Since the Fourth Plenum of the 19th Party Congress, and especially since President Xi Jinping spoke about the need for China to train foreign-related legal personnel (涉外法治人才), the Supreme People’s Court (SPC) press, SPC leadership, and others important to the SPC leadership, such as Shen Deyong, former executive vice president of the SPC and current leaders of the CPPCC have reiterated the importance of “foreign-related legal personnel” to China and the people’s courts. Training “foreign-related legal personnel” is incorporated into the Party’s Plan for Building the Rule of Law (2020-2025), an indication of its importance. Shen Deyong criticized the way that “foreign-related legal personnel” is used within government institutions– “team is too small, their numbers are too few, they are scattered and the market is chaotic.””涉外法律服务人才队伍建设还存在一些问题和不足，主要呈现队伍“小”、人才“少”、分布“散”、市场“乱”的特点. I would add to the issues that he flagged that policies directed towards attracting “foreign-related legal personnel” to the courts inevitably encounter the special characteristics of the courts’ personnel system as it has evolved since the quota judge reform was implemented, both the training system and especially career advancement from judges assistant to quota judge.
Foreign-related legal personnel policy
The language about increasing “foreign-related legal personnel” in the courts is not new but dates back to at least 2015 and the Opinion of the Supreme People’s Court on Providing Judicial Services and Safeguards for the Construction of the “Belt and Road” by People’s Courts (BRI Opinion #1). It was reiterated in the 2019 Opinions of the Supreme People’s Court on Further Providing Judicial Services and Guarantees by the People’s Courts for the “Belt and Road” Initiative (BRI Opinion #2) and the 2020 Guiding Opinions of the Supreme People’s Court on the People’s Courts Serving and Guaranteeing the Further Opening Up to the Outside World (Open Economy Guiding Opinion). Article 15 of BRI Opinion #1 calls for improving training for Chinese judges on their professional capacity (业务能力) and improving overall judicial quality. Article 38 of BRI Opinion #2 and Article 16 of the Open Economy Guiding Opinion both have language about cooperating with universities to develop training and teaching plans so as to train and prepare a pool of international legal practitioners….” A knowledgeable person has reminded me that repetition in consecutive documents is an indication of importance (and I would add the difficulty of resolving the problem).
As readers of this blog know, the Chinese courts need “foreign-related legal personnel” in many areas. Those include working on cross-border cases across a broad range of procedural and substantive areas, undertaking research related to cross-border judicial policy and cross-border legal issues that have an impact on the judiciary, as well as working on a range of issues related to the SPC’s and lower courts’ interactions with the outside world.
Court cooperation with universities
The SPC has designated a number of China’s leading law schools and legal research institutions as Belt & Road research bases, including: the International Law Institute of the China Academy of Social Sciences; Tsinghua University School of Law; Wuhan University School of Law, Southwest University of Political Science and Law; China University of Political Science and Law, Shanghai University of Political Science and Law; Dalian Maritime University, and East China University of Political Science and Law. The SPC is thus able to draw on the research capacities of China’s law schools and involve law students in the legal issues facing the Chinese courts. Participating in this research can also motivate students to enter the courts after graduation.
Law students apply to become judges assistants after graduation for a variety of reasons. Some become further interested after internships (see this blogpost on SPC interns–a version with more data may appear later). Other law school graduates are motivated by presentations by outstanding judges at their law school (SPC Judge Gao Xiaoli’s 2015 talk at the Peking University School of Transnational Law earned her many new fans), while still others recognized that a job “in the system” would resolve their hukou problems and enable them to live in Beijing, Shanghai, or other major cities. Yet others are motivated to use their education in the service of the public. I can say with authority that law graduates with knowledge of transnational law, fluency in English (and other foreign languages) are working as legal assistants in courts all over China. Recruitment of legal assistants is a local matter, so the #4 Civil Division of the SPC (in charge of foreign commercial matters) and likely the Political Department of the SPC (in charge of personnel) lacks statistics on the number of “foreign-related legal personnel” working in the local courts.
Special characteristics of the courts’ personnel system
I write about the judiciary’s personnel system with some trepidation as I am well aware that my knowledge of the regulatory system is incomplete. (Some of the relevant regulations cited in analyses of the personnel reforms are not accessible to those outside the court system.) On the issue of placement of junior “foreign-related legal personnel,” I have not heard from either knowledgeable persons, former students, or other junior personnel in the Chinese court system that specific policies have been implemented within the court system (the Political Department of the SPC is responsible at the national level, and locally, political departments of local courts are responsible) to channel judges assistants recruited from China’s law schools with transnational training and experience into roles in which their academic background can be used and their “foreign-related” legal skills can be developed. In the absence of specific policy, too many local court leaders appear to see the young people with a transnational legal background and experience merely as workers that can be put to work in the national judicial machine (司法民工). Judges assistants from higher courts are sometimes sent down to the local level to work for two years, in line with young cadre development policy.
If the three documents cited above have language about training, it seems likely that a training plan is somewhere in the approval pipeline. My guess is that this is yet another matter that requires coordination among multiple institutions within the SPC, including the #4 Civil Division–the ones asking for the training to be done, with the Political Division and the National Judges College. As I wrote last year, a new national court training plan (2019—2023年全国法院教育培训规划)) is underway. As senior leadership has called for cultivating “foreign-related legal personnel,” it seems likely that the SPC will eventually issue (perhaps not publicly) a training plan for judges handling all sorts of foreign-related issues, both civil-commercial and criminal.
Another issue for foreign-related legal personnel in the courts is career advancement for judges assistants. As I mentioned in passing in an earlier blogpost, career advancement from judges assistant to quota judge has slowed. Specific promotion criteria are set locally. Local studies have been done on the role of the judges assistant but have not surmounted the language barrier (see this one from one of the Chongqing Intermediate People’s Courts) that provide specific data and specific analysis deriving from local conditions. From my observations, fixed quotas on the number of judges in a court can mean a talented, educated judges assistant in one court may wait significantly longer than a similarly qualified person in another court to become a judge.
Unless the SPC can evolve better national policy directed towards a career for “foreign-related legal personnel,” some of them will leave, disappointed with the failure of the judicial system to use their talents, despite the official publicity. There will be many companies and law firms, some dealing with the issues I described previously, that will value them.