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This brings us back to the initial problem: every operating institution implies the prerequisite that the people making up this institution respect and follow the basic ‘rules of game’ the institution openly purports to uphold. Pursuit of individual self-interest in violation of these basic norms undermines the institutional effectiveness, and is commonly called ‘corruption’ if the institution to which the power-holder belongs happens to be a public office. Ever since the market reform inaugurated in 1978, the corruption of public officials rose sharply both in its varieties and in quantity.[54] Unfortunately, the Chinese judiciary is no exception. Reports of judicial corruption, which may appear stunning by the western standard, have become commonplace in China; partiality and exchange of favor between the judges and litigants have seriously undermined the fairness of judicial outcomes that are central to the legitimacy of any judicial system. Judicial corruption takes a variety of forms, in which the judge(s) enter illicit relationships with the interested party for mutual benefits. Bribery is most common, taking the form of exchange between law and material benefits, most frequently money[55] and sex.[56] Benefits can also be intangible, to be paid off by a long-term relationship with the beneficiary of an unduly favorable decision, usually a powerful figure in the government or party organ directly or indirectly involved in the case.[57] Sometimes a corruption case may begin with plain judicial errors, and develop as the courts and other government departments collude in a grand concealment project.[58] Even in Jiangsu province, where the judicial system is relatively clean and the quality of judges regarded high compared to an average inland province, sixty judges were punished for engaging in various forms of unlawful activities.[59] Between 1993 and 1997, a total of 376 judges and 370 procurators were found to have committed crimes.[60] And these do not include the major infringements of law yet to be uncovered and countless minor ones that few would bother to take seriously. The Judges Law, for example, explicitly prohibits judges from ‘privately meeting the litigants and their representatives, or accepting their invitations and gifts’ (Article 30). Owning to the lack of institutional guarantees, however, it has been common for the judges to commingle with the litigants and for the litigants to seek improving personal relationship with the deciding judges of their cases.[61] Indeed, corruption has become so pervasive among the Chinese judiciary that anyone can hardly stay ‘clean’ in the judicial circle.[62] Compared to the courts worldwide, it is not exaggerating to say that the Chinese courts are among the most corrupted.[63] This harsh fact, which places the Chinese judicial reform in an uncomfortable dilemma, constantly triggers the debate as to how much autonomy can be given to the Chinese judiciary.
To recapitulate, the Chinese judicial syndrome has been the combination of personal and institutional problems, which have reinforced each other into a stable equilibrium. On the institutional level, the Chinese judges, too many in number, are poorly paid and lack proper funding for carrying out the judicial functions (Xwc); the local controls of judicial finance and appointments have made the Chinese courts overly responsive to the local demands (Xapr and Xwc), at the expense of their judicial independence and the national uniformity of law; the administrative control model of the internal court structure further depresses the independent spirit of the Chinese judges (Xind), making them reliant on administrative leaders in judicial judgments. The poor institutional arrangements have made the Chinese court an unattractive place to the judicial elites. Thus, it is not hard to understand seemingly contradictory demands: on the one hand, the body of the Chinese judicial personnel has grown to such a large a size that it has absorbed a significant portion of resources and constituted a serious burden for society;[64] on the other hand, China is acutely short of talents specialized in law.[65] Many who acquired the judges’ title lack the ability to really try and decide cases; and even among the competent judges, those graduating from the extension programs of various sorts greatly exceed the formal graduates in law (low Xedu).[66] The overall low quality of the judges and the poor working condition have jointly made the Chinese court an easily corruptible place (low Xmi), imposing further constraints on the judicial reform and reinforcing the stability of the existing system.
Is it still possible, then, to resolve the Chinese judicial syndrome? The Chinese legal community answers affirmatively with an ambitious blueprint for a fundamental reform.
III. Reforming the Judiciary within the Existing Political Framework
‘The Outline of a Five-Year Reform of the People’s Court’ came into being as a result of academic discussions, criticisms, and reform experiments that have lasted for the last several years. Consistent with the analysis above, the Outline recognizes that judicial independence and impartiality in China have been impeded by four types of problems: (1) local protectionism that serious undermined the uniformity of law; (2) the overall low professional and moral quality of the Chinese judges, which make them prone to corruption and unfit for impartial administration of justice; (3) the bureaucratic management model at odds with judicial independence and efficiency; and (4) the lack of material provisions (e.g. funding and working conditions) necessary for the effective functioning of the courts, especially of the basic-level courts. To cure the judicial syndrome, the Chinese government has come up with a systematic plan. Aiming to resolve these problems, the Outline seeks to achieve the following reform measures in the span of five years between 1999 and 2003. The program will be summarized below as a response to the four types of problems outlined in the last section.
1. Curing the Professional Quality Problem
The professional quality of the judges is probably the most extensively discussed problem in China. Here the Outline is focused mainly to improve the quality of the existing judges, without extensively modifying the academic requirements (Xedu) for the existing and the new judges as already provided by the Judges Law. To improve the judicial quality, the SPC is going to offer comprehensive legal training in the next three years to the presidents and divisional chiefs of courts above the middle level, and the provincial high courts are to offer similar training to the basic-level courts within their jurisdictions (Xtrain).[67] In a teleconference Xiao Yang, the president of the SPC, avowed to establish a modern court system according to the Outline and the Judges Law. In July 2000, the SPC published a tentative method for selecting chief trial judges [Shenpanzhang].[68] The new selection method was intended to reduce the number of judges qualified to sit on the bench and actually try cases.[69] Over half of the basic-level courts were to implement the judge selection system in the year 2000, and the task is supposed to finish nationwide by the end of 2001. In some experimental areas [Shidian], the judges will then be fixed in ranks [Dingbian] and provided with judicial assistants.[70]
The reform also calls for improvement of the rules of selecting future judges and court clerks, so as to accomplish an ‘elitist transition’ of the judicial team.[71] According to the Outline, every court would establish a limited number of posts for the judges, whose performances will be evaluated periodically by a special committee; supposedly, only those who score high enough would be given the positions. Articles 16 and 17 of the Judges Law provide that the Chinese judges are to be divided into 12 levels, and a judge’s level is to be determined according to ‘his/her occupation, virtues and talents, the level of professional fitness, the performance of trial work and the years of service’. According to Articles 46 and 47 of the Judges Law, the judges’ performances are to be determined by an ‘Examination and Evaluation Committee’ composed of the president of the court and several judges. These provisions are meant to introduce a merit-based system providing rewards for competent judges, but in practice they have been reduced to a mechanism of internal balance of interests, and amount to little more than bonuses for administrative positions and seniority.[72] The administrative features of the Chinese courts are necessarily reinforced by differentiating the judges’ levels and status. The Outline by and large leaves the bureaucratic structure of the court untouched, and adds more selection criteria and tests. As discussed in Part IV, such a scheme may actually exacerbate rather than ameliorate judicial reliance on the administrative leaders and further complicate the personal relationships among the judges.
The reform also aims to improve the low quality of reasoning in the current judicial opinions. So far the Chinese judicial decisions [Panjueshu] have been notoriously brief on legal reasoning, and in many opinions the ‘reasoning’ part is really a pretext for pre-determined conclusions.[73] Following a fixed format, most of the written decisions used to fit within a single page, and the cryptic style has helped to hide personal bias. The situation is made worse by the fact that, in China, the judicial decision of a particular case is normally available only to relevant parties, not to society at large. Thus, it is essentially a ‘private opinion’ without public supervision. To rectify this deficiency in criminal trials, the SPC drafted in 1999 the ‘Model Format for Judicial Opinions in Criminal Trials’, and laid emphasis on legal reasoning in all types of judicial decisions.[74] Consistent with the national reform in judicial opinions [Caipan Wenshu Gaige] as a part of the judicial reform, several provincial high courts have organized competitions that would award high quality opinions. The judicial decisions will also be gradually made open to the public. From the middle of June 2000, the SPC began to selectively publish judicial opinions of ‘specially important and typical’ cases on the SPC Gazette, the People’s Court Daily, and even the Internet.[75] The publication is currently limited to the legal opinions of the SPC, and it is uncertain when the lower courts’ opinions will also be made open to the general public.
The Outline leaves untouched, however, the low educational level of the existing judges (Xedu). The Judges Law [Faguan Fa], promulgated in 1995, was aimed to solve this problem, but it has achieved very limited success in this area. Article 9 in Chapter 4 (The Judges’ Conditions) requires that a judge must ‘graduate from a high-level college [Gaodeng Yuanxiao] specialized in law’ and has worked for two years, but it also allows those who graduated from colleges not specialized in law, yet nevertheless possess ‘specialized legal knowledge’ [Falü Zhuanye Zhishi], to become judges.[76] Without a clear definition, the term ‘specialized legal knowledge’ leaves a loophole in judicial recruitments. It was thought that the first assessment of judicial levels should be carried out according to personal ability and educational background. In practice, however, neither matters more than the administrative ranks and the length of tenure.[77] According to a recent report, the Judges Law is about to be revised, yet the proposed revisions fail to clarify the vague terms.[78] It is doubtful that the revisions can effectively improve China’s practices in selecting its judges and deciding their status. Still, some progress has been made in certain areas. For example, the high court of Jiangsu province will no longer recruit judges without a graduate degree, and the basic-level courts will abolish the past practice of recruiting the graduates of middle-level specialized [Zhongzhuan] schools except as speed typists.[79]
2. Curtailing Local Protectionism
Local protectionism has lent to the strongest outcry against the existing judicial system, and the Chinese government has for long grappled with this problem, in vain. To be sure, sinister as it is, local protectionism is present to a degree in any sizable political unit. The state courts in the United States are known for their local biases. The problem is effectively solved by the federal system, especially the mechanism of diversity jurisdiction provided by the Constitution of the United States.[80] Traditionally China was a centralized state, but in judicial administration, it appears to be insufficiently centralized, and local protectionism has been rampant owing partly to its vast geographical span and great disparity in economic development, and partly to the unreasonable financial structure of the judicial institution. Ironically, while decentralization and devolution carry the day for the general reform of the Chinese economic, political and social structure, re-centralization seems to be an indispensable remedy for the judicial reform. An obvious approach is to break the current horizontal structure (‘Kuai’, block) and establish a vertical structure (‘Tiao’, slat), which would enable the central government to directly finance the local courts, thus removing the local pressures over the latter. In 1999, some of the city courts reportedly no longer lived on the ‘mixed food’ [Zaliang] supplied mainly by their local governments, and began to receive the ‘imperial supply’ [Huangliang] flowing directly from the central treasury.[81] In the mean time, the leadership of the lower courts will be frequently switched to other locations to reduce the establishment of personal ties with the local governments. It remains to be seen whether these mechanisms will effectively reduce local protectionism in judicial behavior.
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