Supreme People’s Court gears up for 19th Party Congress

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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.

 

 

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China’s draft court law

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Screenshot of trial in the Haidian district court

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:

Drafting process

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.

General Provisions

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:

Article 14 incorporates the guiding case system into the draft.

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.)

Trial Organization

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 prior blogposts).

Court Personnel

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 earlier blogposts 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.

Etc.

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.

China’s Evolving Case Law System In Practice

1200px-Tsinghua_University_Logo.svgI recently published an article in the Tsinghua China Law Review on Chinese case law in practice, building on several blogposts I had previously written and articles by fellow bloggers Jeremy Daum and Mark Cohen.  Many thanks are due to the persons who shared their experience and observations with me. A special thank you is due to the persons who provided detailed comments on earlier drafts.

Chinese courts & “foreign beneficial experience”

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US 7th Circuit Judge Posner speaking by videolink at National Judicial College (NJC) in 2016

Supreme People’s Court (SPC) President Zhou Qiang has been widely quoted for saying in January of this year that Chinese courts should strengthen ideological work and show the sword to mistaken Western ideas of “constitutional democracy”, “separation of powers” and “judicial independence.” What is not widely known outside China is that the relationship between the Chinese judiciary and some of the major international judiciaries (I’ll use the term “Western”) is more nuanced than it appears.  Close observation reveals the following:

  • high-level summits between major foreign and Chinese judiciaries;
  • senior Western judges speaking to or providing training to senior Chinese judges;
  • pilot projects in the Chinese courts involving foreign judiciaries;
  • SPC journals and media outlets publishing the translation of cases from and reports of major Western judiciaries; and
  • SPC judges reviewing legislation, institutions, and concepts from other judiciaries in judicial reform.

The official position on borrowing/referring to foreign legal models is set out in the 4th Plenum Decision (as I wrote earlier):

Draw from the quintessence of Chinese legal culture, learn from beneficial experiences in rule of law abroad, but we can absolutely not indiscriminately copy foreign rule of law concepts and models.

President Xi Jinping further elaborated this view on his visit to China University of Political Science and Law on May 3:

China shall actively absorb and refer to successful legal practices worldwide, but they must be filtered, they must be selectively absorbed and transformed, they may not be swallowed whole and copied (对世界上的优秀法治文明成果,要积极吸收借鉴,也要加以甄别,有选择地吸收和转化,不能囫囵吞枣、照搬照抄).

[The Xinhua report on Xi’s visit in English–“China should take successful legal practices worldwide as reference, but not simply copy them” omits the detail found in the Chinese reports.

Some examples of the way  the SPC considers the “beneficial legal experiences in the rule of law abroad”:

  1. High level summits (some of which were agreed to on a presidential/head of state level) on commercial legal issues, such as the August, 2016 U.S.-China (or China-U.S.) Judicial Summit
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August, 2016 US-China Judicial Dialogue, then Principal Deputy Associate Attorney General William Baer in foreground

“Our three talented and experienced U.S. judges discussed with senior Chinese judges and other experts topics relevant to commercial cases, ranging from case management to evidence, expert witnesses, amicus briefs, the use of precedents and China’s system of “guiding cases.” Speakers from both sides gave presentations that explored complex questions on technical areas of law. The conversations, during the formal meetings and tea breaks, were lively, candid, direct and constructive, highlighting both the similarities in and important differences between the U.S. and Chinese legal and judicial systems. I told our Chinese hosts that the views our judges expressed would be entirely their own, reflecting our separation of powers and the independence of our judiciary. Our judges displayed that independence as they weighed in on a range of issues, such as the role of precedents in interpreting statutes and the challenge of balancing public access to information while safeguarding privacy and protecting trade secrets.

Several of the Chinese participants discussed pending cases in U.S. courts involving Chinese defendants. I [William Baer] believe it was useful for us to air our differences and for our experts to exchange views on technical and sensitive areas of law. At the meeting, it was clear that although we come from different backgrounds and will not always agree, we all recognize the importance of legal reasoning and that increased transparency is a way of earning the public’s trust in the fairness and objectivity of the judicial system.”(from the DOJ website).

2.  Training of Chinese judges by foreign judges

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Dr. Matthias Keller, presiding judge, Aachen administrative court, teaching at NJC, March, 2017

A number of foreign judiciaries have in place long-term training programs with the Chinese judiciary, with the German judiciary among the pioneers.  The National Judicial College (NJC) (affiliated with the SPC) has a long-term program in place with the Germany judiciary, involving the German Judicial Academy, the German Federal Ministry of Justice & Consumer Protection, GIZ (the German international cooperation organization) and other parties, which teaches subsumption and related techniques of applying laws to facts (further explained here).  The NJC has published a set of textbooks that apply the subsumption method to Chinese law.

It is likely that close to 10,000 Chinese judges have been trained under the German program. Common sense indicates that the NJC has continued with the program because it is useful to Chinese judges.

A recent example of  the German training program is illustrated by the photo above, showing Dr. Matthias Keller, presiding judge of the Aachen administrative court giving a training course on the methodology of the application of law in administrative law to 150 Chinese administrative judges, mostly from intermediate and higher people’s courts.

3. Pilot projects in the Chinese courts involving foreign judiciaries

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Australian judges have worked with the Australian Human Rights Commission on a ‘Sino-Australia Anti-Domestic Violence Multi-Agency Putian Pilot Program’ in Putian, Fujian Province, involving judges from the SPC, Fujian Higher People’s Court, and Putian Intermediate Court.

4.  Publishing the translation of cases and reports from foreign judiciaries.

Some examples in recent months include:

  •  excerpts from Supreme Court decision Padilla v. Kentucky (published 7 February 2017), for those unfamiliar, it relates to plea bargaining and effective counsel);
  • U.S. Chief Justice Robert’s 2016 year end report on the federal judiciary;
  • U.S. federal judiciary’s strategic plan, for their takeaways for a Chinese audience;
  • Summary of a July, 2016 report on cameras in the federal courts;
  • Summary of the UK’s 2015 Civil Justice Council’s Online Dispute Resolution Advisory Group’s report on Online Dispute Resolution for Low Value Civil Claims.

5. Considering foreign legal concepts in judicial reform

Foreign legal concepts are considered by the SPC in a broad range of areas of legal reform, most of them unknown to foreign observers.  Several of the more well known examples include: plea bargaining  (see this article by an SPC judge (a comparison with the US “model” is included in Jeremy Daum’s  analysis of China’s expedited criminal procedure reform).  Last year’s policy document on diversified dispute resolution (previous blogpost here) specifically mentions considering concepts from abroad,On the ongoing amendments to the Judges’ Law (the draft has not yet been released), SPC Vice President Shen Deyong said in late April, “we need to learn from and refer to the successful practices of the management system of the judicial team by jurisdictions abroad, but they must be selectively filtered for Chinese use (要学习借鉴域外法官队伍管理的制度成果,甄别吸收,为我所用)。

Comment

A careful review of official statements, publications, and actions by the SPC and its affiliated institutions, as well as research by individual SPC judges shows an intense interest in how the rest of the world deals with some of the challenges facing the Chinese judiciary coupled with a recognition that any possible foreign model or provision will need to fit the political, cultural, economic, and institutional reality of China, and that certain poisonous ideas must not be transplanted.  [Those particularly interested could pore through two publications of the SPC judicial reform office (Guide to the Opinions on Comprehensively Deepening Reforms of People’s Courts and the Guide to the Opinions on Judicial Accountability System of People’s Courts, in which the authors discuss relevant provisions in principal jurisdictions abroad.]

Those who either are most concerned about diluting the Chinese essence of the SPC (or jealous/emotionally bruised) seem to have saved their most poisonous criticism for off-line comments, as I am unable to locate a written version of the nasty comments that a senior Chinese academic shared with me about the over-Westernization of judicial reform or other nasty comments said to have been made about research by certain SPC judges into foreign legal systems.  It is hard to know whether the persons involved are motivated by jealousy or a real belief that these measures described above will have a negative effect on the development of the Chinese judiciary.  It seems safe to say that the concerns raised in the 19th century on the dilution of the essence of Chinese culture when borrowing from the West seem to be alive and well in the 21st century.

 

Supreme People’s Court to require prior case search

Screen Shot 2016-07-30 at 12.13.38 PMIn August, 2016, I wrote about how non-guiding Chinese cases are guiding the development of Chinese law.  I described what I saw as a prevalent practice in the Chinese judiciary that judges search a particular issue to see how other courts have decided a particular issue or the elements to which they have looked when deciding a particular issue. In that blogpost, I questioned whether the Supreme People’s Court (SPC) had noticed this practice.  Under a recent SPC policy document that will become effective on 1 May, this prevalent practice will become a required practice. The SPC’s Opinions on Putting a Judicial Responsibility System in Place and Improving Mechanisms for Trial Oversight and Management (Provisional) contains the following phrase:

6. All levels of people’s courts shall give full play to the professional judges’ conferences and adjudication committee’s roles in summarizing trial experience unifying judgment standards; and on the foundation of improving working mechanisms such as consulting similar cases and judgment guidance; a mechanism is to be established requiring the search of similar cases and relevant cases, to ensure a uniform judgment standard for similar cases, and the uniform application of law.

六、各级人民法院应当充分发挥专业法官会议、审判委员会总结审判经验、统一裁判标准的作用,在完善类案参考、裁判指引等工作机制基础上,建立类案及关联案件强制检索机制,确保类案裁判标准统一、法律适用统一。

This requires judges to do what many of them have been already doing –searching the case databases for prior cases that raise the same or similar issues and other issues related to the principal one(s). This principle will be applicable to judges hearing all sorts of cases–civil, criminal, administrative, enforcement, and intellectual property. It will not be evident to the reader of a Chinese judgment or ruling that searches have been done because non-guiding cases may not be cited.

Requiring a search of prior and related cases is an important step in the evolution of the Chinese case law system.  That system (as I wrote recently), supplements and informs judicial interpretations. Judicial interpretations often take years to be finalized.  National legislation (by the National People’s Congress and its Standing Committee) is hopelessly inadequate for the needs of the court system.  Case law is needed to fill in the gaps.  Judges, who are assuming greater individual responsibility for their decisions, need case law for more specific guidance.

In her remarks in November, 2016 focused on intellectual property, Justice Tao Kaiyuan revealed the thinking of the SPC leadership:

The construction of the case guidance system [Chinese case law] is not to create a new legal source, but to…uncover the broader consensus of the industry, to further refine legal rules and to provide better law for society. It is also expected to lay the foundation for the drafting of judicial interpretations…The function of the intellectual property case guidance system is to enhance the predictability of the judiciary by establishing an intellectual property case guidance system to promote the unity of judicial standards.

 

 

 

China’s #2 Circuit Court “Nine” & criminal petitions

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#2 Circuit Court’s “Nine”

The nine presiding judges of the #2 Circuit Court are whom Chief Judge Hu Yunteng calls “The Nine.” It could be: 1) Judge Hu is a fan of the Jeffrey Toobin book on the (US) Supreme Court, which has a Chinese translation thanks to Judge He Fan; or 2)he wants others to know that he has some basic knowledge about the US Supreme Court. (For the avoidance of any doubt, this does not mean Judge Hu is looking to transport the US judicial system to China).

The role and utility of China’s circuit courts have moved into public focus with the establishment of four additional circuit courts (discussed earlier).  Some have commented that they have been established just to divert petitioners from Beijing.An article published by a European think tank commented that the circuit courts weaken the power of local judges and courts in the provinces.

But when analyzing what Chinese courts do and how they operate, moving away from grand theory and into the specifics of what they do provides (to this foreign observer and I trust Chinese ones as well) more nuanced insights. It helps to understand better what the circuit courts are doing, how Chinese courts operate, how Chinese judges think, and what practical solutions Chinese judges evolve in the context of their political, legal and social environment. What exemplifies this is a report that the #2 Circuit Court did on petitioning appeals related to criminal cases (第二巡回法庭刑事申诉来访情况分析报告). The report concerns petitions for retrial made under the Criminal Procedure Law’s trial supervision procedure.

While the full report does not seem to be easily available, Chief Judge Hu Yunteng summarized some of what appear to be the main findings of the report in a June, 2016 interview with  中国审判 (China Trial), a SPC journal and Wechat account. The audience for China Trial is primarily his brother and sister judges, so his comments were relatively frank and the legal context about which he was speaking would be taken for granted. His comments, which I am summarizing below, reflect the insights of someone who lived through the Cultural Revolution, and has worked at the intersection of legal research and judicial practice for many years. (His Chinese profile is more complete than the English one).

He said that his remarks  were drawn from his experience in hearing nearly 200 cases at the #2 Circuit Court, the majority of which were criminal petition cases (刑事申诉)(cases retried under trial supervision procedures). The cases, he said, reflect issues with criminal cases both at first instance or on appeal, as well issues all courts face coping with criminal petitions.  Moreover, he said, the #2 Circuit Court (and SPC headquarters) have more and more petitioners seeking redress, plus an ever increasing backlog of cases.  People have been petitioning for a little as 3-5 years, long as 10-18 years, or even 20-30 years, clocking over a hundred visits.  Over 700 petitioners visited the #2 Circuit Court with grievances about the decisions of the Liaoning Higher People’s Court.

Judge Hu gave his views on why are there so many of these cases and what should be done.

Why so many cases?

(Graph tracking petitioner visits to the #2 Circuit Court (not from the interview):

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Graph of group petitioner visits (persons), Feb. 2015-Aug. 2016 ©中国审判

A summary of Judge Hu’s analysis follows below, with some comments in brackets.

Reasons for these cases

“The reasons are complicated.”  He believed that the number of mistaken/unjust cases were small in number, and 90% of the petitioning cases involved cases decided properly, with 9% with some errors, but only 1% with errors serious enough for the case to be re-tried.  The reasons, he believed, lay deeper.

  1.  Defects in the criminal procedure system.  It has a two instance system, with the second instance as final; time limits on hearing criminal cases; and criminal petitioning system.  With societal change and ordinary people have greater legal consciousness and demands for justice. This criminal procedure system is incompatible with current societal demands (这些制度已经不能适应新时期的需要).  In some areas of China, there are more petitions from second instance decisions than appeals.

Most jurisdictions, whether common law or continental (including Hong Kong and Macau) have a three-instance system, and if China does not change this and have a limited third instance system, the criminal case petitioning problem will not be solved. The strict time limits mean facts are not clarified, a good job is not done at trial, and case quality is not maintained, creating errors that causing petitioning. The lack of time limits on petitioning is a major reason that it exists. [Note: Judge Hu saying this does not mean the Chinese government will change its system immediately or in the near future. His voice is a powerful and persuasive voice identifying this as a core reason for so many petitions, but this must be understood within the context that he said it.  This is his analysis, not a signal that the Chinese government will change its criminal justice system immediately.  

Implementing a [limited] three-instance system is a major criminal justice policy change, with social stability, financial and personnel implications (as seen from the government’s perspective). Proposals to make such a fundamental change to criminal procedure law would come after a great deal of analysis and consultation with the authorities involved. Judge Hu does not elaborate on what he means by a limited third instance system, but research shows this concept is being explored by a variety of thinkers and scholarship on the topic dates back over 10 years. Those following Chinese criminal justice system reforms should be aware that the renown Professor Chen Guangzhong revealed (in an interview in June, 2016) that amendments to the Criminal Procedure Law are under consideration, although the details are not yet known. ]

2. Problems in judicial practice.  There aren’t enough staff to hear the cases carefully, and cases are no longer limited to traditional crimes, with cases more complicated and evidence harder to assemble.  More sophisticated defendants no longer passively accept the sloppy work being done by people handling these cases (办案人员)(referring to police/prosecutors/judges, as appropriate).  It causes errors in: collection of evidence; forensics; determinations; incomplete compliance with legal procedures; inappropriate legal explanations; cases handled inappropriately. Moreover,the cases reflect problems in the way a significant proportion of those handling cases think about law: failure to correctly understand basic legal relationships such as fighting crime and protecting defendant’s rights; the relationship between public security, procuratorate, and courts; the relationship between handling criminal cases and resolving social conflicts, etc. All these things cause an increase in the number of petitioners. [Again, this his analysis reflecting his many years of experience and observation.]

3.  Changes in the legal and social environment. These are another set of reasons for so many criminal petitioning cases.Judge Hu said, actually, the increase in criminal petitioning isn’t an entirely bad phenomenon. It is part of the process in improving the rule of law. The state respects human rights more and people are more aware of their rights and are increasingly daring to defend their rights.Moreover, societal public opinion has encouraged people after they have read in the media that mistaken/unjust cases have been corrected. Moreover, criminal punishment for the same offense has varied greatly, depending on whether it was during the “Strike Hard” or other campaigns, so when people look from today’s perspective at these cases, they feel it is unfair.

What to do about it?

Judges dealing with these cases need legal knowledge and political wisdom.

  1. Respect petitioners.  Petitioning is a basic human right. Judges should not think that petitioners are making trouble from nothing. In the #2 Circuit Court Judge Hu requires judges receiving petitioners to be patient in explaining the law.  So treating petitioners’ litigation rights seriously is a way to deal with them
  2. According to law, petitions should be submitted to the court that heard the case originally. The case filing or trial supervision departments of these courts should seriously review the cases, if there is an error, retry the case on the court’s own initiative.  If the case lacks errors, the facts and law should be explained to the petitioning party. This is assuming responsibility to the facts, law, parties, and people.
  3. The higher courts need to do a better job of supervising the lower courts. Courts need to balance respect for effective judgments with a party’s petitioning rights. Courts should determine whether the issue is procedural or substantive. Cases can’t be rushed–some can be dealt with quickly and others not. Higher courts should take on more difficult and complicated cases themselves.
  4. Petitioning cases should be heard by three judge collegial panels, by reviewing the file and questioning persons if needed, questioning the party and if he (she) is in custody, summoning him for questioning, hearing the views of the party’s lawyer if one has been appointed and making contact with the party and his lawyer an important way to deal with these cases. Moreover, the lower courts should appoint more qualified and experienced people to handle criminal petitions, as it is often not currently the case.
  5. As some of these cases relate to a specific time period, sometimes it is necessary to work with the higher or lower courts, or seek support from the government or Party to deal the matter.  For example, some cases were correctly decided at the time, but the decision is no longer appropriate under current circumstances. Retrial is not possible but coordination is possible through the implementing authorities [presumably the jail] or procuratorate.

Connection with judicial reform

Presumably Judge Hu’s report and analysis are part of a project connected with larger judicial reform issues. See Article 36 of the 4th Five Year Court Reform Plan:

36. Reform the system for petitioning involving litigation.Improve mechanisms for the separation of petitioning and litigation work, clarifying the standards, scope and procedures for separating litigation and petitioning. Create finality mechanisms for petitioning involving litigation, standardizing the sequence for petitioning involving litigation in accordance with law. Establish mechanisms for steering and receiving petitioners at their source, and innovation networks for handling petitioning. Promote the establishment of a system for lawyer representation of in complaint appeals cases. Explore the establishment of mechanisms for lawyers to participate as third-parties, increasing the diversity of joined forces for resolving conflicts in petitioning related to litigation.

Effect of these comments

Presumably Judge Hu has sought to implement some of his own recommendations, such as requiring his own judges to do a better job receiving petitioners, and expecting the lower courts to do the same.  It is likely that Judge Hu has made his views known in meetings with judges from Liaoning, Jilin, and Heilongjiang. So this appears to be one piece of evidence that the circuit courts are having an effect on the quality of justice delivered.

Since petitioners “vote with their feet,” it appears that one indicator would be a downturn in the number of petitioners with grievances about criminal cases in the Liaoning Courts.  How his report and recommendations will be considered nationwide remains to be seen.  As a member of the SPC’s judicial committee, his full report and more detailed recommendations are likely to have an impact on the thinking of SPC colleagues.  As to the larger issues Judge Hu has raised, we are unlikely to see any immediate or short term impact because of the complex politics linked to those reforms.

Why are Chinese judges resigning?

Much has been written on why Chinese judges are resigning (but not enough about Chinese prosecutors–to be the subject of a later blogpost), but this blogpost (written on the road) adds some more detail and analysis. Comments (and criticism) are welcomed.

In May (2016), Chen Haiguang, the head of the judicial management department of the Supreme People’s Court (SPC) revealed that over 1000 judges had left, which he described as about 1% of the judiciary. The number appears to be an underestimate.  The legal Wechatosphere often mentions that a Wechat chat group of former Beijing-based (including the SPC) judges has reached its maximum of 500 members.

More data and analysis comes from two sources: a survey conducted in the fall of 2015 and published by Wusong (a big thank you to another “authoritative person” for bringing this to my attention) and a recent article by one of the more popular Wechat public accounts, Empire Lawyers ( 法客帝国).

Respondees to survey

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Six hundred former judges responded to the survey, conducted through social media, of which 72% had left within the past year, while almost 19% had left within the past 2-3 years.

Who is leaving

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Judges resigning, by sex (82.2% men, 19.67% women

It is mostly men leaving the judiciary, out of proportion  with the ratio of men:women in the judiciary (2:1). (This confirms what I have been saying when I have spoken on this issue). The survey gives the rationale that men are more interested in a challenging career than women, and are able to deal with a more pressured life.

Judges are resigning in their 30’s, for the most part (see below), and my own analysis is that the reason women are staying in the judiciary is that (married) women at that age also have responsibilities to children and elderly parents. Women are prepared to deal with the stresses of working in the judiciary because the work is more “stable,” and does not involve marketing work after business hours.

Age and education

Over half (55%) of the judges resigning are in their 30’s. Most (70%) have been in the judiciary for at least 6 years, with practically all (91%) with at least 4 years of experience, over 99% with an undergraduate degree and 37% with a master’s degree.

Type of court and area of work

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Most judges who have resigned recently  are from the basic level (78%) and intermediate level courts (18%).

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Many (almost 80%) of the judges who had resigned were in the civil/commercial divisions, with division chiefs and deputy division chiefs accounting for 14% and 19% respectively.

Reasons for leaving:

  • benefits insufficient (66% selected this as primary reason);
  • too much pressure and too much work (60%);
  • not enough opportunity for promotion (34%);
  • professional risk and lack of professional respect (31%).

Those that have resigned are generally pessimistic about judicial reform (47%) or can’t say for certain whether it will be successful (32%). Their “judges’ dream” is to be able to try cases independently, without reporting their case up to the leadership, worrying about parties to the case petitioning because they are unhappy with the outcome, etc.

Another analyst (the editor of the Wechat account Empire Lawyers) gave three reasons for the wave of judges submitting their resignations.

  • Wechat;
  • Judicial reform;
  • Other factors (especially money).

Why Wechat?  Because it has given them a new universe of social connections outside the judiciary. It also gives them easy access to information about the life of former judges similar to themselves. Moreover, through Wechat they can create a circle of friends and connections who can provide moral support when they have made the decision to resign. According to the editor, Wechat is often a vehicle for judges preparing to resign. Some judges establish their own Wechat public accounts while still in the judiciary, publishing articles that bring much more attention from legal professionals to their expertise than their judgments ever do.

The increased stresses of judicial reform are another set of factors–the lifetime responsibility system,  case registration system, and particularly, the bright line quota on the number of judges (no more than 39%) means that promotions will come more slowly than previously and others will not even be eligible to participate in the examinations for qualifying as a judge.

Other factors?  The editor cited money, particularly judges in major cities with high costs of living.  The fact remains that middle-class life in China’s major cities, particularly for couples with a child, is expensive and judicial salaries, tied to civil service rank, are inadequate.   As the editor mentioned, some judges supplement their wages with (legal) inome from writing or lecturing. (It seems likely in the current atmosphere, fewer judges are willing to risk soliciting illegal income.)

There is also the rigidity of the Party/state cadre management system. While law firm partner classmates are posting photos of themselves at Yosemite or in the Grand Tetons on Wechat, judges must obtain permission to leave the country

Finally, this couplet is popular on legal oriented Wechat:

网上流行一个段子:

Q: Do you regret resigning from the court?

问:从法院辞职,你后悔吗?

A: Regret.

答:后悔。

Q: Why do you regret it?

问:为什么后悔?

A: I regret that I left too late.

答:后悔出来晚了。