Professional Documents
Culture Documents
Judiciary
Judiciary Organs ()
Courts();
Procuratorates ();
Public security/police () State security (); The system of judicial administration (); Notary public (); Prison administrative system.
Constitutional Position Art 123 to exercise the adjudicative power of the state exclusively Status has risen significantly; have played an increasing role in society Statistics on cases handled (SPC Annual Work Report 2009 to NPC, p198) Courts have expanded beyond orthodox role as instruments of proletarian dictatorship meting out punishment to criminals and enemies of people now expected to serve as impartial arbiters of civil and commercial disputes and administrative law disputes between different types of parties Reform efforts of SPC to make courts more dignified institutions Judges gowns, judges gavels, lawyers gowns, etc. Reform efforts of SPC to promote institutionalization and professionalization of the judiciary
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Courts: Problems
Judicial corruption and abuse of judicial power Local protectionism/ favoritism Some local and departmental leaders have been found illegally meddling in the enforcement of court orders to protect their vested local and departmental economic interests. Persistent lack of professionalism Solutions Judicial reform: three rounds of five-year-reform outlines (19992013) Has reform really solved the problems? Gaps in implementation and unbalanced implementation in different localities in China Major constraints on reform: to be found in the current political structure
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Divisions
Reception Division Civil, Criminal, and Administrative Divisions (adjudication) Enforcement Division (enforcing judgments and awards) Supervision Division (receiving petitions, supervising adjudications)
Staffing
President (), Vice-presidents,
Division Heads (), Judges (), Deputy judges/Assistant judges () Clerks ().
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Enforcement
Judgments, arbitral awards, payment orders, etc
be subject to supervision by the peoples courts at higher levels. (Art 127 of Con; Article 17 of Organic Law) Methods Issuing guidelines to lower courts (replies, notices, instructions, etc) Training of judges: SPC operates the National Judges College Ongoing reform (textbook, pp188-89)
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committees (PLCs) within each party committee at various levels (consisting of heads of judicial organs, judicial administrative organs, civil affairs administrative organs at local levels)
A significant limit on judicial autonomy No legal basis for this relationship, largely a policy matter
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Party Committee.
Powers
Partys leadership within the court. Concerned with personnel (organization). Ideology Three Represents, Three Supremes Policy (major initiatives, matters relating to social stability, politically
significant).
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128 of the Constitution, Article 17 of the Organic Law, Articles 5 and Chapters 2, 6 of Law on Supervision of PCs 2006)
Law)
PCs at various levels approve judicial appointments Presidents () of the courts are appointed/ removed by PCs All other judges appointed/ removed by the standing committees of PCs
Annual Report Chief Judges (Presidents of the Court) make annual reports to the PCs PC deputies can address inquiries to the courts Individual Case Supervision: PCs can inquire into case decisions or rulings
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Budgetary Control
Funded by local governments Supervised by local PLCs Reform to introduce centralized funding (textbook p209)
Local Protection
Cases involving local SOEs Cases involving major local private enterprises
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Article 126: The people's courts exercise judicial power independently, in accordance with the provisions of the law, and are not subject to interference by any administrative organ, public organization or individuals. Article 127: The Supreme People's Court is the highest judicial organ. The Supreme People's Court supervises the administration of justice by the people's courts at various local levels and by the special people's courts. People's courts at higher levels supervise the administration of justice by those at lower levels. Article 128: The Supreme People's Court is responsible to the National People's Congress and its Standing Committee. Local people's courts at various levels are responsible to the organs of state power which created them.
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as the states adjudicating body exercising judicial power exclusively and independently (Con, Art 126; Organic Law, Art 4)
Such independence is against interference by any administrative organ, public organization or individual, but not by legislature and political parties (Con, Art 126)
courts produced (judges appointed) and supervised by PCs, responsible to PCs (i.e., no separation of powers): Con, Art 128; Organic Law, Art 17 o work of courts led and guided by PLCs at corresponding levels of local party committee o interference from local governments as sources of funding for local courts
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Courts: Operation
Collegiate bench (): consisting of odd number of
members, usually three Presiding judge () + judges (), OR Presiding judge + judge + peoples juror (), OR Presiding judge + peoples jurors To hear most cases except simple and minor cases where the sole-judge
bench () is applied.
Trial proceeding
Inquisitorial in nature but more adversarial-oriented nowadays Open trial except cases involving state secrets, privacy, etc.
Judgments
Facts + laws, Usually a few pages only, without in-depth legal analysis, But lately moving towards incorporating more reasoning and analysis.
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composed of judges or a collegial bench composed of judges and peoples jurors. Only simple civil cases, minor criminal cases and cases otherwise provided for by law may be tried by one judge alone.
The president of the court or the chief judge of a division
shall appoint one of the judges on the bench to act as the presiding judge. (Article 10 of the Organic Law of Peoples Courts, amended in 2006)
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members of a collegial panel shall equally participate in the hearings, deliberations and judgments of cases, and perform their judicial functions according to law. (Art 1) A collegial panel shall be composed of judges (including deputy judges) or composed of judges (including deputy judges) and randomly selected peoples jurors. Collegial panels with relatively fixed members shall maintain regular exchange among the members. If peoples jurors participate in a collegial panel, they shall be randomly selected from the list of peoples jurors. (Art 2) Except cases submitted to the Adjudicative/Judicial Committee for discussion, a collegial panel shall make a judgment or ruling of a case on which a unanimous opinion or a majority opinion of its members is reached during case deliberations. (Art 7)
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a decision on organizing the relevant judicial personnel to conduct joint discussions of the following cases, in which the members of the collegial panel shall participate:
1. A major, difficult or complex case or a case of a new type; 2. A case where the members of the collegial panel dissent greatly in the fact finding or the application of law; 3. A case where the collegial panels opinion may be inconsistent with the judgment or ruling of a precedent case of the same type rendered by the court or the superior court; 4. A mass dispute case with intense complaints from the parties; and 5. Any other case, the discussion of which the President or the divisional chief judge deems necessary at the request of the presiding judge.
Discussion opinions of the above-mentioned cases shall be references for the collegial panel, and shall not affect the collegial panels rendering a judgment or ruling in accordance with law. (Art 7) The presidents, vice presidents, divisional chief judges and divisional deputy chief judges of the peoples courts at all levels shall participate in collegial panels to hear cases, and gradually increase the number of cases heard by them. (Art 8)
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which shall implement the principle of democratic centralism. The task of the AC shall be accumulation of judicial experience and to discuss important or difficult cases and other issues relating to adjudication. The presidents of courts shall preside over meetings of the ACs. (Article 11, Organic Law of Peoples Courts) o All three procedural laws (civil, criminal, and administrative) have given details to the functions of ACs:.
Rationale
o insufficient professional qualifications and standards of judges; more
qualified and experienced judges on ACs can offer assistance and exercise supervision (i.e., quality control)
Problems
o decision comes first, trial to follow; accountability unclear
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Reforms: Specific initiatives before 2010 reform of the presiding judge system: individual judges and collegiate
bench given more power to decide cases without approval of division chief, president, or AC reform under revised Criminal Procedure Law of 1996: Art 149 the collegiate bench shall refer the case to the president of the court to decide to submit the case to AC for discussion and decision. The decisions of AC must be implemented by the collegiate bench. (now Art 180, revised CPL of 2012) reform under SPCs first Five-Year Reform Program (1999-2003): collegiate bench has right to refer case to president to decide to submit case to AC (para. 2 (20)), but without differentiating criminal and civil procedures reform under SPCs second Five-Year Reform Programme (2004-08): AC to hear directly major or difficult cases or those with general applicability; president or division chief to join AC; creation of separate ACs for civil and criminal cases
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Adjudicative Committees of Peoples Courts (2010) Stable rather than fluctuating memberships President, VPs, division heads, special committee members: considered more experienced, qualified and politically reliable Most members of AC are concurrently court Party Committee members, with power to consider promotion of judges Clarified types of cases to be referred collegiate bench has major differences in reaching a decision; relevant legislation in unclear or there are difficult issues in the application of law; results of case may have a major impact on society; a new type of case that will set an example for future cases. Clarified AC proceedings who decides to refer: The collegial bench may submit the case to the president to decide whether to submit the case to AC (Art 11) presidents preside over meetings of AC (Art 14) collegiate bench to prepare a full written report on the trial of the case which reviews the facts and evidence (Art 12) a written report required to be provided to AC members before meetings. (Art 12) presiding judge to make a report to the AC meeting, to be supplemented by other members of the collegiate bench (Art 15) AC decision to take form of resolution (Art 17) by majority vote (Art 16)
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Profile of Judges
Judicial quality is very unbalanced in China Some are retired military assigned to courts (common in 1980s and early 1990s) East and Rich Areas
Most judges are required to have a postgraduate law degree. Judges are more decently paid, and have better benefits (including housing,
medical subsidies, etc). Judges in first-tier Chinese cities (i.e. Beijing, Shanghai, Shenzhen, Guangzhou) have more education and training opportunities abroad and hence, they are more attuned to handling foreign-related disputes. SZ and SH Intermediate Courts have a number of HKU MCL graduates.
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Judges Gowns
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Qualifications of Judges
HPCs or SPC. Postgraduates: 1 year experience; but 2 years experience if work for provincial HPCs or SPC. Court presidents and vice presidents are selected from judges who have more experience (no illustration as to more experience, common loose-ends of most Chinese laws, problems for implementation) .
After 2002, new judges must pass the National Judicial Examination
Famous as most difficult exam in China, passing rate at 6-7%. Same situation in TW, Japan and South Korea.
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financing of courts.
Third-Five-Year-Reform-Plan (2009-2013)
The new campaign of adjudication for the people (popular justice) launched in
2009
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government officials
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power
New pressures from media reports and popular protests Remaining interference in major and complex cases by
effects of adjudication o when judges are threatened to be held accountable for erroneous rulings o when personnel control by Party and unsatisfactory terms of service of judges still persist
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judgments
o possibility of re-opening cases through adjudicative supervision
simple civil cases and minor criminal cases (Organic Law, Art.10)
Presidents act
o arguably with legal basis o who should decide whether to refer?: collegiate bench may submit a case
to president for him to decide whether to submit the case to AC (SPC 2010 Opinion, Art 7 and Art 11)
Organic Law, Art 17) o but entailing lack of transparency and depriving parties of right to appeal
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PLCs reversal of judgment: controversial -o PLCs supervision: no formal legal basis, largely a policy matter o how to supervise?: through providing general policy guidance, nominating
personnel, supervising work of courts o whether reversal of judgment falling within the above scope?: should not decide any specific cases for judges
depending on whether procedural requirements were followed -o LPCSC at corresponding level to appoint and remove all judges other than
courts president (Organic Law, Art.35; Judges Law, Art.11) o but such appointments and removals must be upon recommendation of courts president (Judges Law, Art.11)
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