Judicial independence and judicial accountability: An empirical study of individual case supervision

China Journal

Volumn , Issue 55, 2006, Pages 67-92

  Peerenboom, Randall ^a  

^a UNIVERSITY OF CALIFORNIA   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

LEGISLATION;

EID: 33644752845     PISSN: 13249347     EISSN: None     Source Type: Journal    
DOI: 10.2307/20066120     Document Type: Article

References (104)

1. Cai Dingjian and I brought together leading members from the courts, procuracy and People's Congress to investigate and evaluate ICS. We conducted both written surveys and interviews in nine provinces. The research team was divided into three subgroups: People's Congress, Procuracy and Courts. Each subgroup included two members of the People's Congress, procuracy and courts in each of the provinces where the surveys were conducted. The procuracy subgroup conducted surveys in Beijing, Guangdong, Shanxi, Heilongjiang, Sichuan and Zhejiang. The People's Congress subgroup conducted surveys in Guangdong, Gansu, Shanxi, Zhejiang and Anhui. The court subgroup conducted surveys in Guandong, Gansu, Shanxi and Liaoning, and supplemented these surveys with cases from Qinghuangdao and two Supreme Court cases. In addition, the heads of the subgroups investigated and reported on several cases within their jurisdiction. The survey reports (in Chinese) are available in their entirety at the Center for the Study of People's Congresses and Foreign Legislatures website (www.e-cpcs.org). Reports cited herein are identified by province, the entity conducting the supervision, and the case number where applicable. In addition, analytical reports by the co-principals, heads of the subgroups, and several PRC legal scholars invited to review the survey reports and submit papers are included in Cai Dingjian (ed.), Jiandu yu sifa gongzheng [Judicial Fairness and Supervision] (Beijing: Falü Chubanshe, 2005), hereafter JFS.
2. The data from different official sources is not always consistent. Nor are the categories or terms always clear or consistent. Nevertheless, the data provides a general sense of the scope of cases subject to retrial through adjudicative supervision out of the total number of cases, the breakdown in the types of cases and the results. For additional local statistics, see Cai Dingjian (ed.), JFS.
3. See Randall Peerenboom, "Varieties of Rule of Law", in Randall Peerenboom (ed.), Asian Discourses of Rule of Law: Theories and Implementation of Rule of Law in Twelve Asian Countries, France and the U.S. (New York and London: RoutledgeCurzon, 2004), pp. 1-55.
4. Peter Evans refers to this approach as monocropping, and claims the results have been profoundly disappointing. Peter Evans, "Development as Institutional Change: The Pitfalls of Monocropping and the Potentials of Deliberation", Studies in Comparative International Development, Vol. 38, No. 4 (2003), p. 30.
5. See Randall Peerenboom, China Modernizes: Threat to the West or Model for the Rest (New York: Oxford University Press, 2006).
6. See Cai Dingjian, "Renmin daibiao dahui gean jiandu de xianzhuang ji qi gaige" [The Current State of Individual Case Supervision by the National People's Congress and its Reform], JFS, pp. 39.
7. Thomas Carothers, Promoting the Rule of Law Abroad - The Problem of Knowledge (Carnegie Endowment for International Peace, Rule of Law Series, Carnegie Paper No. 34 [2003]).
8. Daniel Kaufmann, Aart Kraay and Massimo Mastruzzi, "Governance Matters III: Governance Indicators for 1996-2002" (2003), available at http://www.worldbank.org/wbi/governance.pdf/govmatters3.pdf accessed 22 November 2005.
9. Paul W. Kahn, The Cultural Study of Law: Reconstructing Legal Scholarship (Chicago: University of Chicago Press, 1999);
10. Amir Licht Chanan Goldschmidt and Shalom Schwartz, "Culture Rules: The Foundations of Rule of Law and Other Norms of Governance", 9 June 2002, available at http://papers.ssrn.com/sol3/papers.cfm?abstract id=314559, accessed 22 November 2005;
11. Lawrence M. Friedman and Rogelio Perez-Perdomo (eds), Legal Culture in the Age of Globalization - Latin America and Latin Europe (Stanford: Stanford University Press, 2003);
12. Otto Kahn-Freund, "On Uses and Misuses of Comparative Law", Modern Law Review, Vol. 37, No. 4 (1974) (emphasizing political factors including interest-group politics over social, econonidc and cultural factors);
13. Ronald J. Daniels and Michael J. Trebilcock, "The Political Economy of Rule of Law Reform in Developing Countries" (2004), available at http://wdi.umich.edu/files/old/global_conf/papers/revised/ Trebilcock_Michael.pdf, accessed 22 November 2005 (arguing that political-economy obstacles, including opposition by key interest groups, have been the biggest barriers in Latin America and Central and Eastern Europe).
14. The adjudicative supervision committee is a panel of senior judges within each court that decides major cases or cases where the collegiate panel is divided. A collegiate panel of three judges hears most cases. See Randall Peerenboom, China's Long March toward Rule of Law (Cambridge: Cambridge University Press, 2002).
15. The process is known as kangsu or "protest" when initiated by the procuracy.
16. For civil cases, see Minshi susongfa (Civil Procedure Law), articles 177-85;
17. for criminal cases, see Xingshi susongfa (Criminal Procedure Law), articles 203-08;
18. for administrative cases, see Xingzheng susongfa (Administrative Litigation Law), articles 62-64.
19. A number of other entities or individuals may also attempt to intervene in cases before the appeal process has run its course or to persuade the courts, procuracy or People's Congress to supervise and retry a case that has already been decided. Such entities include Party or governmental organs such as the Party Committee, the Political-Legal Committee or the Political Consultative Committee. Individual Party members, usually high-ranking members such as the local Party secretary or the head of the Political-Legal Committee, or high-ranking government officials may also attempt to intervene. Individual members of society may also attempt to use their social or business connections with judges, procuratorates or members of the People's Congress to intervene in cases. In addition, the media often "supervises" the courts both before and after a final decision is made by reporting on cases. Randall Peerenboom, China's Long March, pp. 286-87, 323-25.
20. Between 1997 and 2002, the percentages of cases retried through adjudicative supervision varied from a low of 0.96 per cent in 2002 to a high of 1.61 per cent in 2001. Zhongguo falü nianjian (Law Yearbook of China) (Beijing: Zhongguo Falü Nianjianshe, 1998), p. 1241;
21. Zhongguo falü nianjian (1999), p. 1023;
22. Zhongguo falü nianjian (2000), p. 1211;
23. Zhongguo falü nianjian (2001), p. 1258;
24. Zhongguo falü nianjian (2002) p. 1240;
25. Zhongguo falü nianjian (2003), p. 1322.
26. In addition, other cases are settled through mediation or remanded to the lower courts, which could lead to a more favorable result to the party or entity seeking supervision. For example, among the 11,854 procuracy protests in 2004, in addition to 2,930 reversals, 470 cases were remanded to the lower court to consider new evidence or clarify the facts, a settlement agreement was reached in 1,072 cases, the procuracy withdrew the protest in 513 cases, the court upheld the verdict in 4,016 cases, and 2,859 cases were closed because the party's whereabouts were unknown and for other reasons. 2005 Zuigao renmin fayuan gongzuo baogao (Supreme People's Court Work Report 2005), available at http:// www.court.gov.cn/work/200503180013.htm, accessed 11 November 2005.
27. In 1997, criminal cases accounted for 21.7 per cent of cases retried through adjudicative supervision, while civil and economic cases accounted for 75.72 per cent; in 1998, the ratio was 15.07 per cent for criminal cases, 82.22 per cent for civil and economic cases; in 1999, the ratio was 11.81 per cent to 84.96 per cent; in 2000, 9.8 per cent to 87.31 per cent; in 2001, 8.5 per cent to 88.33 per cent; in 2002, 7.72 per cent to 88.96 per cent.
28. For an overview of civil case supervision, see Pan Jun, "Minshi jiancha jiandu chengxu sheji zhi silu" (A Proposal to Design the Procedures of Procuracy Supervision of Civil Cases), in JFS, pp. 195-207.
29. Zhongguo falü nianjian (1999), pp. 1023-27;
30. Zhongguo falü nianjian (2000), pp. 1211-15;
31. Zhongguo falü nianjian (2001), pp. 1258-62;
32. Zhongguo falü nianjian (2002), pp. 1240-43;
33. Zhongguo falü nianjian (2003), pp. 1322-25.
34. Procuracy protest cases include both protests on appeal (second instance cases) and additional protests through the supervision procedure. Zhongguo falü nianjian (1999), pp. 1023-27;
35. Zhongguo falü nianjian (2000), pp. 1211-15;
36. Zhongguo falü nianjian (2001), pp. 1258-62;
37. Zhongguo falü nianjian (2002), pp. 1240-43;
38. Zhongguo falü nianjian (2003), pp. 1322-25.
39. The total number of criminal cases protested by the procuracy has remained in the 3,000 to 4,000 range for several years, even though the number of criminal cases increased from 360,000 in 1997 to 570,000 in 2001. See Xie Pengcheng, "Kangsu jiandu dui sifa gongzheng de yingxiang" (The Impact of Procuracy Protest on Judicial Fairness), in JFS, pp. 184.
40. See Cai Dingjian, "Renmin daibiao dahui gean jiandu de xianzhuang ji qi gaige", in JFS, pp. 40-44.
41. Wang Liqun, "Gansusheng renda jiandu sifa anli" (Gansu Province People's Congress Judicial Supervision Cases), http:// www.yihuiyanjiu.org/yhyj_readnews.aspx?id=2460&cols=171511, accessed 6 January 2006.
42. Li Huanxin, "Guangdongsheng renda jiandu sifa anli" (Guangdong Province People's Congress Judicial Supervision Cases), in JFS, p. 547.
43. See Randall Peerenboom, China's Long March, pp. 290-95.
44. Zhongguo zhishi chanquan nianjian 2003 (PRC Intellectual Property Yearbook 2003), p. 147.
45. Wang Liqun, "Gansusheng renda jiandu sifa anti", in JFS.
46. See, for example, Chang Guofeng, "Beijingshi xingshi jiancha jiandu anti" (Beijing Procuracy Supervision of Criminal Cases), cases 5 and 6, http://www.yihuiyanjiu.org/ yhyj_readnews.aspx?id=2447&cols=171511, accessed 6 January 2006.
47. Ibid., case 2.
48. Ibid., case 1.
49. People's Congress supervision includes more than court cases. People's Congresses have also supervised labor cases handled by labor arbitration committees, administrative detention cases decided by the public security and allegations of violations by public security organs and the procuracy. See Zhang Guoan, "Anhuisheng renda jiandu sifa anli" (Anhui Province People's Congress Judicial Supervision Cases), http://www.yihuiyanjiu.org/yhyj_readnews.aspx?id=2457& cols=171511, accessed 6 January2006.
50. Randall Peerenboom, China's Long March, pp. 295-98.
51. 2002 Zuigao renmin fayuan gongzuo baogao (Supreme People's Court Work Report 2002).
52. 2003 Zuigao renmin fayuan gongzuo baogao (Supreme People's Court Work Report 2003), available at http://www.court.gov.cn/work/ 200303280001.htm, accessed 11 November 2005.
53. A number of such cases are from Heilongjiang and Shanxi. It is difficult to say whether corruption is more prevalent there or there was a greater willingness on the part of the investigators to speculate about the possibility of corruption. See, for example, Cui Wei, "Shanxisheng renda jiandu sifa anli" (Shanxi Province People's Congress Judicial Supervision Cases), case 5;
54. Li Xichun, "Shanxisheng minshi xingzheng jiancha jiandu anli" (Shanxi Province Procuracy Civil and Administrative Supervision Cases), cases 2, 3, and 7;
55. and Xiao Zhenglei, "Heilongjiangsheng minshi xingzheng jiancha jiandu anli" (Heilongjiang Province Procuracy Civil and Administrative Supervision Cases), cases 3, 4 and 6, all available at http://www.e-cpcs.org./yhyj_readnews.aspx?id=2506&cols=17, accessed 6 January 2006.
56. Cui Wei, "Shanxisheng renda jiandu sifa anli", case 5.
57. Li Xichun, "Shanxisheng minshi xingzheng jiancha jiandu anli", case 2.
58. See, for example, Gong Ming, "Zuigao Renmin Fayuan jiandu anli" (Supreme People's Court Supervision Cases), in JFS, pp. 691-98.
59. See, for example, Lai Zining, "Guangdongsheng fayuan shenpan jiandu anli" (Guandong Province Court Supervision Cases), case 1, in JFS, pp. 700-14.
60. Li Huanxin, "Guangdongsheng renda jiandu sifa anli", case 4, http://www.yihuiyanjiu.org/yhyj_readnews.aspx?id=2458&cols=171511, accessed 6 January 2006.
61. See, for example, Liu Zhengwen, "Liaoningsheng fayuan shenpan jiandu anli (Liaoning Province Court Supervision Cases), case 5, http:// www.yihuiyanjiu.org/yhyj_readnews.aspx?id=2439&cols=171511, accessed 6 January 2006;
62. Cai Dingjian, "Renda jiandu sifa anli" (People's Congress Supervision Cases), case 1, in JFS, pp. 461-67;
63. Zhou Hong, "Guangdongsheng minshi xingzheng jiancha jiandu anli" (Guangdong Province Procuracy Civil and Administrative Supervision Cases), case 8, http://www.yihuiyanjiu.org/ yhyi_readnews.aspx?id=2458&cols=171511, accessed 6 January 2006.
64. Zhou Hong, "Guangdongsheng minshi xingzheng jiancha jiandu anli", case 7, http://www.yihuiyanjiu.org/ yhyj_readnews.aspx?id=2451&cols=171511, accessed 6 January 2006.
65. Liu Zhengwen, "Liaoningsheng fayuan shenpan jiandu anli", case 5.
66. Li Wenxuan, "Gansusheng fayuan shenpan jiandu anli" (Gansu Province Court Supervision Cases), case 3, http://www.yihuiyanjiu.org./ yhyj_readnews.aspx?id=2440&cols=171511, accessed 6 January 2006.
67. Wang Liqun, "Gansusheng renda jiandu sifa anli", case 2, in JFS, pp. 522-26.
68. In one case, the Supreme Procuracy protested the appellate decision of the Guangdong High Court to the Supreme Court. The Supreme Court remanded the case to the High Court for retrial. After the High Court upheld its decision, the Supreme Procuracy again protested to the Supreme Court. The Supreme Court asked the NPC Standing Committee to clarify whether the Supreme Procuracy could ask for review twice on the same issues. Two years later, the NPCSC still had not responded. In the meantime, the parties had reached settlement. Gong Ming, "Zuigao Renmin Fayuan jiandu anli", in JFS, pp. 961-96.
69. Zuigao Renmin Fayuan guanyu fayuan jieshou renda he renda changweihui de jiandu de gezhong yijian de tongzhi (Supreme People's Court Various Opinions Regarding Court Acceptance of Supervision by People's Congresses and their Standing Committees), 24 December 1998.
70. Pan Jun, "Minshi jiancha jiandu chengxu sheji zhi silu", p. 196.
71. See Cai Dingjian, "Renmin daibiao dahui gean jiandu de xianzhuang ji qi gaige", pp. 42.
72. Ibid., pp. 42-44.
73. Long Zongzhi, "Shixian sifa gongzhen yu weihu shenpan quanwei de tongyi" (Uniting the Realization of Judicial Fairness and the Upholding of Judicial Authority), in JFS, pp. 211-12
74. Ibid.
75. See Chang Guofeng, "Beijing xingshi jiancha jiandu anli", in JFS, pp. 673-74 Interestingly, the higher level procuracy rejected 49.3 per cent of the applications from the lower-level procuracy in criminal cases, demonstrating that the internal review process may help weed out some of the cases in which lower-level procuratorates are seeking a second bite at the apple to save face or correct mistakes in the way they handled the prosecution in the first instance.
76. See Cai Dingjian, "Renmin daibiao dahui gean jiandu de xianzhuang ji qi gaige", pp. 42-43.
77. Zuigao Renmin Fayuan guanyu zhengque zhixing "youguan renmin fayuan ba anli fahui yuan fayuan chongshen he mingling chenshen minshi anli de guiding" de tongzhi (SPC Notice on the Correct Application of the "Regulations on Issues Relating to People's Courts Remnnding for Retrial and Ordering Retrial of Civil Cases"), 12 November 2003.
78. Cai Dingjian, "Renmin daibiao dahui gean jiandu de xianzhuang ji qi gaige", p. 49, reports that rates vary from less than 10 per cent to 50 per cent.
79. Cai Dingjian, "Renmin daibiao dahui gean jiandu de xianzhuang ji qi gaige", case 1, pp. 461-67.
80. Li Wenxuan, "Gansusheng fayuan shenpan jiandu anli", case 1, http://www.yihuiyanjiu.org./yhyj_readnews.aspx?id=2440&cols= 171511, accessed 6 January 2006.
81. Any decision on a point of law or a factual issue that is shown to be incorrect in retrospect is a "definite" error. Manifest error would require that the mistake be an obvious one based on the information available at the time. Decisions that turn on questionable points of law or factual issues - points or issues over which reasonable people could disagree - would not be obviously wrong, and hence would not rise to the level of manifest error.
82. Fan Mingzhi, "Woguo minshi zaishen zhidu zhi jiantao yu wanshan" (Examination and Improvement of Our System of Civil Case Retrials), in JFS, p. 370.
83. Lu Yongdi, "Zhejiangsheng fayuan shenpan jiandu anli" (Zhejiang Province Court Supervision Cases), case 2 in JFS, pp. 757-62.
84. Wang Liqun, "Gansusheng renda jiandu sifa anli", case 5, http: //www.yihuiyanjiu.org/yhyj_readnews.aspx?id=2460&cols=171511, accessed 6 January 2006.
85. Ji Ruitian, "Shanxisheng fayuan shenpan jiandu anli" (Shanxi Province Court Supervision Cases), case 2 (family business), in JFS, pp. 737-44;
86. Li Xichun, "Shanxisheng minishi xingzheng jiancha jiandu anli", case 2 (family business), ibid., pp. 602-06;
87. Lai Zining, "Guangdongsheng fayuan shenpan jiandu anli", case 2 (family business), ibid., pp. 715-19;
88. Cui Wei, "Shanxisheng renda jiandu sifa anli", case 4 (dispute between parent and adopted son) and case 8 (dispute over property in divorce settlement), http://www.yihuiyanjiu.org/ yhyj_readnews.aspx?id=2463&cols=171511, accessed 6 January 2006.
89. For example, Lu Yongdi, "Zhejiangsheng fayuan shenpan jiandu anli" case 4, http://www.yihuiyanjiu.org/ yhyj_readnews.aspx?id=2441&cols=171511, accessed 6 January 2006.
90. Zuigao Renmin Fayuan guanyu zai shenpan zhong guifan remin fayuan jieshou zaishen anli de gezhong wenti de yijian (Supreme People's Court Opinion for Trial Implementation Regarding Various Issues Relating to the Regularization of Acceptance of Retrial Cases by the People's Courts), 10 September 2002, article 14.
91. Zuigao Renmin Fayuan guanyu zai zhixing panjue guocheng zhong bu jieshou jianchayuan kangsu de pifu (Supreme People's Court Reply Not to Accept Procuracy Protests of Decisions During the Course of Enforcement), 10 August 1995.
92. See Shenzhen Zuigao Renmin Fayuan guanyu zaishen he qingqiu zaishen de jitiao guiding (Shenzhen High People's Court Several Rules on Readjudication and Application for Retrial), 1 November 2002, article 14(11).
93. Minshi susongfa, article 180, provides that with respect to a legally effective mediation statement, if evidence provided by a party proves that the mediation violates the principle of voluntariness and the content of the agreement statement is in violation of the law, the party may apply for a retrial. Zuigao Renmin Fayuan youguan zhixing Zhonghua Renmin Gongheguo Xingzheng Susongfa de jige wenti de jieshi (Supreme People's Court Interpretation on Several Problems in Implementing the People's Republic of China Administrative Litigation Law), effective 10 March 2000, article 73.
94. Zuigao Renmin Fayuan guanyu fayuan shifou jieshou jianchayuan dui minshi tiaojie xieyi de kangsu de pifu (Supreme People's Court Reply to Whether Courts Should Accept Procuracy Protests of Civil Mediation Agreements), effective 13 February 1999.
95. Zuigao Renmin Fayuan dui guanyu dangshiren bu yaoqiu chongshen shi fayuan shifou yinggai chongshen bu qiadang de tiaojie xieyi de pifu (Supreme People's Court Reply on Whether Courts Should Retry Faulty Civil Mediation Agreements When the Parties Have Not Sought Retrial), effective 8 March 1993.
96. In 2001 in Zhejiang, the procuracy protested 461 cases without waiting for appeal. Some courts have imposed litigation fees when parties rely on protests without having appealed first. Shangdongsheng Gaoji Renmin Fayuan guanyu zaishen anjian gaipan de ruogan yijian (Shandong Province High People's Court Opinions on Reversal of Verdict for Retrial Cases), 31 May 2001;
97. Anhuisheng Gaoji Renmin Fayuan guanyu shenpan fiandu gongzuo de zanxing guiding (Anhui Province High People's Court's Temporary Rules on Adjudicative supervision), 3 June 2002.
98. The Supreme People's Court has supported the imposition of such litigation fees. See Article 22 of Guanyu yinfa quanguo shenpan jiandu gongzuo zuotanhui guanyu dangqian shenpan jiandu gongzuo ruogan wenti de jiyao de tongzhi (Notice on Circulating the Summary of Several Adjudicative Supervision Issues Discussed at the National Adjudicative supervision Symposium), 1 November 2001.
99. The Supreme People's Court notice is arguably inconsistent with a prior notice, Article 137 of Zuigao Renmin Fayuan guanyu shiyong Zhonghua Renmin Gongheguo Minshi Susongfa ruogan wenti de yijian (Supreme People's Court's Opinion of the Problems Regarding the Application of the Civil Procedure Law of the People's Republic of China).
100. Other courts have passed rules instructing the court to reject most applications for adjudicative supervision if the party has not appealed, for example Shenzhen Zuigao Renmin Fayuan guanyu zaishen he qingqiu zaishen de jitiao guiding, 1 November 2002, article 14(5).
101. See, for example, Paul Gewirtz, "Shenpan anjian de lifa jiguan jiandu" (Legislative Supervision of Court Cases), in JFS, pp. 100-04.
102. One possibility would be to include a sunset clause whereby the right of the procuracy or People's Congress to supervise or parties to apply to the court for adjudicative supervision would automatically terminate at a certain point in time.
103. Mike Hough and Julian V. Roberts, "Confidence in Justice: An International Review", Findings, No. 243, available at http:/ /nicic.org/Misc/URLShell.aspx?SRC=Catalog&REFF= http://nicic.org /library/ 019744&ID=019744&TYPE=PDF&URL=http:/ /www.homeoffice.gov.uk/rds/pdfs04/r243.pd, accessed 22 November 2005.
104. L'opinion des Français sur la justice: réalisée en 1997 par l'institut CA à la demande de la Mission de recherche Droit et Justice", available at http://www.vie-publique.fr/dossier polpublic/presomption_innocence/annexes/sondagel.shtml, accessed 22 November 2005.