Judges Law (Draft Revisions)

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Period for solicitation of comments:2017-12-29 to 2018-01-27

Chapter I: General Provisions

Chapter II: Judges' duties, obligations and rights

Chapter III: Selection of Judges

Chapter IV: Appointment and dismissal of judges

Chapter V: Management of Judges

Chapter VI: Evaluation, Reward and Punishment of Judges

Chapter VII: Judges safeguards

Chapter VIII: Supplementary Provisions

 

Judges Law of the People's Republic of China (Draft Revisions)

Chapter I: General Provisions

Article 1: This law is formulated on the basis of the constitution so as to advance the regularization, specialization, and professionalization of judges; to strengthen the management of judges; to ensure that the people's courts lawfully, independently, and justly exercise the adjudication power; ensure judges' performance of their duties in accordance with law; and ensure judicial fairness.

Article 2: Judges are the public employees who lawfully exercise adjudication powers in accordance with law.

Article 3: Judges must faithfully implement the Constitution and laws and serve the people wholeheartedly.

Article 4: Judges handling cases shall treat parties and other litigation participants justly and fairly.

Article 5: Judges shall be diligent and conscientious, honest and clean, and abide by professional ethics.

Article 6: Judges receive the protection of law when performing their duties in accordance with law.

Chapter II: Judges' duties, obligations and rights

Article 7: Judges' duties:

(1) Participating in collegial panel trials or single-judge trial cases, and being responsible for cases they handle;

(2) Other duties provided by law.

Article 8: The court president, vice presidents, adjudication committee members, division heads, and deputy division heads, shall, in addition to performing their adjudication duties, also perform the duties corresponding to their position.

Article 9: Judges shall fulfill the following obligations:

(1) Trial of cases must be based on the facts, with the law as their measure, and be impartial;

(2) Safeguard the procedural rights of litigation participants in accordance with law.

(3) Preserve the national interests and public interests, and preserve the lawful rights and interests of natural persons, legal persons and other organizations;

(4) Keep state secrets and adjudication work secrets;

(5) Accept legal supervision and public supervision in accordance with law;

(6) Use cases to explain the law, strengthen the entire population’s rule of law consciousness, and move the construction of a rule of law society forward;

(7) Other obligations provided by law.

Article 10: Judges enjoy the following rights:

(1) the authority and working conditions that judges shall have to perform their duties;

(2) to not have the lawful performance of judicial duties interfered with by administrative organs, social groups, and individuals.

(3) to not be transferred, removed, demoted, or sanctioned for reasons other than those legally prescribed and in accordance with legal procedures.

(4) To receive compensation for work and to enjoy insurance and welfare benefits;

(5) To receive protection of law for security in their person, property, and residence.

(6) to participate in training;

(7) To raise complaint petitions or make accusations;

(8) to rest and take vacation;

(9) to resign;

(10) Other rights provided for by law.

Chapter III: Selection of Judges

Article 11: Judges must meet the following conditions:

(1) Have citizenship of the People's Republic of China;

(2) Be at least 23 years old;

(3) Uphold the Constitution of the People's Republic of China;

(4) Have good political and professional character, and good conduct;

(5) Have the physical capacity to perform duties normally;

(6) Have an undergraduate degree in law from a full-time ordinary college and have received the rank of bachelor or higher; or have an undergraduate degree or above from a full-time ordinary college in a subject other than law, and have received master's degree in law or jurisprudence; or have an undergraduate degree from a full-time ordinary college, have received the corresponding degree, and have specialized legal professional knowledge.

(7) have engaged in legal work for five years.

In areas where there are real difficulties meeting the academic requirements specified in item 6 of the first paragraph, upon review and confirmation by the Supreme People's Court, the academic requirements for judges may be relaxed for a period of time to include bachelors degrees from colleges.

Article 12: The following people must not serve as judges:

(1) those who have previously received criminal penalties for having committed a crime;

(2) Those who have previously been dismissed from public office;

(3) Those who have previously had lawyer or notary practice certificates revoked;

(4) Those with other situations provided for by law.

Article 13: New judges are selected by means of both tests and evaluations, according to the criteria of both ability and integrity, from among those persons who have obtained legal professionals credentials in the the national unified legal professions qualification exam, and who have the requirements for becoming a judge.

The presidents of people's courts shall possess legal knowledge and legal practice experience. Vice Presidents, members of the adjudication committee, division heads and deputy division heads shall be taken from among judges.

Article 14: People's courts may openly select judges from those engaged in legal professions, such as lawyers and legal experts.

In addition to having the requirements for serving as a judge and having received legal professional qualifications, lawyers participating in open selection shall have at least five years in actual practice and have a good reputation; legal experts participating in the open selection should have a title of lecturer or above, and have been engaged in teaching or research for at least 5 years, with outstanding capacity for research and outstanding research accomplishments.

Article 15: Establish a Supreme People's Court Judicial Selection Committee, responsible for reviewing the professional ability of the Supreme People's Court judicial candidates.

Provinces, autonomous regions and directly governed municipalities municipalities are to set up a Judicial Selection Committee, responsible for reviewing the professional competence of new judges.

Members of the provincial Judicial Selection Committee shall include judge representatives of each level of local people's courts and relevant societal representatives, of whom not less than one-third shall be judge representatives.

The provincial Judicial Selection Committee is to set up an office in the high people's court responsible for the daily work of the Judicial Selection Committee.

Article 16: New judges generally serve in the basic level courts. Judges of people's courts at the intermediate level or above are usually selected incrementally up through the levels. The Supreme People's Court and the High People's Courts may select judges from within the scope of peoples courts at the two levels below.

Judges selected for the intermediate and high people's courts are generally to have served as judges for five years or more in a lower people's courts and have three or more years of work experience relevant to the position they are selected for; judges selected for the Supreme People's Court are generally to have served as judges in the lower people's court for eight years or more, and have five or more years of work experience relevant to the position they are selected for.

Chapter IV: Appointment and dismissal of judges

Article 17: The appointment and removal of judges is to be handled in accordance with the scope of appointment and removal authority and procedures provided for by the Constitution and laws.

The President of the Supreme People’s Court is elected and removed by the National People’s Congress, and its vice-presidents, adjudication committee members, and other judges are appointed or removed by request of the court president to the Standing Committee of the National People’s Congress.

The president of all levels of local people’s court are elected and removed by that level of People’s Congress, and its vice-presidents, adjudication committee members, and other judges are appointed or removed by request of the court president to the Standing Committee of that level of People’s Congress.

Presidents, vice-presidents, adjudication committee members,and other judges of intermediate people's courts established by region inside provinces and autonomous regions, or in directly governed municipalities, are appointed and removed by request of the high people's court court president to the standing committee of the provincial, autonomous region, or directly governed municipality people's congress.

The appointment and removal of court presidents, vice presidents, adjudication committee members, and other judges of all levels of people's court of the Xinjiang autonomous region Construction and Production Corps, are to be in accordance with relevant provisions of the Standing Committee of the National People's Congress.

The appointment and removal of court presidents, vice-presidents, adjudication committee members, and other judges of specialized courts is to be in accordance with relevant provisions of the Standing Committee of the National People's Congress.

Article 18: After judges are selected in accordance with legally-prescribed procedures, they shall take a constitutional oath when taking office.

Article 19: The term of office of presidents of people’s courts is the same as that of people’s congress delegates that produced them and they must not serve more than two consecutive terms.

People’s congresses at all levels have the power to remove presidents of people’s courts that they chose from office. If the standing committee of a people’s congress deems it necessary to replace the president of a local people’s court at the corresponding level between sessions of the congress, it shall report the matter to the people’s court at the level above for submission to the standing committee of the people’s congress at the next higher level for approval.

Article 20: In any of the following circumstances, judges shall apply for the removal from their office as a judge:

(1) Where they have forfeited citizenship of the People's Republic of China;

(2) Where they are transferred from that court;

(3) Where position changes make it unnecessary to retain positions as judges;

(4) Where the quality and efficiency of case handling does not meet standards for two consecutive years and they are unable to succeed as a judge;

(5) Where they cannot perform their duties for a long time due to illness;

(6) Where they retire;

(7) Where they resign or are discharged;

(8) Where they cannot continue to hold offices due to discipline violations, illegalities or crimes.

Article 21: Where a judge is appointed in violation of the provisions of this Law, the organ that made the appointment shall revoke the appointment once it is discovered; where a higher people's court discovers that the appointment of a judge in a lower people's court violates the conditions set forth in this Law, it shall advise the lower people's court to request that the Standing Committee of the people's congress at the same level revoke the appointment in accordance with law.

 

Chapter V: Management of Judges

Article 22: Judges must not concurrently serve as a member of the Standing Committee of a People's Congress and must not concurrently serve in a position at an administrative organ, procuratorate, enterprise or public institution, or at another for-profit organization, and must not concurrently serve as lawyer, arbitrator or notary public.

After judges are approved, they may concurrently engage in teaching and research in universities and research institutes.

Article 23: Judges may not hold the following positions at the same time where they are spouses, immediate blood relations, collateral blood relationship within three generations, or close relatives by marriage:

(1) court presidents, vice presidents, members of the adjudication committee, division heads, or deputy division heads in the same court;

(2) court presidents, vice presidents, and other judges in the same court;

(3) Division heads, deputy division heads and other judges of the same tribunal;

(4) the president or vice president of people's courts at adjacent levels.

Article 24: For two years after judges leave the people's courts, they must not serve as an agent ad litem or defender as a lawyer for two years;

After judges or prosecutors leave the people's courts they must not serve as an agent ad litem or defender handling cases in the court where their prior court, except where they are a party's guardian or being the agent ad litem or defender for a close relative.

After judges are dismissed they must not serve as an agent ad litem or defender, except where they are a party's guardian or being the agent ad litem or defender for a close relative.

Article 25: Where judges' spouses or children have of the following circumstances, the judges shall recuse themselves from a post:

(1) Serving as a partner or founder of a law firm within the jurisdiction of the court where the judge serves;

(2) As a lawyer, serving as an agent ad litem or defender in the jurisdiction of the court where the judge serves, or providing other paid legal services to parties in case proceedings.

Article 26: The personnel ratio of judges is determined on the basis of factors such as the level of people's court, the case volume, as well as the economic and social development situation and population. The personnel ratio of judges for all levels of local people's court is subject to total volume control and dynamic management in provinces, autonomous regions, and directly governed municipalities.

Article 27: An independent job sequence administration is carried out for judges.

The ranks of judges are divided into twelve levels, which are Chief Justice, first-level Justice, Second-level Justice, First-level High Judge, Second-level High Judge, Third-level High Judge, Fourth-level High Judge, first-level Judge, second-level Judge, third-level judge, fourth-level judge, and fifth-level judges.

Article 28: The President of the Supreme People's Court is the Chief Justice.

Article 29: The determination of judges' rank is based on their showing of integrity and ability, their professional skill level, their years of trial practice and work, and so forth.

Judges are promoted through a combination of regular periodic promotions and selective promotions, and judges who are exceptional or that are especially needed for work may be specially selected for promotion.

Article 30: The set up and confirmation of judges' ranks, and measures for their promotion, are to be provided for elsewhere.

Article 31: A uniform system of pre-career training is to be carried out for new judges.

Article 32: Training in theory and operations shall be systematically carried out for judges.

Judges' training is to implement the principles of linking theory with practice, teaching according to needs, and stressing practical results.

Article 33: Judges' training is to be one of the bases for their serving as a judge and promotion.

Article 34: Training institutions for all levels of judge are to follow the relevant provisions in undertaking the task of training judges.

Article 35: Judge's applications to resign shall be submitted in writing by themselves.

Article 36: Judge are to be discharged in any of the following circumstances:

(1) Where they are determined to be incompetent for two consecutive years through annual performance evaluations;

(2) Where they are unable to successfully perform their work, and also refuse other arrangements;

(3) Where work adjustments are required due to organizational adjustments, revocation, mergers or a reduction in personnel allotments, and they refuse reasonable arrangements;

(4) Where they skip work or overstay their business travel or vacation without good cause for more than 15 consecutive days, or for more than 30 cumulative days within one year;

(5) Where they do not perform the legally prescribed duties of judges and refuse to make corrections after education.

Article 37: The discharge of a judge shall be decided in accordance with the scope of management authority. Discharged judges shall be informed in writing of the discharge decision.

Article 38: Where judges are identified as incompetent in annual evaluations, they should be demoted.

Article 39: Demotion of a judges shall reduce their rank by one level.

Where demoted judges work for one year or more with outstanding integrity, ability, and work performance, they may be promoted upon evaluation that they meet the requirements for promotion.

Chapter VI: Evaluation, Reward and Punishment of Judges

Article 40: People's courts are to set up a Judicial Evaluation and Review Committee responsible for the evaluation of that court's judges.

Article 41: Judicial Evaluation and Review committees are to have 5-9 members.

The Judicial Evaluation and Review Committee is headed by the Court President.

Article 42: The evaluation of judges shall be comprehensive, objective and just, and is to be combined with ordinary evaluations and annual evaluations.

Article 43: The content of judges' evaluations is to include: Actual trial work performance, professional ethics, professional skill level, ability to work, trial style. Actual trial work performance is to be the key consideration.

Article 44: The annual evaluation results are divided into four grades: outstanding, competent, basic competence, and incompetent.

Evaluation results are the basis for adjusting judges' rank and salary, and for rewards and punishments, training, removal, demotion, or dismissal.

Article 45: Judges are to be personally notified in writing of evaluation results. Judges with objections to the evaluation results may apply for a review.

Article 46: Judges having notable achievements or contributions in trial work, or have other outstanding deeds, are to be commended and rewarded in accordance with the relevant provisions.

Rewards for judges are to implement the principle of combining emotional and material encouragement.

Article 47: Where judges have any of the following performances, they shall be given rewards;

(1) outstanding achievements in judicial fairness;

(2) outstanding achievements in summarizing trial practice experience, playing a guiding role for trial work;

(3) Having a recommendation for trial work reforms accepted, with noticeable effect.

(4) making notable achievements and contributions in handling major cases, handling emergencies, and undertaking important special work items;

(5) put forward judicial recommendations that have been adopted or carrying out legal publicity or guiding mediation organizations to mediate various kinds of disputes with noticeable results;

(6) other achievements.

Article 48: Awards are divided into: Accolades, class 3 merit citation, class 2 merit citation, class 1 merit citation, and granting of honorific titles. The scope of authority and procedures for awards are to be handled in accordance with the relevant provisions.

Article 49: Where judges have any of the circumstances, they shall be given sanctions; and where a crime is constituted, criminal responsibility is pursued in accordance with law:

(1) Disseminating speech harmful to the country 's reputation; organizing or participating in activities such as rallies, processions, or demonstrations against the state; organizing or participating in illegal organizations; organizing or participating in strikes;

(2) Embezzling or taking bribes, acting for personal gain, or abusing the law in a capricious and arbitrary manner.

(3) Concealing, fabricating, altering, or intentionally destroying the evidence;

(4) Leaking state secrets or trial work secrets;

(5) Intentionally violating the law, or causing errors in rulings and serious consequences through gross negligence;

(6) Delaying handling cases and putting off work;

(7) Using their authority to seek personal gain for themselves or others;

(8) engaging in for-profit business activities or taking part-time positions in enterprises or other for-profit organizations;

(9) Meeting privately with parties or their agents, accepting improper benefits from parties or their agents;

(10) other actions in violation of discipline or law.

Article 50: Sanctions are divided into: Warnings, demerits, major demerits, removal, and expulsion.

Article 51: Judges must not be promoted during the punishment period, and punishment periods are not included into the period of service for promotions.

Where judges receive demerits, major demerits, or removal, their wage level must not be increased, and punishment periods are not included into the period for salary increases.

The periods for punishments are: Warnings: six months; demerits: twelve months; major demerits: eighteen months; removal: twenty-four months.

Article 52: The scope of authority and procedures for sanctions are to be handled in accordance with the relevant provisions. Sanctioned judges shall be notified of sanction decisions in writing, setting out the reasons for and basis of the decisions.

Article 53: Where judges violate the law and discipline and a case and investigation have begun, making it inappropriate for them to continue performing their duties, the performance of their duties may be suspended in accordance with the procedures and scope of authority provided.

Article 54: The Supreme People's Court and provinces, autonomous regions, and directly governed municipalities, are to establish judicial disciplinary committees responsible for reviewing and determining whether judges have conduct in violation of item 5 of article 49 of this Law which violates trial duties and submitting and opinion that an intentional violation of duties is constituted, that there was gross negligence, that there is ordinary negligence, or no violation; and the people's courts are to make a decision on sanctions in accordance with relevant provisions, and make relevant handling.

The Judicial Disciplinary Committee is to consist of judge representatives and other societal representatives, with judge representatives making up at least half.

The provincial Judicial Disciplinary Committee is to set up an office in the high people's court responsible for the daily work of the Judicial Disciplinary Committee.

Chapter VII: Judges safeguards

Article 55: People's court are to establish a committee for the protection of judges' rights and interest, ensuring judge's lawful performance of duties.

Article 56: Judges may not be removed from the trial post except in the following circumstances:

(1) Where recusal from a position is required by provisions;

(2) To carry out the exchange of cadres in accordance with provisions;

(3) where organizational adjustments or reduction in personnel allotments require work adjustments;

(4) Where they are unsuited to work in a trial post due to violations of law or discipline;

(5) Other situations provided by law.

Article 57: Administrative organs, social groups, and individuals must not interfere in judges' lawful handling of cases, and must not request that judges to engage in activities that violate their legally-prescribed duties. Judges have the right to refuse conduct interfering with their handling of cases and shall record it and the relevant organs are to pursue responsibility of the perpetrator on the basis of the severity.

Article 58: Judges and their close relatives must not be retaliated against by any units or individual.

Unlawful and criminal acts of retaliation by making false charges, insults and defamation, or violent encroachment on judicial personnel and their close relatives shall be severely punished in accordance with law.

Article 59: Where judges are falsely reported, maliciously accused, or demeaned and defamed, causing harm to their reputation, the people's courts shall join with the relevant departments to promptly clarify the facts, dispel negative impacts and pursue the responsibility of relevant departments and individuals.

Article 60: Where during the handling of cases, judges and their close relatives face physical danger, personal protections, restrictions on certain people having contact with them, and other necessary measures shall be employed for the judges and their close families.

Article 61: A wage system appropriate to judges and their duties is to be carried out for judges, in which they enjoy the salary and welfare benefits provided by the state in accordance with their rank, and a mechanism for salaries increases in step with those for civil servants is to be established.

The judges' wage system and wage standards, are to be provided for separately and based on the characteristics of trial work.

Article 62: A system of regular increases is implemented for judges.

Where the annual evaluation indicates excellence or competence, salary levels may be increased in accordance with provisions; where there are special contributions, salary levels may be increased early.

Article 63: Judges enjoy allowances, subsidies, bonuses, insurance and welfare benefits as prescribed by the state.

Article 64: Where judges are disabled, they enjoy disability benefits as provided for by the state. Where a judge is killed or dies in service, their relatives enjoy the bereavement benefits and preferential treatment as provided for by the state.

Article 65: The retirement system for judges is to be provided for separately and based on the characteristics of trial work.

Article 66: After judges retire, they enjoy pension insurance and other benefits as provided for by the state.

Article 67: Where judges are dissatisfied with the handling of any of the following personnel matters involving themselves, they may apply for a review to the organ that handled the matter within 30 days of receiving the disposition decision; and where they are not satisfied with the outcome of the review, they may follow procedures to make an complaint petition to the organ at the level above the on making the decision within 30 days or receiving the review decision.

(1) Sanctions;

(2) discharges;

(3) demotions;

(4) determinations of incompetence in annual performance evaluations;

(5) removal

(6) non-approval of applications for resignation or early retirement;

(7) Failing to follow provisions in determining or deducting wages, benefits and insurance benefits;

(8) Other situations that laws or regulations provide may be subject to an complaint petition.

The original organ handling the matter shall make a review decision within thirty days of receiving the application for review. The organ accepting a judge's complaint petition shall make a decision within 60 days from the date of acceptance of the case; where the case is complicated, the organ may extend the time limit appropriately, but the extension of time must not exceed thirty days.

The enforcement of personnel decisions is not stopped during reviews and complaint petitions.

Article 68: Where state organs or their staff have conduct violating the rights of judges provided for in article 10 of this Law, judges have the right to make an accusation.

Where administrative organs, social groups,or individuals interfere with judges' lawful exercise of their authority, they shall be pursued for his responsibilities in accordance with law.

Article 69: Judges appeals and accusations shall be true to the facts. Responsibility shall be pursued in accordance with law for the fabrication of facts or false accusations.

Article 70: Where there are mistakes in sanctioning or handling judges, they shall be promptly corrected; where it causes reputational harms, their reputation shall be restored, the impact eliminated, and a formal apology given; where it causes economic harms, compensation shall be made. The personnel directly responsible for retaliation shall be pursued for responsibility in accordance with law.

Chapter VIII: Supplementary Provisions

Article 71: The state implements a uniform legal professional qualification examination system for new judges that is organized and implemented by relevant departments judicial administration under the State Council through discussion with the Supreme People's Court and other relevant departments.

Article 72: Where this law has no provisions, apply the laws and regulations on the administration of public officials.

Article 73: This Law will take effect on XX-XX-XX.

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