China’s Supreme People’s Court (SPC) tries to empower judges to exercise adjudicative power independently while taking more measures to supervise the trial work.
This practice is called Judicial Accountability System in the latest round of judicial reform (2014-2017) of Chinese courts. The Judicial Accountability System is at the core of many reform measures and is considered as the rudder for steering China’s judicial reform, or best captured by the image of being the “nose of a bull” (“牛鼻子”), as described in some policy documents.
1. Background
As we introduced in the previous CJO posts, the Chinese court system is such a hierarchical organization that the lower-level judges must obey the superiors. For example, the superiors have the power to review the judgment drafted by the lower-level judges and decide whether to approve the judgment. This is called the “Review and Approval of Judgment System”, or the Judgment Issuance System with distinct Chinese characteristics.
This means that in China, you have to convince not only the judge who is handling the case in court, but also those superiors at different levels behind him/her. And the latter never appear in court.
The Judicial Accountability System attempts to revoke the power of senior judicial officials to interfere with the judge’s hearing of cases. The so-called Judicial Accountability System means “he who hears the case shall make the judgment and be liable therefor” (让审理者裁判，由裁判者负责).
On the one hand, the Judicial Accountability System tries to ensure judges’ independent exercise of their adjudicative power.
The Communist Party of China (CPC) and the SPC explained that the judicial reform is to delocalize, that is, to prevent local governments and local party organizations at all levels as well as their leadership from interfering with judicial activities, for instance, intervening in the specific case trial. The judicial reform is also to de-bureaucratization, that is, insiders of the judicial organs shall never interfere with the cases that other people are handling in violation of laws.
It is precisely for these two goals that judges must be entitled to the independent exercise of adjudicative power. To this end, the SPC requires all courts across the country to abolish the “Review and Approval of Judgment System”.
On the other hand, the Judicial Accountability System also requires supervision of judges’ adjudicative power.
The SPC is concerned that if judges’ power to make a judgment is not subject to supervision, the quality of their work is likely to fall substantially, and may even lead to violations such as corruption. Therefore, it is essential to seek an alternative monitoring mechanism.
The SPC believes that it is only natural that judges must be held accountable for the cases they hear since they have the power to handle cases independently. Therefore, it is reasonable to continue to supervise judges after the revocation of “Review and Approval of Judgment System”.
2. What is the specific content of the Judicial Accountability System?
The SPC promulgated 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, and issued “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）》) and “Opinions of the Supreme People's Court on the Implementation of the Judicial Accountability System (For Trial Implementation)” (《最高人民法院司法责任制实施意见（试行）》) in 2017. The content of the Judicial Accountability System is mainly embodied in these three documents.
(1) Judges have the power to hear cases independently
The judge who hears the case has the right to issue the judgment of the case he has heard.
The president, vice president, and director may not review and approve the judgments of cases that they have not participated in.
For some major cases, the president, vice president, and director may request the judge to report, yet they have no rights to change the judge’s decision. Cases where the judgment proposed by the judge conflicts with the judgment of a similar case in the court or a higher court, will be classified as the “major case” mentioned above.
A meeting of professional judges will be established within the court to provide advice to judges on how to apply the law. It’s up to the judge himself/herself to decide whether the advice is accepted.
The internal adjudication committee (composed of the president, vice president, director and several senior judges) may discuss certain major cases and has the power to request the case be handled and decided according to its opinion. The decision of the adjudication committee is subject to a vote by its members. If the order of the adjudication committee leads to a wrong judgment, members voting with the majority will be held liable.
(2) Judges hold lifetime responsibility for the quality of cases they handle
A judge shall be responsible for the quality of cases handled by him/her for life. 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. Prior to this, Chinese judges were not held accountable for their cases for life.
A supervisor shall be held liable for supervision and management if he/she intentionally or with gross negligence fails to supervise or conduct improper supervision, resulting in any wrong judgment and causing serious consequences. Prior to this, senior judicial officials were not the judge who actually tried the case, and thus usually took no responsibility.
In addition, the SPC is planning to establish judicial disciplinary committees in the provincial high people’s courts. If the local court thinks that a judge should be disciplined, the case will be reported to the judicial disciplinary committee which will review the case and propose opinions. Then the court where the judge serves makes the decision on whether to punish the judge in line with these opinions.
(3) Judges are forced to retrieve similar cases
A judge shall retrieve similar cases and related cases in his/her court when he/she hears a case. The judge shall ensure that the judgment he/she intends to make uses the same standards as similar cases of this court.
Judges shall process the search results as follows:
i. If the standards are consistent, the judge can make a direct decision.
ii. If the judge believes that the case he/she is handling is of a new type, he/she may create a new standard and the adjudication committee may decide whether the new standard should be adopted.
iii. If the judge believes that the case he/she is handling may change the original standard, the adjudication committee may decide whether changes should be made.
iv. If the judge finds inconsistent standards of multiple similar cases of this court, this circumstance shall be discussed and decided by the adjudication committee.
(4) Keep all the “marks” in the information system
The SPC requires all courts across the country to process case information online, that is, all case-related information shall be recorded immediately in the court’s information system. The purpose of this is to make each segment of the process within the court traceable.
The following information about a case can be found in this system:
i. all archives of a case;
ii. discussion of the case and advice to the judge at the meeting of professional judges;
iii. discussion, voting and decision on the case of the adjudication committee;
iv. reports by the judge to the president, vice president and director;
v. intervention by the local CPC organizations and local administrative organs in the trial of the case.
The SPC believes that if the information is completely stored in the database, it would be possible to investigate and discipline those who have committed misconduct, including those who intervened in the trial. This information system will force those involved to refrain from engaging in misconduct.
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Contributors: Guodong Du 杜国栋 , Meng Yu 余萌
