The Gavel – Oct 2014 – Justice Being Served

 

The traditional Chinese judicial system is a highly centralized, organizational model of the government and judicial system. At the end of the 19th century, the Chinese traditional law system gradually degraded due to contact and collision with Western culture; this lead to the development of the modern Chinese judicial system.

The first constitution law of China was issued in 1923 to establish the modern judicial system of the Middle Kingdom. However, between the Anti-Rightist Campaign of 1957 and the legal reforms of 1979, the courts played only a small role in the judiciary. The function of the court was instead fulfilled by other organs. In the period between 1980 and 1987, with Chinese economic reform, important progress was made. Constitutional law, which was amended in 1982, established the judicial system as it is in existence today.

The people’s courts are organs exercising judicial power on behalf of the provinces; the courts are characterized by four levels; basic people’s courts, intermediate people’s courts, higher people’s courts and the Supreme People’s Courts. Furthermore, there are special people’s courts, such as military and maritime courts.

The people’s courts adopt a system whereby a case should be irrevocably decided after two trials. This means, after the judgment or orders are made in the first instance, a party may bring an appeal only once to the people’s court at the next higher level, judgments and orders of the court of the second instance shall be seen as final decisions of the case. Judgment or orders of the first instance of the local people’s courts at various levels become legally effective, as long as no party makes an appeal within the prescribed period. However, any judgments and orders rendered by the Supreme People’s Courts as the court of the first instance shall become immediately legally effective.

The standing committee of local people’s congresses may select people’s assessors and provide a list of them to the courts at the corresponding level. Courts may select people’s assessors to participate in a case of first trial. Collegial panels for the first trial may be composed of judges and people’s assessors or of judges exclusively. The people’s assessors system is different from the jury system in common law jurisdiction, in that the people’s assessors are not selected on the basis of citizenship; they function as judges, and have the authority to decide both issues of facts and law. However, the assessors do not have an actual function in the trial. Rather, their presence serves as a foil in the court.

In China, local people’s courts are divided by regions with their operating funds supplied by local government. This is likely to cause dependence on the side of the court, meaning the legal institution can be influenced by the government. To solve this problem, the courts would need independent funding, so as to be freed from any debt towards the governing body.

Another important issue that influences the development of the Chinese Juridical system is the quality of judges. The trial process is a crucial part of adjudication and is greatly influenced by the civil law jurisdiction, in which the judge is the dominant party in conducting a trial. In the early years, most of the judges in China were veterans who fell short in terms of professional knowledge and lacked formal training. Undoubtedly, a judge is a professional entity that needs specialized knowledge, experience and a sense of responsibility. A heartening trend of today is that the young judges have all graduated from formal universities and passed the judicial examination; many of them have even studied abroad, hence with passing time, the quality of local judges is constantly improving.

Implementation is an important element of the people’s courts to achieve an essential judicial function; it can protect the legal right and interest of the party. However, the current implementation of civil cases in China presents a challenge at times, which has severely affected the authority of the judiciary and justice. In China, there are numerous effective judgments that cannot be executed promptly for an array of reasons; for example, the party subject to enforcement might not cooperate.

Nowadays, the courts place a lot of focus on mediation and settlement rates; the mediation rate of the most basic people’s court reaches 70 percent. This is beneficial since, once the parties have reached the settlement or the courts have issued the settlement agreements, the parties cannot appeal and the case is quickly settled.

We have seen that many judgments and verdicts of the first trial have been changed in the second trial in the past years because of the guanxi factor. But nowadays, this kind of relationship carries less importance, since the judges are more professional and the anti-corruption investigations are a deterrence especially in main cities. While it may be possible to influence the judge’s interests on account of their relationship in the basic courts in some small cities, it is incredibly difficult to benefit from any personal relationship in intermediate courts. Although there are certain issues as regards the judicial system in China, there are definite signs of betterment of the overall system; with the improvement of laws and regulations, the future looks promising for the courts of China.

 

Disclaimer
This article is intended solely for informational purposes and does not constitute legal advice. Although the information in this article was obtained from reliable official sources, no guarantee is made with regard to its accuracy and completeness.