V. Development of Rule of Law and the Institutions of Democratic Governance

V(c) CHINA'S JUDICIAL SYSTEM

Plans for Ongoing Reform | Growing Professionalism, But Continuing Structural Problems

FINDINGS

• Chinese judicial officials announced ambitious reform goals in 2005 that would address structural problems affecting the Chinese judiciary. These include changes to court adjudication committees, the system of people's assessors, and judicial review of death penalty cases.
• Communist Party authorities and local governments continue to limit the independence of China's courts. Internal administrative practices of Chinese courts also compromise judicial efficacy and independence.
• The Chinese judiciary has improved the educational level of Chinese judges and the quality of their judicial opinions. Rural courts, however, are rapidly losing judges to urban areas.

Plans for Ongoing Reform

Judicial reform plans that Chinese authorities currently are considering appear to be aimed at addressing a range of structural problems in the Chinese judiciary. Recent efforts by senior Chinese leaders to tighten social and political control raise questions about whether these plans will actually be implemented.¹ An important test of official intent to reform the judiciary in a meaningful way will be whether the Supreme People's Court (SPC) Five-Year Plan for court reform, which has yet to be released, includes details on how to implement the reforms discussed below.

In 2005, Chinese court authorities set out a framework for continuing judicial reform.² According to both the SPC work report and media reports on the contents of the draft SPC Five-Year Plan (2005-10), reform goals include:

• Changes to judicial review of death penalty cases. Chinese officials and domestic sources indicate that the government has already decided to return the power of reviewing all death penalty decisions to the SPC [see Section III(b)—Rights of Criminal Suspects and Defendants].
• Revisions to the court adjudication committee system. Judicial authorities are considering structural reforms to the system of court adjudication committees. These committees of court presidents and other administrative personnel are the highest authority in Chinese courts, but their practices challenge principles of judicial independence. They often are the vehicle for outside pressure to reverse decisions in individual cases, for court officials to overrule the decisions of trial judges, or for trial judges to seek internal advisory review of cases before them. Officials and scholars currently are divided over different plans for reforming these committees.³
• Changes to rehearing procedures. Rehearing procedures permit courts and adjudication committees to reopen and review final decisions with few practical limits.⁴ Extensive use of rehearing procedures undermines the finality of court decisions.⁵ Proposed reforms may limit the number of times a case may be reviewed, but may also make it easier for parties to request a rehearing.⁶
• Strengthening the people's assessor system. In May, an SPC directive entered into force regularizing the practice of using ordinary citizens selected by court personnel to participate in court hearings. The directive clarifies that these laypersons enjoy the same powers as judges, including determining the facts and interpreting the law. Chinese authorities promote this practice as an anti-corruption device allowing popular supervision of the judiciary.⁷
• Regularizing the use of forensic determinations and expert testimony. A National People's Congress decision issued in February 2005 bars courts and justice bureaus from establishing for-profit forensics centers to provide expert testimony.⁸ This practice has raised substantial ethical and legal questions concerning the fairness of trials.⁹ Many Chinese courts, however, commonly depend on the revenue generated by these centers to support their operations.¹⁰

Party interests continue to influence judicial reforms. For example, Ministry of Justice efforts to strengthen the role of local judicial bureaus in resolving local disputes are directly linked to the Party's "harmonious society" campaign aimed at reducing social unrest.¹¹ In December 2004, two well-known legal scholars gave unusually candid public interviews about judicial reform proposals they had prepared at the SPC's request. The scholars noted the expansive nature of their proposals, which included guaranteeing independence for Chinese judges in deciding cases and forbidding court officials and adjudication committees to interfere in trial judge deliberation.¹² Despite having commissioned the proposals, the SPC publicly distanced itself from the authors and criticized them.¹³ The People's Daily noted that the "Supreme People's Court has ruled out the scenario of radical judicial reform in the short term."¹⁴ These responses suggest that judicial authorities remain wary of creating perceptions that they are trying to "Westernize" China and are being careful to curtail excessively independent reform efforts.¹⁵

Growing Professionalism, But Continuing Structural Problems

The Chinese judiciary continues to improve the educational levels of judges and the quality of their judicial opinions. According to SPC statistics, about 40 percent of Chinese judges had earned a 4-year university degree in 2003, a 21 percent increase since 1998.¹⁶ Pursuant to SPC directives, local courts continue to experiment with publishing their decisions online and providing statements of legal reasoning supporting their decisions.¹⁷ Central government efforts to compel rural courts to meet national standards for judicial qualifications and a wide gap in judicial salaries between rich urban areas and poor rural ones have weakened rural courts. Rural courts are losing talented judges to urban areas and facing difficulties hiring new ones, leading to the aging and thinning of the ranks of the rural judiciary.¹⁸

Chinese judges are subject to external interference that limits their independence. Local governments influence courts through their control over judicial funding and appointments, and frequently use this influence to protect local interests.¹⁹ Party authorities often intervene in politically sensitive cases and routinely screen court personnel decisions.²⁰ Since the early 1990s, local people's congresses have exercised increasing influence over court decisions.²¹ Public opinion is an increasing source of pressure on Chinese courts, through sensationalistic media reporting on cases.²²

Internal administrative practices commonly used in Chinese courts also reduce judicial effectiveness and independence. Chinese courts frequently evaluate judicial efficiency and assign bonuses or sanctions by using "case closure ratios"—the ratio of closed to filed cases during a given year.²³ To generate high ratios, Chinese courts often resort to unscrupulous means, including pressuring parties to agree to mediated outcomes and refusing to accept cases filed late in the year. Court responsibility systems discipline judges for a range of errors, including appellate reversals for legal error. Punishments include criticism, fines, limited career prospects, and criminal sanctions.²⁴ These systems encourage judges to rely on internal advisory requests (qingshi) to ask for advance guidance from higher court authorities about how to decide cases in order to avoid punishment.²⁵ As both Chinese officials and scholars have noted, this practice harms judicial fairness by separating actual court decisions from trials, and by making subsequent appeals (to the same entity that responded to the request for review) a formality.²⁶

Notes to Section V(c)—China's Judicial System

1 See Section III(e)—Freedom of Expression; Section V(a)—The Development of Civil Society; Section V(e)—Access to Justice. Similar use of top-down management techniques is evident in the judiciary as well. Cheng Jie, "Supreme People's Court Launches Roving Work System: Ten Inspection Teams Set Out to Monitor Five Issues" [Zuigaofa qidong xunshi gongzuozhi: shi xunshi zu chudong jiandu wu fangmian], Beijing Youth Daily, reprinted in Xinhua (Online), 11 October 04.

2 Other reform goals include the strengthening of basic level people's tribunals, construction of a juvenile justice system, and improved enforcement of court decisions. Supreme People's Court Work Report, 9 March 05.

3 According to Chinese media reports, reforms under consideration include: (1) requiring adjudication committees to use experienced judges, rather than court administrators lacking legal expertise; (2) requiring adjudication committees to base their review of trial decisions on written case materials or oral hearings attended by the parties, rather than oral reports of the trial judge; (3) requiring adjudication committees to issue their case decisions publicly, providing the names of the members making the decision and their reasons for doing so; and (4) limiting the scope of review of adjudication committees to legal issues alone, leaving questions of fact to trial judges. Dai Dunfeng, "The Debate Over Whether to Keep or Abolish Adjudication Committees" [Shenweihui cunfei zhi bian], Southern Weekend (Online), 3 February 05; Chen Huan, "The Supreme People's Court Sets the Tone for Adjudication Committee Reforms" [Zuigaofa ding diao shenweihui gaige], 21st Century Business Herald (Online), 16 March 05.

4 Under Chinese law, retrials may be initiated either by the parties to the case or a court of a higher level than the court in which the case was last tried. For example, according to Article 179 of the Civil Procedure Law, a court should grant a retrial requested by a party to the case if: (1) new evidence becomes available which requires the original decision or ruling to be overturned; (2) the main evidence used to determine the facts in the original decision or ruling is insufficient; (3) there is an error in the legal usage of the original decision or ruling; (4) the court violated procedure, influencing the correctness of the decision or ruling; or (5) lower court judges received bribes or otherwise broke the law. The first, second, and third requirements offer parties and courts significant leeway to reopen closed cases.

5 Chinese judges themselves note these problems. For the extensive critical analysis by one Jiangxi county judge, see Zhou Taoyu, "A Brief Discussion on Perfecting the Civil Retrial System" [Qianyi minshi zaishen zhidu de wanshan], China Commercial Law Net, reprinted in Legal Daily (Online), 20 October 04.

6 Tian Yu, "2005 Court Reform: People's Assessors Begin Work on 'May First' " [2005 nian fayuan gaige: renmin peishenyuan 'wuyi' shanggang], Xinhua (Online), 14 February 05.

7 Ibid.; Decision of the Standing Committee of the National People's Congress Regarding the Improvement of the System of People's Assessors [Quanguo renmin daibiao dahui changwuweiyuanhui guanyu wanshan renmin peishenyuan zhidu de jueding], issued 1 May 05, art. 1.

8 Decision of the Standing Committee of the National People's Congress Regarding the Administration of Expert Testimony [Quanguo renmin daibiao dahui changwu weiyuanhui guanyu sifa jianding guanli wenti de jueding], issued 1 October 05, art. 7.

9 Tan Lin, "Courts and Judicial Departments May Not Establish Forensic Centers: An Interpretation of the Decision on the Administration of Expert Testimony" [Fayuan he sifa bumenbu de she jianding jigou: jiedu sifa jianding guanli jueding], Southern Metropolitan Daily (Online), 9 March 05.

10 Wang Ying, "Reforming the System of Guarantees for Judicial Fees: Establishing the Foundation for Judicial Fairness" [Gaige sifa jingfei baozhang jizhi: dianding sifa gongzheng jichu], 21st Century Business Herald (Online), 16 March 05.

11 In 2004 and 2005, the Ministry of Justice launched a campaign aimed at strengthening local justice bureaus (sifasuo). Zhang Qingshui, "The Construction of 45 Thousand Basic Level Judicial Bureaus to be Completed Nationwide Before the End of Next Year" [Quanguo jiang zai mingnian di qian wancheng 4.5 wan ge jiceng sifasuo jianshe], Legal Daily (Online), 16 May 05. These efforts parallel Party-led propaganda campaigns to study the example of Cao Fagui, a people's mediator who was killed while mediating a civil dispute, that stress the importance of judicial bureaus as the "first line of defense" in protecting social stability. Zhang Qingshui, "Meeting to Report on the Advanced Accomplishments of Cao Fagui, Model People's Mediator, to Convene in Beijing" [Mofang renmin tiaojieyuan Cao Fagui xianjin shiji baogao hui zai jing juxing], Ministry of Justice Web site, 3 September 04.

12 Liao Weihua, "Possibility that the Design of the Courts will be Separate from Administrative Districts" [Fayuan shezhi youwang yu xingzheng qu hua fenli], Beijing News (Online), 29 November 04.

13 Tian Yu, "Supreme People's Court: Court Reform Cannot Be Separated From China's Reality" [Zuigao fayuan: renmin fayuan gaige buneng tuoli zhongguo xianshi], Xinhua, reprinted in People's Daily (Online), 7 December 04; Zong Bian, "Head of SPC Research Department Discusses Court Reform" [Zuigao renmin fayuan yanjiushi fuzeren tan renmin fayuan gaige wenti], China Court Net (Online), 8 December 04.

14 "Patience for Judicial Reform," China Daily (Online), 13 December 04.

15 Both the SPC's response to the academic proposal and accompanying media commentary heavily criticized the proposal to remove the word "people's" from the official title of Chinese courts, i.e. to shift the title from "Supreme People's Court" (zuigao renmin fayuan) to "Supreme Court" (zuigao fayuan), suggesting that judicial authorities remain concerned with creating impressions that they seek to challenge traditional political norms.

16 Tian Yu, "Higher Educational Level Does not Equal Increased Ability: Diploma Cannot Be the Only Goal of Training of Judges" [Wenping shangqu bu deng yu shuiping tigao: faguan peixun buneng zhi benzhe wenping qu], Xinhua (Online), 11 March 04. Tian Yu and Zhang Xiaojing, "Supreme People's Court: Training the Nearly 150 Thousand Basic Level Judges in Three Years" [Zuigao fayuan: 3 nian nei ba jin 15 wan jiceng faguan peixun yibian], Xinhua (Online), 1 July 04.

17 Supreme People's Court Notice Regarding the Promulgation of "Forms for Criminal Judgments by People's Courts" [Zuigao renmin fayuan yinfa "fayuan xingshi susong wenjian yangshi"], issued 30 April 1999; Supreme People's Court Measures on the Management of Publication of Judgment Documents [Zuigao renmin fayuan panjue wenshu gongbu guanli banfa], issued 15 June 2000. For example, the Kunming Intermediate People's Court has published certain civil case decisions online since February 4, 2005. Yu Jingmeng, "Kunming Intermediate Court: Publishing Decisions on the Internet" [Kunming zhongyuan: wangshang gongbu panjueshu], China Youth Daily (Online), 4 February 05. The Zhengzhou Intermediate People's Court began to require legal reasoning for criminal sentences in November 2004. Liu Hongjian, Zhao Yongchun, and An Shiyong, "No Longer Formulaic but Clear Legal Language—Zhengzhou Intermediate Court Experiments with Publishing Reasoning for Criminal Sentences" [Buzaiyong geshi yuyuan yibi daiguo ershi yong fayu fayuan qingxi daolai—Zhengzhou zhongyuan shixing liangxing liyou zhanshi zhidu], Fuzhou Daily (Online), 9 November 04.

18 In Shaanxi province, rural basic level court judges earn between 500 to 800 yuan per month. Urban judges in Xi'an or Guangdong earn several thousand yuan per month. Experienced judges and recent law graduates are commonly "raided" by courts in more developed coastal areas. Over 65 percent of basic-level Shaanxi courts had no new personnel pass the national judicial exam from 1999 to 2003. As one vice president of a Yan'an court noted, 61 percent of the judges on his court were 40 years or older, and within 5 to 10 years, approximately 60 percent of the judges on his court would retire or leave. However, since 1999, his court has had no new judges join. These trends have increased the workload of rural basic people's courts. Rural court authorities strongly advocate reducing the required criteria for judges in rural areas, perhaps allowing graduates with only a vocational school (dazhuan) degree to serve or allowing individuals with lower scores on the national judicial exam to serve. Du Meng, "Difficult to Enter, Difficult to Stay, Poor Treatment, Old Age: The Crisis of the Gap Among Shaanxi Judges Becomes Prominent" [Jin ren nan liu ren nan daiyu di nianling da: shanxi faguan duanceng weiji aoxian], Legal Daily (Online), 26 April 05.

19 CECC, 2003 Annual Report, 65–6.

20 Ibid. Local courts often report to Party authorities seeking their assistance in resolving outstanding financial and personnel issues, reducing judicial independence by making court officials dependent on Party leaders for career and institutional development. Ren Hongqi and Wang Yuxin, "Xixia County Party Committee Solves Three Large Problems for the Courts in Three Years" [Xixia xian wei san nian wei fayuan jiejue san jian da shi], Beijing News (Online), 3 September 04.

21 CECC, 2004 Annual Report, 81 and nn.781–82.

22 See generally Benjamin Liebman, "Watchdog or Demagogue? The Media in the Chinese Legal System," 105 Colum. L. Rev. 1 (2005).

23 CECC, 2004 Annual Report, 79.

24 The SPC has attempted to address some of these problems through limiting judicial actions which may be disciplined under responsibility systems. Ibid., 78 and n.744; Ni Shouming, "Based On 'No Mistakes and Rapid Development': Xintai Courts Implement Diligent and Honest Self-Discipline Foundation" [Lizu yu "bu chu shi kuai fazhan": Xintai fayuan shixing qin jian zil jijin zhidu], China Court Network (Online), 5 October 04.

25 CECC, 2004 Annual Report, 79–82.

26 Wei Wenbiao, "Request for Advice from 'Higher Authorities' Same as Changing Case Decision' " [Pan an qingshi "shangji" dang gai], Yanzhao Metropolis Daily reprinted in Guangming Daily (Online), 24 January 05. Chinese judicial authorities at both the central and local level have attempted to limit the use of internal advisory requests (qingshi), but reforms often prove difficult to enforce in light of the incentives created by responsibility systems. For further discussion, see CECC, 2004 Annual Report, 78–81.