Judicial Authority With Chinese

CharacteristicsLarry Catá Backer

W. Richard and Mary Eshelman Faculty Scholar & Professor of Law & International Affairs

Pennsylvania State University | 239 Lewis Katz Building | University Park, PA 16802 1.814.863.3640 (direct) | lcb11@psu.edu

11th Annual General ConferenceEuropean China Law Studies Association Faculty of Law of the Roma TRE University Rome, 22-24 September 2016

The Problem• Chinese Judicial Reform agenda driven

• China: perfect socialist rule of law and aid socialist modernization

• West looking for ideological change• Business looking for harmonization of

judicial systems

• Useful to divide reform efforts in 2 objectives categories• Improve system function

• Technical Reforms/individual corruption• Advance ideological foundations

• Interpretation and institutional autonomy

• Judicial independence touches on a central issue of judicial reform—the relationship between the judge and the law.

Press Release: First-Ever “U.S.-China Judicial Dialogue” Supports an Exchange of Views on Judicial Reform, U.S. Dept. of Justice (Aug. 19, 2016)

Roadmap• Relationship between the Judge and

the Law in the West• The Trajectory of Chinese Reform

• “Guiding Case”, • Non-Interference Rules

• Towards a Leninist Judicial System compatible with the CCP Basic Line• Legal interpretation a political act

• Strong CCP oversight through an appropriate mechanics

• Decision among disputants an administrative task• No interference; appeal only to ensure

no procedural irregularities’ and proper application of legal standard

Bao Zheng from Illustrations of the Three Powers (1609)

Relationship Between the Judge and Law in the West

• Relationship between the state and law• Gubernaculum—government autonomous of law• Jurisditio—law autonomous of government

• Where state now produces law, the autonomy shifts to the “higher law” of the constitution

• Relationship between the judge and law and the judiciary and the law• The common law judge

• Judge between law and government; glossators and autonomous keepers; • The civil law judge

• Judge in law and government; principles, jurisprudence and higher law

•Form and Effects• First, judges serve a political role in their relation to law. • Second, cases themselves serve an important political role as well • Third, courts begin to serve as the place where societal narratives are forged and popular

expression is constructed and applied • Fourth, the independence of the judge, the judiciary as a class, and the proceedings in court

is a function of the autonomy of law from the state; the judiciary as an autonomous apparatus of lawmaking and control

Judicial Reform and Party Mechanisms

• Much of the reform from 2013 reflects the management of the objectives in the Decision of the CPC Central Committee on Comprehensively Deepening Reform

• Coordinating changes in CCP Internal Rules:

• Art.119 of Discipline Regulation:• party members/ cadres violating certain rules to

interfere and meddle with judicial activity, discipline & inspection activity, demand special treatment or other requests, a punishment of serious warning is given where the violation is minor, a punishment of removal from internal Party posts or Party probation is given where the violation is more serious, a punishment of removal from internal Party post is given for serious violation.

• Frames reforms

• Coordinated action through Supreme People’s Courts (White Paper)

Reform Disciplinary Agency 2012

Oct

• Restructure Discipline & Inspection Commission

• Reform Shuanggui

Ideology Campaign 2013

June

• Mass Line Education

New Party Ethical Code

2015 Nov

• CPC Probity& Self-discipline Norms

• CPC Disciplinary Regulations

Chinese Reforms: Imitation, Subversion, or Dialectical Model?Systemic Reforms• Separate the duty of executing verdict from judges • Restructure the financial system for judicial organs • Establishing circuit tribunals for Supreme Court with

jurisdiction on civil dispute and disputes with government. Exploring new hierarchy system that axe the connection with local government hierarchy system.

• Clarify the jurisdiction of different judicial organs on different levels and improve the internal supervision mechanism.

• Establish and institutionalize corresponding procedures between the Party disciplinary & inspection mechanism with criminal investigation.

Trial system reform and human rights• Reform trial evidence system for fair and justice trail;• Establishing case record tracing system and accountability

system • Reform litigation procedure to improve people’s litigation

rights and basic human rights in criminal justice system. • Prevent extorting confession by torture and judicial error.

Supervision Reform • Improve regulations on illegal congress between judicial

employees and lawyers or other interested party. • Separate the duty of executing verdict from judges • Restructure the financial system for judicial organs • Establishing circuit tribunals for Supreme Court with

jurisdiction on civil dispute and disputes with government. Exploring new hierarchy system that axe the connection with local government hierarchy system.

• Clarify the jurisdiction of different judicial organs on different levels and improve the internal supervision mechanism.

• Establish and institutionalize corresponding procedures between the Party disciplinary & inspection mechanism with criminal investigation.

People’s participation • Improve People’s Assessor system• Judicial transparency reform

Integrity of Law • Guiding Cases

The White Paper (2016): Summarizing and Pointing Forward• I. Chinese Court System and its Reform Process• II. Ensuring Independent and Impartial Exercise of

Judicial Power Pursuant to Law• III. Strengthening the Judicial Protection Mechanis

m of Human Rights• IV. Improving the Functional Mechanism of Adjudi

cative Powers• V. Promoting Judicial Transparency• VI. Expanding Judicial Democracy• VII. Strengthening People-friendly Justice• VIII. Improving Professionalism of Court Personnel• IX. Enhancing the Information Technology Capacit

y of Courts• Conclusion

Toward a Leninist Approach • No autonomy between the state and law. Identity between state and law.

• presumes a subordinate relationship between the law-state axis and the prerogatives of the vanguard party.

• Jurisdictio, then is the “higher law” of the CCP General Program

• Law and the state administer the operationalization of this higher law• the role of the higher law of the political order that both constrains and orders it, that provides the basis of legitimacy in conformity

to it and that serves as the basis of the assertion of the authority of gubernaculum by the CCP. The state, then, assumes a quite distinct character—as an expression of government but not as the home or vessel of the authority of state

• The judge stands before the law the way the state stands before the law.

• Both stand as the instruments of a higher power, and their operating space is constrained by the autonomy the gubernaculum of the CCP.• The judge guards the institutional and administrative apparatus of law but not the law itself. For to guard the law one must be in a

relation of autonomy with it—and that role is reserved within the prerogatives of the institution with the prerogatives of gubernaculum—the CCP.

• The judge must stand in a subordinate or administrative relation to the law, but in that relation must be absolutely independent of all of the rest of the apparatus of state. As the conduit of law she stands alone and untouchable.

• What Leninism requires, then is a political apparatus for the interpretation and glossing of law• An interpretative apparatus within the CCP or the NCP (overseen by the CCP)

Conclusion• What is the scope and nature of judicial

reform? To what extent does borrowing from Western models also suggest an embrace of the underlying ideologies that frame those models?

• Ideology matters and the ideological baggage of borrowings must be understood well in the context of judicial reform• West: law, judge and state connected but

autonomous; the judge administers and glosses law in but autonomous within the state

• China: Socialist system law, judge and state connected; the judge serves law and a distinction must be drawn between an autonomous role and a dependent one.

Thanks•The Paper may be

accessed HERE.

•http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2838035