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In Chengdu, the capital of Sichuan province, a basic-level court sentenced a victim to 15 years imprisonment for killing a murder suspect during self-defense. The victim died in prison, and his relatives appealed 26 times to Beijing for rehabilitation. When the central government officials came to investigate, the court forged evidence to cover up its wrongful judgment, and the city court and the provincial high court colluded with the procurator’s office, collectively forged the case to protect the lower court. See ‘Coming to Appeal in Beijing for the 26th Times’, Democracy and Legality , 27, (1997), cited in Guo Daohui, ‘Realizing Judicial Independence and Curtailing Judicial Corruptions’ , Law Science , 1999 (1), pp. 5-15.
See ‘Vindicating Judicial Fairness by Rigid Institutions’, Xinhua Daily, (27 July 2000, A2).
Tan Shigui, ‘A study of Chinese Judicial Reform’ , Modern Jurisprudence , 1998 (5), p. 67.
Sometimes the judge would even investigate a case with only one litigant, while the other party is absent. See Wang Liming and Yao Hui, ‘Studies on the Arrangement of the People’s Court Institutions and the Problems of Trial Style Reform’, p. 11.
Yeshan Xianshui, ‘You Cannot Avoid Corruption’ , Procurator’s Daily (Jiancha Ribao), (22 September 1999), see also http://www.jcrb.com.cn/html/1999/09/22/H19990922_04.htm.
For a comparison with the judicial infringements of law in the American, British, German, and Singaporean courts, see Guo Daohui, ‘Realizing Judicial Independence and Curtailing Judicial Corruptions’, pp. 5-15.
According to one analysis, the ratio of Chinese official to citizens has grown 17 times: from 1:600 at the founding of the PRC to 1:34 at present. See Ge Jianxiong, ‘The Burden of the Whole Society’ , South Weekend News, (17 July 1998), cited in He Weifang, ‘The Relationship between the Higher- and Lower-level Courts in the Judicial Reform’ , Jurisprudence , 1998 (9), pp. 42-44.
Zhang Weili, ‘China Needs Large Batches of Talents in Law’ , Legal Daily , (3 October 1997). The shortage of qualified judicial personnel is felt most acutely in the fast developing areas. In Shenzhen Special District, for example, the number of cases has been increasing by over 25 percent every year, almost ten times as fast as the increase of the judicial personnel. The courts will work under an over-loaded condition for a long time to come. See ‘Judges in Shenzhen have for Long Worked Overtime and Overnight’ , http://www.china-judge.com/sfgg/sfgg112.htm.
See Li Hanchang, ‘An Overview of the Judges’ Quality and Judicial Education in the Background of Judicial Institutional Reform’ , Chinese Legal Studies (Zhongguo Faxue), 2000 (1), p. 49.
See People’s Court Daily, (8 April 2000), reporting that Xiao Yang proposed to push for judicial reform in the basic-level courts. According to an SPC ‘opinion’ for strengthening the basic-level courts, training programs would be offered to all lower courts by the end of 2002. See Legal Daily, (14 August 2000).
‘Renmin Fayuan Shenpanzhang Xuanren Banfa (Shixing)’, Gazette of the Supreme People’s Court , 2000 (5), pp. 149-150.
Hence there will be "off-the-bench judges" who are not qualified to adjudicate. Since China has too many "judges" who have obtained their qualification consistent with the low legal requirements, this is one step toward the making of a new elite working group. In the middle-level court of Nanjing, among 242 persons who have acquired the judge’s qualification, only a little over 30 were selected to be chief trial judges, and their performances and qualifications will be reviewed annually. See Xinhua Daily, (28 January 2000, B1).
‘Xiao Yang Requires that Over Half of the Basic-level Courts Must Implement the Trial Leader and Single Judge Selection System in This Year’ , Legal Daily, (24 June 2000).
People’s Court Daily, (31 May 2001).
See Li Hanchang, ‘An Overview of the Judges’ Quality and Judicial Education in the Background of Judicial Institutional Reform’, p. 49. In a recent report, the president of the SPC presented to the Standing Committee of the NPC the proposed amendments to the Judges Law, which seek to clarify the procedure of conferring the judges’ level. President Xiao Yang claimed that a judge’s level is the recognition of his or her professional fitness. But the amendments are unlikely to resolve the practical problems in the determination of the levels.
See Wang Yong, ‘The Reversed and the Neglected Legal Reasoning’ , Legal Daily, (27 February 2000, p. 3).
Li Yanfeng, ‘Xiao Yang Teaches Students at the Judge Institute, Emphasizing Active and Stable Push for the Court Reform’, People’s Court Daily, (2 June 2000).
www.court.gov.cn, see ‘Zuigao Renmin Fayuan Caipan Wenshu Gongbu Guanli Banfa’, The SPC Gazette, 2000 (4), p. 118, Xinhua Daily, (20 June 2000, B), and Beijing Youth News, (28 November 2000).
The Clause 6 of the article further provides that those with a bachelor degree in law major and one-year work experience can become a judge; those with master and doctorate degrees in law are not limited by the condition for work experience. Presumably the ‘work’ here refers to some sort of court-related legal practice, though the law never spells out in letter.
Feng Qi and Su Degeng, ‘How to Reform the Court Institution’ , People’s Court Daily, (28 April 2000).
Instead it merely removes the exception to work experience for those holding graduate degrees in law.
‘The Court Personnel System in Jiangsu is Undergoing Important Reform’ , Xinhua Daily, (17 January 2000, A2).
Art. III, Sec. 1, Cl. 1.
For supporting arguments made by the former president of the SPC, see Zheng Tianxiang, On Governing the State according to Law (Beijing: People’s Court Press, 1999).
See reports on People’s Court Daily, (2 November 2000); People’s Daily, (6 November 2000).
For academic recommendations on the reform of the internal judicial structure, see Wang Liming and Yao Hui, ‘Studies on the Arrangement of the People’s Court Institutions and the Problems of Trial Style Reform’ (Part II), Chinese Legal Studies, 1998 (3), pp. 23-32; Zhang Wusheng and Wu Zeyong, ‘Judicial Independence and the Adjustment of the Court Organizational Institutions’ (Parts I and II), Chinese Legal Studies, 2000 (2), pp. 55-70; 2000 (3), pp. 48-57. For official interpretation, see Wang Mei, ‘Vice President Shen Deyong on the Trial Management Reform’, People’s Court Daily, (9 June 2000). The so-called ‘three separations’ here is narrowly limited to internal judicial process, and is not to be confused with the notion of ‘separation of powers’ , which the CCP leaders repeatedly repudiated.
Wan Exiang, ‘Deepening Judicial Reform, Guaranteeing Judicial Fairness’, Law Review , 17 (3), (1999), pp. 1-2.
See Zhang Cuiling, ‘The Wave of Judicial Reform’ , Beijing Youth News, (28 November 2000).
People’s Court Daily, (11 April 2001).
For a variety of rent-creating behavior of judges in the poor areas like Jiangxi province, see Yuan Qin, ‘There are Many Negative Effects of Fund Shortage in the Basic-level Courts’ , Legal Daily, (20 February 2001).
Liu Wanghong and Ji Jinhua, ‘On the Case-by-case Supervision of the People’s Congress over the Judiciary and Its Legal Mechanism’, Nanjing University Law Review , 12, (1999), pp. 133-145. For judicial opposition to this option, see Ma Junjü and Nie Dezong, ‘The Existing Problems in Our Current Judicial System and the Strategies for Improvement’ , Review of Legal Studies , 1998 (6), p. 24.
Zhu Yanqing, ‘Whether the Judges Quality, the NPC Will Decide and Comment’ , Legal Daily, (29 March 2001).
As the case of Liu Qiuhai shows, however, the ability of the newspaper and other media to report official corruption is severely limited by the public officials’ ‘right to reputation’. Compare the American landmark case New York Times Co. v. Sullivan, 376 U.S. 254 (1964), where the Supreme Court rejected the libel claim filed by public officials.
He Weifang ‘Out of the Vicious Cycle’ , South Weekend News, (26 March 1999).
Although the party leaders had openly refused to follow the western model of separation of powers, they do not seem to reject the essential differences in functions.
It should also be noted, in this connection, that an ordinary Chinese legislator is not necessarily familiar with the law, since he retain the rather feudal character of being an amateur lawmaker, who participates in lawmaking only as an unpaid, honorary activity alongside with his formal profession. Recently, the Shenzhen special district has begun to implement a legislative aid program, by which every member of the Standing Committee of the LPC will be provided with a legal counsel. See ‘Shenzhen: Renda Changwei Shouci Peibei Falü Zhuli’, South Weekend News, (17 January 2001).
He Rikai, ‘The Judicial Reform: From Power to Authority’, citing Shou Beibei, ‘Three-level courts, Four Judgments, Eight Years Litigation, and a Piece of Blank Paper’ , South Weekend News, (5 June 1998).
While a lower court may often appeal to the higher court for instructions on its own initiative, thus allowing the latter to interfere with the trial process, it has been reported that the formal judgments of the higher courts are not always obeyed by the lower courts. In one case the lower court fails to cite the legal ground for judgment and should have been vacated, yet the judgment was affirmed by the higher court simply because the lower court judge refused to admit the error.
‘One-case Veto Kills a Corrupted Judge’ , Beijing Youth News, (30 March 2001).
See ‘The Cost of a Judge Protesting Against the Superior’ , South Weekend News, (22 March 2001).
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