A brief notice appeared on the China International Commercial Court (CICC)’s websites on 9 August, announcing that the Office of the International Commercial Expert Committee (Expert Committee) of the Supreme People’s Court (SPC) (国际商事专家委员会办公室) had been renamed the Coordination and Guidance Office (协调指导办公室) for the CICC from 21st June 2019. The main duties of the Office are described as directing and coordinating construction, adjudication management and external exchange (负责指导协调国际商事法庭建设、审判管理、对外交流; 负责国际商事专家委员日常工作等) of the CICC, and also in charge of the routine work of members of the Expert Committee. I surmise that these functions are meant to convey that the office will not only support activities related to the Expert Committee but also be responsible for a variety of matters, such as coordinating the drafting of rules and the wide variety of administrative matters that go along with any administrative entity in China, particularly one that deals with foreigners. The notice also announced that from 23rd July 2019, Ms. Long Fei, who has a Ph.D. from China University of Political Science and Law, has been appointed as the Deputy Director (Person in Charge) of the Coordination and Guidance Office. She had formerly been the Director of Department of Guidance Service, Judicial Reform Office of the SPC. She brings to the new role many years of work on diversified dispute resolution related issues.
As I described in a detailed blogpost last December (2018), the SPC intends to increase judicial transparency. However, that does not yet extend to the gender ratio of judges at the SPC. In a recent academic article, I discussed transparency concerning information on the number of judges in a court, including the SPC (excerpted below).
The SPC has been relatively late in expanding transparency concerning its own judges for reasons explored below. Information concerning the number of judges on the SPC was not readily available until July, 2017, when reports on the implementation of the quota judge system in the Supreme People’s Court revealed that there had been 642 judges,with 367 judges designated as quota [员额制] judges. The SPC does not list the number of contract staff or other support staff on its website. When the circuit courts were established, the SPC began to publish basic information concerning all judges. Some commentators suggest that the sensitivity concerning releasing data about the number of SPC judges may relate in part to the connection with the death penalty, because releasing this information would give an indication of the number of judges engaged in death penalty reviews and possibly to the number of annual executions. Another concern that has been mooted was that minimising the transparency of information related to SPC judges would reduce media focus on the resignation of judges from the SPC.
As to the number of judges in lower courts, that appears to be increasingly transparent, as many courts begin to list the number of personnel on their staff. For example, the website of one of the Shenzhen district courts states: ‘The court has a total of 629 people on staff, among which 391 are permanent staff (including 282 political-legal staff, 109 ordinary staff); contract staff 238, 160 judges; 51 judges with graduate training, 104 university graduates;
98.1% of the judges are university graduates or above’. Corresponding information is not yet available on the SPC website.
As I discussed in an earlier blogpost, not all of the professional staff at the SPC is permanently employed by the SPC, as the SPC compensates for headcount limits imposed by the Central Staffing Commission (another institution that awaits clear exposition in English) by borrowing staff from the lower courts. Lower courts compensate for headcount limits by hiring contract support staff. (I look forward to someone setting out in clear language (Chinese or English) the way in which Chinese courts are funded in the new era).
It could be that transparency concerning the number and identities
of judges is linked to transparency developments by the Central Staffing Commission [中央机构编制委员会办公室], a Party-State organisation that regulates staffing in Party and state entities. As suggested below, the entire regulatory structure concerning court staffing, and the control of staffing of political legal
institutions does not itself appear to be very transparent.
….In 2015, the Central Staffing Commission issued a document on
reforming the treatment of political-legal staff, including judges, but the
document itself has not been made public.
So in March (connected with a presentation I gave in Beijing at Peking University’s Yenching Academy’s conference on the role of women in China), I did an informal survey. As you can see from the judges listed among SPC leaders, only Justice Tao Kaiyuan (pictured above) is a woman.
There have previously been other women SPC vice presidents, including Justice He Rong, now head of the Supervision Commission and deputy Party Secretary of Shanxi Province (apparently she has been transferred to that role on the principle of cadre rotation). Justice Huang Ermei has retired.
Some of the many reasons that the SPC has so few women in senior leadership positions is that in the first years that Chinese law schools accepted students, relatively few women studied law. Moreover, women in China face an earlier retirement age. And then there is the issue of having the correct portfolio of leadership skills for the system.
Based on my unofficial research, the civil divisions appear to be at least 50:50. The #4 Civil Division has a woman as head of the division (Judge Wang Shumei), who has replaced Judge Zhang Yongjian (apparently he will be retiring), with Judge Gao Xiaoli (also a woman, and featured in these blogposts) remaining as deputy head of the division. It appears that the SPC has an increasing number of women in deputy division head roles (apart from women academics, such as Wang Xiumei,who are working at the SPC under the guazhi program. Scholars working at the SPC under that program are designated as deputy division heads). It is understood that the trial supervision division has more women, while the administrative division has more men. The five criminal divisions are said to have more men than women. The enforcement bureau is said to have more men than women.
One informed person suggested that at least some of the reasons relate to the need to travel when working in the criminal divisions, and women having to fulfill traditional gender roles in taking care of children and the elderly. A more scholarly analysis of this issue is found here, for those with the tools to access academic articles behind paywalls.
As to future trends, most Chinese law schools have more women than men students, with some lower courts trending to 50:50 men/women judges. Recruiting judges from current judicial assistants likely to mean the gender balance moves increasingly towards more women, particularly as all studies I have seen, including one done in 2018, involving judges resigning indicate many more men leaving the judiciary than women. At the lower level there is an increasing number of women court presidents. Professor Sida Liu of the University of Toronto and two collaborators published the academic study on the feminization of the Chinese judiciary cited above and summarized here.
Outside observers reading Chinese official media, including reports on the Supreme People’s Court’s website, need special skills to identify significant developments. One of those small but significant developments is found in a 23 December 2018 report on the visit of Shen Yueyue, the head of the All-China Women’s Federation (Women’s Federation) to the Supreme People’s Court, pictured above. The women’s rights and interests department of the Women’s Federation must have prepared the list of issues that she raised. The crucial paragraph reported:
…the Women’s Federation hopes to further strengthen exchanges and cooperation with the Supreme People’s Court. The first is to strengthen protection from the source [deal with the source of the problem], fully consider the special interests and potential impacts on women in the process of judicial interpretation, and jointly promote the establishment of a gender equality assessment mechanism. The second is to follow the legislative process, strengthen cooperation in the preparation of the Civil Code, and jointly propose legislative proposals to protect rural women’s land rights, prevent and stop gender discrimination in employment, and promote the improvement of the legal system for women’s rights and interests. The third is to focus on key areas, strengthen cooperation in the reform of the family trial system, improve the diversified solution mechanism of contradictions and disputes, and play the role of the people’s mediation committee, and promote the prevention and resolution of marriage and family disputes. Fourth, jointly promote the resolution of prominent problems in judicial protection of women’s rights and interests, and effectively resolve prominent problems which women are concerned. [沈跃跃表示，全国妇联希望与最高人民法院进一步加强交流合作。一是加强源头保障，在司法解释制定过程中充分考虑女性的特殊利益和潜在影响，共同推动建立性别平等评估机制。二是紧跟立法进程，加强在民法典分编制定中的合作，共同向立法机关提出保障农村妇女土地权益、预防和制止就业性别歧视等立法建议，推动完善妇女权益保障法律体系。三是关注重点领域，在推进家事审判制度改革、完善矛盾纠纷多元化解机制、发挥人民调解委员会作用等方面加强合作，推动婚姻家庭矛盾的预防和化解。四是坚持问题导向，共同促进妇女权益司法保护突出问题和妇女关心关切现实问题的有效解决.]
Some brief comments below on some of the many issues:
- Special interests of women in drafting judicial interpretations
This may be linked to the five-year plan to implement socialist core values into judicial interpretations discussed in this earlier blogpost. The report did not mention the official reaction to having a gender equality assessment mechanism incorporated into the SPC’s judicial interpretation drafting process or other improving the consideration of women’s interests.
As mentioned in the blogpost, the plan includes amending and improving judicial interpretations related to the Marriage Law and family law, etc. As Professor Yang Lixin of Renmin University (formerly an SPC judge) assesses the state of the law and related issues in this forthright analysis. He comments on the state of Chinese family law: …”the legal concepts of the Marriage Law and the Inheritance Law are relatively backward, which is the main problem of current family law.” Professor Yang goes on to discuss a number of family law issues that Chinese law fails to deal with, but affect Chinese women (and other women living in China).
Professor Yang had this to say about de facto marriage (what we Americans sometimes call “common law” marriage) (or what my (late) father called “living in sin.”) “The concept of de facto marriage is completely abolished in the field of civil law. However, it is particularly contradictory that in criminal law, it is recognized that defacto marriage is a marriage relationship…When sanctions are imposed on the parties, the factual marriage relationship is recognized. When the rights are recognized, the de facto marriage relationship is not recognized. This is a completely contradictory application of law.
He had this to say about another issue for many Chinese women–children born out of wedlock (The Economist, among other major media, have written on this):
China’s current Marriage Law does not provide for claims by children born out of wedlock and does not stipulate that children born within a marriage can be denied status as children of the marriage. Children born out of wedlock are born from extramarital sex, that is, children are born out of wedlock, and the child or the mother must have the father to claim the child as a child…For example, a child born out of wedlock needs to be raised, and the mother is unable fully to support the child. She has reason to seek to confirm that the father of the child is the father, and then ask him to support the child. This kind of thing does occur, but our marriage and family law has not had such a rule until now. It is because we have socialist marriage values, we can’t engage in extramarital affairs, we can’t have children born out of wedlock, and the establishment of such a system is tantamount to acknowledging the legitimacy of such behavior.
Among the many concerns is that forthcoming judicial interpretations of the Marriage Law, designed to incorporate socialist core values to protect the stability of the family unit in Chinese society, could disadvantage women.
2. Strengthen cooperation in the preparation of the Civil Code and promote the legalization of women’s rights protection
As fellow blogger Mark Cohen and I have reported earlier, the SPC set up a civil law codification team, with Justice Du Wanhua taking the lead. It appears that Professors Xia Yinlan of the China University of Political Science and Law and Li Mingshun of China Women’s University (among others) are working with the Women’s Federation and other scholars to seek to ensure that women’s rights are protected, as socialist ore values will also be integrated into the drafting of the Civil Code.
3. Legislative proposals to protect rural women’s land rights;
How to ensure that the rights of rural women to land are protected is a major problem, particularly now that the Chinese government is focusing on policies that marketize rural land interests. Professor Li Huiying of the Communist Party’s Central Party School has been a major force in pushing national attention to this issue. She wrote:
some people are farmers, but have no rights to get the contracted lands due to their “gender” or the identity “additional population”….
Firstly, 18 percent of married rural women do not have their names mentioned on either their parent’s families or their husband’s families land contracts.
Nearly 53 percent of married rural women’s land contracts were canceled by their home villages, according to an investigation among 1,126 such women in 21 provinces and municipalities nationwide, as conducted by the Center for Women’s Studies at Party School of the Central Committee of the CPC in 2014.
The National People’s Congress Standing Committee adopted an amendment to the Rural Land Contracting Law last December, mandating that rural women’s names be included in their families’ certificates of land contracting and management rights, so it is likely that Ms. Shen had other legislation and enforcement of this newly amended provision in mind.
4. Prevent and stop gender discrimination in employment
This is a long-term problem, reported not only the media, academia, but also by the business community. The SPC recently amended the civil causes of action to enable discrimination claims, but the substantive standards for discrimination are still lacking. It seems likely that multi-year discussions with the SPC headed by Ms. Gao Shawei, head of the Women’s Rights and Interests Department of the Women’s Federation were behind the inclusion of discrimination claims in the list of civil causes of action. She was quoted in this 2016 article in People’s Court Daily making that suggestion. As mentioned in an earlier blogpost, the SPC is drafting a judicial interpretation of the Labor Contract Law, and it is conceivable that standards would be incorporated into that draft.
5. strengthen cooperation in the reform of the family court system; improving the systems for trying family-related cases and mediation
The SPC has been working on reforms to the family court system for some time, as previously reported and improving the use of mediation, but the obstacles are immense, as this interview with a local family court judge describes. The court where she works is actually among the courts piloting family court reforms, as further described by the head of her court. He provides a chart with statistics, not labeled as being from his court, but clearly from there (the blue column is the number of family disputes; the red, the number of divorce cases; the green, the number of divorce cases settled by mediation; and the purple column the number of cases in which the couple dropped their suit after a mediated settlement):
Comprehensive statistics on women in the Chinese judiciary are difficult to locate. Although there is a Women’s Judges Association under the Supreme People’s Court (SPC), it lacks a web presence. I have not been able to identify the number of women judges on the SPC (as requested earlier this year by a research team assembling statistics on women in the judiciary worldwide). According to the Chinese National Bureau of Statistics, in 2013 there were 57,200 women judges, constituting 28.8% of all judges, compared to 44,502 women judges in 2009, constituting for 23.48%. It appears that there are fewer women judges at a senior level, possibly due to the fact that fewer women studied law in the first years after Chinese law schools re-opened post Cultural Revolution, and in part because many have retired at 55.
Senior judges are not immune from the combination of professional work and family obligations. According to Judge Gao Xiaoli, of the First Circuit Court:
We presiding judges are of an age where we have the elderly above us and children below us. Take me as an example. Last year, when I came to Shenzhen, my child wasn’t even 7 years old, and had just started first grade. Working in Shenzhen, I didn’t have time to take care of him, especially when he was sick, I was even more stressed. The First Circuit Court Party Group was concerned about everyone, they let us go home once a month, we leave Friday after work and take the evening flight back, so we don’t miss work on Monday.
According to Chinese media reports, the Zhongshan, Guangdong Women Judges Association has recently established a counselling center, staffed by a trained psychologist, to help women judges and judicial police deal with the pressures of being a wife, daughter, and daughter in law, and an escalating caseload (up 33% in 2015). Other courts are likely to follow.
Women judges and the new normal
Much has been written about Chinese judges leaving the judiciary. A senior official of the SPC has admitted in a recent article that over 1000 judges left in 2015. Anecdotal evidence from some judges I have contacted suggests that more male judges are leaving the courts then women, but statistics on this are either not gathered or reported. The proportion of women judges selected to enter the quota of judges in pilot projects is also unclear. What is mentioned in reports on the pilot projects is that women are able to delay retirement to 60 in those areas, an age at which women judges in many other jurisdictions are still on the bench.
According to a 2009 survey by the Peking University Law School (and many other sources), employment discrimination against women is rampant, with almost one quarter of the women surveyed having been refused employment because of their sex. Will the judiciary become a more welcoming place in China than law firms for women, who now being encouraged to have a second child? How will the judicial reforms, including lifetime responsibility system and new appointment procedures affect women judges and women legal professionals considering joining the judiciary? The current generation of Chinese women law students (including my students) want to know.