Legalinstitutions

4.1 The Constitution and the structure of the state

As noted, although the PRC Constitution is defined as the fundamental law of the state, it �?has concerned itself more with state organisational structure than with the checks and balances of governmental powers, more with the future direction of the society than the protection of fundamental rights of citizens, and more with general principles than with detailed rules capable of implementation'.⁹⁰ Clarke holds that the PRC Constitution is not a Constitution in a meaningful sense.⁹¹ Instead, it should be understood as a kind of�?National Declaration'.⁹² As a counterargument, Wang maintains that the PRC Constitution, despite its many

90 J Chen (2008) op.

91 DC Clarke, �?Puzzling Observations in Chinese Law: When Is a Riddle Just a Mistake?', in CS Hsu (ed), Understanding China’s Legal System: Essays in Honor of Jerome A Cohen, New York University Press, 2003, p. 121.

92 ibid.,p.105.

weaknesses, is still a modern Constitution.^[93] Specifically, the current Constitution is a legal instrument to formalise and institutionalise the administration of the state, and in this sense it has provided a foundation on which all political and legal institutions are built.^[94] It may contain many policy statements, but it also contains many operational provisions such as how state organs operate as well as many citizen rights' provisions, which have to be respected both fully in theory, and at least in part in practice.^[95]

Under the Constitution, a wide range of institutions are involved in making, interpreting and enforcing laws in China. In a system of separation of powers in a liberal democracy, the Parliament (or Congress) makes the law, the executive branch implements the law, and the judiciary enforces the law by adjudicating disputes.

Judicial institutions in China usually refer to both the courts and the procu­ratorates. In a broader sense, the concept of judicial institutions covers also law enforcement agencies such as the police and judicial administrative agencies including the Ministry of Justice. For the purpose of this chapter, only the courts and procuratorates are treated as judicial institutions, and only the courts are called judiciary.

4.2 Legislatures and the people’s congress system

In China's constitutional system, the structure of the Chinese state formally con­sists of the head of the state, the people's congress system, the state administra­tion organ (the Central Government), the state adjudicative organ (the courts of law), the state prosecution organ (the procuratorates), the political consultative organ and the military organ. Informally, the CPC, the ruling party, is treated as the most powerful state organ.

On paper, China, a unitary state, has its highest authority and sovereignty held by the NPC, which represents �?the people' of China. Local people's congresses are established at the provincial, county and township levels to exercise state power at their respective level. Other state organs, including the state administrative, judicial and procuratorial organs which also operate at these same levels, are created by, responsible to and supervised by the people's congresses.

The NPC is composed of about 3000 deputies elected from the provinces, autonomous regions and municipalities directly under the Central Government. It also has deputies from the armed forces. A deputy's term of office is five years. The NPC's role as the highest state organ is to supervise the enforcement of the nation's Constitution and amend it when it deems necessary. It elects the President and Vice President of the PRC; confirms China's Prime Minister upon nomination by the President and Vice Premiers and Ministers upon nomination by the Prime Minister; and elects military leaders, the President of the SPC and the Procurator-General of the Supreme People's Procuratorate.

The NPC only convenes for a plenary session, usually in March, for about two weeks. When the NPC is not in session, the Standing Committee of the NPC (NPCSC) becomes the highest organ of state power and performs most of the NPC's functions. Defined by the Constitution as the permanent body of the NPC, the NPCSC can interpret (but not amend) the Constitution and supervise its enforcement, as well as confirm Ministers and other senior officers of the relevant state organ.

As the highest legislative body, the NPC with its NPCSC exercises the legisla­tive power of the state. The NPC enacts and amends basic laws, such as those concerning basic civil matters, criminal matters, economic institutions and state organs, as well as procedural matters. The NPCSC enacts and amends laws other than those falling within the legislative jurisdiction of the NPC. The NPCSC has the power to supplement and amend laws made by the NPC when the NPC is not in session, with the proviso that the basic principles of the laws concerned are not contravened.

In practice, it is never clear what the distinction between basic laws and non­basic laws is, basic law being more a term of art than one of science or logic.

The biggest problem with the NPC is that, as the named �?supreme state organ of power', it is largely an instrument of the CPC in the authoritarian political system of China. Although it is common practice in a democratic system that the ruling party controls the legislative agenda of the legislature through the voting mechanism, the NPC is controlled by the CPC. Like any other state agency in China, the CPC supplies the budget (through the Party-controlled finance system of the Central Government), appoints senior staff members (through the CPC's personnel system) and determines the mandate and agenda of the NPC and the local people's congresses. Furthermore, the electoral system of the NPC is designed in a way most convenient for CPC control. There is no direct election of delegates above the county-level. As stated in a work report of the NPCSC, �?[delegates] to the people's congresses above the county level are elected indirectly by the people's congresses at the next lower level, who then form delegation on the basis of their constituencies to attend sessions of their people's congresses.'^[97] This indirect election through several levels, together with a carefully designed candidate nomination system, ensures that the CPC controls who will be elected to the NPC.

A local people's congress, with its own standing committee, exists at each of three local levels, namely the provincial level, the city/county level and township level. The local people's congresses are defined as the �?local organs of state power'.^[98] They are in charge of supervising the local implementation of the Constitution, basic laws, and administrative regulations, and promulgating local regulations, as well as electing and removing the heads and deputy heads of the local governments and the heads of local courts and procutorates.^[99]

Despite the lack of independence of the people's congresses, some optimistic observers believe that the NPC, together with its local counterparts, plays a positive role in the �?constitutional development in an otherwise authoritarian regime'.^[100] Dowdle suggests that, over the 1980s and 1990s, �?the NPC has grown from insignificance into a potent constitutional force in China's politi­cal system, as �?national political actors in China take the threat of significant delegates' dissent very seriously'.^[101] Specifically, anecdotal evidence has shown that:

Low NPC approval rates for the work reports of both the judiciary and the procuratorate encouraged these institutions to acknowledge and respond to institutional problems of incompetence and corruption... Low approval rates in both the NPC and regional people's congresses for [CPC] nominees for public offices caused the [CPC] to revise its nominations procedures so as to give both national and regional parliaments (and other societal actors) greater input into the [CPC]'s nomination processes... The NPC also has assumed primary authority over China's legislative development, which has given the NPC a kind of pocket veto over draft bills submitted to it by other political actors'.^[102]

4.3 The executive branch

As noted previously, the executive branches, including the central and local people's governments, are also law-makers.

The State Council, under the leadership of the Premier, is both a legislative and implementing body. It may enact and repeal administrative regulations, and submit proposals to the NPC and the NPCSC. It is also tasked with leading administrative agencies at central and local levels to implement laws and poli­cies. Although the people's congresses, courts and procuratorates are beyond its jurisdiction, the executive branch is in charge of administering the police, lawyers and prisons through, respectively, the Ministry of Public Security and Ministry of Justice, as well as their local departments.

4.4 The judiciary­

courts andjudges

As Chen observes, �?[f]rom the institutional point of view, much progress has been made in the development of the Chinesejudiciary in the last three decades. Over the years there has been a steady and significant rise in the number of judges, in their average levels of education and professional training, and in the number of cases tried by the courts'.^[103] Courts in China are divided into four levels: Supreme People's Court (SPC), High People's Court (HPC), Intermediate People's Court (IPC) and Basic People's Court (BPC). At the end of2004, there were in total 3548 courts in China.^[104] The HPC, IPC and BPC are local courts. BPCs are grassroots- level courts at county level (with detached tribunals in townships). BPCs are first- instance courts for criminal, civil and administrative cases. IPCs are established in major cities and prefectures within provinces. They are first-instance courts for major cases and foreign-related cases (both of which cannot be received first by the BPCs) in their respective jurisdiction, and the court of appeal for judgments from the BPCs. Likewise, the HPCs, established at the provincial level (and based in provincial capitals), hear cases of significant influence in their provinces and are courts of appeal for judgments rendered by intermediate courts. There is also a number of specialised courts established at various levels, such as the railway transport courts, forestry courts, maritime courts and military courts.

The SPC is the country's high court and the court of final appeal. Theoretically it has the right to hear a first-instance case, but it virtually never does.^[105] In practice, it, as the court of final appeal, handles a large number of appellate cases.^[106] But the SPC is more than a court of final appeal; it is also the leader for judicial affairs in the judicial system, in addition to being itself a law-maker through making judicial interpretations. It not only supervises the trial practices of all lower courts, but also supervises and guides the judicial work of lower courts, such as their personnel quota and structural settings. It has the authority to issue judicial interpretations, which are de facto legislation, treated by lower courts as probably more important than any other sources of laws.

Underthe OrganicLaw of the People’s Courts (1979; 2006 Rev), a court at each level is organised into several substantive divisions (ting) according to the spe­cialisation of the cases, such as civil, criminal or administrative divisions. The SPC has the following 11 divisions: Case-FilingDivision; CriminalDivisionI; Criminal Division II; Civil Division I; Civil Division II; Civil Division III; Civil Division IV; Administrative Division; Adjudicative Supervision Division; Enforcement Office; Research Office.^[107] Another very important institution within a court is the adju­dicative committee comprising senior judges and division heads, which will be discussed shortly.

The personnel of a court follows a strict hierarchy of administrative ranking, made up of a president, several vice presidents, division heads, deputy division heads, (ordinary) judges, assistant judges, and court clerks. The presidents and vice presidents may or may not be chosen from the pool of professional judges, as these positions are political appointments in many cases. Non-judge candidates automatically become judges once they assume the presidential position.^[108] Division heads are usually judges as well.

Judges, like civil servants, have an administrative rankbased on their seniority and administrative positions. According to the PRC Law on Judges (1995; 2001 Rev), judges are graded into 12 levels, ranging from the Chief Justice (who is also President of the SPC), Grand Judge of First Rank and Grand Judge of Second Rank to Senior Judges and Judge.^[109]

As a matter of law, the chief figures in a court are responsible to the people's congress at the corresponding level. The president of a court is elected and also removed by the local congress. The vice presidents, division heads, deputy division heads, and judges are nominated by the president and then confirmed by the standing committee of the local congress. A lower court is also responsible to the higher court, not only in terms of case appeals, but also in relation to judicial appointments: if the higher court discovers that the appointment of a judge of a lower court violates the PRC Law on Judges it may suggest the lower court withdraw the nomination or ask the people's congress to withdraw the appointment.¹¹⁰

Judges do not have official tenure in China but in practice may hold the position for their lifetime. Ajudge may be dismissed on a variety of grounds, and certainly for political reasons. However, as Peerenboom observes, �?the problems to date have not been that too many judges are being removed for political reasons but rather that too few judges are being dismissed for incompetence or corruption.'¹¹¹ As is the case in some civil law countries, judges in China are not as respected as they are in many common law jurisdictions. Thejudicial service is a bureaucratic career in which the judge is a mere civil servant and a functionary. A judge probably will not feel more proud of his or her career than any other governmental official in China.

Trial system

Under the Organic Law of the People’s Courts and other organisational and pro­cedural laws, trials of cases could be undertaken either by a single judge (duren faguan) or by a collegiate panel (heyiting). Minor criminal cases or simple civil cases can be tried by a judge using summary proceedings. For most cases, a col­legiate panel of three judges or a combination of judges and people's assessors must be formed on a case-by-case basis. First-instance administrative cases and cases at the appellate level must be tried by collegiate panels. One judge on the panel will serve as the presiding judge (shenpanzhang), and there is a responsible judge (chengbanfaguan) who could also be the presiding judge.

Although China does not have the jury system, invited laypersons, officially known as the �?people's assessors', may participate in the adjudication process. Except for cases tried under summary procedures or otherwise provided by the law, a collegiate panel composed of both judges and people's assessors should be formed to try the following cases: (1) civil, criminal and administrative cases of significant social influence; (2) first-instance criminal cases in which the defen­dant has made such a request; (3) first-instance administrative cases in which the plaintiff has made such a request; and (4) first-instance civil cases if either the plaintiff or the defendant has made such a request. It bears noting that, unlike the jurors in common law jurisdictions, a people's assessor, once sitting on the panel, should have the same power, rights and duties as the judge-member of the panel. He or she has equal voting rights when it comes to the confirmation of evidence, application of law and rendering of verdict, except that he or she cannot serve as the presiding judge.

China adopts a two-tier trial system, under which the judgment of the first- instance court may be appealed as of right, but the second-instance judgment

110 Law on Judges, art 14.

111 R Peerenboom (2002) op. cit., p. 294. automatically reaches finality and is not appealable. At the appellate level, except for cases involving the death penalty, all other cases take legal effect and become enforceable immediately upon announcement.^[110] Non-appealed first-instance rulings will also become final after the prescribed period for appeal. The appellate court will conduct a de novo review of both facts and law, as is the case in some other civilian jurisdictions.

Open trial of cases is now recognised as one of the fundamental principles of the Chinese legal system.^[111] Under the Constitution and other laws, all cases tried by courts should, unless otherwise provided for in the law, be conducted in open hearings. This enables the public, including the media, to have access to the trial process. The SPC in March 1999 issued a regulation requiring open trial to be a general rule. In June 2000, the Supreme Court decided to make public its judgments through major media outlets, court publications and the internet, hoping to set an example for lower courts.^[112] Another SPC regulation issued in June 2007 stipulated that open trial is �?an inherent requirement for building the socialist harmonious society' and detailed the procedures for providing access to trials for the public.^[113]

The OrganicLaw of the People’s Courts, however, excludes the following cases from the open trial requirement: cases involving state secrets, cases involving personal privacy and cases involving crimes committed by minors.^[114] In practice, international observers are most concerned with cases concerning state secrets, as the 1988 Law of the PRC on Guarding State Secrets includes a very broad defini­tion of �?state secrets', covering possibly almost any information,^[115] and national and local officials are allowed to decide whether there is a state secret even after the information has already been in the public domain. In almost all politically sensitive cases, the courts, as an instrument of the CPC, arbitrarily classify information involved as state secrets in order to hold trials behind closed doors.

Widelyviewed as a traditional civil law country which adopts the inquisitorial model for court trial, China has been moving towards the adversarial system in recent years in both civil and criminal cases in the sense that judges rely more on the parties to present evidence and legal arguments. This means that judges have to deal with increasingly well-trained and probably better-educated lawyers. Nonetheless, the court preserves the power to verify evidence presented and acquire other evidence by conducting its own investigation. In addition, a party may request the court to investigate the facts, which often means that the requesting party has to pay for the costs of investigation.

The move to the adversarial system is more noticeable in criminal cases largely because of the public's concern of human rights-related procedural issues. It is, however, still an open question whether the adversarial system suits China's legal culture. As noted previously China's legal traditions have emphasised substantive justice. In litigation, the role of the court under the procedural laws is to seek the truth through exhaustive search of the facts and then strictly apply the law. As pointed out by Peerenboom:

[T]he inquisitorial system, with its longer detention periods that reduce the threats to society even if at the expense of individual liberty, fits more readily the public's desire for social stability. With its emphasis on truth, it also conforms more closely to traditional emphasis on substantive justice than does the adversarial system, which emphasizes procedural justice and a fair fight between the parties.^[116]

It is, however, important to stress that the inquisitorial system presumes an impartial and capable judiciary and procuratorates �?committed to discovering the truth';^[117] otherwise it could easily harm the interests of the parties if misused by incapable judges and prosecutors or abused by them for rent-seeking purpose. In this sense, the inclusion of more adversarial elements may let the parties have more control of the adjudication process, thus checking the powers of the prosecutors and judges.

Adjudicative committee

Avery special arrangement in China's court system is the adjudicative committee (AC) (shenpan weiyuanhui), set up in courts of all levels. Comprising the heads and senior judges in the court, the AC is mandated to �?summarize adjudicative experience and discuss important or difficult cases and other issues relating to the judicial work.'^[118] Members of the AC are appointed and removed by the standing committee of the people's congress at the corresponding level.

When the AC meets, the president of the court is the ex officio chairperson, and the chief procurator of the people's procuratorates at the corresponding level may attend the meeting without voting rights.^[119] For adjudicative mat­ters including trials, the AC is certainly the highest authority within a court. As the law so entitles, almost all socially influential cases and sensitive cases are decided finally not by the single judge or collegiate panel, but by the mysterious committee whose name never officially appears in the text of any judgment.^[120]

Many legal scholars have advocated for the abolition of the AC system, largely on the ground that it deprives the parties of their litigation rights and opens the door for undue influence from outside the collegiate panel. This is because one of the most the salient features of the AC involvement in court trials is that it makes decisions based on briefing by the responsible judge of the collegiate panel without facing the parties. That is to say, the parties will never have opportunity to present evidence and arguments directly to the AC, and sometimes they even do not have the knowledge that the AC has the final say on the case. This has resulted in the simultaneous practices of �?shen er bu pan’ (�?the adjudicator does not render the judgment') and �?pan er bus hen^, (�?the judgment-renderer does not try the case'). These practices on the one hand reduce the incentives of the responsible judges to pay attention to the legal arguments, and on the other hand generate a situation in which no one is responsible for the judgment as both the responsible judges and the members of the AC can have reasons to claim no responsibility.

Supporters, however, argue that the system is necessary at this stage of China's legal development given the low level of competence of some judges as well as the rampant corruption in the judiciary. Thus review by more senior, more experienced judges ensures the quality of the judgment. It is also an institutional arrangement to reduce corruption. Zhu Suli, Dean of the prestigious Peking University Law School, argues that �?it might be easier to brief one or two or even more judges of the collegiate bench, but would be extremely difficult to buy all the nine members of the AC'.^[121]

In recent years, the SPC has put forward a variety of proposals for reforming the AC. The aim is to give more power to individual judges and collegiate panels to decide cases independently, with the condition that the AC system be preserved and improved. The AC now may hear the cases directly and make inquiries of the parties (or defendants). It has been proposed that the AC of the SPC set up subcommittees specialising in criminal and civil/administrative matters, and for the HPC and IPCs to set up specialised subcommittees based on adjudicative needs. Court presidents and division heads are also encouraged to join collegiate panels to face cases directly.^[122]

Adjudication supervision

Another innovative, yet highly unusual trial practice (from a comparative per­spective) in China is the complex adjudication supervision system. According to the OrganicLaw of the People’s Courts and the procedural laws,^[123] even cases for which the rulings have reached finality may be challenged and retried under the following circumstances:

• If the president of a court finds definite errors in fact-finding or application of laws in a legally effective ruling rendered by his or her court, he or she must submit the ruling to the court's AC to discuss reopening the case.

• If the SPC finds definite errors in a legally effective ruling by any lower court or if a court at a higher level finds such errors in a legally effective ruling by a lower court in its jurisdiction, it has the authority to review the case itself or order the lower court to conduct a retrial.

• If the Supreme People's Procuratorate finds definite errors in a legally effective ruling of a court at any level or if a people's procuratorate at a higher level finds such errors in a legally effective ruling by a court of lower level in its jurisdiction, it has the authority to lodge a protest.

• Lastly, the parties may petition the court to reopen a case if the litigant establishes newly found evidence sufficient to support a reversed judg­ment, no sufficient evidence in the original trial, wrong application of the law, procedural violation in the original trial, or any judicial misconduct or corruption.

In addition to the formal adjudicative supervision within the judicial system, pressure from the local people's congress or from the local CPC organisations can result in an individual case being be reopened, legally through the adjudicative supervision mechanism. The PRC Law on Supervision of the Standing Committee of People’s Congresses, promulgated on 27 August 2006, has put an end to the national and local parliaments' practice of individual case supervision.

This underlying philosophy of the adjudicative supervision system conforms to the Chinese legal system's traditional emphasis on substantive justice. �?Support­ers argue [the supervision] is necessary because of the low level of professional competence of some judges, the existence of judicial corruption, and the adverse influence of local and departmental protectionism. They claim supervision helps to correct injustices, promote the rule of law, and serves a deterrent function.'^[124] Opponents, however, assert the system �?impedes judicial independence, hinders the emergence of a more authoritative court, and leads to conflicts between the court and other state organs.'^[125] It is also a sensible argument that the system undermines the fundamental rule of law principles of certainty and finality,^[126] and, eventually, the legitimacy of the judicial system, as there is - absolutely in theory and often in practice - no judgment that is really final.

4.5 Theprocuracy

As noted previously, China's procuratorates as a legal institution are treated as part of the judicial system, not part of the executive branch, as is the case in many other countries. The procuratorates are in charge of initiating public prosecution against suspects of crimes on behalf of the state. For ordinary cases under investigation by the police, the procuratorates decide whether to prosecute the defendant by examining the facts and the legal grounds for the case based on the reports of the police. For cases concerning treason, attempts to split the country and other serious criminal offences that sabotage the implementation of state policies, the procuratorates have authority that covers a wide range of investigating and enforcing powers. The procuratorates directly investigate criminal cases involving personnel of state agencies, such as embezzlement, taking bribes, dereliction of duty and infringement of others' rights. They decide whether to issue arrest orders for the police to arrest and detain suspects. Last but not least, the procuratorates serve as a check and balance on the powers of the courts and the government, as they have the authority to supervise the legality of trials in the courts, and the investigatory activities of the police and state security organs, as well as the operation of prisons, houses of detention and correctional institutions.^[127] In cases where the procuratorates find definite errors, they can lodge protests to the court of the same level or a higher level.

Reflecting the structure of courts, the Organic Law of the People’s Procu­ratorates establishes a four-level procuratorate system: the Supreme People's Procuratorate at the top, followed by the High People's Procuratorates in the 31 provinces, hundreds of Intermediate People's Procuratorates, and thousands of Basic People's Procuratorates. There are also some specialised procuratorates such as the military procuratorial organs. One noticeable difference between the procuratorate system and the court system is that the procuratorates are under the dual-leadership of the people's congress at the corresponding level and of the procuratorate at the higher level. A conflict of powers could only be reconciled by the CPC's mono-leadership.

Under the traditional communist political discourse, the courts, the procuracy and the police are supposed to unite as a trinity to advance state interest.^[128] Sev­eral decades of legal reform has, however, greatly eroded the basis of the unity and increased the functional independence, specialisation and departmentalism of each agency. This has also led to growing tensions among these agencies. For instance, the procuratorates, because of their constitutional mandate for super­vising the courts, might consider themselves superior to the courts. Likewise, the courts' superiority complex is derived from the fact that courts are the final adjudicator, even for cases brought by the procuratorates.^[129]

4.6 CPC Political-Legal Committees (Zhengfa Weiyuanhui)

In the Chinese Party-state, the CPC's dominance of political life inevitably extends to the legal arena.^[130] Peerenboom observes that �?the Party influences the courts in various ways and through various channels. The Party primarily exerts influence in the areas of ideology, policy, and personnel matters, though it sometimes is involved directly in deciding the outcome of particular cases.'^[131] One of the most important institutional channels in this regard is the system of CPC Political- Legal Committees (PLCs). The PLC system was established in the 1950s, origi­nally as a repressive empire against the �?class enemies' classified by the Party.^[132] In the reform era, it has been turned into powerful Party machinery to over­see all legal enforcement authorities and exert �?united leadership' for legal affairs.^[133]

The Central PLC currently comprises a member of the Politburo Standing Committee,^[134] the Minister of Public Security, the President of the Supreme Peo­ple's Court, the President of the Supreme People's Procuratorate, the Ministry of National Security, the Minister of Justice, the Commander in Chief of the Armed Police, a representative from the military, and several staff members. The local PLCs largely have a similar composition that represents the internal groupings of the CPC organisation at the local levels. Bringing representatives of different political and legal institutions (some of which are supposed to serve as checks and balances on each other's power) itself demonstrates a strong characteristic of the China's �?socialist legality', which requires an institutional arrangement to guarantee the ultimate control of the CPC over legal matters.^[135] Neverthe­less, Peerenboom maintains that �?it is clear that the PLC is primarily responsible for ideological work through setting and disseminating policy, though it is also involved in the decision-making process for certain important or difficult cases and on occasion in personnel decisions.'^[136]

5