A fundamental issue that affects international commercial litigation in China is the lack of judicial independence. This issue not only troubles foreign  businessmen, but also becomes a popular concern among Chinese nationals. Despite the increasingly strong voice calling for an independent judicial system, the courts still seems to face impassable hurdles to exercising their judicial power independently.

 

Indeed, it is fair to say that judicial independence is a recognized principle in the Chinese Constitution and laws. In 1954, when the first Constitution was adopted,it provided that the courts shall adjudicate cases independently and abide by law. Article 126 of the current Constitution, adopted in 1982 (as amended 1999), further provides that the courts shall exercise judicial power independently according to stipulation of law, free of any interference by administrative agencies, social organizations, or individuals. Similar provisions are also embodied in the 1979 Organic Law of the courts (as amended 1983),the 1995 Law of Judges (as amended 2001), as well as the CCPL.

 

Therefore, literally speaking, the courts are granted an independent judicial power under the Chinese Constitution and laws. The problem, however, is that the judicial power may not be exercised independently in practice. Even the Supreme Court’s activities are not completely free from interference. The cause is the inherent defects existing in the current judicial system. China is a communist-party-dominated socialist country, and separation of powers is not a dominant theme. The Congress is the basic organization of the nation’s political power.According to the 1982 Constitution (as amended 1999), the National Congress (NPC) is the highest body of state power. But this body is required to be under the leadership of the communist party. The Supreme Court, though defined as the nation’s top judiciary body, is required to report to the NPC. Under the NPC, there are local congresses at the province and county level to which the lower courts at corresponding level are responsible.

 

Additionally, there are several system defects. The first one is the current organizational structure of the judicial system, which makes judicial independence extremely difficult. As noted, China has a unitary judicial system with four levels, from the Supreme Court to the county trial courts. The Supreme Court, however, has no control over any of the lower courts except for work connections. All judges at the lower court are selected and appointed by the local congress, which is heavily influenced by the local communist party chief and government heads. More importantly, the operating expenses, including salaries of the judges, are provided from the local government budget. In addition, Chinese judges do not have a life term, and any of them could be replaced or removed at anytime by the local congress. It is, therefore, quite common for local judges to follow instructions and opinions from the local government on particular cases, since government and judicial powers are usually intertwined.

 

The second aspect that affects judicial independence is the lack of professional ethics and judicial corruption. In China, personal relationships or “back-door” connections play significant roles in every corner of society. This scenario is often seen in the adjudication of cases. Many Chinese lawyers spend much of their time trying to find easy access to the presiding judge in lieu of traditional legal analysis.

 

A third shortcoming involves the internal managerial system of the courts. Within the courts, the president of each court is both the chief judge and the chief executive. The president has the power to influence the promotion and demotion of any particular judge in the court, and to supervise all judges through a reporting system. In most cases, the local court president is a political appointee by the local government.  In addition, though cases are tried by a collegial panel, the panel’s decision is subject to review by the trial committee consisting of the president, vice presidents, and division directors. Thus, the ability of the judge or collegial panel to reach an independent decision on a case is considerably limited.

 

Furthermore, the professional quality of judges is often very poor. Among the presidents and vice-presidents of the courts, only 19.1% received a bachelor degree or higher. This ratio is down to 15.4% among the judges in the lowest courts. For those who have received a college degree, many of them have not graduated from law school. For the few who have received a law degree, a substantial number did so through continuing education. Ironically, the reality is that in many local courts there are no law school graduates, and most judges are military veterans.

 

It is true that the Law of Judges is expected to help improve the quality of judges in the courts.There is, however, doubt that the Law of Judges may achieve its goal of improving the quality of judges to a highly professional standard. The primary concern is that the professional requirements for a judge, as set forth in the Law of Judges, are too low because a law degree is not a minimum requirement. Also, even though formal college education is required, this requirement does not apply to those who became judges before the Law of Judges took effect on July 1, 1995. 

 

Based on International Civil Litigation in China: A Practical Analysis of the Chinese Judicial System by  Mo Zhang