Use of Advisory Opinions By the Judiciary Draws Media Fire

March 14, 2005

A Guangming Daily article criticized the common practice in Chinese courts called "qingshi," in which a court requests an advisory opinion of a higher court before ruling on a case.

In theory, a judge should make a qingshi request only to clarify legal issues, but in practice judges make such requests to avoid responsibility for deciding cases that involve powerful government agencies. Officials from such agencies often press judges to issue favorable decisions. If judges bow to external pressure in such cases, they may be disciplined by higher court officials for failing to follow the law. If they resist such pressure, judges risk incurring the wrath of Communist Party or government officials. Under these circumstances, judges often use the qingshi procedure to shift responsibility for deciding cases to higher-level courts.

As the article notes, the use of qingshi described above contradicts basic judicial principles. First, it often means that higher-level courts decide cases without the benefit of all the evidence presented at trial. Second, it renders appeals in individual cases essentially meaningless, since the appellate court in effect rules on the merits of the case before any appeal takes place. Third, the practice generally degrades the ability of courts to decide cases independently.