On 30 August 2022, Supreme People’s Court (SPC) President Zhou Qiang (President Zhou) delivered the SPC’s interim report to the National People’s Congress Standing Committee (NPCSC), on the pilot to reorient the four levels of the Chinese courts ( 四级法院审级职能定位改革试点情况的中期报告). The interim report is required by last year’s authorization by the NPCSC. That authorization was reported here (by the NPC Observer). My November 2021 analysis of the background of the reform, including political leadership approval, and the impact of this reform on the SPC can be found here. At the time, I did not address the impact of the reform on the lower courts.
The NPCSC published comments by some of the members, including some former SPC judges (and justices). A summary of the interim report along with related materials that the SPC released, which I surmise were attachments to President Zhou’s report, selected comments by NPCSC members, and my analysis follow below. I welcome any corrections or criticisms of the analysis.
Progress of the Pilot
Although the NPCSC delegated authority to the SPC for this two-year pilot program, the delegation was not a hands-off one. President Zhou mentioned that the NPC NPC Supervisory and Judicial Affairs Committee and the NPCSC’s Legislative Affairs Commission heard numerous reports and engaged in supervision (perhaps better translated as oversight or monitoring). What that means in practice is not specified, but it is understood to be the usual practice. So perhaps the NPCSC delegation to the SPC or other entities to engage in pilot projects plus supervision can be better understood to be a “delegation plus a continuous monitoring process,” with the interim report stage a chance for the SPC to put its best face on the results so far, and a larger number of NPCSC members to provide comments. I look forward to the NPC Observer or others looking into this aspect of the work of the NPCSC.
Pilot Measures Issued By the SPC
The SPC issued the above graphic to illustrate the number of documents released to implement the pilot reform.
Several of the more specific ones have not been made public. As I wrote in my 2018 book chapter, there is no legal requirement for certain types of court guidance to be made public:
February 2022 SPC requirements concerning cases that should be transferred to a higher level court for hearing and reporting of work in case transfer and retrial;
November 2021 SPC work processes for civil and administrative retrial cases;
28 July 2022 SPC work procedures for reviewing applications for civil and administrative retrial;
December 2021 requirements on statistical reporting for the pilot reforms;
November 2021 work allocation for the reform.
Local courts also issued measures to implement the reforms, with the Shanghai Higher People’s Court announcing a kick-off meeting last fall. However, the measures mentioned in the kick-off meeting are not publicly available.
Impact on the SPC Itself
The impact of the reform on the SPC is more dramatic than I predicted in my November 2021 article. A related question, not mentioned in President Zhou’s report, is the implications for the circuit courts.
The statistics released by the SPC do not reveal the relative proportion of administrative vs. civil retrial applications that the SPC received before and after the pilot reform. According to my earlier research, the larger proportion of the retrial applications had been administrative cases, heard primarily in the circuit courts, with many cases focusing on the amount of compensation given by local governments in real estate requisition cases. These tend to be cases in which parties are not represented by counsel, although some circuit courts have determined that it is best to work with local justice bureaus to enable unrepresented parties (usually petitioners who go to the litigation service center) to have counsel. Most of my students who have interned in SPC circuit courts have spent time in the litigation service centers and accompanied judges who meet with petitioners. That does not seem to be the case for students who have interned at SPC headquarters.
Among the materials released by the SPC is this flow chart illustrating the progress of an application for retrial to the SPC. I surmise that it outlines the process in one of the internal documents mentioned above.
President Zhou introduced the work that the SPC had done because it was hearing far fewer retrial cases:
Heard 625 retrial cases (civil and administrative);
Concluded 2712 civil and administrative second instance cases;
Issued 25 judicial interpretations and three batches of guiding cases;
Held seven cross-disciplinary professional judges meetings, in which differences in views among different divisions in the SPC were resolved (as set out in these regulations); and
Reviewed 162 local court guidance and 219 guidance cases, under the filing system mentioned here.
He did not mention the larger number of judicial policy documents that the SPC has issued, except in very general language, although it is in fact an important part of the reform.
President Zhou also did not mention the implications so far on the work of the circuit courts. As I wrote earlier, most of the cases heard in the circuit courts have been administrative cases, with a much smaller number of appeals from the higher people’s courts. I also mentioned then that circuit courts seek to guide and supervise the lower courts in their circuit through circuit guidance, typical cases (several volumes have been published by different circuits), and conferences. Although the primary purpose of the circuit courts was to have been hearing cases involving cross-provincial interests, the circuit court reform has not thus far been so implemented. Judges assigned to the circuit xourts have found themselves busy with administrative retrial application case processing, feeling themselves to be “judicial migrant workers” (司法民工).
Impact on the lower courts
A relatively small number of cases had been pushed downwards to the lower courts and more cases had been raised to higher-level courts. Among the cases that had been transferred to a higher level, “23.70% of the cases involve major national interests and social and public interests,” 33.96% of the cases are relatively new and complex within their jurisdictions, and 34.91% of the cases have guiding significance. These cases involve issues such as the confirmation of data rights, unfair competition on the Internet, and the validity of education and training contracts under the “double reduction” policy. The SPC has transferred some retrial cases to the higher people’s courts.
Higher people’s courts had actively sought the support of the organizational (Party organization组织) and establishment ( headcount control 编制) departments.
In the pilot areas, higher and intermediate people’s courts have strengthened the guidance of lower-level courts through special training, typical cases, trial guidelines, etc. Basic-level people’s courts have sought to separate complex and simple cases and likely sought to promote the use of mediation to resolve cases.
President Zhou admitted that there are issues with related policies, including:
unclear standards for determining “major cases;”
poor information sharing, coordination, harmonization of procedures between upper and lower level courts;
work assessment systems have not been adjusted to deal with the new caseload because of the reform;
filing fees have not been reformed.
Comments by NPCSC Delegates
Several of the NPCSC delegates are former SPC Justices, including Jiang Bixin and Jing Hanchao (also deputy secretary general of the Central Political Legal Committee). Some of their comments included the following:
there are many judicial reforms, with some conflicts between them so research is needed to coordinate them better. (This is a point I made when I spoke at the SPC in 2018);
the Civil Procedure Law and Administrative Litigation Law will need to be amended;
court fees need to be increased;
better coordination is needed to ensure sufficient headcount at the local level.
There was no transcript of the comments so we cannot know whether sharper comments were not reported.
Some thoughts about this judicial reform
This report and this reform encapsulate at least some of the complexities of reforming the courts. Judicial reform is an enormously complicated project because the implementation of one reform and especially the partial implementation of a reform, particularly the crucial ones, have the ability to have a profound impact on linked and later reforms. The reforms relate to the state of the law as it is and to detailed measures intended to be piloted. It is unclear whether the relatively small team of persons working at the SPC on judicial reform matters has the capacity to draft guidance in sufficient detail to ensure that the reforms implemented are those intended. It is unclear whether the team uses some of the project management and data collection tools that are often used to this end elsewhere in the world.
So one aspect of the reform is the evolution of the SPC into a “supreme court with Chinese characteristics,” the intent being for a significant part of the SPC’s work to focus on “unifying the application of law” through issuing judicial interpretations, quasi-binding guidance such as conference summaries (meeting minutes), judicial policy documents, seeking to resolve differences of opinions on issues that cross divisional boundaries, etc., reviewing certain judicial review of arbitration cases, and hearing fewer, but more important cases, and fewer retrial cases. That means that the lower courts, from the higher courts will need to be the ones to hear large numbers of cases.
2. The second important aspect of the reform is reshaping the work of the lower courts, to distinguish the work of different levels of the courts from one another, particularly to make appeals more important. Many supporting measures are needed to make this a success. It appears that some supporting measures are weaker than they should be, and other infrastructure is only partially in place. This blogpost can only mention a few. Moreover, It is unclear how much “market input” the drafters solicited in the drafting process. As in anything, the devil is in the details.
a. Regarding “supporting measures,” among the most crucial ones are the lower courts having sufficient personnel and financing (and preferably flexibility in adjusting both to deal with change). One of the reforms in the 2015-19 Fourth Five-Year Judicial Reform Plan Outline was to reform the control of funding and personnel so that they would be controlled on the provincial level rather than locally. This reform was approved by the political leadership. Local court headcount is not controlled centrally, nor does the Ministry of Finance control court funding. It seems for a number of complex bureaucratic reasons, discussed variously earlier on this blog, in a 2017 article by Tsinghua University Political Science Professor Yu Xiaohong, and in a 2021 article in the SPC journal People’s Justice (人民司法) on court funding by a senior SPC official, that these reforms were only partially successful. That is why pilot higher people’s courts actively sought out those in charge of headcount, to see to ensure that they could have enough judicial personnel to implement the reform properly.
Although President Zhou did not mention court financing directly, the court funding situation that was described in the 2021 article as grim (严峻) cannot have improved, with the financial crisis that local governments are facing with the drop in local government revenues and the cost of Covid-19 testing.
b. The report also shed light on the state of the legal infrastructure supporting the basic level courts. For example, judicial reforms have created the role of judges assistant, but their specific authority remains unclear and the career path to becoming a judge is unclear. As a consequence, there is a serious brain drain among experienced judicial assistants, as I wrote earlier, and as discussed in this recent article in People’s Justice. Another issue frequently mentioned by local judges is the “one size fits all” judicial evaluation system, including performance indicators that penalize a judge whose judgments are appealed.
c. For retrial cases, highly flexible standards in the law and judicial interpretations make it easy for a party to initiate a retrial application, but amending the Civil Procedure Law and Administrative Litigation Law are major projects, with little change expected in the very short term.
c. An additional issue mentioned by some of the judges involved in piloting this reform is problems with judicial training and legal education, although it seems unlikely that this ranks as highly as adequate funding, headcount, and evaluation. Judge Huang Xiangqing of the Shanghai Higher People’s Court commented that new joiners to the court system are unfamiliar with evidence rules, and on-the-job training is needed to get young court staff familiar with the handling of evidence. I have heard analogous comments from others in the court system. Judicial training in the New Era further emphasizes ideological training (as I wrote earlier), but junior judges and the parties that appear before them may better benefit from consolidated instruction in evidence law and other basic judicial knowledge and skills. More practical subjects and skills training are not favored as much at many Chinese law schools, because hiring and promotion tend to be based on publications.
I welcome further comments and corrections, especially from those in the pilot courts.
Many thanks to an anonymous peer reviewer for providing detailed comments on several earlier drafts of this blogpost.
This post is a lengthy summary/incomplete translation of an article entitled 省级统管后法院经费保障机制再造 (Reconstruction of the Court’s Funding Guarantee Mechanism after Provincial Administration)by Fan Lisi (范丽思), a judge of the Wuhou People’s Court, Chengdu, Sichuan Province. Judge Fan was one of the first prize winners in the 2020 “Ram City Cup” competition for articles on judicial reform, administered by the Supreme People’s Court (SPC)’s judicial reform office. People’s Justice (人民司法) published her article in 2021. Many thanks to Guo Ran, a current Tufts student, and Tina Chen ( 陈雨茗), an Oxford undergraduate for assisting with the translation/summary. I have included some explanations in square brackets . I have omitted most of the charts/graphics. I welcome corrections to the summary/abridged translation and comments.
Based on her review of data from multiple provinces/directly administered cities, the author shows that the reform of funding the courts at the provincial level (cited as one of the successes of the judicial reforms in several English language academic articles) has been a failure. The reforms make the local courts even more dependent on local financing. She explains why that happened.
I surmise that 2022 will be an even more challenging year for court budgets in many areas, as provincial/local budgets are under greater stress because of testing for Covid-19, decreased income from land sales, and less tax revenue because of lockdown-related downturns in business activity.
She looks at other court financing models abroad and discusses a topic I have rarely seen mentioned in the academic literature about the Chinese courts (certainly in English–I don’t claim to be as familiar with the Chinese academic literature)–separating the judicial and administrative functions. I have had discussions with several persons previously affiliated with the SPC on this issue. She proposes that the SPC establish a finance committee and that local courts establish counterpart institutions. Drawing on her research on Chinese court funding and that of other jurisdictions, she proposes a new model. I cannot claim any expertise on this and will not comment on the practicability of her proposal.
The role of the people’s courts in national governance has changed. Judicial authority has transformed into a central power from a local power [司法事权属性已由地方事权转变为中央事权]. The transformation of the courts’ functions requires a mechanism for guaranteeing funding that matches the operation of judicial power. The provincial unified administration reform in 2014 saw the beginning of the current funding guarantee mechanism reform. [This reform was part of the 4th Five-Year Judicial Reform Plan]. But after five years of pilot practice, the provincial unified administration has not achieved its established goals of “de-localization,” “de-administratization” [去行政化] and “balanced judicial supply power (均衡司法供给力).” It is necessary to reflect on the reasons for the failure of the provincial unified management reform, clarify the theoretical components [应然内涵] of the court funding guarantee mechanism, identify the situational variables affecting the choice of reform tools, and “reload “the reform toolbox. Based on provincial unified management, China should build a court funding guarantee mechanism that follows judicial principles [规律] and financial management principles, so as to effectively solve the problem of financial resources for the operation of the judiciary and assist in constructing modern social governance in China based on the rule of law.
Problems that the Reform aimed to resolve
Solution provided by the Reform
Underlying judicial value
Who is paying (the money)?
The source of funding is raised to the provincial level of administration, altering from local finance departments to provincial finance departments.
To allow the courts to gain independence economically from local governments, removing localized variants and guarantee judicial independence.
Who is responsible for the distribution and management of the money?
The main body of funding is raised to the provincial level. Funding used to be distributed and managed by local financial departments is now subject to provincial financial departments.
To eliminate regional differences within the same province, and to realize the standardization of judicial services through standardizing financing capacity of the courts.
How is the total amount of funding determined?
Fixed-base budget: The reform uses the total amount of funds before as the “base;” the base will only be raised but not reduced.
Institutionally secure the “guaranteed amount” of legal funding, overcome the problem of arbitrariness in determining the total amount of funding in the previous years, and establish a benign dynamic growth mechanism of funding
To whom is the power of reviewing budgets vested in:
Governmental budgeting department with limited power to review: provincial finance departments delegate the power to conduct initial review of budgets to provincial courts. They will then sum up the subordinate courts’ budgets and conduct initial review of their reasonableness and compliance. Then the provincial finance department will submit them among other departmental budgets to the provincial People’s Congress.
Develop the court’s function of funding management, make use of the higher court’s knowledge of the lower courts, and enable the higher courts to fully participate in the lower courts’ budget filing, review, and coordination processes
I. Benchmarking review: Evaluating the practical effectiveness of provincial unified management
The provincial unified management of court funding attempts to centralize the administration of court funding at the provincial level. Cout funding was previously an obligation of local government on the same administrative level as the local court. The reform aims to break the previous local court fund management pattern, reshaping the relationship between courts, administrative agencies, and Party and government agencies, which has had an impact on the autonomy and fairness of the local courts.
To analyze the success of this reform, the author selected the 2019 and 2020 budget and final accounts data of 1,535 basic-level courts (data from 14 provincial-level jurisdictions: Tianjin, Jiangsu, Guangxi, Hunan, Jiangxi, Inner Mongolia, Guizhou, Hebei, Shaanxi, Shanghai, Guangdong, Beijing, Shanxi, Yunnan. She reviewed the following data:
basic-level court department’s budget,
final accounts public statement, and
people’s courts’ financial statistics analysis system
and analyzed key indicators such as :
source of funding,
average cost of each case
average public expenditure per case, and t
growth rate of case-handling operational funds, etc.
A. The reform has not eliminated local court dependence on government at the same level
The study presented the following findings:
(1) Shifting the source of court funding has not completely freed the local courts from depending on local governments.
The current judicial reform centered on withdrawing court funding from the government-led horizontal model of bureaucracy and removing the function of allocating or transferring funds from governments on the same administrative level through institutional reforms, which in turn removes the possibility of the judiciaries colluding with governments on the same administrative level to solicit funding. After the transformation into provincial unified management, the judiciaries’ funding will mainly be composed of provincial finance; governments on the same administrative level will cease to allocate funds to the judiciary.
By examining the funding income structure of the sample courts in 2020, the study found that, out of 741 courts that have been reformed, 249 still relied on funding from governments on the same administrative level, which comprised 43.22% of the courts’ total funding.
In the case of some local courts in Shanxi and Hebei province, the percentage could even reach 87%. Funding from government on the same administrative level compensates for the lack of funding for:
facilities procurement; and
Labor costs are the largest proportion, at 63.05%.
From the above data, it is clear that nearly 33.6% of local courts have not yet completely detached from local governments financially, even after the reform.
B. Raising the funding guarantee to the provincial level has not significantly improved unequal financial supply capacity
Balanced judicial finance is the necessary condition for standardized judicial services. One of the objectives of the provincial unified management reform was to ensure that the public has equal access to judicial services of equivalent quality and quantity within a province, by arranging courts’ funds on a provincial level.
The equalization of financing provision capacity is a sensitive indicator. In order to obtain a concrete observation of this indicator, the author has selected “public expenditure per case” and “cost per case” to reflect, respectively, the ability to finance “administrative affairs” and “enforcement of courts’ decision”….
Suppose we reflect on the tools adopted by the provincial unified management plan. In that case, we could explore the problems in tool selection and application with the existing reform and establish useful precedents for a new funding guarantee mechanism.
C. The policy requirement of a guaranteed minimum funding does not necessarily produce a sustainable dynamic increase in the courts’ funds.
In “Framework Opinions on Several Issues of Judicial System Reform Pilot” (referred to as “Framework Opinions”) issued by the Central Leadership in 2014, it was stated that after the implementation of the provincial unified management reform the total amount of funding must not decrease, however, this minimum requirement does not suggest a sustainable increase in funding. Among the sample courts, 711 courts experienced growth in the number of cases heard in 2018.
Through comparing and analyzing the growth rate of cases heard and the growth of overall funding in handling cases, it was found that in 66.67% of the courts the growth rate of overall case funding was lower than the growth rate of cases heard; among them, 55.13% of the courts even had a decrease in case funding when the number of cases heard had increased; the courts that been reformed had a comparative advantage in terms of the increase of funding in cases. Among the 237 courts that saw equivalent or higher growth in case funding than cases heard, there was almost a fifty-fifty division between reformed and unreformed courts. (See the figure below)
D. The power of provincial courts to manage funds continues to be marginalized.
Under the institutional framework of “One Government, One Committee and Two Courts”, [government, the supervision commission, the courts and procuratorate] judicial independence manifests in the division of labor rather than independent authority from the government.
However, a mode of leading and being led, managing and being managed is formed between the local courts and government on the same administrative level, through the mediation of the fiscal relationship. The provincial unified management reform hopes to rebalance the power constraints between the provincial court and governmental departments, through the practice of restoring an interactive relationship between the courts and government, by developing the courts’ own financial management capacity and transferring the power to manage funds from government to the courts.
But the four management models developed in the process of promoting the reform have been found to be problematic in their own respects: the direct management model (adopted by 57.15% of the reformed courts) tends to marginalize the managing power of provincial courts, and local courts will communicate directly with provincial fiscal departments; in the assisted-management model (adopted by 38.1% of the reformed courts), although the provincial courts are involved in the management process, their role is reduced to that of a megaphone, with no substantial power of their own; the model of entrusting municipal management of court funds does not achieve the reform objective of transferring the fund management power to the provincial courts; the trusteeship model, in which the provincial treasury delegates the daily management of funds to the provincial courts, is only an expedient measure to fill up the absence of the provincial government’s financial management capacity. It is also worth noting that only one province has adopted this model.
Therefore, it can be concluded that the provincial courts have not taken up the power of allocating funds as the reform expected, and have again ended up being marginalized in fund management.
II. real-world problems: dissecting the failure of provincial management reforms
Reason 1: lack of capacity to financially supply at the provincial level inhibits the local courts from becoming financially independent from local governments
The ideal plan, according to the provincial unified management reform is that the local courts should be funded only by the provincial treasury. This is a completely novel expenditure for the provincial budget and can only be financed through increased provincial revenue. However, a comparative analysis of the increase in the courts’ budget against the incremental revenue increase at the provincial level suggests that almost all provincial-level finances are unable to satisfy such a large increase in funding demand: Tianjin, Guizhou, Beijing, and 10 other regions have experienced a reduction in provincial-level revenues compared to the previous year, and it is simply impossible to spare funding for local courts when existing provincial needs remain difficult to satisfy.
Jiangxi, Yunnan, and Guangdong Province have less than 1.8 billion Yuan of increase in revenue to finance their own budgets, which is far less than the funding needs of local and provincial courts. Even in economically developed regions such as Shanghai and Beijing, budgets were further contracted compared to the previous year, with arranged courts’ budget revenue accounting for less than 2% of the provincial budget. The same lack of financial supply capacity can be observed. (See Table 2)
The lack of financial supply capacity on the provincial level has forced the courts to continue fundraising with the local governments. In the process of fundraising, the local courts will now have to communicate on the one hand with the provincial finance department for more funding, and on the other hand with the local government to compensate for the lack. Having to communicate simultaneously on two administrative levels increases the costs of fundraising for the courts. A further difficulty since the reform lies in the fact that, facing the funding applications from the local courts, the local government can decline their requests using the reform as a legitimate excuse, by saying that the courts have now “completed the provincial unified management reform”, increasing difficulties in fundraising, and potentially deepening local courts’ dependence on local governments.
The reform asked for formal unified management on the provincial level, while failing to bring about substantial unity in expenses, resulting in the continued imbalance of financial supply capacity within provinces. Firstly, provincial unified management suggests standardization, however, in reality, local standard in labor and public funds still persists, while the funding for case-handling remains insufficiently supplemented. Secondly, the reform also demands unity in expenses, i.e. the amount of funding from provincial expenditure to the local courts should be standardized. But the reality is that the provincial finance department simply required local governments to report the total funding allocated to local courts before the reform, and use this figure as a criterion to budget for local courts for the year. Some provinces with limited capacity to guarantee funding even require the local finance departments to transfer this amount upward, before the provincial finance department then transfers the funding to the courts, so as to achieve formal unified management. Provincial finances in this process did not take effective means to coordinate and adjust the funding budgets to balance the substantial expenditure, and the status quo of having huge gaps in financial capacity among the courts within provinces has not been significantly improved.
There is a tension between the self-expansionary nature of court funding and the principle of necessity, which prevented court funding from increasing alongside the expansion in courts’ capacity to handle cases. The idea of public finance in principal-agent theory conceptualizes the government as a “trust fund” established to serve the public interest of society, whilst recognizing that the government’s natural tendency of self-expansion may create excessive demand for financial power. Therefore, in order to curb the government’s urge to abuse public finance, budgeting should follow the principle of necessity.
The courts, however, while budgeting for their own expenditures, tend to be self-expansionary: justice is the highest normative value of judicial activities; when justice and economic efficiency are in tension, cost-effectiveness has to come second. Fair and just judicial activities must be backed up by adequate and stable financial resources. However, when reviewing court budgets, finance departments usually follow the principle of necessity and reject the demands to increase budgets alongside the expansion of judicial activities, while the courts themselves have no effective means to reject this practice.
Reason 4: The absence of legislation and policies leads to the lack of legitimacy in the expansion of courts’ power to manage funds
It was clearly stated in “Framework Opinions” that it aims at “the establishment of a provincial unified management mechanism”, i.e. the department responsible for managing courts’ funding is the provincial finance department. The revised budget law in 2018 defines the budget as “public actions involving revenue and expenditure”. The statute did not specify for the normative standard of judicial actions involving revenue and expenditure, which suggests that the state has recognized, on a legislative and policy level, the subordinate status of the court budget in relation to the total public budget. The relationship between the finance department and the courts constitutes a de facto managing-and-managed relationship. Although having provincial courts participating in the management of funds allows for the decision-makers to make informed decisions, the whole process is made difficult due to the lack of legitimacy in the expansion of power.
III. Theoretical reflection on the reform’s “toolbox”
A. The normative components and theoretical toolbox of the court funding guarantee mechanism
Before introducing a theory to transform the court funding guarantee mechanism, it is necessary to clarify its normative outlook. The author examined changes in the PRC’s court funding guarantee system since 1949 and its counterparts in Japan, the U.K., and the United States. She concluded that the court funding guarantee mechanism must determine four core issues in varying political and economic environments: the source of funding, the court funding administrator, the method of ascertaining court budgets, and the authority to review court budgets.
1. The source of funding, or who pays the money
Judicial services maintain social order and justice through the resolution of specific disputes. It is both a private product that protects the legal interests of individuals and a public product that provides legal services to the state. Therefore, when ascertaining the source of funding, there are two available sources, namely, the state and the litigating parties. In cases where the state provides court funding, two sources are available–central government finance and local government finance–depending on the financial condition of each government.
Due to the centralized nature of unitary states, central government finance tends to be the funding provider in unitary states such as Japan and the United Kingdom. On the other hand, the federal countries tend to fund the court through local government finance. For example, the U.S. state courts are financed by state funds. Some other courts are also funded by the litigating parties. The British civil courts, for example, are funded by the case acceptance fee. Although China is a unitary state, Chinese local courts have historically been funded by local government finance because of the country’s vast territory, significant regional differences, and limited central financial resources.
2. The court funding administrator, or who manages and distributes funding
Generally speaking, whoever pays for the funds naturally controls the allocation and management of the funds, so the funding provider is usually the guarantor of court funding. The central government finance is guaranteed by the central government, and the local government finance is guaranteed by local governments. This one-to-one correspondence is particularly prominent during the historical variations of China’s court funding mechanism.
To prevent undue government interference in judicial fairness, many countries have enacted laws or other institutional arrangements that grant the court funding administrator a high degree of independence from the government that provides court funding. For example, in Japan, the Supreme Court is mainly responsible for funding management; the United Kingdom and the United States have set up an independent judicial administrative department for this purpose. Depending on the funding provider and its dynamic interaction with the court, the author identified four main administrators of court funding–the central government, the local government, the Department of Judicial Administration, and the courts.
3. The method of ascertaining court budgets, or how to determine the total amount of funding
Figuring out the quantity of budgetary funds helps the judiciary to secure the resources necessary for it. To ascertain court budgets, there are three methods to choose from: “fixed amount method”, “fixed percentage method”, and “incremental budget increase method”. The four periods of China’s funding guarantee model all rely on the fixed amount method or its modifications, as it is operationally the easiest; the fixed percentage method is more often used in Latin American countries. However, it is not accepted by the mainstream because one cannot quantitatively test and justify the set percentage; the incremental budget increase method, which is the most responsive to the needs of the courts, is used in the United States and the United Kingdom.
4. The authority to review court budgets, or who has the power to review and revise the court budget during budget declaration and approval
Depending on the level of detail that the executive branch reviews court budgets, there are three types of budget review authority: “government departmental review”, “independent review”, and “government departmental review with limited power”. In the government departmental review model, the court budget is a sub-system of the government budget. The government finance department has the strongest scrutiny and involvement in the courts’ budget. In the independent review model, the courts are relatively independent, and the finance department has the weakest scrutiny of the court budgets. The court budget is filed, reviewed, and revised within the court system or by an independent judicial funding management authority. The government has no substantive right to review or revise the court budgets. In the “government departmental review with limited power” model, the court has a say and could participate in the budget review process, but the ultimate review power still lies within the finance department. The model is a compromise between the first two models, but is essentially more inclined to the government departmental review model.
Summary: By comparing the application of the four major types of guarantee tools during various reform periods and in different political entities, the author concluded that the choice of reform tools in the “toolbox” is closely related to the national financial situation, political institutions and the role and function of judicial power in society. The reform plan of court funding guarantee should fully consider the influence of situational variables including political, economic and judicial power. It should also accurately identify the role and function of courts in the national governance structure. To fill the reform “toolbox,” it should choose the appropriate combination of the above 13 tools.
B. Reflections on the problems with the existing reform
Having clarified the reform’s normative outlook and theoretical toolbox, it is necessary to reflect on the tools adopted by the provincial unified management plan. In this way, we could explore the problems in tool selection and application with the existing reform and set up useful precedents for a new funding guarantee mechanism.
1. Confusions in tool selection: the unclear boundary between judicial authority and administrative authority in the judiciary
The unclear boundary between judicial authority and administrative authority in the judiciary has led to the inappropriate mixing of reform tools for judicial funding and judicial administrative funding. Judicial authority refers to the court’s authority to try and legal supervision on behalf of the state, while the administrative authority in the judiciary refers to the power to manage personnel, property, technical equipment and other administrative affairs of the judiciary for the purpose of supporting judicial authority.
The two kinds of authority are essentially different in forms, functions, and substantive contents. The operation of judicial authority should follow the judicial principles and stress judicial independence; the administrative authority in the judiciary should follow administrative principles and stress subordination within the administrative hierarchy. However, in the provincial unified management reform, the two authorities have been confused as the same court functions. The funds for case handling and court facilities, which represent the operating costs of judicial power, and the personnel and public expenditure funds, which represent the operating costs of administrative affairs, are placed in the same guarantee model. The choice of various reform tools has failed to differentiate between the operation of the two powers.
2. Reflection on the choice of tools: the court’s role and function remain unclear, resulting in the deviation of tool choices from the reform’s values
Historical changes in the court’s funding mechanism have shown a continued evolution of the court’s functions. The court’s role in society and the state determines the Party’s policy arrangement of court funding: if the court serves to resolve specific cases and disputes within its jurisdiction, then the court exercises local affairs; as the judicial responsibility should match with the court’s power of finance, the court should be financed by local government. If the court serves to promote the rule of law in social governance at the national level, then the court should be financed by the central government.
Since the founding of the PRC, the court’s role has shifted from a means to an end to an end in itself; from “a political means to realize revolutionary goals” to “a manifestation of value in improving the political system.” The court’s function has been elevated to the level of “providing the foundation of the rule of law for national development.
Accordingly, the court should be funded by the central government. The provincial unified management plan has been aware of the public service provision function of judicial products. It has also established values such as“de-localization” and “ameliorating the regional divergence in financial supply capability.” Nevertheless, since it still viewed the court’s main role as the settler of specific disputes, the source, and management of court funding remained on a provincial level after the reform, which partially contradicted the reform’s goal of de-localization.
3. Reflection on the application of tools: the insufficiency of financial resources hindered the intended application of tools
The foremost issue of funding reform is to figure out “where the money comes from.” As the leading reformer, the court did not control economic resources. Therefore, when faced with significant financial supply shortages on a provincial level, the reformers sought to avoid the risk of failed reforms. They came up with a compromised but effective method: the courts on each administrative level cooperated with local finances to determine a base amount of funding, which must be no less than the pre-reform amount. The local governments on the same administrative level would then transfer the funding to the provincial treasury, which would then distribute funding to local courts through transfer payments.
This process formally satisfies the requirements of provincial unified management and that the court funding remains no less that the current level. It also seems to push forward the reform. However, the local governments on the same administrative level remained deftly as the actual source of funding. The provincial courts were deprived of the possibility to coordinate the arrangement of provincial funds. The end result of the reform completely deviated from its original intention of shifting the main body of funding guarantee up to the provincial level.
4. Reflection on the implementation of tools: insufficient political resources leads to the lack of internal motivation to enact and push forward the reform tools
The court funding guarantee mechanism reform seems to be a reform within the judiciary. However, because China’s court funding system is decentralized and deeply intertwined with politics, the reform would not only involve a reconfiguration of legal institutions and their respective functions. It would also require adjustments to China’s contemporary legal principles. In practice, both the local financial departments and the provincial financial departments held a passively cooperative attitude toward the reform initiatives, resulting in the initiatives’ weak implementation nationwide compared with other reforms of the judicial system.
The court funding guarantee mechanism reform seems to be a reform within the judiciary. However, because China’s court funding system is decentralized and deeply intertwined with politics, the reform would not only involve a reconfiguration of legal institutions and their respective functions. It would also require adjustments to China’s contemporary legal principles. In practice, both the local financial departments and the provincial financial departments held a passively cooperative attitude toward the reform initiatives, resulting in the initiatives’ weak implementation nationwide compared with other reforms of the judicial system.
IV. Tool Re-selection: the remaking of the court guarantee mechanism around “separation of the judicial and administrative authorities”
Having reflected on the reform toolbox, the author concluded that the new funding guarantee mechanism should abide by the principle of “separation of the judicial and administrative authorities.” Accordingly, it should apply different funding guarantee mechanisms for judicial and administrative fundings in the judiciary. It should also re-select the source of funding, the funding guarantee administrator, and the reviewer of judicial funding budgets. The reform should also establish a dynamic growth mechanism for court funding centered on the average cost per case.
A. A general change of plan: from single-center provincial unified management to a unified management model based on the judicial-administrative separation
Xi Jinping pointed out that “the judicial power is fundamentally a central governmental affair.” According to the principle that the administrative power should match with the financial expediture responsibility [根据事权与财政支出责任匹配的原则], the main body in charge of judicial expenditure should be the central government. The judicial funding should thus be included in the central government budget and managed by the central government management mechanism yet to be established.
On the other hand, as the judicial administration includes judicial personnel, property, legal infrastructure construction and maintenance, and party and political-administrative affairs, it manifests interactions between the local courts and governments. Compared with judicial power, judicial administrative power demonstrates a clear local feature. Therefore, it should continue with the provincial unified management model, with its funding mainly provided by provincial finance and supplemented by the transfer payment from a national and provincial level.
B. Changing the source of judicial funding: establishing a special fund for judicial activities to guarantee stable funding
The central government finance should collect the litigation fee revenue from all courts nationwide and set up a special fund for judicial expense for case-handling. It should also establish five basic rules to fully implement the “separation of revenue and expenditure” requirement – unified revenue collection and expenditure, earmarking, limitation on carryover and balance surplus, managing surplus/shortage, and auditing and supervision – which would, in principle, prohibit mixing judicial funds with administrative funds. In this way, it provides a stable source of revenue for the central finance to guarantee court case-handling expenditure:
Firstly, litigation fees are capital costs charged by the courts in providing judicial products and services to the litigating parties. Its main purpose is to compensate for the material costs of service provision. Therefore, the use of litigation fee revenue to compensate for the cost of case-handling is justified and reasonable. Secondly, the analysis of the sample courts’ financial data shows that the total litigation fee revenue in 2019 was 27,830 billion Yuan, and the total expenditure on case handling and equipment was 22.266 billion yuan. The litigation fees exceed the court’s case-handling expenditure by 0.25 times, so it is realistic to compensate the case-handling cost with the litigation fee revenue.
In addition, it is necessary to clarify that the use of litigation fee income as a source of financial guarantee for central finance does not violate the principle of “separation of revenue and expediture.” Nor does it mean a rollback to the “revenue generation era” at the cost of litigating parties.
Although the litigation fee is collected by the court, it goes directly into the central treasury. The central treasury is responsible for both the management and expediture of litigation fees after collection, not the courts themselves. This solution is thus in line with the principle of “separation of revenue and expenditure.”
Additionally, through reasonable institutional arrangements, the funding distribution is not linked to the local courts’ amounts of litigation fee revenue. The courts at all levels thus lose the original motive to increase allocated funds by generating more litigation fee revenues.
C. Reforming the court funding administrator: setting up an independent professional institution responsible for the management and allocation of funds.
The Supreme People’s Court should set up a judicial fund management committee. The committee should consist of professionals in charge of managing the judicial funds, which should include financial budget management experts, personnel assigned by the Ministry of Finance, and audit experts.
Specifically, the committee should: communicate on behalf of the Supreme People’s Court with the central finance department and the National People’s Congress and its Standing Committee; collaborate with the Ministry of Finance to design a set of regulations on judicial fund management and budget filing; be responsible for the budget collection and review of lower courts; be responsible for the budget declaration and responding the questioning of higher administrative institutions; assume internal supervision responsibilities; establish a special inspection system that regularly monitors the exercise of judicial funding.
The provincial courts should set up funding management committees that consist of budgeting, auditing, accounting and other professionals as well as the personnel appointed from the provincial finance departments. The committee should be specifically responsible for communicating with the funding management committee of the Supreme People’s Court, managing and allocating the judicial funds below the provincial level, communicating with the provincial finances, and managing and allocating the judicial administrative funds below the provincial level.
D. Changing the method of determining judicial funding budget: establishing a dynamic budget adjustment mechanism around the average cost per case.
The early stage of the reform: the average cost per case varies from place to place; some courts’ case-handling expenses are intertwined with public expediture of varying amounts; the court financial personnel varies in their professionality; and some financial data lack credibility. To solve the problems, the total amount of funding can be temporarily determined as the sum of the previous year’s case-handling and equipment expenses. The funding can float with the growth or decline in the number of cases handled in the next years.
Trial run phase: Strictly enforce the absolute one-way barrier [单向绝对壁垒] between judicial and administrative funding; constructing IT infrastructure [信息化建设] under the supervision of the Supreme People’s Court, so that the quality control of data information could improve.
Formal operation phase: After 3 to 5 years trial run, the judicial funding should have basically eliminated administrative funding, and the quality of data should have been effectively guaranteed. Then, the government would collect historical funding statistics and local development indicators and determine key elements such as “the average cost per case,” “the proportion of case categories,” “case growth expectation,” and “local economic development indicators.” In this way, the government could construct a system of indicators and a dynamic funding adjustment mechanism around the average cost per case.
E. Inheriting and improving the budgetary framework [预算权归属工作]: establishing a judicial budget system led by the judicial fund management committee.
As a legal basis to modify the court budget status in the existing budgetary model is lacking, the court funding reform must be restrained by the governmental sector budget model. Both judicial and administrative funding should also follow the basic principles in the current budget law. However, the Supreme People’s Court judicial funding management committee and provincial court judicial funding management committees could participate in the design, review, and auditing of budget rules. The committees could set up institutional arrangements such as restricting the finance departments’ right to delete or edit court budgets during the review process. In this way, it could effectively exclude undue interference from the administrative branch.
The funding guarantee proposal based on “the separation of judicial and administrative funding” is a problem-oriented one. It also reflects the strategies adopted by the provincial unified management reform. By transferring the litigation fee to the newly established judicial funds in the central government, the proposal could provide sufficient and stable financial resources for the centralized provision of judicial funding; by decoupling judicial funding from provincial finance, the proposal could reduce the provincial financial burden and effectively alleviate funding shortages; by establishing a dynamic adjustment mechanism for judicial funding, which centers around the average cost per case, the proposal could effectively balance the judicial financial supply capacity nationwide; by establishing judicial funding management committees and other professional organizations to participate in the funding management, the proposal could provide an institutional basis for empowering the courts. The funding guarantee model attempts to solve various problems faced by the current reform from the real-world application perspective and thus has a strong practical value.
In early November 2021, the Supreme People’s Court (SPC) issued a new Guiding Opinion regarding Further Improving the Trial Supervision and Management Mechanism for the Four Types of Cases (关于进一步完善“四类案件”监督管理工作机制的指导意见translationhere) (“Four Types of Cases Guiding Opinion” or “Guiding Opinion”). Official commentary by the drafters is found here. The “Four Types of Cases” refer to certain types of cases, all politically or socially sensitive, that require special handling within the court system and involvement by the relevant court leadership. The term “Four Types of Cases” originates with the 2015 SPC document “Several Opinions on Improving the Judicial Responsibility System of the People’s Courts,” (2015 Opinion) although special treatment within the Chinese court system for special types of cases is not new, as I described in my (the Monitor’s) 1993 article. This Guiding Opinion illustrates themes newly stressed in General Secretary Xi Jinping’s 15 February 2022 article on the socialist rule of law.
While the “Four Types of Cases” are a little-known concept outside of China, they are well known within the Chinese court system and are embedded in other court guidance. The Four Types of Cases Guiding Opinion draws together threads of related policy to provide standardized principles on:
Redefined “Four Types of Cases;”
Mechanisms for flagging cases as one of the “Four Types of Cases” at each stage of the court process;
Mechanisms for special treatment of these cases; and
A range of mechanisms for involving more senior judges in the handling of these cases while monitoring their involvement.
The Four Types of Cases Guiding Opinion provides insights into the operation of the Chinese judicial system, particularly after the 19th Party Congress and the ongoing transformation of the judicial system and legal system.
This blogpost gives a summary of the background to this Guiding Opinions before examing its details and providing some comments linking to larger themes.
1. Origin of the “Four Types” of Cases
a. The 2015 Opinion
The 2015 Opinion implements the broad principles in the 4th Plenum of the 18th Party Congress decision and 4th Judicial Reform Plan Outline by setting out guidelines for greater autonomy and greater responsibility for judges, known as the “judicial responsibility system.” It contrasts to the pre 4th five-year judicial reform plan period when all court decisions needed to be approved by a person (or committee) in a leadership role in a court. It also requires the preferential use of a random allocation of cases system, while pre-reform, court leaders at various levels designated judges hearing cases.
At the same time, the 2015 Opinion also imposed more responsibility or accountability on frontline judges, while reducing (or eliminating) the involvement of court leaders not involved in the hearing. It gives court leaders (a court president, vice president, and division head) supervisory and management authority. Other guidance prohibits court leaders from involving themselves in cases handled by other judges, with certain exceptions. An exception was made for “major, difficult, and complicated cases” when court leaders could designate collegiate panels to conduct hearings (Article 7). These cases are called the “Four Types of Cases” (四类案件). They refer to the following cases:
Group disputes that may affect social stability;
Ones that are difficult, complex, and have a significant impact on society;
They might conflict with the judgment of the court or a higher-level court; and
Relevant units or individuals report that the judge has violated the law (Article 24).
The 2015 Opinion did not provide any further details about these Four Types. Lower courts issued guidance detailing the meaning and scope of these cases, while the SPC incorporated measures relating to “Four Types of Cases” in documents relating to the judicial responsibility system listed below.
b. Subsequent documents
Pre and particularly post 19th Party Congress, the SPC issued a number of documents related to the judicial responsibility system and the special responsibility of court leaders. At the same time, Party authorities issued documents imposing greater responsibility on Party members in leadership positions. Many of these are collected in a 2021 book edited by the office of the SPC leading small group on the judicial responsibility system and the SPC Political Department. These documents include:
February, 2019 Fifth Five-Year Judicial Reform Plan (5th Judicial Reform Plan): it emphasizes the full implementation of the judicial responsibility system. That system in turn is linked to broader Party initiatives to expand the responsibility of leading Party and government cadres as well as court leaders to cooperate better with Party inspections of various types.
March, 2020 Opinions on Deepening the Comprehensive Reform Supporting the Judicial Accountability System issued by the General Office of the CPC Central Committee (关于深化司法责任制综合配套改革的意见 full text not available)；
Four Types of Cases cases are deemed too complex, sensitive, or important to be handled by a frontline judge or panel of judges alone. The new Four Types of Cases Guiding Opinion embeds multiple levels and a range of guidance and supervision as well as penalty provisions for court personnel. The guidance and supervision are aimed at personnel at various levels and roles within a court. It is intended as a practical set of basic principles that consolidates and develops measures that appeared in the guidance listed above. It anticipates local courts issuing more detailed rules to implement it. A 2022 media report by the Shanghai Higher People’s Court on its judicial reform program for 2022 highlights the issuing of detailed rules on the Four Types of Cases as a priority matter. A summary of the definition and scope; identification mechanism, handling and supervision; and liability provisions follows.
Definition and scope
The 2021 Guiding Opinion redefines the Four Types of Cases and their scope, sets out the responsibilities of various persons within a court at different stages of a case, both front line and in a leadership role (court president and division chiefs) According to Article 14, those in a leadership role include the court president, vice presidents, full-time members of the judicial committee, division heads and deputy heads, and others in a supervision and management role. The guidance promotes using a multi-stage mechanism for identifying these cases and flagging them for special handling. Article 2 to 6 go into detail concerning the meaning and scope of “Four Types of Cases”, with changes from the 2015 Opinion. The new “Four Types of Cases” encompass the following types of cases:
They are major, difficult, complex, or sensitive;
They involve mass disputes or cause widespread societal concern, which might affect social stability;
They might conflict with the judgments and rulings of the court or a higher level people’s court in similar cases;
Relevant units or individuals reported that a judge has violated the law in the trial.
The comments below address points 1-3. The first type significantly expands the scope from the original “group disputes that may affect social stability”. The drafters explain this change: “the difficulty and complexity of cases are not necessarily proportional to their social impact”. For example, a divorce case can be complicated and sensitive, yet their impact on regional or national society might be minimal. “Major, difficult, complex, or sensitive” could cover a case in any area of law, in theory.
The second type also changes the definition in the 2015 Opinion significantly, now referring to cases that involve large groups, or cases that cause widespread social concern. Most importantly is that these cases may affect social stability. For example, some types of cases may involve a large number of litigants, such as traffic accidents, but carry little risk of causing further mass incidents or intensifying social conflicts. These cases should not be considered one of the Four Types of Cases.
However, cases that may trigger mass incidents (e.g., labor protests after failure of litigation), risk intensifying social conflicts, or the case may have a “demonstration”, i.e., precedent-setting, effect (e.g., land-taking compensation cases), and may trigger more litigation. This may impact the development of specific industries, or the interest of specific groups, and are all cases that do need careful supervision and management.
Additionally, the SPC is of the view that cases that cause widespread concern and may affect social stability are not limited to group disputes. For example, murder cases are known to stir up public outcries. Additionally, cases involving rape claims have recently also garnered a lot of public attention.
For the third type, the Opinion broadened the scope. First, it changed the wording from “judgment” (判决) to “decision” (裁判). This can be translated as “judgment and rulings.” Second, in addition to a final judgment by a court, it includes other rulings or decisions regarding inadmissibility, objections, suspension or termination of litigation. This suits the more comprehensive process-based type of supervision that is intended and is further discussed below. The conflict with current or prior judgments and rulings is specified to be with decisions of that court or higher courts within the past three years, or are currently being heard, and where it is necessary to unify the application of law.
While the Opinion further details the meaning and scope of the Four Types, the drafters explain that they insist on maintaining a healthy balance between broadness and specificity, so as to allow local courts leeway in determining how to identify a case as one of the Four Types. This recognizes that courts in different regions have different considerations, and that, based on local conditions, different kinds of specific cases require supervision and management.
Article 7 contains additional measures to widen the scope of “Four Types of Cases.” It provides that the oversight and management measures for Four Types of Cases can be applied to other types of cases: effective decisions that are in error and require retrial; cases in which the procuratorate has filed a protest; whether a death sentence (including suspended ones) is intended to be imposed; the amount in dispute is very large; or where a court plans to pronounce a defendant not guilty. This Article is consistent with recent policy to expand the scope of supervision of the exercise of judicial power, most recently emphasized in Xi’s February, 2022 article.
Identification Mechanism, Handling. and Supervision
Article 8 requires local courts to establish mechanisms to cover the entire court process to identify, label, and give a warning concerning Four Types of Cases. This article additionally requires local courts to set rules on the responsibility of internal entities to flag cases and report them, as well as responsibility for the failure to do so. The rest of the article sketches the SPC’s concept of how the Four Types of Cases are to be flagged through the entire court process and who decides any dispute over classification.
Article 9 and 10 address the adjustments and measures that senior court members may make regarding the case, depending upon when the case is flagged as one of “Four Types of Cases.” Regardless of whether a case is designated at the filing stage or not until it has been transferred to a case hearing division, the Opinion requires the case must be heard by a collegial panel rather than a single judge, and a member of the court leadership could serve the presiding judge. The recent Civil Procedure Law reforms mentioned in this earlier blogpost expand the scope of cases that a single judge can hear, but this Guiding Opinion makes clear that a collegial panel must take on responsibility for hearing one of “Four Types of Cases.” These provisions links to previous SPC guidance to senior court leaders on the role they need to fulfill since the judicial reforms. The court leadership can also change the presiding judge and the size and composition of the panel.
Article 10 lists the oversight and management measures that court leaders may take within their authority, such as: requesting reports on the progress of the case, reviewing the case files and trial report, attending trial hearings, submitting the case to a professional judges meeting, to the judicial committee, or even reporting to the court at one level above for guidance. The measures taken are likely to depend on how sensitive, difficult, or otherwise troublesome the case is. I surmise that this system will lead to more such cases discussed by a professional judges meeting or judicial (adjudication) committee meeting so that the decision is made on a collective basis.
Article 10 importantly clarifies the exact measures that constitute permissible supervision and management under the new responsibility system. These measures need to be incorporated into the list of powers and responsibilities based on the court member’s position. All actions and measures need to be in accordance with local procedures and within the scope of authority of the judge exercising supervisory authority. The Opinion specifies that any action that falls within this scope does not constitute undue interference in cases and does not violate provisions about internal interference with judicial processes.
In contrast to previous practice, in which court leader guidance in these types of cases was not generally recorded, Article 11 requires that court leader oversight and management of “Four Types of Cases ” must be recorded in the case file and on the case-handling platform. Note that the recording would not be accessible to lawyers reviewing a court file. The views of court leadership about the case must be announced at a professional judges meeting or judicial committee meeting, Court leaders can request that a collegial panel reconsider their proposed decision, but cannot directly change the panel’s decision without going through permitted procedures. These measures seem to be aimed at preventing improper practices that enable corruption. Those improper practices must have regularly occurred in the handling of “Four Types of Cases.” Article 14 specifies that supervision and administration of “Four Types of Cases” are considered part of the scope of a court leader’s work and therefore will be incorporated into the person’s performance evaluation.
Article 12 contains penalty provisions for both the frontline judges handling the case and the court leadership. Acts that can trigger liability for frontline judges include concealing that a case is a “Four Types of Case” case, failure to obey supervision and management, or causing a serious error in a decision through that conduct with serious consequences.
Court leaders who neglect or improperly perform their oversight and management of a “Four Type of Case” case intentionally or through gross negligence causing errors in decisions and serious consequences bear liability with reference to the provisions and procedures for the management of cadres.
Article 13 addresses using the smart courts mechanism to identify “Four Types of Cases,” remind front-line judges to report the case, and prompt court leaders to supervise and manage the cases.
In one short document, the Guiding Opinion on the Four Types of Cases captures many themes in internal court administration regulation and in the operation of the Chinese judicial system after the 19th Party Congress as well as the ongoing transformation of the judicial system and legal system.
The Guiding Opinion seeks to protect front-line judges from deciding “Four Types of Cases” autonomously in a way that is considered wrong or inconsistent with policy and legal provisions (non-unified). Consistency of judicial decision-making is a high priority of the SPC recently, consistent with Xi’s article mentioned above: “maintaining the unity of the country’s rule of law is a serious political issue 维护国家法治统一是严肃的政治问题. ” This links to the role of court leaders as well.
The Guiding Opinion consolidates guidance for court leaders, who under the Chinese bureaucratic court system, have special responsibilities under the SPC guidance listed above, as well as more general Party regulations applicable to “#1” leaders, and Party group members in the Zhengfa 政法 (political-legal) system. It imposes greater pressure on court leaders to hear cases, as required by earlier guidance. As discussed earlier, judges in a leadership position spend substantial time on administrative, coordination, and Party matters rather than hearing cases. Guiding the proper handling of one of the Four Types of Cases is also a way for a court leader to display leadership qualities while mishandling it will trigger criticism in an internal judicial or Party inspection (see my chapter on judicial discipline for a discussion of the principal types of inspections.) On incorporating work on “Four Types of Cases” into leaders’ performance evaluation, although the Chinese court slogan (of several years ago) is that judges should be treated more like judges, the Guiding Opinion appears to treat lower court judges analogously to secondary or university students, to be given grades for their class participation.
The Opinion embeds supervision of the activity of court leaders, particularly by the use of the digital（smart courts) case-handling platform. By now, the majority of Chinese courts have a fully online and digital case-handling platform, many of which automatically record these types of supervisory and managerial measures. However, it is unclear how this has changed judicial practice regarding sensitive cases, and whether new informal practices to circumvent this digital system have emerged.
This Guiding Opinion is an important document in understanding the Party leadership’s and the SPC’s vision of the Chinese courts in the New Era. It illustrates themes in what Xi calls in the February, 2022 article “comprehensively deepening reforms in the area of rule of law 全面深化法治领域改革,” therefore a vision of reshaping Chinese law and legal institutions generally. It links to the Party leadership’s vision of whole process supervision (全过程监督), mentioned in Xi’s most recent article, which to this observer has its roots in traditional Chinese concepts of supervision of the bureaucracy. It uses its cutting-edge smart court system towards this end. That would be consistent with themes mentioned recently in an earlier blogpost, that Chinese characteristics have a great deal of weight in the reshaping of the Chinese legal system. It is also consistent with an important statement in Xi Jinping’s February, 2022 article: “the socialist rule of law system with Chinese characteristics that we want to build must be a rule of law system that is rooted in Chinese culture, based on Chinese conditions and solving Chinese problems, and cannot be misled by Western misconceptions (我们要建设的中国特色社会主义法治体系，必须是扎根中国文化、立足中国国情、解决中国问题的法治体系，不能被西方错误思潮所误导).”
The definition and scope of the “Four Types of Cases” are flexible, so as to accommodate a system in which judges bear lifetime responsibility for their decisions and court leadership bears responsibility for the decisions of their judges, and multiple types of inspections, both Party and court, monitor implementation of campaigns (such as those for the Sao Hei campaign), as well as more general policies. The accountability (responsibility or liability) provisions are broad and linked with the Party’s system for cadres, rather than professional rules. That too is consistent with traditional Chinese law.
The vision of the approach to handling”Four Types of Cases” in the Opinion is holistic, in line with the principles mentioned in the 2021 Opinion on integrating socialist core values into judgment instruments— the organic unity of political, legal, and social effectiveness (政治效果、法律效果和社会效果有机统一 ), because through this process, a judicial decision that best meets that target is likely to be achieved. And this has implications for litigants.
Many thanks to Straton Papagianneas for translating the “Four Types of Cases Guiding Opinion” and drafting an initial version of this blogpost (and responding to several rounds of comments). Many thanks also to an anonymous peer reviewer for perceptive comments on a later draft of this blogpost.
At the end of September, the Supreme People’s Court (SPC) issued Implementing Measures for the Pilot Reform of Improving the Positioning of Four Levels of Courts in Terms of Adjudication Levels and Functions (Four Level Court Reform Pilot Measures). The only translation available seems to be behind Westlaw China’s paywall. A quick summary of its backstory, provisions, and implications as related to the SPC follows below. The impact on the lower courts will be significant, but this reform needs to be analyzed together with other current reform documents to see the larger picture.
As the NPC Observer previously wrote, this reform was included in both the 2019 SPC’s fifth five-year court reform plan and the recent Plan for Building the Rule of Law in China (2020–2025). The National People’s Congress Standing Committee granted the authorization for this Pilot Reform in the summer. SPC President Zhou Qiang highlighted the principal reforms in his explanation to the NPC Standing Committee. The Party leadership (the Central Deepening Reform Commission) approved the reform in June, based on submission documents from the SPC. The drafters of the reform stated the proposal (改革方案稿) was based on research and specialist discussions (调研论证, although neither the approval document nor the submissions are available). I surmise that the research draws on earlier work by predecessors of the drafters. The roots of this reform can be seen in the SPC’s fourth five-year court reform plan, for which the SPC issued extended commentary (thankfully for the researcher). SPC research on this issue dates back to the spring of 2012, if not earlier.
The outside analyst of this and another court (and other Chinese legal) reforms is at a disadvantage in seeking to be thorough as might be possible in more transparent jurisdictions. It is not possible to know, for example, what the Party leadership reviews when it considers these submissions (my guess is a detailed executive summary, while responsible aides read more extended reports) and whether the SPC’s submission was approved unchanged.
What It Means for the SPC
The Four Level Court Reform Pilot Measures cover civil, administrative, and criminal cases, with the focus on civil and administrative cases. Among the objectives of the Four Level Court Reform Pilot Measures is to make the SPC a supreme court (with Chinese characteristics), rather than just China’s highest court.
As I wrote in my short article on the U .S.-Asia Law’s website and earlier on this blog, the SPC considers large numbers of retrial applications, primarily in the circuit courts. This document narrows considerably the flow of retrial applications that can be submitted to the SPC, although the new standards incorporate necessary flexibility. (Ironically, I have just written an article on this process).
The intent is for the SPC to focus on a smaller number of more important cases. As stated in Article 1: “the Supreme People’s Court shall focus on supervising and guiding adjudication work at the national level and ensuring the correct and uniform application of the law.”
According to the drafters’ commentary, the intent is for the SPC to focus on (judicial/legal) policy formulation (政策制定) and social governance (社会治理), about which I spoke recently, and is a subject of another forthcoming article. This has been the thinking of the SPC leadership for over five years, if not longer–Judge He Xiaorong, current head of the #2 Circuit Court (and former head of the SPC’s judicial reform office) stated six years ago–when writing about the circuit courts:”
…the center of the work of SPC headquarters will shift to supervision and guidance, primarily trying cases that have a major guiding function in unifying the application of law, that can become guiding cases.”
The drafters of the Four Level Court Reform Pilot Measures state that the intent is to establish a working mechanism in which the Supreme People’s Court judgments are directly transformed into guiding cases and promote relevant judgments to become an important source for optimizing the formulation and content of judicial interpretations, as well as modifying and abolishing judicial interpretations. We will need to wait for further measures from the SPC on this.
Narrowing the Flow of Retrial Cases
The 2021 reforms change the standard of review for civil and administrative cases. The reforms set out a two-branch test: compulsory and permissive jurisdiction. Under Article 14, compulsory jurisdiction includes cases in which:
the higher court’s ruling or judgment was erroneous and the case has guiding significance in the application of law; or
in the past three years, higher people’s courts have unresolved major differences in the application of the law in similar cases for which binding judgments or rulings have been rendered by the SPC or different high people’s courts; or
any other circumstances where the SPC considers it should here the cases.
The language of #3 is familiar language to anyone who spends time reading Chinese legislation.
Article 11 sets forth conditions under which applicants can apply to the SPC for retrial, but the SPC has flexibility in accepting the cases:
applicants consider that the higher people’s court applied the law erroneously, but do not object to the facts determined, principal evidence, and procedures of the higher people’s court, or
if the court’s judicial (adjudication) committee considered the case.
Article 13 authorizes the SPC to remand a case back to the higher people’s court if it considers that there are unclear facts or procedural errors, or alternatively, the higher people’s court erred in applying the law, but the issue does not merit SPC consideration.
Applicants must make an undertaking when applying for reconsideration that they undertake not to object to the above matters, and are directed to focus their application on the disputed issues and the grounds for their argument. At this point, detailed implementing measures have not yet been issued.
One issue that the drafters mentioned in their commentary is inconsistent judgments or rulings made by different divisions of the SPC. In practice, that issues relating to the same body of law may be determined by different divisions of the SPC or different teams of SPC judges in the circuit courts and headquarters. They arise either through litigation or court administrative-type procedures. While SPC judges (as I understand it) search for similar cases, it is inevitable that different people have different views on legal issues. An example of this arose recently in the area of arbitration law, in which the SPC’s Intellectual Property Court ruled that the arbitration agreement in a software contract providing for foreign arbitration was invalid, because the dispute lacked a “foreign element,” while the SPC’s #4 Civil Division has upheld arbitration agreements providing for foreign arbitration between two Chinese parties.
In that earlier blogpost I wrote that, unlike some other legal systems, the SPC has not evolved an en banc or enlarged panel of judges, but the Four Level Court Reform Pilot Measures illustrates that someone involved with court reform has looked to other jurisdictions and borrowed but not transplanted the concept. For the avoidance of doubt, borrowing legal concepts from abroad is consistent with Xi Jinping Legal Thought. The Plan for Building the Rule of Law in China (2020–2025) includes among its main principles: “learn from the useful experience of foreign rule of law (借鉴国外法治有益经验).”
Articles 18 and 19 set forth two options for resolving cross-division differences in views on legal issues. Article 18 involves the creation of an enlarged collegial panel with five or more members from different divisions. Consistent with the SPC’s administrative nature, the divisions (circuit courts, or intellectual property court) must apply to the SPC’s Trial Administration Office, which in turn must seek the approval of the SPC President. The President may designate a Justice (SPC Vice President) to sit as the presiding judge. The alternative set out in Article 19 is to apply to the Trial Administration Office to establish a cross-division specialized judges committee (its functions discussed here). I surmise that the second alternative will be used more frequently.
What to expect?
I surmise that there will be a transition period, as the cases accepted under the old retrial system are processed by SPC headquarters and circuit courts. So my guess is that 2022 will see fewer cases than 2021 and 2020, and 2023 will see even fewer cases. I expect that the SPC’s Intellectual Property Court to continue to have a large number of cases (over 3000 in 2020). In 2020, the greatest proportion of their cases were civil and administrative appeals. My uninformed guess is this trend will continue.
It is possible that as a consequence of this reform, the China International Commercial Court will hear more cases than before. But as I said and wrote earlier this year, I surmise that they will continue to pick their cases carefully, focusing on those which raise issues in which existing law and judicial interpretations are unclear and involve issues that frequently arise in practice. These CICC principles are consistent with those in the Four Level Court Reform Pilot Measures.
As for the other divisions of the SPC, my guess is that they will be able to find enough major cases to keep themselves busy while also spending more time on judicial policy and judicial interpretations, not to mention other matters. The principles in this reform do not affect long-standing mechanisms of the SPC, such as death penalty review or the prior review of arbitration-related decisions by the #4 Civil Division. As I hinted in a recent blogpost, I believe that in the next year or two, a great deal of time will be invested in issuing judicial interpretations to fill out the broad principles of the Civil Code, but the interpretations will themselves be issued in a codified fashion.
This blogpost will provide some background to the Guiding Opinion, a summary of the Guiding Opinions, a summary of a non-scientific survey of judges, and some initial thoughts.
Background to the Guiding Opinion
The Guiding Opinion is a type of soft law that enables the SPC to say that it has achieved on of the targets set out in the current judicial reform plan. According to a recent article by the drafters, they researched and consulted widely among courts, but that does not mean that a survey went out to all judges. It is further evidence that the SPC is operating as Justice He Xiaorong stated five years ago–” after the circuit courts are established, the center of the work of SPC headquarters will shift to supervision and guidance…”
Judicial reform and the Guiding Opinion
The Professional Judges Meeting Guiding Opinion is linked to #26 of the current judicial reform plan outline, discussed in part in this June, 2019 blogpost. I have bold-italicked the relevant phrases:
#26 Improve mechanisms for the uniform application of law. Strengthen and regulate work on judicial interpretations, complete mechanisms for researching, initiating, drafting, debating, reviewing, publishing, cleaning up, and canceling judicial interpretations, to improve centralized management and report review mechanisms. Improve the guiding cases system, complete mechanisms for reporting, selecting, publishing, assessing, and applying cases. Establish mechanisms for high people’s courts filing for the record trial guidance documents and reference cases. Completemechanisms for connecting the work of case discussion by presiding judges and collegial panel deliberations, the compensation commission, and the judicial committee. Improve working mechanisms for mandatory searches and reporting of analogous cases and new types of case. (完善统一法律适用机制。 加强和规范司法解释工作，健全司法解释的调研、立项、起草、论证、审核、发布、清理和废止机制，完善归口管理和报备审查机制。完善指导性案例制度，健全案例报送、筛选、发布、评估和应用机制。建立高级人民法院审判指导文件和参考性案例的备案机制。健全主审法官会议与合议庭评议、赔偿委员会、审判委员会讨论案件的工作衔接机制。完善类案和新类型案件强制检索报告工作机制)
Uniform Application of Law
As for why the uniform application of law is an issue, a quick explanation is the drafting of Chinese legislation often leaves important issues unresolved and leaves broad discretion to those authorities issuing more specific rules. To the casual observer, it appear that the Chinese legislature (NPC) “outsources” to the SPC (and Supreme People’s Procuratorate (SPP) for some issues) the hard job of drafting more detailed provisions. (see Chinalawtranslate.com for many examples and NPC_observer.com for insights about the legislative drafting process). Although the Communist Party’s plan for building rule of law in China calls for legislatures to be more active in legislating (see NPC Observer’s comments), in my view the SPC (and SPP) will continue to issue judicial interpretations, as the NPC and its standing committee are unlikely to be able to supply the detailed rules needed by the judiciary, procuratorate and legal community. Although the general impression both inside and outside of China is that the SPC often “legislates,” exceeding its authority as a court, as I have mentionedseveral times in recent blogposts, the SPC issues judicial interpretations after close coordination and harmonization with the NPC Standing Committee’s Legislative Affairs Commission.
Professional Judges Meeting Guiding Opinion
The Guiding Opinion is linked to the judicial responsibility system, about which my forthcoming book chapter will have more discussion. Professor He Xin addresses that system, among other topics in his recently published academic article.
The Guiding Opinion authorizes certain senior members of a court (court president, vice president, head of division, as part of their supervisory authority (under the Organic Law of the People’s Courts) to chair meetings of judges (who exactly will attend depends on the court- to discuss certain types of cases and provide advice to the single judge or three judge panel hearing a case. (In my informal inquiries, I have found that interns are sometimes permitted to attend, but sometimes not). The types of cases mentioned in Article 4 of the guiding opinions and listed below are not complete, but raise both legal and politically sensitive issues:
ones in which the panel cannot come to a consensus,
a senior judge believes approaches need to be harmonized;
involving a mass (group) dispute which could influence social stability;
difficult or complicated cases that have a major impact on society;
may involving a conflict with a judgment in a similar case decided by the same court or its superior;
certain entities or individuals have made a claim that the judges have violated hearing procedure.
Before the discussion, the judge or judges involved in the case are required to prepare a report with relevant materials, possibly including a search for similar cases, which may or may not be the same as the trial report described in my July, 2020 blogpost,
The guiding opinions sets out guidance on how the meeting is to be run and the order in which persons speak.
Depending on the type of case involved, a case may be further referred to the judicial committee or the matter may be resolved by the meeting providing their views to the collegial panel.
Article 15 of the guiding opinions provides that participating in these meetings is part of a judge’s workload. The guiding opinions provide that a judge’s expression of views at these meetings should be an important part of his or her performance appraisal, evaluation, and provision, and the materials can be edited into meeting summaries, typical cases, and other forms of guidance materials, which can be used for additional points in performance evaluation. One of the operational divisions of the SPC and at least one circuit court has published edited collections of their professional judges meetings, with identifying information about the parties removed.
From my non-scientific survey of judges at different levels of court and in different areas of law, my provisional conclusion is as follows. Judges hearing civil or commercial cases seem to hold these meetings more often, particularly at a higher level of court. Criminal division judges seem to hold such meetings less often (at least based on my small sample), but the meetings are considered to be useful.
Frequency seems to depend on the court and the division, with one judge mentioning weekly meetings, while others mentioned that they were held occasionally. Most judges that I surveyed considered the meetings useful, because they provided collective wisdom and enabled judges to consider the cases better. One judge noted that it may also result in otherwise unknown relevant facts coming to light.
I would also add my perception that it also gives the judges dealing with a “difficult or complicated case” (substantively or politically) in a particular case the reassurance that their colleagues support their approach, even if the judges involved remain responsible under the responsibility system. This is important when judges are faced with deciding cases in a dynamic area of law with few detailed rules to guide them, or where the policy has changed significantly within a brief time. My perception is that this mechanism provides a more collegial environment and better results that the old system of having heads of divisions signing off on judgments. I would welcome comments from those who have been there.
The Guiding Opinions provide yet another illustration of how Chinese courts operate as a cross between a bureaucracy and a court, from the rationale for holding the meeting to the use of meeting participation as an important part of performance evaluation.
Although the slogan (of several years ago) is that judges should be treated more like judges, the Guiding Opinion appears to treat lower court judges analogous to secondary or university students, to be given grades for their class participation.
What are the implications of this mechanism?
Litigants and their offshore counsel (Chinese counsel would know this) need to know that the result in their case in a Chinese court may be influenced by judges who are not in the courtroom when their counsel advocates orally. Written advocacy should still have an impact on professional judge committee discussions. It appears that counsel is not informed that the case has been referred to a professional judges committee for discussion and it is not possible for counsel to know who is part of the committee and apply for judges to be recused in case of a concern that there has been a conflict of interest.
Would it result in more commercial parties deciding that arbitration is a better option, as they have better control over dispute resolution in their particular case? My perception is that the decision concerning appropriate dispute resolution is based on other factors, and the existence of the professional judges meeting as a mechanism to provide views to judges hearing a case has little impact on that decision. I welcome comments on that question.
Many thanks to those who participated in the survey and also to those who commented on an earlier draft of this blogpost.
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).
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).
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.
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.
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.
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.
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.
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.
The National People’s Congress (NPC) Standing Committee recently revised theOrganic 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.
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.
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).
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;
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.
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 earlierblogposts 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.
The drafting process (the explanation and otherarticles 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.
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:
Secretary of the Central Political Legal Committee, Guo Shengkun (Guo);
President of the Supreme People’s Court (SPC), Zhou Qiang;
Chief Procurator General Zhang Jun;
Central Military Commission Political Legal Committee Party Secretary;
Minister of Public Security;
Minister of State Security;
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?
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)?
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.
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.
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:
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.
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:
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.
The military courts still lack their own legislation (an earlier discussion of this issue is found here).
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.)
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 priorblogposts).
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 earlierblogposts 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.
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.
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.
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:
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.
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.
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.
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,
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.
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.
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.
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.
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).
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.
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.
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).
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?
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
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
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
Most judges who have resigned recently are from the basic level (78%) and intermediate level courts (18%).
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.
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:
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.
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.
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.
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);
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 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.
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, salaries 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.
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?
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 thesearticles, 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.
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.
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
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.
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.
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
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:
Eliminate the use of illegally obtained evidence.
Improve the role of the defense lawyer and the statement by the advocate for the defendant.
Improve systems for pursuing judicial negligence.
Improve the protection of assets relating to [criminal cases].
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:
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.
Improve the handling of judicial information, so that litigants can determine the status of their case on-line.
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.
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.”
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:
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.