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A major aspect of local protectionism is shown in the ‘enforcement difficulty’ [Zhixingnan]. This problem has a broader scope than local protectionism (even a native resident may find it hard enough to enforce a favorable judgment, say, against an official, in the same jurisdiction), but it is particularly difficult for a court to enforce its judgment in another jurisdiction (especially in another province). Judicial enforcement received heightened attention in 1999, ‘the year of enforcement’ [Zhixingnian]. Recently, the SPC has fashioned an institutional mechanism that establishes a special ‘enforcement bureau’ [Zhixingju] in each provincial high court.[82] The mechanism is expected to not only streamline the overall enforcement process within a jurisdiction, but also reduce local protectionism in enforcing a favorable judgment obtained by a party outside the jurisdiction. Instead of having the deciding court to directly enforce its judgment in another province, the task will be delegated to the enforcement bureau of the latter province. The mechanism, which has now been promulgated in a dozen provinces, will hopefully enhance the efficiency and reduce the cost in the enforcement process.
3. Improving the Internal Structure and Processes
The reform of the internal court structure is probably the most ambitious and potentially most far-reaching program that the SPC has ever launched in its history. The Outline explicitly aims to accomplish several goals. First, the reform is to modernize the trial process through the ‘three separations’ (not the separation of three powers!), that is, the separation between the filing and the trial of the case, the separation between the trial and the enforcement of the court order, and the separation between the trial and supervision of the judicial decision.[83] The goal of the ‘three separations’ is to make sure that the trial process follows cases not the judges, thus to prevent the litigants from consulting the judges’ opinions on the cases and to eliminate the ‘three together’ (that is, the judges and the litigants travel, eat, and lodge together) during the investigation.[84] This mechanism might have some limited impact on checking judicial corruption (Xcor). Second, to improve the efficiency of trial processes, the courts will limit the amount of lag between the filing and hearing of the cases, and adopt streamline management to track the cases. The reform is also to touch the rule of evidence, especially the guarantee of the rights and duties of the key witnesses and their due appearance at the court. To improve the quality of judicial opinions, the SPC is to publish ‘typical cases’ as ‘references’ [Cankao] for the lower courts in judicial decision-making, though the binding nature of these ‘references’ remains dubious.
Third and most significant, the Outline seeks to enhance the personal independence (Xind) of the judges (not simply of the court as an institution) in limited ways. The judicial reform is to modify the internal court structure by establishing the rules of selecting judges that will either try the cases alone [Duren] or lead the panels of judges [Heyiting]. The panels or individual judges are to make the final decisions, which cannot be changed by the administrative leaders of the court, except in those ‘important and difficult cases, which the panel may petition the president of the court to refer to the trial committee for discussion and decision’ (Para. 20). In this way the Outline preserves the trial committee system, though limiting its role to ‘studying the problems with fundamental and systematic impact in the trial work and provide authoritative guidance’ (Para. 22).
A prominent problem with the Chinese judicial structure has been the heavy administrative control of the courts, as reflected in the high proportion of administrative personnel. Recently, the administrative proportion has been reduced in the SPC, and the percentage of the judicial personnel rose from 59% to 72%.[85] The same structural reform was to be carried out in the lower courts and completed at the end of 2001, aiming to reduce the total court personnel by 10 percent nation-wide.[86]
4. Curbing Judicial Corruption?
Like local protectionism, judicial corruption has been talked much in China, but effective solutions remain elusive.[87] Judicial corruption may be curbed by a number of mechanisms (Xcor). The existing system, in which the committees of judges checking among themselves, will be gradually transformed into a new system containing single judges or panels of judges. In the reformed system the role of individual judges will be enhanced, and monitoring effect of the old system will thus be curtailed. The traditional remedy, which had a deep historical root in the Chinese history, is to use China’s ‘fourth branch’ -- the People’s Procurator -- to challenge suspicious judicial decisions at the higher courts. Although this mechanism raises the question about the relationship between the procurator and the court, and is likely to impinge on judicial independence and the finality of legal decisions, it will continue to be employed as a mechanism of judicial checks and balances. It has also been proposed that the LPCs or their standing committees should have the power to engage in supervision of individual cases [Ge’an Jiandu], by which the representatives can supposedly correct the errors in specific judicial judgments.[88] In some cities (e.g., Dalian in Liaoning province), the LPCs actually review the performance of individual judges and vote for their qualification.[89] Finally, just like the judges in the west, the Chinese judges are also restrained to a degree by the Party’s disciplinary measures (mainly through the Jilü Jiancha Weiyuanhui) and social pressure in general, particularly through the mass media. Although the latter mechanism is informal and its effect depends on the willingness and ability of the Chinese journalists to ferret out the dirty details, it can become quite effective if the freedom of expression is reasonably guaranteed.[90]
The mechanism of judicial supervision is a hotly contested topic among different views because it impinges on the heart of judicial independence. According to the conservative view, the Chinese judges must be watched closely in order to reduce the chance for corruption. Tight supervision by other organs is expected to help prevent an unreliable judiciary from plainly disregarding the law. On the other hand, the liberal voice tends to undermine the extent of troubles that judicial liberalization might cause and is determined to break the vicious cycle of low judicial quality and extensive administrative control.[91] They also point out the problems inherent in the conservative solution. A particularly controversial issue is the power of the NPC to supervise judicial decisions upon appeal or complaint, since it directly undermines the separation of the legislative and judicial functions.[92] In terms of legal knowledge and experience, the representatives are below the average level of the judges, and they are usually not familiar with the facts of the cases.[93] It has occurred in the past that the interested parties have taken advantage of the representatives’ lack of knowledge to foster local protectionism by goading them to pass the bill of supervision for relevant cases.[94] Thus it does not seem to be suitable for the NPC to directly exercise the judicial function and decide cases for the courts. Largely owning to the liberal opposition, the bill for legislative supervision failed to pass the NPC to become law, yet a few provinces implemented various versions of legislative supervisory mechanism.
In this respect, the Outline remains ambiguous as to the specific mechanism for correcting the judicial wrong-doing. It calls for establishing both internal and external mechanisms of checks and balances, enforcing the authority of the supervision of the high courts over the lower courts and the disciplines for illegal judicial behavior,[95] preventing collusions among the judges, the litigants and their legal representatives, and enabling supervisions of the representatives of the people’s congresses and the procurators over judicial behavior, without spelling out the details. Perhaps the most concrete plan is to establish a personal responsibility system for erroneous decisions, largely to be implemented within the Chinese judicial system -- the courts and procurators. Beijing, for example, has promulgated a tough guideline, the violation of which may result in revoking the qualification of an offending judge. Judges may also be held personally liable for the damage done to the victims of their wrongful judgments in litigation.[96] Yet, in practice, it might be difficult to distinguish intentional or reckless judicial errors from those ordinary mistakes of facts or law, which any human court may make and thus should not, in the interest of judicial independence, be imputed to the individual judges. The performance review mechanism may work well for other departments of the government, but not necessarily for the judiciary; it may be used for curbing judicial corruption, that is true, but it may also be used by the administrative power to suppress those upright and competent judges who are bold enough to ignore personal will or political order of the superior.[97]
Now, given the blueprint for the Chinese judicial reform, how likely is it to succeed?
IV. The Problems Unresolved: Tensions and Constraints
1. On-going Achievements and Precautions
Since the SPC has set the pace of reform in the Outline, the courts nationwide are reported to have responded positively.[98] A change that has touched almost every court is the selection and testing of the judges;[99] every candidate is to pass a series of selective processes, including self-introduction, qualification review, campaign speech, peel review [Minzhu Ceping] and written examinations, in order to demonstrate its political, moral, and professional fitness for the judicial position. Some of the courts have also begun to reform their technical procedures: the filing of cases is made easier and no longer dependent on personal relationship with the court personnel, ‘Sunshine projects’ are initiated to make the trial process more transparent, and the judicial appraisal of crucial facts is no longer an opaque process that provided occasions for judicial partiality and corruption.[100] The presidents of the courts and the divisions, previously mainly responsible for internal administration, begin to sit in the courtrooms, hearing and deciding cases as full-time judges do.[101] In certain areas, the courts have begun to depart from the established control model in which an effective judicial decision requires many levels of administrative approval. Now a single judge or a panel of judges reportedly have the authority to pronounce the final judgment right on court;[102] except those so-called ‘important [Zhongda], difficult [Yinan] and complicated [Fuza]’ cases, a judicial opinion no longer needs approval of the presidents of the court and the relevant division -- a measure, if faithfully carried out, would significantly enhance the judge’s personal independence (Xind).[103] Finally, the courts in various areas have also moved to rectify the rampant judicial corruption.[104] In Sichuan province, for example, the courts are to spend two years to clean up those judicial personnel who have caused strong discontent by their ‘distortion of law for pursuing private interest, embezzlement and reception of bribery, and rude working style’.[105] The Sichuan courts will also implement uniform judicial examinations and dismiss those who fail to pass the mandatory examinations. In the Tianjin municipality, about a quarter of judges in the basic-level courts failed to pass the judicial tests, and were removed from the responsibility of adjudicating legal cases.[106]
These are good news, but they need be taken with a grain of salt. At least since the Great Leap Forward in the late 1950’s, which stroke the high pitch of the ‘wind of flamboyance and exaggeration’ [Fukuafeng], China has been beset by movements one after another initiated from the top for a variety of purposes. Impractical goals meet with exaggerated reports that make everyone happy, only to leave the real issues unresolved.[107] It is disturbing to see that the same spirit is getting its way into the current judicial reform, from the top to the root level. As an example, the president of the SPC claimed lately that China was planning to significantly improve the overall judicial quality and to effectively cut judicial corruption within mere two years.[108] This is an astonishingly short time for solving a historical problem with which the Chinese have been grappling in vain. It is difficult to think of any expedient measure that can so quickly remove this long-standing impediment to the judicial reform. In one favorable report about the effect of the judicial reform, the litigants of a case wanted to invite the judges to dinner, but failed to do so because they could not find out the specific person in charge of trying the case.[109] Hiding the names of judges may fool an inept party or his attorney, but it would be simply futile to reduce judicial biases and corruption by this type of ‘cheap shot’. The general human tendency is to find quick-and-easy fixes, but they rarely solve hard and real problems like judicial corruption. As one expert points out, at least in criminal litigations, the judicial reform of trial process has already turned out to be a failure.[110] The lesson seems to be worth learning for the greater project of judicial reform as a whole. To genuinely reduce judicial biases and the ‘personal relationship cases’ [Renqing An], the Chinese judges and society in general must cultivate a legal culture and the instinct for rule of law that discourage ex parte contacts between the judges and litigants. Of course, this takes much more effort and much longer time to achieve.
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