White paper published on China's rule of law
Updated: 2008-02-28 18:45
VI. Judicial System and Fair Administration of Justice
The people's court is the judicial organ in China and the people's procuratorate is the supervisory organ for law enforcement. The people's court and the people's procuratorate, in accordance with the Constitution, Organic Law of the People's Courts, Organic Law of the People's Procuratorates, Civil Procedure Law, Administrative Procedure Law and Criminal Procedure Law, independently exercise their adjudicative power and supervisory power, respectively, free from any interference of administrative organs, public organizations and individuals.
Judicial organs in China include the Supreme People's Court, local people's courts at different levels and special people's courts such as military courts. Local people's courts are classified into primary people's courts, intermediate people's courts and higher people's courts. As the highest judicial organ, the Supreme People's Court supervises the judicial work of all local people's courts and special people's courts. The people's court at a higher level supervises the judicial work of the people's court at the next-lower level.
China has established a sound judicial system, completed the adjudicative systems for civil, administrative and criminal cases, forming a modern judicial system in line with the requirements for building a socialist country under the rule of law, in a bid to safeguard judicial justice and social justice.
-- The system of public trial. The people's court follows the principle of openness according to law and timely openness in adjudication of cases. Some civil cases, such as divorce cases or cases involving commercial secrets, may be heard in private sessions if the parties concerned so request. Except for cases involving state secrets, individual privacy and minors, all other cases are heard and decided by the people's court in an open manner. A public notice is issued about a forthcoming public trial, allowing citizens and the media to observe the trial. The people's court often invites deputies to the people's congresses and members of the Chinese People's Political Consultative Conference and their local branches to observe the trial process. In the course of adjudication of a case, evidences are given, cross-examination is carried out, and the trial is conducted in an open way. All effective information relating to the protection of the rights of the parties concerned, such as the filing of the case, its trial and enforcement of judgment, is publicized promptly and completely within the time frame provided by the law.
-- The system of collegiate panels. When a people's court hears and decides a case of first instance, unless it is a simple civil case, or a minor criminal case or other cases that may use the summary procedure as provided by the law and in which case a single judicial officer will hear and decide the case, the case will be heard and decided by a collegiate panel composed of several judicial officers or by a collegiate panel composed of judicial officers and people's assessors. A collegiate panel of judicial officers is formed when adjudicating cases on appeal or protested cases. The number of a collegiate panel must be an odd number.
-- The system of people's assessors. To guarantee all citizens' lawful right to participate in trials and promote justice, except for cases suitable for summary procedure or cases provided otherwise by the law, all civil, administrative and criminal cases, including all cases of first instance in which the defendant in a criminal case, the plaintiff or defendant in a civil case or the plaintiff in an administrative case, has requested to have people's assessors participate in the trial, will be heard and decided by a collegiate panel composed of people's assessors and judges. People's assessors hear and decide cases as members of the collegiate panel in accordance with provisions of the law. They are entitled to the same rights and shoulder the same duties as other members of the collegiate panel, and independently exercise their voting right, together with other members of the collegiate panel, when it comes to the confirmation of evidence and application of law. However, they cannot serve as chief judges.
-- The system of defense. In order to guarantee the human rights of criminal suspects and defendants, and ensure the fairness of the criminal proceedings, criminal suspects and defendants have the right to defense according to law and the people's court has the obligation to ensure that all defendants are entitled to defense. Criminal suspects and defendants may defend themselves or ask one or two people to serve as their counsels. Based on facts and the law, the counsels provide the court with their own materials and give their views. They may claim that the criminal suspect or the defendant is not guilty, or has committed a lighter crime than he/she is accused of, or ask the court to lessen or relieve his/her criminal liabilities in a bid to safeguard the legitimate rights and interests of the criminal suspect or the defendant.
-- The system of agent ad litem. In a civil or administrative procedure, if a person has no capacity for an act of procedure, his/her guardian will undertake the litigation as the legal representative. If he/she has more than one guardian and they all refuse to serve as his/her legal representative, the people's court will designate one of them as his/her legal representative in the case. The party to the lawsuit or his/her legal representative may ask one or two persons to serve as agent ad litem on his/her behalf. If it is a criminal procedure, the victim and his/her legal representative or close relative in the case of a public prosecution, the voluntary prosecutor and his/her legal representative in the case of a private prosecution, the party concerned in incidental civil action and his/her legal representative, are all entitled to entrust someone as agent ad litem. Attorneys, close relatives of the person concerned, people recommended by relevant organizations or their employers, or any citizen approved by the people's court can serve as agent ad litem for others. The agent ad litem takes part in the litigation on behalf of the person concerned to materialize and safeguard the legitimate rights and interests of the person concerned.
-- The system of challenge. Any party concerned in a case is entitled to apply to the court to remove anyone from the adjudication personnel whom he/she believes has an interest in the case or is otherwise related to the party concerned in the case and may endanger the defendant's right to a fair trial. If any of the adjudication personnel is a party concerned in the case, a close relative of a litigating party, or when he/she believes he/she has an interest in the case, he/she must withdraw from the case.
-- The system of mediation. When a people's court hears a civil case, it follows the principle of "doing all it can to mediate first, adjudicating when so doing is proper, and combining mediation with adjudication to close the case." According to the requirements of voluntariness, legitimacy and democracy, judicial personnel will try, through mediation, to persuade the opposing parties to reach a compromise to solve their dispute about civil rights and interests. In 2006, about 56 percent of civil cases of first instance in China were solved through mediation.
-- The system of judicial relief. The judicial relief system is used by the people's court when financially straitened litigants take legal action in a civil or administrative case, in order to safeguard their legitimate rights and interests. The people's court may allow such litigants to postpone paying, reduce or even waive their legal expenses. The Provisions on Judicial Relief for Financially Straitened Litigants was enacted by the Supreme People's Court for the purpose of guaranteeing the procedural rights of underprivileged people.
-- The system of judgment of the second instance as final. The party concerned has the right to appeal to the people's court at a higher level, within the time period prescribed by the law, against the ruling or judgment made by a local people's court in a case of first instance. If the party concerned does not appeal against the ruling or judgment, the ruling or judgment will come into force once the time period expires. Regarding rulings and judgments in cases on appeal or protested cases, the rulings and judgments made by a higher people's court are final, except for cases involving the death penalty, which need to be reviewed by the Supreme People's Court. All rulings and judgments made by the Supreme People's Court in cases of first instance it hears are final.
-- The system of review of death sentence. The system of review of death sentences is independent of the system whereby the judgment of the second instance is final. This is important because it requires that all death sentences be reexamined and approved. Apart from the death sentences given by the Supreme People's Court according to law, all death sentences must be reported to the Supreme People's Court for review and approval. The Supreme People's Court has enacted the Decisions on Several Issues Regarding the Review of Death Sentences. This document contains strict and uniform criteria on the use of the death sentence. It also contains uniform criteria on evidences for death sentences, and strictly standardizes the procedure for review of death sentences, in a bid to ensure that capital punishments are given sparingly and fairly. Starting from the latter part of 2006, all death penalty cases of second instance are tried publicly.
The procuratorial organs in China include the Supreme People's Procuratorate, local people's procuratorates at different levels and special procuratorates, such as military procuratorates. The Supreme People's Procuratorate is the highest procuratorial organ. It directs the work of local people's procuratorates and special procuratorates. A people's procuratorate at a higher level directs the work of a people's procuratorate at the next-lower level.
It is the duty of the people's procuratorates to ensure justice and the proper enforcement of law. Provisions in laws stipulate that the people's procuratorates shall use their procuratorial power to deal with treason, attempts to split the country and other serious criminal cases that sabotage the implementation of state policies, laws and administrative orders; that they shall investigate criminal cases directly by themselves involving personnel of state agencies, such as cases of embezzlement, taking bribes, dereliction of duty and infringement of others' rights; that they shall decide, in accordance with the law, whether to approve proposals for arrest put forth by the organs of public security; that they shall, upon examination of cases transferred to them from the organs of public security for action, decide, in accordance with the law, whether to bring the cases to court or not; and that they shall bring criminal cases to court or support legal action in such cases. The law also stipulates that procuratorial organs shall supervise legitimacy of the trials of the people's courts, the investigatory activities of the organs of public security and state security, as well as law enforcement in prisons. People's procuratorates at all levels establish procuratorial committees to discuss and decide major cases and other issues of importance under the guidance of the chief procurator.
China has enacted the Arbitration Law, the Lawyers Law, the Notarization Law and the Law on Labor Dispute Mediation and Arbitration, and established an arbitration system, attorney system, notary system, legal aid system and judicial examination system.
The Arbitration Law stipulates that on the principle of voluntariness, contractual disputes or other property right disputes arising between the citizens, legal persons and other organizations can be submitted for arbitration; disputes arising from marriage, adoption, guardianship, fosterage and inheritance, and administrative disputes that should be handled by administrative organs may not be submitted for arbitration. In China, all arbitration awards are final. Unless a people's court revokes an arbitration award or makes a ruling that the arbitration award shall not be implemented, the parties concerned may not request a second arbitration on the same dispute or bring the case again to a people's court.
The Law on Labor Dispute Mediation and Arbitration stipulates that where a labor dispute arises, if a party does not desire consultation, the parties fail to settle the dispute through consultation, or a party does not execute a reached settlement agreement, any of the parties may apply to a mediation organization for mediation; if a party does not desire mediation, the parties fail to settle the dispute through mediation, or a party does not execute a reached mediation agreement, any of the parties may apply to a labor dispute arbitration commission for arbitration; and a party disagreeing with the award may bring an action in a people's court except as otherwise provided for by the law.
The Lawyers Law stipulates that anyone who applies to become a professional practitioner must first of all pass the state's standard judicial examination, must endorse the Constitution, must work as an intern in a law firm for 12 months and demonstrate that he/she is a person of integrity before receiving a certificate to practice. Professional practitioners can serve as legal counsels or agent ad litem for others. They can provide legal aid to criminal suspects in criminal cases, serving as defenders for criminal suspects and defendants in criminal cases. Their practice according to law is protected by the law. By the end of 2006 there were over 13,000 law firms in China with more than 130,000 professional practitioners. In China law firms can be established as a partnership or by an individual. They can also be set up with the funds of the state.
The Notarization Law stipulates that notaries must pass the state's judicial examination before they can practice. Notary agencies can, at the request of their clients, verify the truthfulness and legitimacy of civil juristic acts, or of facts and documents with legal significance. Notarial deeds have legal effect, mainly including evidentiary effect, compulsory execution effect, effect of major factors for a juristic act, public notification effect, against-third-party effect and irreversibility effect. The number of notarial deeds issued by notary agencies across China in the past few years has remained at about 10 million each year, of which 3 million are foreign-related and have involved over 100 countries and regions. By the end of 2006, there were more than 3,000 notary agencies in China, employing close to 12,000 notaries.
China set up a legal aid system in 1994. Financially straitened citizens can apply for legal aid according to state stipulations when they demand state compensation, social security or subsistence allowance, or when they demand that pension (for the disabled or for the family of a deceased person), relief payment, alimony, maintenance, child support, or remuneration of labor be paid, or when they claim civil rights or interests arising from offering assistance in a just cause. In criminal procedures, financially straitened citizens may apply for legal aid according to state stipulations for commissioning lawyers, agent ad litem, or defenders. If the defendant is blind or deaf-mute, or is a minor, and has not entrusted someone to serve as his/her defender, or if the defendant is likely to be sentenced to death but has not entrusted someone as his/her defender, the people's court should designate a lawyer who is responsible for providing legal aid to serve as the defender. Legal aid departments have been established by the governments at all levels and equipped with specialized staff.
The state adopts a standard judicial examination system for those who want to be judges, prosecutors and those who want to acquire the qualification of the lawyer. The best of the examinees who pass the state judicial examination are employed as junior judges and prosecutors. The first nationwide uniform examination for the qualification of the lawyer was held in China in 1986. In order to establish and standardize a uniform state judicial examination system, the Measures for the Implementation of State Judicial Examination (Trial) contains provisions on the content, manner and organization of the examination, and for the conditions for entering the examination and the conferring of qualifications. From 2002 to 2007, China successively held six state uniform judicial examinations, which promoted the building of the professional ranks of judges, prosecutors, lawyers and notaries.
China has quickened the pace of judicial system reform in recent years. It has carried out the reform based on national conditions while drawing on the sound practices of other countries. The purpose of the reform is to maintain justice in the judicial field. By first tackling problems of particular concern to the people, with focuses on how to restrain and supervise power more effectively, the reform is aimed to optimize the allocation of judicial responsibilities and functions, standardize judicial acts, and promote democracy and openness in the judicial field. China is working hard to establish a socialist judicial system featuring fairness, efficiency and authority, to ensure that judicial organs and procuratorial organs can exercise judicial power and procuratorial power fairly, independently and according to law.
-- As restraint and supervision of judicial powers are tightened, some prominent problems affecting judicial fairness are being solved. A system of openness has been improved in relation to trials, procuratorial work, police work and prison work. The rights of the general public to participate, to know and to sue are better protected. The mechanism of procuratorial supervision of litigation, particularly the mechanism of supervision of malfeasance among judicial personnel, has been further improved. The pilot work of instituting people's supervisors is proceeding smoothly. The focus of their supervision will be on cases in which the arrests are not accepted, or cases that are expected to be canceled or no action to be taken. Complaints about uncivilized, non-standardized handling of cases by procuratorial personnel have been reduced significantly.
-- New progress has been made in respecting and guaranteeing human rights through the improvement of the criminal justice system. The procedures for handling capital punishment cases have been further improved. The judicial system with respect to minors has also been improved, with the gradual adoption of methods for investigation, arresting, charging and trial suitable to the situation of minors. There has been an obvious drop in the number of overdue detainees. Legal supervision of the execution of punishment has become more standard. Pilot programs in the reform of the prison system are proceeding smoothly. The quality of education and reformation in prisons has been improved, and the legitimate rights and interests of those incarcerated protected according to law. There has been a big drop in escapes and crimes committed in prisons. Pilot programs featuring reform of criminals in communities and the system of people's supervisors have yielded good results. Pilot work for the reform of criminals in communities has been carried out in 25 provinces, autonomous regions and municipalities directly under the central government throughout China. Less than one percent of the convicted criminals who serve their time in such communities re-offend.
-- The efficiency of judicial work has been raised by reforming and improving the working mechanism. At present, 38.87 percent of the criminal cases and 71.26 percent of the civil and commercial cases heard by people's courts are adjudicated using the summary procedure. Cases can be put on file for investigation directly in an overwhelming majority of the people's courts throughout the country. The mediation mechanism for settling conflicts of varied nature, such as people's mediation, administrative mediation and judicial mediation, has been improved. In 2006, mediation organizations in China conducted mediation for over 4 million civil disputes, and more than 95 percent of the disputes were settled. In order to improve and standardize the management system of judicial expertise, the Standing Committee of the NPC adopted the Decision on the Management of Judicial Expertise. Efficiency has been raised with case-filing for investigation through the Internet and from a distance, and the creation of "digital courts."
-- By strengthening judicial relief and legal aid, the difficulties of filing a lawsuit and of enforcing a court's judgment have been eased. The newly promulgated Measures on the Payment of Litigation Fees has reduced litigation fees by 60 percent on average. The newly adopted Measures on the Administration of Lawyers' Service Fees has strict provisions on the procedures for the fees charged by lawyers, as well as provisions specifying severe punishment for violations. In recent years, the state has increased, year by year, the expenditure on legal aid. The transfer payment system for legal aid in poverty-stricken areas has been established by the central treasury and some provincial treasuries. In 2006, the number of cases handled with legal aid totaled 318,514, and law consultancy services were provided to 3,193,801 person-times across the country, up 25.6 percent and 19.9 percent, respectively, over the previous year.
-- Justice is further guaranteed through reforming and improving the management system of personnel and the mechanism that ensures the availability of working funds. The management system that separates administrative work from judicial and procuratorial work has also been improved. Systems such as public recruitment and testing of judicial personnel, competition for posts and exchange of judicial personnel have been established and improved. In recent years the state and local financial departments have all greatly increased spending in the judicial field, providing a solid material guarantee for law-enforcing departments to carry out their duties.
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