- Judicial system of the People's Republic of China
People's Republic of China
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The judicial system (or judicial branch) of the People's Republic of China has both broad and narrow meanings. Broadly speaking, the judiciary means law enforcement activities conducted by the country's judicial organs and organizations in handling prosecuted or non-prosecuted cases. Narrowly speaking, it applies to law enforcement activities conducted by the country's judicial organs in handling prosecution cases. This article uses the term in the broader sense.
Judicial organs here mean public security organs (including state security organs) responsible for investigation, prosecution, trial and execution of cases, the prosecutors, the trial institutions and the custodial system. Judicial organizations here refer to lawyers, public notaries, and arbitration organizations. The latter, though not part of the judicial apparatus, are an integral part and a link in the overall judiciary system.
The judiciary system in general refers to the nature, mission, organizational setup, principles and procedures of judicial organs and other judicial organizations. This system comprises sub-systems for investigation, prosecution, trial procedures, jails, judicial administration, arbitration, lawyers, public notaries and state compensation.
China has a four-level court system. At the top is the Supreme People's Court in Beijing. Lower courts are the higher people's courts in provinces, autonomous regions, and special municipalities; intermediate people's courts at the prefecture level and also in parts of provinces, autonomous regions, and special municipalities; and basic people's courts in counties, towns, and municipal districts. Special courts handle matters affecting the military, railroad transportation, water transportation, and forestry.
Constitutionally, the court system exercises judicial power independently and technically is free of interference from administrative organs, public organizations, and individuals. The Supreme People's Court supervises the administration of justice by local courts and special courts, while courts at higher levels oversee the administration of courts at lower levels. At each level, the courts are "responsible to the organs of state power which created them." Judges are limited to two consecutive terms running concurrently with the National People's Congress or local people's congresses.
The court system is paralleled by a hierarchy of prosecuting organs called people's procuratorates; at the apex stands the Supreme People's Procuratorate. The procurators serve as prosecutors, or district attorneys, and are limited to two consecutive terms running concurrently with the NPC or local people's congresses.
Background of justice in China
The legal apparatus that existed before the changes made during the Cultural Revolution has been resurrected. The State Council again has a Ministry of Justice, and procuratorial organs and a court system have been reestablished. The legal framework for this system has been provided through the adoption of various laws and legal codes. For the first time, the law provides that there should be no discrimination among defendants based on their class origin. China has also reestablished a system of lawyers.
The actual functioning of this legal apparatus, however, continues to be adversely affected by a shortage of qualified personnel and by deeply ingrained perspectives that do not accord the law priority over the desires of political leaders. Thus, for example, when the top CCP leadership ordered a severe crackdown on criminal activity in 1983, thousands were arrested and executed without fully meeting the requirements of the newly passed law on criminal procedures. That law was subsequently amended to conform more closely with the actual practices adopted during the crackdown.
China's legal system, instituted after the establishment of the PRC in 1949, is largely based on that of the former USSR. However, after 1957, Mao Zedong's government consistently circumvented the system in its campaign to purge the country of rightist elements and "counter-revolutionaries." The Ministry of Justice was closed down in 1959, not to reopen until 1979, and the excesses of the Cultural Revolution wrought havoc on legal institutions and procedures. Efforts to reestablish a credible legal system resumed in 1977 (when there were no lawyers in China), as party moderates came to power. These efforts were accelerated in the early 1980s as China sought to provide the legal protection required by foreign investors.
The highest judicial organ is the Supreme People's Court, which, with the Supreme People's Procuratorates, supervises the administration of justice in the basic people's courts and people's tribunals (courts of first instance), intermediate people's courts, and higher people's courts. The judiciary is independent but subject to the Communist Party's policy guidance. The legal profession was still in an incipient stage of development in the mid-1980s. Over 25 law departments at universities and four special schools for training legal officials were in operation in 1987, when China had 26,000 lawyers. By 1993, there were 70,000 lawyers with plans to increase this number to 150,000.
A major anticrime campaign during the autumn of 1983 resulted in public executions at the rate of at least 200 a month; capital punishment may be meted out for 65 offenses, including embezzlement and theft. Under the Chinese criminal codes, as revised in 1979, local committees may sentence "hoodlums" to terms in labor camps of up to four years, in proceedings that grant the suspect no apparent opportunity for defense or appeal. Government records for 1990 indicated that nearly 870,000 persons were assigned to such camps during the 1980s. Since 1990, sentences to labor camps may be judicially challenged under the Administrative Procedures Law. In practice the review of such a sentence is rarely sought.
Due process rights are afforded in the Constitution of the People's Republic of China, but they have limited practical import. The Criminal Procedural Law requires public trials, with an exception for cases involving state secrets, juveniles, or personal privacy. Cases are rapidly processed and conviction rates are about 99%. The 1976 Criminal Code contained 26 crimes punishable by death. A 1995 law raised this number to 65, including financial crimes such as passing fake negotiable notes and letters of credit, and illegal "pooling" of funds. Appeal is possible but with little chance of success. However in 1996, the National Peoples' Congress passed new legislation to reform criminal procedure and the legal profession. The new legislation recognized for the first time that lawyers represent their clients, not the state. Under the new system lawyers may establish private law firms. Defendants may also ask near relatives or guardians to provide additional defense.
Amendments to the criminal procedure became effective in January 1997. The amendments state that suspects may retain a lawyer after being first interrogated by an investigative organ. Attorneys may conduct limited investigation, call defense witnesses, and argue their client's cases in open court. According to the amendments defendants will enjoy a presumption of innocence.
Beginning in 1998, the government began a comprehensive "internal shake-up" of the judiciary, resulting in the punishment or dismissal of over 4,200 judicial branch employees. In January 1999, the former head of the Anti-corruption Bureau of the Supreme People's Procuratorate was dismissed for corruption.
China's entry into the World Trade Organization (WTO) in December 2001 has caused China to undertake a full-scale revision of its laws and regulations in order to adhere to WTO rules. In opening its market up to sectors involving finance, insurance, telecommunications, commerce, transportation, construction, tourism, and other services, China will require its judicial system to perform in accordance with international standards.
As of January 2003, China's lawyers were adhering to a new policy to wear dark suits in court, in an attempt to promote professionalism and as a step toward integration with international practices.
The trial system refers to the court system governing the establishment of courts, judges, and trials.
Organization and Responsibilities of the People's Courts
According to the current Constitution, and the Law on the Organization of People's Courts, people's courts represent the main trial organ of the state. Organizationally, this court system consists of local courts, special courts and the Supreme Court, with all the first two subject to the supervision of the latter. Local courts are established in accordance with the administrative divisions, while special courts are set up where necessary.
Court systems of the People's Republic of China
MacauCourt of Final Appeal
Courts of the First Instance = Primary Court + Administrative Court
Local courts are divided into three levels: Grassroots, Intermediate and Higher.
Under the Law on the Organization of People's Courts, grassroots-level courts consist of tribunals in counties/autonomous counties, cities without administrative districts, or administrative districts of cities. Their responsibilities are:
- To try criminal, civil and administrative cases as courts of first hearing, except where otherwise provided for by law. Cases deemed to be of a serious nature that should be handled by superior courts can be referred to those superior courts;
- To handle civil disputes and misdemeanors that do not need trials;
- To guide the work of the People's Arbitration Committees.
To facilitate lawsuits, grassroots courts may set up tribunals, which are not trial units, but have the responsibility to hear general civil and misdemeanors, guide the work of People's Arbitration Committees, publicize laws and regulations, and handle petitions. Their judgments and decisions represent the judgments and decisions of the grassroots People's Courts.
Intermediate courts are those set up in prefectures, cities directly under provinces (autonomous regions and municipalities directly under the central government) and districts in the four municipalities directly under the central government (hereinafter referred to as "municipalities"). Their responsibilities include:
- To try the following categories of cases:
a) First-hearing cases under their jurisdiction, as prescribed by law. According to the Law on Criminal Procedures, these cases include those involving national security; criminal cases that may involve life imprisonment or the death penalty; criminal cases committed by foreigners or cases involving Chinese citizens violating the lawful rights and interests of foreigners. According to the Law on Civil Procedures, civil cases heard by intermediate courts are major foreign-related cases; cases of major implications within their jurisdictions; and cases that intermediate courts are ordered to hear by the Supreme Court. In addition, according to the Law on Administrative Procedures, intermediate courts are authorized to hear the following cases: verification of patent rights; customs handling; suits against administrative actions taken by State Council departments or governments of the provinces (autonomous regions, municipalities); other important and complicated cases;
b) First-hearing cases transferred by grassroots courts;
c) Cases appealing or protesting the verdicts and decisions of grassroots courts.
For criminal, civil and administrative cases that intermediate courts deem to be of a serious nature, the intermediate court may request that the cases be transferred to superior courts.
- To supervise the performance of grassroots courts within their jurisdiction. They have the power to examine or order grassroots courts to re-examine verdicts or decisions issued by those courts that have already taken effect but that have been found to contain errors.
According to the law on court organization, Higher Courts are set up in provinces (autonomous regions and municipalities). Their responsibilities include:
- To try the following categories of cases:
a) Criminal, civil and administrative cases of major proportions and complications under their jurisdiction, as provided for by the law;
b) First-hearing cases transferred by lower courts;
c) Cases appealing or protesting the verdicts and decisions made by lower courts. Higher courts in areas where a maritime court is located are authorized to try cases appealing the verdicts and rulings made by the maritime court;
d) Protested cases submitted by prosecutors in accordance with trial-monitoring procedures.
- Review first-hearing cases involving the death penalty ruled by intermediate courts where the accused renounces the right to appeal. If the Higher Court raises no objection to the death penalty, it then files the case with the Supreme Court for verification; if it disagrees with the death penalty ruling, it can either re-examine the case or refer the case back to the Intermediate Court.
- Review cases submitted by intermediate courts involving a death penalty with two years' reprieve.
- Approve certain death-penalty cases as authorized by the Supreme Court.
- Supervise trials by lower courts. For verdicts or judgments passed by lower courts that have been found to contain errors, higher courts are authorized to hear or ask lower courts to reexamine the case.
Special courts are courts set up in special departments for special cases wherever necessary. Currently, China has special courts handling military, maritime, railway cases.
Military courts are set up at three levels: grassroots; Great Military Region, Services and Arms; and the PLA Court.
The PLA Court is the supreme military court whose responsibilities include:
- To try first-hearing cases involving crimes committed by individuals above the division commander level.
- To try foreign-related criminal cases.
- To try second-hearing cases, verification and review of cases involving death penalty.
Great Military Region and Services and Arms Courts are intermediate courts set up in great military regions, the navy, the air force, the Second Artillery Corp and the PLA General Headquarters. Their responsibilities include:
- Try first-hearing cases involving crimes committed by individuals at the deputy division commander and regiment level.
- Try cases that may involve death penalty and cases under their jurisdiction as authorized or designated by superior military courts.
- Try cases appealing or protesting rulings or verdicts passed by lower courts.
Grassroots military courts consist of tribunals set up in armies, provincial military regions, naval fleets, and air forces within Great Military Regions and in army units deployed in Beijing directly under the headquarters. Their responsibilities include:
- Try cases involving crimes committed by individuals under the battalion commander level and first-hearing cases that may involve a penalty up to life imprisonment.
- Try first-hearing cases under its jurisdiction as authorized or designated by superior military courts.
Maritime courts are special courts set up to try first-hearing maritime or sea-shipping cases for the purpose of exercising judicial jurisdiction over maritime affairs. In May 1989, the Supreme People's Court made a Decision on the Scope of Cases to Be Handled by Maritime Courts. That decision specified that maritime courts handle maritime or commercial cases between Chinese legal persons/citizens, between Chinese legal persons/citizens and foreign legal persons/citizens, and between foreign legal persons/citizens. These cases fall into 14 subsets in five categories:
- Ten categories of cases involving maritime torts and disputes, including: damage claim cases involving collision of vessels; damage claim cases involving vessels colliding into buildings and facilities on the sea, sea-linked waters and ports; claim cases involving vessels discharging or leaking hazardous materials or waste water causing water pollution or damaging other vessels or cargo; claim cases involving casualties in the course of sea-borne shipping or operations on the sea, sea-linked waters and ports.
- Fourteen categories of commercial cases, including: cases involving shipping contract disputes; contract dispute cases involving passengers and baggage; cases involving seaman labor contract disputes; cases involving maritime rescue and salvage contract disputes; cases involving maritime insurance contract disputes.
- Eleven other categories of maritime cases, including: cases involving major liabilities in shipping and maritime operations; cases involving port operation disputes; cases involving general average disputes; cases involving offshore development and exploitation; cases involving the ownership, proprietorship, mortgage or preferred maritime right of claim of vessels; administrative cases involving maritime or inland river authorities; and cases involving maritime fraud.
- Five categories of cases involving maritime enforcement, including: cases involving compulsory enforcement requested by maritime and inland river authorities; cases involving applications for enforcement of arbitration awards filed by litigants; cases involving applications filed with Chinese maritime courts by litigants for recognition and enforcement of arbitration awards given by arbitration agencies in foreign countries or regions, in accordance with provisions of the convention on recognition and enforcement of foreign arbitration; cases involving applications filed by litigants to Chinese maritime courts for assistance in enforcement of rulings given by foreign courts, in accordance with judicial assistance accords China signed with foreign countries, or with the principle of reciprocity.
- Two categories of cases involving requests for preservation: cases involving pleas for detaining vessels prior to the opening of trial; cases involving pleas for detaining cargoes aboard ships or fuel for the ships prior to the opening of trial.
Railway transportation tribunals are special courts set up along railways that try the following types of cases:
- Criminal cases investigated by railway public-security authorities and filed by railway prosecutors.
- Cases involving economic disputes. In accordance with rulings of the Supreme People's Court, these cases fall into 12 categories: cases involving railway cargo transportation contract disputes; cases involving disputes over the execution of international railway collaboration contracts; cases involving economic disputes within the railway system; cases involving torts that have resulted in damages to railways in violation of railway safety regulations; and tort cases involving human and property losses caused by railway operations and dispatch operations, where the litigant chooses to bring action to the railway tribunal.
The Supreme People's Court is located in Beijing. It is the highest judicial organ, exercising the highest judicial power while supervising lower courts and special courts. The Supreme People's Court is presided over by one president and a number of vice presidents, chief justices and justices. The Supreme People's Court exercises the following powers:
- Supervise lower courts and special courts. For judgments and rulings passed by lower and special courts that have been found to contain errors, the Supreme People's Court have the power to hear the cases or order lower courts to reexamine the cases.
- Try the following cases:
a) First-hearing cases falling under its jurisdiction as prescribed by the law or as deemed necessary by the court itself. The Law on Criminal Procedure stipulates that the Supreme People's Court has first-hearing right to try criminal and civil cases of major proportions nationwide. The Law on Administrative Procedure provides that the Supreme People's Court has first-hearing jurisdiction over administrative cases of a material and complicated nature.
b) Cases appealing or protesting rulings of higher courts and special courts, and protested cases submitted by the Supreme People's Procuratorate in accordance with legal procedures.
- Approve death penalty cases.
- Issue judicial interpretations on how to apply law and writs.
- Lead and manage judicial administration of courts at all levels across the country.
The judge system, a major component of the judiciary, refers to all the rules and institutions related to the election and qualification of judges, forms of election, tenures, rewards and penalties, and salary and compensation of judges. China promulgated a Judge Law on February 28, 1995, which contains 17 chapters and 42 articles.
Qualifications of Judges
Judges exercise state judicial power in accordance with law. They include presidents and vice presidents of courts at various levels, members of judicial committees, presidents and vice presidents of tribunals, judges and assistant judges. The responsibility of judges is to participate in collegiate panels or be independent judges at trials.
Judges are elected with the following qualifications:
- A citizen of the People's Republic of China;
- At least 23 years of age;
- Supports the Constitution of the People's Republic of China;
- In good political, professional and moral standing;
- In good health;
- A graduate of law from an institution of higher learning, or a non-law graduate from an institution of higher learning with in-depth knowledge of law, with two years of working experience; or holders of a bachelor's degree in Juris Doctor with a full year of working experience; those holding a Master's or Ph.D. degree in JD are not subject to the working-experience limit described above.
Those that have been penalized for crimes or have been dismissed from their public offices shall not be elected judges.
In addition, according to the Law on the Organization of People's Courts, presidents, vice presidents, presiding judge and deputy presiding judge of tribunals, judges and assistant judges, as well as People's Assessors shall be citizens with voting rights and rights of being elected, 23 years of age and with legal knowledge.
The Appointment and Removal of Judges
The Constitution and laws provide for the powers and procedures for appointing and removing judges.
Presidents of courts at local levels are elected and removed by the People's Congress at the same level and the tenure of the presidents is the same as the People's Congress; the president nominates the vice president, members of the Judicial Committee, presiding judges, deputy presiding judges and judges for appointment and removal by the Standing Committee of the People's Congress at the same level. Assistant judges of a court are appointed and removed by the president of the court. Judges sitting at special courts are elected and removed with procedures separately set forth by the Standing Committee of the National People's Congress.
Primary judges and assistant judges are recruited from among qualified candidates through open examination. The president, vice president, members of the Judicial Committee, presiding judge and deputy presiding judge shall be selected from among candidates who have practical working experience.
Judges shall not concurrently hold positions in the Standing Committee of the People's Congress, executive offices, the procuratorate, business, non-profit institutions, or in the legal profession.
Judges who have lost their citizenship, been found to be incompetent, been unable to perform their duties for a protracted period of time due to disciplinary violations, criminal records or health reasons, shall be removed from their position in accordance with legal procedures.
Safeguards for Judges
The Judge Law provides judges with the following safeguards:
- Professional safeguards: Judges shall be granted adequate powers and working conditions in order to perform their duties; they shall be free from interference in exercising their judicial powers from any administrative authorities or individual; they shall not be removed, demoted, dismissed or disciplined unless for statutory reasons and procedures.
- Salary safeguards: Judges shall receive remuneration for their performance of duties and enjoy insurance and other benefits.
- Corporal safeguard: Judges shall receive legal protection for their corporal, property and residential safety.
- Others: Judges shall have the right to resign, petition or accuse, or participate in training.
Judges are divided into 12 levels, with the president of the Supreme People's Court being the Chief Justice and those between Level 2 and 12 being labeled Justice, Senior Judge and Judge. The level of seniority is determined by the judge's position, performance, professionalism and seniority. Promotions are based on annual performance reviews, which are conducted by the courts where the judges serve. Performance reviews shall be conducted in an objective, impartial manner and combine evaluations by both superiors and subordinates.
Rewards and Penalties
Judges are rewarded for their outstanding performance and contributions. Rewards can be public recognition of performance, Third Reward, Second Reward, First Reward and the conferring of an honorary title.
Judges must not engage in any of the following acts: disseminate information harmful to the reputation of the state; participate in illegal organizations; participate in anti-government gatherings, demonstrations and protests; participate in strikes; embezzle or take bribes; practice favoritism in breach of law; extort confessions by torture; conceal or forge evidence; leak state secrets or confidential information related to judicial proceedings; abuse power to violate the lawful rights and interests of citizens, legal persons or other organizations; neglect duties resulting in wrong rulings or serious damages to the litigant(s); purposefully delay proceedings; abuse power to seek profit for themselves or others; engage in business activities; meet in private with litigants and their representatives and accept their gifts and favors.
Judges who engage in any of the above acts will be disciplined to varying degrees. These can be warnings; a record of demerit in personal files; a record of a major demerit; demotion; removal from position; dismissal from office. A removal from position is accompanied by a lowering of salary and rank; those who have committed a crime will be prosecuted for their criminal liabilities.
Judges enjoy rights of retirement, resignation, training, petition and complaint. After retirement, they shall be entitled to pension insurance and other benefits as prescribed by the state.
Forms of Court Trials
According to the Law on the Organization of People's Court and other laws, trials of People's Courts take the following forms:
Sole Judge Court
This kind of court is presided over by one judge for trying simple cases. Legally speaking, these cases include:
- First-hearing criminal cases handled upon complaint and other minor criminal cases;
- Simple civil cases and cases involving economic disputes handled by grassroots courts and their detached tribunals;
- Cases tried using special procedures, except for cases involving voters' qualification or other complicated cases, which should be tried by a collegiate panel.
Collegiate panels consist of at least three judges or a combination of judges and People's Assessors. First-hearing criminal and civil cases are generally tried by a collegiate panel except for those simple cases for which a sole judge is sufficient. First-hearing administrative cases, without exception, are handled by a collegiate panel; second-hearing, reexamined cases and death penalty verification cases are handled by a collegiate panel.
A collegiate panel, as a basic form of the People's Court, is not inflexible in its composition; rather, its members are appointed on a case-by-case basis. The president or the presiding judge designates a judge to be the chief judge. When the president of the court or the presiding judge of a tribunal themselves attend a case, they serve as the chief judge concurrently. When assessing a case, the collegiate panel should follow the principle of the minority submitting to the opinions of the majority when disagreement arises. The opinions of the minority, however, should be recorded in the court log with signatures of members of the panel.
According to the Law on the Organization of People's Courts, courts at all levels set up a Judicial Committee, the members of which are nominated by the president for appointment by the People's Congress at the same level. The Judicial Committee is presided over by the president of the court and its responsibilities include:
- Deliberate on major, complicated cases;
- Summarize judicial practices;
- Discuss other judicial issues.
The Fundamentals of China's Judicial System
Article 125 of the Constitution provides that open trials mean that all cases tried by courts should be conducted openly unless otherwise provided for by the law. Even cases that are not tried openly should be publicized when the verdict is passed. "Open" means the entire process should be open to public auditing and to the press. For cases that, by law, should be open to the public, the court should announce before the trial opens the outline of the case, the name of the litigant, the time and the place of the trial.
Article 7 of the Law on the Organization of People's Courts provides that the following three types of cases are not open to the public:
- Cases involving state secrets;
- Cases involving personal privacy;
- Cases involving crimes committed by minors.
In addition, in accordance with provisions of civil procedure law, cases involving divorce and trade secrets may, upon request by litigants, not be open to the public.
The Constitution and the law on the organization of courts provide that the accused is entitled to the right to a proper defense. The law on criminal procedure further provides that the courts have the obligation to ensure that the accused obtains defense, and sets forth specific procedures that any suspects or accused may, in addition to exercising the right to defend themselves, appoint one or two representatives to defend them. Those eligible to defend the accused include:
- Persons recommended by people's organizations or the employer of the suspect or the accused;
- The custodian or relative of the suspect or the accused.
However, those that are currently serving a sentence or those that have been deprived of, or are restricted in personal freedom should not represent the suspect or the accused.
For public-prosecuted cases, the suspect has the right to appoint a defender starting from the day the case is transferred for prosecution; for privately prosecuted cases, the accused has the right to appoint a defender anytime. Should the accused, for economic or other reasons, be unable to appoint a defender to a court where a public prosecutor appears, the court may designate a legal-aid lawyer to defend him or her free of charge. Furthermore, when the accused is blind, deaf, mute or a minor and has not appointed a defender, or when the accused may face death penalty and does not appoint a defender, the court should designate a legal-aid lawyer to defend him or her free of charge.
Second Instance Being Final
Article 12 of the Law on the Organization of People's Courts states that the courts have to try cases on two levels, with the second instance being the final judgment. This means a case is closed after going through two levels of trial.
The courts practice a four-level system in which the second instance is the final judgment. Jurisdiction depends on the nature and complexity of the case. Should the litigant not agree with the judgment or ruling of the first instance, he or she may, within a specified period of time, appeal to the higher court. If the procuratorate believes that the first-instance ruling or judgment is indeed mistaken, it may, within a specified period of time, protest the ruling or judgment to the higher court. If, within the specified period of time, the litigant fails to appeal and the procurator fails to protest, then the first-instance judgment or ruling stands as the legally binding judgment or ruling. The superior court, after reviewing appealed or protested cases in accordance with second-instance procedures, passes a judgment or ruling that is the final judgment or ruling. Except for cases involving the death penalty, all other cases take legal effect immediately upon announcement.
In accordance with legal provisions, the following cases are tried with the first instance being final:
- First-instance cases handled by the Supreme People's Court;
- Cases heard by grassroots courts in accordance with civil procedures, such as voter qualification cases, cases determining citizens to be legally disabled or partially disabled, cases pronouncing persons missing, cases pronouncing persons dead, or cases determining property unclaimed.
System of Collegiate Panels
Article 10 of the Law on the Organization of People's Court provides that courts shall practice a system of collegiate panels when trying cases. Except for first-instance simple civil cases and other cases otherwise provided for by the law, all cases are tried with a collegiate panel present. This system refers to a panel of at least three judges or a combination of at least three judges and People's Assessors, as opposed to trials conducted by one judge alone. The composition of the collegiate panel should be an odd number, usually three, and the principle of the minority submitting to the majority is observed, provided that the opinions of the minority are recorded in the court log. The judges and People's Assessors enjoy the same rights.
The challenge system refers to a system in which judicial officers shall or are required to withdraw from the cases because of their special relationship with these cases or litigants, which may undermine the impartiality of the judgment.
In accordance with criminal procedures, judges, prosecutors and investigators who meet any of the following conditions shall voluntarily withdraw or be challenged by litigants or their representatives to withdraw from the cases:
- They themselves are litigants or next-of-kin of litigants;
- They themselves or their close relatives hold stakes in the case;
- They have held the positions as witness, expert witness, defender or the advocate of litigants in incidental civil actions;
- They have other types of relations with litigants to the suit that may affect the fair handling of the case.
These restrictions apply to secretaries, translators and experts as well.
The withdrawal of judges is decided by the president of the court; while the withdrawal of the president is decided by the Judicial Committee of the court.
The civil procedure law and administrative procedure law have similar provisions.
System for Verification of Death Penalty Cases
This system refers to the procedures and rules that have to be observed in verifying death penalty cases.
The Law on the Organization of People's Courts and the Criminal Procedure Law provide that all death penalty cases, unless handled by the Supreme People's Court, are reported to the Supreme People's Court for verification and approval. The Supreme People's Court, if necessary, may authorize Higher People's Courts at the provincial level to exercise that power for death-penalty cases involving homicides, rape, robbery, explosion and other crimes that seriously threaten public security and social security. Cases involving a death penalty with a two-year probation ruled by intermediate courts are verified and approved by higher courts. Death penalty cases ruled by intermediate courts are first verified and approved by higher courts before being submitted to the Supreme People's Court for verification and approval. Should the higher court disagree with the death penalty verdict, it may want to hear the case or refer it back for re-examination.
System for Judicial Supervision
Also known as the re-examination system, this refers to a special arrangement for the court to reexamine judgments and rulings that have already taken effect. It actually represents a remedy to the system of second instance being final.
According to the Law on the Organization of People's Courts and the three procedural laws on civil, criminal and administrative cases, China's system of judicial supervision comprises the following components:
- The precondition for initiating the judicial supervision procedure is that judgments and rulings that have already taken effect have been found to contain errors in establishment of facts or application of laws.
- The judicial supervision procedure can only be initiated by presidents of courts, superior courts, superior procuratorates, the Supreme People's Court and the Supreme People's Procuratorate.
- The way this procedure works is that presidents of courts ask the Judicial Committee to handle the matter; the Supreme People's Court asks or designates lower courts to reexamine the case; the Supreme People's Procuratorate and higher procuratorates protest a case in accordance with procedures for judicial supervision.
- In reexamining a case under the judicial supervision procedure, courts form a separate Collegiate Panel. If the original case was a first-instance case, then it should be re-examined in accordance with first-instance procedures; rulings or judgments arising thereof are subject to appeal or protest. If the original case was a second-instance case, or was tried by higher courts, then second-instance procedures should be followed and rulings or judgments arising thereof shall be final.
System of Judicial Assistance
This refers to a practice whereby the judicial authorities of a country (usually courts), in accordance with international treaties or bilateral/multilateral agreements (or the principle of reciprocity in the absence of a treaty), perform the judicial procedures at the request of another country's judicial authorities or parties to a lawsuit.
Judicial assistance in China consists of three aspects:
- Delivery of documents and investigations in search of evidence;
- Mutual recognition and enforcement of court rulings and arbitration awards;
- Criminal judicial assistance, including delivery of documents, investigation in search of evidence and extradition of criminals.
The prosecution system refers to the nature, mission and organizational structure of a country's prosecution apparatus, as well as the principles for its organization and activities and working institutions.
According to the Law on the Organization of People's Procuratorates, the People's Procuratorates are the State's organs for legal supervision that exercise the power of prosecution. They are elected by and report to the People's Congress at the same level.
Organization of Procuratorates
Article 2 of the Law on the Organization of People's Procuratorates states that procuratorates are set up at the supreme and local levels; in addition, special procuratorates such as military procuratorial organs are set up. Such a top-down structure reflects the pyramid structure of the country's prosecution, in which the superior leads the subordinate. This is noticeably different from the court system in which the higher court supervises the lower court. This centralized system is created to maintain the consistency of the country's legal structure.
The Supreme People's Procuratorate leads local and special procuratorates. Local means provincial, autonomous regional and municipal procuratorates and their branches, as well as procuratorates at the autonomous prefecture/cities directly under provincial governments, county, city, autonomous city and urban district levels. Special procuratorates include military and railway transportation prosecution. Procuratorates are established at levels corresponding to those of courts so that cases can be prosecuted in accordance with legal procedures.
Responsibilities of Procuratorates
According to the Law on the Organization of People's Procuratorates and other related laws, procuratorates exercise the following powers:
- Exercise the power of prosecution on cases of treason, separatism and major crimes seriously hindering the uniform implementation of the state's policies, laws, writs, administrative decrees;
- Investigate criminal cases they directly handle;
- Review cases investigated by public security and state security authorities to decide if arrests, prosecutions are warranted; supervise the legality of such investigations;
- Initiate public prosecution and support public prosecution for criminal cases; supervise the legality of trials conducted by courts;
- Supervise the rulings and judgments on criminal cases and the legality of activities of jails, detention centers and reform-through-labor institutions;
- Supervise civil and administrative trials of courts.
Organizational Structure of Procuratorates
Organizationally, procuratorates are composed of procuratorial committees and other specialized departments.
The chief prosecutor of a procuratorate oversees the day-to-day operation of procuratorates. Clause 2, Article 3 of the Law on the Organization of People's Procuratorates states that People's Procuratorates at all levels should establish a Procuratorial Committee and a democratic centralization system should be implemented. The committee should, under the leadership of the chief prosecutor, deliberate on major cases and other major issues. Should the chief prosecutor disagree with the decision of the majority of the committee members, he or she may refer the issue to the People's Congress at the same level for adjudication.
Internally, working bodies are created within each procuratorate. These include prosecutors for criminal, economic, disciplinary, jails, and civil and administrative cases. In particular, procuratorates have set up anti-corruption bureaus and reporting centers that fight embezzlement, bribery, dereliction and infringements of rights through collaboration with the masses.
System of Prosecutors
This system aims at managing prosecutors who, in accordance with laws, exercise the state power of prosecution at procuratorates. It consists of rules specifying the responsibilities, rights and obligations, qualifications, appointments and removals, examination, training, awards and penalties, salary and compensation, resignation, and retirement of prosecutors. The Prosecutors Law was adopted on February 28, 1995 at the 12th session of the Standing Committee of the Eighth National People's Congress. That law went into force on July 1, 1995.
Qualifications of Prosecutors
Prosecutors include chief prosecutor and deputy prosecutor of People's Procuratorates at all levels, members of the Procuratorial Committee, prosecutors and assistant prosecutors. Prosecutors as a whole must meet the following qualifications:
- Be a citizen of the People's Republic of China;
- Be at least 23 years of age;
- Support the Constitution of the People's Republic of China;
- Be in political, professional and moral standing;
- Be in good health;
- A graduate of law from an institution of higher learning, or a non-law graduate from an institution of higher learning with in-depth knowledge of law, with two years of working experience; or holders of a bachelor's degree in law with a full year of working experience; those holding a Master's or Ph.D. degree in law are not subject to the working-experience limit described above.
Those that have been penalized for crimes or have been dismissed from their public offices cannot be elected judges.
Prosecutors obtain their qualifications in two ways:
- Through qualification examinations. Open examinations are administered regularly by the Supreme People's Procuratorate to recruit junior and assistant prosecutors. Chinese citizens with a three-year college education are eligible for the examination. Those who have passed the examination and are deemed as being in good political and ethical standing will be qualified as prosecutors and awarded a Certificate of Qualifications for Prosecutor;
- Through training and tests.
Prosecutors and prosecution personnel can be disqualified for any of the following reasons:
- Resignation approved;
- Dismissed by procuratorial bodies;
- Removal of name from roll;
- Removal from office as a disciplinary penalty;
- Removal from position;
- Criminally penalized;
- Other reasons incompatible with the position of prosecutor.
System for Appointment and Removal of Prosecutors
The chief prosecutor is elected and removed by the People's Congress at the same level, but the appointment and removal of local chief prosecutors have to be reported to the chief prosecutor of higher procuratorates who, in turn, will submit the appointments and removals to the Standing Committee of the People's Congress at the same level for approval.
The appointment and removal of the deputy chief prosecutor, members of the Procuratorial Committee and prosecutors must be submitted to the Standing Committee of the People's Congress at the same level, but the appointment and removal of assistant prosecutors can be approved by the chief prosecutor.
Promotions, Awards and Penalties of Prosecutors
Prosecutors are promoted in two ways: regular promotions and selective promotions.
Prosecutors are divided into 12 ranks, with the highest being the Chief Prosecutor of the Supreme People's Procuratorate, followed by Grand Prosecutors, Senior Prosecutors and prosecutors (level 2 through 12). The ranking of prosecutors is determined by a range of factors, including their position, performance, professionalism and seniority.
Awards are typically a combination of moral and material incentives. These include public recognition of achievements, Third Prize, Second Prize, First Prize and the conferring of an honorary title.
Penalties include warning, a record of demerit in personal files; a record of a major demerit; demotion; removal from position; dismissal from office. A removal from position is accompanied by a lowering of salary and rank; those who have committed a crime will be prosecuted for their criminal liabilities.
Safeguards for Prosecutors
Prosecutors are protected by law in performing their duties. These include:
- Professional safeguards: Prosecutors are free from interference in exercising their judicial powers from any administrative authorities, social organization or individual; they shall not be removed, demoted, dismissed or disciplined unless for statutory reasons and procedures.
- Corporal safeguard: Prosecutors receive legal protection for their corporal, property and residential safety.
- Salary safeguards: Prosecutors receive remuneration for their performance of duties and enjoy insurance and other benefits.
- Others: Prosecutors are entitled to powers and working conditions befitting their performance of duties; they have the right to resign, petition or accuse.
These govern the scope of operations and activities for prosecutors. They include:
1. Procedures for procuratorates supervising criminal investigations undertaken by public security (including state security) authorities.
- Verify and approve arrest warrants. The Constitution provides that, unless approved or ruled by procuratorates or courts and executed by public security authorities, citizens are not subject to arrest;
- Verify criminal cases concluded and transferred by public security authorities to determine if public prosecution is warranted.
- Supervise the legality of investigation activities by public security authorities.
2. Procedures for prosecutors to directly accept and investigate cases. According to an order issued by the Supreme People's Procuratorate in early 1998, 53 types of cases in four categories are directly handled by procuratorates:
- Embezzlement and bribery as defined in Chapter 8, Criminal Code, as well as other crimes such as misappropriation of public funds as defined in other chapters that should be penalized as those specified in Chapter 8;
- Dereliction of duties as defined in Chapter 9, Criminal Code, including abuse of power, negligence of duties, perversion of law in prosecution and adjudication;
- Violation of citizens' corporal rights and democratic rights committed by government employees, such as illegal detention, illegal searches and extortion of confessions through torture;
- Other major crimes committed by government employees that require direct involvement of procuratorates; in such cases, approval by procuratorates above the provincial level is needed.
3. Public prosecution: According to the Criminal Law and criminal procedure law, except for a few private prosecution cases, most criminal cases will be publicly prosecuted by People's Procuratorates to People's Courts that have jurisdiction. Cases submitted by public security authorities have to be reviewed by procuratorates without exception and a decision on public prosecution should be made within a month. For cases of a substantive and complicated nature, that deadline can be extended by another half month. Public prosecutions have to be brought to courts with jurisdiction for cases for which facts have been verified and evidence is accurate and sufficient and for which criminal liabilities must be prosecuted.
4. Judicial supervision - supervision over judicial activities undertaken by courts in handling civil, criminal and administrative cases. The appearance of prosecutors in trials of criminal cases means not just support of public prosecution but also supervision of the trial proceedings. In addition, prosecutors are empowered to protest rulings or judgments on criminal cases wrongly passed by courts.
5. Supervision on enforcement of criminal rulings and on jails. This includes:
- Execution death penalty: Members of procuratorates must be present at executions to supervise proceedings and verify the identity of the condemned prisoner.
- Penalties carried out at jails and penitentiaries, including the legality of reduction in sentencing, probation, medical parole, serving sentence outside prison, and suspension of sentence.
- Legality of activities at detention centers and reform-through-labor institutions.
System Governing Investigations
This system governs investigations and other mandatory measures taken in accordance with law by public security authorities and procuratorates in handling cases. It consists of provisions regarding the nature and mission, organizational structure, principles of activities and working procedures of investigation authorities.
Status and Nature of Public Security Authorities
Public security authorities are an important part of the government. They are both an administrative arm and a judicial organ since they are in charge of criminal investigations, playing a unique role in cracking down on crimes and maintaining social security.
Criminal police are a major force of the police.
1. Qualification Requirements for Investigative Officers
Article 26 of the People's Police Law provides that investigative officers should meet the following conditions:
- Citizens at least 18 years of age;
- Support the Constitution of the People's Republic of China;
- In good political, professional and moral standing;
- In good health;
- Have at least a senior high school education;
- Willing to be a policeman.
Persons who have the following records should not be a member of the police:
- Having received criminal penalty for committing a crime;
- Having been dismissed from public office.
Police are divided into 13 ranks in five categories:
- Police Commissioner and Deputy Commissioner;
- Police Superintendent Level 1, 2 and 3;
- Police Inspector Level 1, 2 and 3;
- Police Sergeant Level 1, 2 and 3;
- Police Constable Level 1 and 2.
The Ministry of Public Security supervises the ranking and promotions of the police.
1. Acceptance and Establishment of Cases
Public security authorities should immediately accept, inquire about, take notes of and hear cases of suspects turned in, reported or brought to the police by citizens or suspects who turn themselves in. Those that meet conditions should be accepted and filed as a case and for complicated and material cases, an investigation plan and, if necessary, necessary measures have to be taken.
2. Procedures for Criminal Investigations
For criminal cases that already been filed with the police, investigations should be launched for a thorough and impartial collection of evidence that may determine whether the suspect is guilty or innocent and, if guilty, whether it is a felon or a misdemeanor. Depending on actual needs, various detective means and measures will be taken in strict compliance with statutory procedures.
3. Procedures for Detentions and Arrests
Public security authorities may proceed to detain criminals caught in the act or material suspects in accordance with statutory procedures; they may also seek approval from procuratorates for an arrest warrant for suspects for whom sufficient evidence of incrimination exists and a sentence is likely, and for whom measures such as obtaining a guarantor in anticipation of trial out of custody and surveillance of residence is insufficient for ensuring social security and order.
4．Procedures for Case Transfer and Prosecution
Cases concluded by public security authorities for which the facts are clearly established, evidence is verified and sufficient, the nature of crime and name of felony correctly defined, legal procedures completed and for which criminal liabilities should be prosecuted, should be transferred to the procuratorate at the same level to determine whether public prosecution is warranted.
5. Procedures for Evidence Gathering
Detectives should strictly follow statutory procedures in collecting all kinds of evidence that can prove whether a suspect is guilty or not, or how serious the felony is. Extortion of confession through torture and collecting evidence through threat, inducement, deception or other illegal means are strictly forbidden.
The Prison Law of the People's Republic of China was adopted and went into force on December 20, 1994 at the 11th meeting of the Standing Committee of the Eighth National People's Congress.
The Prison Law provides that the State Council judicial administration (Ministry of Justice) supervises all prisons across the country. The Ministry of Justice has a Bureau of Prison Administration that supervises all prisons in the country. In the provinces (municipalities directly under the central government and autonomous regions), offices of justice are responsible for managing prisons in their own jurisdiction through their prison administration arms.
Prisons in China are divided into two categories:
- Prisons incarcerating inmates who have been condemned by courts to a fixed-term sentence, life sentence or death penalty with two years reprieve. Male and female inmates are warded separately, with female wards managed by female law enforcement personnel. Prisons may also be divided into wards for felons and criminals of misdemeanor.
- Penitentiaries for juvenile delinquents, criminals of minor age who have been condemned by courts to a fixed-term sentence, life sentence or death penalty with two years reprieve. Special protection is extended to juvenile delinquents, with customized procedures in place to cater to their needs.
Prison Setup and Staffing
The Prison Law provides that the State Council judicial administration approves the establishment, elimination and relocation of prisons in line with historical, economic and natural factors. This provision is designed to optimize the distribution of prisons and ensure the unified, effective and accurate execution of penalties.
Prisons usually have one warden and several deputy wardens and various administrative departments and staff. In addition to administrative offices and commercial institutions, prisons also have sanitary and education facilities.
The Prison Law provides that the managerial personnel of prisons are members of the police force who enjoy the same legal status as public security and traffic police.
Financial System of Prisons
The Prison Law states that the state ensures funding for prisons in reforming inmates. Expenses related to prison police, reformation of prisoners, daily life of inmates, maintenance of prison facilities and other items are budgeted for in the central government's planning. The state provides production facilities and funding needed for prison labor. Land, mineral resources and other natural resources legally employed by prisons, as well as the property of prisons are protected by law; no entity or individual can trespass or damage those properties.
Article 3 of the Prison Law states that prisons should follow the principle of combining penalty with reform, education with labor, in a bid to reform prisoners into law-abiding citizens.
1. Transformation Through Punishment
Prisons punish criminals because, without punishment, it is difficult for criminals to come to grips with their crimes and begin their life anew. While punishment focuses on enforcement, reform focuses on transformation. Punishment is the means, while transformation is the end. The purpose of punishment is to transform criminals into law-abiding citizens. This is precisely what criminal penalties are for. Prisons do not punish criminals for punishment's sake.
2. Combining Education with Labor
To effectively reform prisoners, it is also necessary to combine education with labor. Education can be multifaceted: ideological, cultural, vocational and technical.
Execution of Penalties
Law enforcement authorities implement criminal rulings and judgments passed by judicial authorities that have already taken effect, in accordance with legal procedures. Chinese prisons execute the following types of penalties:
1. Committal, i.e. commitment to imprisonment of convicts who have been condemned to death penalty with two years reprieve, life sentence or a fixed-term sentence. Committal means the beginning of the execution of penalty, a serious law enforcement activity. Therefore, it must be conducted in strict compliance with legal procedures.
Public security authorities that incarcerate criminals that have been condemned to death penalty with two years reprieve, life sentence or a fixed-term sentence must transfer the criminals to prisons for execution of penalty within one month of receipt of the execution notice or ruling. While transferring the criminals to the prison, courts must present relevant legal documents including copies of the prosecution statement prepared by the procuratorate, the ruling by the court, notice of execution and form of registration for closure of case. Prison authorities may reject criminals if these documents are not received. If these documents are not complete or contain errors, the court that issues the ruling in effect has to amend or correct the documents in a timely fashion; those that may lead to mistaken imprisonment may not be accepted.
Criminals that have been taken in should go through physical, corporal and personal-effect examinations. Criminals condemned to life imprisonment or fixed-term sentence who have been found, during the physical examination, to have contracted serious illness needing medical treatment on bail or female criminals who are pregnant or breast-feeding their newborn may be exempted from imprisonment temporarily. That provision, however does not include criminals condemned to death penalty with a two years reprieve. The prison should notify the court of the result of the physical examination and the court, in turn, should decide whether the criminals should be allowed to seek medical treatment on parole. Personal effects that have been found to be incompatible with regulations should be confiscated; non-essentials should, upon approval of the inmate, be turned in to the prison authorities for safekeeping or returned to the relatives of the inmate. Female inmates should be examined by female police officers. Criminals should not bring their children with them to the prison.
Upon admission into the prison, the prison authorities should notify the family of the inmate; the notice should be issued within five days of admission.
2. Handling of Petitions, Accusations and Reporting by Inmates
During the execution of penalty, petitions filed by inmates should be referred without delay to procuratorates or courts. Prisons should set up a complaints box and designate a special individual to open the box in order to facilitate grievance redress. The procuratorates or the courts should notify the prison within six days of receipt of a letter of suggestions submitted by the prison.
Inmates have the right to bring a charge against or report prison police and other personnel for their illegal acts. The prison authorities should process the submitted materials and get the matter resolved if it falls within their jurisdiction; if it is not within their jurisdiction, then it should be transferred without delay to procuratorates or courts.
3. Serving a Sentence Outside the Prison
This is a system that allows criminals who meet prescribed conditions to serve their sentence outside the prison temporarily. This is done in two ways. First, upon announcement of the ruling, if the convict is seriously ill warranting medical treatment on bail, or is pregnant or breast-feeding her baby, the court may decide that the convict can serve his or her sentence outside the prison. Second, while serving a term, an inmate may be permitted to serve the remainder of the sentence outside the prison through meeting the following conditions: seriously ill and in danger of death in the short term; serious chronic illness for which medical treatment is not effective; over 60 years of age, in poor physical conditions and unlikely to endanger society anymore; physically handicapped and unable to work. In such cases, the prison authorities should prepare a written proposal and submit it to prison administration authorities of the provinces (municipalities and autonomous regions).
Once the circumstances permitting a temporary serving of a sentence outside the prison are no longer there, prisoners should be readmitted and continue to serve their sentence. If the decision was made by a court, the prisoner should be handed over by the public security handler to the prison authorities; if the decision was made by the prison authorities, the public security authorities that handle the case should notify the prison authorities in a timely fashion. Those that have already served their sentence outside the prison should complete release formalities at the original admission prison. For those that died while serving their sentence outside the prison, public security authorities should notify the original admission prison of the death.
4. Commutation of Sentence and Parole
Commutation means an abatement of sentence in accordance with legal requirements and procedures. Prisons are responsible for filing applications to courts for prisoners who meet requirements for commutation. The court should review an application and adjudicate within one month of receipt of proposal. For complicated or extraordinary cases, that deadline may be extended for one more month.
5. Release and Placement
Upon completion of their term, prisoners should be released and issued a certificate of release. The prisoner should provide a written evaluation of the prisoner's performance in prison and hand it over along with a copy of the ruling to the public security outlet that handles the registration of permanent residence of the former prisoner.
The released person should apply for registration of permanent residence with the local public security authorities with the certificate of release and they should enjoy equal rights as other citizens.
Prison administration includes the following:
Prisoners, based on the nature of their crime, type of penalty, length of sentence, performance, age, gender and other characteristics, are classified into different groups and are incarcerated, managed and educated accordingly.
2. Use of Warning, Preventive Devices and Weapons
Warning, including armed warning, is resorted to by prison police to maintain normal order and security at prisons. Prison authorities may also decide to take security precautions such as guarding and control behind the cordon line. In addition, the prison authorities should also mobilize militias, security-maintenance organizations and the general public surrounding the prison to maintain order and security in the surrounding areas. Once inmates attempt to escape, riot, revolt, or outsiders attempt to break into a jail or stage a riot, prison police can join hands with external forces to put down the unrest.
Preventive devices are used for inmates inclined to commit dangerous acts. They are not to be used for inmates who are advanced in age with illness, handicapped inmates and minor inmates under normal circumstances. Except for rare circumstances, they are not to be used on female inmates. Inmates who wear these preventive devices should not participate in labor activities organized by prison authorities.
Use of preventive devices on inmates must be approved by prison authorities. If a contingency warrants it, these devices can be put on inmates before approval is secured, but approval formalities must be secured immediately afterwards. Inmates should not wear handcuffs or shackles longer than seven days normally and not longer than 15 days maximum, except for prisoners awaiting execution.
Armed police and prison police may use weapons in emergency situations in compliance with legal procedures.
3. Communications and Meetings
While serving their sentence, prisoners may communicate with others, but their correspondence must be screened by relevant authorities. However, their letters to superior prison and judicial authorities should not be screened.
While serving their sentence, prisoners may also meet with visiting relatives or custodians. In principle, they should not meet people outside their kinship, unless otherwise approved.
In practice, aside from normal visiting times, prison authorities also allow prisoners to visit their family or handle a family emergency for a period of three to five days, but not to exceed seven days in special circumstances.
4. Living and Hygiene
Adult prisoners normally work eight hours a day; extended work hours as necessitated by production plans should be approved by prison authorities.
Prisoners also have two hours of study time and eight hours of sleep everyday. Prisoners of minor age work half a day and study half a day; their sleep time should be no less than nine hours a day. Prisoners of minor age should not engage in heavy manual labor, labor that is beyond their physical capabilities, or other work that hampers their physical health. In addition, prisoners should have time for cultural or sports activities everyday.
Prisoners should take statutory holidays and weekends off.
Prisoners should be provided with food and beverages comparable to those provided to workers in similar fields at local state-owned enterprises of similar size. Prisoner kitchens should be managed by full-time staff and efforts should be made to improve the diet of prisoners as much as possible.
Prison cells and surrounding facilities should comply with requirements for incarcerating criminals and other statutory requirements such as sanitation, fire control, anti-earthquake and heating standards.
In addition, prisons should also set up clinics or hospitals in accordance with the size of the prison and the number of inmates and be equipped with needed medical devices and drugs.
5. Rewards and Punishment
Prison authorities may reward or punish inmates in compliance with legal procedures on the basis of evaluations of prisoners' performance in transforming themselves through education and labor.
Evaluations cover prisoners' ideological, educational (political, cultural and technical), disciplinary and physical labor performance.
Rewards can be public recognition, material incentive or a record of merit in the individual's personal file; punishments can be warning, a record of demerit in the individual's personal file or solitary confinement. Any reward or punishment should be recorded faithfully in the prisoner's file.
Arbitration is a legal arrangement whereby both parties to a civil (commercial) dispute reach an agreement to voluntarily submit the case to a third party to adjudicate in accordance with specified procedures and rules and following the principle of impartiality, and whereby both parties are bound to enforce the ruling.
Arbitration is usually a non-governmental trade activity; it represents a private action. Together with composition, mediation and action, it is a common way to settle civil (commercial) disputes. Arbitration, however, is subject to state supervision. The State intervenes through courts in accordance with legal provisions of the place where the arbitration takes place in the validity of the arbitration award, the making of arbitration procedures, the enforcement of awards and in the case of involuntary enforcement by a party. Arbitration, therefore, is a judicial activity and a part of China's judicial regime.
The Arbitration Law of the People's Republic of China, promulgated on August 31, 1994, unified arbitration practices across the country and harmonizes China's arbitration system with internationally accepted principles, systems and practices.
Parties to a dispute should voluntarily reach an agreement to resolve their dispute through arbitration. An arbitration committee shall not consider a case without application from a party to the agreement.
Arbitration should be independent of any interference from administrative bodies, social organizations or individuals.
- An arbitration agency is not part of the administrative apparatus.
- Arbitration institutions are established geographically, independent from each other; they have no affiliation among themselves.
- Arbitration committees, arbitration associations and arbitration tribunals are also independent from each other, with arbitration tribunals adjudicating cases free from interference by arbitration associations or arbitration committees.
- Courts must exercise the power of supervision over arbitration activities; however, arbitration is not dependent on adjudication and arbitration institutions are not dependent on courts.
3. Legality and Impartiality:
The Arbitration Law provides that arbitration should be based on facts, comply with laws and resolve disputes in an impartial and reasonable manner.
1. Arbitration Association
China Arbitration Association is a self-disciplinary organization of arbiters. It supervises arbitration committees and their members and the behaviors of arbiters in accordance with their constitution. Arbitration committees are members of the China Arbitration Association. The constitution of the association is made by a national congress. It makes arbitration rules in accordance with the Arbitration Law and the Civil Procedure Law.
2. Arbitration Committees
Arbitration committees are executive bodies established in capital cities of provinces, municipalities and autonomous regions. They can also be set up in other cities if necessary.
Arbitration committees are formed with members from government departments and chambers of commerce and registered with the judicial administration of the province (municipality, autonomous region).
An arbitration committee consists of one chairman, two-to-four vice chairmen, and seven to 11 members. The chairman, vice chairmen and members should be legal and trade experts and individuals with working experience. The number of legal and trade experts should not be less than one third of the membership of an arbitration committee.
Arbiters should meet the following qualifications:
- Eight full years in the arbitration field;
- Eight full years in the legal profession;
- Eight full years as judge;
- Specialized in legal research and teaching and holding a senior professional title;
- Familiar with legal knowledge, specializing in economic and trade activities and holding a senior professional title or with equivalent qualifications.
An arbitration committee has different panels of arbiters for different trades.
3. Arbitration Tribunals
After taking up an arbitration case, an arbitration committee does not directly arbitrate the case; instead, it forms an arbitration tribunal to adjudicate the case.
Organizationally, an arbitration tribunal can be a collegiate panel or a sole arbitrator. An arbitration panel should be composed of three arbiters, one of whom should the chief arbiter who presides over the arbitration.
In case the parties agree to form a tribunal of three arbiters, each party should designate, or ask an arbitration committee to designate, one arbiter, and the third arbiter, who should be jointly selected by the parties or designated by the arbitration committee chairman jointly authorized by the parties, should be the chief arbiter. In case the parties agree to form a sole-arbiter tribunal, the arbiter should be jointly selected by the parties or designated by the arbitration committee chairman jointly authorized by the parties.
Essential Components of Arbitration
1. Arbitration or Adjudication
This practice represents a respect for the parties' right of choice as to the way to settle their dispute. It means:
If the parties have reached an agreement on arbitration, it rules out the jurisdiction of the court over the dispute; the parties can only apply for arbitration to an arbitration body rather than bringing action to the court.
However, courts may have jurisdiction over disputes that the parties have already signed an agreement about under special circumstances. These include:
- The arbitration agreement is invalid or its validity has expired;
- One party brings a suit to the court and the other party answers the lawsuit and mounts a substantial defense that does not challenge the jurisdiction of the court over the dispute. In such cases, the parties are understood to have renounced the original arbitration agreement and the court has judicial power to adjudicate the case.
2. One Instance Being Final
This means that the ruling takes effect immediately upon pronunciation. Even if the parties are not happy with the ruling, they cannot file a suit to the court for the same dispute or apply for arbitration or reconsideration to arbitration organizations. Instead, they should automatically implement the ruling; otherwise the other party has the right to apply to the court for enforcement.
As a remedy to the one-instance-being-final practice, however, parties may apply to the court for a review and verification of the case and annulment of the arbitration ruling if they believe it is indeed wrong and conditions for a legal revocation have been met.
International Economic and Trade Arbitration
The China International Economic and Trade Arbitration Committee handles international economic and trade disputes. It is headquartered in Beijing, with branch offices in Shenzhen and Shanghai. The Beijing Arbitration Commission, headquartered in Beijing, also handles international economic and trade disputes, in addition to domestic commercial matters.
This system governs the nature, mission, organization, operational principles of lawyers, as well as how lawyers provide legal services.
Nature, Mission and Status
Article 2 of the Lawyers Law of the People's Republic of China, promulgated on May 15, 1996, defines lawyers as "professionals who have obtained a practicing license through legal means to provide legal services." Lawyers are an important force for the construction of the legal system in China. Article 3 provides that practicing lawyers must abide by the Constitution and laws and adhere to the code of ethics and professional discipline for lawyers. They must use facts as basis and law as yardstick for practicing.
The mission of lawyers is to achieve the objective specified in state laws through the practice of law. Article 1 of the Lawyers Law states that the mission of lawyers is to maintain the lawful rights and interests of the parties to a suit and maintain proper implementation of law. These two objectives are mutually complementary because the maintenance of lawful rights and interests is consistent with the maintenance of the right implementation of law.
3. Status of Lawyers
Chinese lawyers play an independent role in lawsuits. They do not belong to courts or procuratorates, nor do they belong to their clients. They participate in lawsuits in order to maintain the legal rights and interests of their clients. They are independent. They enjoy not only rights of an ordinary participant in a lawsuit, but also rights compatible with the exercise of the duties of a lawyer.
Qualifications for Licensing
To practice, lawyers must first obtain professional qualifications and apply for a license after probation. After obtaining qualifications, they must receive the license for practicing in accordance with legal procedures in order to practice law as a lawyer. Only then can they enjoy the rights of lawyers while assuming duties accordingly.
Individuals who have obtained legal qualifications may retain their qualifications and not engage in the legal profession for a period of time. This is known as separation of legal qualifications from legal practicing.
1. Legal Qualifications
Article 6 of the Lawyers Law provides that there are two ways for obtaining legal qualifications: through national examination or approval by judicial authorities.
According to Article 6, "The state shall administer a national examination to determine lawyer qualification. Persons with a three-year college education in law and above or with equivalent qualifications, as well as persons with a bachelor's degree in other disciplines and above, can be awarded lawyer's qualifications by the State Council judicial administration after passing the national examination."
Article 7 provides that persons with a four-year college education in law and above who have engaged in law studies and teaching and hold a senior professional title or with equivalent qualifications and who have applied for a practicing license may be granted lawyer's qualifications subject to approval by the State Council judicial authorities.
a) Prerequisites for Applying for Practicing License
Article 8 of the Lawyers Law states that applicants for a practicing license must support the Constitution of the People's Republic of China and meet the following requirements:
- Fully qualified;
- Full year of internship at a law firm;
- Be in good standing.
b) Rejection of Applications
Article 9 states that applicants who meet any of the following conditions will be denied a practicing license:
- Unable to perform civil acts or are restricted in performing civil acts;
- Have been criminally penalized (but not including crimes of negligence);
- Have been dismissed from public offices or had their practicing license revoked.
c) Procedures for Applications
Applicants must first submit, through their current or future law firm, all the required application documents to the local judicial authorities. According to Article 10 of the Lawyers Law, these documents should include the following:
- Letter of application;
- Certificate of Lawyer Qualification;
- Internship Performance Evaluation by the law firm where the applicant has worked;
- Copies of the applicant's identification documents.
The local judicial authorities should form an opinion within 15 days of receipt of the application documents and report the matter to the provincial (autonomous regional/municipal) judicial authorities. The judicial authorities of the provinces, municipalities and autonomous regions should, after reviewing the documents submitted, grant a practicing license to applicants who meet the requirements as specified in the Lawyers Law within 30 days of receipt of the application. Those who fail to meet the requirements will be denied a practicing license and should be notified of the decision in a written form within 30 days of receipt of the application.
d) Registration of License
Lawyers should register their practicing license once a year; unregistered licenses are not valid. Registration is administered by judicial authorities above the Judicial Bureau at the provincial (municipal or autonomous regional) level. If necessary, registration can also be administered by judicial bureaus at the prefectural (city or county) level with authorization from higher judicial authorities.
Article 12 of the Lawyers Law provides that lawyers should practice at one law firm rather than at two or more simultaneously. No geographical restrictions should be imposed.
Article 13 states that incumbent government office holders should not concurrently be lawyers. While serving on the Standing Committee of the People's Congress at various levels, lawyers should not practice.
Article 14 provides that unlicensed persons should not practice as lawyers or represent or defend clients for a profit.
Persons engaging in legal teaching and research should not be partners in a partnership or a cooperative law firm.
Article 15 of the Lawyers Law provides, "A law firm is the practicing institution of lawyers" and the basic unit for regulation of the legal profession. Practicing lawyers are dispatched by their law firms and they practice in the name of the law firms.
1. Nature of Law Firms
The Lawyers Law provides for three forms of law firms: state-funded, cooperative and partnership. Different operational mechanisms are permitted for different forms of law firms and they assume different legal obligations (civil liabilities).
Article 16 states that state-funded law firms should practice law and assume liabilities with all their assets.
Article 17 says that lawyers may form cooperative law firms and assume liabilities with all their assets.
Article 18 says that lawyers may form partnership law firms and partners assume unlimited and joint liabilities for their firm.
2. Establishment of a Law Firm
a) Article 15 provides that law firms should meet the following requirements:
- Have their own name, residence and articles of association;
- Have more than 100,000 RMB of assets;
- Have lawyers who meet requirements of this Law.
b) Approval Procedures
Article 19 states that applications for establishment of a law firm should be reviewed and verified by judicial authorities at the provincial (autonomous regional/municipal) level or above and a license should be issued to applicants who meet the requirements of this Law within 30 days of receipt of application; those who fail to meet the requirements should be denied a practicing license and be informed of the decision within 30 days of receipt of application.
c) Establishment of Branch Offices
Article 20 provides that law firms may set up branch offices subject to review and approval by local judicial authorities of the province (autonomous region/municipality) where the branch office is to be set up. The parent law firm should assume liabilities for their branch offices.
d) Alteration and Termination of Law Firms
Article 21 states that law firms should report any alteration of name, location, articles of association and partnership or dissolution to the original approval authorities.
3. Internal Management
Article 23 states that lawyers should undertake business through their law firm, which should sign a written contract with their clients, charge them fees in compliance with state regulations, and record the fees faithfully into books.
Article 24 states that law firms and lawyers should not engage in acts of unfair competition such as defaming other lawyers or paying commissions on referrals.
4. Transformation of Law Firms
Law firms are undergoing reforms aimed at severing any links with government departments. According to a State Council notice [Guofaban 2000 No. 51] on the separation of intermediary organizations engaged in economic certification from government departments and a Ministry of Justice notice on the separation of law firms and legal counseling institutions from government offices, the following types of law firms should sever their links with the government:
- State-funded law firms that have already achieved a balance of payments;
- Law firms affiliated with non-profit institutions, enterprises or social organizations;
- Legal counseling service providers established with approval of judicial authorities and affiliated with government offices, non-profit institutions, enterprises or social organizations.
After severing ties with government offices, these law firms should be transformed into partnership or cooperative law firms no longer affiliated with administrative or institutional entities. They will no longer enjoy privileges associated with ranking government offices. State-funded law firms that have not yet realized a balance of payments and which are still dependent upon state subsidies will not participate in the separation program.
This program was completed before October 31, 2000.
The definition and disposal of state assets were based on the principle of "whoever invests owns the property." While ensuring the integrity of state assets, the policy takes into account assets formed by legal professionals with their intellectual work.
Business, Rights and Duties of Practicing Lawyers
Article 25 of the Lawyers Law provides that lawyers may engage in the following businesses:
- Be legal counsels at the request of citizens, legal entities and other organizations;
- Represent clients and participate in lawsuits at the request of parties to civil and administrative cases;
- Provide legal counseling at the request of criminal suspects and file complaints, lawsuits or applications for obtaining a guarantor while awaiting trial on behalf of clients; act as defense attorney at the request of the suspect, the accused or the court; act as the advocate and participate in lawsuits at the request of private prosecutors, victims or their next-of-kin relatives in public-prosecution cases;
- File complaints on behalf of clients;
- Participate in mediation and arbitration at the request of clients;
- Provide legal services at the request of clients who are not parties to a lawsuit; and
- Provide legal counseling, draft lawsuit documents and other legal documents.
2. Rights and Obligations of Lawyers
According to the Lawyers Law, the Criminal Procedure Law, the Civil Procedure Law, the Administrative Procedure Law and other regulatory interpretations, lawyers enjoy the following rights and assume the following obligations.
- Investigation. Article 31 of Lawyers Law provides that when handling legal cases, lawyers, subject to permission by relevant entities or individuals, investigate them for fact-finding purposes.
- Access to documents and files. The Criminal Procedure Law provides that the defense attorney may, from the day the procuratorate reviews a lawsuit, access, transcribe or copy judicial documents and technical appraisement documents of the case; they may also, from the day the court handles the case, access, transcribe or copy factual documents used in the case. Article 30 of the Lawyers Law provides that lawyers participating in lawsuits may, in compliance with procedural law, access documents related to the case.
- Meet and communicate with persons with limited personal freedoms.
- Appear in court and participate in lawsuits.
- Refuse to defend and represent any client.
- Lawyers' corporal rights are inviolable.
- Abide by the Constitution and laws and observe codes of ethics and professional discipline;
- Defend and represent clients unless circumstances require otherwise;
- Provide legal aid;
- Maintain confidentiality. Article 33 of the Lawyers Law states that lawyers should maintain state secrets and commercial secrets known to them in the practice of law and they should not reveal the privacy of their clients;
- Refrain from accepting special cases. Article 34 of the Lawyers Law states that lawyers should represent both parties to a dispute at the same time. Article 36 provides that lawyers who have served as judges and prosecutors should not represent or defend clients within two years of retirement from the court or procuratorate;
- Refrain from representing clients in private;
- Refrain from profiting from parties to a dispute by taking advantage of the convenience of legal service or accept money or gifts from clients;
- Refrain from meeting judges and prosecutors in violation of rules;
- Refrain from giving gifts to or bribe judges, prosecutors, arbiters and other related personnel, or prompting or instigating their clients to bribe;
- Refrain from hampering testimony giving. Article 35 of the Lawyers Law provides that lawyers should not engage in perjury, hide facts or threaten or prompt others to commit perjury, hide facts or interfere in the legal collection of evidence by the other party;
- Refrain from disturbing the order of a court of law or an arbitration tribunal.
1. Nature of Bar Associations
Clause 1, Article 37 of the Lawyers Law states, "Bar associations are non-governmental organizations enjoying the status of legal entities. They are the self-disciplinary bodies of lawyers."
Status of bar associations: Judicial authorities instruct and supervise bar associations.
2. Setup of Bar Associations
Clause 2, Article 37 states that a China National Bar Association will be established at the national level and local bar associations set up at provincial (autonomous regional/municipal) levels. Cities with different districts may set up local bar associations if necessary.
3. Relations Between Bar Associations and Lawyers
Clause 2, Article 39 provides that lawyers must join a local bar association. Lawyers who are members of a local bar association are also members of the national bar association. In accordance with the constitution of the bar association, members enjoy rights and perform duties accordingly.
4. Responsibilities of Bar Associations
Article 40 of the Lawyers Law states that bar associations should perform the following duties:
- Ensure legal practicing for lawyers and safeguard their lawful rights and interests;
- Summarize and exchange experiences among lawyers;
- Organize legal training programs;
- Publicize, inspect and supervise lawyers' code of ethics and professional discipline;
- Organize lawyers to undertake international exchanges;
- Arbitrate disputes arising from the practice of law;
- Other duties as specified in law.
Bar associations should reward or penalize lawyers in accordance with their constitution or bylaws.
Code of Ethics, Professional Discipline and Penalties for Lawyers
1. Code of Ethics
According to the Code of Ethics and Professional Discipline for Lawyers adopted on October 6, 1996 by the China National Bar Association, lawyers should:
- Always be client-oriented;
- Be faithful to their code of ethics, safeguard the legality of the state and social justice;
- Be honest and trustworthy, providing legal assistance to clients dutifully;
- Respect each other and compete fairly;
- Be clean and maintain self-discipline;
- Be loyal to the legal profession and maintain the reputation of lawyers.
2. Professional Discipline
The above-mentioned Code of 1996 imposes the following disciplines on lawyers:
- Disciplines at the workplace: lawyers should not charge fees exorbitantly;
- Disciplines during action and arbitration;
- Disciplines governing lawyers' relations with their clients and the defendant;
- Disciplines governing relations among lawyers themselves.
3. Penalties for Lawyers
The Ministry of Justice on October 22, 1992 published penalties for lawyers who breach their code of ethics and professional discipline.
a) Main provisions on penalties:
- Suspension of business;
- Disqualification of lawyers.
b) Enforcement body and procedures
Judicial authorities above prefecture, city and county level should be the enforcement body. Legal disciplinary committees should be established within those judicial authorities to enforce penalties. Members of the committee should include practicing lawyers, lawyers' associations and judicial personnel.
Procedures for enforcing penalties:
- Submission and review of proposal to mete out penalty;
- Appraisal of the penalty measure;
- Enforcement of penalty.
Definition and Types of Mediation
Mediation is an effort by a third party to encourage parties to a dispute to voluntarily reach an agreement to resolve their dispute.
2. Types of Mediation
There are currently four types of mediation practices in China:
- Civil mediation: Mediation by People's Mediation Committees outside the court.
- Judicial mediation: Mediation by a court of law in civil and economic disputes and minor criminal cases inside the court. For marital cases, inside-court mediation is a necessary procedure. Whether or not to seek judicial mediation is for litigants to decide. Mediation is not a necessary procedure. A court's mediation document is as valid as its verdict.
- Administrative mediation: This can be outside-the-court mediation by grassroots governments such as a township government in ordinary civil disputes, or outside-the-court mediation by government departments in compliance with legal provisions in specific civil disputes, economic disputes or labor disputes.
- Arbitration mediation: Mediation by arbitration bodies in arbitration cases. Arbitration is called upon only if mediation fails to resolve the differences. This is also an outside-the-court mediation.
1. Nature, Mission and Principles
This system originated in ancient China and took shape in the 1930s when China was locked in a war against Japanese aggression. It was formalized in the early 1950s when the People's Republic was founded.
Article 111 of the Constitution of the People's Republic of China states, "People's Mediation Committees are a working committee under grassroots autonomous organizations - Residents Committee, Villagers Committee - whose mission is to mediate civil disputes."
Essentially, these committees are a supplement to the judicial system, an autonomous arrangement for citizens to resolve their own disputes. It is a legal practice with Chinese characteristics.
Article 5 of the Regulations for the Organization of People's Mediation Committees states, "The mission of People's Mediation Committees is to mediate civil disputes and, through such mediation, publicize laws, regulations, rules and policies and educate citizens to abide by laws and respect universally accepted morals."
c) Basic principles
- Reasonable and legal;
- Voluntary, equal;
- Respect for the right to sue.
2. Form of Organization
a) People's Mediation Committee
The Constitution and laws provide that the People's Mediation Committees are non-governmental organizations under Villagers Committees and Residents Committee for mediating civil disputes. They operate under the guidance of grassroots government and courts.
b) People's Mediators
According to law, People's Mediators should have the following qualifications:
- Close to the people;
- Enthusiastic about mediation;
- Knowledgeable about legal and policy issues;
- Be adult citizens
c) Judicial Assistants
According to the Regulations for the Organization of People's Mediation Committees, People's Mediation Committees work under the guidance of grassroots governments and courts. Grassroots governments are set up at the township level. Judicial assistants are responsible for helping People's Mediation Committees in their mediation work.
Grassroots courts supervise mediation committees through their tribunals. They invite members of the committee to participate in court-mediated cases, audit trials, help analyze cases and exchange experiences.
a) Mediation procedures
- Accept a dispute;
- Prepare for mediation;
- Reach agreement;
- Close of mediation
b) Ways of mediation
Mediation can be direct, open, common or joint.
Mediation techniques include role-modeling, reasoning and resort to law.
People's Mediation Committees should not just passively mediate disputes; rather, they should actively seek to prevent and reduce civil disputes and prevent such disputes from escalating.
Article 35 of the Law on Civil Procedures of the People's Republic of China states, "When handling civil cases, courts of law should, based on consent of the litigants, mediate the cases on the merits of the cases themselves."
1. Ways of Mediation
Article 86 of the above-mentioned law provides that when mediating cases, courts may be presided over by a sole judge or by a collegiate panel and mediation should take place on the spot as much as possible. Courts may notify, in a simple way, the litigants and witnesses to appear in court.
Article 87 also specifies that courts may invite relevant entities or individuals to assist, and the invited entities or individuals should assist the courts in mediation.
2. Mediation Agreement
Article 88 stipulates that an agreement between the litigants must be arrived at through the consent of all parties and should not be imposed on them; the contents of the agreement should not contravene the law.
3. Mediation Document
a) Generation of the mediation document
Article 89 of the Civil Procedure Law says that if an agreement is reached between the parties after mediation, the court should prepare a mediation document, which should specify what the dispute is about, the facts, and the result.
The mediation document should be signed by the judge and the clerk and affixed with an official seal of the court. Then, it should be delivered to the parties. It becomes legally binding after the parties sign it.
b) When a mediation document is not required
Article 90 of the Civil Procedure Law says that the court may choose not to prepare a mediation document under any of the following circumstances:
- A divorce case that ends up with reunion through mediation;
- Adoption cases where the relation of adoption is sustained through mediation;
- Cases that are enforceable immediately;
- Other cases where a mediation document is not required.
Agreements for which a mediation document is not needed should be recorded in the court log and will become legally binding upon signature of the parties, judges and the clerk.
4. Failure of Mediation
Article 91 of the Civil Procedure Law provides that a court of law should adjudicate in a timely fashion if mediation fails to produce an agreement or if one party retracts before the mediation document arrives.
Public Notary System
Public notaries are persons accredited by the state to witness civil matters for legal purposes. In the past, public notaries were state offices representing the state in witnessing legal relations in civil matters. State notary offices, at the request of applicants, notarize legal acts and the truthfulness and legality of legal documents and facts in order to protect public property and safeguard the lawful rights and interests of citizens. Since October 1, 2000, the Ministry of Justice has implemented a plan to reform the notary system. Under the new scheme, public notary offices are no longer administrative bodies; rather, they are non-profit entities with a legal-person status that independently conduct notary business to meet market demand and assume full responsibility for their operations. In the future, the state will no longer approve the establishment of public notary offices as administrative bodies. Public notaries will be recruited openly through examinations administered by the Ministry of Justice.
Setup of Public Notary Offices
Public notary offices are set up in municipalities directly under the central government, counties (autonomous counties), and cities. Subject to approval from judicial authorities of provinces, autonomous regions and municipalities, districts of cities may also set up public notary offices. All the offices are independent of each other.
Each office should have a director and a deputy director who should be notaries themselves.
Scope of Business
- Notarize civil legal acts such as contracts, trusts, wills, gifts, division of property, and adoption of children;
- Notarize facts that amount to civil legal acts such as birth, death, marriage, divorce, kinship, identity, degree, and experience;
- Notarize documents that amount to civil legal acts such as authenticity of signatures and seals on certificates, consistency of copies of certificates, excerpts, translations and photocopies with the originals;
- Notarize the enforceability of creditor documents such as repayment agreements and contracts on recovery of debts;
- Auxiliary business, such as preservation of evidence, maintenance of wills or other documents, drafting notary documents on behalf of clients, notarizing the opening of lottery draws, etc.
Validity of Contracts
Notarized documents are good for the following four purposes:
- Evidence. Article 67 of the Civil Procedure Law states, "Legal acts, legal facts and documents that have been notarized through legal procedures should be regarded as a basis for establishing facts, except where opposing evidence is sufficient to overrule the notarized documents."
- Enforceability. At present, this is limited only to the recovery of debts and goods. Liability documents notarized by public notaries are enforceable; if one party fails to comply, the other party can apply to the local grassroots court that has jurisdiction for enforcement.
- Legality. This means certain legal acts take effect and become legally binding only after they are notarized. These include adoption of children and marriage registration between Chinese citizens and foreigners.
- Extraterritoriality. Notarized documents are legally valid outside China. This is an extension of the inherent legal effect of notarized documents abroad. According to international practice, notarized documents sent by Chinese citizens and legal entities for use abroad can take legal effect and be accepted by the host country only after they are certified by the Chinese Foreign Ministry and Foreign Affairs Offices of the provinces, autonomous regions and municipalities or foreign embassies or consulates in China.
Public notary offices and persons applying for notarization should observe the following procedures:
1. Application and Acceptance of Applications
Except for wills and adoption, which require the applicant to go to the public notary office in person, citizens or legal persons can authorize an agent to handle the notarization procedures on their behalf. Applications should be filed with a public notary office that has jurisdiction and an application form should be filled out and be affixed with a signature or seal. Applications should come with other supporting documentation such as ID, letter of authorization, documents to be notarized, property ownership certificates or other materials. The public notary office should make a preliminary decision whether to accept the application or not upon receipt of application documents.
An important link in notarization, public notaries should carefully review the number of applicants, identity, qualifications, capability of civil acts, intentions of applicants and applicable rights. They should also verify whether the acts, facts or documents to be notarized are true and legal, whether the documents to be notarized are complete, whether the wording is accurate, and whether the signature or seal is complete.
Public notaries should produce a public notary certificate for qualified applicants.
4. Special Procedures
These refer to procedures required for special types of public notarization, such as tendering and bidding, opening of lottery draws and auction bids. In such cases, public notaries should be at the scene themselves and read a public notary statement regarding what is truthful and legal. Furthermore, they should produce a notary document and deliver it to applicants within seven days of notarization.
Applicants who object to decisions given by a public notary office not to accept an application, refuse to notarize or withdraw a public notary document may apply within a specified period of time to the judicial authorities for reconsideration; those who object to the reconsideration decision may file a suit to a court of law within the specified period of time.
System for Judicial Administration
The judicial administration is an important component of the state apparatus and a major functional department of the government. It is responsible for administering judicial execution and managing laws and regulations.
Organizationally, the Ministry of Justice supervises all the judicial departments across the country; local judicial authorities are subordinate to superior judicial authorities and to the government at the same level.
Main responsibilities of judicial authorities include:
1. Manage Reform-through-labor and Reeducation-through-labor Institutions
- Organize and lead reform-through-labor and reeducation-through-labor work;
- Set the location of jails and reformatories and placement of prisoners and inmates;
- Direct, supervise and inspect prisons and reformatories and accurately implement policies and guidelines for reform- and re-education-through-labor work;
- Propose or review decisions concerning reform- or re-education-through-labor;
- Draft and review long-term plans and annual plans;
- Direct jails and reformatories to improve management;
- Sum up and promote advanced practices in reform- and re-education-through-labor;
- Inspect and handle major incidents that take place at jails or reformatories;
- Mete out disciplinary penalties for wardens who violate laws or discipline;
- Manage, inspect, train and promote officers at jails and reformatories.
2. Regulate Lawyers
- Supervise and direct lawyers, law firms and bar associations;
- Review constitutions of bar associations;
- Handle applications for taking part in lawyers qualification examination and administer the examination;
- Confer lawyer's qualifications and licenses;
- Determine the setup of law firms and the development of lawyers;
- Draft rules for legal assistance;
- Penalize lawyers who breach professional discipline, including revoking qualifications of those who are seriously incompetent;
- Develop rules for lawyers to charge fees;
- Sum up and promote good practices of lawyers;
- Draft development plans for the legal profession.
3. Regulate Public Notaries
- Supervise public notaries;
- Determine the setup of public notary offices, the staffing, organization and examination of public notaries;
- Appoint and remove the director and deputy director of public notary offices;
- Supervise fee-charging and expenditures by public notaries;
- Perform disciplinary inspections of public notaries;
- Sum up and promote good practices of public notaries.
4. Manage Training of Judicial Officials
- Draft guidelines for training judicial officials and develop training plans;
- Direct the operation of political and law schools, including training of faculty and developing of textbooks;
- Sum up and promote good practices in training.
5. Manage Legal Education
- Set the direction of legal education, draft development plans, coordinate legal education nationwide, and collaborate with the Ministry of Education in supervising legal education across the country;
- Appoint and remove leading officials of political and law schools affiliated with the Ministry of Justice, review and approve capital expenditures and major expenditures of those schools, determine the setup of programs, enrolment and placement of graduates;
- Take the lead in developing textbooks for legal education across the country.
6. Direct People's Mediation Committees
- Manage the organizational, ideological and operational buildup of People's Mediation Committees and direct them in their mediation work;
- Study causes, characteristics and patterns of civil disputes and propose ways to prevent such disputes;
- Publicize policies, laws and ethics;
- Sum up and promote good practices in mediation.
7. Promote Public Awareness of Rule of Law
This includes collaboration with relevant departments in launching publicity campaigns, introducing legal courses into schools and publishing legal periodicals and books.
8. Supervise Foreign Affairs of Judicial Departments.
The Ministry of Justice supervises all foreign affairs of the country's judicial organs. This entails determination of direction, scope and forms of foreign affairs and logistical arrangements; sending delegations to visit abroad and attend international conferences; receiving foreign visitors and briefing them on China's legal developments; conducting international legal assistance.
9. Supervise Theory-building and Research in Judicial Administration
- Define the organizational setup and missions of research institutions in the judicial apparatus;
- Draft laws, regulations and rules concerning judicial administration;
- Study issues related to judicial administration, crimes (particularly juvenile delinquency).
State Compensation System
The state, under this system, is required to compensate for damages it has caused through infringement of citizens' rights. Article 2 of the Law on State Compensation, passed on May 12, 1994 by the Eighth National People's Congress states, "Citizens, legal persons or other organizations have the right to seek compensation from the state if state organs and office holders abuse their power and infringe upon their lawful rights and interests and have caused damages thereof."
The State Compensation Law specifies two kinds of compensation: administrative and criminal.
The state should assume the responsibility of compensation if government offices or their staff abuse their power and infringe upon the lawful rights and interests of citizens, legal persons or other organizations and have caused damages thereof. Administrative compensation is the primary component of state compensation.
1. Scope of Compensation
Articles 3 and 4 of the State Compensation Law specifies the scope of compensation:
- Unlawfully detain citizens or adopt unlawful administrative, forceful measures to restrict citizens' corporal freedom;
- Unlawfully incarcerate citizens or adopt other measures depriving citizens of their corporal freedom;
- Use violent means such as battering or induce others to use violent means such as battering that has caused physical injuries or death to citizens;
- Abuse weapons or police devices and have caused physical injuries or death to citizens;
- Other unlawful acts that have caused physical injuries or death to citizens;
- Abuse administrative penalties such as imposing fines, revoking licenses or permits, ordering suspension of business or confiscation of property;
- Abuse administrative measures such as sequestrating, detaining or freezing property;
- Abuse government regulations in expropriating property or levying fees;
- Other unlawful acts that have caused property damages to citizens.
Article 5 of the State Compensation Law also specifies a number of situations where the state does not assume the responsibility for compensation:
- Personal acts by government employees unrelated to the exercise of their duties;
- Damages caused by acts committed by citizens, legal persons or other organizations themselves; and
- Other situations as provided for in the law.
2. Compensation Body
The State Compensation Law provides for the following ways for defining responsibility of compensation:
- If damage is done by a government office or its staff, then the office should assume the responsibility for compensation;
- If damage is done by more than two government offices, then all the offices involved should jointly assume the responsibility for compensation;
- If damage is done by organizations under authorization of laws and regulations, then the authorized organizations should assume the responsibility for compensation;
- If damage is done by organizations or individuals authorized by government bodies in the exercise of authorized powers, then the authorizing bodies should assume the responsibility for compensation;
- If the government body responsible for compensation no longer exists, then its succeeding body should assume the responsibility for compensation; if no such succeeding body exists, then the administrative body that eliminates the body responsible for compensation should assume that responsibility;
- If damage is awarded by an administrative reconsideration body, then the original body that causes the damage should be held responsible for compensation; however, if the reconsideration decision has aggravated the damage done, then the reconsideration body should assume responsibility for compensation for the aggravated part.
Claimants of administrative compensation should first file their claim with the administrative body responsible for compensation; they may also raise their claim while applying for administrative reconsideration or filing an administrative suit. They should not directly file a suit without first going through the administrative body responsible for compensation.
Criminal compensation applies when the judicial authorities wrongly detain or arrest citizens or wrongly adjudicate cases.
1. Scope of Compensation
Articles 15 and 16 of the State Compensation Law specifies the scope of criminal compensation as follows:
- Wrongly detain persons without incriminating facts or without facts proving that the persons are prime suspects;
- Wrongly arrest persons without incriminating facts;
- Persons who are pronounced innocent in a judicial review but who have already served their sentence as ruled in the original trial;
- Extort a confession through torture or cause physical injuries or death to citizens through battery by judicial personnel or others at their instigation;
- Abuse weapons or police devices and have caused physical injuries or death to citizens;
- Abuse administrative measures such as sequestrating, detaining, freezing or recovering property;
- Persons who are pronounced innocent in a judicial review but who have already paid the fine and whose property has already been confiscated as ruled in the original trial.
Article 18 of the State Compensation Law also specifies that the state shall not assume the liability for criminal compensation under any of the following circumstances:
- Persons who have been detained or penalized for purposeful perjury or forgery of other incriminating evidence;
- Persons who, under Articles 14 and 15 of the Criminal Law, should not assume criminal liability but who have been detained;
- Persons who, under Article 11 of the Criminal Procedure Law, should not be criminally prosecuted but who have been detained;
- Acts committed by individuals unrelated to the exercise of their duty as personnel of the state investigative, procuratorial, judicial or jail authorities;
- Injuries caused by citizens themselves through self-injury or deliberate self-hurt;
- Other situations as provided for in the law.
2. Compensation Body
The State Compensation Law provides for the following ways for defining responsibility of compensation:
- If damage is done to citizens, legal persons or other organizations by government offices or their staff when exercising investigative, procuratorial, judicial or jail management duties, then the offices should assume the responsibility for compensation;
- If citizens are wrongly detained without incriminating facts or without facts proving that they are prime suspects, then the body that made the detention decision should assume responsibility for compensation;
- If citizens are wrongly arrested without incriminating facts, then the body that made the arrest decision should assume responsibility for compensation;
- For persons who are pronounced innocent in a re-trial, the original court that gave the ruling already in effect should bear the responsibility for compensation; for persons who are pronounced innocent in the second instance, the court that gave the first-instance ruling and the body that made the arrest decision should jointly bear responsibility for compensation.
Claimants of criminal compensation should first file their claim with the body responsible for compensation; they may also apply to higher authorities for administrative reconsideration within 30 days of expiry of the term if compensation is rejected after expiry of the term, or if they object to the amount of compensation.
A compensation committee composed of three to seven judges should be set up in a court above the intermediate level.
Compensation-paying bodies, reconsideration bodies or courts shall charge no fees on compensation claimants.
State compensation is paid in monetary form. Whenever possible, recovery or reinstatement of property should be implemented. State compensation is calculated in the following ways:
- For citizens whose personal freedom has been infringed, the amount of daily compensation is calculated on the basis of average daily wage for workers in the preceding year;
- For citizens whose life and health rights have been infringed, the amount of compensation should be calculated in the following ways:
a) For those who sustained physical injuries, the compensatory body should pay their medical fees and loss of income caused by absence from work. Daily compensation for the loss of income is calculated on the basis of the average daily wage for workers in the preceding year, with the maximum being five times the average annual wage for workers in the preceding year;
b) For those who lost partial or full working capabilities, the compensatory body should pay their medical fee and a disability compensation, the amount of which depends on the degree of the disability. The maximum for partial disability should be 10 times the average annual wage for workers in the preceding year;
c) For those who lost all their working capabilities, the maximum should be 20 times and living expenses should be paid for their dependents who are unable to work;
d) For those who died, the compensatory body should pay death compensation and a funeral fee, with the maximum being 20 times the annual wage for workers in the preceding year. In addition, it should also pay living expenses for dependents of the victims.
3. Compensation for damages done to the property of citizens, legal persons or other organizations should be paid in the following ways:
- Return of property in the case of imposition of fines, recovery or confiscation of property, or expropriation of property or collection of fees in violation of regulations;
- Remove the sequestration, detention or freezing action on the property if it is wrongly sequestrated, detained or frozen; if property is damaged or lost, restore it to original shape if possible; if not, compensate for the damage;
- If the property due to be returned is damaged, restore it to its original shape if possible; if not, compensate for the damage;
- If the property due to be returned is lost, compensate for the loss;
- If the property is already auctioned off, pay the claimant the proceeds from the auction;
- If a business owner is wrongly revoked of his license or ordered to suspend his business, compensate for his current expenses incurred during the suspension of business;
- If other damages are done to an individual's property, compensate for the direct losses arising thereof.
Compensation expenditures should be budgeted for by governments at all levels.
Article 32 of the State Compensation Law provides for the validity of state compensation: "Claimants should file their appeal for state compensation within two years beginning from the date when the acts of government bodies and their staff in exercising their duties are established as unlawful, not including the days of detention."
Article 33 of the same law specifies how foreign-related state compensation is calculated: "This law applies to foreign individuals, enterprises and organizations within the territory of the People's Republic of China. Where the home country of the foreign individual, enterprise or organization does not protect or limits the rights to state compensation of individuals, enterprises or organizations of the People's Republic of China in that country, the People's Republic of China will reciprocate that policy toward individuals, enterprises or organizations of that country." This provision reflects both China's respect for the rights of foreign individuals, enterprises and organizations and its sovereignty and dignity.
Articles 14 and 24 of the State Compensation Law provides for the right of recovery for the state in administrative and criminal compensation: "Compensatory bodies, after paying for the damages or losses, will recover, in part or in full, the amount of compensation from the individuals or authorized organizations or individuals that are responsible, whether purposefully or otherwise, for the damage or loss." This includes the following situations: 1) Situations as defined in Clauses 4 and 5 in Article 15 of this law; 2) Persons who are pronounced innocent in a re-trial in accordance with the judicial review procedures, but for whom the original ruling of fines or confiscation of property has already been carried out.
Under the system of legal assistance, the state, throughout the legal process and at all levels, provides legal assistance, through reduction or exemption of fees, to the underprivileged of society who have difficulty safeguarding their own rights through the normal legal means, because of economic problems or otherwise. As a major safeguard to realize social justice and judicial parity and to protect civil rights, legal assistance occupies a very important position in a country's judicial system.
Article 34 of the revised Criminal Procedure Law of the People's Republic of China, passed on March 17, 1996, states, "For public-prosecuted cases, the court can designate a lawyer who provides legal assistance to defend the accused if the accused fails to appoint a defense attorney for economic or other reasons. If the accused fail to appoint a defender because they are blind, deaf, mute or a minor, the court should designate a lawyer who provides legal aid to defend the accused. If the accused receives a death penalty, but fails to appoint a defense attorney, the court should designate a lawyer who provides legal aid to defend the accused." This is the first time in the history of Chinese legislation that legal assistance was written into law.
The Lawyers Law, passed on May 15, 1996, provides more specifics with regard to legal assistance. Chapter 6 of the law says, "Citizens who need legal assistance but cannot afford to pay for lawyers' fees, may, in accordance with state regulations, seek legal assistance in matters such as supporting the elderly, workplace injuries, criminal lawsuits, state compensation, and the granting of pensions for the disabled or survivors of an accident. Lawyers should assume the responsibility of legal assistance and dutifully help those in need in accordance with State regulations. Specific rules for legal assistance will be worked out by the State Council judicial administration and submitted to the State Council for approval." These provisions define the scope of legal assistance and require lawyers to provide legal assistance. In addition, they lay the foundation for future legislation on legal aid.
At present, China has formed a four-tier legal assistance structure:
1. At the national level, a Center for Legal Assistance has been created under the Ministry of Justice to supervise and coordinate legal assistance across the country. This center, created on May 26, 1997, is responsible for supervising legal assistance, drafting regulations and rules, mapping out medium- to long-term plans and annual plans, coordinate legal assistance work nationwide, and conducting exchanges with foreign legal-aid groups and individuals.
On the same day, the China Legal Aid Foundation was created to raise, manage and use the funds, publicize the legal aid system, and promote judicial justice. Funding comes from donations and sponsorships given by domestic organizations, enterprises and individuals; interest; proceeds from bond and stock trading.
2. Legal-aid centers have also been established in provinces (autonomous regions) to supervise and coordinate legal-aid work in their respective jurisdiction.
3. The next tier is prefectures and cities where the legal-aid centers perform a dual duty: administer and implement legal-aid programs in their jurisdiction.
4. Finally, where conditions permit, legal-aid centers are also set up in counties and districts; where conditions do not permit, the Judicial Bureau of the counties and districts should be responsible for legal aid.
Applicants for legal aid should meet two conditions: that have sufficient reason to prove they need legal assistance to safeguard their lawful rights and interests; and that they indeed cannot afford to pay, in part or full, the legal fees.
Legal assistance is rendered by three groups of people: lawyers, public notaries and grassroots legal professionals. Lawyers provide procedural aid (including defense for criminal cases, representation for criminal cases, and representation for civil procedures) and non-procedural aid; public notaries provide notarization assistance; grassroots legal professionals provide legal counseling, document drafting and general non-procedural aid.
In China, legal aid is funded by three sources: government, social donations and volunteering. Though still in an embryonic stage, China's legal-aid system as a major legal institution will surely play an important role in realizing the rule of law in China, safeguarding fundamental human rights and promoting social stability.
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