lecture 3 judiciary

7/29/2019 Lecture 3 Judiciary

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Introduction to Chinese LawLecture 3

Judiciary


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Judiciary Organs ()

Courts();

Procuratorates ();

Public security/police ()

State security ();

The system of judicial administration ();

Notary public ();

Prison administrative system.

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Courts: Current Status

Constitutional Position

Art 123to exercise the adjudicative power of the state exclusively

Status has risen significantly; have played an increasing role in society

Statistics on cases handled (SPC Annual Work Report 2009 to NPC,

p198)

Courts have expanded beyond orthodox role as instruments of

proletarian dictatorship meting out punishment to criminals and

enemies of people

now expected to serve as impartial arbiters of civil and commercial

disputes and administrative law disputes between different types of

parties

Reform efforts of SPC to make courts more dignified institutions

Judges gowns, judges gavels, lawyers gowns, etc.

Reform efforts of SPC to promote institutionalization and

professionalization of the judiciary

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Courts: Current Status

Recent shift in work and orientation of courts shift of policy and emphasis under new President Wang Shengjun

(2008-present)

SPCs advocacy for mass line and judicial work for the people;

stress on duty of court to serve CPC goals and policies;

emphasis on taking into consideration social circumstances andpublic sentiments/feelings in judicial work;

implicitly downgrading importance of strict adherence to legal rules

promoting mediation as preferable to adjudication.

SPCs promotion of public trial and publicity and

transparency of judicial work

central theme of judicial reform in recent years

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Courts: Problems

Judicial corruption and abuse of judicial power

Local protectionism/ favoritism

Some local and departmental leaders have been found illegally

meddling in the enforcement of court orders to protect their vested

local and departmental economic interests.

Persistent lack of professionalism Solutions

Judicial reform: three rounds of five-year-reform outlines (1999-2013)

Has reform really solved the problems?

Gaps in implementation and unbalanced implementation in differentlocalities in China

Major constraints on reform: to be found in the current politicalstructure

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Courts: Structure (1)

Supreme Peoples Court

MilitaryCourt

High Court

Intermediate Court

Basic Court

Railway

Court

Maritime

Court

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Courts: Structure (2)

Hierarchy Four levels: Supreme Provincial High Intermediate District Basic

Special courts: Maritime, Military, Railway.

Divisions

Reception Division Civil, Criminal, and Administrative Divisions (adjudication)

Enforcement Division (enforcing judgments and awards)

Supervision Division (receiving petitions, supervising adjudications)

Staffing President (), Vice-presidents,

Division Heads (),

Judges (), Deputy judges/Assistant judges ()

Clerks ().

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Courts: Powers (1)

Adjudication First instance and appealed cases

Adjudication through judicial supervision (higher courts over lower courts)

Approving death penalty sentences (by SPC, since January 2007)

Enforcement

Judgments, arbitral awards, payment orders, etc

Interpretation of laws (judicial interpretation)

Only judicial interpretations by SPC carry the force of law (quasi-

legislation, de facto law-making power)

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Courts: Powers (2)

Supervision over lower courts Principle: The judicial work of peoples courts at lower levels shall

be subject to supervision by the peoples courts at higher levels.

(Art 127 of Con; Article 17 of Organic Law)

Methods

Issuing guidelines to lower courts (replies, notices,

instructions, etc)

Training of judges: SPC operates the National Judges

College

Ongoing reform (textbook, pp188-89)

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SPC: Recent Change in Leadership

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Relationship with the Party (1):

(General: Guidance from CCP)

Relationship between judicial organs and CCP Leadership of CPC in political-legal work (functions performed by

judicial organs and political-legal cadres)

Mechanism of providing leadership: through political-legalcommittees (PLCs) within each party committee at various levels

(consisting of heads of judicial organs, judicial administrative

organs, civil affairs administrative organs at local levels)

A significant limit on judicial autonomy

No legal basis for this relationship, largely a policy matter

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Relationship with the Party (2)

(Internally: Party Committee)

Structure Every court has a Party Committee within.

Court president is generally the Party Secretary of the relevant court.

The Party Committee of the Court and its organization is subordinated to

the local Party Committee

Shenzhen Intermediate Court Party Committee Shenzhen Municipal

Party Committee.

Powers Partys leadership within the court.

Concerned with personnel (organization).

IdeologyThree Represents, Three Supremes

Policy (major initiatives, matters relating to social stability, politically

significant).

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(Externally: Political-Legal Committee)

PLC ():

Organization

All judicial organs in China and all judicial work in China are led by

the Political-legal Committee.

Central Political-legal Committee () is the sub-

committee of the CCP Central Committee.

Likewise, PLCs are established under all levels of local party

committees corresponding to local governments.

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(Externally: Political-Legal Committee)

PLC ()

Responsibilities

Implement Party policies

Supervise the implementation of law and Party policies by judicial

personnel Supervision

Since 1979, PLCs no longerexamine and approve cases, but can

provide general policy guidance to judicial work, nominate judicial

personnel and supervise the work of the courts.

Since 2006, there was a campaign called socialist rule of law

theory which stressed the leadership of the Party over the

countrys legal affairs.

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Relationship with the Legislature

General Description Courts are supervised by, and responsible to, PCs at same levels ( Article

128 of the Constitution, Article 17 of the Organic Law, Articles 5 andChapters 2, 6 of Law on Supervision of PCs 2006)

Personnel Control (Art.35, Organic Law; Art.11, JudgesLaw) PCs at various levels approve judicial appointments

Presidents () of the courts are appointed/ removed by PCs

All other judges appointed/ removed by the standing committees of PCs

Supervision (Law on Supervision of PCs 2006)

Annual Report Chief Judges (Presidents of the Court) make annual reports to the PCs

PC deputies can address inquiries to the courts

Individual Case Supervision: PCs can inquire into case decisions or rulings

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Relationship with the Government

Courts as Part of the Government Bureaucracy

The judicial system as an organ of the Party State

Reinforced by PLCs

Judicial ranks are associated with administrative ranks

Budgetary Control Funded by local governments

Supervised by local PLCs

Reform to introduce centralized funding (textbook p209)

Local Protection

Cases involving local SOEs

Cases involving major local private enterprises

Local government collect revenues from local enterprises

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Summary: Various Influences in Interplay

Supervision within the Court System

Higher courts supervise next lower courts (SPC reform: p188-89)

Some lower courts even request guidance from higher courts for early

prevention of the judgment being appealed or later revoked

Supervision by Judicial/Adjudicative Committees ()

In courts at all levels

Impact on personnel issues

Decide important () and difficult () cases.

Supervision outside the Court System

Pertaining institutions

Led, and more recently called guided, by the PLCs at corresponding levels.

Accountable to PCs at the locality which appoint and remove judges.

Supervision by upper level Procuratorates.

Invisible hands: local political and admin influences intertwined

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Judicial Independence: Constitutional Basis

Article 126: The people's courts exercise judicial power independently, inaccordance with the provisions of the law, and are not subject to interference by

any administrative organ, public organization or individuals.

Article 127: The Supreme People's Court is the highest judicial organ. The

Supreme People's Court supervises the administration of justice by the people'scourts at various local levels and by the special people's courts. People's courts

at higher levels supervise the administration of justice by those at lower levels.

Article 128: The Supreme People's Court is responsible to the National

People's Congress and its Standing Committee. Local people's courts at

various levels are responsible to the organs of state power which created them.

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Judicial Independence: China

Collective independence of the judiciary as a whole

o as the states adjudicating body exercising judicial power exclusively andindependently (Con, Art 126; Organic Law, Art 4)

Such independence is against interference by any administrative

organ, public organization or individual, but not by legislature and

political parties (Con, Art 126)

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courts produced (judges appointed) and supervised by PCs, responsible to PCs (i.e.,no separation of powers): Con, Art 128; Organic Law, Art 17

o work of courts led and guided by PLCs at corresponding levels of local party

committee

o interference from local governments as sources of funding for local courts

Such independence is not extended to individual courts, nor to

individual judgeso higher courts supervise next lower courts (Con, Art 127)

o supervision of judges work by adjudicative committees (Organic Law, Art 11)

o supervision of lower-ranking judges work by senior judges: judgments not valid until

signed by president or chief judge of divisions who may not be members of collegiate

benches

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Judicial Independence: West

Functional independence against other branches of

government (i.e., legislative and executive branches)

Institutional independence by individual courts

Independent decision-making by individual judges


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Courts: Operation

Collegiate bench (): consisting of odd number ofmembers, usually three - Presiding judge ()+ judges (), OR

Presiding judge + judge + peoples juror (), OR

Presiding judge + peoples jurors

To hear most cases except simple and minor cases where the sole-judgebench () is applied.

Trial proceeding Inquisitorial in nature but more adversarial-oriented nowadays

Open trial except cases involving state secrets, privacy, etc.

Judgments Facts + laws,

Usually a few pages only, without in-depth legal analysis,

But lately moving towards incorporating more reasoning and analysis.

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Collegiate Bench (1)

Cases of first instance shall be tried by a collegial bench

composed of judges or a collegial bench composed of

judges and peoples jurors. Only simple civil cases, minor

criminal cases and cases otherwise provided for by law

may be tried by one judge alone.

The president of the court or the chief judge of a division

shall appoint one of the judges on the bench to act as the

presiding judge. (Article 10 of the Organic Law of PeoplesCourts, amended in 2006)

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Collegiate Bench (2)

SPC Several Provisions concerning Further Strengthening

the Functions of Collegial Panels (2010) Collegial panels are the basic judicial organizations in the peoples courts. All

members of a collegial panel shall equally participate in the hearings,

deliberations and judgments of cases, and perform their judicial functions

according to law. (Art 1)

A collegial panel shall be composed of judges (including deputy judges) orcomposed of judges (including deputy judges) and randomly selected

peoples jurors. Collegial panels with relatively fixed members shall maintain

regular exchange among the members. If peoples jurors participate in a

collegial panel, they shall be randomly selected from the list of peoples

jurors. (Art 2)

Except cases submitted to the Adjudicative/Judicial Committee for

discussion, a collegial panel shall make a judgment or ruling of a case on

which a unanimous opinion or a majority opinion of its members is reached

during case deliberations. (Art 7)

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Collegiate Bench (3) The presiding judge may apply to the President or the divisional chief judge for

a decision on organizing the relevant judicial personnel to conduct jointdiscussions of the following cases, in which the members of the collegial panel

shall participate:1. A major, difficult or complex case or a case of a new type;

2. A case where the members of the collegial panel dissent greatly in the fact finding or

the application of law;

3. A case where the collegial panels opinion may be inconsistent with the judgment or

ruling of a precedent case of the same type rendered by the court or the superior court;

4. A mass dispute case with intense complaints from the parties; and

5. Any other case, the discussion of which the President or the divisional chief judge

deems necessary at the request of the presiding judge.

Discussion opinions of the above-mentioned cases shall be references for the

collegial panel, and shall not affect the collegial panels rendering a judgment

or ruling in accordance with law. (Art 7)

The presidents, vice presidents, divisional chief judges and divisional deputy

chief judges of the peoples courts at all levels shall participate in collegial

panels to hear cases, and gradually increase the number of cases heard by

them. (Art 8)

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Adjudicative Committees (1)

Institutional frameworko Peoples courts at all levels shall set up adjudicative committees (ACs)

which shall implement the principle of democratic centralism. The task of

the AC shall be accumulation of judicial experience and to discuss

important or difficult cases and other issues relating to adjudication. The

presidents of courts shall preside over meetings of the ACs. (Article 11,

Organic Law of Peoples Courts)o All three procedural laws (civil, criminal, and administrative) have given

details to the functions of ACs:.

Rationaleo insufficient professional qualifications and standards of judges; more

qualified and experienced judges on ACs can offer assistance and exercisesupervision (i.e., quality control)

Problemso decision comes first, trial to follow; accountability unclear

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Supporters/defenders in a minority (e.g., Zhu Suli)

arguing maintenance on grounds of reducingcorruption, enhancing judicial independence andresisting outside interference

Criticsfavoring abolishment on grounds of enhancing

judicial accountability, improving efficiency of case

handling, and reducing judicial corruption


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Reforms: General directions -o narrow down scope of referred caseso rationalize procedures for reference to ACs

Reforms: Specific initiatives before 2010 - reform of the presiding judge system: individual judges and collegiate

bench given more power to decide cases without approval of division chief,

president, or AC reform under revised Criminal Procedure Law of 1996: Art 149 the

collegiate bench shall refer the case to the president of the court to decideto submit the case to AC for discussion and decision. The decisions of ACmust be implemented by the collegiate bench. (now Art 180, revised CPLof 2012)

reform under SPCs first Five-Year Reform Program (1999-2003):

collegiate bench has right to refer case to president to decide to submitcase to AC (para. 2 (20)), but without differentiating criminal and civilprocedures

reform under SPCs second Five-Year Reform Programme (2004-08): ACto hear directly major or difficult cases or those with general applicability;president or division chief to join AC; creation of separate ACs for civil andcriminal cases


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Adjudicative Committees (4) Reforms: Latest developments since 2010 -

SPC Implementing Opinion on the Reform and Improvement of the System of

Adjudicative Committees of Peoples Courts (2010) Stable rather than fluctuating memberships

President, VPs, division heads, special committee members: considered moreexperienced, qualified and politically reliable

Most members of AC are concurrently court Party Committee members, with powerto consider promotion of judges

Clarified types of cases to be referred

collegiate bench has major differences in reaching a decision; relevant legislation in unclear or there are difficult issues in the application of law;

results of case may have a major impact on society;

a new type of case that will set an example for future cases.

Clarified AC proceedings

who decides to refer: The collegial bench may submit the case to the president todecide whether to submit the case to AC (Art 11)

presidents preside over meetings of AC (Art 14) collegiate bench to prepare a full written report on the trial of the case which reviews

the facts and evidence (Art 12)

a written report required to be provided to AC members before meetings. (Art 12)

presiding judge to make a report to the AC meeting, to be supplemented by othermembers of the collegiate bench (Art 15)

AC decision to take form of resolution (Art 17) by majority vote (Art 16)


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Profile of Judges

Judicial quality is very unbalanced in China

Some are retired military assigned to courts (common in 1980s and

early 1990s)

East and Rich Areas

Most judges are required to have a postgraduate law degree.

Judges are more decently paid, and have better benefits (including housing,

medical subsidies, etc).

Judges in first-tier Chinese cities (i.e. Beijing, Shanghai, Shenzhen, Guangzhou)

have more education and training opportunities abroad and hence, they are

more attuned to handling foreign-related disputes.

SZ and SH Intermediate Courts have a number of HKU MCL graduates.

West and Hinterland Most judges in the West and vast hinterland lack a formal legal education

Many judges are fresh law graduates recruited and appointed after graduation

Judges are ill-equipped in handling foreign-related disputes.

Concerns by HK-Mainland Regional Judicial Assistance Arrangements on Civil

and Commercial Matters.

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From Military Uniforms to Judges Outfits


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Judges Gowns


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Qualifications of Judges

Reform to improve the profile of judiciary Judges Law and other relating legislation promulgated to improve judicial quality

Structure of the judiciary and low salaries are major barriers.

Problems of the Chinese judicial infrastructure (including low salary) are embedded in its

surrounding political system.

Chapter 4 of Judges Law (passed in 1995, amended in 2001)

Undergraduates: 2 years experience; but 3 years experience if work forprovincial

HPCs or SPC.

Postgraduates: 1 year experience; but 2 years experience if work forprovincial

HPCs or SPC.

Court presidents and vice presidents are selected from judges who have more

experience (no illustration as to more experience, common loose-ends of most

Chinese laws, problems for implementation) .

After 2002, new judges must pass the National Judicial Examination

Famous as most difficult exam in China, passing rate at 6-7%.

Same situation in TW, Japan and South Korea.

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Court Reform: Overview

Court Reform by Organic Law of Peoples Courts Passed in 1954, amended in 1979 and 2007

Historically, weapon of the peoples democratic dictatorship

Merged into the public security organs in 1958, and re-established in 1979

Now defined as adjudicative organ () of the state

First-Five-year Reform Outline (1999-2004) Improved the quality of judges

Launch the national judicial exam

Second-Five-Year Reform Plan (2004-2008)

Ambitious towards professional courts: Not fewer than 100 goals set up

Mentioned centralized court appointment (in given areas), and centralizedfinancing of courts.

Third-Five-Year-Reform-Plan (2009-2013)

The new campaign of adjudication for the people (popular justice) launched in

2009

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Court Reform: Positive Progress (1)

Enhanced role, even if limited, in hearing rights-based

grievances (three types below) and increasingly

contested role of courts

o administrative litigation

o class actions

o discrimination claims filed under the Constitution

Reduced interference by Party and administrative

agencies in some localities (e.g., Shanghai)

o greater respect for rule of law by Party members andgovernment officials


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Court Reform: Positive Progress (2)

Enhanced independence and professionalism

o better qualifications of judges: higher degrees, better training, andintroduction of national unified judicial examination

o clearer rules for judges to follow in adjudicating through improved

quality of legislation and SPC interpretations

o recent attempts to turn courts into more dignified institutions

introducing judicial gowns and gavels

introducing lawyers gowns

o innovation and horizontal interaction among judges in local courts

to increase fairness in adjudication and develop professional

identities

Less judicial corruption in some localities

o better pay and social status

o stricter discipline and sanction


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Court Reform: Restrictiveness (1)

Reform largely technical and not designed to alter courts

power

New pressures from media reports and popular protests

Remaining interference in major and complex cases by

PLCs of Party and administrative agencies

o when judges are unsure how to integrate social effects with legal

effects of adjudication

o when judges are threatened to be held accountable for erroneousrulings

o when personnel control by Party and unsatisfactory terms of

service of judges still persist


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Court Reform: Restrictiveness (2)

Remaining judicial corruption

Courts are still under-funded

o funding still from budget of local administration, not from budget of

central government (despite of calls from public and SPCs plan for

reform - see textbook, p209)

Remaining difficulty in enforcing judgments

Remaining lack of authority, finality and certainty of courtjudgments

o possibility of re-opening cases through adjudicative supervision

(more in subsequent lectures)


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Judge Deng Case: Various Acts - Legal Bases

Collegiate bench and presiding judgeo Jurisdiction: collegiate bench can try cases of first instance except for

simple civil cases and minor criminal cases (Organic Law, Art.10)

ACs functions (Organic Law, Art.11)o to sum up judicial experience

o to discuss important or difficult cases (i.e., quality control of judicial workwithin same court)

o to discuss other issues relating to judicial work

Presidents acto arguably with legal basis

o who should decide whether to refer?: collegiate bench may submit a caseto president for him to decide whether to submit the case to AC (SPC 2010

Opinion, Art 7 and Art 11) ACs decision to seek High Courts instruction

o with legal basis: higher courts supervise lower courts (Constitution, Art.127;Organic Law, Art 17)

o but entailing lack of transparency and depriving parties of right to appeal

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Judge Deng Case: Various Acts - Legal Bases

High Courts support of judgmento with legal basis (same above -- Constitution, Art.127; Organic Law, Art 17)

PLCs reversal of judgment: controversial --o PLCs supervision: no formal legal basis, largely a policy matter

o how to supervise?: through providing general policy guidance, nominating

personnel, supervising work of courts

o whether reversal of judgment falling within the above scope?: should not

decide any specific cases for judges

LPCSC removal of Judge Deng: may be legitimate

depending on whether procedural requirements were

followed --o LPCSC at corresponding level to appoint and remove all judges other than

courts president (Organic Law, Art.35; Judges Law, Art.11)

o but such appointments and removals must be upon recommendation of

courts president (Judges Law, Art.11)

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lecture 3 judiciary

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