Tag Archives: Chinese judicial reform

Dean Jiang Huiling on Chinese Judicial Reform

On 7 January 2022, Dean of Tongji University’s School of Law and Professor Jiang Huiling gave a guest lecture in my School of Transnational Law class.  We were honored to hear Dean Jiang provide his unique perspective and insights on over 20 years of Chinese judicial reform and his insights on future developments. He has been involved with Chinese judicial reform starting from the first plan in 1999 (see also more about his background here).  This blogpost summarizes his presentation. I have inserted my occasional comments in italics. If a point is not more fully elaborated, it means he did not do so.

He spoke on the following six topics:

1. Brief History of Chinese Judicial Reform
2. How Judicial Reform Actions  Are Taken
3. From the 4th to the 5th Judicial Reform Plan
4. Strategic Move: From Judicial Reform to “Zhengfa” (政法) Reform
5. Technical Measures: Rule of Law
6. Future Direction

1. Brief History

Dean Jiang went briskly through the history of judicial reform, commenting that in the first judicial reform plan, the focus was on raising public and professional awareness about the judiciary。 The second one, in which the Central Government greatly supported the SPC to undertake work mechanism (工作机制) reforms, not touching on structural reforms such as the status of judicial personnel. He noted that there was great progress during the second judicial reform plan. He called the third judicial reform plan a test before the New Era, and said that a decision had been taken to de-localize the judiciary and change the status of the judges and prosecutors, but at the end, there wasn’t internal confidence that the legal profession and society would accept such changes.  He called the fourth judicial reform plan a structural, systematic, and radical change to the judicial system, especially the decision that judges would not be treated as ordinary civil servants.  Dean Jiang characterized the fifth judicial reform plan as comprehensive and supplementary, and part of the Zhengfa reforms (as he further explained in the latter part of his presentation).

What were the lessons learned?

  • Right (科学) concept of the judicial system (universal and with Chinese characteristics)–that the legal profession and the leading party accepted the value of the rule of law and the importance of the judiciary;
  • Theoretical preparation–although he thought scholars had not done enough;
  • Consensus for change–the judiciary is regarded as and is a bureaucracy–there is that consensus among both court leaders, who are legal professionals and with a Party role, and ordinary judges, who are legal professionals;
  • Common achievements of human civilization–that means learning from other countries–China had done so not only in science and technology but also in law and democracy. Chinese judicial  reformers had benefited from the open policy–he himself was an example; and
  • Critical role of strong leadership–legal professionals could not initiate fundamental changes themselves–it needed court and political leadership to do so–he quoted General Secretary Xi Jinping on the ability to do what could not have been done before.

2. How Judicial Reform Actions are Taken

Dean Jiang rapidly made the following six points:

  1. Judicial awareness and enlightenment;
  2. Negative case matters;
  3. Reform for branches and reform for all (parochialism);
  4. Top-down design and comprehensive reform–the court system is part of the political system and reform has to be done by the Central Government;
  5.  Coordination with other departments–in China, unlike in other countries, some matters require coordination with other departments, such as the Ministry of Finance;
  6. A group of devoted experts–both within the judiciary and among academics.

3. From the 4th to the 5th Judicial Reform Plan

Dean Jiang mentioned that the two plans are connected, but that significant differences exist in the value or orientation of the two plans. The fourth one made radical (revolutionary) changes to the judicial system. The fifth one is a new phase, and comes after the completion of the fourth one, which made the following fundamental changes:

  1. Structural changes–delocalizing the judicial system
  2. Status of the judges and prosecutors
  3. Changes to the internal operation of the judiciary
  4. Improvements to the guarantees for judges and prosecutors.

Although these reforms are not completed, these were the focus of their work in the judicial reform office of the SPC and of the Central Government.

The 4th judicial reform plan focused on the following:

1. Separation of administrative region and judicial jurisdiction area–delocalization, as Xi Jinping said, the judicial power is a central power, uniform application of law, so that the law is not applied in favor of one locality;
2. Judiciary-centered litigation system–“in the real world in China, the judiciary does not always have the final say”–and in the past the public security and prosecutors had the final say rather than the judges. The reform to have personnel and financing of courts at the provincial level is part of this reform;
3. Optimization of internal power allocation–as a court is a bureaucracy with different entities with different functions, and the leaders have different functions from ordinary judges;
4. Operation of hearing and adjudicatory power
5. Judicial transparency;
6. Judicial personnel–this is basic but very important; and
7. Independence of the court–this is basic but very important.

The 5th judicial reform plan:

  1. Party’s leadership 
  2. Work for the country’s overall task and situationsubject of one of my forthcoming articles
  3. Litigation service–treat litigants properly and give them judicial services– the courts have public funds to pay for legal representation if people do not meet the standard for legal aid
  4. Judicial transparency–“always on the way”
  5. Responsibility-based judicial operation
  6. Court’s organization and function–reforms in that area (he referred to the recent repositioning of the four levels of the court system, among others)
  7. Procedural system
  8. Enforcement reform
  9. Court personnel system reform–better training of judges
  10. Smart court–using technology

The bolding above reflects his stress on those points in his presentation.

Dean Jiang mentioned that the Central Government put the court system into a bigger picture, but that the prior reforms were needed to make the judicial system more professional.  It is for this reason that the Central Government mentions the phrase “judicial reform” much less than before.

The bigger picture is involving the court system more in the development of the whole country. This reflects a change in China’s overall policy, and we Chinese legal professionals need to understand this.

Comparing the 4th and 5th Reform Plans:

  • Similar, but different;
  • Duplicated, but deepening and supplementary;
  • To those unfinished tasks, less emphasis

He said these should be seen in the context of the national plan for achieving the rule of law, and from 2035, China will have achieved rule of law and be a modernized, democratic country–the second 15-year plan will be about rule of law.  He thinks that the timing is insufficient.

4. Strategic Move: From Judicial Reform to “Zhengfa” (政法) Reform

1. Before 2012, judicial work mechanism reform
2. From 2013,Judicial system reform
3. From 2017,Comprehensive supplementary reform of the judicial system
4. From 2019, Promoting Comprehensive
Reform in Zhengfa Area
5. From 2020,Xi Jinping rule of law thoughts

On point 4 above, that relates to a comprehensive document adopted in 2019 [Implementing Opinion On the Comprehensive Deepening Reforms of the Political-Legal Sector 关于政法领域全面深化改革的实施意见, not publicly available but mentioned previously on this blog], of which judicial reform plays only a small part.  From 2020, Xi Jinping rule of law thoughts plays an important guiding role in the role of law. He said all law students and legal professionals should read it because it will have an important impact on the building of rule of law in China.

Structure of the new arrangement:

  • Breadth: From the judiciary to other related areas
  • Depth: From judicial system reform to broader systematic innovation–the latter means is moving from judicial system reform to areas previously little discussed, such as Party leadership and the role of the Political-Legal Commission, and the relationship between the Party and the law.
  • Goal: From fair, efficient, and authoritative judicial system to modernization of Zhengfa work system and capability—that is, that the judicial system is to be part of a modernized governance system and governance capability [国家治理体系和治理能力现代化–from the Decision of the 4th Plenum of the 19th Party Congress]. That is the goal for the next 30 years. It means the rule of law in the future will have a major part to play as part of modernized governance, and the courts will have an even more important role to play in supporting this modernized state governance (this is in my draft article). It may not be apparent from the English words, but it is a change.
  • Method: From branch-driven to Central Committee-driven–how to get there? He says this wording is not quite accurate as the 4th Judicial Reform Plan was also Central Committee driven, but because the Central Government put the project of the rule of law into the modernization of state governance, it has a different method for treating reform in the legal area, but he thinks that change of method is only an improvement.
  • Nature: Chinese style and self-owned brand–when you read English language literature on building a fair and independent judicial system from abroad you will see many common points. In the current arrangement–in the Zhengfa reforms, Chinese characteristics have a great deal of weight and also in the reconstruction of the legal system. Although China has learned a great deal from other countries, China has to go on its own way, since it has its own history, political situation and historical stage and there is a change in the international situation. China has changed its position in the world. He is getting accustomed to this new way to this new way of judicial reform and it will be more difficult for foreigners to understand it.

The change of emphasis can be seen from the VIP (very important research projects of 2021), which are all more general than before:

No. 67. Practice and Experiences of the Party Comprehensively Promote Law-based governance
No. 68. Socialist Legal Theory with Chinese Characteristics
No. 69. Spirit of Socialist Rule of Law
No. 70. Constitution-centered Socialist Legal System with Chinese Characteristics
No. 71. Promoting Comprehensive
Reform in Zhengfa Area

Dean Jiang described the 2019 document mentioned above as containing the following areas of reform.

Seven Areas of Zhengfa Reform:

  1. Party’s leadership of the Zhengfa work–that is the Chinese situation
  2. Deepening reforms of Zhengfa institutions–not only the courts and the prosecutors, but changing the overall structure of Zhengfa institutions
  3. Deepening reform of systems of law implementation–we combined  Legislative Affairs Office (of the State Council 法制办) into the Ministry of Justice [MOJ]–that’s an important change
  4. Deepening reform of social governance system–the Zhengfa Wei important for social governance–one of the most popular words is “governance“–how to support social stability, social development; innovative spirit, people’s lives;
  5.  Public Zhengfa service system–public legal service is part of Zhengfa service–all the political-legal organs will work together to provide efficient high-quality services for the people-人民为中心–Xi Jinping says all our work needs to be people-centered;
  6. Zhengfa profession management reform–no major change here
  7. Application of IT technology–no major change here–continued application of IT in the Zhengfa area

These are seven areas of Zhengfa reform, based on the prior judicial reforms, but now going to a new stage. Governance is a crucial word.

5. Technical Measures

This is what he has devoted his life to before.

  • Law is a profession, and the judicial system is the carrier of law and justice.
  • Law is also science of law.
  • Rule of law is one of the most technical way of state governance.
  • Rule of law will have no efficacy without the joint efforts of other institutions.

He listed 10 legal issues for consideration for reference and research, as these are the most important topics:

  1. Structural reform: local judicial power, or central judicial power–at the present time, the Central Government cannot manage all those 200,000+ judges and prosecutors, and at first stage, the provincial level is taking that over, but he is not sure of the final judicial model
  2.  Organizational reform: bureaucratic or judicial, especially the internal organs–this is a more technical reform, including internal and external organs, different tiers of the court and branches of the judiciary, including the procuracy;
  3. Functions of the four tiers of court:  their role and function–cylinder, or cone (his metaphor of 20 years ago)–should the SPC concentrate on judicial interpretations and a small number of cases, and does not need 400 judges–this relates to the pilot program of late last year on the repositioning of the four levels of the Chinese court; the local courts will focus on factual issues;
  4.  Personnel reform: Profession, or ordinary public servant–this is still an ongoing issue, and in his view, some continental European countries have not resolved this issue either. Although there are improvements, judges and prosecutors feel that it is not sufficient, given their new role in society, and the importance of their work. He agrees, having been a former judge.
  5.  Procedural reform: Court-centered litigation system, fair trial, simplification of procedure–how to make things fairer, and given the more than 10% annual increase in cases, a big burden on judges in particular, how to simplify procedure. This links to the recent amendments to the Civil Procedure Law, which focuses on simplification of procedures and giving online procedures the same status as offline.
  6.  Adjudication committee: advisory, or adjudication–there is a great deal of discussion about it–it is the highest decision-making body in a court (see this blogpost).
  7. Judicial responsibility system: The hearing officer makes the decision, and decision-maker takes the responsibility–司法责任制–this is another tricky one–this is required by the Central Government, a step forward towards the rule of law, instead of having a judge’s boss approve his decision (because the court is bureaucracy)–for China, this is a step towards the rule of law, but there is still a long way to go.
  8.  Supervision over “four types of cases”–that means for most cases, judges take responsibility for their cases, but for difficult, controversial, and possibly having an impact on social stability–because junior judges have different capacities from the more senior–for those four types of cases, the court president and senior court leaders are involved to oversee or supervise (see translation of guidance here, commentary to come)–he has not found useful academic papers on this point;
  9.  ADR (Diversified dispute resolution): this is a traditional topic–optimizing the allocation of resources of dispute resolution
  10. Judicial administration: local government loses its administrative power, but what internal administration;
  11. Judicial democracy: lay judge system–different from common law jury (but China can learn from the common law jury–having them focus on factual rather legal issues)–the law has changed, but academic work is insufficient.
  12. Judicial transparency–this is an old issue, to make the judiciary more transparent to the parties and the public.

These are the major issues in the next five years. These technical legal issues are very interesting and need legal scholars to look at them to support the Zhengfa reforms.

6. Future Direction

  1. Xi Jinping rule of law thoughts–inevitable guideline–some of political and strategic, but it provides some guidelines for basic principles;
  2.  Rule of law-driven first;
  3. Politics driven and guarantee–politics should be a consideration but it should not be unbalanced.  Political role of the rule of law-leading the legislative institutions.  Guarantee means guaranteeing the executive implementation of law, supporting the judiciary, and being a model of a law-abiding citizen; This will be very important in putting judicial reform forward;
  4. To complete those halfway reforms–judicial personnel reforms;
  5.  More rethought and theoretical guide–scholars criticize the judiciary for having an insufficient theoretical basis;
  6.  Dealing with the other judicial civilizations–we never stopped, especially in technical areas, and for our legal professionals, that has never stopped. We need to work together for all of humanity.

Supreme People’s Court’s New Vision for the Chinese courts

Screenshot 2020-05-02 at 6.35.07 PM
Publicity related to the document analyzed below

The month of April saw the Supreme People’s Court (SPC) issue many judicial policy documents, consistent with the commitment made in January 2020 to Party leadership to better serve the Party and state.

To the outside observer, a document issued on 1 April appears to signal the way that the Chinese judicial system will develop in the post-19th Chinese Communist Party (Party) Congress Fourth Plenum New Era.  The document is entitled Opinions of the Supreme People’s Court on Thoroughly Implementing the Spirit of the Fourth Plenum of the 19th Party Congress to Advance the Modernization of the Judicial System and Judicial Capacity (最高人民法院关于人民法院贯彻落实党的十九届四中全会精神推进审判体系和审判能力现代化的意见) (Implementing the 4th Plenum of 19th Party Congress Opinions). It implements “Implementing Opinions on Comprehensively Deepening Reform in the Political-Legal Field” (the text of this January 2019 document 关于政法领域全面深化改革的实施意见 has not been issued publicly) and “The Fifth Five-Year Reform Outline of the People’s Court (2019-2023) and obviously, the Decision of the 4th Plenum of the 19th Party Congress (4th Plenum Decision). The fact that the first document has not been issued publicly means that outside observers can identify its implications only through summaries in the press and implementing documents. The Party’s regulations on transparency (explained here) do not cover documents of this sort.

The Implementing the 4th Plenum of the 19th Party Congress Opinion is a framework document in which the Supreme People’s Court (SPC) identifies principles and goals for the Chinese judicial system and judicial capacity after the 4th Plenum of the 19th Party Congress. This blogpost will identify some of them and their link to the 4th Plenum, with related comments in italics. I expect that the SPC will issue specific judicial policy documents and judicial interpretations, as appropriate, to implement specific measures.

New Era Governance

The document needs to be seen as part of the larger picture for China’s governance set out in the 4th Plenum Decision.  Section 1 states that  “modernization of the judicial system and judicial capacity is an important part of the modernization of the national governance system and governance capability” and is needed, among other matters, to provide judicial services and guarantees for societal and economic development. One aspect of the importance of its judicial services is the fact that there were 28 million cases in the Chinese courts in 2018, most of them civil and commercial.

Political correctness

Several sections relate to political correctness.  This is linked to the clear requirement in the 4th Plenum Decision,  under the topic “perfecting the comprehensive leadership of the Party  (健全党的全面领导制度.)”  The 4th Plenum Decision also requires implementing the ideological responsibility system integrating socialist core values into law and social governance. This document, therefore, contains corresponding provisions.

Party leadership

Consistent with last year’s National People’s Congress report and other documents, this document states that the most important goal is to uphold and implement the Party’s absolute leadership of the courts and persist in putting the Party’s political construction first. It restates tasks for the courts, some of which were earlier flagged on this blog:

  • effectively implementing the Party’s leadership in all areas and aspects of the work of the people’s courts and ensuring the independent and fair exercise of judicial power under the leadership of the Party.  Related language is found in the 4th Plenum Decision. This requirement is found in the latest judicial reform plan and elsewhere, including judicial training (as discussed here);
  • Improve the system for implementing major decisions of the Party Center (完善党中央重大决策落实机制) (found in the 4th Plenum Decision and documents thereafter);
  • strictly implementing the [Party] system of reporting and seeking approval for major matters [also known as requests for instructions](严格落实重大事项请示报告制度)(the Party regulations on reporting and seeking approval for major matters) (mentioned here);
  • strengthening improvements from political inspection (see my blogpost on the inspection of the SPC) and judicial inspection (强化政治巡视和司法巡查整改) (discussed in my forthcoming article) (related content found in the 4th Plenum Decision. Judicial inspection is an old institution repurposed in the new era);
  • implementing the Party’s reporting and inspection system (督察落实情况报告制度, mentioned in the 4th Plenum report and thereafter).

As mentioned in a recent blogpost, this means implementing Party principles concerning the appointment of personnel, particularly those in a leadership position. These trends are linked to broader policies related to civil servants (this recent academic paper by Holly Snape has good insights).

Socialist Core Values and the Ideological Responsibility System

Section 5 focuses on socialist core values and the ideological responsibility system, both of which the 4th Plenum Decision stressed.

  • On the ideological responsibility system, this (authoritative) article (the author was then at the Party’s Central Compilation and Translation Bureau), unfortunately behind the publisher’s high paywall), sets forth an authoritative explanation of this concept in Xi Jinping New Era Governance that some of us need. The author defines the ideological responsibility system as follows:  it “is part of the political reforms and aimed at maintaining and improving the loyalty of the Bureaucracy, as well as maintaining their ideological unification…Under the current Xi administration, the CCP wants its cadres to be politically reliable, professional and competent, morally self-regulated, and preferably trusted by the people…
  • Resolutely prevent and oppose the eroding influence of Western mistaken thinking (坚决防范抵制西方错误思潮侵蚀影响).  This phrase has evolved from the one used several years ago and mentioned on this blog: “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).  Related language appears in the 4th Plenum Decision: have a clear-cut stand opposing various types of erroneous views (旗帜鲜明反对和抵制各种错误观点 ). This observer surmises that this phrase appeared in the 2019 Party document mentioned above. This does not create obstacles to Chinese judges continuing to consider useful “Western” legal concepts and mechanisms and the SPC continuing to have exchanges and cooperation projects with major “Western” jurisdictions.
  • Implement socialist core values in the work of the courts. This has multiple aspects and continues an ongoing theme, including in judicial interpretations–see my 2018 blogpost). Some high-level conferences organized by the Case Research Institute of the National Judicial College have been on the subject of promoting socialist core values through cases.

Practically oriented

The more practically oriented sections (4, 6-8) reveal priority areas of SPC leadership concern. Those particularly relate to economic development, social stability, judicial reform, and technological upgrading, all topics found in the 4th Plenum Decision., while the section on public health emergency management relates to Party decisions and Xi Jinping speeches during the Covid pandemic.

These sections mention short, medium, and long-term areas of concern and development.

Section 4 of the document lists some of the priority matters relating to economic development facing the SPC and the lower courts, many of them mentioned in this year’s judicial interpretation list or recently announced judicial reforms. A curated version (translation is modified Google translate):

  •  Improve risk monitoring and the early warning mechanism in financial trials,  properly hearing financial disputes, and actively preventing and resolving financial risks (therefore we have seen the establishment of the Shanghai Financial Court and specialized financial tribunals in certain major cities. More detailed observations on this will come in the future);
  • fully implement the environmental public interest litigation system, improve the environmental remediation system, improve the environmental protection injunction system, improve the jurisdiction provisions in environmental cases. (The 4th Plenum Decision had a section on environmental protection and a July 2019 press conference linked to the fifth anniversary of SPC’s Environmental and Natural Resources Division mentioned these measures.)
  • Use evaluation indicators such as “enforcing contracts” and “handling bankruptcy”,  to improve trial management, mechanism, quality, and efficiency to create a stable, fair, transparent, and predictable legal business environment. (This is linked again to the 4th Plenum Decision and China’s ranking on the World Bank’s Ease of Doing Business scorecard).
  • Intensify the review of the legality of administrative actions, strengthen the substantive resolution of administrative disputes (also linked to the strengthening of administration by law in the 4th Plenum Decision, therefore also on the 2020 judicial interpretation agenda).
  • Strengthen the judicial protection of property rights. See earlier blogposts on this.
  • Formulate judicial interpretations for cases of infringement of trade secrets, and continuously improve the level of judicial protection of intellectual property rights (IPR). (Improving trade secrets protection is mentioned in the 4th Plenum Decision. Also see Mark Cohen’s recent blogpost on this).
  • Formulate judicial interpretations of punitive damages for intellectual property rights, promote the establishment of a tort damages compensation system that reflects the market value of IPR (IPR is stressed in the 4th Plenum Decision and punitive damages in IPR cases is mentioned. Also see Mark Cohen’s blog on this.  This also relates to evidentiary issues in IPR cases).
  • Mediation and diversified dispute resolution (including giving non-litigation methods of dispute resolution priority, improving the separation of disputes and the creation of one-stop dispute resolution and litigation service that is efficient and low cost) is mentioned in this document as well.  It is unclear what this means for the development of a commercial mediation system in China.  Local courts have been working on better cooperation with institutions that can mediate specialized disputes, such as the Shanghai Financial Court’s arrangements with the Shanghai Stock Exchange and other institutions. The provisions here derive from language in the 4th Plenum Decision on improving an effective system in the new situation for the correct handling of internal contradictions among the people (完善正确处理新形势下人民内部矛盾有效机制) as well as the Fengqiao Experience. Xi Jinping has mentioned the Fengqiao Experience since 2013, if not earlier. The phrase about internal contradictions appears to derive from the 1959 Mao essay, On the Correct Handling of Contradictions Among the People.
  • Promote capacity building for foreign-related commercial and maritime trials, equally protect the legitimate rights and interests of Chinese and foreign parties in accordance with law, improve the diversified dispute resolution mechanism for international commercial disputes, serve the joint construction of the “Belt and Road” and the construction of free trade pilot zones and free trade ports ( The 4th Plenum Decision promotes a high-quality Belt & Road Initiative, so these measures implement the 4th Plenum Decision. Also, see my earlier blogpost on this.  To better improve diversified dispute resolution in cross-border cases, China needs to work on institutional arrangements enabling it to ratify the Singapore Mediation Convention. Those are many and complex, as I had a chance to learn in December, 2019. One matter that would assist foreign parties litigating in the Chinese courts (and Chinese parties litigating outside of China) would be for China to accede to the Hague Convention Abolishing the Requirement of Legalisation for Foreign Public Documents.  The SPC’s new evidence rules reduce the scope of documents that a foreign litigant (or domestic litigant providing foreign evidence) must notarize and legalize, but it is a troublesome and expensive process.
  • Improve the adjudication mechanism involving Hong Kong, Macao and Taiwan, build a centralized and professional trial system, explore and improve the diversified settlement mechanism for [civil/commercial] disputes involving Hong Kong, Macao and Taiwan. (The centralized system seems to be analogous to foreign-related cases. The intent is to have more competent judges consider these. Another issue is parallel proceedings in these cross-border cases. These issues deserve further analysis.)
  • Deepen the international judicial exchange and cooperation mechanism, participate in the reform of the global governance system and formulate rules of international law, and contribute more Chinese wisdom to the maintenance of the multilateral trading system and the international rule of law. (See my earlier blogpost on this).

Public health emergency management

Section 6 relates to the role of the courts in the public health emergency management system, in the short and long terms.  It mentions the courts providing judicial services to the joint prevention and control system, preventing mass events, and group prevention and control (群防群治工作机制, an old system to which Xi Jinping has given new meaning during the pandemic. That section mentions shorter-term issues, such as punishing the manufacturing and sale of fakes during the pandemic and longer-term issues, such as the courts being involved in improving the legal system in the area of public health.

Judicial Reform

Section 7 highlights some of the tasks in the current judicial reform plan. Those include:

  • Deepening the judicial responsibility system, for judges hearing cases solely or in a collegial panel, the members of a judicial committee, and the supervision of judicial power.  As mentioned on this blog several times, judges are concerned about the scope of the judicial responsibility system, and recent cases that have appeared in the Chinese press would only amplify those concerns. I have more on this in a forthcoming book chapter.
  • Improving the disciplinary mechanism for judges. The forthcoming book chapter is on this. The SPC is working on related regulations.
  • Promoting the improvement of the policies relating to the selection of judges level by level. The controls on the number of “quota judges,” judges with the title of “judge,” in many courts, means that some number of qualified personnel have become judges assistants. It has created a fair amount of frustration.  Another issue is that the new policies mean it takes longer for judges to be promoted, but at the moment, most judges need to retire at 60, so that the pool of judges eligible to be promoted eventually to the SPC will shrink. We can expect related policies issued in the medium term.
  • Improving the working mechanism of the circuit courts and promote the Supreme People’s Court’s Intellectual Property Court (SPCIPC) and the China International Commercial Court (CICC). Promote the strengthening of the organization system of intellectual property courts, and improve the specialized trial system so that it complies with the principles for the judicial protection of IPR. (It is understood that the circuit courts are hearing most SPC cases.  But it still leaves unanswered what the role of the SPC in hearing cases is.  Should it best focus on considering a smaller number of cases more thoroughly, as other supreme courts do? The SPCIPC and CICC both have captured SPC leadership attention (and the attention of the outside world). It is clear that the SPC has provided much more support to the SPCIPC than the CICC (most obviously the SPCIPC operates full time, while the CICC does not). China’s IPR enforcement system is a topic of worldwide concern (the Phase 1 Trade Agreement and the United States Trade Representative Office’s recent 301 Report both evidence this), so it is likely that this means the SPC leadership will focus more on intellectual property issues.
  • Deeply promote the reform of the trial-centered criminal justice system (this is a continuation of reforms initiated in the previous round of judicial reforms).  This topic requires a separate analysis, to consider the impact of the National Supervision Commission, among other issues.
  • Improve and deepen the judicial transparency mechanism including promoting the transparency of judgment documents, court hearings, trial process information, and execution information. See my earlier blogpost and Mark Cohen’s more recent one on his concerns in the area of intellectual property law.  Professor He Haibo has done important empirical work on judicial transparency.

Technology

Section 8 relates to technology and implementing the courts’ five-year plan on informatization (人民法院信息化建设五年发展规划).  It mentions promoting AI, big data, cloud computing, blockchain, and 5G. Litigants should know that the SPC is promoting online case filing, litigation, mediation, judicial blockchain, and the mobile micro-court.  A reality check is needed for China’s online litigation publicity.  One is provided by a popular Wechat article published last month “A month of online court hearings, judges and lawyers have all gone crazy” 云庭审上线一个月,法官律师都疯了Technology is an important area of SPC leadership concern, as it sees it as an area in which China can take the lead.

Take-aways?

What is the impact of this vision and program for the Chinese courts, for litigants (in China or elsewhere), and for others, including judiciaries in other countries and jurisdictions. Is this a “China model” for courts, as raised by some? It does not appear to be so, but rather an outline for the courts to be conveyed within China, rooted in the Chinese political, cultural, and social environment of 2020, which will change along with Party priorities and events.  Some aspects described above are common to judiciaries around the world, such as the trend towards greater online justice.  Will it deliver the results it promises?

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Many thanks to certain anonymous readers for their insightful comments on earlier versions of this blogpost. They are not responsible for any errors or “erroneous views.”

Judicial reform post-19th Party Congress

 

download-2
Judge Jiang speaking at an academic conference

 

Senior Judge Jiang Huiling heads the Supreme People’s Court (SPC)’s China Institute of Applied Jurisprudence (the Institute). He recently published two articles in the Chinese legal and professional press (the first of which was published in the Central Political-Legal Committee’s (authoritative) Legal Daily) signaling the phraseology and goals for judicial reform after the 19th Party Congress. As the operation of the Chinese judiciary has an important impact both domestically and internationally (as well as in greater China), post-19th Party Congress judicial reform goals are important.

For those who are not familiar with the Institute, it is the SPC’s in-house think tank. The Institute works on a broad variety of issues, particularly those linked with judicial reforms. Like think tanks elsewhere in the world, the Institute trains post-doctorate fellows and has its own staff. Judge Jiang is among a group of senior judges at the SPC who combines an international perspective (he studied at the University of Montreal, and has been a visiting scholar at Yale Law School, University of Sydney, and Academia Sinica) with profound experience in and understanding about the Chinese court system and how it can be reformed, given its complex bureaucratic nature and the environment in which it operates.

From his articles, it is clear that the new phraseology is “deepen the reform of the judicial system with comprehensive integrated reforms” (深化司法体制改革综合配套改革). The language is found deep in Xi Jinping’s 19th Communist Party Congress Report.

Background for these further reforms

Judge Jiang mentioned that during the summer of 2017, the senior political leadership approved further judicial reform measures (including written instructions from Xi Jinping to the Central Political-Legal Committee, designating Shanghai to take the lead in piloting them, initiating a series of reforms from early November. The Outline of the 4th Five Year Judicial Reform Plan required Central approval for major reforms, so this approval should not be surprising.  The beginning of this round of judicial reforms was also first piloted in Shanghai, so piloting these further reforms in Shanghai (as further described in this report) is also to be expected and it seems likely that piloting of reforms will continue in other places.

Eleven further reforms & some comments

Judge Jiang sees these further reforms as intended to implement the previous judicial reforms and classifies them into eleven broad areas.  The SPC has undertaken research (designating lower courts to do so) in many of these areas (with the results to be released to the public in some form).  It appears that those designing judicial reforms have realized that many judicial reforms are linked to deeper issues relating to the Chinese system.

I summarize Judge Jiang’s list and add some of my own comments or queries in italics (which should not be attributed to him):

  1. Optimize how judicial power is allocated within the courts, including the authority to adjudicate and to administer, splitting enforcement authority from hearing cases, allocating authority within offices/divisions of the court, and reallocate the functions of higher and lower courts.  The way that courts have been administered has for many years followed the (traditional) Party/state administrative model.  Some reforms have been implemented in recent years, but it is unclear how much will it be possible to change this, given long-standing patterns of interaction within a court and between higher and lower courts, as well as current incentives/performance indicators.  This appears to be linked to point 19, 24, and other provisions of the Outline of the 4th Five Year Judicial Reform Plan .
  2. Reform judicial administration–what should the model be–centralized administration by the SPC or local administration by each court?  Judge Jiang suggests China could consider models already in place outside of China. This is linked to point 62 of the Outline of the 4th Five Year Judicial Reform Plan. 
  3. Improve personnel administration, such as selection of judges, retirement, rotation of positions, discipline/punishment, retirement/resignation, education/training, headcount administration, internal institutions, etc.  The current model derives from the principle of “the Party manages cadres”  and is linked to basic aspects of the Chinese system such as the official ranking system (官本位) and hukou (户口).  Many of the matters mentioned (such as resignation, discipline, selection and headcount administration) are now controlled or operated by Party institutions–what flexibility will there be for the courts to innovate?  The judicial reforms do anticipate a separate career track for judges (and prosecutors), but it is apparent that the “devil is in the details.”  If there is to be cross-jurisdictional rotation of positions, what happens to the schooling of dependents and other practical matters linked with the hukou [household registration] system? An increasing number of legal professionals and judges are women. What impact would a cross-jurisdictional rotation of positions have on women judges? How can lawyers and others outside the system be fit into the official ranking system?  Under the current system, more senior judges are senior cadres, often less involved with hearing cases because of their administrative responsibilities.  Will later retirement for judges mean more judges in the courtroom?  The retirement issue has been under discussion for some years–see this 2015 blogpost for further background.
  4. Reform the system of how judges are “cultivated” (法官养成机制), in particular, look to the practice of other civil law jurisdictions (including Taiwan) in establishing a two year judicial training system, rather than the current practice of entirely selecting judges from within and having them learn on the job, and increase training for serving judges. He mentions improving the system of recruiting lawyers and law professors to the judiciary. (This is related to points 50 and 52 of the Outline of the 4th Five Year Judicial Reform Plan. The two-year training program proposal had been mentioned by Huang Yongwei, president of the National Judicial College, over two years ago.  It is linked to judicial education policy documents issued to implement the 4th Five Year Judicial Reform Outline, highlighted in this 2015 blogpost).  What might be the content of this training program?  From the previous policy documents we know it will include ideological, ethical, and professional training, but what will that mean in practice?  There have been ongoing exchanges between the Chinese judiciary and the Singapore Judicial College–  will the “beneficial experience” of Chinese judges in Singapore have any effect on the Chinese model?
  5. Improve judicial evaluation, i.e. benchmarking of how the Chinese judiciary is doing.  Judge Jiang suggests looking to domestic analytical frameworks (by the China Academy of Social Sciences and others), as well as international ones, including the Global Framework for Court Excellence and the World Justice Project,  but says there are issues with data and disconnect with Chinese judicial reality.  This relates to point 51 and others in the 4th Five Year Judicial Reform Plan. Benchmarking judicial performance remains an ongoing issue, with most Chinese courts in campaign mode to achieve high case closing rates in the run-up to the New Year.
  6. Better use of technology in the judiciary, not only big data but also use of electronic files, judicial “artificial intelligence.” For lawyers involved in cross-border cases, query when this will also imply the use of apostilles rather than the current system of notarization and consularization, as well as a more timely integration of other Chinese court procedures with those prevalent in the outside world. Pilot projects are underway in some areas regarding electronic files.
  7. Improve litigation, including “trial-centered criminal justice reforms,” pre-trial procedures, more detailed evidence rules, separating petitioning from litigation, and the use of people’s assessors. Creating a “trial-centered criminal justice system” at the same time that expedited procedures/Chinese style plea bargaining is being promoted raises many related issues as was recently discussed at a recent conference that I attended, and separating petitioning from litigation requires improvement of legal aid to the poor and better procedures for considering litigation-related petitions (see these earlier blogposts).
  8. Improve the use of diversified dispute resolution, to involve resources from other social and national resources and the market to resolve disputes, leaving only those most appropriate to be resolved by the courts. This relates to point 46 of the Outline of the 4th Five Year Judicial Reform Plan and related measures described in a 2016 SPC policy document, described here.
  9. Speed up the formation of a legal profession, including reform to legal education, examinations, etc., which Judge Jiang sees as long-term issues.  From my own observations in the courts, remarks by serving judges, practicing lawyers, and interactions with recent Chinese law school graduates, reforms to legal education are needed, as is some flexibility in the career path for Chinese legal academics, which stresses a Ph.D. and academic achievements, rather than any experience outside academia.
  10. Establish a rule of law (法治) culture and environment.  This, of course, is critical. However, the difficulty of doing so was most recently illustrated in the recent clearing of “low end population” from Beijing and related legal analysis (such as this article, originally published on a Chinese scholarly site.
  11. Improve judicial administration generally, including methods of enforcing the law, legislative drafting, etc.  Reforms of a grander scale appear to this observer to be difficult to implement, particularly at this stage.

Finally, Judge Jiang says these are the broad outlines of judicial reform, but they are subject to adjustment along the way.