Central Government

US Government Structure

Mr. Hu, Secretary General Central Politburo (Standing Committee)Central CommitteeNational Party CongressThe Chinese Communist Party (CCP)

CCP in perspective

NPC and its Standing Committee

Other Institutions

Who is the Chief?

Party Chief

Military Chief

President of the PRC

“Political power grows out of the barrel of a gun.”

-- Mao

The 10th NPC that elected the New Central Government, March 2003

Relationships of the Central and Local Governments

Principle: Democratic Centralism – The individual is subordinate to the group;– The Minority is subordinate to the majority;– The Lower is subordinate to the higher level;– The Local is subordinate to the central.

Any problem with this principle?

Name maters

• NPC ---Basic Laws

• NPC (NPCSC)---Other Laws

• State Council---Admin. Regulations– Ministries---Ministerial Rules

• Local NPC---Local Regulations

• Local Gov---Local Admin. Rules– Local Dept.---Local Dept. Rules

International law as Chinese law – Self Executing

– None Self Executing • International Covenant on Economic, Social and C

ultural Rights

China U.S.

Signature: 10/27/1997 10/5/1977

Ratification: 3/27/2001 NO• International Covenant on Civil and Political Rights

Signature: 10/5/1998 10/5/1977

Ratification: NO 6/8/1992

Court Structure

Application and Enforcement of Laws

• Court

• Procuratorate

• Public Security Bureau (PSB)—Police

Under NPC

• Cont. 126: judicial independence blue p.174

• Cont. 128: Court reports to NPC

• Cont. 62 (7), 63 (4): NPC appoints or removes judges.

• Cont. 124: 5 yr Term, no tenure

Court Structure

• Four levels: – Supreme People’s Court (SPC)– High People’s Court (HPC)– Intermediate People’s Court (IPC)– Basic People’s Court (BPC)

• People’s tribunals

• Divisions within a court– Criminal – Civil – Economic – Administrative– IP (some courts)

Supreme Court

High Court

Inter. Court

Basic Court

Tribunal

Court Personnel

• President (appointed)• Vice president (civil servant)• Chief judges (civil servant)• Deputy chief judges (civil servant)• Assistant judges (civil servant)

The qualification for being judges is low.

Paid less.

Limited authorities as compared with U.S. judges.

Jurisdiction

• Basic People’s Courts• Intermediate People’s Courts, among others---

– Death penalty– Cases with foreign elements

• High People’s Courts • Supreme People’s Courts

– Discretion– Theoretically can be court of first instance, but rare in

practice.

Process

• Two trials to complete a case

• Collegiate bench of three or more judges– Criminal cases: 1-1.5 months– Civil Cases: 6 months, or 3 months in

expedited process– Procuratorate can protest court judgment.

No Jury, but People’s Assessors

• Appointed and paid by the Court • Five years appointment• Qualifications: upholding con. Good health,

college degree, good ethics, no criminal record, not holding government office

• Training• Equal voting rights with judges • Cases with great impact, or as requested by

parties

Adjudication Committee (AC)

• OLPC Art. 11• Judgments of a court are not valid without the

final approval of the president or the chief judge of a division of the court.

• AC consists of the president, chief judges and senior judges.

• The purpose of AC is to review difficult cases. AC may decide a case without reviewing files; AC

may decide a case that should be heard at the lower court.

Chief Justice’s Role Compared

• Chief Justice in the U.S. (see handout)

Judgments

• Limited authority

• Mechanically apply the law

• Cheng Kejie Case Vice NPC chairman sentenced to death on corruption charge. See handout.

Adjudication Supervision (AS)-Reopen Cases

• Not normal appeal process– Normal appeal

• Civil—judgment 15; order 10 • difference between judgment and order see: CPL art 138 blue 75• Criminal-judgment 10; order 5

• Who can plea for AS? – Parties– President of the Ct. – S. Ct. – Procuratorate

• Criminal P.L. art. 203-205 blue p. 282• Civil P.L. art. 177-188 blue p. 81

Procuratorate

• Has the same rank as a court

• Supervisory role

Party Influence

• Political-Legal Committee consists of the president of court, the president of procuratorate, and the head of PCB.

• Influence weakened?

• Through normative documents, which clearly override law (eg. Tuojiang Pollution Accident )

Judicial Independence Compared

• Court budget http://

www.npr.org/templates/story/story.php?storyId=4598172 (Audio Clip)

Supreme Court, Congress Clash on Rulings

by Nina Totenberg 

Factors affecting Judicial Independence

• Lawyers

• Legal scholars

• Officials, persons with connections to officials

• Mediation committees

• Neighborhood committees

• Work Unites (Danwai)

Enforcement of Judgment

• Court in charge of enforcement• Low rate: 40 %• Local Protectionism

– Guangdong company sought enforcement of a $900,000 judgment against a Hainan company in 1996. Hainan court suspended the judgment with out explanation.

• Judgment on Sale, jailed for seeking enforcement, etc.