Educating Chinese Judges for New Challenges in the New Era

National Judges' College

National Judges’ College

One of the many documents issued late last year in the rush for year-end accomplishments (成就)is the Supreme People’s Court’s (SPC’s) latest Five Year Court Training Plan Outline for 2019-2023 (New Training Plan Outline) (2019—2023年全国法院教育培训规划).  The question this blogpost will explore is what is new and what has changed in the post-19th Party Congress New Era. As shown below, it is one small example of the impact of the 19th Party Congress on China’s legal and governance system. Competing obligations mean that this blogpost can only provide a few highlights and will focus on training for judges rather than support personnel, although the New Training Plan Outline covers all types of court personnel.

Other objective factors that have changed in the New Era are the number of cases in the courts (the majority of which are civil and commercial cases) and the average number of cases assigned to judges.  The numbers released to the public can only provide a general indication, as senior judges in a court (court presidents, vice presidents, and heads of divisions) are required to handle a small number of cases, which means in actual fact a greater burden on front-line judges, who constitute the majority of judges. The provinces and areas with the most developed economies tend to have the most number of cases.

This blog discussed the earlier plan almost five years ago.  The outside observer is handicapped by limited transparency about what the National Judicial College (NJC) actually does, although insights into the forthcoming curriculum can be found.  Previous versions of the NJC website had some course outlines, but those vanished in one of the website upgrades. In comparison, for example, the Australian National Judicial College publishes the National Judicial Curriculum and the German Judges Academy also has quite detailed information (to the extent this observer can understand it using a combination of high school German + Google translate).

The NJC, for those who aren’t familiar with it, is a separate institutional entity (事业法人) under the SPC, in charge of court training, primarily of judges, but also for other supporting staff. It is closely linked with the SPC’s Political Department (in charge of cadres). It has also hosted some training courses jointly (this was on administrative litigation) with the National Prosecutors College. Fortunately, the NJC website has posted screenshots of lectures (many by outstanding SPC judges) in its cloud classroom, although unfortunately, the lectures themselves are inaccessible.  I surmise that any teaching this spring will be at least initially online, as in other Chinese higher educational institutions. As of 30 March, this has provided to be correct, as the NJC website now features reports on training judicial trainers and provincial branches of the NJC providing training online.

What is new?

Consistent with what I wrote in this blog about Zhou Qiang’s report to the NPC in March of last year (2019) (and other 2019 blogposts), what is different about the New Court Training Plan Outline is the greater emphasis on political issues and Party leadership, although these were evident in the previous plan. The first sentence mentions Xi Jinping Thought on Socialism with Chinese Characteristics for a New Era (习近平新时代中国特色社会主义思想) and “forging a high-quality court team (队伍) that the Party Center can rely upon and the masses are satisfied with.”  It mentions creating a revolutionalized,  regularized, specialized and professionalized team (革命化、正规化、专业化、职业化). As explained in an earlier blogpost, “revolutionized” signals absolute Party leadership. The top two goals for training are deepening education in Xi Jinping thought (习近平新时代中国特色社会主义思想学习教育更加深入) and further solidifying education with a Party nature (党性教育更加扎实).

What do Chinese judges need in the New Era?

The economic and social changes in China raise the competency bar for judges.  A more litigious and rights conscious public, the increasingly complex economy and a greater number of cross-border transactions and interactions, (not to mention coronavirus related issues) as well as a smaller number of judges to hear more cases means that judicial training is an important part of preparing Chinese judges for the New Era. Post 19th Party Congress changes in Party policy mean that competency in Party matters is increasingly significant.

The training plan

The training plan is linked to the 5th Five Year Judicial Reform Plan Outline, the Communist Party Central Committee’s five year training plan for national cadres, a special document for outstanding young cadres (关于适应新时代要求大力发现培养选拔优秀年轻干部的意见), the Court’s regulations on judicial training (to be amended),  as well the Court’s 2013 policy document on creating a new judicial team (队伍) in the new situation. Team (队伍 (or work team) derives from “classical” Party terminology (as Stanley Lubman highlighted in a 2014 article)).

The plan does not incorporate training for foreign judges, which the NJC delivers to judges from Belt & Road Initiative jurisdictions and other countries.

Content

The Training Plan stresses ideological, ethical, and professional training, for judges and other judicial personnel. Ideological training is listed first. Judicial training is to focus on active and practical methods, including the case method (no less than 30%), moot courts, and other interactive methods.  Even in the New Era, the intellectual influence of exchange and training programs with offshore counterparts (many of those in the NJC leadership had studied abroad) is apparent from the more interactive methods required.

Who’s being trained

The training requirements depend on the seniority of the judicial personnel

  • Court leadership: the focus is on their political education, as well as administration. The SPC will run a special training session on the Xi Jinping New Era thought for a large group of court leaders, with newly appointed ones required to participate in training within a year of appointment. In the next five years, they must participate in a certain minimum number of hours of Party school, cadre education, or judicial training.
  • The plan also calls for providing different types of training depending on court needs–off-site vs. on-site training, web-based training, circuit teaching (some of the younger SPC judges are sent to courts in western provinces to deliver training).
  • Special training program for new judges: the judicial training program (apparently drawing from the practice in Taiwan and Japan) for new judges highlighted almost five years ago still has not been put in place. The new plan calls for research into implementing measures for training for newly appointed judges and organizing training for a group that qualifies to take part in unified pre-service training) (研究制定法官职前培训实施办法, 组织符合条件的人员参加统一职前培训).

How will the Plan be implemented?

As I wrote in December, one of the little-discussed aspects of being in a leadership role in the SPC in the New Era ensuring that policies, actions, initiatives, and other decisions hit the target of being politically correct (post 19th Party Congress and post 19th Party Congress 4th Plenum) while being “problem-oriented” (坚持问题导向) that is, addressing relevant practical issues facing the court system.  As mentioned then, it is true for the leadership of the NJC as well as other SPC divisions and institutions, as can be seen from one document.

The NJC very usefully (for the outside observer, at least) posted a notice soliciting proposals (from qualified individuals and institutions) for judicial training in 2020 under the new plan. The guide to the proposals sets out the desired content, which must not only be politically correct (a given), but also creative (new training methods or viewpoints), and relevant–focusing on the new and difficult issues facing the courts. The solicitation lists 66 topics in seven categories:

  1. Ideological related training is listed first, of course, with six subtopics which include: Xi Jinping new ideology and strategy for ruling the country by law (listed first); enhancing socialist core values in judgments (see my earlier blogpost on a related topic);  political discipline rules as derived from the Party charter, regulations, and discipline.
  2. Professionalism: (four subtopics)–professional ethics and judicial values; judicial work-style and the standardization of judicial acts; anti-corruption issues and countermeasures; outstanding Chinese traditional legal culture and socialist justice (unclear whether this is meant to solicit critical views of Chinese traditional legal culture);
  3. Judicial capacity: this one has twenty-three subtopics, with a good portion also to be found in other jurisdictions: civil, commercial, administrative and criminal justice values and judgment formation; judgment writing and courtroom control; difficult financial cases; while other reflect Chinese characteristics: what to consider when hearing difficult and complicated cases involving the public (涉众型) (these are either criminal or civil cases); protecting property rights and preventing mistaken cases; intellectual property trials and serving the innovative strategy; dealing with zombie enterprises.
  4.  General courses: (eight subtopics)again, a mixture of courses seen elsewhere, and ones with Chinese characteristics: guiding the media; mediation techniques; blockchain, AI and the courts.
  5.  Case study courses: (13 subtopics)-most of the topics are ones found elsewhere in judicial academies, such as financial crimes, juvenile justice, and corporate disputes, but others reflect the New Era, such Xi Jinping New Era thought cases and case pedagogy,  cases promoting and applying the “Fengqiao Experience“; and sweeping black and eliminating evil cases.
  6. Discussion courses: Criminal, civil, and administrative law courses.
  7. Judicial reform: only six topics here, including implementing the judicial responsibility system; establishing intelligent courts; separating simple from complicated cases; administrative litigation reform, and promoting a trial based criminal justice system.

 

 

China’s new judicial reforms on case law & other guidance

Gazette of the Jiangsu Higher People’s Court

As mentioned in my earlier blogpost, the Supreme People’s Court issued the fifth judicial reform plan outline in February, of this year (2019), harmonized with the current focus on Party leadership. For people with the fortitude to decode Chinese official documents, some real content can be found in the document. One of those provisions is #26 and relates to the ongoing efforts of the SPC to implement greater uniformity and consistency in the way that the law is applied in the courts (the translation below is from Chinalawtranslate.com):

#26 Improve mechanisms for the uniform application of law. Strengthen and regulate work on judicial interpretations, complete mechanisms for researching, initiating, drafting, debating, reviewing, publishing, cleaning up, and canceling judicial interpretations, to improve centralized management and report review mechanisms. Improve the guiding cases system, complete mechanisms for reporting, selecting, publishing, assessing, and applying cases. Establish mechanisms for high people’s courts filing for the record trial guidance documents and reference cases. Complete mechanisms for connecting the work of case discussion by presiding judges and collegial panel deliberations, the compensation commission, and the judicial committee. Improve working mechanisms for mandatory searches and reporting of analogous cases and new types of case. (完善统一法律适用机制。 加强和规范司法解释工作,健全司法解释的调研、立项、起草、论证、审核、发布、清理和废止机制,完善归口管理和报备审查机制。完善指导性案例制度,健全案例报送、筛选、发布、评估和应用机制。建立高级人民法院审判指导文件和参考性案例的备案机制。健全主审法官会议与合议庭评议、赔偿委员会、审判委员会讨论案件的工作衔接机制。完善类案和新类型案件强制检索报告工作机制)

As for why the uniform application of law is an issue, the quick explanation is the drafting of Chinese legislation often leaves important issues unresolved and outsources to the SPC (and SPP for some issues) the hard job of drafting more detailed provisions. (see Chinalawtranslate.com for many examples and NPC_observer.com for insights about the legislative drafting process).  Comments about the role of case law are found below.

#26 mentions the following:

  • improving judicial interpretations;
  • improving the guiding case system;
  • establishing a system for higher people’s courts to record with the SPC their guiding-type documents and reference cases;
  • improving China’s case law system.

Judicial interpretations

The SPC regulations on judicial interpretation work date from 2007. Some later guidance on that topic was issued several years ago, but that guidance has not been made broadly available. So it appears that one signal that this provision is sending is that the 2007 regulations need to be updated. It appears likely that the SPC will harmonize the language in its rules with the 2015 Legislation Law. Other provisions are unclear. One guess (based on the SPC document on incorporating socialist core values into judicial interpretations) is that language about socialist core values will be incorporated into any amended rules on judicial interpretation work. The Supreme People’s Procuratorate (SPP) revised its rules on judicial interpretation work earlier this year, and it is possible that the SPC will harmonize some of the language in its rules with those of the SPP.

Another guess is that those rules will codify existing practices on drafting, discussions, etc.. As my blogpost (and recently published article) on the SPC’s Pilot Free Trade Zone Opinion details, the drafting process for judicial interpretations (and similar types of guidance) operates on the basis of long-standing practices. (My forthcoming article stuck in the academic publishing process has many more details on the drafting process for criminal procedure law interpretations).

This provision appears to be aimed at the SPC’s Research Office, which takes the lead in managing the judicial interpretation process and deals with ongoing criticism that the SPC allows inconsistent judicial interpretations to be issued. It is unclear whether the improvements mentioned will involve more public consultation than previously.

Guiding cases

I will leave detailed comments on how the guiding case system will be improved to others, as research by others (see Jeremy Daum’s article) tends to show that guiding cases are rarely cited. I surmise that the intent of the provision is to speed up the selection and approval process for guiding cases, as well as the use rate.

Local High Court Guidance

This language codifies the long-standing practice of local high courts issuing guiding rules applicable within their jurisdictions. As discussed in my article on judicial transparency, published earlier this year, senior legal scholar Li Buyun raised questions about the validity of local court guidance in his letter to the Legislative Affairs Commission of the National People’s Congress last year (2018). Article 104 of the Legislation Law forbids adjudication and procuratorate organs other than the
Supreme People’s Court and the Supreme People’s Procuratorate from making specific interpretations on the application of law. 2010 SPC guidance had normalized the long-term practice of higher people’s courts (and their equivalent in the specialized courts) in issuing documents, characterized as ‘”trial work documents” (审判业务文件) and issuing reference-type cases (参考性案例).

Evidence of the importance of the practice can be seen by the fact that leading law firms publish client alerts about important local court guidance. This provision calls for a filing for the record system (with the SPC) of higher court guidance and reference cases to be established. It is not clear whether this system (apparently intended to enable the SPC to monitor local guidance and reference cases better) will result in a system that provides greater transparency to these rules. I had noted varying transparency requirements for local court guidance in my article. The Gazette of the Jiangsu Higher People’s Court (pictured above) publishes its court guidance under the section “judicial documents” (司法文件). That Gazette also includes local reference cases, entitled reference cases (参考案例)。 Terminology for local reference cases is not consistent, with the Shanghai Higher People’s Court issuing cases with a referential nature (参考性案例).

Improving China’s Case Law System

I wrote about in greater length in this short academic article published in the Tsinghua China Law Review two years ago (and in this blogpost three years ago) on how non-guiding cases guide. This part of the #26 consolidates some of the provisions of previous judicial reform documents and signals that the SPC’s judicial reform office is focusing on how to provide better guidance to the lower courts on using non-guiding cases and other forms of guidance documents that are not judicial interpretations. One issue not specifically mentioned is the relative authority of guidance documents and judgments/rulings by courts. It is assumed that SPC decisions are more authoritative than lower court ones.

The first sentence addresses the use of other forms of case guidance and transforming this case guidance into written documents. The titles, authority, etc. of these guidance documents are likely to be settled over time. One type that I have observed is the specialized judges conference (专业法官会议)(mentioned in at least two 2017 SPC documents: Opinions on Putting a Judicial Responsibility System in Place and Improving Mechanisms for Trial Oversight and Management ;(Provisional) and the SPC’s Judicial Responsibility implementing opinion (最高人民法院司法责任制实施意见(试行)(Implementing Opinion), In these conferences, difficult issues are discussed and provided to the collegial panel involved, but the panel members are not bound by the views of the conferences. This academic study notes that it is a uniquely Chinese institution and has arisen because of judicial caution about deciding cases independently (可以说,专业法官会议是中国特色的法院内部向办案法官提供咨询意见的专门机构,是在走向审判独立的特殊过程中,对法官自由办案能力担心而产生的一种特殊组织), likely in the face of extensive and long term accountability for decisions.

Some portion of SPC specialized judges conference discussions has been consolidated in the form of documents, such as in the form of a conference/meeting summary (会议纪要).  The SPC’s #2 Civil Division (focusing on commercial issues) seems to be leading the way in publishing these meeting summaries–some of the summaries have been published in book form, also with updates published on the internet/Wechat–see this example.

The last sentence of #26 addresses the case law system. The increasing importance of non-guiding cases shows the strength of the case law system that the authorities rejected about 10 years ago. It is clear from Justice Hu Yunteng(currently president of the National Judicial College)’s recollections of the history of the case system with Chinese characteristics, that Judge Jiang Huiling, then his colleague at the China Institute for Applied Jurisprudence (and currently vice president of the National Judges College) had looked to jurisdictions outside of China to advocate that China establish a case law system (Justice Hu doesn’t specify whether Judge Jiang was looking to case law systems in civil or common law jurisdictions in the “West.”). Mark Jia (of Harvard Law School), in his 2016 article, cites Li Shichun of the Chinese Academy of Social Sciences to the effect that it was the NPC that opposed those seeking to establish a Chinese case law precedential system.
My understanding that the last sentence is intended requires judges handling a case to engage in similar case searches and to report on the results of those searches in certain circumstances (for example, to report on their search before the case is discussed in the specialized judges conference). My earlier blogpost discusses the 2018 document requiring prior case search.–the specific rules for prior case search are not yet in place. What should be searched is not entirely clear.  One knowledgeable person described prior case search as a tool for “catching valuable cases in the sea of cases.” My own understanding is that it will depend on the area of law.  It can be seen from the last blogpost the type of cases considered authoritive in criminal law, but the types of persuasive cases will differ in other areas of law. Prior case search is meant as a tool for the courts to apply the law more consistently (and consistent with the views of the SPC) (an ongoing goal of the SPC). It is also likely that new legal rules evolved in cases will eventually be crystalized in other forms of documentary guidance, be it local court guidance, an SPC policy document, or an SPC judicial interpretation.

On the topic of precedent, as I noted in my 2017 blogpost on the SPC’s implementing opinion on its judicial responsibility system, special approval within the SPC is required if a ruling in a case will be inconsistent with prior SPC rulings on the issue. It means that the SPC is seeking to improve the consistency of its judgments internally.

So it appears that we will be seeing further evolution over the next few years in the tools used by the Chinese courts to provide legal rules: judicial interpretations, guiding cases, local high court guidance and reference cases, other guiding documents, and prior cases, with many of these intended to strengthen the firm guiding hand of the SPC.

 

Law-related Wechat public accounts, 2018 update (1)

Screen Shot 2018-02-03 at 10.13.48 AM Wechat, as most people with an interest in China know, has become the preferred form of social media in China.  The legal community in China has taken to it too.

For the observer, it enables us to learn about new issues (or aspects of issues) that we didn’t know existed, and (depending on the topic), hear viewpoints other than the official one, or at least read hints of dissenting views. Those with the Wechat app on their smartphone can subscribe to these public accounts but it is also possible to find some these articles through an internet search. Note that the “Mr. Yong” about whom I wrote in 2016 lurks on Wechat, so articles published may disappear, although they often reappear elsewhere.

Some are official accounts of government entities, including the courts and others are public accounts (公众账号) established by companies, law firms, universities, societies, other organizations, or individuals. In November, 2018 the Cyberspace Administration of China said that tightened management of internet content producers would be a “new norm,: and Tencent reduced the number of permitted corporate public accounts from five to two and individual accounts from two to one.  More information on this development elsewhere.

Below is the first part of a guide to some useful law-related Wechat public accounts focusing on accounts related to the Supreme People’s Court (SPC) Please contact me through the comment function or email with additional suggestions.

The official Party and government accounts enable the user to keep current on the issues and latest Party and government position in that area of law–new policy, new legislation, and new reforms, or the official response to a current hot topic.  The Central Political-Legal Commission has one, the Central Supervision Commission, as do both the SPC and Supreme People’s Procuratorate, as well as their local counterparts. Academic journals have a different audience that requires more nuance.

As I’ve written before, Party/government authorities use Wechat public accounts to reach out to a public that is moving away from traditional media to smartphones. Party/government policy is encouraging courts to do so.  There is some but not complete overlap between articles that appear on an institution’s website and Wechat account. There is complete overlap when more political matters are involved, such as the latest important speech of a leader. Even some articles published in institutional public accounts may have a “netizen” tone and use netizen slang and images.

Institution Account name
National Supervision Commission 中央纪委监委网站
Central Political-Legal Commission 中央政法长安剑 (recently renamed, read here

Official accounts linked to the SPC

 linked to SPC and its affiliated institutions
Institution Account name Content
Supreme People’s Court 最高人民法院 Official view of SPC; also republishes Xinhua articles
People’s Court Daily 人民法院报 Official view of SPC; also republishes Xinhua articles
Institute for Applied Jurisprudence

 

(since July, 2018, under the new institute director, the account has published  fewer articles than previously)

中国应用法学研究所 Had previously carried accounts of conferences and academic talks, translations of foreign materials; other articles
China Applied Jurisprudence (academic journal)(from Sept., 2018) 中国应用法学 Publishes excerpts from journal articles (recent article included: article on people’s assessors pilot project; also republishes other articles of interest to editor; translations of foreign materials, including an excerpt from “Building a Diverse Bench” (NYU Brennan Center publication)
Journal of Law Application (academic journal affiliated with National Judges College 法律适用 Publishes excerpts from journal articles, some by judges, others by academics
Alternative Dispute Resolution Reform in China 多元化纠纷解决机制 Articles on alternative dispute resolution in China and foreign experience
Database Faxin (affiliated with the People’s Court Press) 法信 Case analysis, analysis of cases on specific issues
China Trial (journal) 中国审判 Excerpts from articles in the journal
People’s Judicature 人民司法 Excerpts from articles in the journal
Case Research Institute of National Judges College 司法案例研究院 Case analysis, excerpts from its academic journal (Journal of Law Application (Cases))
SPC Information Center 智慧法院进行时 Reports on informatization of courts
Administrative enforcement and administrative trial

 

行政执法与行政审判 Articles related to administrative litigation & enforcement

 

National Judges College 国家法官学院 Official account; articles reporting on the National Judges College &    its local branches
People’s Assessors 人民陪审 Articles related to the people’s assessor system & its reforms

 

Several SPC judges and SPC officials have Wechat public accounts.  They have obtained approval to have them.   Among them are:

Individual affiliated with SPC Account name Content
He Fan (何帆), head of the planning department of the SPC’s Judicial Reform Office 法影斑斓 Judicial reform
Yu Tongzhi (于同志), judge of SPC #2 Criminal Division, editor of 刑事审判参考 说刑品案 Excerpts from the journal, articles on criminal law and criminal procedure issues (some republished), including original articles by Judge Yu himself, generally on broader criminal law issues.
Wang Dongmin (王东敏), judge of the SPC #2 Civil Division 法律之树 Issues of civil and civil procedure law

As a general (but not directed comment), if judges on the SPC express views on issues that may come before them, it would appear to raise issues similar to those that arise in the rest of the world–the propriety of extrajudicial writing–a sample of writings on this issue from other jurisdictions found here. Persons who can provide relevant information concerning relevant SPC ethics provisions, and restrictions in civil law rather than common law jurisdictions, please contact me.

What to Expect in the Fifth Round of Judicial Reforms

Screen Shot 2018-07-29 at 8.10.14 AM

On July 24, the Chinese authorities held the first post-19th Party Congress national conference  on judicial reform in Shenzhen, entitled “Promoting Comprehensive Deepening of Judicial Reform.”  Holding the conference in Shenzhen is significant, because it is considered synonymous with reform and openness. The leaders on the podium in the photo above (members of the Leading Small Group on Judicial Reform) (all men), include:

  1. Secretary of the Central Political Legal Committee, Guo Shengkun (Guo);
  2. President of the Supreme People’s Court (SPC), Zhou Qiang;
  3. Chief Procurator General Zhang Jun;
  4. Central Military Commission Political Legal Committee Party Secretary;
  5. Minister of Public Security;
  6. Minister of State Security;
  7. Commander of the People’s Armed Police.

Attendees of the conference included the Party Secretaries of the Political Legal Committees of all provinces/autonomous regions/cities, and likely senior leaders from all of the systems.

Readers of this blog will not be surprised that comprehensive deepening of judicial reform was the subject of the conference as a December, 2017, blogpost flagged that the new phraseology is “deepen the reform of the judicial system with comprehensive integrated reforms” (深化司法体制改革综合配套改革) (and there is a significant overlap with some of the issues Judge Jiang mentioned). The language is found deep in Xi Jinping’s 19th Communist Party Congress Report.

The quick (and incomplete) summary below is of some of the court-related issues from the report of Guo’s speech at the conference that He Fan (head of the planning section of the SPC’s judicial reform office) posted on his Wechat public account.  He was one of the many attendees.   None of the analysis below (in italics) should be attributed to him.

It can be expected that the court-related issues will be incorporated into the next judicial reform plan outline. What is on the court-related reform list?  What issues remain unresolved?

  1. Strengthen and optimize Communist Party leadership, Scientifically position the responsibilities and boundaries of the Party Committee, Political and Legal Committee, strengthen functions such as overall coordination, planning and deployment, supervision and implementation.   This of course listed first.What does this mean in practice for judicial system and particularly the operation of the criminal justice system, such as the ongoing campaign against organized crime (see this earlier blogpost)? 
  2.  Clarify the functions of the four-level courts,–improve the SPC circuit courts’ working mechanism; establish the Shanghai Financial Court, steadily expand the Internet Court pilots; explore the deepening of the reform of cross-administrative district courts and procuratorates, and explore the establishment of a national-level intellectual property appeal hearing mechanism.

Developments have occurred on some of these. The Shanghai Circuit Court will start operations soon, with regulations on its jurisdiction just issued and well-regarded judges appointed to senior positions.  The mention of an intellectual property appeals court is significant, as that has been mentioned in earlier government documents and it is on the wish list of the intellectual property law community.  The cross-administrative district courts are mentioned in the previous court reform plan, with some pilot projects. On SPC’s circuit courts are taking on a greater percentage of the SPC’s cases, (as mentioned earlier on this blog) SPC judges work in the circuit courts while their families remain in Beijing, so at some personal cost to judges involved.

3.  Improve institutional management, promote a combination of flat management and professionalization, adhere to the simultaneous transformation of comprehensive and operational entities, and promote the return of judicial personnel to the front line.  As this blog has repeatedly mentioned (and He Xin/Kwai Hang Ng have detailed in their new book, Embedded Courts), Chinese courts (as courts and political/legal institutions) have large “comprehensive offices” (engaging in functions not directly related to judicial work).  A recent study of several courts in Zhejiang province published in an academic journal affiliated with the China Institute of Applied Jurisprudence detailed the percentages. With the reduction in the number of judges and the explosion in the number of cases, there is a great amount of pressure to allocate more judges to the “front line” of handling cases.  Judges with some measure of seniority inevitably have both administrative and judicial responsibilities.

4.  Improve the supervision management mechanism of the president and division chiefs, and standardize the functions of the judicial committee, the committee of court leaders, which has a number of functions, often serving to diffuse responsibility for difficult cases  (Embedded Courts has more insights on this, and this blog has an earlier post on proposed reforms and related problems). Improve the professional judges meeting (mentioned in last year’s SPC regulations, I hope to have something more to say on this in a later blogpost). Improve the disciplinary mechanism of judges. (It would be an improvement to have greater transparency on the results.) Accelerate the construction of an electronic file with the simultaneous generation of the case and the entire process online case handling system.  This has been an ongoing proposal.  Shenzhen is taking the lead with this. Also it would be an improvement to have greater transparency on cases filed.

6. On judicial “standardization” –improve reference to similar cases, case guidelines, the guiding case mechanisms, implement mandatory search system for similar cases and related cases. We will carry out an in-depth national judicial standardization inspections.  This is sending two signals–greater implementation of China’s case law system (as I have written about earlier), and the continued use of government/Party inspection campaigns (reflecting the administrative aspects of the Chinese courts).

7. Improve the  performance appraisal system. Scientifically set the performance appraisal indicator system for handling cases, and guide judicial personnel to handle more cases, handle cases quickly, and handle cases well. Use big data technology to accurately measure the quality of the case and strive for convincing results. The assessment results are used as an important basis for the level of salary, job promotion…This is an important and unresolved issue for the Chinese courts–how to appraise judges.  Outside of China, many scholars have written about this, including Carl Minzner, William Hurst & Jonathan Kinkel. A good deal of research has been done within the Chinese court system concerning this (see this summary of a report published earlier this year by a team of Guangdong Higher People’s Court judges–discussing how the “civil servant/administrative model” predominates and suggesting that China should be looking to other jurisdictions for models, as judicial evaluation is a worldwide issue.  Case closing percentages continues to be very important for Chinese judges.  Is big data technology the answer?  Is this consistent with encouraging judges to write more reasoned decisions?  This appears to signal  a continuation of the judge as factory worker system described in this blogpost

8. In the area of criminal law, and criminal procedure, there are mixed developments.  On the one hand, greater encouragement for using the plea bargaining with Chinese characteristics (please see Jeremy Daum’s deep dive into the pilots). The merging of the arrest and prosecution stages is also mentioned.  Guo also mentioned  measures to enable appointing defense counsel in death penalty cases, having full coverage of defense counsel in criminal cases (Jeremy Daum has comments also on the system of stationing lawyers in detention houses), requiring lawyers to represent petitioners in criminal collateral appeals cases, as well as greater use of live witnesses at trial。  The National Judges College academic journal Journal of Law Application just published an article by a Beijing Higher Court judge, reviewing the duty lawyer scheme, with analogous findings to Jeremy’s.

9.  For those interested in how the supervision commission is/will affect criminal cases, Guo mentions establishing a system for linking the supervision’s investigatory system with the criminal procedure system (said to improve the battle against corruption, the question is the extent to which individual rights are protected).

10.  On foreign related matters, Guo mentions innovating foreign-related work, and improving cooperation on international enforcement and judicial cooperation.  These continue to be difficult issues, with no likely resolution in sight, particularly criminal and also civil.  As I have mentioned before China is participating in the drafting of the Hague Convention on the Recognition and Enforcement of Foreign Judgment, but there are major inconsistencies between the provisions of the draft convention, and the Choice of Court Convention which China signed last September.

Guo highlights improving an initial appointment system for judges and procurators, expanding open recruitment so that talented people will be attracted to becoming and remain judges.  He calls for better coordination between the law schools and professional training, systems for provincial level appointment of judges (and procurators), with better policies on temporary appointment (挂职) (a system used for academics to work in the system for a period of one or two years, and judges/procurators from higher levels to work at the basic level or in a poorer area), exchanges, promotions, and resignation.

In his recommendations, Guo tips his hat to judicial (and procurator) dissatisfaction with status and pay with his statement “uphold resolving a combination of ideological and practical issues, motivate cadres and police to the greatest extent possible.” 坚持解决思想问题和解决实际问题相结合,最大限度调动政法干警积极性”-as this blog has reported, a combination of those issues, excessive work, and significant amounts of time allocated to “studying documents” has led younger experienced judges (and procurators) to decide to resign.

 

 

 

Why are Chinese judges so stressed?

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“Dear litigants”

The photo above was viral in legal Wechat groups in early February–a notice in the lobby of a Guangxi district court advising litigants to use mediation or arbitration because the judges in the court are overworked, overstressed, and voting with their feet to leave the courts.  The notice gives the court’s 2017 caseload (36,476 cases) and prediction for 2018 (over 40,000) and says fifteen percent of the judges have quit, retired, or transferred out of the courts and judges’ assistants are leaving as well.

How many Chinese judges are there?

SPC President Zhou Qiang reported to the National People’s Congress Standing Committee in November 2017 that there were 120,128 quota judges/judicial post judges(员额制), a reduction from 211,990.   Some of those judges have become judicial assistants, while others have been transferred to administrative roles within the courts.

It appears that the authorities decided to reduce the headcount of Chinese judges by comparing the percentage of judges in China with those in major jurisdictions. The readers of this blog know (and Chinese judicial reformers know clearly), the structure of the Chinese courts is quite different from those in other jurisdictions, whether civil or common law systems. However, once the reduction had been approved by the highest political authorities,  those questioning the wisdom of this decision  run the risk of improperly discussing (or distorting (歪曲)) judicial reform (妄议司改), a variation of “improperly discussing Central policy (妄议中央).

Chinese courts are a cross between a court and a Party/government organ, with personnel in administrative offices such as the political department (政治部), general office (办公厅), supervision bureau (监察局). Senior personnel such as the court president, vice presidents, and division chiefs, have a significant portion of their time taken up by administrative matters.  The judicial reforms now require senior personnel to hear a small number of cases per year and according to President Zhou Qiang, that number is up 32% (the base number is unknown).  Of the 120,990 judges who have the status of judge, 85% of them hear some number of cases. Statistics on the number of judges actually hearing cases are hard to pin down.

We do not know how many judges have left the Chinese courts in 2017 or 2016 by quitting or transferring to a government department.  Presumably, the head of the Supreme People’s Court’s (SPC) Political Department (in charge of personnel) does, but those statistics seem to be confidential.  Based on partial information however, judges are continuing to leave the courts, from the SPC on down.

From a survey done by a post-doctoral student at the China Institute of Applied Jurisprudence of the SPC in 2015 (further detailed below), close monitoring of Wechat articles, and my own personal observations, those who remain in the judiciary have a high degree of stress.

Stresssed Chinese judges and their job dissatisfaction

In the spring of 2015, then Beijing Higher People’s Court Judge Hu Changming and a post doctoral student at the SPC’s China Institute of Applied Jurisprudence, but now a researcher at the Chinese Academy of Social Sciences Institute of Law, conducted a job satisfaction survey among Chinese judges, published in the prestigious China Law Review and summarized in SPC media. Hu previously won awards for his writings as a judge. He later published an article on Wechat (originally published in the defunct Wechat account “Home of Judges” that (according to this report) led to his punishment for distorting (歪曲) judicial reform.

Hu received 2660 responses from judges working in all four levels of the Chinese judiciary.  Although the ongoing trope about the Chinese judiciary outside of China is that most Chinese judges are former People’s Liberation Army officers, Judge Hu’s survey found that most judges had at least an LLB or master’s degree in law, with small numbers of judges with less than an LLB or a Ph.D.

The pie chart below (from Hu’s study) is of responses concerning job satisfaction (extremely satisfied 1.28%, relatively satisfied, 11.09%, neutral, 30.53%, not very satisfied 34.89, and very dissatisfied, 22.22%).Screen Shot 2018-02-21 at 3.58.34 PM

His survey further revealed that practically all (94.47%) of judges surveyed had considered quitting the judiciary, of whom 57.37% had considered it seriously, and only 5.53% had never considered it.  His survey had more male than female respondents, and more middle-aged than late career judges, likely affecting these results.

Why are Chinese judges dissatisfied?

According to Hu’s 2015 survey, Chinese judges are dissatisfied for both work-related and benefits-related reasons. This is consistent with my earlier research.   This post will look at some of the work-related reasons.

Work-related reasons

Both the survey and other observations show that Chinese judges, particularly those in basic level courts in China’s most developed areas, have too much work.  One major reason was the decision in 2015 to change the case filing system. Six weeks into the case filing reform I predicted “greater stress for fewer judges and other judicial staff” and at the end of 2015 noted the SPC was “putting a positive spin on what is a highly stressful situation for frontline judges.”

The caseload in the busiest courts is large and on the increase yearly(see the chart below for the caseload in first half of 2017 and percentage increases). The Wechatosphere frequently reports on the heavy caseload in the country’s major courts and the stress on frontline judges. In September, 2017, I reported on the situation for frontline judges pre-19th Party Congress.

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1. Pudong/Shanghai; 2.Chaoyang/Beijing;3. Yuexiu/Guangzhou; 4. Baoan/Shenzhen; 5. Futian/Shenzhen; 6. Haidian/Beijing; 7. #1/Dongguan; 8. Jingan/Shanghai; 9. Western District/Beijing; #1/Zhongshan

For domestic cases, judges are under tight deadlines and their work computers will flash a red signal when a case isn’t closed on time. Although unreasonable performance targets were to have been abolished, Wechat articles and judges who I was able to disturb at year’s end mentioned that they were under pressure to close cases by year end so that their court could achieve a high closing rate, documenting the closing rate pressure mentioned in September, 2017.

Another source of pressure for judges is the lifetime responsibility system, which two Chinese judges writing in an academic law journal called the “sword of Damocles hanging over judges” ( 法官办案责任追究是时刻悬挂在法官们头上的“达摩克利斯之剑”), analyzing the drawbacks with the standards and their implications for judges.  Hu’s survey found that almost half of them felt that the responsibility system for mistaken cases was unfair and this is also shown in Wechat and articles in court media as well as comments by individual judges.

According to Judge Hu’s survey, judges regularly work overtime, some for over six months a year, and most mention that they have inadequate administrative support. This may change over time as some law graduates are willing to take on positions as judge’s assistants, but as the sign above indicates, some of them are leaving too, but from the Wechatosphere, they feel stressed as well. As mentioned in this earlier blogpost, interns are a welcome source of additional brainpower, although in experience of my students, at least, interns need to depend on their parents or school scholarships to cover their expenses during their internships.

Then there is the matter of what work occupies their work day.  In addition to sitting in court, reading case files,  or drafting judgments, Chinese judges have to receive petitioners, deliver litigation documents, and enforce judgments, as well as publicize law to “the masses (including soldiers).”

Additionally, meetings of various types take up their time as well.  Since the Communist Party has been focusing on raising the ideological level of the judiciary, it seems likely that for frontline judges, meetings focused on the latest Party documents take time away from cases.

As this blog has mentioned previously, the judicial reforms for the most part have retained the pyramid structure of Chinese courts, where the court president, vice presidents, and division chiefs have administrative authority over judges.  And even for those reformed courts that have a flat administrative structure, the authority of the head of the court (or tribunal and the judicial committee still remains in place, although the judicial reforms call for new committees to be put in place relating to both appointments and judicial punishment.

Will the “deepened reform of the judicial system with comprehensive integrated reforms” (深化司法体制改革综合配套改革) (discussed in December’s blogpost) deal with the stress of China’s judges and retain (and attract) the elite corps that Chinese judicial reformers envision?  We will need to wait and see.

 

 

 

 

 

“Clerking” for the Supreme People’s Court

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SPC President Zhou Qiang & Political Dept head Xu Jiaxin with 3rd group of interns, including a Peking University School of Transnational Law student

One of the unexpected influences of the United States system on the Chinese courts is the Supreme People’s Court’s (SPC) elite internship program, instituted in 2015.  (The German system of requiring law students to intern in courts, too, is an apparent influence). The word of mouth is that the SPC leadership noted that the US Supreme Court clerkships attracted top law students and wanted to do something similar in China.

The program is a small example of “foreign beneficial experience,” about which I wrote about earlier this year. The official position on borrowing/referring to foreign legal models is set out in the 4th Plenum Decision (as I wrote earlier):

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

President Xi Jinping’s further gloss on this is:

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

Unlike Supreme Court clerkships, which are done by recent law graduates, SPC interns are generally required to be students, generally at the master’s or PhD level.  The SPC selects several dozen outstanding students (the number seems to vary) to participate in the sixth month program.  They must be recommended by their law schools (each runs its own selection process)–see this notice by China University of Political Science and Law.  Applications are made to the Political Department of the SPC (it handles personnel matters) rather than to individual judges.  The program is part of the SPC’s outreach to educational institutions and efforts to create a more elite judiciary.

While most requirements are in line with internships in most parts of the world and the stress appears to be on outstanding academic qualifications, among the requirements for the program is having a firm political stand (政治立场坚定) (it seems to be standard for internships in Chinese government/or government affiliated institutions) and the application form asks about the political view of family members.

Preference is given to Beijing area law schools because no housing is provided, and from the lists of accepted interns, it is clear that more Beijing area interns are accepted. For those students from out of town, that means that they needed to find their own accommodations, but all can eat for free in the SPC cafeterias.  For Beijing based students, it likely means a long commute from the law schools based in the suburbs to be at work in the early morning.

Each intern is assigned a mentor, generally a presiding judge (审判长), therefore judge with long years of experience.  Interns are primarily assigned to the substantive/trial divisions (业务部门)  of the SPC and also other SPC offices including:

environmental and natural resources division;

criminal divisions;

State Compensation Office;

Administrative Division;

Enforcement Bureau;

Trial Supervision Division

Civil divisions;

Judicial reform office.

It seems that many were confronted with being assigned to work in areas of law that they had never before encountered, or being involved in work they had never before done. Some worked on judicial interpretation drafting,  many sat in on collegiate panel discussions of cases, assisted in case review, and assisted the teams of judges working on death penalty review while many helped their mentors with related research and administrative matters, finding their work reviewed meticulously, and spending long hours along with their (overworked) mentors.  Given the highly theoretical orientation of Chinese legal education, particularly at the graduate level, the interns (and their mentors) likely encountered major challenges along the way.

The circuit courts, too are taking interns, although they each seem to have their own requirements. The #2 Circuit takes interns from the law schools in Northeast China, the#6 Circuit Court from the Northwest provinces, the #3 Circuit from law schools within its Circuit, while the #1 Circuit Court has taken interns from the Shenzhen-based law schools (School of Transnational Law and Shenzhen University) as well as law schools in other parts of the country.

As part of its outreach to the academic community, the SPC also has a smaller program for legal scholars, seeking to attract elite academics.  That program limited to Chinese nationals from Chinese law schools, who generally should not be over the age of 50!

 

 

 

 

China’s 19th Party Congress & Judicial Reform

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29 March meeting of Party leading group on judicial reform

Meng Jianzhu, Politburo member and head of the Communist Party Central Political Legal Committee, held a meeting in late March (photo above), to convey Xi Jinping’s message–those in leadership positions must do all possible to ensure that judicial system reform responsibility targets are basically achieved before the 19th Party congress (努力实现党的十九大召开前基本完成司法体制改革努力实现党的十九大召开前基本完成司法体制改革任务的目标). For those not familiar with Chinese political-legal jargon, “judicial system” (司法体制) means here the political-legal institutions–the courts, procuratorate, public/state security, and justice administration.   “Responsibility and targets” are also Chinese political jargon. Xi Jinping’s message dates from early January, when he highlighted this goal in instructions transmitted to the Communist Party Central Committee’s national political legal work conference.  He emphasized that the cornerstone of the judicial system reform is the judicial accountability system.  Part of the message  is that 2017 is a critical time, during which there is a “decisive battle” for deepening judicial reform, the battle intended to achieve those targets.  “Decisive battle” is also a core part of Chinese political jargon.

Since late March, Supreme People’s Court (SPC) President Zhou Qiang and other senior SPC leaders have been publicizing the target of completing judicial system reform, particularly the judicial accountability system, before the 19th Party Congress.  The SPC leadership has been doing that through meetings, both of the SPC itself (and the circuit courts) and the provincial-level courts and through SPC media outlets. President Zhou Qiang did so during a recent visit to Anhui, while on April 7, executive vice president Shen Deyong, vice-president Li Shaoping, and Political Department head Xu Jiaxin transmitted that message on a nationwide court video conference. This message is likely to be repeated in the months leading up to the 19th Party Congress.

In recent days, the SPC’s judicial reform office has been explaining these reforms to the public that reads SPC professional publications, such as the People’s Court Daily and China Trial, with some of the core content in the form of FAQs.  The reforms outline the way a post-reform court should operate. Some of the points were previously set out in the SPC’s February, 2017 judicial reform white paper.

A brief summary of the responses follows below:

  1. Why is the responsibility system the critical part of the judicial system reform (司法体制改革的“牛鼻子”)? Answer: because Xi Jinping said it, and judicial power and accountability/responsibility go together; accountability limits power.
  2. What is the responsibility of a presiding judge? Answer: take the lead in a case, by outlining the hearing of the case, allocating responsibilities, taking the lead at trial and in post-trial discussions, and in cases of significant differences of opinion, submit the case to either a specialist judges’ committee or judicial committee.
  3. How should the system of court president’s and division chief’s hearing cases be improved?Court leading cadres have multiple identities, including Party administrative responsibilities, and they must concurrently plan, announce and implement Party construction and adjudication [substantive] work, and for those who are quota judges, they should hear some cases too. Those cases should depend on a person’s background and strengths and should be major, difficult, complicated, or new cases which are representative.
  4. What is the relationship between judicial teams and court divisions? Answer: A Judicial team is comprised of judges, judge assistants, clerks and other auxiliary personnel, formulated respective lists of responsibilities of judges, judge assistants, and clerks, established the new judicial work mechanism with judges at the core and the team members cooperating with each other closely,
  5. When judges are randomly assigned to cases, how should the judge in charge of the case be determined? Answer: random selection should be primary, supplemented by assigned cases.
  6. How should the reform of having judges sign judicial documents [judgments/rulings, etc.] be understood? Answer: Judges who hear cases should sign their judgments and senior court leaders should no longer review or sign the judgments on the cases when they had not been personally involved.
  7. How should the reform of having a conference of professional judges be understood? Answer: judges in different substantive areas can organize committees to provide their views to other judges on problematic issues, reducing the number of cases referred to the judicial committee.
  8. In courts where there are many judges, how large should the conference of professional judges be? Answer:basically, it depends on the profile of the cases and the number of judges.
  9. What type of management and oversight responsibilities will a court president have besides hearing cases? He (she) will monitor judgments and rulings, sometimes recommending the matter go the judicial committee (see further details in the white paper).
  10. What type of management and oversight responsibilities will a division chief have in addition to his responsibilities hearing cases? As delegated by the court president, a division chief can review matters such as extending a defendant’s period of arrest or detention, or other compulsory measures or extend the period for submitting evidence.
  11. When judicial power is delegated down in judicial reform, how can it be monitored? The old system of having senior judges sign off on judicial documents, including ones that they had not heard, and they are also forbidden from approving cases in an indirect way, such as giving oral instructions. Senior judges should be working on a macro, not micro level.
  12. How can the judicial committee reform move forward reliably? Answer: from now on, the focus of the work of judicial committees should change from discussing individual cases to summarizing experience, and discussing major cases, with exceptions (foreign affairs, social stability, etc. (see the analysis in the white paper).

Comments

These questions and answers reflect the challenges the SPC faces in moving the Chinese court system (including its own operations) away from the traditional model that fuses judicial authority with traditional Chinese [Communist Party] administration.  The post-reform concept of the judiciary is a more professional judiciary that gives judges greater professional autonomy (and therefore can retain the sophisticated talent that is leaving for law firms) but retains control in specified areas. How successful will these reforms be in moving courts and judges away from old patterns of behavior remains to be seen. It seems to be happening in at least some of the pilot courts (from my discussions), but that does not mean these will be successful in other less sophisticated areas.  Presumably, the SPC’s judicial reform office is monitoring the pilots in a more systematic way.

The reasons for stressing the importance of accomplishing these reforms by the 19th Party Congress are assumed, not explained. I understand it as intended to show that the judicial system reforms that have been undertaken in recent years are correct, have accomplished what they were intended to accomplish, and are effective in improving China’s judicial system.  I expect that the system described above is reflected in the redrafts of the People’s Court Organizational Law and the Judges’ Law.  To what extent will these reforms (apparently accompanied by increased political study) be able to retain the talent currently in or being recruited into the courts?