Abstract
The responsibility of the court system in a country is to fulfill its judicial function as established by the country, which has become common sense. However, this is usually the standard analysis and stipulation of court functions from the perspective of politics and constitutions, as well as the tautology of “court’s” definition. In our real lives, courts of different countries are composed of by many people (judges and other auxiliary personnel).
Historical tradition gave rise to the French peasants’ belief in the miracle that a man named Napoleon would bring all glory back to them. And there turned up an individual who claims to be that man because he bears the name Napoleon, in consequence of the Code Napoleon, which decrees “Inquiry into paternity is forbidden.”
—Karl Marx (“The 18th Brumaire of Louis Napoleon,” Marx and Engles Collected Works, vol. 1, People’s Publishing House, 1994, p. 678.)
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Notes
- 1.
These are called “judicial” departments in the USA, i.e., government institutions with judicial power. In China, “judiciary” often refers to a administrative organization subordinate to the government, and the national judicial power is shared by the court and the procuratorate. That’s why in this article, the “court” will be used in areas when there might be confusions when talking about China’s cases.
- 2.
For instance, the U.S. federal courts have their administrative offices to “execute the basic administrative functions of the federal courts. It also collects and deals with materials of federal courts. … In addition, administrative offices are the connecting bond for federal [court systems], conference, legislative, and administrative institutions. The representative conference of administrative offices put budgetary requirements toward Congress, propose for the increase of judges, put forward suggestions of changing court activity rules or with major influence to the federation.” In the U.S. federal court system, there are also Judicial Conferences for the USA, Circuit Judicial Council, and Federal Judicial Center. Since contemporary times, each court has had a non-judicial “court administrator,” engaged specially in non-judicial works of court administration, such as drafting budgets, recruiting court staff, and managing court files. These institutions and people undertake certain decision-making tasks and daily works of administration similar to that of Chinese courts. Please see Peter Renstrom, The American Law Dictionary, translated and proofread by He Weifang, China University of Political Science and Law Press, 1998, pp. 45–47, 51–52, 60–61, 57, 84–85; Please also see Henry J. Abraham, The Judicial Process, 4th ed. Oxford University Press, 1980, pp. 175–178. In addition, about the administration of German courts, there is a very simple introduction to case distribution. Please see Fu De: “Judicial profession and independence of Germany,” Procedural, Justice and Modernization, edited by Song Bing, China University of Political Science and Law Press, 1999, especially pp. 28–30.
- 3.
David M. O’Brien, Storm Center: The Supreme Court in American Politics, 2nd ed., W. W. Norton & Company, p. 178.
- 4.
O’Brien, Storm Center, the same as the previous note, p. 157.
- 5.
As for techniques and considering factors of the Chief Justice on distributing the job of writing court opinions, please see David J. Danelski, “The Influence of the Chief Justice in the Decisional Process of the Supreme Court,” in Sheldon Goldman and Austin Sarat eds., American Court System: Readings in Judicial Process and Behavior, 2nd ed., Longman, 1989, pp. 486–499; Please also see Abraham, Judicial Process, pp. 218–215; O’Brien, Storm Center, pp. 159ff.
- 6.
In the USA, this issue belongs to the research of behaviorist politics traditionally. In the field of legal science, although lawyers dealing with law practices know this fact, and often use this established fact in their judicial practices, this issue is often ignored in legal writings. This is because on one hand, the law that lawyers care about is the decision that judges might make; the lawyers are not able to change the institutional framework of court function and thus generally not considering this issue. On the other hand, the focus of the law faculty is more about the normative legal research, and this unclean “judicial politics” is just what traditional law professors try to get rid of.
- 7.
It was originally published on Social Sciences in China, Issue 6, 1997, and then included in He Weifang: Judicial philosophies and Systems, China University of Politics and Law Press, 1998. The name of the article was changed to On Non-administration and Non-Bureaucratization of Justice. You may also see related analysis in Hu Jianhua and Li Hancheng: “On Self-management of Court Judicial Administration,” People’s Judicature, Issue 12, 1992, pp. 33–34. Hu and Li’s article basically emphasizes that the internal administrative works of the courts shall be managed by courts themselves, but not by judicial administrative organizations. The article also mentions examples in foreign countries, but the authors have obviously not realized that judicial functioning inevitably clashes with judicial administration.
- 8.
A typical example is that He Weifang and I have different views on trial committee system. Apart from the above mentioned, you may see He’s view from “A Few Comments on Trial Committee System,” Peking University Law Review, vol. 2, Law Press, 1999. This article has also been included in He’s collected works Judicial Philosophies and Systems, which is the review of my paper “Observation and Thoughts on Trial Committee System of Basic-level Courts” (Peking University Law Review, vol. 2, Law Press, 1999; the article is the third chapter of this book). However, my discussion only focuses on the trial committee of the basic-level courts.
- 9.
Article 19, 24, 26 and 30 of the Organic Law of the People’s Courts.
- 10.
Please see Article 10 of the Organic Law of the People’s Courts; Article 94 of Detailed Provisions of the Supreme People’s Courts on the Court Trial Procedures of Criminal Cases (1994); Article 42 of Civil Procedure Law. But in the basic-level courts during our research, chief judges are actually designated by tribunal directors.
- 11.
Article 10 of the Organic Law of the People’s Courts.
- 12.
Article 147 of the Criminal Procedure Law; Article 11 of the Organic Law of the People’s Courts.
- 13.
Article 11 of the Organic Law of the People’s Courts.
- 14.
Article 14 of the Organic Law of the People’s Courts, Article 177 of the Civil Procedure Law, Article 63 of the Administrative Procedure Law. If this regulation is followed strictly, during the trial procedure of civil, economic, and administrative cases, decisions made by collegiate panel or single judges are supposed to be effective rulings unless errors occur and be put forward by court presidents. The judicial committee has no right to interfere. However, it is discovered through investigation of basic-level courts that it is not usually the case. On this point, you may refer to Chap. 3 of this book: “The Judicial Committee System in Basic-level Courts.”
- 15.
Article 149 of the Civil Procedure Law. Please also see the Interpretation of the Supreme People’s Court on Several Issues Concerning the Implementation of the Criminal Procedure Law of the People’s Republic of China (for trial implementation) (1996) Article 115 stipulates that for difficult, complicated, and major cases, if the collegiate panel thinks it necessary, it can ask the president of the court for his decision to submit those cases to the judicial committee for discussion and decision. Cases stipulated by this Article include cases of the death penalty, on which judges of collegiate panels have major disputes, which are protested by people’s procurators, or have a major impact on the society, and other cases which need the judicial committee to discuss and decide. This article also stipulates that cases tried by single judges can also be suggested by the court president to be submitted to the judicial committee whenever single judges think necessary.
- 16.
Please see Chap. 3 of this book “The Judicial Committee System in Basic-level Courts” for related analysis and discussion.
- 17.
This is also demonstrated in legal regulations of judicial committee system. According to Article 11 of the Organic Law of the People’s Court, judicial committees “practise democratic centralism,” but not “executive accountability” as prosecutorial committees practice. Please also refer to Article 87 of the Detailed Provisions of the Supreme People’s Court on the Court Trial Procedures for Criminal Cases (1994), “decisions made by judicial committee can pass only when more than half number of the committee members approve.” Our research has discovered that this has been widely implemented in the basic-level courts. Those attending judicial committees, regardless if they are president, vice president, or tribunal director, will have one vote for each. It is also true that this common conclusion does not eliminate the possibility that the real life that president or certain committee member exerts influence on other committee members intentionally.
- 18.
Article 19, 24, 26 and 30 of the Organic Law of the People’s Courts.
- 19.
For example, the Supreme Court of France has 6 trial divisions, separately dealing with cases of private laws, economic and trade, industrial relations, social insurance, and criminal cases. Please see You Rong (chief editor): History of Foreign Legal Systems, Peking University Press, 1992, p. 436. There are also civil division and criminal division in German and Japanese court systems. Please see Zeng Guangzai (writer and compiler): Constitutions and Governments of Western Countries, Hubei Education Press, 1989, pp. 548, 625. In addition, there are also Federal Patent Court, Administrative Court, Labor Court, Social Court and Fiscal and Tax Court in Germany. Please see “Court System in Germany,” in Judicial Systems and Procedures of the United States and Germany,” Song Bing (editor), China Political and Law University Press, 1999, pp. 128–131.
- 20.
Richard A. Posner, Federal Courts, Challenge and Reform, Harvard University Press, 1996, ch. 8.
- 21.
For example, setting a large number of deputies has created many symbolic resources for the convenience of appointments. There is also distribution of other political powers and material wealth and resources to go with it. This kind of institutional setting therefore serves the purpose of resource distribution. But these very important aspects are not that related to issues discussed in this chapter, so there is not much to say about it. Other scholars may well analyze Chinese and foreign court system further from this point if interested.
- 22.
For example, Article 11 of the Organic Law of the People’s Court stipulates that “Members of judicial committees of local people's courts at various levels are appointed and removed by the standing committees of the people's congresses at the corresponding levels, upon the recommendation of the presidents of these courts”; Article 11 of the Judges Law stipulates that “The assistant judges of the People’s Courts shall be appointed or removed by the presidents of the courts where they work”; Article 47 stipulates that The number of persons on a commission for examination and assessment of judges shall be five to nine. “The chairman of a commission for examination and assessment of judges shall be assumed by the president of the court it belongs to.”
- 23.
Article 8 of Notice of the Supreme People’s Court on Issuing “the Temporary Measures of Supervisory Departments in the People’s Courts to Investigate and Deal With Cases of Disciplinary Violation” stipulates that “the Supreme People’s Court establishes Supervisory Department, which is responsible for leading and managing supervisory works of national court system under the leadership of the President of the Supreme People’s Court. It also supervises the Supreme Court, its working staff, president, and vice presidents.” Article 4 of Several Regulations of the Supreme People’s Court on the Judicial Statistic Work of the People’s Court stipulates that the statistic work shall be regarded as “an important job of the court of which the president or a vice president of the court is in charge.”
- 24.
As for formal systems mentioned in this chapter, they are court's organizational structures and operational procedures stipulated by written law; informal systems refer to systems that are not explicitly stipulated by the above law, but are customs and conventions which people working in the court usually observe voluntarily or involuntarily and even must observe, as well as ideas to go with these customs and conventions. The reason that we call these customs and conventions “systems” is that they, like formal legal regulations, restrict people’s behaviors and have become social norms which people have to obey. The definition of system here is different from the system we usually refer to (as a formal organizational institution or rule). However, more and more people nowadays accept that “the institutions are, in substance, prevalent habits of thought with respect to particular relations and particular functions of the individual and of the community, … the institutions of today—the present accepted scheme of life.” (Thorstein B Veblen: Theory of the Leisure Class, Cai Shoubai (translated), the Commercial Press, 1964, pp. 138–144.) It is necessary to point out that some institutions are formal, but are restricted by all kinds of informal institutions and thus ineffective. They are just institutions on paper. The informal institutions are regarded by institutions only because they are effective in the real life. It is fair to say that informal systems are, generally speaking, institutions that are actually influential. An important example is the Bankruptcy Law stipulated in 1980s. We should also point out that when we study courts in modern China, it is not that clear what is formal institution and what is not. It also depends on the perspective and definition of researchers. For example, it is a reality in China that party committees or the Communist Party are in charge of cadres and that it is a basic principle stipulated in the constitution that the leadership of China’s communist Party should be upheld. From this perspective, the influence and function of the Party inside the court should be a formal institution. But if we only look at the Organic Law of People’s Courts and other texts of procedural law, the actual influence and function of the Party inside the court is not explicitly stipulated by law, but is established by the development of China’s modern history. As far as the court institution is concerned, the party committee of the court is therefore an informal institution of court function. However, it is not important to distinguish whether the party committee of the court is a formal or an informal institution. What is important is what I will discuss later: that when we observe the court institutions, we should pay attention to not only institutions explicitly stipulated by law, but also those informal institutions that are actually influential.
- 25.
As for related legal regulations, please refer to Article 10, 11, 14, 16, and 37 of the Organic Law of People's Courts; Article 6 of the Judges Law; Article 42, 47 and 177 of the Civil Procedure Law; Article 47 and 63 of the Administrative Procedure Law; Article 30, 147, and 205 of the Criminal Procedure Law; and Article 26, 112, 115, 120, and 283 of Detailed Provisions of the Supreme People's Court on the Court Trial Procedure for the Criminal Cases.
- 26.
Please refer to Article 149 of the Criminal Procedure Law. Our research has found out that it has become a convention in civil and administrative procedure.
- 27.
Article 138 of the Civil Procedure Law stipulates that “the judgment shall be signed by the judicial officers and the court clerk, with the seal of the people’s court affixed to it.” Article 164 of the Criminal Procedure Law (1996) stipulates that “the written judgment shall be signed by the members of the collegial panel and by the court clerk, and the time limit for appeal and the name of the appellate court shall be clearly indicated therein.”
- 28.
We not only feel about this point through the interviews with judges, but also read from some official documents that judges undertaking cases try to resist the erosion of judicial power by administrative power of the court through certain legal regulations. Article 14 of the Reply of the Supreme People’s Court on Several Questions related to Detailed Application of Laws in Serious Criminal Cases Tried by the People's Courts (September 20, 1983) has left traces for this kind of resistance. A question from the Province of Zhejiang is that “for the serious criminal cases that are currently severely punished and given speedy trial, is it possible that on the legal documents issued by the courts, there will be no signatures of judicial officer and the court clerk, but only a seal of the people’s court affixed to it?” The reply of the Supreme People's Court to this is that “Article 122 of the Criminal Procedure Law stipulates that ‘the written judgment shall be signed by members of the collegial panel and by the court clerk’. It still needs to be carried out currently.”
- 29.
Article 87 of the Detailed Provisions of the Supreme People’s Court on the Court Trial Procedure for the Criminal Cases stipulates that “decision of the judicial committee shall be implemented by the collegial panel. If there is a disagreement, the decision can be submitted to the judicial committee for review by the president.”
- 30.
Article 35 of the Organic Law of the People’s Court.
- 31.
The collegiate panel can even suggest submitting the decision of judicial committee to the committee for review. Please see Article 87 of Detailed Provisions of the Supreme People’s Court on the Court Trial Procedures for the Criminal Cases, which stipulates that “the decision of the judicial committee, … if [the collegial panel] still has different opinions, it can suggest the president to submit the decision to the judicial committee for review.”
- 32.
Mr. Ling Bin, a student of Law Faculty of the Peking University discovered this relevance during his internship. I would like to thank him for his contribution here.
- 33.
Article 148 of the Criminal Procedure Law.
- 34.
As for this point, if judging from the concept, it does not correspond with “independence of judge” or the so-called internal independence of judges. We must point out that this kind of viewpoint actually forgets about the fact that a judicial decision always comes from a court which is an organization but not from an individual judge. Group cooperation is necessary and essential since none of us know which judge has a correct view or whether he or she is always right. Cooperation and compromise among judges to a certain extent is actually effective, and at least can prevent going to extreme. As a matter of fact, the important judicial opinions (i.e., majority opinions) produced by the decision mode of the Supreme Court of the USA admired by many Chinese scholars are mostly product of comprise by a majority of judges and even all judges.
- 35.
For example, American judicial research has discovered that the probability for the three-judge judicial tribunal to have disputes is sharply lower than the tribunal composed by 7 or 9 judges. The smaller the trial group, the lower the ratio of opposition. Please see Richard J. Richardson and Kenneth N. Vines, The Politics of Federal Courts, Little, Brown and Company, 1970, pp. 122ff; and please refer to Sheldon Goldman and Thomas P. Jahnige, The Federal Courts as a Political System, Harper and Row, 1971, p. 178 for related explanation.
- 36.
Although this chapter has made criticisms on the internal administrative system and the judicial system of China’s court, I still don’t deny that they have played certain positive roles in China’s social environment today. For example, because the average professional qualities of judges in our country are not high, reporting for approval level by level makes more people take part in the case trial. This can, to a certain extent, bring the collective wisdom into play and avoid a wrong judgment; also, it may, to some extent, limit malpractice and corruption of certain judges. From a long-term perspective, whether to implement trial function by this system is reasonable or economic is still doubtful. To support such trial, system demands huge costs and approval at different levels will surely increase litigation costs of clients and delay the litigation. The major reason for the current judicial reform is to increase the efficiency of litigation.
- 37.
In the nearly 200 years since John Marshall took the post in the Supreme Court of the USA and the institutional importance of the Supreme Court was truly established, there were altogether 12 Chief Justice (excluding Chief Justice ahead of John Marshall since by then the Supreme Court hadn’t established its authority) in the Supreme Court, among which 5 of them did not have any experience in trial courts before taking the post, 3 of them did not have any experience of court trial before taking the post of Chief Justice of Supreme Court, 1 of them had 1 and a half years of experience in the federal court, and John Marshall himself had only 3 years of experience in courts similar to the basic-level people’s court in China. The four most capable Chief Justice widely recognized by the US law circle are John Marshall, William Howard Taft, Charles Evans Hughes, and Earl Warren. They were all good at administration. Before taking post of Chief Justice, they all served as very important administrative leaders or exhibited excellent administrative talent: John Marshall used to be Secretary of State, William Howard Taft used to be President, Charles Evans Hughes used to be Vice President and Republican presidential candidate, and Earl Warren used to be the Governor of California. Please refer to Abraham, Judicial Process, pp. 56–58, table II. If there had been no Chief Justice Marshall and his excellent talent as a politician not as a lawyer, the Supreme Court of the USA and even the US Constitution would be unimaginable. Benjamin Nathan Cardozo used to point out that “Chief Justice gave to the constitution of the USA the impress of his own mind; and the form of our constitutional law is what it is, because he molded it while it was still plastic and malleable in the fire of his own intense convictions.” Please see The Nature of Judicial Process, translated by Suli, Commercial Press, 1998, p. 107. Benjamin Nathan Cardozo’s comment was objective, but was regarded as inconceivable to legalists: the first regulatory responsibility of a judge to observe constitution and law has gone so far as to mold the so-called most rigid constitution of the USA. However, this is a history which does not necessarily follow standards and logic, and often seems to be like this.
- 38.
Please refer to Suli: “On the specialization of legal activities,” in Rule of Law and its Native Resources, China University f Politics and Law Press, 1996.
- 39.
Please refer to M.J.C. Vile: Constitutionalism and the Separation of Power, translated by Suli, SDX Joint Publishing Company, 1997.
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Zhu, S. (2016). Court Trial and Its Administration. In: Sending Law to the Countryside. China Academic Library. Springer, Singapore. https://doi.org/10.1007/978-981-10-1142-9_2
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