Improving the judicial accountability system, one of the most important measures in Chinese judicial reform, is supposed to hold judges accountable for life for cases they handle and to effectively discipline judges for misconduct. Prior to this, Chinese judges were never subject to such strict requirements.
China’s Supreme People’s Court (SPC) now has already published the “Several Opinions of the Supreme People’s Court on Improving the Judicial Accountability System”(《最高人民法院关于完善人民法院司法责任制的若干意见》) in 2015, the “Opinions of the Supreme People’s Court on Implementing the Judicial Accountability System and Improving the Trial Supervision and Management Mechanism (For Trial Implementation)” (《最高人民法院关于落实司法责任制完善审判监督管理机制的意见（试行）》) in 2017, and promulgated the “Opinions on the Establishment of the Discipline System for Judges and Procurators (For Trial Implementation)” (《关于建立法官、检察官惩戒制度的意见（试行）》) together with the Supreme People’s Procuratorate in 2016. Chinese courts mainly punish judges’ misconducts according to these regulations as well as the “Judges Law of the People's Republic of China” (《中华人民共和国法官法》).
1. For what misconduct judges will be disciplined
Judges shall take lifelong responsibilities for their cases. A judge shall be held liable for illegal adjudication if he/she willfully violates the laws in the trial work, or by gross negligence renders a wrong judgment causing serious consequences.
Specifically, a judge shall be held liable for illegal adjudication if he/she commits any of the following acts:
(1) commit corruption, bribery or pervert the law when making a judgment;
(2) illegally hear the case without permission, or create sham litigation;
(3) forge, conceal or deliberately destroy evidence;
(4) conceal the facts when reporting to the collegial panel or the adjudication committee;
(5) intentionally deliver a judgment against the opinion of the collegial panel or the decision of the adjudication committee;
(6) make an improper ruling on commutation or parole against the law;
(7) make a wrong judgment by gross negligence, causing serious consequences; or
(8) other violations.
The wrong judgments prescribed in subparagraph (7) mentioned above are regarded as the ‘miscarriage of justice’, referring to the kind of wrong judgments despite the absence of violations by judges. According to Chinese law, if a binding judgment was determined as wrong in the adjudication supervision procedure, the judgment could be overruled and thus the case is normally be deemed as miscarriage of justice.
Not a few judges, in private, disagree with the responsibility for miscarriage of justice, fearing that their power of discretion will be unreasonably hindered.
Thus, in order to limit the application of the responsibility for miscarriage of justice, the SPC regulates that where a binding judgment was determined as wrong in the adjudication supervision procedure, the judge rendering the judgment shall not be held accountable for miscarriage of justice, under any of the following circumstances:
(1) where despite a deviation in understanding and cognition of law, the judge’s interpretation of law stands as reasonable on professional grounds;
(2) where despite the controversy in fact-finding, the judge’s determination of facts stands as reasonable under the rules of evidence;
(3) where the parties relinquish their claims;
(4) where the fact-finding should be modified for a reason attributable to the parties or the change of objective circumstances；
(5) where a ruling should be overturned due to new evidence;
(6) where there exists revision of laws or adjustment of policies; or
(7) where there exists revocation or revision of other legal documents on which the judgment is based.
2. How judges are disciplined
(1) Preliminary review
If the president of the court where the judge serves finds the judge accountable for illegal adjudication, the president shall entrust the adjudication supervision department to review the case, or submit the case to the adjudication committee for discussion.
(2) Internal investigation
If the judge is still deemed as accountable after the review or the discussion, the supervision department will start an official investigation on the judge.
(3) Submission to the judicial disciplinary committee
If the supervision department, after investigation, finds that the judge should be held accountable for illegal adjudication, the department shall then submit the case to the president of the court to decide whether it should be further submitted to the judicial disciplinary committee.
(4) Judicial disciplinary committee deliberation
After the president submits the case to the judicial disciplinary committee, the committee will conduct further investigation on the judge, while the judge can also defend himself/herself.
Upon deliberation, the judicial disciplinary committee will issue its opinion on whether the judge transgresses the duties and whether there exists intent, gross negligence, or general negligence in the transgression of duties.
Judicial disciplinary committees are established in the High People’s Court of each province, and the members include the National People’s Congress (NPC) representatives, the Chinese People's Political Consultative Conference (CPPCC) members, legal scholars, lawyer representatives, judge representatives, and procurator representatives.
(5) Sanction by the court where the judge serves
The court where the judge serves will make the sanction decision according to the opinion of the judicial disciplinary committee. The disciplinary measures include a warning, recording a demerit or a major demerit, demotion, suspension, deferred promotion, removal, proposed removal, and dismissal.
3. How the judicial discipline system operates in China
In July 2017, Director of the SPC’s Political Department Xu Jiaxin (徐家新) indicated in a press conference that 14 judicial disciplinary committees had already been established by then in 14 provinces, and that the SPC was also considering drafting the “Measures on the Work of Judicial Discipline“ (《法官惩戒工作办法》).
The SPC was also considering to add contents about judicial discipline in the Judges Law, as mentioned in the SPC’s President Zhou Qiang (周强)’s report to the NPC Standing Committee, which introduced the Revised Draft of the Judges Law in December 2017.
We will follow the on-going operation of the judicial discipline system.
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