Digested below are some developments on the matter of judicial reform in China as of this year (www.der.oas.org/Catedra/Reform%20in%20China.doc).
China has signed 36 treaties on humanitarian matters, labor rights, civil and political rights and rights of refugees; 33 treaties on environmental protection;
11 intellectual property rights treaties; and 10 anti-terrorism treaties. In 2001, it became a member of the WTO. It has signed bilateral agreements on extradition and judicial cooperation in civil and criminal matters with more than 80 countries, including Australia, Argentina, Brazil, France, Korea, New Zealand, Peru, Portugal, Russia, South Africa, Spain and the United States.
China’s economic growth rate for the past 30 years has been 9.67% per annum. As it progresses, and as the government issues more and more regulations in the fields of Medicare, housing, education, food safety, and environmental protection, more and more lawsuits are being filed.
The “litigation explosion” I China is shown by the fact that court cases have escalated from 520,000 in 1979 to 5,200,000 in the first 6 months of 2007. From
2000 to 2005, more than 7 million cases were filed each year.
The Constitution was amended in 1993, 1999, and 2004 to face the modern demands of the market economy, the rule of law, private property protection, and human rights. In 2006, there were 5,200,000 private enterprises and 560,000 foreign-funded enterprises.
New laws were likewise adopted: “Administrative Litigation Procedural Law (1989); “Judges Law” (1995, amended in 2001); “Supervision Law” (2006); “Property Law” (2007); and “Labor Contract Law” (2007).
In 1991, the judicial system was reviewed to address the criticisms of young Chinese lawyers, to wit: courts were viewed traditionally as an instrument of class struggles; punishments without any intent to protect the legal rights of the accused and the innocent in criminal cases; local protectionism was common in civil cases involving parties from different jurisdictions; negligence in due process; too much attention was being paid to sentencing; procedural rules were not strictly followed; judicial profession was not respected; judges were viewed as public servants because of a lack of qualified judges after 20 years of suspended legal education; judicial system was administered in the same manner as governmental authorities: lower courts reported to higher courts for final decisions on complicated or novel cases; judges had no confidence in making the judicial system a public and transparent system; some judges at district courts were not qualified; no legal analysis made in most judgments rendered; final judgments were not made public and no reference could be made; final decisions were easily challenged and overruled during retrials; no effective enforcement mechanism for civil judgments.
The Criminal Procedure Law was adopted in 1979 and amended in 1996. The Civil Procedure Law was adopted in 1982 and amended in 1991. The Administrative Litigation Law was adopted in 1989.
The judiciary-related provisions of the First 5-Year Plan of Judicial Reform (1999 - 2003) were as follows:
“A. Goals and demands:
1). Full establishment of three trial procedures.
2). Independence of the judges and collegiate bench in trials.
3). Rebuilding judicial credibility.
4). Reconstruction of a professional judiciary.
5). Better facilities for courts.
B. Specific measures
1) The laws of criminal, civil and administrative litigation procedures are interpreted by the Supreme Court;
2). single judge trial procedure introduced for higher judicial efficiency;
3). sentencing power given to the collegiate bench and decided by majority vote;
4). cross examination introduced to court hearing and arguments;
5). establishment of enforcement offices at all levels of courts;
6). full law school education required for new judges;
7). court house reconstructions.”
The judiciary-related provisions of the Second 5-Year Plan for Judicial Reform (2004 - 2008) were as follows:
“A. Goals and Demands:
1) To ensure judicial fairness and neutrality as administered by the courts.
2) To improve judicial credibility with more methods to enforce civil judgments and define retrial conditions for civil litigation.
3) To ensure consistent application of law after joining the WTO.
4) To encourage more judicial transparency.
5) To promote judicial professionalism by attracting the .best legal professionals to courts
6) To increase judicial efficiency in dealing with the “litigation explosion”.
B. Concrete Measures
1). Judicial Neutrality Administered by Impartial Courts
a) Legitimate relationships with the local congress.
b) Attempt to balance the prosecutors and defendants in criminal procedures.
c) Human rights protection of the accused in criminal procedures”
The principle of presumption of innocence is recognized in court hearings.
Confessions of the accused “without corroborating evidence” are excluded from criminal cases in order to eliminate possible cruel treatment of the defendant during the investigation.
Approximately 6000-4000 persons were declared innocent each year between 2000 and 2004; 2162 persons in 2005 and 1713 persons in 2006;
The first non-governmental legal aid institution was founded in 1992 (The Center for the Protection of Rights for Disadvantaged Citizens (CPRDC) in Wuhan University Law School). 41,412 criminal suspects were provided with free legal aid services in 2006. 282,581 plaintiffs in civil litigation benefited from judicial aid. RMB 1.2 billion was waived or deducted from the litigation fees. Several local courts provided compensation to the victims in criminal cases when the accused had no ability to pay for civil damages.
In 2006, 17018 administrative decisions were declared invalid or illegal.
Judicial review resulted in the changes of 34% of total 92,613 decisions made by the government and their branches. Courts sustained only 18% of the total administrative decisions.
Death penalty is reviewed by the Supreme Court since January 1st, 2007. A 2- year suspension is enforced. All death penalty cases must be subject to appellate hearings before being submitted to the Supreme Court for final review.
A uniform exam for the legal profession (judges, prosecutors and lawyers) was adopted in 2002.
The National Judges College (NJC) takes charge of the continuing professional education of judicial personnel. For the past 10 years, it has trained 30,000 senior judges. Some 17 NJC provincial branches have conducted 500,000 trainings for local judges. It has conducted joint training programs with foreign and Hongkong law schools, namely, LL.M. program with Temple University Law School since 2002 (38 graduated) and HK City University Law School since early 2008.
Trials are open to the public, except cases involving state secrets, juvenile issues and privacy issues. Important cases may be televised or broadcast live on the internet.
A “people’s assessor system” (layman judge not in robe) has been adopted.
A layman judge has full power as an ordinary judge (but not to preside in a trial). He may make findings of fact and apply the law in family, maritime, and Intellectual property cases, as well as serious criminal cases. Since 2006, a total of 46,640 out of 55,681 layman judges have adjudicated 339,965 cases.
Some 32% of all cases were tried with people’s assessors since 2005. The professional training of the people’s assessors is provided by the NJC.
The Monthly Gazette of the Supreme Court and the China Law Report publishes the decisions of the Supreme Court. The national court website likewise publishes the decisions (chinacourt.org). All the provincial high courts and most of the lower courts have opened their own websites: bjgy.chinacourt.org; whfy.chinacourt.org; Intellectual Property Rights Website - chinaiprlaw.cn; International & Maritime Trial Website - ccmt.com.cn or ccmt.org.
The Civil Procedure needs further review to address the following issues: retrial procedure reform; newly discovered evidence, forged evidence, evidence not approved, wrong application of law, trial without due jurisdiction, judgment on unclaimed issues, partial judgment due to corruption, statute of limitation for retrial (2 years); jurisdiction for retrial by higher court; retrial starts from intermediate court; high courts and the Supreme Court may retry their own decisions; new civil judgments enforcement measures; 2 years’ statute of limitation for application of enforcement after final decision is made (6 months now); longer judicial detention and more fines; imperative annual report on assets; blacklist in credit system; suspension of immigration rights; and others.
More Challenges Ahead with Potential Efforts for New Reform 12 Issues in Debate
Other issues that should be addressed are: due process; how to balance judicial efficiency with due process requirement both in civil and criminal procedures? efficiency vs. quality; is due process also necessary in judicial mediation? (30%); possibility of plea bargaining; consistency in application of law; local judge appointment system; commercial case jurisdiction; judicial financial support from local executive to central legislative budget; judicial credibility; should courts retreat from civil enforcement activity; how to enforce civil compensation for the victims in criminal judgments; how to balance the judicial discretion (activism) and legitimate supervision over judiciary; relationship with media and local congress; judicial professionalism; lack of qualified judges in remote and western districts; professional management of judiciary; need of judges for more assistants; how to retain excellent judges in the judiciary.
May I digest the article entitled “Chinese Judicial System and Reform” written by Dr. Zheng Qiang (http://www.iolaw.org.cn/en1/art1.asp), for purposes of legal research of the visitors of this blog. He is the Sectary-general of the Public Law Center of the Institute of Law of Chinese Academy of Social Sciences.
The People's Court exercises judicial power in China. Prosecutorial power is exercised by People's Procuratorate. The investigative organizations are the Public Security Organization and the State Security Organization. The Judicial Administrative Organization (JAO) supervises the administrative affairs of the judiciary. The prison system is subject to the supervision of the JAO. The special organizations of lawyers, notaries public, and people's mediation and arbitration are supervised by the JAO. The abovenamed entities constitute the People's Judicial System of China.
The Constitution of the People's Republic of China provides that all powers of state belong to the people and the organizations by which the people exercise their state powers are the National People's Congress and its Standing Committees. The administrative organization (government), judicial organization (court) and procuratorial organization (procuratorate) are elected and supervised by the People's Congress.
In the central state organizations, the State Council is the Central People's Government. The State Council is the executive organization of the Central People’s Government. It is the supreme administrative organization. The Supreme People's Court is the supreme judicial organization. The Supreme People's Procuratorate is the “legal supervision organization” and the supreme procuratorial organization. Assisting the Central Military Committee is the Supreme Military Organization which is in charge of the military force of the state. The abovenamed entities four enjoy equal positions.
The departments such as the Ministry of Public Security, the Ministry of State Security and the Ministry of Justice under the State Council. They are administrative organizations. But the former two are regarded as organizations with justice character for their functions such as criminal investigation, detention, preliminary examination and arrest; the Ministry of Justice is also with character of justice for its function of being in charge of prison, lawyer, notary and people's mediation.
At the local level, the People's Court, Procuratorate and Government theoretically enjoy the same equal positions and are directed by their respective People's Congresses. But in reality, the position of the People's Court and People’s Procuratorate at the local level is lower than their counterparts in the People's Government.
According to the Constitution and the Organic Law of the People's Court, the Judiciary is composed of the Special People's Courts and the Supreme People's Court and the local people’s courts.
The local People's Courts of different levels are:
1) the local People's Courts which are set up at the levels of the counties, the autonomous counties, the cities without districts, and the districts of cities;
2) the Intermediate People's Courts which are set up at the levels of prefecture, city and autonomous state;
3) The higher People's Courts that are set up at the levels of Province, Autonomous Regions and municipalities directly under the Central Government.
The special People's Courts are the Military Courts and the other special courts created by law. The levels of the Military Courts are:
1) The local Military Court;
2) The Military Courts of greater military region and categories of troops.
3) The Military Court of the People's Liberation Army of China.
The other special courts are the Maritime Court and Railroad Transportation Court.
The Supreme People's Court is set up in capital Beijing.
According to the Constitution and the Organic Law of the People's Procuratorate, the People's Procuratorate is the “legal supervision organization of the state”. Its system consists of the Supreme People's Procuratorate, the local People's Procuratorate of different grades and special procuratorates such as the Military Procuratorate.
The Supreme People's Procuratorate is set up in capital Beijing.
The local People's Procuratorate of different grades are:
1) The Procuratorates of provinces, autonomous regions and municipalities directly under the Central Government;
2) The Sub-Procuratorate of provinces, autonomous regions and municipalities directly under the Central Government;
3) The procuratorates of autonomous prefectures, municipalities directly under provinces, and autonomous regions;
4) The Procuratorate of counties, autonomous counties, cities and districts under municipalities.
The special People's Procuratorates are the Military Procuratorate, Railroad Transportation Procuratorate, which are corresponding to the special people's courts.
According to Chinese law, the Public Security Organizations and the State Security Organization are parts of the administrative organizations of the country. They are in charge of criminal investigations. There are local Ministries of Public Security and local State Security Organizations in the whole country;
According to the law of China, its Ministry of Justice is the judicial administrative organization of the country.
Per Article 94 of Criminal Law of China, “judicial personnel” refers to the persons who have duty to investigate, prosecute, judge, control and oversee the prisoners”.
Per the Law of Judges and the Law of Prosecutors promulgated on 28th February 1995, the qualification and appointment of judges and prosecutors are as follows:
1) For new judges and prosecutors:
a) To a national of the People’s Republic of China.
b) More than 23 years old;
c) Supports the Constitution of P.R.C.
d) Have good political and professional qualification and good conduct;
e) In good health;
f) A college graduate -- either in law or in other majors provided they have the knowledge of law and have worked for more than 2 years in relation thereto; or possesses a bachelor's degree in law and has worked more than 1 year; but those who have obtained a master’s degree or a doctor’s degree in law are not be subject to the 1-year work experience requirement.
2) For judges and prosecutors currently in office, who had been appointed as judges or prosecutors before the Law of Judges and the Law of Prosecutors came into force and who do not possess the formal schooling required above must be trained to satisfy the demands of the two laws within time limit fixed by law; or, they would be dismissed or transferred to other relevant positions.
A person who has been convicted of a crime or who has been discharged from public employment cannot be appointed in the judicial system.
According to the current Constitution of P.R.C., the guiding thought of the People's Judicial System is Marxism and its Chinese edition, i.e. the theory of Deng Xiaoping, to wit:
“1) To uphold the thought line of emancipating the mind and seeking the truth from facts;
2) To uphold the rationale that the superstructure serves the economic basis;
3) To uphold the uniform principle of legal systems;
4) To uphold the aim of serving the people wholeheartedly;
5) To uphold the leadership of the Communist Party.”
The basic principles of the People's Judicial System are:
“1) The principle of judicial sovereignty;
2) The principle of judicial uniformity;
3) The principle of judicial independence;
4) The principle of judicial check;
5) The principle of judicial democracy;
6) The principle of judicial equality;
7) The principle of judicial realism;
8) The principle of judicial convenience”.
The judicial procedural system is divided as three parts: civil procedure, criminal procedure, and administrative procedure.
The first procedural code was criminal procedural law adopted in 1979 and revised in 1996. The revised edition of the criminal procedural code has 225 articles and embodies the spirit of reform for making use of the advanced legal experiences of the west countries such as the doctrine of the presumption of innocence and so on.
In 1982, the Code of Civil Procedure (trial implementation) was promulgated. The code was revised and simplified in 1991 with 270 articles.
The Code of Administrative Procedure was issued in 1989 and came into force in 1990. It regulates the procedure for administrative and disciplinary cases filed by citizens against public officials and employees.
The local protectionism and the department protectionism are so serious that they make the local courts can not exercise their judicial powers independently and make lots of effective judgments, especially the judgments of economic cases, couldn't be enforced. Why is it so terrible? Because the local power organs produced all the local courts the people the local power organs appoint all congress and the local judges too. Meanwhile, the local departments of the Communist Party and governments can control and manage those judges and the financial budgets of the local courts. So the local departments of the Communist Party and governments have many approaches to intervene the particular cases which should be handled independently by the courts. In this way, the local courts have become the tools just to be used to defend the local or department interests. For example, due to its personnel and matter interests are all subject to the railroad department, people regard the Railroad Transportation Courts as the watchdogs of the railroad department.
The former is that the court leaders, who do not try case directly, make the judgement for the case by the administrative powers and lead to the separation of trial and judgement. The last one is that the lower courts often report the hard case they think to the upper before the judgment is made, and the upper courts often direct how the case should be judged to the lower court, in this way the appeal right of litigants are damaged completely.
The organic laws of the People's Court and the People's Procuratorate only make general regulations for the judges and prosecutors, but have no concrete professional, moral and mental demands in a long time. The judges and prosecutors are treated as common cadres of Party and government department with lower treatments. This leads the generalization of judge's quality. Though the laws of judges and prosecutors promulgated in 1995 made some concrete provisions for the qualifications of judges and prosecutors, there needs some time to be strictly carried out of them.
The court, procuratorate, investigative and judicial organizations have their own systems which are independent to each other. The qualification exams for the judges, prosecutors and lawyers are held respectively, without the uniform demands and standards. There are no uniform legal safeguards to judges and prosecutors also remain a problem.
The mechanism of supervision from the People's Congress is not perfect at present. One of the channels for the people to appeal is to write to the department for letter set in the People's Congress. But the department is called, as "the transfer post" for it has no positive power to help the people who write to it but transport the letters that rarely noticed by the court. The litigants often feel very difficult to find the access to justice.
The above problems are seriously damaging not only the judicial system of China, but also the society and people's psychology as well. So it has aroused the great attentions of Chinese people and their leading levels. The media have reported many important meetings, documents and reform measures on the subject. We can say that, corresponding to the tide of the world today, a movement of judicial reform has begun in China. Many reform thinking have been made for the present judicial system, the following are the consensus reached by the most people.
1) To reform the personnel and financial system of the judicial system, namely the persons, finance and equipment must be controlled vertically by the Central in order to safeguard the judicial organizations to exercise their functional powers independently and fairly and get rid of the local intervene.
2) For overcoming the protectionism from the local and government department, a proper reform must be done to the establishment of the courts. For example, to make some judicial areas to which some circuits can be set up to handle the appeal cases and review the death penalty cases. To close all the special courts except the military court, the cases handled by them can be tried by the circuit trial from the higher court or the special trials.
3) To strengthen the grassroots courts, their detached trials, the organizations of arbitration and mediation, in order to exert their functions completely. The aim is to make most civil and commercial cases be solved by arbitration or mediation, to make most criminal cases be tried in the grassroots courts that the courts up the intermediate grades could focus on the important and complicated cases for the first instance and appeal. To raise the qualifications of judges and prosecutors and decrease the amounts of them, while increase the amounts of judicial assistants.
4) To set up some special trials in the grassroots court, such as the trials respectively for juvenile, family and employment. To assimilate some persons form social associations as part- time judges and they can handle special cases together with the full-time judges.
Broadly speaking, there are four fields of Chinese judicial system concerning judicial systems of Mainland China, Hong Kong, Macao and Taiwan. This article just refers to the judicial system of Mainland China.