Category Archives: Court Reform

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。

Supreme People’s Court starring on Court TV

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Nestle v. TRAB hearing in SPC

From 1 July 2016, the Supreme People’s Court (SPC) is (in principle) broadcasting live all its public trials (public hearings) (better understood by those from a common law jurisdiction as an appellate court hearings) on its own Court TV website.

SPC broadcasts also include hearings by the #2 Circuit Court (in Shenyang) and #1 Circuit Court in Shenzhen.   The technical platform is provided through Sina.com and a private company.  The SPC describes its online broadcasts as its fourth transparency platform.

Some of the cases that the SPC considers do not have public hearing procedures, such as its capital punishment review and judicial review of decisions concerning foreign and foreign-related arbitral awards.

As of 14 July, there almost 30 cases for which the videos are available, many of which involve lending, either bank or private lending and real estate-related disputes, and are primarily civil cases.  Some of the cases include:

It provides a window into the world of Chinese commercial disputes.

Rationale

SPC Vice President Jing Hanchao, who was apparently tasked with implementing this development, is quoted by the official press as saying:

the live webcasts will be significant progress for judicial openness. With full transparency of trials online, the public can better play their supervisory role.

Live broadcasts will also drive judges to strengthen their capabilities, thus improving the judicial system…

..live webcasts will create a large amount of data that will help jurists study China’s legal system.

Having their advocacy broadcast on line may also drive lawyers to strengthen their advocacy skills as well.

For persons interested in the Chinese judiciary, it provides easy access to SPC court hearings, without the hassle of special permission, letters of introduction, and trips to Beijing.

Lawyers in Beijing do not seem to be aware of this development, at least judging by the lawyer acting for TRAB, who arrived in the courtroom after the hearing began.

Some outstanding questions

This decision by the SPC raises a number of questions.

  • Were the parties asked whether they consented to having their case broadcast on line? It is not apparent from the recordings that I have seen.
  • Individual parties read out their personal identification numbers on the recordings.  Could this be an invasion of their privacy?
  • The recently promulgated People’s Court Courtroom Rules (translation here (thank you Chinalawtranslate.com) and original here) lacks any type of balancing test:
  • Article 11: In any of the following situations, for trial activities that are conducted openly in accordance with law, the people’s courts may use television, the internet or other public media to broadcast or record images, audio or videos.
  • The 2010 regulations on the broadcast of cases (关于人民法院直播录播庭审活动的规定)  lack specific procedures enabling individuals to protect their rights. Do judicial reforms contemplate more specific procedures enabling litigants (or defendants) to refuse to have their case broadcast online?

 

Note:

Mac users may find that the platform works better through the Safari browser than Google Chrome.

What’s new in the Supreme People’s Court’s diversified dispute resolution policy?

Opening of court-annexed mediation center of Qianhai court
Opening of court-annexed mediation center of Qianhai court

On 29 June 2016, the Supreme People’s Court (SPC) issued a policy document on diversified dispute resolution (Opinion on the people’s courts more deeply reforming the diversified dispute resolution mechanism) (Diversified Dispute Resolution Opinion)(关于人民法院进一步深化多元化纠纷解决机制改革的意见). The document uses the term “diversified dispute resolution” (consistent with Chinese practice) rather than “alternative dispute resolution” (more often used outside of China) to reflect the central place of mediation, arbitration, and conciliation in Chinese dispute resolution. (This post has been superseded by the 31 July version.)

It was accompanied by regulations on court-appointed mediators.  For those interested in the way the SPC works, it is another example of an SPC policy document in the form of an “opinion” (discussed here) accompanied by regulations  (a type of judicial interpretation, discussed here).

The policy document sets out in a consolidated form the SPC’s latest policies on mediation, arbitration, and its relationship with litigation.  It provides a framework for further reforms. It is intended to inform the lower courts as well as related Party/government agencies of forthcoming reforms.  It signals to the central leadership that the SPC is on course to achieve one of the reform targets set out in the 4th Court Reform Plan. The current head of the SPC’s judicial reform office, Judge Hu Shihao, spoke at the press conference announcing the Diversified Dispute Resolution Opinion, indicating that the office took the lead in drafting it.

A summary follows below, highlighting, based on a quick reading, focusing on its:

  • objectives and origin;
  • signals and practical implications.

A very useful academic article on diversified dispute resolution, with survey data and more on the political background, can be found (behind a paywall) here. (To the many academics and practitioners who have written on this topic, please feel free to use the comment function or email to expand/contradict, or correct this).

Objectives & origin

The SPC issued the Diversified Dispute Resolution Opinion as a way to implement one of the targets in the 4th Judicial Reform Plan:

46. Complete diversified dispute resolutions mechanisms.Continue to promote mediation, arbitration, administrative rulings, administrative reconsideration or other dispute settlement mechanisms with an organic link to litigation, mutually coordinate and guide parties to choose an appropriate dispute resolution. Promote the establishment of dispute mechanisms that are industry-specific and specialized in the areas of land requisition and property condemnation, environmental protection, labor protection, health care, traffic accidents, property management, insurance and other areas of dispute, dispute resolution professional organizations, promote the improvement of the arbitration systems and administrative ruling systems. Establish an operating system that links people’s mediation, administrative mediation, industry mediation, commercial mediation, and judicial mediation. Promote the legislative process of a diversified dispute settlement mechanism, establish a system for a systematic and scientific diversified dispute settlement system.

The Diversified Dispute Resolution Opinion is a product of the 4th Plenum decision. Its underlying approach was approved by Xi Jinping and other top leaders.  Judge Hu, who mentioned  at the press conference that at a 2015 meeting, the Leading Small Group on Comprehensive Reform approved a framework policy document (not publicly available) on improving the diversified resolution of disputes (关于完善矛盾纠纷多元化解机制的意见) and the General Offices of the State Council and Central Committee followed with an implementing document.  The principal reason that this topic merited top leadership time and involvement is because of its direct links to maintaining social stability and reducing social disputes.

Similar to other SPC policy documents discussed on this blog, comments on the draft were sought from the central authorities, lower courts, relevant State Council ministries and commissions, industry association, arbitration organizations, scholars, and the Legislative Affairs Commission of the National People’s Congress Standing Committee. The Diversified Dispute Resolution Opinion was approved by the SPC judicial committee.

Signals

The objective of the document is to promote a more sophisticated, efficient, and effective approach to dispute resolution that will reduce social tensions.  Part of the objective is to reduce the number of cases filed, heard, and tried by courts. For commercial disputes, it is intended to push disputes to institutions that can more competently, efficiently and timely mediate cases and better mediate cases within the courts by involving court-annexed mediators, before or after the person or entity files suit.  The implications of this document for the reform of labor and rural land contract dispute resolution remain to be seen.

The Diversified Dispute Resolution Opinion requires better linkages between other institutions and the courts, so, for example, that mediation agreements can be enforced without a re-hearing in the courts.  It stresses Party leadership while emphasizing that forces in society can do a better job of dispute resolution than official ones.  The document also cautions against borrowing institutions wholesale from abroad.

Practical implications to expect in the medium to long term

  • For the foreign investment community (and their lawyers), a signal that the SPC is working on a judicial interpretation concerning the judicial review of foreign and foreign-related arbitral awards (“standardize judicial review procedures for foreign-related and foreign commercial arbitration awards”) (规范涉外和外国商事仲裁裁决司法审查程序).  As this blog has reported earlier, this was signaled at the November 2014 National Conference on Foreign-related Commercial and Maritime Adjudication and last year’s One Belt One Road Opinion.  It is unclear whether the future interpretation will change the prior reporting procedure, for example, to give parties a chance to submit arguments orally or in writing, or whether it is intended to consolidate the principles the SPC sets out in its responses to lower courts (released to the public in one of the SPC’s publications), summarized in comprehensive overviews of Chinese arbitration law, such as this one.
  • Changes to labor dispute resolution, as highlighted by the 2015 Central Committee/State Council document mentioned earlier. This is important in light of the uncertain economy and increasing number of workers being made redundant. in recent years, judges in different areas of China have published devastating criticism of the current labor arbitration system and labor dispute resolution generally.  The judges pointed out the current labor arbitration system is not independent of the government, fails to protect labor interests equally, and .  The judges also criticize the brief statute of limitations in labor disputes and lack of a specialized labor tribunal.  It appears from reports that Zhejiang Province is taking the lead in providing greater choices and professionalism in labor dispute resolution, but it unclear how far those reforms go.
  • Further attention to rural land arbitration.The Diversified Dispute Resolution Opinion mentions better linkages between the courts and rural land arbitration. This area is important, as the government seeks to encourage farmers to expand their landholdings and mortgage their land, but the merits of the system are not the SPC’s issue.  A 2014 report highlights the lack of independence of these arbitration commissions, lack of arbitrators, and absence of qualified arbitrators. A 2016 paper by several China Banking Regulatory Commission staff on the mortgage of rural land notes that those arbitration commissions need improving.
  • Local courts to establish “court-annexed mediation centers” to encourage and give parties “one stop shopping” for choices in mediating some of the cases most often seen in the courts–family, conflicts between neighbors, consumer, small claims, consumer, traffic accident, medical disputes;
  • “Improving” criminal conciliation and mediation procedures.  Reforms in this area bear close monitoring because, as discussed in earlier blogposts, criminal conciliation and mediation procedures are often used to avoid embarrassing more powerful institutions (such as schools) and people especially in cases involving claims of rape, sexual assault, and child molestation;
  • recognizing the results of and encouraging litigants to use neutral valuation organizations, for civil and commercial disputes such as medical, real estate, construction, intellectual property, and environmental protection, the results of which could be used as the basis of mediation;
  • More small claims and expedited procedures for minor civil disputes;
  • more lawyers to be appointed as court-appointed mediators;
  • Improvements to administrative dispute resolution procedures.

What does all this mean for making people “feel justice in every case”  when some persons and institutions enjoy a better quality of dispute resolution than others?

 

 

 

Family court comes to China

imgresAs highlighted in a December,2015 post on this blog, and as Supreme People’s Court (SPC) Vice President Shen Deyong announced on 11 May, family courts are coming to China, or at least 100 pilot projects for them.  Family law cases have been heard within civil divisions of local courts, but there has been dissatisfaction with the way there are being heard.  In 2015, 1,733,000 marriage law cases were heard and about 84,000 inheritance cases.

Family law issues reflect the complexities of Chinese families today:

  • Divorce in major cities often touches on the rights to real estate whether debts are debts of one spouse or of the marriage;
  • Custody and maintenance are issues, particularly when maintaining an expensive life style is involved;
  • In rural areas, bride price and marriage by local customs rather than official registry is an issue.

Justice Shen stressed that family is the basis of society (echoing Confucius). The Women’s Federation, Ministry of Civil Affairs, Ministry of Justice, and Central Political Legal Committee were involved in this initiative. This reform has been piloted on a smaller scale in Guangdong province.  District courts in Shenzhen and Zhuhai have been early stage pilots.   The SPC issued a document to support the initiative which has not yet been publicly released (Notice of the SPC concerning some courts initiating pilot reform work in family court trial methods and work systems 最高人民法院关于在部分法院开展家事审判方式和工作机制改革试点工作的通知). [Update–the document was eventually released–available here.]

This is an area in which the Chinese courts, including Supreme People’s Court is looking to jurisdictions outside mainland China (i.e., including the United Kingdom, Australia, Taiwan, Japan, and South Korea) for concepts that may be used in China.  Hong Kong law has not been mentioned as a model from which the mainland can transplant concepts, because, as this recent article published by a member of the University of Hong Kong Law Faculty details, Hong Kong family law and family law procedure is many years behind developments in Commonwealth countries, and it is an area in which Hong Kong’s executive led government has delayed introducing comprehensive legislation.  Ironically, in March, 2016, the SPC had discussions with Hong Kong’s Secretary of Justice on the issue of the recognition of judgments in the area of marriage and related issues.

Scope of the pilots:

  • matrimonial cases and related cases, including divorce, annulment, revocation of marriage;
  • custody, child support fees, property division after divorce, etc; maintenance disputes; paternity cases, including parent-child relationship to confirm or deny paternity;
  • adoptive relationship disputes;
  • cohabitation disputes, including the division of property during cohabitation, children born out of wedlock, and other dependents;
  • inheritance disputes.

The pilots will promote:

  • mediation as a way of resolving disputes;
  • personal appearance of parties in court;
  • putting the interests of the child first.

Issues with family cases that the Shenzhen judges have highlighted:

  • family law is not taken seriously as an area of law;
  • investigators are needed to support the judges;
  • lack of coordination with other authorities involved in family law issues;
  • burden of proof needs to change in family law cases, because otherwise it is difficult for the weaker party (generally the woman/elderly) to prove her case;
  • court performance indicators make it difficult to handle family law cases properly;
  • the courtroom set up must be changed to better accommodate family law disputes;
  • questions on handling family law issues that impinge on public policy/morality, such as inheritance by mistresses.

If the Confucian value of family as the basis of society is to be taken seriously the Chinese court system needs to show it by its actions. And the Chinese legal system will need to face the issue that family includes people who are gay/lesbians/transgender.

 

 

 

What China’s judicial reform white paper says about its vision for its judiciary

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Portrait of Qing dynasty inspector

Over one year has elapsed since the Supreme People’s Court (SPC) has implemented the judicial reforms set out in the February, 2015 4th five year plan for reforming the judiciary.  While thousands of words have been written in Chinese and English, some praising,  criticizing, mocking, and bemoaning the reforms, it was only in late February, 2016 that the SPC issued a comprehensive official assessment, focusing on its achievements. That official assessment takes the form of a bilingual white paper (White Paper) issued in early March (but full text released on-line only in English), plus a section of President Zhou Qiang’s work report devoted to the judicial reforms, a first for the SPC.  I surmise that it was approved by the Judicial Reform Leading Group.

This blogpost looks at the vision for the Chinese judiciary that the White Paper conveys, by looking at several sections.

 

Chinese court system and the reform process

The description of the reform process in the first section of the White Paper tells us who/what is driving the reform process, the nature of the process, the core issues, and how the judicial reform process is being monitored.

Facts highlighted:

  • During 2014-2015,13 out of 19 plenary sessions held by the Central Leading Group for Deepening Overall Reform involved judicial reform, where 27 judicial reform documents were adopted.
    • A partial list of those 27 documents is found here.
  • The Social System Reform Specialized Group (the Central Leading Group for Judicial Reform) is in charge of judicial reform;
  • The SPC has a leading group in charge of judicial reform, replicated at the provincial level, and any judicial reform plans piloted by them need to be approved by the SPC or above (the 4th Judicial Reform Five Year Plan states this).

According to this section, the four core judicial reform measures are:

  • improving the classified management of judicial personnel [treating judges differently from clerks and other support personnel and civil servants0;
  • the judicial accountability system [the lifetime responsibility system set out in regulations issued in September, 2015, but only implemented in areas piloting judicial reform, controversial among judge and academics];
  • professional protection of judicial personnel ;
  • unified management of personnel, funds and properties of local courts below the provincial level.

These four measures will be piloted throughout the country in several rounds before they are implemented nationwide.

Comments

From the description of the reforms we can see that the specific reforms discussed in the remainder of the report have been cleared by the Party leadership.  It seems reasonable to assume that each reform involved hundreds of hours of policy paper drafting by SPC staff and internal and cross-institutional discussions, and responses to comments during those discussions.

What the White Paper did not mention is that the Central Leading Group for Deepening Overall Reform and the Central Leading Group for Judicial Reform established their own inspectorate for monitoring the progress of reform,including judicial reform, (reviving a traditional institution).  It is unclear which reforms will be targeted this year for inspection. The separate inspectorate seems to indicate that these Central Leading Groups want their  own source of information on how reforms are being implemented.

 

Judicial independence (Ensuring Independent and Impartial Exercise of Judicial Power Pursuant to Law)

One of the messages conveyed in this section is that local courts do not belong to local governments but are established by the State at the local level to exercise judicial power on behalf of the State. The goal as stated in this section, is to “form an institutional environment and social atmosphere that respects [the] judiciary, supports [the] judiciary and trusts [the] judiciary.”

It  lists about a dozen measures. What is new in this section:

  • a summary of the policy thinking on judicial appointments and funding of the local courts.  On judicial appointments, judges will be selected by judicial selection committee at the provincial level in terms of professionalism, and will be appointed and removed according to common standards. This is a push in the direction of professionalism, and away from the phenomenon noted in the past few years of having chief judges who lacked a legal education.  On the funding issue, the Central Government will fully guarantee the funding of the local courts. The provincial fiscal departments manage the funds of local courts below the provincial level, the local courts will submit their budgets to the provincial fiscal departments, and  budget funds will be appropriated by the centralized payment system of the national treasury.
  • Fuller discussion of cross-administrative district courts to hear administrative cases–piloted in Beijing and Shanghai and other locations, under the umbrella of a policy document of the SPC that has not been made public. The concept is to have cases against local governments heard outside of the area in which they arose.  The SPC recent policy document on the development of the greater Beijing area has further content in that area.

This section also discusses the following reforms, previously discussed: circuit courts; cross-administrative division courts; intellectual property courts (by Mark Cohen, chinipr.com); administrative cases being centralized in one court (Shenzhen is one of the pilot project venues); maritime courts; environmental protection divisions; official interference.

Improving the way the courts function ( Improving the Functional Mechanism of Adjudicative Powers)

The fourth section of the White Paper provides useful insights into how the judiciary is intended to operate post reform.  It starts out with a statement that judicial power is a judging power in essence and emphasizes impartiality, neutrality and personal experience.”

The focus on this section is on reforms to the way Chinese courts operate. As I have written previously, they have operated in many of the same ways that other Party and government organs operate.     This section describes pilot reforms, new policies, or regulations concerning the following (among others):

  • personnel reforms described above (but do not mention the pay rise that goes along with it in at least some courts);
  • senior judges within a court (court presidents, vice presidents, division chiefs) will no longer approve judgments, except for a small number going to the judicial committee);
  • senior judges will hear cases instead of concentrating solely on administrative matters;
  • courts will establish a specialized judges council made up of judges in specialized areas (criminal, civil, etc) to provide views to judges hearing cases on the interpretation of substantive issues, on an equal basis rather than seniority;
  • the SPC has abolished irrational performance indicators and forbidden senior judges from involving themselves in cases that they have not heard;
  • the SPC has issued policy guidance on the reform of judicial committees (not yet made public).  The principles set out follow generally what was described by President Zhou Qiang earlier, but include judicial committee discussion of “major and complicated cases concerning national diplomacy, security and social stability and those required by law.”  The guidance calls for more transparency (unclear whether to be within the court or greater), better record-keeping, and less involvement by judicial committees with specific cases. As discussed in an earlier blogpost, judicial committees have often been a route for transmitting the views of local officials and have been been implicated in some of the wrongful conviction cases);

    judicial committee
    judicial committee ©SPC
  • judicial responsibility/accountability system, mentioned above;
  • regulations on the jurisdiction of different levels of courts in civil cases (described in this blogpost).

These reforms look to do a number of things that are significant within strictures of the Chinese system: distinguish judges from other Party cadres and give them better status and pay; break down or reconstitute some of the basic internal structures of the courts that have facilitated corruption, unjust cases, and discouraged talented judges; abolish performance indicators that have been poisonous for judges and litigants alike.

 The vision

The vision that the SPC  has for the Chinese judiciary and judges can be seen from the description of the reforms above.  The SPC intends to create a more professional judiciary (with a lower headcount), that is better paid, more competent, has performance indicators that look more like other jurisdictions, with an identity and operating mechanisms separate from other Party/government organs, that will be more autonomous, no longer under the thumb of local authorities, but operates within the big tent of Party policy.  To be incorporated in the judicial reforms, the implications of each measure must have been thoroughly discussed by the Party leadership and the Party leadership is using its own institutions to monitor results.  Will the judicial reforms achieve their goal of making people feel justice in every case?  For that, the jury (or is it the people’s assessors(also being reformed)?) is still out.

“Improper discussions” of Chinese judicial reform are forbidden

 

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Home of Judges

One of my favorite Wechat public accounts, the “Home of Judges” (法官之家) was closed down earlier this month.  The public account had about 100,000 followers. (Wechat public accounts  are explained here.)  While some public accounts are used as corporate marketing platforms, “Home of Judges,” along with several other public accounts have become platforms for (primarily) young judges (and lawyers) to share their views, experiences, and analyses. The Home of Judges public account published articles by many local judges, many with their concerns and thoughts about different aspects of judicial reform, with other articles describing by current or former judges explaining why they left or were thinking of leaving the judiciary.  The account holder for the public account, Li Liang, a former Guizhou Higher People’s Court judge wrote:

I had a feeling that Home of Judges would be closed down–first the News Bureau of the Supreme People’s Court contacted the news department of my court, demanding that the name of the public account be changed, but the editor did nothing, then I heard that the internal reference service of the Supreme People’s Court SPC) carried some Home of Judges articles, then recently the Beijing News Department deleted articles.

法官之家被禁封了,其实最近即有预感,先是最高法院新闻局找到我院新闻处长,要求将公号改名,小编未置可否,后来听说最高法院内参连续刊载法官之家文章,最近北京新闻处长多次联系删稿,

An anonymous article by the Sword of Heavenly Peace (长安剑) (according to some sources a pseudonym for the Central Political Legal Committee set out a seemingly more official explanation of why the account was closed down.  The name of the public account was a problem, because the account holder had left the court.   However the same name (Home of Judges) is used for the name of a hotel in Beijing, apparently the Supreme People’s Court’s guest house (see the comments to this hotel review).

Others (including some other legal bloggers) have said that it was because the Home of Judges was “improperly discussing” judicial reforms (妄议司改), a variation of “improperly discussing Central policy (妄议中央)”, a violation of the Chinese Communist Party Standards on Integrity and Self Restraint.

Stepping into the shoes  of the Supreme People’s Court leadership for a minute, it seems likely that a public account with a large number of judges criticizing the judicial reforms approved by the Party leadership would make the SPC leadership uncomfortable.   Why?  Because it would indicate that they were not doing a good job of “uniting thinking” (统一思想)–uniting the judges of the lower courts behind policies drafted by the SPC that had been approved by central Party authorities.

Comments by a fellow blogger

Following the closure of the “Home of Judges,” one of its fellow bloggers commented on the current environment.   Zhao Jun, a judge of the Jiangsu Higher People’s Court, who has a popular (among the legal community) public account, under the pen name  Gui Gongzi 桂公梓,  explained why he hasn’t been writing legal articles:

Third and more importantly , with the fluttering banner of democracy and the rule of law more and more ambitious,  the space for speech is obviously  tightening.

三也是更重要的是,随着民主和法治的旗帜招展得越来越宏大,言论的尺度却显而易见地越来越收紧了也是更重要的是,随着民主和法治的旗帜招展得越来越宏大,言论的尺度却显而易见地越来越收紧了

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Comments from the outside

Chinese social media is an invaluable way to understand what is going on in the Chinese court system and Chinese law generally, enabling you to keep up with developments wherever you are.

It is a shame if public accounts such as “Home of Judges” are seen as a threat to the government rather than a way to understand what the younger generation of judges, prosecutors and lawyers are thinking.

The older generation?

The older generation of judges and lawyers, particularly those who have lived through the Cultural Revolution, comment privately that at this time,  the best approach is to say nothing.

Supreme People’s Court rushes to achieve year end targets

imgres-4The rush towards year end in the Supreme People’s Court (SPC), as in the business world, means a flurry of announcements of important developments, to ensure that the SPC meets its own performance targets.  Among the recent announcements are:

  • reform of the maritime courts, to make them internationally influential (this has both political and legal implications, blogpost to come);
  • approval by central Party authorities of the third round of judicial reform pilots, and the holding of a large scale meeting of representatives from the Leading Group on Judicial Reform with the SPC and Supreme People’s Procuratorate (SPP),  on the focus (personnel reforms) and roll out of these projects.  Jiang Wei,deputy director of the Office of the Central Leading Group for Judicial Reform, spoke along with his SPC and SPP counterparts.  Political legal committee secretaries from the pilot areas attended, along with court and procuratorate officials.
  • Reform of the family court system, announced at a conference held in Guangzhou, attended by Justice Du Wanhua, highlighting that the rush of judges to meet performance targets (closing cases) Iamong other factors) has had a negative effect on children, elderly, disabled, and women.  The SPC likely published typical/model family law cases in November (discussed in this  blogpost)  because pulling together those cases was part of the preparations for the Guangzhou conference;
  • progress report and further plans on improving judicial assistance (separate but related to legal assistance), with the release  of the2014  multi-agency document (Central Political Legal Committee, SPC, SPP, Ministry of Finance, Ministry of Public Security, Ministry of Justice), stating that the central government had allocated 700 million RMB for judicial assistance and local governments  1.7 billion RMB, targeted at financial assistance for victims of crimes and others, with funds allocated to about 80,000 in 2014, (certainly a fraction of what is needed)
  • long pronouncement by Justice Shen Deyong on the “standardization” of the courts, citing the important status and important role of the judiciary in the governance of the country, but the growing contradiction between the needs of the people and  judicial resources and judicial capacity, decrying the lack of “top level design,” and calling for the implementation of related reforms.

This list will be supplemented later this month, as further announcements are made.

 

Update on case filing reform and other challenges for Chinese courts and judges

Case filing hall in a Jingdezhen court
Case filing hall in a Jingdezhen court

In late November, the Supreme People’s Court (SPC) held a press conference on case filing (docketing) reforms to announce a 32% increase in civil and administrative case filings, year on year, putting a positive spin on what is a highly stressful situation for frontline judges, but a generally positive development for litigants and their lawyers. There are many stressful factors for Chinese judges and the Chinese courts, leading many judges to leave or contemplate suicide, and others to vote with their feet.  This blogpost will look at some of the recent developments:

  • Large number of cases;
  • Increasing fraudulent litigation;
  • Dysfunctional performance indicators that refuse to die.

The three issues are interrelated.

Case filing (docketing) reforms

On the case filing reforms, through the end of September, civil cases are up almost 23%, and administrative cases up 76%, while private prosecutions of criminal cases are up 60%,The most litigious provinces are ones with highly developed economies: Jiangsu (608,000 cases), Zhejiang, Shandong, Guangdong (558,000 cases).  The Supreme People’s Court caseload was up as well, with 6852 cases accepted through September, up 58%, estimated to reach 15,000 cases by year end.

Fraudulent litigation

Fraud of all sorts is a growth industry in China, especially with the worsening economy. Creative thinkers have come up with ways to use the court system to defeat or at least delay or avoid creditors.  In recent years, the Chinese courts have been faced with an increasing amount of fraudulent litigation, now criminalized on one of the unnoticed provisions in the 9th Amendment to the Chinese Criminal Law (new Article 307-1).  However, the law does not set out a definition, although some provincial court have issued guidance.  Usual factors include litigation based on: fabricated facts, fabricated arbitration award, or notarized documents, or collusion between the parties  or third party to use fabricated facts, false evidence, false documents, destruction of evidence, provide false documents, expert opinion and other means to avoid debt or improperly gain assets.

With the reform to the case filing system (described in this earlier blogpost), fraudulent litigation on the increase. For this reason, the SPC recently issued its first ruling on fraudulent litigation, imposing a penalty of 500,000 RMB on two Liaoning companies, to signal to lower court judges that they need to monitor case filings for indications of fraud.  Fraudulent litigation can be found in various types of cases, and in the maritime as well as local courts.

On fraudulent litigation in the maritime courts, an experienced maritime judge provided the following typical scenario: because the Chinese shipping industry is in a downturn (see these articles, for example), a ship owner who is unable to repay their debts (and finds that the size of the mortgage is more than the value of the ship) will conspire with their employees to bring a claim for unpaid wages, because under the Special Maritime Procedure Law, those claims take priority over the mortgage.  The employees and shipowner will split the proceeds from the claim, shortchanging the bank and other creditors.

According to Zhou Qiang’s report to the NPC, about 3400 cases of fraudulent litigation were discovered in 2014.  According to studies done by provincial courts in recent years,  104 cases were found in 2011-2012 in Jiangsu, and 940 in selected courts in Guangdong during 2001-2009.

With the case filing reforms and soft economy, these numbers are likely to rise. Readers (of Chinese) interested in diving further into this topic should read this article.

Dysfunctional  performance indicators

Writing in People’s Daily, Judge He Fan, head of one of the departments of the SPC’s Judicial Reform Office, highlighted that “some leading cadres” wanting to achieve year end “pretty data”  are still imposing unrealistic year end performance targets, forcing front line judges to work unreasonable hours (and also  diminishing case quality). These performance targets were abolished in 2014, as highlighted in this blog.

As for why Chinese judges are leaving in such numbers and why they are so unhappy, that will be the subject of another blogpost.

 

Should the retirement age for Chinese judges be raised?

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President Zhou Qiang, speaking at a national court conference

The retirement age of Chinese judges, is 55 for women and 60 for men, the age when judges in many other jurisdictions are in their prime. US Supreme Court judges have lifetime appointments, while compulsory retirement ages include:  Germany–68, Australia, 70, Hong Kong, 65 (with provisos).  The discrepancy between China and the rest of the world has not escaped NPC deputies as well some of the more senior members of the Chinese judiciary.  Many of them have been working in the courts since the early 1980’s, and are now facing retirement.

As work begins on a re-draft of the Judges Law (as highlighted in an earlier blogpost), one of the issues that has been repeatedly mentioned in the Chinese legal press is raising the retirement age and/or permitting judges to go on “senior status.” Among those speaking out include President of the Supreme People’s Court, Zhou Qiang, presidents of provincial high court of Hubei, Zhejiang among others, as well as the president of the National Judicial College. The 4th Five Year Judicial Reform Plan mentions raising the age for becoming a judge,but is silent about retirement.

The issue of retirement for judges relates to larger issues, such has separating the treatment of judges from other civil servants, raising the general retirement age for judges, and the type of qualifications that judges should have, and of course compensation.

The president of the National Judicial College published a long article in the People’s Court Newspaper (affiliated with the Supreme People’s Court) in August of this year calling for a re-think of career paths for judges. He noted (among other issues) that many judges are “three gate cadres” (三门干部) who have gone from the gates of home, school, to the courts, and lack the necessary life experience.  (The article seems to be the public version of a talk he gave to a closed door conference on judicial reform sponsored by the China Academy of Social Sciences, reported here).

It is a waste of know-how and experience, particularly for women, who are forced to retire five years before men. The Chinese courts need to try to retain the talent that they have, particularly when the courts will be faced with an increasing number of cases relating to an ageing population. With Zhou Qiang and other senior court leaders backing delayed retirement, it appears the reform will eventually be implemented, but it is likely to be too late for those now close to retirement age.

China’s judicial legislation takes first step on road to complete overhaul

Vice President Shen Deyong
Vice President Shen Deyong

Implementing the judicial reforms in China requires an overhaul of China’s current basic legislation, the Judges Law (法官法)and the Organizational Law of the People’s Courts (人民法院组织法). The Supreme People’s Court (the Court) media outlets have recently reported that on 23 October the first meeting was held of the drafting group to amend the Judges Law, with Court Vice President Shen Deyong chairing the meeting, and senior Court judges in attendance.  The report notes that the focus is on securing the independence of the courts (but having them remain firmly under Party control). Judge Shen mentioned that issues under consideration include: criteria for the selection of judges; protection for judges undertaking their duties; evaluation of judges, judicial assistants, salaries scales, retirement and insurance, and rewards and punishments.

Part of the preparatory work for amending the Judges Law is to include field research and surveys, particularly of front-line judges in the judicial reform pilot areas.  The drafting group will designate some local courts and some universities/research institutes to assist with the drafting.  The drafting of the Judges Law will need to be consistent with the principles of the amendment of the Organizational Law of the People’s Courts and the work of the Central Leading Group on Judicial Reform.  This summer, the Court convened an initial meeting to discuss amending the Organizational Law of the People’s Courts.  How to reorganize the Chinese judiciary and what professional status Chinese judges should have and work under will affect how judicial reforms are implemented and less directly, more fundamental issues concerning China’s economy and society.

What are China’s new circuit courts doing?

#1Circuit Court Building
#1 Circuit Court Building

In January, 2015, the Supreme People’s Court (the Court) established circuit courts (actually circuit tribunals) in Shenzhen and Shenyang.  Are they doing anything more than serving as places to divert petitioners from Beijing?  In September I visited the #1 Circuit Court in Shenzhen to have a look for myself.

The #1 Circuit Court It is located in the former Shenzhen Intermediate Court building, but an annex contains the reception area for petitioners and separate area with courtrooms.  Visitors, including petitioners, enter through the entrance in the photo below. The burdensome security checks that Chinese lawyers have complained about for many years still operate, with security personnel (and the system under which they operate) who seem to be unable to distinguish between professional visitors and persons who may be a security threat.

The circuit courts are not separate level of courts, but a branch of the Court, but have a narrower jurisdiction, as set out in the regulations governing their operation, primarily civil, commercial, and administrative.

Part of the goal of the circuit court is to implement the personnel and structural reforms that the Court is promoting.  There are 12 judges, plus 12 judge’s assistants, who come from areas outside the circuit.  The twelve judges are  profiled on the Court’s website.  The judges do not serve in fixed collegiate panels, but each serves as presiding judge, with cases assigned randomly, and hearings in appeal cases focused on the issues in dispute on appeal, rather than a re-opening of the entire dispute.

The #1 Circuit Court occasionally “rides circuit”– hears cases outside of its headquarters.

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Caseload

As of early September, the #1 Circuit Court had accepted close to 500 cases.  The hearing that I attended was an appeal from the Hainan Higher People’s Court, a dispute over shareholding between a Hebei and Beijing companies.  The presiding judge was Gao Xiaoli, formerly of the #4 civil division, who often writes and speaks on arbitration, private international law, and judicial review of arbitration.  She, like her other colleagues is highly experienced.

Petitioners

As described in a blogpost by Ivy Chen, a former intern with the circuit court:

In the Court, the interns first review the petitioners’ materials. If these materials fulfill the procedural requirements, the petitioners then would talk to the judge’s clerks and the clerks would decide whether to recommend the case for a further review by the judges. The judges would make the final decision of whether to grant a retrial. The clerks in the Court were actually sitting judges from the High People’s Court and Intermediate People’s Court from provinces other than Guangdong, Guangxi and Hainan. My job there included: 1. to review the cases filed by petitioners and decide whether their cases have fulfilled the procedural requirements stipulated in the procedure laws, and whether the cases belong to the 11 categories of case stipulated to be handled by the Court; 2. to assist the clerks to document each petitioner’s case; and 3. to review the letters written to the Court, categorize the letters by their subject matter (criminal, civil, administrative or non-litigation), geographical associations and procedural status, and decide whether the letters should be resent to the High People’s Court of Guangdong, Guangxi or Hainan, or be resent to the SPC in Beijing or stay with the Court for the judges to review…..during the work, people realized that many petitioners have difficulty in finding good legal assistance and then the Court set up place for lawyers to offer free legal advice to the petitioners in late July.

Window to the world or window dressing?

The  #1 Circuit Court isn’t window dressing, although it seems to receive foreign delegations regularly.  What it does is provide the Court with more headcount to hear more cases, pilot  structures promoted in the judicial reforms in a environment under the Court’s direct control, seek to improve the quality of its legal policy role by research into local legal issues and greater interaction with the local legal communities.  Shenzhen is often on the leading edge in China in legal matters, particularly in commercial law.

Educating Chinese judges for new challenges

National Judges' College
National Judges’ College

Buried in the depths of documents issued in the course of this year are the outlines of the way the Supreme People’s Court (Court) intends to create a corps of judges in which litigants, domestic and foreign, have faith will provide justice.  The many measures set out in the 4th Five Year Judicial Reform Plan raise the competency bar for judges.  A more litigious and rights conscious public, the increasingly complex economy and greater number of cross-border transactions and interaction, as well as smaller number of judges to hear more cases means that judicial training is an important part of of preparing Chinese judges for the new normal.

The broad outlines of the Court’s plans for judicial training are set out in the following documents:

  • the Court’s latest 5 Year Training Plan, for 2015-2019, issued in June, the framework document;
  • the September 17, 2015 Communist Party Central Committee/State Council document on the open economy, calling for improving foreign-related competence in the judiciary; and
  • the September 25 White House press release, in which the  United States and China commit to conduct high-level and expert discussions commencing in early 2016 to provide a forum to support and exchange views on judicial reform and identify and evaluate the challenges and strategies in implementing the rule of law.

The training plan

The training plan is linked to the 4th Plenum and 4th Five Year Judicial Reform Plan Outline, the Communist Party Central Committee’s five year training plan for Party cadres (as stated in the plan itself, which means that judges are treated as a type of Party cadre), the Court’s regulations on judicial training,  as well the Court’s 2013 policy document on creating a new judicial team (队伍) in the new situation. Team (or work team) derives from “classical” Party terminology (as Stanley Lubman highlighted in an article last year)).

The Training Plan stresses ideological, ethical, and professional training, for judges and other judicial personnel.  Ideological education is required to be a part of the required training described below, so that judges will comply with Party discipline (a modern day counterpart to Confucian cultivation of virtue) and oppose the osmosis of mistaken Western values (抵制西方错误思想观点的渗透).

Who’s being trained

The focus of the training is:

  • Court leadership, particularly at the basic level. The training plan requires senior personnel of lower level courts to participate in training organized by the the Court and higher people’s courts, with newly appointed basic level and intermediate court management to participate in training session within their first year in office, and higher people’s courts to organize training for at least 20% of lower court senior management annually;
  • Front-line judges, particularly those in the basic level courts:  continuing legal education, with a minimum of 10 days a year,  and in the 2016-2018 period, a new training program is to be implemented, including the heads of people’s tribunals (branches of basic level courts dealing with minor disputes). Training materials are to be compiled by the Court.  The second aspect of the training program is to pilot a  judicial training program (apparently drawing from the practice in Taiwan and Japan) for new judges in designated areas for judicial reforms (as highlighted in point 50 of the judicial reform plan).
  • Professionally outstanding judges: the Court is to continue its program of cooperating with certain universities and research institutes to provide master’s and doctoral training (the Chinese University of Political Science and Law seems to be one of the Court’s partners); the National Judges College is to run training programs for outstanding young/middle aged judges for a minimum of one month.  Additionally, a corps of outstanding judicial trainers at the provincial level is to be created.  The September, 2015 measures to improve foreign-related competence in the judiciary are likely linked to this, as are some of the programmatic outcomes from the US-China initiative on judicial reforms.
  • Judges bilingual in Mongolian, Tibetan, Uygur, Kazakh, Korean, Yi and Zhuang.  This target was mentioned  in the Fourth Plenum and Fourth Five Year Judicial Reform Plan, and is linked to an arrangement by the State Ethnic Affairs Commission, Organizational Department of the Communist Party Central Committee, and the Supreme People’s Court to train 1500 bilingual judges by 2020.  This will also involve more and higher quality translation of legal materials into local languages. Press reports from Uighur and Tibetan areas, for example, describe civil litigants who do not understand Mandarin and find the justice system inaccessible for resolving business disputes, as well as criminal defendants who are unable to understand criminal proceedings, such as a Tibetan who did not understand what a “suspended death sentence” was.  In Xinjiang, for example, only 40% of judges described themselves as bilingual.

How training will be implemented

Judicial training is to focus on active and practical methods, including the case method (no less than 30%), moot courts, and other interactive methods.  The intellectual influence of exchange and training programs with offshore counterparts is apparent from the more interactive methods required.  Previous training programs (often funded by foreign NGOs) have enabled judges from the Supreme People’s Court and other Chinese courts to receive training in China with noted international experts while others have received training outside of (mainland) China.  Will this continue under the new normal?

Senior Chinese judges speak out on preventing injustices in China’s criminal justice system

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Confess quickly!

Although the Human Rights Watch report on the use of torture in the Chinese criminal justice system is capturing the attention of the media outside of China (and overshadowing a forthcoming report of an investigation done by the China University of Political Science and Law (CUPL) on the same subject), the report that may be more persuasive to the Supreme People’s Court (Court) in reducing injustices in China’s criminal justice system is one coming out of a symposium held recently in Henan Province.

The symposium on mistaken cases and “hearing centered criminal procedures”was sponsored by the Henan Higher People’s Court and CUPL,  Participants at the symposium included the president of the Henan Higher People’s Court (Zhang Liyong), the head of the #5 criminal division of the Court (Gao Guijun), several leading academics, including one from the Communist Youth League’s training school, and two from the legal press (Legal Daily and the People’s Court Daily). The detailed report from which this blogpost is taken was published in the Court’s media outlets, and a more abbreviated version on the Central Political Legal Committee’s websites).

The criminal prosecution of senior management of GlaxoSmithKline (GSK)’s Chinese subsidiary and many other lower profile cases (such as this one about a Swedish teenager) serve as a reminder that criminal justice issues are relevant to the (foreign) business as well as the human rights community.

The comments from the participants were fairly consistent.  Those from the judges who participated are particularly significant, because their remarks reflect reforms set out in the 4th Five Year Court Reform Plan that may be eventually implemented and they are the ones who can advocate directly these points in internal discussions with other participants in the criminal justice system.

Judge Zhang Liyong, President of the Henan Higher People’s Court
Judge Gao Guijun, head of the #5 Criminal Division of the Court

Comments from the judges

  • Put substance into trial procedure by requiring witnesses to appear in court and implement the exclusion of illegal evidence;
  • Improve judicial supervision of the investigation process, to ensure that the standard of the investigation process meets the standard at trial.  This comment is liked to an unnoticed phrase in the 4th Five Year Court Reform Plan Outline, which calls for “Improving judicial supervision of judicial (i.e. justice system) measures and investigative methods which limit personal freedom.”   Publications within the court system, such as this detailed study in Chongqing advocating better judicial controls over the investigatory stage) reveal that some judges are looking to Germany and Taiwan for examples in other civil law systems, in which detainees have the right to be brought before a court during the investigation process;
  • More effective curbs must be established on procuratorial authority;
  • Torture still exists to some extent, and measures must be taken to prevent it;
  • The procuratorate and defense must be on an equal footing;
  • The defendant is not a criminal until after sentencing, and he must be allowed to sit with defense counsel;
  • The presumption of innocence in doubtful cases must be implemented (疑罪从无原则).

Comments from the academics

  • The new [pre-trial] detention center law being drafted by the State Council’s Legislative Affairs Office should incorporate obligations on detention center staff to cooperate with courts in reviewing illegal evidence;
  • A system should be established to require criminal investigators to appear in court and for the investigation agencies (public security and procuracy) to provide full recordings of interrogations;
  • The hearing must become the center of proceedings, not the investigation file, and the trial (first instance hearing) is the foundation for preventing miscarriages of justice;
  • There are defects in the system of correcting miscarriages of justice–there should be a system under which a convict can apply for DNA testing, also the standard for exculpatory evidence in re-trials is too high;

Comments from the media:

  • To prevent mistaken cases, media monitoring is needed;
  • News must be made public, to satisfy the public’s right to know;
  • The justice system must be more transparent.

Comment

Implementing many of the recommendations of the participants of the symposium cannot be done solely by the Court.  They will require approval by the political leadership, acting through the Central Committee’s Central Leading Group for Judicial Reform because they relate to other criminal justice institutions.  Because many of the issues raised, such as Improving judicial supervision of the investigation process, instituting an effective system for excluding illegally obtained evidence are part of the 4th Five Year Court Reform Plan Outline, it is likely that progress will be made towards implementing these measures in the next few years, perhaps once the  reforms mandated for the public security authorities have a had measurable impact. The leadership is unlikely to be willing to implement these reforms if it perceives a negative effect on “law and order” and social stability. The rights of a large number of people can potentially be improved if they are.

Supreme People’s Court president says court reforms in “deep water area”

566929On 12 March 2015, Zhou Qiang, president of the Supreme People’s Court (Court) delivered his work report to the NPC, putting the best face on where the Chinese courts are and where they’re going. He described court reforms as being in a “deep water area” (深水区)(a high risk area).  This blogpost will highlight issues that other commentators (outside of China) have so far missed:
  • the mismatch between the focus of the work report and the work of the courts;
  • what the work report (on other than criminal cases reveals); and
  • the challenges to the Court leadership in the year ahead.

What is the mismatch?

charts for SPC
© Tiantong & Partners; charts illustrating SPC report
The primary focus of the work report (as always) is law and order, as seen from the perspective of Communist Party leadership, particularly state security related offenses (including terrorism and “splittism”) as well as ordinary crimes.  A big difference in this year’s report is that President Zhou Qiang apologized for previous miscarriages of justice and highlighted efforts to prevent future ones.  Other commentators have already focused on these both of these important developments and and other issues related to the criminal justice system.
2014 cases in chinese courts
bar chart: 2010-2014 increase in cases resolved by courts (in 10K) Pie chart: civil/commercial/IP; admin; re-trial/govt compens/enforcement/; parole; other/criminal

What the work report reveals is that most cases heard in the Chinese courts are not criminal and that the number of cases heard by the courts is rising.

What are cases are the Chinese courts hearing?

The pie chart (distributed as an attachment to President Zhou Qiang’s report at the NPC), illustrates that over 63% of the cases heard in the Chinese courts are civil cases (including commercial, family law and intellectual property cases), not criminal. Criminal cases (including parole related cases) account for something over 10% of cases (as others have discussed, many minor offenses are handled as administrative, rather than criminal offenses).

A closer look at civil cases in the Chinese courts

 A bit of arithmetic reveals (unfortunately the authors of the Report did not set out a corresponding chart), that 34% of civil cases (2,782,000) in 2014 were commercial cases (up 8.5% year on year), while 66% were what classified as civil cases (in the narrow sense, described below).

Commercial cases:

(These cases are illustrated in the chart to the left that has the ¥ sign.)
1. Finance cases (824,000)(a broad category including various types of loans, credit cards, securities, futures, insurance etc.).
2.  Sales contracts disputes (664,000).
3.Intellectual property (110,000, up 10% year on year)(I  the detailed analysis of this can be found here, by my fellow blogger, Mark Cohen, at the ChinaIPR blog);
4. Corporate disputes (12,000) (shareholder, merger and acquisition, creditor initiated bankruptcy);
5. Maritime cases (12,000).
Foreign-related cases (5804), )these, although a focus of foreign law firms alerts and the press, are a tiny drop in the sea of Chinese civil cases.  Many cases involving foreign companies actually involve their China incorporated subsidiaries.
The number of finance cases suggests a large number of disputes relating to loans by financial institutions.

Civil cases

(These cases are illustrated in the chart that has two people standing next to one another and the pie chart below.)
2014 civil cases in the Chinese courts
2014 civil cases in the Chinese courts
In 2014,  5,228,000  civil cases were heard in the Chinese courts (up almost 6% year on year):
1.  Family law cases (1,619,000),(this category includes  contested divorces, inheritance, support cases), accounting for about 30% of civil cases. The chart above 13% year on year increase in inheritance cases (showing an increasing number of people have assets worth fighting in court over, and perhaps also inadequate estate planning).
2.  Loan cases not involving financial institutions (between individuals, company and individual, or two companies) (1,045,600), accounting for almost 20% of civil cases. (The categorization has changed, making a year on year comparison not easily possible).
3. Labor cases (374, 324), accounting for 7.16% of all civil cases.  These include appeals from labor arbitration as well as cases that can be directly brought in the courts).
4.  Environmental tort cases (3331) (up 51% year on year).
5. Product liability cases are up 44%, but the base or total number for 2014 is not set out.
6.  Cases involving rights of rural residents (219,00)(rights to rural residential land, transfer of contracted land) migrant laborers seeking unpaid wages).
7.  Construction disputes are up almost 18% (base or total number for 2014 not set out).
These numbers speak to:
1. changes to the Chinese family;
2. a large number of loans that are under the radar of the financial authorities;
3. employees who are increasingly rights conscious;
4. continued litigation risk for foreign companies doing business in China (including through subsidiaries), because as perceived “deep pockets”, Chinese litigants often target them in product liability cases.

Administrative cases

 First instance administrative cases (companies or individuals suing the government) (131,000) continue to be a tiny number, although up 8.3%, and it remains to be seen whether the amended Administrative Litigation Law (Administrative Procedure Law) will lead to an increase in cases.

 Enforcement cases

Enforcement cases (compulsory enforcement of court judgments or orders, arbitral awards, etc) account for 3,430,000, a 14% increase year on year.  This suggests that fewer people (companies) are complying with dispute resolution voluntarily.
10% increase in cases accepted (will be a challenge to the courts if this trend continues because the intent is to cut the number of judges), amount in dispute is up 15%.

Court reforms already in a “deep water area”

Zhou Qiang highlighted that court reforms are already in a “deep water area” (high risk area) and the courts:
  • need to penetrate interest group barriers;
  • have the courage to move their own “cheese”;
  • need to use “the knife” against itself (presumably to cut out corrupt, poorly or non-performing judges);
  • deal with many deep-seated problems;
  • make progress on a long list of reforms:
    • continue and expand pilot reforms on changing the financing and personnel appointments of the local courts to all provinces/directly administered cities;
    • implement hearing-centered litigation reforms;
    • make progress on case filing reforms (to resolve the long term problem of litigants facing obstacles when they file suit);
    • put in place a system with dealing with assets seized and confiscated by the courts (to avoid violation of property rights and further judicial corruption in this process);
    • implement the prohibition against defendants wearing prisoner’s garb in court;
    • further implement judicial reforms related to petitioning;
    • promote alternative dispute resolution, such as arbitration, people’s mediation, administrative mediation etc.
    • continue work on pilot projects on expedited criminal procedures (for minor matters);
    • improve the people’s assessors system.

All of these reforms create tremendous challenges for the courts.  The number of cases accepted by the courts in 2014 (15,651,000) was up about 10%.  The judicial reforms to petitioning and other reforms will channel more disputes into the court system. Planned personnel reforms are leading to an exodus of young judges.  Many of the planned judicial reforms are intended to the way the courts operate internally and interact with other institutions. The 4th Five Year Court Reform Plan sets out target dates for accomplishing certain major judicial reforms.  The salary gap between what an experienced lawyer in private practice in a major law firm and a counterpart in the judiciary is large, leading many talented people to prefer the greater financial benefits and professional flexibility that comes with being a lawyer.

The political leadership has approved the 4th Five Year Court Reform Plan.  Issuing it raises expectations among ordinary people as well as those in legal profession. The pressure is on for the Court leadership to deliver on the promised judicial reforms.

Supreme People’s Court’s 4th Five Year Reform Plan sees the light of day

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February, 2015 photograph of the SPC building

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.

Supreme People’s Court‘s sunshine cure for corruption in commutation and parole procedures

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Prisoner choosing commutation & parole options from corrupt jail official

 

Before Chinese new year, the Supreme People’s Court held a news conference  to highlight its accomplishments in reforming parole procedures. The previous procedures (or lack of them) (as described below) appeared to have been a money-spinner for prison officials. The reform in parole procedures highlights the value that current Chinese legal policy places on Justice Louis D. Brandeis’s wisdom (without citing him):

“Publicity is justly commended as a remedy for social and industrial diseases. Sunlight is said to be the best of disinfectants…”

The change in parole procedures also are a good example of how results of investigations by the Central Commission for Discipline Inspection (CCDI) and Central Political and Legal Committee policy documents are eventually are translated into improvements in legal procedures.

The reforms to parole procedures include:

  • The Court’s August, 2014, Provisions On Commutations And Parole(最高人民法院关于减刑、假释案件审理程序的规定) (translation can be found here), requiring much more transparency;
  • November, 2014 procedures issued by the Court along with the Ministry of Justice, Ministry of Public Security, Supreme People’s Procuratorate, and National Health and Family Planning Commission on medical parole and related issues (暂予监外执行规定), establishing stricter guidelines.
  • Establishing an internet platform on the Court website to make public (provide sunlight) parole/commutation matters: acceptance of applications, notice of court hearings,and court rulings;
  • Establishing a filing system under which decisions relating to officials of county level (or section (处) need to filed with provincial high courts and provincial department (bureau level(局)) need to be filed with the Court;
  • Model cases on parole and commutation, to guide lower court judges in their work, and inform the public on these reforms.

    ________.x_large
    Axe labeled “power”, “money”

The background

With flexible provisions and limited transparency on medical parole, commuting sentences, and parole procedures, in recent years apparently underpaid Chinese prison officials caught the entrepreneurial spirit and (like the Monopoly game that many of us grew up playing), sold “get out of jail cards” to those who could afford to pay.  Those were generally made up the wealthy and (formerly) powerful, particularly those who had committed the following crimes:

  • duty crimes (including taking bribes and abusing authority);
  • organized crimes;
  • financial crimes.

An August, 2014 press report mentioned that over 700 prisoners  nationwide had improperly secured early release.  Other reports cited that prison officials in Guangdong were particularly entrepreneurial, arranging for the improper release of approximately 140 in Guangdong, primarily former officials, including:

  • Wang Ju, former vice mayor of Shenzhen;
  • Zhao Yuchun, former head of Shenzhen customs;
  • Huang Shaoxiong, former deputy head of the Guangdong United Front Work Department; and
  • Lin Chongzhong, former deputy mayor of Jiangmen.

CCDI investigations and Central Political Legal Committee policy document

It appears that these reforms can be traced back to CCDI investigations in 2013 (and possibly earlier), because in August, 2013, the CCDI website carried a summary of a speech by Xi Jinping at a CCDI conference in which he calls for reforms to parole procedures. At about the same time reports of  investigations into prison officials were released by CCDI, such as one of a Hunan Province Justice Department (the Justice departments run the prison) official who was found to have almost USD 2 million (12 million RMB) in assets disproportional to his income.  Many other prison officials in other provinces have also been investigated.

In January, 2014, the Central Political Legal Committee issued a policy document outlining the policy framework for the reforms, which began with the frank admission that society was incensed by the rich and powerful who had been sentenced to prison who often served relatively short sentences because they had their sentences commuted or were given parole, directing special restrictions prisoners convicted of the above three types of crimes. (The Supreme People’s Procuratorate has issued its own regulations to implement the policy document.)

Going forward

Reducing corruption in the justice system and giving Chinese people more confidence in it is a multi-faceted process, with greater transparency needed across many areas.  These reforms to parole and commutation procedures are likely to be one of the accomplishments that President Zhou Qiang will be able to point to when he gives his report to the National People’s Congress next month, particularly as the August, 2014 regulations are listed as one of one of the Court’s 10 major policy accomplishments of 2014.

Additionally, the internet platform also serves as a window into criminal activity in China, such as the recent application by a Han native of Xinjiang, convicted in Beijing of dealing in drugs, but who was permitted by the Chaoyang District Court to serve his sentence outside of jail for the next six months, because he has AIDs.

 

 

 

When will the Supreme People’s Court become a tourist destination?

800px-Supreme_peoples_court_chinaI had the good fortune to have a meeting with some judges of the Supreme People’s Court last week in the main building of the Supreme People’s Court.  The rules are now such that photographs of the gate (and nameplate of the Supreme People’s Court) are forbidden, a contrast to 20+ years ago, when I was able to ride my bicycle along the road fronting the Court.  As the Supreme People’s Court guides the courts towards more transparency and public access, I look forward to the day when it can become a tourist destination and its hearings more  open to the Chinese and foreign public.

I wish all my readers all the best for the Year of the Sheep  祝大家新春快乐,身体健康,万事如意!

What does the 4th Plenum mean for military legal reforms (continued)

Criminal Division, PLA Military Court
Criminal Division, PLA Military Court

In early February, I published an article in The Diplomat, focusing on little understood post 4th Plenum developments on Chinese military law, which (to my surprise) was summarized and translated by Chinese official media.  Professor Zhang Jiantian of China University of Political Science and Law recently published an article in People’s Court Daily on issues affecting the military courts, in which gives the outside world a glimpse of the gated Chinese military legal community and sets out his recommended reforms. My article in the Global Military Justice Reform blog summarizes Professor Zhang’s views and recommendations.

Why the Supreme People’s Court is harnessing the NGO “genie”

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Obstacles to public interest litigation-filing suit & obtaining evidence

Many China observers were surprised to learn that in early January, 2015, the Supreme People’s Court (Court) issued an interpretation on enabling civil society organizations to sue polluters on behalf of the public, when most commentators take the view that those organizations are controlled more tightly than before.  The Court issued it after years of work, analysis, and low numbers of environmental lawsuits (highlighted in my earlier blogpost), particularly public interest ones.

This blogpost explains:

  • what the Interpretation does;
  • what its background is;
  • why the Court is enabling environmental NGOs to file suit; and
  • An assessment of its implications.

This blogpost should be read with Barbara Finamore’s blogpost, How China’s Top Court is Encouraging More Lawsuits Against Polluters.

What the interpretation does

The interpretation, entitled “Interpretation on Several Issues Regarding the Application of Law in Public Interest Environmental Civil Litigation (Interpretation) (Chinese original found here and translated here). The Interpretation (like many other Court interpretations) combines court procedural rules with additional rules on liability and other legal standards to put in place a framework for Chinese environmental NGOs to file public interest environmental cases against polluters. It supplements Article 58 of the Environmental Protection Law (amended in 2014) and the 2012 Civil Procedure Law, because neither law had sufficient legal rules to guide local NGOs in bringing and local courts in accepting, hearing, and deciding these lawsuits.

A draft of the Interpretation had been issued for public comment on 1 October and the final draft reflects comments from the public.  Both domestic and international organizations commented on the draft.

The Interpretation authorizes environmental NGOs with a five year track record that are legally registered with the local NGO regulator, the Ministry of Civil Affairs or its local counterpart, to sue polluters on behalf of the public, and to seek the equivalent of a permanent injunction, compensation, orders to clean up the pollution, or an apology, among other measures. A Ministry of Civil Affairs official recently estimated that about 700 environmental groups met current qualifications.

The highlights:

  • Broad definition of environmental NGOs that can file suit. At the press conference announcing the Interpretation, the Court spokesman said that a broad definition was adopted so that it would be flexible enough to accommodate additional types of approved non-profit groups.  This may be have been done to accommodate contemplated reforms to non-profit institutions;
  • Provisions permitting an NGO to seek a court within a provincial boundary but outside the locality of the polluter to hear the case. Because local courts are locally funded, they are often reluctant to hear or decide cases that cause result in judgments against companies that are often substantial contributors to local tax bases. An NGO is also allowed to sue polluters outside of its own locality. This was also highlighted in the same press conference.
  • The Interpretation enables injured private parties to piggyback on the NGO’s case, also highlighted by the Court spokesman.
  • Several provisions to require court oversight when NGO settles the lawsuit, to guard against intimidation by the polluter, which may be allied with local government.
  • The damages the polluter pays are paid into a pool of money, which is used to compensate those harmed.
  • If the defendant polluter refuses to provide information about pollution discharge, the court can presume that the plaintiff’s assertions have been established.
  • Several provisions are designed to reduce the costs of litigation to the NGO.
  • The litigation must not be profit making for the NGO.

The Court spokesman described these cases as “a new type”, difficult to try and enforce, and ones that attract a great deal of public attention,  but given the high degree of public concern, in January, 2015, China’s People’s Court Daily identified the Court’s environmental legal policies, as being the SPC’s top judicial policy initiative in 2014.

Some background

The Interpretation reflects years of work within China by local legal experts, local environmental NGOs, as well as the technical support of international organizations such as the United Nations Development Program, the Asian Development Bank, and other China-based foreign NGOs, and universities. The structure established by the Interpretation reflects concepts adapted from US law and other foreign legal systems, but reflects Chinese legal, political and societal realities.

The Court worked with the Ministry of Civil Affairs (MCA), which regulates NGOs, and the Ministry of Environmental Protection (MEP) in establishing a policy framework for implementation, which set out in the document issued with the Interpretation, the Notice of the Supreme People’s Court, Ministry of Civil Affairs, and Ministry of Environmental Protection on Implementing the System of Environmental Public-interest Civil Litigation (Chinese original here).

The Third and Fourth Plenum decisions both highlighted establishing compensation systems for those responsible for creating ecological or environmental damage, and the Court’s policy document on environmental issues, issued in June, 2014, signaled the importance to the government of public interest environmental litigation.

Track record of Chinese courts on environmental litigation

About 170 courts have now established environmental divisions, but according to Court studies, most have heard relatively few cases. Public interest environmental litigation was piloted in provinces as diverse as economically developed Jiangsu Province and the less developed southwestern provinces of Yunnan and Guizhou.  These cases have been analyzed  both in Chinese and English.The pilot projects highlighted some of the underlying issues, which include local protectionism, lack of specific provisions on these cases, lack of training, and lack of coordination between the environmental protection authorities and the courts. An additional issue is also the performance indicators (now being reformed) of the courts, which incentivizes judges to avoid taking risks.

From 2000 to 2013, only about 50 environmental public interest lawsuits were heard in China, most of which were filed by government agencies, according to a report by the state-sponsored All-China Environmental Federation. NGOs have attempted to file environmental public interest cases for many years, but have generally been refused by the courts. For example, although the All-China Environmental Federation filed eight lawsuits in 2013, but none were accepted.

Model cases before the Interpretation was issued

In the last few months, several public interest environmental cases have received a great deal of attention, including:

  • A case decided at the end of 2014 involving by a semi-official NGO in Jiangsu Province, where the Taizhou City Environmental Protection Association (the chairman, Tian Jun, is also the head of Taizhou’s environmental protection bureau) against six chemical companies that had polluted local rivers resulting in a 16 milllion RMB compensation against the polluters.
  • A case filed in December, 2014 in a county court in Chongqing by Chongqing Green Volunteers Association against a Hubei mining company.

Rationale for harnessing the NGO “genie”

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[public interest litigation] compensate my losses!
The Chinese government recognizes that the degradation of the environment in China, along with the harm suffered by hundreds of millions of people from air, water, and soil pollution is a social and political problem, and the system, without involving NGOs, was unable to address the problem, and that it is preferable to resolve environmental problems by bringing environmental disputes into the courtroom, rather than having demonstrations against polluters.

The joint policy document issued by the Court, MCA and MEP seeks to overcome local government hostility to environmental NGOs.  Local governments had often been often unfriendly to environmental NGOs. The head of the Chongqing Green Volunteers Association was quoted in 2012 as saying “I annoyed a lot of government officials and businessmen. They hired gangsters to beat me up,” he says of the early days of his work. “After hearing this news, many of my environmental activist friends were too frightened and they left me – one after another. I was feeling very helpless.”

Implications

The predictions in the Chinese legal press are that the Interpretation will eventually lead to more litigation, despite local protectionism and the technical demands on NGOs preparing to bring these lawsuits.

  • On January 1, 2015, the day that the new Environmental Protection Law went into effect, the environmental NGOs Friends of Nature and Fujian Green Home, with the support of lawyers from the environmental law center at China University of Politics and Law, , filed an environmental public interest suit to counter damage to a woodland area by mining activities in Nanping, Fujian province; the case was subsequently officially accepted
  • On January 4, 2015 with the support of funding from the Alibaba Foundation, NRDC’s partner organization Friends of Nature officially launched an “Environmental Public Interest Litigation Support Fund.”
  • On January 13, 2015 the All-China Environmental Federation filed two lawsuits in Shandong’s Dongying Intermediate People’s Court against polluters in Zhejiang and Shandong provinces, which were accepted.
  • Based on my own contacts, other environmental NGOs are reviewing their activities to consider whether they have an appropriate case.

 

 

 

 

 

A new audience for US Supreme Court Chief Justice Roberts’ 2014 Year-end Report

imgresChief Justice John Roberts of the US Supreme Court may be surprised to learn that (an edited and translated version of ) his year-end report (linked here), is being read by tens of thousands of Chinese judges and lawyers. The reason is a translation by the Institute for Applied Legal Studies, affiliated with the Supreme People’s Court (Court), was published on the Supreme People’s Court website and distributed through its social media channels (Wechat and Weibo), as well by the social media feeds of local Chinese courts.

What relevance does Justice Robert’s report have for the Chinese judiciary?  It reflects how the Court considers foreign legal models as it seeks to reform the Chinese courts. Some of the “take-aways” are highlighted below.

Borrowing foreign legal models

Referring to or “borrowing”  foreign legal models has been a important part of China’s legal modernization, particularly in technical areas of law, but it remains politically sensitive.

The official position on borrowing/referring to foreign legal models is set out in the 4th Plenum Decision: “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.”

Earlier this month, an official of the Communist Party’s Central Political-Legal Committee, writing in the Communist Party’s journal Qiushi (Seeking Truth)  warned:

We want to study and borrow from the world’s best achievements of legal civilization, but studying and borrowing does not mean simply “take-ism (grab-ism)” [this phrase is the title of a 1934 essay by the famous Chinese writer Lu Xun  to mean that China should learn what it needs from Western culture through a process of selection].

 What are the takeaways for the Chinese courts?

The following excerpts from Justice Roberts’ report clearly resonated with the Supreme People’s Court leadership, as they consider court reforms that can be successfully adopted in China’s current political, legal and cultural environment:

  • The courts understandably focus on those innovations that, first and foremost, advance their primary goal of fairly and efficiently adjudicating cases through the application of law.
  • Courts are simply different in important respects when it comes to adopting technology, including information technology. While courts routinely consider evidence and issue decisions concerning the latest technological advances, they have proceeded cautiously when it comes to adopting new technologies in certain aspects of their own operations.
  • For 225 years, since the enactment of the Judiciary Act of 1789, the federal courts in each state have exercised a fair degree of operational independence to ensure that they are responsive to local challenges, capabilities,and needs. The individual courts have had considerable latitude to experiment with new technologies, which has led to some courts initiating local innovations. When the Administrative Office plans a nationwide initiative, such as Next Generation CM/ECF [electronic case filing and case management], it must devote extensive resources to conferring with judges, court executives, and lawyers across the country, examining what has worked on a local basis, and identifying features that should be adopted nationally.
  • The federal courts, however, also face obstacles that arise from their distinct responsibilities and obligations. The judiciary has a special duty to ensure, as a fundamental matter of equal access to justice, that its case filing process is readily accessible to the entire population, from the most techsavvy to the most tech-intimidated. Procedural fairness begins in the clerk’s office.