FINDINGS

The Judicial System

Judicial reform is a critical element of China's rule of law development. At its core, the rule of law requires the impartial resolution of disputes, consistent and predictable application of legal rules, and the existence of mechanisms to protect legal rights and limit the arbitrary exercise of power. A clean, competent, and independent judiciary is a key institutional foundation for these rule of law elements.

The Chinese government has made the judiciary a primary focus of its legal reform effort. In its 5-Year Plan for Court Reform issued in 1999, China's Supreme People's Court (SPC) set 39 specific goals, including initiatives to improve judicial efficiency, streamline court organization and address such core problems as corruption, limited transparency, interference in judicial decisionmaking, a shortage of qualified judges, and obstacles to the enforcement of court judgments.(316) Although China has made progress in addressing some of these problems, they continue to be areas of concern.

Authority of Chinese Courts

In China, courts have limited power and authority. As discussed in Section V(b), the National People's Congress (NPC) is the highest organ of state power under China’s Constitution. The NPC and its Standing Committee have the ultimate authority to interpret law and to enforce the Constitution.(317) As China is a civil law jurisdiction, courts have no formal power to make law in the sense that judicial decisions are not binding precedent. Similarly, courts are not empowered to interpret administrative regulations—ultimate authority over the interpretation and application of such rules rest with the issuing agency.(318) Even with this limited authority, Chinese courts are subject to detailed supervision by the people's congresses and the procuratorate. Court officials typically are outranked by public security and other law enforcement officials in the Party hierarchy, limiting their influence over Communist Party policy related to legal work.(319)

One consequence of the limited power of Chinese courts is that many court judgments are not enforced. As a July 2003 report by China's official Xinhua News Agency notes, most court enforcement orders remain unresolved, "leaving a blemish on the reputation of the judiciary." (320) The problem is serious enough that judicial leaders have made improving the enforcement of judgments a key reform goal.(321) In the criminal context, the weak position of the courts in relation to public security and prosecutors makes it difficult for the courts to check abuses by these institutions or to resist interference from law enforcement chiefs in sensitive cases.

Judicial Competence

Lack of professionalism is another pressing issue facing China's judiciary. Until 1995, when the NPC enacted the Judges Law, Chinese judges were not required to hold a college degree, and many judges were recruited from the ranks of retired military officers,law enforcement personnel, or Party cadres.(322) Despite a steady rise in the educational level of Chinese judges in the 1990s, as of early 2003, only about 40 percent of China's 220,000 judges held a 4-year university degree, and only about 2 percent held graduate degrees.(323) Lack of competence is a particular problem in basic level courts, which employ 80 percent of judicial personnel.(324) Only 15 percent of judges and assistant judges in these courts held 4-year university degrees as of 2002.(325) Without advanced educational credentials or legal training, these judges often have difficulty grasping basic legal concepts and adjudicating cases,(326) a problem that is intensifying as Chinese law becomes more specialized and complex. Compounding the problem, the low salaries of judges and relatively weak authority of the courts make it difficult for the judiciary to attract qualified recruits; top law school graduates prefer to enter private practice, where the work is more lucrative and less frustrating.(327) The poor quality of the judiciary, pervasive corruption, and other problems have led to loss of confidence in the legal system and strong criticism of the courts by the NPC, the media, and the public.(328) In March 2003, the SPC reported that judicial organs handled more than 42 million letters and complaints between 1998 and 2002,(329) and NPC delegates voted against or abstained on the SPC’s 2003 annual work report in historically large numbers.(330)

In response to these problems, the SPC has identified professionalization of the judiciary as one of its top reform goals (331) and has worked to improve judicial competence. Under amendments to the Judges Law in 2001 and subsequent SPC circulars, newly appointed judges must: (1) have an undergraduate degree in law or a degree in another subject and some legal knowledge, (2) have 2 to 3 years of legal experience (depending on the level of court that the judge is working in), and (3) pass a national unified judicial examination and a provincial court evaluation.(332) The new rules require courts at all levels to certify the qualifications of judges,(333) and sitting judges without the requisite qualifications must obtain new credentials within 5 years or face removal.(334) The SPC has also introduced reforms to encourage merit-based promotion. (335)

In addition to the reforms above, Chinese courts are engaged in a large-scale program of mandatory training for judges. The SPC established a National Judicial College in Beijing in 1997 and issued regulations that require provincial-level people's courts to establish and carry out judicial training programs. While the length and quality of training varies, official Chinese sources report that over 200,000 judges and court personnel have received at least some additional legal training since the program was launched in 1998.(336) SPC regulations require local courts to establish training implementation and evaluation plans and judges to complete 1 month of continuing legal education every 3 years.(337) Despite these significant achievements, legal experts conclude that China is likely to be encumbered by a poorly trained judiciary for at least another generation.(338)

Corruption

Chinese courts continue to be plagued by widespread corruption. (339) Although comprehensive statistics on corruption are not available, a steady stream of regulations and circulars dealing with judicial ethics,(340) frequent media reports of judicial malfeasance,341 and SPC President Xiao Yang's continued emphasis on corruption as a major judicial reform issue indicates that the problem is serious. (342) In an effort to control judicial corruption, the SPC has undertaken annual rectification campaigns343 and passed numerous regulations on judicial ethics and conduct, including standards for recusal and rules imposing personal liability on judges for wrongly decided cases.(344) The NPC has also called for enhanced supervision of the judiciary by people's congresses and the procuratorate. However, the problem of judicial corruption does not appear to be abating. In June 2003, the SPC issued yet another circular stressing its intent to strictly enforce existing judicial ethics rules and announced another round of judicial inspections to last through September 2003.(345)

Quality and Availability of Judicial Decisions

Court judgments in China do not have the same force as those in common law countries because judicial decisions are not formally binding precedent. Nevertheless, from the perspective of judicial transparency and impartiality, the quality and availability of court judgments is a key rule of law concern. Until recently, most court decisions in China were short, formalistic, and often lacked detailed legal reasoning or references to the law.(346) In fact, SPC regulations in effect before 1999 prohibited Chinese courts from citing to several sources of law that they were required to rely on.(347) Only a small percentage of judgments were selected for publication, and then only in heavily edited versions that were often out of date by the time they were published.(348)

In recent years, the SPC has taken steps to improve the quality and availability of judicial decisions as a way to control corruption, root out incompetent judges, and improve the image of the judiciary. After highlighting the importance of court judgments in its 5-Year Court Reform Plan, the SPC passed guidelines requiring statements of legal reasoning in judicial decisions(349) and issued regulations on the publication of judgments.(350) The publication regulations call for influential or typical cases to be published in legal and general circulation papers, encourage courts to publish ordinary judgments in a timely manner, and highlight the Internet as an important medium for the publication of judgments. These reforms have resulted in some positive changes. The number of legal gazettes and compendia of published court decisions has increased in recent years.(351) More importantly, the SPC and many local courts have established Web sites on which they have posted a growing number of case decisions.(352) Although courts and publishers still heavily edit many decisions, the number of complete judgments available and the quality of judgments is slowly on the rise.(353) Finally, several local courts have begun to experiment with case precedent, a development that some Chinese legal scholars believe will enhance impartiality and efficiency in the judiciary.(354)

Despite these positive trends, courts face significant obstacles in improving judgments. Many courts in less-developed or rural areas lack computers and other basic equipment, making the publication of judgments difficult.(355) In addition, many judges lack the training and expertise to draft publishable decisions with citations to the law and clear legal reasoning. Perhaps due to this concern, SPC regulations require all judgments to be submitted to an editorial committee for approval and specifically prohibit the publication of "substandard" judgments.(356) Given the scale of these capacity problems, improvement in judicial decisions will likely be incremental.

Limits on Judicial Independence

China's judiciary continues to be subject to a variety of internal and external controls that significantly limit its ability to engage in independent decisionmaking. Several internal mechanisms within the judiciary itself limit the independence of individual judges. A panel of judges decides most cases in China, with one member of the panel presiding at trial.(357) Despite recent reforms to enhance the independence of individual judges and judicial panels, court adjudicative committees led by court presidents still have the power to review and approve decisions in complex or sensitive cases.(358) Finally, judges in lower courts frequently seek the opinions of higher courts before making decisions on cases before them. Some legal reformers in China oppose this practice, arguing that it undermines the right of appeal.(359) China experts differ on whether the practice has become more or less frequent as reforms have progressed in recent years.(360)

Local governments are the most significant source of external interference in judicial decisionmaking. Local governments often interfere in judicial decisions in order to protect local industries or litigants, or, in the case of administrative lawsuits, to shield themselves from liability.(361) Local governments are able to exert influence on judges because they control local judicial salaries and court finances and also make judicial appointments.(362) According to one recent SPC study, over 68 percent of surveyed judges identified local protectionism as a major cause of unfairness in judicial decisions.(363) Judicial authorities in China speak frequently about the problem of administrative interference and have identified the spread of local protectionism as one of the principal problems facing the courts.(364)

The Communist Party also influences judicial decisions in both direct and indirect ways. Party groups within the courts enforce Party discipline (365) and the Party approves judicial appointments and personnel decisions.(366) Judges conscious of these control mechanisms are conditioned to watch for changes in Party policy in carrying out their work.(367) The Party exercises direct influence in individual cases through the Political-Legal Committees (PLCs) at each level of government. PLCs supervise and direct the work of state legal institutions, including the courts.(368) PLCs are typically staffed by court presidents, the heads of law enforcement agencies, officials of the justice ministry or bureau, and other legal organs. Although PLCs focus primarily on ideological matters,(369) they can influence the outcome of cases, particularly when the case is sensitive or important.(370) Judicial surveys suggest that direct Party interference is less common than local government interference, but this distinction is clouded in practice, as most key government officials are also Party members.(371)

A third significant form of external control is supervision by people's congresses and the procuratorate. Under the Chinese Constitution and national law, both the procuratorate and the people's congresses have the power to supervise the work of judges and the courts and to call for the reconsideration of cases.(372) In the case of the procuratorate, this power presents particular problems. Because the procuratorate has a dual role as both prosecutor and supervisor of the legal process, it has a conflict of interest in exercising its function of supervising the courts.

Prospects for Enhanced Judicial Independence

Both Communist Party and government leaders in China have embraced "judicial independence" as a key reform goal and have taken limited steps to enhance the autonomy of China’s judges and courts.(373) Although important and complex cases are still subject to adjudication committee review, reforms have enhanced the power of presiding judges, and panels of trial judges now have the power to decide many ordinary cases without interference from court presidents or the adjudicative committee.(374) The SPC and NPC also are discussing major structural reforms to combat the problem of local administrative interference in the courts. Three principal reforms under discussion are: (1) establishing a system of national judicial circuits that transcend administrative boundaries, which in theory would reduce the influence of local governments; (2) centralizing control over court finances and judicial salaries; and (3) transferring control over the appointment of judges at highlevel courts or above to the central government, and control over appointments at intermediate-level courts and below to provincial governments.(375) Although only in the early stages of discussion, such reforms could help alleviate the problem of local protectionism and as a result enhance the autonomy of the judiciary.

Despite these steps, several factors limit the prospects for improved judicial independence in the short term. First, Chinese leaders have a more limited concept of "judicial independence" than that accepted in many Western countries. When Chinese leaders refer to "judicial independence," they are generally not referring to the independence of individual judges, but instead to the autonomy of the courts in relation to other entities and government institutions.(376) Moreover, while the Chinese Constitution provides that the courts are not subject to interference by administrative organs, social organizations, or individuals,(377) judges are expected to adhere to the leadership of the Party and submit to the supervision of the people's congresses and the procuratorate.378 Unlike in many Western countries, these influences are generally not considered improper restraints on judicial independence.

There is also a tension between judicial accountability and judicial independence. To deal with corruption and lack of professional competence in the court system, China's leaders have strengthened penalties for misconduct and wrongly decided cases and enhanced internal and external supervision of the courts.(379) However, these steps also limit judicial independence. As China law expert Randall Peerenboom observes, improvements in judicial independence are likely to be incremental as China continues to deal with problems of corruption and competence in the courts.(380)

Finally, limited resources and political realities will make it difficult for the Chinese government to implement major structural reform of the court system. Given the large size of the court system and limited central government resources, implementation of the more ambitious reform plans, such as centralizing control over judicial budgets and appointments, is unlikely in the near term.(381) Moreover, reforms designed to increase the authority and stature of the courts will require constitutional changes and shifts in institutional balances of power. Law enforcement and administrative organs that would lose power to the judiciary as a result of such reforms are likely to resist the changes.(382) Thus, while the United States should encourage current reform efforts, it should not expect drastic improvements in judicial independence in the near term.

Notes to China's Judicial System

316 Five Year People's Court Reform Plan, Legal Daily [Fazhi ribao], 23 October 1999, translated in FBIS Doc. ID CPP20000505000668.

317 Constitution of the People’s Republic of China, arts. 57, 58, 62, 67.

318 Stanley Lubman, Bird in a Cage: Legal Reform in China After Mao (Stanford: Stanford University Press, 1999), 282.

319 For example, the Minister of Public Security is the current head of the CCP's national Political- Legal Committee. See John Pomfret, "Child's Death Highlights Problems in Chinese Criminal Justice," Washington Post, 3 July 2003.

320 "New 'Enforcement Notices' Designed to Increase Legal Transparency," Xinhua (English edition), in FBIS, Doc ID: CPP20030703000060.

321 Supreme People's Court 2003 Work Report, 11 March 2003; Supreme People's Court Opinions on Strengthening the Construction of Grassroots People's Courts [Zuigao renmin fayuan guanyu jiaqiang renmin fayuan jiceng jianshe de ruogan yijian], issued 13 August 2000].

322 Lubman, Bird in a Cage, 253.

323 These figures include judges who hold degrees in any subject, not necessarily law. For number of judges in China at the end of 2002, see "PRC's Top Judge Xiao Yang: Numbers of Judges to be Cut Back," Xinhua, 7 July 2002, translated in FBIS, Doc. ID CPP20020707000050. For the number of judges in China in 1998 and their educational level, see 1998 Law Yearbook of China [1998 Zhongguo falu¨ nianjian], (Beijing: Law Yearbook of China Press, 1998), 71. According to Chinese sources, in the five-year period ending in February 2003, the number of judges holding graduate degrees increased from 1,591 to 3,774 and the number of judges holding four-year college degrees increased from 52,117 to 82,764. "Chinese Courts Have 3,774 People with Ph.Ds: Judicial Ranks Stride Towards Professionalization," [Zhongguo fayuan you boshi 3,774 ren, fayuan duiwu maixiang zhiyehua], Isinolaw, 4 April 2003, (17 June 2003).

324 Supreme People's Court 2003 Work Report, 11 March 2003; Supreme People’s Court Opinions on Strengthening the Construction of Grassroots People's Courts [Zuigao renmin fayuan guanyu jiaqiang renmin fayuan jiceng jianshe de ruogan yijian], issued 13 August 2000. 325 Randall Peerenboom, China's Long March toward Rule of Law, (Cambridge, U.K.: Cambridge University Press, 2002), 290.

326 "PRC's Top Judge Xiao Yang: Numbers of Judges to be Cut Back," Xinhua, 7 July 2002, translated in FBIS, Doc. ID CPP20020707000050; Veron Hung, "China's Commitment on Independent Judicial Review: An Opportunity for Political Reform," Working Paper, Carnegie Endowment for International Peace, No. 32, November 2002, 11; Shao Zongwei, "Courts to Guarantee Fair Trials," 25 December 2002, translated in FBIS, Doc. ID CPP20021225000028.

327 Jerome A. Cohen, "Reforming China's Civil Procedure: Judging the Courts," Am. J. of Comp. L. (1997): 802.

328 "PRC Chief Justice Xiao Yang Promotes Concept of 'People's Justice,'" Xinhua, 24 August 2003, in FBIS, Doc. ID CPP20030824000055; Xu Xun, "Analysis on Relationship Between Chinese Media and the Judiciary," Legal Studies [Faxue Yanjiu], 10 December 2001, translated in FBIS, Doc. ID CPP200112310000159; Bei Hu, Gary Cheung, and Fong Tak-ho, "Concern over Law and Order Efforts," South China Morning Post, 19 March 2003; Hung, "China's Commitment on Independent Judicial Review," 7.

329 Supreme People's Court 2003 Work Report, 11 March 2003.

330 Hu, Cheung, and Fong, "Concern Over Law and Order Efforts." 13 percent of delegates rejected the report and 7 percent abstained.

331 Commission Staff Interview.

332 People's Republic of China Judges Law [Zhonghua renmin gongheguo faguan fa], enacted 28 February 1995, art. 9; Supreme People's Court, Several Opinions on Strengthening the Professionalization of the Judicial Corps [Zuigao renmin fayuan guanyu jiaqiang faguan duiwu zhiyehua de ruogan yijian], issued 18 July 2002. Judicial authorities held China's first national judicial examination in the spring of 2002, but the passage rate was only 7 percent. Shi Fei, "Malfeasance in Judicial Exams Begins to Show: This Year Pattern the Pattern is Changed" [Si kaoshi biduan chulu: jin nian geng fangshi], 21st Century World Herald [21 shiji huanqiu baodao], 13 January 2002.

333 "China's Judges Must Pass Exam to Keep Jobs," Xinhua, 20 July 2001, in FBIS, Doc. ID CPP20010720000074.

334 Judges Law, art. 9; Supreme People's Court, Several Opinions on Strengthening the Professionalization of the Judicial Corps; Tian Yu, "Judicial Professionalization: The New Image of Chinese Judges" [Faguan whiyehua: zhongguo faguan xin xianxiang, 19 February 2003, People's Daily [Renmin wang], (25 June 2003). Judges in this category who are over the age of 40 must complete at least 6 months of college-level legal training within this 5 year-period, while younger judges must obtain a 4-year degree.

335 See, e.g., Measures (Experimental) on Appointing Presiding Judges [Renmin fayuan shenpanzhang xuanren banfa], issued 11 July 2000.

336 Supreme People's Court 2003 Work Report, 11 March 2003.

337 Supreme People's Court Circular on on Enforcing PRC Judges Law [Zuigao renmin fayuan guanyu guancheluoshi "Zhonghua renmin gongheguo faguanfa" de tongzhi], issued 11 July 2001; Judicial Training Regulations [Faguan peixun tiaolie], issued 20 October 2000.

338 See, e.g., Randall Peerenboom, China's Long March toward Rule of Law, (Cambridge: Cambridge University Press, 2002), 321.

339 Ibid., 295; Veron Hung, "China's Commitment on Independent Judicial Review: An Opportunity for Political Reform," Working Paper, Carnegie Endowment for International Peace, No. 32, November 2002, 12; Stanley Lubman, Bird in a Cage: Legal Reform in China After Mao (Stanford: Stanford University Press, 1999), 279–80.

340 See, e.g., Supreme People's Court, Methods on Strict Observance of the Recusal System [Zuigao renmin fayuan, guanyu shenpan renyuan yange zhixing huibi zhidu de ruogan guiding], issued 31 January 2001; People's Republic of China Basic Code of Professional and Ethical Conduct for Judges [Zhonghua renmin gongheguo faguan zhiye daode jiben zhunze], issued 18 October 2001; Amendments to the Judges Law [Faguan fa], enacted in 2001; Measures (Experimental) on Courts Enforcing Work Discipline [Renmin fayuan zhixing gongzuo jilu¨ chufen banfa (shixing)], issued 12 September 2002; Several Provisions on Strictly Enforcing the Relevant Punishment Systems of the PRC Judges Law [Zhigao renmin fayuan guanyu yange zhixing "Zhonghua renmin gongheguo faguanfa" youguan chengjie zhidu de ruogan guiding], issued 10 June 2003.

341 See, e.g., Xu Xun, "Analysis on Relationship Between Chinese Media and the Judiciary," Legal Studies [Faxue Yanjiu], 10 December 2001, translated in FBIS, Doc. ID CPP200112310000159; Fong Tak-ho, "Judiciary to Undergo Anti-Graft Inspections," South China Morning Post, 9 October 2002, ; "PRC, Former Court President Sentenced to 1 Years for Bribery, Illegal Gains," Xinhua, 6 July 2003, translated in FBIS, Doc. ID CPP20030705000113.

342 See, e.g., Supreme People's Court, Work Reports, 1999–2003; "Xiao Yang Says that People’s Courts Should Strive to Do Six Tasks Well," Xinhua, 11 March 2003, translated in FBIS, Doc. ID CPP20030211000203.

343 Fong Tak-ho, "Judiciary to Undergo Anti-graft Inspections."

344 Provisional Measures on Liability for Judgments Not in Accordance with the Law [Renmin fayuan shenpan renyuan weifa shenpan zeren zhuijiu banfa], issued 4 September 1998.

345 Supreme People's Court, Several Provisions on Strictly Enforcing the Relevant Punishment Systems of the Judges Law, "The Whole Country's Court System Begins a Major Judicial Inspection [Quanguo fayuan xitong kaizhan sifa da jiancha]," People's Daily [Renmin wang], 20 June 2003, (25 June 2003).

346 Stanley Lubman, Bird in a Cage: Legal Reform in China After Mao (Stanford: Stanford University Press, 1999), 288, 291; Colin Hawes, "Dissent and Transparency in Recently Published Chinese Court Judgments," Paper Presented at the Association of Asian Studies Annual Meeting, New York, March 2003, 1.

347 Supreme People's Court, Reply on People's Courts Using Standardized Legal Documents When Making Judgments [Zuigao renmin fayuan guanyu renmin fayuan zhizuo falu¨ wenshu renhe yinyong falu¨ guifanxing wenjian de pifu], issued 28 October 1986.

348 Lubman, Bird in a Cage, 39, 42; Hawes, "Dissent and Transparency in Recently Published Chinese Court Judgments," 1.

349 Supreme People's Court Notice Regarding the Promulgation of "Forms for Criminal Judgments by People's Courts" [Zuigao renmin fayuan guanyu yinfa "fayuan xingshi susong wenjian yangshi"], issued 30 April 1999.

350 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.

351 Zhai Jianxiong, Judicial Information of the PRC: A Survey, (1 October 2002).

352 See, e.g., . As of June 2003, the Supreme People’s Court Web site contained hundreds of typical case decisions.

353 Hawes, "Dissent and Transparency in Recently Published Chinese Court Judgments," 1, 13.

354 These include the Guangzhou Maritime Court and the Tianjin High People's Court, and the Zhongyuan District Court in Zhengzhou. Hawes, at 8; "Tianjin Becomes First PRC Higher Court to Set Legal Precedents," Xinhua, 1 August 2003, in FBIS, Doc. ID CPP20030801000164.

355Supreme People's Court 2003 Work Report, 11 March 2003; Supreme People's Court 2002 Work Report, March 2002; Randall Peerenboom, China's Long March toward Rule of Law, (Cambridge: Cambridge University Press, 2002), 294.

356 Supreme People's Court, Measures on the Management of Publication of Judgment Documents, arts. 2(4) and 4.

357 Peerenboom, China's Long March Toward Rule of Law, 286.

358 Lubman, Bird in a Cage: Legal Reform in China After Mao (Stanford: Stanford University Press, 1999), 12–13; Five-Year People's Court Reform Plan, Legal Daily [Fazhi ribao], 2 October 1999, No. 1; Supreme People's Court 2003 Work Report, 11 March 2003. In fact, Chinese law provides for the Adjudication Committees and tasks them with "discussing" important or difficult cases. Organic Law of the People's Courts [Zhonghua renmin gongheguo renmin fayuan zuzhifa], enacted 1 July 1979, amended 2 September 1983, art. 11.

359 Commission Staff Interview. Critics of the practice argue when higher courts are consulted in this manner, they often reach decision about the case before the parties have had an opportunity to present arguments on appeal.

360 While some scholars report that this practice is on the decline, others argue that recent rules imposing personal liability on judges for wrongly decided cases have made it more common. Veron Hung, "China's Commitment on Independent Judicial Review: An Opportunity for Political Reform," Working Paper, Carnegie Endowment for International Peace, No. 32, November 2002, 12; Peerenboom, China's Long March Toward Rule of Law, 315.

361 Hung, "China's Commitment on Independent Judicial Review: An Opportunity for Political Reform," 8; Peerenboom, China's Long March Toward Rule of Law, 311.

362 Ibid. at 9. Formally, people's congresses appoint court presidents at the corresponding level, who then nominate assistant judges. In practice, however, local governments and Party committees control the appointment process.

363Zhu Qiwen, "Elevate Quality of Judges," China Daily, 9 March 2002, .

364 See, e.g., Supreme People's Court 2003 Work Report, 11 March 2003; Supreme People's Court 2002 Work Report, March 2002; Five Year Plan for PRC Court Reform, Legal Daily [Fazhi ribao], 23 October 1999, No. 1.

365 Peerenboom, China's Long March Toward Rule of Law, 303. 366 Ibid., 305.

367 Cohen, "Reforming China’s Civil Procedure," 797.

368 Stanley Lubman, Bird in a Cage: Legal Reform in China After Mao (Stanford: Stanford University Press, 1999), 264.

369 Cohen, "Reforming China's Civil Procedure," 798.

370 Ibid.; Lubman, Bird in a Cage, 252. PLCs typically exert their influence through court presidents, which sit on the PLCs, or by making a direct "recommendation" to judges. Hung, "China's Commitment on Independent Judicial Review," 8.

371 Peerenboom, China's Long March Toward Rule of Law, 307.

372 Constitution of the People's Republic of China,, arts. 67(6), 129; People's Republic of China Organic Law of the People's Procuratorates [Zhonghua renmin gongheguo renmin jianchayuan zuzhifa], enacted 1 July 1979, arts. 5–6; People's Republic of China Criminal Procedure Law [Zhonghua renmin gongheguo xingshi susongfa], enacted 1 July 1979, art. 8, chapter V; People's Republic of China Civil Procedure Law [Zhonghua renmin gongheguo minshi susongfa], enacted 9 April 1991, arts. 185–6.

373 See, e.g., the working document of the 16th Party Congress, stating that "we should institutionally ensure that the judicial and procuratorial organs are in a position to exercise adjudicative and procuratorial powers independently and impartially in accordance with the law." Documents of the 16th National Congress of the Communist Party of China (Beijing: Foreign Languages Press, 2002), 43. See also People's Court Reform Plan, Legal Daily [Fazhi ribao], 2 October 1999, No. 1; Supreme People's Court 2003 Work Report, 11 March 2003.

374 Supreme People's Court 2003 Work Report; Peerenboom, China’s Long March Toward Rule of Law, 286.

375 Commission Staff Interview.

376 Peerenboom, China's Long March Toward Rule of Law, 286.

377 Constitution of the People's Republic of China, art. 126.

378 For importance of Party leadership, see, e.g., Xiao Yang, "Vigorously Proceed with Professionalization Constructions of the Body of Judges," Seeking Truth [Qiushi], 1 May 2003, translated in FBIS, Doc. ID: CPP20021023000078; Supreme People's Court Opinions on Strengthening the Construction of Grassroots People's Courts [Zuigao renmin fayuan guanyu jiaqiang renmin fayuan jiceng jianshe de ruogan yijian], issued 13 August 2000]; Five Year Plan for PRC Court Reform. On the supervision of the NPC and the Procuratorate, see "Senior Procurator: Judicial Reforms should Support and Perfect Judicial Independence with Chinese Characteristics" [Gao jian: sifa gaige yao jianchi he wanshan zhongguo tese de sifa duli], Xinhua, 12 June 2003.

379 See, e.g., Tian Yu, "Supreme People's Court to Strengthen Supervision and Guidance of Courts Nationwide in 'Three Respects'" Xinhua, 2 April 2003, translated in FBIS, Doc. ID CPP20030404000058; Supreme People's Court 2003 Work Report, 11 March 2003; Supreme People’s Court 2002 Work Report, March 2002.

380 Peerenboom, China's Long March toward Rule of Law, 282.

381 Veron Hung, "China's Commitment on Independent Judicial Review: An Opportunity for Political Reform," Working Paper, Carnegie Endowment for International Peace, No. 32, November 2002, 18; Commission Staff Interviews.

382 Peerenboom, China’s Long March toward Rule of Law, 330.