Recent Developments in Judicial Reform

March 31, 2011

The Supreme People's Court has issued several documents seeking to regulate the judiciary in recent months. These include two documents that set forth judicial code of ethics, two regulations that attempt to limit undue influence on the courts, and one opinion that concerns the relationship between higher and lower level courts in conducting trial work.

Code of ethics

In December 2010, The Supreme People's Court issued two documents concerning judges' conduct, the Model Judicial Behavior Code and the Basic Code of Professional Conduct for Judges. Both documents took effect immediately and superseded earlier versions. The Model Judicial Behavior Code contains 96 articles and sets forth model behavior for judges covering the time period from case acceptance to enforcement of judgment. It also provides guidance in areas such as interaction with the media, maintaining professional demeanor while dealing with interpersonal conflict (maodun) with other people, activities outside of work, and travel. The Basic Code of Professional Conduct for Judges contains 30 articles and sets forth five key principles in seven chapters: "loyalty to the administration of justice," "judicial fairness," "judicial honesty," "striving to achieve justice for the people," and "defend the image of the judiciary." The following summarizes some key changes in the revised documents as compared with the earlier versions they supersede: The Model Judicial Behavior Code

  • Article 1 requires judges to be loyal to the Party and contains new language on "maintaining the same line of thought and action as the Party's Central Committee," and "not to go against the core policies of the Party and the country, in words or deeds";
  • Articles 90 through 93 add the supervisory role of higher courts, political departments within each court, and punishment for violating the Model Code;
  • The revised version removes reference that appeared in the earlier version (Chapter 3) to "independent adjudication according to law, without the interference from administrative organs, societal groups, and individuals."

The Basic Code of Professional Conduct for Judges

  • Articles 4 through 7 contain new references requiring "loyalty to the Party, loyalty to country, loyalty to the people, and loyalty to the law in order to build and defend a socialist system with Chinese characteristics," and to " abide by political regulations, guard the state's secrets and trial work secrets, not engage in activities that are detrimental to the country's interests and judicial authority, and not give or publish speeches that are detrimental to the country's interests and judicial authority."
  • Article 8 maintains the same reference as the 2001 version to "the principle of judicial independence according to law ..., [that is] free from interference from administrative organs, societal groups, and individuals."

Attempts to limit undue influence

In February 2011, the Supreme People's Court issued two regulations intended to limit improper influence on the courts: Provisions Regarding the Prevention of Interference With Casework by Internal Court Personnel (summary only), and Trial Implementation of Provisions Regarding Professional Avoidance (huibi) of Trial Judges and Court Leadership When a Spouse or Child Practices as a Lawyer. According to a summary released by the Supreme People's Court, the prevention of interference provisions prohibit court personnel from conducting private meetings with parties, their relatives, and legal representatives, whose case is being adjudicated by the court. The provisions also prohibit current and retired court personnel from forwarding documents, inquiring, or interceding on behalf of the parties. The Trial Implementation of Provisions Regarding Professional Avoidance of Trial Judges and Court Leadership When a Spouse or Child Practices as a Lawyer requires the court leadership (fayuan lingdao ganbu) and some trial judges to remove themselves in professional settings when a spouse or child practices as a lawyer in the jurisdiction they oversee. Article 4 requires judges and court leadership personnel who fall within the parameters of the provisions to initiate a job transfer within 6 months, and for the transfer to be completed within 12 months. The efficacy of the new regulation remains unclear as it does not include limitations on the procuratorate, public security personnel, spouses, or children who work as legal advisers (falu guwen) for enterprises, friends, and relatives, or anyone else who shares a close relationship with the parties or the court.

Relationship between higher and lower courts

In December 2010, the Supreme People's Court issued the Opinion Concerning the Standardization of Trial Work Between Higher Level and Lower Level Courts. The Opinion contains 11 articles and provides guidance on how to handle trial work between higher and lower level courts. In particular, the Opinion seeks to address the problem of lower courts requesting instructions from higher courts on how to decide a case, according to a February 15, 2011 article in the Legal Weekly (fazhi zhoumo). It is the latest in a series of efforts by the central government to address the practice of lower courts' avoiding responsibility by seeking instructions from higher level courts when adjudicating cases. Key provisions include:

  • Article 3 sets forth four instances when basic and intermediate people's courts can request instructions from higher level courts in writing in (1)"major, difficult, and complex cases"; (2) "a new category or type of case"; (3) "cases with pervasive legal implications and applicability"; and (4) "when a case is not suitable to be tried in the court that has proper jurisdiction."
  • Article 6 prohibits "in principle" the court of second instance from remanding a case based on unclear facts and insufficient evidence, when the court of first instance has fully investigated the facts.
  • Article 8 delineates that the Supreme People's Court provides "guidance" (zhidao) to lower and specialized courts through trying cases, judicial interpretations, publications of guiding cases (zhidaoxing anli), conferences, and training. Article 9 sets forth a similar provision for the provincial high courts in relationship to lower provincial courts.

The People's Mediation Law

The National People's Congress passed the People's Mediation law in August 2010, which became effective on January 1, 2011. The law is intended to promote mediation as an alternative to court litigation. Its passage reflects the government's continuing effort to promote mediation as a tool to achieve "social stability." The key provisions of the law clarify the legal status of mediated agreements, detail procedures to be used in mediation and allocated sources of funding for the people's mediation committees. The efficacy of the new law and its impact on the rule of law remain unclear.

For more CECC analysis on the mediation law, see New People's Mediation Law Takes Effect, and Section III―Access to Justice in the CECC 2010 Annual Report.

For more information on the rule of law generally, see Shaanxi Mining Disputes Highlight the Difficulties in Developing the Rule of Law and Section III―Development of the Rule of Law, in the CECC 2010 Annual Report.