China Justice Observer

中司观察

EnglishArabicChinese (Simplified)DutchFrenchGermanHindiItalianJapaneseKoreanPortugueseRussianSpanishSwedishHebrewIndonesianVietnameseThaiTurkishMalay

Chinese Judges Shall Undergo Review and Approval Before Rendering Judgments

Sat, 20 Oct 2018
Categories: Insights

 

Before rendering a judgment, a Chinese judge shall undergo review and approval by his/her superiors, who haven't tried the case. This practice has existed in China until recently, when China’s Supreme People Court has ruled out the practice in part in the latest round of judicial reform (2014-2017), as an indispensable component of the “judicial accountability system”. Nevertheless, Chinese courts’ operational structure, as embodied in the practice, has not been fundamentally changed. 

1. Review and approval of judgments

The system of review and approval of judgments means that after the judge, who hears the case, drafts a judgment or a ruling, he or she shall first report to the director of his or her division and, if needed, the president of the court in charge of the case. Only after their review and approval can the judge publish such document as a formal judgment or ruling and serve such document on the parties.

The president or the director usually has such authority: first, they can review the facts, evidence, laws, adjudication results, and words expressions in the draft judgment, and have the right to modify what they consider to be wrong or inappropriate, or to request the judges to re-write the judgment; secondly, after reviewing the draft documents, they can decide whether such document can be served as a formal judgment on the parties.

In other words, because the president or the director reviews the content of the draft judgment, the president or the director has actually shared the judge’s power of adjudication in specific cases.

2. Reasons for the practice

Since the establishment of the People's Republic of China (PRC), Chinese courts have begun to implement the practice of judgments review and approval, and the practice has continued to the present.

There are two reasons why this practice still exists:

First of all, according to the PRC's Constitution, China's judicial independence refers to the trial independence of the court, rather than the trial independence of the judge. Therefore, the judge's power of adjudication in specific cases is not completely independent, and other members of the court (especially the supervisors, including the president and the directors of the court) can share the judge's power of adjudication.

Secondly, for a long period after the PRC’s establishment, the professional competencies and ethics of Chinese judges are still not satisfactory. Therefore, the judgment review by an experienced president or director of the court can reduce or prevent the judge from rendering wrong or unfair judgments.

3. Doubts about this practice

In China's judicial reform, the practice of judgment review and approval has been doubted, including:

First, there is no legislation or rules in China that clearly stipulates this practice, so it is not a statutory procedure.

Second, this practice undermines procedural justice. The president or the director of the court does not hear the case in person and their understanding of the case just results from the written documents or statements. Therefore, the practice that they share the judge’s power of adjudication is inconsistent with the procedural justice.

Furthermore, this practice is inconsistent with the powers and responsibilities of the judge. As the judge is the person who signs on the judgment, the judge is responsible for the wrong or unfair judgment. However, even if the president and the director have substantially affected the content of the judgment, they do not have to bear any responsibility.

4. Reform of this practice

In 2014, the SPC issued the “Reform Outline of the Fourth Five-Year Reform for the People's Courts (2014-2018)” (人民法院第四个五年改革纲要 (2014-2018)), which is a programmatic document for the reform of Chinese courts in the next five years. The SPC stated in the document that it will reform this practice.

First of all, the SPC clearly supports this view, i.e., "It is an objective requirement of the judicial rules to let the person who hears the case in person make a judgment and to let the person who makes the judgment assume the responsibility". Therefore, the SPC will ensure that the judge who hears the case “expresses his or her own opinions independently” and "bears the responsibility arising from his or her own opinions and performance in the process of case handling".

Secondly, the SPC will “reform the judgment issuance system”, so that the judgment made by the judge hearing the case will no longer need to be reviewed and approved by the president and the director of the court.

Thirdly, the SPC still retains the president and the director's power to supervise significant, difficult and complicated cases. However, all the documents produced in their supervisory activities should be filed in the archives, so that the supervision itself is also recorded and subject to scrutiny.

 

 

If you would like to discuss with us about the post, or share your views and suggestions, please contact Ms. Meng Yu (meng.yu@chinajusticeobserver.com ).

If you wish to receive news and gain deep insights on Chinese judicial system, please feel free to subscribe to our newsletters (subscribe.chinajusticeobserver.com ).

Contributors: Guodong Du 杜国栋 , Meng Yu 余萌

Save as PDF

You might also like

SPC Releases Typical Cases of Punitive Damages for Food Safety

In November 2023, China's Supreme People's Court (SPC) released typical cases of punitive damages for food safety, emphasizing consumer rights protection and highlighting instances of tenfold compensation awarded to consumers for food safety violations.

SPC Launches Nationwide Judgments Database for Court Staff

In November 2023, China’s Supreme People's Court announced the creation of a national database for court judgments, featuring finalized documents since 2021, which would be accessible to court staff nationwide via an internal intranet starting January 2024.

SPC Issues Judicial Interpretation on Ascertainment of Foreign Law

In December 2023, China’s Supreme People’s Court issued a judicial interpretation on the ascertainment of foreign law, providing comprehensive rules and procedures for Chinese courts, aiming to address difficulties faced in foreign-related trials and improve efficiency.

Beijing Courts Release 30-Year IP Report in English

In November 2023, the Beijing High People’s Court released a 30-year English version of the Intellectual Property White Paper, detailing a substantial caseload and growth in intellectual property cases from 1993 to 2023.

Beijing Court Releases Report on Violation of Citizens’ Personal Information

Charting the evolution of China's data protection landscape from the 2009 Criminal Law Amendment to the 2016 Cybersecurity Law, and to the 2021 Personal Information Protection Law, a pivotal white paper issued by Beijing High People’s Court in November 2023 underscores the role of Chinese courts in enforcing stringent rules for network operators and safeguarding citizens' personal information.

SPC Reports 9.12% Rise in Cases, Surges in Key Areas

In October 2023, China’s Supreme People’s Court (SPC) released key judicial data from January to September 2023, showing notable rises in non-motor vehicle traffic accident disputes, international commercial cases, and intellectual property disputes.