What you need to know
Social media platforms, judgment databases and search engines and the introduction of live video are transforming China’s courts. But are the changes all for the better?
Articles in law firm publications and academic articles alike have long claimed that China has no system of judicial precedent.
While true in the past, this view is fast becoming outdated, as a system of case law, albeit with Chinese characteristics, is beginning to “snowball,” according to one China law expert.
Susan Finder is a U.S. legal scholar and practitioner and has followed the Chinese legal system for decades. She is currently Distinguished Scholar in Residence at the Peking University School of Transnational Law as well as being associated with other academic institutions.
“The conventional wisdom among both foreigners and Chinese writing about China and case law is that with the exception of a small number of guiding cases approved by the SPC [Supreme People’s Court], previous cases do not make law,” Finder wrote in a recent blog post.
Like most things in China, the scale of the Chinese court system is worth pausing to consider. Across four main courts – the basic, Intermediate, High and Supreme Court – there are roughly 3,500 courts nationwide with some 200,000 judges ruling on millions of cases each year in an increasingly litigious society.
Case law with Chinese characteristics
In an interview with The News Lens International from Hong Kong, Finder said that as part of China’s ongoing law reforms, the SPC introduced "guiding" cases – judgments approved by the SPC which are required to be followed by judges downstream. However, only about 60 of these "guiding" decisions have been issued since 2010.
Perhaps more significant, is the growing use of a new online judgment database established by the SPC. That database is used by China’s judges and other legal professionals, including on social media.
Finder says there are many "public" WeChat accounts dedicated to legal issues that are closely followed by judges, lawyers and academics. Articles focusing on a specific issue appear frequently, she says, and cite cases from the online database to show how the issues have been treated in the courts and the relevant decisions.
What most people don’t know, she says, is that lawyers have started attaching relevant court decisions when making submissions to courts – although they have to first assess the risk to the lawyer that the judge may take it as implicitly challenging his professional capacity. Young legal professionals are being trained in continuing legal education programs in using case database search engines, Finder says. Prior cases are used by lawyers to fill in legal gaps.
“If the Beijing High Court has issued a judgment on an issue related to your case, you are probably going to want to give [the decision] to the judge hearing your case in the District Court,” she says. “It is unlikely they will want to go against a ruling of the High Court.”
This indirect form of precedent differs from Anglo-American case law systems – “you are not going to see direct evidence of that prior case being cited,” Finder notes – but it does mark another major milestone in the evolution of China’s legal system.
It is already improving transparency and certainty in how the “millions” of commercial disputes the Court hears be handled across the country, Finder says.
“Say you are in Yunnan, and the Beijing or Shanghai courts have already had a whole bunch of cases about [a particular issue]. A smart lawyer would say, ‘The courts in Beijing and Shanghai see this issue all the time, this is how they understand it, and these are the kinds of damages you can get.’”
Finder expects the increased use of precedent to “snowball” throughout the courts.
Towards an independent judiciary
In addition to hearing the country’s more serious civil and criminal cases and appeals, the SPC has a judicial policy and interpretation function. In that latter role, it handles many areas, particularly in civil and commercial matters, that CCP officials are not focused on.
“There is a fair amount of space that isn’t a target of [party] concern,” Finder says of the policy role played by the SPC.
So is China heading toward a more independent judiciary? Not quite, it seems. While the courts do provide “a check,” and are becoming more "autonomous," this should not necessarily be misinterpreted as more independent, she says.
Nor is it a sign that the CCP is losing its grip on this key branch of government. Most judges are still party members and the SPC is still an organ of the party and the state. The government still controls information flows on social media, and the online judgment database is not complete, with sensitive judgments often omitted.
“Everything is under the big tent of party policy,” she says.
Finder says it is important to see the latest changes as part of China’s broader reform of the court system, and the longer-term modernization of the courts. Comparing 1986 to 2016 there has been a “huge change” in the profile of the judges. Just 30 years ago most judges were not legally trained, now there are hundreds of law schools churning out graduates. Likewise, the number of cases has skyrocketed, with China becoming an increasingly ‘disputatious” society.
Live court proceedings
Another move that the SPC touts as a shift towards greater transparency in the legal system has been the introduction of live broadcast of SPC proceedings.
While the cases are mostly civil, commercial, and administrative cases, in other courts, the live broadcasts provide a new propaganda and publicity service for the CCP and government – particularly in corruption cases. This tool has been in use this month during Beijing’s show trials of human rights activists and lawyers.
Finder adds that it appears there has been little consideration for the privacy of “anyone involved,” including witnesses.
“It seems to have been done just thinking about how it can serve the needs of the courts and the state,” she says.
However, she says as concern has been voiced from within the court system in China, she expects the rules around online broadcasting will eventually change.
Edited by: J. Michael Cole