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Legal System of the People's Republic of China
Chinese judiciary reform should be processed in continuous and flexible manners that guarantee fast and correct judgment skills
2011년 09월 03일 (토) 01:35:40 김용진 기자 a1b2n3@newsmaker.or.kr
I
            
   
 
Since the China’s reform and open policies launched in 1979, the ideas of rule of law and judicial independence has been recovered. There are a variety of reasons why the Communist party of China accepted those ideas although it has been happened in limited manners.
First, it was a widely shared thought among the Party and nation’s leaders that the disastrous outputs of the Cultural Revolution era were fundamentally caused by the absence of basic functions as a constitutional government.[1] Second, there are new needs for legislative functions emerging from declining socialist ideology, corruptions of public officials, and spreads of crimes in the process of conversion from the planned economy to the market economy system. Third, the current China’s open door policies to attract foreign investments have continually required reliable and systematic legal environments. However, it can be hardly denied that there is still limitations existed in the process of Chinese legal reform in regard to both structural and internal problems of the Chinese Judiciary system. The structural problems are mainly derived from Chinese political or administrative systems that interfere with functions and independence of the judiciary, and the other problem comes from the matters of qualifications of legal professional and the cultural traits in Chinese legal traditions.
 
 
II
 
             1) Structural Problems
             The matter of Chinese judiciary independence may be subject to limit by the premise that the Communist Party rule over the nation. In other words, there is a fundamental obstacle that may provide the Party with its possible interference with independence of the judiciary. According to the Constitution of China, Article 126[2] says:
 
The people's courts shall, in accordance with the law, exercise judicial power independently and are not subject to interference by administrative organs, public organizations or individuals.”
            
             Although this article proclaims the judiciary independence from any interference by administrative, public, and individual organs, it does not provide any interpretation that the Communist Party should be included in as one of those organs that possibly can interfere with the independence of the Chinese judiciary. Therefore, due to the existence of possibility of the Party’s rule over the judiciary in the constitution, it has been realized that the Party has continued to influence the judicial reforms for its interests. For example, The Ministry of Justice efforts to strengthen the role of local judicial bureaus in resolving local disputes are directly linked to the Party's "Harmonious Society" campaign aimed at reducing social unrest.[1] In addition, appointments of judges, especially high ranking officials, are in charge of the Party’s local committees located in the areas of the courts, thus China’s courts are filled with members of the Party with very few exceptions.
            
            As regards the internal structure of courts, the problem in decision-making processes arises in fact that the presidents and the adjudicative committees of courts have the power to review drafted judgments.[2] In most cases, judges need approvals of verdicts from the presidents of the courts before they announce them. If a case is considered vital and difficult, it has to be submitted to the adjudicative committee to discuss and decide the judgment. The problem is that the adjudicative committee decides the judgment behind closed doors instead of before the court. As a result, the adjudicative committee does not hear the testimonies of witnesses and the verification of evidence before the court. [3]
           
            Problems also exist in the administrative structure. In reality, the administrative power rule over the judiciary. There are several reasons for this. First, the leaders of the Party also become leaders of administrative organs. Therefore, those leaders supported by both administrative and the Party’s authorities may try to interfere with the independence of judiciary without any restrictions under the nation’s power structure. Second, the heads of administrative organs are always ahead of those of the judiciary in terms of level of their positions in the vertical structure of power hierarchy. For example, the power position of the president of Supreme People’s Court is regarded to be equal to the level of vice chairman of State Council of China. Thirdly, the budget of judiciary is under the control of both central and local governments, so in reality the judiciary is subject to the governments.
 
The Rehearing procedures in China permit courts and the adjudication committees to reopen and review final decisions with few practical limits.[4] Under Chinese law, retrials may be initiated either by the parties to the case or a court of a higher level than the court in which the case was last tried. However, Extensive use of rehearing procedures undermines the finality of court decisions.
            
             2) Internal Problems
             In China, judges’ official function is not strictly defined and separated. Also, there is no social device to guarantee their position.[5] In China, Large numbers of Judges are scattered wide in different regions of the country and they exercise power of the state judiciary, but at the same time, they also exercise functions that is not considered as legal works. Their salaries are relatively low comparing to those of public officials in other areas. Therefore, judges are not much different with common people in sense of professionalism and occupational pride.
            
             The other internal problem of Chinese judiciary is the issue of judges’ qualification and ability. Chinese judges can be divided into the following three categories. First, retired soldiers are the most powerful forces in Chinese courts holding higher positions and also occupying largest number of judges. Secondly, persons who majored legal studies in their higher education, and they are usually not in the high-ranking officials of courts. Third, persons who majored other than legal subjects or mere graduates from high schools become judges. The ratio of this group of people is significant among the number of judges in China. In 1995, only about 5% of the judges in China were university graduates. At the end of 1997, the number of judges was about 280,000. As a result, the quality of trial was greatly affected.[6]
            
             There are also cultural factors that can be existed as obstacles against Chinese legal reform. The tradition of avoiding a lawsuit has been pervasive since Chinese Confucius norms are still widely being imprinted to the people. Chinese still tend to resolve legal problems by themselves or mediators, and even if there is a serious dispute between the parties, they reluctantly go to courts for trials by judges. So, judicial functions may be indifferent to protecting citizen’s rights under this tradition. Another Chinese cultural factor is the custom of Chinese human relationship (關係). 'To win in a lawsuit by human relationships should be a good idea’, as is common in Chinese society, is pervasive even among the large number of Chinese lawyers and judges. These 'relationships' in Chinese culture can be a very negative effect against the matters of judicial reform. In particular, judges’ decisions could be affected by bribes or the relations under this tradition.
 
 
 
III
 
   
 
In October 1999, the Supreme People’s Court announced the first Five-Year Reform Plan for the People’s Courts. (Second Five-Year Reform Plan was proclaimed in 2005) As a result of this plan, several structural problems have been resolved -
the government decided to return the power of reviewing all death penalty decisions to the Supreme People’s Court[7]; Revisions to the court adjudication committee system; improvements of the educational level of Chinese judges and the quality of their judicial opinions. Strengthening the people's assessor system as an anti-corruption device allowing popular supervision of the judiciary. However, some scholars still have questions in regard to the outputs of this Plan. Professor Gao Yifei pointed out that the vast majority contents of the five-year reform outlines issued by the Supreme Court deal with judicial structural reform, while contents relating to judicial procedure are rare. He also criticized that current judicial examination is mainly based on professional criteria, but the legal profession, especially of judges and prosecutors, should first of all attach importance to experience and ethics. His last assertion that judicial independence without restraint only would cause independence to become pretext for corruption and nepotism was on the ground that independence means refusing supervision and neutrality means delaying and shifting responsibilities onto others in such situation.[8]
            
             In addition to Gao Yifei’s questions on the reform plans, I would like to suggest several reform proposals to transform courts into fair and efficient institutions. First, the adjudicative committee system should be abolished in China to protect the judicial independence in decision-making processes. As I mentioned above, the adjudicative committee may cause seriously damages on human rights by ignoring parties’ rights in the process of trials. Also, the committee’s decision-making in a closed room cannot always guarantee fair and just judgments because there is no device of protection of judgments against any pressures or interferences by confidential powers or individuals under this customs. Instead, the committee may be replaced by a group of citizens and legal scholars under the supervisions of public in open manner.
            
            Meanwhile, Chinese People’s jury tradition is still being practiced, although it has been continually decreased. The Chinese People’s jury system is somewhat different with those of Common law jurisdiction countries, such as United Kingdom or United States on the ground that the jury system traced back to the tradition of socialists mass representatives against bourgeoisies. Therefore, it may be existed as a symbol rather than a practical function of Chinese courts. Since China’s market economy growth and thus subsequent rapid developments follows in social and economic fields over the nation, requirements for professional legal skills and knowledge have been increased for contemporary complex civil cases. Nowadays, the Chinese People’s jury may be considered as an inefficient system because they are not prepared for such complex and professional cases. Thus, I suggest that Chinese jury system should be developed based on US jury system for the purpose of courts’ efficient decision-making.
            
            Despite of rapid growths of legal services in China, there are still barriers against lawyers’ roles and rights. According to the Law on Lawyers,[9] lawyers are forbidden to supply false evidence or hide the facts. Thus, it is possible scenario that if a lawyer conducts for a criminal defense against the government or any public organs, a criminal investigation detective may issue a warrant of arrest against the lawyer in a sense of revenge based on the law. Therefore, many lawyers have regarded criminal defense work as less attractive than civil work.[10] As result, Chinese lawyers’ advocacy of criminal defense and their rights for the collection of evidences may be violated by the law. Therefore, the Law on Lawyers should be amended for the protection of both civil and lawyers’ rights, and also fair judgments.
            
 
 
IV
 
   
 
Since both Chinese Confucianism and Marxist – Leninist ideology share a common distrust of or lack of respect for the rule of law,[11] the ideas of law have negatively been regarded among publics, such as an instrument for class rule or as a tool for dictatorship of the party, etc. In serious consideration of this fact, we should realize that endeavors to make people understand intrinsic functions of law must be followed by China’s judiciary reform. In fact, Chinese concepts of Li and Fa and other traditional philosophies, in some sense, are ahead of modern concepts of law and democracy in that the value of Li has always been superior to that of Fa.[12] In other words, moral and ethical norms may be existed as another function of law by supporting or controlling the modern concept of function in law, such as instrumental means of law. Therefore, it is not desirable approach that Chinese judiciary reform should completely be transformed into the western way ignoring the advantages of Chinese traditional concepts in law that already rooted into every aspects of the nation. Historically, Chinese model of judicial reforms has been evolved with continuous foreign influences showing several patterns in the process of revolution[13], and there was a good example of model such as the Codes of Tang Dynasty. Thus, we should try to make a desirable balance between international and domestic norms in regard to the reform of Chinese judiciary. Modern international legal norms are mostly defined in manners of globalization, and the standard meaning of globalization has been defined under the rules of democracy and market economy. Also, the trend of mixed jurisdiction is pervasive over the world, and thus it can be also considered as the global standard. Meanwhile, the concept of judicial independence came from the west, and the traditional China was not aware of it since both executive and judiciary functions were combined into the all-in-one model. Thus, attempts to separate both concepts may not be easy. As a result, it is inevitable that the process of Chinese judiciary reform should abide by western concepts in law. Otherwise, China should create new concepts of law by herself that can manly support the judiciary reforms. However, since the standard norms of globalization was already defined by western countries, and thus, even if China successfully developed her own concepts China cannot apply the concepts to the standards of globalization. In fact, our main concerns in respect to any issue of balance between the East and West in matter of reforms have always been placed in the question whether we should abolish our tradition or adopt western rules without giving up our traditions. Regarding this matter, unlike the past, we should also realize that systematic developments under globalization have been done mostly in mixed forms, for instances, Germany’s attempts to adopt common laws in partial for providing international trade cases with flexibilities or the UK’s abandonment of their traditional practices in the civil case jury trials in regard to the efficient judgments. Therefore, continuous evolution influencing each other in fact may be considered a modern way of reform.[14] Thus, finally I suggest that Chinese judiciary reform should be processed in continuous and flexible manners that guarantee
fast and correct judgment skills so the needs for adopt to a western system or abolishment of a Chinese traditional function can be satisfied without sacrifices of any existing advantages.NM
 
     


 

<References>


[1] V. Development of Rule of Law and the Institutions of Democratic Governance, Congressional – Executive Commission on China 2005 Annual Report, http://www.cecc.gov/pages/annualRpt/annualRpt05/2005_5c_judicial.php#11b, October 31, 2008
[2] Albert HY Chen, An Introduction to the Legal System of the People’s Republic of China (3rd edn LexisNexis, Hong Kong 2004) 141 - 142
[3] Ji Weidong, Professor of the Graduate School of Law, Kobe University, Judicial Reform in China and Its Political Implications, http://209.85.175.104/search?q=cache:pVMIxUlVEYcJ:www.reds.msh-paris.fr/communication/docs/weidong.pdf+china+adjudicative+committee+problem&hl=ko&ct=clnk&cd=10&gl=kr, November 1, 2008
[4] V. Development of Rule of Law and the Institutions of Democratic Governance, Congressional – Executive Commission on China 2005 Annual Report, http://www.cecc.gov/pages/annualRpt/annualRpt05/2005_5c_judicial.php#11b, October 31, 2008
[5] Hu Wei Pang (贺卫方), Professor of the School of Law, Beijing University, Realization of Social Justice through the Judicial Reform (司法改革的难题与出路), http://view.news.qq.com/a/20080919/000018.htm, November 2, 2008. 
[6] Wong Kai Shing, ‘China: Reforming Chinese Judiciary, Asian Human Rights Commission’, [Vol. 10 No. 6 JUN 2000]
[7] Section III(b)—Rights of Criminal Suspects and Defendants
[8] Gao Yifei (高一飞), Professor of Southwest University of Political Science and Law, Priorities in China’s Judicial Reform (司法改革的轻与重), World-China Bridges, 2008-7-31, http://www.chinaelections.org/NewsInfo.asp?NewsID=131828, November 2, 2008
[9] Section 5, Article 35.
[10] Albert HY Chen, An Introduction to the Legal System of the People’s Republic of China (3rd edn LexisNexis, Hong Kong 2004) 180, 186
[11] Albert HY Chen, An Introduction to the Legal System of the People’s Republic of China (3rd edn LexisNexis, Hong Kong 2004) 37
[12] Albert HY Chen, An Introduction to the Legal System of the People’s Republic of China (3rd edn LexisNexis, Hong Kong 2004) Ch.1 – 2.
[13] Xu Chao (徐会超), Faculty of Law, Zhong Nan University of Economy and Law (中南财经政法大学法学院), China to reflect on the pattern of judicial reform and reconstruction in the light of Chinese traditional and Western modern judicial model for the administration of justice, Central South University Graduate School of Economics and Law Journal (2007) 2, 中南财经政法大学研究生学报 2007 年第 2 .
[14] Xu Chao (徐会超), Faculty of Law, Zhong Nan University of Economy and Law (中南财经政法大学法学院), China to reflect on the pattern of judicial reform and reconstruction in the light of Chinese traditional and Western modern judicial model for the administration of justice, Central South University Graduate School of Economics and Law Journal (2007) 2, 中南财经政法大学研究生学报 2007 年第 2 .
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Jaylon
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2011-09-25 16:04:09
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This atrcile keeps it real, no doubt.
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2011-09-23 18:08:35
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I was seirosuly at DefCon 5 until I saw this post.
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