Speaking at Tsinghua University, Beijing: Current Issues in US-China Cross Border Litigation

Of all my experiences living, working, and studying in China, my most useful (and most enjoyable) was the time I spent studying at Tsinghua Law School in Beijing, regarded as one of the top universities in China. (Hu Jintao and Xi Jinping are fellow alums!) The LLM program covered all aspects of Chinese law, from corporate to criminal, civil procedure to contracts. I continue to draw upon my Tsinghua education in my practice today, particularly in how to interpret and research Chinese law.

This week, I am proud to return to Tsinghua to share about my practice with the current LLM students. As a student, I remember being uncertain how I could use my China law education. I hope my experience gives the students an idea of the possibilities that exist in today's market, from securities litigation to products liability, discovery disputes to anti-corruption compliance. There's so many opportunities for attorneys to assist businesses as they establish and grow their operations in China.   

  

Speaking on Developing a China Practice 101: January 17, 2013

Hello Chinaful friends and Happy New Year! It's been some time since my last post, but as of today, Chinaful is returning to regular programming. And just in time to share with you all about a panel I am speaking at this Thursday.  If you are an attorney interested in developing a China practice, join us January 17, 2013 at Foley and Lardner in Downtown LA.  The panel is diverse, with attorneys and attorney recruiting professionals, both transactional and litigation practicioners, and all stages of careers.  I'll be sharing the perspective of someone who has focused on building a litigation practice to serve Chinese clients, both through studying Chinese Law at Tsinghua in Beijing and working almost entirely on matters involving a Chinese party.  I hope to see you there. 

Chinese Government 101: Behind China's Courts

Today I'm returning to the Chinese Government 101 series and that cliffhanger I left for Chinaful readers in this post.  Last installment, I detailed the structure of China's judiciary, its appeals system and its requirements for judges. Today I cover what happens inside China's courts, or more accurately, behind them.  

In a US courtroom, the presiding judge makes the final rulings.  That ruling may be appealed to a higher court, but otherwise it stands. Not so in China. In China, the presiding judges are only the face of the court and not the only decisionmakers of the case. Instead, adjudicate committees resident in each people's court are the final arbiters. These committee members don't necessarily sit in during hearings or trials - instead, the responsible judge of the originating panel often issues either an oral or written report regarding the issues in the case. Further, their decisions are not made public, or even revealed to the parties in all cases. And the committee's ruling is not a recommendation to the presiding judges, it is the final judgment.  

Adjudicative committees play a central but not clearly articulated role within the Chinese judiciary.  The Chinese saying “Verdict first, trial second,” represents the function of adjudicative committees as the decisive judicial organ, with the corresponding trial as secondary, or sometimes even a sham, in the judicial process. The committee of a court is composed of various members of the court’s leadership. Members of the adjudicative committee of local courts are appointed and dismissed by the Standing Committee of the People’s Congress at the equivalent local level. However, all appointments are also vetted by the Communist Party of China.

{China's Adjudicative Committees: A look behind the court's door}

Not every case in a court is considered by the adjudicative committee, and my understanding from talking with former Chinese judges and attorneys is that the adjudicative committee can participate in any given case at varying degrees.  Cases are transferred from the assigned court to the adjudicative committee for several reasons.  Typically, a case is transferred because the case is considered “major” (zhongda) or “difficult” (yinan) and guidance is considered necessary.  For example, death penalty, corruption, or cases that will have an impact on local or national economy.  Cases involving foreign business interests are also considered major, and likely to have input from an adjudicative committee.  

Randy Peerenboom, a renowned China law expert and my law note advisor, wrote in China’s Long March Toward the Rule of Law (2002) that politically sensitive cases are the genre most likely to be taken under supervision by a court’s adjudicative committee.  Such a case may be sensitive because it involves a prominent political figure or political dissidents as well as organizational conflicts involving questions of the hierarchy of government organs (i.e., a suit against the executive, or a case which stretches the boundaries of judicial powers).

Interestingly, the adjudicative committee typically becomes involved post-decision, when approval from the committee is sought prior to issuance of a final judgment. Transfer of a case is not necessarily within the control of the assigned panel - the committee may become involved by force. Generally, however, the presiding judge is very deferential to the committee and eager for its input to bless the decision and remove the chance for political consequence later if the decision is not viewed favorably by higher government. Likewise, a local adjudicative committee often requests advice from higher adjudicative committees, which to some degree obviates the purpose of appeal.  

At first glance the role of the adjudicative committee seems odd, but many supporters of the system claim it provides greater consistency to court decisions.  What do you think about this system?  

Chinese Government 101: China's Judiciary Framework

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.

{Photo of a Beijing Courthouse}

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.

{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...