Q&A: Susan Finder Deconstructs the Chinese Court System

Q&A: Susan Finder Deconstructs the Chinese Court System
REUTERS/Aly Song
What you need to know

'It is still a court system with Chinese characteristics but the idea is to have a more competent court system for the millions of cases that are not political.'

Listen
powered by Cyberon

Like most things in China, it is worth pausing to consider the scale of the country’s court system. Across four main branches of the judiciary — the Basic, Intermediate, High and Supreme Court — there are roughly 3,500 courts nationwide with around 200,000 judges ruling on millions of cases each year in an increasingly litigious society.

Susan Finder is an expert navigating the often opaque world of the Chinese legal system.

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 while being associated with other academic institutions. She is also the author behind the popular Supreme People’s Court Monitor blog where she sheds light on the inner workings and major changes underway in China’s highest court.

In an interview with The News Lens in Hong Kong, Finder explains how far the courts and the legal profession in China have come from their virtual non-existence after the Cultural Revolution and the ongoing process of major reforms. She canvasses the impact of technology on the courts, including social media and live online broadcasts of cases, and discusses the limitations of law reform under China’s political system.

The News Lens: Can you briefly describe where the Chinese court system comes from and what it has been modeled on?

Susan Finder: The Chinese court system is basically modeled on the Soviet system. It has undergone changes, especially since 1977 and more recently, but the basic structure is from the Soviet system. But it is not a copy.

TNL: Prior to the late 1970s, what did China have in place for dispute resolution?

Finder: The court system was in operation for some time in the 1950s. But during the ‘anti- rightist’ movement many prominent lawyers and legal professionals suffered. Then during the Cultural Revolution, the legal institutions were abolished. Restoring law was an important change post 1978.

TNL: Looking at the Chinese system today, how different is it from what people are used to in the U.S. or the U.K.?

Finder: It is a different system. The U.S., U.K., New Zealand, Australia and others all have ‘common law’ systems. China’s is a ‘continental legal system.’ Case law is not as important. China’s is a code-based system, which reflects the more ancient Chinese legal tradition and legal reforms during the 20th Century, pre-1949, as well as Soviet influence.

RTX28W85
Zhou Qiang, President of China's Supreme People's Court, bows during the third plenary session of the National People's Congress (NPC) at the Great Hall of the People, in Beijing, China, March 13, 2016. REUTERS/Kim Kyung-hoon
TNL: For people who aren’t familiar with the term ‘continental legal system’, does that mean that judges don’t really look at prior cases and instead they are more inclined to just look at statutes and laws to make their decisions?

Finder: It is actually an area where Chinese law is starting to change. Under a common law system many areas of law are based on precedent rather than statutes. But now you have a combination of statutes and case law interpreting. China is in the midst of trying to figure out its own case law system, with Chinese characteristics.

TNL: I’d like to return to the reforms later on, but first can you talk about the scale of the courts in China today?

Finder: I don’t have the statistics in front of me but there had been about 200,000 judges, though I think that number has been reduced under the judicial reforms. The Supreme People’s Court is the highest court, that is, in Beijing. Each province or provincial equivalent has a Higher People’s Court. Below that are what are called Intermediate Courts in municipalities, and then Basic Courts, in say districts or the rural equivalent.

TNL: And they hear criminal and commercial cases?

Finder: They hear all sorts of cases. Criminal cases, civil cases, family law, tort cases, all sorts of commercial disputes, intellectual property disputes, what are called administrative cases — China’s version of judicial review — some courts have bankruptcy divisions, there is also a separate maritime court system, military courts, and a couple of other specialized courts.

TNL: Obviously small-scale disputes start off at the lower-level courts. What sort of things goes straight to the higher courts? Murder trials? Larger corporate disputes between say a foreign company and a Chinese state-owned company?

Finder: There are procedural laws as to what cases will generally go to what level of court.

On the criminal side, serious crimes — so cases where the death penalty could be imposed, murder, rape — are heard first in an intermediate court and then if the death penalty would be used they all go to the Supreme People’s Court for review.

For civil and commercial disputes, there are regulations, generally based on the amount of the dispute, and they vary from province to province. And there are special laws for ‘foreign related’ — cases involving a foreign, or Hong Kong, Taiwan, Macau party — and separate rules for what kind of courts take those cases.

TNL: And the judges, have they historically been well trained? Or what sort of legal ability do they have?

Finder: That too is tied to Chinese history. After 1979, there were many, let’s say demobilized soldiers or officers who were assigned to the courts. The law schools had been closed for many, many years.

TNL: So essentially people with no legal training were manning the courts?

Finder: Yes, although even for that group of people, the Supreme People’s Court instituted legal training for those judges. I personally know some now-retired judges from that period who went on from that ‘part time university’ organized to get an LLB and then a proper Masters of Law. It is hard for me to say what percentage, but now you have thousands of law graduates so a high percentage of Chinese judges these days have legal training. In the big cities, it is not unusual for people to have a Masters degree or a PhD. And of course the law has changed now to require judges to have legal training.

TNL: Looking historically, one would assume that all those judges were party members. Is that still the case, and in your opinion, does it matter?

Finder: I think the percentage of party members (among judges) is extremely high. It doesn’t mean that people are not professionally competent. It is an area where the Chinese authorities want to have Party members constitute an extremely high percentage, but it doesn’t mean that people aren’t competent.

TNL: But it does mean that there is less of a separation between the state and the courts than you would usually find?

Finder: That is a complicated issue. Chinese courts are under party leadership but it doesn’t mean they are not trying to be professional.

TNL: Maybe we can find a case where the party has stepped in directly?

Finder: There are many instances where local party bosses involve themselves in cases. There have been some decisions overturned in the past where the local party boss has been in a hurry to ‘crack’ a murder case, and the local court is under pressure to convict somebody.

There are reforms underway to try and control this. There has been a realization that this leads to injustice and it is not good for Chinese governance.

RTX13U5W
Men look at a screen displaying a picture of Chinese politician Bo Xilai standing trial on the website of a court's microblog, in Jinan, Shandong province September 22, 2013. The court sentenced former Chongqing Municipality Communist Party Secretary Bo to life in jail after finding him guilty on all counts following his dramatic five-day on charges of corruption, taking bribes and abuse of power.REUTERS/Aly Song
TNL: In terms of judges themselves, how high is the level of corruption and is this another area that is changing?

Finder: It is hard to know. Given the past few years there has been the anti-corruption drive, I surmise that the levels are down from several years ago because the greater environment has changed. People can see that the CCP anti-corruption authorities are very aggressive. Plus you have the effect of social media; you have had a number of cases where people have videoed judges doing improper and corrupt things.

My guess is corruption is down. But one big issue for Chinese judges is that they are sorely underpaid; it is hard to maintain a middle-class lifestyle with what judges are paid.

TNL: You have a fantastic blog and you write prolifically in this area. How transparent is the system and what are the resources and sources you use to monitor the courts?

Finder: The system is not very transparent. But it is an enormous improvement from 20-plus years ago when I first started looking into the Supreme People’s Court. You now have this online database of court judgments. There are studies that show some provinces are better than others, some judges don’t want to upload cases to the database, but it is a big step forward, despite the various limitations there are.

As far as my own sources of information; I use WeChat, that is one of my big sources, because I can get multiple voices. The Supreme People’s Courts and other courts have their own WeChat outlets, so I can get the latest official documents. There are also many other voices.

TNL: In China, how much critical commentary about the courts is there? I don’t mean people speaking out against the courts, but more like university publications that are advocating for reform, or commenting on cases. How much freedom do people have to comment on the system?

Finder: Academia and the legal profession have a certain scope of freedom to comment. Party members are bound by Party discipline and judges are under certain restrictions. But there is certainly some scope for comment.

TNL: So if there is, say, an academic in Beijing and there is a court decision that he or she thinks is wrong, would they write an article freely and share it on WeChat?

Finder: Yes, that is true generally, and that is where one would go and use the database to check a whole lot of cases in an area.

TNL: How do you go about it? China is so big, and there must be millions of cases going through the courts each year. I know you focus on the Supreme People’s Court, but even at that level there must be a huge number.

Finder: Something like 12,000. I can’t keep up with the number of cases either. And not all of the cases in the Supreme People’s Court are made public. There are some WeChat accounts that I follow, and I follow published analysis of commercial court cases on particular questions.

TNL: What about cases involving politicians or higher ranking party members? Are they usually available?

Finder: It all depends. There are probably a lot more small fish that are being tried than big fish. Some of those cases are being published.

TNL: Well, you don’t know what you don’t know I suppose.

Finder: Yes. Certainly not all things are transparent. Some things are, and that is an improvement.

TNL: Speaking of improvements, you have written at great length about the different phases of reforms. Can you please talk about the most recent phase, which I think started in 2012 or 2013?

Finder: These reforms are still ongoing. From around the beginning of 2013, the Supreme People’s Court came out with their reform plan, which was approved by the Party authorities at the highest level.

There is now more transparency for parole and medical leave — there was a huge amount of corruption in that area.

There is the broadcast and stream of cases online. That is very selective, but still for someone like me, it is fascinating to see what is going on in the Chinese court room, if in its selective.

There have been efforts to give judges more autonomy, of course with limits. They are changing what is called the judicial committee, which has existed in China for years. It is where the leadership of a court decides difficult and complicated cases. So people who have heard the case aren’t deciding the case; this is thought to lead to unjust cases. One of the reforms is trying to limit the scope of the cases which the judicial committee decides cases, and have the judicial committee taking more of an advisory role. In certain cases the judicial committee can still make the final decision, but that is for bigger, often with political implications.

TNL: In terms of giving judges more autonomy, can you provide an example of what you are seeing in that space?

Finder: There has been a series of documents issued in the past few months, I’m still processing what it means. Today in China, a single judge, or more often a three judge panel, decides a case. In the system previously they would need to get sign-off from the head of their division. So for a commercial case that could be an area for pressure or corruption. The reform is that this is no longer necessary, with exceptions.

TNL: Do you think there is genuine intent from the party’s leaders to have the court system be further separated from politics?

Finder: Certainly the intent is to have the courts firmly under Party leadership in terms of policy. I think the concept is for the courts to have more professional autonomy, so local Party bosses can’t tell judges how to decide a contract dispute or tell a judge how to decide whether someone is guilty.

There is the recognition this leads to injustice and dissatisfaction with the courts, so it is not good for Chinese governance.

TNL: Is the outcome that you do see more of an equivalence with western legal systems?

Finder: It is still a court system with Chinese characteristics but the idea is to have a more competent court system for the millions of cases that are not political. The thinking of the Chinese people is changing, and this is recognized by people in the court system. And social media does give ordinary people a way to express their dissatisfaction.

TNL: When you are looking at the technological changes, some of which are part of the reforms and some are more that change has been thrust upon the legal system — like social media — how is all this influencing how the courts are running? The fact that a judge in a far-off province can now look at how a higher court in Beijing decided a case, does this now add a level of consistency?

Finder: The Supreme People’s Court has come out with a general policy statement, they haven’t issued specific regulations yet, but it reflects something I have noticed: Courts are now looking at how other cases have been decided. China has this ‘guiding cases system’; there are certain cases where the Supreme People’s Court has designated that decision to have some precedential value. I have been noticing that more non-guiding cases are being submitted by lawyers and used by judges to see ‘how has this issue been decided by other courts.’

The Supreme People’s Court has recognized that this can help minimize differences in the way different courts decide the same issue.

TNL: In terms of reform, are the Chinese looking at any particular legal system as an example of where they would like to get to? Notwithstanding the need to keep the court within the Party umbrella?

Finder: They do look at many major jurisdictions. The Supreme People’s Court will send delegations or have programs where people from other systems will come to China and talk. They will look at what ideas can be borrowed but it has to fit the Chinese situation.

One idea that comes to mind is the area of domestic violence law. The Supreme People’s Court have been working with the Australian Human Rights Commission and that has helped to inform what the Chinese are doing.

But it has to fit the Chinese situation and the Chinese political system.

TNL: Just finally on the impact of the technological changes, do you see a great deal of public interest in cases now that there is this new level of information that they previously didn’t have?

Finder: I would say that it is more among people in the legal profession. It would just be the occasional case that would get the public riled up or interested. One case that would be in that category would be the criminal prosecution involving the head of Kuaibo, a file sharing service that had a lot of pornographic content. This case attracted a lot of attention. Select cases have attracted a lot of general public commentary.

RTS194DM
A protester holds a portrait of Chinese Nobel rights activist Liu Xiaobo as she step on portraits of Chinese President Xi Jinping during a candlelight vigil demanding the release of Liu, ahead of 20th anniversary of the city's handover from British to Chinese rule, in Hong Kong, June 29, 2017. Liu has been granted medical parole after being diagnosed with terminal liver cancer last month REUTERS/Tyrone Siu

TNL: Looking at human rights cases — and I know this is not an area that you are particularly focused on — but for instance there are cases where human rights lawyers that have found themselves in jail or prosecuted for something that seems to be a relatively spurious or unfair charge. It looks like the courts are still being used for political reasons to crack down on dissent. Is this an area where you see any improvement?

Finder: Those cases are part of larger political developments and are treated as special cases. Given the Chinese system, I think the judges being asked to hear those cases understand how they need to be decided. I don’t know the exact mechanism.

TNL: But we are right to assume there are still mechanisms for the party to ensure someone doesn’t necessarily get a fair trial?

Finder: You can see from the regulations themselves that there are ways for special cases to be dealt with in a special way.

TNL: You are being quite careful with your choice of words.

Finder: Yes I am.

TNL: Looking ahead, as part of your role as an academic and a teacher, you train a lot of young lawyers — people that have experience in U.S. law and Chinese law. What are your expectations for the legal system in China? Do you expect it to continue on this path of reform and becoming increasingly certain, proficient and professional?

Finder: The courts are a government institution and that links to bigger issues relating to the direction of China. In the long-term, I’m optimistic that things will improve because you have increasing professional competency in the judges.

I think the authorities realize the system needs competent people; there are millions and millions of cases that are not politically sensitive, and if ordinary people are unhappy how ordinary cases are decided it is not a good thing.

TNL: What is your recomendation for a foreign person that ends up having a legal dispute in China? If they went into the court system are they likely to get a reliable result?

Finder: That is also a big issue. The general practice for a lot of cross-border commercial disputes is for those to be arbitrated. A lot of the very big ones are arbitrated here in Hong Kong or elsewhere. Foreign investors who are putting in a lot of money want the dispute to be heard what they perceive as fairly. That is something to think about when you are setting up your company or doing the initial contracts.

It is hard to generalize about fairness in the courts. Sometimes there were/are cases where local judges were under pressure from local authorities not to enforce a judgment from somewhere else — it all happens.

TNL: As a final a comment, can you say how fast things are changing in the Chinese legal system?

Finder: There have been big changes from 30 years ago. There are many things that still need to be done. The court reform plan will mean certain things will happen. There are other things one hopes for the future but what can be done now is only what is possible within Chinese politics today.

Editor: Olivia Yang