This translation owes great thanks to the generous contribution of Nathaniel Reisenburg who contributed a complete draft that has been slightly modified for use here.
Title: The Supreme People's Court's Several Opinions on Improving the People's Courts' Judicial Responsibility System
Promulgating Entities: Supreme People's Court
Reference number: （Law Release (2015) No. 13）
Promulgation Date: 2015/9/16
Source of text: http://china.caixin.com/2015-09-21/100853677.html
The Supreme People's Court's Several Opinions on Improving the People's Courts' Judicial Responsibility System
In order to carry out the center's overall plan of: deepening reforms of the judicial system; optimizing the deployment of sentencing resources; clarifying the limits of sentencing groups' authority; perfecting the People's Courts' judicial responsibility system; establishing a sound mechanism for the movement of judicial authority in accordance with the law; strengthening the amount of personal experience of judges handling cases; and ensuring that judges carry out their responsibilities justly and independently, these opinions are formulated in accordance with related laws and the reality of the work in the People's Courts.
1. Improving the judicial responsibility systems of the people's courts must have strict trial responsibility as its core, must have scientific operating mechanisms for the adjudication power as a prerequisite; must have clear scope of authority for the trial organization and responsibilities of the adjudicators as its foundation; and must have effective systems for trial management and supervision as their safeguards; so that those hearing the case make rulings and those making rulings are responsible, and ensuring the lawful, independent and just exercise of the adjudication power by the people's courts.
2. In promoting trial responsibility reforms, people's courts shall adhere to the following principles:
(1) adhere to the leadership of the party, persist in travelling the path of the socialist rule of law with Chinese characteristics;
(2) Independently exercise the adjudication power in accordance with the Constitution and laws;
(3) Adhere to the regular pattern of judicial authority，demonstrate the adjudicative and decisive characteristics of trail authority, and highlight the principal position of the judge in handling cases;
(4) Have the adjudication power as the core, and trial supervision and management powers as safeguards;
(5) Make powers and the responsibilities clear and unified, make the Supervision Organized, and make the checks [on powers] effective;
(6) Combine subjective fault and objective conduct, and combine responsibility and safeguards.
3. Judges receive legal protection while lawfully performing their trial duties. Judges have the right to express their independent opinion on factual findings and on the application of the law in cases. Unless otherwise provided by the law and mandated legal procedure, judges are not to be held legally liable for lawful conduct in the performance of their duties.
4. Basic level and intermediate people's courts may put together trial teams consisting of a judge and judicial assistants, clerks and other necessary auxiliary personnel, to lawfully and independently hear cases using the simplified procedures and other cases provided for by law.
People’s courts may form collegial panels consisting of judges and jurors, according to the types of case accepted, on a random basis, to handle cases that apply formal procedure. In cases where summary procedure is applied, the law [may] require a collegial bench to adjudicate. Basic-level people’s courts that have relatively more cases to handle, may form fixed adjudicative teams and apply a [flat/consistent] format for case management.
People’s courts shall provide judges with a reasonable number of judge assistants, clerks, and other adjudicative assisting persons, taking into account the court’s functional orientation and judicial level.
5. On the foundation of strengthening the professionalization of the trial establishment, implement a random case assignment system that is primarily random and only sometimes designates case assignments. The judges handling cases shall be determined randomly according to the [legal] field and category of the case. Under special circumstances where the random distribution needs to be modified, the result and reason of modification shall be publicly announced via the court’s working platform.
6. Judicial opinions put together by individual judges hearing a case, should be directly signed by that sitting judge. Adjudicative documents produced during cases by collegial benches shall be signed by the handling judge, other members of the bench and the presiding judge successively; where the presiding judge is the handling judge, the presiding judge shall sign last. The adjudicative document may be printed and delivered after all judges of the trial organization have signed it. Presidents, vice presidents and divisional chiefs shall not examine or sign the adjudicative documents of the cases that they have not directly handled, except for those cases discussed and decided by the adjudication committee.
In deliberation and voting, the collegial panels shall apply the "Organic Law of the People's Courts", the procedural laws, the "Provisions of the Supreme People's Court Concerning the Work of the Collegial Panel of the People's Courts" and "Several Provisions of the Supreme People's Court concerning Further Strengthening the Functions of Collegial Panels."
7. Court presidents, court vice presidents, full-time members of the adjudication committee, section heads, and deputy section heads who are entered into the personnel count for judges shall handle cases. The annual number of cases assigned to a president, vice president, or full-time member of a Judicial Committee shall be determined, taking into account the average annual number of cases handled by all the judges of the court, his/her workload of adjudicative management and supervision matters, and administrative affairs. The annual number of cases that a divisional chief handles shall be determined by taking into account the average annual number of cases handled by all the judges of his/her division. Important, difficult, or complicated cases can be directly handled by a collegial bench formed by the president, vice president, and full-time members of the Judicial Committee.
Complying with the principle of separation between adjudicative power and administrative power, pilot-program courts may explore systems that unify administrative affairs like personnel, funds, and management, and when necessary, may appoint a vice president that assists the president in administrative affairs.
8. People's courts may separately establish specialized judicial committee for areas such as Civil, Criminal, and Administrative matters, to provide consultative opinions so that the collegial panel correctly understands and applies the law. If a collegial panel considers the case that it is handling so important, difficult, or complicated that the standard/quality of applying the law may vary, it may submit a question of law application to the Professional Judge Conferences for further research and discussion. Opinions of Professional Judge Conferences are for the collegial panel’s reference, and whether the collegial panel accepts the opinion is at the sole discretion of the collegial panel. A record of this discussion shall be included in the transcript for the purpose of future examination.
Establish a system of researching and discussing legal questions in adjudicative affairs to unify the adjudicative standard through reference to categorized cases and analysis of cases.
9. Clarify the role of the adjudication committee in unifying that court's standards for rulings, reasonably determining the scope of the adjudication committee's deliberations in accordance with law. The adjudication committee discusses only the law-application questions in important, complicated cases that concern national diplomacy, security and social stability, and cases that are important, difficult, or complicated. Enhance the adjudication committee’s function of summarizing adjudicative experience and of general guidance by discussing and deciding important issues in adjudicative work.
10. Where the collegial panel finds that it is necessary to make a submission to the adjudication committee for deliberation and decisions, it shall put forward and clearly list the issues of legal application that it needs the adjudication committee to deliberate and decide and summarize the different opinions and reasoning.
The conditions and procedure for a panel to submit a case to a adjudication committee shall comply with the "Organic Law of the People's Courts", the procedural laws, the "Provisions of the Supreme People's Court Concerning the Work of the Collegiate Panel of the People's Courts", and "Several Provisions of the Supreme People's Court Concerning Further Strengthening the Functions of Collegial Panels".
11. Where a case needs to be submitted to the adjudication committee for deliberation and decision, the adjudication committee shall first review the deliberation materials provided by the collegial panel, understand the different opinions and reasoning the collegial panel has on the issue of application of law, and view the audio-visual recordings from court or review the case file as needed.
During discussion, members of the adjudication committee shall fully express their opinions, and voting shall be conducted according to the ranking of judges; the lowest ranked judge shall vote first, and higher ranked judge will vote later; the host [of the committee] shall vote last. The discussions of the adjudication committee shall be recorded via audio or video, and a transcript of discussion shall be produced. The collegial panel shall implement the adjudication committee's decision. All members of the adjudication committee who have participated in the discussion and voting [on how a legal or factual issue should be resolved] shall sign the transcript.
Establish a system for evaluation of adjudication committee members performance and they internal announcent. Establish systems for oversight, response and announcement of the adjudications' resolution of matters.
12. Establish a case quality assessment system and appraisal mechanisms that comply with judicial rules. Organizations for adjudicative management and adjudicative supervision shall regularly analyze the trend of the quality of adjudication, and make professional evaluations thereof through measures like regular spot checks, focused evaluation, and special evaluations, and so forth.
13. All levels of people's court shall establish a judicial evaluation committee, establish systems for judges' performance evaluations and performance records. The archive of judge performance evaluations shall contain as their main content a judge’s daily performance, number of cases handled, quality of adjudication, judicial skills, honesty, and external reputation. Judges' performance evaluations shall be an important factor in judges’ appointment, appraisal and promotion.
14. People’s courts of each level [of the judicial hierarchy] shall: utilize information technologies; structure a judicial mechanism that is open, dynamic, apparent, and citizen-friendly; establish and improve three platforms of publication of adjudicative procedure, publication of adjudicative documents, and publication of enforcement information; and widely accept supervision by society. [People’s courts shall] explore and establish an evaluation mechanism outside of the court, and enhance legal supervision, social supervision, and public opinion supervision of how the court applies its adjudicative power.
15. When a single judge independently hears a case, he shall perform the following trial duties：
(1) Preside over or guide judicial assistants to do pretrial preparation work such as the pretrial conference, pretrial mediation, and evidence exchanges, as well as other auxiliary trial work;
(2) Preside over court sessions and mediation, lawfully make rulings, and draft judgment opinions or guide judicial assistants to make a draft of judgment opinions, and directly sign and issue judgment opinions;
(3) Lawfully decide on procedural matters in the course of hearing cases;
(4) Lawfully exercise other adjudication powers.
16. When a collegial panel hears a case, the undertaking judges shall perform the following trial duties：
(1) Preside over or guide judicial assistants to do pretrial preparation work such as the pretrial conference, pretrial mediation, and evidence exchanges, as well as other auxiliary trial work;
(2) Submitting for the panel’s deliberation the parties’ objection to jurisdiction, and application for preservation measures, identification, and exclusion of illegal evidence, etc.;
(3) Comprehensively examining evidence submitted by the parties and issuing opinion of examination;
(4) Formulating an outline for trial, and transcribing after reviewing the case file;
(5) If presiding over the panel, the judge shall host and direct the trial; if not presiding over the panel, the judge shall assist the presiding judge to conduct the trial;
(6) Participate in case deliberation, and submit disposition opinions in advance;
(7) Producing adjudicative documents according to the panel’s deliberation, or instructing the judge’s assistant to draft adjudicative documents;
(8) Exercising other adjudicative powers according to the law.
17. When a panel is handling a case, other judges on the panel shall carefully perform their duty of adjudication, jointly participate in adjudicative activities, e.g. case file review, trial, and deliberation, independently express their opinions, and re-examine and sign the adjudicative documents.
18. When a collegial panel hears a case, the chief judge shall perform the following trial duties in addition to the duties jointly undertaken by the collegial panel members:
(1) Determining a plan for handling the case, and the outline of the trial; coordinating the distribution of work among members of the panel; and facilitating other necessary preparations for the trial;
(2) Preside over and direct hearing activities;
(3) Preside over the collegial panel deliberation;
(4) When opinions of the panel diverge significantly, submitting the case to a Professional Judge Conference according to relevant rules and procedure; or [the judge shall] suggest submitting the case to the adjudication committee according to procedure;
(5) Exercise other adjudication powers in accordance with law.
If the chief judge is also the presiding judge of a particular case, he or she shall also perform the duties of a handling judge.
19. Judicial Assistants perform the following duties under judges' direction：
(1) Review litigation materials, assist judges in organizing pretrial evidence exchanges;
(2) Assist judges in organizing pretrial mediation; and drawing up mediation documents;
(3) Take care of measures to secure assets or evidence as requested by the judge or assisting the judge;
(4) Commission evaluations, assessment and other such work, as assigned by judges;
(5) As requested by judges, prepare reference materials related to hearing a case, research legal issues relevant to the case;
(6) Draft judgment opinions under the direction of the judges;
(7) Complete other trial support work given by judges.
20. Clerks under the direction of the judge, follow relevant provisions to perform the following duties:
(1) Responsible for pretrial clerical preparation work;
(2) Inspect the situation of litigation participants appearance in court at the opening of court sessions and announce court rules;
(3) Responsible for record keeping during hearing of a case;
(4) Sorting, binding, and filing the case file materials;
(5) Completing other clerical work given by the judges.
21. A court president, in addition to the relevant trial duties that he engages in according to law, should also engage in overall guidance of all types of trial work, organize research into major issues and develop a related management system, have overall responsibility for the management of trials, preside over judicial committee meetings to discuss major issues in trial work, according to law preside over the evaluation of judges by evaluation committees, and carry out other necessary trial management and monitoring responsibilities.
The vice president and full-time members of the adjudication committees, when assigned by of the president, may perform some duties of adjudicative management and supervision specified in the previous clause.
22. A divisional chief, in addition to the adjudicative duties provided by the law, shall also generally direct the adjudicative affairs of his/her own division; research and define the distribution of duties among the collegial paneles, among adjudicative teams, and among members within them; take charge of any modifications in how cases of special circumstances are distributed after a random distribution [has occurred]; regularly supervise the quality of adjudication within the division; and perform other necessary duties of adjudicative management and supervision.
23. The adjudicative management and supervision by presidents, vice presidents, and divisional chiefs shall be conducted strictly within their duties and powers, and shall be conducted publicly on the working platform. Other than participating in the meeting of the adjudication committee and of Professional Judge Conferences, presidents, vice presidents, and divisional chiefs shall not express partial opinions on any case of which they have not participated in its adjudication.
24. For a case that fulfills any of the following conditions, a president, vice president, or divisional chief is entitled to demand that the sole-judge or collegial panel report the progress of the case and the result of relevant deliberation:
(1) The case involves mass disputes that may influence social stability;
(2) The case is difficult, complicated, and has major social impact;
(3) The case might conflict with trial of cases of the court or the court above;
(4) Relevant units or individuals report that the had unlawful adjudicatory ocnduct.
Where a president, vice president, or divisional chief disagrees with the procedure or deliberation of any of the types of cases specified above, the president, vice president, or divisional chief shall not directly modify the opinion of the panel, but may instead decide to submit the case to a Professional Judge Conference or the adjudication committee for further discussion. Should a president, vice president, or divisional chief supervise or advise any of the types of cases specified above, the time, content, and result thereof shall be entirely recorded on the transcript and the working platform.
25. Judges shall be responsible for their performance in the furtherance of their adjudicative duties, and shall take lifelong responsibility for the quality of the cases/trials that they adjudicated.
In adjudication, a judge that intentionally violates the law, or causes serious consequences through gross negligence, shall, in compliance with the law, be liable for errors in rulings.
A judge that, in violation of professional ethics and disciplines, attends dinners or accepts presents given by a party concerned or by a related person, or makes improper deals with attorneys, or otherwise violates the disciplines or the law, shall be treated separately according to the law or relevant disciplines.
26. In any of the following circumstances, the trial responsibility of relevant personnel shall be pursued in accordance with discipline and law:
(1) Is corrupt, accepts bribes, practices favoritism, makes falsification, or adjudicates in violation of the law;
(2) Handles a case without permission and in violation of regulation, or makes a case a sham;
(3) Alters, conceals, forges, fraudulently substitutes, or purposefully destroys material evidence, or loses or destroys material evidence with gross negligence and causes serious consequences to follow;
(4) During reporting to the collegial panel or the adjudication committee, conceals material evidence or important facts and purposefully provides fake materials, or omits material evidence or important facts due to gross negligence, and wrongfully adjudicates a case causing serious consequences;
(5) During production of an adjudicative document, purposefully contravenes the deliberation of a panel or the decision of the adjudication committee, or with gross negligence, causes an error in the main text of the document and serious consequences follow;
(6) In violation of the law, rules on a commutation or parole of a criminal that does not satisfy the conditions of commutation or parole; or with gross negligence, rules on a commutation or parole of a criminal that does not satisfy the conditions of commutation or parole and thereby causes serious consequences to follow;
(7) Otherwise purposefully and wrongfully adjudicates in violation of legal procedure, rules of evidence, or clear provisions of the law, or otherwise with gross negligence, causes an erroneous adjudication and serious consequences to follow.
27. A person, responsible for management and supervision, that fails to exercise or improperly exercises powers of adjudicative management or supervision, and causes an erroneous adjudication and serious consequences to follow, shall take liability of supervision and management in accordance with relevant rules. The investigation and punishment under the liability of supervision and management shall be carried out in accordance with relevant rules and procedures of official management.
28. If a case is retried and modified according to the trial supervision procedure because of any of the following reasons, the case shall not be deemed erroneous, and relevant persons shall not be investigated or punished:
(1) Disagreement in the understanding and interpretation of specific provisions of laws, regulations, rules, and judicial interpretations; and the disagreements can be reasonably explained in accordance with professional standards;
(2) Disagreement or questions in a judgment concerning basic facts, and the disagreements or question can be reasonably explained in accordance with rules of evidence;
(3) A party relinquishes, or partially relinquishes its rights or claims;
(4) The recognition of changes to facts because of a party’s fault or because of objective causes;
(5) The modification of adjudication results from the submission of new evidence;
(6) Where the law is revised or policies are adjusted;
(7) Legal documents that the adjudication relied on are revoked or modified;
(8) Other circumstances where the person lawfully performs his or her adjudicative duties and shall not be liable.
29. Where a case is handled by a sole-judge, the sole-judge shall be entirely responsible for resolving questions of fact and law relevant to the case.
30. Where a case is handled by a collegial panel, all members of the panel shall be collectively responsible for their decisions on questions of fact and law relevant to the case.
In any investigation for adjudicative liability, a panel member’s liability shall be reasonably determined by whether and how the member adjudicated in violation of the law, what opinions the member expressed, and the extent of fault.
31. Where a case is discussed by the adjudication committee, the collegial panel shall be responsible for the facts that it reports, and members of the Committee shall be responsible for his or her opinion and vote [on how to resolve the relevant issue].
Where a case is discussed by the adjudication committee and fulfills the conditions of investigation and punishment, a Committee member’s liability shall be reasonably determined by whether the member purposefully distorted the law in his or her opinion. Where the committee modifies the panel’s opinion and results in a wrongful adjudication, the majority of committee members shall be liable collectively, and the panel shall not be liable. Where the committee affirms the panel’s opinion and this nonetheless results in a wrongful adjudication, the panel and the voting majority of the committee members shall be jointly liable.
Where in reporting a case, the panel purposefully conceals major evidence or important facts, or purposefully provides fake facts, and this results in the Committee’s wrongful decision, the members of the panel shall be liable, and the members of the Committee shall be partially liable, or not liable, depending on the specific situation.
Where the adjudication committee violates the principle of democratic centralism and this results in a wrongful decision, the moderator shall bear the principal liability.
32. Persons assisting with the adjudicative process, depending on their duties, powers, and division of work, take the responsibility corresponding with their duties. Where a judge is responsible for examination and scrutiny, the judge shall also be correspondingly responsible.
33. Where a judge wrongfully adjudicates because of the interference of leaders or other officials, and the judge fails to record or fails to truthfully record the interference, or the judge should have eliminated the interference but failed to do so, the judge shall be liable for wrongful adjudication.
34. Where investigation and punishment of wrongful adjudication is necessary, generally the president, adjudicative supervision department, or adjudicative management division shall propose an initial opinion, and the president shall either assign the adjudicative supervision department to examine, or submit the opinion to the adjudication committee for discussion. If, after examination, relevant persons are initially found to satisfy the conditions of wrongful adjudication investigation and punishment specified in this Opinion, the supervision department of the people’s court shall initiate the necessary procedures for the investigation and punishment of wrongful adjudication.
People’s courts of each level shall, in compliance with the law, conscientiously accept the supervision of the People’s Congress, the Political Consultative Conference, media, and the society, and accept reports and complaints about wrongful adjudications of judges, and carefully conduct investigation and verification thereof.
35. Supervision divisions of People’s Courts shall investigate whether judges have wrongfully adjudicated, and take protective measures that are necessary and reasonable. In investigation, the relevant judge(s) shall have the right to be informed, to defend, and to submit evidence, and the supervision department shall truthfully record the judge’s opinion, defense and evidence, and explain whether they are accepted in the investigation report.
36. If the supervision department, after investigation, finds that a judge should be punished for wrongful adjudication, the supervision department shall report to the president for decision, and simultaneously report to the Provincial (Regional, or Municipal) Judge Disciplinary Committee for review.
Supervision departments of High People’s Courts shall send their representative to report the facts of the relevant judge’s wrongful adjudication, the opinion on the handling, and the reasons thereof. The representative shall also provide evidence on subjective fault of the wrongful adjudication. The accused judge is entitled to submit statements, submit evidence, defend, apply for reconsideration, and appeal.
The Judge Disciplinary Committee shall, on the basis of facts found and provisions of the law, make a suggestion of “not liable”, “relieved of liability”, or “liable for discipline”.
Rules and punishment procedures for the judicial disciplinary committee will be formulated separately.
37. Liable persons that should be punished for wrongful adjudication shall be handled on the basis of his or her liability and in compliance with the relevant provisions of the Judges Law of the People's Republic of China:
(1) The persons that should be punished with suspension, delay of promotion, expulsion from the percentage of judges, removal, ordered resignation, or expulsion, shall be handled by the organization and personnel departments, in accordance with the power and procedure of official management, and in compliance with the law.
(2) The persons that should be given disciplinary punishment shall be handled by the disciplinary inspection and Supervision Organs, in accordance with relevant rules and procedure, and in compliance with the law.
(3) If the persons are suspected of a crime, the disciplinary inspection and Supervision Organs shall transfer leads on the a violation to the relevant judicial authorities so that they can handle the situation in compliance with the law.
The decision to remove a judge must, in compliance with legal procedure, be decided by the People’s Congress, or the Standing Committee of the People’s Congress.
38. During any stage relevant to the handling of a case, a judge’s exercise of his/her duty shall neither pause nor terminate unless there is clear evidence that the judge is corrupt, accepting bribes, practicing favoritism, making falsification, adjudicating in violation of the law, or adjudicating in other seriously wrongful manners.
39. Judges adjudicating in accordance with law are not to be interfered with by administrative organs, social organizations and individuals. Any organization or individual’s illegal interference in judicial activities, taking interest in, or taking part in the handling of any specific case, shall be recorded, announced, and investigated according to the relevant rules.
Leading cadres that interferes with judicial activities or takes part in specific cases, and internal judicial personal that pry into cases, shall be handled respectively in compliance with Provisions on Recording, Notification and Accountability of Intervening into Judicial Activities and in Handling of Specific Cases by Officials and Provisions on the Recording and Accountability of Internal Personnel of of Judicial Organs for Their Intervention in Case Handling and relevant implementations.
40. If a judge lawfully performs his/her duty but is faced with untrue accusations or false charges and consequently suffers a decrease in [or damage to his/her] reputation, or is dismissed by organizations like the Judge Disciplinary Committee from legal or disciplinary liabilities, the supervision department and the press publicity department shall, in a proper manner and within a proper scope, timely clarify the facts and eliminate adverse effects, to protect the judge’s reputation.
41. If a people’s court or relevant organization makes a wrong decision on a judge [in regards to liability for wrongful adjudication], the court or the organization shall apologize to the judge, [the judge shall be permitted to] resume his or her position and reputation, adverse effects shall be eliminated, and compensation shall be paid in compliance with the law.
42. If a judge’s promotion is delayed because of an investigation and the judge is later found by the relevant authority to be “not liable” of wrongful adjudication, or the Judge Disciplinary Committee makes a suggestion of “not liable” or “relieved of liability”, the judge’s time of waiting for promotion shall be calculated retroactively from the date of delay [as if liability had not been assigned in the first instance].
43. In compliance with the law, timely punish serious contempt of court and obstruction of litigation e.g. destroying evidence, transcripts, legal documents, or court facility during trial. In compliance with the law, protect the person and property of judges and their close relatives, and timely punish violations of the law and crimes directed, in court or out of court, against judges and their close relatives, e.g. intimidation, menacing [activities], insulting, stalking, harassment, and assault.
Any person that infringes on a judge’s personal dignity, or discloses any private information about a judge or the relatives [of the judge] that should not be disclosed according to the law, and consequently obstructs the judge’s performance of his or her duty, shall be punished in compliance with the law.
44. Enhance the severity of punishment against violations of the law and crimes, including but not limited to obstructing judges’ lawful exercise of adjudicative power, directing false charges against judges, contempt of court, and serious disturbance of the adjudication process.
45. "Judges" as referred to in these Opinions refers to judges that have entered into the judicial ranks after selection by the judicial selection committee.
46. These opinions on the determination and pursuit of trial responsibility apply to judges, deputy section heads, section heads, full-time members of the adjudication committee, vice-presidents and presidents of people's courts. They are applied by reference in the determination and pursuit of the responsibility of auxiliary trial personnel such as enforcement personnel, judicial assistants, clerks and judicial police.
The trial responsibility of technical investigators and other auxiliary trial personnel is provided for separately.
The trial responsibility for courts in people's assessor system reform pilot areas hearing cases with people's assessors is provided for separately in the "People's Assessors Reform Pilot Plan".
47. The Supreme People's Court is responsible for interpreting these provisions
48. These Opinions apply to courts designated as judicial reform system pilots by the center and courts designated by the Supreme People's Court as pilots for reforms to the operating mechanisms for the adjudication power.