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

Winter 2015 Issue

Judicial Reform Report


Inside China: Judicial and Legal Reform in the People’s Republic

China Court HouseBy: Lisi Wei, Lawyer, Inner Mongolia Autonomous Region, People’s Republic of China


There is no doubt that China has a very long history and Chinese law is one of the oldest legal traditions in the world. The contemporary social control is rooted in the Confucian past which based on the philosophy that social control should be established and exist through moral education, as well as a legal emphasis on codified law and criminal sanction.

In the Revolution of 1911, the Republic of China adopted a largely Western-style legal code in the civil law tradition. The establishment of the People's Republic of China in 1949 brought with it a more Soviet-influenced system of socialist law. Although a basic legal system including provisions for laws and a three-level trial and appeal court system was established, few cases were brought to court during this period. Administrative agencies handled most complaints.

The first constitution wasn’t promulgated until 1954. Much effort was expended to make the legal system work, but the Cultural Revolution during the years 1966-76 made judicial authority mostly inactive and the legal system stagnated.

After the Cultural Revolution, a new constitution intended to provide a structural basis for the return to socialist legality was adopted in 1978. The Constitution was amended to adopt whole sectors of foreign legal systems, such as the U.S. banking and securities laws and German industrial property laws. The legal system since then has developed for the purpose of establishing a legal order for domestic purposes.

In the 21st Century, with the signing and ratifying of various international treaties and obtaining full membership in the World Trade Organization in 2001, the efforts of China to join the international community resulted in new and constant judicial reform. Successful economic reforms in the last 30 years resulting in a high economic growth rate of 9.67% per annum has given the Chinese leadership more patience to pay attention to the basic needs and social welfare of the citizens. The exceptional growth of the economy has led the public to seek further protection of their legal rights. Thus more disputes have resulted in an increased number of lawsuits to be resolved in the courts. This situation was confirmed in a speech by Wen Jiabao [the sixth Premier of the State Council of the People's Republic of China who held that position for ten years in the early 2000s] who confirmed that judicial reform is a natural outcome of political reform following 30 years of successful economic reform in China. A successful outcome of judicial reform will largely depend on an effective strategy for implementing judicial reform at a suitable pace and adjusted to the reactions in Chinese society.

Process and Achievements of Judicial Reform in China

The realization on the part of Chinese leaders that it is necessary to continue to learn from foreign peers in this transforming stage resulted in China making five year plans for judicial reform. The first 5-year plan from 1999 to 2003 was designed to improve trial procedures and rebuild judicial credibility. The Supreme Court established litigation procedures for the district courts around the whole country, which not only built up a uniform standard but also introduced the idea of cross examination of witnesses in hearings, majority vote for sentencing, and establishing procedures for enforcement of judgments through a court enforcement administrative office. In addition to changes inside the judicial system, there was created a legal education program in universities to provide for, eventually, a source for legally trained judges. Magnificent court houses were also constructed to help the new legal system work and add prestige to the court system.

The second 5-year plan from 2004-2008 was designed to insure judicial fairness and neutrality as administered by the courts. More efforts were directed to establish judicial review, to establish appropriate relationships with other branches of government at the local level, and to balance the powers of prosecutors and defendants in criminal procedures. Judicial review of administrative decisions was established and provisions were made for appeals to a higher court jurisdiction if local government officials tried to interfere with court proceedings or court judgments. According to incomplete statistics, in 2006, 17,018 administrative decisions were declared invalid or illegal. Judicial review resulted in the changes of 34% of a total 92,613 decisions made by local governments. Courts sustained only 18% of total administrative decisions. Similar strategies were also developed for special civil jurisdiction to avoid local protection in commercial cases.

Other legal reforms have focused on individual and human rights. Courts now recognize the principle of presumption of innocence of the accused in criminal cases and that principle is applied in court hearings. New rules have been promulgated for making confessions of the accused without corroborating evidence excluded from evidence in criminal cases in order to eliminate the possibility of cruel treatment of the defendant during the investigation. As a result, approximately 4000-6000 persons were declared


innocent each year between 2000 and 2004, 2,162 persons in 2005 and 1,713 persons in 2006.

One notable legal reform is the provision for assistance of counsel for persons accused of crimes and legal aid for disadvantaged plaintiffs. Supporting this effort has been the founding and functioning of the first NGO legal aid institution in 1992. Several local courts have developed provisions for compensation to victims in criminal cases when the accused had no ability to pay for civil damages. In 2006 a total of 41,412 criminal suspects were provided with free assistance of counsel services. A total of 282,581 plaintiffs in civil litigation benefited from legal aid.

After China joined the World Trade Organization in 2001 a new effort is being made to ensure consistent application of law. Since January 1, 2007 all death penalty cases must be subject to appellate review before being submitted to death penalty review by the Supreme People’s Court, to avoid wrong decisions and to make sure that the death penalty is used for only serious crimes. This has resulted in fewer capital punishment judgments.

For international cases, Chinese courts now respect international arbitration awards. Preliminary decisions on non-recognition or refusal to enforce an international arbitration award must be submitted to high courts and the Supreme People’s Court for final decision. A model case law system has been developed which allows a leading case from a lower court to be declared by the Supreme People’s Court as the model for all other courts.

The next five-year plan was developed at the Fourth Plenary Session of the 18th Central Committee of the Communist Party of China meeting that ended in October, 2014. It includes, for the first time in the Party’s history, provisions that the rule of law be the central theme for the functioning of the legal system. This five year plan covers a wide range of issues and subjects to promote the rule of law in Chinese society. The new plan affirms efforts to ensure that the country is governed under the Constitution and through the law. These objectives require the establishment of efficient enforcement mechanisms, a rigorous supervision system, and a strong safeguarding system for implementation. To be more specific, there will be increased scrutiny of government decision-making with lifelong accountability for major decisions by officials and a public record set up to name officials who have interfered in judicial cases.

Potential Efforts for New Reform

Although reforms have become more and more sophisticated under the successive five year plans, there are still more challenges ahead with potential efforts for new reform. The fourth legal and judicial five-year roadmap released in November, 2014 sets out four broad areas of reform, relating to eight general areas. These include personnel reforms, separate administrative and judicial jurisdiction, improvements in the operation of the judicial function, administration and protection of human rights, increased judicial transparency, clarifying the roles of the four levels of the courts, and promotion of reforms relating to petitioning.

The intention of the personnel reforms is to remove the treatment of judges from other civil servants, to step away from the traditional model of judges as cadres. This will involve pushing forward the initial reforms being tested to change the personnel management of local courts, and transfer that function to the provincial level.  The reforms in separate administrative and judicial jurisdictions include taking steps to take certain cases, such as some environmental and commercial cases, out of local administrative jurisdictions; to make hearings more fair; to bring some specialized courts, such as forestry courts, into the ordinary court system; to establish a system for circuit tribunals at the provincial level to hear difficult cases; and to focus on environmental cases, and, in areas where there are more intellectual property cases, to promote the establishment of intellectual property courts.

The idea in court reform of having the person who heard the case decide it remains difficult to implement within the Chinese judicial system. Despite initial attempts, internal multi-level approvals for deciding cases remains the norm. Importantly, reforms look to change the current relationship between judges, the tribunal, and others in a position of leadership within the courts, such as the head of the division and court president. A great deal of thought has gone into this section. Implementing these reforms will involve changing long-term patterns of interaction.

Other areas of potential reform include improving the protection of human and property rights, particularly by improving judicial review of the investigation and prosecution stages in criminal cases; increasing judicial transparency by making the hearing stage more open; improving the system of public information about cases; permitting spectators to attend court hearings; providing for real time broadcasts of hearings; improving the handling of judicial information, so that litigants can determine the status of their case on-line; and developing a judicial decision database, called the Judicial Decisions of China.

(Note: the author of this article, Ms. Lisi Wei, was an intern at the International Judicial Academy in the summer and fall of 2014).

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© 2015 – The International Judicial Academy
with assistance from the American Society of International Law.

Editor: James G. Apple.
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