Annual Report on China's Judicial Reform 2015

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Annual Report on China’s Judicial Reform 2015

By Xu Xin, Huang Yanhao, Wang Xiaotang*

*Author’s introduction: Professor Xu Xin, Professor of Law & Director of IAJS, Beijing Institute of Technology School of Law; Dr. Huang Yanhao, Postdoctoral Researcher at Law School of Xiangtan University; Wang Xiaotang, PhD Candidate, Nanjing Normal University School of Law.

Foreword Rule of law, legal empowerment, and access to justice are enabling conditions for all aspects of human development. Together, they are fundamental to achieving the Sustainable Development Goals (SDGs) by establishing social order, protecting vulnerabilities from abuse, and enlarging participation in public decision-making.

One of the key cornerstones towards the rule of law is an independent, accountable, and effective judicial system. 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 fiveyear judicial reform programmes, UNDP has been offering policy advice and international expertise to assist the Supreme People’s Court on a number of key judicial priorities.

2015 has been another pivotal year for judicial reform in China. The Implementation Plan on the current round of judicial reforms, released in April, set the blueprint and timetable for the reforms announced in the Fourth Five-Year Judicial Reform Plan (2014-2018) in 2014. The reforms cover a broad scope with measures adopted to strengthen judicial accountability and improve the capacity of the judiciary.

This report presents and analyzes recent developments in judicial reform that occurred over the past year. It highlights the ambition for comprehensive reform by focusing on general as well as specific measures across different areas of the judiciary, the procuratorate, and the legal profession at large, and reflects on the successes and challenges in their implementation.

UNDP is pleased to support Professor Xu Xin and his research team in the preparation of this comprehensive review. We hope that the present report and the views it offers will be of interest and use to policy makers, international and national legal experts, scholars and practitioners, as well as all those who interested in judicial reform in China.

Agi VERES

Country Director

UNDP China

Contents

Introduction ………………………………………………………… 1 I. General Reform Measures ……………………………………… 3 i.

Strengthening the Judicial Accountability System ………………………………… 3

ii.

Establishing a Responsibility Investigation System Guarding Against Senior

Officers’ Interference with Judicial Process ………………………………………… 5

iii. Regulating Disposition of Property Related to Criminal Proceedings ……………… 8 iv. Release of Amendment IX to Criminal Law of P.R.C. ………………………………… 10 v.

Protecting the Right of Defense in the Death Penalty Review Procedure ………… 12

vi. Release of the Judicial Interpretation of Civil Procedure Law ……………………… 13 vii. Strengthening the Career Security Guarantee System for Judges and Procurators ………………………………………………………………………… 13

II. Reform Measures in the Court System ………………………… 16 i.

Deepening the Reform of the People’s Assessors System ………………………… 16

ii.

Exploring the Establishment of Cross-administration Judicial Jurisdiction

System ……………………………………………………………………………… 20 iii. Promoting the Reform of the Case Docket Registration System ………………… 21 iv. Promoting the Reform of the Case Guidance System …………………………… 23 v.

Improving Enforcement Mechanism ……………………………………………… 25

III. Reform Measures of the Procuratorate ……………………… 27 i.

Piloting Public Interest Litigation by Procuratorial Organs ……………………… 27

ii.

Deepening Reform of the People’s Supervisors System ………………………… 29

iii. Improving the Review Mechanism of the Necessity of Continued Custody ……… 30 iv. Establishing the People’s Procuratorate’s Request for Instructions System ……… 31 v.

Standardizing Judicial Interpretation ……………………………………………… 32

vi. Strengthening the Work of Public Prosecution in Court ………………………… 33

IV. Reform Measures in Public Security and Judicial Administration ………………………………………… 35 i.

Comprehensively Deepening the Reform of Public Security System …………… 35

ii.

Improving the System of Case Acceptance and Registration in Public

Security Organs …………………………………………………………………… 35

iii. Improving the Legal Profession Qualification System …………………………… 37 iv. Establishing the Mechanism for Lawyers’ Participation in Handling

Petition Cases Involving Legal Issues and Litigation Issues ……………………… 38

v.

Continuing to Strengthen the Management of Lawyers ………………………… 40

vi. The Lawyer Ranking System Causing Great Controversy ………………………… 42 vii. Improving the Legal Aid System ………………………………………………… 43

Conclusion: Establish a Scientific and Effective Judicial Accountability System …………………………………… 44

Annual Report on China’s Judicial Reform 2015

Introduction

The central government of China announced

in criminal cases, improving the system of

2015 as the beginning of the comprehensive

people’s assessors, exploring cross-administrative-

promotion of law-based governance of the

area judicial management system, conducting

country.

pilot programs regarding procuratorate organs filing public interest litigations, improving

This round of judicial reform emphasized the

legal professional qualification system, and

leadership of the Party, paying more attention

establishing a mechanism where lawyers can help

to top-down and top-level design. The Central

with petition cases that involve legal issues and

Leading Group for Comprehensively Deepening

litigations. However, the pilot reform of personnel

Reforms was established, which promoted

quota system for judges and procurators, which is

the responsibility for strategic coordination of

a priority of the reform, has not reached the set

reform to the level of the central government. In

targets because of the lack of judicial independence

April, the Implementation Plan on the Decision

and the lack of coordination with existing career

of Further Deepening Judicial System Reform

security guarantee system for judges. Rather, it

and Social System Reform of the Fourth Plenary

led to the rise of resignation of many judges and

th

Session of the 18 CPC Central Committee (the

judicial personnel. Although the government has

“Implementation Plan”) was issued, which set

been emphasizing the importance of protecting

the blueprint and timetable for deepening

the rights of lawyers, the actual condition has

judicial system reform and social system reform.

deteriorated. It remains in question whether it

As a guideline for reform coordination, the

is possible to strengthen judicial accountability

Implementation Plan divided 84 reform measures

and apply a responsibility investigation system

regarding deepening judicial system reform

guarding against senior officers’ interference with

and social system reform mentioned at the

judicial process.

Fourth Plenary Session, and specified political orientations, responsibilities, schedule and targets

There is no doubt that the direction of this

for each reform task.

round of judicial reform to improve judicial independence is the right one. How “judicial

Based on the Implementation Plan, courts,

independence” is viewed and how it can be

people’s procuratorates, public security and

consistently improved will determine the results

judicial administrative departments issued

of judicial reform and the development of law-

individual reform plans, which could be regarded

based governance in the next decades. As a

as the first step of the reform. However, it remains

systematic reform, the improvement of judicial

to be seen whether these plans could be carried

independence will not only require the de-

out under a complex and rigid background

localization, de-administralization, and de-

where different parties hold different interests. In

politicalization of the judicial system, but also

general, there has been some progress on tasks

require a strict judicial accountability and

such as strengthening judicial accountability

punishment system, a powerful career security

system, regulating disposition of assets involved

guarantee system, a sound judge selection 1

Annual Report on China’s Judicial Reform 2015

and legal career transfer system. Each sector is equally essential and each sector contributes to the entire reform. Reform measures will hardly be implemented or will not fully play their parts without the actual realization of an independent judicial system. Taking the judicial accountability system as an illustration, this report will observe the tension between important measures in judicial reform and the general reform process, and how insufficient judicial independence influences the effect of overall reform.

2

Annual Report on China’s Judicial Reform 2015

I. General Reform Measures

i. Strengthening the Judicial Accountability System

separation of trial rights and administrative rights, restraint on the scope of rights and responsibilities of judicial committees, and increasing safeguards

In August 2015, the Central Leading Group for

for judges performing their duties.

Comprehensively Deepening Reforms issued Opinions on Improving Judicial Accountability

However, the Opinions also raised some controversial

System of the People’s Court and Opinions on

issues. The reasonableness of setting up supervision

Improving Judicial Accountability System of the

divisions within judicial authorities to accept

People’s Procuratorate, establishing lifetime

complaints and repor ts and to conduct

accountability system for the quality of legal

investigations and verifications remains in

cases that they handled. The former stipulates

question. Moreover, attention is only paid to the

the constitution of panels, case assignment

assignment of trial responsibility rather than

system, mechanism of issuing judgments,

enforcement responsibility, which is in greater

deliberation and voting regulations for the

need of regulation. The definition of “cases

collegial panel, and case handling system for

involving unjust, false and erroneous charges”

senior personnel such as cour t presidents

is too ambiguous. For example, the following

or chief judges in basic and intermediate

article is quite unreasonable: “in cases where

people’s courts. It also specifies the powers and

the defendant is acquitted, the state shall be

responsibilities for sole judges, assigned judges

liable for compensation, affirming the case as

and other members of a collegial panel, judge’s

involving ‘unjust, false or erroneous charges’;

assistants and clerks. Meanwhile, it clarifies the

if the suspect or the defendant flees, dies or is

way of responsibility-bearing, the procedure of

injured, the procuratorate personnel-in-charge

accountability investigation and the guarantee for

shall be investigated to determine whether he

the career security of the judges. Building upon

or she is accountable for the situation.” If the

the principle of clarifying responsibilities and

conditions for triggering the accountability

rights, the latter divides judicial accountability

mechanism are too broad, too much pressure

i n t o t h re e c a t e g o r i e s : a c c o u n t a b i l i t y fo r

will be put on procuratorate personnel, which

intentional misconduct, accountability for gross

may also encourage “collaborations” between

negligence, and accountability for supervision

the procuratorates and the courts to depress

and management, determining the ascription

the already-low acquittal rate. In principle,

of accountability and situations of exemption

criminal litigation should be an adversarial

from liability. The aforementioned regulatory

process between the prosecution and defense,

Opinions demonstrated some improvements,

and acquittals should not be an uncommon

such as clearer division of the scope of rights

outcome. If the procuratorate personnel violates

and responsibilities for organs and personnel

the law, the ideal way to initiate an investigation

handling cases, transformation of the role of

process is by raising a charge against the

court presidents and chief judges from granting

concerned procuratorate personnel. Under the

approvals to handling cases, emphasis on the

current system, problems specific to the Chinese 3

Annual Report on China’s Judicial Reform 2015

context, such as how to overcome the difficulty

Family Case, the Chen Xiaying Case, and the

of pursuing accountability, how to prevent

Yang Ming Case. In August 2013, the Central

selective accountability, as well as how to clarify

Committee of Political and Legislative Affairs of

the relationship between judicial accountability

P.R.C. established the Guidelines for Practically

system and petition cases involving litigation,

Avoiding Unjust, False and Erroneous Charges,

will complicate the effectiveness of the judicial

which stated that, within the scope of individual

accountability system.

responsibilities, judges, procuratorate personnel and police officers shall bear lifetime responsibility

The pilot program of misjudged case accountability

for the cases they have handled. Afterwards,

system started as early as the beginning of

this measure was included in the Decision of the

1990s. In 1990, the People’s Court of Haigang

Third Plenary Session, aimed at containing the

District, Qinhuangdao City first established the

long existing phenomena of judicial corruption

misjudged case accountability system in China.

and injustice. It serves as a supporting measure

In 1993, this system was introduced nationally

of the other reform measures including the

at National Court Work Meeting. In 1998, the

judge quota system, abolishing case approval

Tentative Measures on People’s Court Adjudicatory

system, reforming the judgment-issuing system,

Personnel Taking Responsibilities for Unlawful

reforming trial committee system, and forming

Behavior and Tentative Regulations of Disciplinary

a responsibility investigation system guarding

Actions for Adjudication in People’s Court was

against senior officers’ interference with judicial

issued, following which reporting centers for

process.

unlawful conducts of courts were set up and the misjudged case accountability system was

Although there is a pressing need to strengthen

launched nationally. In 2008, the High Court

the supervision of judicial power, the current

of Yunnan Province introduced the Tentative

accountability system is oriented towards

Detailed Implementation Rules on People’s Court

retrospective liability rather than addressing the

Adjudicatory Personnel Taking Responsibilities

problem at its roots. Therefore, attempts at using

for Unlawful Behavior, extended the duration of

the judicial accountability system to regulate

trial accountability to lifetime accountability.

judicial behavior and push for judicial justice will

However, years of experience has proven that

inevitably have limited impact. Moreover, under

the current accountability system, mired in

current social circumstances where the judicial

heavy administrative management and political

branch is not fully independent, the career security

interference, can hardly increase judicial fairness

for judicial personnel is not well-protected, and

and credibility despite the many attempts at

their sense of honor is not high, holding judicial

redesigning or improving the system, and in many

personnel to lifetime accountability will increase

cases can even be counter-productive.

their sense of professional risk and become a negative incentive, potentially leading to waves

4

The judicial accountability system has regained

of resignation. The rationale for strengthening

much attention of reform decision makers due

judicial accountability system is to prevent unjust,

to the initiative of exonerating cases involving

false and erroneous charges, but these outcomes

unjust, false and erroneous charges led by some

are in fact the result of systemic causes such as

lawyers, journalists and academics, as well as the

the coordinating role played by the political and

overturning of some previous rulings, such as

legal affairs commission, the leading role played

court rulings of the Hugejiletu Case, the Zhang’s

by investigation departments, the procuratorates’

system, supporting mechanisms need to be

people’s courts, the extortion of confessions

established. The career security guarantee system

through torture, the lack of the right to defense,

for judicial personnel needs to be reinforced,

and insufficient social supervision. Unless the

including protection of personal safety, guarantee

entire judicial system is reformed––the localized,

of stable income, career security and immunity

administralized, and politicalized characters of

for dut y-related behaviors; the selec tion

current judicial system is resolved, the litigation

procedure of judicial personnel and legal career

principle of “division of responsibility, mutual

transfer mechanisms need to be improved; and

cooperation and mutual restriction” is changed,

unreasonable performance indicators should

the litigation pattern regarding “investigation” as

be abolished so the judiciary can commit its full

the central task is adjusted, the “presumption of

capacity to key issues.

Annual Report on China’s Judicial Reform 2015

cooperation with cour ts, the low status of

innocence” is respected, the rights of lawyers and freedom of speech are practically protected, and political reforms are implemented––attempts to strengthen the judicial accountability system will have limited effect even with more documents

ii. Establishing a Responsibility Investigation System Guarding Against Senior Officers’ Interference with Judicial Process

aiming to prevent unjust, false and erroneous charges. It is even harder to pursue accountability

In March 2015, the General Office of the CPC

(of the relevant personnel) for cases that are

and the General Office of the State Council

overturned. In February 2016, the report of the

(hereinafter referred to as “two Offices”) issued

accountability pursuit investigation regarding

Provisions on Recording, Reporting and Pursuing

Hugejiletu Case was released. 27 concerned

Responsibilities of Senior Officers’ Interfering with

personnel received penalties, but the penalties

Judicial Activities or Intervening in the Handling of

were all administrative demerits or disciplinary

Specific Cases, which required judicial organs to

warnings inside the Party. Being a criminal suspect

establish a recording system, the Party committee

of an official duty related case, Feng Zhiming was

and administrative and legal affairs committee to

investigated under a separate charge against

establish a reporting system, and the disciplinary

him. The penalties were overall too moderate, the

inspection and supervision organs to establish

deemed liabilities were improper, and the liability

an accountability pursuit system. This is aimed

pursuit process was not transparent. Moreover,

at preventing senior officers intervening in the

the scope of accountability is too broad. Those

judicial process and safeguarding the judicial

who should have been held responsible were

organs’ lawful, independent and fair exercise of

not investigated; instead, the clerk was deemed

power. In the same month, the Central Committee

liable. As for the Zhang’s Family Case in Zhejiang

of Political and Legislative Affairs of P.R.C. released

Province which was overturned earlier, the result

Provisions on Recording and Pursuing Responsibility

of accountability pursuit remains unclear.

of Judicial Organ Personnel’s Prying into Cases as a supplementary document, which required

Judicial independence is the key to judicial

the establishment of a system to document the

reform. It is an issue that all countries have to face

whole process of internal personnel of judicial

in the development of the rule of law. Only when

organs for their intervention in case-handling. This

trials are independent can the scope of judicial

document clarified the situations for and liabilities

liabilities be clearly defined and accountability be

of case-handling interference. In August, the

pursued. To advance the judicial accountability

Supreme People’s Court and the Supreme People’s

5

Annual Report on China’s Judicial Reform 2015

Procuratorate (“two Supremes”) respectively

the aforementioned document clearly defined the

formulated implementing measures. In September,

consequences of untruthful documentation, no

the Intermediate People’s Court of Jinhua City,

remedy is spelt out in the document for concerned

Zhejiang Province self-reported a case of a Party

personnel who recorded the relevant information if

committee secretary of a supply and marketing

they suffer from retaliation.

cooperative interfering in judicial process, but later withdrew it as a “mistake at work” in the face of

Localization and administralization of the judiciary

public skepticism. In November, the Central Political

are deep-rooted problems. For the sake of

and Legal Affairs Commission of P.R.C. reported five

personal, departmental or local interests, or even

typical cases, including two cases related to senior

“safeguarding stability”, senior officers sometimes

officers’ interference with judicial activities or the

plead for suspects with judicial personnel, raise

handling of specific cases, and three cases related

direct demands regarding case-handling, or

to judicial personnel prying into cases. In February

give specific instructions to judicial organs by

2016, another seven cases were reported by the

means of informal contact, formal requests, or

Central Political and Legal Affairs Commission.

even official documents. Likewise, for the sake of personal interests, judicial personnel always

6

Truthful documentation is key to the effectiveness

plead for suspects with relevant personnel, inquire

of this system, but that is very difficult to achieve

about cases, tip off relevant persons, and interrupt

as the current system is neither sufficiently feasible

the normal case handling process. Concerned

nor binding. For example, the senior officers’

departments have released relevant regulations

interference with judicial activities should not

and have been reinforcing supervision regarding

be publicly reported before getting the approval

the aforementioned phenomena. In 2009, the

from the Party commission and administrative

Supreme People’s Court issued Provisions on

and legal affairs commission, and will not be

“Five Prohibits”, accompanied with Measures

reported to the public if it is “not necessary”.

for Handling Violations of the Provisions on the

Essentially, the power of supervision still belongs

“Five Prohibitions”, strictly prohibiting officers

to senior officers. As a matter of fact, whether

from interfering with cases handled by others.

the case-handling personnel dares to record

At the end of 2009, the document Six Provisions

relevant information, whether it is risky to record

on Judicial Openness required that the people’s

relevant information, how to discover whether

courts shall “establish and improve such systems

some relevant information is missing, whether the

as registration of case inquiry, warning against

accountability is pursuable after the recordings

interference, supervision reporting, and disclose

are reported, how to determine certain conduct as

information on case interventions in violation of

“judicial interference”, and how to avoid selective

the prescribed procedures and on the people’s

accountability pursuit are all practical problems

courts’ acceptance of supervision to the public

that are hard to resolve. In fact, the way to interfere

and relevant parties. Third Five-Year Reform Outline

with judicial justice is usually implicit, often in

for the People’s Courts included “ studying and

the name of “fair handling”, “progress inquiry”,

establishing a registration and report system

“monitoring case-handling”, or “prioritizing the

for case interventions in violations of legal

general interests”. Normally senior officers would

procedures” in the reform plan. In 2011, Provisions

neither get involved personally nor leave direct

of the Supreme People’s Court on Preventing Internal

evidence, thus it is difficult to find out who

Court Personnel Interference in Trial Work was

interfered behind the scene. In addition, although

introduced, defining the detailed rules of the

or individuals; lower level courts should be

organs for their intervention in case-handling. In

independent from upper level courts; and judges

2014, the Decision of the CPC Central Committee

should be independent from senior officers at

on Major Issues Pertaining to Comprehensively

the court and other judges. The leadership of the

Promoting the Rule of Law clearly stated that, “the

Party is political and organizational, and should

Party and government organs at various levels

by no means interfere with individual cases. Only

and senior officers must be supportive of the

by guaranteeing independence of the judiciary,

independent and impartial exercise of judicial and

supported with sufficient judicial protection,

procuratorial powers in accordance with the law;

complete judicial supervision, strict judicial

develop a system of record-keeping, reporting, and

accountability pursuit system, adequate judicial

accountability-pursuing to deal with intervention

transparency and reasonable judicial democracy,

in judicial activities and in the handling of cases,”

could the problems possibly be resolved at its

and “shall break all the ‘unspoken rules’ and make

roots. Once judicial independence is fully realized,

extrajudicial mercy absolutely impermissible, or

such an interference recording system with

handle any case which is in any way influenced

“Chinese characteristics” will become redundant.

Annual Report on China’s Judicial Reform 2015

recording system of internal personnel of judicial

by interpersonal relationship, personal favors, or money.” However, these efforts have not had

A few steps can be taken moving towards judicial

substantial effects. It remains a question whether

independence. First, the judicial expenses

these measures will be fully implemented in the

should be handled by the central government.

future. These measures can at best prevent the

Second, the selection, appointment, dismissal,

interference of low-level officers but hardly that of

promotion and punishment of judges should be

senior officers, especially when such interference

determined by a judicial committee set up by

is conducted under the name of “the leadership

thecourt system. The standing committees of the

of the Party”, in which case the measures will only

national and local people’s congresses should

make interference more covert.

only impose procedural requirements on the appointment and dismissal of judges according

Senior officers’ interference with judicial affairs is,

to the Constitution. The judicial committees

at the heart of the matter, the Party’s and political

should be arranged at three levels, and should

interference under “the Party’s governance of

include proper levels of participation of people’s

judiciary” structure, which includes corruptive

congress representatives, members of people’s

interference and political interference. Concepts

political consultative conference, lawyers and

s u c h a s “s e r v i n g t h e b i g g e r p i c t u re” a n d

scholars. Third, strengthening the career security

“safeguarding stability” offer policy support for

guarantee system for judges. Judicial officials

interference. How is it possible for the court to

should be entitled to identity, safety, wages

resist internal and external interference and have

and benefits guarantees and immunity while

independent trials if the independence is not

performing their duty. Place judicial officials under

even guaranteed on paper? To fully implement

separate title ranking management from the

the responsibility investigation system guarding

administrative ranking, and significantly increase

against judicial interference, the fundamental

the wages and benefits of judicial officials.

approach is to safeguard the independence of the

Fourth, the internal relations inside courts should

judicial system. Judicial independence is a basic

be balanced. The power of court presidents

principle of the rule of law. The judicial system

and chief judges should be weakened, the trial

should be independent from any institutions

committee should be abolished, and the scope

7

Annual Report on China’s Judicial Reform 2015

of application of trial by a sole judge should be

which employs technologies such as QR code

expanded, so that the independence of collegial

recognition, digital imaging and digital storage. It

panels and sole judges could be guaranteed. Fifth,

can produce a “tailored digital passport” for each

explore the establishment of a judicial jurisdiction

piece of property that is involved in criminal cases,

system separate from administrative divisions

which ensures traceability of property involved

to reduce the overlapping between judicial and

throughout the proceedings.

administrative jurisdiction.

The first provisions regarding properties involved

iii. Regulating Disposition of Property Related to Criminal Proceedings

in criminal cases in China date back to 1962, when the “two Supremes” and Ministry of Public Security jointly issued Provisions on Confiscating

In March, the “two Offices” issued the Notice

and Disposing Property Involved in Criminal Cases.

of the General Office of the CPC and the General

In 1979 the Criminal Law officially established a

Office of the State Council on Issuing the Opinions

disposition system for property regarding criminal

on Further Regulating the Disposition of Property

cases and several separate criminal laws were

Related to Criminal Proceedings, which required

issued afterwards, which specified different ways

the regulation of sealing-up, seizing, and freezing

to deal with different issues during the process of

procedure of relevant property, the establishment

disposing relevant properties. In 1997 the Criminal

of a system where the investigation department

Law made some changes on judicial organs’

a n d t h e c u s to d i a n d e p a r t m e nt , a n d t h at

occupying lawful property of the victims, and the

respective personnel may check each other. It

embezzling and disposition of fine and confiscated

also required exploring the possibility to establish

articles without proper authorization. The Criminal

a collective, cross-departmental management

Procedure Law, relevant judicial interpretations

information platform of property involved in

and other specific documents issued by relevant

criminal proceedings at the local level, to improve

departments also regulate the scope of functions,

the pre-trial property return procedure and pre-

measures and procedures of disposing property

disposal procedures for properties, to establish an

regarding criminal cases.

effective right relief mechanism, and to improve

8

the accountability pursuit system. The Notice of

However, for a long time, the definition of property

the Supreme People’s Procuratorate on Issuing the

involved in criminal cases has been unclear. All

Provisions on the Management of Property Involved

sorts of regulations have uneven validity, lack

in Criminal Proceedings by People’s Procuratorates

coherence, and are filled with contradictions

was issued in the same month, which clearly

and loopholes. Additionally, case-handling

defined the scope of people’s procuratorates’

staff tend to weigh suspects over property,

management of the aforementioned property. It

and weigh crack-down on crimes over human

emphasized the internal supervision of sealing-

rights protection. As a result, the management

up, seizing, freezing, transferring, inspecting,

of property involved in criminal cases has been

receiving, safe -keeping and disposing of

chaotic. The disposal work of relevant property

properties involved in criminal proceedings.

lacks order; departmentalism is evident; the

The People’s Procuratorate of Xicheng District,

safekeeping methods are unregulated; the

Beijing became the first pilot procuratorate to

transferal process is not smooth; relevant

operate an “intelligent management system

information lacks transparency; disposition is

for property involved in criminal proceedings”,

not timely; the supervision is inadequate; and

in criminal cases, it is urgent to abolish the

trespass the lawful rights of defendants, victims,

withdrawal and retaining system for property

and even third parties. Since the adoption of

involved in criminal cases; break the linkages

the “Two-channel Management System of the

bet ween fine penalties and confisticated

Receipts and Disbursements” in the 1990s by

properties, and the case-handling expenses and

organs of public security, people’s procuratorates

staff benefits of public security organs, people’s

and courts, an unspoken rule gradually developed

procuratorates and courts; and prohibit any

in practice. Under the “withdrawal and retaining

form of returning or commissioning. Meanwhile,

system for property involved in criminal cases”,

following the reform direction of a unified

local departments of finance only returns a

provincial management system of personnel,

certain proportion of the property involved in

finance and property of courts and procuratorates,

criminal cases turned in by organs of public

funds for judicial organs should be better

security, people’s procuratorates and courts to the

guaranteed, budget information disclosure should

aforementioned organs. Consequently, fines and

be encouraged, and financial supervision needs

confiscated items involved in cases, especially in

to be strengthened. Specific suggestions are as

those related to corruption, bribery, and economic

follows: First, align the regulations concerning

crimes, have become a major source of income

property involved in criminal cases and draft

for office expenses. This not only incentivizes

separate legislation, regulating each procedure of

concerned departments to abuse public powers

the property disposal process. Second, establish

and create unnecessary litigations, giving rise to

the quasi-judicial mechanism for proper ty

corruption in the judiciary, but also creates serious

restraining measures and procedural sanction

obstacles for overturning erroneous cases, which

measures during the investigation stage, and

adversely affected judicial fairness and judicial

improve the relief mechanism for defendants and

credibility.

victims whose property rights are violated. Third,

Annual Report on China’s Judicial Reform 2015

the relief mechanism is insufficient. These issues

establish a transfer system where the property The Decision puts forward that relevant regulatory

involved in criminal cases shall be transferred with

authorities shall “regulate the sealing-up,

the cases and tracked throughout the process, and

seizing, freezing, and disposing procedure of

clarify the transferal and accountability pursuit

property involved in cases.” In the end of 2014, the

mechanism. Fourth, establish an information

2015 Outline of Work of the Central Leading Group

management platform for property involved in

for Comprehensively Deepening Reforms also

criminal cases, and set up an independent, third-

highlighted the regulation of property involved in

party property custodian, utilizing information

criminal cases as one of the most important tasks

technology to strengthen supervision, to ensure

for 2015. However, as the issue involves multiple

that key procedures such as sealing-up, seizing,

institutions including public security, people’s

freezing, safekeeping, and disposing of properties

procuratorates, courts, local Party committees,

are fully transparent, and such information can

and local administrative departments, cuts across

be easily accessed by the public via the internet.

multiple stages of litigation, and touches upon

Fifth, introduce a participation mechanism

the core interests of various departments, reform

for stakeholders to realize their right to know,

measures face serious challenges.

right to participate and right of opposition.

Investigation into and disposal of properties

To tackle the challenges faced by the current

should be publically announced in advance, such

disposing mechanism of property involved

that stakeholders could express their opinions

9

Annual Report on China’s Judicial Reform 2015

and objections through participating in the court

case and the Zeng Chengjie case contributed to

trials or hearings. Sixth, a trial-centered system

the abolishment of the death penalty for crimes

should be established with regards to property

of illegal fundraising. The abolishment of the

involved in criminal cases, prohibiting them from

other eight types of death penalty was the result

being confiscated without court order. A relatively

of low level of applicability. In the future, the

independent trial for the properties involved in

application of death penalty for non-violent or

cases can be set up with court investigation and

non-fatal crimes should be significantly reduced;

debate, where prosecution and defense as well

for financial crimes, death penalty should be

as stakeholders can express their opinions on

abolished. Death penalty should only be applied

the disposition of the property, cross-examine

to extremely serious violent crimes, such as

the evidence and verify the ownership of the

intentional homicide, kidnapping (homicide),

property. Courts should specifically address the

robbery (leading to homicide), and rape (leading

disposition of the property involved in concerning

to homicide). As drug-related crimes are one of

cases in the written judgment.

the most frequently invoked crimes leading to the death penalty, the need to abolish death

iv. Release of Amendment IX to Criminal Law of P.R.C.

penalty is pressing and should be prioritized for the next amendment for the Criminal Law. The legislative techniques for death penalties also

The revision of Criminal Law interconnects

need to be improved. Ambiguous terms such as

with multiple basic systems and citizens’ rights

“with execrable circumstances” and “the crime

affirmed by the criminal justice reform and the

is extraordinarily serious” need to be clarified. In

Constitution. The Amendment IX to Criminal Law

order to implement the judicial policy pushing

made major amendments and additions to

forward “fewer and more cautious application

provisions concerning crimes including terrorism

death sentence”, the number of death penalty

and extremism, internet information crime,

criminals and relevant basic information should be

disrupting social order, disrupting the judicial

open to the public. In order to avoid irreversible

order, infringing upon personal rights, and

and erroneous execution of the innocent,

corruption and bribery. 14 new clauses, 23 new

one should refer to the ancient Chinese legal

crimes were introduced, and nine death penalties

mechanism of “execution in autumn” and abolish

were abolished.

immediate execution of death penalty; a system of execution extension and scheduled execution

Many aspects of the Amendment are progressive.

should be implemented with the pre-execution

For example, with the abolishment of nine

period extended to at least one year, and the

death penalties, the total number of crimes

conditions for witholding the execution should

punishable by the death penalty decreased from

be clarified. Moreover, the procedure for death

55 to 46. Moreover, the Amendment raised the

penalty review needs further improvement, and

bar for the application of the death penalty to

a special appeals system for criminals convicted

those with suspended death sentence. These

with death sentence should be established.

changes follow the judicial policy of “strictly

10

control and cautiously apply the use of death

The revision of the standards for conviction and

penalty,” reflecting the human rights principle of

sentencing for corruption and bribery is in line

“fewer and more cautious application of death

with the social developments and the changes

sentence.” Influential cases such as the Wu Ying

in crimes, hence more scientific and reasonable.

insulting, defaming or threatening any judicial

criminalizing behaviors of bribing close relatives

staff member or litigation participant despite

or other people in close connection not only

court prohibition will also be convicted. Despite

correspond to the call for anti-corruption, but are

that long before the release of the draft of the

also in line with international conventions. The

Amendment, this article was strongly opposed

abolition of the crime of “engaging in prostitution

by lawyers and the society, it was passed

with a girl under four teen years of age” is

nevertheless. This reveals that the people’s

controversial, but it could avoid the potential

congresses’ commitment to openness in law-

stigmatization of the victims, align the judicial

making is merely formalistic without truly

standard for crimes relevant to sexual abuse of

incorporating public opinions, but may also lead

young girls, and resolve the imbalance between

to a sharp decrease in the number of “earnest”

sentencing under this crime and the crime of rape.

lawyers, an increase in the risk of defending,

Criminalizing the conduct of purchasing abducted

and a decline in defending rate, which is not

women or children can reduce the demand from

conducive to preventing erroneous convictions

the potential buyers to fundamentally curb the

a n d p ro t e c t i n g h u m a n r i g h t s. G i ve n t h e

trafficking of women and children.

amendment has already been promulgated,

Annual Report on China’s Judicial Reform 2015

Imposing stronger punishment on corruption and

under the circumstances of insufficient restraint However, some articles are regressive in nature.

on the power of the Party-state and the lack of

For example, in order to solve the transitionissues

independence in the judicial system, related

after the abolishment of re-education through

legislation or judicial interpretations should be

labor, the Amendment lowered the bar for the

introduced to impose strict procedural control

crime of “assembling a crowd to disrupt the public

to prevent abuse of this article. At least the

order” , which now covers “individuals who conduct

following issues should be addressed. First,

persistent complaint visits or disruptive complaint

ambiguous terms such as “insulting, defaming,

visits and refuse to make corrections despite

and threatening” and “where the circumstances

of repeated warnings, thus severely disrupting

are serious” should be clarified to avoid subjective

the normal work of the government” , which is a

judgment and leaving too much discretion to the

common situation in petitions. The Amendment

judges. Second, such cases should be managed

reiterated the idea of combating internet rumors

by courts from a different jurisdiction, and the

presented in the judicial interpretations of the

concerned court and its superior court should

“two Supremes” and criminalized producing

withdraw from handling the case. Third, in terms

and disseminating rumors on the internet,

of facts verification and evidence inspection,

categorizing the internet as “public space”, which

videos and recordings of court trials should be

may constrain freedom of speech.

regarded as mandatory evidence and should be presented in court. Conviction should not be

Targeting the occasional “court drama”, “stubborn

made without the videos or recordings, or without

resistance” and other conflicts between lawyers

complete and clear videos or recordings.

and the courts, the Amendment revised the provision of the crime “disturbing court order”. In addition to existing scenarios defined including assembling a crowd to clamor in a courtroom, attacking a courtroom and assaulting any judicial staff member; assaulting litigation participants,

11

Annual Report on China’s Judicial Reform 2015

v. Protecting the Right of Defense in the Death Penalty Review Procedure

review procedure was still unclear. Questions such as whether the review procedure reform should proceed towards litigation and what modality

In January, the Supreme People’s Court issued

should be adopted to handle such cases remains to

the Measures of the Supreme People’s Court for

be answered. As a result, a huge gap exists between

Listening to Opinions of Defense Lawyers in the

the design of the system and its expected functions.

Handling of Death Penalty Review Cases, providing

In fact, the review process has long been conducted

specific provisions for defense lawyers enquiring

in written form based on litigation documents, and is

about case filing information or case files,

highly administrative. The role and functions of this

presenting in-person and written opinions, and

processare unclear, the structure is unreasonable, the

delivering written judgment document for the

procedures lack transparency, and the supporting

death penalty review cases. The Measures is a

systems are incomplete.

detailed elaboration of Article 240 of the Criminal Procedure Law and helps to protect human rights.

In recent years, the importance of defense lawyers in the review has been recognized by the

12

The death penalty review procedure is an essential

Supreme People’s Court. Relevant documents have

to restricting the use of death penalty and

been issued, but improvements are needed. As

preventing the abuse of death penalty. In 2007 the

effective protection of the right to defend during

Supreme People’s Court revived its death penalty

the death penalty review procedure involves

review competence, and the review procedure has

many sectors and departments, in the short run,

been improved since then. In February 2007, the

measures should be jointly decided to strengthen

Supreme People’s Court issued Provisions of the

protection. First, lawyer’s status as defender should

Supreme People’s Court on Several Issues Concerning

be recognized in the review process. A designated

the Review of Death Penalty Cases. In March, the

defense system for death penalt y review

“two Supremes” and “two Ministries” (Ministry

should be established and the legal aid system

of Public Security and Ministry of Justice) jointly

should be improved. For defendants without a

issued Opinions on Strengthening Handling Cases

designated lawyer, the people's court should

in Strict Accordance with Law and Guaranteeing the

designate a counsel and ensure the lawyer’s right

Quality of Handling Death Penalty Cases, stating

to participate in the case procedures. Second,

that the courtreviewing the death penalty case

lawyers’ right to know should be protected.

should listen to the opinions of the defense

A query mechanism of judges handling

lawyers under certain circumstances. In 2012, the

corresponding cases should be established for

Criminal Procedure Law made some minor judicial

death penalty review cases which would enhance

changes to the death penalty review procedures.

the accessibility of case documents. When courts

It stated that when the Supreme People’s Court

announce the judgment of the review, the

conducts the review, the defendant should be

defense lawyers must be notified and should be

interrogated in court. When requested by the

present, and related judgment documents must

defense lawyer, the court concerned should listen

be delivered to them. Third, during the review

to the defense lawyer’s opinions. The Supreme

process, defense lawyers are entitled to the rights

People’s Court was granted the power to overrule

to access case files, meet with the defendant,

disapproved death penalty rulings. However,

and investigate and take evidence. The scope of

the Law only offered a conceptual outline while

confidential materials should be clearly defined

the specific orientation of the death penalty

so that they do not become excuses preventing

effect on February 4. It contains 552 articles and

centers reject the request from lawyers to meet

more than 60,000 characters, and is the longest

the defendants, courts should not rule for death

judicial interpretation with the largest number

penalty. Fourth, guarantee the effectiveness of

of provisions, involving the largest number of

defense representation. Detailed information of

departments and staff since the establishment of

defense lawyers and whether opinions of defending

the Supreme People’s Court. This comprehensive

are adopted should be clearly written into the

Interpretation, regarded as an encyclopedia of

judgment document of the review. Fifth, strengthen

the application of civil procedure laws, has many

the procedural protection of lawyers’ expressing

progressive features. For example, Weibo content

their opinions in the procuratorial supervision

and online chatting records can be regarded as

process during the death penalty review process.

digital evidence. Definitions of litigation eligibility,

Lawyers should be entitled to the right to defend

objective scope, case acceptance and jurisdiction of

against legal supervision opinions supporting the

public interest litigation are clarified. Relationships

approval of death penalty put forward by people’s

are clarified between third party revocation actions,

procuratorates. Procedures and measures regarding

application for re-trial and enforcement objection

lawyers’ appeals should be clarified.

filed by the party not involved in the case.

Annual Report on China’s Judicial Reform 2015

lawyers from accessing case files. If the detention

Procedural issues such as exclusive jurisdiction, Apart from technicalities in procedures and

territorial jurisdiction and jurisdiction transfer

mechanisms, the overall mindset needs to

are clarified, contributing to reducing disputes

be changed. The international consensus of

over jurisdiction. For electronic contracts, the

protecting human rights with judicial powers

residence location of buyers is regarded where the

needs to be respected. Less frequent and more

contract will be performed to ease the litigation

cautious application of the death penalty

process. The scope for publishing case documents

should be advocated for. The number of people

is expanded, and in cases which the judgments

sentenced with the death penalty needs to be

or verdicts are not published online, a separate

made public so that the entire process of the

application can be filed to access the documents.

review can be more transparent. In the long

However, there are also some shortcomings in

run, as the trial grade system and its supporting

the judicial interpretation. For example, the case

mechanisms mature, the death penalty review

docketing system is an aggressive reform measure:

should be converted into the “third trial”. In

although it may suppress the negative phenomena

addition, trial review should be strengthened.

of “rejecting a case (without reason) ” , “postponing

The principle of direct and verbal trial should be

the acceptance of the case” , “limiting acceptance

implemented. The right to defend for lawyers

of cases” , and “refusing to accept new cases near

should be protected as demanded by the rule

the end of the year” , it has led to a surge in the

embodied in trial procedures.

caseload, which may not be an ideal solution under the current circumstances.

vi. Release of the Judicial Interpretation of Civil Procedure Law At the end of January 2015, the Interpretation of

vii. Strengthening the Career Security Guarantee System for Judges and Procurators

the Supreme People’s Court onthe Application of the Civil Procedure Law of the People’s Republic of China

In September, the Central Leading Group for

was promulgated after three years and came into

Comprehensively Deepening Reforms approved

13

Annual Report on China’s Judicial Reform 2015

the Plan for Pilot Reform of Independent Job

re fo r m . Fo l l ow i n g t h e d i re c t i o n o f d e -

Sequence System for Judges and Procurators and

administralization and de-localization, pilot

the Plan for Pilot Reform of Wages and Benefits

programs on unified management of personnel,

System for Judges and Procurators, which took

expenses and property of local courts and

the distinctive feature of judges and procurators

people’s procuratorates at the provincial level,

into consideration, and attempted to establish

differentiated management of judicial staff,

a separate title ranking system for judges and

personnel quota system for judicial staff, and

procurators and a corresponding salary system.

judicial accountability and other pilot programs

Wage policy for local-level and frontline case-

were gradually implemented. Pilot programs in

handing staff was also improved.

different areas explored the reform of the salary system, in spite of the lack of specific documents.

Currently, funds of courts and people’s procuratorates

In December 2014, People’s Procuratorate of

mainly come from same-level local government

Shenzhen established a separate procurator

finance. The positions and salaries of judges

position sequence and an independent salary

and procurators are in line with civil servants,

system for procurators. All division chiefs and

their social security is localized, and their

section chiefs of the business department were

management is administralized. However, the

dismissed, and the salary of procuratorators

work of judges and procurators is highly technical.

were determined according to their judicial level.

The administralized management approach––

After the reform, the income of procuratorators

connecting their administrative level with their

in Shenzhen was 15% higher than that of law-

salary, bonus and rank––is not only against judicial

enforcing civil servants. A three-step approach was

principles, but also against the goal of building

adopted in Qinghai Province, with the expectation

a professional and technical judicial team. Low

to raise average salary for judges and procurators

salary, regional discrepancies, limited promotion

by 50% and the salary of legal assistants by 15%.

opportunities, and high career risks have led to

At the current stage, the new salary is set at

instability of the judicial profession and constant

current salary plus a positional allowance. The

loss of talents. Consequently, the position of

overall salary will gradually increase during the

being a judge or a procurator is not appealing to

transitional period, and eventually transition to

potential candidates, especially qualified legal

separate salary sequences for different positions.

talents. In 2006, the Central Committee of the

In April 2015, a salary system adjustment plan

CPC issued the Decision on Further Strengthening

was promulgated in Shanghai, which set the

Work of People’s Courts and Procuratorates. In

salary level of judges and procurators in pilot

2011, the Organization Department of the CPC

institutions 43% higher than normal civil servants.

Central Committee issued the Interim Provisions

In the beginning of 2016, it was emphasized at

on Setting the Judge Position Sequence. There were

the National Meeting of the Presidents of High

also other judicial reform documents concerning

People’s Courts that the supporting system for

the aforementioned issues. However, due to lack

basic reform such as the personnel quota system

of top-level design, inadequate coordination, low

for judicial staff needs to be improved, the title

feasibility, and lagging supporting measures, this

ranking system of judges needs to be separated

reform has not made much progress.

from administrative ranking, the salary of judges within the quota system needs to be increased,

rd

14

th

In 2013, the 3 Plenary Session of the 18 Central

and reform on the position sequence and salary

Committee launched a new round of judicial

system for judges needs to be advanced.

responsibility. The expenses of judicial organs,

improvement in their benefits is key to whether

including salar y, case handling expenses,

current judicial reform can progress smoothly

equipment fee, bonus and insurance should

and achieve the expected goals. Under the

be included into the national budget and be

backdrop of increasing pressure on the judiciary

paid by the central government finance. Central

and enhancement of the judicial accountability,

government should set up an independent judicial

the plans mentioned above are in some ways

expense management institution responsible for

meaningful. However, there are still some

the application, management, appropriation and

weaknesses. First, the concept embodied in

supervision of judicial expenses. Based on this,

the documents is erroneous. The objective to

several issues should be considered. First, the

strengthen career security for judicial personnel

determination of salary level should avoid “one

should proceed by ensuring the independent

size fits all”, but should rather take into account

exercise of judicial power for judges and

the level of economic development and local CPI.

procurators, with the aim to de-localize and de-

While standardized system should only apply

administralize the judicial system. Rather, the

to basic wage, flexibilities should be allowed.

plans appear to be supporting measures for

Second, based on categorized management

judicial accountability system, which shows

system, the salary increase rate for judicial staff,

that strengthening judicial accountability is the

judicial assistants and judicial management

prerequisite for enhancing career security for

staff that entered the quota system should be

judicial staff. Second, the reform is not driven

reasonably allotted to avoid internal conflicts.

by courts, but instead by local governments.

Third, the reform should start with a “better-paid

According to the current provincial management

system”, and gradually transition into a “well-

approach, raising salary of judges and procurators

paid system”, explore the possibility of an “annual

would result in a large amount of extra

salary system”, establish a secure pension system,

expenditure for provincial financial organs. The

and require that the salary of judicial officials

willingness of local government to pay for the

must not be lowered. Fourth, personal security

extra cost will become a determining factor for

protection of judges should be reinforced. Judges

reform, especially in less developed areas. Third,

should be protected from revenge and unfair

it will take a long time to realize a significant

treatment while performing their duties. Personal

increase in the salary level across the judicial

safety and other rights of judicial staff should be

system. The implementation of the case docketing

protected while performing their duties. Fifth,

system resulted in a surge in the caseload, given

judicial immunity should be protected. When

that the salary of civil servants increased even

performing their duties, behaviors and speeches

faster than judicial staff, whether the salary

of judicial staff should be exempted from laws

increase could correspond to this situation has

and regulations, judicial staff should be exempted

become a practical issue in the reform. Finally,

from the responsibility of appearing in court as

while the increase of salary has a limit, what

a witness, and judges should be exempted from

matters more is the independence and sense of

legal liabilities apart from intentional misconduct,

honor for judicial officials.

gross negligence, or other statutory causes.

Annual Report on China’s Judicial Reform 2015

Whether judicial officials can enjoy a substantial

Therefore, in order to strengthen the career security for judicial staff, it is important that central government takes over the management

15

Annual Report on China’s Judicial Reform 2015

II. Reform Measures in the Court System

In February 2015, the Opinion of the Supreme People’s Court on Comprehensively Deepening

i. Deepening the Reform of the People’s Assessors System

Reform of the People’s Cour ts was released, amending the Outline of the Fourth Five-Year

The people’s assessors system is the highlight

Reform of the People’s Courts (2014–2018). The

of the current judicial reform. In April 2015, the

general direction of comprehensively deepening

Supreme People’s Court and the Ministry of Justice

reform of the people’s courts was clarified.

jointly issued the Work Plan of the Pilot Program

Five basic principles were introduced. In light

on the Reform of the People’s Assessors System.

of the target of establishing an operating

In May, the Standing Committee of the NPC

system for socialist judicial power with Chinese

approved the Decision of the Standing Committee

characteristics, 65 measures concerning seven

of the National People’s Congress on Authorizing

aspects were raised. The Opinion is a guiding

the Implementation of the Pilot Program on the

document that will direct the reform of the

Reform of the People’s Assessors System in Certain

courts in the next few years, but more specific

Areas. The Implementation Measures of the Pilot

implementation plans are still needed. In 2015,

Program on the Reform of the People’s Assessors

the court system in China continued to promote

System and the Provisions on the Oath Taking of

the establishment of reform pilots for key projects.

People’s Assessors of the People’s Republic of China

Progress was made to improve the people’s

(for Trial Implementation) were issued afterwards.

assessors system, to establish Circuit Courts of the

In the next two years there will be pilot projects

Supreme People’s Court and intellectual property

implemented in 50 courts across 10 provinces.

courts, to explore establishing cross-jurisdictional courts, to promote setting up the case docketing

Judicial democracy is the prequisite for socialist

system and the guiding cases system, and to

democracy and rule of law. In 2005, the white

strengthen the informatization of enforcement.

paper Building Political Democracy in China

Meanwhile, documents such as Opinions on

put forward the idea of “establishing judicial

Providing Judicial Services and Safeguards for the

democracy”. In 2008, the white paper China’s

Building of One Belt One Road by People’s Courts

Effor ts and Achievements in Promoting Rule

and Several Opinions of the Supreme People’s Court

of Law put forward the idea of “promoting

on Giving Full Play to Trial Functions to Effectively

judicial democracy”. Currently China is going

Maintain Public Security were released by the

through a rapid social transition period, and the

courts, which continue to perform the political

development of democracy and rule of law are

function of facilitating economic development

at a bottleneck. Reinforcing judicial democracy

and stabilizing society.

may serve as a way of achieving a breakthrough in the current quandry and ensure a smooth transition. Democracy under a judicial framework is a moderate, orderly, gradual and controllable process. Promoting judicial democrac y by

16

of assessors increased from 57,000 to 77,000 in

participation and supervision will not only

2009, participating in 632,000 cases. By the end of

facilitate communication with the people, justify

May 2014, there were a total of 127,000 assessors.

Annual Report on China’s Judicial Reform 2015

incorporating public opinions, improving public

the legitimacy of judiciary, and promote judicial justice, but will also be conducive to fostering

Various systems were experimented at local levels.

positive interactions between building democracy

In 2009, the Henan court established a “people’s

and rule of law, which are mutually reinforcing.

jury system” and Beijing First Intermediate People’s Court adopted an “experts assessors system”. In

China’s jury system dates back to the late Qing

2010, Shanghai First Intermediate People’s Court

Dynasty. It was mentioned in both the Civil

introduced a “2+1” assessors system. In 2014,

Procedure Code of the Great Qing Empire and the

People’s Court of Jiangning District, Ningbo

Criminal Procedure Code of the Great Qing Empire,

started a pilot “grand people’s assessors system”.

and several later legal documents also mentioned

These explorations provided valuable experience,

jury system. After 1949, the system first recovered

but there were also flaws. Taking Henan’s “people’s

its legal status, but was then neglected, and

jury system” as an example, in February 2009,

once again revived. In May 1999, the Supreme

Henan High People’s Court invited people’s

People’s Court submitted Application for Review

assessors to the second instance trial of a death

of the Decision on Improving the System of People’s

penalty case for the first time. In June 2009, six

Assessors (Draft) to the Standing Committee of

cities including Zhengzhou and Kaifeng started

the NPC, which marked the revival of the jury

piloting people’s assessors projects. In 2010 it

system. Since then, the people’s assessor system

was introduced all over the Henan Province. By

has gone through some minor changes. During

May 2010, the types of cases involving people’s

the past 20 years, several countries introduced the

assessors had extended from criminal cases to

jury system. For example, the Russian Federation

civil, commercial, and administrative cases. 122

introduced the jury system in 1991; Spain issued

courts in Henan Province started to invite people’s

the Law of Jury Trial and adopted the British jury

assessors to complicated and difficult cases. 361

system; Japan introduced the system of lay judges

cases were heard publicly, and 95% of the cases

in May 2009.

were settled. However, the opinions of people’s assessors served merely as a reference for the

Although the importance of the people’s assessors

judgment but are not binding. The selection and

system has been emphasized for many years,

appointment methods, the scope of application,

as reflected in its increased scale, its practical

and the applicability at various trial levels of the

influence has been limited. Since the Decision of

system need further improvement or clarification.

the Standing Committee of the National People’s

Generally speaking, although previous systemic

Congress Regarding Perfecting the System of

defects were partially corrected by local pilot

People’s Assessors was approved in August 2004,

reforms, deep-rooted problems such as “people’s

there were 45,697 people’s assessors participating

assessors being present without actual

in 164,630 trials in 2005, representing a year-on-

involvement in the trial” or “people’s assessors

year increase of 16.53%. In 2006, 48,211 assessors

acting as temporary judges” have not been

participated in 339,965 trials. From May 1, 2005 to

resolved.

2007, local courts selected 55,681 assessors, and they were involved in 1.21 million cases. In 2008,

As a powerful supporting measure for deepening

they were involved in 505,412 cases. The number

the reform of the people’s assessors system,

17

Annual Report on China’s Judicial Reform 2015

a series of documents were issued in 2015

In order to promote the reform of the people’s

regulating the conditions of selection and

assessors system, China’s social reality must be

appointment of people’s assessors, the types of

taken into consideration. The phenomenon of

cases they can participate in, their qualifications,

people’s assessors being “present but not actually

as well as dismissal, punishment and security

involved” must be addressed, and the public

mechanism. For example, the selection threshold

must be motivated, in order to realize judicial

for assessors has been lowered under the current

democracy to the greatest extent. A people’s

regulations: the academic qualifications are

assessors system with Chinese characteristics

lowered to senior high school, with an exemption

should be established. Substantial progress of the

for individuals with fair and impartial character,

reform depends on two factors: first, the selection

high credibility, excellent reputation and

and appointment of people’s assessors should be

integrity in rural and remote areas. The scope

de-elitisized; second, decisions made by people’s

and randomness of selection has been increased:

assessors should have binding force.

grassroots people’s courts and intermediate

18

people’s courts shall randomly select more than

Regarding the first point, the selection and

five times the number of judges of local courts

appointment of people’s assessors should be

from the list of qualified local voters (or local

de-elitisized and the pool should be as broad as

inhabitants) every five years as candidates for

possible. Currently the selection and appointment

people’s assessors. The scope of participation of

process is similar to that of national and local

people’s assessors has been expanded to include:

people’s congress members, CPPCC members,

criminal, civil or administrative cases of the first

and advanced workers, whose standard favors

instance concerning the interests of a certain

the elites and prioritizes political correctness.

group, concerning public interests, attracting

The selection and appointment of people’s

much attention from the general public, or

assessors, rather, should be random and open to

having other great social influence, as well as

the general public so that all interested citizens

criminal cases of the first instance in which the

have the opportunity to participate in judicial

suspect is likely to be sentenced to a fixed-term

activities. Health conditions and age permitting,

imprisonment or life imprisonment. The collegial

any literate person should be eligible. According

bench mechanism, under which no fewer than

to the current reform plan, the number of the

three people’s assessors should participate in the

candidates should be more than five times the

bench, will be explored for significant cases, and

number of local judges, but that number is far

the courts will make available pre-trial records

below sufficient. Considering that most citizens

for people’s assessors’ perusal before the trial.

may not be interested in participating, self-

People's assessors are required to independently

recommendation should be encouraged. All

offer opinions on issues concerning fact finding

qualified self-recommended candidates should

of the case during the course of deliberation.

be put into the assessors database. Aimed at

An oath system for people’s assessors will be

encouraging the general public to participate in

established. Legal protection and guarantee

the people’s assessors system, this approach could

of performance of people’s assessors will be

significantly increase the number of people’s

strengthened. These provisions have responded

assessors, and thus is the key to the success of the

to measures advocated by previous Annual Report

assessors system. Meanwhile, in order to avoid

on China’s Judicial Reform and represent major

specialization of assessors, each assessor should

progresses.

handle no more than one case per year. A people’s

assessors could range from two to six according to

Guang’an City, Sichuan Province and generated

actual need. During the case trial and deliberation

useful lessons.

processes, a convener of the panel should be

Annual Report on China’s Judicial Reform 2015

supervisor system reform pilot was set upin

selected by lot to avoid professional judges from This approach needs to be supported with a new

exerting too much influence over the assessors.

judicial mindset and supporting mechanisms.

During the deliberation, assessors should give

For example, the assessment and professional

their opinions first in a random order before the

training in any form of people’s assessors should

judges. During the review of factual questions,

be cancelled, as assessors should be making their

the norms of Common Law countries could be

judgments based on common sense and their

learnt. At the end of the court debate, the judge

experience. Legal training is not necessary. The

could make verbal direction to assessors in terms

value of people’s assessors system lies in its non-

of applicable laws. During the voting process, the

professional nature. However, in order to avoid the

majority rule should apply, with the aim to affirm

assessors’ not knowing their basic responsibilities,

as much about the factual issues of the case as

rights and obligations, a guidebook briefing the

possible, so as to limit judicial discretion in the

aforementioned content could be prepared, as is

final decision.

done in Common Law countries.

In the future, people’s assessors system should be Regarding the second point, the effectiveness of

re-inscribed in the Constitution, clearly outlining

the decision of assessors should be guaranteed.

jury duty as a basic civic obligation. A separate

Judgments involving assessors must be binding,

law for assessors should be made, clarifying their

otherwise phenomenon of people’s assessors

powers and rights, reinforcing supporting systems

being “present but not actually involved” could not

such as punishment and security guarantee

be avoided and the system could not contribute

systems, and further encouraging substantive

to judicial decisions. Although some progress has

participation of people’s assessors. In the long

been made to the current reform plan, distrust

term, the people’s assessors system relies not only

for assessors still exists, thus failing to harness the

on the improvement of judicial system, but also on

full advantages of the people’s assessors system.

increased civic awareness and the development

Current laws and regulations should be amended

of civil society. China should further protect

in order to improve the design of the system. For

freedom of speech and freedom of assembly and

example, to restrict judges’ power to overturn

association, as stipulated by the Constitution.

assessors’ opinions, the voting power of judges

It also should loosen the control of civil society

could be limited to circumstances in which the

organizations, expand the scope of social self-

assessors panel could not agree on factual matters

governance, realize political involvement for

or reach a majority opinion. In the future, even

citizens, strengthen citizens’ supervision of public

factual matters of the case should be handled

powers, and promote direct election in counties

entirely by assessors. There should be more

and districts and community-level democracy,

assessors than judges involved, so as to prevent

so as to create an enabling environment for the

professional judges from dominating the process.

development of the people’s assessors system.

For cases that involve assessors, the design of the collegial panel should in principle consist of one judge and four assessors, but the number of

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Annual Report on China’s Judicial Reform 2015

ii. Exploring the Establishment of Cross-administration Judicial Jurisdiction System

established, the Supreme People’s Court should shift its priority to supervision and guidance, focusing on handling cases significant to unifying the standards for the application of the law,

In January 2015, the Supreme People’s Court

cases of major demonstration value, and those

released the Provisions of the Supreme People’s

that can become guiding cases. Authorities had

Court on Several Issues Concerning the Trial of

high expectations for this reform, granting circuit

Cases by the Circuit Courts, which decided that

courts functions such as to de-localize the judicial

the No.1 Circuit Court should sit in Shenzhen

system, to delineate the administrative powers

City, Guangdong Province, with jurisdiction

of the central and local governments, to balance

over Guangdong Province, Guangxi Zhuang

the burden brought about by cases, and to make

Autonomous Region, and Hainan Province.

it more convenient for the public to litigate.

The No.2 Circuit Court should sit in Shenyang

However, currently the system has only facilitated

City, Liaoning Province, with jurisdiction over

people in circuit areas to litigate, easing the

Liaoning Province, Jilin Province, and Heilongjiang

pressure exerted by people travelling to Beijing

Province. It also decided on the scope of case

to petition for rights at the Supreme People’s

acceptance of the circuit courts and the scope of

Court, but has made little impact on resolving the

cases that should be temporarily tried or handled

problem of localization.

by the Supreme People’s Court. Provisions were made on the selection and appointment of

Although the staffing and expenses of circuit

judges, case-handling accountability system, and

courts are independent from local governments,

the appointment of anti-corruption supervisors

but with increasing interac tions with the

for circuit courts. In February, the Opinion of the

governments as the number of cases increase,

Supreme People’s Court on Deepening Reform of

there is a risk that new issues of localization will

the People’s Courts Comprehensively – Outline of

emerge between circuit courts and the local

the Fourth Five-Year Reform of the People’s Courts

governments. Therefore, the establishment of

(2014–2018) decided to establish a system of

circuit courts is not a step towards de-localization

judicial jurisdictions appropriately separate

but a step towards even greater localization. As

from administrative divisions, and other related

a matter of fact, as a dispatched organ of the

measures. The Opinion decided to establish circuit

Supreme People’s Court, the circuit courts will

divisions of the Supreme People’s Court, explore

handle the same cases as the Supreme People’s

establishing courts across administration divisions,

Court, except in a different location from Beijing.

promote the establishment of intellectual

Therefore, circuit courts could only relieve the

property courts, reform the administrative,

workload on the Supreme People’s Court, similar

maritime and environmental resource cases

to the role played by sub-courts of the Supreme

jurisdiction system, improve the public interest

People’s Court at earlier stages. Meanwhile,

litigation jurisdiction system, continue to promote

as there has been a long standing system of

reform of the court management system, and

requesting for instructions in the court system,

carry out reform of the military judicial system.

once the circuit courts of the Supreme People’s Court are established, high people’s courts in

20

The establishment of circuit courts aims to

circuit areas will face more supervision pressure

address the problem of localization in the judicial

from the corresponding circuit courts when

system. Ideally, after the circuit courts are widely

dealing with major and complicated cases. They

which also responds to the call for establishing

inevitably repeat the practice of requesting for

specialized administrative courts. But the actual

instruction for “major, difficult and complicated”

effects of these courts are limited with regards

cases.

to de-localizing the judiciary. Courts across

Annual Report on China’s Judicial Reform 2015

will become increasingly dependent, and may

administrative divisions below the provincial level In contrast, establishing courts across

will not help with the de-localization of the judicial

administrative divisions may have a greater

system because provincial authorities could still

impact on de-localization and reasonable division

influence the judiciary. For example, although the

within the judiciary. At the end of 2014, the

Beijing No.4 Intermediate People’s Court could

Beijing No.4 Intermediate People’s Court and

conduct cross-level and cross administrative

the Shanghai No.3 Intermediate People’s Court

division hearing for first instance of administrative

were established, but neither adjudicates across

cases where local governments are defendants, it

administrative divisions to a great extent. Aside

is inevitably influenced by the Beijing government

from the cases previously heard by the Railway

and the Party, as demonstrated bythe years of

Court covering Beijing, Tianjin and Shijiazhuang

experience of the Hainan Intermediate People’s

provinces, the cross-administration jurisdiction

Court in Hainan Province.

of the Beijing No.4 Intermediate People’s Court is not well- defined in regards to cases on

Courts across administrative divisions should

environmental resource protection, as well as

be set up at the level of high courts––the level

major food and medical security issues. When

at which“ courts are conducting de facto final

it comes to administrative cases where local

review” as most cases come to a close at this level.

governments are defendants, financial leasing

Learning from the experience of the region-based

contract disputes under the jurisdiction of local

reform of People’s Bank of China, certain high

intermediate people’s courts, insurance disputes,

courts could be merged. For example, a cross-

and commercial cases concerning foreign

administration high court could be shared by

countries, Hong Kong, Macau, and Taiwan, the

Hebei, Beijing, and Tianjin. Moreover, although

Beijing No.4 Intermediate People’s Court only

de-localization and de-administralization of

hears cases from within Beijing, thus operating

the judicial system are the two main goals

more like a “specialized court” in Beijing. The

in this round of judicial reform, the relation

cross-administration feature of the Shanghai No.3

between these two goals has not been clarified.

Intermediate People’s Court is even weaker, as it

De-localization may even result in increased

mainly hears the first instance of administrative

administralization.

cases where the municipal government is the defendant, second instance of administrative cases where municipal administrative organs are

iii. Promoting the Reform of the Case Docket Registration System

appellants or respondents (excluding intellectual property administrative cases), public prosecution

The Decision of the Fourth Plenary Session of the

cases that are handled by the Shanghai

18th Central Committee of the CPC put forward

No.3 People’s Procuratorate, and other cases

an important reform measure to “reform the case

designated by its superior court.

acceptance system of courts, and change the case approval system into a case docket registration

The cross-administration management of

system.” In 2014, the amended Administrative

administrative cases is to some extent meaningful,

Procedure Law established the case docket

21

Annual Report on China’s Judicial Reform 2015 22

registration system. In 2015, the Interpretation

Practical issues concerning “difficulties with

of the Supreme People’s Court on the Application

case filing” are as follows: (1) the threshold for

of the Civil Procedure Law of the People’s Republic

filing a litigation set by the Civil Procedure Law

of China stipulated the case docket registration

are too high, and some courts take a very tight

system as the fundamental rule for civil litigations.

interpretation of this rule in regulating case

Specific provisions were made regarding non-

filing; (2) some courts further raised the bar; (3)

credible behaviors such as malicious litigation,

in pursuit of higher case settlement rate, some

false litigation, and abuse of litigation right

courts tend to “put cases in the drawer”, which

regarding enforcement objection. In April, the

means courts do not register and docket cases

Central Leading Group for Comprehensively

when they receive a filing but instead put them

Deepening Reforms approved Notice of the

away until the busy period passes; (4) some

Supreme People’s Court on Issuing the Opinions on

judges intentionally use the case approval system

Promoting the Reform of the Registration System

to discourage claimants, or even ignore the case

for Case Docket by the People’s Courts, attempting

and refuse to rule against accepting the case,

to balance the relation between trial power and

leaving claimants unable to appeal; (5) under the

right to litigate, and the relation between lawfully

case approval system some courts would refuse

registering case dockets and regulating the abuse

to accept sensitive cases while refusing to rule

of the right to litigate. Specific provisions on the

against docketing the complaint, which is the

case docket registration system were made. The

worst case scenario. Therefore, although high

Provisions of the Supreme People’s Court on Several

threshold for case filing and ambiguous rules do

Issues Concerning the Registration and Docketing of

lead to “difficulties with case filing”, the main issues

Cases by People’s Courts made clear and detailed

result from the execution of laws and regulations

rules on implementing rules of the case docket

and the deviation of judicial practice from laws

registration system. Upon receiving a complaint,

and regulations rather than from the legislations

the court shall issue a written receipt, and specify

per se. These issues cannot be fundamentally

the duration needed for examination based on

resolved by solely introducing the case docket

the type of the case.

registration system.

The replacement of the case approval system

The negative impact of this aggressive reform

with the case docket registration system aims at

has been evident. By the end of September, over

tackling the “difficulties with case filing”. However,

6.2 million first instance cases were docketed

what exactly is the challenge? How difficult is the

nationwide, which is a year-on-year increase

issue? What are the problems with case filing?

of 31.9%. The year-on-year increase rate was

Which approach is more suitable for China’s

22.9% for civil cases, 75.8% for administrative

current social conditions? The comprehensive

cases, and 60.5% for criminal cases. In 2015,

introduction of case docket registration system

the overall number of new cases received by

seems hasty without thorough consideration and

courts nationwide was 17.66 million, which is

research of these questions above. As a matter

a 22.8% year-on-year increase. The number of

of fact, the difficulties with case filing was more

civil and commercial cases was over 10 million.

pronounced in the last 15 years of the twentieth

As the second review, application for re-trial and

century. In recent years, although difficulties still

petition case were not included in the case docket

exist, it has been more of a “social issue” rather

registration system reform, courts under the most

than a legal issue.

pressure of case acceptance are the first instance

should also be entitled to file a charge against

such great pressure, some basic people’s courts

the court. Trial staff involved in negligence must

had to set a daily limit on the number of cases that

bear administrative liability and under serious

can be filed. Moreover, courts will face more cases

circumstances, relevant personnel should be

that abuse the right to litigate and cases that are

punished for dereliction of duty.

Annual Report on China’s Judicial Reform 2015

courts, especially basic people’s courts. Under

not litigable, such as the case of a Shanghai TV viewer attempting to sue an actress Zhao Wei for

As a social issue, the case filing challenge should

staring at him in the TV, and a parent in Wuhan

be tackled with multiple approaches. The power

attempting to sue the Ministry of Education for

of the judiciary needs to be enhanced in the

not getting his child’s textbook in time 20 years

current power structure. Independent execution

ago.

of trial power of courts should be guaranteed.

Principle of judicial final settlement must be

To address the issue with case filing, a more

implemented. The establishment of diversified

moderate approach would involve improving

dispute resolution mechanisms should be

the existing case approval system. Two points are

encouraged. The connection between litigation

particularly noteworthy. First, the conditions for

and non-litigation dispute solution mechanisms

prosecution should be lowered. It is suggested

should be established. Information technology

that the first clause of Article 119 should be

should be applied to form an online case filing

amended to read “the plaintiff must be a citizen,

platform, and functions such as online counseling,

a legal person or other organizations that has a

online meditation, litigation guidance, and case

direct interest in the case”, and the third clause

enquiry should be optimized, in order to offer

should be amended to read “there must be

convenient case filing services.

specific claims and corresponding evidentiary materials.” Second, ensure that the courts strictly abide by the regulations regarding conditions

iv. Promoting the Reform of the Case Guidance System

of filing a case. The threshold must not be lifted; the practice of “putting cases in the drawer”

In 2015, the reform of case guidance system

and judges’ deliberately making things difficult

has made some progress. In April, the Supreme

for the parties must be forbidden. Regulations

People’s Court released the tenth batch of guiding

could be applied with more flexibility. Clauses

case including eight cases. In June, Detailed Rules

on the remedies for parties involved and penalty

for the Implementation of the Provisions on Case

clauses for courts must be clarified. For example,

Guidance was issued and it clarified the standards

when a court does not file a case and at the

and style requirements for selecting guiding cases,

same time, refuses to make a decision not to

as well as the bodies with the right to recommend

docket the complaint, the court is engaged in

cases and the standard of “similar cases”. Besides,

an act of negligence. The plaintiff is entitled to

it stipulates that when handling a case, the person

lodge a petition or raise the original charge in

in charge should refer to the relevant guiding

the aforementioned court’s superior court. If

cases, and if the case is similar with the guiding

the superior court considers the case qualified,

cases in basic facts and application of law, the

the case must be accepted by the court. Once

person in charge should refer to the key points

accepted, the case could either be transferred to

of judgments of the guiding cases and quote

a subordinate court or a designated court, or be

them as the judicial reasoning. Furthermore,

heard by the court that accepted it. The claimant

the Supreme People’s Court will establish paper

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Annual Report on China’s Judicial Reform 2015

archives and a digital database as a complement

Case guidance system can support to unify

to and safeguard for the guiding case system. In

the application of the law and adjudication

November, the eleventh batch consisting four

criteria and regulate the discretionary power of

guiding cases was issued, adding to the total of 56

judges, so as to solve the problem of “different

guiding cases released so far.

adjudications from similar lawsuits” and promote judicial justice. However, if the reform continues

24

Although the case guidance system is meaningful,

with the status quo, the system will fail to play

the court is overly cautious in its implementation.

its expected role. In the future, the following

After the self-initiated experiment of the case

points should be considered: First, accelerate

guidance system by some local courts, the

the selection and compilation of guiding cases,

“Second Five-Year Reform Outline” of court

expand the scope, simplify repor ting and

integrated “establishing and improving the case

reviewing procedures, expedite the frequency of

guidance system” into its overall plan. In 2008,

releasing cases, encourage local courts to submit

Opinions on Deepening Reform of the Judicial

guiding cases, establish incentive mechanism,

System and Working Mechanism issued by the

and reward judicial personnel who handled the

Central Committee of Political and Legislative

case selected as a guiding case. Second, further

Affairs of P.R.C. clarified that the reform of the

clarify the criteria for identifying similar cases,

case guidance system shall be an important part

drawing on case comparison techniques from the

of the judicial reform. At the end of 2010, as the

common law systems to compare details of the

Supreme People’s Court issued Provisions on Case

case to be heard and guiding cases, drawing on

Guidance, case guidance system was officially

essential facts to determine the similarities and

established. But in recent years, the case guidance

differences between them, thereby deciding if

system still focuses on technicalities, such as case-

the guiding case is applicable. Third, clarify the

selection, case-compilation, and case-publishing.

validity of guiding cases, which can be defined

Only a small number of cases were published and

as “fact binding”. Parties involved and lawyers

the effect was not obvious in practice. This may be

may invoke the guiding cases, and the judge can

a result of the case guidance system’s reference to

quote the guiding cases in judicial reasoning. The

the common law system in Anglophone countries

judge is obligated to explain the application or

causing legislative bodies to be anxious about

non-application of certain guiding cases, and they

their powers being encroached. As a result, the

should also provide reasons for excluding the

judicial system adopts a conservative attitude.

application of certain guiding cases in the written

While the abovementioned Detailed Rules aims

judgment. If the judgment is obviously contrary

at promoting the application of case guidance

to the guiding cases, parties involved may appeal

system, it is not very specific. For instance, there

or apply for a re-trial accordingly. Fourth, on the

are only three articles on the application of the

general direction of development of the case

system. Moreover, it only contains an abstract

guidance system, it is recommended to gradually

standard for what constitutes “similar cases”.

transition from the system of an informal source

There are no specific explanations on what is

of law to a formal source of law and eventually

considered “similar”, when “should” guiding cases

replace judicial interpretation with guiding cases,

be used, and how to “refer” to guiding cases.

making the case guidance system the principal

Other important issues such as the validity of

means for the Supreme People’s Court to offer

guiding cases and remedies for violation are not

guidance on judicial practice and the application

mentioned either.

of law.

Annual Report on China’s Judicial Reform 2015

v. Improving Enforcement Mechanism

enforcement tribunal and adopting a policing model for enforcement institutions, and carry

The establishment of informatized enforcement

out a property declaration system of persons

and enforcement coordination mechanism has

subject to enforcement. This proposal, to some

seen rapid developments in 2015. In July, the

extent, responds to the reform suggestions of

Supreme People’s Court and “Zhima Credit”, a

previous judicial reform reports on establishing

third-party commercial credit bureau, signed a

enforcement institutions independent from the

memorandum of cooperation to establish a joint

court and working in an administrative or policing

Internet credit discipline mechanism. In August,

model. Besides, the meeting also pointed out

the national court conference on enforcement

that on the basis of the information management

required that documents for all cases under the

system of case enforcement procedures regulated

enforcement procedures in courts at all levels

by the Supreme People’s Court, the handling

should be documented, supervised and disclosed.

of cases on the Internet should be promoted,

In November, the Supreme People’s Court and

and that each step of the process should be

the Ministry of Agriculture signed Memorandum

documented. The credit punishment mechanism

of Cooperation on Constructing the Enforcement

should be improved and the scope of punishment

Mechanism for Network Censoring and Control,

enlarged, so as to implement the memorandum

aimed at enforcing credit punishment on

of cooperation on punishing discredited persons

discredited persons subject to enforcement in the

jointly signed with over 40 entities, including the

fishery industry by sharing the list of discredited

National Development and Reform Commission,

persons subject to enforcement and registration

and encourage each entity to implement a credit

information of fishery vessels. In December,

punishment mechanism within their own scope

the Supreme People’s Court and China Banking

of management.

Regulatory Commission jointly issued Regulations on Enforcement of Censoring and Control on

In July, the Interpretation on Several Issues

Network by People’s Courts and Banking Financial

concerning the Application of Law in the Trial of

Institutions, requiring the head offices of financial

Criminal Cases of Refusing to Satisfy a Judgment or

institutions at all levels to complete their network

Ruling was published. It clarified the conditions,

connections with the Supreme People’s Court and

jurisdiction, and prosecution procedures for

to launch the function of network censoring and

refusing to enforce a judgment or ruling, moving

control by the end of February 2016. So far, China

from the single public prosecution procedure

Enforcement Information Network has published

to a combined procedure involving both public

a total of 50,680,000 pieces of enforcement

and private prosecution, and specifying the types

information and provided information inquiry

of behavior that lead to the aforementioned

33,800,000 times. Across the country, there are

crime. The revised edition of Several Provisions

2.45 million people subject to enforcement on the

of the Supreme People’s Court on Restricting High

discredited list, among which 34% are forced to

Consumption and Relevant Consumption of

automatically fulfill their obligations.

Persons Subject to Enforcement included “other consumption not necessary for life or work” into

In early 2016, the national meeting of presidents

the constraining scope in order to restrain to

of high people’s courts proposed to launch a

the greatest extent “deadbeat” persons subject

pilot reform on separating trial and enforcement,

to enforcement, force them to fulfill their

exploring the possibility of establishing an

obligations, and promote the establishment of

25

Annual Report on China’s Judicial Reform 2015

social credit mechanism. In early 2016, Opinions

unified national training platform for courts on the

on Strengthening and Regulating the Work of Online

Internet. It also issued Provisions on Establishing

Judicial Auction by People’s Courts was published

a Legal Research Scholar System and Provisions

and it clarified the detailed rules of judicial

on Establishing a Legal Intern System in order to

auction online.

promote the integration of theory and practice and improve the training of legal talents.

Reform of the enforcement mechanism plays an important role in the execution of judicial ruling. Informatization of enforcement is an effective improvement that reduces costs and enhances the efficiency of enforcement.

Moreover, implementing credit punishment system, establishing a public list of discredited persons subject to enforcement, and further constraining consumption of the “deadbeats” can help to resolve difficulties regarding enforcement and propel the establishment of a social integrity system. However, most of those measures are not addressing the root cause. To tackle difficult enforcement and related problems, the reformshould start with improving individual credit system, promoting credibility of the judiciary, establishing authority of judgments and other fundamental measures while relying on the reform of court enforcement mechanism.

So far, there is yet no implementation of piloting the separation of trial and enforcement as required by the 4 th Plenary Session of the 18th Central Committee of CPC. In the future the decentralization of enforcement power, the reinforcement of enforcement supervision, and the acceleration of legislative work of the enforcement law should be further strengthened, so as to solve problems including undefined enforcement power, lack of power of enforcement, unstandardized enforcement and corruption in enforcement.

Furthermore, the Supreme People’s Court issued the Plan for Education and Training for Courts Across the Country (2015-2019), making an overall arrangement on the coming five years’ education and training for courts and seeking to build a

26

Annual Report on China’s Judicial Reform 2015

III. Reform Measures of the Procuratorate

In 2015, the procuratorial organs made considerable

is authorized to set up public interest litigation

progress in piloting public interest litigation,

pilots in thirteen province-level administrative

deepening the reform of people’s supervisors

regions including Beijing and Inner Mongolia

system, improving review mechanism of necessity

concerning areas such as ecological, environmental

forcontinuous custody, establishing people’s

and resource protection, state-owned assets

procuratorate’s request for instruction system, and

protection, transfer of state-owned land use rights,

regulating judicial interpretation. In January, the

and food and drug safety over the course of two

Supreme People’s Procuratorate published Opinions

years.

on the Implementation of the “ Decision of the CPC Central Committee on Major Issues Pertaining to

Thereupon, Plan for Piloting Public Interest

Comprehensively Promoting Law-based Governance”,

Litigation by the Procuratorial Organs was

where it put forward 42 requirements covering

issued. It clarifies the scope of cases involved

nine aspects, most of which involve procuratorial

in the pilot program and confirms the status of

reform. In February, the revised version of Opinions

procuratorial organs as a “public interest litigator”.

on Deepening Procuratorial Reform (Work Plan

Besides, it stipulates pre-trial procedures to

for 2013-2017) proposed six major tasks and 42

the effect that before filing civil public interest

specific tasks. The six major tasks are: improving the

litigations, the procuratorates shall lawfully urge

institutional guarantee mechanism of exercising

or support relevant organizations as defined by

procuratorial power independently and impartially

law to file civil public interest litigations. Before

according to the law, establishing a procuratorial

filing administrative public interest litigations,

personnel management system suitable for

the procuratorates shall offer procuratorial

procuratorial staff, perfecting the operation

suggestions to the relevant administrative organs

mechanism of procuratorial power, perfecting

and urge them to rectify their illegal administrative

the anti-corruption legal supervision system,

acts or to perform their duties according to the

strengthening legal supervision function of

law. The Plan has also stipulated the scope of

procuratorates, improving the legal system for the

claims, application procedure, and exemption of

procuratorial organs to exercise supervision rights,

litigation costs of public interest litigation filed by

and enhancing the supervision and restriction on

the procuratorates. In January 2016, the Supreme

the operation of procuratorial power.

People’s Procuratorate published five typical cases derived from the public interest litigation pilots,

i. Piloting Public Interest Litigation by Procuratorial Organs

among which three were administrative public interest litigation cases against county-level environmental protection departments for failing

In July 2015, Decision on Authorizing the Supreme

to perform their duty.

People’s Procuratorate to Pilot Public Interest Litigation in Certain Areas was passed. Under the

The abovementioned measures have delegated

Decision, the Supreme People’s Procuratorate

to the procuratorial organs the right to prosecute,

27

Annual Report on China’s Judicial Reform 2015

reflecting the practical need to protect public

As public interest litigation by procuratorial

interest. This contributes to compensating for the

organs is part of the overall public interest

lack of judicial supervision over public interest

litigation system, it would be more scientific

protection, which is a sign of progress of the

and comprehensive to consider it in a holistic

public interest litigation system. Although there

view. First, the scope of public interest litigation

is some need to grant the right of public interest

is narrow at present and it should be expanded

litigation to the procuratorial organs, it was

in the future. Enumeration is recommended in

ultimately a pragmatic choice on the basis of the

clarifying the scope of public litigation and it is

current structure of political power, framework of

desirable to set a general provision like “other

judicial system and structural pattern of litigation,

public litigations” in the end. Second, currently

while the conflict between the supervising role

the eligible plaintiffs of public interest litigation

and the prosecuting role of the procuratorial

include procuratorial organs and relevant organs

organshas to be resolved in future reforms.

and organizations stipulated by law. In fact, the

In theory, there are still debates about the

term “organizations stipulated by law” has become

justification and necessity of the procuratorates

a major hurdle for public interest litigation. It

filing public interest litigation.

should be reinterpreted in a broadened manner, allowing all legally registered organizations to

The effective operation of the public interest

bring up public interest litigations related to

litigation system depends on many procedural

their scope of business. The government should

regulations and supporting mechanisms. The

support the development of NGOs, transform

current reform program should at least clarify the

its functions and policies on social groups, and

following issues: First, in order to facilitate the

strengthen civil society. If future conditions

procuratorial organs in investigating the facts

permit, individual citizens should have the

on site and initiate public interest litigation, it is

eligibility to file public interest litigation in areas

suggested that litigation should take place at the

such as environmental protection. Third, in terms

procuratorate where the defendant is located.

of procedures, at present, the law stipulates that

Second, procuratorates should be authorized to

only the procuratorial organ is exempted from

investigate and collect evidence, but this should

litigation costs. In the future, it should be clearly

be differentiated from the right to investigate

stipulated that all the public interest litigations

during criminal proceedings such as inquiring

are free of charge and if the plaintiff wins the

and searching. Third, the process of issuing

defendant should cover the costs. There should

procecutorial recommendation should become a

be limitations on the principle of disposition and

standard pre-trial procedure for the public interest

adversary, and in theory, lawsuit withdrawal,

litigation. Fourth, a temporary injunction system

mediation and reconciliation should not be

should be established. Procuratorial organs,

allowed. The finding of facts of a judgment can be

public interest social groups or even individual

used as evidence for the following trials, but it still

citizens should be allowed to apply for injunction

needs more research as for whether the former

against illegal actions for the courts’ review, in

ruling would be binding on the following trials.

order to prevent irrevocable damage brought about by continuance of such act. Fifth, the claim and format of judgment of civil and administrative cases should be further clarified.

28

Annual Report on China’s Judicial Reform 2015

ii. Deepening Reform of the People’s Supervisors System

of the CPC further suggested that “we should sum up the experience from the pilot program of people’s super visors system, study and

In February, the Central Leading Group for

advance the legislation of the people’s supervisor

Comprehensively Deepening Reforms issued

system, and clarify the selection, appointment,

Plan for Deepening Reform of People’s Supervisors

management, the supervision scope and the

System. The Plan integrated the 2014 documents

supervision procedures of people’s supervisors.” In

Work Plan for Pilot Reform of the S cope of

2010, the Supreme People’s Procuratorate issued

Supervision and Supervision Procedures of People’s

Regulations on Implementing People’s Supervisors

Supervisors and Opinions on Pilot Reform of

System, calling for the full implemention of the

Selection, Appointment and Management Patterns

people’s supervisors system in the procuratorial

of People’s Supervisor published by the Supreme

system.

People’s Procuratorate and included similar content. One new proposal in the Plan is the

In the long exploration period, problems of the

legislation of the people’s supervisors system.

people’s supervisors system were exposed to

Thereafter, more than 5,300 people’s supervisors

the public, such as unreasonable selection and

are elected in ten pilot provinces. In Jilin Province,

appointment, lack of independence, narrow scope

the Provincial Department of Justice and the

of supervision, and ineffectiveness of supervision.

Provincial Procuratorate jointly formulated

The abovementioned documents affirmed the

Work Plan for the Pilot Reform of Selection,

direction of the reform and relevant measures

Appointment and Management Patterns of

of the people’s supervisors system; in the future,

People’s Supervisors for Jilin Province and Measures

the emphasis will be on putting them into

for Selection, Appointment and Management

practice. However, the prospect is not optimistic.

of People’s Supervisors of Jilin Province (for Trial

Compared with the people’s assessors system, it

Implementation).

is hard to expect the people’s supervisors system to achieve any major breakthrough. The people’s

Since its initial implementation in over ten

supervisors system has less public awareness

provinces and cities in 2003, the people’s

and is still new to many citizens. In practice,

supervisors system has gone through three

most people are reluctant to supervise, dare not

stages: the initial pilot, gradual scaling-up, and

to supervise, or are unable to supervise. Even if

deepening reform. In 2006, the Decision of the

the selection and appointment right is assigned

Central Committee of the Communist Party of China

to the judicial administrative organs and funds

on Certain Major Issues Concerning the Construction

for its implementation is guaranteed, it is still

of a Harmonious Socialist Society published by the

extremely difficult to appeal to citizens to become

th

th

6 Plenary Session of the 16 Central Committee

supervisors through self-recommendation to

of the CPC put forward the idea of “strengthening

ensure the diversity of supervisors and the validity

the construction of judicial democracy, improving

of their supervision work.

the open trial system, the people’s assessors system, and the people’s supervisors system.” In

The validity of supervision is key to the existence

2008, Opinions on Several Issues Concerning the

and development of people’s supervisors system.

Deepening of the Reform of Judicial System and

According to current plans, the chief procurator

Working Mechanism published by the Politics and

and the procuratorial committee still have the

Law Committee under the Central Committee

right to make the final decision over the opinions

29

Annual Report on China’s Judicial Reform 2015

of people’s supervisors. In light of this situation,

review mechanism of the necessity of continued

the government should enhance the validity of

custody after arrest, entrusting procuratorial

people’s supervisors in the future by emphasizing

organs with the obligation of review. The newly

substantively binding decisions over procedurally

revised Rules of Criminal Procedure of the People’s

binding decisions and by gradually transitioning

Procuratorate (for Trial Implementation) stipulates

from the current procedures for reconsideration

the same mechanism in a more specific way.

to a system where supervision opinions shall

However, due to the unchecked judicial power and

be adopted. In addition, it should establish and

defects in legislation, there are problems in the

improve the mechanisms of people’s supervisors’

review mechanism of the necessity of continued

attending the interrogation of the suspect and

custody, including limited ways to initiate the

inquiry of the witness, while at the same time,

mechanism, the narrow scope of review, and the

allow people’s supervisors to hear lawyers’ advice

overreliance on written review. As a result, the

without procurators’ presence.

mechanism fails to achieve its goal of limiting the use of arrests. Although the above documents

iii. Improving the Review Mechanism of the Necessity of Continued Custody

have made some progress in emphasizing open review and quantitative evaluation on the necessity of custody, they are imperfect since the ex post, suggestive, and supervisory review

In early 2016, Regulations on People’s Procuratorate’s

system is not sufficiently binding. Moreover, there

Measures for Reviewing the Necessity of Continued

are problems remaining to be solved, such as the

Custody in Cases (for Trial Implementation) was

administralization of the review process.

released. The Regulations clarified the profile of applicants, reviewing authority, initial review

In view of these conditions, there is a lot of room

procedure, review methods, open review,

for future reform: First, fully enforce the principle

approval procedure, the content of review report,

of presumption of innocence, strengthen pre-

and the way of case settlement for the review

arrest investigation, improve the decision-

mechanism of the necessity of continued custody.

making procedure for arrests, reduce the number

It also elaborated on the standard for reviewing

of arrested people, decrease the approval rate

the necessity of continued custody, as well as the

for arrests, and improve alternatives for arrest.

conditions under which the suspect should or

Second, custody is deeply related to the personal

could be released or when compulsory measures

freedom of citizens, and thus must be handled

be altered.

with caution. Future reforms could learn from judicial review patterns in foreign countries, in

30

For a long time, law enforcement have seriously

which the court decides and supervises the use of

abused the use of arrests, causing arrest rates to

continued custody, and gradually transition from a

be abnormally high in China. Over the years, the

model of supervisory review to a model of judicial

arrest rate has remained above 90%, with over

review. Third, establish a periodic review system,

800,000 people arrested. Moreover, issues of

establish an open hearing principle, strengthen

“arrest in place of investigation”, erroneous arrest,

the force of the review result, and propel the

disregard of lawyers’ advice, confounding custody

review mechanism of the necessity of continued

period with case-handling period and overdue

custody to adopt the form of litigation. Fourth,

custody are extremely prevalent. The Criminal

strengthen the participation of lawyers, who can

Procedure Law promulgated in 2012 added a

provide the procuratorial organs with legal advice,

into a problem with the application of the law

further improve the evidentiary standard, criminal

for a case (on either substantive and procedural

punishment standard and social risk standard

issues), they will submit a request to the higher-

of the review mechanism of the necessity of

level procuratorate in oral or written form. The

continued custody. Sixth, establish a remedy

current practice involves requests for instructions

mechanism of the review mechanism of the

between lower and higher level organs, requests

necessity of continued custody. If the applicant

when the chief procurator and the procuratorial

or the victim is dissatisfied with the decision, they

committee have serious disagreements, and

should have the right to apply for reconsideration.

level-by-level requests regarding the handling

Seventh, strengthen the external supervision

of complicated cases. However, this practice has

mechanism, which could be connected effectively

many problems: the request procedure is not

with the people’s supervisors system or be

standardized, the legal standing of the replies

introduced as a third-party social organization to

is unclear, replies are often causal or informal in

evaluate the necessity of custody. Besides, it could

nature, and many replies are often delivered orally.

draw on the social investigation system adopted

As a result, not only has this affected the case-

when dealing with juvenile delinquency case.

handling efficiency to some degree, but it has

Annual Report on China’s Judicial Reform 2015

investigation report, or evidence material. Fifth,

also hindered the supervision and restriction on

iv. Establishing the People’s Procuratorate’s Request for Instructions System

procuratorial power as well. In particular, the case reporting system strongly reflects the problem of administralization: under the administrative model characterized by level-by-level reporting, grassroots

In December, Provisions on the Work of Request for

procurators tend to take instructions from higher-

Instructions on the Handling of Cases by People’s

level procuratorates as a way to evade responsibility,

Procuratorates (for Trial Implementation) was

which causes dependence, idleness, and corruption.

published. It clarified the scope of instructions t h a t t h e l o we r - l e ve l p ro c u r a t o r a t e s m a y

The mechanism for requesting instructions

request from higher-level procuratorates. The

originates from the unified procuratorial system,

request should be in written form. It stipulated

the supervisional relationship between higher

the procedures for examination, handling,

and lower level procuratorates, and the chief

consultation, and submission for approval for

procurator responsibility system. Therefore, it

higher-level procuratorates. Moreover, it clarified

has a certain level of reasonability. However, the

the responsibility of lower-level procuratorates to

system conflicts with the procurator-in-charge

present the content of the request authentically,

responsibility system that has been vigorously

the responsibility of higher-level procuratorates

promoted by the procuratorial system in recent

to offer legitimate advice and directions, as well as

years. As a result, the relationship between the

the responsibility of lower-level procuratorates to

procuratorial unification and the independent

implement the received advice and the relevant

execution of procuratorial power should be

accountability pursuit mechanism.

coordinated, with reasonably defined respective boundaries and standardized procedure for

Although not clearly stipulated by law, an informal

request. The abovementioned regulation has

practice for requesting instructions has long

made some progress in clarifying the scope

existed within the procuratorial organs, which

of request, standardizing relevant procedures,

means when the lower level procuratorates run

requiring requests and replies be delivered in

31

Annual Report on China’s Judicial Reform 2015

written form, emphasizing the importance of record

Congress stipulated that the Judicial Committee

keeping of case instructions, and strengthening

of the Supreme People’s Court has the power to

accountability mechanism. However, it should

interpret the specific laws and decrees used in

attach more importance on the improvement of

the process of judgment. In 1981, Resolution on

the procuratorial interpretation system. Specifically,

Strengthening the Work of the Interpretation of Legal

it should make full use of procuratorial case

Issues gave the Supreme People’s Procuratorate

guidance system, and replace the request for

the power to interpret specific laws and decrees

instructions with the case guidance system. At the

applicable to procuratorial work. These decisions

same time, an expert consultation system should

resulted in the current arrangement allocating

be explored to provide reference opinions on fact

the power of judicial interpretation to two bodies.

finding, application of law, and disposal of major,

In 2015, the revised Legislation Law also clearly

difficult, and complicated cases that are going

granted “the two Supremes” the power of judicial

to be submitted, which would shift the system

interpretation.

from relying on internal instructions to relying on external support.

Since the 1980s, judicial interpretation has developed so rapidly that its influence surpassed

v. Standardizing Judicial Interpretation

that of laws in judicial practice, and it became the primary basis of the work of procuratorial and

In December, the Supreme People’s Procuratorate

judicial organs. Where legislation were lagging,

published Provisions on the Judicial Interpretation

legislative loopholes abound, and judicial officials

Work, revising the previous version published

under-qualified, judicial interpretation has played

in 2006. The revised document emphasized

a role in filling the gap, unifying the standards

that procuratorial judicial interpretations

between the application of the law and rulings,

can only be made by the Supreme People’s

and standardizing judicial acts. However, the

Procuratorate, and stipulated eight procedures

proliferation of the judicial interpretation system

on project establishment, investigation and

revealed a strong legislative character, exposing

drafting, argumentation and soliciting opinions,

a number of problems such as the multi-headed

submisson for review, deliberation and approval,

authority behind the interpretation, multiple

proof-reading, signing and promulgation, and

authorities jointly issuing interpretations, the

submission for record-filing. Besides, it enlarged

administralized and isolated nature of formulating

the scope of origin of survey and drafting procedures

interpretations, the overly simplistic procedure

and the scope of soliciting opinions, and clarified

of formulating interpretations, the abstract

the form judicial interpretations should take (e.g.

content of interpretations, discrepant forms, and

rule, provision, reply, decision) and the types of

a lack of supervision mechanism of rescission.

cases they correspond to. It also suggested that an

Particularly regarding ultra vires interpretations,

evaluation mechanism for judicial interpretation

judicial interpretations constantly go beyond

should be established.

the parameter of existing laws, causing conflicts among different regulations. The Supreme

The judicial interpretation mechanism in China

People’s Procuratorate has made a large number

is mainly influenced by the system of the former

of interpretations on criminal justice over the

Soviet Union. In 1955, the Resolution on the

years and it strives to strengthen its status in

Interpretation of Legal Issues published by the

judicial interpretation.

st

Standing Committee of the 1 National People’s

32

system needs major reforms: the pattern of

vi.

Annual Report on China’s Judicial Reform 2015

Therefore, the current judicial interpretation

Strengthening the Work of Public Prosecution in Court

“replies” based on internal request and report system should be abolished, the “legislative”

In July, the Supreme People’s Procuratorate

judicial interpretation should be restrained,

promulgated the Opinions on Strengthening the

the review and supervision on current judicial

Work of Public Prosecution in Court, and pointed

interpretations by the Standing Committee

out that the public prosecution department

of the National People’s Congress should be

should be actively involved in investigation and

strengthened, the case guidance system should

in providing guidance for obtaining evidence,

be invigorated, and interpretation according to

improve the chain of evidence and certification

precedence should gradually replace judicial

system, pay greater attention to pre-trial review

interpretation as the principal mode to unify

and defense of innocence, rule out illegal

the application of the law. Moreover, under

evidence resolutely, and guarantee the right of

the current arrangement, the procuratorial

the lawyers. In addition, it should strengthen

organ simultaneously embodies the function

interrogation, evidence presentation, cross-

as investigator, prosecutor and supervisor,

examination in court, and the testification of

positioning rules on executing its investigative

the legality of evidence. It should also intensify

powers on job-related criminal cases as legally

supervision on criminal judgment, strengthen the

binding judicial interpretations, which contradicts

cooperation of prosecutors for public prosecution,

fundamental principles of rule of law. The

and make use of modern communications and

government should formulate a Law on Judicial

multimedia technology to help with presenting

Interpretation as soon as possible or regulate

evidence and conducting appearance in court

judicial interpretation in a separate chapter

from long distance.

in Legislation Law. It is necessary to strictly standardize the procedure of formulating and

For a long time, there are plenty of drawbacks

promulgating judicial interpretation, establish

in the system of procurators supporting public

review and revocation mechanisms of judicial

prosecution in judicial practice. The root of

interpretation, and duly fix certain existing judicial

the problem lies in the weakening of the

interpretations that violate the Constitution or

court hearing, as a result of the focus on the

other laws. Besides, the authorities issuing judicial

investigation process in criminal litigations and

interpretations and the form they take should be

the focus on files and records in written hearings.

unified. Procuratorial organs should be deprived

Under this mode of litigation, the appearance

of the power to make judicial interpretations,

of the prosecutor in court to support public

delegating this power exclusively to the court.

prosecution is to a certain extent meaningless

The Standing Committee of the National People’s

and defense from the lawyer is made ineffective.

Congress should establish a special department of

Therefore, it is ver y common that the trial

legal interpretation, which can further strengthen

becomes merely a formality, the procurators

legislative interpretation, vigorously develop the

who have signed the indictment do not appear

case guidance system, decrease the necessity of

in court, designating other staff to appear in

formulating judicial interpretation, and ultimately

court on their behalf, and most of the time the

remove the procuratorial organs’ power of

procurators do not appear in court at all for simple

formulating “legislative” judicial interpretation.

procedures.

33

Annual Report on China’s Judicial Reform 2015

The Opinions responded to the request of the th

Decision, promulgated on the 4 Plenary Session th

through guaranteeing judicial openness to realize

of the 18 Central Committee of the CPC, to

judicial justice, strengthening judicial democracy

advance reforms towards a trial-focused litigation

and public participation, and influencing the

system. It has re-focused public prosecution

public with the “visible justice�.

work on court hearings and forced procuratorial organs to improve the quality of prosecution in criminal accusation. If those requirements were implemented, the work load of the prosecutor will increase, and problems might arise as to whether grassroots procuratorates can handle the work with current staffing, material and financial resources, and balance quality and efficiency.

Conducting appearance in court from long distance is worth discussing because this not only intervenes with the independent work of the prosecutor, but also affects court order as well.

Under the background of vigorously advancing the prosecutor-in-charge responsibility system and judicial accountability system, the prosecutors are required to handle cases independently. As a result, it is not proper for the chief procurator to appoint others to appear in court at will. Otherwise, it will be difficult to coordinate the mechanism with the accountability system of prosecutors.

Besides, in February 2015, Opinions on Comprehensively Promoting Transparency of the Procuratorial Work was promulgated. Based on relevant measures in 2014, Opinions tends to deepen the reform, emphasizing active disclosure and responsibility realization. In July, Provisions on Implementing the System of Interpreting Laws with Cases by Public Prosecutors (for Trial Implementation) stipulated that the prosecutors should carr y out the interpretation of the laws with cases in various ways. They should focus on six types of cases including those with broad social influence, those that might be more controversial, and those that might lead to petitions or mass incidents, and interpret the legal reasoning to the public.

However, this system is not expected to exert the desired effect. Public education on law is

34

necessary, however, it should be done primarily

Annual Report on China’s Judicial Reform 2015

IV. Reform Measures in Public Security and Judicial Administration

i. Comprehensively Deepening the Reform of Public Security System

law enforcement; perfect the correction and accountability pursuit mechanism for wrongful law enforcement; and establish a lifetime

I n Februar y 2015, Framework Opinions on

accountability system for wrongful cases. If such

Several Major Issues Concerning Comprehensively

measures are implemented, they will be conducive

Deepening the Reform of Public Security System

to standardizing the use of investigation power

and related reform plans were issued. It involves

and reducing wrongful cases. However, under

over 100 measures in seven main areas, namely:

a judicial system and litigation structure where

improve the mechanism for maintaining national

the investigation power dominates, the Opinions

security, innovate the administration of social

has limited effect in constraining police power.

security, further reform the management of the

Although it improves the system of hearing

public security system, improve the use of law

lawyer’s opinions in the investigation stage,

enforcement power, improve the management of

the Opinions lacks a rigid super vision and

public security organs, improve the management

rights protection mechanism, making it hard to

of the people’s police, and standardize the

implement. In fact, the fundamental method to

management of auxiliary police officers. Of these

limit police power and protect human rights lies in

areas, improving the use of law enforcement

checks and balances, restriction of power, judicial

power is directly related to judicial reform.

independence, and freedom of speech.

Based upon the trial-centered litigation system

ii. Improving the System of Case Acceptance and Registration in Public Security Organs

reform, concrete reform measures include: improve the evidence collection mechanism to satisfy the principle of evidentiary adjudication; strictly implement the exclusionary rule of

In December, Opinions of the Ministry of Public

illegally obtained evidence and the mechanism

Security on Reforming and Improving the System of

prohibiting the extortion of confessions by

Case Acceptance and Registration was published.

torture, corporal punishment and abuse; establish

It requires that a case be immediately registered

and perfect the audio and visual recording

when reported, accepting relevant material and

system for interrogation; establish and perfect

issuing a receipt as proof. It also offers more

the review mechanism for the suspect’s defense,

specific guidelines on the time limit for public

appeal, and charge; improve the system of hearing

security organs to review, accept, and register an

lawyer’s opinions in the investigation stage;

administrative or criminal case, and the handling

standardize the procedure of sealing-up, seizing,

process for emergency situation. Moreover, it

freezing, and disposing properties involved in

improves the evaluation system by eliminating

cases and centralize the management of such

unreasonable evaluation indexes, such as the

properties; improve the accountability of the

incidence rate and case clearance rate, and by

35

Annual Report on China’s Judicial Reform 2015

increasing the weight of other evaluation indexes,

reporting, such as what to do if public security

such as the satisfaction of concerned parties with

organs refuse to report or inaccurately report

the public security organs in the reporting and

cases. Framework Opinions on Several Major

registration of the case. Furthermore, it promotes

Issues of Comprehensively Deepening the Reform

informatization by ensuring digital records of

of Public Security further proposed to “reform the

all the information concerning case receiving,

case acceptance and registration system, explore

accepting and registration are available online,

the separation of case acceptance and case

and that the whole process be catalogued

registration, and the system of case registration by

online. Lastly, it also improves the publicity of

specific department.” In May, the Public Security

law enforcement and the registration standard of

Bureau of Shijiazhuang took the lead in launching

criminal cases.

the reform of the case acceptance and registration system. It established at the city and county level

Case acceptance and registration are the first

two levels of case management centers formed

steps in the criminal litigation procedure. Case

by their personnel from legal departments. These

reporting, as one of the basic rights of concerned

centers thus centralized the review of reported

parties, should be protected by law. However,

cases, enabling files to be transferred from the

under the current case handling model where

same department, such that the whole case

registration and investigation are conducted by

handling process can be supervised.

the same organ, the public security system has

36

too much autonomy in case acceptance and

There are several suggestions regarding the

registration, which enables it to refuse to hear

future of the case acceptance and registration

reported cases, to refuse to accept cases that

system. First, separate case registration from case

should be accepted, to refuse to register cases

handling: establish an independent department

that should be registered, to delay registering

to specifically take charge of case acceptance

cases, to register cases inaccurately, to register

and registration and prohibit the department of

cases according to different standards, or to evade

case acceptance and registration from handling

these responsibilities altogether. Moreover, in

cases, which should weaken the administrative

order to lower the incidence rate or to increase the

feature and enhance the service feature of case

case clearance rate, it is a common phenomenon

registration. Second, improve the procedure of

in the public security system to manipulate the

case registration; segment the case registration

case registration process by not registering cases

process into more precise procedures such

that cannot be solved, registering cases only after

as police-call receiving, recording, encoding,

solving them, and not registering cases and at the

verifying, classifying, transferring, and handling;

same time refusing to issue a Notice on Rejecting

and record all the case information on the

Case Registration. In 2010, the Supreme People’s

police center database. Third, highlight external

Procuratorate and the Ministry of Public Security

supervision: emphasize procuratorial supervision

jointly issued Regulation on the Supervision

over case acceptance, registration, resolution, and

over the Registration of Criminal Cases (for Trial

withdrawal in public security organs; establish a

Implementation), which proposed establishing

system for case tracking and reminder; guarantee

a reporting mechanism or information sharing

the right of supervision of the lawyers and parties

platform for criminal cases. However, this

concerned; and increase public supervision.

document had little effect in practice, because

Fourth, establish a reasonable examination and

it did not provide any specific mechanisms for

evaluation system by abolishing performance

to change the current judicial examination to a

process, such as the incidence rate, case clearance

national legal profession qualification examination,

rate, and the number of cases investigated

which shall be based on cases and emphasize

and handled; replacing these indicators with

practical abilities. The Opinions proposes the

the quality of case handling, satisfaction of the

establishment of a unified pre-career training

concerned parties, and social impact; creating a

system for the legal professions, a legal profession

mechanism to solicit feedback on case handling,

qualification archive management system, an

and measuring the degree of standardization

information publication system, and a system

in the process of case registration as a major

of suspending and revoking legal profession

indicator of per formance evaluation. Fifth,

qualifications. All of these measures will be

promote the transparency of case registration and

implemented by the end of 2017.

Annual Report on China’s Judicial Reform 2015

indicators that distort the case registration

release the status of case handling online, so that the parties concerned can check the case status

The national lawyers’ qualification examination

online themselves, and the public can get access

was first held in 1986 and took place every two

to non-confidential information.

years thereon. In 1995, Judges Law and Public Procurators Lawlaid out the examination system

iii.

Improving the Legal Profession Qualification System

within the judicial system and procuratorial system for newly appointed judges and procurators, but those examination was easier than the national

In December, the “two Offices” issued Opinions

lawyers’ qualification examination and to a certain

on Improving Nationally-Unified Legal Profession

degree affected by privilege and exclusiveness,

Qualification System aimed at improving the

thus leading to the low overall quality of judges

admission system of the legal profession in order

and procurators. In 2001, Judges Law and Public

to promote the regularization, specialization and

Procurators Lawwere amended, establishing a

professionalization of the legal corps promoting

national judicial examination, passed by around

law-based governance. The Opinions stipulates

600,000 people to date. The national judicial

that legal professional qualification could only be

examination has helped alleviate the shortage

obtained from certain educational qualifications,

of talents, improve the overall quality of judicial

namely a full-time bachelor or above degree of

personnel, and initiate the formation of a legal

law; or a non-full-time bachelor or above degree

profession community. However, problems with

of law with a master degree of law, juris master,

such judicial examination have gradually emerged,

or above; or other equivalent degrees with three

such as the relatively low entrance threshold, over-

years’ experience of practice. It expands the

emphasis on memorization of written laws, and

scope of government officials that should have

the monotonousness of form and content. Thus

a legal qualification. Not only should judges,

the exam can neither represent the quality of

procurators, lawyers, and notaries have legal

legal profession nor meet the practical demand,

qualifications, but government officials who

and has also exerted negative influence on legal

are engaged in administrative penalty decision

education by inducing legal education to become

reviewing, administrative reconsiderations, and

oriented around the judicial examination. The

administrative adjudications should also obtain

development of the examinations––from the

legal qualifications; lawmakers and administrative

lawyer’s qualification examination, the judicial

law enforcement officials are also encouraged to

examination to the current national legal

have such qualifications. The Opinions proposes

profession qualification examination––shows the

37

Annual Report on China’s Judicial Reform 2015

improvement of the legal profession qualification

Cases Involving Legal and Litigation Issues (for

system. Focusing on supporting measures, these

Trial Implementation), which aims to implement

programs are designed to increase the entry barrier

the requirement of the Decision made by the 4th

and improve the quality of the legal profession.

Plenary Session, namely to “gradually implement a system of lawyer representation to handle

However, the program alone cannot solve

appeals against the effective judgments and

problems from the past. Due to the expansion of

decisions made by judicial organs”, so as to make

the legal occupation, it will become more difficult

use of lawyer’s function to safeguard stability.

to increase the entry barrier and ensure the quality

The Opinion clarifies the significance, tasks, and

of the profession. To achieve those goals, some

principles for lawyer’s participation in reconciling

other suggestions should be considered. First,

orrepresenting written and oral petition cases

revise and unify relevant laws and draft the Law on

involving legal and litigation issues. It proposes

National Legal Profession Qualification Examination

several operational mechanisms such as on-site

in due course. Second, divide the examination

consulting service, specialized representation

into two stages. Candidates should be selected in

service, evaluation and analysis of written and

the first stage based on basic qualifications, and

oral petitions and legal aid, while also actively

questions should consist of both objective and

encouraging the exploration of other mechanisms.

subjective questions aimed at examining basic

It clarifies the methods of receiving complainants,

legal knowledge and fundamental principles.

evaluating and analyzing written and oral

There should be a written examination and

petitions, explaining the laws and consoling,

an interview in the second stage: the written

providing advice for resolving the grievance,

examination should examine abilities of case

guiding the complainants to appeal according

analysis, logical reasoning, legal documents

to the law, and assisting to apply for aid. These

drafting, and legal profession ethics; the interview

mechanisms aim to make use of professional

should examine spontaneous response, oral

advantages of lawyers as intermediary agents to

expression, interpersonal communication skills,

reduce the cost of the government and courts in

legal belief and so on. Third, reform legal education

dealing with written and oral petitions involving

by comprehensively turning to practice-oriented

legal issues, and to provide opportunities for

education, separating academic and practical

nongovernmental public interest organizations

tracks, restructuring the admission system of law

and neutral-third-party evaluation organizations

students, scaling down undergraduate admission

to develop.

significantly, and expanding graduate admission for specialized masters programs.

Even before the publication of the above Opinion, local governments have been carrying

iv. Establishing the Mechanism for Lawyers’ Participation in Handling Petition Cases Involving Legal Issues and Litigation Issues

out helpful explorations in this domain. In April 2011, Jilin Province established China’s first legal affairs service center for written and oral petitions, comprised of lawyers, retired judges, and procurators. In June 2013, the Party

38

In November, the Central Political and Legal

Committee and Government of Enshi County,

Affairs Commission published Opinions on

Hubei Province employed 15 lawyers to establish

Establishing the System of Lawyers Helping to

a lawyers’ consultation group for Enshi County

Reconcile or Representing in Written an Oral Petition

to provide opinions on written and oral petition

their representation as people’s congress

consultation group participated in “the handling

representatives and members of people’s political

of hundreds of cases” involving legal and litigation

consultative conference. The professional right of

issues and issued hundreds of legal memos. In

practice should be guaranteed for lawyers, and

June 2015, the High Court of Shandong Province

access to related material for lawyers handling

along with other organs issued Interim Measures

written and oral petition cases involving litigation

for the Promotion of Lawyers Representation

issues should be ensured. Third, the recusal

in Petitions (for Trial Implementation), initiating

and separation mechanism should ensure that

the pilot program of lawyers’ representation in

lawyers do not participate in cases where there

petitions. The Beijing Public Interest Legal Service

is a conflict of interest, and prevent lawyers from

and Research Center, established in September

receiving compensation from using their conflict

2015, is a pilot program organized by Beijing

of interest as a source of cases. Fourth, although

Political and Legal Affairs Committee to explore

lawyers’ opinions do not have any substantial

how lawyers could act as a third party and

effect or binding force on the parties concerned,

participate in written and oral petitions involving

it should be made more convenient for lawyers to

legal and litigation issues. It provides independent

pass on their opinions to judicial organs.

Annual Report on China’s Judicial Reform 2015

cases involving legal and litigation issues. This

review opinions to judicial organs for reference on cases submitted by the parties concerned or

In fact, the original intention of establishing such

transferred to it by judicial organs. The above

mechanism is to make use of third parties in the

practices have provided some helpful experience

society, such as lawyers, to help the government

for the pilot reform.

and courts handle written and oral petitions.

Whether this third-party dispute resolution

Although the participation of lawyers is helpful

mechanism would be effective depends mainly

in reconciling written and oral petition disputes,

on whether the third par ty is neutral and

from a broader perspective, the participation

authorized, and whether their opinions are

of lawyers is still fragmented and thus fails to

fair and reasonable. Therefore, the direction of

develop into an effective model. Moreover, the

development of this mechanism is to establish

abovementioned document merely provides

a neutral third-party evaluation organization for

a framework opinion, which needs fur ther

written and oral petitions. As an important type

promotion and institutionalization with the

of alternative dispute resolution mechanism,

support of operable implementing measures

neutral evaluation has already become a very

and supportive regulations. It should be noted

sophisticated mechanism abroad, which can

that: First, qualified lawyers should be selected

provide valuable lessons. For example, the neutral

according to their specialization to participate

evaluation system in the United States in earlier

i n t h i s s ys te m . S e co n d, a n i n ce nt i ve a n d

years worked as follows: the neutral third party

guarantee mechanism should be established for

would provide an evaluation result or suggestions

participating lawyers. The government should

on how to resolve the dispute, in order to achieve

compensate participation through procuring

reconciliation as early as possible in the litigation

their legal services; costs should be guaranteed

process. In China, there are regions where such

by the local financial fund, with a certain amount

mechanism has just started, such as the Beijing

of allowance covering the full amount of travel

Public Interest Legal Service and Research Center.

expenses. Lawyers’ social and political status should be gradually improved by increasing

The following factors should be considered

39

Annual Report on China’s Judicial Reform 2015

in establishing neutral third-party evaluation organizations for written and oral petitions.

v. Continuing to Strengthen the Management of Lawyers

First, the evaluator should be someone with credibility. A database of evaluation experts could

The management of lawyers has continued to

be created, comprising lawyers, scholars, retired

strengthen in 2015. Interpretation of the Civil

judges, procurators, and social elites, from which

Procedure Law and Amendment IX to the Criminal

the parties concerned can appoint. Second, the

Law proposed stricter rules regulating lawyers’

evaluator should be ensured to have no personal

par ticipation in cour t hearings and other

interest with the parties concerned. A rule should

practices. The Interpretation stipulates that if the

be made that the evaluator, before accepting

litigation participants or others violate courtroom

an appointment, should disclose their possible

decorum, the court can temporarily withhold

bias on the case in time, and should not contact

their equipment for audio or video recording,

the parties concerned. The evaluator should not

photographing, and disseminating the trial. It can

participate in handling the cases they evaluate.

also order them to delete related contents, and

Third, regarding the procedure and validity of

if they refuse to do so, the court can delete by

the evaluation, parties concerned would express

force through necessary means. The Amendment

their appeals and provide evidences by written

adds three new crimes related to lawyers’ practice:

materials or in other forms. As the evaluation

filing fabricated lawsuits, disclosing information

procedure is unofficial, there is neither the need

of cases not publicly tried, and publicly disclosing

to strictly apply all the evidentiary standards

and reporting such information. Besides, it also

nor to record the statements and discussion.

intensified the crime of disrupting court order.

The evaluation group should provide a written evaluation report within a certain period of time,

The abovementioned crimes, particularly the

and after the party concerned has received the

crime of disrupting court order, have generated

report, they could request further consultation

huge controversies. Under the current system

or reach a reconciliation with the guidance of the

where the status of the prosecuting party is a lot

evaluator. Fourth, the evaluator should keep all

higher than that of the defending party, where

the information accessed confidential and should

the court has a dominant position over the lawyer,

not quote them in future arbitrations or judicial

and where it is extremely difficult for criminal

proceedings.

defense attorneys to practice, the amendment to the crime of disrupting court order will further

Fundamentally, the key to resolving disputes

increase the risk for criminal defense attorneys

of written and oral petition involving legal

to practice. Therefore, these crimes have to be

and litigation issues is to promote substantial

applied with caution and be strictly limited

judicial reform, establish the principle of judicial

procedurally in order to avoid abuse. The crime of

independence and principle of judicial final

disclosing information of cases not publicly tried

settlement, and fundamentally address the lack

and the crime of publicly disclosing and reporting

of authority and injustice within the judiciary.

such information, to some extent, violate the

Otherwise, regardless of the effort, the problem

principle of restraint in criminal law, namely that

of written and oral petition involving legal and

criminal law should only create a certain crime

litigation issues could not be addressed at its

when necessary. Even if a lawyer is liable for legal

roots.

responsibility, they should be held accountable through professional discipline or civil procedure.

40

right to access information, right to access case-

and the media is thus unreasonable.

related documentation, right to appear in court

Annual Report on China’s Judicial Reform 2015

The use of the criminal process to restrain lawyers

hearings, right to defend and debate in court, In order to implement the requirement of

as well as other rights related to litigation and

deepening the reform of lawyer system

guarantee to their personal security.

stipulated in the Decision by the 4 th Plenary Session of the 18 th Central Committee of the

The publication of these documents on

CPC, there have been continuous gestures

guaranteeing lawyers’ right of practicemight

from the authorities regarding the guarantee

draw the attention of judicial organs to a certain

of lawyers’ right of practice. At the end of 2014,

extent. However, guaranteeing lawyers’ rights by

the Supreme People’s Procuratorate published

regulations alone is unlikely to yield satisfying

Regulations on Guaranteeing Lawyers’ Right of

results. Only when the Constitution and laws

Practice According to the Law. In August 2015,

are fully implemented and fundamental judicial

the “two Supremes and two Ministries” jointly

reforms are promoted can the rights of lawyers

convened a national lawyers’ conference for the

and citizens be fully guaranteed. Moreover, some

first time. In September, the Central Leading

documents even restrict lawyers’ rights. For

Group for Comprehensively Deepening Reforms

example, Regulations on Guaranteeing Lawyers’

issued Opinions on Deepening the Reform of

Right of Practice According to the Law issued by

Lawyer System, requiring that the guarantee

the “two Supremes and three Ministries” clarifies

mechanisms for lawyers’ practice be improved,

that lawyers, when dealing with petitions and

and the development of the lawyers profession

procuratorate appealing cases, can only access

be strengthened. The Opinions also requires that

case files after the case is reviewed and registered.

lawyers’ right of practice be ensured, supporting

This is obviously a restriction on petition cases

operation system and remedy mechanisms be

and has intensified the difficulty in accessing files

established and refined, and the management of

of such cases.

lawyers’ practice and the ideological and political development of lawyers be strengthened. In

Most of the abovementioned documents merely

the same month, the “ two Supremes and three

reiterate existing legislation. Experience shows

Ministries” issued Regulations on Guaranteeing

that any measure made to guarantee lawyers’

Lawyers’ Right of Practice According to the Law,

right of practice is empty talk unless systematic

p ro p o s i n g “ t h re e i m p rove m e nt s a n d o n e

defects in the judiciar y are addressed and

s t a n d a rd i z a t i o n”, n a m e l y : i m p ro v i n g t h e

authorities no longer hold hostile attitudes and

measures of guaranteeing lawyers’ right of

policies towards lawyers. To guarantee lawyers’

practice, improving the remedy mechanism of

rights is not just about guaranteeing the right of

guaranteeing lawyers’ right of practice, improving

lawyers alone, but also the right of suspects and

the accountability system for infringement of

defendants, as well as the right of every citizen.

lawyers’ right of practice, and standardizing the

When lawyers’ rights are encroached by an inch,

order of legal service by seriously investigating

the right of every potential client and common

and punishing behavior of deceptive and illegal

citizen shrinks by a foot. The huge number of

practice. In early 2016, Regulations by the Supreme

unjust, false and erroneous cases show that if

People’s Court on Guaranteeing Lawyers’ Right

lawyers’ rights cannot be guaranteed, unjust cases

of Practice According to the Law was published,

will be recklessly decided. Thus, guaranteeing

requiring the following rights be ensured: lawyers’

lawyers’ rights is essential to protecting human

41

Annual Report on China’s Judicial Reform 2015

rights and safeguarding the rule of law. The extent

accurately reflect the quality of the lawyer’s

to which a country protects its lawyers’ rights is an

practice. Besides, the system also assumes that

important yardstick to measure the level of rule of

the market for lawyers is uneven and patchy

law in that country.

and that the public relies on the government for guidance. However, as a matter of fact, the market

vi. The Lawyer Ranking System Causing Great Controversy

itself is sufficiently capable of evaluating whether a lawyer is competent. As the legal service industry is already highly marketized, consumers

The reform of the lawyer ranking system and

themselves could make rational choices and

ranked system of court appearance, namely

there is no need or reason for the government to

lawyers may be limited to the level of courts in

intervene.

which they can appear, may be released as means to strengthen the management of lawyers. The

Lawyers are not legal workers of the state;

disclosure of the news caused great controversy

instead, they are “freelancers” commissioned

in November.

or appointed by clients to provide legal service on the basis of their certificates of practice.

As early as 1987, Interim Provisions on Lawyers’

The ranked system of court appearance is an

Duties divided lawyers into first-, second-, third-,

administrative intervention into legal services

fourth-class lawyers and legal assistants, but this

market. It not only limits lawyers with certain

ranking system has long fallen out of use. Parties

ranks from participating in certain legal activities,

concerned do not choose attorneys according to

which violates the Lawyers Law, but also restricts

the ranking. In 2010, Hainan Province intended to

the litigation right of the parties concerned to

try out the reform of the lawyer ranking system

freely choose their lawyers. Moreover, linking

and the ranked system for court appearance,

lawyers’ rank with court appearance creates a

however, a great controversy broke out before

form of illegal administrative licensing, which is

the reform was formally carried out and it was

naturally connected to rent-seeking. This reform runs

abandoned soon thereafter.

contrary to the overarching emphasis on markets, streamlining administration, and derogating

The reform of the lawyer ranking system is a

powers in society, and thus should be resolutely

continuation of the principle to strengthen

opposed.

the administrative control of lawyers. It is the

42

manifestation of a hierarchical view and a typical

The current system of lawyers has existed in China

case of anti-market behavior. This system is based

for over a hundred years, and yet it is shocking

on the assumption that the quality of lawyers

that there is still a need to discuss whether

needs to be reflected through an administrative

lawyers should be evaluated by clients in the

ranking, but there are many reasons to question

marketplace or whether they should be subsumed

this idea. It is hard to decide who should evaluate,

into a system of administrative evaluation. This

how they should evaluate, what are the criteria

is a serious step backwards. The hierarchical,

of evaluation, how do administrative organs

administrative, systemized lawyers ranking system

distinguish better lawyers from others, and

will no doubt seriously hinder the development

whether seniority, examination results, education

of the lawyers’ profession. The general direction

background, number of cases handled, influence,

for the development of lawyers’ profession should

papers published, and grades of papers published

be professional autonomy for lawyers. The legal

principle, which involves clarifying responsibilities,

and the competence of lawyers as well as the

categorizing expenses, unlinking revenues with

quality of their service should be evaluated by

expenses, and full coverage of all expenses.

the market. Disciplined, orderly, and healthy

However, the Opinions is in conflict with certain

development of the lawyering industry should be

existing laws, thus will require amendments to

achieved through competition.

some related laws and judicial interpretations,

Annual Report on China’s Judicial Reform 2015

service industry is already highly marketized,

especially knowing that such document will be

vii. Improving the Legal Aid System

hard to implement according to past experiences.

As a public welfare project in the legal domain,

Local governments have issued corresponding

improving the legal aid system is an important

measures. For example, Shanghai has included

part of judicial administrative reforms in recent

issues related to public welfare, such as disputes

years. In June 2015, the “two offices” issued

over the quality of agricultural products and

Opinions on the Improving the Legal Aid System.

juvenile rights, into the scope of legal aid. Zhejiang

It proposes to expand the coverage of civil and

has included social groups that are currently

administrative legal aid, increase criminal legal

receiving social assistance, such as urban and rural

aid, and achieve full coverage for legal consulting

residents living on subsistence allowance and

service. It stipulates that the quality of legal

extremely poor people who are receiving social

aid be improved: promoting standardization,

assistance, into the scope those exempted from

s t re n g t h e n i n g q u a l i t y m a n a g e m e nt , a n d

economic status reviews. Anhui has formulated

perfecting convenience services for the public. It

detailed rules for the implementation of criminal

also emphasizes the need to increase the scope

legal aid, introduced an evaluation system based

of guarantee of legal aid, improve the system of

on successful defense rate of criminal cases, and

fund guarantee, and strengthen the development

promoted the establishment and improvement

of infrastructure, organizations and personnel for

of the suppor ting mechanisms of criminal

legal aid.

legal aid work. Tianjin as well as other regions have introduced a subsidy system under which

The proposal in the Opinions is a step in the

subsidies for case-handling is linked with the

right direction. For instance, it enlarges the

quality. These practices have had certain effect,

scope of legal aid. Not only does it stipulate

but some of them seem to be done for show and

that issues related to public welfare (such as

are unable to develop into effective long-term

labor insurance, marriage and family, food

mechanisms.

and medicine, education and health care, and environmental protection) be gradually included

China’s legal aid system grew out of the Wuhan

into supplementary matters of legal aid, and that

University Center for the Protection of the Rights

the standard of “economic hardship” be further

of Citizens in 1992. In 1994, the first government-

lowered, but it also decided to establish and

launched legal aid organization, Legal Aid Center

improve the pilot mechanisms for legal aid to

of Guangzhou City, was established. In 1996,

be included in legal procedures such as petition,

Criminal Procedure Law acknowledged legal aid

pilot program of fast-track sentencing procedure,

system in the law for the first time and stipulated

criminal reconciliation, and death penalty

that suspects and defendants have the right to

review, and establish a system of duty lawyers.

receive legal aid according to the law. In 2003,

Furthermore, it proposes the fund guarantee

Regulations on Legal Aid was published. Having

43

Annual Report on China’s Judicial Reform 2015

been developing for over twenty years, legal

Establishing social mediation system under the

aid system has had certain achievements. In

political framework of people’s mediation will

2014, there were 1,240,000 legal aid cases, with

not only lead to diluting the system of people’s

1,390,000 people receiving aid, and 1,685 million

mediation, but also suppress the development of

RMB spent from the government budget on legal

social mediation, thus hindering the professional

aid.

and market-oriented development of mediation.

However, there are still many problems in the

Conclusion: Establish a Scientific and Effective Judicial Accountability System

legal aid system, and it is far from capable of satisfying the large public demand. Annual Report on China’s Judicial Reform has proposed for many

Plans have been introduced in 2015 relating to

times a clear track for reform, but it still needs to

most of the 84 reform measures proposed by the

be reiterated and supplemented: First, promote

4th Plenary Session of the 18th Central Committee

the institutional reform of legal aid system by

of CPC. The four fundamental reforms, namely

shifting responsibility to the government. The

promoting systematic management of judicial

system should shift from the current model that

staff, improving the judicial accountability system,

is dominated by the administrative branch and

perfecting the career security guarantee system

reliant on government procurement of services

for judicial staff, and promoting the unified

to one where different funds are established at

management of personnel, expenses and property

the national and regional level, thus unlinking

in local courts and procuratorates below provincial

legal aid from the judicial and administrative

level, have been gradually implemented and the

departments. Second, encourage and support

pilot work of the second group of 11 provinces has

the establishment of nongovernmental legal aid

already begun.

organizations by lifting the restrictions on private sources of funding and various foundations,

Last year, progress was made in judicial reform in

encourage lawyers and legal professions to

many aspects. There were some highlights such

shoulder social responsibility, and gradually

asrestructuring of the court system, standardizing

establish a legal aid system equally comprising

the disposal of property involved in criminal

the government, social organizations, and lawyers.

cases, improving in the people’s assessors system, initiating pilots programs for public interest

44

In addition, Ministry of Justice, the Central Office

litigation by procuratorial organs, introducing

of Comprehensive Management of Social Security

the case docketing system, advancing the reform

Committee, the Supreme People’s Court, and

of legal profession qualification system, and

Ministry of Civil Affairs jointly issued Guiding

establishing the mechanism for lawyers to help

Opinions on Promoting Professional and Specialized

with petition cases involving legal issues and

People’s Mediation in 2016, which has played

litigation issues. In some other areas, there were

a role in the development of professional and

progress building on previous successes, such as

specialized mediation. However, its emphasis

enhancing judicial transparency, perfecting the

on an administrative-led pattern under the

people’s supervisors system, and improving the

direction of the Party committee, dominated

legal aid system. However, there are still challenges

by the government, and guided by judicial

faced by judicial reform. There is slow progress in

administrative organs conflicts in nature with

the unified management of personnel, expenses

the principle of autonomy of social mediation.

and property at the provincial level, and there is

core issue in the pilot reform of 2015. In March,

circuit courts of the Supreme People’s Court, courts

President Xi Jinping said during the 21st Collective

across administration divisions, and intellectual

Learning Seminar of the Political Bureau of the

property courts. The quota system reform of

Central Committee of CPC that “we should focus on

judges and prosecutors, which has been regarded

the judicial accountability system just like gripping

as the key to the entire reform, has not achieve

the nose of a cattle. Any judge or prosecutor

its expected goal, and the waves of resignation of

who is within the quota system should handle

judges and prosecutors should be a cause of worry.

cases in the front line of justice and should bear

Efforts to de-administratize the internal judicial

lifetime responsibility regarding quality of the

system has not recorded any success, and there

case-handling.” In July, Meng Jianzhu (Secretary

remains a wide gap between status quo and what

of Central Political and Legal Affairs Commission

Chief Justice Zhou Qiang of the Supreme People’s

of the CPC) emphasized in the judicial system

Court has proclaimed, namely that “we should

reform work advancement meeting that, “we

have the courage to break down the barriers of

should stick to the unification of power and

interest, be brave enough to change our own

responsibility for judges and prosecutors, adhere

system, and sacrifice our own benefits.” The large

to the principle of personal involvement of judges

number of rights-defending lawyers arrested

and procurators and the unification of power and

has overshadowed the talk about protecting

responsibility, in order to improve and implement

lawyers’ rights. There is a long way to go before the

the judicial accountability system, endow judges

recording and accountability pursuit systems of

and prosecutors with the major responsibility in

senior officers’ interfering with the judicial process

case-handling, and ultimately realize the goal of

can be fully implemented.

"judges making judgments and responsibilities

Annual Report on China’s Judicial Reform 2015

no obvious effect in terms of the operation of the

born by those who made judgments.” In August, The current round of judicial reform is ambitious

Several Opinions on the Improvement of Judicial

in scope and has been vigorously promoted by

Accountability System of the People’s Court and

relevant departments. However, it has faced many

Several Opinions on the Improvement of Judicial

difficulties and fails to make breakthroughs on key

Accountability System of the People’s Procuratorate

issues such as de-localization, de-administration,

established an accountability system based on

and de-politicization of the judiciary. This is

the principle of lifetime judicial accountability for

primarily a result of the top-level design having

the quality of cases. The idea of lifetime judicial

evaded critical issues concerning judicial

accountability system mainly derives from the

independence and a lack of knowledge of and

public’s dissatisfaction with the current situation

coordination in the tense relationship between

of judicial fairness. As a result, the main objectives

important measures and overall advancement. As

of this system lie in: forcibly promoting judicial

the saying goes, each reform in the judicial system

fairness, increasing public belief in justice, reducing

might set off a chain of effect on the whole plan.

public worries about exacerbation of judicial

Independence, supervision, responsibility, and

corruption and injustice after strengthening judicial

professionalization are interlinked factors that

independence, as well as creating the conditions

cannot be evaded. The change in one factor would

for seeking greater support from within the system

necessitate the change in others simultaneously.

on the consolidation of career security of judicial officials.

Take judicial accountability system as an example.

The judicial accountability system is listed as a

H owe ve r, t h e p re m i s e o f “ j u d g e s m a k i n g

45

Annual Report on China’s Judicial Reform 2015

judgments and responsibilities born by those who

Public Prosecutors Law and relevant policies, and

made judgments” is the independence of judges

make comprehensive, systematic, and scientific

in making judgments. Without independence,

regulations on issues related to the judicial

judges cannot and should not be responsible for

accountability system, including fundamental

the judgments. If power and responsibility are

principles, scope of application, exemption

not balanced, and the allocation of power and

clauses, constitutive elements, categories of

responsibility and the allocation of resources are

accountability, procedure of accountability

disproportionate, it would be unfair to place strict

investigation, investing organ, remedial measures

responsibility on judicial officials as it would also

and so on. The categories of accountability

undermine the attraction of judicial profession

comprise of disciplinary accountability, economic

and the virtuous cycle within judicial profession.

accountability, and criminal accountability.

In the context where de-administration and de-

Besides, the government should improve the

localization have not been fundamentally achieved

procedure of accountability investigation and the

and judicial independence urgently needs to be

process should be open to the public. Second,

improved, merely advancing strict lifetime judicial

establish independent disciplinary punishment

accountability system might be the last straw that

committees for judicial officials. At present, the

breaks the judge’s back. A similar idea apply for

disciplinary punishment of judicial officials is

the lifetime accountability system of prosecutors.

presided by discipline inspection committees and

The unscientific judicial accountability system will

discipline inspection and supervision department

not only be difficult to implement but will also be

inside judicial organs. Therefore, the procedure is

ineffective. Worse still, it will run contrary to the

highly isolated and administrative. The power of

original conception of the system; for example,

disciplinary punishment should not be executed

misjudged case correction may be held back in

by Par ty and government organs; instead,

order to avoid responsibility investigation. As a

the government should establish disciplinary

matter of fact, the judicial accountability system

punishment committees for judicial officials

has actually become the biggest obstacle to

consisting of deputies to the people’s congress,

correcting the flaws of the system. Consequently,

members of the people’s political consultative

the process of promoting pilot programs on

conference, judges, prosecutors, lawyers, and non-

judicial accountability system must be built on the

professionals, which will accept the accusations,

foundation of increasing judicial independence and

carry out investigations, and hold open hearings.

strong career security of judicial staff. In addition,

The accused shall enjoy the right of defense,

effective judicial supervision is needed, particularly

reply, cross-examination of evidence, as well as

regarding the protection of the rights of the party

repeal to higher-level disciplinary committee(s)

involved and the lawyers and the expansion of

for judicial officials. Third, set the limit and scope

freedom of speech.

of the accountability investigation reasonably.

The scope of judicial accountability should be

46

Under the context of guaranteeing the

limited to the following scenarios: manipulating

independence of judges, the key to improving

the law for self-serving ends, judicial corruption,

judicial accountability lies in pursuing

violating judicial professional ethics, and breaking

accountability in a way that is reasonable,

procedural regulations leading to misjudged

scientific and lawful. In particular, the following

cases and so forth. Abolish the misjudged case

ideas should be taken into account: First, enact the

accountability system that merely evaluates on

Law on Judicial Accountability, unify Judges Law,

the result, emphasize behavior accountability,

upcoming year, and to judicial reform taking

the situation of remand for retrial, reversing the

on its key challenges directly. Reforms should

original sentence, initiating re-trial, or reversing

prompt the establishment of an independent,

the original sentence after retrial; if the concerned

just, effective, and authoritative modern judicial

judges have not committed illegal acts such as

system, taking rule of law as an entry point, break

manipulating the law for self-serving ends, the

the predicament of political reform and advance a

case should be treated as a “misjudged case” and

smooth social transformation in China.

Annual Report on China’s Judicial Reform 2015

and strictly define “misjudged cases”. Regarding

the judge involved should not be investigated just because of incorrect fact finding or limited knowledge of the law. Fourth, correctly approach the relationship between judicial accountability and judicial immunity. Judicial immunity is the premise for the guarantee of a legal, independent, and fair justice system. Judicial officials should receive protection for their identity and personal safety, enjoy immunity while performing their duty, and should not be accused unless they have violated the law or professional ethics.

While performing their legal duty, judicial officials should not be transferred, dismissed, removed from their position or demoted, and should not receive a demoted treatment without legal basis and without due process of law. In addition, the judicial official’s behavior and speech during the performance of their duty according to the law should be immune from legal action. Every issue is of great importance, and each of them is related to the essence of judicial independence.

The year of 2016 is the first year to implement “the Thirteenth Five-Year Plan” and judicial reform will continue to move forward towards enhancing judicial independence. The Central Leading Group for Comprehensively Deepening Reforms has passed the Request on Comprehensively Implementing Judicial System Pilot Reform Nationwide, approving the introduction of judicial system reform pilots in 13 provinces, autonomous regions and municipalities including Beijing, Tianjin, and the Xinjiang Production and Construction Corps. We look forward to substantial progress on crucial issues of judicial reform such as de-localization and de-administration in this

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