Farewell Judge Fang Jingang

 

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Funeral of Judge Fang Jinggang, #4 Circuit Court, Zhengzhou

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from website of Yale’s Paul Tsai China Center

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While Party leaders (including Supreme People’s Court (SPC) President Zhou Qiang) were attending the 19th Communist Party Congress, tragedy again struck the Chinese judiciary. Supreme People’s Court (SPC) Judge Fang Jingang, who was working in the #4 Circuit Court in Zhengzhou, succumbed to a heart attack at the age of 51. Joining the dark-suited crowd pictured above (his circuit court colleagues and selected current and former senior personnel from Supreme People’s Court (SPC) headquarters and elsewhere, including his former superior Jing Hanchao, now deputy secretary of the Central Political Legal Committee )  in spirit was a large crowd of former colleagues and friends, located in China and abroad who were unable to attend the funeral in person.

Judge Fang can be considered a symbol of the new generation of elite Chinese judges. He spent many years  in the local courts as well as the SPC and also spent time abroad.  Like many of his colleagues, he had a PhD, and had worked in Hunan courts before being recruited to the SPC, initially to the Institute of Applied Jurisprudence and SPC’s judicial reform office. While at the Institute and thereafter, he and colleagues translated foreign materials (including several year-end reports of the federal judiciary) for internal reference and publication and he continued to research and make use of foreign law. He also spent several months at Yale Law School as a visiting scholar and as a result made friends among the Chinese law academic community in the United States (and continued to keep up with English language news, presumably from foreign sources).

After he returned to China he transferred to the “front line”–to the SPC’s case acceptance division and #2 civil division and was also sent to work in Tibet’s Higher People’s Court for three years under the SPC’s “assist Tibet” program.  While at the #2 civil division, he was part of the team of people drafting the #4 Company Law interpretation and has been at the #4 Circuit Court in Zhengzhou since the beginning of this year.  He continued to work with his #2 civil division colleagues on the Company Law interpretation and somehow find time to write articles on the interpretation, including one comparing US corporation law with the new Company Law interpretation, the latter published posthumously.

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Judge Fang in meeting at 4th Circuit with Columbia Law School Prof. Benjamin Liebman & others, May, 2017

SPC-related media obituaries range from the very official (on the SPC website) to the more personal (this one with quotes from several of his former colleagues). Early indications are that Judge Fang may also become a “model judge” (like Judge Zou Bihua) as SPC President Zhou Qiang and Executive Vice President Shen Deyong have already said that others should learn from Judge Fang. Judge Fang was posthumously awarded the title of “national excellent judge.”

Query whether Judge Fang’s death might indicate that the SPC’s circuit court model is too “lean and mean.” Statistics issued by the SPC in August indicate that almost half of all cases accepted by the SPC in the first half of this year have been accepted by the circuit courts, meaning that circuit court judges are under extreme pressure to deal with cases that are complicated/involving large amounts in dispute on time, and discrete inquiries indicate that many are working weekends and into the night.  Like Fang, many of them who were involved in judicial interpretation drafting when working at SPC headquarters continue to provide input to the work of their colleagues at SPC headquarters and are pulled into other research and writing projects.  And like Fang, working in a circuit court means that they away from their families.

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Judge Fang, center, singing karaoke

When singing karaoke recently, he changed the lyrics of a song to say “live as a fourth circuit person, die as a fourth circuit spirit.” 还说:“生是四巡人,死是四巡鬼”

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Chinese courts & “foreign beneficial experience”

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US 7th Circuit Judge Posner speaking by videolink at National Judicial College (NJC) in 2016

Supreme People’s Court (SPC) President Zhou Qiang has been widely quoted for saying in January of this year that Chinese courts should strengthen ideological work and show the sword to mistaken Western ideas of “constitutional democracy”, “separation of powers” and “judicial independence.” What is not widely known outside China is that the relationship between the Chinese judiciary and some of the major international judiciaries (I’ll use the term “Western”) is more nuanced than it appears.  Close observation reveals the following:

  • high-level summits between major foreign and Chinese judiciaries;
  • senior Western judges speaking to or providing training to senior Chinese judges;
  • pilot projects in the Chinese courts involving foreign judiciaries;
  • SPC journals and media outlets publishing the translation of cases from and reports of major Western judiciaries; and
  • SPC judges reviewing legislation, institutions, and concepts from other judiciaries in judicial reform.

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 further elaborated this view on his visit to China University of Political Science and Law on May 3:

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).

[The Xinhua report on Xi’s visit in English–“China should take successful legal practices worldwide as reference, but not simply copy them” omits the detail found in the Chinese reports.

Some examples of the way  the SPC considers the “beneficial legal experiences in the rule of law abroad”:

  1. High level summits (some of which were agreed to on a presidential/head of state level) on commercial legal issues, such as the August, 2016 U.S.-China (or China-U.S.) Judicial Summit
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August, 2016 US-China Judicial Dialogue, then Principal Deputy Associate Attorney General William Baer in foreground

“Our three talented and experienced U.S. judges discussed with senior Chinese judges and other experts topics relevant to commercial cases, ranging from case management to evidence, expert witnesses, amicus briefs, the use of precedents and China’s system of “guiding cases.” Speakers from both sides gave presentations that explored complex questions on technical areas of law. The conversations, during the formal meetings and tea breaks, were lively, candid, direct and constructive, highlighting both the similarities in and important differences between the U.S. and Chinese legal and judicial systems. I told our Chinese hosts that the views our judges expressed would be entirely their own, reflecting our separation of powers and the independence of our judiciary. Our judges displayed that independence as they weighed in on a range of issues, such as the role of precedents in interpreting statutes and the challenge of balancing public access to information while safeguarding privacy and protecting trade secrets.

Several of the Chinese participants discussed pending cases in U.S. courts involving Chinese defendants. I [William Baer] believe it was useful for us to air our differences and for our experts to exchange views on technical and sensitive areas of law. At the meeting, it was clear that although we come from different backgrounds and will not always agree, we all recognize the importance of legal reasoning and that increased transparency is a way of earning the public’s trust in the fairness and objectivity of the judicial system.”(from the DOJ website).

2.  Training of Chinese judges by foreign judges

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Dr. Matthias Keller, presiding judge, Aachen administrative court, teaching at NJC, March, 2017

A number of foreign judiciaries have in place long-term training programs with the Chinese judiciary, with the German judiciary among the pioneers.  The National Judicial College (NJC) (affiliated with the SPC) has a long-term program in place with the Germany judiciary, involving the German Judicial Academy, the German Federal Ministry of Justice & Consumer Protection, GIZ (the German international cooperation organization) and other parties, which teaches subsumption and related techniques of applying laws to facts (further explained here).  The NJC has published a set of textbooks that apply the subsumption method to Chinese law.

It is likely that close to 10,000 Chinese judges have been trained under the German program. Common sense indicates that the NJC has continued with the program because it is useful to Chinese judges.

A recent example of  the German training program is illustrated by the photo above, showing Dr. Matthias Keller, presiding judge of the Aachen administrative court giving a training course on the methodology of the application of law in administrative law to 150 Chinese administrative judges, mostly from intermediate and higher people’s courts.

3. Pilot projects in the Chinese courts involving foreign judiciaries

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Australian judges have worked with the Australian Human Rights Commission on a ‘Sino-Australia Anti-Domestic Violence Multi-Agency Putian Pilot Program’ in Putian, Fujian Province, involving judges from the SPC, Fujian Higher People’s Court, and Putian Intermediate Court.

4.  Publishing the translation of cases and reports from foreign judiciaries.

Some examples in recent months include:

  •  excerpts from Supreme Court decision Padilla v. Kentucky (published 7 February 2017), for those unfamiliar, it relates to plea bargaining and effective counsel);
  • U.S. Chief Justice Robert’s 2016 year end report on the federal judiciary;
  • U.S. federal judiciary’s strategic plan, for their takeaways for a Chinese audience;
  • Summary of a July, 2016 report on cameras in the federal courts;
  • Summary of the UK’s 2015 Civil Justice Council’s Online Dispute Resolution Advisory Group’s report on Online Dispute Resolution for Low Value Civil Claims.

5. Considering foreign legal concepts in judicial reform

Foreign legal concepts are considered by the SPC in a broad range of areas of legal reform, most of them unknown to foreign observers.  Several of the more well known examples include: plea bargaining  (see this article by an SPC judge (a comparison with the US “model” is included in Jeremy Daum’s  analysis of China’s expedited criminal procedure reform).  Last year’s policy document on diversified dispute resolution (previous blogpost here) specifically mentions considering concepts from abroad,On the ongoing amendments to the Judges’ Law (the draft has not yet been released), SPC Vice President Shen Deyong said in late April, “we need to learn from and refer to the successful practices of the management system of the judicial team by jurisdictions abroad, but they must be selectively filtered for Chinese use (要学习借鉴域外法官队伍管理的制度成果,甄别吸收,为我所用)。

Comment

A careful review of official statements, publications, and actions by the SPC and its affiliated institutions, as well as research by individual SPC judges shows an intense interest in how the rest of the world deals with some of the challenges facing the Chinese judiciary coupled with a recognition that any possible foreign model or provision will need to fit the political, cultural, economic, and institutional reality of China, and that certain poisonous ideas must not be transplanted.  [Those particularly interested could pore through two publications of the SPC judicial reform office (Guide to the Opinions on Comprehensively Deepening Reforms of People’s Courts and the Guide to the Opinions on Judicial Accountability System of People’s Courts, in which the authors discuss relevant provisions in principal jurisdictions abroad.]

Those who either are most concerned about diluting the Chinese essence of the SPC (or jealous/emotionally bruised) seem to have saved their most poisonous criticism for off-line comments, as I am unable to locate a written version of the nasty comments that a senior Chinese academic shared with me about the over-Westernization of judicial reform or other nasty comments said to have been made about research by certain SPC judges into foreign legal systems.  It is hard to know whether the persons involved are motivated by jealousy or a real belief that these measures described above will have a negative effect on the development of the Chinese judiciary.  It seems safe to say that the concerns raised in the 19th century on the dilution of the essence of Chinese culture when borrowing from the West seem to be alive and well in the 21st century.

 

US Federal Judiciary Strategic Plan Attracts Thousands of Chinese Readers

Cover of Strategic Plan for the Federal Judiciary

In September 2015, the Judicial Conference of the United States issued its updated strategic plan.  Likely much to Justice Roberts’ surprise, (but not Justice Alito, who met that month with Supreme People’s Court (SPC) President Zhou Qiang), the plan (or at least the translation of selected sections) is attracting thousands of new readers in China. (likely more than it did in the US)  The translation was set out in two 3/4 page articles published in People’s Court Daily in late September.  As the translators, headed by Judge He Fan of the SPC, said, “for Chinese judicial reforms, there is no lack of things we can draw on.” They translated all of the major issues set out below (taken directly from the strategic plan) and selected strategies and goals related those issues that resonate with the Chinese judiciary.

As the US transitions to a new president who not only will appoint a Supreme Court justice, but also fill 105 vacancies in the federal courts, the strategic plan provides food for thought for all concerned about if and how justice is delivered around the world.

Preamble

The federal judiciary is respected throughout America and the world for its excellence, for the independence of its judges, and for its delivery of equal justice under the law.Through this plan, the judiciary identifies a set of strategies that will enable it to continue as a model in providing fair and impartial justice.

Mission

The United States Courts are an independent, national judiciary providing fair and impartial justice within the jurisdiction conferred by the Constitution and Congress. As an equal branch of government, the federal judiciary preserves and enhances its core values as the courts meet changing national and local needs.

Core Values

Equal Justice: fairness and impartiality in the administration of justice; accessibility of court processes; treatment of all with dignity and respect

Judicial Independence: the ability to render justice without fear that decisions may threaten tenure, compensation, or security; sufficient structural autonomy for the judiciary as an equal branch of government in matters of internal governance and management

Accountability: stringent standards of conduct; self-enforcement of legal and ethical rules; good stewardship of public funds and property; effective and efficient use of resources

Excellence: adherence to the highest jurisprudential and administrative standards; effective recruitment, development, and retention of highly competent and diverse judges and staff; commitment to innovative management and administration; availability of sufficient financial and other resources

Service: commitment to the faithful discharge of official duties; allegiance to the Constitution and laws of the United States; dedication to meeting the needs of jurors, court users, and the public in a timely and effective manner.

Issue 1. Providing Justice

How can the judiciary provide justice in a more effective manner and meet new and increasing demands, while adhering to its core values?

Issue 2. The Effective and Efficient Management of Public Resources

How can the judiciary provide justice consistent with its core values while managing limited resources and programs in a manner that reflects workload variances and funding realities?

Issue 3. The Judiciary Workforce for the Future

How can the judiciary continue to attract, develop, and retain a highly competent and diverse complement of judges and staff, while meeting future workforce requirements and accommodating changes in career expectations?

Issue 4. Harnessing Technology’s Potential

How can the judiciary develop national technology systems while fostering the development of creative approaches and solutions at the local level?

Issue 5. Enhancing Access to the Judicial Process

How can courts remain comprehensible, accessible, and affordable for people who participate in the judicial process while responding to demographic and socioeconomic changes?

Issue 6. The Judiciary’s Relationships with the Other Branches of Government

How can the judiciary develop and sustain effective relationships with Congress and the executive branch, yet preserve appropriate autonomy in judiciary governance, management and decisionmaking?

Issue 7. Enhancing Public Understanding, Trust, and Confidence

How should the judiciary promote public trust and confidence in the federal courts in a manner consistent with its role within the federal government?