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The Judicial System and Reform in Post-Mao China: Stumbling towards Justice
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.
o 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.
o All first instance cases are brought before a collegiate panel of judges or a combination of judges and people's assessors.
o However, with simple civil cases, minor criminal cases and cases otherwise provided for by the law, these may be tried by a single judge The Judicial System and Reform in Post-Mao China: Stumbling towards Justice
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.
a. 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.
o In principle, the SPC does not handle cases of the first instance.
- The BPCs are the lowest-level courts.
o They may establish people's tribunals according to the conditions of the locality,
populations and cases.
o 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.
o 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.
o The overwhelming majority of lawsuits begin and end in BPCs.
o 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.
o 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.
o 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.
o 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. The Judicial System and Reform in Post-Mao China: Stumbling towards Justice
o oIf 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.
o 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.
o In practice, the SPC has rarely handled any cases of first instance; the exception being the 1978 trial of the 'Gang of Four'.
o 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 threshold criteria for determining when a case is to be handled by IPCs and HPCs.
For instance, for a case to be accepted by a HPC in Beijing, Shanghai,
Guangdong, Jiangsu or Zhejiang provinces, the disputed amount cannot be less than RMB 200 million.
b. Territorial Jurisdiction:
- This way of determining which case should be attributed to which court is decided according to geographical location.
- Generally speaking, territorial jurisdiction under the 2012 amendments can be understood from six perspectives:
o The first, general territorial jurisdiction:
refers to the court where the defendant is domiciled or habitually resides;
however, when the case relates to the personal status of persons not residing within the territory of China, the personal status of persons whose whereabouts are unknown or those declared missing, those brought against persons who are undergoing rehabilitation through labour or those brought against persons who are imprisoned, jurisdiction will be conferred upon the courts w/in the domicile of the plaintiff (CiPL: Art.21 and 22)
o The second, special territorial jurisdiction:
Allows for jurisdiction according to special legal relationships or the place relevant to the object or subject matter of the dispute. The Judicial System and Reform in Post-Mao China: Stumbling towards Justice
For instance, a contract dispute will come under the jurisdiction of the court in the place where the defendant is domiciled or where the contract is in fact performed. (CiPL: Art.21 - 22)
The third alludes to exclusive territorial jurisdiction:
In cases involving disputes over real estate, harbour operations and succession, jurisdiction will be exclusively conferred upon the court where the estate or the harbour is located, where the deceased resident prior to death, or where the principal part of their estate is located (CiPL: Art33)
The fourth, jurisdiction by agreement:
Allows parties to a contract or other property dispute to choose by written govt the jurisdiction of a court in the location of the defendant's or the plaintiff's domicile; in the location where the contract is performed or signed; in the location of the subject matter; or in other locations which have connections with the dispute, provided such jurisdiction is not in contravention of territorial jurisdiction or exclusive jurisdiction (CiPL: Art 34).
The fifth relates to shared jurisdiction:
When two or more courts have jurisdiction over the same lawsuit, the plaintiff may decide which court to bring the lawsuit to; if the plaintiff brings the lawsuit to two or more courts, the court in which the case was first filed should have jurisdiction over the case (CiPL: Art 35.
The sixth concerns consent jurisdiction:
Under Article 127 of the 2012 amendment CiPL, in cases where a civil case is bought to a court and a party responds to the action w/o challenging the jurisdiction, the court accepting the case should be deemed to have the jurisdiction on the condition that doing so is not in contravention of jurisdiction according to level or exclusive jurisdiction.
oFor criminal cases, the general principle stands that the court in the location where the criminal offence was committed has jurisdiction to preside over the case.
o If it is more appropriate for the case to be tried by the court in the location of the residency of the accused then that court may have jurisdiction over the case.
o When necessary, a case can be transferred for trial to the court in the principal place where the crime was committed (CrPL 2012: Arts. 24 and 25).As for administrative cases, the general principle is that the court in the location where the administrative organs initially undertake concrete administrative actions has jurisdiction.
o Similar to the civil procedure, the plaintiff may have the right to choose between various courts which may all have jurisdiction.
o If a plaintiff has brought a suit to two or more courts, the one that first received the bill of complaint has jurisdiction.
The overlapping of court's jurisdiction can occur in judicial practice.
o A phenomenon in China is that sometimes courts compete for jurisdiction when economic interests are at stake; courts are especially eager to provide over commercial cases where litigation fees can be beneficial for the courts.
o Numerous media reports have showcased such lawsuits in practice:The Judicial System and Reform in Post-Mao China: Stumbling towards Justice
In 2010, a case arose concerning a construction contract dispute b/w two companies, which was brought before the BPC of Dongyang city in Zhejiang province and the IPC of Weihai city in Shandong province simultaneously.
Though it had been agreed in the contract that the court in Weihai should have jurisdiction over any dispute arising from the implementation of the contract, the courts in Dongyang argued that the cause of action relating to the case was tortious rather than contractual in nature, and this the agreement of jurisdiction in the contract should not be applied.
o In another case which was lodged in 2008, the two parties respectively brought lawsuits to two courts in Jiangsu and Shandong provinces with similar claims,
including the termination of the contracts which had been concluded and their requests that the other party bear the liability for breaching the contracts.
Though both parties had raised their objections to the jurisdiction of the court to which the other party had brought the lawsuit, after a careful examination of those objections, both courts ruled that they had jurisdiction, both claiming that the legal relationships and targets of the contracts came under their jurisdictions.
Finally, in 2010, the two courts gave opposing judgements toward the dispute, each supporting the claims of the company located in its own province.
These cases highlight the local judicial protectionism and competition for interests that influence jurisdiction decisions.
Transferred and Designated Jurisdiction:In practice courts can have different opinions on a case's jurisdiction and on when it is inappropriate for a court w/ jurisdiction to preside over the cases.
Thus, the Civil procedure law, the Administrative Litigation Law and the Criminal procedure
Law, all contain provisions on transferred and designated jurisdiction.
Under the 2012 amended CiPL such jurisdiction applies to three different situations:
o Firstly, the provision deals w/ the transfer of a case from a non-competent to a competent court.
Art 36 provides for the rectification of situations where a court discovers that a case it has accepted does not fall under its jurisdiction, the court could then transfer the case to the court which does have jurisdiction.
o Secondly, Art 37 provides that if for some special reasons a court w/ jurisdiction is unable to exercise jurisdiction, a superior court must designate another court to exercise jurisdiction on its behalf.
Further, any dispute over jurisdiction arising amongst the courts is to be resolved by the disputing parties through consolation; if consolation fails,
the disputing courts are required to ask their corresponding superior court to designate jurisdiction.
o Thirdly, under Article 39, higher-level courts have the authority to try civil cases over which courts at lower levels have jurisdiction as the courts of first instance they may also transfer civil cases, over which they themselves have jurisdiction as courts of first instance, to courts at lower levels for adjudication. The Judicial System and Reform in Post-Mao China: Stumbling towards Justice
Jurisdiction over Foreign-related cases:-
With regard to cases concerning foreign subject matter, two issues arise which must be solved in turn when considering jurisdiction:
o Whether courts in a country have jurisdiction over a case and, if this is settled, which court in that particular country has the jurisdiction.
Foreign-related cases can take the form of civil, criminal or administrative matters.
1. Administrative Cases:
- However, in practice foreign-related administrative cases are extremely rare.
2. Criminal Cases
- Foreign-related criminal cases generally involve foreigners who have committed crimes in
China or Chinese citizens who have committed criminal offences against foreigners.
o There are no public ally-avilable statistics on the number of such cases, nor is it ever specifically mentioned in the SPC's work reports to the National people's Congress
o In recent years, in parallel with the increase in the number of foreigners entering
China, the number of criminal cases in which foreigners are the offenders has also increased.
For instance, research conduced at the No. 2 Intermediate People's
Procuratorate (IPP) in Beijing, shows that in 2003 they dealt w/ 8 cases involving 13 different offenders, which accounted for 5% of the total cases handled
In 2005, they dealt w/ 38 cases w/ 70 foreign offenders, accounting for 9%
of total cases handled.
o Though, not in many in number, some criminal cases of a serious nature have roused international attention and criticism in recent years.
An example of such is the case against Akmal Shaik, a Br Citizen, who was convicted of smuggling drugs and consequently executed in December 2009.
Furthermore, w/ regard to commercial bribery, in march 2010, four Rio
Tinto executives were found guilty of bribery and the theft of commercial secrets and were punished by the court w/ lengthy jail sentences.
o In the 2012 Revision of the CrPL, the original Article 20(3), which provided that IPCs were the court of first instance in adjudicating foreign-related criminal cases, was omitted.
Consequently, from 1 January 2013, basic courts also have jurisdiction over foreign-related criminal cases.
This shift reflects the growing number of foreign related criminal cases coming before the courts.
3. Civil and Commercial Cases:
- Most cases w/ foreign elements are civil and commercial cases.
o Foreign-related civil cases refer to those in which one party or both parties are foreigners, stateless persons, foreign enterprises, or foreign organisations; or where the legal fact of establishment, modification or termination of the civil legal The Judicial System and Reform in Post-Mao China: Stumbling towards Justice-relationship b/w the parties occurred in a foreign country or in which the object or subject matter of the action is located in a foreign country.
o Over the last two decades, the number of foreign-related civil cases has increased dramatically, and this trend will inevitably continue.
o Territorial jurisdiction applies in cases concerning a contractual dispute or other disputes relating to property rights and interests, brought against a defendant who is not a resident in the territory of China, if the contract is signed or performed on
Chinese terrain; if the object of the action is located w/in China and its territories; if the defendant has distrainable property or if the defendant has its representative office w/in the territory of China.
Jurisdiction goes to the court of the place where the contract is signed or performed, where the object of the action is located, where the defendant's distrainable property is located, where the torts are committed, or where the defendant's representative office is located (CiPL 2012: Art 265)
o Exclusive jurisdiction appears in Article 266 of the 2012 amended CiPL.
It stipulated that Chinese courts have jurisdiction over the disputes arising from the performance of a contract for Chinese-foreign equity joint ventures, Chinese-foreign cooperative joint Venture Law, which provides that such a joint venture has a status of Chinese legal person to be protected by and under the jurisdiction of Chinese law.
A Sion-Foreign cooperative joint venture is a cooperative formulated in
China, w/ the place of signing the contract, performance of the contract and main business of the parties usually all undertaken in China, which confirms such an application of territorial jurisdiction.
It should be mentioned that Article 244 of the 1991 CiPL allowed parties to a dispute over a contract concluded w/ a foreign element, or over property rights and interests involving a foreign element, to reach a written agreement to choose a court located in a place that has an actual connection w/ the dispute, as the court to adjudicate the dispute.
o This can be viewed as a limited jurisdiction by agreement.
The 2012 revised CiPL removed this article; subsequently the limited jurisdiction by agreement in Article 34 applies to both domestic and foreign related cases.
o In previous practice, Chinese courts have displayed incoherence in recognising the validity of such agreements.
o Chinese research articulates that in the 1990s, the SPC supported such agreements by accepting the parties' agreed choice of a neutral court as a legal action which gave that court outside China 'actual connection with the dispute'.
o However, in a few cases brought to the SPC in the 2000s, the SPC took a negative stand and did not accept that the choice of a court made in the agreement had created an actual connection w/ the dispute.
o From this, a tendency of Chinese courts to exercise thoroughly their jurisdiction over foreign-related cases may be observed.
The capacity of Chinese courts to handle foreign-related commercial cases has often led to widespread concern.
o In judicial practice, in order to improve the quality of the handling of foreign-related commercial cases, and ensure a unified application of the law, the SPC has initiated reform measures to formulate a model of centralised jurisdiction over foreignrelated civil and commercial cases by entrusting some courts w/ special jurisdiction,
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