Background

The Supreme People’s Court of China (“SPC“) issued its fourth five-year reform plan for courts on 9 July 2014.   The reform is one of the top priorities of President Xi Jinping’s administration, and has the stated aim of strengthening judicial independence and professionalism by giving judges more authority in making their rulings and autonomy from interference by local governments.

The reform is in line with the judicial reform decisions taken at the third plenary session of the 18th Communist Party Central Committee earlier this year, which pledged to ensure the lawful and independent use of judicial authority to enhance transparency and credibility.

Highlights of the reform

The reform plan puts forward 45 measures which cover eight broad areas, namely:

  • personnel reforms;
  • establishing a judicial jurisdiction system less influenced by local governments;
  • improving the operation of the judicial function;
  • improving protection of human rights;
  • enhancing judicial transparency;
  • clarifying roles and functions of courts of different levels;
  • improving internal administration of courts; and
  • promoting reforms relating to petitioning.

We discuss certain of the key proposed reforms below.

Personnel reform – changing the selection process for judges

The reform aims to differentiate judges from other general civil officials in terms of recruitment, promotion and remuneration. A selection committee is to be set up at provincial level which will be responsible for proposing candidates for judges. The relevant People’s Congress will then appoint the candidate in accordance with the procedures stipulated by law. The reform also proposes to establish a separate management system for judicial administrative staff. There will be promotion opportunities for judges even if they do not hold any administrative position. The stated aim of these changes is to allow judges to concentrate on trials and free them from daily administrative duties. The reform also establishes a general rule that judges of a higher level court should be selected from judges of a lower level court.

Establishing a judicial jurisdiction system that is not subject to local government influence

Reforms in this area include taking steps to ensure that cases that have significant environmental impact or involve a particular local government are heard by higher-level courts or courts in other local government districts to reduce the local government influence. Courts specialising in the protection of intellectual property rights will be set up in areas where those types of cases often arise. Moreover, higher level courts are to be tasked with setting up a mechanism to send circuit judges to lower courts to hear complex and difficult cases.

Improving the operation of the judicial function

The principle of “letting the judge who hears the case decide and be responsible” remains difficult to implement in China. This is in part due to the multi-level internal approvals required for deciding cases within the Chinese court system. The proposed reform in this area introduces the following measures to address this concern:

  1. It requires judges on the panel to be more actively involved in the hearing process whilst emphasising the responsibility of the presiding judge;
  2. For cases which can be heard by a single judge, the judgment no longer requires signature of the president of a court/tribunal;
  3. It will establish a performance review system to monitor the performance of each individual judge; and
  4. A disciplinary procedure will be set up in relation to the performance of judges.  

One important aspect to note is that the reform requires that decisions made by a president of a court/tribunal in exercising his/her judicial supervision power should be recorded in writing and filed so that it will be possible to track which judge is responsible for a specific judgment.

Improving protection of human rights

The proposed reform also vows to improve the protection of human rights in the judicial process, including:

  1. excluding evidence obtained illegally and further clarifying the tests which determine whether a piece of evidence is obtained illegally;
  2. establishing a mechanism to handle complaints from defendants and opinions from defendants’ counsels;
  3. improving the mechanism to pursue judicial negligence including unifying the standard of negligence liability;
  4. setting up procedures relating to handling of assets relating to the cases; and
  5. improving the fast-track procedure for cases involving minor criminal offences.

These measures are said to be intended to strengthen judicial review of the investigation and prosecution process to better protect the basic human rights of defendants.

Enhancing judicial transparency

These reforms add to the requirement of mandatory publication of court decisions introduced by the SPC in November 2013 (see our previous post of 8 January 2014).

According to the five-year reform plan, the Chinese courts will make court hearings more transparent to the public by:

  1. announcing information relating to hearings beforehand and allowing citizens to attend hearings as observers by advance booking as well as increasing video recording and real time broadcasts of hearings;
  2. establishing an on-line database whereby parties can obtain information relating to their cases including whether a case has been accepted and to what stage a case has progressed;
  3. further improving the database of published court decisions (established in 2013); and
  4. setting up an on-line database whereby parties can obtain information relating to the enforcement of a judgment, which can be linked with other credit rating databases.

Comment

This five-year reform plan issued by the SPC is a positive development that appears to be welcomed by the legal community. It shows the on-going efforts of the Chinese government to establish a transparent, independent and professional judicial system. However, whether these are good ideas that exist only on paper or whether they will be put into practice very quickly and effectively remains to be seen. It will be interesting to observe how the reform translates into reality and we can expect further developments from the courts in the near future.