International Judicial Monitor
Published by the International Judicial Academy, Washington, D.C., with assistance from the
American Society of International Law

Spring 2012 Issue



China and Its Legal System – Vastly Matured in Thirty Years

Dr. James G. Apple By: James G. Apple, Editor-in-Chief, International Judicial Monitor and President, International Judicial Academy

Several years ago I attended a lecture in Washington, D.C. about China. The presentation was given by a former senior member of the U.S. diplomatic corps. Part of his diplomatic career in the recent past had been spent in China. At the end of the lecture I asked his opinion about China’s legal system. “What legal system?” he replied.

I was greatly surprised at his response, because by that time I had traveled to China three times over the past 23 years and had observed first hand the rapid progress that China had made in developing its legal and court systems. The answer of the diplomat was patently unfair and revealed an ignorance about a major topic involving the PRC that was very unsettling to me personally. If a senior U.S. diplomat who had served relatively recently in China did not know very much, if anything, about China’s legal system, what was the level of ignorance about it among U.S. government officials and the U.S. general populace?

I first visited China in 1986, when the economic reforms of Deng Xiaoping had not yet had much effect on the general populace of China or on the Chinese legal landscape. There were few lawyers and few courts. The legal delegation of which I was a part was not shown any courthouses, possibly because there were none or very few. We were permitted to view a criminal trial in one city. The courtroom was a large auditorium-like structure, more suitable for viewing a play or concert than presenting a trial. The three judges and the prosecutor wore military uniforms. It was more of a “show trial” and did not reveal very much about the state of the legal and court systems of China.

In a visit 12 years later, in April of 1998, when I visited China as a member of a U.S. State Department delegation preparing for the visit of President Clinton to China the next month, I visited the judicial training center outside Beijing. It was a relatively new institution. In my interview with the director of the center I asked him how judges were selected to attend training sessions at the center. He replied that he placed advertisements in newspapers! I had read that many of China’s judges at that time were former military officers.

These experiences reflect China’s historical experience with law and legal systems. Law was never a strong part of Chinese society in the pre-Mao era, and was even less so during the Maoist years following the Chinese civil war in 1945-1948. The subsequent Mao-induced Cultural Revolution completely swept away most legal institutions and with them, judges and lawyers.  Thus, during the post-Cultural Revolution period, from 1978 onward, China had to build its legal and court systems from the ground up. There was little foundation with which to work.

What is particular amazing now about China’s legal and court systems is not how primitive it is but how much progress has been made in the thirty-five years since Deng Xiaoping initiated his reforms. After 1998 I have visited China four times during the past four years. I have visited 17 cities in 11 provinces and three municipal regions. In all of these visits I have toured courthouses and talked with judges and court officers and sat through presentations about the state of the legal system in each geographical region I was visiting. What I have seen and heard during those visits is a far cry from the “What legal system?” observation of the senior U.S. diplomat mentioned earlier.

It was obvious to me that, in planning for the future of its legal and court system in the 1980s and 1990s, China had two major problems that needed to be urgently addressed. One problem was the lack of trained lawyers to support a legal and court system by providing trained professionals to undertake the jobs of representing clients, bringing cases to courts, and staffing courthouses with judges and administrators. The second problem was the absence of a physical infrastructure for the court system – courthouses.

China has solved the first problem by building law schools, lots of them. There are now over 600 law schools in China, with several in Beijing and other major cities that could match the quality of legal education in some of the better law schools in the United States.

The second problem has been resolved by an impressive court building program which is nothing less than amazing. During my trips to China in recent years, in each city I visited, I was escorted to one or more of the new courthouses - large, spacious and beautifully designed, most often with high technology support to match the modernity of the buildings themselves.

In these visits I have also been introduced to statistical evidence that the Chinese legal system and courthouses are being used by China’s citizens.

It demonstrated conclusively not that China’s legal system was non-existent, but exactly the opposite – that Chinese citizens are using it almost to the breaking point. The statistics from one province, the province of Zhejiang, in east central China, with its capital city of Hangzhou, demonstrate the explosive growth of cases in the courts of that region, a situation that is apparently replicated in other provinces with the largest cities in China. In Zhejiang Province, a Power Point presentation revealed the growth in the use of courts there. The total number of cases brought in the provincial courts of that province in 1980 was 42,770. Ten years later that number had increased to 166,000.  By 1990 the number of cases had increased to 240,000. That figure doubled in five years, to 570,000 in the year 2000. In 2009 the number had increased to 700,000, and in 2011 the total number of cases in all of the courts of that province was 830,000. This burgeoning case load presented another obvious problem – how to expeditiously process all of the cases.

The courts of China are also increasingly being staffed by educated, professionally trained lawyers, including judges. The requirements to become a judge have changed dramatically from the days of newspaper ads for judges, the situation that existed in 1998. In 2011 the Supreme People’s Court promulgated a new law that requires candidates for judicial or court positions to take a national examination and then be subject to an evaluation process that takes into account the age, education, work experience, and personal qualities of the candidate. This has dramatically increased the educational level of court staffs

In one city I was advised that 64% of the court employees had a bachelor’s degree, and another 25% had a master’s degree.

The court management system has also become more sophisticated and is controlled by the judiciary. Before 1982 the courts were managed by other agencies in the Chinese government. In that year the situation changed, and the judges began to manage the court systems by themselves, thus giving them some degree of judicial independence. Encouragingly I heard several references to judicial independence in some of the briefings given to the delegations of which I was a part.

Two anecdotes from my most recent trip to China in April of this year serve to illustrate the inaccuracy of the diplomat’s view of the Chinese legal system mentioned at the beginning of this narrative, and reveal the progress that China has made in developing its legal and court systems. In the International Judicial Academy delegation that visited China in April was a U.S. district judge from a midwestern state. He told me of a recent experience he had involving a case from China. A U.S. firm had developed a certain product that the firm’s owner wanted to sell in China. He contacted a Chinese firm to handle the marketing and sales of the product there. The Chinese firm agreed to the proposed arrangement, received shipments of the product and sold them, but excluded the U.S. firm from any of the proceeds of the sales. The U.S. firm sued the Chinese firm in a Chinese court, claiming damages for breach of contract and fraud. The Chinese judge ruled in favor of the U.S. firm, but the Chinese firm failed to pay the amount of the judgment. The U.S. firm discovered that the Chinese firm had on deposit in a bank in the state where the federal judge was sitting a large sum of money. The U.S. firm sued in the federal court in the judge’s home state to attach the bank account of the Chinese firm. The original judgment of the Chinese court was part of the pleadings of the U.S firm. The U.S. judge told me that the Chinese judgment on which the action in his court was based included an excellent recitation of the facts of the case and the applicable law, and presented a well written and well reasoned opinion. He admired the quality of the Chinese judge’s opinion, and gave judgment for the U.S. firm in the attachment proceeding.

During my April trip to China I told the story of the diplomat’s speech and his response to my question about the Chinese legal system to a fellow member of the U.S. delegation. She was an experienced and well known international lawyer with a recognized expertise in international commercial arbitration, including experience with Chinese arbitration practices and procedures. Her immediate response to my recitation of the experience with the diplomat was “I don’t agree with that at all. I have clients now who specifically ask for Chinese arbitration services and Chinese arbitrators.”

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© 2012 – The International Judicial Academy
with assistance from the American Society of International Law.

Editor: James G. Apple.
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