Chinese Government 101: China’s Judiciary Framework

by Courtney Gould Miller
Beijing 24 March 12, 2012

{Photo of a Beijing Courthouse}

Of the three branches of authority in the PRC, the judiciary is notably the least powerful and indeed subservient to the National People’s Congress and the administration. Nonetheless, I find China’s judiciary to be one of the most interesting topics of discussion.  Rule of law is one of the most popular ways for China to be evaluated by the West (I can’t count the amount of times I’ve been asked whether China even has laws, and whether the courts are real).  China’s judicial system is a recent effort to comply with these Westernized ideals of justice. Mediation in various forms, as well as petitioning government officials for leniency or favor, was the Chinese form of justice since ancient times.  In Communist China, these traditional ways co-exist with a modern judiciary modeled after the systems of the West.

The 1982 Constitution establishes a four-tier court system, with the Supreme People’s Court as the highest court for all of the P.R.C. with the exception of Hong Kong and Macau. The remaining three levels of the court system consist of “high people’s courts” at the level of provinces, autonomous regions, and special municipalities; “intermediate people’s courts” at the level of prefectures, autonomous prefectures, and municipalities; and “basic people’s courts” at the level of autonomous counties, towns, and municipal districts. The four tiers are supplemented by Courts of Special Jurisdiction such as the Military Court of China, Railway Transport Court of China, and the Maritime Court of China.

All judges in the P.R.C. judiciary system are divided into twelve levels, with the president of the Supreme People’s Court being the Chief Justice and the sole judge at Level 1, and those between Level 2 and 12 being labeled Justice, Senior Judge and Judge, respectively. The Chief Justice of the Supreme People’s Court is elected by the NPC for a term of five years with a maximum of two consecutive terms, though he or she may be removed for cause by vote of the NPC, or directly by the Standing Committee or the Supreme People’s Court itself. Vice presidents and general judges are appointed and dismissed by the Standing Committee of the NPC. The level of seniority in the spectrum is a result of the judge’s position, performance, professionalism and seniority. Judges in the People’s Court are not only charged with application of law and to obtain substantive justice, but also to follow ideological policy of the Chinese Communist Party. The 1995 Judge Law indicates a judge must, in addition to being a citizen of the People’s Republic of China, at least 23 years of age, and in good health, also support the Constitution of the People’s Republic of China and be in good political, professional and moral standing.

Beijing 23

{Inside a Beijing courtroom}

The courts’ powers are limited primarily to investigation and adjudication of cases through applying civil law to facts in civil, criminal, and administrative cases. Precedent does not carry any authority though it may be used by a judge as an exemplar. The power of judicial review of administrative action in accordance with the Constitution is also growing due to the enactment of the 1989 Administrative Litigation Law, though confined to the legality of certain concrete administrative action as opposed to abstract administrative actions such as “regulations, orders and other governmental documents with a legally binding effect.”

In the next Chinese Government 101 post, I’ll shed some light on how decisions are made within the court. Let’s just say it might not be as you expect…

Comments

For your next post, can I request that you explain the 最高人民院? (See here.)

;)

March 12, 2012 | Ah Q

Courtney, Thank you for the instruction of China's Judiciary framework !!

It refreshes me what I learned in my Chinese law school, Renmin School of Law on how our judiciary system works since the cases I have been practicing mainly focus on non-litigation, i.e. which is sort of irrelevant with courts or arbitrary tribunal, such as contracts, corporation stuff, investment. However,based on my litigation and arbitration experiences, I would say, it is a complicated and tough one, even merely from theoretical perspective. However, in practice, normally, most of the time, for lawyers,at least me, in order to provide efficient and effective legal service for our customers, just try to ignore the complication , and at the same time, try to simplify it to a way to do what we are requested to do by the relative authority without thinking or considering it too much. For it will be too overwhelming if we think about its complication while we apply it simultaneously. It is not easy though, because the complication itself is overwhelming. Moreover, in reality, the whole current legal system in China is complicated, including the administrative enforcement of law, like Courtney introduced in her blog, numerous "regulations, orders, other governmental documents with legal binding effects" from the State Council, various departments under the State Council, provincial governments etc also affect every aspect of daily life of Chinese.

March 15, 2012 | Diana Cui (崔雪梅)i

Thanks for your insight, Diana! When I'm in Beijing I look forward to discussing with you my upcoming post on the role of the adjudicative committees in Chinese courts - it is a fascinating aspect to the Chinese judicial framework that is truly unique.

March 15, 2012 | Courtney Gould Miller

@AhQ - Thanks for the picture, I love it! For non-Chinese readers, the picture shows a hair salon with the name "Supreme People's Hair Hospital." In fact, I wish I had posted that picture as part of the post itself. Thanks for your comment!

March 15, 2012 | Courtney Gould Miller

Enlightening.

March 23, 2012 | Susan

Thanks Susan, let me know if there's anything particular you would like to read more about.

March 30, 2012 | Courtney Gould Miller
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