The post takes a second look at the adjudication committee, exploring the necessity of its existence and current reform.
The Adjudication Committee Series is composed of three posts, respectively discussing:
This is the second post in the series, discussing the necessity of this institution and its reform during China’s latest judicial reform.
I. Why do Chinese courts need the adjudication committee
Professor Zhu Suli (朱苏力), a well-known Chinese scholar, pointed out in an article in 1998 that according to his investigation of the court, judges generally believed that the adjudication committee was an institution with great value. He described it from the following three aspects:
1. Preventing corruption
The cases where the adjudication committee participates are all major, difficult and complex cases, which often involve significant interests. Thus, it is very likely that sometimes various local authorities will try to sway the outcome and some judges may find it difficult to say no.
However, these forces may not affect the adjudication committee as easily as they do to the judges of the collegial panel. It’s because, when it comes to decision making, every adjudication committee member has one vote and the minority will subject to the majority, which makes it comparatively hard for the committee to be influenced by external factors.
In this regard, letting the adjudication committee make decisions of these cases is conducive to ensuring a fair trial and preventing corruption.
In fact, in many cases, the collegial panel will deliberately refer the case to the adjudication committee for discussion, so that the court, as a whole, can deal with the external pressure, rather than leaving the judges to do so on their own.
2. Unifying application of law within a certain jurisdiction
For Chinese courts, even at the grassroots level, their jurisdiction is likely to cover a large area and a large population. (CJO Note: for example, the Chaoyang District Primary People’s Court of Beijing has its jurisdiction covering a population equivalent to that of Scotland.)
There are generally as many as 20 tribunals and dispatched tribunals in every grassroots court. Judges of each tribunal often have different understandings and practices in the application of law. This is likely to cause an inconsistent application of law within one court’s jurisdiction.
To a certain extent, the discussion of the case by the adjudication committee is conducive to the uniform application of law within the jurisdiction of the court, and provides some specific guiding rules for the judges.
3. Making up for judges’ shortcomings
Chinese courts have long been facing the problem of judges’ insufficient professional ability. At the time of Professor Zhu Suli’s article mentioned above (the year 1998), China’s local courts, especially the grassroots courts, were extremely in want of judges graduated from law schools. This could be told from the fact that back then, many judges were government officials, teachers, soldiers, etc., rather than legal practitioners before working at the court. To this end, in addition to strengthening the further education of judges, local courts also needed to rely on senior judges in the adjudication committee to assist and guide ordinary judges in dealing with difficult cases.
It is noteworthy that what Professor Zhu Suli described has changed. After 2000, with the expansion of China’s law schools, local courts are no longer lack of qualified judges with legal education. At present, the problem is that, on the one hand, judges are generally too young to have sufficient trial experience(the backbone judges are usually around 35 years old); on the other hand, the rapid development of Chinese society has resulted in a large number of new problems, which may be difficult for the inexperienced judges to cope with. Therefore, judges still need guidance from those experienced adjudication committee members.
II. Why should Chinese courts reform the adjudication committee
Apart from the necessities above, there are still many disadvantages in the participation of the adjudication committee in the case trials, which has led to many criticisms. This has also become the driving force for the SPC to reform the adjudication committee.
1. Rendering judgment without participating in case trials
One of the long-standing criticisms on the adjudication committee is that its members are empowered to decide the outcome without sitting on the bench for a case trial.
First of all, the adjudication committee members understand the cases through the report of the collegial panel, and they will not even read the case files under many circumstances. In this case, its conclusions on fact-finding and law application are probably not the most reasonable. 
In addition, only members of the collegial panel will have their names signed on the judgment, but not will the adjudication committee members, who have actually decided the case. This means that these members are not legally responsible for the outcome of the judgment. In fact, the view was expressed that when the court leaders intend to make some non-compliant decisions, they will let the adjudication committee make such decisions together, thus diversifying the risk brought by wrong decisions. 
2. Depriving the parties’ right to participate
The case discussion by the adjudication committee is private, so is the decision it makes, even though the judgment is actually made according to its opinions. Because the parties can neither participate in the discussion nor understand the content thereof, this actually deprives the parties of their right to participate in the proceedings.
Firstly, the parties cannot apply for a recusal even if the members of the adjudication committee fall under such conditions.
Secondly, the parties do not know whether their case will be discussed by the adjudication committee, and cannot express their opinions when the adjudication committee does so.
Thirdly, according to China’s Civil Procedure Law (CPL), trials should be conducted publicly. In fact, the discussion of the adjudication committee is also a trial of the case, but it is not conducted publicly, and neither the parties concerned nor the public can have any information thereof. 
3. Interfering with the case trials
As discussed above, sometimes the collegial panel can “'hide behind” the adjudication committee to resist the external pressure. However, in some other cases, the external forces can also manipulate the adjudication committee to exert pressure on the collegial panel. Since the adjudication committee has the power to discuss and make decisions on ongoing cases, it is likely that external forces can "legitimately" affect the judges through the adjudication committee. 
Besides, it is uncertain that who will become an adjudication committee member, what kind of case will be submitted to the adjudication committee, and how the adjudication committee will make decisions. These uncertainties will further facilitate the intervention of external forces. 
III. Before and after: The adjudication committee in the current judicial reform
Before the current judicial reform (2014 - present), one of the important functions of the adjudication committee was to "discuss difficult, complex and major cases". For cases tried by the collegial panel, the adjudication committee may decide on the fact-finding and the application of law, and the panel must accept its decision.
However, the adjudication committee members were not the judges who heard the cases in court personally. And they made decisions that would affect the outcome of the case only based on the report of the collegial panel.
At present, this power has been reduced to "discuss and decide the application of law in difficult, complex and major cases" in the reform in Sept. 2019 (i.e. the 2019 Regulation mentioned in the first post of the Series).
This change reflects the long-standing debate on the powers of the adjudication committee in China’s legal profession. This is why the SPC has been trying to carry out this reform.
Chinese courts not only need the adjudication committee but also should reform the same., which had been the focus of the previous three rounds of judicial reform. In the recent fourth and fifth judicial reform, the SPC has issued a number of documents related to the reform of the adjudication committee, which shows its continuous exploration of specific practices for this purpose.
Cover Photo by 天琦 王(https://unsplash.com/@tinki) on Unsplash
Contributors: Guodong Du 杜国栋