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IDE Asian Law Series No. 2 Judicial System and Reforms in Asian Countries (China)

China’s Judicial System and its Reform

Institute of Law Chinese Academy of Social Science Beijing

INSTITUTE OF DEVELOPING ECONOMIES (IDE-JETRO) March 2001 JAPAN

PREFACE With the evolution of the market-oriented economy as well as the increase in cross-border transactions, there is an urgent need to conduct research and comparisons of judicial systems and the role of law in development in Asian countries.

The

Institute of Developing Economies, Japan External Trade Organization (IDE-JETRO) established two research committees in FY 2000: Committee on “Law and Development in Economic and Social Development” and Committee on “Judicial Systems in Asia.” The former has focused on the role of law in social and economic development and sought to establish a legal theoretical framework therefor.

The latter committee has

conducted research on judicial systems and the ongoing reform process of these systems in Asian countries, with the aim of further analyzing their dispute resolution processes. In order to facilitate the committees’ activities, IDE has organized joint research projects with research institutions in seven Asian countries. This publication, named IDE Asian Law Series, is the outcome of the research conducted by respective counterparts. This series is composed of papers which correspond to the research theme of the abovementioned committees, i.e. studies on law and development in Indonesia and Philippines, and studies on judicial systems and reforms in China, India, Malaysia, Philippines, Thailand and Vietnam.

For comparative study the latter papers

include description of judiciary and judges, prosecutor/prosecuting attorney, advocate/lawyer, legal education, procedures and ADR with statistical information thereof. We believe that this is an unprecedented work in its comprehensiveness, and hope that this publication will contribute as research material and for the further understanding of the legal issues we share.

March 2001 Institute of Developing Economies

LIST OF CONTRIBUTORS

Institute of Law Chinese Academy of Social Sciences Professor Xin Chunying

Organizer Deputy Director of the Institute of Law

Professor Ye Ziqiang

Procedural Law Section of the Institute

Dr. Zheng Qiang

Jurisprudence Section of the Institute

Mr. Xie Haiding

Jurisprudence Section of the Institute

Dr. Ge Mingzhen

Ph.D. Candidate

Table of Contents Preface

i

List of Contributors

ii

Table of Contents

iii

PART I

OVERVIEW: JUDICIAL REFORM IN CHINA

1

CHANCES AND CHALLENGES

PART II THE COURT SYSTEM OF CHINA

6

A. The constitutional status of people's courts

6

B. The relationship between people's courts and other organs

7

1. The relationship with legislative organs

7

2. The relationship with administrative organs

7

3. The relationship with other organs

8

(1) The relationship with people's procuratorates

8

(2) The relationship with public security organs

8

(3) The relationship with the organs of Communist Party

9

C. The organization and structure of people's courts 1. The organization of people's courts

D.

9 9

2. The functions of people's courts

10

3. The judicatory of people's courts

12

Judicial procedures of people's court

14

1. Civil procedure

14

2. Criminal procedure

15

3. Administrative procedure

16

4. Special maritime procedure

17

E. The structure of people's court

17

F.

19

Particular court systems in Special Administrative Regions

G. The trend of judicial reform in China

20

H. Relevant Statistics

21

PART III A.

THE SYSTEM FOR PEOPLE'S PROCURATORATES

Establishment of System of Procuratorates in China

22 22

B. Constitutional Status of Chinese Procuratorates

24

C. Tasks of the Procuratorates

24

D. The Establishment of the Procuratorates

25

E. Qualifications for a Procurator

26

F.

Scope of the Legal Supervision of the Procuratorates

29

1. Legal supervision on the state organs

29

2. Supervision on the state functionaries

30

3. Supervision of the violation of law by citizens

30

4. Supervision of the violation of Chinese law by foreigners

30

G. Content of the Legal Supervision 1. Supervision of law discipline

31

2. Supervision of the investigation

32

3.

34

Supervision of the criminal trial

4. Supervision of executions

34

5.

35

Supervision of the civil trial

6. Supervision of the administrative trial H. Attachment of Forms

PART IV THE LAWYER'S SYSTEM IN CHINA A.

31

Historical Development of the Lawyer's system in China

35 36

38 38

B. Current Situation of the Lawyer's Profession in China

41

C. Lawyers Associations

44

D.

1. The Nature and Purposes of the Lawyers' Associations

45

2. The Establishment of Lawyers Associations

45

3. The Functions and Powers of the Lawyers Associations

46

4. The Organizational Structure of the Lawyers Associations

48

Professional Ethics of Lawyers

49

E. Relevant Statistics

PART V

JUDICIAL PROCEDURE OF CHINA

52

54

A. Civil Judicial Procedure

54

B. Criminal Judicial Procedure

62

C.

1. Filing a case

62

2. Investigation

64

3. Initiation of public prosecution

65

4. Criminal Trial

67

Administrative Judicial Procedure

68

(Judicial Review of Administration and Legislation )

D. Arbitration Procedure

70

E.

76

Relevant Charts

PART VI LEGAL EDUCATION IN CHINA

77

A. Historical Development of Legal Education in China

77

B. Current Legal Education System in China

78

1. Legal Education at the Undergraduate Level

78

2. Graduate Programs in Law

80

3.

82

Special Course Legal Education and Non-degree Legal Education

C.

Uniform National Examination for Qualification as Lawyer

D. Relevant Statistics REFERENCE

82 85 88

PART ONE OVERVIEW: JUDICIAL REFORM IN CHINA CHANCES AND CHALLENGES

Ⅰ Judicial reform has become one of the most frequently used terms in China today. By the term Judiciary”, most people, including me here, mean courts even though the legal definition of judiciary in China is broader. Observing the changes brought about by the 20 year’s reform, we should attach equal importance to the social change as we do to economic growth. At any rate, to let 1/5 of the world population to live under a more reasonable social structure is a more noble goal than just let them to be rich. This is the major reason why I highly evaluate the increasing role played by courts in social life. Because of the original design and the task of China’s court system was so different from what they are required and what they are doing today, courts deficiencies have become the target of social criticism. If you are in a taxi, chatting with the driver, it is more likely that he would tell you what in his mind to reform the judiciary. The courts are just like a patient, and everybody else is considering himself a doctor or a surgeon, either can offer some good healer, or a helpful operation. Interestingly, the public is more prudent to openly criticize other State Apparatus than they do to the courts are. This phenomenon, for me, presents some fundamental social changes. First, courts are no longer something that don’t matter in people’s lives. The statues of courts bear in social life is leveled up by the date to date development of social complexity, and the higher expectations for the courts by the general public is higher. And maybe more important, judicial power is more welcomed to substitute administrative or Party’s power when there are conflicts. For more than thirty years since P.R.C was founded, Chinese courts were in an idle position except in political movement. They are not supposed to be a judgement organ for social justice, but an instrument for “ proletariat dictatorship”. A central government Circular in 1950 States that:” like people’s military and people’s police, people’s judicial work is also a 1

1

important instrument for the people’s regime” Under this instruction, Judgement is a kind of work that should not be neutral, but with class awareness, namely, be aware that who is your friend, and who is your enemy”. Mao Zedong’s famous formula, that is to use different ways to solve different social contradictions is also applied in courtrooms: contradictions among the people, the way of democracy, contradictions between people and enemy, dictatorship. So before mid 80’s, there was little room for courts to play. It is understandable that, in a society where there was no private property right, where labor was treated as a chess on the chessboard, where one was allocated no more economic resources than meeting basic subsistence needs, and where all the economic activities were organized and managed by the government, where economic entities were seen as players of the state functions, civil and economic laws are not needed. Correspondingly, in such a society, there was no soil for administrative litigation laws as well, because the ideology entitled government an Un-challenged position to represent people and to exercise all kinds of rights on behalf of them. So for quite a long period of time, to most Chinese people, “laws” equals to criminal rules. In most cases, the sentence “somebody violated the law” simply means, “somebody committed a criminal offense”. This situation started to change since early 80’s. As economic reform and other social reforms are going into depth, more and more disputes are brought to courts. Economic section was established in mid 80’s, and then followed the administrative law section in later 80’s. In the year of 1997, cases filed to courts are almost five times more than that was in 1986. The following social factor may be considered as the reasons for the change. 1. Market oriented economic reform 2. Governmental organization reform 3. Rapid development of Private Business 4. Rural reform and the waves of floating population In many cases, courts are the only place that people can go when they have conflicts. Second, People’s increasing awareness of rights. As the concept of rule of law starts to be rooted in the society, people entrust a heavy weight on courts, hoping social justice and a new social order should be created through court function. The old saying:” Never go to court when you alive, never go to heal when you die”, which described the traditional attitude of Chinese people toward courts, is not true any more. “ I am going to sue you in courts as a phrase that used to show the helplessness of the subject, was seen as he has no better ways to 1

The Circular by the State Council of the Central Government on strengthening People’s Judicial work , 1950

2

seek, now is a strong statement, with proud and power. It is true that the right to bring someone to courts, often offer a feeling of empowerment for many people, you don’t have to be someone to exercises that right, as China was a society in which rights are distributed differently among the people. The pattern that” take your boss for dinner when there is a problem”, has changed to “ take your judge for dinner when there is a problem”, this can be a exciting thing for those who has no boss to take or talk to. The third, people’s high expectation of courts and the current irrationality with courts structure and the spreading judicial corruption. As the role of courts become increasingly important, naturally people’s expectation of the court is higher. Obviously, they are not satisfied with the current situation of the courts. Dealing with courts in current China means uncertain results, high cost, delayed process, and finally, even if you are survive of all the suffering, you can not get your court award. The fourth, the discrepancy between comparatively well written laws in paper and the weak enforcement in real life. Since early 80’s, along with the course of its opening and reforms, development of a new legal system has become an important part of China’s modernization process. By 1998, the National People’s Congress had promulgated more than 300 new laws, the State Council and various line ministries had enacted more than 4,000 regulations, and provincial People’s Congress and governments had adopted more than 5,000 local regulations. But it is are very disappointing if we see the sharp discrepancy between laws in paper and laws in real life. Law enforcement by courts, are in a very poor situation. Some study shows that only 20% of the laws are being implemented, and 50% of the courts rulings on civil and economic cases are either not enforced at all or enforced with much discount or delay. A statistic released by the Supreme People’s Court last summer demonstrated that difficulties in Enforcement has become a major issue. In the first 6 month of 1999, enforcement cases filed in courts reached 272,000, while the un-enforced court ruling reached 85,000, which involving RMB 2,590 billion. It is true that our courts are facing a great challenge. The Five Year Reform Plan by the Supreme People’s Court is quite right in saying that “ the managing system and mechanism of trial work of people’s courts has been critically challenged by the change in social relations, the adjustment of the social interest, the complexity of social contradictions”. To meet the challenge, the only alternative is to make some change.

3

Ⅱ What are the problems that ought to be reformed ? The problems with China’s courts, as we see them today, can be listed as two kinds. One is external and the other is internal. When I say external, I mean the constitutional structure, the relation between courts and the Party, Courts and the People’s Congress, Courts and other State Organs. The external structure sets the political background as well as the tone for the courts. The internal problems, I refer to the internal structure and system within the courts themselves. We can identify the following problems, both external and internal, which have been subjected to discussion both by academics and by general public. 1.

The nature and role of courts in the overall political structure;

2.

The administrative arrangement of courts structure, the judge, the collegiate bench and adjudication Committee;

3.

Qualification of judges and the ways to improve, and the related question

4.

The recruitment of judges and the way they are appointed,

5.

The independence of judges in making judgment

6.

Judicial local protectionism

7.

Financial arrangement

8.

Trial Model

9.

The administrative management of the courts

It is a long list, and the problems are associated with each other, sometimes it is hard to tell which is the egg, which is the hen. But, maybe just because the problems are so obvious and so unbearable both for the political authority and the general public, now is a good time to reform. The following can be favorable conditions: 1.

Politically, the 15th Party’s Congress has proposed the task of judicial reform as a integral part of the political reform. The Resolution on the Annual Report of the Supreme Court by the second session of the 9th National People’s Congress has put forward requirement for judicial reform, Stated that:” The courts should be reformed in order to meet the demand of rule of law”.

2.

Legally, the fourth constitutional amendments by the second session of the 9th National People’s Congress added the “ run the country by law and construct a socialist country rule of law o the constitution, inevitably, it will open a wider room for judicial reform.

3.

Socially, with the development of market economy as well as the increasing 4

awareness of rights, courts are required to protect the rights and interests of the clients equally and fairly, with due process . As The Outline for the Five Year Reform Plan by the Supreme Court put it:” to reform the judicial concept, model of management and operation that are not comply with economic construction and social development in the primary stage of socialist country’s necessary, and “ Courts reform has reached the consensus among the whole society”( article 2). 4.

Internally, reforms that have been done within courts system in recent years has accumulated some useful experiences for further reform. The trial model reform, the trend to empower individual judge and the collegiate bench, regulating the power of the adjudication committee, separating the power on case filling, enforcement, and supervision from trial, have achieved plausible results. Ⅲ

The reform of the courts system is an inevitable task, but it doesn’t mean it is a easy task. We are facing lot of dilemmas. Those dilemmas are well stated in the Five Years Reform Plan as we read article 4 of the document. According to this article, courts reform must insist the following principles: 1.

The Party’s leadership;

2.

The political system of people’s dictatorship in the form of people’s congress;

3.

Independent trial according to law;

4.

The unity of the national legality;

5.

Open to the useful experiences of foreign countries in court and judge management based on China’s specific situation.

If the five principles are equally important, the workable, or the desirable plan, given the existing political structure and ideology, which traditionally doesn’t support a independent judicial power, must not be a aggressive one. In another words, be aware of the limits, the unavailability of the political and social conditions that support a western style judiciary, like political pluralism, checks and balance in power structure, I personally would like to state the goal for judicial reform in current China as to shaping a stronger judicial power under the existing constitutional structure”. The reform planned for next five years is aimed this way.

5

PART TWO THE COURT SYSTEM OF CHINA

The power of courts is of prime importance in the allocation of state power. According to the western doctrine on “separation of powers”, state power can be divided into three branches, namely, legislative, executive and judicial power. In accordance with the theories embodied in the Constitution and laws of the People’s Republic of China, the forms of state power in China can be portrayed as “One Mother and Three Sons”: the legislative authority of organization of state power, the executive power of organs of state administration produced and supervised by legislative power, the judicial power of people’s courts and the procuratorial power of people’s procuratorates. Among the three powers in the western sense, the power of courts is the most important judicial power, and in China, the power of courts is secondary to the legislative authority, while parallel to the executive power and procuratorial power. Theoretically, power is based on rationality and justice, however, in the actual distribution and operation of power, interest is the foundation of the well-known power. Therefore, even for the western countries strictly adhere to the “separation of powers”, the powers divided in theory and the powers prescribed by law are always different, and the powers provided by law and the powers really operated are even more diverse, let alone the divergence between the theoretical powers and the real powers.

A. THE CONSTITUTIONAL STATUS OF PEOPLE’S COURTS Constitution is the law for allocation of state power. The constitutional status of courts in China is reflected in the stipulations of the Constitution of the People’s Republic of China. Articles through 123 to 128 in the 1982 Constitution determine the constitutional status of Chinese courts: The people’s courts of the People’s Republic of China are the judicial organs of the state; The people’s Republic of China establishes the Supreme People’s Court, the people’s courts at various local levels and military courts; The people’s courts exercise judicial power independently, in accordance with the provisions of the law, and are not subject 6

to interference by any administrative organ, public organization or individual; The Supreme People’s Court is responsible to the National People’s Congress and its Standing Committee; local people’s courts at various levels are responsible to the organs of state power which created them. People’s Courts are the organs that exercise the state power to adjudicate in China. They are independent to executive organs and procuratorates and are responsible to organs of state power while supervised by them.

B. THE RELATIONSHIP BETWEEN PEOPLE’S COURTS AND OTHER ORGANS 1. The relationship with legislative organs The relationship between people’s courts and legislative organs is firstly capsulated in the provisions of the Constitution. The Constitution of the People’s Republic of China postulate that: the National People’s Congress has the power to elect and remove the president of the Supreme People’s Court; the Standing Committee of the National People’s Congress exercises the power to supervise the work of the Supreme People’s Court and to appoint or remove, at the recommendation of the President of the Supreme People’s Court, the Vice-Presidents and Judges if the Supreme People’s Court, members of its Judicial Committee and the President of the Military Court; local people’s congresses at and above the county level have the power to elect and recall the presidents of people’s courts at the corresponding level; the standing committee of a local people’s congress at or above the county level supervises the work of the people’s court and decides on the appointment or removal of functionaries of people’s courts within the limits of its authority as prescribed by law. The Supreme People’s Court is responsible and reports on its work to the National People’s Congress and the Standing Committee of the National Congress, while local people’s courts at various levels are responsible and report on their work to the people’s congresses and their standing committees at corresponding levels. 2. The relationship with administrative organs The relationship between the people’s court and executive organs is also provided for by the Constitution. The Constitution of the People’s Republic of China established a political system of “One Government and two Judicial Institutions”. Thus, for the power distributed by the Constitution, Chinese Courts and executive organs are parallel. Their personnel are elected, appointed or removed by organs of state power and they are both responsible to organs of state power. However, in the actual operation of Chinese political system, the intrinsic defects 7

incarnated in the system caused the divergence between the provisions of the Constitution and laws and the reality. The details of the real relationship between the judiciary and the administrative organs are listed as follow: 1. The whole system of Chinese judiciary has no centralized budget and financial allocation by its own, consequently, the financial allocation for infrastructures, facilities, administrative fees and salaries of judges in people’s courts at various levels directly flow from fiscal expenditure at the corresponding levels; 2. The judiciary does not have its own force for coercive execution, such as judicial police to enforce any decision by courts. Therefore, whenever the courts intend to fully fulfil their impartial decisions, they have to turn to public security police at the corresponding levels; 3. According to procedure laws, executive organs have the obligation to help accomplish the item relevant to law suits mandated by courts, so it is difficult for the trial and other activities of courts to strictly obey to the provision of the Constitution as “ not interfered by any administrative organ”. The financial condition logically requires courts to take into consideration the relationship that is not laid down by laws or even illegal relationship with the administrative organs at the corresponding level. 3.The relationship with other organs (1) The relationship with people’s procuratorates The relationship between courts and procuratorates is not only embodied in the Constitution, but in organic law, procedure law and other relevant laws. First of all, as far as the legal status is concerned, procuratorates are equal to courts. Both of them are elected or appointed by organs of state power, responsible to organs of state power and supervised by organs of state power. Furthermore, as to the actual exercise of power, their relationship is mainly incarnated in the treatment of criminal cases. In the light of the article 135 of the Constitution of the People’s Republic of China, the people’s courts and the people’s procuratorates, in handling criminal cases, divide their functions, each taking responsibility for its own work, and they shall coordinate their efforts and check each other to ensure the correct and effective enforcement of the law. (2) The relationship with public security organs The power possessed by public security organs is a kind of executive authority. From the perspective of legal status of power, the power of public security organs is inferior to the power of courts. The latter is directly mandated by the Constitution, put it in another way, it is 8

secondary to the power of organs of state power. However, the public security organs are authorized by law. This is a power of kind among the executive powers, and it is just a type of power in the whole body of executive powers. Considering the regulations of law, their relationship is also mainly reflected by the way of tackling criminal cases, similarly, pursuant to the article 135 of the Constitution, in handling criminal cases, the people’s courts and the public security organs shall divide their functions, each taking responsibility for its own work, and they shall coordinate their efforts and check each other to ensure the correct and effective enforcement of the law. (3) The relationship with the organs of Communist Party In the relationship of Chinese state power, the organs of Communist Party of China enjoy a kind of special status. Therefore, it is dispensable for us to study the relationship between organs of CPC and other organs of state power when considering and analyzing various relationships of organs of state power. So is the situation for the power of courts. People’s courts set up local entities of CPC and the courts are led by the committees of CPC of the corresponding districts. In China, judges are cadres. While CPC select, train and manage the cadres. Thus, people’s courts are led by the committee of CPC.

C. THE ORGANIZATION AND STRUCTURE OF PEOPLE’S COURTS 1. The organization of people’s courts The Organic Law of People’s Courts of the People’s Republic of China revised in 1983 postulates in detail the organization and systems of Chinese courts. It says, the judicial authority is exercised by the following courts: local people’s courts at various levels; military courts and other special people’s courts; and Supreme People’s Court. The judicial work of lower people’s courts is subject to supervision by people’s courts at higher levels. Local people’s courts at various levels are divided into basic people’s courts, intermediate people’s courts and higher people’s courts. And basic people’s courts are: county people’s courts and municipal people’s courts, people’s courts of autonomous counties, people’s courts of municipal districts. A basic people’s court may set up a number of people’s tribunals according to the conditions of the locality, population and cases. A people’s tribunal is a component part of the basic people’s court, and its judgments and orders are those of basic people’s courts. Intermediate people’s courts are composed of intermediate people’s courts established in prefectures of a province or autonomous region, intermediate people’s 9

courts established in municipalities directly under the Central Government, intermediate people’s courts of municipalities directly under the jurisdiction of a province or autonomous region, and the intermediate people’s courts of autonomous region. And higher people’s courts include higher people’s courts of provinces, higher people’s courts of autonomous regions and higher people’s courts of municipalities directly under the Central Government. Special people’s courts consist of an important part of the unified organization system of people’s courts in China. They are tribunals set up by special institutions for deciding special cases. Military courts are judicial organs established in the army and are special courts belonging to military organization system. Military courts are divided into three levels: 1) military courts of army, military courts having army units, military courts of fleet, air force military courts of greater military areas, military courts of garrisons directly managed in Beijing; 2) military courts of greater military areas and of services and arms, containing military courts of greater military areas, military courts of air force and navy, military courts of the second artillery, military courts of general troops directly managed by PLA; 3) military courts of People’s Liberation Army of China. Military courts are special courts administered by the Supreme People’s Court, which is also their highest instance of trial. Maritime courts are special courts for adjudicating maritime cases and maritime commerce cases. A maritime court only has the judicial power of first instance. Cases of appeals and of protests lodged against judgments and orders of admiralty courts fall into the jurisdictions of higher people’s courts at the residence of the admiralty courts. Furthermore, maritime courts may exclude the jurisdiction of certain admiralty tribunals according to the necessity of situation. The jurisdiction areas of maritime courts are allocated in accordance with waters, which may stride across several provinces and not be restricted by administrative division.

Railway transportation courts are categorized into basic railway courts and intermediate railway courts. Besides all of the above-mentioned courts, there are also special courts of agriculture, forestry, oilfields and seaports. 2. The functions of people’s courts The functions of courts of different instance stipulated by organic law show the grade jurisdiction that courts have when exercising their judicial power. Except for cases otherwise

10

provided for by laws or decrees, a basic people’s court adjudicates criminal and civil cases of first instance. When a basic people’s court considers that a criminal or civil case it is handling is of major importance and requires trial by the people’s court at a higher level, it may request that the case be transferred to that court for trial. Besides trying cases, a basic people’s court undertaking the following tasks: settling civil disputes and handling minor criminal cases that do not need to be determined by trials; and directing the work of people’s mediation committees. An intermediate people’s court handles the following cases: cases of first instance assigned by laws and decrees to their jurisdiction; cases of first instance transferred from the basic people’s courts; cases of appeals and of protests lodged against judgments and orders of the basic people’s courts; and cases of protests lodged by the people’s procuratorate in accordance with the procedure of judicial supervision. When an intermediate people’s court considers that a criminal or civil case it is handling is of major importance and requires trial by the people’s court at a higher level, it may request that the case be transferred to that court for trial. A higher people’s court handles the following cases: cases of first instance assigned by laws and decrees to their jurisdiction; cases of first instance transferred from people’s court at lower levels; cases of appeals and of protests lodged against judgments and orders of people’s courts at lower levels; and cases of protests lodged by people’s procurorates in accordance with the procedures of judicial supervision. Special courts try the cases of their own departments or areas. Military courts of army handle the following cases: cases of first instance that involve a crime committed by persons of below battalion level who may be given a sentence of less than life imprisonment; cases of first instance that are authorized or assigned by military courts of higher levels to their jurisdictions. Military courts of greater military areas and of services and arms handle the following cases: cases of first instance that involve a crime committed by persons of vice-commander post at division level or of commanding position at the regimental level; capital cases of first instance and cases authorized or assigned by higher level military courts to their jurisdictions; cases of appeal and of protests. The Military Court of PLA handles the following cases: cases of first instance that involve a crime committed by persons of posts higher than division leadership; criminal cases concerning foreign interests; cases authorized or assigned by the Supreme People’s Court to its jurisdiction and other criminal cases of first instance that it considers should itself try; cases of second instance, judicial review of death sentence and retrial. Admiralty courts mainly accept the maritime and maritime commerce cases that shall be administered by China in accordance with the law. And railway courts mainly adjudicate the criminal cases that happen along the railway and the economic cases 11

pertaining to railway transportation. 3. The judicatory of people’s courts (1) Independent trial. The people’s courts shall exercise judicial power independently, in accordance with the provisions of the law, and shall not be subject to interference by any administrative organs, public organization or individual. (2) Equal application of law. In judicial proceedings in the people’s courts, the law is applied equally to all citizens, regardless of ethnic status, race, sex, occupation, social origin, religious belief, education, property status or length of residence. No privilege whatsoever is allowed. (3) Using the spoken and written language of one’s own nationality in court proceedings. Citizens of all nationalities have the right to use the spoken and written languages of their own nationalities in court proceedings. The people’s courts shall provide translation for any party to the court proceedings who is not familiar with the spoken or written language commonly used in the locality. In an area where people of a minority nationality live in concentrated communities or where a number of minority nationalities live together, the people’s court shall conduct hearing in the language or languages commonly used in the locality and issue judgment, notices and other documents in the language or languages commonly used in the locality. (4) Public hearing. All cases in the people’s courts shall be heard in public, except for those involving state secrets, privacy and the commission of crimes by minors. (5) Principle of defense. The accused has the right to defense. Besides defending himself, the accused has the right to delegate a lawyer to defend him. He may also be defended by a citizen recommended by a people’s organization or his employer, by a citizen approved by the people’s court, or by a near relative or guardian. The people’s court may also, when it deems necessary, appoint a counsel to defend him. (6) The collegial system. Cases of first instance in the people’s court shall be tried by a collegial panel of judges and people’s assessors; simple civil cases, minor criminal cases and cases otherwise provided for by law may be tried by a single judge. And a collegial panel of judge handles appealed or contested cases in a people’s court. The president of the court or the chief judge of a division appoints one of the judges to act as the presiding judge of the collegial panel. When the president of the court or the chief judge of a division participates in the judicial proceedings, he act as the presiding judge. (7) The system of judicial committee. People’s courts at all levels set up judicial committees, 12

which practise democratic centralism. The task of the judicial committees is to sum up judicial experience and to discuss important or difficult cases and other issues relating to the judicial work. Members of judicial committees of local people’s courts at various levels are appointed and removed by the standing committees of the people’s congress at the corresponding levels, upon the recommendation of the presidents of these courts. Members of the judicial committee of the Supreme People’s Court are appointed and removed by the Standing Committee of the National People’s Congress, upon the recommendation of the President of the Supreme People’s Court. The presidents of the people’s courts preside over meetings of judicial committees of the people’s courts at all levels; the chief procurators of the people’s procuratorates at the corresponding levels may attend such meeting without voting rights. (8) The system whereby the second instance is the final. From a judgment or order of first instance of a local people’s court, a party may bring an appeal to the people’s court at the next higher level in accordance with the procedure prescribed by law, and the people’s procuraorate may present a protest to the people’s court at the next higher level in accordance with the procedure prescribed by law. Judgments and orders of first instance of the local people’s court at various levels become legally effective if, within the period for appeal, none of the parties has appealed and the procuratorate has not protested. Judgments and orders of second instance of intermediate people’s courts, higher people’s courts and the Supreme People’s Court and judgments and orders of first instance of the Supreme People’s Court are all judgments and orders of last instance, that is, legally effective judgments and orders. (9) The system of judicial supervision. If the president of a people’s court finds, in legally effective judgment or order of his court, some definite error in the determination of facts or application of law, he must submit the judgment or order to the judicial committee for disposal. If the Supreme People’s Court finds some definite error in legally effective judgments or orders of the people’s courts at various levels or if the people’s court at a higher level finds such error in a legally effective judgment or order of any people’s court at a lower level, it has the authority to review the case itself or to direct the lower-level people’s court at any level or if the people’s procuratorate at a higher level finds such error in a legally effective judgment or order of any people’s court at a lower level, it has the authority to lodge a protest in accordance with the procedure of judicial supervision. (10) The system of withdrawal. If a party to a case considers that a member of the judicial personnel has an interest in the case or for any other reason, cannot administer justice 13

impartially, he has the right to ask that member to withdraw. The president of the court shall decide whether the member should withdraw. If a member of the judicial personnel considers that he should withdraw because he has an interest in the case or for any other reason, he should report the matter to the president of the court for decision.

D. JUDICIAL PROCEDURES OF PEOPLE’S COURT 1. Civil procedure The judicial procedures that people’s courts should obey in civil lawsuits can be mainly divided into following categories: procedure of first instance, procedure of second instance, procedure for trial supervision and retrial, special procedure, procedure for hastening recovery of a debt, procedure for publicizing public notice for assertion of claims, bankruptcy proceedings and procedure of execution. The procedure of first instance includes ordinary procedure and summary procedure. The ordinary procedure hereof refers to the fundamental proceedings people’s court s commonly applies in civil actions. It usual consists of following stages: entertaining a case, trial in court and judgment. Summary procedure is the simplified ordinary procedure in the first instance of trial. Basic people’s courts and the tribunal dispatched by them follow the summary procedure when trying simple civil cases in which the facts are evident, the rights and obligations are clear and the disputes are trivial in character. The differences between the summary procedure and the ordinary procedure are that the former is flexible, simple and convenient in proceedings and is tried by a single judge alone. Therefore, summary procedure is not subject to the time limitation of various litigious stages and other formal requisites required in the ordinary procedure. The procedure of second instance is composed of four stages: filing an appeal, accepting the appealing petition, trying the case on appeal and deciding in the form of orders. Procedure for trial supervision and retrial is the procedure for people’s courts to internally scrutinize the legally effective civil judgments and orders.

Special procedure is the judicial proceedings that people’s courts apply in the civil cases of specific types. Compared to the ordinary and summary procedure, special procedure has characteristics as follow: the cases are not disputes over civil rights and interests, but the petitions for confirming certain legal facts (factum juridicum); the proceedings constituting

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special procedure are independent from each other; in principle, cases are tried by a single judge alone, and if there is a collegial panel, it shall be composed of judges, which excludes the participation of people’s assessors; the judgment of first instance is final; there is no litigation cost in this procedure; the time for trial is much shorter; and if there are errors in a legally effective judgment or written order, or a new situation appears, people’s court shall not retry the case according to procedures for trial supervision, but pass a new judgment or order. There are two classes of lawsuit suitable for special procedure: cases concerning the qualification of voters and non-litigious cases. Non-litigious actions are largely cases concerning the declaration of a person as missing or dead, cases concerning the adjudgment of legal in capacity or restricted legal capacity of citizens, and cases concerning the determination of property as ownerless. Procedure for hastening debt recovery is a simple, direct and speedy procedure for urging a debtor to pay his debt. Procedure for publicizing public notice for assertion of claims is the procedure whereby the people’s courts may, according to the application submitted on account of legal particulars, issue a public notice for the unidentified parties to assert their rights within the legal period of time, and if no claim is asserted, it shall make an invalidating judgment on the basis of the application (that is, to declare the bill in question null and void). Procedure for bankruptcy is the specific procedure people’s courts apply, in accordance with the application of creditors or debtors, to distribute the bankruptcy property of the debtor to the creditors concerned pursuant to law, when the debtor is unable to repay the debts at maturity. Procedure of execution refers to the procedure in which the execution organizations of people’s courts, in the light of proceedings as prescribed by law, use the coercive state power and take the enforcement measures to execute the items laid down in the effective legal documents. And thus force the parties incurred obligations to fulfil their duties. 2. Criminal procedure The procedure that people’s courts apply in the criminal actions can be divided into procedure of first instance, procedure of second instance, procedure for review of death sentences and procedure for trial supervision. Procedure of first instance includes general procedure and summary procedure. The general consists of the following stages: acceptance of a case, trial and judgment. It is applied in most cases of public and private prosecution. Summary procedure is the simplified general 15

procedure furnished for adjudicating the cases in which the facts of crime are clear and simple, the evidence is sufficient and the sentence will be relatively light. Summary procedure can only be applied in basic people’s courts. Compared to the general procedure, it has several characteristics: 1) the proceedings are simple and convenient; 2) public prosecutors may not present at the court to support the public prosecution; 3) the time period for trial is short; 4) cases are tried by a single judge alone; and 5) it can be transferred to general procedure, etc. While procedure of second instance is roughly comparable to the procedure of first instance, it also has its own features as follow: in the circumstances other than trials by a single judge, a people’s court shall form a collegial panel to hear a case of appeal; public prosecutor shall appear in court; people’s courts may or may not open a court session, but try the case by both reviewing the documents and investigations. Moreover, procedure of second instance has an important principle, that is, no appeal resulting in additional punishment. Procedure for reviewing of death sentences is a kind of special proceeding pertaining to death penalty. Pursuant to Criminal Procedure Law and Organic Law of the People’s Court, “death sentences shall be subject to approval by the Supreme People’s Court; a case where an intermediate people’s court has imposed a death sentence shall be reviewed by a higher people’s court and submitted to the Supreme People’s Court for approval; cases where a higher people’s court has imposed a death sentence shall be submitted to the Supreme People’s Court for approval; and a case which results in a death sentence with a two-year suspension of execution shall be subject to approval by a higher people’s court. In addition, the Supreme People’s Court may, when it deems necessary, authorize higher people’s courts of provinces, autonomous regions, and municipalities directly under the central government to exercise the power to approve cases involving the imposition of death sentences for homicide, rape, robbery, causing explosion and others gravely endangering public security and disrupting social order. Procedure for trial supervision is a procedure with which people’s courts internally supervise formal judgments and orders that are legally effective. 3. Administrative procedure Administrative procedure can be divided into general procedure and procedure for trial supervision. General procedure consists of the following stages: accepting a case, trial in court and passing a judgment. Procedure for trial supervision is also the proceeding by which people’s courts internally scrutinize legally effective judgments and orders.

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4. Special maritime procedure Special maritime procedure is the special proceeding applied by admiralty courts in maritime actions. Combined with the civil procedure, it comprises the judicial proceedings of admiralty courts and it is the only specific contentious procedure in China. Special maritime procedure contains the following proceedings: procedure for security of maritime claim, which including procedure for detention and auction of ship and procedure for detention and auction of cargo in ship; procedure of maritime injunction; procedure for conservation of evidence; procedure of maritime guarantee; procedure of service; procedure of judgment, which consists of general procedure, summary procedure, procedure for hastening debt recovery and procedure for publicizing public notice for assertion of claims; procedure of establishing funds for limitation of liability for maritime claims; procedure for registration and redemption of debt; procedure for publicizing public notice for priority claim to seagoing ships.

E. THE STRUCTURE OF PEOPLE’S COURT The structure of people’s court refers to the establishment of internal institutions and personnel composition in the people’s courts. The establishment of internal institutions is correspondent to the structure of personnel composition. Owing to the diversity of individual functions and conditions of people’s courts at all levels and in various places, their systems of internal organs are quite different. I. Tribunal. Tribunals can only be set up in basic people’s courts. They are dispatched organs of basic people’s courts and they exercise the adjudicative power of basic people’s courts in trying civil and economic cases. II. Office of appeal. People’s courts at all levels generally set up their offices of appeal. III. Division for case filing. People’s courts of various levels establish divisions of case filing. All the actions brought to people’s courts shall be accepted and registered by the division for case filing. And subsequently, divisions for case filing will allocate the cases to specific division of trial according to their nature. In the circumstance that there exist several trial divisions of the same function, divisions for case filing shall equally allocate the lawsuits among them, while taking account of the number of cases they are dealing with.

IV. Trial division and judicial committee. Trial divisions can be classified as civil 17

divisions, economic divisions, criminal divisions and administrative divisions. Some people’s courts may, when necessary, establish many special tribunals, such as juvenile divisions, intellectual property divisions, etc. Higher people’s courts that have special admiralty courts in the areas under their jurisdiction can also set up maritime divisions. V. Division of judicial supervision. People’s courts at levels above intermediate shall establish divisions of judicial supervision. These divisions are mainly for inspecting and supervising the legally effective judgments and order, including the judgments and orders of people’s courts at a lower level and the same level. VI. Organs for medicolegal examination. People’s courts at levels above intermediate set up organs for medicolegal examination, namely, center of medicolegal examination. VII. Personnel department, administrative department, research office or political division. In most basic people’s courts, these institutions often have functions of personnel, administration, research, education management and politics simultaneously, although their names can be different. VIII. General office. Ordinarily, general office take the functions of finance, equipment, secretary, archive, statistics and all the remaining jobs not covered by other departments and divisions. IX. Team of judicial police. Higher people’s courts have teams of judicial police, and intermediate people’s courts and basic people’s courts set up the divisions of teams of judicial police. X. Enforcement division. Enforcement divisions are composed of judges and clerks. XI. Education and training institutions for judges. Intermediate people’s courts found spare-time universities to train and educate judges in their spare time. Higher people’s courts have judge training centers. And the Supreme People’s Court set up the College of Judge, which is a national institution for training and education of judges. XII. Judicial compensation committee. In accordance with the Law of the People’s Republic of China on State Compensation, people’s courts at levels above intermediate shall establish compensation committees. XIII. Party organization. Judges in Chinese courts are all cadres. In a system under which communist party trains and manages cadres, people’s courts correspondingly establish various party organizations, such as the offices of party committee and commissions for disciplinary inspection. However, most of the posts in these organizations are concurrently held by personnel of other departments and divisions. XIV. Reference room. Reference room is a major part of a people’s court. Presently, 18

reference rooms are set up in some basic people’s courts and most of the people’s court at a level above intermediate. They are the places where judges and other personnel of a people’s court study independently and consult relevant materials. Reference rooms have the corresponding management personnel of themselves. XV. Canteens or dinning rooms. The canteen and dinning rooms are one of the important internal institutions of people’s courts at all levels. They provide lunch and in special circumstances, meal to personnel of people’s courts. XVI. Reception office. Reception offices are also one of the internal institutions of people’s courts at various levels.

F. PARTICULAR COURT SYSTEMS IN SPECIAL ADMINISTRATIVE REGIONS In accordance with the basic laws of Special Administrative Regions, the judicial systems of Special Administrative Regions should fundamental be the same as those practiced before the hand-over. And they are component part of the whole body of Chinese judiciary. However, they are independent to the judicial system of mainland. Moreover, as far as the present judiciary of the two Special Administrative Regions is concerned, they are independent to each other. In effect, the judicial system of mainland China is a hybrid of common law system, civil law system and specific systems of China, while Hong Kong Special Administrative Region inherited the judiciary of common law system and Macao Special Administrative Region succeeded to the judiciary of civil law system. And the judicial system of Taiwan would surely be of another special category. Pursuant to the Basic Law of the Hong Kong Special Administrative Region: “the Court of Final Appeal, the High Court, district courts, magistrate’s court and other special courts shall be established in the Hong Kong Special Administrative Region; The High Court shall comprise the Court of Appeal and the Court of First Instance; The power of final adjudication of the Hong Kong Special Administrative Region should be vested in the Court of Final Appeal of the Region, which may as required invite judges from other common law jurisdiction to sit on the Court of Final Appeal”; The common law system previously implemented in Hong Kong shall be maintained; The relationship between the courts and other organs shall be stipulated by the Basic Law and the laws of the Region; The structure, functions, institutions and personnel composition of the courts shall be prescribed by the regulations of the Region. According to the provisions of the Basic Law of the Macao Special Administrative 19

Region: The primary courts, intermediate courts and the Court of Final Appeal shall be established in the Macao Special Administrative Region; The power of final adjudication of the Macao Special Administrative Region shall be vested in the Court of Final Appeal of the Region; The primary courts of the Macao Special Administrative Region may, when necessary, establish special courts; Administrative courts shall be established in the Macao Special Administrative Region, which have jurisdiction over administrative and tax cases; If a party refuses to accept a judgment by the administrative court, he or she shall have the right to file an appeal with an intermediate court; The relationship between the courts and other organs shall be stipulated by the Basic Law and the laws of the Region, and courts shall be prescribed by the regulations of the Region.

G. THE TREND OF JUDICIAL REFORM IN CHINA 1999, the Supreme People’s Court promulgated a Five-year Blueprint of Judicial Reform. In accordance with the requirements of the Blueprint and the direction of present judicial reform in china, the trend of judicial reform can be embodied in the following points: (1) Realizing the constitutional status of people’s courts prescribed by the Constitution―to achieve the judicial independence. The realization of judicial independence depends on recovering the constitutional status that people’s courts should have and establishing the proper legal relationship between people’s courts and other state organs. Judicial independence requests to alter the elements that would distort it, for example, the finance and the system of party leadership of people’s courts. (2) Reforming the establishment of internal judicial institutions and personnel composition― to improve the judicial efficiency. The irrationality of the establishment of internal judicial institutions and personnel composition has affected the judicial efficiency. The prerequisite for improving the judicial efficiency is to reduce the number of non-adjudicatory personnel and thus direct the limited resources to adjudicative activities. (3) Perfecting the judicial system and to enforce the system of judicial supervision—to safeguard the justice. A reasonable judicial system and an effective system of judicial supervision are the guarantees for prevention of judicial corruption and realization of justice. (4) Streamlining the system of judges—to operate the system of judges efficiently. The safeguard for efficient operation of judiciary is to enhance the moral and professional

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quality of judges. A rational system for approval, removal and management of judges is a natural requirement deriving from an excellent judiciary. H. RELEVANT STATISTICS Table 1 Number of Courts in all levels Level The Supreme Court of PRC High People’s Courts Intermediate People’s Courts Basic People’s Courts

Number 1 31 309 3083

Table 2 The increase of Personnel in Courts since 1979 Year Number 1979 58,000 1982 143,939 1986 188,825 1987 195,496 1990 194,836 1991 200,134 1992 250,000 1995 292,000 Note: It is not transparent that how much in the number are really functioning as judges for the reason explained in the text. Some estimated that only about 170,000 are judging cases, and all the others are management personnel and court police. Reference: “Decision and circular concerning judicial reform” Five Year plan for Judicial Reforms by the Supreme Court of China, 1999. This is the major legal document on China’s Judicial reforms, It contains 50 argument, stated the goal and ways for next five year’s Judicial reform.

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PART THREE THE SYSTEM FOR PEOPLE’S PROCURATORATES

A. ESTABLISHMENT OF SYSTEM OF PROCURATORATES IN CHINA The establishment of Chinese system of procuratorates is shaped by the legal structure and ideas of former Soviet. After the People’s Republic of China was founded, the Organic Law of the Central People’s Government stipulated the establishment, status, functions and powers of the procuratorates, which was the legal basis of the system of procuratorates in the new China. Article 5 of this Law provided that the Committee of Central People’s Government establishes the State Council as the supreme executive organ in charge of national affairs, and sets up the Supreme People’s Court and the Supreme People’s Procuratorial Administration as national supreme judicial organ and supreme procuratorial organ respectively. According article 28, the Supreme People’s Procuratorial Administration has the supreme procuratorial authority to ensure that the governmental organs, state functionaries and all of the citizens in the country observe the law. On October 1, 1949, the People’s Republic of China was founded and the Supreme People’s Procuratorial Administration was set up on the same day which was open to the public on November 1 and began to draw up procuratorial legislation speedily. On November 2, the second procuratorial committee session of the Supreme People’s Procuratorial Administration adopted the Provisional Organic Rules of the Supreme People’s Procuratorial Administration of the Central People’s Government which was submitted to the Central People’s Government for approval. On December 20, after approval of Chairman Mao Zedong, the Rules entered into effect provisionally. Though it was a provisional one, this document had legal effect and became the first procuratorial legislation in China which was of new importance for the rule of law in a different time. It stipulated in detail the nature, organizational structure, functions and powers, composition and source of personnel, inner institutions and duties, relations with organs concerned and meeting rules, thus provided the basic content of Chinese Procuratorial 22

system legally and laid a basis for the gradual progress of it. On September 20, the first Constitution of the People’s Republic of China was adopted. Article 81 of it stipulated: ” The Supreme People’s Procuratorate exercises procuratorial authority on the observation of the law of administrations of the State Council, local state organs at different levels, functionaries of the state organs and citizens. Local procuratorates at various levels and special procuratorates exercise procuratorial authority in the legally prescribed scope.” “Local people’s procuratorates at various levels and special procuratorates shall be under the leadership of the people’s procuratorates at higher levels, and all of them are under the unified leadership of the Supreme People’s Procuratorate.” According to Article 82, “the term of office of the Procurator-General of the Supreme People’s Procuratorate is four years. The organization of the people’s procuratorates are regulated by law.” So, the Constitution’s provisions on the procuratorial system have six points: (1) change the name from “people’s procuratorate administration” to “people’s procuratorate”; (2) the establishment of the people’s procuratorates including the Supreme People’s Procuratorate, the Local people’s procuratorates at various levels and special procuratorates is stipulated; (3) it is provided that the Supreme People’s Procuratorate exercises procuratorial authority on the observation of the law of administrations of the State Council, local state organs at different levels, functionaries of the state organs and citizens; (4) leadership in a vertical line is applied; (5) the local people’s procuratorates at various levels shall exercise procuratorial powers independently in accordance with the law, and that they shall not be subject to interference by any local administrative agency; and (6) the term of office of the Procurator-General of the Supreme People’s Procuratorate is four years. Only one day after the adoption the Constitution Law, the Organic Law of the Procuratorates of People’s Republic of China was adopted. It stipulated in detail and clearly the establishment, functions and powers, working principles, structure of leadership, procedure for exercising authority, election and removal of the personnel, and so on of the people’s procuratorates, so the Chinese system of procuratorates is set up formally. In 1982, new Constitution Law of China was adopted which stipulates the system of procuratorates more completely. It confirms the basic content of the Organic Law of People’s Procuratorates promulgated in 1979 including provisions such as the nature, establishment of inner organs, relationship between higher and lower levels, relationship between the procuratorates and the organs of state power and the principle of exercising the procuratorial authority independently. It is of great importance for the development of the cause of

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procuratorates later.

B. CONSTITUTIONAL STATUS OF CHINESE PROCURATORATES Article 129 of the Constitution and article 1 of the Organic Law of the People’s Procuratorates both stipulates, “The people’s procuratorates of the People’s Republic of China are state organs for legal supervision. “ It clarifies the nature of the People’s Procuratorates as state organs for legal supervision. People’s procuratorates includes the Supreme People’s Procuratorate and the people’s procuratorates at various local levels, military procuratorates and other special people’s procuratorates. The people’s procuratorates exercise procuratorial power independently, in accordance with the provisions of the law. The Supreme People’s Procuratorate is responsible to the National People’s Congress and its Standing Committee. People’s procuratorates at various local levels are responsible to the organs of state power which created them and to the people’s procuratorates at higher levels. Thus, the procuratorates have very important status in Chinese structure of state organs which is decided by its nature. In China, the procuratorate is produced by and responsible to the organ of state power at corresponding level. They are independent state organs, established independently and having their own system. They exercise procuratorial power independently, in accordance with the provisions of the law, and are not subject to interference by any administrative organ, public organization or individual. Compared with their counterparts in western countries, the status of Chinese procuratorates in structure of state organs are higher than that of many of them in many countries.

C. TASKS OF THE PROCURATORATES According to article 4 of the Organic Law of People’s Procuratorates, “By exercising their procuratorial authority, the people’s procuratorates suppress all treason, attempts to split the country or other counterrevolutionary activities, and prosecute counterrevolutionaries and other criminals. Their purpose is to safeguard the unity of the country, the people’s democratic dictatorship and the socialist legal system; to maintain public order, including order in production and other work, in education and scientific research, and in the daily life of the people; to protect the socialist property owned by the whole people and by collectives and the private property lawfully owned by individuals; to protect the citizens’ rights of the person and their democratic and other rights; and to ensure the smooth progress of socialist 24

modernization.” “The people’s procuratorates also educate the citizens, encouraging them to be loyal to their socialist motherland, to conscientiously observe the Constitution and the laws and to combat illegal activities. “

D. THE ESTABLISHMENT OF THE PROCURATORATES The organizational structure of people’s procuratorates is decided by the administrative division. At the same time, the establishment of the people’s court is also considered in order to conduct judicial activities smoothly and timely according to procedure laws. Article 2 of the Organic Law of People’s Procuratorates stipulates, “The People’s Republic of China shall establish the Supreme People’s Procuratorate and the people’s procuratorates at various local levels, military procuratorates and other special people’s procuratorates.” It reflects that the procuratorates in China are a up-to- down unitive and complete system. The Supreme People’s Procuratorate is the highest procuratorial organ. It is responsible to the National People’s Congress and its Standing Committee and reports to them on its work. The local people’s procuratorates at various levels are the common procuratorates except the Supreme People’s Procuratorate. they are responsible to the people’s congresses and their standing committees at the corresponding levels and are under the leadership of the people’s procuratorate(s) at the next higher levels. According to the Organic Law, they are divided into three levels: (1) people’s procuratorates of provinces, autonomous regions and municipalities directly under the Central Government; (2) branches of the above, and people’s procuratorates of autonomous prefectures and cities directly under the provincial governments; and (3) people’s procuratorates of counties, cities, autonomous counties and municipal districts. The Law also stipulates that if their work requires it, people’s procuratorates at provincial or county level, with the approval of the standing committee of the people’s congress at the corresponding level, may set up branches in industrial and mining areas, agricultural reclamation areas, forest zones, etc.

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E. QUALIFICATIONS FOR A PROCURATOR Public procurators are the procuratorial personnel who exercise the procuratorial authority of the State according to law, including chief procurators, deputy chief procurators (the Procurator- General, Deputy Procurators-General of the Supreme People’s Procuratorate), members of procuratorial committees, procurators and assistant procurators of the Supreme People’s Procuratorate, local people’s procuratorates at various levels and special people’s procuratorates such as military procuratorates. Qualificatioins for a procuratorate. According to article 10 of the Public Procurators Law of the People’s Republic of China, a public procurator must possess the following qualifications:

(1) to be of the nationality of the People’s Republic of China; (2) to have reached the age of 23; (3) to endorse the Constitution of the People’s Republic of China; (4) to have fine political and professional quality and to be good in conduct; (5) to be in good health; and (6) to have worked for at least two years in the case of graduates from law specialties of colleges or universities or from non-law specialties of colleges or universities but possessing the professional knowledge of law; or to have worked for at least one year in the case of Bachelors of Law; those who have Master’s Degree of Law or Doctor’s Degree of Law may be not subject to the above-mentioned requirements for the number of years set for work.

According to article 11 of the Public Procurators Law, the following persons shall not hold the post of a public procurator:

(1) to have been subjected to criminal punishment for commission of a crime; or (2) to have been discharged from public employment.

Appointment and removal of the procurators. The article 12 of the Procurators Law stipulates: a public procurator shall be appointed or removed from the post in accordance with the limit of authority for, and procedures of, appointment or removal as prescribed by the

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Constitution and laws. To be exact, The Procurator-General of the Supreme People’s Procuratorate shall be elected or removed by the National People’s Congress. The Deputy Procurators-General, members of the procuratorial committee and the procurators shall be appointed or removed by the Standing Committee of the National People’s Congress upon the recommendation of the Procurator-General of the Supreme People’s Procuratorate.

The chief procurators of the local People’s Procuratorates at various levels shall be elected or removed by the local people’s congresses at the corresponding levels. The deputy chief procurators, members of the procuratorial committees and procurators shall be appointed or removed by the standing committees of the people’s congresses at the corresponding levels upon the recommendation of the chief procurators of those procuratorates. The appointment or removal of the chief procurators of the local People’s Procuratorates at the various levels must be reported to the chief procurators of the People’s Procuratorates at the next higher level, who shall submit the matter to the standing committee of the people’s congress at that level for approval. The chief procurators, deputy chief procurators, members of the procuratorial committees and procurators of the branches of the People’s Procuratorates set up in prefectures in the provinces or autonomous regions or set up in the municipalities directly under the Central Government shall be appointed or removed by the standing committees of the people’s congresses at the corresponding levels upon the recommendation of the chief procurators of the People’s Procuratorates of the provinces, autonomous regions or municipalities directly under the Central Government. The assistant procurators of the People’s Procuratorates shall be appointed or removed by the chief procurators of the procuratorates where they work. The measures for the appointment or removal of the chief procurators, deputy chief procurators, members of the procuratorial committees and procurators of such special People’s Procuratorates as the military procuratorates shall be formulated by the Standing Committee of the National People’s Congress separately. Persons to be appointed procurators or assistant procurators for the first time shall be selected through public examination and strict appraisal, from among the best qualified for the-- post, and in accordance with the standards of having both ability and political integrity. Persons to be appointed chief procurators, deputy chief procurators or members of 27

procuratorial committees shall be selected from among those who are experienced in practical work. If a public procurator is found to be in any of the following circumstances, a report shall be submitted according to law concerning the removal of his or her post: (1) having forfeited the nationality of the People’s Republic of China; (2) having been transferred out of this procuratorate; (3) having no need to maintain his or her original post after a change of post; (4) being determined to be incompetent in the post through appraisal; (5) being unable to perform the functions and duties of a public procurator for a long period of time due to poor health; (6) having retired from the post; (7) having resigned the post, or having been dismissed; (8) being disqualified from continuing to hold the post because of violation of discipline, law or commission of a crime; or (9) other circumstances that call for removal of the post. Where an elected chief procurator of a People’s Procuratorate does not possess the qualifications as provided by this Law, or a chief procurator of a People’s Procuratorate is elected in violation of the statutory procedures, the chief procurator of a People’s Procuratorate at the next higher level shall have the power to apply to the standing committee of the people’s congress at that level for disapproval. The Procurator-General of the Supreme People’s Procuratorate and the chief procurators of the People’s Procuratorates of the provinces, autonomous regions or municipalities directly under the Central Government may make proposals to the standing committees of the people’s congresses at the corresponding levels to remove or replace a chief procurator, a deputy chief procurator or a member of the procuratorial committee of a People’s Procuratorate at lower levels. No public procurators may concurrently be members of the standing committees of the people’s congresses, or hold posts in administrative organs, judicial organs, enterprises or institutions, or serve as lawyers. Posts to be avoided. According to article 18 of the Procurators Law, public procurators who are connected by husband-wife relation-ship, or who are directly related by blood, collaterally related within three generations, or closely related by marriage may not, at the same time, hold the following posts: (1) the chief procurator, deputy chief procurators, or members of the procura-torial 28

committee in the same People’s Procuratorate; (2) The chief procurator, deputy chief procurators, procurators or assistant procurators in the same People’s Procuratorate; (3) the procurators or assistant procurators in the same division; or (4) chief procurators or deputy chief procurators of the People’s Procuratorates at the levels next to each other.

Grades of procurators. According to chapter 7 of the Procurators Law, public procurators are divided into twelve grades. The Procurator-General of the Supreme People’s Procuratorate is Procurator-in-Chief. Public procurators from the second grade to the twelfth grade are composed of principal public procurators, senior public procurators and public procurators. Grades of public procurators shall be determined on the basis of their posts, their actual working ability and political integrity, their professional competence, their achievements in procuratorial work and their seniority.

F. SCOPE OF THE LEGAL SUPERVISION OF THE PROCURATORATES 1. Legal supervision on the state organs State organs refers to the organs excising state powers and in chare of state affairs including organs of state powers, administrative organs, judicial organs, procuratorates military organs and so on. According to the Constitution, “All state organs, the armed forces, all political parties and public organizations and all enterprises and institutions must abide by the Constitution and the law. All acts in violation of the Constitution or the law must be investigated. “ To ensure that the state organs act in accordance with law, keep the probity of them, strengthen and develop the people’s democratic dictatorship, strengthen and develop the socialist economy, the enforcement and observation of law shall be supervised. Basing on the historical experiences and reality of the construction of the people’s procuratorates, the Organic Law of People’s Procuratorates revised in 1979 adjusted the scope of the supervision of the state organs and put stress on the state organs concerning criminal actions which are judicial organs, public security organs, state security organs, jails, houses of detention and other institutions in charge of rehabilitation through labor, as well as the execution of criminal sectences, and other state organs which violate the law seriously and commit a crime.

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2. Supervision on the state functionaries The state functionaries refer to “persons in all state organs, enterprises and institutions and other persons dealing with public affairs according to law.” (1) “Including persons in all state organs of state powers, administrative organs, judicial organs at various levels, and armies, state-owned enterprises, state institutions, and other persons dealing with public affairs according to law.” (2) Other persons dealing with public affairs according to law generally refer to “the persons authorized by state organs, enterprises and institutions to deal with public affairs.” (3) People’s procuratorates have the power to supervise the act of state functionary if it violates law and commit a crime. 3. Supervision of the violation of law by citizens According to the Constitutional Law, “Citizens of the People’s Republic of China must abide by the Constitution and the law”; “they must not commit acts detrimental to the security, honor and interests of the motherland”; “citizens of the People’s Republic of China, in exercising their freedoms and rights, may not infringe upon the interests of the state, of society or of the collective, or upon the lawful freedoms and rights of other citizens”. The principles, standards and procedure of the supervision of the violation of citizens are stipulated in detail in Constitution, Criminal Law, Civil Law, Marriage Law, Criminal Procedure Law, Organic Law of People’s Procuratorates and other law and regulations. 4. Supervision of the violation of Chinese law by foreigners According to article 32 of the Constitution, “Foreigners on Chinese territory must abide by the laws of the People’s Republic of China. “ If a foreigner violate Chinese law, except that there is other special provision in the law, the legal responsibility shall be investigated. As state organs for legal supervision, the people’s procuratorates shall exercise their power of legal supervision of the violation of law by foreigners according to the law. Article 3 of Chinese Criminal Law stipulates, “For acts that are explicitly defined as criminal acts in law, the offenders shall be convicted and punished in accordance with law; otherwise, they shall not be convicted or punished.” And article 12 of Chinese Criminal Procedure Law provides, “Provisions of this Law shall apply to foreigners who commit crimes for which criminal responsibility should be investigated.” These are the legal ground for people’s procuratorates to exercise legal supervision of the violation of Chinese law by foreigners.

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G. CONTENT OF THE LEGAL SUPERVISION According Chinese laws concerned, content of the legal supervision of the people’s procuratorates includes that of law discipline, investigation, criminal trial, execution, civil trial, administrative trial, etc. 1. Supervision of law discipline It refers to the legal supervision of the people’s procuratorates of all treason, attempts to split the country or other counterrevolutionary activities of state functionaries, and crimes of state functionaries and other citizens which violate the citizens’ rights of the person and their democratic and other rights. Through the supervision of law discipline, it is to find all counterrevolutionary activities of the treason or attempts to split the country crimes violating the citizens’ rights of the person and their democratic and other rights and crimes of dereliction of duty, and investigate the criminal responsibilities of the criminals, so as to safeguard the inviolability of the citizens’ rights of the person and their democratic and other rights, maintain the order of the state organs, protect the socialist legal system and strengthen the people’s democratic dictatorship. According to different nature of the law discipline cases, the supervision of law discipline includes two categories: special one and common one. The special law discipline is the exercise of procuratorial power by the people’s procuratorates on the cases of treason, attempts to split the country and major crimes with grave damage to the unified and proper enforcement of the national policies, laws, regulations, decrees and orders. And the common law discipline is the exercise of procuratorial power by the people’s procuratorates on the cases of crimes of dereliction of duty of the state functionaries, crimes violating the citizens’ rights of the person and their democratic and other crimes accepted directly by the procuratorates. The main content of law discipline supervision is as follows: (1) To maintain the unified and proper enforcement of the state policies, laws, regulations, decrees and orders and the unity of the country. One of the important duties of the people’s procuratorates authorized by the law is to exercise the procuratorial power to cases of treason, attempts to split the country and major crimes with grave damage to the unified and proper enforcement of the national policies, laws, regulations, decrees and orders. According to the inner division of the jurisdiction, it belongs to one of the tasks of law discipline. Once this kind of major counterrevolutionary cases of nature of conflict between enemy and the people, the people’s procuratorats shall investigate them and initiate prosecution concerned on 31

the behalf of the state according to the law, so as to maintain the unity of the country and the legal system, and safeguard the people’s democratic dictatorship and socialism. (2) To protect the citizens’ rights of the body and democratic rights in order to encourage fully the zeal of the mass to participate the construction of modern socialism. The inviolability of the citizens’ rights of the body and democratic rights is prescribed in the Constitution Law. The Criminal Law stipulates the punishment to crimes violating these rights in a specific chapter. The Criminal Procedure Law authorizes the power to the people’s procuratorates to investigate the crimes of this kind. By the legal supervision of law discipline, the procuratorates investigate the crimes according to law such as coercing confession, illegal detention, malicious prosecution, frame-up, perjury, interference with the election, illegal control, illegal search, intrusion into the citizen’s house and infringement of the freedom of correspondence of citizens so as to ensure the actual realization of the citizens’ rights of the body and democratic rights, encourage the zeal of the mass and promote the smooth development of the cause of socialist construction. (3) To investigate the state functionaries’ crimes of dereliction of duty, support the socialist legal system and guarantee the smooth operation of the state organs. According the Chinese Constitution Law, All state organs, the armed forces, all political parties and public organizations and all enterprises and institutions must abide by the Constitution and the law. All acts in violation of the Constitution or the law must be investigated. Chapter 9 of the Criminal Law stipulates the crimes of dereliction of duty especially. The Criminal Procedure Law authorizes the power to the people’s procuratorates to investigate these crimes. By the legal supervision of law discipline, the procuratorates investigate the crimes according to law such as cases of using power to gain private benefit, abusing his power, bribe, engaging in malpractices for personal gain, bending the law for bribe and neglect of duty, in order to guarantee the smooth operation of the state organs, strengthen the state functionaries’ awareness of the legality and responsibility, and promote the standardization and legality of the state control of administration and economy. 2. Supervision of the investigation It is the people’s procuratorates’ supervision of the legality of the cases and activities of investigation of the public security organs. According to para.3 of article 5 of the Organic Law of People’s Procuratorate, “Review cases investigated by the public security organs and decide whether to approve arrest and whether to prosecute or not to initiate prosecution; supervise the investigation activities of public security organs and state security agencies to 32

determine whether they conform to the law.” Basing on this provision, the content of investigation supervision includes four items: (1) Review of the cases transferred by the public security organs during investigation with a request for arrest, decide the guilty of the suspect, the clarity of the criminal facts, sufficiency of the evidence, possibility of criminal punishment of imprisonment and above, the necessity of arrest, and decide whether to arrest him or not according to the Criminal Law. In addition, it is necessary to examine other things concerned such as whether there is some accomplice shall be reported to arrest but has been omitted. This is usually called approval of arrest. (2) Review cases investigated and concluded by the public security organs, examine the clarity of the criminal facts and circumstances, the reliance and sufficiency of the evidence, possibility of wrongly investigation of criminal responsibility, and then decide whether to prosecute or not to initiate prosecution. At the same time, it is necessary to examine whether there is someone who shall be prosecuted but whose materials fail to be transferred for initiation of prosecution. This is usually called prosecution review. (3) By the review of arrest and prosecution, to supervise the legality of investigation of the public security organs. If something in breach of law is found, the public security organ concerned shall be notified to correct orally or in written. (4) To supervise the violation of law or discipline of the investigatory personnel. During the investigation, if the investigatory person violates the law and commit crimes such as extortion of confessions by torture, falsifying, concealing or destroying evidence, or malpractice for personal gain, his criminal responsibility shall be investigated according to law. If the wrongdoing does not constitute a crime, suggestion shall be given to the public security organ for handling of it. As to the cases accepted directly and investigated by the people’s procuratorates themselves, as the inner supervisory system of the procuratorates stipulates, the department in charge of investigation shall transfer the case for request of arrest of suspect, or the concluded case for request of initiation of prosecution or exemption of initiation of prosecution to the criminal procuratorial department, with the opinions, case files, evidences concerned together. And the latter after review shall put up the proposal for arrest, initiation of prosecution or exemption of prosecution and report to the chief procurator or the procuratorial committee to decide.

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3. Supervision of the criminal trial It is the people’s procuratorates’ supervision of the criminal trial of the people’s court. It is an important part of the legal supervision. To be exact, the content of supervision of the criminal trial includes examination of

(1) legality of the composition of the tribunal; (2) conduction of the criminal trial in accordance with the legal procedure and within the legal period; (3) violation of the procedural rights of the litigants and other participants in proceedings; (4) the definite error of the judgment and order of the people’s court of the first instance; and (5) the definite error of the legally effective judgment and order of the people’s court.

When definite error is found by the procurators appearing in the court to support the public prosecution, it shall be pointed out in the court orally or notified to the people’s court in written after the hearing according to specific circumstances to set it right. If the people’s procuratorate finds there is some definite error in the criminal judgment or order of the people’s court of first instance which is not effective yet, it shall present a protest according to the procedure of second instance; and if it finds so in the legally effective criminal judgment or order of the people’s court, it shall present a protest according to procedure for trial supervision. 4. Supervision of executions It is also called supervision of the executions in the prisons and under custody in the jurisdiction division inside the procuratorates. It is the supervision of the executions of the legally effective criminal judgments and orders of the people’s court and legality of the conducts of the executing organs, which is also an important part of the legal supervision. According to the Chinese Criminal Procedure Law and Organic Law of People’s Procuratorates, the procuratorates supervise the execution of sentences in criminal cases and the activities of prisons, houses of detention and institutions in charge of reform or rehabilitation through labor to determine whether they conform to the law. In accordance with the law, it includes the supervision inside and outside of the prisons and places like them. The 34

content is as follows, (1) supervision of the execution of the sentences of the criminal. If the criminal behaves well, shows true repentance, obeys the law or renders meritorious service while serving his sentence, he should be granted a commutation of sentence or be released on parole according to law. If a criminal commits a crime again while serving his sentence, or if a criminal act that is discovered was not known at the time of judgment, he shall be transferred for prosecution according to law; (2) supervision of the error in the criminal judgment or order. If some definite error is found, a protest shall be presented according to procedure for trial supervision; (3) supervision of the activities of prisons, houses of detention, reformatories, correctional institutions for juvenile delinquents, jails and institutions in charge of rehabilitation through labor to determine whether they conform to the law. Any breach of law shall be notified to the organs concerned to set it right; (4) supervision of the legality of the supervision of the public security organs and grass-roots organizations of the criminal whose sentence if executed outside prison. Any breach of law shall be notified to the organs concerned to set it right; and (5) supervision on the spot of the capital penalty execution. It mainly includes the supervision of the legality of the proceeding of the execution and the existence of circumstances which may occur and lead to the cancellation of the execution of the penalty. 5. Supervision of the civil trial Article 14 of the Civil Procedure Law stipulates, “The people’s procuratorates shall have the right to exercise legal supervision over the civil proceedings.” According to this Law, the supervision of the civil trial includes: If a legally effective judgment or order made by a people’s court involves any of the following circumstances, the people’s procuratorate shall lodge a protest in accordance with the procedure for trial supervision: (1) the main evidence ascertaining the facts in the previous judgment or order was insufficient; (2) there was error in the application of the law in the previous judgment or order; (3) a violation of the legal procedure may have affected the correctness of the judgment or order; or (4) the judicial personnel committed embezzlement, accepted bribes, practiced malpractice for personal benefits and twisted the law in trail of the case. 6. Supervision of the administrative trial Article 10 of the Administrative Procedure Law of the People’s Republic of China 35

stipulates, “The people’s procuratorates shall have the right to exercise legal supervision over administrative proceedings. However, the content of this kind of supervision has not been stipulated in detail so far; there is only a provision that if it is found that there is any breach of law in the legally effective administrative judgment and order made by the people’s court, the people’s procuratorate has the power to present a protest. Theoretically, it is accepted that the supervision of the administrative trial by the people’s procuratorates still includes the specific content as follows, (1) supervise the major administrative breach of law in which the citizen’s or legal person’s legitimate rights and interests suffered serious damage or administrative case in which the litigants dare not to file the suit or have no ability to do so, investigate the facts of the case and initiate or participate the suit concerned; (2) supervise the legality of the composition of the administrative tribunal; (3) supervise the compliance of the legal procedure of the administrative trial by the people’s court; (4) supervise the legality of the execution of the administrative judgment or order made by the people’s court; and (5) supervise the protection of the legal rights of the participants of the administrative proceedings. During the supervision of the administrative trial, any breach of law of the trial activities of the people’s court or in the judgment or order made by the people’s court found by the people’s procuratorate, shall be pointed out to set it right; if the definite error is found in the judgment or order, the protest shall be presented; and if a judge violates the law seriously and commits a crime, his criminal responsibility shall be investigated. Trough the supervision of administrative trial, the procuratorates ensure the smooth conduct of the administrative trial according to law, guarantee the correctness of the administrative judgment or order, maintain the proper implementation of the administrative laws, safeguard the legitimate rights and interests of the citizens and legal persons and promote the strict enforcement of law by the administrative organs.

H. ATTACHMENT OF FORMS 1. The form of statistics of the people’s procuratorates in China; 2. The form of the composing of the personnel of the people’s procuratorates in China. 36

I. RELEVANT STATISTICS Table 1 Statistics of the people’s procuratorates in China: ( Until 13/31/1997) Level of procuratorate

Number

Supreme procuratorate

1

Provincial procuratorate

31

Branches of Provincial

397

procuratorate at city level, procuratorate of Autonomous region Procuratorate of counties and

3097

Autonomous counties, Branches of local

161

Procuratorate Procuratorate of Military

81

Procuratorate of rail

72

transportation

Table 2 Personnel of the people’s procurator in China ( Until 12/31/1997) Capacity

Number

Chief and deputy procurators

13,328

Procurators

102,258

Assistant Procurator

44,338

Clerks

26,386

Police

10,697

Other cadres

12,817

workers

12,088

Total

221,912

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PART FOUR THE LAWYER’S SYSTEM IN CHINA

A. HISTORICAL DEVELOPMENT OF THE LAWYER’S SYSTEM IN CHINA The Lawyer’s system in China took form in the modern times. After losing the Opium War, the Imperial Qing Government, in order to easy internal tensions, issued an imperial decree in 1900 to carry out political reform. Since 1902, under the leadership of Shen Jiaben and Wu Tingfang, the two ministers in charge of drafting of laws, a series of laws, including the criminal law, the civil law, the law on the organization of courts, and the criminal and civil procedure law, had been drafted. Among them, the Criminal and Civil Procedural Code of the Great Qing Dynasty was drafted in 1906. Chapter Four of the Code, “General Rules of Criminal and Civil Law”, included a special section on lawyers (articles 199-207), which contained detailed provisions on such matters as the qualifications, the registration procedures, the duties of lawyers, the punishments for their violations of laws and regulations, and the approval procedures for foreign lawyers to practice in open ports, etc. The Draft Criminal Procedure Law and the Draft Civil Procedure Law, which were completed in 1911, also contained provisions on lawyers and the lawyer’s system. In 1911, the Nanking Interim Government headed by Dr. Sun Yat-sen, made a Draft Lawyer’s Law on the basis of western experiences. In 1912, on the basis of the draft law, the Beiyang Government made and promulgated the Interim Regulations on Lawyers, which provided for the lawyer’s qualifications, the lawyer’s certificate, the lawyer’s registers, the lawyer’s profession, the lawyer’s associations, and the punishments of lawyers who violated the laws and regulations. Meanwhile, the Interim Regulations on the Registration of Lawyers, the Interim Regulations on the Punishment of Lawyers, and the Regulations on the Selection of Lawyer, had also come into force one after the other. By then, in terms of the adoption and promulgation of the laws and regulations, the lawyer’s system had taken form. In 1927, the Guomintang Government in Nanking adopted a Lawyer’s Regulations which inherited the lawer’s system of the Beiyang Government and modified it in the light of 38

western lawyer’s systems. In January 1941, the Lawyers Law was promulgated after deliberation by the Legislative Council. In March of the same year, the Detailed Measures for the Implementation of the Lawyers Law was promulgated by the Judicial Council. After that, the Regulations on the Registration of Lawyers, the Regulations on the Disciplinary Measures against Lawyers, Outline of the Measures of the Lawyer’s Association for the Implementation of the Legal Aids System, Regulations on Foreign Lawyers who Practice in China had been promulgated one after the other. In 1948, the National Lawyers Union of the Republic of China (National Lawyer’s Association) was established. The lawyer’s system was further developed in terms of both contents and system. With the establishment of the People’s Republic of China in 1949, the lawyer’s system in China, guided by the principle of “showing contempt for and repudiating the Six-Law Code and all the other reactionary laws and decrees of the Guomintang Regime, and showing contempt for and repudiating the anti-people laws and decrees of the United States, Japan, Europe and all the other capitalist countries”, entered into a new phase of development. In 1950, the Ministry of Justice of the Central Government adopted the Interim Measures of Beijing, Tianjin and Shanghai for the Implementation of Defender’s System and issued a Notice to Ban Clandestine Lawyers and Pettifoggers, thereby began the process of destroying the old lawyer’s system and establishing the new. In 1953, offices of public defenders were set up in the people’s courts in Shanghai (the name was changed to “office of public lawyers in the following year). In July 1954, the Ministry of Justice issued the Notice on Several Issues relating to the Experimentation of Court Organization System, according to which experimental offices of legal advisers were set up in Beijing, Shanghai, Tianjin, Chongqing, Shenyang and several other designated large cities. In September of the same year, the Organic Law of the People’s Courts of the PRC was adopted, which clearly provided for the defendant’s right to defense and the defense lawyer’s system. In January 1956, the State Council endorsed the Report on the Establishment of Lawyer’s System, submitted by the Ministry of Justice (the report provided for the lawyer’s agencies, the nature, tasks and qualifications of lawyers, etc.) and promulgated the Interim Measures for the Collection of Fees by Lawyers. In March, the Ministry of Justice convened the first National Symposium on Lawyer’s Work to discuss two draft regulations: the Regulations on Lawyers and the Interim Measures for the Collection of Fees by Lawyers. According to statistics, by June 1957, lawyer’s associations (or their preparatory bodies) had been established in more than 19 provinces, autonomous regions or municipalities directly under the Central Government. More than 800 offices of legal advisers have been established throughout the countries, with 39

more than 2,500 full-time lawyers and 300 part-time lawyers.2 Between the Spring and Summer of 1957, an anti-rightists campaign was carried out within the Chinese Communist Party. With the broadening of the scope of this campaign, the lawyer’s system was considered a “bourgeois system” and defense lawyers was accused of “helping the criminals to escape from punishment” and “losing their class stand”. Lawyers who adhered to the law and facts were considered “advocating the supremacy of the law and resisting the leadership of the Communist Party”. Many lawyers were labeled “rightists” and put into prison. Beginning from the second half of 1957, China gradually abolished the lawyer’s system and entered into a period without lawyers and the lawyer’s system. The end of the “Cultural Revolution” and the convening of the 3rd Plenary Session of the 11th Party Central Committee brought opportunities for the restoration and development of the lawyer’s system in China. In April 1979, an ad hoc group was set up by the Commission of Legislative Affairs of the Standing Committee of the National People’s Congress to be responsible for the drafting of the Regulations on Lawyers. In July 1979, China promulgated the Criminal Procedure Law, which contained a special chapter on defense; In August 1979, the Ministry of Justice was restored. It took over the work of drafting the Regulations on Lawyers and began to set up lawyer’s offices in various parts of the country. In August 1980, the Interim Regulations of the PRC on Lawyers was adopted by the Standing Committee of the 5th National People’s Congress at its 15th meeting. The Regulations are China’s first law on the lawyer’s system. They provided for the nature, tasks, functions, rights, obligations, qualifications of lawyers and lawyer’s agencies. The promulgation and implementation of these Regulations marked the restoration of the lawyer’s system after many years of setbacks. In July 1986, the first National Lawyers’ Congress was held in Beijing. It formally established All-China Lawyers’ Association and adopted the Articles of Association of the All-China Lawyers’ Association, thereby further developed the administration of the lawyer’s profession. In December 1993, the State Council approved the Plan for the further Reform of the Lawyer’s System, submitted by the Ministry of Justice. According to the Plan, great efforts should be made to develop the ranks of lawyers, to break the restrictions ownership mode and administrative system so as to increase the number and improve the qualify of lawyers. In May 1996, the Law of the PRC on Lawyers was adopted at the 19th meeting of the Standing Committee of the National People’s Congress (it came into

2

Li Yunchang, Several Clarifications on the Interim Provisions of the PRC on Lawyers, in Mao Pengnian and Li Bida ed.,

Collection of Materials on the Research of the Lawyer’s System in China, Law Press, 1992, p.5.

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force on 1 January 1997). On 6 October 1996, the Executive Council of the All-China Lawyers Association adopted at its fifth meeting Code of Professional Ethics and Practice Discipline of Lawyers. The promulgation and implementation of the Law on Lawyers and the Code of Professional Ethics and Practice Discipline of Lawyers further improved lawyer’s system and provided reliable legal safeguards for the deepening of the reform of the lawyer’s profession.

B. CURRENT SITUATION OF THE LAWYER’S PROFESSION IN CHINA With the restoration of the lawyer’s system, the lawyer’s profession developed rapidly. This is mainly manifested by the growth of the ranks of lawyers, the expansion of the lawyer’s business, and the improvement of the status of lawyers. Between the end of 1970s and the end of 1981, there were already 1,465 offices of legal advisers with 5,500 lawyers throughout the country.3 By 1986, there were 3,189 law firms with 21,546 lawyers, the numbers had increased by 118% and 292%, respectively, from those of 1981. After that, apart from 1990, the numbers of law firms and lawyers have been increasing by large margins. The year with the highest increase in the number of law firms was 1994, in which the number of law firms increased by 27.5% as compared with that of the previous year. The year with the highest increase in the number of lawyers was 1993, in which the number of lawyers increased by 50.7% as compared with that of the previous year. According to the statistics given by the China Law Yearbook (1998), by the end of 1997, there were 8,441 law firms and 98,802 lawyers in the whole country. Article 2 of the 1980 Interim Regulations on Lawyers provided that the scope of lawyers’ business shall mainly include: (1) to accept the mandate of state organs, enterprises and institutions, public organizations and people’s communes to serve as their legal advisers; (2) to accept the mandate of a party to a civil action to serve as his representative in litigation; (3) to accept the mandate of a defendant or the assignment of a people’s court to serve as his defender in a criminal case; to accept the mandate of a private prosecutor or of the victim and his near relatives in a public prosecution to

3

Zhang Zhimin, “The Legal Profession in Contemporary China, in Xia Yong, ed., Towards an Age of Rights, China

University of Politics and Law Press, 1999, p.122, note 22.

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serve as their representative in litigation; (4) to accept the mandate of a party in a non-litigious matter to give legal assistance or serve as its representative in mediation or arbitration; (5) to give consultative advice on legal questions and draft documents in connection with litigation or other legal matters.

With social and economic development and with the progress of legal construction in China, the scope of lawyers’ business has been gradually expanded. First, some new categories of business have emerged, such as serving as representatives in administrative cases or in filing petitions, etc. Second, with the revision of existing laws or the adoption of new laws, the existing categories of business become richer in contents. For example, in criminal procedures, lawyers can represent their clients who are not satisfied with decisions on punishment in respect to management of public security in filing cases of private-prosecution, they can accept authorization by a citizen or criminal suspect to provide him with legal assistance at the stage of investigation; in non-litigation matters, they can represent their clients in handling the legal matters in banking, trade, real estate, intellectual properties and other activities. Besides, the increase of business in different areas lawyers’ work has demonstrated that, while the business in all categories have increased over the years, the amount of business in non-litigation matters and in Perennial legal consul services have increased especially rapidly since 1989. Their business as representatives in civil and economic cases has also grown very rapidly since 1992. The 1996 Law on Lawyers, in the light of the reality of the development of the lawyers’ business and needs of social and economic development, has provided for new categories of lawyers’ business such as representing clients in administrative cases and cases of petition and expanded the scope of lawyers’ business in criminal cases. The growth of the ranks of lawyers and the expansion of the scope of lawyers’ business have also reflected the improvement of the status of lawyers in China. In the late 1970s, when the lawyers’ system and legal profession had just been reestablished, people still lacked the correct understanding of the lawyers’ system and were hesitant in becoming lawyers. In order to attract people of high qualities to join the ranks of lawyers, the Interim Regulations on Lawyers defined lawyers as “state legal workers”.4 With the development of

4

The purpose of defining lawyers as state legal workers was mainly political. Mr. Li Yunchang pointed out in his article

“Several Clarifications on the Interim Regulations of the PRC on Lawyers” that “The facts that China is a socialist state

42

the economy and the strengthening of the socialist democratic legal system, the social status of lawyers has been continuously improved. The 1987 Interim Regulations of Ningxia Hui Autonomous Region on the Performance of Function by Lawyers clearly provided in article 3 that: “The performance of functions by lawyers is protected by the law of the state. State organs, enterprises and institutions, social organizations and citizens shall respect and support the work of lawyers. They are prohibited to interfere or obstruct in any ways the performance of duties by lawyers or to create difficulties for, insult, retaliate against or persecute lawyers. Those who violate this provision shall, in the light of the seriousness of the circumstances, receive criticism and education from the competent organs or be investigated for criminal responsibilities.” The Several Provisions of Anhui Province on the Performance of Duties by Lawyers, promulgated in 1988, also stipulated that the performance of duties by lawyers in accordance with the law is the right provided for by the law and shall not be interfered or obstructed by any unit or individual. Lawyers who have been interfered with, insulted, vilified or persecuted because of their lawful performance of duties have the right to file complaints to the relevant state organs, which have the obligation to investigate and deal with such complaints in accordance with the law and give a reply to the complainants on the results of the handling of such cases. Since the 1990s, lawyer has become a very popular profession. On the one hand, more and more people are taking part in the lawyers’ qualification examination. In 1999 alone, 182,000 people took part in the lawyers’ qualification examination.5 On the other hand, with the reform of the criminal and civil procedures, lawyers’ status in court proceedings has apparently improved. Compared with the 1980s, the lawyer’s profession has already been socialized and the autonomy of the lawyer’s profession has basically established. The 1996 Law on Lawyers defines the lawyer as “a practitioner who has acquired a lawyer’s practice certificate pursuant to law and provides legal services to the public.” The development of legal profession is the result of reform and opening to the

under the proletarian dictatorship and China’s economic basis is socialist ownership and that lawyers’ work has a very strong political nature have determined that it is inappropriate for the Chinese lawyers to work as private practitioners; they do not, and should not, like the private practitioners in the capitalist countries, only work on the basis of employment relationship and only for the interests of their clients. Rather, they should keep to stand of proletarian class and uphold the legitimate rights and interests of the parties under the precondition of upholding the correct implementation of the law.”. (Li Yunchang, Several Clarifications on the Interim Provisions of the PRC on Lawyers, in Mao Pengnian and Li Bida ed., Collection of Materials on the Research of the Lawyer’s System in China, Law Press, 1992, p.5.). Therefore, the title “state legal worker” did not mean that lawyers actually had enjoyed a high status. This consideration of the legislators had show that the lawyer’s profession was under suspicion. 5

The figure came from http://www.sina.com.cn. Xinhua News Agency, 16 October 1999.

43

outside world. Meanwhile the implementation of the reform and open policy is also continuously posing new challenges to the lawyer’s profession. Firstly, with China’s economy become more and more integrated with the world market, the trend towards free trade, internationalization of banking business and production networks will inevitably affect the mode of economic construction in China. As a result, international legal business will increase drastically and lawyers will play an important role not only in the resolution of disputes but also in production, trade and financial affairs. This requires the lawyers to be familiar not only with Chinese and foreign laws, but also with economy and foreign languages. They should be not only legal experts, but also economists. They should provide their service not only in China, but also abroad. Secondly, with the progress of the construction of democratic legal system in China, “administering the state in accordance with the law and building a state under the rule of law” has become one of the objectives of modernization in China. The freedom of the legal profession is one of the important symbols of the realization of the rule of law and lawyers are one of the important forces in the construction of the legal system. In the construction of the democratic legal system, lawyers should not only provide high quality service to their clients, but also contribute to the social justice, protection of civil rights, the improvement of law and the construction of democratic politics. Thirdly, the judicial reform, which started recently in China, will also bring new challenges and opportunities to Chinese lawyers. The key objectives of the judicial reform are to reform the structure of judicial power and, on the basis of personnel and financial reform in the judicial organs, to implement the system of judicial independence, eradicate judicial corruption and realize judicial fairness. The legal profession is closely related to the administration of justice and lawyers can play a very important role in the judicial reform. On the other hand, they can also impede or delay the development of new judicial mechanism. How to strengthen the reform of the lawyer’s system and make it compatible with the judicial reform has become an urgent problem faced by China.

C. LAWYERS ASSOCIATIONS Since the restoration of the lawyer’s system in the 1970s, the role of the lawyers’ association has also been reconfirmed. The Interim Regulations on Lawyers, promulgated in 1980, stipulated in article 19 that “a lawyers association shall be established to protect the lawful rights and interests of lawyers, to exchange work experience, to further the progress of lawyers work and to promote contacts between legal workers both at home and abroad.” In 44

1986, the first national lawyers’ Congress was held in Beijing. The Congress established the All-China Lawyers Association and adopted the Articles of Association of All-China Lawyers Association. The Law on Lawyers, promulgated in 1996, contains a special chapter (chapter five) on matters relating to the lawyers’ associations. 1. The Nature and Purposes of the Lawyers’ Associations A lawyers association is a social organization consists of lawyers. Article 37 of the Law on Lawyers provides that a lawyers association is a public organization with the status of a legal person and shall be the lawyers’ self-disciplinary organization. According to article 19 of the Interim Regulations on Lawyers, the purposes of establishing lawyers associations are to protect the lawful rights and interests of lawyers, to exchange wok experience, to further the progress of lawyers’ work and to promote contacts between legal workers both at home and abroad. Accordingly, the Articles of Association of All-China Lawyers Association provides that the purposes of the Association are: to unit the all the lawyers in the country, further promote the self-construction of the lawyers’ ranks, adhere to the Four Cardinal Principles, correctly implement the guidelines and the policies of the Communist Party and of the State relating to the lawyers, serve the people whole-heartedly, uphold the correct implementation of the law, so as to develop socialist democracy, improve socialist legal system, and promote the cause of socialist modernization. Generally speaking, the purposes of lawyers’ associations can be summed up as the followings: 1. To uphold the lawful rights and interests of lawyers; 2. To exchange work experience, further strengthen the lawyers’ ranks and to promote the furtherance of the lawyers’ work; 3. To ensure the correct application of the law; 4. To promote the relationship between Chinese and foreign legal workers. 2. The Establishment of Lawyers Associations The lawyers associations in China consist of the All-China Lawyers Association and local lawyers associations. Paragraph 2 Article 37 of the Law on Lawyers provides that the All-China Lawyers Association is established at the national level, while local lawyers associations are established by provinces, autonomous regions, and municipalities directly under the Central Government. Local lawyers associations may be established according to need by cities divided into districts. Article 39 of the Law on Lawyers provides that a lawyer must join his local lawyers association. A lawyer who has joined his local lawyers association is at the same time a member of the All-China Lawyers Association. Therefore, although the 45

laws and regulations have not provided for any relationship of administrative subordination between the All-China Lawyers Association and the local lawyers associations, since local lawyers associations are members of the All-China Lawyers Association, in reality, a relationship of guidance and supervision exists between the All-China Lawyers Association and the local lawyers associations.

3. The Functions and Powers of the Lawyers Associations The functions and powers of the lawyers associations are usually provided for by the Laws and regulations on lawyers and the articles of association of lawyers associations. As the relevant provisions of the laws and regulations on lawyers and the articles of association of lawyers associations made since 1970s have demonstrated that the functions and powers of the lawyers associations have undergone a process of gradual development over the year, which reflected the gradual perfection of the lawyers system in China. The 1980 Interim Regulations on Lawyers did not contain specific provisions on the functions of the lawyers associations, but only briefly mentioned in article 19 the power of lawyers to formulate their own articles of association: “The Lawyers association is a social organization. It shall formulate its own articles of association.” In 1986, the Articles of Association of the All-China Lawyers Association were adopted at the first National Lawyers Congress. Article 4 of the Articles of Association listed the functions of the All-China Lawyers Association: (1) to educate its member on political ideology and professional ethics and organize them to study the guidelines and policies of the state and of the Chinese Communist Party, the laws, and the relevant professional knowledge; (2) to organize the research on lawyer’s business, sponsor lawyer’s newspapers and magazines so as to enhance lawyers’ professional level of and promote the furtherance of lawyer’s work; (3) to support lawyers in their performance of duties in accordance with the law and uphold the lawful rights and interests of its members; (4) to provide professional information to its members; (5) to put forward to the relevant government departments proposals on the construction of the legal system; (6) to organize welfare undertaking for its members; (7) to coordinate the works of the lawyers associations in provinces, autonomous 46

regions and municipalities directly under the central government; (8) to carry out exchanges with foreign lawyers’ organizations.

Since all the local lawyers associations are members of the All-China Lawyers Association, the above provisions have also been incorporated in the articles of associations of local lawyers associations. Generally speaking, the function of local lawyers associations is the carry out the above-mentioned work within their respective areas. For example, their function with respect to item 7 list above is to coordinate their work with All-China Lawyers Association. The 1996 Law on Lawyers expanded the power of the lawyers associations. Article 14 of the law provides that lawyers associations shall perform the following duties: (1) assuring that lawyers practice according to law and protecting lawyers’ lawful rights and interests; (2) summarizing and exchanging lawyers’ work experience; (3) organizing professional training for lawyers; (4) conducting education in, inspection of, and supervision over, the professional ethics and practice discipline of lawyers; (5) making arrangements for exchanges between Chinese and foreign lawyers; (6) mediating disputes arising in lawyers’ practice activities; and (7) other duties prescribed by law.

Article 2 of the Articles of Association of the All-China Lawyers Association pointed out that the All-China Lawyers Association is a non-governmental social organization consisting of all the lawyers in the country and under the guidance of the Ministry of Justice. Article 4 of the Law on Lawyers also provides that the judicial administration department under the State Council shall supervise and guide lawyers, law firms and lawyers associations in accordance with this Law. This means that, although the lawyers associations are non-governmental social organizations rather than state administrative organs, they must accept the guidance of the department of judicial administration. Therefore, they are not fully autonomous professional organizations. In practice, many lawyers associations are directly managed by the agencies in charge of administration of lawyers under the judicial administration departments of the government. The lawyers associations lack the substantial power in the management of lawyers’ affairs. They are only the assistants to the judicial administration departments. This is a problem which must be dealt with in the future reform of the lawyers system in China. 47

4. The Organizational Structure of the Lawyers Associations According to article 71 of the Articles of Association of the All-China Lawyers Association, three different organs are set up under the All-China Lawyers Association:

1. The National Congress. The National Congress is the highest decision-making organ of the All-China Lawyers Association. It meets every four years. Deputies to the Congress are elected by the local congresses of lawyers associations. Their term of office is four years and they can be reelected after the expiration of their terms. Their main functions and powers are: (1) to adopt and revise articles of association; (2) to discuss and decide upon the guidelines of work and tasks of the Association; (3) to hear and examine the work reports of the Executive Council; (4) to elect or remove from office members of the Council; etc. 2. The Council. The Council consists of several members elected by the National Congress. It is in charge of organization of the National Congress and is responsible to the National Congress. The Council meets once every year. 3. Executive Council. The Executive Council consists of the President, the Vice President, the Secretary General and the Vice Secretary General. Its functions and powers are: to implement the decisions of the National Congress, take care of the routine matters of the Congress and study the setting up of working bodies of the Association during the period when the National Congress and the Council are not in session. The Executive Council is responsible to the Council and report work to the National Congress on behalf of the Council. Since 1988, special lawyers committees were set up under the All-China Lawyers Association. Special lawyers committees are working bodies set up by the All-China Lawyers Association to organize lawyers to carry out their businesses. They are under the administration and supervision of the Executive Council of the All-China Lawyers Association. The first batch of special lawyers committees set up according to the Several Provisions Concerning the Special Lawyers Committees (For trial Implementation), adopted in 1988, were: special committees on criminal defense, civil agency, non-litigation legal affairs, foreign related economic legal service, and legal consul. The main tasks of the special lawyers committees are: (1) to sum up and exchange experiences within own their specialized fields; (2) to study and explore new situations and new problems within their own specialized fields; (3) to carry out liaison activities within their specialized fields through the exchange of information by various means; 48

(4) to carry out exchange activities with their counterpart organizations in foreign countries under the unified arrangement of the All-China Lawyers Association; (5) to put forward proposals to the All-China Lawyers Association on the lawyer’s professional work within their respective fields and to organize annual meetings of the special committee.

D. PROFESSIONAL ETHICS OF LAWYERS Lawyer’s professional ethics are the embodiment of social ethics in the lawyer’s profession. They are the ethics and the code of conduct that the lawyers must abide by in performing the functions and powers. In view of the special characteristics of the lawyer’s profession, lawyer’s professional ethics usually exist in the relationships between the lawyers, the state, the society, the parties concerned and other lawyers, which reflect the lawyers’ obligations towards the state, the society, the parties concerned and other lawyers. Since the lawyers’ professional ethics must be implemented through the lawyers’ practice discipline, it is very difficult to make a clear distinction between the two. If a lawyer violates the professional ethics and practice discipline in his practice, he will receive not only moral condemnations but also disciplinary punishment by the lawyers organizations. He may even be investigated for criminal responsibilities. The professional ethics and practice discipline of lawyers in China are mainly embodied in the relevant provisions of the following documents: Interim Regulations on Lawyers, Ten Requirements and Ten Prohibitions for Lawyers (Ministry of Justice, 1990), Rules on Disciplinary Punishment on Lawyers (Ministry of Justice, 1992), Code of Ethics and Practice Discipline for Lawyers, and the Law on Lawyers. The Code of Ethics and Practice Discipline for Lawyers, adopted by the All-China Association of Lawyers in 1996, lists in Chapter Two (articles 4-12) the following lawyers’ ethics: (1) to serve the needs of socialist economic construction and of the reform and opening to the outside world; to promote the construction of socialist democratic legal system; to contribute to the strengthening of people’s democratic dictatorship and the stability of the country; and to protect the lawful rights and interests of the parties concerned; (2) to abide by the Constitution and the law, to base themselves on facts, take law as the criterion, and practice the law in strict accordance with the law; 49

(3) to be devoted to their duties, adhere to the principles and uphold the law and social justice; (4) to maintain high moral standard, be honest and self-disciplined, value their own professional reputation, and not do anything that will impair the image of lawyers’ profession; (5) to abide by the good faith principle and to provide legal assistance to the parties concerned in a prudent and responsible manner; (6) to keep confidential secrets of the State and commercial secrets of the parties concerned that they come to know during their practice activities and to not divulge the private affairs of the parties concerned; (7) to respect their colleagues, to carry out mutual assistance and fair competition among themselves so as to improve their professional ability; (8) to practice law in a conscientious manner, try their best to grasp legal knowledge and professional skill needed for their practice activities, and pay special attention to the cultivation of professional ethics and mastery: (9) to abide by the articles of association of lawyers associations and to carry out their duties as members of such associations. Chapter Three (articles 13-17) listed the following practice disciplines:

a.

to abide by the regulations on lawyer’s work adopted by the departments of judicial administration, the code of conduct adopted by the lawyers associations and the relevant disciplines, rules and regulations related to their work;

b.

not to accept authorization privately, charge fees to a client privately, or accept money or things of value from a client;

c.

not to refuse to undertake or neglect the duty of legal aid assigned by the state;

d.

not to violate the regulations on the charge of fees and financial discipline of the law firm or to embezzle, divide up in secret, and misappropriate business income of the law firm;

e.

not to simultaneously practice in two or more law firms.

The practice of Chinese lawyers in reality is, generally speaking, highly recommendable, although violation of professional ethics and discipline by lawyers is not a 50

rare phenomenon in China. Engaging in unfair competition by various means, such as soliciting business by paying middleman’s fees and kick backs and exerting unjust influences on judicial personnel, are relevantly widespread phenomena in China. Incidents of lawyers squandering the money of clients, accepting or asking for unjust payment from clients, catering for the unjust demands of clients and maliciously collaborating with others to harm the interests of clients are also common in China. According to statistics, between 1985 and 1991, 63 lawyers had their practice certificates revoked by the Ministry of Justice, 24 or 38.1% of them because of embezzlement, accepting briberies, stealing and other criminal activities and 21 or 33.3% of them because of visiting prostitutes or having illicit sexual relationship with clients or their family members. Since the restoration of the self-discipline system 15 years ago, 31 lawyers have been given punishments in Guangdong Province for violating laws and disciplines, 31% of them because of violation of social ethics such as visiting prostitutes, 22% of them because of accepting authorization privately, charging fees to a client privately, or accepting money or things of value from a client, 19% of them because of using false certificates to fraudulently obtain passports or lawyer’s qualifications or making false statements in courts.6 Therefore, strengthening the professional ethics and practice discipline of lawyers remains an important task in the construction of the lawyer’s system in China.

6

See Zhang Zhiming, “Legal Profession in Contemporary China”, in Xia Yong, ed., Towards An Age of Rights, China

University of Politics and Law Press, 1999 edition, pp159-162.

51

E. RELEVANT STATISTICS Table I. Basic Statistics on Law Firms in China: 1986-1997

Year

1986

Total Numbers Rate of Number increase as compared to the previous year（%） 3198 -

Law Firms Non-state run Law Firms Percentage of Rate of Number the total（%） increase as compared to the previous year（%） -

1987

3291

2.9

-

-

-

1988

3473

5.5

-

-

-

1989

3653

5.2

-

-

-

1990

3653

0

-

-

-

1991

3760

2.9

73

1.94

-

1992

4176

11.1

198

4.74

171.23

1993

5192

24.3

505

12.05

155.05

1994

6619

27.5

1193

18.02

136.24

1995

7247

9.5

1625

22.42

36.21

1996

8265

14.0

2655

32.12

63.38

1997

8441

2.1

2957

35.03

11.37

Source: China Law Yearbook: 1987―1998

52

Table II. Statistics on Lawyers Number of Lawyers

Year Total

Full-time

Part-time

Lawyer-at-inv

Apprentice

Lawyers

Lawyers

itation

lawyer

1986

21546

14500

7046

601

2727

1987

27280

18308

8972

855

1704

1988

31410

21051

10359

1002

1433

1989

43533

23766

19767

2409

1275

1990

38769

23599

15170

2614

861

1991

46850

18878

10662

3901

-

1992

45666

22124

12391

3975

-

1993

68834

30401

16793

10166

-

1994

83169

40730

20171

9637

-

1995

90602

45094

17994

11696

-

1996

100198

47879

20243

15376

-

1997

98902

47574

18695

12892

-

Source: China Law Yearbook: 1987-1998.

Table III: Statistics on main the business of lawyers: 1985-1997 Year

Criminal cases

Civil and economic

Administrative

cases

cases

total Defense

Defense

lawyers

lawyers

appointed

engaged

the

by the

by the

defend-

court

defendant

Total

Economic

total

cases

Repres-

Non-litigati

Perennial

Legal

Preparation

on legal

legal

advisory

of legal

business

consul

service

document

enting

ants

1985

106840

7642

98198

108227

1986

136837

9944

127013

162999

1987

154485

12239

142246

1988

170194

12939

1989

232406

17570

1990

247466

-

1991

230967

194565

1992

219739

1993

-

-

-

41136

39441

1635543

316396

68068

-

-

41185

43184

1590173

328923

208627

96248

-

-

55061

59478

1903759

415921

155843

265326

111900

-

-

71618

88108

2411391

534861

214905

265326

211285

-

-

133194

108809

2625777

568392

-

333525

127987

-

-

110539

110570

2741446

523973

96566

226909

17341

14307

8986

236707

128921

2441890

2751124

14389

180254

396342

182021

16061

5885

277030

151501

2775324

610114

191657

12933

155045

483306

237119

15260

5380

350408

185715

2414778

600243

1994

208806

14543

167402

541574

276720

16283

5888

403544

203320

2907166

528148

1995

204382

14991

156433

641159

324909

18043

7054

452021

234496

1960017

543760

1996

245877

20272

181926

714064

360224

19360

8350

435483

223043

1864597

522872

1997

275188

22733

147826

857610

403337

29618

12108

1222239

232434

4259159

958657

Source: China Law Yearbook: 1987-1998.

53

PART FIVE JUDICIAL PROCEDURE OF CHINA

A. CIVIL JUDICIAL PROCEDURE Trial process of civil litigation in China includes four types of procedure which are ordinary procedure of first instance, procedure of second instance, procedure of trial supervision and procedure of execution. Procedure of first instance. it is the most basic procedure during trying a civil case, also the most complete one. It has five stages including bringing a suit and accepting a case, preparations for trial, beginning of a trial and courtroom investigation, courtroom debate, and evaluation and declaration. Bringing a suit. According to article 108 of the Civil Procedure Law, the following conditions must be met when a suit is brought: the plaintiff must be an individual, legal person or any other organization that has a direct interest in the case, there must be a specific defendant, there must be a concrete claim, a factual basis, and a cause for the suit, the suit must be within the scope of acceptance for civil lawsuits of the people’s courts and within the specific jurisdiction of the people’s court where it is filed. It is impossible to bring a suit unless four of the conditions are all met. A plaintiff can raise a civil case in written or oral form. Thereby, the written form is the principal. The written form means the submission of a bill of complaint which shall clearly set forth the following: (1) the name, sex, age, ethnic status, occupation, work unit and address of each person who is a party to the case or, if a party is a legal person or any other organization, its name, address and legal representative’s or principal leading personnel’s name and position. The parties includes both the complaint and the defendant. Assistance can be applied when it is necessary to set forth the work unit and address of a party. the principal leading personnel of the “ other organization” refers to its representative or runner. (2) the claim of the lawsuit and the facts and grounds on which the lawsuit is based. And (3) any evidence and its source, as well as the names and addresses of witnesses. The said evidence and its source includes any one which has been submitted or can 54

be submitted. If it is to provide any testimony, the name and address of the witness shall be made clear in order to facilitate the investigation by the court and order the witness to testify in the court. Review and acceptance. After the plaintiff lodges a suit in written or oral form in court, the court where it is filed shall review the suit according to the law and then handle it according to specific circumstances concerned. Two approaches will be adopted: one is to find whether the four conditions of bring a suit are met and decide the admission of the case, the other is to find whether the bill of it is complete. To ensure the realization of the claim right of the litigant, as article 111 of the Civil Procedure Law stipulates, the court must accept the lawsuit filed in conformity with the provisions of the Law. If some of the conditions are failed to meet, revision and supplement shall be allowed. According to article 112 of the Civil Procedure Law, when the court orders that the complaint be rejected, if the complainant has an objection against the order, he may file an appeal. When the court finds after review that it meets the requirements for acceptance, it shall file the case within seven days and notify the parties concerned; if the complaint does not meet the requirements for acceptance, the court shall within seven days order that the complaint be rejected. The period of 7 days is for the court to complete its review and decide the admission of the case. It is laid down clearly not only for the court to have enough time of consideration, but also to guarantee the realization of the litigant’s rights. After the suit is started, the defendant may raise an independent claim according to the legal form and procedure against the plaintiff which is named counterclaims and shall be dealt with together with the original claim. Preparations for trial. (1) Examination of the procedure of bringing of the suit and the content of the bill of it. The completeness of procedure concerning the filing of suit will be reviewed, and it shall be made sure that the bill of it is pertinent to the fact or reasoning on the claim and is without anything impertinent to the case or negative to the rights and interests of the personality of the other side. If the filing procedure is not complete, or the content of the bill lacks something or containing some error, the plaintiff shall be ordered to revise or supplement it within fixed period of time. (2) Service of the legal documents and litigant documents. The court shall notify the plaintiff with a notice of acceptance and send a notice for response to the suit to the defendant after its acceptance of the case. The notice shall not only inform both sides of the litigants of the acceptance of the suit by the court, but also inform them the litigant rights and duties which otherwise can also be done orally through a face-to-face way. (3) Reading and investigation of the materials concerned. 55

Preparations for the courtroom trial. (1) To notify the litigants and other participants involved. According to law, it shall be done 3 days earlier before the commencement of the trial. The period of 3 days is a legal one and can not be lessened, so the litigants and other participants in the action can make their preparations and appear in the court on time. When there is a third party joining in, the litigants include him besides the plaintiff and the defendant. Other persons involved in the action can be determined basing upon the specific case. The litigant to take a part in the trial can be notified by court notice or court summon, but other participants shall only by court notice. (2) The trial of the case held publicly shall be posted. (3) The secretary sees to the appearance of the participants and declaration of the discipline in the court. Courtroom investigation. Through this stage, decide the issues at odds between two sides of the suit. Courtroom debate. During this period, the litigants and their agents can support and oppose the fact or legal issues and demonstrate their reasoning. But the content of the debate has to be pertinent close to the issues within the investigation. During the debate, the inter-inquiry shall be allowed if necessary. Through the courtroom debate, the litigant can examine and testify the contentious issues one by one, in order to find the objective reality and based upon which the justice and proper implementation of the law can be made available. Court debates shall be conducted in the following order: (1) presentation of oral statements by the plaintiff and his agents; (2) response by the defendant and his agents; (3) presentation of oral statements or defense by the third party and its agents; and (4) debate between the two sides. The debate between the two sides shall be pursued directly towards the specific issues at odds, and the presiding judge shall testify the contentious issues. During the direction of the debate, the judge shall ensure the equality in the debate among the plaintiff, defendant and the third party. As to person who is not good at words, introduction and enlightening can be available through the way of making the focuses in the debate clear. At the end of the court debate, the presiding judge shall ask each side to present his final arguments, with the plaintiff going first, then the defendant, and then the third party. At last, the presiding judge declares the end of the court debate. According to article 128 of the Civil Procedure Law, “At the end of the court debate, a judgment shall be made according to law. Where conciliation is possible prior to the rendering of a judgment, conciliation effort may be conducted; if conciliation proves to be unsuccessful, a judgment shall be made without delay.” Deliberation and pronouncement of the judgment. It is the last trial period during

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which the fact of the case and the laws applicable are determined and the judgement pronounced. (1) Deliberating of the collegial panel. At the end of the court debate, once the litigants are not willing to accept or fail to arrive at he conciliation, the presiding judge shall declare the pause of the trial, then the judges and the secretary enter into the deliberation room for the deliberation. During this course, the judges are to research and determine the clarity of the facts basing on which to find the justice and apportion the responsibilities, and finally decide the laws applicable and the burden of the case fee. Members of the collegial panel have equal rights during this course and shall observe the principle that the minority shall defer to the majority. Diverging opinions in the deliberation must be entered in the transcript. The transcript shall be signed by the members of the collegial panel and attached to the archives of the suit. (2) Pronouncement of the judgement. According to article 134 of the Civil Procedure Law, the people’s court shall publicly pronounce its judgment in all case, whether publicly tried or not. Upon pronouncement of a judgment, the parties must be informed of their right to file an appeal, the time limit for appeal and the court to which they may appeal. Upon pronouncement of a divorce judgment, the parties must be informed not to remarry before the judgment takes legal effect. Withdrawal of complaints. A plaintiff may apply to withdraw his complaints before judgment is pronounced and when the suit is being handled, which is circled around the claim and anti-claim. However, some fact and reason shall be provided for the withdrawal of the complaint. The fact and reason mush be within the legal capacity of the litigants. The application in accordance of law can be approved by the court, otherwise it will be disallowed by an order on the basis of principle of legality. Default judgment. After the commencement of the suit, when one party refuses to appear in court, the court can make judgment by default in order to keep the litigant order and legal authority. This system includes the rules concerning the ground of facts, the objectives applicable the legal effect and so on. Initially, the ground of facts. If a defendant has been served with a legal subpoena from a people’s court and refuses to appear in court without justified reason, or if he walks out during a court session without the permission of the court, the facts constitute the ground for the default judgement according to the civil procedure Law. And the service with a legal subpoena is the performance of the fixed legal procedure of the court, whereas the refusal to appear in court and walking out during a court session belongs to the failure of the litigants to carry out the legal procedure. The judgement by default must be made basing on the facts above. Without being served with a legal subpoena or failure to comply with the subpoena because of justified reason, there is nothing to regard as refusal to 57

appear in court and the default judgment can not be made. Secondly, the objective of the default judgment. This kind of decision can be applied to both parties of the suit. Thirdly, the legal effect of it. It is equal to that with appearance of both parties. The party who do not appear in court still have the right to appeal during the appealing period against the default judgment and when the opponent party appeals, it can become the party in the appeal suit. Similarly, the judgment of the court of second instance is also the final one and has the legal effect upon both sides of the suit. But if it can be proved by any litigant that the default judgment is a result of lack of the service of legal subpoena or failure of appearance in court with justified reason, it do not have the same legal effect as the normal one for the violation of legal procedure. As a result, when the appeal is made against the judgment on first instance level, the suit will be sent back to resume the trial; and for the suit not appealed, or on the second instance level, re-trial will be done. Suspension of the proceedings. A lawsuit shall be suspended, if it involves any of the following circumstances: (1) One of the parties dies and it is necessary to wait for his heritor to make clear whether he would participate in the proceedings. (2) One of the parties has lost the capacity to engage in litigation and his agent ad litem has not been designated yet. When any litigant who is declared according to law non-capacity or limited-capacity, it is necessary to have an agent ad litem act for him. If it is timely to identify the agent ad litem capable of exercise of the rights and taking responsibilities concerned, the trial can continue; otherwise, there shall be a period to identify the agent ad litem, and no deputy for the litigant to take the litigation, suspension of the trial will be administered. (3) The legal person or any other organization as one of the parties has terminated, and the person succeeding to its rights and obligations has not been determined yet. The legal person or any other organization can cease because of mixture or dissolution. After the ceasing, the legal person as result of mixture or the liquidation organ will take the action instead, so if it has not yet identify the taker of the rights and duties, suspension of the proceeding happens. As to the other organizations, the liquidation organ for the ceased organization will act as a party in the suit concerned, or the original principals do so if there is no such organ existing so that generally an action without party to take rights and duties rarely exists. However, if the original principals are not able to take part in the action for some reason, it is still necessary to suspend the proceeding until the legal representative or quasi-representative is identified.(4) one of the parties is unable to participate in the proceedings for reasons of force majeure. The force majeure for the suspension of the proceedings is the traffic interruption not for the litigants’ reason but because of the sudden occurrence of the natural disasters, war or things like that which lead to 58

the incapacity of the litigants to take part in the action. (5) the current case is dependent on the results of the trial of another case that has not yet been concluded. During the trial of a civil case, sometimes it is found that the case on hand depends on the results of the trial of another case, so it shall be suspended until the conclusion of the other case. Among others, the so called “another case” can be criminal case or administrative case. And as to case concerning patent tort, if another case is to decide the validity of the patent, the former shall be paused waiting for the decision of the latter. (6) other circumstances arise that warrant the suspension of the lawsuit. Form of orders is utilized for suspension of the proceedings. The proceedings shall resume after the causes of the suspension have been eliminated and upon the application by the litigants or the court’s positive order according to its function. When the proceedings are resumed, the order to suspend the action before is regarded invalid. Conclusion of a lawsuit. In some cases, the proceedings can not be accomplished completely and can be concluded instead of continuation. As this is concerned, according to article 137 of the Civil Procedure Law, a lawsuit shall be concluded, if it involves any of the following circumstances: (1) the plaintiff dies without an heir, or the heir waives his right of litigation; (2) the defendant dies without estate and without a person who should succeed to his obligations; (3) one of the parties in a divorce case dies. (4) one of the parties in a case involving claims for overdue alimony, support for children or elders or a claim for the termination of adoptive relationship dies. Conclusion of the lawsuit is procedural issue which is within the powers of the court. The court can produce this order and from the date of service of it the lawsuit is concluded. The litigants have no right to complain about it. Appeal. Article 147 of the Civil Procedure Law stipulates:”If a party refuses to accept a judgment of first instance of a local people’s court, he shall have the right to file an appeal with the people’s court at the next higher level within 15 days from the date on which the written judgment is served. If a party refuses to accept an order of first instance of a local people’s court, he shall have the right to file an appeal with a people’s court at the next higher level within 10 days from the date on which the written order is served. “ Thus, if a party refuses to a judgment or order of first instance of a court, he shall have the right to file an appeal with the court at the next higher level with the legal period. Any appeal mentioned above shall be accepted, once it is raised, whether in the court of the first instance or in the court of the second instance, as long as it is in accordance with the conditions of bringing a

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TRIAL of the APPEALED CASE Scope of the trial. As article 151 of the Civil Procedure Law stipulates, “With respect to an appealed case, the people’s court of second instance shall review the relevant facts and the application of the law. “ So, the scope of the trial of the appealed case shall be the appellant requests of the party, and the content of consideration is factual and legal issues concerned. Because of this we find that it is the trail of both facts and laws which shall pursued centering the appellant requests. So, it is different from either kind of whole trial based on the examination of the decision of the court of first instance or the limited trial within the scope of appellant requests, and indeed it is pursued trough the examination of the factual and legal issues concerning the appellant requests. Judicial form. According to article 152 of the Civil Procedure Law, “When handling an appealed case, the people’s court of second instance shall form a collegial panel and conduct a hearing. Having verified the facts of the case by consulting the files, making necessary investigations and questioning the parties, if the collegial panel considers that it is not necessary to hold a hearing, it may make a judgment or order without a hearing.” Place of the trial. According to para.2, article 152, “A people’s court of second instance may try an appealed case in its own court or in the place where the case originated or where the people’s court which originally tried the case is located. “ So, the court of second instance can decided the place for the trial basing on specific case, it can be the resident place of the court itself, place where the case occurred or the resident place of court of first instance. As to the place where the case occurred usually is the place of the litigants’ residence. It is conducive for the court of second instance to verifying the fact and truth and settlement of the disputes between parties on time by pursuing the trial at the place close concerned. Period of the trial. As article 159 of the Law stipulates, period of the court of second instance for the appealed case differs between judgements or orders. Para.1 of article 159 reads, in trying an appealed case against a judgment, the court shall make a final judgement within three months after the case was filed as one of second instance. Any extension of the term necessitated by special circumstances shall be subject to the approval of the president of the said court. The so-called “ a final judgement within three months” refers to the period from the establishment of the case as one of second instance to the producing and service of the final judgement. As to what special circumstances shall or can lead to the extension of the 60

period, and how long it is, there is no legal clarity or legal list in detail, so it is authorized to the president of the said court to determine considering the specific circumstances and guaranteeing the quality of the trial. According to para.2 of the same article, In trying an appealed case against an order, the court shall make a final order within 30 days after the case was filed as one of second instance. Decision of the trial of second instance. According to para1 of article 153 of the Law, the court of second instance shall handle it respectively according to different conditions. (1) Rejection of the appeal and sustaining of the original judgement. As long as the facts were clearly ascertained and the law was correctly applied in the original judgment, the appeal shall be rejected by judgement and the original judgement shall be sustained. (2) If the law was incorrectly applied in the original judgement, the judgment shall be amended according to law. If the fact found by the original court is clear but the law was incorrectly applied, the court of second instance shall confirm the fact found in the original judgement and at the same time correct the result according to law. In practice of the justice, the wrong applications of law include the cases as follows: initially, original judgement or order violated some specific legal provision clearly; secondly, original judgement or order failed to apply some specific law which shall be applied and resulted in wrong decision; thirdly, the original judgement or order is wrong as a result of application of the law which should not be applied by the judge; fourthly, the law applied in the original judgement and order had been cancelled by the authority concerned clearly; fifthly, a law which has been promulgated but not come into effect yet is applied; sixthly, the local regulation or administrative regulation which is not in accordance with the national law is applied. Any case whose legal application is wrong and results in wrong decision shall be corrected according to law. Correction according to law means correct part of or whole to the original decision in accordance with law. (3) If in the original judgment the facts were incorrectly ascertained, the judgment shall be rescinded and the case remanded by an order to the original people’s court for retrial. (4) If the original judgment is a result of a violation of the prescribed procedure the case shall be remanded by an order to the original people’s court for retrial. For example, a case which should handled by a collegial panel but was dealt with by a single judge; failing to withdraw as a person who should especially a judge; the litigant who should appear in court failed to do so with lack of court summon; failing to change the not qualified participants; it was the secretary who acted as a judge and so on. All of these constitute the violations of the prescribed legal procedure. If in the original judgment a violation of the prescribed procedure may have affected the correctness of the judgment, the judgment shall be rescinded and the case remanded by an 61

order to the original people’s court for retrial. The decision of retrial of the original court is still the decision of the first instance. The litigant still have the right to refuse the judgement or order concerned and appeal again them. (5) A court of second instance shall use orders in all cases of appeal against the orders made by the court of first instance. The judgement or order of the court of second instance is the final one and comes into effect upon the service of them to the parties. Procedure for trial supervision. It is also called retrial procedure. According to the Civil Procedure Law, in a legally effective judgement or order, if the court finds a definite error, or the litigants thinks there is an error basing the on the legal fact and reason, or the people’s procuratorate find there is legal fact and reason with shall lead to retrial, the court itself shall determine, the litigants can apply for, and the procuratorate shall command the court’s retrial. Procedure for trial supervision is not necessary for all civil cases, but one of remedial procedure which is set specially for the remedy of the wrong in the legally effective judgements and orders of the court. Procedure of execution. If the party who lost the suit whose decision including the content of execution fail to perform his duty according to the decision, the winning party has a right to apply to the court for execution within legal period.

B. CRIMINAL JUDICIAL PROCEDURE The criminal judicial procedure is procedure for the court, the procuratorate and the public security organs ( including the state security organs), together with other litigant participants, to deal with the criminal responsibilities of the accused person according to law. Generally speaking, there are four parts included in it: filing a case, investigation, initiation of public prosecution and criminal trial. 1. Filing a case According to the Criminal Law, the public security organs or the People’s Procuratorates shall, upon discovering facts of crimes or criminal suspects, and the public security organs, the People’s Procuratorates or the People’s Court shall, upon the considerations of the reports, complaints, information or confession, determine to file the criminal cases for investigation or trial. It is called filing a case which is conducive to ascertainment and punish the crime and guarantee of the citizen’s legal interests. Meanwhile, filing of case can help to evaluate the social situation of public security and to make proper 62

policy decision. Conditions of filing. According to article 86 of the Criminal Procedure Law, there are two conditions necessary for the filing: Initially, there are facts of a crime. That is to say, what to be investigated is the conduct of crime according to criminal law and there shall be some fact materials proving that the crime has already happened. Secondly, there is criminal responsibility should be investigated. Both conditions are necessary, and once they are met, a case shall be filed. Otherwise, if it believes that there are no facts of a crime or that the facts are obviously incidental and do not require investigation of criminal responsibility, it shall not file a case and shall notify the complainant of the reason. If the complainant does not agree with the decision, he may ask for reconsideration. According to article 15 of the Criminal Procedure Law, in any of the following circumstances, no criminal responsibility shall be investigated and no case will be filed: if the limitation period for criminal prosecution has expired, in spite of the existence of the crime; if an exemption of criminal punishment has been granted in a special amnesty decree; if the crime is to be handled only upon complaint according to the Criminal Law, but there has been no complaint or the complaint has been withdrawn; if the criminal suspect or defendant is deceased; or if other laws provide an exemption from investigation of criminal responsibility. Jurisdiction of the filing. The Chinese Criminal Procedure Law stipulates the jurisdictions and functions of the public security organs, the People’s Procuratorates or the People’s Court clearly. (1) The public security organs can file a case directly. According to para.1 of article 18 of the Law, investigation in criminal cases shall be conducted by the public security organs, except as otherwise provided by law. The legal exception includes: State security organs shall, in accordance with law, handle cases of crimes that endanger State security, performing the same functions and powers as the public security organs ( article 4); some cases shall be placed directly on file for investigation by the People’s Procuratorates (para2 of article 18); the security departments of the Army shall exercise the power of investigation with respect to criminal offences that have occurred in the Army and crimes committed by criminals in prison shall be investigated by the prison (article 225). (2) Cases shall be filed directly by the People’s Procuratorates includes crimes of embezzlement and bribery, crimes of dereliction of duty committed by State functionaries, crimes involving violations of a citizen’s personal rights and infringement of a citizen’s democratic rights and other grave crimes committed by State functionaries by taking advantage of their functions and powers. (3) As to cases which can be filed directly by the People’s Court, according to para.3 of article 18 of the Law, they are called private prosecution cases including: initially, 63

the cases handled only upon complaint; secondly, cases for which the victims have evidence to prove that those are minor criminal cases, for example the cases of deliberate hurt ( minor one), bigamy, abandonment, interference with communication freedom, illegally intrusion into other person’s house, production or selling the fake or less qualified goods ( except the crimes which damage the social order or state interests seriously), violation of the protection of intellectual property, the crimes laid down in the chapter 4 and 5 of the Criminal Law, the crimes which will lead to a punishment less than that of three years of imprisonment and other minor crimes; thirdly, cases for which the victims have evidence to prove that the defendants should be investigated for criminal responsibility according to law because their acts have infringed upon the victims’ personal or property rights, whereas, the public security organs or the People’s Procuratorates do not investigate the criminal responsibility of the accused. 2. Investigation According to article 89 of the Criminal Procedure Law, with respect to a criminal case which has been filed, the public security organ shall carry out investigation. Investigation is the basic and independent part stage of the criminal proceedings, it is a necessary one that case of public prosecution shall go through. The case of public prosecution can not be initiated or tried unless it go through this procedure. The purpose and task of it is to find and collect the evidences according to legal procedure to find the criminal facts, to identify and ascertain the criminal suspect, and to adopt the coercive measures to prevent the criminal found on the spot or criminal suspect from continuing to commit crime or avoiding the investigation, prosecution and trial, so as to safeguard the smooth progress of the criminal prosecution proceedings. Basing on the provision of the Criminal Procedure Law, the investigation organs during their performance of their duties shall take some special investigation actions according to law including questioning of the witnesses and victims, inquest and examination, search, seizure of material evidence and documentary evidence, expert evaluation and wanted orders. Interrogation of the criminal suspect. It must be conducted by the investigators of a People’s Procuratorate or public security organ. During an interrogation, there must be no fewer than two investigators participating and it shall be conducted orally. A criminal suspect who need not be arrested or detained may be summoned to a designated place in the city or county where the criminal suspect stays for interrogation, or he may be interrogated at his residence. However, the interrogators shall produce their papers issued by a People’s 64

Procuratorate or a public security organ. Interrogation of the criminal suspect must be conducted within 24 hours after the detention or arrest, and if it is found that the person should not have been detained or arrested, he must be immediately released. During the interrogation of the criminal suspect, a record shall be made which will note the questions, answers and circumstances of participation of other persons truthfully. The record of an interrogation shall be shown to the criminal suspect for checking; if the criminal suspect cannot read, the record shall be read to him. If there are omissions or errors in the record, the criminal suspect may make additions or corrections. When the criminal suspect acknowledges that the record is free from error, he shall sign or affix his seal to it. The investigators shall also sign the record. If the criminal suspect requests to write a personal statement, he shall be permitted to do so. During the interrogation of the criminal suspects, it is strictly forbidden to extort confessions by torture, enticement, deceit or question mentioning names. The criminal suspect has a right to accuse the person who conducts torture, and if there is a crime constituted in the case, the criminal responsibility shall be investigated. 3. Initiation of public prosecution When a People’s Procuratorate considers after full examination of the case transmitted by the public security organs as a result of the conclusion of investigation for prosecution or the case handled by itself as a result of conclusion of investigation, that the evidence gathered during the investigation period is already reliable and sufficient, and the conduct of the criminal suspect leads to criminal responsibility which shall be investigated, it shall initiate the public prosecution in the court. This is the public prosecution, power of which is within the jurisdiction of the People’s Procuratorate. And it if the important stage in the criminal judicial proceedings. Jurisdiction of the cases. According to article 141 of the Criminal Procedure Law, the People’s Procuratorate shall initiate the public prosecution in the People’s Court at the same level as its and shall not do it at higher level. If the Procuratorate has accepted case not within the jurisdiction of the court at the same level, basing on the conditions of the specific case, it shall report the suit to other Procuratorate at the next higher or lower level by which to initiate the public prosecution in the People’s Court at the corresponding level and with the jurisdiction. Conditions of the public prosecution. There are there: first, the facts of the crime of the criminal suspect are made clear. The “facts of the crime” include the facts proving the guilty of the criminal suspect but general delinquency, those deciding the burden or no burden 65

of the criminal responsibility of the criminal suspect, and those shall affect the gravity (lighter, mitigated or heavier) of the punishment of the criminal suspect. Second, the evidence is reliable and sufficient. Third, there is criminal responsibility should be investigated according to law. The public prosecution by the Procuratorate shall not be made unless all of the three conditions are met. The bill of the prosecution. To file a public prosecution, the People’s Procuratorate shall produce the bill of prosecution according to the Criminal Procedure Law and the Document Formats of Criminal Prosecution issued by the Supreme People’s Procuratorate. Decision not to initiate a prosecution. After the full examination of the case transferred by the public security organ as a result of the conclusion of investigation with a recommendation to initiate a prosecution or the case as a result of the conclusion of investigation by itself, the Procuratorate shall make a decision not to transfer the case to the People’s Court for trial if it finds there is circumstance provided in law with effect that the suspect shall not be investigated for criminal responsibility, or the case is minor and the offender need not be given criminal punishment or need be exempted from it according to the law, or the case does not meet the conditions for initiation of a prosecution after supplementary investigation has been conducted twice. This is one of the results of the examination of the case by the Procuratorate which is of the legal effect of ending the litigation. According to the Criminal Procedure Law, there are three categories of decision not to initiate prosecution, that provided by law, that as result of consideration and that because of existence of doubt. (1) That provided by law. There are six circumstances leading to this: if an act is obviously minor, causing no serious harm, and is therefore not deemed a crime; if the limitation period for criminal prosecution has expired; if an exemption of criminal punishment has been granted in a special amnesty decree; if the crime is to be handled only upon complaint according to the Criminal Law, but there has been no complaint or the complaint has been withdrawn; if the criminal suspect or defendant is deceased; or if other laws provide an exemption from investigation of criminal responsibility. Among them, the conduct of the criminal suspect is not regarded as guilty, or shall not be investigated for criminal responsibility, or cannot be investigated for that, so it does not meet the conditions for public prosecution. (2) That as a result of consideration. That is, if the People’s Procuratorate finds the case is minor and the offender need not be given criminal punishment or need be exempted from it according to the law, the decision not to initiate a prosecution shall be made. (3) That because of existence of doubt. With respect to a case for which 66

supplementary investigation has been conducted, if the Procuratorate still believes that the evidence is insufficient and the case does not meet the conditions for initiation of a prosecution, the Procuratorate may decide not to initiate a prosecution. According to article 140 of the Criminal Procedure Law, in cases where supplementary investigation is to be conducted, it shall be completed within one month. Supplementary investigation may be conducted twice at most. “The evidence is insufficient” refers to that the evidence decisive in the case bears doubt and cannot be verified, the there is no necessary evidence to prove the necessary constitutive element of a crime, the conflict between the evidences cannot be resolved reasonably, or there is other possibility deduced from the evidence which can not be excluded. Procedure of the decision not to initiate prosecution. First, a decision not to initiate prosecution is made; second, the said decision shall be announced publicly and be delivered to the person and organ concerned; third, the seizure or freeze of the property or things of value seized or frozen shall be cancelled; fourth, the People’s Procuratorate shall transfer the case to the competent organ for handling; fifth, reconsideration and review upon the opinions from public security organ sometimes will be made. 4. Criminal Trial The criminal case, after being filed by the Procuratorate for public prosecution or by the private prosecutor in the court, enters into the trial stage. And it is the criminal trial that decides the last consequence of the litigation, the effect of investigation of criminal responsibility and the realization of the national specific power of criminal punishment. Principle of trial in public. According to article 11 of the Criminal Procedure Law, cases in the People’s Courts shall be heard in public, unless otherwise provided by this Law. It is one of the basic principles of Chinese criminal trial. Cases not to be heard in public. As article 152 of the Criminal Procedure Law provides, cases as follows shall not be heard in public: (1) cases involving State secrets; (2) private affairs of individuals; (3) cases involving minors. No cases involving crimes committed by minors who have reached the age of 14 but not the age of 16 shall be heard in public. Generally, cases involving crimes committed by minors who have reached the age of 16 but not the age of 18 shall also not be heard in public. In addition, according to the judicial interpretation by the Supreme People’s Court, cases involving commercial secrets indeed argued by the litigants shall be decided not to be heard in public by the court. System whereby the second instance is final. Article 10 of the Criminal Procedure 67

Law stipulates:”In trying cases, the People’s Courts shall apply the system whereby the second instance is final.” So, a criminal case shall come to end after at most twice of trials by two levels of the People’s Court respectively. As a final judgement, litigants cannot appeal against the ruling by the People’s Court of the second instance, nor can the People’s Procuratorate protest against it according to the appeal procedure. Trial procedures. According to the Criminal Procedure Law, there are four types of trial procedures: (1) Procedure of first instance. It is the procedure by which the People’s Court makes trial of the cases filed by the People’s Procuratorate for public prosecution or by the private prosecutor for private prosecution for the first time. (2) Procedure of second instance. It is the procedure by which the People’s Court makes trial of the cases appealed or protested. (3) The special procedure for review. There is procedure for review of death sentences and that of the People’s Court for review of the punishment below the prescribed punishing line according to para.2 article 63 of the Criminal Law. (4) Procedure for trial supervision. If some definite error in a legally effective judgement or order is found, then the case shall be put into retrial.

C. ADMINISTRATIVE JUDICIAL PROCEDURE (JUDICIAL REVIEW OF ADMINISTRATION AND LEGISLATION ) Criteria of administrative trial. According to article 52 of the Administrative Law, “In handling administrative cases, the People’s Court shall take the law, administrative rules and regulations and local regulations as the criteria. Local regulations shall be applicable to administrative cases within the corresponding administrative areas. In handling administrative cases of a national autonomous area, the people’s courts shall also take the regulations on autonomy and separate regulations of the national autonomous area as the criteria. “ So, the sources of trial in China are laws, regulations and rules. As the laws, administrative rules and regulations, local regulations and regulations on autonomy and separate regulations belong to different level in the framework of Chinese legal system and have different status and effect, they are of different affection to the administrative trial. What is more, the legal norm at lower level shall be in harmony with provision at higher level, it is pre-requisite for its legal effect. So, in handling the administrative cases, the People’s Court shall apply laws in such an approach as considering and deciding the legality of the specific administrative act in a context of whole framework of legal norm. 68

Regulations for references. According to para.1 of article 53 of the Administrative Procedure Law, “In handling administrative cases, the People’s Courts shall take, as references, regulations formulated and announced by ministries or commissions under the State Council in accordance with the law and administrative rules and regulations, decisions or orders of the State Council and regulations formulated and announced, in accordance with the law and administrative rules and regulations of the State Council, by the people’s governments of provinces, autonomous regions and municipalities directly under the Central Government, of the cities where the people’s governments of provinces and autonomous regions are located, and of the larger cities approved as such by the State Council. “ As it is provided, regulations have different legal status from laws, regulations and rules. They are inferior to the laws, regulations and rules. So the regulation referred are not the ground for the administrative trial by the People’s Court, but the reference. Scope of accepting cases. In accordance of article 11 of the Administrative Procedure Law, the People’s Courts shall accept suits brought by citizens, legal persons or other organizations against any of the following specific administrative acts: (1)an administrative sanction, such as detention, fine, rescission of a license or permit, order to suspend production or business or confiscation of property, which one refuses to accept; (2) a compulsory administrative measure, such as restricting freedom of the person or the sealing up, seizing or freezing of property, which one refuses to accept; (3) infringement upon one’s managerial decision-making powers, which is considered to have been perpetrated by an administrative organ; (4) refusal by an administrative organ to issue a permit or license, which one considers oneself legally qualified to apply for, or its failure to respond to the application; (5) refusal by an administrative organ to perform its statutory duty of protecting one’s rights of the person and of property, as one has applied for, or its failure to respond to the application; (6) cases where an administrative organ is considered to have failed to issue a pension according to law; (7) cases where an administrative organ is considered to have illegally demanded the performance of duties; and (8) cases where an administrative organ is considered to have infringed upon other rights of the person and of property. Apart from the provisions set forth in the preceding paragraphs, the people’s courts shall accept other administrative suits which may be brought in accordance with the provisions of relevant laws and regulations. Procedure of administrative trial. In the procedure of administrative trial, the evidence burden is placed upon the defendant ( administrative organ ). Apart from this, it is basically similar to that of civil trial.

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D. ARBITRATION PROCEDURE Legal basis. Arbitration in China is pursued according to Civil Procedure Law of the People’s Republic of China and Administrative Procedure Law of the People’s Republic of China. And after the Arbitration Law was promulgated on 31 August. 1994, it becomes the main legal basis for arbitration. The Arbitration Law has eight parts: general provisions, arbitration commission and arbitration association, agreement for arbitration, arbitration procedure, application for canceling arbitral ruling, enforcement, special provision on arbitration involving foreign interests and supplement provisions. To be concrete, the main content is: First, contractual disputes between citizens of equal status, legal persons and other economic organizations and disputes arising from property rights may be accepted for arbitration by arbitration organ. Resort to trial or arbitration, no way to both of them, and the arbitration award is final. After the award is given, the arbitration commission or the people’s court shall not accept the re- application of the suit concerning the same dispute by any of the parties concerned. ( article 2, para.1 of article 9 ) For the arbitration award is final and the procedure is simple and convenient, it is less time costing and economical. According to the standard of Fee Rules of the Beijing Arbitration Committee, the cost for arbitration acceptance of a case is equal to that for the litigation of it in court. For the arbitration award is final, so the expenditure for the whole arbitration course is less than cost as a suit in court. Second, there is no jurisdiction by forum level or territorial jurisdiction for arbitration, and it is independent from administrative organ. Arbitration shall be conducted independently according to law, free from interference of administrative organs, social groups or individuals. Third, generally, arbitration is not held in public. And the ruling may not record the facts and reasons on the request of the parties, which is conducive to the establishment of the confidence between the parties. At the end, the compulsory enforcement can be applied for with the People’s Court toward the ruling of the arbitration. After the decision of arbitration is made, “The parties concerned shall execute the arbitral award. If one of the parties refuses to execute the award, the other party may apply for enforcement with the people’s court according to the relevant provisions of the Civil Procedure Law. The people’s court with which the application is filed should enforce it. “( article 62 ) The Arbitration Law has reformed importantly the domestic economic arbitration system in China, endowed it features such as freewill of the parties and flexible and convenient procedures, which is of importance for the settlement of economic disputes justly and on time, ensuring of the legal interests of

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the parties, maintaining the social economic order and guaranteeing the healthy development of the socialist market oriented economy. Arbitration organs. There are three categories of arbitration organ in China: arbitration organ of foreign economic and trade, arbitration of marine affairs and domestic arbitration organ. Foreign economic cooperation and trade arbitration committee. It referred specially to the China International Economic and Trade Arbitration Commission ( CIETAC ) under China Council for the Promotion of International Trade, which was founded on 31 March. 1956, named Arbitration Committee of Foreign Trade early and renamed as now in 1980. The headquarters of it is in Beijing, and it has the sub-Commissions in Shenzhen and Shanghai. Among all of the arbitration organs, its procedures are most complete and its achievements most prominent. The working rules. The basic principles of the CIETAC are those of basing on the facts, according to Law, applying the contracts, with references to international practices and settling disputes independently and justly. For many years, it has applied these principles, heard and settled a lot of cases, satisfying the parties domestic and from abroad. What is more, it also sets consultative committee of experts to deal with difficulty cases. Arbitration procedure. (1) The parties shall have an agreement for arbitration arrived at before or after the occurrence of the dispute, which is the precondition for arbitration. (2) In applying for arbitration, the parties concerned shall submit the application for arbitration in written. The application for arbitration shall specify the following matters: name and residence of parties concerned, the claimants’ claim and the facts and evidence on which the claim is based, indicated person(s) from the list of the arbitration committee as arbitrator(s) by the parties or by the authorized president of the arbitration committee. The application shall have the attachment of evidence materials such as original or copied contracts, agreement for arbitration, communication between the parties. And the fee in advance shall be submitted. (3) The date of hearing shall be determined by the president of the arbitration committee and chief arbitrator or single arbitrator through consultation. Once the date is decided, it shall be notified to the parties. (4) Generally, the hearing is performed in Beijing. (5) Any party can entrust Chinese citizen or alien as his agent by himself orally or in written form. (6) The arbitration can be held orally or in written form. (7) If it is necessary to adopt the custody measure, of evidences, the application shall be submitted to the Intermediate People’s Court of Beijing. (8) Whereas a claimant or his agent is absent from the hearing without justifiable reasons, the arbitration tribunal may give the award by default upon the application of the 71

other party. (9) Where the tribunal consists of three persons, the arbitral award shall be decided by the majority of the arbitrators and the views of the minority can be written down in the record which will be attached to the file. (10) If an award shall be enforced in China and one of the parties refuses to execute it, the other party may apply for enforcement with the People’s Court. Rules of withdrawal. A party has a right to ask for withdrawal of an arbitrator who as he considers has interests with the case, in order to guarantee the independence and justice of the arbitrator. According to the Arbitration Law, an arbitrator shall be withdrawn on his own application or upon the request of the parties concerned, whereas he has some circumstances which may affect the justice of the arbitration. There are two forms of withdrawal: one is that of the arbitrator by himself, which means that the arbitrator dealing with the case gets out of the arbitration on his own initiative if he founds he himself has the legally prescribed reason for withdrawal; the other is that upon the application of the party to the case, which means that if a party finds the legally prescribed reason of an arbitrator for withdrawal, he has a right to apply with the arbitration committee for this. Article 34 of the Arbitration Law stipulates clearly, “An arbitrator shall be withdrawn and the parties concerned have the right to request withdrawal, whereas: (1) The arbitrator is a party involved in the case or a blood relation or relative of the parties concerned or their attorneys. (2) The arbitrator has vital personal interests in the case. (3) The arbitrator has other relations with the parties or their attorneys involved in the case that might effect the fair ruling of the case. (4) The arbitrator meets the parties concerned or their attorneys in private or has accepted gifts or attended banquets hosted by the parties concerned or their attorneys. Application for withdrawal shall follow certain procedure. (1) Time to file the application. As to the withdrawal on the arbitrator’s initiative, there is no prescribed limit in the law, but usually he shall put up the question within 10 days after the establishment of the tribunal. Withdrawal application by a party shall be filed within the legally prescribed period. If the period during which the party has not made such application expires, he will lose the right to do so. Generally the arbitration committees provides: “In requesting for withdrawal, the parties concerned shall state reasons before the first hearing of the tribunal. If the reasons are known only after the first hearing, they may be stated before the end of the last hearing. “ (2) Decision for the withdrawal. Either that on the arbitrator’s own initiative or on the application of a party concerned according to law, the reason for withdrawal of arbitrator shall be subject to the examination by specific organ or person resulted in a decision. (3) When a

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party applies for the withdrawal of arbitrator, he shall illustrate the fact and reason and put up evidence. Combination of arbitration with conciliation. Combination of arbitration with conciliation is a salient feature of China’s foreign-related arbitration. Conciliation shall be conducted on the basis that the parties voluntarily agree to conciliation and the facts of the case and liabilities have been basically clarified and ascertained. It is not the necessary procedure for arbitration, nor proceeding before arbitration of any case. A united conciliation is created in China. That is, when dispute occurs, the Chinese party can apply with Chinese arbitration organ for sending of conciliator and so does the alien party with foreign arbitration organ in order to conduct the conciliation together. Should conciliation succeed, the arbitration comes to an end; otherwise, the arbitration procedure resumes according to the clauses of the contract. The approach of combination of arbitration with conciliation has caused much attention of the counterparts in the world. Achievements. With the constant deepening of reform and opening and development of the foreign trade, the number of foreign related arbitration cases is obviously increased in the field of foreign economic cooperation and trade in China. The China International Economic and Trade Arbitration Commission and its Shenzhen Sub-Commission and Shanghai Sub-Commission all experience a trend of obvious increase in annual number of cases being accepted and heard. In 1987, the number of cases being accepted is 139 and that of the cases concluded is 200. In 1995, it becomes 902 and 890 respectively with an increase of 548.9% and 345% for each. As one of the major international commercial arbitration organs, it has grown rapidly to the first place in the world in terms of caseload, and the enormous increase of the cases concluded shows the potential of the CIETAC of handling cases. Enforcement of award. On 22 April. 1987, China acceded to the 1958 Convention on Recognition and Enforcement of Foreign Arbitral Awards (New York Convention), according to which awards of Chinese foreign-related arbitration organs can be acknowledged and executed in more than 80 State parties. In China, the enforcement of award of foreign-related arbitration organs is conducted according to the New York Convention and the Chinese Civil Procedure Law. Thereby, the court will not consider the merits of the case, but limited procedural issues on the basis of request and evidence put up by the applicant, in order to safeguard the ending and executable effect of the arbitral award and guarantee the efficiency of the settlement of disputes. The experiences show that the domestic or foreign party usually can implement the arbitral award automatically. In few cases, when one party refused to do so, 73

they also could be enforced by the court on the request of the other party. By the end of 1991, the Hong Kong Supreme Court had accepted and coercively enforced more than 50 of the awards of Chinese arbitration committees upon requests. Canada, America, Japan, Swiss, New Zealand and Thailand has acknowledged and enforced Chinese arbitral awards. Maritime arbitration organ. China Maritime Arbitration Commission (CMAC) is the only foreign-related permanent maritime arbitration organ in China founded in 1959. According to Chinese law, the cases accepted by it include four types as the legal nature is concerned: (1) Disputes resulted from the contracts such as charter party, bill of lading, maritime insurance, vessel towing and savage. (2) Cases of tort. For example, compensation case for the damage to the facilities on the sea or in the harbor because of collision, or that for the economic damage because of activity on the sea whose facilities affecting the navigation of ships and so on. (3) Disputes on the ownership, such as ownership of the ship or goods, mortgage of ships, priority requests. (4) Other maritime disputes. The practice shows that the mail cases accepted by the Commission are those of collision, bill of lading, charter, contribution in general average, demurrage，sending fee, freightage, damage or difference of goods, body hurt or death and salvage rewarding. The parties come from more than 25 countries or districts including China, Singapore, Norway, Germany, America, Japan, Canada, Poland, India, Brazil, Panama, Hong Kong, etc. Combination of arbitration with conciliation is a feature of China’s maritime arbitration. Generally speaking, 1/3 of the cases are concluded by conciliation, while 2/3 are by ruling. From 1978 to 1995, there are 176 cases accepted by the Chinese maritime arbitration organ and 119 of them had been concluded. And in 1995, 21 cases are accepted and 16 cases are decided, which was the most caseload year since its founding. Domestic arbitration organ. After the promulgation of the Arbitration Law, governments and units concerned attached much importance to the reconstruction of the arbitration organs. According to statistics, by the end of August 1996, in 210 cities on China where arbitration organs can be constructed, there are 93 cities which had established new arbitration organs, amounting to 45%. It is anticipated that by end of the year, new founded arbitration organs would be up too 120. The established organs have accepted many cases and work well. Shenzhen Arbitration Committee, after founded in 1995, functions on the basis of facts and laws, attaches importance to contracts, with references to international practices, complies with principles of justice and rationality and provides a forum for the resolution of

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disputes associated with contractual and other property rights among citizens, legal persons and other organizations by efficient and impartial arbitration. It has accepted 230 cases including 19 foreign-related ones and with high sum of target. Beijing Arbitration Committee, after its establishment, with recommendation of organs concerned, has assembled more than 260 experts of law or economic and trade as arbitrators according to law and its functions, all of whom are highly regarded in their respective fields and maintain high ethical standards and plentiful experiences. To strengthen the construction of the arbitrator team, it has provided training for them and established examination system. The Committee also set up a web server to introduce the arbitration system. The information on the web site includes brief introduction of the Committee, arbitration rules, fee schedule and list of arbitrators, both in Chinese and English. As the leader of the Committee said, the content of the site will be enlarged in future, mainly introduce the Chinese civil and commercial laws, economic laws, civil procedure laws and economic arbitration laws, present the development of the Chinese lawyer field and recommend excellent l. Concentrating on the case handling, Beijing Arbitration Committee has adopted effective measures to guarantee the quality and speediness of the arbitration and made much progress. By 10 October, 1996, the committee had received advisory visits more than 1000 times, and accepted 102 cases; for details, see the form attached below. It is worth noting that from October 1999 to the end of June 2000, the committee had only received more than 20 cases. After the Tianjin Arbitration Meeting, especially the promulgation of Office Bureau of the State Council Document No.22, the number of the caseload gains an obvious increase. This shows that the Document No.22 plays important role in the transition from old arbitration system to new. As the decided cases are concerned, the period from establishment of the arbitration tribunal to the conclusion of the case usually is 50 days or so, which reflects fully the features of arbitration procedure such as being simple, convenient, quickly, secret, and professional.

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E. RELEVANT CHARTS

A. Civil Procedure First Instance Second Instance Supervision Enforcement B. Criminal Procedure First Instance Second Instance Review procedure for some special cases, like Death Penalty cases Supervision C. Administrative Procedure First Instance Second Instance Supervision Enforcement

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PART SIX LEGAL EDUCATION IN CHINA

A. HISTORICAL DEVELOPMENT OF LEGAL EDUCATION IN CHINA The establishment of the law schools in 1904 marked the beginning of legal education in China. By 1909, there were a total of 47 law schools with 12,282 students. They consisted of 37% and 23%, respectively, of the total numbers of schools and students at that time. The law school continued to develop after that. During the 1930s, the legal education had gradually been put under the control of the Guomintang Government and its development was inhibited. In 1940, there were a total of 27 universities with law faculties or independent law schools.7 After the establishment of the People’s Republic of China, legal education continued and further developed in the early 1950s. In 1952, before the “adjustment of colleges and faculties”, there were a total of 34 universities with law faculties. With the “destroying the old and establishing the new” movement within the legal field and the 1952 “judicial reform”, the state carried out “adjustment of colleges and faculties” in institutions of legal education through the country. After the adjustment, 6 institutions of legal education remained (4 schools of politics and law and two law faculties, namely the Law Faculty of People’s University of China and the Law Faculty of the People’s University of Northeast China).

8

Their main task was to provide in-service training to political and judicial

personnel. Since 1954, schools and politics and law began to enroll undergraduate students. In 1971, under the influence of legal nihilism of the “Cultural Revolution”, all the law schools and law faculties, with the exception of the law faculties of Beijing University and Jilin University, had been disbanded. In the end of 1970s, the Communist Party and state had

7

See Fang Liufang, “An Overview of the Legal Education in China”, in He Weifang, ed., The Road of Legal Education in

China, China University of Politics and Law Press, 1997, p.5 & P.15. 8

These figures come from the China Yearbook of Education: 1949-1981. According to the figures given by the China Law

Year Book: 1988, there were 8 law schools and faculties after the “adjustment”. The other two law schools were the Law Faculty of Wuhan University and the judicial training class of Northwest University.

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gradually realized the important of law and restored legal education in China. In 1978, the law faculties of Beijing University and Jilin University and Southwest University of Politics and Law began to enroll undergraduate students. The masters program in Law began in 1979 and doctor’s program in law began in 1984. In 1981, a total of 1,731 persons were awarded law degrees. Among them, 1,685 were awarded bachelor’s degree and 56 master’s degree. By 1989, more than 10,000 persons had been awarded law degrees. Among them, 9,436 bachelors in law, which were 5.6 times those of 1981; and 1,132 masters of law, which were 20.2 time those of 1981. From 1981 to 1997, more than 141,638 persons had bee awarded law degrees. Among them, 16,483 have been awarded master’s or doctor’s degrees in law.9

B. CURRENT LEGAL EDUCATION SYSTEM IN CHINA Since 1979, with the restoration of law schools and faculties and the establishment of new law faculties in some universities,10 a multi-level and multi-form legal educational system consisting of undergraduate education, special course education and graduate programs has gradually taken form. 1. Legal Education at the Undergraduate Level According the Higher Education Law of the PRC, undergraduate education is one form of education for academic qualifications. Usually only universities and independent colleges can undertake the task of undergraduate education. The purposes of undergraduate education are to enable students to grasp systematically the basic theories and knowledge required by the branches of learning or specialized subjects offered, to grasp the basic skills, methods and relevant knowledge necessitated by their specialized subjects, and to acquire the preliminary ability of practical work and research in the fields of their specialized subjects. The length of schooling for undergraduate legal education is four years. There are no

9

Source: http://www.moe.edu.cn/moe-dept/xueweiban/py.htm. See also Table One in the appendix. It should be pointed out

that, because some students in the fields of political science and social science and students who study political education in normal schools had also been awarded law degrees, the actual number of students graduated from law faculties and law schools were actually smaller in number. 10

After the restoration of the enrollment in the law faculties of the Beijing University and Southwest College of Politics and

Law in 1978, Beijing College of Politics and Law, East China College of Politics and Law, Northwest University College of Politics and Law and the Law Faculty of the People’s University of China were restored one after another since 1979. After that, with the approval of the Ministry of Education, law faculties have also been established under Wuhan University, Naking Univeristy, Zhengzhou University, Anhui University, Hubei College of Finance and Economy.

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specific provisions concerning the set up of specialties. In practice, the following specialties have been set up since 1980s: law science, criminal law, civil and commercial law, procedure law, economic law, administrative law, international law, criminal investigation, and reform-through-labor. Some institutions of higher learning divide the specialty of international law into two specialties: international law and international economic law and the specialty of procedure law into criminal procedure law and civil procedure law. Since 1990s, some new specialties, such as lawyer law and foreign related law, have emerged. After 1996, some law schools and faculties have carried out experimental reforms on the set-up of specialties by combining two related specialties into one, for example, combing civil law and economic law into civil and commercial law, or combining all the specialties into one, which is externally called the “law science”, but internally the division of specialties still remain.11 The curricula of undergraduate law education include common courses such as foreign language, history of revolution, common knowledge of socialist construction in China and computer science, basic law courses, such as basic theories of law and constitutional law, compulsory law courses, and elective law courses. Generally speaking, the curriculum of undergraduate law education has undergone major changes during the past 20 years. In the 1970s it usually included the following courses: basic legal theories, constitutional law, legal history (including histories of Chinese and foreign legal systems and legal thoughts), criminal law, criminal procedure law, civil law, civil procedure law, marriage law, international law and private international law. In recent years, there has been a great increase in courses in the fields of civil and commercial law, economic law and lawyer’s law, such as courses relating to the enterprises, banking, real estate, intellectual property, lawyer’s business, etc. Some new courses, such as administrative law, administrative procedure law and criminology have also been opened up. Apart from the above-mentioned courses, an undergraduate student is usually required to do graduation fieldwork. Different universities have different regulations concerning the form of graduation fieldwork. Generally it includes investigation and research, participation in teaching activities, and participation in legal work (such as lawyer’s work, and some of the work in public security organs, procuratorates and courts). The graduation fieldwork is part of the evaluation of the law students. 11

It should be noted that such division of specialities is not reflected in the teaching staff or personnel arrangements, but in

the enrollment of students. Usually specialized fields of study are set up under the general specialty in the enrollment plan and these fields of study are corresponding to the specialities before the merger of specialities, Although this methods have been criticized by many people, it is welcomed by the students.

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According to Interim Measures for the Implementation of Regulations on Academic Degrees, an undergraduate law student who, upon verification, meets all the requirements of the educational plan shall be allowed to graduate. If the results of examination and graduation thesis (graduation design or other links of graduation field work) demonstrate that he has grasped the basic theories and knowledge and basic skills and acquired the preliminary ability of practical work and research in the fields of specialized subjects, he shall be awarded the bachelor’s degree in law. Undergraduate law students who meet the relevant academic requirements but graduated from a college which is not authorized to award bachelor’s degrees shall, upon recommendation by his faculty and approval by his college, be awarded a bachelor’s degree in law by a nearby institution of higher education which is authorized to award bachelor’s degrees. 2. Graduate Programs in Law Graduate programs include master’s programs and doctor’s programs. According to the Higher Education Law, universities and independent colleges may undertake master’s and doctor’s programs. With the approval of the administrative department for education under the State Council, research institutes may also undertake graduate programs. The graduate program for candidates working for MA shall enable candidates to grasp firmly the basic theories in their branches of learning and grasp the systematic knowledge of their specialized subjects, to grasp the skills and methods and relevant knowledge required, and to acquire the ability of practical work and research in the fields of their specialized subjects. The graduate program for candidates working for Ph.D. shall enable candidates to grasp firmly the breadth of the basic theories and the systematic and profound knowledge of the specialized subjects and grasp the skills and methods required by their branches of learning, and to acquire the ability of creative research on their own and of practical work in the fields of their specific branches of learning. The length of graduate programs in law is usually three years. Originally there were no specific provisions concerning the division of specialized fields in master of law programs. Since 1998, the graduate programs throughout the country have been divided into the following ten specialities: legal theory, legal history, constitutional law and administrative law, criminal law, civil and commercial law (including labor law and social security law), procedure law, economic law, environmental and natural resource protection law, international law (including public international law, private international law and international economic law) and military law. The curricula of masters programs in law are relatively flexible and 80

have taken into consideration of such factors as the needs of the specialized fields of study and of the society and the availability teaching staff. They consist of common courses, basic courses in the specialized fields, compulsory courses in the specialized fields and elective courses in the specialized fields. An advisor system has been adopted for the graduate programs in law. The advisors are responsible for the preparation of the study plan of their students and supervision over their implementation, and for advising their students in their study and thesis writing. After completing the required courses, masters students usually have to do at least one month’s graduation field work. Those who have passed the examinations and the graduation fieldwork may write graduation thesis and apply for the master’s degree in law. The master’s thesis must put forward new points of view regarding the subject of the thesis and demonstrate that the author has the ability to engaged in scientific research work or independently carry out specialized technical work. The defense of masters thesis shall be conducted by a committee of 3 to 5 members. The committee shall, in the light of the circumstances of the defense, decide whether or not to award the masters degree. The decision shall be made by a two-thirds majority vote of all the members of the committee. Those who failed the defense of their thesis may, upon the approval of the committee, be allowed to revise their thesis and defend it once again within one year. After passing the examinations on their course work, Ph.D. students may apply for the Ph.D. degree. The subjects of examinations include Marxist theories, basic courses and other courses of the specialized subjects, and two foreign languages. Most Ph.D. students are required, as one of the conditions for applying the Ph.D. degree, to publish the results of their research in a high-level publication. The Ph.D. thesis should demonstrate that the author has ability to independently engaged in scientific research work and make creative achievements in their research or specialized work. The defense of Ph.D. thesis shall be conducted by a committee of 5 to 7 members, at least half of them must be professors or experts with equivalent academic titles. Those who failed the defense of their thesis may, upon the approval of the committee, be allowed to revise their thesis and defend it once again within two year. Apart from the master’s and doctor’s degree in law, China began a pilot project in 1995 to award professional master of law degree. The degree is a professional degree awarded to persons with specific legal professional backgrounds. It is aimed at training high level legal and managerial personnel in the fields of legislation, administration of justice, notary, adjudication, procuratorial work, disciplinary inspection, business administration, banking, 81

administrative law enforcement and supervision. According to the Report on the Professional Master of Law Degree, the professional masters of law degree is at the same level as the master of law degree, only they have different emphases. Those who are awarded this degree should have already grasped the basic legal theories and a wide range of practical legal knowledge. They should have a wide-range, complex, and open structure of knowledge and capability. They should be able to combine their knowledge in law, economics, science and technology, foreign language and computer science and independently carry out practical legal work. Both the Judges Law of the PRC and the Public Procurators Law of PRC provide that professors masters of law, like doctors of law, can be directly appointed to the positions of judges and people’s procurators. 3. Special Course Legal Education and Non-degree Legal Education Special course legal education, which belongs to degree education, is usually offered by the law faculties (or law schools) of universities, college of politics and law and high-level professional law schools.12 Its task is to enable students to grasp the basic theories and special knowledge which the course must offer and to acquire the basic skills and the preliminary ability of practical work in the fields of their specialized subjects. Non-degree legal education is offered by other institutions of higher education. Since the State Council endorsed the Report on Strengthening and Establishing Local Cadre Schools of Politics and Law submitted by the Ministry of Justice in 1980, cadre schools of politics and law have been established throughout the country. Legal education offered by cadres schools of politics and law, cadres college of politics and law management, radio and television universities, remote law education, night universities, higher legal education examinations for self-taught people, spare-time special law course for employees and various special courses and colleges for professional training have supplemented the undergraduate and graduate education offered by universities and legal research institutions and filled in the gaps in the basic legal education and legal training resulted from the lack the teaching staff, fund, and classrooms in the universities and research institutions.

C. UNIFORM NATIONAL EXAMINATION FOR QUALIFICATION AS LAWYER

12

After 1996, in accordance with the Higher Education Law, the law faculties and law school of universities have basically

ceased offering special course legal education, but mainly provide undergraduate and graduate education.

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One of the important achievements of legal education since the 1970s is the training of large number of legal personnel, especially lawyers. China began to implement the system of uniform national examination for the qualification as a lawyer in 1984 to select lawyers from those who have already received legal education and who have the basic knowledge of law. The system is a bridge linking the theoretical legal education and legal profession. In a certain sense, it serves to remedy the defect of higher education in China of being divorced from legal practice and legal profession. The uniform examination for the qualification as a lawyer was first held in Jiangxi Province on an experimental basis. Similar examinations were held in Beijing and other cities in 1985. The system was implemented throughout the country in 1986. From 1986 to 1992, such examination was held once every two years. Beginning from 1993, it has been held once every year. Up to date, a total of 13 such examinations have been held in China. The 1886 Law on Lawyers specifically stipulates that “The State institutes a system of uniform national examination for the qualification as a lawyer.” From the previous examinations we can draw the following conclusions on the system of uniform national examination for the qualification as a lawyer: (1) The uniform national examination for the qualification as a lawyer is the main way to acquire the qualification as a lawyer.13 (2) Those who take part in the uniform national examination for the qualification as a lawyer must have already received certain legal education or undergraduate or higher education in other fields. According to the Law on Lawyers, only those acquired three years legal education in an institution of higher learning, or more education or attained an equivalent professional level, or has acquired an undergraduate education in another major in an institution of higher learning, or more education can take part in the examination for the qualification as a lawyer. (3) The examination involves all branches of law. It requires the examinees not only

13

Before 1986, lawyer’s qualification was acquired through an “evaluation” system. After the implementation of system of

uniform national examination for the qualification as a lawyer in 1986, the “evaluation”system still remains in certain areas under certain conditions, namely those who has a senior professional title or is of an equivalent qualification, after evaluation and verification by the judicial administration department, may be granted the qualification as a lawyer. This system was further comfirmed by the Plan for the Reform of the Lawyers System, made by the Ministry of Justice in 1993. The 1996 Law on Lawyers restricts such persons to those “who has acquired an undergraduate legal education in an institution of higher learning, or more education, who is engaged in professional work such as legal research and teaching, and who has a senior professional title or is of an equivalent professional level”. Therefore, the uniform national examination for the qualification as a lawyer is not the only way to acquire lawyer’s qualification in China.

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to be familiar with the knowledge of laws and regulations, but also to be able to apply these laws and regulations in a flexible manner. The contents of the previous examinations have shown that the examination mainly consists of four parts: the first part is comprehensive knowledge of law, including basic legal theories, constitutional law, private international law, international economic law, the professional ethics and practice discipline of lawyers, the law on lawyers, administrative law, administrative procedure law, and foreign language; the second part is substantive law, including criminal law, general principles of civil law, and civil law theories, intellectual property law , contract law, enterprises law, securities law, tax law, banking law, insurance law, and other economic law; the third part is procedure law, including criminal procedure law, civil procedure law, arbitration legal system, administrative procedure law, the law on administrative punishment and state compensation law; the fourth part is legal business, including comprehensive analysis, case analysis and writing of judicial documents. 4. The examination is especially designed for the granting of the qualification of lawyers. It can not be used as proof of qualification of other legal professions, such as judges or procurators.

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D. RELEVANT STATISTICS Table I. Number of persons awarded law degrees between 1981 and 1998 in China Year

Bachelor

Master

Doctor

Total

1981

1685

56

0

1731

1982

3194

106

0

3300

1983

3181

105

0

3286

1984

3892

204

0

4096

1985

4828

336

0

5164

1986

5887

607

1

6495

1987

8351

673

6

9030

1988

8799

1109

24

9932

1989

9436

1132

20

10598

1990

10246

1165

34

11445

1991

9639

1246

49

10934

1992

10368

1132

50

11550

1993

7621

1119

44

8784

1994

7665

1321

98

9084

1995

8566

1390

102

10058

1996

9426

1745

135

11306

1997

12471

2276

198

14845

2543

245

1998

Source: the website of the Office of Academic Degrees of the State Council. （http://www.moe.edu.cn/moe-dept/xueweiban/py.htm） Note:

In China, some graduates in the fields of political science, sociology or political education are also awarded law degrees. Therefore, the figures given above are higher than the actual number of law graduates.

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Table II. Statistics of the Five Schools of Politics and Law under the Ministry of Justices: 1986-1997

Year

Total Number of students

1986

10349

1987

Full-time teaching staff Enrollment

total

2025

2782

2018

18

149

709

11106

2535

3309

2171

59

394

589

1988

11609

2696

3525

2058

75

384

592

1989

13756

4003

3410

2010

63

392

601

1990

13568

3628

3525

1953

60

366

576

1991

13568

3628

3525

3127

92

471

1293

1992

12994

3838

4228

1932

107

386

896

1993

15683

2986

5823

1805

143

446

811

1994

18469

3857

5747

1934

179

492

956

1995

19050

4962

5509

1986

205

509

970

1996

20091

5092

6226

1926

195

548

881

1997

21401

5215

6488

1933

204

537

868

Gradates

Professors

Associate professors

Lecturers

Sources: China Law Yearbook 1987-1998.

Table III Chinese Institutions of Higher Education Authorized to Award Masters Degree in Law The First Batch: 8 institutions Beijing University, People’s University of China, China University of Politics and Law, University of Foreign Trade, Jilin University, Wuhan University, East China College of Politics and Law, and Southwest College of Politics and Law Second Batch: 5 institutions Xiamen University, Nanking University, Central China College of Politics and Law, and Northwest University of Politics and Law Third Batch: 9 institutions Fudan University, Zhejiang University, Helongjiang University, Xiangtan University, Sichuan University, Anhui University, Suzhou University, Shandong University, and Zhengzhou University

86

Table IV. Number of Persons Awarded the Master’s and Doctor’s Degree in China by the Year of 1998:

修士

哲学 7205

経済学 法学 教育学 文学 歴史学 理学 工学 農学 30993 18266 7557 22981 8614 76851 192537 17075

医学 46584

Masters: Philosophy/Economy/Law/Education/Literature/History/Science/ Technology/Agriculture/Medicine

博士

哲学 454

経済学 1896

法学 1006

教育学 444

文学 1109

歴史学 理学 956 11601

工学 16819

農学 1773

医学 6785

Doctors: Philosophy/Economy/Law/Education/Literature/History/Science/ Technology/Agriculture/Medicine

Source: http://www.moe.edu.cn/moe-dept/xueweiban/py.htm

Table V. Numbers of Persons Taken Part in the Uniform National Examination for the Qualification as a Lawyer and Those Who Passed the Examination Year 1986

1988

1990

1992

1993

1994

1995

1996

1997

1998

1999

2000

15425

92322

More than

Near

More

More than

More than

80000

8000

than

116200

182000

Number of person

88000

taken in the exam Number of persons passed

3707

15523

12756

More

More

than

than

10000

20000

the exam

87

88

PART ONE

1

OVERVIEW: JUDICIAL REFORM IN CHINA

1

CHANCES AND CHALLENGES

1

PART TWO

6

THE COURT SYSTEM OF CHINA

6

A. The constitutional status of people’s courts

6

B. The relationship between people’s courts and other organs

7

1. The relationship with legislative organs

7

2. The relationship with administrative organs

7

3.The relationship with other organs

8

(1) The relationship with people’s procuratorates

8

(2) The relationship with public security organs

8

(3) The relationship with the organs of Communist Party

9

C. The organization and structure of people’s courts 1. The organization of people’s courts

9 9

2. The functions of people’s courts

10

3. The judicatory of people’s courts

12

D. Judicial procedures of people’s court

14

1. Civil procedure

14

2. Criminal procedure

15

3. Administrative procedure

16

4. Special maritime procedure

17

E. The structure of people’s court

17

F. Particular court systems in Special Administrative Regions

19

89

G. The trend of judicial reform in China H. RELEVANT STATISTICS

20 21

PART THREE

22

THE SYSTEM FOR PEOPLE’S PROCURATORATES

22

A. Establishment of System of Procuratorates in China

22

B. Constitutional Status of Chinese Procuratorates

24

C. Tasks of the Procuratorates

24

D. The Establishment of the Procuratorates

25

E. Qualifications for a Procurator

26

F. Scope of the Legal Supervision of the Procuratorates

29

1. Legal supervision on the state organs

29

2. Supervision on the state functionaries

30

3. Supervision of the violation of law by citizens

30

4. Supervision of the violation of Chinese law by foreigners

30

G. Content of the Legal Supervision

31

1. Supervision of law discipline

31

2. Supervision of the investigation

32

3. Supervision of the criminal trial

34

4. Supervision of executions

34

5. Supervision of the civil trial

35

6. Supervision of the administrative trial

35

H. Attachment of Forms

36

PART FOUR

38

THE LAWYER’S SYSTEM IN CHINA

38

90

A. Historical Development of the Lawyer’s system in China

38

B. Current Situation of the Lawyer’s Profession in China

41

C. Lawyers Associations

44

1. The Nature and Purposes of the Lawyers’ Associations

45

2. The Establishment of Lawyers Associations

45

3. The Functions and Powers of the Lawyers Associations

46

4. The Organizational Structure of the Lawyers Associations

48

D. Professional Ethics of Lawyers

49

E. Relevant Statistics

52

PART FIVE

54

JUDICIAL PROCEDURE OF CHINA

54

A. Civil Judicial Procedure

54

B. Criminal Judicial Procedure

62

1. Filing a case

62

2. Investigation

64

3. Initiation of public prosecution

65

4. Criminal Trial

67

C. Administrative Judicial Procedure

(Judicial Review of

Administration and Legislation )

68

D. Arbitration Procedure

70

E. Relevant Charts

76

PART SIX

77

LEGAL EDUCATION IN CHINA

77

91

A. Historical Development of Legal Education in China

77

B. Current Legal Education System in China

78

1. Legal Education at the Undergraduate Level

78

2. Graduate Programs in Law

80

3. Special Course Legal Education and Non-degree Legal Education

82

C. Uniform National Examination for Qualification as Lawyer

82

D. Relevant Statistics

85

92

PART ONE: OVERVIEW: JUDICIAL REFORM IN CHINA:CHANCES AND CHALLENGES........................................................................................................... 1 PART TWO: THE COURT SYSTEM OF CHINA........................................................ 6

1. The constitutional status of people’s courts....................................................... 6 2. The relationship between people’s courts and other organs .............................. 7 １. The relationship with legislative organs ........................................................ 7 ２. The relationship with administrative organs ................................................. 7 ３. The relationship with other organs................................................................. 8 ４. The relationship with the organs of Communist Party.................................. 9

3. The organization and structure of people’s courts ............................................. 9 １. The organization, functions and judicatory systems of people’s courtsエラー! ブックマークが定義されていません。 ２. The functions of people’s courts..................................................................... 10 ３. The judicatory of people’s courts ................................................................... 12

4. Judicial procedures of people’s court ............................................................... 14 １. Civil procedure ............................................................................................... 14 ２. Criminal procedure ........................................................................................ 15 ３. Administrative procedure .............................................................................. 16 ４. Special maritime procedure........................................................................... 17

5. The structure of people’s court ........................................................................ 17 6. Particular court systems in Special Administrative Regions .......................... 19 7. The trend of judicial reform in China .............................................................. 20

93

PART THREE: THE SYSTEM FOR PEOPLE’S PROCURATORATES ................... 22

8. Establishment of System of Procuratorates in China ..................................... 22 １. B. Constitutional Status of Chinese Procuratorates .................................... 24 ２. C.Tasks of the Procuratorates ....................................................................... 24 ３. D. The Establishment of the Procuratorates ................................................ 25 ４. E. Qualifications for a Procurator ................................................................. 26 ５. F. Scope of the Legal Supervision of the Procuratorates.............................. 29 ６. G. Content of the Legal Supervision ............................................................. 31 ７. H. Attachment of Forms ................................................................................ 36

9. Historical Development of the Lawyer’s system in China............................... 38 10. Current Situation of the Lawyer’s Profession in China ................................ 41 11. Lawyers Associations..................................................................................... 44 １. The Establishment of Lawyers Associations ................................................ 45 ２. The Functions and Powers of the Lawyers Associations.............................. 46 ３. The Organizational Structure of the Lawyers Associations ........................ 48

12. Professional Ethics of Lawyers ..................................................................... 49 13. Judicial Procedure of China .......................................................................... 54 １. Civil Judicial Procedure................................................................................. 54

14. Trial of the appealed case. ............................................................................. 60 １. Criminal Judicial Procedure.......................................................................... 62 ２. Administrative Judicial Procedure................................................................ 68 (Judicial Review of Administration and Legislation )........................................ 68 ３. Arbitration Procedure .................................................................................... 70

15. Legal Education in China.............................................................................. 77 １. Historical Development of Legal Education in China.................................. 77 94

16. Current Legal Education System in China ................................................... 78 １. Legal Education at the Undergraduate Level .............................................. 78 ２. Graduate Programs in Law ........................................................................... 80

17. Uniform National Examination for Qualification as Lawyer........................ 82

95

China’s Judicial System and its reform

96

REFERENCE

Legal Documents The Constitution of 1982 The Organic Law of People’s Courts The Organic Law of People’s Procurators The Civil Procedure Law of China The Criminal Procedure Law of China Lawyer’s Law of China Law for Judges of China Law for Arbitration of China

Books Wang Liming, Study on Judicial Reform, Law Publisher, 2000 Xin Chunying and Linlin, Rule of Law In China and Judicial Reform, Legality Publisher, 1999 Tan Shigui, Research on China’s Judicial Reforms, Law Publisher, 2000 Ren Yunzhang and Liu Zhaoxing, Comparative Study on Judicial Systems, China Social Sciences Publisher Xin Chunying, Chinese Legal System and Current Legal Reforms, Law Publisher, 1999 Yang Yiping, Judicial Justice, Law Publisher, 1997 Xiao Yang, Modern Judicial Systems, Publishing House of China University on Politics and Law, 1998

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