“Clerking” for the Supreme People’s Court

20170824220614_20886

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!

 

 

 

 

Advertisements

China’s 19th Party Congress & Judicial Reform

20170330202515_82905

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?

 

Takeaways from the Supreme People’s Court 2015 work report

20160313104344_51387The Supreme People’s Court (SPC)’s 2015 work report has many takeaways for different audiences.  The apparently formulaic report took five months to draft, involving comments and input by many within and outside of the SPC (this article  describes the process, as did my earlier blogpost), most likely involving clearance by the Central Leading Group on Judicial Reform.  It was drafted to show certain accomplishments, send certain signals–show that judicial reform is on the right path and is successful, particularly that the court leadership and the courts are doing their part to fulfil the tasks set for them by the Party/state leadership.  This year’s report has three sections, rather than the usual two, with one section summarizing judicial reform accomplishments. This post will focus on highlights of the overview of 2015, and leave judicial reforms and tasks for this year for another day.

In a sign that the diminished attention spans have come to China, the SPC has come up with graphic and even musical versions of the report.

Statistics to convey current message

url

This short book, explaining how statistics are used to convey certain messages, was originally published in the 1950’s and translated into Chinese about 10 years ago (and given to me when I was 11 by my parents). It is a useful reference when puzzling out what SPC court statistics are saying and mean, because as this  Wall Street Journal article noted, the categories used in the annual reports often shift from year to year, making comparisons difficult, and breakdowns of specific categories are generally missing. The reason for that is the report (including the statistics) are meant to harmonize with the latest government/Party policies and be on message. The SPC is reforming judicial statistics and seeking to make better use of big data, but the fine details are not in this report.

Takeaway #1–Caseload Up Significantly

e8fade90gw1f1v665qoeqj209i0g4tab

 

The caseload of all levels of courts were up significantly, primarily because of the docketing reforms implemented last year (mentioned here).  Civil (family, inheritance, private lending) and commercial cases account for most of the growth.

Cases heard at the Supreme People’s Court were up 42.6% compared with 2014 (accepted 15985, concluded 14,135). with most of those heard at headquarters in Beijing rather than the two circuit courts.    The local people’s courts heard 19,511,000, and concluded 16.714 million cases, with large increases  in the amounts in dispute, an increase of 24.7%, 21.1% and 54.5%, respectively. This seems to exclude cases heard in the military courts.

Performance target reforms mean that judges are no longer under enormous pressure to conclude cases by year end (although some local court officials may not been on message).

The bar chart below compares 2014 and 2015 numbers for criminal, civil, commercial, administrative, and enforcement cases respectively.Screen Shot 2016-03-15 at 7.16.13 pm

Criminal and Commercial cases up–Takeaway #2

Just briefly on the criminal cases, as the overview graphic of commercial cases is linked to criminal cases-criminal cases are up by 7.5%. Significantly, criminal cases involving refusal to pay wages were up 58%, with last year’s report revealing that 753 persons were convicted, which means that 2015 convictions were close to 1200. a\Analysis of  the statistic of 1419 persons convicted of state security and terrorist crimes can be found here.

e8fade90gw1f1v665sc3uj209i0ugq6mCommercial cases were up 20% (3,347,000, with 120,000 intellectual property cases (up from 110,000 in 2014).  This is likely linked to the new intellectual property courts, but I will cede further analysis on this to my fellow blogger Mark Cohen of Chinaipr.com.  Again, tiny numbers of foreign-related (6079), but up from last year (5804) and Hong Kong, Macau, and Taiwan-related cases.  Cases involving subsidiaries of foreign companies are not in this category–this is a commercial case with a foreign party. The maritime courts heard 16,000 cases, the large increase apparently also attributable to the case registration system.  The language in the speech (making headlines) about making China an international maritime judicial center reflects language in previous speeches Zhou Qiang gave in China (analyzed here), but unnoticed until the NPC report.

Private lending disputes up significantly

The courts heard 1,420,000 private lending disputes, up from 1,045,600 in 2014.  Further background on private lending disputes can be found in my previous articles for the Diplomat. Last year the private lending disputes were categorized with the civil cases, rather than commercial cases.

SPC doing its part for greater government policy

The SPC issued policy documents on One Belt One Road (see this analysis of its implications), the Beijing/Tianjin/Hebei area, and Yangtze River Economic Belt to implement government policies. Those strategic projects are priorities for government.

Takeaway #3 Commercial disputes

Screen Shot 2016-03-15 at 8.33.59 pm

In 2015, 1,053,000 financial disputes were heard and 100,000 insurance disputes, as well as 4238 securities fraud and insider trading cases, compared with 824,000 financial disputes in 2014, a number which included insurance cases.  This speaks to the weakness in the Chinese economy.

The bar chart to the left illustrates percentage increases in product liability (in 2014 there was also a large increase), reputation, real estate development (see this blogpost), loans, sales contracts, labor (up 21%!), and rural residential land disputes. The report flags 1400 bankruptcy cases and highlights pilot projects.

In another indication of problems with the real estate sector, Zhou Qiang mentioned “mass real estate disputes” and the expert handling by the Jinan court (in coordination with the government) of a large villa project in Jinan that encountered financial difficulties in 2008 (see this description) and led 2000 purchasers to petition in Beijing and even surround the Jinan Party Committee, Shandong Party Committee, and the Central Inspection Group that was on site. In 2014, the Shandong government decided to use “legal thinking” to involve the Jinan intermediate court.

An area for commercial lawyers to monitor is unfair competition and anti-monopoly, where the regulators are working on a stream of regulations. Last year the Chinese courts heard 1802 cases.

Takeaway #4– Big jump in civil disputes

Screen Shot 2016-03-15 at 5.38.32 pm

 

The pie chart on left shows the distribution of first instance civil cases–26% family (1,733,000), 1.5% inheritance, 5% ownership disputes, 17% personal rights (privacy, portrait, reputation), 22.8% private lending, 7.32% labor disputes, including 300,000 migrant worker wage arrears (and other cases related to rural residents rights (拖欠农民工工资等涉农案件 30 万件).  Consumer, education, housing and employment accounted for 720,000 cases.

For environmental cases, 78,000 civil cases were concluded, along with 19,000 criminal cases.

 

Takeaway #5 Big jump in administrative cases

The amendment of the Administrative Litigation Law last year, the docketing reforms, and the decision to push disputes off the streets and into the courtroom has been a large increase in administrative disputes, although the baseline was very low.  In 2015, 241,000 first instance administrative cases were accepted, up 59% from the year before, with 199,000 concluded.  Reforms have been undertaken to move administrative cases outside of the area in which they arise, which is another reason that some persons or entities have been willing to file.  The bar chart has the percentage increase in different types of administrative cases, with an 176% increase in education cases. The remaining categories (from the left are: public security, trademark, pharmaceutical, construction, transportation, energy, and the environment.

(Black & white charts from SPC work report, thanks to Josh Chin of the Wall Street Journal).

Screen Shot 2016-03-15 at 10.51.25 pme8fade90gw1f1v66664yyj209i0tstbr-1

Bulking up the Chinese maritime courts

December, 2015 Maritime courts conference

December, 2015 Maritime courts conference

The South China Sea continues to be in the news. But one of the many unnoticed developments related to the Supreme People’s Court (SPC) and the Chinese seas is the recent “bulking up” of the Chinese maritime courts.

The Chinese maritime courts, established 30 years ago, are said to be the busiest in the Asia Pacific region, and hear cases arising in Chinese waters, coastal and inland. In 2015, the maritime courts heard about 31,000 cases, a 43% increase year on year, with cases involving foreign parties accounting for about 15%.

The “bulking up”  of the maritime courts has occurred through the following recent events:

  • establishment of a maritime court training campus and research base;
  • two conferences convened by the SPC in December, 2015  on reforms to the maritime courts; and
  • two February, 2016 judicial interpretations revamping the jurisdiction of the maritime courts.

These developments are responding to both international and domestic factors and link to earlier government/Party initiatives

This blogpost will highlight some of the international developments.

Party initiatives guiding the reform of the maritime courts

Reforming the maritime courts was foreshadowed in the 4th Plenum Decision, Supreme People’s Court 4th Five Year Plan for reforming the courts and more specifically in One Belt One Road Opinion:

From the 4th Plenum:

Adapt to the incessant deepening of opening up to the outside world, perfect foreign-oriented legal and regulatory systems, stimulate the construction of new structures for an open economy. Vigorously participate in the formulation of international norms, promote the handling of foreign-related economic and social affairs according to the law, strengthen our country’s discourse power and influence in international legal affairs, use legal methods to safeguard our country’s sovereignty, security and development interests.

From the court reform plan:

Reform the maritime case jurisdiction system. Further clean up the system for trial of maritime matters. Scientifically determine the scope of jurisdiction for maritime courts, establish working mechanisms better suited for maritime courts hearing of cases.

The One Belt One Road SPC Opinion highlighted some of the current reforms to the maritime courts, in some detail.

SPC new training center

December’s national maritime courts conference was held in Qingdao, where the maritime court training campus was established.  SPC President Zhou Qiang, who presided over the conference, described its purpose as:

to implement the decisions and arrangements of the CPC Central Committee, to accelerate the trial of maritime personnel training, promote maritime judicial theory and innovative practice.  It is an important measure for promoting the development of maritime trial work and advances international maritime justice.

A senior staff member of the Central Political Legal Committee and officials of Ministry of Foreign Affairs, State Ocean Administration, and other government agencies also attended the conference.

New regulations on jurisdiction of maritime courts

As mentioned above, in February, 2016, two regulations on the jurisdiction of the maritime courts were issued by the SPC.  Those regulations had been previously highlighted in several conferences and SPC documents, including the November, 2014 4th National Work Conference on Foreign-Related Commercial and Maritime Adjudication, OBOR Opinion, and December, 2015 Maritime Courts conference.  These regulations had been issued for less than two weeks in November for public comment, making it difficult if not impossible for interested foreign parties to comment.

One of the new regulations relates to the geographical jurisdiction of several maritime courts, principles for determining jurisdiction in administrative cases and objections to jurisdiction.  The other expands the scope of cases that can be heard by the maritime courts, setting out over 112 categories of cases that can be brought. In the section on ocean and sea navigable waters exploitation and environmental protection related disputes, ocean and sea navigable waters construction disputes are included, such as underwater dredging construction, land reclamation and ..artificial islands.

International maritime justice

Zhou Qiang had the following to say about the goals of reforming the maritime courts to improve their international  prestige.

  • Make the maritime courts  internationally influential.  We have already established ourselves as the Asia Pacific area maritime judicial center (确立了亚太地区海事司法中心的地位).  (A corollary to this (derived from conference presentations) appears to be a push to move the locus of maritime dispute resolution from London and other centers in Europe to China, where Chinese parties will encounter a more familiar dispute resolution system);
  • Increase China’s influence over the development of international maritime rules.  Improve China’s contribution to international maritime law, effectively safeguarding national sovereignty, security and development interests. (This is directly related to the 4th Plenum Decision.)
  • Strengthen the sense of national sovereignty (要强化国家主权意识), exercise jurisdiction over all types of maritime development and utilization of marine waters within the jurisdiction of the country.  This refers to all the marine waters China claims in the South China Sea and elsewhere, according to a Chinese maritime law expert.

Commercial issues

From comments by (foreign) maritime law practitioners, it appears that major European and American shipping companies have concerns about the Chinese maritime courts.  Concerns include:

  • Chinese courts, particularly the maritime courts, have repeatedly refused to enforce choice of court clauses when the chosen forum has no actual connection with the dispute.    Chinese maritime courts rely on the principle in Article 34 of the Civil Procedure Law that the choice of court selected by the parties must have a connection to the matter (although China’s choice of law legislation does not require a choice of law to have a connection) to disregard choice of courts clauses in bills of lading or other documentation, even if  proceedings have begun in other jurisdictions. This often occurs in cases involving bills of lading.
  • Related to this is that the Chinese maritime courts are sometimes the site of parallel proceedings, when there may be proceedings elsewhere in the world relating to the same dispute.  Some of these cases were described in a talk at the University of Hong Kong by Professor Vivienne Bath of the University of Sydney and will be incorporated into a forthcoming article.

The larger issue, of course, is that while the Chinese maritime courts now include some very highly trained and experienced judges, the emphasis on Chinese national interests and national sovereignty leads non-Chinese and private enterprise litigants to question whether their dispute will be considered fairly.

 

 

 

 

Why is assigning responsibility for wrongful convictions in China so difficult?

d397e647d9fea2da22ef78a1f4a2ecc6At least two recent articles in the Chinese media provide some answers to the question of why assigning responsibility (within the courts) in wrongful conviction cases (known in China as “mistaken cases”) is so difficult. ( A recent  New York Times article has previously discussed the question as well and provided commentary by several well known authorities.) This brief blogpost looks at these two recent articles, which provide additional insight.

  1.  “Russian doll” system of committee decisions

The first response can be found in an article in the official Chinese press, published 20-21 February,  entitled “China’s judicial reform stepping into a deep water area facing people, power, and money.” The article sets out a response to the dissatisfaction of the public (and experts), which captures, in officialese, the core of the reason–decisions in high profile court cases are made in through a “Russian doll” (Matryoshka, the Russian nested doll) set of committee decisions.

Russian nesting dolls (from Wkipedia)

Russian nesting dolls (from Wikipedia)

“For a long time, Chinese judicial organs [referring both to courts and procuracy] have internally formed an administrative work system.  For example internally, in the courts, cases are approved and checked on by division chiefs and heads of courts level by level, and it is the person with the highest administrative position who has the final say, which created the situation in which the persons hearing the case do not decide it, and those deciding the case do not hear it.  This not only affects judicial efficiency and justice, it also makes it difficult to pursue responsibility for mistaken cases.”

    长期以来,中国司法机关内部形成了一套行政化的工作机制,比如法院内部,案件由厅长、院长层层审批把关,由行政职位高的人说了算,造成审者不判、判者不审的局面,不仅影响司法效率和公正,也难以追究错案责任。

What this means in plain English is that Chinese courts exercise an administrative system in which all cases are approved by division chiefs or higher.  For major cases, as well as cases in which the death penalty is proposed to be imposed, the case is forwarded to the judicial committee of the court.  As I wrote over one year ago, although this has not been mentioned, judicial committees must have approved the original decisions in a number of cases recently revealed to have mistaken, such as:

the 1996 execution of Huugjilt, in Inner Mongolia;
The 1995 conviction of Tian Weidong, Chen Jianying and others in Hangzhou, Zhejiang.

One layer of the Russian doll is the judicial committee. In that December, 2014 blogpost, I described how judicial committees operate (and some proposals for judicial committee reform).  Court legislation states that these committees “practice democratic centralism” and that their task is to “sum up judicial experience and to discuss important or difficult cases or other issues relating to judicial work.”

The reason that the panel that hears the case must follow the decision of the judicial committee is that judicial committees are designated as the “highest judicial organ” within a court and implement the principle of democratic centralism.  Wang Bin, a Nanjing judge whom I quoted in that blogpost,  stated that judicial committee members [made up of the court leadership] have neither the opportunity nor the time and energy to learn more about the specific circumstances of each case.Members are not required to state their view and rationale before voting.  Decisions are made by a simple majority.   Additionally, as I implied, during judicial committee consideration, members are aware of their bureaucratic rank vis a vis the court president and vice presidents.  As Professor He Xin of City University noted in his study of judicial committees, since the decision is made collectively [by the judicial committee], no single committee member is held personally responsible.”

What is implied by the administrative system described by the statement in the official media is that the local political-legal committee or other Party authorities may liaise with the court leadership concerning high profile cases.  That is the next layer of the Russian doll, and may involve higher level Party authorities.

Professor He’s study found that judicial committees had in many cases succumbed to external influences, while my own (more limited sample) found that external pressure was sometimes resisted.  Pressure by local political-legal committees was likely involved in some of these mistaken cases, but liability is not pursued, for a similar rationale as Professor He’s–since the decision is made collectively, no one is held personally responsible.

What effect will the 2015 regulations aimed at reducing official interference in court cases have on this practice?  As noted in this earlier blogpost, one of those regulations does not require the recording of certain types of guidance–that of “Party and government organs, professional associations, social public interest organizations and public institutions with administrative functions in accordance with law retained or permitted by people’s courts to follow the working procedures to submit consultative opinions in cases of national interest or societal public interest, may be not entered into information archive on prying, but relevant materials shall stored in the case file for future reference.”  But will documents issued by Political Legal Committees at various levels really be placed in case files and made accessible to lawyers?

2.  Why does affixing responsibility in mistaken cases take so long?

The author of the second article,  published in a popular legal Wechat public account highlighted earlier, suggests reasons that it often takes 10 or more more years for mistaken cases to be redressed, and proposes that the SPC and SPP increase their staffs to review mistaken cases:

Ten years is the time it takes for two terms of the [local] Party Committee and the heads of the court and procuracy.  That means that the heads of the Party Committee and court/procuracy have changed at least once or twice… [Why won’t it take less time?] It is because when the leaders who have had the final say still have their positions,…if they reverse the mistaken case and one can well imagine that they will not want to overturn a case in which they had the final say…There is hope …only when the leaders have retired, have become old or passed away, and a new leader is in position and takes the matter seriously.

 

 

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?

New docketing procedures come to the Chinese courts

local court case filing office

local court case filing office

New docketing procedures (case filing) (立案) have come to the Chinese courts.  Chinese courts have a separate case filing divisions, which up until 1 May of this year acted as gatekeepers to courts.  They exercised their approval authority over cases in a non-transparent manner, which meant for litigants in Chinese courts that their cases could be and were rejected without having the opportunity to argue why they should be accepted.  Case filing divisions also were known to put troublesome filings aside, without issuing a rejection, or repeatedly asked for supplementary documents, seeking to drive away litigants by repeated formalistic demands.

More background is given in these blog posts and law review article.  It has been an ongoing problem for many years, provoking endless complaints and articles by ordinary people, lawyers, academics, and NGOs, and has been one of the issues driving petitioners to the streets.

The Supreme People’s Court (Court) leadership identified case filing as one of the needed reforms (and as one of the many contributing factors to the low prestige of the Chinese judiciary), even before the Third Plenum. Because of that, the Communist Party’s 4th Plenum Decision and the 4th Five Year Court Reform Plan flagged this as a priority.  (Unsurprisingly), the language in the two documents is almost identical:

  • Reform systems for courts’ acceptance of cases, change the case filing review system to a case filing registration system, and in cases that should be accepted by the people’s courts, ensure parties procedural rights by requiring filing when there is a case, and requiring acceptance where there is a lawsuit.
  • Change the case filing review system into a case filing registration system, making it so that for cases that should be accepted by the people’s courts, where there is a case it must be filed, and where there is a suit it must be accepted; safeguarding the parties’ procedural rights.

Litigants in line at the #1 Circuit Tribunal

In late April, the Court issued case filing regulations which address many of the longstanding problems that litigants and their lawyers faced:

Case filing divisions

  • refusing to accept complaints;
  • refusing to issue notices rejecting complaints;
  • repeatedly asking for supplementary materials.

The new rules require case filing divisions to accept filings of civil and criminal private prosecution cases (brought by the victim of a crime if the state refuses to prosecute, generally relating to minor crimes) on the spot if possible, provide templates for frequently used types of cases, and to respond within statutory deadlines.  Case filing divisions are directed to make requests for supplementary materials once. (The new administrative litigation law judicial interpretation, described in this earlier blogpost, contains similar provisions.) Litigants who encounter noncompliant behavior can file a complaint with the relevant court or the court above it.

Cases that the courts must refuse:

  1. Matters that endanger national security;

Rights activists have likely noticed that these carveouts are broad and flexible enough to keep out some cases that they might want to bring.

The take-up on the reform: some “Big Data”

According to Court statistics, in the first month since the regulations went into effect, there was a 30% jump in the number of cases accepted,(1.13 million), with most of them accepted immediately. The Jiangsu, Zhejiang, and Shandong courts accepted over 80,000 cases, with Beijing, Hebei, and other areas accepting over 40,000.

In particular:

  • the number of civil cases was up about 28%.
  • the number of administrative cases accepted was up 221% in comparison to last year (starting from a low base), with Tianjin cases up 752.40%,Shanxi, 480.85%,and Shanghai 475.86%, reflecting both the new case registration and new Administrative Litigation Law going into force.
  • Courts in Zhejiang found that fewer litigants were mediating their cases before filing suit (down 17%), and the success rate of mediation was down by 14%.  Does this mean a better outcome for litigants?  Closer analysis is needed.

Much of the press coverage has been about litigants filing cases themselves, rather than with the assistance of a lawyer or other legal personnel, but I haven’t seen statistics that address this.

Some more detailed data from Jiangsu province:

download 1

Case filings in Jiangsu Province, by city

1115572603_14339164175221n

Civil 60791, enforcement 25438, administrative 1980, private prosecution 256, state compensation 56

1115572603_14339164566661n

May, 2015 cases accepted, by location

An evaluation after six weeks

Some thoughts about the case filing reform

  • It will mean more cases in the courts and greater stress for fewer judges and other judicial staff, to assist the many pro se litigants.
  • It should reduce the dissatisfaction level of some proportion of litigants with the court system, such as the anonymous staff from a Guangzhou car finance company quoted in a press report.
  • Violence against court personnel (like medical personnel), is another factor driving qualified and experienced people away, as described in these recent articles.  Will the reforms reduce the level of frustration of ordinary people with the court system, and reduce physical and verbal attacks on judicial personnel?  It is early days to say.
  • It does not resolve underlying issues such as local courts not wanting to offend local government or locally state-owned enterprises.  The 4th 5 Year Court Reform Plan identifies cross-jurisdictional courts as a solution, and pilot projects have started on this in various locations, including Beijing, but a comprehensive framework is not yet in place.
  • For the numerically small number of foreign litigants in the system, it does not change all the documentary requirements needed, such as notarization and legalization of documents and powers of attorney. It should make it easier for foreign invested companies to litigate.
  • As a Court spokesman suggested,  the rejection of many cases could come later, leading to greater pressure on the courts later on, from appeals, more requests for cases to be re-tried, and not ultimately reduce the number of petitioners.
  • It will inevitably lead to abuse of process and frivolous cases, such as the over-publicized case of a Shanghai man suing because of the stare of a TV star caused him spiritual damage. The Court is working on rules to address this.