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During the Qing Dynasty, for example, the top judicial organ Dalishi was subordinate to the highest administrative official, the prime minister . Of course, it was also subject to direct intervention of the Emperor. See Qu Tongzu, Chinese Society and Chinese law (Beijing: Zhonghua Shuju, 1981).
Zhongyang Zhengfu guanyu Jiaqiang Renmin Sifa Gongzuo de Zhishi, (3 November 1950).
He Rikai, ‘The Judicial Reform: From Power to Authority’ , Law Science , 1999 (4), pp. 30-38.
On July 1, 2000, the judges nationwide begin to wear the uniform specially designed for them as civil officers. It remains to be seen whether a new judicial uniform will help to bring a new judicial culture of the Chinese judges.
Tie Li and Lu Jingbi, ‘A Defective Judicial Reform: A Study of Important Events in the Legal Community since the Establishment of the State’ , Jurisprudence , 1998 (6), pp. 2-5.
So it was still reported favorably that, in the Xuanwu District in Nanjing, three ‘judges’ went to the corn field, carrying cameras and taking pictures to be used as evidence for the quality of the corn. It was said that the farmers wanted to sue the seed seller for selling them low-quality seeds, but were afraid that leaving corn in the field for the purpose of court evidence would delay cropping for the next season. So the judges decided to do the farmers a favor by coming to preserve the evidence for them. Although the action was arguably authorized by the Civil Procedure, it was not even clear whether the farmers had formally filed a lawsuit. See Nanjing Metropolitan Culture Weekly , (27 July 2000, A3).
In Shanghai the judges used to be commended for their public ‘consulting’ service, where they would lay out desks on the streets, answer questions about the law and sometimes the complaints about judicial decisions from the losing parties in litigations, while the other parties were absent. Only recently were such practice criticized and the judges required to avoid commenting on specific cases, particularly cases yet to be decided, owning to the dubious quality of the street judicial process, where the judges’ recommendations and comments were based only on the words of one party in a litigation. See Shanghai Legal System News , (14 July 2000, p. 1).
For an insightful critique, see He Weifang, ‘Two Problems in the Chinese System of Judicial Management’ , Chinese Social Science , 1997 (6), pp. 117-130, and also by the same author, ‘Realizing Social Justice through the Judiciary: A Overview of the Current Condition of the Chinese Judges’ , in Xia Yong, ed., The Era Toward the Rights (China University of Law and Politics Press, 1995).
Even back in 1991, there were 138,000 persons above the rank of assistant trial member , with only 47,000 lawyers. In 1997, the number of lawyers in China increased to 100,000, but the number of judges above the assistant rank increased to 247,000 due to the local expansion of capacity . See Wang Chengguang, ‘Judicial Efficiency and the Reform of Internal Operating System of the Courts’ , Jurisprudence , 1998 (10), pp. 46-51.
On the other hand, one need not be a judge in order to decide a case. It is common for the court secretaries to be in charge of investigating a case and even writing its decision. See Fu Heping and Wei Lei, ‘A Preliminary Inquiry on the Establishment of the Institution of Professional Secretaries’ , People’s Court Daily, (26 May 2000).
‘The Existing Problems in Our Current Judicial System and the Strategies for Improvement’ , Review of Legal Studies , 1998 (6), pp. 22-30.
Feng Qi and Su Degeng, ‘How to Reform the Court Institution’ , People’s Court Daily, (28 April 2000).
Ibid.
Ma Junjü and Nie Dezong, ‘The Existing Problems in Our Current Judicial System and the Strategies for Improvement’, pp. 25-30.
Cai Dingjian, ‘Preliminary Comments on the Reform of the Court System’ , Strategies and Management , 1999 (1), pp. 97-102.
See Wang Yinghui, ‘Governing the State According to Law and the Judicial Reform’ , Studies on Law and Commerce , 1999 (2), pp. 47-50. See also Fan Yu, ‘The Trend of World Judicial Reform and the Chinese Reform of Civil Trial Style’, The Jurist , 1998 (2), pp. 110-113.
See He Weifang, ‘The Road toward Judicial Reform’ (Part II), Beijing University Law Information , 4 (3), (2000). Part of the reason is that the judgments of the Chinese courts lack a clear place in the hierarchy of law. Formally speaking, China, in imitating the Continental legal style, does not recognize court decisions as part of the ‘law’.
The ‘oversize’ problem of the Chinese courts can be seen also from the highest court, the Supreme People’s Court, the various divisions of which add up to over 200 judges. See Cai Dingjian, ‘Preliminary comments on the reform of the court system’, p. 101.
See ‘The Road toward Judicial Reform’ (Part II), Beijing University Law Information , 4 (3), (2000).
For a widely cited report that the acute lack of funding had led the Chinese courts to take various forms of profit-seeking behavior, see ‘Serious Shortage of Judicial Funding in the Basic-level Courts in the Poor Areas’ , People’s Court Daily, (7 May 1993).
Hao Tiechuan, ‘On Governing the State According to Law in the Transitional Period of Chinese Society’ , Chinese Jurisprudence , 2000 (2), p. 7.
Beginning in October 1992, some of the provincial and city courts were chosen to reform the criminal trial process and emulate the Anglo-American adversarial model under the supervision of the SPC.
Every local court has an ‘enforcement branch’ , which is responsible for carrying out the court decisions and the decisions of the administrative agencies that have applied for ‘coercive enforcement’ .
Cai Dingjian, ‘Preliminary Comments on the Reform of the Court System’, pp. 97-102.
See San Antonio Ind. School Dist. v. Rodriguez, 411 U.S. 1 (1973).
Cai Dingjian, ‘Preliminary Comments on the Reform of the Court System’, pp. 97-102.
Pi Chunxie and Deng Dandan, ‘Study on the Chinese Judicial Reform (II): The Dilemma of Administrative Litigation and Thoughts on Its Reform’, The Jurist , 1998 (2), pp. 97-99.
Ibid.
‘The Liu Qiuhai Event’, South Weekend News (Nanfang Zhoumo), (14 January 2000).
The state courts in the United States in their early days had (perhaps today still have) the same problem, and this apparently was the rationale for the Article III of the Constitution to confer the ‘diversity’ jurisdiction to the federal courts. China as a centralized (rather than a federal) state, of course, does not have a two-tiered court system, since every local court is in principle a part of the central administration, and it is this supposedly ‘central’ system that is locally biased. There was some suggestion about establishing ‘large-district’ courts which, similar to the appeals courts in the federal circuits, cover several provinces, but it has not been put into practice owning to doubts about the utility and feasibility of such a system. It can be safely predicted that the local protection problem will persist absent a fundamental reform of the judicial and political power structure.
Xi Xiaoli, ‘Several Thoughts on the Reform of the Chinese Trial System’ , The Jurist , 1998 (1), pp. 113-116.
The judges actually involved in trials account for only about half of the court, yet the limited resources are shared by the whole court. See Xi Xiaoli, ‘Several Thoughts on the Reform of the Chinese Trial System’, p. 114.
Wu Xiaodong, ‘Three Problems that the Reform of the Trial Operating System Need to Resolve’ , People’s Court Daily, (2 June 2000).
See Wang Liming and Yao Hui, ‘Studies on the Arrangement of the People’s Court Institutions and the Problems of Trial Style Reform’ (Part I), Chinese Legal Studies , 1998 (2), pp. 7-9.
Liu Han and Zhang Gengda, ‘Four Problems for the Reform of Judicial Panel System’ , People’s Court Daily, (5 May 2000).
For a formal theoretic explanation, see Fujia Lu, Bureaucratic Corruption and Institutional Changes in China: A Property Rights View, Doctoral Dissertation, (Austin: University of Texas, 2000), Chapter 4.
In Guangxi province, the vice president of the high court, Pan Yile, was sentenced to 15 years after he was found to have received bribery for ￥250,000. Tan Shigui, ‘A Study of Chinese Judicial Reform’ , Modern Jurisprudence , 1998 (5), pp. 65-70.
In Henan province, the president of a county court and the head of its administrative law division reduced a criminal sentence by 5 years as an exchange for money and sexual favors from a convict’s wife; the reduction of sentencing was found only after the released prisoner was convicted again for subsequent offenses. See Guo Qichao, ‘Two Court Presidents in Henan Were Sentenced for Violating the Law for Private Interest’ , Nanjing Service Tribunal , (14 July 2000).
In one case in Zhejiang province, a county court knew that the county treasury had illegally lent money to the plaintiff, a suspect for chicanery, but went ahead to hold the defendant liable for ￥300,000. See Su Huiyu et al., ‘The Judicial System Must be Reformed’ , Minzhu yu Fazhi Huabao, (4 June 1999), p. 22, which reported the court covering up for the ‘money manager’ (the treasury department) in the lending case to secure funds for squandering.
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