Shaanxi Provincial Court Announces Gradual Elimination Of Advisory Opinions

May 26, 2006

The Shaanxi High People's Court (HPC) announced March 27 in an Opinion on Implementing the Second Five Year Reform Program for the People's Courts (Opinion) that it would "gradually eliminate" the use of advisory opinions (qingshi) in individual cases. The Second Five Year Reform Program for the People's Courts, issued by the Supreme People's Court in 2005, identifies reform of advisory opinions as one of its long-term court reform goals. Chinese judges often seek internal advisory opinions from higher courts or court adjudication committees (the highest authority in a given court) about how to decide pending cases.

The Shaanxi High People's Court (HPC) announced March 27 in an Opinion on Implementing the Second Five Year Reform Program for the People's Courts (Opinion) that it would "gradually eliminate" the use of advisory opinions (qingshi) in individual cases. The Second Five Year Reform Program for the People's Courts, issued by the Supreme People's Court in 2005, identifies reform of advisory opinions as one of its long-term court reform goals. Chinese judges often seek internal advisory opinions from higher courts or court adjudication committees (the highest authority in a given court) about how to decide pending cases.

Judicial reliance on internal advisory opinions harms judicial fairness and weakens the appeals process. Professor Yi Yanyou of Qinghua University law school said, "The direct result of advisory opinions is that they reduce the appellate system set up by China's litigation laws to one that exists in name only. 'Advisory opinions' are in reality behind-the-scenes manipulation. This not only makes China's trial system a fiction and makes parties' appeals meaningless, it also helps create dependency on the part of lower courts, weakening their ability to independently decide cases," according to a May 18 China Youth Daily article reprinted on the Xinhua Web site.

The Opinion says that the Shaanxi HPC will issue rules in 2006 to standardize the use of advisory opinions. The Opinion says that requests for advisory opinions will be limited to questions about the use of law. Any such requests must come from the adjudication committees of lower courts. Individual tribunals of higher-level courts will be responsible for handling requests for advisory opinions. But the adjudication committees of higher-level courts will issue the responses.

The Shaanxi HPC's Opinion may reflect a positive effort to implement reforms the SPC announced in the Five Year Reform Program. The Program allows lower courts to request higher courts to handle general questions of the applicability of law, rather than specific factual determinations. How effective these reform efforts will be in practice is unclear. Lower courts seek advisory opinions in part to avoid punishment under court responsibility systems. These systems use criticism, fines, and career sanctions to discipline individual judges for a range of errors, including appellate reversals for legal error. The systems create incentives for lower court judges to seek advance guidance from higher courts before issuing a verdict. Neither the Shaanxi Opinion nor the Five Year Reform Program addresses the problems associated with the use of responsibility systems, and the Five Year Reform Program calls on local officials to strengthen the use of responsibility systems to supervise and manage the judiciary.

For more information, see sections V(c) of the Commission's 2005 Annual Report and V(d) of the 2004 Annual Report, on China's Judicial System.