Judicial independence: Applying International Minimum Standards to Chinese Law and Practice

China Information

Volumn 15, Issue 1, 2001, Pages 67-103

  Li, Yuwen ^a  

^a LEIDEN UNIVERSITY   (Netherlands)

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EID: 84992807009     PISSN: 0920203X     EISSN: None     Source Type: Journal    
DOI: 10.1177/0920203X0101500102     Document Type: Article

References (63)

1. Jerome Alan Cohen, “The Chinese Communist Party and ‘Judicial Independence’: 1949-1959,” Harvard Law Review 82, no.5 (March 1969), 1004.
2. The Hon. David K. Haese, “International Bar Association Project on Minimum Standards of Judicial Independence,” in Judicial Independence: The Contemporary Debate, ed. S. Shetreet and J. Deschênes (Dordrecht: Martinus Nijhoff Publishers, 1985), 382-87.
3. The Hon. Leonard King, “The IBA Standards on Judicial Independence: An Australian Perspective,” in Shetreet and Deschênes, Judicial Independence, 412.
4. Zhou Hanhua, Objectives of Judicial System Reform: Establishing an Independent, Open and Dynamic Judiciary, Working Paper, no. 4 (1999), Norwegian Institute of Human Rights, University of Oslo, 10.
5. CIJL (The Centre for the Independence of Judges and Lawyers) Bulletin 25-26, Special Issue, The Independence of Judges and Lawyers: A Compilation of International Standards, 1990, 7.
6. A/RES/40/32, 29 November 1985.
7. The Procedures were adopted by the Economic and Social Council in Resolution 1989/60 and endorsed by the General Assembly in Resolution 44/162, 15 December 1989.
8. Report of the Special Rapporteur on the independence of judges and lawyers, Mr. Param Cumaraswamy, E/CN.4/1999/60, 13 January 1999, 4-5. “ Of course, one can hardly say that judicial independence is perfectly implemented in developed countries. According to a Gallup Poll conducted in February 1985 in England, “since June 1969, the number of persons who thought the judges were influenced by the government in power had risen from 19 per cent to 43 per cent, while those who thought the judges to be independent had dropped from 67 per cent to 46 per cent.” Robert Stevens, The Independence of the Judiciary, The View from the Lord Chancellor's Office (Oxford: Clarendon Press, 1993), 173.
9. J. Chen, Chinese Law: Towards an Understanding of Chinese Law, Its Nature and Development (Kluwer Law International, 1999), 23.
10. Craig B. Simonsen, “Development and Organization of the Governmental and Legal Systems of the People's Republic of China,” China Law Reporter 6, nos. 3 & 4, 1991, 239.
11. Constitution of the People's Republic of China (Peking: Foreign Languages Press, 1954),95.
12. The reasons why the Communist Party allowed the inclusion of judicial independence into the 1982 Constitution have been explained as follows. First, the CCP does not feel that it is itself bound by the principle as other political parties are. Secondly, “judicial independence does not imply that judicial decision making can be free from the restraint of Party's political line and its scrutiny.” Thirdly, “Alarmed by the threat of the Cultural Revolution to the survival of the CCP's ruling status, the Party sees providing acceptable independence to the judiciary as an imperative strategic move to restore the public confidence in the Party's ability to lead the country to recovery and prosperity.” Xin Ren, Tradition of the Law and Law of the Tradition, Law, State, and Social Control in China (Greenwood Press, 1997), 56-57.
13. A Discussion of How the People's Courts Administer Justice Independently, Zhongguo fazhi bao (Chinese Legal Daily), 29 May 1981. Quoted from Liao Kuangsheng, “Independent Administration of Justice and the PRC Legal System,” Chinese Law and Government 16, nos. 2-3, 1983, 147.
14. In most countries, the independence of the judiciary mainly refers to the independence of judges. For instance, from the Dutch perspective, judicial independence means that “in deciding cases that come before them, members of the judiciary are free from interference by the executive and legislative power, political and social pressure groups, litigants, and fellow members of the judiciary, although the latter two groups naturally have the right to put forward their arguments in court.” B. J. Van Heyst, “The Netherlands,” in Shetreet and Deschênes, Judicial Independence, 241.
15. Marie Seong-Hak Kim, “A Distant Premise: Judicial Independence in the People's Republic of China,” Korean Journal of Comparative Law 24 (1996), 33.
16. What constitutes important and difficult cases is not defined in the Organic Law of the People's Courts. The Supreme People's Court has not provided judicial opinion on this except the “Opinion Concerning Several Issues on Implementation of the Criminal Procedure Law of the People's Republic of China” (For Trial Implementation) issued in 1996. Article 115 of the Opinion provides that the collegiate bench may require the president to decide to discuss the following difficult, complicated and major cases: (1) cases involving death penalty; (2) members of the collegiate bench have serious difference of opinion; (3) cases protested by the procuratorate; (4) cases with significant social influence; (5) other cases to be determined by the collegiate bench. Since the fifth point is open-ended, in practice cases discussed and decided by judicial committee cover a wide scope. For instance, judicial committees also determine cases on which an accused may be declared innocent, or a case in which the accused or the victim has a special position, such as member of the people's congress, well-known person, foreigner, Chinese from Hong Kong, Marco or Taiwan. See Chen Ruihua, “Zhengyi de wuqu- ping fayuan shenpan weiyuanhui zhidu” (A misunderstood area of justice-an evaluation of the judicial committee system), Peking University Law Review 1, no. 2 (1998), 385.
17. Su Li, “Jiceng fayuan shenpan weiyuanhui zhidu de kaocha ji sikao” (An examination of and reflections on the judicial committee system at basic courts), Peking University Law Review 1, no. 2 (1998), 328.
18. Wang Chenguang, “Chapter 1 Introduction: An Emerging Legal System,” in Introduction to Chinese Law, ed. Wang Chenguang and Zhang Xianchu (Sweet & Maxwell Asia, 1997), 25.
19. Cai Dingjian points out that the judicial committee “would be eliminated, giving all cases to their presiding judge. The responsibility for the proper handling of cases should rest with the presiding judge. This will reduce the need for multiple judges, lower the number of procedural steps, and shorten the time of litigation, thereby lowering procedural costs and increasing procedural efficiency.” Cai Dingjian, “Development of the Chinese Legal System since 1979 and Its Current Crisis and Transformation,” Cultural Dynamics 11, no. 2 (July 1999), 162. See also He Weifan, “Guanyu shenpan weiyuanhui de jidian pinglun” (Some comments on the judicial committee), Peking University Law Review 1, no. 2 (1998), 365-74.
20. Margaret Y. K. Woo, “Adjudication Supervision and Judicial Independence in the P.R.C,” The American Journal of Comparative Law 39 (1991), 103-104.
21. Jian Jiehu “Liangshen zhongshenzhi: wufa zhongshen de xianshi” (The two-instance trial system: the unended reality of final trial), Zhongguo lüshi (Chinese lawyer) 10 (1999), 58.
22. Woo, “Adjudication Supervision,” 119.
23. See articles 62, 67 and 101 of the Constitution.
24. Susan Finder, “The Supreme People's Court of the People's Republic of China,” Journal of Chinese Law 7, no. 2 (Fall 1993), 150.
25. Liu Renwen, “Sifa tizhi gaige de fanwei, mubiao yu yuanze” (The scope, goals and principles of judicial system reform), in Yi fa zhi guo yu sifa gaige (Ruling the country according to law and judicial reform), ed. Xin Chunying and Li Lin (Zhongguo fazhi chubanshe, 1999), 49.
26. Cai, “Chinese Legal System,” 153 and 161.
27. Cai, “Chinese Legal System,” 153 and 161.
28. Guo Daohui, “Shixing sifa duli yu yizhi sifa fubai” (Exercising judicial independence and controlling judicial corruption), in Xin and Li, Yi fa zhi guo yu sifa gaige, 93.
29. Some courts at the provincial level have issued provisions to regulate the system. For instance, the Higher People's Court in Shanxi Province defines “wrong case” (verdict) as those that judicial personnel should be liable for due to their infringement of substantive law or procedure law in the adjudication process, resulting in obvious incorrectness of judgment or harmful effects. The Higher People's Court in Inner Mongolia in its implementing opinion on the trial reform of economic law division, catalogues wrong verdicts under seven headings, including wrong determination of basic facts, reversal of responsibility which leads to grossly unfair judgment; apparent wrong application of the law which results in wrong judgment; serious violation of procedure law which affects the making of fair judgment, etc. See Wang Chenguang, “Cong ‘Cuo'an zhuijiuzhi’ tan falü yunxing zhong de bu quedingxing” (A discussion of the uncertainty of law implementation from the viewpoint of the “wrong verdict liability system), in Falü jieshi wenti (Problems in the interpretation of law), ed. Liang Zhiping (Falü chubanshe, 1998), 248-49.
30. Qi Shujie and Zhong Shengrong, “Minshi shenpan fangshi gaige yu cuo'an zhuijiuzhi” (Reform of the civil trial system and the wrong verdict liability system), ed. Jiang ping and Chen Guiming (Zhongguo fazhi chubanshe, 1998), 293. They support a unified WVLS to be monitored by a national committee on award and punishment of judges, 282.
31. Chen, “Zhengyi de wuqu,” 387.
32. Article 12 of the Organic Law of the People's Courts (amended in 1983).
33. Wang Chenguang, “Cuo'an zhuijiuzhi,” 250. Legal uncertainty exists in any legal system. Wang argues that due to the uncertainty of standards in terms of law, fact, policy and other elements, it is extremely difficult if not impossible to determine without bias whether of not a case has been wrongly handled.
34. It is observed that “Although the recent economic reform in China has irreversibly shattered the mirage of the Chinese Communists, the CCP's paramount power in controllling the state and military forces remains largely unshakable. The economic boom and privatization of business enterprise have not brought the anticipated fundamental changes in China's politics and law” (Xin Ren, Tradition of the Law, 48).
35. Perry Keller, “Sources of Order in Chinese Law,” The American Journal of Comparative Law 42, no. 4 (Fall 1994), 729.
36. Koguchi observes that “Despite its absolute leadership during this period, the Party did not intervene uniformly in all judicial matters, but rather limited its intervention to cases with far-reaching implications and to criminal cases involving a sentence of three or more years of imprisonment. This intervention in judicial decision-making was accomplished through a system of examination and approval by a Party committee.” Hikota Koguchi, “Some Observations about ‘Judicial Independence’ in Post-Mao China,” Boston College Third World Law Journal 7, no. 2 (Spring 1987), 197.
37. Feng Ruoquan, “Refute Jian Qian's Anti-Party Nonsense About ‘Independent Adjudication’,” Zhengfa yanjiu, no. 1 (1958), 20. Quoted in Koguchi, “Some Observations,” 196-97.
38. Cited in Koguchi, “Some Observations,” 199-200.
39. Finder, “The Supreme People's Court,” 151.
40. Zhongguo falü nianjian (Law Yearbook of China) 1997, 158 and Kim, “A Distant Premise,” 18.
41. China Daily, Internet edition, 11 March 1999.
42. China Daily, Internet edition, 10 March 1999.
43. Li Shuguang, “Tianjin, Wuhan, Shanghai guoyou qiye pochan gaige shikuang fenxi” (A report on bankruptcy and reform of state-owned enterprises in Tianjin, Wuhan, and Shanghai), Gaige (Reform), no. 2 (1996), 56-62.
44. See Yuwen Li and M. V. Polak, “Insolvency Law in China: A Gordian Knot of Economic Reality and Political Anxiety,” Tijdschrift voor Insolventie Recht (January 1998), 14-19.
45. Guo, “Shixing sifa duli,” 85.
46. For details see Cai, “Chinese Legal System,” 146-54.
47. China Daily, Internet edition, 10 March 1999.
48. Abert H. Y. Chen, An Introduction to the Legal System of the People's Republic of China (Butterworth, 1993), 107.
49. Program Designed to Promote Reform of the System of People's Courts-Mr. Xiao Yang, President of the Supreme People's Court of China Comments on the Five-Year Program to Reform the System of People's Courts, China Law, no. 1, 2000, 55.
50. Guo Daohui points out that at present the major problem of supervision by the people's congress is the latter's lack of authority: some people's congresses will not carry out supervision without the approval of the Communist Party committee and the local government. Guo, “Shixing sifa duli,” 96-97.
51. China Daily, Internet edition, 10 and 11 March 1999.
52. Article 35 of the Lawyers Law, promulgated by the National People's Congress Standing Committee on 15 May 1996. The English translation of the Law can be found in China Law, no. 2, 1996, 108-12.
53. Finder, “Supreme People's Court,” 20.
54. Zhuang Jianmin, Rang zhifa de fayuan zhifa zonghengtan (Let courts which have the mandate to implement law discuss law implementation), Liaowang zhoukan (Perspectives Weekly), no. 5, 1994, 17.
55. King, “IBA Standards,” 406.
56. A few years ago, in order to supplement their income, many judicial organs operated commercial enterprises. Only very recently the Central Committee of the Communist Party decided to make provisions for the expenditures of judicial organs. However, at the local level lack of money remains a great problem for many courts. Dai Yuzhong therefore points out that any judicial reform “would have scant chances for success if proper allowance for such a fundamental precondition as adequate funding for the judicial branch were not taken into account” (Dai Yuzhong, “Judicial Reform: Its Significance, Objectives and Principles,” China Law, no. 1, 2000, 62.
57. Zhongguo fazhi bao (Chinese Legal Daily), 9 September 1998.
58. China Daily, Internet edition, 11 March 1999.
59. “The specter of rampant judicial corruption has affected judicial impartiality, distorted the public view of judicial organs, damaged the reputation of the State in the minds of the public and undermined the exercise of judicial power” (Dai, “Judicial Reform,” 60).
60. Wallace, “Resolving Judicial Corruption,” 341.
61. In recent years, some Chinese scholars have called upon the government to adopt proper mechanisms to implement judicial independence as provided for by the Constitution. See statement made by Li Lin, China Daily, Internet edition, 24 March 1999.
62. Koguchi, “Some Observations,” 195.
63. To Wai Keung, “Suggestions to Promote the Fairness of Judicial Work in the Interior,” China Law, no. 2, 5 June 1999, 66.