China Judiciary Reform: the latest rules

2010-01-28

These come out every so often, so I wouldn't call this particularly groundbreaking. It's also difficult to assess the effectiveness of anti-corruption measures.

I don't usually dive deeply into the literature in this area either, so I'm not following any quantitative data like surveys. I usually rely on anecdotal evidence from friends, colleagues and clients as well as personal experience (i.e., my opinion that things have gotten much better over the past several years might be complete bullshit).

Anyway, the new rules contain a bit of insight on what some of the current problems are: (FYI, there are some English errors with the Xinhua article I am excerpting. I have not bothered to fix the mistakes.)

In an effort to prevent abuse of judicial power and fight corruption, China's Supreme People's Court issued a new regulation Wednesday to list a great number of restrictions against court staff, ranging from taking bribery to committing adultery with litigants.

The move came after Huang Songyou, former SPC vice president was sentenced on January 19 to life imprisonment for taking bribes and embezzlement. Huang was convicted of taking more than 3.9 million yuan (about $574,000) in bribes from 2005 to 2008.

In other words, the incident was embarrassing, and action was needed to: 1) fight judicial corruption; and 2) let the public know that judicial corruption is being dealt with. Depending on your level of cynicism, goal #1 or #2 is of paramount importance.

The regulation stipulates that judiciary staff will be punished if they are found meddling and intervening court cases, giving bribes to law enforcement personnel, beating or verbally abusing petitioners and over-running timetables to enforce court rulings.

Most of these seem rather obvious. Beating litigants was, I suspect, officially frowned upon prior to these rules. Of note is the prohibition against "meddling and intervening," which of course covers a lot of territory, including the very common practice of forcing litigants to settle by essentially refusing to rule on a case.

The regulation prohibits judiciary staff from tipping off or asking favors for litigants.

Tip offs are still common, although many times information sharing by court staff is fairly benign. Litigants will often receive advance warnings on rulings and might even know a judge's predisposition of a particular argument during proceedings. When this is done in favor of one side at the expense of another in ex parte discussions, however, it is wholly unfair.

Judiciary staff are restricted from leaving the Chinese mainland without authorization, prolonging visits or obtaining permanent residence permits in areas outside the mainland without authorization, or acquiring foreign nationality without permission.

In addition to straightforward corruption potential, I'm not sure specifically what practices this is intended to combat. I haven't come across this problem before personally.

Judiciary staff will be punished if they commit adultery or have sexual relations with litigants or relatives of litigants, according to the regulation.

OK, apologies here, but I am forced in this instance to once again respond with one of my favorite George Costanza quotes, which one could imagine a judge using after being caught in flagrante delicto with a litigant:

Was that wrong? Should I not have done that? I tell you, I gotta plead ignorance on this thing, because if anyone had said anything to me at all when I first started here that that sort of thing is frowned upon… you know, cause I've worked in a lot of offices, and I tell you, people do that all the time.

That's why these rules need to be written down sometimes, to make absolutely clear what is/isn't appropriate behavior. Heh heh.

They are also banned from intentionally prolonging, or refusing to enforce court rulings, and forcing litigants to withdraw lawsuits, receiving intermediation or reconciliation terms that would hurt litigants' interests.

This to me is really key since I've come across this problem so many times. However, there is a potential conflict between these rules and future political attitudes.

In the past, we have seen pressure from government higher-ups, who let judges know that large numbers of judicial disputes don't look so good to the outside world as China attempts to build a harmonious society. As a result, judges are periodically instructed to either hold rulings in limbo or, alternately, strong-arm litigants to settle.

These rules purport to stop such "meddling," but I suspect this is another instance of the politicians telling the judges "Stop interfering with cases unless or until we tell you to do so." I suppose a nicer way of putting it is that judges should not improperly influence outcomes unless there is an overriding State interest. (You choose which description you like better.)

Tags: China Law