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

作者:张千帆   点击量:84654

The People’s Court in Transition: The Prospects of the Chinese Judicial Reform(2)
Qianfan Zhang
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. 
       The academic community also shares part of responsibility for providing shoddy recommendations.  Recently some Chinese scholars propose that announcement of judicial decisions on court, right before the litigants at the end of arguments, as effective means both for curbing judicial corruption (since it reduces the chance that the litigants can influence the judges’ decisions by bribery and personal relationship behind the scene) and improving trial efficiency (since it saves the time for deliberation).  And the press reports are quick to applaud for the clean dockets of some courts by the end of each year.  Of course, the judicial efficiency of the Chinese courts need be greatly enhanced, but that does not simply mean the increase in the numbers of cases that a judge tries per day.[111]  The Chinese scholars are quick to learn the English idiom that ‘delayed justice is no justice’, but they seem to have forgot that mistaken ‘justice’ is no justice either!  The emphasis on the speed of judicial decisions itself is dangerous since it may seriously undermine the quality of the decisions, which is by no means high as it currently stands.  It is well recognized in the west that equity and speed of justice have always been a pair of contradictions,[112] but China is yet to overcome the ‘hopeless worldly optimism’ that Max Weber associates with the Chinese culture, which have in the recent decades created human tragedies of great scale.[113]  Although parts of the current Chinese judicial process might be cut short without undermining equity, the emphasis on numbers at best misunderstood the western system and at worst could lead the on-going reform astray.  Articles often cite how many cases an average American judge decide every year, but fail to note that the numbers are greatly inflated by overwhelming amount of small-claims cases such as parking violations and rent payment disputes, and that the Chinese counterparts can easily ‘get the numbers right’ once similar courts are established there (and indeed a few of such courts are being set up in major cities like Beijing).  But that would simply miss the key aspect of the judicial reform. 
       Despite the apparent successes, then, a neutral diagnosis is still needed for the Chinese judicial reform.
2.    Success or Failure?  A Tentative Prognosis
The Chinese judicial reform contains many components that are likely to meet different degrees of success.  Although almost all areas of the judicial reform are expected to encounter difficulties of various kinds, but some reform measures are more easily implemented than others.  Here I distinguish three types of measures, designated by the variables discussed in Part I; the measures taken by the Chinese judicial reform may fall in any one of the categories or a combination of them.  The first category is the ‘material’ variables, referring to the physical conditions, such as Xwc.  The material variables are perhaps the easiest to improve if it is technically feasible, since it is unlikely to offend and thus invite opposition from any particular block of power holders.  They will be improved immediately as long as the government is able and willing to do so.  The second category is the ‘personal’ variables, referring to relatively pure personal quality of the judiciary, for example, those as measured by Xedu and Xtrain.   This respect of the judicial reform is likely to illicit social consensus, but improving the variables could be difficult owning to their nature.  The third and most important category is the ‘institutional’ and ‘cultural’ variables.  For our purpose they include the most significant group of the variables identified in this paper, such as Xind and Xapr.  They are also the most difficult to change because the improvement is likely to be resisted by some dominant political forces, which perceive change in the current institutional setting as adversely affecting their interest.  Of course, these categories are by no means neat and clean, but rather interact with each other (for example, one way to improve the professional quality of the judiciary is to make the court institutionally attractive to the college graduates trained in law).  And a few variables may defy single classification; Xmi and Xcor, for example, are as much personal as institutional or cultural.  Nevertheless, the simple characterization offered here will still be helpful to the analysis of different aspects of the judicial reform. 
First, The material measures are technically feasibly and are unlikely to encounter significant human resistance.  Increasing the judges’ salaries and the funding necessary for carrying out investigations, improving their working conditions and providing them with trained assistants (Xwc) -- these measures can be accomplished as long as the material (particularly, financial) conditions are satisfied.  Yet, although progress in this respect might come surely, it turns out to be exceedingly slow for a large number of courts located in the poor areas, which are seriously handicapped in providing judicial finance.[114]  The situation in some areas might get aggravated owning to the economic reform, which has resulted in the shutting down of many state-owned enterprises, severely reducing the local tax income.  Since even the Outline for judicial reform did not mention a word about helping out these local courts by the central government, we expect to see that the disparity in judicial quality will continue (or even enlarge) at the national scale.  And, of course, money is obviously not the only issue.  A higher salary and better working conditions do not necessarily improve the quality of judicial judgments; they may not even be effective in curtailing judicial corruption.[115]  So other aspects of the reform must follow simultaneously, yet their success is even less guaranteed than the material improvements.
Second, the personal variable can be slow to change because some aspects of human endeavor are set by the law of nature, and it simply takes time to modify the current situation no matter how strongly humans wish to change.  Improving the quality of the judicial personnel (Xprof), for example, is bound to be a long-term project, and cannot be accomplished alone by a government-initiated movement; it is often the case that the ‘software’ develops much more slowly than the ‘hardware’.  As the old Chinese proverb says, ‘It takes ten years to grow a tree, a hundred years to establish a person’; it will take efforts of several generations for the Chinese judiciary to reach a level of professional competence comparable to their western counterparts, provided that everything else goes smoothly.[116]  The Chinese government has attempted to speed up the change by introducing competition to the courtrooms, but as discussed above, the measures taken here seem to be misconceived at the first place and the effects are at best mixed.  Probably the most ‘malleable’ variable that the reform can tamper with is the judicial training (Xtrain), to which the government has already devoted much effort.  Yet post hoc training may have some inherent limits that it simply cannot transcend; to be a qualified judge one need not begin preparation in kindergarten, but it will be too late after he has grown up without the right kind of education.
Finally, there are aspects of the judicial reform that will follow even less certain paths since they depend on the interactions of various sections of human interests and the ability to dissolve or circumvent the major resistant forces.  Of course, some technical (and in a sense ‘material’) reforms might be easier to accomplish, such as streamlining the judicial process and cleaning up bottlenecks, but these are also rather trivial and insignificant to the main purpose of the judicial reform.[117]  The core tasks are much harder to accomplish.  Switching to the vertical management style, with the central government controlling the purses of all courts nationwide, is likely to be resisted by the local governments and, even if it is fully implemented, it is still difficult to predict how much impact the measure will have on reducing local protectionism.  One must remember that the judges still depend on the local congresses for their reappointments and promotions, and on the administrative power for funds and benefits.  And even though the judges are made independent by name, they will still be subject to administrative and political control now made less invisible.  The tangible incentive provided by Articles 27 and 28 of the Judges Law for good judicial performance reminds one of the traditional reward-punishment scheme designed for an ordinary bureaucracy. Indeed the competition mechanism introduced by the Outline might further reduce rather than enhance judicial independence.  It is likely to instigate political battles among the judges, facilitate the Party’s paramount control over the judicial process, and pave the way toward building a new patron-client network within the courts.  For one thing, in the examination of judicial performances, the evaluation of the party committee would count for 40 percent of the total score.[118]  Politics still holds overwhelming discretionary power over the supposedly tribunals of justice.
3.    Inherent Limits to Judicial Independence: Party Politics versus Courts and Rule of Law
The most direct and fundamental limit to the Chinese judicial reform is still its political system.[119]  Political control of the judiciary has been a perennial feature of the CCP history; the working style of authorizing the party committee and secretary to approve the judicial decisions, and the Political and Legal Committee [Zhengfa Weiyuanhui] to settle disputes, had been established as early as during the Yan’an period.[120]  The current Constitution, enacted in 1982, formally recognizes in its Foreword the leading role of the CCP; as the party was not mentioned elsewhere in the Constitution, the limit of its power remains undefined. On the other hand, the 1982 Constitution explicitly stipulates that ‘The People’s Courts independently exercise the judicial power according to the provisions of law, and are not to be interfered by administrative agencies, social organizations, and individuals’.[121]  It seems that, to avoid logical contradiction, any judicial independence is to be interpreted within the contour of the political power of the party; that is, the courts are ‘independent’ only insofar as they deal with cases without adverse effects to the party, and are obliged to accept the party’s command as soon as the party’s interest is implicated.  The latter is true whenever the case deals with any ‘political question’, as in the recent judgment on the appeal of the former Beijing major, Chen Xitong, who was sentenced to 16 years imprisonment for embezzlement.  Although the SPC offered some legal reasoning,[122] it can be safely expected that the judgments of the lower courts was simply to be affirmed since Chen’s sentence was already politically decided.  The same can be said about the case against the former vice chairman of the NPC Standing Committee, Cheng Kejie, who was sentenced to death for alleged embezzlement.[123]  In this type of political judgments, the Chinese court has no alternative but to formally confirm what the Party has already decided.  In fact, the Outline itself requires the judicial reform to follow the principle of the party leadership, along with principles of the ‘democratic dictatorship’ as the form of the state and the political institutions represented by the NPC (Para. 4).  The official ‘point of departure’ [Chufadian] is always the ‘particular circumstances of the Chinese state’ [Guoqing], though ‘beneficial experiences’ of foreign courts and judicial management can be borrowed.  In a high-level conference about the on-going judicial reform, the president of the SPC expressly turned down the possibility of pursuing the type of judicial independence in the western model of separation of powers, and reinstated the need for the party leadership and the ‘party control of [judicial] cadres’ [Dangguan Ganbu].[124] 
The party can intervene a judicial decision in several ways.[125]  First and most obvious, the president and vice presidents of any court are usually party members, who are subject to the party discipline.  Since the president is held responsible for the whole court, the party can achieve effective control over the court through the presidential responsibility system.[126]  Further, it is still common for the party secretary of the Political and Legal Committee, often the same person as the chief of the Public Security Bureau, to discipline the court president with the party principles.  Finally, the party in fact is responsible for initiating and pushing forward all major political and legal reform activities.  The most recent amendment on ‘rule of law’, for example, was first raised as a proposal in the CCP Charter during the 15th Party Congress before it was copied verbatim to the Constitution.  Nor could the judicial reform be launched without approval of the major party leaders.  Thus both the mobility and inertia of the Chinese judicial system depends crucially on the party.  This brings serious question to the possibility of establishing a true independent judiciary in which individual judges are held ultimately responsible not to the political will, but to the law.  After all, the administrative leadership and the trial committees are still the integral part of the court structure, through which the party can step in and supervise judicial judgments whenever the cases are deemed ‘important’, ‘complicated’ or ‘difficult’.
       This paper does not systematically analyze the rational incentives that set the Chinese judicial reform in motion; it might be legitimate to assume that good will for social justice is still present among the Chinese legal community and some political power-holders.[127]  Since the judicial reform is initiated by the party itself, however, it is inherently limited by the party’s own imperatives.  The goal of the judicial reform is ostensibly to make the judiciary independent so that it can decide cases fairly and efficiently.  Yet as soon as a judicial judgment touches the nerve of the party, political power is likely to contest the efficacy of the judicial judgment.  Throughout the Chinese history the winner in this contention, if it ever arises at all, is always the political power.  Thus it is perhaps impractical to expect that the current judicial reform, ambitious as it is, will make the Chinese judiciary truly independent by the western standard.  Even if the on-going judicial reform is successful otherwise, it will still be limited by the ultimate political bottom-line: a party that is essentially above the law.
So, is the judicial reform likely to succeed in China?  This paper seeks to answer this question by analyzing the current political, legal, and social conditions.  As the paper shows, the prospect is a mixed one, and changes with the fluctuating political climate in China.  While Jiang Zemin, when he was the General Secretary of the CCP, did promise in one occasion a degree of judicial autonomy, the phrase was quickly qualified to exclude the possibility of confusing with the western notion of the separation of powers.  Indeed the Outline itself warns against any ‘deviation’ from the party leadership.  The recent public campaign against the Falungong sect further raise doubts about the credibility of the party’s avowed effort in creating a government under rule of law rather than rule of man. 
On the other hand, especially with the recent accession to the World Trade Organization, China is unmistakably merging with the rest of the world.  And so must its legal system in general and the judicial system in particular.  Only an independent and competent judiciary is capable of sustaining the long-term social and economic progress, which ultimately provides political legitimacy to the current government.  The future of China in the new millennium critically hinges on the fate of the judicial reform: while its success might prove to be the first step toward the end of one-party dictatorship and the beginning of a relatively free, self-governed, and prosperous civil society, its failure may well portend the overall degradation of the Chinese living environment by jeopardizing the key elements necessary for carrying out a successful social reform -- among others, basic order and stability, the control of official corruption, continuing economic growth and technological innovation.  It remains to be seen whether the judicial reform in China can successfully resolve the contradictions between the political imperatives and the socioeconomic needs.
This paper was written at the time when the first five-year judicial reform was about to end.  Now two years have elapsed, and the ruling party switched its head.  The plan for the second reform finally unveiled, after long delay.  The delay itself reveals the delicacy and difficulties inherent in judicial reform taking place in the political context of one-party monopoly.  Not surprisingly, just like its predecessor, the second plan is qualified in fundamental aspects.  In fact, it contains hardly anything new except the procedural reform of death sentences, the final review of which will revert to the SPC after the delegation of such power to the provincial high courts in the recent two decades revealed many defects.  To be sure, there will be new progresses, which will bring forth new hope for a better judicial system.  But it is bound to remain within the orbit carved out by the ruling party, whose interests will prevent any reform from touching the untouchable substance.  So the nature of politics ultimately defines the limit of judicial reform, which sets the limit for rule of law in China.  In this sense, while democracy is conditioned upon and in some cases preceded by the establishment of rule of law,[128] it may well be that rule of law also depends on democracy for healthy development.  At least the experience of Chinese judicial reform seems to affirm the conventional wisdom that fruits of laws rarely grow out of despotic soil without fundamental variations.

[1] Cai Dingjian, History and Evolution: The Historical Course of the Construction of the Legal System of New China [Lishi yu Biange: Xinzhongguo Fazhi Jianshe de Licheng] (Beijing: China University of Politics and Law Press, 1999), pp. 179-197.
[2] In China the People’s Procurator (Jianchayuan) is thought to constitute part of the judicial system [Sifa Jiguan].  This definition seems to be broader than the common western definition, where the term ‘judicial system’ is usually referred only to the courts.  The western definition is used here, unless specified otherwise.  The ongoing ‘judicial reform’ [Sifa Gaige] focuses mostly on the reform of the Chinese courts and judges, even though it occasionally may also touch the Procurator’s offices.
[3] As the paper will show below, mere numbers do not really tell much; indeed they might serve as negative rather than positive indicators.  One problem is that the Chinese definition of ‘judges’ is much broader than the western definition, so that the reform has to deal with so many ‘judges’ with low professional quality.
[4] For a review of the contribution of the non-government sectors (the ‘NGOs’) to the Chinese rule of law, see C. David Lee, ‘Legal Reform in China: A Role for Nongovernmental Organizations’, Yale Journal of International Law, 25, (2000), p. 363.  For example, the Center for Judicial Studies at Beijing University Law School, headed by Professor He Weifang, has been quite successful in pushing for the judicial reform.
[5] The overwhelming majority of the NPC supported the amendment.  For a review of the amendment process, see Qiao Xiaoyang, ‘About the Background, Process, Principles, Content, and Significance of the Recent Amendment’ [‘Guanyu Zheci Xiuxian de Beijing, Guocheng, Yuanze, Neirong ji Yiyi’], Chinese Legal Studies [Zhongguo Faxue], 1999 (2), pp. 3-8.  For a discussion of its significance, see ‘Correspondences on the Problem of the Constitutional Amendment’ [‘Xianfa Xiugai Wenti Bitai’], Studies in Law [Faxue Yanjiu], 1999 (3), pp. 147-156.
[6] For the achievements and limitations of the Chinese legal reform, of which the judicial reform is a part, see Stanley Lubman, Bird in a Cage: Legal Reform in China After Mao (Stanford: Stanford University Press), 1999; Pitman Potter, ed., Domestic Law Reforms in Post-Mao China (Armonk, N.Y.: M.E. Sharpe), 1994; Randall Peerenboom, ‘Globalization, Path Dependency and the Limits of Law: Administrative Law Reform and Rule of Law in the Peoples Republic of China’, Berkeley Journal of International Law, 19, (2001), p. 161.
[7] The recent progress in this area is the experiments with ‘right to silence’ (Chenmoquan, or more literally, ‘zero oral confession’, Lingkougong), first initiated by a local procurator office of Fushun city in Liaoning province.  See reports on South Weekend News [Nanfang Zhoumo], (7 & 21 September 2000), and China Youth News [Zhongguo Qingnian Bao], (3 January 2001).  The protective provisions, expected to abate the widespread torture and coercion in criminal prosecutions, have not been made into law and are limited to a few types of cases during criminal investigation (rather than judicial trial process).
[8] Randall Peerenboom, ‘Globalization, Path Dependency and the Limits of Law: Administrative Law Reform and Rule of Law in the Peoples Republic of China’, pp. 191-198; Pitman Potter, ‘The Administrative Litigation Law of the PRC: Judicial Review and Bureaucratic Reform’, in Pitman Potter, Domestic Law Reforms in Post-Mao China, pp. 270-304.
[9] For a discussion of the existing judicial problems in China and the reform measures necessary to resolving these problems, see various contributions to a research conference organized by the CASS Institute of Legal Studies on Governing the State according to Law and the Reform of the Judicial Institution [Yifa Zhiguo yu Sifa Tizhi Gaige Yantaohui], a summary of which is published on Studies in Law [Faxue Yanjiu], 1999 (4), pp. 151-160.
[10] Gong Depei, ‘The Phenomenon of Judicial Partiality Must be Eliminated’ [‘Yao Dujue Sifa Bugong de Xianxiang’], People’s Court Daily [Renmin Fayuan Bao], (28 April 2000).
[11] Xinhua Daily, (25 October 1999, B1).
[12] The two basic goals, justice and efficiency, are often found to contradict each other.  The Chinese scholars have learned to quote the oft-quoted British motto: ‘A delayed justice is no justice’, but may have ignored that speedy erroneous decision-making is no efficiency either.  The tension between judicial efficiency and fairness will not be discussed in detail, except in reference to a problem in the judicial reform (see Part IV).
[13] Here I assume that the law, written or ‘unwritten’ (e.g. legalized customs and case decisions), is reasonably clear and the facts are known.  This may be a problematic assumption, especially given the breadth and vagueness of the ordinary Chinese legislations, though such a problem need not concern us here.  See Sylvia Ostry, ‘China and the WTO: The Transparency Issue’, UCLA Journal of International Law & Foreign Affair, 3, (1998), p. 1.  
[14] For a discussion of similar factors, see Stanley Lubman, ‘Bird in a Cage: Chinese Law Reform After Twenty Years’, Journal of International Law and Business, 20, (2000), pp. 394-398; Randall Peerenboom, ‘Globalization, Path Dependency and the Limits of Law: Administrative Law Reform and Rule of Law in the Peoples Republic of China’, pp. 214-217.
[15] The morality element here does not refer to a commitment to specific substantive moral theory, but the general professional morality that a public office-holder is to fulfill the official duty and any expectation commonly presumed for taking the office.
[16] Efforts and intelligence (which can be measured by IQ) may also matter here, but omitted for simplicity.  Education can catch a part though certainly not all of the difference these factors might make to the professional competence.
[17] In a simplistic linear regression model, the relationship between the dependent and independent variables  discussed thus far can be expressed by the following equation (the coefficients and the constant term are ignored):
Yj  =  Xedu +  Xtrain + (Xapr +  Xwc +  Xind ) (Xmi +  Xcor)
[18] Article 126 of the Constitution provides that the Chinese courts have ‘the judicial power according to the provisions of law, and are not to be interfered by administrative agencies, social organizations, individuals’.  Article 8 of the Judges Law goes even further: a Chinese judge is entitled to ‘(1) the power and working condition for carrying out the judge’s professional responsibility; (2) trial of cases according to law, free from the interference of administrative agencies, social organizations and individual persons; (3) freedom from dismissal, demotion, retirement or penalties without the cause and procedure determined by law’.  For the distinction between the Chinese understanding of judicial independence embodied in the court as a collective entity and the western independence of individual judges, see Andrew Nathan, China’s Transition (Columbia University Press, 1997), p. 239.
[19] As Mencius puts famously: ‘virtue alone is insufficient for ruling; mere laws cannot carry themselves into practice’ (Mencius, 4A: 1, Benjamin I. Schwartz, trans., The World of Thought in Ancient China (Cambridge: Harvard University Press, 1985), pp. 322-323. For the revitalization of the notion of Renzhi (‘rule of man’, which I think is a serious misnomer for the meaning it is supposed to convey) among the Chinese legal scholars, see Su Li, ‘Taking Rule of Man Seriously’ [‘Renzhen Duidai Renzhi’], Journal of East-China Institute of Law and Politics [Huadong Zhengfa Xueyuan Xuebao], 1998 (1), pp. 8-13.
[20] There arguably are exceptions to this categorical statement.  The legendary figure, Gao Yao, seemed to enjoy a high status owning to his ability of deciding cases fairly.  See ‘The Counsels of Gao Yao’, in The Book of History [Shangshu]; for an English translation see Clae Waltham, Shu Ching: A modernized edition of the translations of James Legge (Chicago: Henry Regnery Co, 1971), p. 28.  Legends remain legends, however, and cannot substitute for reality.  The most famous judge was Lord Bao [Bao Gong], who did exist in history.  Sometimes called Bao Qingtian (‘Blue sky’, referring to his heavenly integrity that enabled him to rectify all grievances and injustices caused to the common people), he was made known to the ordinary folk by popular theatric performances.
[21] During the Qing Dynasty, for example, the top judicial organ Dalishi was subordinate to the highest administrative official, the prime minister [Zhaixiang].  Of course, it was also subject to direct intervention of the Emperor.  See Qu Tongzu, Chinese Society and Chinese law [Zhongguo Shehui yu Zhongguo Falü] (Beijing: Zhonghua Shuju, 1981).
[22] Zhongyang Zhengfu guanyu Jiaqiang Renmin Sifa Gongzuo de Zhishi, (3 November 1950).
[23] He Rikai, ‘The Judicial Reform: From Power to Authority’ [‘Sifa gaige: Cong Quanli Zouxiang Quanwei’], Law Science [Falü Kexue], 1999 (4), pp. 30-38.
[24] 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.
[25] Tie Li and Lu Jingbi, ‘A Defective Judicial Reform: A Study of Important Events in the Legal Community since the Establishment of the State’ [‘Yichang you Quexian de Sifa Gaige: Jianguo yilai Faxuejie Zhongda Shijian de Yanjiu’], Jurisprudence [Faxue], 1998 (6), pp. 2-5.
[26] 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 [Dushi Wenhua Bao], (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 [Shanghai Fazhibao], (14 July 2000, p. 1).
For an insightful critique, see He Weifang, ‘Two Problems in the Chinese System of Judicial Management’ [‘Zhongguo Sifa Guanli Zhidu de Liangge Wenti’], Chinese Social Science [Zhongguo Shehui Kexue], 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’ [‘Tongguo Sifa Shixian Shehui Zhengyi: Dui Zhongguo Faguan Xianzhuang de Yige Toushi’], in Xia Yong, ed., The Era Toward the Rights [Zouxiang Quanli de Shidai] (China University of Law and Politics Press, 1995).
[27] Even back in 1991, there were 138,000 persons above the rank of assistant trial member [Zhushenyuan], 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 [Zengbian].  See Wang Chengguang, ‘Judicial Efficiency and the Reform of Internal Operating System of the Courts’ [‘Ban’an Xiaolü yu Fayuan Neibu Yunxing Tizhi de Gaige’], Jurisprudence [Faxue], 1998 (10), pp. 46-51.
[28] 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’ [‘Zhiye Shujiguan Zhidu Goujian Chutan’], People’s Court Daily, (26 May 2000).
[29]  ‘The Existing Problems in Our Current Judicial System and the Strategies for Improvement’ [‘Dangqian Woguo Sifa Zhidu Cunzai de Wenti yu Gaijin Duice’], Review of Legal Studies [Faxue Pinglun], 1998 (6), pp. 22-30.
[30] Feng Qi and Su Degeng, ‘How to Reform the Court Institution’ [‘Fayuan Zhidu Ruhe Gaige’], People’s Court Daily, (28 April 2000).
[31] Ibid.
[32] Ma Junjü and Nie Dezong, ‘The Existing Problems in Our Current Judicial System and the Strategies for Improvement’, pp. 25-30.
[33] Cai Dingjian, ‘Preliminary Comments on the Reform of the Court System’ [‘Fayuan Zhidu Gaige Chuyi’], Strategies and Management [Zhanlü yu Guanli], 1999 (1), pp. 97-102.
[34] See Wang Yinghui, ‘Governing the State According to Law and the Judicial Reform’ [‘Yifa Zhiguo yu Sifa Gaige’], Studies on Law and Commerce [Fashang Yanjiu], 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 [Faxuejia], 1998 (2), pp. 110-113.
[35] See He Weifang, ‘The Road toward Judicial Reform’ [‘Sifa Gaige zhi Lu’] (Part II), Beijing University Law Information [Beida Falü Xinxi], 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’.
[36] 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.
[37] See ‘The Road toward Judicial Reform’ [Sifa Gaige zhi Lu] (Part II), Beijing University Law Information [Beida Falü Xinxi], 4 (3), (2000). 
[38] 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’ [‘Pinkun Diqu Jiceng Fayuan Jingfei Duanque Yanzhong’], People’s Court Daily, (7 May 1993).
[39] Hao Tiechuan, ‘On Governing the State According to Law in the Transitional Period of Chinese Society’ [‘Lun Zhongguo Shehui Zhuanxing Shiqi de Yifa Zhiguo’], Chinese Jurisprudence [Zhongguo Faxue], 2000 (2), p. 7.
[40] 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 [Kongbian] model under the supervision of the SPC.
[41] Every local court has an ‘enforcement branch’ [Zhixingting], which is responsible for carrying out the court decisions and the decisions of the administrative agencies that have applied for ‘coercive enforcement’ [Qiangzhi Zhixing]. 
[42] Cai Dingjian, ‘Preliminary Comments on the Reform of the Court System’, pp. 97-102.
[43] See San Antonio Ind. School Dist. v. Rodriguez, 411 U.S. 1 (1973).
[44] Cai Dingjian, ‘Preliminary Comments on the Reform of the Court System’, pp. 97-102.
[45] Pi Chunxie and Deng Dandan, ‘Study on the Chinese Judicial Reform (II): The Dilemma of Administrative Litigation and Thoughts on Its Reform’, The Jurist [Faxuejia], 1998 (2), pp. 97-99.
[46] Ibid.
[47] ‘The Liu Qiuhai Event’, South Weekend News (Nanfang Zhoumo), (14 January 2000).
[48] 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’ [Daqü] 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.
[49] Xi Xiaoli, ‘Several Thoughts on the Reform of the Chinese Trial System’ [‘Dui Woguo Shenpan Zhidu Gaige de Jidian Sikao’], The Jurist [Faxuejia], 1998 (1), pp. 113-116.
[50] 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.
[51] Wu Xiaodong, ‘Three Problems that the Reform of the Trial Operating System Need to Resolve’ [‘Shenpan Yunxing Jizhi Xu Gaige de San Wenti’], People’s Court Daily, (2 June 2000).
[52] See Wang Liming and Yao Hui, ‘Studies on the Arrangement of the People’s Court Institutions and the Problems of Trial Style Reform’ [‘Renmin Fayuan Jigou Shezhi ji Shepan Fangshi Gaige Wenti Yanjiu’] (Part I), Chinese Legal Studies [Zhongguo Faxue], 1998 (2), pp. 7-9.
[53] Liu Han and Zhang Gengda, ‘Four Problems for the Reform of Judicial Panel System’ [‘Heyiting Zhidu Gaige Si Ti’], People’s Court Daily, (5 May 2000).
[54] 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.
[55] 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’ [‘Woguo Sifa Gaige Yanjiu’], Modern Jurisprudence [Xiandai Faxue], 1998 (5), pp. 65-70.
[56] 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’ [‘Henan Liang Fating Tingzhang Yin Xunsi Wangfa Bei Pan Youqi Tuxing’], Nanjing Service Tribunal [Nanjing Fuwu Daobao], (14 July 2000).
[57] 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’ [‘Sifa Tizhi Feigai Buke’], 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.
[58] 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 [Minzhu yu Fazhi], 27, (1997), cited in Guo Daohui, ‘Realizing Judicial Independence and Curtailing Judicial Corruptions’ [‘Shixing Sifa Duli yu Ezhi Sifa Fubai’], Law Science [Falü Kexue], 1999 (1), pp. 5-15.
[59] See ‘Vindicating Judicial Fairness by Rigid Institutions’, Xinhua Daily, (27 July 2000, A2).
[60] Tan Shigui, ‘A study of Chinese Judicial Reform’ [‘Woguo Sifa Gaige Yanjiu’], Modern Jurisprudence [Xiandai Faxue], 1998 (5), p. 67.
[61] 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.
[62] Yeshan Xianshui, ‘You Cannot Avoid Corruption’ [‘Ni Buneng Bu Fubai’], Procurator’s Daily (Jiancha Ribao), (22 September 1999), see also http://www.jcrb.com.cn/html/1999/09/22/H19990922_04.htm.
[63] 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.
[64] 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’ [‘Quanshehui de Fudan’], South Weekend News, (17 July 1998), cited in He Weifang, ‘The Relationship between the Higher- and Lower-level Courts in the Judicial Reform’ [‘Sifa Gaige zhong de Shangxiaji Fayuan Guanxi’], Jurisprudence [Faxue], 1998 (9), pp. 42-44.
[65] Zhang Weili, ‘China Needs Large Batches of Talents in Law’ [‘Zhongguo Xuyao Dapi Falü Rencai’], Legal Daily [Fazhi Ribao], (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’ [‘Shenzhen Faguan Changqi Aoye Jiaban’], http://www.china-judge.com/sfgg/sfgg112.htm.
[66] See Li Hanchang, ‘An Overview of the Judges’ Quality and Judicial Education in the Background of Judicial Institutional Reform’ [‘Sifa Zhidu Gaige Beijing xia Faguan Sushi yu Faguan Jiaoyu zhi Toushi’], Chinese Legal Studies (Zhongguo Faxue), 2000 (1), p. 49.
[67] 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’ [Yijian] 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).
[68] ‘Renmin Fayuan Shenpanzhang Xuanren Banfa (Shixing)’, Gazette of the Supreme People’s Court [Zuigao Renmin Fayuan Gongbao, hereinafter the ‘SPC Gazette’], 2000 (5), pp. 149-150.
[69] 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).
[70] ‘Xiao Yang Requires that Over Half of the Basic-level Courts Must Implement the Trial Leader and Single Judge Selection System in This Year’ [‘Xiao Yang Yaoqiu Jinnian Guoban Jiceng Fayuan Shixing Shenpanzhang Duren Shenpanyuan Xuanren Zhi’], Legal Daily, (24 June 2000).
[71] People’s Court Daily, (31 May 2001).
[72] 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. 
[73] See Wang Yong, ‘The Reversed and the Neglected Legal Reasoning’ [‘Bei Daozhi he Bei Shenlü de Falü Tuili’], Legal Daily, (27 February 2000, p. 3).