What does China’s Judges Law draft mean?

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21 January China Law Society organized discussion of Judges Law draft (note disproportionately few women)

Although the redraft of China’s Judges Law has the potential to have an impact on many in the world outside of China, few people have taken an interest, judging by the pageviews of its translation on Chinalawtranslate.com (62). (I’m indebted to Jeremy Daum and others for translating it).  Judging by a search on Wechat, the same is true in China.  The workshop pictured above, organized by the China Law Society, appears to be one of the few in which views on the draft were aired.  There must have been strong views on the draft, but the report did not provide any details (and it is apparent no foreigners participated). The draft was released before the Communist Party (Party) Central Committee’s 2019 Political-Legal Work Conference and therefore does not reflect the most current political signals. The draft is open for public comments until 3 February and over 800 comments have been submitted as of 25 January.  An earlier draft was made available for public comment (as well as related institutions) for comment and the China Law Society organized comments on that draft as well. The current draft incorporates input from various sources.

The law, if enacted in its current form, will have short and long term implications for the Chinese judiciary.  As the Chinese judiciary seeks to be increasingly connected with the outside world, through its work in negotiating the (draft) Convention on the Recognition and Enforcement of Foreign Judgments at the Hague Conference on Private International Law, the Arrangement on Reciprocal Recognition and Enforcement of Judgments in Civil and Commercial Matters between mainland China and Hong Kong, as well as other more controversial involvement, the questions it raises for outside observers (and Chinese ones as well) is–what vision does it convey of the Chinese judge?  What rights and responsibilities does a Chinese judge have under this law? Will this law, if enacted in its current form, encourage competent people to remain in the judicial system and promising young people to enter it?  When I first flagged the redrafting of the law in 2015, I commented–“how to reorganize the Chinese judiciary and what professional status Chinese judges should have and work under will affect how judicial reforms are implemented and less directly, more fundamental issues concerning China’s economy and society.”

Some brief (not comprehensive) comments follow:

It consolidates the framework of the old law, incorporates legislative changes and many judicial reforms, leaves some flexibility for future reforms, and reflects current Communist Party (Party) policy towards political-legal institutions and their personnel as set forth in the 2019 Party regulations on political-legal work.

The Judges Law does not stand on its own. It is connected with other legislation, such as the recently amended Civil Servants Law  the amended court organizational law, and of course, relevant Party rules.   The initial drafting was led by the SPC, in particular, its Political Department (as the Party is in charge of cadres).

Chapter I: General Provisions

This section with broad statements is longer than the previous version.  Among the notable amendments.

Article 1, concerning the purpose of the law: “advance the regularization, specialization, and professionalization of judges; to strengthen the management of judges; to ensure that the people’s courts independently exercise the adjudication power; to ensure judges’ performance of their duties in accordance with law; to ensure judicial fairness; and to preserve the lawful rights and interests of judges”–sends signals concerning the professionalization of the Chinese judges, with principles of independence (better read as autonomy) and fairness not listed first. It should be noted that during the 2019 Political-Legal Work Conference, the “revolutionization” of political-legal teams was listed before regularization and professionalization (加快推进政法队伍革命化、正规化、专业化、职业化建设,忠诚履职尽责). (“Revolutionization” appears to meant to signal the absolute leadership of the Party.) SPC President Zhou Qiang gave a speech at a meeting to implement the spirit of that Political-Legal Work Conference which also listed “revolutionization” first, but he stressed the greater importance of professionalization (加快推进队伍革命化、正规化、专业化、职业化建设,把专业化建设摆到更加重要位置来抓) as the operation of and public confidence in the Chinese court system depends on retaining and attracting professionals. The establishment of the CICC, the Shanghai Financial Court and the Intellectual Property Court of the Supreme People’s Court all represent professionalization and specialization.

Article 2 mentions various types of judicial personnel, the functions some of which are defined in the court organizational law, but for others, such as division chiefs and deputy division chiefs, mentioned without definition.  A Chinese court has many administrative characteristics, but it would be helpful for the Chinese and offshore public to flag some basic principles regarding the functions of persons with these different titles, as these are found scattered in various SPC regulations.

Article 4: Judges shall treat parties and other litigation participants justly. The law is applied equally to any all individuals and organizations.  But the law treats different types of parties differently (embezzling money from a private enterprise vs. state-owned company) and other provisions of law treat cases involving senior officials differently from ordinary people (see this article on the principle of trying criminal cases involving high officials in a jurisdiction outside which the case arose).

Chapter II: Judges’ duties, obligations and rights

On Judicial duties, Articles 8 and 9, on the duties of ordinary judges and ones with a title do not clarify what participating in trials and being responsible for their cases mean (the latter is linked to the 2015 responsibility system that (as this blog has mentioned), gives judges a great deal of stress. Perhaps the German Judiciary Law could be a source of inspiration on judicial duties.

Chapter III: Requirements and Selection of Judges

This chapter incorporates a number of policy changes that have been implemented under the judicial reforms and also explains why the China International Commercial Court (CICC) will not be able to appoint foreign judges, unlike its counterparts in Singapore and Dubai.

Article 12 is a revised version of old Article 9, requiring judges to be PRC citizens, uphold the PRC constitution, and have a good political and professional character. Article 65 mentions that new judges must have passed the legal qualification examination.

This chapter mentions the establishment of Judicial Selection Committees (also a borrowing from abroad) and which must have some linkage to Party organizational departments. The chapter mentions recruiting judges from outstanding lawyers and academics (thus far, proving more difficult than anticipated), and requiring higher court judges to be recruited from those with experience in the lower courts.  I described the  “classic” appointment system in my 1993 article on the Supreme People’s Court, in which fresh graduates were assigned directly to the SPC.  As mentioned in my earlier blogpost on the court organizational law,  court presidents are required to have legal knowledge and experience.

Chapter IV: Appointment and Removal of Judges

This chapter has expanded conflict of interest rules for judges considerably. that had previously been set out in a separate chapter of the Judges Law.  Some of these had mostly been contained in subsidiary rules that the SPC has issued but are now being incorporated into the Judges Law itself.

Chapter V: Management of Judges

This chapter flags a number of issues, including the quota judge system, pre-career judicial training and the resignation of judges.

Article 24 states that a personnel ratio system is implemented for managing judges. This codifies the quota judge system, but it does not explain how it works and whether is any way to challenge the determination of the personnel ratio.

Article 30 provides that a uniform system of pre-career training is to be carried out for new judges.  This is an innovation in which the SPC has looked to what is done in Japan and Taiwan, and was flagged several years ago in this blog. As mentioned in that earlier blogpost, training is likely to include both ideological and professional aspects.

Article 34 provides that”judge’s applications to resign shall be submitted in writing by themselves, and after approval, they are to be removed from their post in accordance with the legally-prescribed procedures.”  It is unclear from this article what the procedure is for resignation and the standards for approving or rejecting a judge’s application.  But it is meant to harmonize with the Civil Servants Law,2017 regulations of the Party Organization Department and two other authorities on the resignation of civil servants, and SPC regulations implementing the latter regulations (discussed here).  From Wechat postings and other discussions in Chinese legal circles, it is not unusual for the senior management of a court to delay decisions on permitting a judge to leave for a year or more. 

Chapter VI: Evaluation, Reward and Punishment of Judges

This chapter sets out the outlines of the recent judicial reforms regarding the evaluation of and disciplining of judges.

Article 45 on punishment of judges–while many of the provisions are found in many other jurisdictions, some are unique to China and could be worrisome to judges, as they could be widely construed–such as “(5) Causing errors in rulings and serious consequences through gross negligence; (6) Delaying handling cases and putting off work.”  There is considerable concern among judges about the standard for “errors” in rulings because that standard may evolve over time (see this earlier blogpost) and the reason for delay may not be solely a legal one.

Articles 48-50–In contrast to the previous version of the Judges Law, this draft provides for disciplinary committees (rules to be drafted by the SPC) under which the judge will have the right to be represented and to provide evidence in his defense.

Chapter VII: Professional assurances

This section, on professional protections for judges, also flags the limitations on and weaknesses of those protections, with inadequate procedural protections against unfair determinations made against judges.

Article 52, providing that  “Judges may not be removed from the trial post except…”–also does not provide a mechanism for judges to challenge a decision or determination made against them.

Article 64: Where there are errors in judicial sanctions or personnel dispositions, they shall be promptly corrected; where it causes reputational harm, the reputation shall be restored, the impact eliminated, and formal apologies made; where economic harm is caused, compensation shall be made.  But there is no mention of how a judge can challenge the judicial sanctions or personnel disposition, or request that he (or more likely she) be reinstated.  Dispassionate analysis of the responsibility system by both academics and judges (previously mentioned on this blog) describes the responsibility system as a “Sword of Damocles” hanging over the heads of judges and lists some cases in which judges were prosecuted and found not guilty, with another one reported by another Wechat account.

A final word

It is unclear at this stage of the draft whether comments on the draft will have any impact on the final draft.  Presumably, some of the comments made at the workshop mentioned above will be accepted, as the participants included a group of senior experts either working within or retired from “the System” or academics whose expertise is recognized and valued.

China International Commercial Court starts operating

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The author in front of CICC #1,  December 2018

In the last few months of 2018,  the Supreme People’s Court (SPC) and China International Commercial Court (CICC) took measures to enable the CICC to start operating, although the CICC was established earlier in 2018.  As SPC President Zhou Qiang reported to the National People’s Congress (NPC)  in March 2018 that the CICC would be established, I expect that he will report to the NPC in March of this year that the SPC established the CICC and it has successfully begun operating. (It is likely that the National Appellate IP Court will merit a place in Zhou Qiang’s report as one of the SPC’s 2018 accomplishments, but see fellow blogger Mark Cohen (and co-authors)’s post on that development). This blogpost will summarize (and provide some commentary on) some of the recent CICC developments.

Those developments included:

  • issuing rules on the international commercial expert committee;
  • personnel measures–designating the heads of the of the #1 and #2 CICCs and the heads of the case management offices in the two offices and appointing seven additional judges;
  • designating several (mainland) Chinese arbitration and mediation institutions to be part of its integrated one-stop dispute resolution;
  • accepting several cases;
  • issuing rules on CICC operations (to be discussed in a following blogpost).

Rules on the international expert committee

On December 5 the SPC General Office issued the working rules of the international commercial expert committee (expert committee) (approved by the SPC judicial committee in late October) (最高人民法院国际商事专家委员会工作规则). The date of the notice of the General Office is 21 November.  It answers some frequently asked questions about the expert committee. My comments are in italics.

What do members of the expert committee do?

1) preside over mediations (Article 3 (1): This was clear from the CICC Provisions.  It remains to be seen how many expert committee members will feel comfortable mediating disputes. It could be that some of the Chinese members will feel more comfortable mediating disputes than the foreign or Hong Kong-based members, as some of those members have long experience as arbitrators in China, where combining mediation and arbitration (med-arb) is usual. A significant number of expert committee members are from jurisdictions where being a mediator and mediating us regarded as separate profession and skill from arbitration and adjudicating.  Articles 9-13 describe the mechanics for doing so.

(2) provide an advisory opinion on specialized legal issues such as those relating to international treaties, international commercial rules, finding and applying foreign law [foreign and greater China jurisdictions] relating cases heard by the CICC and the People’s Courts at all levels (Article 3 (2): This contains a surprising expansion of the role of the experts on the committee by authorizing Chinese courts at various levels to request an expert committee member to provide an advisory opinion on international legal, international commercial and foreign law issues. A note on terminology–the English version on the CICC website uses “foreign law” while the Chinese original uses the term  “域外 ” (extraterritorial), intended to include the jurisdictions of Hong Kong, Macau, and Taiwan as well as the law of foreign jurisdictions.  This blogpost will use the term “foreign law” as meaning “域外 ” extraterritorial law.

The fact that expert committee members have been so authorized indicates that ascertaining (determining) foreign law is a significant practical problem for Chinese judges.  I previously mentioned in this 2017 blogpost that Judge Zhang Yongjian listed ascertaining foreign law(he uses the term 外国法·) as one of many problems confronting Chinese judges hearing cross-border issues. Several articles on the Chinese version of the CICC website (plus one on the English version (by CICC Judge Gao Xiaoli) discuss this problem.  Judge Gao gently pokes fun at some Chinese scholars who fail to understand relevant judicial interpretations on ascertaining foreign law. The CICC website lists the methods available to a Chinese court in ascertaining foreign law. Among the alternatives include designating one of four authorized centers to provide an expert opinion on foreign law.  Articles 14-15 describe some of the mechanics by which one or more expert committee experts can provide an advisory opinion.

Under Article 15, a litigant may request through the CICC’s Expert Office that the expert appear in court to explain his or her opinion.  It is up to the expert to decide whether to appear. Presumably, expenses involved, including travel and translation, would be the responsibility of the requesting party.

The rules do not clarify a number of practical questions related to this. Could a court request an advisory opinion from an expert and from a designated discernment center, and if so, what relative weight will be attached to each?  Presumably, a court would give it greater weight than an opinion from an expert provided by a party.  It is unclear whether experts can charge for these services. Another concern for experts could be liability, and the standard for an opinion found to be negligently made.  Additionally, for the many foreign experts on the committee who do not know Chinese, it is unclear who will be responsible for translation.  Presumably, the court that requested the opinion or the International Expert Committee office (see 6 (2), which states that the office provides services to experts. Perhaps the forthcoming Code of Ethics of the Expert Members will address these questions.

(3) provide advice and suggestions on the development of the International Commercial Court; (4) provide advice and suggestions on the formulation of judicial interpretations and judicial policies of the Supreme People’s Court; (5) Other matters entrusted by the International Commercial Court; The first two provisions set out a formal structure for foreigners to provide advice, suggestions, and comments on judicial interpretations, judicial policy and other developments to the SPC, a first. Article 18 anticipates that the Expert Office will direct requests for comments or advice on specific draft judicial interpretations, policies, etc. to one or more experts, as the CICC considers useful rather than expert committee members being informed about ongoing developments.  However, it does enable expert committee members to make suggestions or proposals on their own initiative.  

Personnel developments

The last few months have seen a number of CICC personnel developments, including the appointment of seven additional judges. In early November, Judge Zhang Yongjian, deputy head of the #1 Circuit Court and head of the #4 Civil Division, was appointed as head of the #1 CICC and Judge Zhang Ming, deputy head of the #6 Circuit Court, was appointed head of the #2 CICC.

Judges Xi Xiangyang and Ding Guangyu, presiding judges on the #1 and #6 Circuit Courts respectively, and CICC judges, were at the same time appointed heads of the case management offices of the two courts.

Judge Song Jianli has been appointed the head of the CICC Expert Office.

The additional seven judges are:

  1. Wang Shumei (deputy head of the SPC’s #4 Civil Division, specializing in maritime law);
  2. Wei Wenchao, who has had a number of roles at the SPC, most recently as deputy head of the #5 Circuit Court. He had previously served as deputy head of the Environmental and Natural Resources Division;
  3. Song Jianli, head of the Experts Office, who studied at Southampton Institute (now Solent University) (in addition to his studies in China), and was a visiting scholar at Cambridge, the University of Pennsylvania, and the Max Planck Institute of Comparative and International Law, and has primarily worked in the SPC’s #4 Civil Division;
  4. Zhang Xuemei, of the SPC #2 Civil Division (domestic commercial issues);
  5. Yu Xiaohan, also of the #4 Civil Division, and like Wang Shumei, a maritime law specialist;
  6. Ding Guangyu, who studied at the University of Manchester and has had a number of roles at the SPC, including at the China Institute of Applied Jurisprudence, and in the #4 Civil Division;
  7. Guo Zaiyu, who spent many years at the Hubei Higher People’s Court before transferring to the SPC’s #4 Civil Division.

It is clear from these announcements that at this time, the CICC is a part-time responsibility for the judges involved, who have their ongoing responsibilities at the SPC, either at one of the Circuit Courts, the new Intellectual Property Court, or SPC headquarters.  And some senior people, such as Judge Zhang Yongjian, have triple administrative roles.

One-stop diversified dispute resolution mechanism

As an earlier blogpost flagged, the institutions clearly intended to be part of the one-stop diversified dispute resolution mechanism were the leading Chinese arbitration and mediation institutions handling foreign-related matters.  Most of these institutions sent senior representatives to attend the first meeting of the experts committee, so I was not surprised to see the following institutions listed:

  1. China International Economic and Trade Arbitration Commission (CIETAC);
  2. Shanghai International Economic and Trade Arbitration Commission;
  3. the Shenzhen Court of International Arbitration (SCIA);
  4. Beijing Arbitration Commission;
  5. China Maritime Arbitration Commission;
  6. the Mediation Center of China Council for the Promotion of International Trade (CCPIT); and
  7. Shanghai Commercial Mediation Center.

SCIA has an arrangement with the Hong Kong Mediation Centre since 2014 by which Mediation Centre settlements may be enforced in mainland China through a consent award issued by SCIA.

First cases

At the end of December 2018, the CICC accepted several cases, all of which can be categorized as general international commercial disputes, with none specifically related to Belt & Road projects.  The disputes include: an unjust enrichment dispute involving Fujifilm and several Chinese companies, a product liability dispute involving Italian pharmaceutical company called Bruschettini (which sells its products through Sinco Pharmaceuticals Ltd., a Hong Kong-listed company), several disputes related to Thailand’s Red Bull (from this report, I surmise that the case was referred by the Beijing Higher People’s Court), and several disputes involving the validity of arbitration clauses, including one involving China Travel Service (Hong Kong) and one of its hotels.   ____________________________

The author is a member of the international commercial expert committee but her views do not represent the committee, the CICC, or the SPC.

 

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.