The Judicial System And Reform In Post Mao China Notes

Introduction:

• Courts in China consist of the Supreme People’s Court (SPC) at the central level, local people’s courts at three levels, and special people’s courts.

• Local courts are established on the basis of administrative divisions, they include 32 higher people’s courts (HPCs) which can be found in the capitals of provinces and autonomous regions, and four municipalities directly under the central govt.

• Special courts include maritime, railway transportation and military courts.

  • They are established at the intermediate level and handle only cases of first instance; appeals cases are handled by the higher people’s courts.

• Conventionally, Chinese courts operate a two-tier appellate system

  • A party may appeal a judgement or the decision of a local court to the corresponding court at the next level; judgements or decisions given at this elevated level are final

  • HOWEVER, special trial supervision procedures are in place which have the potential to re-try a case, despite an effective judgement of a second instance court, a subsequent procedure of review by the SPC exists.

• In administering justice, Chinese courts apply the collegiate panel system.

  • All first instance cases are brought before a collegiate panel of judges or a combination of judges and people’s assessors.

  • However, with simple civil cases, minor criminal cases and cases otherwise provided for by the law, these may be tried by a single judge

Jurisdiction of the Courts:

• The jurisdiction of the various courts are set out in the Organic Law of People’s Courts (OLPC), the Criminal Procedure Law (CrPL), the Civil Procedure Law (CiPL), the Administrative Litigation Law (ALL) and a number of the SPC’s judicial interpretations.

• They can be classified into jurisdiction by levels (jibie guanaxua), territorial jurisdiction (diyu guanxia), transferred and designated jurisdiction (yisong and zhiding guanxia), and jurisdiction over foreign-related cases.

1. Jurisdiction According to Level:

• This is also commonly referred to as tier jurisdiction or hierarchical jurisdiction, which alludes to the division of the workload and authority b/w the four levels of the courts.

• The basic principle of jurisdiction in this regard is that most cases are handled by the BPCs; yet, cases concerning large amounts of money, with a more profound societal impact, or concerning special subjects such as foreign citizens or legal persons, large state-owned enterprises, or higher-level govt’l organs and officials, are dealt w/ by either IPCs or HPCs.

  • In principle, the SPC does not handle cases of the first instance.

• The BPCs are the lowest-level courts.

  • They may establish people’s tribunals according to the conditions of the locality, populations and cases.

  • A people’s tribunal handles ordinary civil cases, directs the work of people’s mediation committees, organises legal propaganda and receives people’s letters and visits.

  • Such a tribunal is part of the basic people’s court structure and any judgements or orders given have the same legal effect as these made by a BPC.

  • The overwhelming majority of lawsuits begin and end in BPCs.

  • Many judges at this level do not retain the expected standard of university education in the legal field, which in turn effects the quality of justice attained.

  • They handle approximately 80% of first instance cases; approximately 80% of the judicial personnel across the whole country work at this level; and roughly 80% of judicial corruption cases occur at the BPC level.

• IPCs, as the second-lowest people’s courts, are established in prefectures of a province or autonomous region, in municipalities directly under the central govt, in municipalities directly under the jurisdiction of a province or autonomous region and in autonomous prefectures.

  • They handle cases of first instances assigned by law; cases of first instance transferred from the basic people’s court’s; cases of appeal and of protests lodged against judgements of the basic people’s courts by the people’s procuratorates and cases of protest raised by the people’s procuratorates in accordance with the trial and supervision procedure.

• The criminal, civil and administrative procedural laws all contain certain provisions which categorise the cases to be specifically handled by the IPCs as the first instance court.

  • According to the Criminal Procedure Law, these cases include those involving threatening national security or terrorist activities and criminal cases which may involve life imprisonment or the death penalty.

• HPCs review cases of first instance in which the death penalty is imposed by an IPC and the accused renounces the right to appeal.

  • If a HPC raises no objection to the death penalty sentence, it then submits the case to the SPC for their final approval; if the latter disagrees with the death penalty sentence, it can either re-examine the case or remand the case back to the original IPC for re-trial.

  • Regarding civil cases, HPCs are courts of first instance for cases that are deemed to have a potentially significant impact at the provincial level.

  • Typically, the amount of money under dispute in a case determines which tier of the court structure will have jurisdiction to adjudicate.

• The SPC is the highest judicial organ of the state.

  • It has jurisdiction as the court of first instance over cases which are likely to have a major bearing on the country as a whole.

  • In practice, the SPC has rarely handled any cases of first instance; the exception being the 1978 trial of the ‘Gang of Four’.

  • As cases involving large sums of money have increased, the caseload of the HPCs has also multiplied.

    • If an HPC acts as the first instance court, parties appeal to the SPC, and this consequently increases the SPC caseload.

    • To tackle this problem, in 2008 the SPC issued the Notice on the Adjustments of Jurisdiction Standards of Higher People’s Courts and Intermediate People’s Courts over Civil and Commercial Cases of First Instance, to raise the...

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