The Courts' active role in the striving for judicial independence in China

• Author: ZHAO Yanrong
• Pages: 278-309

FRONTIERS OF LAW IN CHINA

VOL. 12 JUNE 2017 NO. 2

DOI 10.3868/s050-006-017-0015-7

ARTICLE

THE COURTS’ ACTIVE ROLE IN THE STRIVING FOR JUDICIAL

INDEPENDENCE IN CHINA

ZHAO Yanrong*

Abstract In China, different factors can influence the judicial decision-making process

of the courts. However, in more than 30 years’ development, the courts appear to rely on

the rhetoric of judicial independence and the Communist Party of China’s endorsement

of the importance of law to assert their own interests and institutional identity, and have

employed various mechanisms to actively push the development of judicial

independence in China.

Keywords courts, judicial independence, active role, functional specialization, competence,

autonomy

INTRODUCTION .................................................................................................................... 279

I. FUNCTIONAL SPECIALIZATION OF THE JUDICIARY................................................... 280

A. The Supreme Court’s Quasi-Legislation Authority............................................. 281

1. The SPC’s Extensive Power of Judicial Interpretation....................................281

2. Interpretation and Provision............................................................................ 283

3. Official Replies and Letters............................................................................. 283

B. Guiding Cases System......................................................................................... 284

C. The Technical Complexity of Judiciary Helps the Development of Functional

Specialization ..................................................................................................... 287

D. Reform of the Case Filing System to Case Registration System......................... 288

II. THE DEVELOPMENT OF COMPETENCE AND AUTONOMY OF THE JUDICIAL

SYSTEM .................................................................................................................. 295

A. Enhancing Professionalization, Status, and Independence ................................ 295

B. IT and the Development of Judicial Independence............................................. 299

* (赵言荣) Ph.D. in Procedural Law, Civil, Commercial and Economic Law School, China University of

Political Science and Law, Beijing, China; Ph.D. in International and Political Studies, School of Humanities

and Social Science, University of New South Wales, Canberra, Australia; Lecturer, Civil, Commercial and

Economic Law School, China University of Political Science and Law, Beijing 100088, China. Contact:

smm001@sina.com

This article is part of the author’s Ph.D. dissertation “The Growth and Limits of Judicial Independence in

China” written at University of New South Wales, which is funded by China Scholarship Council. The author

is deeply grateful to Professor David Lovell and Associate Professor ZHANG Jian for their valuable

instruction and editing.

2017] THE COURTS’ ACTIVE ROLE IN THE STRIVING FOR JUDICIAL INDEPENDENCE IN CHINA 279

1. Construction of the IT System Helps to Decrease the Influence of the Higher

Courts and Build Professional Identity ..........................................................300

2. The IT System and the Transparency of Judicial Decision-Making............... 301

C. The Lower Courts and Judicial Independence................................................... 302

D. The Transition of Personnel Management of the Court in Practice................... 305

E. IT System Construction and the Ability of Enforcement ..................................... 307

CONCLUSION........................................................................................................................ 308

INTRODUCTION

In China, different factors influence the decision-making process of the courts. The

court system is under the leadership of the Communist Party of China (hereinafter “CPC”)

and on the payroll of local governments. As the stakeholders in cases, litigants also try

different ways to influence the outcome of adjudication. Furthermore, with the

commercialization of traditional media and the development of the internet, the courts’

judicial process also receives more pressure from the media and netizens. However, this

article argues that, as a result of the CPC’s promotion of the “rule of law” in China and

judicial reform for more than 30 years, the courts no longer just passively carry out the

directives of the CPC. On the contrary, courts appear to rely on the rhetoric of judicial

independence and the CPC’s endorsement of the importance of law to assert their own

interests and institutional identity that distinguish them from other State actors, and can

resist some forms of external pressure.

This article begin with the examination of the extensive judicial interpretation power of

the Supreme People’s Court (hereinafter “SPC”) and its lengthy pursuit of the “guiding

cases system” (anli zhidao zhidu) which contributes to the technical complexity of China’s

judiciary. This article then argues that China’s judiciary has developed into a tighter

institutional unit with a distinct judicial identity and specialized functions. The

development of an autonomous judicial system was then explored. Through the

examination of the SPC’s efforts to enhance judicial professionalism, this article argues

that practical independence of the judiciary has almost been fostered by the fact that the

judicial system has become more professional. This article then reveals that in the real

practice of judicial power, most of the courts have gained control over the selection and

appointment of judges and leaders of courts; at the same time, long criticized enforcement

problems are being resolved. This progress has been facilitated with the development of

information technology (hereinafter “IT”) and strategically enhanced judicial autonomy

through judicial innovation from lower courts. The impressive achievement of reforming

case filing system from a case review system (li’an shencha zhi) into a case registration

system (li’an dengji zhi) demonstrates that China’s judicial system has developed into a

tighter institutional unit with extensive competence and a consolidated adjudicative

function that works on the basis of formal legal mechanisms.

In this article, Part I examines the development of functional specialization of the

280 FRONTIERS OF LAW IN CHINA [Vol. 12: 278

judiciary. Part II looks at the development of judicial competence and autonomy.

Furthermore, there is a short conclusion with some major findings.

I. FUNCTIONAL SPECIALIZATION OF THE JUDICIARY

In China, the court system consists of the SPC, higher people’s courts, intermediate

people’s courts, and basic people’s courts.1 There are also courts with special subject

matter jurisdiction: maritime, railroad, military, traffic, and forestry.2 In 2016, three

circuit courts were also established.3 Among the court system, as the “highest judicial

organs of the State” (guojia zuigao shenpan jiguan),4 the SPC plays an important role in

fighting for judicial independence and authority of the court system. In SPC the then

President XIAO Yang’s words, “SPC is often at the front line of judicial reform, pushing

ahead reforms that are possible at present with various components of the judiciary.”5

According to the 2004 Constitution and the Organ Law of the People’s Courts, the

SPC has responsibilities in three areas:6 trying cases with the greatest influence in China;

supervising the work of local courts and special courts at every level; and giving judicial

explanations of specific utilization of laws in the judicial process that must be carried out

nationwide. In practice, the SPC also acts as chief administrator of the court system.7

It must be stated clearly that the Constitution defines the SPC as “the highest judicial

organ of the State”8 rather than “the highest court of the State.” As Susan Finder argued,

this definition implies that the SPC is not different from other organs in China such as the

Ministry of Education, but has the special mission of administering justice.9 Originally

1 中华人民共和国人民法院组织法 (2006 修正) (Organic Law of the People’s Courts of the People’s

Republic of China (2006 Amendment)), issued by Standing Committee of the National People’s Congress on

Oct. 31, 2006, art. 2, sec. 1.

2 Id.

3 最高人民法院关于修改最高人民法院关于巡回法庭审理案件若干问题的规定的决定 (Decisions of the SPC

on the Amendment of Provisions of the SPC on Issues Concerning Case Trial by the Circuit Court), issued by

the SPC on Dec. 27, 2016, effective on Dec. 28, 2016.

4 中华人民共和国宪法 (2004 修正) (Constitution of the People’s Republic of China (2004 Amendment)),

issued by the National People’s Congress, art. 127.

5 XIAO Yang, 法官没有私利 开创司法为民新境界 (Judges Having No Personal Gains; Creating a New

Era of Justice for the People), Oct. 15, 2003, available at http://www.chinanews.com/n/2003-10-15/

26/357172.html (last visited Aug. 16, 2016).

6 In detail, the SPC has three areas of responsibilities: first, trying cases that have the greatest influence in

China, hearing appeals against the legal decisions of higher courts, and trying the cases the SPC claims are

within its original jurisdiction; second, supervising the work of local courts and special courts at every level,

overruling wrong judgments they might have made, and deciding interrogations and reviewing cases tried by

the lower courts; third, giving judicial explanations of the specific utilization of laws in the judicial process

that must be carried out nationwide.

7 Susan Finder, The Supreme People’s Court of the People’s Republic of China, 7 Journal of Chinese Law

145, 164 (1993).

8 See fn. 4.

9 See Finder, fn. 7 at 148.