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Can Chinese Lawyers Serve as Judges?

Sun, 01 Aug 2021
Categories: Insights

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Technically, Yes, but it’s rare. To date, only dozens of lawyers have joined the bench in China.

Technically, Chinese lawyers can serve as judges, but it is rare to see. To date, only over 50 lawyers have served as judges in China.

In many common law countries, the primary source of judges is lawyers in the sense that most judges have been licensed lawyers with legal experience before getting appointed. In China, however, current judges are mainly recruited by courts from law school graduates.

China has been trying to make lawyers a "backup source" for judges, though without success.

In a 2020 seminar organized by China’s Supreme People's Court (SPC) on "Preventing and Solving Major Risks in the Comprehensive Reform of the Judicial System (司法体制综合配套改革中的防范化解重大风险)," an article titled "Current Situation Review and System Improvement of the Open Selection of Judges from Lawyers and Legal Experts" (从律师和法学专家中公开选拔法官的现状检视与制度完善) discussed the actual situation of selecting judges from lawyers and legal experts in China.

The author of this article is Judge Ma Wei (马巍) of the Beijing Second Intermediate People's Court.

I. Background

1. Test period (from 1999 to 2006) 

In 1999, the SPC openly recruited candidates for senior judges by examination for the first time in Beijing. In the following year, the recruitment by examination was open to the whole country. 

By 2006, there had been 22 lawyers and scholars in total being selected by this way as the SPC judges.

2. Cooling-Off (from 2006 to 2014)

In 2005 and 2009, the SPC promulgated the second and third Five-Year Reform Outlines successively, both of which took selecting judges from lawyers and scholars as part of the work, but there was almost no actual practice in the courts.

3. Restart (from 2014 to 2016)

At the end of December 2013, the SPC announced to the public through the press and official microblog that the SPC would select five judges from lawyers and scholars, which signified the restart.

In 2014, as a pilot of judicial reform, Shanghai took the lead in selecting lawyers and scholars as judges in local courts nationwide.

4. On-track (from 2016 to the present) 

In 2016, China promulgated the “Measures for Open Selection of Legislators, Judges and Prosecutors from Lawyers and Legal Experts” (从律师和法学专家中公开选拔立法工作者、法官、检察官办法), a policy that encourages lawyers and legal experts to apply for positions such as judges and prosecutors.

Since then, the provinces nationwide have promulgated detailed rules accordingly. 

In 2019, the SPC re-emphasized this selection mechanism in its “Fifth Five-Year Reform Outline for the People's Courts” (人民法院第五个五年改革纲要). Subsequently, the newly revised Judges Law promulgated in 2019 established this selection mechanism at the legislative level.

II. Are there really lawyers serving as judges?

In fact, it is very infrequent for lawyers to serve as judges.

Firstly, in the last two decades, only over 50 lawyers and scholars have joined the bench nationwide.

Secondly, many recruitments for lawyers and scholars have been canceled, because the applicants did not reach the minimum number required for the recruitment examination.

III. Why don't Chinese lawyers choose to serve as judges? 

1. Insufficient motivation for lawyers and scholars

For lawyers and scholars, the professional advantages of judgeship are less than or equal to their current professional status, making them reluctant to join the bench.

A. Political status

Lawyers are sort of freelancers, and scholars are relatively free, but once they become judges acting in an official capacity, they are subject to more legal norms in their speech and behavior.

B. Income

In China, compared with lawyers and legal experts, the income of judges is much lower. For the lawyers and scholars at the top level, it will be a significant reduction in income for them to become judges.

C. Work-load

As their own employers, lawyers are free to decide on their workload. Scholars have the flexibility to arrange their work for a limited period as well. By contrast, as China is facing a litigation explosion, judges are under great pressure and heavy workload, e.g., about half of the judges in China have been constantly working overtime. 

See our earlier posts, “Late-night Call from a Judge: How Chinese Courts Deal with Litigation Explosion”, or “Chinese Courts Facing Litigation Explosion”, for a detailed discussion on litigation explosion in China.

D. Interpersonal relations

Lawyers and scholars are less constrained by the public authority in their personal lives and therefore have the freedom to manage their interpersonal relations.

However, judges have to be cautious when interacting with others in their work and lives. They should not have private contacts with interested parties, not engage in part-time jobs with salary, restrict themselves, their spouses, and children from practicing law to a certain extent, and get approval to go abroad for private purposes.

2. Insufficient motivation for the courts

A. Professional loyalty

When choosing the source of judges, courts tend to select those with a strong will and capability to work in the courts. Law school graduates have a limited range of career choices, making them more possible to serve in the courts on a long-term basis. In contrast, lawyers and scholars with more options are likely to leave the courts at any time. This results in courts being unwilling to offer more promotion opportunities to judges who have once been lawyers and scholars. 

B. Position, salary and promotion space

For those judges who have served in the courts for a long time ever since their graduation from law schools, they are reluctant to see more lawyers and scholars join the bench. This is partly because it may not be a happy ending for these judges, if lawyers and scholars who have gained a good income and status flow to the courts to compete with them, squeezing their already limited promotion space.

IV. CJO comments

Choosing the profession of lawyer, judge, and prosecutor is like walking through a revolving door in some countries. You can take whichever you prefer among these three professions.

But in China, the most common phenomenon is that many people quit their posts as judges and prosecutors to become lawyers, resulting in a ‘de facto situation’ where courts and procuratorates have trained a large number of talents with state judicial resources for law firms.

This phenomenon is widespread and has led to a significant loss of judges from many courts. These courts have to keep recruiting new graduates from law schools, ending up with young judges as major components and a lack of middle-aged judges. Such age structure of judges has reduced the work quality of the courts to some extent.

If lawyers could be "redirected" to judges and prosecutors, it might solve the current problem of the one-way flow.

However, it would be difficult to address the problems that prevent lawyers from serving as judges, as discussed by the author in this article. Therefore, the returning flow may not appear in the short term.

 

Photo by Tsuyuri Hara on Unsplash

Contributors: Guodong Du 杜国栋

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