Introduction

China has made remarkable strides in the professionalization of its judiciary in recent decades. However, the Chinese judiciary remains quite fragile, suffering from both internal structural deficiencies as well as institutional weaknesses in relation to other government organs. 

Structure

The court system is unitary (rather than federal) with four levels.  At the lowest (rural/county or city/district) level are roughly 3,000 Basic People’s Courts (BPCs).  Above them are approximately 390 Intermediate People’s Courts (IPCs) located at the city and prefecture level, followed by 31 High People’s Courts (HPCs) located in provincial capitals.  At the pinnacle of the court system is the Supreme People’s Court (SPC), located in Beijing.

The Chinese legal system is a civil, rather than a common law system.  Heavy weight is placed on codified statutory law. Chinese court decisions lack binding precedential weight, although the SPC does issue judicial interpretations of unclear statutory language and conflicting lower court decisions.  These do have binding effect.

Chinese trials generally consist of two parts, an initial “trial of first instance” (yi shen) and, upon appeal, a “trial of second instance” (er shen).  Jurisdiction depends very much on the seriousness of the case.  Ordinary Chinese civil and criminal cases are generally handled at the yi shen level by the BPCs, and at the er shen level by the IPCs.  Cases involving foreigners, large sums of money, or complex legal fields such as intellectual property, generally start one level higher, with the yi shen taking place at the IPC level, and the er shen at the HPC level.  Particularly serious or politically sensitive cases may be handled still further up in the hierarchy. 

Unlike the American distinction between trial and appeal, but like some civil law countries, the difference between yi shen and er shen in China is less clear.  New evidence is often introduced at the er shen and er shen courts often affirm or reverse judgments on completely separate grounds from those raised by the parties or yi shen judges.  The value of this system, which encourages appeals and creates much legal uncertainty,  is a subject of debate among Chinese legal scholars.

Internally, Chinese courts are highly specialized, consisting of civil, criminal, administrative, and economic divisions.  Judges within a division exclusively handle cases relating to that area.  Depending on the court, other divisions may exist as well.  For example, a number of HPCs have established specialized intellectual property divisions to cope with the increasing importance and numbers of trademark, copyright, and patent cases.

Personnel

Since the beginning of the reform period, China has made great progress in improving the quality of the judiciary.  This partially reflects the abysmal status of the judiciary at the end of the Cultural Revolution.  Prior to 1995, there were almost no requirements to become a judge, and the judiciary was largely comprised of retired military or government officials, many with little legal knowledge. 

Since 1995, however, the requirements for becoming a judge have been steadily tightened.  Under the recently amended Judges Law, new judges are required to have a university degree (although not necessarily in law) and pass a national judicial examination.  Current judges, appointed under the older system, must meet the new requirements within five years or face removal.  

Statistics on the Chinese judiciary reveal the magnitude of the challenge.  As of early 2003, only about 40 percent of China’s 220,000 judges held 4-year university degrees, and only about 2 percent held graduate degrees.

Lack of Independence of the Judiciary

Institutionally, Chinese courts are far from independent.  Individually, Chinese judges frequently suffer from outside interference in their decision-making.  These two factors collectively pose a serious challenge to developing the rule of law in China.

The Chinese judiciary is not a fully co-equal branch of government, even on paper.  At the national level, the SPC is subordinate to the National People’s Congress (the Chinese legislature) and on the same level as the Supreme People’s Procuratorate (the organ responsible for prosecuting cases on behalf of the Chinese government).  At lower levels, Chinese courts report to and are supervised by the corresponding local people’s congress (LPC, local legislative organs).  Court funding and personnel decisions rest in the hands of the LPCs and local governments.  Judges have no security of tenure.  In sum, the Chinese judiciary strongly resembles one administrative agency among many, lost in the panoply of the Chinese bureaucracy.

As in many civil law countries, Chinese courts do not possess the power to interpret laws or administrative regulations.  The former rests with the NPC, and the latter with the issuing agency.  This void creates problems.  Article 64 of the Chinese Legislation Law, promulgated in 2000, specifies that local rules and regulations conflicting with national law are invalid.  However, the law provides no enforcement mechanism. Instead, the law rather weakly suggests that local legislatures and agencies should abolish any offending rules.  In theory, the NPC possesses the power to annul such regulations.  In practice, however, no process for exercising this power exists.

Outside interference in Chinese court decisions comes from both local governments and from the Communist Party.  Control over the finances and the personnel of Chinese courts gives local governments the ability to influence court cases likely to threaten the interests of local elites.  Surveys indicate local protectionism is a major problem in the fair disposition of cases.  As to Communist Party influence, Political-Legal Committees (PLCs), comprised of court presidents, law enforcement agencies, and other legal organs, exist at each level of government.  Although primarily focused on ideological and personnel issues, PLCs can influence the disposition of particularly sensitive cases.

Internal Structural Problems

One issue faced by the Chinese judiciary in its effort to modernize has been the long-standing practice of internal court promotion as a career path to becoming a judge.

Young Chinese with some education often enter the court as secretaries (shujiyuan), and advance through an internal hierarchy, eventually attaining the position of judge. The problem posed by this system is twofold.  First, it creates a group of government bureaucrats with strongly vested interests.  These judges strongly resist the imposition of new, stringent reform measures (such as strengthening requirements to be a judge) that might result in their dismissal.  There is thus a strong incentive for the central government to simply grandfather this category of judges into any new requirements, rather than deal with the unpleasant possibility of firing officials.  Second, this practice also limits judicial independence.  The system of internal promotions creates complex relationship networks, where junior judges are often wary of voicing opposing views that might jeopardize their career advancement.

A second institutional weakness in the Chinese judiciary is the practice of qingshi, or requesting advice from a higher court on how to deal with a difficult case prior to actually reaching a ruling.  In part, this is entirely rational behavior on the part of the Chinese judiciary, given that judges whose cases are ultimately reversed are penalized in terms of career advancement.  This creates a particularly risk-adverse mentality encouraging judges to consult higher courts prior to issuing decisions. 

Qingshi also raises many of the classic legal problems regarding advisory opinions.  The workload of higher courts is increased. Appellate courts responding to qingshi lack a first-hand understanding of the facts of the case, which often deprives them of the ability to craft an appropriate legal decision.  Defendant’s appeal rights suffer, since a higher court may be loathe to revisit a case which it has already responded to via the qingshi process.  Lastly, the back-and-forth between courts is extremely costly in terms of time.  Some in the SPC have in fact begun to recognize these ill effects.  In December 2003, responding to public pressure generated by numerous cases of extended, illegal detentions, the SPC issued a Notice to courts of remedial measures, including an instruction to gradually eliminate the use of qingshi.  Whether this will remain a paper exhortation, or whether it will be accompanied by actual structural changes in the judicial system, remains an open question.

Institutionally, Chinese courts also suffer from a generalized lack of authority vis a vis other government institutions.  As mentioned previously, Chinese courts lack the authority to interpret or strike down laws or regulations.  Further, Chinese courts often have great difficulty enforcing their decisions. As many as half of all Chinese civil judgments go unenforced.  Judicial leaders have made addressing this issue a key policy goal.

Conclusion

Ongoing training and educational efforts are gradually increasing the general level of expertise within the Chinese judiciary.  However, growth of the Chinese judiciary’s influence within the Chinese government apparatus remains stymied by significant structural obstacles.