Annual Report on China's Judicial Reform 2014 by United Nations Development Programme (UNDP) China

The information and designations used and the presentation of the material throughout this publication do not in any way imply the expression of an opinion on the part of the United Nations Development Programme or the United Nations System in China, concerning the legal status of any country, territory, city or area or of its authorities, or concerning the delimitation of its frontiers or boundaries. The presentation of the data and information contained in this publication, and the opinions expressed therein, do not necessarily reflect the position of the United Nations Development Programme or the United Nations System in China. Published by the United Nations Development Programme ÂŠ 2015 All rights reserved

Annual Report on Chinaâ&#x20AC;&#x2122;s Judicial Reform 2014* By Xu Xin, Huang Yanhao, Wang Xiaotang

* Note: A short version of the original Chinese report was published on Tribune of Political Science and Law, Issue 2, 2015

FOREWORD

Strengthening the rule of law and enhancing access to justice for all, including the most marginalized, are cornerstones to achieve people-centered sustainable development. UNDP has been supporting China’s judicial reforms since the first five-year judicial reform programme was launched by the Supreme People’s Court in 1999. Throughout the four five-year judicial reform programmes, UNDP has been assisting the Supreme People’s Court on a number of key priorities. 2014 has been a critical year for the rule of law in China. In July, the SPC issued its Fourth Five Year Judicial Reform Plan (2014-2018), marking the beginning of a new round of judicial reforms for the next five years. In October, the Decision of the Fourth Plenary Session of the 18th CCPC addressed the topic of “ruling the country according to the law” for the first time in the Party’s history, reflecting the centrality of judicial reforms to achieve progress on other fronts. The report presents and analyzes major developments of China’s judicial reform occurred over the past year, and reflects on its possible future directions. It highlights general reform measures as well as specific measures in the court system, the procuratorate, and judicial administration, with policy recommendations moving forward. UNDP is pleased to have supported Professor Xu Xin and his research team in the preparation of this comprehensive review. We hope that the report and the views it offers will be of use to policy makers, international and national legal experts, scholars and practitioners, and all those with an interest in judicial reform in China.

Agi VERES

Country Director

UNDP China

Contents

Introduction ………………………………………………………… 1 I. General Reform Measures …………………………………… 3 The Master Plan of the New Round of Judicial Reform ……………………… 1 ii. Advancing Judicial Reform through Pilot Programs …………………………… 6 iii. Revision of the Criminal Code …………………………………………………… 9

iv. Revision of the Administrative Procedure Law ……………………………… 11 v. Regulating Assets Disposition Procedure in Criminal Cases ……………… 13 vi. Combatting Corruption Requires Systemic Change ………………………… 14 vii. Pilot Program and Authorization Reform for Expedited Procedures in Criminal Cases …………………………………………………………………… 16 viii. Improving the Parole and Commutation System ……………………………… 17 ix. Reform of Petitioning Involving Legal Action ………………………………… 18

II. Reform Measures in the Court System …………………… 21 i.

Pilot Reform of Judicial Officials’ Ratio-Quota Mechanism ………………… 21

ii. Establishing Cross-Administrative Regional Judicial Organs and Circuit Courts under the Supreme People’s Court …………………………………… 23 iii. Establishing Intellectual Property Rights Courts ……………………………… 25 iv. Abolishing Performance Ranking in the Court System ……………………… 26 v. Popularizing the Reform of Standard Sentencing …………………………… 27 vi. Correcting Miscarriage of Justice Cases ……………………………………… 28 vii. Optimizing the Enforcement Mechanism ……………………………………… 30 viii “Rectification Movement” and Strengthening Judicial Oversight …………… 31

III. Reform Measures of the Procuratorate …………………… 32 Deepening the Reform of People’s Monitors Practice ……………………… 32 ii. Promoting Transparency in Procuratorate Work ……………………………… 33 iii. Improving the Review of Criminal Case Appeal ……………………………… 34 i.

iv. Strengthening Internal Monitoring ……………………………………………… 34

IV. Reform Measures for Public Security and Judicial Administration ……………………………………… 36 Comprehensively Deepening Public Security Reform ……………………… 36 ii. Strengthening Systemic Reform of the Supervision of Lawyers …………… 36 i.

iii. Improving Industry-Based and Profession-Based People’s Mediation System ………………………………………………………………… 38 iv. Enhancing the Quality of Legal Aid …………………………………………… 38 Conclusion: Establishing a Constitutional Review Mechanism ………………… 39

A new round of judicial reform began in 2014.

the judiciary; setting up a unified financial

As the starting point of a new round of reform,

management of city-level courts and

2014 was primarily a year of formulating and

procuratorates; and imposing case-handling

launching new reform measures. The Third

accountability on the presiding judge and

Plenary Session of the 18th Communist Party

leading procurator. Upon approval of the CPC

of China (CPC) Central Committee adopted

Central Political and Law Affairs Commission,

the Decision on Major Issues Concerning

pilot programs in judicial reform were also

Comprehensively Deepening Reforms, which

launched in the provinces of Guangdong,

laid out a comprehensive plan for reforming the

Jilin, Hubei, Hainan, Qinghai, and Guizhou.

judicial system, with a focus on substantively

In December, the 7th Meeting of the Central

reducing the interference of local authorities

Leading Group of Comprehensively Deepening

and the executive branch. Concrete programs

Reforms reviewed and approved the Pilot

for judicial reform were gradually released in

Program for Establishing Circuit Courts of the

2014.

Supreme People’s Court and the Pilot Program for Establishing Cross-Administrative Regional

In June, at the 3rd meeting of the Central

People’s Courts and People’s Procuratorates.

Leading Group of Comprehensively Deepening

The 8th Meeting of the Central Leading Group

Reforms, the Group reviewed and adopted

reviewed and approved the Opinions on

the Framework Opinions on Several Issues

Further Regulating the Disposition of Assets

Concerning the Pilot Program of Reforming

Related to Criminal Proceedings.

the Judicial System and the Working Plan of Shanghai City Judicial Reform Pilot Program.

Although the above-mentioned directives

In July, the Supreme People’s Court issued

and specific programs were initiated, the

the Outline of the Fourth Five-Year Reform

preparation and implementation of this

of Peoples’ Court (2014-2018) (hereinafter

new round of judicial reforms was by no

“Fourth Five-Year Outline”), which provided

means a smooth process. For example,

a general direction for reforms as well as

the implementation of the judges’ ratio-

concrete tasks for the court. Thereafter,

quota system encountered many difficulties,

two pilot reform plans were adopted in

and the positioning of the cross-regional

Shanghai: the Implementation Plan of the Pilot

courts and circuit courts under the Supreme

Program for Reforming the Judicial System

People’s Court was not clearly defined. These

of Shanghai Higher People’s Court and the

deficiencies reflected a lack of preparation and

Implementation Plan of the Pilot Program for

a strong resistance to reform measures. To a

Procuratorate Reform in Shanghai. Specific

great extent, this was attributable to reforms

pilot reform measures include: establishing

touching on deep-rooted issues in the judicial

a judicial personnel quota system; creating a

system involving controversial adjustments of

commission for the selection and discipline

special interests. In addition, many of the reform

of judicial officials; ensuring job security of

measures require support and coordination of

Annual Report on China’s Judicial Reform 2014

Introduction

Annual Report on China’s Judicial Reform 2014

other agencies outside the judicial system in

where the Congress highlighted that: “the rule

their implementation, involving a large number

of law is the Party’s fundamental approach to

of personnel and also huge geographical

leading its people and governing the country”.

discrepancies. Moreover, “close-door” reforms

In 1999, this principle was incorporated into

limited the public’s full access to information

the Constitution as “practicing rule of law and

about the reforms, and it was also difficult for

building a socialist country of law and order”.

scholars to get information in order to conduct

Since then, the “rule of law” has never changed

evidence-based research. All these factors

in the government’s verbal, policy, or theoretical

contributed to a delay in formulating unified

statements. Yet, in the thirty years since the

and feasible action plans, and challenges in

reform and open-door policy was adopted, bad

implementing approved programs.

governance in violation of the Constitution, administrative actions taken against the

For the first time in the history of the CPC,

law, the phenomenon of placing the Party

the 4th Plenary Session of the 18th Central

above the law, and entrenchment of vested

Committee held in October 2014, identified

interest groups have all become rampant. All

the “rule of law” as its main agenda item. The

these phenomena indicate that whether the

meeting adopted the Decision Concerning

Constitution can function effectively as the

Several Major Issues in Comprehensively

fundamental principle of governance does

Advancing Governance According to Law

not depend on the adoption of legal slogans,

(hereinafter “Decision”). The Decision

but rather on the actual enforcement of the

advocated for “governance according to the

Constitution and the laws, and the enactment

Constitution”, and mapped out implementation

of accountability measures in response to

measures on scientific legislation, strict

violations of the Constitution. Consequently,

enforcement, judicial fairness, citizens’

in order to realize the rule of law, governance

abidance to the law, professional capacity

by the Constitution, and substantive judicial

b u i l d i n g , a n d s t r e n g t h e n i n g t h e C P C ’s

reform under this framework, the pressing

leadership over the promotion of the rule of

priority would be to establish a mechanism of

law. Although the Decision had a positive

constitutional judicial review.

impact on advancing the rule of law and judicial reforms in China, whether it will result in realistic reform programs, whether these programs will be implemented, and what their real effect on China’s progress towards the rule of law will be remain to be seen. Emphasizing the rule of law is not equivalent to actually promoting, let alone realizing, rule of law in actual practice; likewise, emphasizing “governance according to the Constitution” is not equivalent to obeying the Constitution or realizing constitutional democracy. The term “rule of law” was mentioned for the first time in 1997 during the CPC 15th National Congress,

i. The Master Plan of the New Round of Judicial Reform

and (7) establishing a categorized personnel management system for police commanders, police officers, and police technical staff.

In February 2014, the 2nd meeting of the Central Leading Group of Comprehensively

The Framework Opinion also proposed the

Deepening Reforms reviewed and approved

creation of a judge and procurator selection

the Opinion on Deepening Reform in the

commission at the provincial level with

Judicial System and Social System and Plan

stepwise selection at different levels, and the

for Division of Labor in Implementation, which

recruitment of outstanding lawyers and legal

laid out the objectives and guiding principles

scholars as judges and procurators. In cities

of deepening judicial reform, as well as the

and provinces where pilot reform programs

roadmap and timeline for various reform

are implemented, judges and procurators will

measures. The 3rd meeting of the Central

be appointed, managed, and removed from

Leading Group, held in June, adopted the

office at the provincial level. The provincial

Framework Opinion on Several Issues Relating

finance department will handle the financial

to Experimental Points in Judicial Reform, and

management of local courts and procuratorates

the Work Plan for the Shanghai Pilot Program

below the provincial level.

in Judicial Reform. The Framework Opinion proposed seven major reform measures:

Although the Framework Opinion provided

(1) differentiating personnel management of

concrete guidelines for judicial reforms,

judges and procurators from that of regular

its effectiveness was limited by the lack of

civil servants; (2) establishing a ratio-quota of

strong support from the central government,

judges and procurators, so as to place talented

the insufficient coordination among various

personnel at the frontline of case-handling; (3)

agencies with competing interests, and the

improving the criteria and process of selecting

inability to eliminate resistance from both

judges and procurators, adhering to the

outside and inside the judicial system. The

principle of judicial officials under Party control,

Opinion also needed more specific and

respecting judicial fairness, and ensuring

feasible implementation measures. Some

political loyalty and professional competency

of the Opinion’s contents are debatable, for

of judicial officials; (4) increasing accountability

instance, as to whether emphasizing “the CPC

for case adjudication, expanding judicial

Party control over judicial officials” is consistent

transparency, and strengthening oversight

with abiding by the rule of law.

and checks and balances mechanisms; (5) making job security commensurate with

In July 2014, the Supreme People’s Court

judges’ and procurators’ responsibilities; (6)

issued the Fourth Five-Year Outline in

promoting a unified personnel, financial, and

accordance with the CPC’s 3rd Plenary

supply management system for local courts

Session Decision and the subsequent

and procuratorates below the provincial level;

Framework Opinion, further clarifying the

Annual Report on China’s Judicial Reform 2014

I. General Reform Measures

Annual Report on China’s Judicial Reform 2014

Court’s general approach to future reforms,

financial management system of local courts

with the goal of “letting the people experience

below the provincial level. Some of these

fairness and justice in each and every case”.

measures touch upon systemic reform of

Means to achieve this end include: adhering

the judicial system, which are conducive to

to the principles of justice for the people

a substantial reduction of interference of

and judicial fairness; focusing on resolving

administrative agencies and local authorities,

deep-seated issues that will enhance justice

thus contributing to increased judicial

and impose restrictions on the exercise of

independence. Some others contribute to

power; ensuring that the court exercises its

promoting fair and efficient trials, such as

adjudication power in an independent and fair

reforming the adjudication of civil, commercial,

manner under the law; and speeding up the

and administrative cases, and procedures

building of a socialist judicial system that is

for signing judgments; improving expedited

just, efficient, and authoritative. The Outline

handling of minor crimes; expanding judicial

further specified that “a socialist operations

transparency; and reforming the court

mechanism for adjudication powers with

evaluation mechanism. Yet, for some of the

Chinese characteristics shall be initially

measures, positive results appear hard to

established by 2018”, which is the overall

achieve, such as reforming petitioning involving

objective of the reforms, involving forty-

legal action.

five measures under eight areas. The eight areas are: (1) promoting a court personnel

The release of the Fourth Five-Year Outline

management system; (2) exploring the

marked the beginning of the implementation

establishment of a jurisdictional system

of the new round of judicial reform. Although

separate from geographic administrative

aspiring to be comprehensive, under the

divisions; (3) improving the exercise of

general framework of the Decision and the

adjudication power; (4) strengthening judicial

Opinion, the Outline leans towards addressing

protection of human rights; (5) expanding

the reform of the operation mechanism of

judicial transparency; (6) defining the function

adjudication power and personnel management

of the four levels of court; (7) improving

without addressing the fundamental issue of

judicial administration and operations; and (8)

judicial independence. Overall it should thus

reforming the practice of petitioning involving

been seen as a transitional plan. Some of

legal action. Specific requirements for each of

the suggested measures, such as ensuring

the reform measures were also highlighted.

the job security of judicial officials, will not be achievable by the judicial organs alone.

The Fourth Five-Year Outline represents

Without the central government’s support, it

progress compared to the Third Five-Year

will be impossible to avoid local interference

Outline. Significant measures include: creating

with judicial proceedings, this round of

a judge selection commission, establishing

judicial reform will not go very far, and many

a judges’ ratio-quota mechanism, reforming

of the measures are likely to encounter

the system of agency and enterprise-

implementation challenges.

managed courts, improving the presiding judge’s adjudication of a case while working

The CPC 4th Plenary Session Decision

with a collegial panel, introducing disciplinary

adopted in October 2014 announced the

mechanisms for judges, and unifying the

overall objective of “building a socialist legal

Specific measures in these six areas

building a socialist country with rule of law”.

include:

The Decision laid out five systems and six tasks to be completed. The five systems

(1) E n s u r i n g j u d i c i a l i n d e p e n d e n c e :

are: a comprehensive legislation system; a

establishing a recording, reporting and

highly effective enforcement system; a strict

accountability mechanism for leading

supervision system; a strong legal protection

government officials’ interference in the

system; and an improved system of rules and

adjudication of specific cases; receiving

regulations within the CPC Party. The six tasks

more support from administrative agencies;

include: improving the overall legal structure;

improving disciplinary mechanisms for

taking administrative action in accordance

obstruction of justice; and enhancing

with the law; ensuring fairness in the judicial

p r o t e c t i o n o f j u d i c i a l o ff i c e r s w h e n

system; enhancing citizens’ legal awareness;

performing statutory duties.

developing the capacity of the legal profession;

(2) Optimizing judicial functions: piloting the

and strengthening and improving the CPC

reform of separating adjudication from

Party leadership.

enforcement powers; establishing circuit courts under the Supreme People’s Court

The Decision advocated the concept of

and cross-administrative regional courts

“governance according to the Constitution” for

and procuratorates; improving court

the first time, which called for enhancing the

case filing, acceptance and adjudication

enforcement and supervision mechanism for the

procedures, and the trial mechanism at

Constitution, improving the supervision of the

different levels; enabling public interest

National People’s Congress and its Standing

litigation filed by procuratorates; clarifying

Committee on the Constitution, and enhancing

the responsibilities and limits of various

the procedures for constitutional interpretation.

departments within the judicial system; and

These improvements serve to realize the power

strengthening accountability mechanisms

of the National People’s Congress and its

for presiding judges, collegial panels, and

Standing Committee to supervise and interpret

leading procurators and investigators.

the Constitution and to establish a mechanism

(3) Promoting strict justice: standardizing

for constitutional review.

judicial interpretation with more guiding case precedent; promoting the reform of

Judicial reforms are the centerpiece of the

adjudication-centered litigation system;

4th Plenary Session Decision. Following the

defining the responsibilities of various

clear direction and related topics from the 3rd

judicial officials; implementing lifelong

Plenary Session Decision, the 4th Plenary

accountability for case handling and

Session Decision seeks to further judicial

retroactive responsibility for mishandled

reform in six areas, namely: ensuring lawful,

cases.

independent, and fair exercise of adjudication

(4) Enhancing judicial democracy: ensuring

and procuratorate power; optimizing judicial

public participation in judicial mediation,

functions; promoting strict justice; improving

judicial hearings, and petitioning involving

public participation in judicial matters;

legal action; improving the people’s jurors

strengthening human rights protection; and

mechanism; and developing judicial

enhancing oversight over judicial activities.

transparency.

Annual Report on China’s Judicial Reform 2014

system with Chinese characteristics and

Annual Report on China’s Judicial Reform 2014

ii. Advancing Judicial Reform through Pilot Programs

(5) Strengthening judicial protection of human rights: ensuring the right to sue; enacting enforcement legislation; and implementing final appeal and end-of-litigation

In line with the provisions of the Framework

mechanisms.

Opinion, seven provinces (including one

(6) Strengthening judicial oversight: improving

provincial-level municipality) launched pilot

the procuratorate’s oversight responsibility

programs. The provinces include Shanghai,

and the mechanism of people’s jurors.

Guangdong, Jilin, Hubei, Hainan, Qinghai, and Guizhou. The pilot programs covered

The Decision especially emphasized the

four aspects: enhancing the categorized

importance of capacity building for judicial

management of judicial personnel; enhancing

professionals, calling for a highly qualified

judicial accountability; improving the job

contingent of well trained, professional, and

security of judicial officers; and promoting

career-oriented judicial officers, and the

unified management of personnel, finance and

stepwise selection of judges and procurators.

supplies for local courts and procuratorates below the provincial level. These four aspects

As a programmatic document, the Decision

involve a wide range of issues with strong

enriched the rule of law agenda addressed in

policy implications.

the CPC 18th National Congress and its 3rd Plenary Session, and provided a roadmap

Shanghai was the first to initiate pilot programs.

and reform steps to build China under rule

Following the Work Plan for the Shanghai

of law. Although the Decision represented

Pilot Program in Judicial Reform adopted in

some progress by referring to “governance

June 2014, the 2nd meeting of the Shanghai

according to the Constitution” and advocating

Pilot Program in Judicial Reform Promotion

for an accountability mechanism for leading

Group approved two pilot reform programs:

officials’ interference in judicial proceedings,

the Implementation Plan of the Pilot Program

it failed to make the key breakthrough and

for Reforming the Judicial System of Shanghai

is still, therefore, a transitional plan. The

Higher People’s Court and the Implementation

Decision emphasized “governance according

Plan of the Pilot Program for Procuratorate

to the Constitution”, but failed to affirm

Reform in Shanghai.

constitutionalism; it emphasized adjudication independence, but failed to ensure judicial

The Shanghai pilot reform program mainly

independence; it particularly emphasized

involves five aspects: enhancing categorized

adhering to the leadership of the CPC, but

management of judicial personnel; improving

failed to specify how to improve the leadership.

job security for judges, procurators, and

Not only will the implementation of the

assistant judicial staff; enhancing judicial

Decision demand more tangible and feasible

accountability; exploring unified personnel

specific measures, but it will also require

management for judges and procurators below

addressing challenges, the biggest one being

the provincial level; and exploring unified

the resistance of vested interest groups.

financial management for sub-provincial courts and procuratorates by the provincial level. Specific pilot reform measures in the abovementioned five aspects include:

The pilot program is in line with the guidelines

among all judicial personnel, judges and

provided in the CPC 4th Plenary Session

procurators shall comprise 33%; judicial

Decision and the Framework Opinion,

assistants, 52%; and administrative staff,

which focus on the substantial reduction

15%. The transitional period will last three

of interference from local authorities and

to five years, and gradually a categorized

administrative agencies and actors in the

personnel management system will be

judicial system.

strictly enforced. (2) Establishing a municipal-level commission

The central government had high expectations

for the selection and discipline of judges

for these vanguard experiments in Shanghai,

and procurators. Judges and procurators

hoping they could be replicated. Yet the

will be primarily selected from among

special social and economic conditions of

outstanding assistants to judges and

Shanghai created doubts as to whether the

procurators, and judges and procurators

model could be scaled up. Although the pilot

of higher-level courts and procuratorates

program received a relatively high rating, it

will be primarily selected from among

raised a number of concerns. First, while the

outstanding judges and procurators of

need for ratio-quota, categorized personnel

lower-level courts and procuratorates.

management, and judicial accountability were

Judges and procurators will also be

emphasized, whether a job security mechanism

selected among outstanding lawyers and

could be put in place emerged as a key

legal scholars.

issue. If remunerations are not considerably

(3) Establishing a job security mechanism

increased, job security between judges and

different from that of regular civil servants.

their assistants is not balanced, or the selection

Under certain circumstances, judicial

process is not conducted properly, the lack

officials will be allowed to delay receiving

of incentives for judicial assistants could lead

their pensions.

to greater loss of talents, which is already

(4) Establishing a unified funds and assets

happening. Second, if the reforms of personnel

management system for all courts and

management and financial management are

procuratorates under the Shanghai

not well coordinated, the latter could impede

municipality and ensuring that funding

the former, thus jeopardizing the entire reform

for office operations, case adjudication,

program. Third, against the goal of substantially

and staff salaries will not be less than the

reducing the interference of local authorities

current level.

and administrative agencies, there is a risk

(5) Establishing case handling accountability

that unified provincial control of personnel and

mechanisms for presiding judges and

finance could actually intensify administrative

lead procurators; reforming the judicial

interference in judicial operations. Although

committeeâ&#x20AC;&#x2122;s functions by substantially

the Shanghai pilot program later separated

reducing its instructions for individual cases

personnel from financial management by

and instead increasing its provision of

letting the Municipal Finance Bureau manage

trial experience summaries and analyses,

financial matters, and the different levels of the

decisions on important trial issues, and

selection commission handle the selection of

guidance for similar case types.

judges and procurators, these measures only simplified some administrative procedures

Annual Report on Chinaâ&#x20AC;&#x2122;s Judicial Reform 2014

(1) E s t a b l i s h i n g a r a t i o - q u o t a s y s t e m :

Annual Report on China’s Judicial Reform 2014

within the judicial system, but did not address

the candidates’ professional knowledge and

the government’s and Party’s interference in

judicial competence.

judicial matters. Restructuring the relations between courts at various levels in a sound and

Following Shanghai, pilot reform programs

efficient way could be considered as a possible

were launched in other provinces. In

approach to reduce and prevent administrative

November 2014, the Pilot Judicial Reform

interference. Yet this option has not been

Program of Guangdong Province (hereinafter

explored by any pilot programs to date.

the Guangdong Program) was launched and six related documents, issued: the Provincial

The Shanghai Judges and Procurators

Pilot Program of Improving the Operating

Selection (Disciplinary) Commission was

Mechanism of the Courts’ Adjudication

formed at the end of 2014, composed of seven

Function and Accountability; the Provincial

special members and eight expert members,

Pilot Program of Improving the Procuratorates’

all selected upon “recommendation”. The

Function and Accountability; the Provincial Pilot

seven special members are leading officials of

Program of Professional Security for Judges

seven government organs: the CPC Shanghai

and Procurators; the Provincial Pilot Program

Political and Law Commission; the CPC

of Categorized Personnel Management of

Shanghai Organization Department; the CPC

Court Staff and Unified Nomination of Judges;

Shanghai Disciplinary Commission; the Judicial

the Provincial Pilot Program of Categorized

Committee of Shanghai People’s Congress;

Personnel Management of Procuratorate

the Bureau of Civil Servants; Higher People’s

Staff and Unified Nomination of Procurators;

Court; and the Shanghai Procuratorate. The

and Provincial Implementation Program of

eight expert members are legal scholars of

Unified Financial Management of Courts and

major law schools and legal research institutes

Procuratorates below the Provincial Level.

in Shanghai. Among the eight members, only one is a lawyer. The Commission is

The Guangdong Program assigned the cities

further supported by an “experts’ think tank”

of Shenzhen, Foshan, Shantou, and Maoming

composed of some twenty senior legal experts

as experimental sites. Pilot program reform

and lawyers. It has a judge selection/discipline

measures include: creating an operating

office in the Shanghai Higher People’s Court

mechanism of adjudication power centered

and a procurator selection/discipline office

on the presiding judge and the collegial panel;

in the Shanghai Procuratorate. The defects

having the presiding judge sign judgment

of the Commission include: its formation did

documents when s/he is the only judge; and

not follow an open process; it has no non-

having the head of the court not sign any

governmental and non-legal representatives;

judgment document in normal circumstances

the ratio of judges to procurators is too low;

over which s/he has not presided. Additionally,

it has no judge or procurator representatives

a record archive will be established for

from the basic and intermediate level courts or

judges and procurators, mishandled cases

procuratorates; and it has no representatives

investigated, and accountability sought, so

from regular judges or procurators. Given these

as to strengthen oversight and discipline.

defects, it will be hard for the Commission

The judicial official will be responsible for the

to carry out a legitimate and fair selection of

quality of case adjudication for life. Judges

judges and procurators, primarily based on

and procurators will receive remunerations

was similar, each province has some unique

be calculated on the basis of merit evaluations

features. In Hubei province, the reform of

of the volume and quality of cases handled.

the judicial committee restricted the scope of

The allowance should increase in accordance

the committee’s involvement and improved

with economic development, revenue, and

the committee’s understanding of cases

price rises in the province. The retirement

by providing trial videos and allowing the

age of frontline judges and procurators could

examination of evidence and the reading of

be reasonably extended. Within five years,

files. In Qinghai province, the program focused

the ratio-quota of judges and procurators will

on the evaluation of the members of the judicial

gradually reach below 39%, administrative staff

and procuratorate committees; improving the

approximately 15%, and judicial assistants

selection of judicial officials by keeping quotas

above 46%. A selection and discipline

for recruiting outstanding lawyers and legal

commission of judges and procurators will be

scholars; emphasizing stepwise selection and

formed. The provincial CPC party committee

avoiding appointment by seniority or special

will manage heads of city and county

consideration. In Hainan province, jurisdiction

level courts and procurators. Judges and

will be separated from administrative divisions;

procurators will be selected and appointed by

judicial officials will have a list of powers

the provincial commission. Financial matters of

and responsibilities, a file for honest and

the courts and procuratorates will be managed

clean performance of duties, and a database

at the provincial level. City and county level

of guiding cases will be created; a judicial

courts and procuratorates will submit their

advisory committee will be established and the

budget reports to the provincial finance

judicial committee and its by-laws, reviewed;

department and funds be directly distributed

and each case will have a QR code to ensure

from the exchequer. The provincial staffing unit

lifelong accountability in case handling.

will manage the staffing quotas of the courts and procuratorates.

The above-mentioned reform measures regarding the judicial committee are worth

Compared to the Shanghai Program, the

recognizing. The measures of Hainan

judges’ ratio quota in the Guangdong Program

province, in particular, are in line with the

is higher and easier to implement. Although

recommendations in each year ’s Judicial

merit evaluations may in the short term provide

Reform Annual Report. On that basis, in the

some incentive for judges and procurators, it

future, the judicial committee will function as an

may also increase administrative control over

advisory board whose decisions have no legally

the court system and become a straitjacket

binding effect. And eventually, when the time is

for judicial officials. The court not being a

ripe, the judicial committee will be abolished and

company, judgments should not be treated as

replaced by judges' conferences.

products, and incentives for judicial officials

iii. Revision of the Criminal Code

should instead focus on job security and professional pride.

Amending criminal law often involves a series In December, pilot reform programs were

of reforms of the criminal justice system. In

also launched in Hubei, Qinghai, Hainan and

October 2014, the Draft of Amendment IX to

Guizhou provinces. While the overall approach

the Criminal Law (hereinafter the Draft) was

Annual Report on China’s Judicial Reform 2014

according to their ranking. An allowance will

Annual Report on China’s Judicial Reform 2014

submitted to the Standing Committee of the

extremist crimes, expanding the types of

National People’s Congress and released for

violent terrorist acts punished, and imposing

public comments. This constituted another

assets punishment on terrorist organizations;

round of revisions, three years after the

adding certain acts to criminal offenses, such

submission of Amendment VIII. The main

as forced lewdness towards males; abuse of

amendments of this round involve: violent

house servants; organized exam cheating;

terrorist crimes and cyber crimes, which are

fabricating and spreading false information;

occurring more frequently; implementing the

expanding the scope of the definition of

directives of the 3rd Plenary Session of the

“documents” for the crime of forged or altered

18th CPC Central Committee to “gradually

identity cards; expanding the scope of the

reducing offenses liable to death penalty” and

definition of “criminal offenders” for the crime

“intensifying the combat against corruption”

of selling or illegally providing personal citizen

and follow-up legal issues after the abolition of

information; aggravated criminal liability for

the “reeducation through labor” system.

buying abducted women and children; and including to the crime of dangerous driving the

The Draft introduces major revisions to the

serious overloading of passengers in public

following criminal offenses: terrorist and

transit and speeding on the road.

extremist crimes; network information crimes; crimes impeding social management and order;

This round of revisions marks progress in

obstruction of justice; assault and battery;

some respects. For instance, nine offenses

and corruption and bribery. Twenty-three new

liable to death penalty were abolished, thus

categories of criminal offenses were added.

reducing death penalty offenses from 55 to

The Draft proposed to abolish nine criminal

46. The threshold for imposing execution of

offenses liable to death penalty: smuggling

death penalty on offenders granted a reprieve

weapons and ammunition, smuggling nuclear

was raised. This is in line with the modern

materials, smuggling counterfeit currency,

rule of law, and reflects the human rights

producing counterfeit currency, investment

concept of “fewer killing, cautious killing”

financing fraud, organized prostitution, forced

and the policy of “strict control and careful

prostitution, impeding performance of military

application while retaining the death penalty”.

duties, and spreading rumors during war time.

The high profile cases of Wu Ying and Ceng Chengjie contributed to the abolition of the

Other revisions include: further raising the

death penalty for the crime of investment

threshold for executing the death penalty on

financing fraud. Other death penalty offenses

offenders granted a reprieve; for crimes of

with low application rates in practice were also

corruption and bribery, modifying the rigid

abolished. In the future, it is hoped that death

provision for defining the offense based on

penalty will be abolished for more non-violent

the amount involved, and instead, adopting

or non-fatal offenses. The modifications of

a descriptive model, adding considerations

the provisions on conviction and sentencing

such as the seriousness and consequences

standards for crimes of corruption and

of the crime; increasing the punishment for

bribery will allow now proper adjustments in

bribery, and in many instances, increasing

accordance with social development. The

fines and engaging in stricter enforcement;

provisions aggravating punishment for the

increasing the punishment for terrorist and

crime of bribery and criminalizing the act of

personnel or participants during judicial

close relationships not only meet the demands

proceedings in violation of a court order, and

of combating corruption, but also comply with

“other acts that seriously disrupt the order of

the relevant requirements of international

the court” as a catch all provision. Shall this

conventions and contribute to the overall

provision be adopted, the risk of abuse will be

improvement of criminal law with regard to

very high, and it will become another sword of

corruption crimes.

Damocles hanging over the head of lawyers. To resolve conflicts between lawyers and the

Yet some provisions of the Draft indicate

court, and thereby reduce the phenomena

significant regression. For instance, in order to

of lawyers “creating trouble in court” and

address certain issues following the abolition

“objecting stubbornly”, a better approach would

of the reeducation through labor system, the

be to regulate the judicial process, namely,

Draft lowered the threshold for the crime of

the judicial organs strict implementation of

“assembling a crowd to disturb social order”

procedural law, effectively ensuring a lawyers’

contained in China’s criminal code. Some acts

right to practice law, and promoting the

were listed as criminal offenses, such as “those

autonomy of the legal profession, rather than

who make repeated petitions in a persistent,

intensifying criminal punishment as a means

pestering, and incorrigible way and seriously

of deterrence. It is therefore recommended

disrupt the order of state organs”. This may

that, in future review, the above-mentioned

lead to some people being criminally punished

provision be deleted. In the meantime, in order

for repeatedly disrupting the order of state

to prevent retaliation against lawyers, some

organs by themselves, without assembling

provisions of the Code of Criminal Procedure

a crowd. As another illustration, following

should be revised, or a judicial interpretation

the judicial interpretation issued last year by

issued, to ensure that the judicial organs

the Supreme People’s Court and Supreme

involved in the original trial do not participate in

People’s Procuratorates with regard to cracking

the investigation or trial of such cases.

down on online rumors, the Draft defined acts

iv. Revision of the Administrative Procedure Law

of fabricating and spreading rumors on the Internet as criminal offenses and the Internet as a “public space”. These provisions of the Draft are not conducive to protecting citizens’

The Decision for Revising the Administrative

freedom of speech.

Procedure Law of the People’s Republic of China was issued in November 2014 and the

In response to frequently occurring incidents

newly revised law entered into force on May 1,

in recent years of lawyers “creating trouble

2015. This is the first major revision since the

in court” and “objecting stubbornly”, the Draft

law was enacted 24 years ago. The revision’s

modified the crime of disrupting court order.

objective is to address the long-existing

In addition to assembling a crowd, disrupting

difficulties in case filing, case adjudication, and

the court and attacking judicial personnel,

enforcement when citizens sue government

some other acts were added as criminal

agencies or government officials.

offenses, such as the assault and battery of participants during judicial proceedings,

The revisions cover ten aspects, including

insulting, slandering or threatening judicial

the scope of acceptance for filing, jurisdiction,

Annual Report on China’s Judicial Reform 2014

offering bribes to close relatives and other

Annual Report on China’s Judicial Reform 2014

parties to the litigation, evidence rules,

jurisdiction over administrative cases so as to

adjudication processes and other issues. The

eliminate local protectionism in administrative

legislative intent is to “resolve administrative

litigation. The administrative mediation process

disputes”. The previous censorship of

will allow disputes involving administrative

accreditation system is being replaced by case-

compensation, remedies, and the legality

filing registration system, and administrative

of administrative agency’s discretion. The

agencies will not be able anymore to interfere

revisions also clarify the type of cases where

or obstruct a court’s acceptance of cases.

simplified procedures are applicable. Some

The scope of filing is being further expanded

special cases of civil and administrative

to include abuse of administrative power to

claims can be adjudicated jointly, and when

eliminate or restrain competition; illegal financing

the court determines that adjudication of

and imposing of costs; non-payment of low-

an administrative case will depend on the

income social security or social security benefits

judgment of a civil case, administrative

prescribed by the law; and administrative

adjudication can be suspended. Evidence

agencies’ decisions of expropriations,

rules have been improved, circumstances

compensation, and the determination of rights.

identified where the court can subpoena

The revisions make it easier for parties to sue

evidence and cross-examination of evidence,

the administration by allowing oral complaints

added. Enforcement measures have also been

and extending the limitation of action by six

strengthened. Shall the administrative agency

months when the plaintiff is an individual citizen

refuse to fulfill its judgment obligations, the

or a legal person.

head of the agency will bear the responsibility to pay a fine. In cases of serious negative

Other revisions include: establishing

social impact, the chief official or the person

accountability for those illegally pressuring

directly responsible can be detained. When

the plaintiff to withdraw a complaint by means

the agency conducting administrative review

of deception or coercion; establishing a pre-

upholds the challenged administrative act,

judgment relief procedure; stipulating that

the defendant agency and the review agency

the chief administrator of the defendant

will be joined as co-defendants in subsequent

administrative agency must appear in court

litigation in order to prevent administrative

and, if unable to appear, appointing another

review from becoming an empty procedure.

appropriate staff to appear; allowing the court to make a public announcement or make

Overall, the revisions mainly address technical

a judicial recommendation for disciplinary

issues. Some of them are based on previously

action to the relevant agency if the defendant,

issued judicial interpretations, and in reality,

receiving a subpoena, refuses to appear

only constitute minor amendments. The

without a legitimate excuse or leaves the

provision of non-interference of administrative

hearing before the end without permission. It

agencies on the court acceptance of filing

is hoped that these revisions will help address

only serves as an empty slogan. The abstract

the problem of officials not appearing in

administrative act of making rules and

court when they are sued. Upon approval of

regulations does not fall within the scope

the Supreme People’s Court, some Higher

of judicial review. Neither do the revisions

People’s Courts will be allowed to establish

provide the plaintiff with jurisdictional options.

cross-administrative regional courts with

The procedure for retrying administrative

Interpretation of the Application of the Civil

revisions do not respond to the issues of

Procedure Law issued by the Supreme People’s

public interest administrative litigation and

Court in February 2015 includes specific

regulating administrative contracts. Relatedly,

provisions regarding case-filing registration

provisions establishing the accountability

system, public interest litigation, evidence rules,

for administrative interference lack clarity

small claims proceedings, court discipline, and

and details. Mandatory appearance of Chief

civil law principle of good faith. This Judicial

administrative officials’ chief administrators in

Interpretation contains the most numerous

court is difficult to implement, and is usually

provisions in the history of the Supreme

substituted by their lower level administrative

People’s Court’s judicial interpretation.

staff instead. When the new law enters into

v. Regulating Assets Disposition Procedure in Criminal Cases

force, the courts’ acceptance rate of plaintiff’s fillings against government agencies or officials may increase, but how many cases will obtain a favorable judgment remain to be seen.

In December 2014, the Central Leading Group for Comprehensively Deepening Reforms

Finally, administrative litigation involves a

reviewed and approved the Opinion on the

tension between public power and private

Further Regulation of the Management of

rights, as well as check and balance between

Assets Involved in Criminal Proceedings.

the judicial and administrative branches. Under

It called for local judiciaries to establish a

the current situation, where state power is

centralized and transparent information

exceptionally strong, and the judiciary rather

clearing-house for assets, with the Party and

weak, or even dependent on local government,

government agencies being prohibited to be

the new law can only have limited effects in

involved in the process of disposition.

practice. The weak position of the judiciary should be addressed through systemic reform

Although the Criminal Procedure Law contains

that ensures judicial independence. Yet judicial

some provisions regarding assets illegally

system reform can only be dealt with under the

obtained through criminal acts, the provisions

overall reform of the political system.

are rather vague and broad, and related disposition procedures too simple and not

The revision of the Administrative Review Law

detailed enough to be followed. In addition,

has also been placed on the agenda of the

due to lack of transparency and oversight, the

legislature, targeting the phenomenon where

interference of local Party and government

higher courts affirm the judgments of lower

agencies is severe. For a long time, there

courts in most cases and only infrequently

had been extreme chaos in criminal assets

reverse the original judgment. The system and

recovery and auction. Secretive operation,

procedure of administrative review demands

misappropriation, interception, and corruption

urgent attention, and an important reform will

were rampant. Such assets had become an

be shifting from the current process of written

important source of illegal gain and even a

complaints to a trial process, with the aim of

major motivation for “fabricating” criminal

securing meaningful judicial review.

cases. Some agencies attempted to address the situation but with little success. The above

Similarly to the revisions, the Judicial

Opinion emphasized procedural transparency

Annual Report on China’s Judicial Reform 2014

cases is also insufficient. Furthermore, the

Annual Report on Chinaâ&#x20AC;&#x2122;s Judicial Reform 2014

and strictly prohibited the involvement of the

of the parties and stakeholders, and improving

Party and government agencies in assets

procedural remedies; granting the owners of

disposition, which had a positive impact

the assets or their custodians the right of relief

in standardizing the procedures of assets

should they disagree with the disposition or

disposition involved in criminal proceedings

the judgment and the right of presence when

and in avoiding Party or government agencies

the assets are disposed, and to outsiders the

to profit illegally. Yet not only does the Opinion

right of objection; (7) utilizing digital technology

need more detailed measures in order to be

to enhance the transparency and oversight of

implemented, it also require the support of

sealing, taking custody, freezing, safekeeping,

related legislations.

and disposing of the assets.

The idea behind regulating assets disposition

vi. Combatting Corruption Requires Systemic Change

procedures in criminal cases is to standardize relevant procedures, make them more professional, and orient them towards the

After he became the Secretary-General of the

judiciary. The following suggestions could

CPC, Xi Jinping launched an anti-corruption

serve this purpose: (1) at the institutional

campaign, which was sustained throughout

level, separating the funding of judiciary

2014. In the first half of the year alone, the CPC

operations and staff remuneration from local

Central Commission for Discipline Inspection

government finances, and severing the

(CCDI) investigated and sanctioned 375 officials

connection between judicial officials and the

with disciplinary actions. Some of the officials

assets involved in the case; (2) abolishing

were above the provincial and government

the system whereby the judiciary retains a

ministerial level, and some were high level

benefit from the asset, thus eliminating any

executives of state-owned enterprises, such as

possibility of illegal gains, possibly by handing

Ji Wenlin, Jin Daoming, Shen Peiping, Yao Mu-

over the assets to the central treasury; (3)

Gen, Song Lin, Tan Qiwei, Ling Zhengce, Han

clearly defining criminally obtained gains and

Xiancong, Su Rong, Xu Caihou, and Ling Jihua.

goods, crime scenes, and crime tools; strictly

The downfall of Zhou Yongkang marked the

differentiating assets involved in criminal cases

climax of this round of the anti-corruption drive.

from fines and confiscated assets; changing the concept in criminal proceedings of â&#x20AC;&#x153;paying

To combat corruption, the CPC Organization

more attention to the person than to assetsâ&#x20AC;?;

Department issued the Opinion on

improving judicial procedures for determining

Strengthening Oversight on the Selection

and disposing criminal case related assets;

and Promotion of Officials, and Regulations

clarifying the burden of proof and standards of

for Managing the Positions of Government

proof; (4) establishing an assets administration

Officials Whose Spouses Have Migrated

mechanism, turning over assets from cases to

Abroad. As a result, many provinces and

the management of specialized professionals,

central government ministries carried out an

and maximize the interests of interested

inventory of the officials whose spouses have

parties and creditors; (5) clearly stating that

migrated abroad. In June, the CPC Politburo

the assets involved in criminal cases cannot

adopted the Implementation Plan of Discipline

be disposed prior to the judgment becoming

and Inspection Reform, which announced eight

effective; (6) ensuring the right to participate

reform measures, including: strengthening the

to form an ICAC that will be solely responsible

inspection system; improving internal rules and

for anti-corruption matters. The ICAC will

regulations; and strengthening power oversight

exercise independent investigatory power

and administrative supervision, starting with

without the interference of any organization or

the CCDI itself then expanding from top

individual. This pilot measure could be tested

down. The Implementation Plan constitutes a

in selected places, such as in the Hengqin

programmatic document for the reform of the

district in Zhuhai city, which already has a

anti-corruption system indicating intensified

similar model. (3) Placing CCDI’s disciplinary

internal party control around the CCDI by

actions under the legal framework. (4) Truly

expanding its power for investigation and

implementing the Party’s policy of serving the

punishment and improving its own operation

people, guaranteeing freedom of speech, and

and management.

encouraging anti-corruption reports from the general public.

The judicial branch has closely followed the CCDI’s strategy. In the first half of 2014, a

As the CCDI Implementation Plan has laid

total of 10,854 cases of corruption and bribery

down reform objectives and measures for

were investigated, involving 14,603 suspects,

the next decade, it is unlikely that the anti-

of whom 10,057 were prosecuted, 8,110 tried

corruption campaign will result in any systemic

and 8,096 found guilty. This type of cooperation

breakthroughs. It will be difficult to follow the

reflects, on the one hand, the judicial system’s

ICAC model any time soon and to predict the

powerlessness in anti-corruption efforts, and

future of placing disciplinary actions under the

reveals, on the other hand, the tension between

legal framework. Under the current situation

anti-corruption efforts and the rule of law.

and increasingly tightened control of freedom of speech, the only feasible measure would

The new Party leadership emphasized that

be gradually pushing for officials’ assets

anti-corruption efforts should be carried out

disclosure. This has been proved, regardless

within the legal framework. The following four

of the political system and ideology, to be the

aspects should be taken into consideration

most effective means of curtailing corruption.

for combatting corruption at the systemic and

In China, the disclosure system has not been

institutional level: (1) Introducing a system of

implemented, mainly due to the resistance

officials’ assets disclosure, a common practice

from the officials themselves. The government,

worldwide. Currently at least 137 countries

in turn, has not offered a convincing

employ this system. It is also practiced in

explanation why it has not been implemented,

China’s Hong Kong, Macao, and Taiwan.

parrying that the disclosure system was not

In Macao, the only option for officials who

suited to China’s circumstances. Should the

refuse to comply with assets disclosure is

government be concerned about political

resignation. (2) Taking as a reference the

risks, then a compromise could be considered:

Hong Kong model, integrating existing anti-

disclosure could be only required for new

corruption agencies to form an independent

officials but not incumbents, and only for new

and centralized ICAC (Independent

officials below the department chief level,

Commission Against Corruption). The anti-

with a view towards gradually moving up the

corruption function should be stripped from the

hierarchy. Since the rule of law and judicial

Procuratorate and merged with the CPC CCDI

reform are considered important, after a

Annual Report on China’s Judicial Reform 2014

CCDI’s leadership from the top; improving the

Annual Report on China’s Judicial Reform 2014

significant raise in the remunerations of judicial

less than one year imprisonment, detention,

officials and the establishment of greater job

constraint, or fines. The expedited procedures

security, the disclosure mechanism could

in criminal cases will simplify trial procedure

first be implemented in the judicial system.

with its unrestricted pre-trial service time and

The disclosure requirement is a yardstick to

eliminate court investigation and examination,

measure the central government’s resolve to

which will contribute to saving judicial

fight corruption. It cannot be ignored or further

resources, alleviating court pressure, and

delayed. As early as 1994, the Officials’ Assets

enhancing litigation efficiency.

Disclosure Law has been included in the legislative agenda of the national legislature,

Procedural simplification has been an

but since then, no progress has been made in

important part of the criminal justice reform

this regard. A type of sunshine law needs to be

agenda. Since the 1996 Criminal Procedure

adopted as soon as possible, and it is hoped

Law established that a simplified procedure

that a breakthrough will occur during the tenure

could be applied to criminal cases where

of CCDI’s chief, Wang Qishan.

sentencing is less than three years, various reform measures have been tested. At first,

vii. Pilot Program and Authorization Reform for Expedited Procedures in Criminal Cases

some basic level courts, for the purpose of

In June 2014, the Standing Committee of

Interpretation of the Supreme People’s Court

the National People’s Congress adopted the

formally recognized the legality of this method

Decision of Authorizing the Supreme People’s

and named it a “regular procedure with

Court and the Supreme People’s Procuratorate

defendant’s guilty plea”. Thereafter emerged

to Launch a Pilot Program on the Application

a “light punishment and fast trial” frenzy. In

of Expedited Procedures in Criminal Cases

2006, the Supreme People’s Procuratorate

in Selected Areas. The two courts drafted a

issued the Opinion of Expedited Handling of

concrete implementation plan for the two-year

Minor Criminal Cases According to the Law. In

pilot program, to be carried out in eighteen

2007, judicial organs in Beijing jointly issued

cities including Beijing. The Fourth Five-

the Opinion of Expedited Handling of Minor

Year Outline released in July also stated,

Criminal Cases According to the Law with

“under the authorization and oversight of the

Suspects’ and Defendants’ Guilty Pleas. In

legislature, the reform of expedited procedures

2008, the Opinion on Deepening Reforms of

in criminal cases will be promoted in an orderly

the Judicial System and Work Mechanism also

manner”. Expedited procedures in criminal

called for “establishing expedited handling

cases are applicable to cases where the facts

of minor criminal cases and expanding the

are clear, where the evidence is sufficient,

scope of applicability of simplified procedures”.

where the defendant pleads guilty, where the

The 2013 revised Criminal Procedure Law

defendant has no dispute over the applicable

restructured the simplified procedure by

law in misdemeanor cases such as dangerous

combining the previous simplified procedure

driving, traffic accidents, theft, fraud, snatching,

and the “regular procedure with defendant’s

harm, and affray that are relatively minor,

guilty plea”, while not further differentiating the

and where the possible sentence by law is

different types of simplified procedures.

reducing the pressure of heavy caseloads, explored the method of “simple trial with regular procedure”. In 2003, a Judicial

should be recognized and supported, instead

simplified procedural reform should focus

of restricted.

on the following: (1) a baseline guarantee

viii. Improving the Parole and Commutation System

of justice: a defendant’s minimum rights must be protected, including the right to procedural choice; the right to defense; the right to reasonable explanation; and the

In recent years there have been quite a few

right to a timely trial. Reasons to terminate

illegal paroles and commutations for the

the expedited procedure should be clearly

privileged, and exposure of such incidents has

stated, and a mechanism of switching from

prompted reform in this field. For instance,

“summary to regular” procedure in place to

the illegal commutation of Zhang Hai, former

prevent unsuitable yet mandatory application.

Chairman of Guangdong Jianlibao Group,

In the meantime, the scope of legal aid should

involved corruption of the court, the prison, and

be expanded to include both expedited and

a detention center, which exposed the issues of

simplified procedures, and legal aid should

arbitrary discretion, weak oversight, and serious

be accessible as earlier as at the stage of

corruption in parole and commutation practice.

investigation. (2) further enhancing adjudicative efficiency: based on current conditions in China,

In February 2014, the CPC Central Political

learning from other countries’ experiences,

and Law Affairs Commission issued the

developing a multi-level trial procedure

Opinion on Strictly Regulating Commutation,

model with different degrees of simplicity or

P a r o l e , a n d P r o b a t i o n , a n d E ff e c t i v e l y

complexity, including the presence of public

Preventing Judicial Corruption. The Opinion

defenders; establishing and improving relevant

called for strictly handling these three

supporting mechanisms, such as adopting

types of sentencing, improving relevant

centralized trial models and handling simplified

procedures, strengthening the accountability of

procedural cases together; fully utilizing and

enforcement officers, and severely punishing

improving the pre-trial management.

corrupt conduct. Subsequently, the Supreme People’s Court issued the Regulation of

Pilot program authorization is a supplement

Adjudicating Procedures of Commutation and

and improvement to the deficiency of the

Parole Cases. The Regulation addressed

newly revised Criminal Procedure Law, and

issues regarding the trial of commutation

also a measure of “experimental legislation”,

and parole cases: expanding the scope of

intended to ensure legitimate, stable, and

public notice, increasing transparency in case

orderly implementation of judicial reforms. Pilot

registration and trial, combining trials with

program authorization ensuring the legality

written hearings, introducing people’s jurors,

of the judicial reform will have an important

conducting investigations and verifications,

impact on future reforms in judicial and other

soliciting comments, and the arraignment of

fields. On the other hand, many years of past

criminals. The Regulation is a supplement and

judicial reform experience shows that reform

improvement to the 2012 Regulation of Specific

measures driven by practical needs at the local

Application of the Law in Commutation and

level and outside of pilot sites are conducive

Parole Cases, as well as a correction of the

to maintaining the vitality and momentum of

previous practice of administrative intervention

the reform. Therefore, these reform measures

in which such cases were submitted by the

Annual Report on China’s Judicial Reform 2014

The forthcoming pilot and design of future

Annual Report on China’s Judicial Reform 2014

enforcement agency for court approval. In

process of commutation and parole; granting

June, the Supreme People’s Procuratorate

prisoners the right to petition for commutation

issued the Regulation of Record Review

and parole; making commutation and parole

for Commutation, Parole, and Probation for

contingent on a judicial organ’s initiative and

Offenders for Official Misconduct. It stipulated

the prisoner’s application; allowing lawyers into

that for offenders for official misconduct

the process; including judgments and decisions

above the level of the department director,

in the unified public information system;

any commutation, parole, and probation

implementing a procuratorate’s function of

must be reported to the Supreme People’s

oversight over prisons and detention centers

Procuratorates for record review within ten

with their pre-investigation powers; in inmate

days of a judgment or decision being issued.

management, abandoning the single-track

And for offenders for official misconduct at

evaluation by accumulation of merit points,

the county level, in each and every case, the

emphasizing the investigation of an inmate’s

record must be submitted to the provincial

actual state of change, and taking into

procuratorate for review.

consideration the nature of an inmate’s crime to determine whether parole or commutation

In August, the Regulation of the Procuratorates’

should be applicable; gradually changing the

Handling of Commutation and Parole was

current practice of favoring commutation over

passed, which required review, investigation,

parole, increasing the application of parole;

and verification for six types of commutation

and improving community correction programs,

and parole cases. The Regulation also defined

w i t h e ff e c t i v e r e i n t e g r a t i o n a n d a c t i v e

the responsibility of procurators who appear in

monitoring, strengthening the educational

commutation and parole trials, and emphasized

function of criminal penalties, and encouraging

that inappropriate commutation and parole

paroled persons to take the initiative to change

must be corrected once discovered.

and to reintegrate into society.

Progress was made but the above-mentioned

ix. Reform of Petitioning Involving Legal Action

regulations had certain defects. For example, only an enforcement agency can initiate procedures and prisoners have no way to do so.

Bringing petitioning into the legal framework

Furthermore, a prisoner’s right to participate in

has been the objective of petitioning reform

the process is not ensured. Prisoners have no

in recent years. The 4th Plenary Session

procedural rights, such as making a statement

Decision also emphasized this reform. In 2014,

or argument, or requesting recusal, and cannot

a concrete series of reform and guidance

obtain legal representation. A prisoner’s lack

measures were issued. In February, the

of a right to apply for review or appeal further

Opinion of Innovative Mass Work Method

reflects the lack of a relief procedure. Victims’

to Address Pressing Issues of Petitioning,

rights were also neglected. The Regulations

issued by two central government offices,

did not provide for a victim’s right to know and

summarized past experiences and proposed

right to dissent.

some improvement measures. The February Opinion was another major guiding document

Future reform should include: further

following the 2007 Opinion of Further

enhancing the transparency of the adjudication

Strengthening Petitioning Work in a New

mechanisms. In October, the 4th Plenary

the State Council issued the Opinion for

Session Decision emphasized “placing

Dealing with Petitioning Involving Legal Action,

petitioning under the legal framework, ensuring

which proposed the following: differentiating

that legitimate and reasonable requests get

petitioning from litigation; handling and ending

lawful and fair results through proper legal

petitioning according to the law; seeking

procedures”, and reaffirmed “implementing

judicial remedies; and guiding the petitioners

the final judgment and litigation termination

to legal proceedings. After review by judicial

mechanism, differentiating petitions and

organs above the provincial level, if the issues

litigations, and ensuring the petitioner’s right to

in the petition have been dealt with fairly, there

appeal”.

should be no more review procedures. The Supreme People’s Court also issued Opinions

The petitioning system, a phenomenon with

for Further Advancing the Reform of Petitioning

Chinese characteristics originating from the

Involving Legal Action and called for clarifying

mass movement of “peoples’ letters and

the concept of litigation and petitioning so as to

visits” marked by the 1951 State Council

separate the two, establishing a circuit hearing

Decision for Handling the Letters and Visits

and monitoring mechanism, and setting up a

of the People, is a means for the CPC Party

new channel of online petition. The Supreme

to carry out the mass line, encourage public

People’s Procuratorate issued the Opinion for

criticism, and oversee the government’s power

Further Strengthening Petitioning Involving

according to the Constitution. As time goes

Legal Action under the New Situation.

by, this mechanism has departed from its original intention and became a hodgepodge

In April, the State Bureau of Letters and Visits

of social discontent, citizens’ participation in

issued the Method for Further Regulating

political decisions, public oversight over abuse

Handling Procedures of Petitioners to

of power and mistake correction, and people’s

Encourage Petitioners to Make Step-by-Step

seeking rights and remedies – an all-inclusive

Petitioning According to the Law. It stipulated

panacea for conflict resolution. In reality, many

that “leapfrog” petitions and visits should not

people have more faith in petitioning than in

be accepted. Thus the new procedures strictly

the law, and use this mechanism as the last

follow the principle of “territorial jurisdiction”.

resort to solving their problems. It has become

In September, the CPC Central Political and

a major problem for orderly social governance.

Law Affairs Commission successively issued several directives: the Opinion for Channeling

Calls for reform of the petitioning system have

Petitions Involving Legal Action into the

never stopped over the years. Although many

Working System of Legal Proceedings, the

reform measures were initiated in 2014, they

Guiding Opinion for Correcting the Mistakes

were merely superficial stopgap policies.

and Defects in Handling Petitions Involving

Petitioning will never end, as its appeal lies

Legal Action, and the Implementation Opinions

precisely in its unrestricted nature. “Leapfrog

for Ending Petitions Involving Legal Action

visits” cannot be stopped in practice, because

by Law. These measures addressed three

petitions are only effective when they appeal

major difficulties in the petitioning system:

to a higher level government. Fundamentally,

initiating, processing, and ending, by proper

such petitioning is contrary to the rule of law,

guidance, mistake correction, and case ending

thus the task of placing petitioning under a

Annual Report on China’s Judicial Reform 2014

Era. In March 2014, the General Office of

Annual Report on Chinaâ&#x20AC;&#x2122;s Judicial Reform 2014

legal framework is an impossible mission.

petitioning accountability practice, abandoning the â&#x20AC;&#x153;abnormal petitioningâ&#x20AC;? ranking system,

The pressure of petitioning will not be alleviated

and firmly cracking down on the illegal and

under the background of the frequent social

criminal acts of holding up or intercepting

conflicts, unbalanced vested interests, notable

petitions and setting up underground jails

social injustice, lack of judicial independence,

against the petitioners. The long-term solution

and absence of any conflict prevention and

lies in the realization of judicial independence,

resolution mechanism. As long as the systemic

and eventually petitioning will be replaced

defects of bureaucracy and the interference of

by judicial proceedings. Petitioning should

administrative agencies and local authorities

be remodeled as a supplementary relief

are not addressed, and the judiciary continues

for conventional rights remedies. Another

to lack independence, fairness, credibility and

approach could be the gradual weakening

authority, it will be difficult to solve problems

and stripping of the current petition-handling

without petitioning. The solution lies in

units in various government agencies, and

adopting multiple approaches, with a special

their integration into a specialized complaints

emphasis on fair and just social policies, free

handling agency, such as the Ombudsman

and open expression of opinions, restricting

system in Sweden and other countries. The

the powers of the Party and the government,

Ombudsman office could be established at the

and enhancing judicial independence,

central government and provincial levels, and

fairness, credibility, and authority, so as to

gradually transition into a specialized semi-

form an effective multidimensional mechanism

judicial complaints handling agency.

of conflict resolution. An urgent priority for petitioning reform is abolishing the coercive

Significant reform measures were implemented

of Court Personnel and Professionalization

in the court system in 2014 and the court made

of Judges proposed the following reforms:

achievements in the pilot reform of the ratio-

separating the ranking of judges from the

quota mechanism for judicial officials, court

administrative hierarchy; prohibiting judges

structure, correcting miscarriages of justice

from holding administrative management

cases, and the abolishment of the performance

positions; creating three categories for court

ranking practice.

personnel — judges, trial assistants, and administrative staff; for intermediate courts

i. Pilot Reform of Judicial officials’ Ratio-Quota Mechanism

at the city level, setting the number of judges

An important measure in this round of judicial

setting the number of judges at not more than

reform is a categorized judicial personnel

65%, and aiming to gradually reduce the judge

management system, separating them

ratio; setting the remuneration and benefits

from the system of regular civil servants,

of judges to correspond to their ranking; and

and placing judges and procurators under

making remuneration increase and promotions

separate title ranking management. The

dependent on years of service, seniority, and

judicial officials’ ratio-quota mechanism, a

work merits.

at not more than 60% of the total judicial personnel quota; for district level courts,

key component of categorized personnel management reform, attracted much attention

The Pilot Reform Program of Shanghai,

in 2014. The ratio-quota is determined by

issued in June 2014, further specified that

factors such as the population under the

the ratio-quota of judges, trial assistants,

court’s jurisdiction, the level of its economic

and administrative staff would be 33%, 52%,

development, its caseload, and the workload

and 15% respectively. The Fourth Five-Year

of judges. Qualified personnel are selected

Outline issued in July 2014 required that all

and appointed as judges. The purposes of

courts at the four levels in the country establish

this mechanism are: (1) to reduce the number

a judges’ ratio-quota according to the socio-

of judges; (2) to improve their quality and job

economic development of the court jurisdiction,

security; (3) to change the current situation

population (including temporary residents),

where too many administrative staff take up

caseload, level of trial functions, judges’

the judges’ positions, and heads of courts

workload, trial assistant staffing, and case

and tribunals are not adjudicating cases; (4)

adjudication needs.

to enhance professionalism; (5) to advance judicial independence; and (6) to promote trial

Establishing a categorized judicial personnel

quality and efficiency.

management system and a judges’ ratio-quota mechanism has long been an important aspect

In February 2014, the Reform Program of

of judicial reform. As early as 2001, the revised

Shenzhen City on Categorized Management

Judges Law stated that “the Supreme People’s

Annual Report on China’s Judicial Reform 2014

II. Reform Measures in the Court System

Annual Report on China’s Judicial Reform 2014

Court would work with relevant agencies and

many vested interests, while no corresponding

set a judges’ ratio-quota in accordance with

personnel and financial support is in place.

the need of trial cases”. In 2002, the Opinion of

The above measures encompass fundamental

Strengthening the Professionalization of Judges

systemic reform and involve effective exercise

reaffirmed that a sound judges’ ratio-quota of

of judicial power, sound disposition of judicial

the court at various levels would be established

resources, and judicial job security, all of

according to comprehensive consideration of

which must be carried out in a coordinated

China’s conditions, trial workload, area, size,

way. However, there is currently insufficient

population of the court jurisdiction, and level of

job security, no real judicial independence,

economic development. In 2004, the Opinion

no clear boundaries for judicial accountability,

of Pilot Program for Judges’ Assistants in

low remuneration of judges, heavy workloads,

Some Selected Local Courts selected 18 pilot

and lack of a sense of professional pride. In

courts, including the Haidian Court in Beijing to

spite of this, judges will be held to life-long

explore ways of selecting and managing judges’

accountability for cases they have handled.

assistants, determining judges’ ratios, and

Some will have to resign under the pressure

setting a model for conducting trials. In 2005,

of the government’s need to maintain stability,

the People’s Court Second Five-Year Outline

or the parties’ dramatic petitioning methods, or

(2005-2009) restated that the judges’ ratio-

even commit suicide. All of these factors could

quota of the courts at various levels would be

lead to a lack of support among judges for the

studied, formulated, and gradually implemented

reform measures, and judicial organs’ lack of

according to court jurisdictional level, territorial

incentives. Due to the absence of coordinated

jurisdiction, caseload, and workload.

reform action, the implementation of the pilot reform measures may depart from its original

The judges’ ratio-quota mechanism is now on

intent. According to the Shanghai Program,

the reform agenda, and substantive initiatives

only 33% of judicial officials could be judges, a

have been carried out, but nevertheless the

quota that is usually decided by seniority, and

Shanghai Pilot Reform Program raised some

younger but better judges could only become

widespread concerns, such as: who will be

judges’ assistants. This measure may reinforce

selected to fill the 33% quota of judges; what

the current trend of outstanding judicial officials

will the selection criteria be; to what extent

leaving judges’ positions to become lawyers

seniority, position, and administrative ranking

or other legal professionals, a phenomenon

will play a role; whether young judges will

that goes against normal career trajectory from

become victims of the reform measures;

lawyer to judge.

whether the power of adjudication will be in the hands of good judges; and whether the reforms

The judges’ ratio-quota mechanism is still in its

will trigger a wave of judges resigning.

exploratory phase in the selected pilot courts. Before it is fully expanded, the courts should

Although categorized judicial personnel

consider the following recommendations where

management and judges’ ratio-quota have

the pilot is already ongoing, or about to start:

been on the agenda for a long time, there has

(1) making the judges’ ratio-quota mechanism

been no substantive progress over the years.

flexible: aiming for “fewer but better” judges

This is mainly attributable to the scale of the

and “many and sufficient” assistants; (2)

change the reform would trigger, affecting

completely eliminating administrative officials

system separate from administrative regions”,

officials who do not adjudicate cases another

the Decision of the 4th Plenary Session

chance of choosing their positions; establishing

continued to stress the necessity of exploring

a sound system for those unfit to serve as

the establishment of cross-administrative

judges to quit; (3) expanding the base for

regional people’s courts and procuratorates

judges’ assistants; developing a reasonable

to deal with cross-regional cases. For the

system for more hiring; prohibiting judges’

first time also, the Decision called for the

assistants from simultaneously holding

establishment of circuit courts of the Supreme

administrative positions; (4) establishing an

People’s Court to deal with major cross-

appraisal committee for the selection of judges

regional administrative and commercial cases.

which, aside from being representative and

In December 2014, the Central Leading Group

professional, might also be randomly selected

of Comprehensively Deepening Reforms

ad-hoc from a database of experts when

reviewed the Pilot Program for Establishing

needed; (5) clarifying the selection criteria:

Circuit Courts of the Supreme People’s Court,

apart from educational qualifications and

and the Pilot Program for Establishing Cross-

passing the bar exam, the selection criteria

Administrative Regional People’s Courts and

should emphasize professionalism; avoid using

People’s Procuratorates. The Leading Group

the judges’ rank or administrative grade as

recommended that revisions be made for

metric for professionalism and instead focus on

the approval and implementation of the pilot

the judges’ proven competence, professional

plans. Thereafter, the Supreme People’s Court

experience and ethics; (6) ensuring the

selected Shenzhen city in Guangdong province

transparency of the selection process: making

and Shenyang city in Liaoning province as pilot

public information regarding judges’ position

sites for circuit courts. In Shanghai and Beijing,

vacancies, job requirements, applicants’

the Third Intermediate People’s Court and the

resumes in order to create a shortlist for the

Fourth Intermediate People’s Court and their

positions; release nominations or objections by

corresponding procuratorates were established

Party organizations; and (7) recognizing that

respectively. In January 2015, the Supreme

staffing quotas and financial resources are key

People’s Court adopted the Provisions on

to the success of the reform. Remuneration

Several Issues Concerning the Trial of Cases

for judges should be raised significantly. For

by Circuit Courts and decided that the First

judges’ assistants, remuneration should be kept

Circuit Court would be established in Shenzhen

at the current level with a reasonable increase;

city, covering the provinces of Guangdong,

and there should be more opportunities for the

Guangxi, and Hainan, and the Second Circuit

promotion of judges’ assistants as a career

Court, in Shenyang city, covering the provinces

development incentive.

of Liaoning, Jilin, and Heilongjiang. The Provisions specified the scope and types of

ii. Establishing Cross-Administrative Regional Judicial Organs and Circuit Courts under the Supreme People’s Court

cases to be handled by circuit courts and what

Subsequent to the CPC 3rd Plenary Session

accountability, and the selection of anti-

Decision’s directive of “exploring a jurisdictional

corruption monitors.

types of cases would still be adjudicated by the Supreme People’s Court for the time being. The Provisions also outlined the appointment of circuit court judges, case adjudication

Annual Report on China’s Judicial Reform 2014

from the quota reserved for judges; giving

Although now operational, circuit courts have

caseload, economic development, population

basic defects, in particular unclear role and

density, geographical area, and accessibility.

functions. The original purpose of establishing

(3) The jurisdiction of cases handled by circuit

circuit courts was to eliminate the interference

courts should be expanded. Although the judicial

of local authorities by separating judicial from

interpretation has a catch-all provision including

administrative jurisdiction. In practice, it has

“all other cases that the Supreme People’s

been hard to achieve. Up to now, the main

Court deems necessary to be adjudicated by

function of circuit courts has been to make

circuit courts”, further judicial interpretation

litigation more convenient and accessible in

should clarify that circuit courts have the function

rural areas. As a judicial organ established

of adjudicating cases across administrative

by the Supreme People’s Court, the types

regions. For instance, cases of administrative

of cases handled by circuit courts and the

litigation against specific administrative acts of

Supreme People’s Court are the same, the

ministries and commissions of the State Council

only difference being that the adjudication is

or provincial governments, cases in which

moved from Beijing to local cities. Therefore,

the parties encounter a serious controversy

circuit courts’ main function has become to

regarding jurisdiction and cases that do not fall

reduce the workload of the Supreme People’s

within the same provincial regions should be

Court, similarly to a subdivision of the Supreme

clearly added to the jurisdiction of the circuit

People’s Court in the early years of its

courts.

establishment. Compared to circuit courts, cross-administrative Nevertheless, under the current framework,

regional courts can play a more positive role

circuit courts can still play a positive role

in reducing interference of local authorities.

through the adjustment of the scope of their

However, the emphasis should not be on cross-

jurisdiction and adjudication functions. The

regional courts below the provincial level, as

establishment of circuit courts touch upon

administrative power at the provincial level can

issues such as organizational structure,

still easily influence the judiciary, as illustrated

personnel quotas and disposition, financial

by the situation of the Hainan Intermediate

support, and major revisions to the legal

People’s Court in Hainan province. The

grounds and the jurisdictional system. In this

emphasis on cross-regional courts should be

regard, the following improvements need to be

at the higher court level, as the “de facto final

considered: (1) Although the Organic Law of

judgment body”. In dissolving and merging

the People’s Courts and the procedure laws

higher courts, the reform can take as a guiding

both recognized the circuit trial principle, there

example the People’s Bank’s mega-regional

are so far no legal grounds for the Supreme

model. For instance, one higher court could

People’s Court to establish circuit courts.

cover the entire region of Hebei, Beijing and

Amended legislation is needed to define the

Tianjin.

circuit courts’ function, personnel composition, and financial resources. Timely judicial

Although procuratorates could follow the

interpretation is also needed to regulate trial

same model, the need for cross-regional

activities of circuit courts and periodic personnel

procuratorates is not as important as the

rotations. (2) The number and location of future

relationship between the lower and higher

circuit courts should be decided according to

level procuratorates is one of subordinate

to superior, with the chief procurator as the

clarifying jurisdictional issues and trial levels.

responsible official.

Based on the above-mentioned directives, IPR courts have been established in the

iii. Establishing Intellectual Property Rights Courts

three cities. In the future, intellectual property tribunals of local level high people’s courts will adjudicate administrative cases.

In August 2014, the Standing Committee of the National People’s Congress issued the

At present, many countries have established

Decision on Establishing Intellectual Property

patent courts and intellectual property courts,

Rights Courts in Beijing, Shanghai and

such as in the U.S., Germany, Korea, Japan,

Guangzhou. According to the Decision, IPR

Russia, and Finland. In China in the 1990s,

courts specialize in adjudicating all the city-

some courts’ economic tribunals had patent

level basic courts’ first instance appeal cases

review trial groups, which later became

(of both civil and administrative judgments)

intellectual property tribunals. In 2010, the

concerning copyright and trademark, as

Supreme People’s Court issued the Opinion

well as first instance trials (of both civil and

on Certain Issues Regarding Implementing the

administrative judgments) of more complicated

State’s Intellectual Property Rights Strategy

cases, such as those involving patents, new

and proposed exploring the establishment of

plant varieties, and integrated circuit layout

intellectual property appeal courts. In recent

design. First instance cases are expected to

years, IPR cases in China have increased

realize cross-regional jurisdiction within three

remarkably. In 2013, over 110,000 such cases

years. The chief and deputy chief justices of

were adjudicated, the highest number in the

IPR courts, heads of tribunals, judges, and

world. Increasingly, new and difficult cases

members of the judicial committee shall all

involving highly specialized technology require

be appointed or dismissed by the standing

adjudications. High profile cases, such as

committee of the city-level people’s congress.

the “Power Dekor” brand name trademark

In October, the Supreme People’s Court

protection case, Microsoft v. Chinese Internet

issued a Guiding Opinion on the Selection of

Cafés Infringement, Han v. Baidu Library

Judges for IPR Courts (Trial Version), requiring

that judges of IPR courts, in addition to

3Q War cases, played a role in promoting

requirements provided in the Judges Law, also:

the specialization of IPR adjudication. The

be qualified for fourth-level senior judge; have

4th Plenary Session Decision formally called

at least six years of relevant trial experience;

for “strengthening IPR protection, improving

hold a college or an advanced law degree; and

incentives for innovation, and exploring the

possess a strong ability in presiding over trials

establishment of IPR courts”. The Fourth

and writing verdicts. Judges will be selected

Five-Year Outline subsequently proposed

through an open process by a selection

establishing IPR courts where IPR cases are

committee, according to the requirement of the

concentrated.

judges’ ratio-quota and the accountability of the presiding judge, and with public comments. In

Based on past pilot program experiences,

November, the Supreme People’s Court issued

reform measures introduced the civil and

the Regulation of the Jurisdiction of IPR Courts

administrative IPR cases “two-in-one” model,

in Beijing, Shanghai, and Guangzhou, further

which has a positive impact in resolving

Annual Report on China’s Judicial Reform 2014

problems of inconsistent adjudication

In January 2015, the Central Political and

standards, trademark review and “cycle action”

Law Affairs Commission ordered all central

in patent appeal cases. Criminal IPR cases

and local judicial organs to conduct a

are being excluded for the time being. IPR

comprehensive inventory of existing evaluation

courts, similarly to maritime courts, are the

indicators and abolish unreasonable items,

equivalent of intermediate courts, and handle

such as the number of criminal detentions,

both first and second instance trials. Within

as well as the rate of approved arrests,

the organizational hierarchy, the courts both

prosecution, guilty verdicts, and annual case-

above and below the IPR courts are regular

completion rate.

courts (basic-level and higher courts). There is no corresponding IPR appellate court, nor

Since the adoption of the reform and the open-

a separate IPR judicial system. Measures

door policy, especially in the late 1980s when

for establishing cross-regional jurisdiction,

trial reform started, court management and

appointing or removing judges from office

related evaluation practice gained increased

at the provincial level, and establishing IPR

attention. In 1995, the Judges Law made

tribunals without an administrative ranking,

general as well as specific provisions for the

are all aimed at reducing the influence of

selection body, subjects, principles, content,

local authorities. However, overall, these are

and results of judges’ evaluation. In 1996,

still transitional measures and do not enable

the Temporary Organization Measure of the

sufficient specialization and independence

Judges’ Evaluation Committee introduced

of courts. In the future, IPR appellate courts

provisions for a judges’ evaluation committee

should be established, a “three-in-one” trial

and its organization. In 1999, the First Five-

model gradually implemented, positions of

Year Reform Outline of the People’s Court

head and deputy head of tribunal abolished,

proposed exploring a systematic reform of

and judicial committees replaced by a judge

the management of judicial officials. In 2004,

conference mechanism.

the Second Five-Year Reform Outline of the People’s Court proposed establishing a sound

iv. Abolishing Performance Ranking in the Court System

unified assessment system of the quality and

In December 2014, the Supreme People’s

proposed establishing an assessment system

Court decided to abolish the practice of

centered around trial quality and efficiency,

performance ranking in all higher courts. Apart

and a categorized judicial officials’ evaluation

from necessary indicators such as the case-

and management system based on the merits

completion rate within the trial period of each

of judges, assistants, court clerks, and other

case as mandated by law, all other evaluation

administrative staff.

efficiency of trials. In 2009, the Third FiveYear Reform Outline of the People’s Court

criteria will only serve as statistical reference. This decision aims at ending the phenomenon

Over the years, with the emphasis on

of courts refusing to accept filings toward the

performance management and evaluation

end of the year in order to secure a certain

ranking, trial performance has become the

annual case-completion rate. As a result,

main reference and criterion of court work,

higher courts began to abolish unreasonable

triggering internal competition within the court

evaluation indicators within their jurisdictions.

system over resources, which sometimes led to

to the falsification of evaluations. Abolishing the practice of performance ranking reflects the spirit of judicial work, unties the hands of the

The Notice of Implementing Standard

court, represents a mark of respect for judges,

Sentencing by the Supreme People’s Court

and is in line with the recommendations of

required that, starting January 1, 2014, all

China’s Annual Report of Judicial Reform over

courts in China officially begin to use standard

the years.

sentencing. The Notice would be fully implemented by the end of the year. At the

After the abolishment of the practice of

same time, the Guiding Opinion of Sentencing

performance ranking, and the review of

for Common Crimes was issued, which

existing evaluation indicators, a sound judicial

laid down guiding principles for sentencing:

statistical system should be put in place,

punishment in proportion to the crime,

utilizing information technology and judicial

tempering justice with lenience, and balanced

data management. Accuracy, reliability, and

sentencing. It also provided detailed guidelines

transparency of data should be stressed.

for sentencing, offering guiding opinions on

Judicial data plays an important role in

sentencing circumstances of fourteen common

observing judicial operations, policy-making,

scenarios including failed attempts, surrender

monitoring the exercise of adjudication power,

and confessions, as well as on sentencing

ensuring the public’s right to know, and

range on fifteen common crimes. The Opinion

conducting theoretical research. In the future,

is an amendment and improvement to the

a sound and reasonable system of judges’

2010 People’s Courts’ Guiding Opinion of

evaluation should be established, under

Sentencing (Trial Version). It contributed to

the precondition of strictly ensuring judges’

make sentencing more sound, reasonable, fair,

independence. The judicial committee should

and just. Subsequently, higher courts in Hubei,

be independent from the court and composed

Guangdong, and Qinghai provinces issued

of judges, lawyers, scholars and the public.

corresponding implementation measures. The

Whether this can be achieved on the basis

issuance of these documents indicated that

of the current judge selection commission

reform of standardized sentencing had entered

needs to be further analyzed. In terms of

the stage of full popularization after early

evaluation, the current emphasis on cases

exploration and gradual pilot experiments.

adjudication could be replaced by a focus on judicial fairness and efficiency, including

In the future, more efforts could be made to

judges’ professional ethics, legal competency,

draw lessons from the successful practice of

communication skills and work attitude, with a

sentencing reform in local courts and further

shift from quantitative to qualitative indicators;

improve sentencing procedures and related

and the evaluation of results should only serve

supporting measures, specifically: (1) Further

as a reference. The concern that judges may

promoting the openness and transparency of

slack after the abolishment of performance

the sentencing process. In trial proceedings,

ranking does not seem to be grounded

both parties should be able to examine and

as judicial behavior can be regulated and

cross-examine facts, circumstances, and

monitored through case accountability and

evidence that will affect sentencing. The

judicial oversight.

verdict should state the method used, the

Annual Report on China’s Judicial Reform 2014

v. Popularizing the Reform of Standard Sentencing

the violation of the parties’ right to sue or even

Annual Report on China’s Judicial Reform 2014

process followed, the reasoning and the

to the National People’s Congress in March

legal grounds of the sentence. (2) A relatively

reaffirmed firmly preventing and correcting

independent sentencing procedure should be

miscarriage of justice cases; respecting and

established and there must be a conviction

protecting human rights; strictly adhering to

before sentencing. If the person is found

the principles of convicting and sentencing

not guilty, no sentencing procedure should

according to the law, the presumption of

be initiated, so as to prevent the situation of

innocence, and verdicts based on evidence;

“conviction for the sake of sentencing”. (3)

strictly excluding illegal evidence; giving

Forensic evidence provided by investigation

serious attention to issues reported by lawyers

and prosecution agencies for sentencing

and lawyers’ associations; respecting and

should be strengthened, and attention paid

protecting lawyers’ right to practice according

to evidence used for conviction as well as

to the law. Chief Justice also required lower

evidence used for sentencing. (4) Expanding

courts to report each and every serious case

the scope of criminal charges for which

that appeared to be a miscarriage of justice

standard sentencing will be applicable to and

in order to ensure thorough oversight of such

gradually making it applicable to all charges

cases.

of crimes in the sub-sections of the Criminal Code. The applicable types of sentencing

Progress was made under these reforms.

should be expanded from limited terms of

In April, Wu Zhongxing, a “model worker” of

imprisonment to life imprisonment, and death

Gansu province who had been sentenced

penalty. It is especially important to regulate

to and detained for eight years for crimes of

and standardize sentencing benchmarks for

corruption, was acquitted by the Qingyang

felonies. (5) Introducing guidance cases to

intermediate court. In June, Ms. Bai Chunrong

improve consistency in sentencing standards.

of Liaoning province, who had been sentenced to eight years imprisonment for theft, was

vi. Correcting Miscarriage of Justice Cases

acquitted by the Foshan intermediate court. In

death four times, was acquitted by the Fujian

Rehabilitating and correcting cases of

higher court. In September, Xu Hui, who had

miscarried justice has been the focus of

been imprisoned for 16 years for murder and

the Supreme People’s Court since Zhou

rape, was acquitted by the Zhuhai intermediate

Qiang became Chief Justice. In 2013, courts

court. In December, Huugjilt, who had been

nationwide corrected 12 major miscarriage of

sentenced to death and executed, was

justice cases, such as the Zhang family uncle

posthumously acquitted by the Inner Mongolia

and nephew case in Zhejiang province, the Li

higher court. Compared to past miscarriage

Huailiang case in Henan province, the Xiao

of justice cases, where the “real murderer

Shan case in Zhejiang province, and the Yu

appeared or the allegedly murdered victim was

Yingsheng case in Anhui province. Appeals of

in reality alive, the above-mentioned people

final verdicts and retrials totaled 116,000 cases,

were acquitted for insufficient evidence, which

among which 30,000 cases were retried, 7,415

is in line with the concept of presumption of

verdicts modified, and 825 defendants found

innocence and reflects real progress in criminal

not guilty. The rehabilitation and correction

justice. In the beginning of 2015, the retrial of

work continued in 2014. Zhou Qiang’s report

the Chen Xiaying case was also initiated.

August, Nian Bin, who had been sentenced to

of 1.06 million yuan but however was convicted

corrective work is far from being sufficient. A

for extorting the government and sentenced

number of high profile mishandled cases are

to 10 years imprisonment. In addition, it does

still waiting to be reviewed. For instance, the

not seem reasonable to only hold accountable

Nie Shubin case, the Chen Man case, the

those who directly handle the case, as they

Huang Zhiqiang case and three other suspects

often turn out to be mere scapegoats, while the

involved in a case of rape and murder in

real culprit could be above the law.

Leping, Jiangxi province, as well as the two Mei cases in Shanghai, have not entered

Prevention is more important than correcting

the stage of retrial. An effective correction

mistakes. In order to prevent miscarriage of

mechanism is yet to be established. As long as

justice, not only the principles of presumption

there is no fundamental change in the system

of innocence and exclusion of illegal evidence

that produces miscarriage of justice cases,

must be followed, but a series of measures

judicial accountability is not strictly enforced,

must be also in place, including: counsel’s

and there is no judicial independence, which is

presence, simultaneous audio and video

a precondition for judicial accountability, it will

recording, witness testimonials, police

be hard to carry out and pursue the policy of

officer ’s appearance in court, confession

correcting mistakes.

corroborations, judicial writs, trial level o v e r s i g h t , a n d j u d i c i a l a c c o u n t a b i l i t y.

Seeking accountability for miscarriage of

Withdrawing funds from monetary awards

justice can be particularly challenging. Internal

must be completely abolished, and the funding

disciplinary action within the judicial system is

of judicial operations separated from the

difficult to implement, and external oversight,

monetary amount involved in cases. For a long

weak. Victims cannot effectively participate

time, this unspoken rule has been an incentive

in the accountability review, which is a closed

for abuse of state power for its own benefits. It

process. Miscarriage of justice cases are

is also a huge hindrance for correcting wrongly

too numerous, and public attention shifts

handled cases. The abolition of such practice

too quickly. Moreover, many of the wrongly

must be supported by a policy specifying

handled cases involve the political and legal

that the funding of judicial operations is fully

commission’s coordination or the joint handling

borne by the government budget. Fines and

of the police, the procuratorate, and the court.

confiscated funds must be submitted to the

Resistance is great when too many entities

central government, and financial transparency

are involved. After a case has been corrected,

and public oversight, strengthened. Root

the process moves slowly and it becomes

causes and institutional defects also need

sometimes impossible to enforce accountability

to be addressed: citizens need to be given

retroactively. In some cases, even state

the right to remain silent, lawyers’ rights

compensation cannot be obtained. A striking

effectively protected, police power weakened

illustration of this is the case of a victim who

and oversight strengthened, the function of

was convicted for extortion when he claimed

procuratorate power shifted from oversight

compensation from the government. Jing

to restriction, adjudication independence

Chun, a farmer of Panshi in Jilin province, was

ensured, and no organization or individual

initially unjustly convicted and incarcerated.

should be allowed to interfere in the trial under

After release, he claimed state compensation

any circumstance.

Annual Report on China’s Judicial Reform 2014

Although some success has been achieved,

Annual Report on China’s Judicial Reform 2014

vii. Optimizing the Enforcement Mechanism

Court launched the Executive Command

Progress was made in enforcement reform

with open information and a credit discipline

in 2014. In October, the Supreme People’s

function. From now on, when enforcement

Court and the State Administration for Industry

o ff i c e r s i n i t i a t e a s e a r c h , r e q u e s t s f o r

and Commerce jointly issued the Notice on

information will be aggregated to the Supreme

Strengthening Enforcement and Assistance

People’s Court, and then transferred to

in Implementation through Information

enforcement action units through the network

Cooperation. It specified some procedures

search and control system. In the meantime,

for enforcement actions by the court and

judicial online auctions continued. The higher

the industry/commerce administration in

court of Guizhou province, the local court of

network searches, freezing equity, and

Luohu in Shenzhen city and many other courts

other investment rights and interests. The

conducted open auctions of automobiles, real

Supreme People’s Court and the China Bank

estate, and other enforcement items on the

Regulation Commission also issued a joint

Taobao judicial auction platform.

System, which vertically links the four levels of courts in the country, a network search function

Opinion on People’s Courts and Banking Institutions Conducting Network Control

At present, optimizing the enforcement

and Joint Credit Discipline, promoting a

mechanism mainly depends on information

nationwide enforcement network control and

technology. Although some progress has been

disciplinary mechanism to gradually realize

made, it has not touched upon the current

enforcement measures of searching, freezing,

enforcement system. Overall, in this new

withholding, and deducting through network

round of judicial reform, enforcement reform is

information sharing of the judgment debtors

relatively weak. The power of enforcement is

list in enforcement cases. These documents

unclear, enforcement ability insufficient, cross-

provided detailed implementation measures to

regional enforcement inadequate, and the

the 2013 Supreme People’s Court’s Provisions

attention paid to corruption in the enforcement

of Network Search and Freezing Debtors’ Bank

process, insufficient. The lack of substantive

Accounts, which is conducive to alleviating

progress in enforcement reform may affect

difficulties in enforcement.

trial fairness and public confidence in the judicial system. In order to fundamentally

In October, the Supreme People’s Court

address the problem of “difficult and chaotic

issued the Provisions of Assets Enforcement

enforcement”, it is essential to rapidly

in Criminal Judgment. It specified some

implement the call from the CPC 4th Plenary

provisions of the Criminal Code and Criminal

Session for advancing the pilot system reform

Procedure Law and clarified that the court is

of separating the power of trial from the power

responsible for the enforcement of levying

of enforcement. A specialized enforcement

fines, confiscating assets, ordering restitution,

agency, independent from the court, should be

controlling the time for transfer and review of

established, using administrative and police

filings, and recovering fungible crime proceeds.

operations. The power of enforcement should

The Provisions contributed to the assets-

be decentralized, efficiency enhanced, and

related enforcement as part of a criminal

oversight strengthened. Legislative action over

judgment. In December, the Supreme People’s

the Enforcement Law needs to be expedited,

Parties in Trial Activities.

the overall framework of judicial reform. It is worth recognizing that in the “rectification”

viii. “Rectification Movement” and Strengthening Judicial Oversight

drive the Supreme People’s Court placed a

Subsequent to the CPC 18th National

improvement of judicial work style, and

Congress and the Eight Provisions on

judicial fairness cannot be achieved through

Improving Work Style and Having Close Ties

issuing numerous directives and launching

with the Masses, a wave of “rectification”

“rectification” drives. Future judicial reforms

campaigns was set off in the country as well

must focus on ensuring the independence

as in the court system. A series of directives

of judges, clarifying responsibility lines,

were issued, which included: Six Measures on

ensuring judicial protection, oversight, and

Further Improving Judicial Work Style; Notice

accountability, and establishing a sound

of Conducting a Judicial Work Style Education

judges’ disciplinary mechanism. The role of the

in all Courts in the Country; Implementation

parties and counsel should be given full play

Plan of Intensified Efforts of Dealing with

to enable them to seek rights and interests to

Illegal Purchasing and Using Official (Police)

the maximum extent as an effective means to

Vehicles and Illegal Business Activities; Notice

exercise public oversight. In the internet era,

on Clearing and Returning Membership Cards

guaranteeing freedom of speech is also an

in the National Court System; Ten-Not-To-

effective means of enhancing public oversight.

great emphasis on judicial oversight, including oversight by the parties. Yet, reforms over the years have long proved that judicial corruption,

Do Provisions to Rectify Unhealthy Tendency during Holidays and Festivals; and Notice on

In addition, the Opinion on Strengthening

2014 Judicial Probity Education Campaign in

Adjudication of Environmental Resources

the National Court System.

Cases to Provide Powerful Judicial Protection for the Construction of Ecological Civilization

In 2014, the Supreme People’s Court kept the

proposed to establish a mechanism for

momentum of the “rectification” campaign by

coordinating the filing of cases and publicizing

issuing additional directives such as: Guiding

the cases that are accepted; special funds

Opinion on Further Strengthening Discipline

for environmental public interest litigation; an

and Work Style of People’s Courts under

environmental resources trial experts’ pool;

the New Situation; Urgent Notice on Further

and a specialized tribunal. These measures

Strengthening Rectification during the Spring

are conducive to improving the environmental

Festival Period; Guidance on Conducting

civil public interest litigation system. The Fourth

the Second Party’s Mass Line Education

Five-Year Outline also proposed promoting the

Activities; Implementation Opinion of the

establishment of environmental resources trial

Main Responsibility of Building a Clean Party

bodies.

and Government (Trial Version); Notice on Strengthening Judicial Fairness for the People by Addressing the “Six Difficulties and Three Types of Cases”; and Provisions on the Court Pro-actively Accepting Oversight of Litigation

Annual Report on China’s Judicial Reform 2014

and enforcement reform implemented under

Annual Report on China’s Judicial Reform 2014

III. Reform Measures of the Procuratorate The main measures of procuratorate reform

people’s monitors. According to the directives,

in 2014 can be summarized as follows:

people’s monitors will be selected and

implementing the Decision of the 3rd Plenary

managed by the judicial administration agency.

Session; mapping out future procuratorate

When needed for participation in monitoring

reform programs; promoting reform of

specific cases, people’s monitors will be

petitioning involving legal action; deepening

randomly selected by the procuratorate from a

the three pilot reforms, namely the practice of

pool. The scope of oversight will be expanded

people’s monitors, procurator’s accountability,

to include three monitoring situations: illegal

and making the procuratorate process public;

measures used in mandatory residence

improving criminal appeal review; strengthening

surveillance while investigating official

anti-corruption efforts in collaboration with

misconduct; impeding lawyers and litigants to

the Party’s Central Committee of Discipline

exercise their right to sue according to the law;

Inspection and its intensified anti-corruption

and illegal non-refund of bail bonds. Oversight

campaign; and improving work style and

is being improved by adding a review

internal oversight under the “rectification

procedure: when the opinion of the majority

movement”.

vote is not accepted, people’s monitors can request a review. The directives also called

i. Deepening the Reform of People’s Monitors Practice

for securing the right to know; establishing a

The people’s monitor practice was

ensuring monitors’ participation in follow-up

introduced in 2010 as an important means

visits and enforcement acts. In October, the

of strengthening democratic oversight and

Decision of the 4th Plenary Session reiterated

restraining the procuratorate’s power. This

that “the practice of people’s monitors should

effort made headway in 2014. In September,

be improved with an emphasis on monitoring

the Supreme People’s Procuratorate issued

law enforcement activities of the procuratorate

the Pilot Reform Program on the Scope

in handling official misconduct, especially

and Procedure of Oversight by People’s

regarding case filing, detention, seizure of

Monitors and the Opinion on Pilot Reform of

frozen assets, and prosecution”.

crime ledger for official misconduct; making public matters under monitors’ oversight; and

the Selection and Management of People’s Monitors. It was decided that, from October

The directives respond to some of the

2014 to June 2015, pilot reform of the selection

issues repeatedly mentioned in previous

and management of people’s monitors would

Annual Reports on China’s Judicial Reform,

be launched in Beijing, Jilin, Zhejiang, Anhui,

such as the inappropriate selection and

Fujian, Shandong, Hubei, Guangxi, Chongqing,

management of people’s monitors; the limited

and Ningxia. The directives also provided

scope of monitoring; the difficult monitoring

guidelines for the selection body and process,

process; and unsatisfactory effectiveness

as well as qualifications and management of

and implementation. To a certain extent,

accountability of procuratorates, and allowing

by correcting the inherent defect of “the

people’s monitors’ participation in attending

procuratorate inviting someone to monitor its

interrogation of the suspect, examination of

own actions”. It should be acknowledged that

witnesses, statements of relevant individuals

procuratorates seized the opportunity of the

and lawyers, as well as procedures of asking

new round of judicial reform to make some

questions, making comments, and casting a

breakthroughs in the practice of people’s

vote.

monitors. More could be done on ongoing

ii. Promoting Transparency in Procuratorate Work

pilot measures and future reforms, namely: (1) The selection of people’s monitors could be done with broader representation and the process, more open. Monitors must be

In 2014, the procuratorates made efforts in

independent from the agency to be monitored.

promoting transparency through regular press

Self-recommendations and more flexible

release and news media release of major

eligibility requirements should be encouraged.

cases. Starting in April, the Supreme People’s

In the long run, being a people’s juror and

Procuratorate has been regularly publicizing

people’s monitor could become one of

information of major official misconducts on

citizens’ obligations, and citizens randomly

its own website. In June, the Implementation

selected from voters’ lists. (2) The scope

Measures of the Supreme People’s

of monitoring could be further expanded.

Procuratorate’s Press Release was issued,

At present, the focus could be on how final

declaring that all matters involving important

decisions are made by the procuratorate.

policies, work strategies, major events,

Later, under certain circumstances, the focus

important judicial interpretations and regulatory

could be further expanded to include cases

documents, important reform measures,

transferred from public security organs to the

and major sensitive emergency situations

procuratorate. (3) Procedural monitoring could

would be disclosed to the public. In July, the

be further improved. Reasonable provisions

Supreme People’s Procuratorate released

should be introduced regarding case transfer

the Temporary Implementation Measures for

and monitoring, arrangements for time and

Disclosing Major Cases of Official Misconduct.

place, interrogation, file-reading, records

In October, the People's Procuratorate Case

checking, and archive keeping. Measures to

Information Disclosure Provisions (Trial

make information on monitored matters public

Version) was issued, which advanced the full

should be fully implemented to ensure the right

implementation of an online search of case

to know and the process, open and smooth.

procedural information, the press release of

(4) As the effectiveness of monitoring is key

major case information, and transparency

for its sustainability, the practice should be

of legal instruments. In the meantime, the

further enhanced and gradually transition from

People’s Procuratorate Case Open Information

strictly implementing procedural law to also

website was officially launched.

implementing substantive law, and from the current monitors’ opinions review procedure

These measures demonstrate that the

to more acceptance of monitors’ opinions.

procuratorates are adapting to the new

(5) Support systems need to be established,

era of media information dissemination

for instance, improving merit evaluation and

and responding to the demands for public

Annual Report on China’s Judicial Reform 2014

new dynamism is added to the mechanism

Annual Report on China’s Judicial Reform 2014

participation by transitioning toward disclosing

review, and if the procuratorate decides to

the process rather than just disclosing

suspend or terminate the review, notifying

the results of the procuratorate work. The

the appellant; (5) standardizing the time limit

disclosure of case information and legal

for appeal to two months; (6) establishing

instruments has great significance. It indicates

ten situations where challenges to verdicts

that, following the court’s opening of three

should be allowed and procedures specified

major platforms, the procuratorate has also

for challenging appeals to the higher level

completed the transparency requirement.

procuratorate; (7) strictly enforcing record

The next step will be implementation and

keeping and accountability for mistakes.

improvement. Procuratorate work disclosure is the reform measure that is the least difficult to

These are important amendments sixteen

implement and the most effective. In furthering

years after the original provisions were

these efforts, the following could be considered:

introduced and contribute to strengthening

(1) further clarifying and expanding the scope

the procuratorate’s oversight in criminal

of disclosure by relaxing disclosure criteria for

appeals and mistake correction by alleviating

case information and legal instruments; (2)

to a certain extent the long-existing issue

clarifying accountability for the non-disclosure

of discretionary power in criminal appeals.

of information that should be disclosed so as

However, in essence, the default of the

to avoid selective disclosure and superficial

procuratorate self-policing its own criminal

disclosure as a mere formality; more disclosure

appeals remains unaddressed. Procedural

is required for cases that are of great public

improvements cannot really resolve the

concern; and (3) timely responding to public

problem of the procuratorate “correcting its

inquiry and comments, especially prompt and

own mistakes”. Under the current system,

open response to crime reports.

the procuratorate is playing a dual role of state prosecutor and legal oversight body.

iii. Improving the Review of Criminal Case Appeal

Under the pressure of case adjudication,

The Provisions for Criminal Appeal Review of

own wrongly-handled cases and hold itself

People’s Procuratorates, issued in October

accountable. Thus, the implementation of the

2014, clarified jurisdictional procedures,

amendments remains very difficult. Moreover,

adjudication, filing, and review of criminal

in order to have a sound criminal appeal

appeal cases. It aimed at improving internal

practice, supporting measures are needed,

checks and controls and regulating review

such as a mechanism to terminate litigation

procedures to protect the legitimate rights and

and the provision of judicial remedies.

quality evaluations, and accountability, the procuratorate has no incentive to check its

interests of the appellant. The main points of

iv. Strengthening Internal Monitoring

the Provisions are: (1) expanding the scope of the open review process to include appeals of verdicts and rulings that already took effect;

Under the background of the “rectification”

(2) lowering the threshold for appeals; (3)

campaign, in 2014 the procuratorates issued

increasing the conditions for appeals and

several documents strengthening internal

the requirements for appeal documents; (4)

control and supervision. The Provisions

listening to appellant’s views in criminal appeal

on Strengthening Internal Supervision of

Provisional Measures on the Supreme

Prevent Interference listed seven situations

People’s Procuratorate Internal Audit, and

where interference may occur, such as:

Work Rules on the Planning and Finance

being invited to meet with the procurator

Equipment Bureau, which together laid down

privately; inquiring about the procurator who

detailed rules for expenses related to official

is handling the case; pulling strings for the

hospitality, projects, conferences and business

case; pleading for mercy; or exerting pressure.

trips, and office equipment. In September, the

These situations will affect fair adjudication

Supreme People’s Procuratorate held the first

of the case and must be reported to the

online press conference and publicized guiding

superior leadership or disciplinary office. In

cases for challenging criminal verdicts on

September, the Discipline Inspection Group of

appeal. The purpose of this publication was to

the CPC Central Commission for Disciplinary

correct the tendency of “giving more attention

Inspection Office at the Supreme People’s

to prosecution, and less to the challenge of

Procuratorate and the Inspection Bureau at

a verdict”, “only challenging misdemeanor

the Supreme People’s Procuratorate jointly

cases but not felonies”, and “emphasizing

issued the Implementation Opinion on the

cooperation but not supervision”. This is the

Supervising Responsibility for Constructing

fifth batch of guiding cases that the Supreme

a Clean Government, which required the

People’s Procuratorate has published.

rectification of “four unhealthy tendencies” and an improvement to enforcement work style.

In the beginning of 2015, the Supreme People’s Procuratorate issued the Work Plan

Although they may play a cautionary role, these

for Deepening Procuratorate Reforms (2013-

directives do not represent any breakthrough

2017), which laid out six major reform tasks

and seem to be no more than repetitions of

and forty-two specific measures. The six

past documents. As the judicial organ of anti-

major tasks include : (1) ensuring independent

corruption and legal oversight, it is necessary

and fair exercise of procuratorate power; (2)

for the procuratorate to strengthen internal

establishing a personnel management system

control and supervision. Yet, any reform

suitable to the professional characteristics

measures based on the logic of self-policing

of procuratorates; (3) improving the exercise

makes it hard to achieve effective results.

of procuratorate power; (4) improving the

Real change can only happen when internal

legal monitoring of anti-corruption efforts,

monitoring is being replaced by external

and enhancing the ability of investigation,

oversight. Specific measures should include

adjudication, and prevention of official

ensuring the rights of litigants and lawyers,

misconduct according to the law; (5)

encouraging crime reporting by the public,

strengthening legal monitoring functions in

disclosing the handling and results of reports,

criminal, civil, and administrative litigations; (6)

and substantially promoting the transparency

strengthening monitoring and restrictions over

of the procuratorate function.

the exercise of procuratorate power.

In addition to the above, the Supreme People’s Procuratorate issued eight other documents, such as Implementation Measures on Domestic Official Hospitality Management,

Annual Report on China’s Judicial Reform 2014

Adjudication and Enforcement Activities to

Annual Report on China’s Judicial Reform 2014

IV. Reform Measures for Public Security and Judicial Administration Reform in the field of public security may go

of torture and mistreatment of criminal

deeper and further according to overall reform

suspects; using audio and video recording

arrangements. As far as judicial administration

in questioning suspects; carefully reviewing

is concerned, although some measures have

and promptly addressing suspects’ argument,

been taken towards community correction of

appeal, and complaint; listening to the defense

released inmates and people’s mediation, on

counsel’s opinion during investigation;

the whole, there have been no substantive

regulating the seizure, freezing, and disposition

reforms in recent years.

of case-related assets; implementing centralized management of case-related

i. Comprehensively Deepening Public Security Reform

assets; and improving mistake correction

At the end of 2014, the 8th Meeting of the

are implemented, it will definitely contribute

Central Leading Group of Deepening Reforms

to regulate enforcement power, reduce

called for the first time for “comprehensively

miscarriage of justice cases, and promote

deepening public security reform”. In February

social justice. However, the fundamental

2015, the Framework Opinion Regarding

approach to restricting power and protecting

Several Major Issues in Comprehensively

human rights lies in checks and balances.

Deepening Public Security Reform and related

Lawyers’ participation, judicial independence,

reform programs were reviewed and approved.

and effective checks and balances are also

The Opinion covered seven major reform

crucial factors to ensure the sound exercise of

tasks with over a hundred specific measures.

investigative power.

and lifelong accountability for miscarriage of justice cases. If these reform measures

The seven tasks include: safeguarding state

ii.Strengthening Systemic Reform of the Supervision of Lawyers

security; innovating mechanism for social order control; deepening administrative reform of public security; improving the exercise of enforcement power; improving the

In April, the National Bar Association issued

management of public security agencies; and

the Opinion of Further Enhancing Lawyers’

improving the management of police officers

Credibility and Regulations for Information

and supporting personnel. Among these

Management of Lawyers’ and Law Firms’

reforms, improving the exercise of enforcement

Credibility. The directives aim at addressing

power has a connection to judicial reform.

the problems of “transfer of benefits”, “malicious

Specifically, improving enforcement power

manipulation”, “unreasonable fees”, and

involves reforms of the trial-centered litigation

inappropriate judicial comments through

system in the following aspects: strengthening

internet media. It is proposed that a national

evidence collection according to the evidence-

lawyers’ credibility information system be

based judgment requirement; strictly enforcing

established, the monitoring of professionalism

exclusion of illegal evidence and the prohibition

strengthened, and the interactions of

committee could be established within the bar

as to enhance the overall credibility of the

association, consisting of lawyers, judges,

legal profession. For example, the Beijing

and social figures. The committee could have

Bar Association recently took disciplinary

the power to accept complaints, conduct

measures against seven lawyers involved in a

investigations, and make recommendations.

rape case, in the form of public condemnation,

Disciplinary measures could be taken by the

admonition, reprimand, and recommendations

bar association with procedures for remedies.

of practice restrictions.

In today’s China, where the rule of law and the role of lawyers are greatly emphasized, the

In the past few years, a number of measures

conditions for lawyers’ self-management are

have been implemented, such as enhanced

mature. It is therefore necessary to promote

supervision of lawyers through rectification

the reform of a lawyers’ supervision system

drives, the regulation of law firms, and

and let bar associations be the management

lawyers taking oaths. In June, the Ministry of

body, provided that they are formed by bona

Justice issued the Opinion Regarding Further

fide election. The practice of annual review

Strengthening of Lawyers’ Professional

of lawyers should be completely abandoned

Ethics. The Opinion advocated the values of

and judicial administrative agencies gradually

“loyalty, serving the people, rule of law, justice,

withdraw from lawyers’ management.

credibility, and dedication”, as well as building lawyers’ ethics and professionalism through

The degree of focus on regulating lawyers’

means of regulations, training, supervision,

comments on the internet is subject to debate.

evaluation and awards, and ensuring support.

Over the past few years, a batch of lawyers nicknamed the “die-hards lawyers” has

Although necessary, the supervision and

emerged. Under a harsh and unjust judicial

management of lawyers must be undertaken

environment, these lawyers have had no choice

in an appropriate manner. At present, lawyers

but to fight hard to safeguard the dignity of

are under the dual leadership of the judicial

the law and the rights of the litigants. If judicial

administrative agency and the bar association,

organs abided by due process and procedural

with the former taking the lead, and the latter

justice, and respected lawyers’ rights, there

having a subordinate role. In terms of discipline,

would be no need for die-hard lawyers. Yet

the bar association only has the power to

in practice, lawyers enjoy a low status, and

issue public condemnation, admonition,

their right to practice is not being protected.

reprimand, and cancel membership. The

It is difficult for them to meet with their clients

power of substantive disciplinary measures,

in detention, to participate in investigations,

such as suspensions and disbarment, are in

and to access files. And it’s common for

the hands of a judicial administrative agency.

lawyers to be scolded, discriminated against,

Disciplinary measures, and annual reviews

body searched, expelled from court, and

of lawyers licenses, have become a sharp

even arrested and detained. The pressure on

sword over the head of lawyers. Therefore,

lawyers was especially high in 2014. Not only

the reform of the supervision of lawyers

were many lawyers’ right to practice restricted

could begin with giving the power to take

or deprived, such as in the cases of Xie Yang,

disciplinary measures to the bar association

Cheng Hai, and Wang Quanping, but also

instead. Specifically, a lawyers’ disciplinary

many prominent lawyers were arrested, and

Annual Report on China’s Judicial Reform 2014

lawyers and judicial officials regulated, so

Annual Report on China’s Judicial Reform 2014

one was even arrested in court. On December

Despite some improvements, current

11, 2014, Judge Zhou Fengwu of Xi’an

reforms usually focus on superficial matters

district court in Liaoyuan city, Jilin province,

such as office building, mediation process

colluded with police officer Jin Zhenyu and

standardizing, file organizing, and report

illegally arrested lawyer Zhang Keke, who was

writing. Efforts towards enhancing mediation

performing his legal duty of defense in court.

organizations’ actual conflict resolution

This case had a serious adverse impact on

capacity are very limited, therefore the rate and

the rule of law and lawyers’ right to practice.

quality of dispute resolution, unsatisfactory.

Lawyers represent litigants, and anyone who

In addition, the current people’s mediation

may become their clients, and act on behalf of

system is government controlled, externally

society. Therefore, the deprivation of lawyer’s

imposed and thus lacks the inherent vitality

rights represents societal oppression. It is

of civil society self-initiated mediation. Future

extremely important to safeguard lawyers’ right

reforms need to shift from exogenous to

to practice and to protect their personal rights

endogenous types of mediation, and eventually

as securing lawyers’ rights represents securing

to self-governed community mediation. This

the rule of law.

will fully ensure the voluntary, spontaneous, and autonomous nature of mediation, make

iii. Improving Industry-Based and Profession-Based People’s Mediation System

mediation a real self-governing, self-learning, self-restraining, and self-servicing dispute resolution mechanism, and address the current situation of low efficiency.

I n O c t o b e r, t h e O p i n i o n o n F u r t h e r

iv. Enhancing the Quality of Legal Aid

Strengthening Industry-Based and ProfessionBased People’s Mediation was issued, which stressed the importance of strengthening industry-based and profession-based mediation,

“Low quality” has been the chronic defect

especially in the fields of healthcare, road

of legal aid. In January 2014, the Measure

and transportation, labor disputes, asset

for Handling Legal Aid Complaints officially

management, and environmental protection.

took effect. It introduced specific provisions

The Opinion also called for expanding the scope

for complaints against legal aid in terms

of mediation. The CPC 4th Plenary Session

of situations, ways of making complaints,

Decision reaffirmed “strengthening industry-

acceptance conditions, handling processes,

based and profession-based people’s mediation,

time limits, and procedures of remedies.

and forming a joint work system of people’s

The purpose of the Measure is to strengthen

mediation, administrative mediation, and judicial

the supervision of legal aid, standardize

mediation”. Since the Ministry of Justice issued

complaints channels, and enhance the quality

the Opinion on Strengthening Industry-Based

of legal aid. However, the directive neglected

and Profession-Based People’s Mediation

to mention the right to respond to a complaint.

Committee in 2011, China has established over

Filing a complaint is a necessary means for

30,000 industry-based and profession-based

the parties to monitor legal aid actions, and the

people’s mediation organizations, with about

effectiveness of the complaint depends on the

130,000 mediators, who have successfully

parties’ ability to make a sound judgment. In

mediated over 3 million cases.

practice, the majority of complaints’ feedback

including Shanghai, Guangdong, Jilin, Hubei,

mainly because of the parties’ inability to make

Hainan, Qinghai, and Guizhou. The court, the

a sound judgment, especially given their lack

procuratorate, and the judicial administrative

of a clear understanding about what kind of

agency, respectively, issued reform plans and

service a legal aid lawyer can provide to a

implementation measures. According to the

criminal suspect in detention.

official disclosure statement, by the end of 2014, 80 major reform tasks and 108 specific reform

The Ministry of Justice and the Supreme

measures had been completed by various

People’s Court jointly issued the Opinion for

government agencies, and 370 results reported.

Strengthening Legal Aid in State Compensation Cases, which expanded the ways of applying

In the past year, significant progress has been

for legal aid; increased case-handling

achieved on some reform measures, such as

allowances; improved the quality control of

abolishing performance ranking in the court

case-handling; established dispute resolution

system; improving the parole and commutation

mechanisms; and reflected the intention of

system; piloting the practice of summary

guaranteeing the right to state compensation

criminal judgement; revising the administrative

of the poor in need.

procedure law; deepening the reform of people’s monitors; establishing intellectual property

Although judicial administrative agencies

rights courts; correcting miscarriage of justice

at various levels have tried different quality

cases; and popularizing the reform of standard

control pilot measures, the effect has not been

sentencing. Some other measures however

apparent due to the lack of independence of

encountered great resistance, which resulted in

evaluation bodies, non-uniform evaluation

unsatisfactory implementation. These measures

standards and procedures, administrative

include the pilot reform of judicial officials’ ratio-

interference, lack of professionalism, and

quota mechanism and selection committees

insufficient funds. Enhancing the quality of

of judges and procurators; the establishment

legal aid must be done at a larger scale.

of circuit courts under the Supreme People’s

Not only is it necessary to strengthen the

Court; and the reform of petitioning involving

handling, distribution, and evaluation of legal

legal action. Overall, although most reform

aid cases, but more importantly, it is critical to

measures are still ongoing, only a few really

mobilize additional financial support, increase

touched upon systemic reform, and even for

case-handling allowances for lawyers, put in

those that did, the implementation and actual

place suitable incentives, and encourage the

results were limited. More importantly, the key

participation of civil society organizations.

issue of judicial independence has not been sufficiently addressed.

Conclusion: Establishing a Constitutional Review Mechanism

In sharp contrast with actual results, the central

A new round of judicial reform officially kicked

Congress has repeatedly emphasized the

off in 2014. Along with the direction laid out by

importance of the rule of law, which it raised

the 2013 CPC 18th National Congress and its

for the time at the 4th Plenary Session to

3rd Plenary Session, pilot reform programs were

the height of top priority. Thus, the rule of

launched in seven provinces and municipalities,

law and governing the country according to

government since the CPC 18th National

Annual Report on China’s Judicial Reform 2014

and evaluation become a mere formality,

Annual Report on China’s Judicial Reform 2014

the Constitution should not remain at the

review over the past twenty years. Typical

level of rhetoric and policy but must be fully

unconstitutional cases, such as the Sun

implemented. The Constitution being the

Zhigang case, the Qi Yuling case, and the

supreme law of the country, no political party,

series of forced labor cases in Chongqing

organization or individual should be above it. As

aroused widespread public concern. Yet no

the key to ensure the effective implementation

progress towards constitutional review has

of the Constitution and a benchmark of a

been achieved so far. The National People’s

country’s actual abidance to the rule of law,

Congress or its Standing Committee has never

anyone committing an unconstitutional act

taken the initiative to exercise the power of

must be held accountable. As part of political

constitutional review.

reform, judicial reform should be linked to the implementation of constitutionalism.

Under the current situation, where a great emphasis is placed on governing the country

Recalling history, from the first constitutional

according to the Constitution, whether the

document in modern Chinese history, the

Constitution can work in practice has become

Outline of Imperial Constitution, to the

a crucial factor for China’s transformation.

Provisional Constitution of the Republic of

In theory, as an inevitable requirement,

China, the Chinese Constitution has gone

Chinese constitutionalism has to be socialist

through a long series of ups and downs. After

constitutionalism. In terms of system building,

1949, the 1954 Constitution could be seen as

a mechanism of constitutional review must be

a milestone of China’s legal construction. Yet

established expeditiously.

the authority of the Constitution was never established. In practice, the phenomena of

A system of constitutional review cannot

constitutional violations, illegal administrative

be put in place overnight. In the long run,

acts, and “the Party above the law” remained

a Constitutional Court or Constitutional

rampant. The authority of the Constitution

Commission should be established to

was totally destroyed during the Cultural

adjudicate constitutional lawsuits or claims

Revolution. One of the root causes of

filed by citizens or organizations. This is bound

the lack of authority of the Constitution

to be a difficult, long, and complex process. At

was the absence of constitutional review.

present, a more realistic approach would be to

Unconstitutional acts did not bear any adverse

establish a special constitutional review body

consequences. The 1954 Constitution

under the Standing Committee of the National

included provisions for constitutional review

People’s Congress which would exercise the

and judicial independence, but these were

power to review the legality of all legislation.

never implemented. The 1982 Constitution

According to the current legislation, under

restored a constitutional oversight mechanism

Article 41 of the Constitution, citizens have the

on paper, stating that the National People’s

right to make criticisms and recommendations,

Congress and its Standing Committee have

and Article 90 of the Legislation Law provides

the right to oversee the implementation of

that citizens have the right to recommend the

the Constitution, but no relevant review body

review of the legality of legislation. However,

or procedure was established. As a result,

these two important rights and the system they

outright unconstitutional acts kept on occurring,

rely on have long been shelved.

which led to persistent calls for constitutional

against the responsible administrative agency

mechanism, the following recommendations

as a start. (6) The entire review process should

should be considered: (1) A constitutional

be open and transparent. Once the review body

review body should be established under the

is properly functioning, it could be elevated

Standing Committee of the National People’s

into a Constitutional Committee operating at

Congress and review procedures, clarified.

the same level as the Standing Committee

Open hearings should be introduced. Litigants

or directly lead to the establishment of a

should be able to engage legal counsel in

Constitutional Court.

the review process. Provisions should be formulated to specify time limits for responses,

In 2015, the new round of judicial reform was

review procedures, rights and obligations of the

further pursued. At the beginning of the year, the

parties, liability of illegal action, and remedies.

Party Committee of the Supreme People’s Court

(2) The scope of constitutional review

met and decided the reform tasks of the year:

should be expanded. Currently, only specific

actively studying and advancing trial-centered

regulations made by administrative agencies,

litigation reform; expeditiously implementing

local governments, and autonomous regions

judicial accountability; establishing circuit

are subject to constitutional review. The scope

courts, cross-administrative regional courts and

of review should include all laws, resolutions,

intellectually property rights courts; expanding

decisions, and regulative decrees adopted

judicial transparency and improving the three

by the National People’s Congress and its

open platforms of trial process, judgment

Standing Committee. (3) Litigation regarding

documents, and enforcement information;

constitutional review should be introduced. In

strengthening judicial protection of human rights;

the course of court adjudication, if and when

further correcting and preventing miscarriage

it is found that a relevant legal ground for

of justice cases; and regulating commutation,

litigation is in violation of the Constitution or

parole, and probation.

a higher-level law, the adjudication should be suspended and submitted for constitutional

In January 2015, the Central Work Conference

review. (4) The constitutional review body

on Politics and Law was held, and called for

should be able to initiate a review and be

eradicating the influence of Zhou Yongkang.

responsible for reviewing all registered regulative

The following reform measures were also

documents as well as to revoke or correct

adopted: abolishing performance ranking

any regulation that violates the Constitution

in the court system; allowing appeals of

or the law. A Constitutional review database

criminal verdicts to be reviewed by a different

should be established. For cases for which a

jurisdiction; shifting judicial work towards better

review decision has been made, the review

applying the principles and approaches of rule

request shall not be accepted again. (5) The

of law, focusing more on deeper issues, better

accountability of an unconstitutional act should

utilizing ICT-based approaches, and becoming

be established. It should be clarified that any

more open; establishing a highly effective

law, regulation, or regulative decree is invalid if

multi-dimensional social order control system;

found in violation of the Constitution or a higher-

launching the second batch of pilot reforms

level law. The responsible parties should bear

in 11 selected provinces and municipalities;

the consequences of a constitutional violation.

establishing pilot cross-administrative regional

The consequences should be first enforced

courts and procuratorates; establishing records,

Annual Report on China’s Judicial Reform 2014

In order to implement a constitutional review

Annual Report on China’s Judicial Reform 2014

reporting, and accountability for leading

issue of judicial independence, avoided.

officials’ interference in judicial work; improving

At present, the establishment in China of a

the protection of judicial officers performing

constitutional review mechanism seems hard

official duties; removing unreasonable merit

to envision. The country still has a long way

evaluation indicators; redoubling efforts in

to go in order to fully realize the rule of law.

ensuring independent and fair exercise of

It is our hope that in 2015 judicial reform will

judicial power; and deepening public security

continue to make progress towards a reduction

and judicial administrative reforms.

in the interference of local authorities and administrative agencies, and the establishment

If some progress has been achieved: the rule

of a constitutional review mechanism in the

of law was reaffirmed, and some erroneous

spirit of “governing the country according to the

ways of thinking corrected, reforms stalled

Constitution”, and will result in an independent,

on other fronts: the saying that “the law is

just, and efficient socialist judicial system.

a sharp weapon of the state” re-emerged, constitutionalism was criticized, and the key