Summary Update of Shanghai Judicial Reform Efforts

While not a translation, this post is largely a summary of the following:

• Caixin, Shanhai Judicial Reform Sample,  上海司改样本

• 上海二中试点  Shanghai No.2 Intermediate Court Pilot

In October 2013 it was announced that Shanghai would be one of the six sites for judicial reform pilot projects, and the first phase of the five year transition for the pilot would include:

1. The Shanghai No. 2 Intermediate Court
2. The Shanghai Procuratorate Second Branch
3. The Xuhui district court and procuratorate
4. The Minhang district court and procuratorate
5. The Baoshan district court and procuratorate

Remember that the procuratorate is an at-least coequal piece of the judiciary in China with supervisory authority over the courts and police. This means that it is included in judicial reform plans, while the related “Fourth Five Year Plan for Court Reform Outline” is issued by the Supreme People’s Court and concerns only the court system.

In the Shanghai judicial reform pilot, there are separeat plans for the procuratorate and courts known as the 《上海检察改革试点工作实施方案》和《上海市高级人民法院司法体制改革试点工作实施方案》. As with the Fourth Five Year Plan, none of these documents has been released to the public.

For an overview of the Shanghai plans that may be useful in understanding the update below, click here:

The Shanghai No.2 Intermediate court has recently released a report on its early progress in implementing reforms, and Caixin has also released further information on the progress of the procuratorate.

First, looking to the Shanghai report where the Intermediate Court reports that in the pilot period thus far they have handled 9,604 cases, an increase of 7.67% from the previous year. And that court presidents or leaders had only participated in about 16.23% of these.

Independent Case Handling

Like “judiciary”, “judicial independence” is a bit of a ‘false friend’ in that legal professionals in other areas might immediately think they have an understanding of what is meant, but there are actually several questions:

1. Who is independent? (the judiciary, the courts as a whole, the collegial panel, individual judges?)
2. What are they independent from? (Other government or Party actors, improper extra-judicial influences, their superiors?)

Key Document: 合议庭运行工作规定（试行）

Collegial Panel Operations Working Provisions (Provisional)

Collegial panels of three adjudicators (judges or people’s assessors) are the basic trial unit and hear the majority of cases in the Intermediate Court. In the past, the responsibility of the three members has presented a problem, with some saying the panel, ‘formed but never met’ or that some ‘participated but didn’t judge’.

The new Provisions:

1. Establish mechanisms for collective responsibility of all panel members
2. Clarified that the presiding judge will moderate the proceeding by: controlling flow of trial, organizing the panel, avoiding procedural blemishes (something less than error) etc.

Commentary: One Judge admitted that previously in case handling, written judgments were very passive and reliant, with judges hoping that division chiefs or court presidents would tidy them up based on their abundant experience.

Establishing Strong ‘Thinktanks ‘

Key Document: 主审法官联席会议及专业法官会议工作规定(试行)

Work Provisions for Joint Judges Conferences and Specialized Judge Conferences (Provisional)

To maximize benefit from the knowledge and experience of judges in the court, the Intermediate Court established special committes which allow judges to share information and pose questions to each other. The idea is that even though judges are making more independent judgments, they needn’t be fighting the battle alone.

To ensure that this doesn’t just become an indirect way of allowing judges to report to superiors for approval , the relevant Provisions require that judges not involved in the case be present at the meeting and call for a minimum number of judges to be present. Further, the comments or opinos must be recorded to make a full record.

In the pilot so far, only 2.03% of cases completed trial after going through the conferences- this is much lower than the number of cases previously reported up to division heads or court presidents.

Ennumerated Powers

In another attempt to minimize improper oversight of cases by division heads and court presidents, two lists were drawn up regarding their proper role:

• A rights list ennumerates proper rights and roles, including management and evaluation of trial quality, and working toward unified application of law. And procedural review to ensure uniformity.
• A negative list puts limits on the scope and form of management powers, such as not being able to direct a verdict.

Court presidents and division heads can also directly serve as presiding judges where they hear and judge the case.

Putting the full adjudication process under the sunlight

Key Documents: 《案件质量评查工作规定（试行）》、《关于案件差错和违法审判责任追究的若干规定（试行）》、《涉廉事项报告规定（试行）》、《案件廉政回访制度规定》

‘Case Quality Evaluation Provisions’,  ‘Provisions on Checking for Error and Unlawfulness and Pursuit of liability’, and a ‘ Provisions for Reporting Improprieties’ and ‘Provisions on Case Follow Up Systems for Clean Governance’

These methods are meant to ensure accountability for improper judicial conduct and also to give the public recourse if their case is mishandled. Judicial accountability and judicial independence are often raised together in the the judicial reforms, requiring a careful balance.

Shanghai has been ahead of the curve in transparency, and some of these measures are not entirely new, such as that for follow up work, which was introduced in 2011.

Caixin 财信 has added a few additional details, emphazing some of the challenges ahead and also more on the work of the procuratorate.

The Shanghai Procuratorate Second Division has implemented a procuratorate selection system primarily promoting up procurators form the lower district procuratorates. Also possible to select from lawyers and scholars etc. but these would generally be to serve in higher positions to make use of their expertise.

The Xuhui district procuratorate has emphasized its oversight duties, with ‘realtime oversight’, ‘active oversight following the case’, ‘specialized oversight’ and ‘public oversight’ systems in the works.

The Minhang district procuratorate has made arrangements for evening out and specializing case handling, following models of streamling and simplicity.

In Baoshan the procuratorate has specialized case handling personnel into departments for criminal, crimes abusing public office, litigation supervision, case quality supervision; and added rules for the full liability of the principle handling personnel.

Individual district courts have not yet made clear what they are up to and one knowledgable person told Caixin that they were still under exploration and that nothing would happen this year—not even clear standards had emerged.

SALARY

Loss of judges has been a serious problem in Shanghai, inpart due to low salaries, heavy workloads and high pressure. In 2013 the president of the Shanghai High Court said they lost 74 judges, up from an average of 63 per year over the preceedign 5 years. Notably, the judges leaving are often middle-aged experienced judges, central to the courts’ work.

Currently the four rankings of judge, basic, inter, high leve and Supreme People’s Court justices aren’t directly connected to the judges’ salary, but this seems to be changing under the reform plans, along with adjustments in the age at which retirement bennefits kick in for women and some other case-handling judges.

Procuratorates have not yet made announcements regarding their salary adjustments, but have said that they will also create a system that reflects the unique nature of procurators’ work, and does not treat them merely as administrative officials.

Two views:

1. Obviously, some are very happy to hear about the positive salary adjustments for case hearing judges, saying it will give them a sense of professional identity and respect again.
2. Some administrative staff object to perceived special treatment of Judges/Procurators, saying that all members of the court, administrative, assistant or judicial work very hard, and all deserve to be treated with dignity and respect, not marginalized.

The salary question is part of a larger issue in resturcturing court and procurate management, where personnel are to be divided into distinct categories of judges (procurators), judicial assistants (procurator assistants) and administrative staff for which strict quotas will be enforced (33%、52%、15%). It is unclear whether this means a re-designation of some employees generally referred to as judges, or a goal to be accomplished through attrition, but previously many people working in courts were referred to as judge, at least conversationally, despite not being adjudicators.

This seems to emphasize case handling and minimize administrative expense, but may also create a conflict of interest among these different groups; as well as between different courts and different ranking of judges and procurators; who must, in performing their professional duties rely on each other constantly.