The trial system refers to the court system governing the
establishment of courts, judges, and trials.
Organization and Responsibilities of 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.
1.
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:
- 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;
- Handle civil disputes and misdemeanors that do not need
trials;
- 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:
- 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.
- 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:
- 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.
2.
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:
- Try first-hearing cases involving crimes committed by
individuals above the division commander level.
- Try foreign-related criminal cases.
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- 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 Army 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.
3.The Supreme People's Court is located in Beijing, capital city of
China. 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.
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.
Organizational structure of the court system in China:
Judge System
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.
1.
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;
- 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 JD 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.
2.
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.
3.
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.
4.
Promotions
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.
5.
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.
6.
Other Provisions
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:
1.
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.
2.
Collegiate Panels
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.
3.
Judicial Committee
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
1.
Open Trials
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.
2.
Defense System
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.
3.
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.
4.
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.
5.
Challenge System
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.
6.
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.
7.
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.
8.
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.
