FINDINGS

• The Chinese judiciary continues to be plagued by internal administrative practices which constrain the independence of individual judges and undermine court effectiveness.
• The Chinese government is making significant strides in increasing legal training and the professional quality of the Chinese judiciary through new programs and employment practices. However, many of these efforts ignore the practical needs of rural Chinese courts.

Internal Judicial Administration

Internal administrative practices commonly used in Chinese courts reduce the independence of individual judges and create a passive cadre of judges. Three examples are the "responsibility system for wrongly decided cases," 740 the use of case closure rates to evaluate judicial performance,741 and the extensive reliance on qingshi (internal advisory opinion) procedures.

Court responsibility systems, which sanction judges for errors in deciding cases, began in the late 1980s as a means to curb corruption.742 In practice, responsibility systems differ by province and by court. Some define "wrongly decided cases" as those in which mistakes in procedure, determination of the facts, or application of law have resulted in "incorrect" outcomes.743 One Sichuan court censures judges for any error whatsoever, not only for procedural or legal violations, but also grammatical or spelling errors in their opinions.744 Disciplinary measures also vary. Depending on the number and seriousness of the mistakes in "wrongly decided cases," a judge may face internal criticism, fines, slower promotions, critical notations in his or her personnel file, or, in extreme cases, criminal sanctions.745 In some courts, sanctions are automatic and linked to reversal on appeal.746 Other courts have internal mechanisms in which a judge's peers review reversed cases to determine the severity of the error and the need for punishment.747 Some courts employ these measures frequently, others not at all.748

Court responsibility systems limit judicial independence and efficiency, particularly in linking disciplinary punishment to ordinary appellate reversals.749 They force Chinese judges to consider their self-interest in conducting essential judicial duties, such as hearing difficult cases, applying the law in unclear situations, or clearly expressing their judicial opinions in writing.750 These systems prompt Chinese judges to pressure parties into agreeing to mediation, because, as one judge said, "mediation can't be appealed, and there is no 'incorrect case' rate." 751

Some Chinese government officials are aware of these problems. The Supreme People's Court (SPC) set out national guidelines in 1998 that explicitly exempt judges from responsibility for incorrect judgments arising from errors in legal understanding or mistaken factual findings, or for reversals on appeal that result from amendments to the law or new evidence.752 These guidelines have had some impact, as some courts have revised their systems to include these exemptions.753 But some courts do not follow the SPC guide-lines.754 Other responsibility systems retain a degree of ambiguity, making the extent of judges' freedom to decide cases difficult to determine. For example, 1999 court rules for one Beijing Intermediate People's Court include the 1998 SPC exemptions for judicial sanctions related to "errors," but expressly sanction judges for "distortions" of fact or law.755 Uncertainty over such distinctions, combined with the penalties of the responsibility system, creates an environment hostile to judicial independence and creativity, resulting in a generally passive cohort of Chinese judges.

The common administrative practice of using the "case closure rate" to evaluate court performance creates similar pressures. The annual review process Chinese courts and judges undergo often considers the percentage of closed versus filed cases for a given year as a means to evaluate overall judicial efficiency.756 Individuals and courts with low ratings may suffer in terms of slower promotions and budget allocations.757 Given this incentive structure, Chinese courts self-report staggeringly high case closure rates, often greater than 99 percent,758 and often generate these rates through unscrupulous means. For example, Chinese courts commonly refuse to accept cases submitted in December, knowing that these cases would remain undecided at the end of the year and consequently reduce their case closure rate.759 Judges often also pressure parties to mediate rather than litigate if the case might continue past the end of the year.760 As Chinese critics have noted, these practices injure the rights of parties, harm the image of the Chinese judiciary, and undermine the procedural time limits for litigation set in the administrative, civil, and criminal laws.761 They also reflect an effort to manage the Chinese judiciary as an administrative agency rather than allow judges to independently exercise judicial authority.

Fear of censure under court responsibility systems creates incentives for Chinese court judges to seek advance guidance before issuing their decisions, contrary to principles of judicial independence. Judges seek such guidance through a well-developed system of requesting internal advisory opinions (qingshi).762 The request may be as informal as asking the tribunal head for his views on a particular case, or as formal as sending a written request to a higher court. Chinese judges maintain that they never use the practice to ask courts to make factual findings, but rather ask for advisory opinions only in cases in which the law is unclear or they are uncertain how to apply it to a particular set of facts.763 But when lower courts frequently send detailed case information to higher courts, questions arise about whether the lower courts are properly exercising their trial authority. Databases of Chinese laws and regulations contain many examples of replies to qingshi requests from all levels of the Chinese judiciary.764 These differ little in form and content from similar requests from lower-level administrative agencies to higher-level departments. Qingshi requirements are often very lax, allowing judges themselves to decide when it is appropriate.765 Chinese trial practice liberally accommodates qingshi procedures, including tolling the legally required time limits for deciding a case.766 Higher courts often have a research bureau formally responsible for responding to qingshi requests from below.767 Individual judges also may perform this role.768 Qingshi requests factor into the drafting of formal judicial interpretations. The SPC relies on qingshi requests from lower-level courts to determine which areas of law are unclear and need formal judicial interpretation.769 Excessive reliance on the qingshi process is emblematic of the top-down, overly administrative management structure of the entire Chinese judiciary.

Many in China criticize the qingshi system. As one procuratorate official bluntly put it, the system "is the embodiment of violations of law, regulation, and correct procedure in court management." 770 No legal basis exists for the qingshi system, which appears to violate provisions of the Chinese Constitution and Judge's Law guaranteeing courts the independent exercise of judicial authority.771 The closed, internal nature of the process also violates principles of openness and transparency in judicial decision-making and conflates the appellate and trial procedures, often rendering the appeal a formality. Moreover, the continued use of the qingshi system breeds passivity, dependency, and a lack of independent thought by Chinese lower court judges. They simply pass difficult or unclear cases up the judicial hierarchy.772

Chinese courts have made some limited moves to curb the use of qingshi. The SPC notice issued in response to public outcry surrounding cases of extended detention directs lower courts to "progressively eliminate" the use of qingshi, except in "difficult cases involving the application of law." 773 Certain local courts have issued similar instructions.774 However, the use of qingshi is difficult to eliminate in practice.775 Under the pressure of administrative measures such as responsibility systems, Chinese judges adopt a passive approach to dispute resolution. They prefer to use the qingshi process to refer any difficult case up to higher authorities rather than decide it themselves and risk censure. Fundamental administrative reforms are necessary to curb the dependence of the Chinese judiciary on advisory opinions.

External Pressures on the Chinese Judiciary

Numerous external actors, such as the Party, local governments, and local people's congresses (LPCs), impose limits that stifle the development of an independent Chinese judiciary.776 Courts encounter interference from LPCs in the form of individual case supervision.777 According to Chinese sources, as many as 70 percent of individual petitions to some local LPC xinfang bureaus represent appeals of final court decisions.778 Formal structures exist to facilitate "supervision" of particular cases in which LPC delegates take an interest.779 Some Chinese courts have LPC liaison offices present in their buildings to aid in such interventions.780 According to Chinese scholars, SPC regulations require that any case that individual National People's Congress delegates raise with the Court must be reviewed and the results must be reported back to the delegates.781 Although LPCs formally intervene in only a limited number of cases, "status requests" on ongoing court cases are relatively common.782 This contributes to an overall atmosphere that is not conducive to judicial independence.

Chinese courts face similar pressure from the media. Because Chinese judges lack professional standards and often are influenced by factors other than the law, courts may decide cases in line with their view of prevailing public opinion, particularly when press coverage is vigorous.783 Chinese courts may ignore normal legal protections or questionable facts in issuing quick death sentences, such as in the Liu Yong case [see Section III(a)-Rights of Criminal Suspects and Defendants]. In addition, the internal government reports prepared by the Chinese media may also generate high-level interventions in particular cases.784

Judicial Professionalism

Although the Chinese government is making significant strides in increasing the professional quality of the Chinese judiciary through training programs and new employment practices, many of these efforts ignore the practical needs of rural Chinese courts. Educational requirements for judges have been tightened, and the SPC has announced ambitious plans to use higher court judges to carry out educational lectures on new laws and regulations for China's roughly 150,000 basic court judges.785 Such projects ignore the realities of rural Chinese courts, which often lack the financial resources to attract university graduates and must struggle to merely retain the judges they do have.786 The highly academic educational and training programs organized by national and provincial judicial training programs appear similarly misdirected, given the heavy emphasis of basic-level Chinese courts on mediation.787 Many local Chinese judges express a desire for more practically oriented, skills-focused training sessions.788

Observers also detect signs of a shift toward a more professional administrative structure and recruiting process. Traditionally, Chinese judges have risen to the bench through an internal promotion process, starting first as a judicial secretary and gradually progressing to a full judgeship.789 This system results in significant mixing of clerical and judicial duties,790 and creates internal pressures to promote unqualified senior clerical staff to judgeships.791 The result is a highly imbalanced judiciary: approximately two-thirds of the roughly 300,000 Chinese court personnel are judges, with only 40,000 judicial secretaries.792 In the fall of 2003, the SPC took positive steps to stop this practice, with newly issued regulations that redefine the position of judicial secretary as a purely support function, rather than a step on the career track to becoming a judge.793 If fully implemented, this should gradually increase judicial professionalism.794 Many Chinese courts, with the encouragement of the SPC, are also beginning to experiment with selecting judges from among lawyers and other experienced legal professionals.795

Quality and Availability of Judicial Decisions

The quality and availability of Chinese judicial decisions remains a concern. Decisions often lack any legal reasoning and are frequently unavailable to the public. This is partly a result of the generally low educational levels of Chinese judges and the heavy emphasis in basic-level courts on mediation rather than formal trials.796 The excessively administrative nature of the Chinese judiciary also plays a role. Judges indicate that they frequently avoid listing reasons for their decisions in clear judicial opinions out of fear of censure under the responsibility systems.797

The Chinese judiciary is taking steps to improve the quality of judicial opinions. SPC directives requiring the publication of judicial decisions are an effort to increase transparency and compel judges to write better decisions in the face of public scrutiny.798 Several court Web sites, including those in Beijing, Shanghai, and Hainan province, allow users to download judicial decisions.799 The intellectual property tribunal of the Beijing High People's Court has begun publishing all of its opinions online.800 Review by Commission staff reveals that while many of these online opinions continue to lack legal reasoning, a few contain short analyses of relevant legal principles and facts. Some Chinese judges have indicated that pressure to publish opinions is encountering internal opposition within Chinese courts, as less-skilled judges resist the pressure to publish decisions out of concern for their public image or fear of punishment under court responsibility systems.801

Notes to China's Judicial System

740 In Chinese, "cuo'an zeren zhidu." Chinese names for the responsibility systems differ by court and region. One alternative name is "cuo'an zeren zhuijiu zhidu."

741 In Chinese, case closure rates are known as "jiean lu¨."

742 Chen Xiangjun, "On The Court's Responsibility System For Wrongfully Decided Cases" [Lun renmin fayuan cuo'an zeren zhuijiu zhi], Sunshine Net [Yangguang wang], .

743 Note that such systems often also apply to other organs such as the procuratorate and the public security bureaus. Hainan Province Regulations on the Courts, Procuratorate, and Public Security Organs Responsibility System for Wrongfully Decided Cases [Hainan sheng geji fayuan, renmin jianchayuan, gongan jiguan cuoan zhuijiu zeren zhuijiu tiaoli], issued 22 October 97, art. 2; Huainan City Regulations on the Judicial Organs Responsibility System for Wrongfully Decided Cases [Huainan shi sifa jiguan zhuijiu cuo'an zeren tiaoli], issued 27 December 94, amended 26 July 97, art. 6.

744 Wu Yumiao and Li Yongwen, "Six Chongqing Judges Face Criticism [Punishment] for Spelling Errors In Opinions" [Panjueshu shang xiecuo zi chongqing liuming faguan ai chufashou tongbao piping], Xinhua, 12 March 04, ; Hu Dongqiang, Bu Shihui, and Su Dan, "Chongqing, Hechuan (City) Implements [System Where] Judges Face Impeachment If They Have Three Wrong Cases in a Year" [Chongqing hechuan shixing faguan yinian bancuo sanqi anjian jiu yao zao bamian], Chongqing Evening Post [Chongqing wanbao], 26 March 04,.

745 Ibid; Implementation Details for the Responsibility System for Illegal [Behavior] of Trial Officers of the Beijing City First Intermediate People's Court [Beijing shi di yi zhongji renmin fayuan shenpan renyuan weifa shenpan zeren zhuijiu shishi xize (shixing)], 7 April 99,; Commission Staff Interview.

746 "A Shandong Court Experiments With Clean Government, Trial Responsibility Fund System" [Shandong yi fayuan changshi lianzheng, shenpan zeren jijin zhidu], 21st Century Business Herald [21 shiji jingji baodao], 2 February 04, . Particularly noteworthy, in addition to the text of the local court rules, is the statement of one local Shandong court official that, "Under this current judicial system, the only feasible method is the use of higher court decisions to make determinations of 'wrongfully decided cases,' even though the higher court decision, from a theoretical standpoint, is not always correct." Ibid. For other references to the use of responsibility systems to discipline judges for legal error reversed on appeal, see Shaanxi Provincial Regulations on Courts, Procuratorate, and Public Security Organs Responsibility System for Wrongfully Decided Cases [Shaanxi sheng geji fayuan, renmin jianchayuan, gongan jiguan cuoan zhuijiu zeren zhuijiu tiaoli], issued 27 March 96, art. 2, and the report of Ma Shuanzhi, "Shaanxi Hight People's Court Report on Work Regarding Trial Supervision and Responsibility for Illegal [Behavior]" [Shaanxi sheng gaoji renmin fayuan guanyushenpan jiandu shenpan jiandu gongzuo he weifa shenpan zeren zhuijiu gongzuo qingkuang de baogao], 20 November 02, (identifying cases reversed on appeal, "reversed cases which the lower court disagrees with," "cases identified by higher leaders," and "cases receiving an intense reaction from media or parties to the case" as four key types of cases at which the local responsibility system is directed.)

747 Ibid. Not surprisingly, lower court judges will often excuse their colleagues from serious punishment for errors of law if they disagree with an appellate ruling or feel the issues raised are particularly difficult. Commission Staff Interview.

748 Commission Staff Interview.

749 This problem is not simply an artifact of Chinese civil law tradition. The German judiciary, which also has a highly administrative structure analogous to the Chinese system, protects judicial activity within the "core decisional process" from disciplinary measures, while "sanctions can be applied against a judge who fails to apply a well-known general statute, who applies a formally repealed statute, or who ignores a binding decision from the Federal Constitutional Court." David Clark, "The Selection and Accountability of Judges in West Germany," 61 Southern California Law Review 1,795, 1,840 (1988). Despite the recent SPC guidelines discussed below, most Chinese court responsibility systems appear to lack this degree of clarity in practice.

750 Chinese commentators criticize the responsibility system for contributing to judges' failure to apply express legal protections for individuals in a number of fields, from divorce to criminal law, for fear of possible consequences should their decisions be reversed. Yao Yong, "Divorce Courts, Mistresses, and Domestic Violence" [Lihun chengben, bao er nai, jiating baoli], ; Li Fujin, "Difficulties and Responses on Deepening of the Reform of the Trial System" [Shenhua shenpan fangshi gaige de nandian ji duice], Eastern Legal Observer Web site [Dongfang fayan], 18 November 03, .

751 Qiang Shigong and Zhao Xiaoli, "Legal Interpretation Under the Dual Institutional Sys-tem-A Survey of 10 Chinese Judges" [Shuangchong jigouhua xia de falu jieshi-dui shi mingzhongguo faguan de diaocha], in Explanation of Legal Problems, ed. Liang Zhiping (Beijing: Law Press), .

752 SPC Responsibility System for Illegal [Behavior] of Trial Officers of the People's Courts (Experimental) [Renmin fayuan shenpan renyuan weifa shenpan zeren zhuijiu banfa (shixing)],issued 4 September 98, art. 22.

753 Guangdong Provincial High People's Court Implementation Details for the Responsibility System for Illegal [Behavior] of Trial Officers (Experimental) [Guangdong sheng gaoji renmin fayuan guanyu weifa shenpan zeren zhuijiu de caozuo xize (shixing)], issued 26 December 03,, Implementation Details for the Responsibility System for Illegal [Behavior] of Trial Officers of the Beijing City First Intermediate People's Court (Experimental).

754 For example, the 2003 Shandong court rules cited above appear to directly conflict with the SPC guidelines. "A Shandong Court Experiments With Clean Government, Trial Responsibility Fund System," 21st Century Business Herald.

755 Implementation Details for the Responsibility System for Illegal [Behavior] of Trial Officers of the Beijing City First Intermediate People's Court (Experimental), art. 10.

756 Li Xuan, "[Use of] the 'Annual Case Closure Ratio' Should Be Halted" ['Nianzhong jiean lu' yingdang xiu yi], Legal Daily [Fazhi ribao], 30 December 03, .

757 Tonghai County People's Court Reward and Punishment System for Target Goals [Tonghai xian renmin fayuan gangwei mubiao guanli zeren zhi ban'an jiangcheng kaohe banfa], issued 25 November 02, (setting annual case closure targets of 98 percent, 95 percent, and 70 percent for the criminal, civil/administrative, and enforcement tribunals, respectively. Failure to reach these targets results in loss of the annual salary bonus for the entire tribunal).

758 For two examples of court aggressiveness in meeting target goals, see 2004 Yanling County [Hunan Province] People's Court Work Report [2004 Yanling xian renmin fayuan gongzuo baogao], 9 February 04, (reporting a case closure rate of 99.95 percent, 627 out of 633 cases [note that on this data, the actual percentage should be 99.05 percent]); 2004 Yantian [Guangdong Province] Basic People's Court Work Report [2004 Yantian jiceng 99.6 percent, or 1,274 out of 1,280 cases [note that for this data, the actual percentage should be 99.53 percent]). 759 Li Xuan, "[Use of] the 'Annual Case Closure Ratio' Should Be Halted"; Commission Staff Interview.

760 Ibid.

761 Xu Guanghui and Xi Xiaofeng, "Don't Chase 'Annual Case Closure Rate'" [Bu ying zhuiqiu 'nianzhong jiean lu¨ '], People's Court Daily [Renmin fayuan bao], 10 June 04, .

762 Zhu Suli, "Sending Law to the Countryside," 72-77. Qingshi practices are many and varied. In some cases internal to the court, they involve nothing more than briefly consulting the head of the tribunal or the court president to sound out their opinion. More formally, lower-level courts also submit qingshi requests to higher courts with a brief factual description of the case, then pose the problem they seek assistance in resolving. According to Chinese sources, formal responses (pifu or dafu) to qingshi come in a variety of forms. These include entirely secret instructions, instructions to the tribunal, entirely open responses that have heavy persuasive value for lower courts, and formal judicial interpretations. Commission Staff Interview.

763 Commission Staff Interview. Courts also use qingshi requests to determine how to handle politically sensitive cases such as the Ouyang Yi case. "Rights Group Says Sentencing of Cyber-Dissident Delayed Over Lack of Evidence," Agence France-Presse, 16 December 03 (FBIS, 16 December 03).

764 Results generated by searching for "qingshi" in www.law-lib.com/law/.

765 Hainan Provincial High People's Court, Regulations on Appellate Hearings of Civil and Economic Cases [Hainan sheng renmin fayuan di er shen minshi jingji shenpan guizhang], issued 17 October 95, amended 9 July 97, arts. 57(2), 65, .

766 Hainan Provincial High People's Court, Temporary Regulations Regarding Supervision of Time Limits for Trying Cases [Hainan sheng renmin fayuan, shenpan anjian shenxian jiandu zanxing guiding], issued 10 May 00, art. 6(3), .

767 See, e.g., the description of the research bureau of the Intermediate People's Court of Tongliao, Inner Mongolia, "Work Status" [Gongzuo dongtai], 15 November 02, ; Commission Staff Interview.

768 Commission Staff Interview.

769 Ibid.

770 Li Quanyi and Zhu Geyang, "A Brief Discussion of the Internal Qingshi [Process] of the People's Courts and Its Defects" [Qianyi taolun renmin fayuan neibu anjian qingshi ji biduan], Criminal Law Watch Web site [Xingshi falu¨ liaowang], .

771 The Chinese Constitution, the Organic Law of the People's Courts, and the Judge's Law guarantee Chinese courts and judges the independent exercise of judicial power, "not subject to interference from administrative organs, public organizations, or individuals." PRC Constitution, art. 126; PRC Organic Law of the People's Courts [Zhonghua renmin gongheguo renmin fayuan zuzhi fa], enacted 1 July 79, amended 2 September 83, arts. 4, 8(2); PRC Judge's Law [Zhonghua renmin gongheguo faguan fa], enacted 28 February 95, art. 8(2). Both the PRC Constitution and the Organic Law of the People's Courts subject lower courts to a relatively undefined "supervision" by higher courts. PRC Constitution, art. 127; Organic Law of the People's Courts, art. 16. However, Chinese judges, scholars, and observers frequently express the view that the excessive use of the qingshi process to carry out such supervision (as opposed to reliance on ordinary appellate procedure) violates basic principles of judicial independence. See the China court bulletin board, supervised by the Supreme People's Court of China, ; Bi Dongsheng, "On Internal Court Supervision" [Lun fayuan neibu jiandu], Window on Chinese Judges (Web site) [Zhongguo faguan zhi chuang] ; Li Quanyi and Zhu Geyang, "A Brief Discussion of the Internal Qingshi [Process] of the People's Courts and Its Defects"; Commission Staff Interviews.

772 This also increases the workload of higher courts, which often complain about the inability of lower courts to resolve issues themselves.

773 Supreme People's Court Notice on Promoting 10 Rules to Practically Prevent the Occurance of New Cases of Extended Detentions [Zuigao renmin fayuan guanyu tuixing shi xiang zhidu qieshi fangzhi chansheng xin de chaoqi jiya de tongzhi], issued 1 December 03, clause 4. For critical Chinese media commentary on the qingshi system, see "Eliminating Internal Qingshi Helps Fairness in Judicial Decisions" [Quxiao neibu qingshi youli gongzheng panjue], Southern Metropolitan Daily [Nanfang dushibao], 3 December 03, reprinted in Sina.com, . Some experts have suggested that broader limits on qingshi system may be planned. Commission Staff Interview. This, however, would require a significant willingness on the Chinese authorities to address serious institutional issues regarding the role of the judiciary.

774 According to Chinese media, one Intermediate People's Court in Jiangsu ordered subordinate Basic People's Courts to halt the use of qingshi, except in certain cases involving the application of law. "Yangzhou Takes Lead in Eliminating 'Individual' Internal Qingshi" [Yangzhou shuaixian quxiao "ge'an" neibu qingshi], China Jiangsu Net [Zhongguo jiansu wang], 8 March 04, . Note that, according to the article, this is the first decision of its kind in the entire province.

775 Even in tribunals that have experimented with eliminating or limiting the sweep of the responsibility systems, some Chinese tribunal heads (tingzhang) complain that junior judges continue to seek their advice. Reasons given include: (1) a lack of trust in higher assurances that they would not suffer ill-effects for reaching particular decisions, and (2) an inability to independently reach conclusions in difficult legal cases. Commission Staff Interview.

776 Several types of external interference, including that of the Communist Party, are discussed in the Commission's 2003 Report. Congressional-Executive Commission on China, Annual Report 2003, 2 October 03, 65-6.

777 In Chinese, individual case supervision is often referred to as ge'an jiandu. LPC supervision of the courts is permitted under the PRC Constitution. PRC Constitution, arts. 3, 104.

778 Cai Dingjian, "The Basic Situation of LPC Individual Case Supervision" [Renda ge'an jiandu de jiben qingkuang], Academic Publication Research Net of People's University [Renda yanjiu xueshu qikan wang], .

779 Ibid.

780 Commission Staff Interview.

781 Cai Dingjian, "The Basic Situation of LPC Individual Case Supervision." Cai identifies 1,140 such cases raised by NPC delegates with the SPC in 2002. Local LPCs apparently have similar requirements as well. Ibid.

782 Cai divides LPC interference into four types: (1) rote transfers of petitions to the courts;(2) requests for status reports on the handling of a cases; (3) independent case investigations conducted by LPC staff resulting in suggestions on how the case should be handled and pressure on the courts; (4) formal supervision carried out by the full LPC or its Standing Committee. Statistics for cases falling in the second category range from 3 to 18 percent of petitions to given LPCs involving the courts. Only a handful of cases appear to fall in the third and fourth category. Cai argues that only these latter categories constitute LPC individual case supervision(ge'an jiandu) because (1) the first category merely represents cases being transferred to courts to handle and (2) courts often ignore requests for status reports (figures indicated that courts respond to only 20-50 percent of such requests). Ibid. This is consistent with Commission sources who have indicated a substantial difference in treatment of "ordinary LPC requests" with regard to individual cases and "VIP" requests. For the purposes of evaluating judicial independence, this suggests the true problem posed by LPC interference is not one of frequent interference in routine case management. Rather, the difficulty arises from (1) specific LPC intervention in high-profile cases and (2) a relatively regularized framework for intervention which engenders self-censorship on the part of Chinese judges.

783 Fan Qing, "Media Supervision and Judicial Independence" [Yulun jiandu yu duli shenpan],Legal Daily [Fazhi ribao], September 2003, . For further discussion of media influence on court decisions, see Benjamin Liebman, "Watchdog or Demagogue? The Media in the Chinese Legal System," Columbia Law Review, (forthcoming January 2005), 60- 80. Liebman notes that individual citizen petitions to the media which are referred over to the courts do not tend to generate pressure on judges. Ibid., 96.

784 Ibid., 19-21, 106-110.

785 CECC, 2003 Annual Report, 65-66, footnote 323. "Supreme Court To Help Train Judges in Western China," Xinhua, 17 February 04 (FBIS, 17 February 04).

786 Local Chinese judges express skepticism that ambitious central goals can be met. Commission Staff Interviews.

787 A vast disparity exists in the actual day-to-day work of different Chinese courts. As Chinese scholars have noted, basic-level Chinese courts outside of major urban areas rely heavily on a variety of less-formal practices and place very heavy emphasis on mediating disputes. Zhu Suli, "Sending Law to the Countryside," 316-21. Even at the level of the Baoji Intermediate People's Court in Shaanxi province, judges estimate that approximately half of their time is spent out of the courtroom and in the community meeting with parties, conducting site visits, and mediating disputes. Commission Staff Inteview. In contrast, the work at the high people's court level is much more formal. Ibid.

788 Commission Staff Interview.

789 "Shujiyuan Can No Longer Transition to Become Judges" [Shujiyuan bu neng zai guoduwei faguan], Southern Metropolitan Daily [Nanfang dushi bao], 28 October 03, . Although the term shujiyuan is often translated as "judicial clerk," it is translated here as "judicial secretary" to distinguish the post from the newly created "faguan zhuli" discussed below.

790 For criticism of this practice, see He Weifang, "Shujiyuan Will No Longer Be 'Judicial Reserves'" [Shujiyuan bu zai shi faguan de yubei dui], Southern Weekend [Nanfang zhoumo], 30 October 03, .

791 "Shujiyuan Can No Longer Transition to Become Judges," Southern Metropolitan Daily.

792 "China's Courts To Hold Stricter Standards for Judges," Xinhua, 27 October 03 (FBIS, 27 October 03).

793 CCPC Organization Bureau, Personnel Bureau, and SPC Notice Regarding 'Management Rules for Judicial Secretaries in the People's Courts (Experimental)' [Zhonggong zhongyang zuzhi bu, renshi bu, zui gao renmin fayuan guanyu yinfa 'shujiyuan guanli banfa (shixing)'], issued 20 October 03. See also "Shujiyuan Can No Longer Transition to Become Judges," Southern Metropolitan Daily.

794 According to one estimate, roughly 20 percent of the 45,714 judicial secretaries might be able to pass the judicial examination and become judges, 60 percent would transfer to the new (and undefined) position of "judicial clerk," (faguan zhuli), and the remaining 20 percent would either remain as judicial secretaries or leave the judiciary entirely. Ibid. The precise definition of how the judicial clerk position might differ from the current judicial secretary position is unclear. At least some have suggested it might involve the analytical and writing responsibilities currently assumed by more senior judicial secretaries, but without the secretarial duties. Commission Staff Interview. It may also represent an alternative career track for judges. Whether these changes will actually be implemented remains to be seen. As of the spring of 2004, some local Chinese courts were unaware of the change in policy. Commission Staff Interview. A similar move toward erasing some of the administrative hierarchy present in the Chinese judiciary is found in the efforts of at least one Beijing High Court, which announced the creation of the post of "senior judge," with benefits and responsibilities similar to those of the court president and tribunal heads. Qiu Wei, "Beijing Court Will Establish Senior Judge System This Year" [Beijing fayuan jinnian jiang jianli zishen faguan zhidu], Xinhua, 1 March 03, . Questions do exist as to how this change will be implemented in rural China. In many rural courts, the post currently serves as an apprenticeship for younger personnel to learn practical legal skills not taught in Chinese law schools, such as mediation.

795 "Taking Notice of the Trend of 'Judges Arising Out of Experienced Lawyers'" [Guanzhu: "faguan you zishen lu¨ shi chu" de qushi], Yanzhao Metropolitan Daily [Yanzhao dushi shixun], 5 June 04, ; Commission Staff Interview.

796 For a detailed discussion of the nature of judicial work in the basic level courts, see Zhu Suli, Sending Law to the Countryside, 316-321.

797 Qiang Shigong and Zhao Xiaoli, "Legal Interpretation Under the Dual Institutional Sys-tem-A Survey of 10 Chinese Judges"; Commission Staff Interviews.

798 CECC, 2003 Annual Report, 64-5.

799 For Beijing, see ; Shanghai, ; Hainan, .

800 Jing Bo, "Beijing Courts To Begin Gradually Making Opinions Public" [Beijing fayuan caipan wenshu jiang zhubu gongkai], 3 November 03, ; see also .

801 Commission Staff Interviews.