Before rendering a judgment, a Chinese judge shall undergo review and approval by his/her superiors, who haven't tried the case. This practice has existed in China until recently, when China’s Supreme People Court has ruled out the practice in part in the latest round of judicial reform (2014-2017), as an indispensable component of the “judicial accountability system”. Nevertheless, Chinese courts’ operational structure, as embodied in the practice, has not been fundamentally changed.
1. Review and approval of judgments
The system of review and approval of judgments means that after the judge, who hears the case, drafts a judgment or a ruling, he or she shall first report to the director of his or her division and, if needed, the president of the court in charge of the case. Only after their review and approval can the judge publish such document as a formal judgment or ruling and serve such document on the parties.
The president or the director usually has such authority: first, they can review the facts, evidence, laws, adjudication results, and words expressions in the draft judgment, and have the right to modify what they consider to be wrong or inappropriate, or to request the judges to re-write the judgment; secondly, after reviewing the draft documents, they can decide whether such document can be served as a formal judgment on the parties.
In other words, because the president or the director reviews the content of the draft judgment, the president or the director has actually shared the judge’s power of adjudication in specific cases.
2. Reasons for the practice
Since the establishment of the People's Republic of China (PRC), Chinese courts have begun to implement the practice of judgments review and approval, and the practice has continued to the present.
There are two reasons why this practice still exists:
First of all, according to the PRC's Constitution, China's judicial independence refers to the trial independence of the court, rather than the trial independence of the judge. Therefore, the judge's power of adjudication in specific cases is not completely independent, and other members of the court (especially the supervisors, including the president and the directors of the court) can share the judge's power of adjudication.
Secondly, for a long period after the PRC’s establishment, the professional competencies and ethics of Chinese judges are still not satisfactory. Therefore, the judgment review by an experienced president or director of the court can reduce or prevent the judge from rendering wrong or unfair judgments.
3. Doubts about this practice
In China's judicial reform, the practice of judgment review and approval has been doubted, including:
First, there is no legislation or rules in China that clearly stipulates this practice, so it is not a statutory procedure.
Second, this practice undermines procedural justice. The president or the director of the court does not hear the case in person and their understanding of the case just results from the written documents or statements. Therefore, the practice that they share the judge’s power of adjudication is inconsistent with the procedural justice.
Furthermore, this practice is inconsistent with the powers and responsibilities of the judge. As the judge is the person who signs on the judgment, the judge is responsible for the wrong or unfair judgment. However, even if the president and the director have substantially affected the content of the judgment, they do not have to bear any responsibility.
4. Reform of this practice
In 2014, the SPC issued the “Reform Outline of the Fourth Five-Year Reform for the People's Courts (2014-2018)” (人民法院第四个五年改革纲要 (2014-2018)), which is a programmatic document for the reform of Chinese courts in the next five years. The SPC stated in the document that it will reform this practice.
First of all, the SPC clearly supports this view, i.e., "It is an objective requirement of the judicial rules to let the person who hears the case in person make a judgment and to let the person who makes the judgment assume the responsibility". Therefore, the SPC will ensure that the judge who hears the case “expresses his or her own opinions independently” and "bears the responsibility arising from his or her own opinions and performance in the process of case handling".
Secondly, the SPC will “reform the judgment issuance system”, so that the judgment made by the judge hearing the case will no longer need to be reviewed and approved by the president and the director of the court.
Thirdly, the SPC still retains the president and the director's power to supervise significant, difficult and complicated cases. However, all the documents produced in their supervisory activities should be filed in the archives, so that the supervision itself is also recorded and subject to scrutiny.
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Contributors: Guodong Du 杜国栋 , Meng Yu 余萌
