th Plenum Decision. It is critical to the development of the Chinese legal system and has its international implications as well. Some of the highlights:
- Basic principles (Party leadership is a given): independence of judicial power (审判权的独立性); neutrality (中立性), procedurality 程序性)， finality(终局性) (all distinguished from “Western style” judicial independence).
Among the specific measures are:
- Specific deadlines for reforms or structures for reforms to be put in place (some by end 2015, others by end 2016, 2017, 2018);
- Greater transparency in a broad range of areas, ranging from the parole of prisoners, assignment of judges, to the handling of property seized or confiscated by the courts;
- Measures to cut back on local protectionism, such as cross jurisdictional and circuit courts, focusing in particular on major administrative cases, environmental cases, bankruptcy cases, food safety cases and others, by changing jurisdictional provisions in administrative cases, environmental cases, and others);
- Details on what the Court means about “hearing centered procedure,” and imposes a goal of end 2016 to establish a hearing centered system, as having evidence presented and reviewed at the hearing, both parties being given a chance to be heard, requiring witnesses and experts appear at hearings; assumption of innocence, exclusion of illegally obtained evidence (and establish systems for determining and excluding such evidence), all of which involves a greater role for lawyers;
- In the area of criminal justice, provides better protection to defendants and their counsel, such as prohibiting criminal defendants from being forced to wear prison clothing, shackles, etc., idea that the prosecution and defense have equal status in the criminal process, better judicial review of individuals whose freedom is restricted;
- In civil cases, requiring evidence to be reviewed at trial and major disputed evidence must be highlighted in the judgment or ruling and whether the court is relying upon it;
- Improving the status of lawyers in both criminal and civil litigation;
- Reforming jurisdiction in environmental cases;
- Improving jurisdictional provisions in public interest cases (which at this time means environmental and consumer cases);
- Changing the docketing process from a substantive review to a registration procedure (which in the past has meant that “inconvenient” cases were not accepted);
- Reforming internal court procedures and roles, particularly that of the court president, members of the judicial committee, and heads of division, requiring documentation of communications with the judge or judges handling the cases, as well as focusing the judicial committee on legal questions (external pressure on these court leaders has been a significant factor in the miscarriages of justice now being revealed);
- Distinguishes the functions of courts at first and second instance (as well as re-trial and judicial supervision) stages;
- Changes the current performance indicator system, and gets rid of league tables for courts;
- In appeal cases, the court should set out the issues in the case at first instance;
- Changes the relationship between the higher and lower courts so that they operate independently;
- Prevents judicial corruption in a variety of ways, such as improving the judicial auctioning process, confiscation of property, and much more transparency;
- Calls for establishing a system of integrating Party disciplinary systems (in anti-corruption cases) with court punishment systems;
- Highlights providing greater openness to the press and others to attend court hearings;
- Calls for establishing a more professional personnel system for judges and a transitional system from the current one.
- a judicial selection system;
- More details on having local judges appointed at the provincial level;
- Setting up a system for preventing interference in court cases by requiring notes, etc. from leaders to be retained in the file and made available to parties and their counsel;
- Improving the military courts.
In the spirit of greater openness, the document states that reforms by lower courts are to be reported to the Court before being launched and major reforms need to be reported to the Party central authorities before being launched [apparently to ensure Party leadership to prevent the political authorities from being unpleasantly surprised].
The changes relating to basic court institutions will affect all types of cases, whether they are environmental, intellectual property, or foreign-related ones.
The drafting of this document required countless hours of work and negotiations. The real work is ahead, in implementing its principles, and in particular changing patterns of behavior as well as institutional and political culture formed over several decades.