What does China’s Judges Law draft mean?

Screenshot 2019-01-25 at 11.47.56 AM

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

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

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

Some brief (not comprehensive) comments follow:

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

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

Chapter I: General Provisions

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

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

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

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

Chapter II: Judges’ duties, obligations and rights

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

Chapter III: Requirements and Selection of Judges

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

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

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

Chapter IV: Appointment and Removal of Judges

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

Chapter V: Management of Judges

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

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

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

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

Chapter VI: Evaluation, Reward and Punishment of Judges

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

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

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

Chapter VII: Professional assurances

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

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

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

A final word

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

What significance does China’s updated court law have?

szzy

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.

What to Expect in the Fifth Round of Judicial Reforms

Screen Shot 2018-07-29 at 8.10.14 AM

On July 24, the Chinese authorities held the first post-19th Party Congress national conference  on judicial reform in Shenzhen, entitled “Promoting Comprehensive Deepening of Judicial Reform.”  Holding the conference in Shenzhen is significant, because it is considered synonymous with reform and openness. The leaders on the podium in the photo above (members of the Leading Small Group on Judicial Reform) (all men), include:

  1. Secretary of the Central Political Legal Committee, Guo Shengkun (Guo);
  2. President of the Supreme People’s Court (SPC), Zhou Qiang;
  3. Chief Procurator General Zhang Jun;
  4. Central Military Commission Political Legal Committee Party Secretary;
  5. Minister of Public Security;
  6. Minister of State Security;
  7. Commander of the People’s Armed Police.

Attendees of the conference included the Party Secretaries of the Political Legal Committees of all provinces/autonomous regions/cities, and likely senior leaders from all of the systems.

Readers of this blog will not be surprised that comprehensive deepening of judicial reform was the subject of the conference as a December, 2017, blogpost flagged 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) (and there is a significant overlap with some of the issues Judge Jiang mentioned). The language is found deep in Xi Jinping’s 19th Communist Party Congress Report.

The quick (and incomplete) summary below is of some of the court-related issues from the report of Guo’s speech at the conference that He Fan (head of the planning section of the SPC’s judicial reform office) posted on his Wechat public account.  He was one of the many attendees.   None of the analysis below (in italics) should be attributed to him.

It can be expected that the court-related issues will be incorporated into the next judicial reform plan outline. What is on the court-related reform list?  What issues remain unresolved?

  1. Strengthen and optimize Communist Party leadership, Scientifically position the responsibilities and boundaries of the Party Committee, Political and Legal Committee, strengthen functions such as overall coordination, planning and deployment, supervision and implementation.   This of course listed first.What does this mean in practice for judicial system and particularly the operation of the criminal justice system, such as the ongoing campaign against organized crime (see this earlier blogpost)? 
  2.  Clarify the functions of the four-level courts,–improve the SPC circuit courts’ working mechanism; establish the Shanghai Financial Court, steadily expand the Internet Court pilots; explore the deepening of the reform of cross-administrative district courts and procuratorates, and explore the establishment of a national-level intellectual property appeal hearing mechanism.

Developments have occurred on some of these. The Shanghai Circuit Court will start operations soon, with regulations on its jurisdiction just issued and well-regarded judges appointed to senior positions.  The mention of an intellectual property appeals court is significant, as that has been mentioned in earlier government documents and it is on the wish list of the intellectual property law community.  The cross-administrative district courts are mentioned in the previous court reform plan, with some pilot projects. On SPC’s circuit courts are taking on a greater percentage of the SPC’s cases, (as mentioned earlier on this blog) SPC judges work in the circuit courts while their families remain in Beijing, so at some personal cost to judges involved.

3.  Improve institutional management, promote a combination of flat management and professionalization, adhere to the simultaneous transformation of comprehensive and operational entities, and promote the return of judicial personnel to the front line.  As this blog has repeatedly mentioned (and He Xin/Kwai Hang Ng have detailed in their new book, Embedded Courts), Chinese courts (as courts and political/legal institutions) have large “comprehensive offices” (engaging in functions not directly related to judicial work).  A recent study of several courts in Zhejiang province published in an academic journal affiliated with the China Institute of Applied Jurisprudence detailed the percentages. With the reduction in the number of judges and the explosion in the number of cases, there is a great amount of pressure to allocate more judges to the “front line” of handling cases.  Judges with some measure of seniority inevitably have both administrative and judicial responsibilities.

4.  Improve the supervision management mechanism of the president and division chiefs, and standardize the functions of the judicial committee, the committee of court leaders, which has a number of functions, often serving to diffuse responsibility for difficult cases  (Embedded Courts has more insights on this, and this blog has an earlier post on proposed reforms and related problems). Improve the professional judges meeting (mentioned in last year’s SPC regulations, I hope to have something more to say on this in a later blogpost). Improve the disciplinary mechanism of judges. (It would be an improvement to have greater transparency on the results.) Accelerate the construction of an electronic file with the simultaneous generation of the case and the entire process online case handling system.  This has been an ongoing proposal.  Shenzhen is taking the lead with this. Also it would be an improvement to have greater transparency on cases filed.

6. On judicial “standardization” –improve reference to similar cases, case guidelines, the guiding case mechanisms, implement mandatory search system for similar cases and related cases. We will carry out an in-depth national judicial standardization inspections.  This is sending two signals–greater implementation of China’s case law system (as I have written about earlier), and the continued use of government/Party inspection campaigns (reflecting the administrative aspects of the Chinese courts).

7. Improve the  performance appraisal system. Scientifically set the performance appraisal indicator system for handling cases, and guide judicial personnel to handle more cases, handle cases quickly, and handle cases well. Use big data technology to accurately measure the quality of the case and strive for convincing results. The assessment results are used as an important basis for the level of salary, job promotion…This is an important and unresolved issue for the Chinese courts–how to appraise judges.  Outside of China, many scholars have written about this, including Carl Minzner, William Hurst & Jonathan Kinkel. A good deal of research has been done within the Chinese court system concerning this (see this summary of a report published earlier this year by a team of Guangdong Higher People’s Court judges–discussing how the “civil servant/administrative model” predominates and suggesting that China should be looking to other jurisdictions for models, as judicial evaluation is a worldwide issue.  Case closing percentages continues to be very important for Chinese judges.  Is big data technology the answer?  Is this consistent with encouraging judges to write more reasoned decisions?  This appears to signal  a continuation of the judge as factory worker system described in this blogpost

8. In the area of criminal law, and criminal procedure, there are mixed developments.  On the one hand, greater encouragement for using the plea bargaining with Chinese characteristics (please see Jeremy Daum’s deep dive into the pilots). The merging of the arrest and prosecution stages is also mentioned.  Guo also mentioned  measures to enable appointing defense counsel in death penalty cases, having full coverage of defense counsel in criminal cases (Jeremy Daum has comments also on the system of stationing lawyers in detention houses), requiring lawyers to represent petitioners in criminal collateral appeals cases, as well as greater use of live witnesses at trial。  The National Judges College academic journal Journal of Law Application just published an article by a Beijing Higher Court judge, reviewing the duty lawyer scheme, with analogous findings to Jeremy’s.

9.  For those interested in how the supervision commission is/will affect criminal cases, Guo mentions establishing a system for linking the supervision’s investigatory system with the criminal procedure system (said to improve the battle against corruption, the question is the extent to which individual rights are protected).

10.  On foreign related matters, Guo mentions innovating foreign-related work, and improving cooperation on international enforcement and judicial cooperation.  These continue to be difficult issues, with no likely resolution in sight, particularly criminal and also civil.  As I have mentioned before China is participating in the drafting of the Hague Convention on the Recognition and Enforcement of Foreign Judgment, but there are major inconsistencies between the provisions of the draft convention, and the Choice of Court Convention which China signed last September.

Guo highlights improving an initial appointment system for judges and procurators, expanding open recruitment so that talented people will be attracted to becoming and remain judges.  He calls for better coordination between the law schools and professional training, systems for provincial level appointment of judges (and procurators), with better policies on temporary appointment (挂职) (a system used for academics to work in the system for a period of one or two years, and judges/procurators from higher levels to work at the basic level or in a poorer area), exchanges, promotions, and resignation.

In his recommendations, Guo tips his hat to judicial (and procurator) dissatisfaction with status and pay with his statement “uphold resolving a combination of ideological and practical issues, motivate cadres and police to the greatest extent possible.” 坚持解决思想问题和解决实际问题相结合,最大限度调动政法干警积极性”-as this blog has reported, a combination of those issues, excessive work, and significant amounts of time allocated to “studying documents” has led younger experienced judges (and procurators) to decide to resign.

 

 

 

Supreme People’s Court gears up for 19th Party Congress

Screen Shot 2017-09-24 at 5.31.26 PM.png

As the days count down to the 19th Party Congress, all Party/government institutions are preparing for it, including the Supreme People’s Court (SPC). On 19 September, the SPC issued an emergency notice (pictured above), calling on the lower courts to strengthening law enforcement work to provide a good judicial environment for the holding of the 19th Party Congress.  The SPC, as other Party/government institutions, issue emergency notices from time to time (here’s one from the Ministry of Education), generally linked to a politically significant event. The full text for the SPC notice hasn’t been released (or if it has, it has escaped me). It is meant to send signals to the SPC staff and to the lower courts.

Some of the signals:

  • improve performance indicator systems (indicating too many courts still have dysfunctional performance indicators);
  • handle more cases, handle them well, handle them quickly (多办案、办好案、快办案, language better suited to the factory floor);
  • ensure that the goal of having  difficulties in enforcement basically resolved in three years is achieved (again….);
  • clear up those unresolved cases (要抓好长期未结案件清理,确保依法妥善清理案件)–this is being taken seriously by court leaders, again judges (and their clerks, assistants and interns). The PhDs (and Master’s degree holders) praised by the SPC may feel they are somewhere between a model production worker and a real judge (or clerk.). (Of the SPC quota judges, about 1/3 have PhDs, with over half holding a master’s degree), and PhDs are not unusual in the lower courts, at least in major cities.)  An unscientific survey shows judges and their support staff doing more overtime during the pre-19th Party Congress and pre-Golden Week holiday to meet this target;
  • reminds the lower courts about the case registration reform and reminds judges that cases should be accepted, even towards year end, when courts are concerned about their case closing numbers, especially the number of cases that will be carried over to the next year, and warns them against reporting false closing statistics  (坚决杜绝人为抬高立案门槛、拖延立案、年底前提前关门不收案等突出问题), (切实防止虚假报结、强迫撤诉);
  • reminds courts about another important but controversial judicial reform, implementing the judicial responsibility system (insightful analysis and research from within the courts on this is coming out, see this recent article in the National Judicial College’s journal);
  • it reminds judges of ways to deal with the increase and cases and reduction in headcount–use diversified dispute resolution, separate simple from complicated cases, and try similar cases together.

The SPC released some year to date (end August) statistics (I’m drilling down on the state of transparency in this area)–close to 16 million newly accepted cases (15.89 million), no breakdown on how cases are categorized, closed cases up to 12.67 million (up 15.7%). This indicates continued high pressure on first instance judges and their assistants. I’m awaiting data on what the vortex of reforms means for retaining high quality judges.

 

 

China’s draft court law

Screen Shot 2017-09-10 at 8.40.56 PM

Screenshot of trial in the Haidian district court

A draft of the first comprehensive overhaul of China’s court law since 1979 (the organic/organizational law of the people’s courts) is now open for public comment (until 4 October).  A translation of the draft is available at Chinalawtranslate.com (many thanks to those who made it possible).  A translation of the current law is here and an explanation of the amendments has also been published.  The draft is significantly longer than the earlier version of the law (66 vs. 40 articles). It retains much of the framework of the old law, incorporates legislative changes as well many of the judicial reforms, particularly since the Third and Fourth Plenums, and leaves some flexibility for future reforms. As with the current law, Communist Party regulations address (and add another layer to) some of the broad issues addressed in the draft law. Some comments:

Drafting process

The drafting process (the explanation has the details) reflects the drafting of much Chinese legislation (further insights about the process from Jamie Horsley here)–several years of soft consultation by the drafters of relevant Party and government authorities, plus one month of 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.

General Provisions

Some of the dated language from the 1979 version has been deleted (references to the “system of the dictatorship of the proletariat,” “socialist property,” and the “smooth progress of the socialist revolution.” replaced by “lawful rights and interests of legal persons,” and protection of national security and social order. Although the draft court 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 10 of the draft incorporates judicial responsibility systems into the law (a prominent feature of the recent judicial reforms), but a topic regarding which dispassionate analysis is hard to find.

The draft contains clear statements about judicial openness and the right of the masses (i.e. ordinary people, that term is alive and well) to know about the work of the courts (according to law).

Organization of the courts

The draft mentions some of the specialized and special courts that have been established over the last thirty years:

Article 14 incorporates the guiding case system into the draft.

Article 15 of the draft crystallizes the SPC’s circuit courts (tribunals) into law (SPC regulations on the jurisdiction of those courts found here).

Article 24 gives space for establishing cross-administrative region courts (the time has not yet been ripe for establishing them).

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.)

Trial Organization

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

  • In Articles 30-31, 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 32 that the members of the collegial panel are the ones to sign their judgments and dissenting opinions are to be recorded;
  • Article 34 gives space for eliminating the role of people’s assessors to determine issues of law;
  • Article 37 incorporates into law previous SPC regulations on judicial interpretations and guiding cases, specifying that they must be approved by the SPC judicial committee;
  • Article 40 contains provisions imposing liability on members of the adjudication/judicial committee for their comments and their votes. It also incorporates into the law SPC regulations on disclosing the views of the judicial committee in the final judgments, except where the law provides it would be inappropriate;
  • Article 41 also incorporates into the law the specialized committees mentioned in judicial reform documents (briefly discussed in prior blogposts).

Court Personnel

Article 42 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.

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

This section of the draft court law 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;

Safeguards for the courts’ exercise of authority

Article 56 gives courts the right to refuse to engage in activities that violate their legally prescribed duties (with this end the phenomenon of judges sweeping streets?);

Article 57 relates to reforms relating to enforcement of judgments (and the social credit system);

Article 59 relates to threats to judges’ physical safety and personal dignity, that occur several times a year in China, and have been the subject of SPC regulations;

Scope for further reforms for judicial personnel management (including salary reform!) are included in this section.

Article 60 reiterates the principle that judges may only be transferred, demoted, dismissed according to procedures specified by law (Party procedures  to which most judges are subject,are governed by Party rules.)

Article 62 relates to judicial (and judicial personnel training)–some earlier blogposts have shed light on this topic.

Article 64 incorporates into the draft law President Zhou Qiang’s focus on the informatization (including use of the internet and big data) of the Chinese courts.

Etc.

My apologies to readers for the long gap between posts, but several long haul trips from Hong Kong plus teaching have left me no time to post.

Supreme People’s Court ramps up its judicial responsibility system

Screen Shot 2017-08-12 at 7.04.09 AMIn April of this year (2017), the Supreme People’s Court (SPC) issued its judicial responsibility guidelines.  At the end of July, the SPC issued a 73 article implementing opinion (最高人民法院司法责任制实施意见(试行)(Implementing Opinion), which went into effect on 1 August 2017.  There have been many summary reports in the legal press, but the full text was not found until 11 August. 2017 It has since been published by several Wechat accounts, but as of this writing, no official text has been issued.  The policy basis for the responsibility system links back to the 3rd and 4th Plenum Decisions. Senior Party leadership (the Central Leading Group for Comprehensively Deepening Reforms) approved the SPC’s responsibility system.

The document establishes operating rules for the SPC  after this latest round of court reforms, and therefore sets guidelines for the lower courts. It can be expected that the lower courts will issue corresponding documents. Through the Implementing Opinion, it is possible to see how much autonomy an individual judge/three judge panel has and what matters require approval by senior SPC leaders.

Opinions (as this blog has previously explained) are not judicial interpretations but a type of judicial normative document.   A recent Wechat post by an SPC commercial subsidiary, Faxin (法信), described them as judicial guiding documents (司法指导性文件). That is the terminology being used for them in a series of books published by the People’s Court Press. Inconsistent legal terminology is not a new phenomenon.

The basic principles of the Implementing Opinion are said to implement central authorities’ requirements, let those who hear cases bear responsibility, clarify how cases are to be dealt with and put in place the Party group’s responsibility for enforcement (the phrase “Party group” actually is mentioned three times) and case handling. It appears that some provisions memorialize current practice, while others set out new rules.

The  Implementing Opinion specifies roles of different personnel and institutions within the SPC such as the court president (and vice presidents), heads of divisions, professional judges committee, judicial committee, presiding judges, judges in charge of cases, clerks, and judicial assistants. It provides guidelines on how cases are to dealt with, from case acceptance, random case assignment, to issuing decisions.

The Implementing Opinion includes the following (selected) provisions:

  • Details on staffing for judges (one assistant and one clerk in the circuit courts, and some assistants and clerks at headquarters) (Article 3);
  • those with a leadership role (President/vice president/vice/heads of divisions) should generally be the presiding judge (Article 5), while the judges in collegial panels should change every 2-5 years;
  • leaders need to hear cases, that are difficult/important/guiding, etc., but specialists are designated to assist them (Article 7);
  • rules on who will issue judgments, mentioning that the president of the SPC signs the  order for the implementation of the death penalty (this was understood to be the case already)(Article 11);
  • court leaders may not give oral/written instructions concerning a case (except as otherwise provided (i.e. cases that are considered by the judicial committee)(Article 12);
  • responsibilities of professional judges committees (a committee put into place under the judicial reforms); judicial committee (can be split into specialist civil, criminal, enforcement subcommittees) (role said to have narrowed, but include major/difficult cases affecting national interests & social stability, but also other non-case related duties such as approving judicial interpretations/judicial normative documents, etc., the judicial committees requires  views be stated in the judgment (Articles 16-19);
  • the basic rule is random case assignment, with exceptions for major/difficult cases (Article 26-27), with electronic service of process & documents if agreed (Article 32);
  • basic rule is online broadcast of SPC court hearings, unless approved by leaders otherwise (Article 33), with requirements concerning the posting of rulings/judgments and other transparency requirements mentioned in the document;
  • circuit courts are prohibited (in general) from considering requests for instructions (the rule makes sense–it would defeat one of the purposes of having circuit courts (Article 25, this is an example);
  •  Articles 41-43 relate to precedent case review (as suggested in my recent article) and require approval by leaders if the ruling in a case will be inconsistent with prior SPC rulings on the topic (this has been criticized as being inconsistent with judicial autonomy). Approval is required in several other situations, see Article 40 (2-4));
  • Articles 46-50 set forth rules for a collegiate panel to consider a case and submit it to the division leadership/professional judges committee/judicial committee;
  • Article 51 requires the judge responsible for the case (承办法官) to draft the decision reached according to the majority view, indicating that the role of responsible judge has administrative overtones. If not so, the judgment would be drafted by one of the judges who agreed with the majority view.
  • Article 58 retains existing special procedures (including special standards for transparency) for certain criminal cases, such as death penalty cases, cases involving foreigners, overseas Chinese, Hong Kong, Macau, and Taiwanese Chinese.
  • Article 61 provides the Central Commission for Discipline Inspection (CCDI) representative stationed at the SPC can be a member of the judicial committee (this seems to be analogous to the procedure under law under which a representative from the procuratorate can take part in judicial committee meetings). Additionally, anti-corruption officials stationed in each division can participate in professional judges committee meetings and collegiate panel discussions.   Article 61 does not require their views to be adopted.  It could be that their views are considered more seriously if discussions relate to matters regarding which they are competent.
  • Article 64 requires certain types of cases to be submitted for approval to higher levels of the SPC, including cases involving mass incidents, that will have an effect on social stability; difficult and complicated cases that will have a major effect on society; cases that will conflict with prior SPC cases; those that indicate the judge violated the law; death penalty review, major criminal cases, cases involving requests for instructions involving foreigners, overseas Chinese, Hong Kong, Macau, Taiwanese Chinese.

The vision for the reformed SPC remains a court with administrative characteristics (官本位), with concepts derived from other jurisdictions (judge’s assistant would be an example), that enables Party guidance in sensitive cases and its operations to reflect changes in Party/government policy (serving the actual situation), but seeks to be a more professional and accessible institution, hearing cases in a professional manner. It can be surmised that certain provisions from the Implementing Opinion will be incorporated into the revisions of the Organizational Law of the People’s Courts currently being drafted.

 

 

China’s 19th Party Congress & Judicial Reform

20170330202515_82905

29 March meeting of Party leading group on judicial reform

Meng Jianzhu, Politburo member and head of the Communist Party Central Political Legal Committee, held a meeting in late March (photo above), to convey Xi Jinping’s message–those in leadership positions must do all possible to ensure that judicial system reform responsibility targets are basically achieved before the 19th Party congress (努力实现党的十九大召开前基本完成司法体制改革努力实现党的十九大召开前基本完成司法体制改革任务的目标). For those not familiar with Chinese political-legal jargon, “judicial system” (司法体制) means here the political-legal institutions–the courts, procuratorate, public/state security, and justice administration.   “Responsibility and targets” are also Chinese political jargon. Xi Jinping’s message dates from early January, when he highlighted this goal in instructions transmitted to the Communist Party Central Committee’s national political legal work conference.  He emphasized that the cornerstone of the judicial system reform is the judicial accountability system.  Part of the message  is that 2017 is a critical time, during which there is a “decisive battle” for deepening judicial reform, the battle intended to achieve those targets.  “Decisive battle” is also a core part of Chinese political jargon.

Since late March, Supreme People’s Court (SPC) President Zhou Qiang and other senior SPC leaders have been publicizing the target of completing judicial system reform, particularly the judicial accountability system, before the 19th Party Congress.  The SPC leadership has been doing that through meetings, both of the SPC itself (and the circuit courts) and the provincial-level courts and through SPC media outlets. President Zhou Qiang did so during a recent visit to Anhui, while on April 7, executive vice president Shen Deyong, vice-president Li Shaoping, and Political Department head Xu Jiaxin transmitted that message on a nationwide court video conference. This message is likely to be repeated in the months leading up to the 19th Party Congress.

In recent days, the SPC’s judicial reform office has been explaining these reforms to the public that reads SPC professional publications, such as the People’s Court Daily and China Trial, with some of the core content in the form of FAQs.  The reforms outline the way a post-reform court should operate. Some of the points were previously set out in the SPC’s February, 2017 judicial reform white paper.

A brief summary of the responses follows below:

  1. Why is the responsibility system the critical part of the judicial system reform (司法体制改革的“牛鼻子”)? Answer: because Xi Jinping said it, and judicial power and accountability/responsibility go together; accountability limits power.
  2. What is the responsibility of a presiding judge? Answer: take the lead in a case, by outlining the hearing of the case, allocating responsibilities, taking the lead at trial and in post-trial discussions, and in cases of significant differences of opinion, submit the case to either a specialist judges’ committee or judicial committee.
  3. How should the system of court president’s and division chief’s hearing cases be improved?Court leading cadres have multiple identities, including Party administrative responsibilities, and they must concurrently plan, announce and implement Party construction and adjudication [substantive] work, and for those who are quota judges, they should hear some cases too. Those cases should depend on a person’s background and strengths and should be major, difficult, complicated, or new cases which are representative.
  4. What is the relationship between judicial teams and court divisions? Answer: A Judicial team is comprised of judges, judge assistants, clerks and other auxiliary personnel, formulated respective lists of responsibilities of judges, judge assistants, and clerks, established the new judicial work mechanism with judges at the core and the team members cooperating with each other closely,
  5. When judges are randomly assigned to cases, how should the judge in charge of the case be determined? Answer: random selection should be primary, supplemented by assigned cases.
  6. How should the reform of having judges sign judicial documents [judgments/rulings, etc.] be understood? Answer: Judges who hear cases should sign their judgments and senior court leaders should no longer review or sign the judgments on the cases when they had not been personally involved.
  7. How should the reform of having a conference of professional judges be understood? Answer: judges in different substantive areas can organize committees to provide their views to other judges on problematic issues, reducing the number of cases referred to the judicial committee.
  8. In courts where there are many judges, how large should the conference of professional judges be? Answer:basically, it depends on the profile of the cases and the number of judges.
  9. What type of management and oversight responsibilities will a court president have besides hearing cases? He (she) will monitor judgments and rulings, sometimes recommending the matter go the judicial committee (see further details in the white paper).
  10. What type of management and oversight responsibilities will a division chief have in addition to his responsibilities hearing cases? As delegated by the court president, a division chief can review matters such as extending a defendant’s period of arrest or detention, or other compulsory measures or extend the period for submitting evidence.
  11. When judicial power is delegated down in judicial reform, how can it be monitored? The old system of having senior judges sign off on judicial documents, including ones that they had not heard, and they are also forbidden from approving cases in an indirect way, such as giving oral instructions. Senior judges should be working on a macro, not micro level.
  12. How can the judicial committee reform move forward reliably? Answer: from now on, the focus of the work of judicial committees should change from discussing individual cases to summarizing experience, and discussing major cases, with exceptions (foreign affairs, social stability, etc. (see the analysis in the white paper).

Comments

These questions and answers reflect the challenges the SPC faces in moving the Chinese court system (including its own operations) away from the traditional model that fuses judicial authority with traditional Chinese [Communist Party] administration.  The post-reform concept of the judiciary is a more professional judiciary that gives judges greater professional autonomy (and therefore can retain the sophisticated talent that is leaving for law firms) but retains control in specified areas. How successful will these reforms be in moving courts and judges away from old patterns of behavior remains to be seen. It seems to be happening in at least some of the pilot courts (from my discussions), but that does not mean these will be successful in other less sophisticated areas.  Presumably, the SPC’s judicial reform office is monitoring the pilots in a more systematic way.

The reasons for stressing the importance of accomplishing these reforms by the 19th Party Congress are assumed, not explained. I understand it as intended to show that the judicial system reforms that have been undertaken in recent years are correct, have accomplished what they were intended to accomplish, and are effective in improving China’s judicial system.  I expect that the system described above is reflected in the redrafts of the People’s Court Organizational Law and the Judges’ Law.  To what extent will these reforms (apparently accompanied by increased political study) be able to retain the talent currently in or being recruited into the courts?

 

Why are Chinese judges resigning?

Much has been written on why Chinese judges are resigning (but not enough about Chinese prosecutors–to be the subject of a later blogpost), but this blogpost (written on the road) adds some more detail and analysis. Comments (and criticism) are welcomed.

In May (2016), Chen Haiguang, the head of the judicial management department of the Supreme People’s Court (SPC) revealed that over 1000 judges had left, which he described as about 1% of the judiciary. The number appears to be an underestimate.  The legal Wechatosphere often mentions that a Wechat chat group of former Beijing-based (including the SPC) judges has reached its maximum of 500 members.

More data and analysis comes from two sources: a survey conducted in the fall of 2015 and published by Wusong (a big thank you to another “authoritative person” for bringing this to my attention) and a recent article by one of the more popular Wechat public accounts, Empire Lawyers ( 法客帝国).

Respondees to survey

0662a683-7b08-44ac-8da0-1e7b1c3fb915

Six hundred former judges responded to the survey, conducted through social media, of which 72% had left within the past year, while almost 19% had left within the past 2-3 years.

Who is leaving

4b273593-308c-4a1f-a27e-8d735f68f6fa

Judges resigning, by sex (82.2% men, 19.67% women

It is mostly men leaving the judiciary, out of proportion  with the ratio of men:women in the judiciary (2:1). (This confirms what I have been saying when I have spoken on this issue). The survey gives the rationale that men are more interested in a challenging career than women, and are able to deal with a more pressured life.

Judges are resigning in their 30’s, for the most part (see below), and my own analysis is that the reason women are staying in the judiciary is that (married) women at that age also have responsibilities to children and elderly parents. Women are prepared to deal with the stresses of working in the judiciary because the work is more “stable,” and does not involve marketing work after business hours.

Age and education

Over half (55%) of the judges resigning are in their 30’s. Most (70%) have been in the judiciary for at least 6 years, with practically all (91%) with at least 4 years of experience, over 99% with an undergraduate degree and 37% with a master’s degree.

Type of court and area of work

dd6bb700-caac-45b4-9fdb-b41af327a469

Most judges who have resigned recently  are from the basic level (78%) and intermediate level courts (18%).

4b768706-e200-46af-8d25-1d07bbce9765-1

Many (almost 80%) of the judges who had resigned were in the civil/commercial divisions, with division chiefs and deputy division chiefs accounting for 14% and 19% respectively.

Reasons for leaving:

  • benefits insufficient (66% selected this as primary reason);
  • too much pressure and too much work (60%);
  • not enough opportunity for promotion (34%);
  • professional risk and lack of professional respect (31%).

Those that have resigned are generally pessimistic about judicial reform (47%) or can’t say for certain whether it will be successful (32%). Their “judges’ dream” is to be able to try cases independently, without reporting their case up to the leadership, worrying about parties to the case petitioning because they are unhappy with the outcome, etc.

Another analyst (the editor of the Wechat account Empire Lawyers) gave three reasons for the wave of judges submitting their resignations.

  • Wechat;
  • Judicial reform;
  • Other factors (especially money).

Why Wechat?  Because it has given them a new universe of social connections outside the judiciary. It also gives them easy access to information about the life of former judges similar to themselves. Moreover, through Wechat they can create a circle of friends and connections who can provide moral support when they have made the decision to resign. According to the editor, Wechat is often a vehicle for judges preparing to resign. Some judges establish their own Wechat public accounts while still in the judiciary, publishing articles that bring much more attention from legal professionals to their expertise than their judgments ever do.

The increased stresses of judicial reform are another set of factors–the lifetime responsibility system,  case registration system, and particularly, the bright line quota on the number of judges (no more than 39%) means that promotions will come more slowly than previously and others will not even be eligible to participate in the examinations for qualifying as a judge.

Other factors?  The editor cited money, particularly judges in major cities with high costs of living.  The fact remains that middle-class life in China’s major cities, particularly for couples with a child, is expensive and judicial salaries, tied to civil service rank, are inadequate.   As the editor mentioned, some judges supplement their wages with (legal) inome from writing or lecturing. (It seems likely in the current atmosphere, fewer judges are willing to risk soliciting illegal income.)

There is also the rigidity of the Party/state cadre management system. While law firm partner classmates are posting photos of themselves at Yosemite or in the Grand Tetons on Wechat, judges must obtain permission to leave the country

Finally, this couplet is popular on legal oriented Wechat:

网上流行一个段子:

Q: Do you regret resigning from the court?

问:从法院辞职,你后悔吗?

A: Regret.

答:后悔。

Q: Why do you regret it?

问:为什么后悔?

A: I regret that I left too late.

答:后悔出来晚了。

What China’s judicial reform white paper says about its vision for its judiciary

01200000162424134434247272462_s

Portrait of Qing dynasty inspector

Over one year has elapsed since the Supreme People’s Court (SPC) has implemented the judicial reforms set out in the February, 2015 4th five year plan for reforming the judiciary.  While thousands of words have been written in Chinese and English, some praising,  criticizing, mocking, and bemoaning the reforms, it was only in late February, 2016 that the SPC issued a comprehensive official assessment, focusing on its achievements. That official assessment takes the form of a bilingual white paper (White Paper) issued in early March (but full text released on-line only in English), plus a section of President Zhou Qiang’s work report devoted to the judicial reforms, a first for the SPC.  I surmise that it was approved by the Judicial Reform Leading Group.

This blogpost looks at the vision for the Chinese judiciary that the White Paper conveys, by looking at several sections.

 

Chinese court system and the reform process

The description of the reform process in the first section of the White Paper tells us who/what is driving the reform process, the nature of the process, the core issues, and how the judicial reform process is being monitored.

Facts highlighted:

  • During 2014-2015,13 out of 19 plenary sessions held by the Central Leading Group for Deepening Overall Reform involved judicial reform, where 27 judicial reform documents were adopted.
    • A partial list of those 27 documents is found here.
  • The Social System Reform Specialized Group (the Central Leading Group for Judicial Reform) is in charge of judicial reform;
  • The SPC has a leading group in charge of judicial reform, replicated at the provincial level, and any judicial reform plans piloted by them need to be approved by the SPC or above (the 4th Judicial Reform Five Year Plan states this).

According to this section, the four core judicial reform measures are:

  • improving the classified management of judicial personnel [treating judges differently from clerks and other support personnel and civil servants0;
  • the judicial accountability system [the lifetime responsibility system set out in regulations issued in September, 2015, but only implemented in areas piloting judicial reform, controversial among judge and academics];
  • professional protection of judicial personnel ;
  • unified management of personnel, funds and properties of local courts below the provincial level.

These four measures will be piloted throughout the country in several rounds before they are implemented nationwide.

Comments

From the description of the reforms we can see that the specific reforms discussed in the remainder of the report have been cleared by the Party leadership.  It seems reasonable to assume that each reform involved hundreds of hours of policy paper drafting by SPC staff and internal and cross-institutional discussions, and responses to comments during those discussions.

What the White Paper did not mention is that the Central Leading Group for Deepening Overall Reform and the Central Leading Group for Judicial Reform established their own inspectorate for monitoring the progress of reform,including judicial reform, (reviving a traditional institution).  It is unclear which reforms will be targeted this year for inspection. The separate inspectorate seems to indicate that these Central Leading Groups want their  own source of information on how reforms are being implemented.

 

Judicial independence (Ensuring Independent and Impartial Exercise of Judicial Power Pursuant to Law)

One of the messages conveyed in this section is that local courts do not belong to local governments but are established by the State at the local level to exercise judicial power on behalf of the State. The goal as stated in this section, is to “form an institutional environment and social atmosphere that respects [the] judiciary, supports [the] judiciary and trusts [the] judiciary.”

It  lists about a dozen measures. What is new in this section:

  • a summary of the policy thinking on judicial appointments and funding of the local courts.  On judicial appointments, judges will be selected by judicial selection committee at the provincial level in terms of professionalism, and will be appointed and removed according to common standards. This is a push in the direction of professionalism, and away from the phenomenon noted in the past few years of having chief judges who lacked a legal education.  On the funding issue, the Central Government will fully guarantee the funding of the local courts. The provincial fiscal departments manage the funds of local courts below the provincial level, the local courts will submit their budgets to the provincial fiscal departments, and  budget funds will be appropriated by the centralized payment system of the national treasury.
  • Fuller discussion of cross-administrative district courts to hear administrative cases–piloted in Beijing and Shanghai and other locations, under the umbrella of a policy document of the SPC that has not been made public. The concept is to have cases against local governments heard outside of the area in which they arose.  The SPC recent policy document on the development of the greater Beijing area has further content in that area.

This section also discusses the following reforms, previously discussed: circuit courts; cross-administrative division courts; intellectual property courts (by Mark Cohen, chinipr.com); administrative cases being centralized in one court (Shenzhen is one of the pilot project venues); maritime courts; environmental protection divisions; official interference.

Improving the way the courts function ( Improving the Functional Mechanism of Adjudicative Powers)

The fourth section of the White Paper provides useful insights into how the judiciary is intended to operate post reform.  It starts out with a statement that judicial power is a judging power in essence and emphasizes impartiality, neutrality and personal experience.”

The focus on this section is on reforms to the way Chinese courts operate. As I have written previously, they have operated in many of the same ways that other Party and government organs operate.     This section describes pilot reforms, new policies, or regulations concerning the following (among others):

  • personnel reforms described above (but do not mention the pay rise that goes along with it in at least some courts);
  • senior judges within a court (court presidents, vice presidents, division chiefs) will no longer approve judgments, except for a small number going to the judicial committee);
  • senior judges will hear cases instead of concentrating solely on administrative matters;
  • courts will establish a specialized judges council made up of judges in specialized areas (criminal, civil, etc) to provide views to judges hearing cases on the interpretation of substantive issues, on an equal basis rather than seniority;
  • the SPC has abolished irrational performance indicators and forbidden senior judges from involving themselves in cases that they have not heard;
  • the SPC has issued policy guidance on the reform of judicial committees (not yet made public).  The principles set out follow generally what was described by President Zhou Qiang earlier, but include judicial committee discussion of “major and complicated cases concerning national diplomacy, security and social stability and those required by law.”  The guidance calls for more transparency (unclear whether to be within the court or greater), better record-keeping, and less involvement by judicial committees with specific cases. As discussed in an earlier blogpost, judicial committees have often been a route for transmitting the views of local officials and have been been implicated in some of the wrongful conviction cases);

    judicial committee

    judicial committee ©SPC

  • judicial responsibility/accountability system, mentioned above;
  • regulations on the jurisdiction of different levels of courts in civil cases (described in this blogpost).

These reforms look to do a number of things that are significant within strictures of the Chinese system: distinguish judges from other Party cadres and give them better status and pay; break down or reconstitute some of the basic internal structures of the courts that have facilitated corruption, unjust cases, and discouraged talented judges; abolish performance indicators that have been poisonous for judges and litigants alike.

 The vision

The vision that the SPC  has for the Chinese judiciary and judges can be seen from the description of the reforms above.  The SPC intends to create a more professional judiciary (with a lower headcount), that is better paid, more competent, has performance indicators that look more like other jurisdictions, with an identity and operating mechanisms separate from other Party/government organs, that will be more autonomous, no longer under the thumb of local authorities, but operates within the big tent of Party policy.  To be incorporated in the judicial reforms, the implications of each measure must have been thoroughly discussed by the Party leadership and the Party leadership is using its own institutions to monitor results.  Will the judicial reforms achieve their goal of making people feel justice in every case?  For that, the jury (or is it the people’s assessors(also being reformed)?) is still out.

China’s judicial legislation takes first step on road to complete overhaul

Vice President Shen Deyong

Vice President Shen Deyong

Implementing the judicial reforms in China requires an overhaul of China’s current basic legislation, the Judges Law (法官法)and the Organizational Law of the People’s Courts (人民法院组织法). The Supreme People’s Court (the Court) media outlets have recently reported that on 23 October the first meeting was held of the drafting group to amend the Judges Law, with Court Vice President Shen Deyong chairing the meeting, and senior Court judges in attendance.  The report notes that the focus is on securing the independence of the courts (but having them remain firmly under Party control). Judge Shen mentioned that issues under consideration include: criteria for the selection of judges; protection for judges undertaking their duties; evaluation of judges, judicial assistants, salary scales, retirement and insurance, and rewards and punishments.

Part of the preparatory work for amending the Judges Law is to include field research and surveys, particularly of front-line judges in the judicial reform pilot areas.  The drafting group will designate some local courts and some universities/research institutes to assist with the drafting.  The drafting of the Judges Law will need to be consistent with the principles of the amendment of the Organizational Law of the People’s Courts and the work of the Central Leading Group on Judicial Reform.  This summer, the Court convened an initial meeting to discuss amending the Organizational Law of the People’s Courts.  How to reorganize the Chinese judiciary and what professional status Chinese judges should have and work under will affect how judicial reforms are implemented and less directly, more fundamental issues concerning China’s economy and society.

Some questions about Chinese judicial reforms answered

law professors Fu Yulin and He Haibo (©Southern Weekend)

law professors Fu Yulin and He Haibo (©Southern Weekend)

An article on the judicial reforms in the 25 September edition of  Southern Weekend (南方周末) is now making its way across Chinese social media, featuring an interview with Peking University Law professor Fu Yulin and Tsinghua University law professor He Haibo. The article  addresses some of the questions many inside and outside of China have been asking:

  • What is the status of the judicial reform pilot projects outside of Shanghai?
  • What is the status of some of the issues mentioned in the judicial reform documents?
  • Why haven’t China’s judicial reform documents been made public?

 

Some background

The two principal judicial reform documents approved by the highest political authorities are:

  •  the Fourth Five Year Plan Judicial Reform Outline, a summary of which was issued on 9 July (blogpost analysis here and here).
  • the Shanghai Judicial Reform Pilot Project Work Plan(上海市司法改革试点工作方案). A detailed description of how the Shanghai authorities will implement this (上海市司法改革试点工作方案>实施意见) has been released by both the Shanghai and national press (an English translation available here).

The published reports on the Fourth Five Year Plan Judicial Reform Outline have mentioned that pilot projects would be implemented in Guangdong, Hubei, Jilin, Qinghai and Hainan, but no outlines of those pilot projects have surfaced.

What is the status of those judicial reform plans?

According to Southern Weekend, drafts for judicial reform plans for Guangdong, Hubei, Jilin, Qinghai, and Hainan are basically finished and have been submitted to the Central Political Legal Committee. They are awaiting approval.

What is the status of some of the issues mentioned in the judicial reform outlines?

 Judicial selection committees

According to  Southern Weekend, it is unresolved under the judicial reforms, who will select judges and how they will be selected. Plans for all five pilot plans designate the the head of the provincial political legal committee as the head of judicial selection committee, with the judicial selection committee to be based at the provincial political legal committee. The reforms in Shanghai are the exception, where the judicial selection committee will be based in the Shanghai Higher People’s Court.  The two law professors interviewed suggest that the provincial people’s congress would have been more appropriate (for the other five pilot plans), but they state that the people’s congresses in these locations did not want to take on that role. (And one comment on the article was that the Party, after all, selects people’s congress members.)

The law professors stressed the need for legal professionals to be members of judicial selection committees. One noted that in China, the principle of “the Party manages cadres” (党管干部) cannot be avoided and suggested that judicial selection committee and Party organization department clearance could run parallel.

It seems that the tension between Party involvement and professionalism in judicial selection remains an issue.

Quota system for judges

The quota system for judges refers to establishing quotas on the numbers of judges in relation to other personnel within the judicial system.  As described in these articles, the plan in Shanghai is to limit judges to 33%, with administrative and support staff constituting 55% and 15% respectively. The  framework in Shanghai has been widely discussed and criticized in the Chinese legal press and on social media, particularly for its impact on younger judges, who note that they would not fit the judicial criteria and would be made “obsolete.”

Professor Fu echos criticism made by judges and others in the press that imposing a rigid quota system for the number of judges was inappropriate.  She pointed out that at the basic level, having a system with fewer than 40% judges was unworkable, given that the Chinese courts at the basic level had to deal with large number of minor offenses.  The reason was that China had not yet established separate courts to deal with minor offences [the Supreme Court Monitor notes that pilot projects for these courts are underway in some areas]. Another issue is the many responsibilities that Chinese judges have in addition to hearing cases and how a smaller number of judges will be able to hear cases as well as carry out their other responsibilities (research, compiling judicial statistics, promoting the courts).

 Why haven’t the current judicial reform documents been made public?

The professors note that they themselves have not seen the judicial reform documents either. They suggest that policies for many issues have not been worked out, but that the uncertainty about the direction and content of the reform policies has a negative effect.

The upcoming plenum

It seems likely that the upcoming fourth plenary session of the Chinese Communist Party’s 18th Central Committee, on rule of law, in October will give us more certainty about the direction and content of the judicial reform policies.  In the meantime, the issues and their implications give us all much to think about.

More on the Supreme People’s Court’s Judicial Reform Plan

On 16 July the Supreme People’s Court’s (Court’s) newspaper and social media outlets headlined two articles important for observers seeking to understand the judicial reforms:

  • a  report on statements by Meng Jianzhu, Politburo member and chair of the Central Political Legal Committee on the importance of the judicial reforms; and
  • an long explanation by HeXiaorong, the leader of the working group on judicial reform (of the Court’s judicial reform office) on the theory, logic and implementation of the judicial reforms.

    Meng Jianzhu

    Meng Jianzhu

Statement by Meng Jianzhu

The statement by Meng Jianzhu , made after he heard reports on the implementation of judicial reform pilot projects in six areas, stressed that the Central leadership considers the judicial reforms very important and has given a set of policy instructions on the implementation of the reforms. He calls on all involved in various political/legal organs at all levels to implement the reforms.

For anyone who has spent any time in a large organization, his message, although expressed in Chinese political language, will sound familiar:

  • make sure those at the local level are “on message”;
  • don’t impose the same method everywhere (不搞一刀切;
  • ensure enthusiasm about the reforms, otherwise they may fail.

The thinking behind the judicial reforms

015149e9c9534961384733a6061d96b3

He Xiaorong

A long article by He Xiaorong published on 16 July in the People’s Court Newspaper and other Court media outlets summarizes the thinking behind the judicial reforms (and what must have been the hundreds of pages of policy papers that underly what has been made public).  It is an edited version of a fuller paper, that has been issued on Wechat and perhaps other outlets (and is said to express He’s own thinking).  For those seeking to understand the judicial reforms, it deserves close analysis. A flash analysis will follow when time permits.

The Supreme People’s Court Issues its Newest Five Year Reform Plan for the Courts

On 9 July, the Supreme People’s Court issued its fourth five year reform plan for the courts, approved by the Party leadership, which sets out 4 broad areas of reform, relating to 8 general areas. An overview has been released on Wechat and other Chinese social media and can be expected to be published very soon in more traditional media. An clear info graphic was published on the Court website and other official media, translated here.

The Court described it as taking first steps towards establishing a judicial system with Chinese characteristics and is intended to roll out reforms announced in the 3rd Plenum decision and the judicial reform decision announced earlier this spring and some of its themes were highlighted in press releases published just after Chinese new year.  Many of these issues are ones that have been discussed within the Chinese legal community for many years and draw on international expertise as well. The summary below highlights five of the eight broad areas.

  • Personnel reforms
  • Separate administrative and judicial jurisdiction
  • Improve the operation of the judicial function
  • Improve the protection of human rights
  • Increase judicial transparency
  • Clarify the roles of the four levels of the courts
  • Improve judicial administration
  • Promote reforms relating to petitioning

Personnel reforms

The intention of the personnel reforms are to split the treatment of judges from other civil servants, to step away from the traditional model of judges as cadres. This will involve pushing forward the initial reforms being tested to change the personnel management of local courts, and transfer that to the provincial level. This will include:

  • the establishment of provincial level selection committees, will involve clearance by Party disciplinary and other functions, and retain appointment by the people’s congress.
  • Personnel reforms will also involve splitting the management of judges from other judicial personnel, such as judicial police and clerks.
  • Additionally, reforms are intended to the use of judicial headcount, to focus that by increasing the number of judges.
  • Two other reforms involve establishing new systems for judicial promotions and establishing differing criteria for the recruitment of different types of judges.

Separate administrative and judicial jurisdiction

Reforms in this area include:

  • taking steps to take certain cases, such as some environmental and commercial cases out the local administrative jurisdictions, so that they can be heard fairly.
  • Reform some of the lesser known courts, such as the forestry courts, to bring them into the ordinary court system.
  • Establish a system for circuit tribunals at provincial level to hear difficult cases, and focus on environmental cases.
  • In areas where  there are more intellectual property cases, promote the establishment of intellectual property courts.

Improve the operation of the judicial function

The summary concerning this section admits that having the person who heard the case decide it remains difficult to implement within the Chinese jidicial system, and that despite initial attempts, internal multi-level approvals for deciding cases remains the norm.  The intended reforms in this area include:

  • improving the system of responsibility of the primarily responsible judge and the panel that heard the case.
  • Changing the system of signing judicial decisions.
  • Improving the monitoring of judicial performance.
  • Improving judicial disciplinary procedures.

Importantly, reforms look to change the current relationship between the judge responsible, the tribunal, and others in a position of leadership within the courts, such as the head of the division and court president. There has been a great deal of academic writing about this, in both English and Chinese, as well as articles written by judges serving at various levels.  A great deal of thought has gone into this section and implementing these reforms will involve changing long-term patterns of interaction.

Improve the protection of human rights

Reforms in this area are intended to improve the protection of human and property rights, particularly by improving judicial review of the investigation and prosecution stages:

  1. Eliminate the use of illegally obtained evidence.
  2. Improve the role of the defense lawyer and the statement by the advocate for the defendant.
  3. Improve systems for pursuing judicial negligence.
  4. Improve the protection of assets relating to [criminal cases].
  5. Improve reforms in the area of minor crimes, so that those cases are heard more quickly (pilot projects are underway in some areas).

These reforms represent the result of years of discussions within the judiciary, with lawyers, academics, and interactions with members of foreign courts, research into foreign legal systems, and others.

Increase judicial transparency

Reforms in this area build on the initial steps taken late last year and include:

  1. Make the hearing stage more open, by improving the system of announcements and permitting spectators to attend court hearings, increase real time broadcasts of hearings.
  2. Improve the handling of judicial information, so that litigants can determine the status of their case on-line.
  3. Improve the judicial decision database, Judicial Decisions of China.

All of these reforms are good practical proposals. Foreign observers of the Chinese courts would welcome easier access to Chinese court hearings.

A quick comment

Drafting this reform plan has been a tremendous undertaking and its implementation promises to be even more challenging.  Some of the reforms discussed above are the subject of pilot projects in various parts of the country, ranging from Guangdong and Shanghai, where the courts have heavy caseloads and face cutting edge cases, to less prosperous inland provinces. Reforms are likely to start with what is most easily implemented and where results can most easily be achieved.  What this means for some of the specialized courts, such as the military and maritime courts, will be clarified in time. The extent to which these reforms can change patterns of interaction within the judiciary and between the judiciary and government/Communist Party of many decades standing remains to be seen.  It is hoped that the pressure of greater professionalism within the judiciary, and other social and economic forces will eventually result in a judiciary that better serves the needs of all.

 

More on the Supreme People’s Court and Typical Cases

SPC announces model cases

SPC announces model cases

In a press conference on 30 April, the Supreme People’s Court (the Court) announced that it will more systematically use model (typical) cases (典型案例) to guide the lower courts. The Court is increasingly using model/typical cases.  My recent blogpost  explains what model cases are, which courts issue them and the authority of model cases.

One of the initiatives the Court highlighted in its October 2013 judicial reform plan is “expanding fully the important role of leading cases and cases for reference.” because its leadership considers model cases an important supplement to legislation, judicial interpretations, and “guiding cases” (a special category of cases so designated by the Court).  Mark Cohen, of chinaipr.com, has blogged on the Court’s use of model cases in the area of intellectual property law.

The Court will issue at least five model/typical cases on a monthly basis, selected from cases submitted by the lower courts.  The cases can be accessed through the Court’s Cases in Chinese Courts portal. The ones on the website are currently limited to those issued in 2013 and 2014.  Unfortunately, a search functions appears lacking.  Despite the limitations, it is a further development in the use of case law “with Chinese characteristics.”

 

The Supreme People’s Court: Week Ending 21 December 2013

1.  The Chinese government cracks down on medical institution crime. On 21 December, 11 government and Party bodies, including the:

  • National Health and Family Planning Commission;
  • Supreme People’s Court;
  • Ministry of Public Security;
  • Ministry of Justice; and
  • Supreme People’s Procuratorate,

initiated 1 year movement to crack down on crime relating to medical institutions. The plan, reported here and  linked here , calls for the punishment of offenses related to medical institutions.  It also announces the framework for related reforms:

  • restructuring state-owned medical institutions;
  • resolving medical disputes with mediation;
  • improving rural health; and
  • improving security in medical institutions.

Although the Supreme People’s Court co-issued this document, it is not a judicial opinion.  It is a policy document.

2.  The Court posted structural reform issues for on-line discussion, although it is unclear what the response has been.  On 18 December, the Court posted two court structural reform issues raised by the Third Plenum Decision on the “Everyone Discuss Judicial Reform” Website (linked here) and asked for comments:

  • local courts and procuratorates–promote uniform administration of  personnel, finance, and property at provincial level and below;
  •  the four levels of the courts–clarify their role and position.

Questions raised by the Court concerning the “uniform administration of the local courts”:

  • what does this mean;
  • what are its implications,
  • will it mean further bureaucratization of the courts and procuracy,
  • what flexibility should there be,
  • what will it mean for local protectionism.

Questions raised by the Court concerning “clarify the role and position of the functions of the four levels of the courts” concern the implications for:

  •  judicial interpretations,
  • appeals systems;
  • internal organization of the courts.

The “Everybody Discuss Judicial Reform” website is a joint project of the national court website, justice website (Supreme People’s Procuratorate), and the China Law Society.  It is a forum for eliciting discussion on important issues for which the institutions must already have framework plans.

The Supreme People’s Court: Reforming the Chinese courts the Party Way

On April 8, 2013, the Supreme People’s Court announced that its Communist Party (Party) Committee was implementing an  “educational movement to improve judicial work style” (judicial work style movement)  in the second quarter of 2013. Zhou Qiang, the newly appointed president of the Supreme People’s Court, is also the head of its Party Committee.

This clunkily named announcement, written in densely packed Party jargon, is has critical implications for the Chinese court system and all those affected by it, domestic and foreign.  Unpacking the announcement requires a Chinese political jargon decoder and a strong cup of coffee.

This posting will explain why the announcement is so important by highlighting:

  • The meaning of an “educational movement” and “judicial work style.”
  • The impetus for the movement.
  • The goals of the movement.
  • How will it be done?
  • What are its implications?

What is an “educational movement” and  “judicial work style”?

Both phrases are frequently used in Chinese political jargon.

  • An “educational movement”  refers to a political initiative with both educational and punitive aspects, focused on correcting certain ways of thinking while “work style” means the standards of conduct of officials.
  • Work style issues cover a broad range of activity, from deciding cases to womanizing, to luxurious banquets.

Impetus for the movement:

At the 18th Party Congress, the Communist Party leadership identified “judicial credibility” (司法公信力) as a critical area for improvement because of its political implications, particularly the profound loss of confidence in the ability of the Chinese judiciary to provide competent and fair justice.  This was symbolized by the vote  by 20% of National People’s Congress deputies against the Work Report of the Supreme People’s Court.

Goals of the movement:

As announced by the Court’s Party Committee, this education movement has the following goals:

  • Implement the ideal that justice is for the people, so that litigants will not feel they are despised;
  • Decide cases according to law, so that litigants will feel that justice has been done;
  • Improve judicial responsibility, so that judicial laziness, delays, indifference, arbitrariness, failure to hear both sides, and gross errors are avoided.
  • Improve judicial self-discipline and establish a clean judiciary, stop cases decided by money, connections, and sympathies.

Implementing the movement

The Court has called on the lower courts to implement the movement by the following:

  • Study relevant Party and Court documents;
  • Have court leadership take responsibility for implementing the required measures;
  • Implement appropriate internal systems to avoid conflicts of interests, institute training and monitoring programs;
  • Analyze issues in each local court, taking account of the views of various parts of society, identify the weak spots in the judicial system and evolve effective means to deal with them;
  • Use good and bad examples, including instances of judicial irresponsibility and other judicial action that harms judicial prestige;
  • Stop major abuses in the courts, such as taking gifts and money, using court vehicles for private business, using judicial posts to engage in business, and lavish eating and entertainment at public expense.  Violators should be exposed, ordered to change, and if they do not, be dealt with.

What does this educational movement mean?

The implementation of this “educational movement” means that Party leadership recognizes that corruption and abuses in the court system are causing dissatisfaction and resentment among a substantial number of Chinese citizens, including among the political and business elite, and the leadership has called on the new Court leadership to do something about it. The Court leadership recognizes (more than any outside observer) that the Chinese judiciary often delivers a poor quality of justice, but that the issues are different in different parts of the country and even within the same city or province.

What may result from this “educational movement”?

  • Expect a spate of judicial scandals to hit the Chinese media and blogosphere.
  • Behind the scenes there may be a pushback from lower court judges, who feel they cannot make ends meet if they are honest.
  • Expect greater engagement between the Supreme People’s Court and the outside legal world, including greater dialogue between the courts and other parts of the legal profession in China, such as lawyers and academics in evolving reforms.  President Zhou Qiang has led the way by holding a meeting with leading academics and lawyers in late April.
  • Because this educational movement does not deal with the structural issues that have created the conditions under which judicial abuses flourish, expect incremental institutional changes to be gradually rolled out in the next few years.