P.R.C Judges Law (Draft Revisions) (second-reading draft)

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Source:http://www.npc.gov.cn/npc/flcazqyj/2019-01/04/content_2070148.htm
征求意见时间:  2019-01-04 至 2019-02-03

Contents

Chapter I: General Provisions

Chapter II: Judges' duties, obligations and rights

Chapter III: Requirements and Selection of Judges

Chapter IV: Appointment and Removal of Judges

Chapter V: Management of Judges

Chapter VI: Evaluation, Reward and Punishment of Judges

Chapter VII: Professional assurances

Chapter VIII: Supplementary Provisions

 

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 independently exercise the adjudication power; to ensure judges' performance of their duties in accordance with law; to ensure judicial fairness; and to preserve the lawful rights and interests of judges.

Article 2: Judges are trial personnel who exercise state adjudication powers in accordance with law; including the court presidents, vice presidents, members of the adjudication committee, division heads, deputy division heads, and adjudicators of the Supreme People's Court, all levels of local people's court, and military and other specialized people's courts.

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

Article 4: Judges shall treat parties and other litigation participants justly. The law is applied equally to any all individuals and organizations.

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

Article 6: Judges trying cases shall have the facts as their basis, with the law as their measure.

Article 7: Judges performing their duties in accordance with law are protected by law and are not to be interfered with by administrative organs, social organizations and individuals.

Chapter II: Judges' duties, obligations and rights

Article 8: Judges' duties:

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

(2) Other duties provided by law.

Article 9: The people's 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 10: Judges shall fulfill the following obligations:

(1) Strictly follow the Constitution and Laws.

(2) Handle cases impartially and never twisting the law for personal gain;

(3) Lawfully ensuring the procedural rights of litigation participants;

(4) Preserve the national interests and societal public interests, and preserve the lawful rights and interests of individuals and organizations;

(5) Protecting State secrets and trial work secrets;

(6) Accepting legal oversight and public oversight in accordance with law;

(7) Through lawfully handling cases and using 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;

(8) Other obligations provided for by law.

Article 11: Judges enjoy the following rights:

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

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

(3) that judges performing their duties shall enjoy job security and welfare benefits;

(4) to have legal protection of the safety of their person, property, and domicile;

(5) To raise complaint petitions or make accusations;

(6) Other rights provided for by law.

 

Chapter III: Requirements and Selection of Judges

 

Article 12: Judges must meet the following conditions:

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

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

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

(4) Have the physical capacity to perform their duties normally;

(5) Have an undergraduate degree in law from an 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 or above from a full-time ordinary college, have received the corresponding degree, and have specialized legal professional knowledge;

(6) have engaged in legal work for five years. Of these, the number of years engaging in legal work may be expanded to four or three years respectively for those that have obtained a masters in law or jurisprudence, or obtained a JSD.

In areas where there are real difficulties meeting the academic requirements specified in item 5 of the preceding 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 13: The following people must not serve as judges:

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

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

(3) Those whose certificates for practice as a lawyer or notary public have been revoked;

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

Article 14: 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 people's courts' presidents shall possess legal knowledge and legal practice experience. Vice-presidents and adjudication committee members shall be taken from among the judges, procurators, or other persons the requirements for being judges or procurators.

Article 15: As necessary for trial work, 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 rich experience and a good reputation; legal experts participating in the open selection should have a mid-level title or higher, and have been engaged in legal teaching or research for at least 5 years, with outstanding capacity for research and outstanding research accomplishments.

Article 16: 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 Committees shall include judge representatives of each level of local people's courts and representatives engaged in legal professions and other relevant areas, of whom not less than one-third shall be judge representatives.

The routine work of the provincial Judicial Selection Committees is to be undertaken by offices established within the high people's courts.

A Supreme People's Court Judicial Selection Committee shall be established for the selection of Supreme People's Court judges, responsible for reviewing the professional ability of the judicial candidates.

Article 17: New judges generally serve in the basic level courts. Judges of people's courts at the intermediate level or above are generally elected through a level-by-level selection method. 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 Removal of Judges

 

Article 18: 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, division heads, deputy division heads, and other adjudicators are appointed or removed by request of the court president to the Standing Committee of the National People’s Congress.

The appointment and removal of division heads and deputy division heads of Supreme People's Court circuit court divisions is by request of the 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, division heads, deputy division heads, and adjudicators, are appointed or removed by request of the court president to the Standing Committee of that level of 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, division heads, deputy division heads, and adjudicators, are appointed or removed by request of the court president to the Standing Committee of that level of People’s Congress. The presidents of intermediate courts established in provinces, autonomous regions, and directly governed municipalities, are selected and removed by the Standing Committee of the provincial, autonomous region, or directly governed municipality people's congress; the vice-presidents, adjudication committee members, and adjudicators are removed upon request of the President of the High People's Court to the Standing Committee of the provincial, autonomous region, or directly governed municipality.

Article 19: After judges are selected in accordance with legally-prescribed procedures, they shall take a constitutional oath when taking office.

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 case handling performance reviews do not meet standards for two consecutive years and they are unable to successfully serve 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 should be discharged in accordance with law;

(8) Where they are unsuited to hold office due to violations of discipline or law.

Article 21: Where it is discovered that a judge is appointed in violation of the provisions of this Law, the organ that made the appointment shall revoke the appointment; 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 appointing organ at the same level revoke the appointment in accordance with law.

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, supervision commission,or procuratorate; and must not serve in a position at an enterprise or public institution, or at another for-profit organization, and must not concurrently serve as lawyer, arbitrator or notary public.

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: 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.

Chapter V: Management of Judges

Article 25: A personnel ratio system is implemented for managing judges. The personnel ratio of judges is determined on the basis of factors such as the case volume, the economic and social development situation, the population size, and the level of people's court, with total numbers controlled and dynamically managed within provinces, autonomous regions, and directly governed municipalities, with priority consideration given to the case handling needs of basic level people's courts and local people's courts with a large number of cases. Where there are vacancies in the judicial personnel ratios, procedures are to be promptly followed to supplement.

The personnel ratio of judges for the Supreme People's Court is determined by consultation of the Supreme People's Court and relevant departments.

Article 26: 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 27: The President of the Supreme People's Court is the Chief Justice.

Article 28: 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 frontline case handling judges who are exceptional or that are especially needed for work may be specially selected for promotion.

Article 29: The set up and confirmation of judges' ranks, and specific measures for their promotion, are to be provided for elsewhere by the state.

Article 30: A uniform system of pre-career training is to be carried out for new judges.

Article 31: 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 32: Judges' training is to be one of the bases for their serving as a judge and promotion.

Article 33: Training institutions for judges are to follow the relevant provisions in undertaking the task of training judges.

Article 34: Judge's applications to resign shall be submitted in writing by themselves, and after approval, they are to be removed from their post in accordance with the legally-prescribed procedures.

Article 35: Dismissed judges shall be removed them from their post in accordance with the legally-prescribed procedures.

Dismissal of judges shall be by decision in accordance with the scope of management authority. Dismissal decisions shall give written notice to the judge being dismissed and lay out the reason and basis for the decision.

Article 36: 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 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.

 

Chapter VI: Evaluation, Reward and Punishment of Judges

 

Article 37: People's courts are to set up a Judicial Evaluation and Review Committee responsible for the evaluation of that court's judges.

Article 38: Judicial Evaluation and Review committees are to have 5-9 members. The Judicial Evaluation and Review Committee is headed by the Court President.

Article 39:The evaluation of judges shall be comprehensive, objective and just, and is to be combined with ordinary evaluations and annual evaluations.

Article 40: 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 41: 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 42: Judges are to be personally notified in writing of evaluation results. Judges with objections to the evaluation results may apply for a review.

Article 43: 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.

Article 44: 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) making notable achievements and contributions in handling major cases, handling emergencies, and undertaking important special work items;

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

(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. Rewards for judges are to be handled in accordance with relevant provisions.

Article 45: 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) Embezzling or taking bribes, acting for personal gain, or abusing the law in a capricious and arbitrary manner;

(2) Concealing, fabricating, altering, or intentionally destroying evidence;

(3) Leaking state secrets or trial work secrets;

(4) Intentionally violating laws or regulations;

(5) 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) taking part-time positions in enterprises or other for-profit organizations or engaging in for-profit business activities in violation of relevant provisions;

(9) Accepting improper benefits from parties or their agents, or meeting with parties or their agents in violation of relevant provisions;

(10) other actions in violation of discipline or law. Sanctions for judges are to be handled in accordance with relevant provisions.

Article 46:Where judges violate discipline and law making it inappropriate for them to continue performing their duties in a case that is already opened and investigation has begun, the performance of their duties may be suspended in accordance with the scope of authority and procedures provided.

Article 47:The Supreme People's Court and provinces, autonomous regions, and directly governed municipalities, are to establish judicial disciplinary committees responsible for reviewing and determining from a professional perspective whether judges have conduct in violation of items 4, 5, or 6 of article 45 of this Law that violates trial duties, and submit an opinion that an intentional violation of duties is constituted, that there was gross negligence, that there is ordinary negligence, or that there is no violation; and the people's courts are to make a decision on sanctions in accordance with relevant provisions, and make a relevant disposition.

Members of the Judicial disciplinary committees shall be composed of judge representatives and other representatives enganged in legal professions and relevant areas, of whom not less than half shall be judge representatives. The routine work of the Supreme People's Court's Judicial Disciplinary Committee and provincial level judicial disciplinary committees is to be done by a functional department set up internally.

Article 48: When the judicial disciplinary committee hears matters on sanctioning, the judge party has the right to apply for the recusal of relevant personnel, and the right to make statements, present evidence, and offer defenses.

Article 49: The review opinions issued by the judicial disciplinary committee shall be sent to the judge party, and where the judge party has objections to the review opinion, they may submit them to the disciplinary committee, and the disciplinary committee shall conduct a review of the objection and its reasoning and make a decision.

Article 50: The specific procedures for the judicial disciplinary committee hearing matters on sanctions are to be formulated by the Supreme People's Court in consultation with the relevant departments.

 

Chapter VII: Professional assurances

 

Article 51: People's court are to establish a committee for the protection of judges' rights and interest, ensuring judge's lawful performance of duties.

Article 52: 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 professional exchanges in accordance with provisions;

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

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

(5) Other situations provided by law.

Article 53: Units and individuals must not request that judges engage in tasks beyond the scope of their duties. Administrative organs, social groups, and individuals must not interfere in judges' lawful handling of cases. Judges have the right to refuse any conduct that interferes with handling cases, and to fully and truthfully record it; where there are violations of discipline or law, the relevant organs are to pursue the relevant responsible persons or perpetrators based on the severity of the circumstances.

Article 54: The professional dignity and physical safety of judges receive the protection of law.

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, violent encroachment, threats and intimidation, or provocation or harassment against judicial personnel and their close relatives shall be severely punished in accordance with law.

Article 55: 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 56: Unlawful and criminal acts of retaliation by making false charges, insults and defamation, violent encroachment, threats and intimidation, or provocation or harassment against judicial personnel and their close relatives shall be severely punished in accordance with law.

Article 57: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 an adjustment mechanism for salary increases in step with those for civil servants is to be established.

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

Article 58: A system of regular periodic salary increases is implemented for judges.

Those designated as excellent or competent through the annual performance evaluations may have their salary levels raised

Article 59: Judges enjoy allowances, subsidies, bonuses, insurance and welfare benefits as prescribed by the state.

Article 60:Where judges are disabled in the course of work, 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 61:The retirement system for judges is to be based on the characteristics of trial work and provided for separately by the state.

Article 62: After judges retire, they enjoy pension and other benefits as provided for by the state.

Article 63: 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.

Article 64: Where there are errors in judicial sanctions or personnel dispositions, they shall be promptly corrected; where it causes reputational harm, the reputation shall be restored, the impact eliminated, and formal apologies made; where economic harm is caused, compensation shall be made. The personnel directly responsible for retaliation shall be pursued for responsibility in accordance with law.

 

Chapter VIII: Supplemental Provisions

 

Article 65: 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 66: People's courts' judges' assistants are responsible for trial support matters such as the inspection of case materials and drafting of legal documents, under the guidance of judges.

People's courts shall strengthen the establishment of the corps of judges' assistants, and select talent for judges.

Article 67: Judges a civil servants that implement a separate management job sequence. Where this Law has provisions on the system of judges rights, obligations, and management, apply the provisions of this law; and where this Law is silent, apply the relevant laws and regulations on the management of civil servants.

Article 68: This Law is to take effect on XX/XX/XXXX

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