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The People’s Court in Transition: The Prospects of the Chine

作者:张千帆   点击量:79569

The People’s Court in Transition: The Prospects of the Chinese Judicial Reform(1)
 
Qianfan Zhang
 
Abstract:      For a long time the Chinese courts were beset by the lack of impartiality and autonomy owning to the heavy political influence exerted by the ruling party, the shortage of well trained judicial personnel and, more generally, the absence of social respect for the traditionally insignificant judicial branch in a primarily administrative state.  Thus the existing judicial system is woefully inadequate for sustaining a market economy, as it fails to meet the Weberian conditions for a politically neutral legal system that uniformly enforces the economic relationship forged in market transactions.  The uniform administration of justice is further jeopardized in China by the enormous diversity of local conditions and interests typical to a developing state, and by the intimate relations between the courts and local political branches.  The necessity of reforming the current court system hardly need any argument, yet how to reform it -- especially in a politically feasible manner -- is by no means clear.  Divided into four parts, this paper is essentially an analysis of the current judicial problems in China and their proposed solutions.  First, it presents a preliminary theoretical model for analyzing a judicial system.  Next, it categorizes the problems that constitute the ‘judicial syndrome’ in China.  It then outlines solutions that have been put forward to cure the syndrome.  The paper ends with a brief discussion of the likelihood that these solutions will actually work.
 
       Observers generally agree on two aspects about the development of rule of law in China.  On the one hand, since its first experiment with ‘reform and opening’ in 1978, China has made a ‘great leap forward’ on the road toward rule of law; on the other hand, China still has a long way to go before it becomes a state truly governed by rule of law.  In the span of two decades recovering from the trauma of the Cultural Revolution, the National People’s Congress (‘NPC’) and its Standing Committee have made over 160 laws, the state council has issued some 770 administrative decrees [Xingzheng Fagui], and the local authorities have made over 5200 local decrees [Difangxing Fagui].[1]  The judicial system did not remain stagnant.  The courts and the procurators’ [Jiancha] offices were reorganized in 1979 to better serve the new economic reform. [2]  By 1997 the number of persons employed in the various courts and the procurators’ offices exceeded 290,000 and 210,000, respectively.[3]  In the meaning time the number of lawyers has grown to the size of 100,000, the public registry has been established all over the country, and the legal aid centers begin to emerge in the cities.[4]  Both the legislations and legal framework seem to have served their functions to buttress a burgeoning market economy, so far the major driving force of the Chinese reform.  In 1999, the constitutional amendments explicitly avow, for the first time in the constitutional history of the People’s Republic, to ‘govern the state according to law’ [Yifa Zhiguo] and ‘establish the socialist state of rule of law’.[5]  Yet observable marks, including seemingly ‘solid’ ones like statistical data, can be deceptive and misleading; the quantity of achievements normally fails to tell the quality.  In fact the remarkable Chinese achievements, by contributing to the rising expectation for steady progress in rule of law, only make its deficiencies all the more conspicuous.  Although China can now claim that the laws necessary for sustaining a stable flourishing society are by and large there, these laws are yet to be obeyed and effectively enforced -- hopefully before the common people become so disappointed as to treat them as pure sham.  Writing down the words on paper is, after all, only the first and comparatively easy step in a hitherto lawless society; making them count in daily life is a much tougher task, but its fulfillment is the very touchstone for rule of law.  This task now confronts the Chinese government, particularly its judiciary – the very focus of this paper, as it is commonly believed that the court is the last place that makes the laws count.[6]
The Chinese courts are loaded with tasks that are difficult to accomplish even from the view of their western counterparts: they are to strike reasonable balances in civil disputes arising from the ever more complex economic relationship; they are to keep in check crimes of all sorts that come with a mobilizing society where the previous constraints to human behaviors are dissolving, while paying due regard to the basic rights of criminal suspects;[7] they are also to contain the operations of the hitherto omnipotent administrative powers within the orbits of law, at the same time ensuring their own judgments consistent with the guidance and political imperatives of the Chinese Communist Party (‘CCP’).[8]  Are the Chinese courts up to their jobs?  Even a cursory examination of the current conditions would point to a dismal answer.  Plagued by too many long-standing problems, the Chinese judiciary is clearly not in a good shape.[9]  The courts are in serious shortage of funding; the judges are poorly paid, and the professional quality is low compared to their western counterparts; relying on the local government for finance and appointments, the ‘people’s court’ has come close to be the ‘lieutenant of its local government’ for protecting its territorial interests; the trial process was inefficient and lent itself to biases and personal influences of litigants; the enforcement of judicial judgments has long suffered from low rates of success, making a significant portion of the legal decisions unfulfilled promises of the state; the judicial corruption has been rising in proportion to the economic growth: trading the power of law with personal favors and material benefits has been a prominent phenomenon among the Chinese judges, and private dealings between the judge and lawyers at the expense of the litigants are becoming commonplace.[10]  And so on.  The consensus of the Chinese legal community is that the problems of the Chinese judicial system have grown to such a critical extent that it must be reformed.
       As a result, judicial reform has become a ‘hot’ topic among the Chinese legal scholars as well as the judicial officials, all seeking to remedy what I call the Chinese ‘judicial syndrome’ in this paper.  In October 1999, the Chinese Supreme People’s Court (‘SPC’) published, for the first time in its fifty-year history, a blueprint of legal reform: ‘The Outline of a Five-Year Reform of the People’s Court’ (hereinafter ‘Outline’).  The Outline avowed to improve the existing judicial structure in China, to enhance the power and autonomy of the individual judges, and to guarantee judicial efficiency as well as fairness.  The judges [Faguan], whose qualifications are yet to be precisely defined, would be carefully selected from the existing stock of judicial tribunals and lawyers who had established records of good performance, and would become ‘judges in the real sense’.[11]  In the mean time, those judicial personnel unable to meet the standard would be put off the post [Xiagang].  Apparently, the institutional reform carried out in ordinary government agencies has also entered the Chinese courts.
The Outline had created much hope to the prospect of the badly needed judicial reform.  Now the first five-year experiment has ended, and the second reform plan, which basically followed the first plan in design, just surfaced after long delay.  Has the first Outline achieved its purposes?  Are future reforms likely to achieve the intended effects in the given political framework?  Divided into four parts, this paper is essentially an analysis of the current judicial problems in China and their proposed solutions.  First, it presents a preliminary theoretical model for analyzing a judicial system.  Next, it categorizes the problems that constitute the ‘judicial syndrome’ in China.  It then outlines solutions that have been put forward to cure the syndrome.  The paper ends with a brief discussion of the likelihood that these solutions will actually work.  Although much of the paper is limited to the judicial system, it does indicate that the political hurdles encountered in the process of judicial reform suggest that rule of law can hardly coexist with one-party monopoly.
 
A Preliminary Theoretical Model
       Every practical inquiry begins with a normative aim, and the aim for the Chinese judicial reform is very clear: a working judicial system, that is, a system of courts that can decide legal disputes fairly and efficiently.[12]  The next step, which is to be dealt with by the rest of the paper, is about the means: What does it take to build such a system?  Here we need to integrate the macro (statistical) and micro (rational choice) models to analyze the judicial behavior.  A judge sitting in the court hears a case and decides it.  To reach a ‘fair’ or ‘impartial’ decision means that she decide the case by properly applying the law to the facts, without being influenced by ‘irrelevant factors’ in the eyes of the law, such as her own personal opinion or interest.  She must have the right education and training to acquire the professional ability of understanding and applying the law and relevant facts,[13] and in some way acquire the moral integrity to steer clear of various interferences.  These interferences come from multifarious sources that can potentially find infinite number of connections with the person sitting on the judicial bench.  The most obvious source is the government authority from the other departments or a dominant political party, especially if these entities control some of the goods that the judge regards important to her personally.  Powerful social groups may also influence the judge’s decision; indeed the fear for bad publicity may deter a judge from deciding in the way that the law dictates.  The other common source, especially familiar in China, is the influence of relatives and friends in the broadest sense, who may impose a pervasive pressure upon the judge’s daily life.  And a litigant may succeed in influencing the judge’s decision simply by bribing her.  Of course, if the judge’s integrity is impregnable before all sorts of pressures, threats and temptations, then she in theory does not need any shield from the outside interference; in real world, however, such a person is hard to find.  Although the judge’s professional and moral quality is indispensable, institutional guarantees are provided precisely to make judicial independence possible for judges who share both the virtues and weaknesses with common fallible human beings.
       Even though this study is not meant to be quantitative, a more definitive model may help to make clear the mechanism for achieving judicial impartiality.  Such a model should, as the foregoing discussion shows, contain the ‘dependent variable’ (labeled as Yj), which measures judicial fairness, and a number of ‘independent variables’ that affect the judicial functioning. [14]  Variables are designated since they are quite numerous.  There are two types of independent variables: internal (‘subjective’) and external (‘objective’), both of which are explained below. 
 
1.    Internal variables
The internal variables refer to the judge’s personal quality, including the professional ability (Xprof) and moral integrity (Xmi) of deciding cases in the right way.[15]  Variables of subjective nature are difficult to measure, however, and can be usefully reduced to objective variables if possible.  Since the professional ability is acquired through legal education and training, we can decompose Xprof into objective variables Xedu and Xtrain,[16] which may be expressed in turn by the years and the level of education and training.  On the other hand, it is difficult to decompose moral integrity into totally objective variables.  The tendency and tenacity to resist judicial corruption have been partly caught by the four institutional variables explained below, but they do not take into account personal differences.  Without a clear understanding of the objective causes for moral integrity or the lack thereof, we cannot properly objectify this variable.  So the residual term, Xmi, is kept to indicate the subjective difference.  Although it is difficult to measure this term, its presence seems to be necessary to make the model complete. 
 
2.    External variables
The external variables refer to those environmental factors that would affect judges’ decisions; they mainly include (but are not necessarily limited to) the terms of appointment and removal (Xapr), the judges’ remuneration and working conditions (including funds for judicial operations; generally labeled as Xwc), and the judges’ personal responsibility for individual case decisions (Xind).  High values for the external variables will lead to an independent judiciary, as they indicate that the judges are more entrenched in their positions, that the courts have sufficient financial capacity for independent operation and are less likely to succumb to the administrative power in exchange for funds, and that the judicial decisions are less likely to be replaced or modified by a superior external power.  High values for both internal and external variables will lead to a working judicial system in the sense that it can decide cases fairly and efficiently.
 
3.    Judicial corruption
  Finally, there is the problem of judicial corruption.  In a way it is the opposite of judicial fairness, as it occurs when the internal and external variables take low values, but it also serves as a constraint to judicial reform, especially regarding judicial independence.  Since no judicial system in the real world can achieve perfect condition for the independent variables, the tension between judicial independence and corruption is always there.  Obviously, judicial corruption will be deterred to some extent by penal law that punishes such devious behavior, and the effects of deterrence are designated by Xcor.
       Judicial corruption complicates the way in which the independent variables interact.  If the overall level of the judges’ moral integrity (Xmi) is high, for example, then improving judicial independence (Xapr, Xwc, and Xind) will truly improve judicial fairness; if the moral integrity level is low, however, improving judicial independence may actually reduce judicial fairness (since the corrupted judiciary would be running without external control), unless variously penal laws can effectively keep judicial corruption in check (that is, Xcor is high).  In this way moral integrity and penal laws against corruption compliment each other.  To achieve judicial fairness, mere independence is not enough; rather, judicial independence, moral integrity, and the legal environment that checks judicial corruption interact in a complicated ‘non-linear’ fashion.[17]
 
       To sum up, a fair and just judicial system will result from a highly educated and well trained body of individual judges distinguished by high moral integrity, from effectiveness of penal law in controlling judicial corruption, and from judicial independence as a result of the judicial appointments and dismissals made strictly according to law, a high socio-economic status and sufficient operational funding as guaranteed by law, and the individual responsibility of the judges for delivering judicial opinions without political, administrative, and social interference.  Improvement of a judicial system toward judicial fairness requires improvements in all the ‘independent variables’ discussed above, and the breakdown of any conditions listed above is likely to result in failures in the judicial system. 
Viewed in this model, what is the current condition of the Chinese judiciary?
      
The Judicial Syndrome in China
China has been a country of many ironies that continue to perplex a thoughtful outsider.  Particularly perplexing is the disparity between the words and the reality.  Historically China has purported to be a unified state under the control of a centralized government, which in effect admits no limit in its power; yet a closer look reveals a picture of terribly fragmented governing structure, particularly in the administration of justice.  The current regime also purports to be a ‘socialist state’, where social justice is supposedly the primary goal; yet its court system, commonly supposed to be the vanguard of justice, has been woefully inadequate for rectifying and deterring any injustice.  Although the judicial system bears the name of ‘people’ whom it is supposed to serve, the problems as outlined here has long prevented the courts from effectively serving the social interest.  A Chinese judge is supposed to enjoy many rights, including an independent institutional status,[18] but in practice s/he is far from independence.  These problems interact together to form what I call the Chinese ‘judicial syndrome’, which includes four related aspects: the low professional quality and entrance requirements of the Chinese judges (Xprof), the lack of adequate funding from the central government and the reliance on the local government (Xwc), which has led to blatant local protectionism (related to Xapr), the inefficient structural settings within the courts that emphasizes administrative control at the expense of judicial independence of individual judges (Xind), and the receptivity of the Chinese judiciary to various forms of corruption (Xmi and Xcor).  The present paper cannot quantitatively measure the relevant judicial variables, but it will present the qualitative conditions of the Chinese judiciary below. 
 
1.        The Professional Quality Problem: The Conditions of the Chinese Judges
Rule of law means that the public power is carried out without arbitrary personal influences, but it does not mean to neglect the personal quality (Xprof) of those who occupy the positions of making, interpreting and executing laws.  Indeed it would be almost a truism to state that the prerequisite for bringing rule of law as a particular social and political ideal to reality is the willingness and ability of the public power-holders to submit to such an ideal.[19]  Thus, before talking about China’s judicial reform, we must have some idea about the people who make up the judicial system.  Here we see the first symptom of the Chinese judicial syndrome, a necessary result of the combining influences of the history, the tradition, and the institutions at the personal level. 
For the most part of the Chinese history, the judiciary has been a neglected branch of the government,[20]  subordinate to and often directly exercised by the executive officer.  At the level of local government, the ‘judge’ was the very executive head of the county; whenever his authority was in question, he was the judge of his own cause (subject, of course, to review by his superiors).  Such institutional arrangement, in which the same person executed and judged the law, has been regarded in the west as an anathema to liberty and justice since Montesquieu.  At the highest level in the central government, the judiciary, with various names at different dynasties, was maintained as a separate function, and was subordinate to the highest executive officer.[21]  In either case judicial independence was next to non-existent. 
This situation remained unchanged for the most part of the current regime.  The revolution, claimed to be unprecedented in history, did turn many things on their heads, but the shadow of tradition was most conspicuous in the judicial model of the new China.  Indeed, it is fair to say that revolution brought retrogression rather than progression to the judicial integrity of the Chinese courts.  In the various versions of the People’s Republic constitutions, the judiciary has been a separate branch, but it is consistently treated as an ordinary state functionary fulfilling the role of ‘proletarian dictatorship’, in parallel to the other functionaries that are primarily executive in nature, notably the public security [Gong’an] bureau and the procurator’s [Jiancha] office.  A directive of the central government in 1950 stated that ‘The people’s judicial work is just like the people’s army and the people’s police; it is one of the important tools of the people’s government.’[22]  Thus, for a long time, the Chinese judiciary was viewed to fulfill the same function as the police and the armies -- the ‘knife’s handle’ [Daobazi] of the proletarian dictatorship.[23]  It was hardly surprising that, until very recently, a Chinese judge looked so similar to a policeman or a military officer, wearing army uniform with starred epaulets.[24]  The judicial reform in 1952 further consolidated the party leadership over the judiciary.  By 1957 the party control was under serious attack within the Chinese judicial circle.  The result was not the reduction of political control, but the purge of 6,000 ‘old law personnel’ [Jiufa Renyuan] , who had constituted the pool of extremely scarce Chinese judicial resource.  In the civil division of the Shanghai second middle-level court, for example, eight among twenty judges were declared ‘rightists’ [Youpai].[25]  The vacancies were filled by the revolutionary activists, who had rarely acquired legal or, as a matter of fact, any academic training. 
Since a ‘judge’ in China meant hardly different from an ordinary cadre in the bureaucratic echelon under the party leadership, he was supposed to perform a variety of public functions: he might be executing a court order, in which case he is acting equivalently as an American sheriff, except that the order was often made by the same judge executing it; he might be gathering evidences on his own initiative for a criminal prosecution, in which case he is acting as a civil law magistrate; he might be actively engaging in settlements of civil disputes or administrative compensations, where he plays the role of an arbitrator; he might even be traveling in the countryside during an episode of ‘popularizing legal education’ [Pufa Jiaoyu], explaining to peasants the party policy in a particular legal area and earnestly seeking cases for summary judgments.[26]  Thus, sitting in the court, hearing cases, and delivering legal decisions are only one of the many roles -- and perhaps not even an important role -- a Chinese judge is supposed to play.
So who are the ‘judges’ in China?  This question implies two related questions: first, how is the judge (or the judicial function) defined; second, who may become a judge in China.  A ‘judge’ in the west is a specialized and privileged position, requiring special knowledge and qualifications for deciding a legal dispute.  In comparison a Chinese ‘judge’ is a much broader definition.  Someone who does decide cases is of course called a judge, but so are those who merely execute the court orders or manage internal court affairs.  The trial function is commonly exercised by the ‘trial chief’ [Shenpanzhang] and ‘trial members’ [Shenpanyuan] under the guidance of the presidents of the entire court and its particular divisions.  The latter’s function is to assure that every legal judgment is politically ‘correct’ and socially acceptable.  A Chinese ‘chief judge’ (that is, the head of the court) may never try a single case by himself, yet he is still respectably called a ‘judge’.  In fact anyone who worked in a court and dealt with some paper works might be referred to as a judge.  As a result, China has a large body of ‘judges’ (over 290,000, a number that greatly exceeds the number of lawyers --  indeed a peculiar Chinese phenomenon),[27] but only a portion of them really judge any cases.[28] 
Consistent with the broad definition, the entry qualification (say, Xedu) for becoming a judge is abnormally low.  It used to be the case that almost anyone can get into a court and become a ‘judge’.  The current judicial body was the result of rapid expansion after 1979, in response to the need for regulating the rising social conflicts during the economic reform.  The judicial personnel were largely ‘borrowed’ from social and political organizations previously having little to do with works of judicial nature.  A significant portion of the ‘judges’ was made up of the army veterans, who were assigned ‘political and legal work’ [Zhengfa Gongzuo] at the time of their retiring from the service without any prior legal training.  Some of them have become the court presidents or the division chiefs, the real power-holders controlling the judicial decision-making.[29]  The appointments were made by the party leaders mainly according to their political loyalty rather than professional qualification, and anyone deemed suitable to working in the ‘party and political institutions’ [Dangzheng Jiguan] are thought to fit the judicial work as well.[30]  Likewise, factory workers and high school graduates can have their jobs assigned to the court and become ‘judges’.  Court secretaries [Shujiyuan] can also become judges within a few years after they are promoted to ‘assistant judges’ [Zhuli Shenpanyuan], without having to go through formal academic training and extensive legal practices.[31]  Many appointments of the court personnel are still made on the basis of personal friendship or family kinship [Renren Weiqin]; if the direct appointment of one’s own relative may seem too obviously inadequate, then two friendly courts can exchange their desired appointees.  Measured against the professional yardstick, then, the quality of the large Chinese judiciary is necessarily low.  According to a recent survey, only 5 percent of the judges nationwide have earned undergraduate [Benke] degree, and only 25 among a thousand judges have earned graduate degrees.[32]  It was reported that, in Beijing, where the education level of the judges is among the highest in the nation, 75 percent of its 45,000 judges have obtained degrees from ‘specialized colleges’ [Dazhuan], but 60 percent of these degrees were issued from televised education and non-professional [Yeyu] colleges; and among the small 10 percent of the judges who have obtained undergraduate degrees, it was unclear what percentage of them were formally educated in law.[33]  Nor is the Chinese court an attractive place for people of high qualities.  Few graduates from the schools specialized in law and politics [Zhengfa Yuanxiao] are willing to work in the courts or the procurator’s office: between 1984 and 1998, the judicial organizations absorbed only 20 percent of the almost 2000 graduates from these colleges; to the graduates holding advanced degrees, the court is simply not the place to be.[34]  And recent attempts of the SPC at open recruitment have failed to attract lawyers and legal scholars to this supposedly highest place of legal practice.[35]
Although definitions alone seldom make substantive differences, the broad category of Chinese judges does carry practical consequences.  For one thing, it is difficult to formally distinguish the ‘judges’ exercising different functions and treat them differently in status and salaries.  Dividing the limited financial resource by a large number of ‘judges’, the average per capita remuneration is necessarily low.  Thus, a large number, low remuneration, and low professional quality have formed a stable equilibrium in the Chinese judicial circle.  The first step toward a more effective judicial system is to break the vicious cycle by reducing the scope (and thus the number) of the Chinese judges and improving the social and economic status of this more selective group.[36]  The key to the success of the judicial reform is to make the courts a more attractive place for the young talents.  As an editor points out sharply, a good institution is perhaps the necessary condition for the judicial reform, but it is certainly not sufficient; indeed, before institutional reforms can take effect, the personal quality problem must be resolved.[37]  As this paper seeks to show, problems at the personal and institutional levels are inextricably linked to each other, and neither can be resolved without the simultaneous resolution of the other.
 
2.    Three Problems Tied Together: Money, Institutional Dependence, and Local Protectionism
It is not hard to imagine from above that, in general, the Chinese courts are relatively poor, partly reflected in low Xwc.  Not only the judges personally are poorly rewarded, but the working conditions of many courts are truly primitive.  In some remote areas, the court can hardly maintain its outer image dignified enough to be a ‘court’.[38]  The presidents of the courts have been nicknamed  ‘Mr. Public Relation’ or, more scathingly, ‘beggars carrying the scale (of justice)’.[39]  The funding problem is exacerbated from the perspective of the functions that Chinese judges are expected to perform.  Following the Continental model, a Chinese judge is supposed to undertake independent investigation, often in areas outside his jurisdiction, if he finds the available evidence insufficient to reach a justified decision. [40]  Maintaining this type of inquisitive courts is naturally more expensive than the American or British courts, where judges strike the evidential balances without having to leave the courtrooms.  In China, however, the limited funds allocated for the judiciary often prevent the judges from fulfilling their official functions, and force them to get the jobs done by using mechanisms both legally and morally dubious, thus contributing a significant part to judicial corruption (more below).  It has been common for a Chinese court to solicit various types of financial endorsements not defined by law and for the judges to commingle with the litigants in their field trips, during which the litigants would pay for the judges’ personal expenses.  The limitation of judicial funds has also made a substantial part of court decisions empty announcements, since the Chinese courts are responsible for enforcing their own orders,[41] some of which involve enforcements in other jurisdictions and thus would incur additional expenses that the courts cannot afford.  By the end of 1997, there are over 2 million court decisions awaiting enforcement.  The lack of judicial resources has seriously threatened the judicial independence, undermined the effectiveness of law, and cast doubts on the quality of justice.
A more direct threat to judicial independence is the way in which the judicial funds are distributed.  Ironically, the People’s Republic purports to be a unified central state, but at least in one important respect it is terribly fragmented, and the situation is made even worse by the on-going economic reform.  Following the national implementation of the financial self-responsibility (Chengbao) system in the rural areas, the scheme of ‘eating by separate stoves’ [Fenzhao Chifan] has also been promulgated among the over 3000 Chinese courts.[42]  Until very recently all local courts, from the lowest ‘basic-level courts’ [Jiceng Renmin Fayuan] in counties and city districts to the high courts [Gaoji Renmin Fayuan] located in the provincial capitals, are financially dependent on their local bosses, the parallel local governments.  The judges’ salary and the funds for court operations come mostly from the local government budgets and are subject to the threat of reduction whenever the court decisions adversely affect the local interest.  Just like the American school tax cases,[43] where leaving the public school finance entirely to the local property tax created significant regional inequality, leaving the court finance to local governments has also created regional disparity among judges of the same ranks in the salary, working conditions, housing and welfare, and funds for carrying out judicial investigations.  Particularly, the courts in the poor areas are obliged to seek income and funding through a variety of means, which may seriously compromise their independent status.  Thus, although devolution of the central power to the local responsibility did bring vitality to the economic reform, in judicial administration it seems to have created more serious problems than it has solved.
More directly, the local People’s Congress (hereinafter ‘LPC’) and Government control the selections and promotions of the court personnel (low Xapr).  According to Article 11 of the Judges Law, the presidents of the various levels of local courts are elected and dismissed by the LPC at the same level, and the vice presidents, the presidents of the divisions, and ordinary judges are appointed and dismissed by the corresponding standing committee of the LPC upon recommendation of the court president.  It seems that these provisions will stay valid for an indefinite period of time despite the judicial reform, as they highlight the ‘Chinese character’ of the political structure (theoretically) centered on the People’s Congresses. As a result, a judge failing to carry out instructions of the local leaders can be remonstrated or even removed.[44]  The local Congress may even summon the leaders of a court to discuss specific cases together with the litigants and hand down the decision, for which the court is to be held responsible.  In the Anyue county of Sichuan province, for example, the standing committee of the LPC would ‘sit together’ with the vice president of the court, the chief of the division, and the local defendant to figure out how to ‘draft the judicial decision’.[45]  The People’s Congress might not always be able to assert its own independence against the Party or the executive departments of the government, but it can surely be quite effective in interfering with the judicial process.
Therefore, unable to shield the judges from material pressures exerted by the local government, China’s current institutional arrangement has failed to protect the most basic aspects of judicial independence.  The problem is most obvious in administrative litigations, where the defendants are administrative agencies that are likely to be holding pieces of the judicial pork; an unfriendly decision may very well trigger the denial of salary raise and funding, housing and welfare, the means of transportation, and other personal or institutional benefits.  Partly for this reason the administrative cases are few on the whole (only 1.5 percent of the total number of cases in 1996, a small amount compared to the civil and economic cases), and the rate of ‘voluntary withdrawal’ [Chesu] has been consistently high.[46]  A controlled judiciary can hardly be expected to be independent and act impartially in the interest of law.  Indeed the supposedly unified judicial system in China has become the ‘courts of local governments’ in the sense that they naturally incline to act on behalf of the local interest at the expense of the uniform application of law.  It is not uncommon that, in a dispute involving litigants of different localities, the judge would distort the obvious interpretation of law or ignore the preponderant evidence in order to decide in favor of the litigant in his own jurisdiction.  The following case, which has aroused national attention, is but a typical illustration of such phenomenon.
       In Beihai of Guangdong province, a woman fell from her motorcycle at a sharp left turn, found bleeding unconsciously on the ground.  Liu Qiuhai, a representative of the LPC in a neighboring city, happened to pass by and see the scene.  He and the driver of his van and a few pedestrians helped to pull the injured to a local hospital, where she received treatment till she recovered.  Liu left before her recovery without asking for reward, but he was surprised to find an array of penalties waiting for him.  A month later, when he passed by the same spot with the same van, he was stopped by a road police, a friend of the woman’s brother-in-law, who informed him that he had been charged with committing ‘hit-and-run’ and confiscated his vehicle.  The police action apparently violated the administrative procedure.  But when Liu and his driver initiated administrative litigation in the city court against the police action, the charge was summarily dismissed and the legality of the police action sustained.  Liu and the driver of the van were then sued by the self-claimed ‘victim’ in Beihai for criminal and civil liabilities.  In a curious opinion, the district court dismissed the charge against individual parties, but found the driver’s employer liable for the plaintiff’s losses.  When a Guangzhou-based outspoken newspaper, South Weekend News [Nanfang Zhoumo], reported the event,[47] it was sued for libel by half a dozen parties: the injured woman and her brother-in-law involved in the event, the policeman, and the transportation police branch of the city public security bureau, all seeking enormous sums of damages because the report allegedly harmed their reputation.  And the city court found the press liable for all charges.  The decision was sharply contested by many legal scholars and practitioners, and the case has been appealed to the higher courts.  While the final decision is pending, the Beihai example made it obvious that the local courts cannot be trusted to administer impartial justices whenever ‘outsiders’ are involved.[48]
 
3.    The Structural Problems of the Courts:Lack of Personal Independence and Responsibility
As already discussed, the Chinese court used to be viewed as an organization akin to other administration organizations; the ‘judicial system’, including the courts and the procurator’s offices, is seen as a part of the ‘party and political organs’, similar to a party committee or a local executive office.  And so was the style of its administration, indicating a low Xind.  Once a case was opened in the court, it would be circulating among half a dozen internal sections, each giving a summary decision (which has to be summary since each section is to go through all cases).[49]  Partly owning to the low professional quality of the judges and the need to reduce judicial errors, the final decision was not made by individual judges, but by a ‘trial committee’ [Shenpan Weiyuanhui].  The hearing judges would report the facts of the case and their tentative decision to this committee to get its approval.  And to guarantee ‘political correctness’, the decision of the committee must also be approved by the head of the division and then the president of the court.  A common decision would be discussed by people at many different levels: a panel of judges who actually tried the case, the trial committee (which usually did not try the case), the committee of the division to which the case belonged, and the administrative heads of the court, who had (and still have) the power to remand the case to the trial committee if they disagreed with the conclusion.  The majority of the decision-makers involved in this formidable process neither saw the litigants nor heard their arguments, and had at best an indirect knowledge of the facts.  Hence the ‘separation of trial and decision’ [Shenpan Fenli], in the sense those who tried the case could not decide, and the real decision-maker did not try the case.  Such a procedure has not only reduced judicial efficiency and resources,[50] but also made it more likely that the litigants could succeed in affecting the judicial decision somewhere in the chain process through the ‘back door’ [Houmen] -- through their personal relationships with the acquaintance inside the court.
Of course, the most pernicious effect of this style of judicial administration is that it removes the personal responsibility from the judges.  A judge became little more than a bureaucratic clerk, whose decision would depend on layers of approvals within the power pyramid in order to take legal effect.  And a dependent judge is surely an irresponsible judge.  It has been common for an ordinary Chinese judge to avoid sensitive problems, and refer them to the ‘leaders’ [Lingdao] -- the heads of the court and its particular divisions, who are in a sense ‘the judge of the judges’[51] -- or if the latter cannot decide, to the higher courts.  As it is commonly said, ‘whoever has a higher authority, whoever’s words count’.  The result is that the judge -- if he can still be called as such -- is obliged by his self-interest to obey ranks and status rather than the voice of reason and law; otherwise he merely puts her career at risk and must be prepared to suffer from penalties for his disobedience.  Conversely, the previous system would enable a shrewd judge to use the trial committee as a shield for his own invidious judgments; through misleading and biased report of facts (which is rarely if ever published), he could successfully foist a biased decision upon the committee as the formal decision-maker, and stay away from any culpability.[52]  Last but not least, although the LPC appoints and removes the judges, the head of the court has the power, pursuant to Article 11 of the Judges Law, to appoint and remove ‘assistant judges, who actually perform the judge’s functions.[53]  Owing a favor to the head, these people are usually the ‘president’s men’, who tend to pay more heed to the order of their patron than the command of law.
 
4.    Judicial Corruption: Constraints to the Judicial Reform
It has been easy to blame the Chinese judiciary for its lack of independence.  Yet judicial independence presupposes a minimum degree of professional and moral integrity (Xmi) on part of the judiciary itself, for independence necessarily implies abolition of some forms of external control, which may otherwise be used to deter the self-seeking behavior.  To be sure, despite the institutional handicaps, China does not lack upright and competent judges.  But the worldwide experience suggests that, although a society may tolerate occasional corruptions in an ordinary bureaucracy, the standard for probity is especially high for the judicial office.  The long-standing neglect of the need for this special requirement has made the Chinese judiciary as a whole far below the world standard.  As many have sensibly argued, the Chinese courts seem to be corrupted enough even when they are supposedly under close scrutiny, further independence can only make things worse.  Can the Chinese society afford an independent judiciary and trust it to run by itself? 
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.
 
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 judici