Practitioners' Perspective on Advances in China's Judicial Reform

• Author: Jacob Blacklock et al.
• Pages: 214-235

214 TSINGHUA CHINA LAW REVIEW [Vol. 8:213

PRACTITIONERS’ PERSPECTIVE ON ADVANCES IN

CHINA’S JUDICIAL REFORM

Primary Author: Jacob Blacklock

Contributing Authors: Christopher Fung, ZHENG Yang,

ZHANG Shili, KONG Xingxing, WANG Yu, XU Hui

Abstract

The annual plenary sessions of the National People’s Congress and

the National Committee of the Chinese Peole's Politica l Consultative

Conference early March 2016 have reiterated the topic of Judicial

Reform in China. Reforms of the Chinese legal system, judicial

practices and institution have advanced rapidly in recent years. The

ability of legal practitioners to effectively represent clients depends

on these reforms. Judicial reforms have impacted all major areas of

practice from the filing of claims through the rendering and

publication of judgments. Though reforms may sometimes appear

piecemeal, practitioners on the ground are able to identify overall

trends. Foremost am ong these is the movement towards increased

accountability for individuals and institutions throughout the judicial

system.

I. INTRODUCTION

The legal system of the People’s Republic of China (“the PRC”)

has in recent decades, developed rapidly. Since the 1970s, the Party

and the government have continued to set targets for improving the

rule of law in accordance with the core values of socialism.

Hsio has described the development of the modern legal system in

the PRC as having taken place in various stages.1 He describes the

process as beginning with the purge of the Gang of Four, which was

thereafter followed by the reestablishment of People’s Procuratorates

in 1978.2 In addition, the market economy being enshrined in the 1982

Constitution presented a major directional shift for the legal system

and the country as a whole.3 The enshrinement of protection of private

investments in the 2004 Constitution may be considered the last major

reform.4

Current trends in reforms to the judicial system suggest that the

PRC may now be on the cusp of a new stage toward the perfection of

a modern legal system. Fu Hualing has noted: “In the context of China,

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!

1 Tao-tai Hsia, Legal Development in the PRC since the Purge of the Gang of Four, 5 REV. SOCIALIST

L. 109, 109-11 (1979).

2 Id. at 119-21.

3 XIANFA, art. 15(1) (1982) (China).

4 Volker Behr, Development of a New Legal System in the People’s Republic of China, 67 LA. L.

REV. 1161, 1165 (2007).!

2016] JUDICIAL REFORM IN CHINA 215

rule of law and judicial integrity have unique characteristics,”5 since

the origin of the PRC, and persisting through the reforms of Deng

Xiaoping, “the People’s Courts will always adhere to the mass line of

the party.” 6 However, to outside observers as well as Chinese

commentators judicial independence and accountability have been

notably absent.

The Chinese judicial system over the past 30 years can be

characterized by tensions in the judicial application of the written law,

limits to the institutional and social capacity to implement the law,

extra-judicial constraints imposed by the political goals of the Chinese

Communist Party (“CCP”), and acts of individual corruption by

individuals in positions of power. However, recent reform processes

appear to indicate a turning point whereby the written law and

institutional capacity are both much stronger and much more effective;

while at the same time the political goals of the CCP appear to have

turned toward prioritization and effective implementation of judicial

reform and reducing opportunities for individual corruption in the

judicial system.

Judicial reforms have been an important theme of the National

People’s Congress (“NPC”) for the past two years. In this essay we

will review and analyze major judicial reforms discussed or

implemented at the NPC conferences in 2014, 2015, and at the most

recent conference in 2016. Recent reforms in China have been broad

and wide reaching.

Reform efforts have targeted the processes and outcomes of

litigation, and the role of legal professionals on both sides of the

judicial bench. At the root of these reforms appears to be recognition

that if the people cannot access the court system, nor rely on the system

to produce justice, then no amount of incremental reform will have the

desired effect. Likewise, if judgments are not effectively enforced,

then even a well functioning legal system with highly educated

professionals will appear impotent.

This paper seeks to review and analyze recent judicial reforms

from the perspective of how they have or will impact typical judicial

proceedings from practitioners’ perspective. This review is divided

into separate analysis of reforms in each area of the judicial process.

We will examine reforms touching on access to justice, including new

requirements for clear written decisions on case acceptance or

rejection. We will review a series of reforms increasing transparency,

responsibility and accountability in litigation. We will review reforms

made to strengthen judicial oversight by clarifying issues with remand

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!

5 Fu Hualing, Building Judicial Integrity in China, 39 HASTINGS INT’L & COMP. L. REV. 167, 167

(2016).

6 Zuigao Renmin Fayuan Gongzuo Baogao (最高人民法院工作报告) [Work Report of the Supreme

People’s Court] art. 2(3), SPC (Mar. 10, 2014), http://www.court.gov.cn/zixun-xiangqing-8083.html

[hereinafter Report 2014].