adjudication committees in china

8/17/2019 ADJUDICATION COMMITTEES in China

1/6

中国法项目课程论文

LL.M Program Course Paper

学号Student No.: 2015190012

姓名Student name: Gherasim Monalisa

课程Course name: Chinese Judicial System and Case Analysis

成绩Course result:

教师Course teacher: Prof. WEI Xiaona

学年Academic year: 2015-2016

2015年12月


2/6

1

A CRITICAL ANALYSIS ON THE EFFICIENCY OF THE

ADJUDICATION COMMITTEES

This paper centers on the role of the adjudication committee, an organ that becomes one of

the causes that leads to wrongful convictions when exceeds its duties and meddles in the affairs

of the collegial panel. According to the Organic Law of People’s Court , each court is required to set up

an adjudication committee, generally comprising the president, vice-president, heads of the trial divisions

and senior judges. The committee sums up judicial experience, and discusses important or difficult cases

and other issues relating to judicial work. It is a permanent organ with adjudicative, political and

administrative powers in court.1 The most controversial issue relating to the adjudication committee

is that its function in discussing important and difficult cases it is not sufficiently clear. Neither

the Organic Laws of the P eople’s Courts nor the 1991 Civil Procedure Law and the 1989

Administrative Litigation Law specify how the function of discussing important and difficult

cases is to be exercised. Only Article 149 of the Criminal Procedure Law of the People's

Republic of China provides that:

After holding a court session and conducting deliberation, a collegial panel shall

render a sentence. If a collegial panel deems it difficult to make a decision on a

difficult, complicated, or significant case, the collegial panel shall request a decision of

the president of the court to submit the case to the adjudication committee for

1 See Yuwen Li , The Judicia l System and Reform in Post-Mao China. Stumbling Towards Justice , Ashgate

Publishing Limited, Eng land, 2014, pp. 32.


3/6

2

discussion and decision. The collegial panel shall execute the decision of the

adjudication committee.2

According to professor He Jiahong3, in practice, taking into consideration the authority of a

decision rendered by the Adjudication Committee, the collegial panel prefers to make use of

these provisions in difficult, complicated or significant cases. Another reason is that by

submitting it, the collegial panel moves the responsibility of a mishandled case on the

Adjudication Committee. Therefore, in these cases, which should impose great attention, the real

judges are not those that hear the cases because, as the art icle stipulates, the decision is rendered

by the adjudication committee after “discussions”; a decision that shall be executed by the

collegial panel.

A judge at an intermediate people’s court described how the adjudication committee

discussed cases at his court: “a specific responsible judge reports a case orally, and even thoug h

the reported contents may not reflect the true facts of a case, one can hardly discover or correct

them; some responsible judges take a long time to report all the details without a clear order,

and members of the adjudication committee ask questions repeatedly, which results in protracted

meetings; the oral report, and the fact that members of the adjudication committee comment

immediately without time to study the case and the relevant laws, means that the quality of the

decision cannot be guaranteed. Sometimes a decision of the adjudication committee is changed

later by the same committee.”4

In Li Yongcai Case5 the collegial panel decision was the acquittal of the defended. However,

after discussions, the Adjudication Committee of The Intermediate People’s Court of Dandong

City held that Li Yongcai was guilty of the charge and was given the death penalty with a two-

year reprieve, notwithstanding the insufficiency of the evidence. The collegial panel executed

2 Criminal Procedure Law of the People's Republic of China (hereinafter CPLPR), adopted on July 1, 1979;

amended on March 17, 1996 and on March 14, 2012 http://www.china.org.cn/english/government/207332.htm

01.12.2015, 10:003 He Jiahong, Empirical studies on the de-functionalization of criminal trial in China, in Renmin Chinese Law

Review: Selected Paper of the Jurist , Vol. 1 Edward Elgar Publishing Limited 2013 at 168..4 Yuwen Li, Id. p.33 citing Liang Baojian (ed), Renming Fayuan Gaige Lilum Yu Shijian (Theory and Practice of the

Reform of People’s Courts) (Beijing: Renmin Fayuan Chubanshe, 1999), p. 233 -234.5 He Jiahongm Id. at 168 citing Hu Jianting (2003), ‘The 800 days of the man who was condemned to death’

Lawyers and Legal System, (4).


4/6

3

this decision. After two years and two months in prison, the injustice dealt him was righted.

Another case is the case of Zhang Jinbo, a policeman accused of rape. The primary court in

Nangang District, after the joint meeting of agency heads of the interrelated people’s court,

people’s procuratorate and public security bureau, sentenced him for ten-year term

imprisonment, having as evidence only on a statement of the victim and the testimony of the

daughter-in-law. The college panel of second instance, declared him innocent, taking into

account the inconsistency in the victim’s testimony. Afterwards, the case went to the

Adjudication Committee, which dismissed the appeal and affirmed the original judgment. After

3664 days, Zhang Jingbo was acquitted of any charge and was set free.6

As the European Court of Human Rights has stated, we believe in the importance of the

principle of immediacy7. An important aspect of fair criminal proceedings is the ability for the

accused to be confronted with the witnesses in the presence of the judge who ultimately decides

the case because the observations made by the court about the demeanor and credibility of a

witness may have important consequences for the accused and also it is important that the

accused himself to be directly heard by the judge who ultimately decides the case.8

We understand that the adjudicating committees offers the possibility of using the collective

wisdom of a court, avoiding the limitations of a judge or a collegial panel, because most of the

members of the adjudication committees are senior judges, who have greater judicial and social

experience. Although, we believe that if there are so many cases in which this aim is far from

6 He Jiahongm Id. at 169 citing Zhang Yue (2007), ‘The policeman named Zhang unfairly imprisoned for rape for

ten years’ China Youth Daily, 9 February.7 According to the principle of immediacy, in a criminal case the decision should be reached by judges who have

been present throughout the proceedings and evidence-gathering process However, this cannot be deemed to

constitute a prohibition of any change in the composition of a court during the course of a case. Very clear

administrative or procedural factors may arise rendering a judge’s continued participation in a case impossible.

Measures can be taken to ensure that the judges who continue hearing the case h ave the appropriate understanding

of the evidence and arguments, for example, by making transcripts available, where the credibility of the witness

concerned is not in issue, or by arranging for a rehearing of the relevant arguments or of important witness es before

the newly composed. ( See Case of Cutean v. Romania , Strasbourg, 2.12.2014

http://hudoc.echr.coe.int/eng#{"fulltext":["Emilian

Cutean"],"documentcollectionid2":["GRANDCHAMBER","CHAMBER"],"itemid":["001 -148277"]} 06.12.2015 at

08:00)8 Id.


5/6

4

being achieved, something should be changed. If the problem is that Chinese judges are

generally relatively young and lacking in experience, maybe the procedure to become a judge

should be changed. Furthermore, there are other ways to control court’s decision: the Procedure

of Second Instance (art.180 - art.198 CPLPR), The Procedure for review of Death Sentences (art.

199 – art. 202 CPLPR), The Procedure for Trial Supervision (art 203 – art. 225 CPLPR) and,

moreover, The Supreme People's court “give interpretation on questions concerning specific

application of laws and decrees in judicial proceedings."9

In conclusion, we believe that the way of how adjudication committees handle the cases

nowadays should be changed because a real control of a decision it is not made through

“discussions”, but within a new trial, in which they can have a direct contact with the victim,

defendant and witnesses.

9 China 's Judicial System: People's Courts, Procuratorates, and Public Security

http://www.olemiss.edu/courses/pol324/chnjudic.htm 12.12.2015 at 23:00.

http://www.olemiss.edu/courses/pol324/chnjudic.htmhttp://www.olemiss.edu/courses/pol324/chnjudic.htmhttp://www.olemiss.edu/courses/pol324/chnjudic.htm


6/6

5

REFERENCE

1. Criminal Procedure Law of the People's Republic of China, adopted on July 1, 1979; amended

on March 17, 1996 and on March 14, 2012

http://www.china.org.cn/english/government/207332.htm

2. China's Judicial System: People's Courts, Procuratorates, and Public Security

http://www.olemiss.edu/courses/pol324/chnjudic.htm

3. European Court of Human Rights’ website

http://hudoc.echr.coe.int/eng#{"fulltext":["Emilian

Cutean"],"documentcollectionid2":["GRANDCHAMBER","CHAMBER"],"itemid":["001-

148277"]}

4. Jiahong, He Empirical studies on the de-functionalization of criminal trial in China, in

Renmin Chinese Law Review: Selected Paper of the Jurist, Vol. 1 Edward Elgar Publishing

Limited 2013

5. Li , Yuwen The Judicial System and Reform in Post-Mao China. Stumbling Towards Justice ,

Ashgate Publishing Limited, England, 2014
http://www.china.org.cn/english/government/207332.htmhttp://www.china.org.cn/english/government/207332.htmhttp://www.olemiss.edu/courses/pol324/chnjudic.htmhttp://www.olemiss.edu/courses/pol324/chnjudic.htmhttp://www.olemiss.edu/courses/pol324/chnjudic.htmhttp://www.china.org.cn/english/government/207332.htm

adjudication committees in china

Documents