China's Master Plan for Remaking Its Courts

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The Supreme People’s Court (SPC) Court Reform Plan Outline has left most of the world confused about what it means, surprisingly including Chinese judges, some of whom have been burning up the Chinese blogosphere. Stanley Lubman, commentator on Chinese legal affairs, wrote:

What remains unclear is whether Chinese leaders intend to make meaningful changes within that framework to raise the quality of Chinese justice or are merely paying lip-service to justice as they continue the old patterns of authoritarian control.

This article provides another perspective on the significance of the Court Reform Plan Outline.

The Court Reform Plan Outline needs to be recognized for what it is — part of President Xi Jinping’s comprehensive reforms of the current political system, and, in particular, part of his comprehensive reforms of the justice system. The aim is to raise the quality of Chinese justice (under Party leadership). As the head of the office of the Central Judicial Reform Leading Group (the Communist Party group in charge of judicial reform) said, “an unjust judiciary would have lethal damage effects on social justice [and, by implication, social stability].”

The reforms are intended to change some of the old patterns of authoritarian control and replace them with other forms of control, while giving a more professional judiciary more autonomy than it currently has. This is a top-down reform document, intended to strengthen central judicial authority while allowing local flexibility in experimenting with reform measures (within permitted parameters).

The Court Reform Plan is directly linked to the recent Fourth Plenum, as well as the Third Plenum. Part of its content was highlighted in the court reform document that the SPC issued in October 2013, a short time before the Third Plenum. It draws on previous Court Reform Plans.

The Court Reform Plan doesn’t only stem from the SPC, however. It appears that the Central Committee’s Central Leading Group for Judicial Reform was responsible for it, as it likely was for the reform plans of the other institutions.  It would have been most concerned about core issues such as the interaction of local Party committees with the courts; public (and state) security and the procuratorate; and other issues affecting law and order, social stability, and Party control. More technical matters would be left with the judiciary.

To understand the intended reforms to the judicial system, the Court Reform Plan should be read together with the public security, procuratorate, and justice authorities’ reform plans, because they are intended to operate together as a system.

Each of the over-arching reforms listed touches on a basic structural problem of the Chinese judiciary created by the existing system, problems well known to all those involved. The reform plan is implicitly a recognition that the existing system is not appropriate for the needs of China today. The outline calls for:

  • Reforming the jurisdiction of courts, which currently reinforces local protectionism and interference in court cases by local officials;
  • Establishing a hearing-centered procedural system;
  • Changing the internal allocation of roles within a court;
  • Creating a court system that is more open, transparent, and accessible to its users, including lawyers and litigants, while keeping confidential matters such as commercial secrets, state secrets, and personal, private matters;
  • Professionalizing court personnel (that is, both judges and other personnel) and distinguishing their status from ordinary government officials;
  • Ensuring the court’s independence from local government interference while keeping the judicial system under Party leadership.

The intention is to permit local courts some flexibility in piloting reforms, under the supervision of higher level courts.  Major matters must be approved by the Supreme People’s Court and possibly the Party leadership. 

The Court Reform Plan contains milestones but no penalty clauses for not achieving the milestones.  Still, there may be political penalties for missing the goals.

Looking at some of the details of the Court Reform Plan, two major changes to the judicial system under the Court Reform Plan should be highlighted in this brief article. First, the Court Reform Plan seeks to diminish control over the courts by local Party and government officials, which will be done through some of the following measures:

  • Establishing a system for recording and reporting interference by local Party and government officials and holding them liable when they do so.
  • Changing the role of the judicial committee — which sometimes serves as a conduit for local political pressure, to discussing questions of law — except in circumstances provided by law or major and complicated cases involving national diplomacy, security and social stability (i.e. politically sensitive cases).
  • Establishing a system in which the review of a draft court judgment or order undertaken by a court division head and sometimes a court president (currently a conduit for local political pressure) is recorded and liability is imposed for improper influence.

Second, China seeks to establish a hearing-centered procedural system, which will be done through some of the following measures (some of which are politically sensitive and others not):

  • Requiring evidence to be presented at the trial or hearing.
  • Establishing a system to exclude illegally obtained evidence (which requires coordination with public security and the procuratorate).
  • Improving the rights of lawyers and litigants, and defendants in criminal cases, to prevent unjust and wrongly decided cases.
  • Putting in place procedures concerning confiscated assets, to ensure that only relevant assets are confiscated, the rights of interested parties protected, and judicial corruption is prevented.

To answer Lubman’s question from the beginning of this piece, these reforms are not lip-service. The reform plan is a recognition that the current system is dysfunctional in many ways. Party rule needs a better-operating, more professional, and autonomous judiciary — one in which ordinary people have confidence — in a world in which most matters that come before the courts don’t involve Party concerns.

The changes set out the Court Reform Plan will affect all types of cases, whether they are criminal, environmental, intellectual property, or foreign-related ones, and should eventually mean a better quality of justice in most ordinary cases, although the system as a whole will remain under Party leadership.

Work has already begun on some of the reforms that can be most easily done.  The real work is ahead, in turning these broad principles into systems and institutions, and, in particular, changing patterns of behavior as well as institutional culture formed over several decades.

Susan Finder blogs as the Supreme People’s Court Monitor. In doing so, she draws on experience and observations of the Chinese legal system gained as an academic at the City University of Hong Kong, where she wrote the first comprehensive analysis of the Supreme People’s Court, and in practice with the China business group of Freshfields, Bruckhaus and Deringer and two U.S. law firms. She also served as an arbitrator in China, which has enabled her to be on the cutting edge of Chinese legal developments.

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