Judicial Reform in China

JUDICIAL REFORM IN CHINA Latest Developments and Potential Challenges

I. General Background for Promoting Judicial Reform

1. International Background: A. Signing and ratifying various international treaties as part of the efforts to join the international community  36 human rights 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. B. Getting full membership in the WTO in 2001 following the entry into 20 agreements and annexes. C. 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.

2. Domestic Background: A. Successful economic reform in the last 30 years with a high growth rate of 9.67% per annum B. Central leadership has been paying more attention to basic needs and social welfare of the citizens (for example, Medicare, housing, education, food safety, environmental protection) under the notion of “serving the people”, “continuous development” and “building harmonious society”. C. High growth of the economy leads the public to seek further protection of their legal rights, thus resulting in more disputes turning into lawsuits.

The “Litigation Explosion” - Cases filed with courts since 1979: 1979 ---- 520,000 1989 ---- 2,600,000 1999 ---- 6,230,000 2000 – 2005: more than 7 million each year 2006 ---- 7,893,144 2007 (first 6 months) ---- 5,200,000.

D. A market economy requires the “rule of law” to govern the growing economy and to adjudicate social conflicts. Thus the judicial system is expected to take more responsibilities in administer justice.

1 3. Legislative Background A. Material amendments to constitutional law:  “Market economy” (article 15 amended in ,1993)  “Rule of law” (article 5, amended in 1999 )  “ Private property protection” (article 16 amended in 1999, article13, amended in 2004): 5,200,000 private enterprises (by 2006) 560,000 foreign invested enterprises (by 2006)  “Human rights protection” (article 33<3>, amended in 2004)

B. Additional important legislation enacted as part of the reform activities:  “Administrative Litigation Procedural Law (1989)  “Judges Law”(1995, amended in 2001)  “Supervision Law” (2006)  “Property Law” (2007)  “Labor Contract Law” (2007)

4. Traditional Challenges to a Young Chinese Judiciary before Reform A. Doubt cast upon the fairness and impartial justice of the court system:  Courts were viewed traditionally as an instrument of class struggles.  Punishment without any intent to protect the legal rights of the accused and innocent in criminal cases.  Local protectionism was common in civil cases involving parties from different jurisdictions.  Inquisitorial system with no cross examination mechanism during a court hearing.  Judicial review system was not adopted until 1991.

B. Negligence in due process: too much attention was paid to sentencing, and procedural rules were not strictly followed  Criminal Procedure Law (1979, amended in 1996)  Civil Procedure Law (1982, amended in 1991)  Administrative Litigation Law (1989)

C. 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. D. 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. E. Judges had no confidence in making the judicial system a public and transparent system:  Some judges at district courts were not qualified.

2  No legal analysis made in most judgments rendered.  Final judgments were not made public and no reference could be made.

F. Judicial credibility put in doubt:  Final decisions were easily challenged and overruled during retrials.  No effective enforcement mechanism for civil judgments.

5. Preliminary summary and future prospect: A. Judicial reform is a natural outcome of political reform following 30 years of successful economic reform in China. B. Judicial reform is an inevitable and unstoppable trend in China since the general public and the central leadership, as well as the judiciary demand it. C. “Democracy, rule of law, freedom, human rights, equality and fraternity are values shared universally” (Premier Wen Jiabao’s speech to foreign journalists) D. Different nations might have different approaches to realize and cherish these values, but these values are most closely related to judicial functions. China's judicial system is no exception. E. Desirable achievements of judicial reform will largely depend on an effective strategy implemented at a suitable pace and adjusted to the real practice in Chinese society. China, in its transforming stage, shall continue to learn from foreign peers.

II. Process and Achievements of Judicial Reform in China

1. The First 5-Year Plan of Judicial Reform (1999 - 2003)

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.

3 2. Second 5-Year Plan for Judicial Reform (2004 - 2008)

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 recognized and applied in court hearings.  Procedural rights to guarantee fair trials enforced by procedural rules.  Confessions of the accused without corroborating evidence should be 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; d) Judicial and legal aid for the accused and disadvantaged plaintiffs:  First NGO legal aid institution founded in 1992; 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. (Beijing, Shandong ) e) Judicial review of administrative decisions:  Cross jurisdiction.

4  Higher court jurisdiction if local government tries to interfere.  Chief officials required to appear in court as the defendant’s representatives.  More emphasis on enforcement of judicial review judgment.  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 governments or their branches.  Courts sustained only 18% of the total administrative decisions. f) Special civil jurisdiction to avoid local protection in commercial cases:  Cross jurisdiction.  Higher court jurisdiction.  Third place jurisdiction.

2). Consistency of Application of Law a).Death penalty review by the Supreme Court since January 1st, 2007  General principle: more prudent judgments and fewer capital punishment trying best to avoid wrong decisions death penalty only for most serious crimes; 2 years suspension

 All death penalty cases must be subject to appellate hearings before being submitted to the Supreme Court for final review. b) Central jurisdiction on international cases:  Cases involving international trade and investment: initial hearing in intermediate court at provincial capital cities since 2001.  Judicial review of international arbitration awards: preliminary decisions on non-recognition or refusal to enforce an international arbitration award must be submitted to provincial high courts and the Supreme Court for final decision. c) Maritime court jurisdiction as experimental practice for “judicial district” conception:  Provincial People’s Congress to appoint judges.  More qualified judges with professional skills.  Adequate financial budget to ensure judicial functions.  Long arm jurisdiction without local protectionism. d) Leading case methods to ensure nation wide consistency in sentencing:  Different from the common law rule of Stare Decisis: Not law making process, just for reference in decisions: “similar facts, consistent judgments”

5  Leading case from the lower court may be declared by the Supreme Court as the model for all other courts.

3). Professional Judiciary a) Selection system and promotional mechanism for judges:  Unified exams for legal profession, including judges, prosecutors and lawyers since 2002;  More experienced lawyers and famous professors joined the judiciary, 7 law professors in the Supreme court as justices and senior judges;  127 judges from lower courts are promoted to judges at higher courts and even justices at the Supreme Court in 2006;  Professional administration of court system, no reporting from lower courts to higher courts any more. b) Adjudication Commission reformed to be professional groups:  Sub-committee of civil and administrative litigation.  Sub-committee for criminal litigation. c) Professional training programs in National Judges College (NJC) and its branches:  10 years’ training of 30,000 senior judges in NJC.  17 NJC provincial branches established to have trained 500,000 times of local judges.  Joint training programs with foreign and HK law schools: LL.M. program with Temple University Law School since 2002, 38 graduated; HK City University Law School from 2008. d) International exchanges with foreign judicial circles and international organizations:  22nd World Law Congress on Rule of Law & Harmony of International Society: over 70 Chief Justices and justices, including Justice Kennedy, participated;  60 joint programs with UNDP, World Bank, ADB, WIPO, CIDA, ABA, AusAID, German CTZ and InWEnt;  Forum for World Famous Jurists in NJC since 2000 Justice Scalia and Justice O'Connor from the United States and Chief Justices from other countries gave speeches to judges in training programs.  Asian Consultation on Due Process program: moot court trial in comparative practice with common law countries and districts in Asia;  45 delegations with 232 judges and professors in NJC sent to more than 10 countries for further study and research;  Exchanges between the two Supreme Courts (U.S. – China) Justice Kennedy, Justice Ginsburg, Justice O’Connor and Justice Scalia visited China; Chief Justice Xiao Yang, Justice Chao Jianmin and Justice Wan visited the U.S.

6 4). Judicial Transparency and Democracy a) Supreme Court issued rules for public trials:  court sessions open to adults (over 18 years old).  exceptions: cases on state secrets, juvenile issues and privacy.  important cases may be televised or broadcasted live on the internet. b) People’s assessor system (layman judge not in robe):  Different from the jury system in the US: With full power as ordinary judges (not presiding trial) to make decisions on fact findings, applying law and sentencing; more in civil cases on family, maritime, IP issues，as well as serious criminal cases.  46,640 of total 55,681 layman judges joined adjudicating 339,965 cases since 2006.  32% of all the cases tried with people’s assessors since 2005.  Professional training provided in NJC and its branches. c) Publication of Judgments and website research:  Case collection published in Chinese by Court Press with discs and databank; ( Monthly Gazette of the Supreme Court)，  Selected cases published in English: China Law Report;  National court website with judgments: chinacourt.org  All the provincial high courts and most of the lower courts 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 d).Dissenting opinions of collegiate bench (three judges) disclosed in judgments;  debate on the issue  first time appeared in Guangzhou Maritime Court in 2002  followed by courts from Shanghai and Beijing

5). Judicial Credibility a).Retrial procedure reform by the upcoming amendment to Civil Procedure Law  Limited reasons for retrial, including: evidence newly discovered, forged evidence, evidence not approved, wrong application of law, trial without due jurisdiction, judgment on unclaimed issues, partial judgment due to corruption……

7  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; b) New civil judgments enforcement measures, including:  2 years’ statute of limitation for application of enforcement after final decision is made (6 months now)  More enforcement actions will take place: longer judicial detention and more fines. imperative report on asset of last year. blacklist in credit system. suspension of immigration rights.  Disputes in enforcement action may be submitted to court hearing.  Non-enforcement in 6 months may be submitted to higher court for new measures.

III. More Challenges Ahead with Potential Efforts for New Reform 12 Issues in Debate

1. Due process 1) How to balance judicial efficiency with due process requirement both in civil and criminal procedures? efficiency vs. quality 2) Is due process also necessary in judicial mediation? (30%) 3) Possibility of plea bargaining?

2. Consistency in application of law: 4) Local judge appointment system: 5) Commercial case jurisdiction is anticipating more judicial district practice. 6) Judicial financial support from local executive to central legislative budget?

3. Judicial credibility 7) Should courts retreat from civil enforcement activity? 8) How to enforce civil compensation for the victims in criminal judgments? 9) How to balance the judicial discretion (activism) and legitimate supervision over judiciary? (relationship with media and local congress)

4. Judicial professionalism:

8 10) Lack of qualified judges in remote and western districts： national standard or local admission? 11) Professional management of judiciary: fewer judges with more assistants? 12) How to retain excellent judges in the judiciary?