What significance does China’s updated court law have?

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main premises of the Shenzhen intermediate court

The National People’s Congress (NPC) Standing Committee recently revised the Organic Law of the People’s Courts (People’s Courts Law, English translation available at Chinalawtranslate.com), the framework law by which the Chinese courts operate.  The NPC took the lead in drafting it, rather than the Supreme People’s Court (SPC). It retains the framework of the old law, incorporates legislative changes and many judicial reforms, leaves some flexibility for future reforms, and updates some of the general principles in the old law that apparently are on the dust heap of history (历史的垃圾堆).  Some of the principles newly incorporated reflect the reorientation of the Chinese courts, over the past 40 years while others represent long-term goals. Some provisions originally in earlier drafts have been deleted because the NPC Constitution and Law Committee considered that the time was not ripe for incorporating them.

The law contains some oddities, such as using two terms for judges, both “审判员” (shenpanyuan) (used four times) and “法官” (faguan)(used 38 times).  None of the official commentary has explained the reason for the mixed terminology.  My own guess is that it is linked to the use of “审判员” in the Constitution, but anyone with more insights into this is welcome to provide clarity.

The People’s Courts Law does not stand on its own. It is connected with other legislation, such as the Judges’ Law (amendments under consideration, with the drafting led by the SPC (this 2017 article criticizes some of the disconnects between the two) .the three procedure laws, the Civil Servants Law, as well as with Communist Party (Party) regulations.  As the courts are led by the Party,  its regulations also affect how the amended People’s Courts Law will operate when it becomes effective on 1 January 2019.

General Provisions

Some of the principles newly incorporated into the law reflect the reorientation of the Chinese courts over the past 40 years towards more civil disputes and an increasing number of administrative disputes, while others represent long-term goals.

Article 2 has relegated some of the dated language from what was previously Article 3  to the dust heap of history–references to the “system of the dictatorship of the proletariat,” “socialist property,” and the “smooth progress of the socialist revolution”). Those have been replaced by language such as “ensuring the innocent are not prosecuted,” “protecting the lawful rights and interests of individuals and organizations,” preserving national security and social order, social fairness and justice,  and the uniformity, dignity, and authority of the state’s legal system.

The principle of “ensuring the innocent are not prosecuted” makes its first appearance in the People’s Courts Law. I recommend this new article by a member of the Beijing Procuratorate, (in part) criticizing the poisonous effect of the “declared innocent” performance indicators of procurators on Chinese criminal justice.

On protecting the “lawful interests of individuals and organizations,” rapidly changing judicial policy and inconsistencies between criminal and civil law may mean that what is recognized as valid under civil law may be considered a bribe under criminal law.  Additionally, although the People’s Courts Law deletes language that distinguishes among owners of different types of Chinese companies, Chinese criminal law still does (see this chart setting out sentencing guidelines, for example).

Article 6, on judicial fairness, contains language on respecting and protecting human rights.  Foreigners may think it is directed at them, but it is more likely aimed at Chinese citizens.

Article 7 calls for the courts to carry out judicial openness, except as otherwise provided by law.  It is generally recognized that the courts are much more transparent than before, although specialist analysis in and out of China points out that there remains much to be done.

Article 8 incorporates judicial responsibility systems into the law (a prominent feature of the recent judicial reforms), described by two judges as 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”) and a topic regarding which more dispassionate analysis is making its way into print.

Article 11 has important language about the right of the masses (i.e. ordinary people, that term is alive and well) to know of (知情),  participate in (参与·), and supervise the courts (according to law). However, the devil is in the details, as procedures for exercising these rights remain limited and sometimes lacking.

Organization (set up and authority) of the courts

Article 15 mentions some of the specialized courts that have been established over the last thirty years:

  • Maritime courts, legislation found here; translation of SPC regulations on jurisdiction found here.
  • Intellectual property courts, legislation found here, a summary of SPC regulations on jurisdiction found here.
  • Financial courts, see the SPC’s regulations on the Shanghai financial court.
  • The military courts still lack their own legislation (an earlier discussion of this issue is found here).

Article 14 relates to the special Xinjiang Construction & Production Corps (Bingtuan) courts  (not a specialized court under Chinese law, rather a court with its own special jurisdiction). Those interested can look to its NPC Standing Committee legislation,  SPC more detailed regulations, and Professor Pittman Potter’s research on these courts.

Article 16 incorporates the new China International Commercial Court’s first instance cases.

Article 18 incorporates the guiding case system into the law.

Article 19 crystallizes the SPC’s circuit courts (tribunals) into law (SPC regulations on the jurisdiction of those courts found here).

Articles 26 and 27 give courts some flexibility on their internal structure (courts in remote areas with few cases need not establish divisions, while large city courts can have multiple specialized ones. (Earlier blogposts have mentioned establishing bankruptcy divisions, for example.) Article 27 also mentions establishing (or not) comprehensive divisions (the administrative departments of courts, that according to a recent academic article can constitute close to half the headcount in a court and that some court leaders value more highly than operational divisions (the divisions hearing cases).

Trial Organization

This section of the law incorporates the current judicial reforms in several ways, including:

  • In Article 30, on the operation of collegial panels and requiring the court president to be the presiding judge when s(he) participates in a collegial panel;
  • Mentioning in Article 31 that dissenting opinions are to be recorded and that members of the collegial panel (or sole judge) are the ones to sign their judgments and the court is to issue it;
  • Article 34 gives space for eliminating the role of people’s assessors to determine issues of law, linked to Article 22 of the People’s Assessors Law;
  • Articles 36-39 includes new provisions on judicial/adjudication committees.  It consolidates current reforms by crystalizing specialist judicial committees (civil/criminal). An important reform is requiring the views of the judicial committee to be disclosed in the judgment (the view is binding on the collegial panel that has submitted the case.  These articles also include related stipulations such as quorum requirements and making judicial committee members responsible for their views and votes. (See previous scholarship on this important institution).
  • Article 37 incorporates into law previous SPC regulations on judicial interpretations, specifying that they must be approved by the full (plenary) SPC judicial committee while guiding cases can be approved by a specialized committee of the SPC judicial committee.

Court Personnel

This section of the law uses the terminology :”审判员” (shenpanyuan) and “法官” (faguan).  It also incorporates the personnel reforms set out in the judicial reform documents in several ways: quota judge system; selecting higher court judges from the lower courts; the roles of judicial assistants and clerks (changed from the old model); other support personnel in the courts; a new career track for judges, including judicial selection committees; preference to hiring judges with legal qualifications;

Article 47 requires court presidents to have legal knowledge and experience.  It has long been an issue that court presidents have been appointed more for their political than legal expertise. Under the Chinese court system, an effective court president requires both sets of skills.

It appears that the reform of having judges below the provincial level appointed by the provincial level is not yet in place,

Safeguards for the courts’ exercise of authority

This section of the law links with the Judges Law and the People’s Police Law (in relation to judicial police).

Article 52 gives courts the right to refuse to engage in activities that violate their legally prescribed duties (will this end the phenomenon of judges sweeping streets?);

Article 53 relates to reforms relating to enforcement of judgments (and the social credit system);

Article 55 relates to judicial (and judicial personnel training, both theoretical/(ideological) and professional)–some earlier blogposts have shed light on this topic.

Article 56 indicates that headcount for court personnel is subject to special regulation(人民法院人员编制实行专项管理, distinct from other civil servants.

Article 58 incorporates into the law President Zhou Qiang’s focus on the informatization (including the use of the internet and big data) of the Chinese courts.

Drafting process

The drafting process (the explanation and other articles have the details) reflects the drafting of much Chinese legislation (further insights about the process from Jamie Horsley here).  The SPC Party Group designated personnel to research specific issues and engage with the drafters. The drafting involved several years of soft consultation by the drafters of relevant Party and government authorities, plus limited public consultations. Among the central Party authorities consulted were: Central Commission for Discipline Inspection, Central Organizational Department (in charge of cadres); Central Staffing Commission (in charge of headcount); Central Political-Legal Committee.  On the government side: Supreme People’s Court and Procuratorate; State Council Legislative Affairs Office; Ministry of Finance, National People’s Congress Legal Work Committee. Investigations and consultations were also done at a local level.

Supreme People’s Court & Supreme Court Justice Roberts’ 2017 year-end report

download-2Chief Justice John Roberts of the United States Supreme Court may be surprised to learn that a translated version of his 2017 year-end report on the federal courts was recently published by the People’s Court Daily, as it has been for the past twelve years. It was republished by Wechat and Weibo sites affiliated with the Supreme People’s Court (SPC) and other prominent Wechat public accounts and legal websites. What significance does the report have?

The translators that bring the year-end reports to Chinese readers are Mr. Huang Bin (formerly of the SPC’s China Institute of Applied Jurisprudence and now of the National Judicial College, a former Yale Law School visiting scholar) and Ms. Yang Yi (China Institute of Applied Jurisprudence, a former Columbia Law School visiting scholar).

Two subjects in Justice Roberts’ 2017 report are likely to resonate with Chinese readers. The first is how the federal courts dealt with national disasters in 2017 (introductory comments in some of the Wechat versions mention that China has only scattered legislative provisions related to emergency measures for the courts). The second is sexual harassment and Justice Roberts’ request to the Director of the Administrative Office of the United States Courts to organize a working group to review the code of conduct for the federal judiciary, guidance to employees on issues of confidentiality and reporting of instances of misconduct, and rules for investigating and processing misconduct complaints.

The #Metoo movement has not yet explicitly affected the Chinese courts. However, it is likely that Chief Justice Roberts’ acknowledgment that existing rules and structures for dealing with sexual harassment complaints are inadequate that resonates with Chinese women judges and judicial support staff, who make an increasingly large percentage of the Chinese judiciary. It seems likely (confirmed by discrete inquiries) that sexual harassment occurs in Chinese courts as well.

More broadly, what relevance does Justice Robert’s report and others on the US federal and state judiciary have for the Chinese judiciary after the 19th Party Congress, when in October, 2017 Communist Party Central Committee policy on the training of judges and prosecutors lists first resolutely opposing erosion by the mistaken Western rule of law viewpoint” (坚决抵制西方错误法治观点侵蚀)? To the careful observer, the publication of these reports and other articles on specific issues in SPC publications means that the senior and lower levels of the Chinese courts have an ongoing interest in what the US federal and state courts are doing and look to commonalities and takeaways (despite the vast differences in the two systems).

Another example of the Chinese courts looking to commonalities with the US courts occurred earlier this month (January) when the China Institute of Applied Jurisprudence published a Chinese summary of the National Center for State Courts’ 2017 survey on public confidence in the state courts. The article appears to be a republication of an article previously published internally and reflects the concern of the Chinese judiciary with public trust.

The takeaways, that is referring to or borrowing foreign legal concepts or models to reform China’s judicial system remains politically sensitive. In Party General Secretary and President Xi Jinping’s 19th Party Congress speech, he called for the continuation of judicial reform:

We will carry out comprehensive and integrated reform of the judicial system and enforce judicial accountability in all respects, so that the people can see in every judicial case that justice is served.

 Earlier in 2017, when visiting the China University of Political Science and Law, Xi Jinping cautioned that Chinese legal reform does not mean wholesale adoption of foreign law and institutions:

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).

What a careful observer notices from monitoring SPC media is that those involved with reform of discrete areas of Chinese legislation and judicial practice continue (in the pre/post 19th Party Congress era) to look at US federal/state law (and other foreign law) structures and practices, including: use of mediation in federal appeals cases; bankruptcy practicereform of Chinese nuclear safety legislation to broaden the scope of information released to the public, that is in specific areas that do not involve basic principles of the Chinese courts.

 

 

 

New circuit courts opening soon in Shenzhen and Shenyang

Chinese press reports have revealed that the Supreme People’s Court (Court) will establish pilot circuit courts (巡回法庭) in Shenzhen and Shenyang by year’s end.  According to Chinese social media, Judge Liu Guixiang will head the Shenzhen circuit court, which has now been officially confirmed.  The vice presidents in Shenzhen will be Zhou Fan, formerly deputy head of the #4 civil division and Kong Xiangjun, formerly deputy head of the #3 civil division.  Hu Yunteng will head the Shenyang circuit court, while the vice presidents will be Zheng Xuelin, who now heads the environmental division and Yu Zhengping of the trial supervision tribunal.

The Central Leading Group for Judicial Reform approved their establishment in early December.  Although documents have not yet been released describing their location, jurisdiction or the personnel appointed, press reports pinpoint the former site of the Shenzhen Intermediate Court on Hongling Road as the location of the Shenzhen circuit court, with jurisdiction over administrative and major commercial trans-provincial cases arising in Guangdong, Guangxi, and Hainan. According to press reports, the Court issued a notice to judges inviting applications for the circuit courts.

On 30 December, the Court announced that the circuit courts will start taking cases from the beginning of 2015.

Where is the Supreme People’s Court headed with judicial committee reform?

55e15ba4755d55f74efa66a505224312Judicial (also called adjudication) committees are the unseen force behind the panel of three judges hearing a case in a Chinese court.  The decision a judicial committee makes binds the panel that heard the case.  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.

For this reason, judicial committees are important to anyone involved with or concerned with the Chinese courts, whether as a lawyer, litigant, or representative of a foreign or international organization, NGO, or government.

The Third and Fourth Plenum Decisions both mentioned judicial committee reform but without any details.  The Court has revealed the direction of its thinking on this topic in two recent articles published this month (December, 2014) on the national court website.

What are judicial committees?

Throughout the history of the PRC, court legislation has stated 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. They decide cases that are too difficult or important for an individual judge or judicial panel to decide, to ensure the optimal substantive result (as seen from the institutional perspective of the courts.  Judicial committees have long been criticized by the academic community both inside and outside of China, and some judges have written about their drawbacks as well.

Judicial committees operate under 2010 regulations that I analyzed in an earlier article (Reforming judicial committees).  (According to those rules, major cases such as death sentences must be approved by a court’s judicial committee, so judicial committees must have been involved in the mistaken cases mentioned above).  (For those interested learning more about  the operations of the judicial committee of a local court, I highly recommend the study linked here).

The state of judicial committee reform policy

For over a year, the Supreme People’s Court (which itself has a judicial committee) has apparently been exploring where it wants to go with its policies towards judicial committees.  Both the Third and Fourth Plenum Decisions signalled that some reform of the judicial committee system was on the agenda:

  • Reform the trial committee system, perfect case handling responsibility systems for presiding judges and collegiate benches, let those hearing the case judge, and those judging the case be responsible.
  • Clarify the duties of all levels within judicial organs and complete internal mechanisms for supervision and check. Internal personnel of judicial organs must not violate provisions to interfere with other personnel’s handling of cases, establish recording and accountability systems for internal personnel looking into cases. Improve case handling responsibility systems for presiding judges, collegial panels, … to implement a system where the person handling the cases bears responsibility.

Issues with judicial committees

Wang Bin, a judge on the Nanjing Intermediate Court commented on some of the issues she has observed with judicial committees in an article published in early December in the People’s Court Daily:

1. The judicial committee inserts a  “subjective filter” between the judges who try cases and the judicial committee that decides the case, “making it difficult to guarantee the objectivity and accuracy of the results of the judgment.”

2.Judicial committees decide cases in conference, which involves a wide range and large number of cases. Although the 2010 regulations require the judges that heard the case to prepare a written report, Judge Wang notes that judicial committee members have neither the opportunity nor the time and energy to learn more about the specific circumstances of each case.  The committee has a large number of members (court president, vice presidents,division heads and some specialist committee members, and the local procurator), which means each case receives limited discussion time and and the views of defense counsel are not properly considered.

3. The members of the judicial committee include heads of the criminal, civil, and administrative divisions of a court, but with the greater complexity of Chinese legislation and the cases coming before the courts, and the fact that each member of the committee receives one vote, it is difficult to ensure that the resulting decision will be fair and appropriate.

Judicial committee reform

The solutions that she suggests are in line with (and more pointed than) those suggested by  President Zhou Qiang, whose remarks need to be appropriate for the wide range of Chinese courts.

1. Judicial committees should provide a macro-level guidance to judges. Given the increase in a broad range of litigation, judicial committees should use their authority to select typical cases, summarize best practices, and issue normative documents.

2. Judicial committees should reduce the number of actual cases that they decide.  Judge Wang suggests (as have others), that the standard under which cases are submitted to the judicial committee are too vague, and more specific guidance should be drafted. Cases in which evidence is disputed should not be submitted to a judicial committee.

3. Judge Wang recommends that criminal cases that judicial committees discuss should be limited to ones in which the evidence is clear, and most cases should be decided by the panel that has heard the case. In death penalty cases, a vote of 2/3 of judicial committee members should be required (rather than a simple majority), because this is more consistent with national death penalty policy.

4. The members of the judicial committee should be selected for their professional competence rather than their administrative rank.

5. Judge Wang suggests the decision making process should be changed, so that members are required to state their view and rationale before voting.

6.  Judge Wang advocates that the procurator not be a member of the judicial committee.  In her view, this violates the principle of independence of the judiciary and interferes with justice.

President Zhou Qiang links judicial committee reforms to principles of judicial responsibility, suggesting that judicial committee meetings be recorded and judicial committee members assume responsibility for their decisions.

We can expect these judicial committee reforms to take firmer shape in the medium term.  While President Zhou Qiang mentioned that the Court will take the lead in implementing some of these judicial committee reforms, according to recent press reports, these will also be incorporated into some of the local pilot projects.