IV. Improving the Functional Mechanism of Adjudicative Powers

Judicial power is a judging power in essence and emphasizes impartiality, neutrality and personal experience. It is the objective requirements of laws of judiciary to let the adjudicator judge and let the judge be accountable. On the basis of the pilot work, the SPC has been improving the operation mechanism of adjudicative powers, and determines the jurisdiction of the adjudicative organs and the duties of adjudicators in a scientific way, reasonably defines the accountability standards and process, and strengthens the basic and overall status of the judicial accountability system reform in deepening the judicial reform.

To reform the internal operation mechanism of adjudicative powers. Pilot courts have, taking into account their local situations, optimized the personnel allocation, reformed their internal organs, cancelled approval requirement and promoted the handling of major, difficult and complicated cases by the presidents or presiding judges of such courts in person.

Firstly, to optimize the allocation mode of adjudication personnel. The primary and intermediate people’s courts have established a relatively fixed adjudication team consisting of judges, judge assistants, court clerks and other necessary support personnel and implemented a flat management structure. The people’s courts will form a panel consisting of judge(s) or judge(s) together with people’s assessors at random according to the category of the accepted case. The people’s court of Jiangyin City, Jiangsu Province has formed 40 adjudication combinations of “sole judge + assistant judge (s) + court clerk(s) (1+N+N)”, which contributes to 53.1% growth of the number of closed cases comparing with that prior to the reform, despite the increasing total volume of cases and no addition of adjudication personnel and 96.8% cases are directly decided by a sole judge or a panel. The People’s Court of Qianhai Cooperation Zone of Shenzhen City, Guangdong Province and the People’s Court of Hengqin New Zone of Zhuhai City established according to the new mode have provided replicable and propagable experience for the reform of internal organs of the people’s courts.

Secondly, to reform the signature mechanism of judgments. It makes clear except as the cases discussed and decided by the adjudication committee that, the president, vice president and presiding judge shall no longer approve, verify, sign or issue the judgment for case that they have not directly participated in. The percentage of cases that have been adjudicated directly by a sole judge or a panel in the pilot courtsof Shanghai reaches 99.9% and there is only 0.1% submitted to the discussion by the adjudication committee.

Thirdly, to promote the normalization of president/presiding judge handing cases. In order to give full play to the extensive adjudication experience of the president and presiding judges of a court, the president, vice presidents and adjudication committee members shall directly form a panel to hear major, difficult and complicated cases. All of 873 presidents and presiding judges from Beijing courts at three levels appeared in court to handle cases, and the number of cases handled by them accounts for 15.5% of the cases closed by all the judges from Beijing courts in 2015. The Second Intermediate People’s Court of Guangdong Dongguan reasonably determines the number and types of cases handled by president/presiding judge, and the number of cases handled by them account for 32% of the cases handled by the whole court in 2015, with most of the cases being difficult, complicated and of new type.

Fourthly, to establish the specialized judges’ council system. The people’s courts shall respectively build specialized judges’ councils consisting of civil, criminal and administrative judges, which will provide consultancy opinions for the panels to correctly understand and apply laws for the reference of the panels. The Fourth Intermediate People’s Court of Chongqing has built a specialized judges’ council system which can be categorized into criminal law, civil law and administrative law, each of which is composed of corresponding adjudication committee members, presiding judges and senior judges. The members of the specialized judges’ council are on equal footing and will provide their opinions independently for the purpose of offering consultancy service for the handling judges and promoting the unification of adjudication standards.

Fifthly, to regulate the adjudication administration and supervision. In order to build an appraisal system and evaluation mechanism of case quality in compliance with the laws of judiciary, the SPC has cancelled the assessment ranking of all high people’s courts and guided high people’s court to cancel unreasonable assessment index of courts within their own jurisdiction so that except for several necessary obligatory indexes kept by operation of laws such as the case closing rate within trial time limit, all of other assessment indexes shall be referential indexes for statistical analysis. It makes clear that the adjudication administration and supervision activities of the presidents and presiding judges of courts shall be strictly limited to their own duties and scope of powers, and shall be conducted openly in the working platform. Except for participating in the adjudication committee meeting and specialized judges’ council, a president or a presiding judge of a court may neither express his or her tendentious opinions on a case that he or she does not hear nor directly deny the opinions of a sole judge or a panel.

To reform the adjudication committee system. The SPC has put forward guiding opinions on the reform of the adjudication committee system, and strengthening the macro-direction functions of the adjudication committee in terms of summarizing judicial experience, unifying the application of law and deciding major matters of the adjudication work upon discussion. In order to regulate the scope of cases submitted for discussion by the adjudication committee, there will be a pre-filtering mechanism of matters submitted for discussion by the adjudication committee. Besides major and complicated cases concerning national diplomacy, security and social stability and those required by law, the adjudication committee primarily discusses the law application issues of major, difficult and complicated cases. The deliberation of the adjudication committee shall be made audio and/or video recording for the whole course. All the members participating in the deliberation and voting shall sign on the meeting minutes of the adjudication committee meeting. The performance assessment and internal publicity mechanism of the members of the adjudication committee shall be established.

To perfect judicial accountability system. In September 2015, the SPC released the , which makes clear the duties and scope of power of court personnel and builds the determination and accountability mechanism of adjudicative liabilities. Firstly, to elaborate the position duties of court personnel. The trial management and supervision duties of the presidents, vice presidents and presiding judges of courts are defined by means of making a list. And the respective duties of the sole judge, presiding judge and judges of a panel and other judges, judge assistants and court clerks in the adjudicatory activities are well articulated. Secondly, to make clear the constituent elements and assumption form of adjudicative liabilities. It makes clear that judges shall assume the liabilities of their conduct of performing adjudicative duties and be responsible for the case handling quality within their scope of duties. A judge, who intentionally violates the laws during adjudicative procedure or renders erroneous ruling by gross negligence which causes serious consequences, shall assume liabilities of illegal adjudication. For cases tried by a sole judge, the sole judge shall assume full liabilities for the fact finding and the law application of the cases. For cases tried by a panel, the members of the panel shall jointly assume liabilities for the fact finding and the law application of the cases. Thirdly, to make clear the circumstances and conditions for exemption of adjudicative liabilities. For instance, where there are discrepancies of understanding and knowledge of the specific provisions of the laws, regulations, rules and judicial interpretations, reasonable explanation could be given within the scope of professional knowledge; where there are disputes or doubts on the fact finding of the cases, reasonable explanation could be given according to the rules of evidence; where the party concerned waives or partly waives his claims, etc. In case that the judgment of a case is amended in a retrial initiated according to the trial supervision procedure caused by any of the above circumstance, the judge concerned shall not be held liable for adjudicative liabilities on the ground of a wrong case. Fourthly, to make clear the supervision management responsibilities of the president and presiding judges of courts. On the spirits that powers shall always be accompanied by responsibilities and malpractice shall always be accompanied by liabilities, it makes clear that the president and/or the presiding judges of courts shall assume supervision management responsibilities for his inappropriate exercise of adjudicative supervision rights and adjudicative management rights intentionally or by gross negligence. Fifthly, to ameliorate the procedures of holding judges accountable. A judge discipline committee consisting of judges mainly and a small part of relevant social members shall be established at provincial level for the purpose of ameliorating the procedures of judge discipline. At the same time, the rights and interests of statement, defense, testification and petition for reconsideration of the judge concerned shall be safeguarded. All these are to realize the unification between the legal and timely punishment and strengthening professional guarantee.

To promote the improvement of trial-level system. In order to accommodate the needs of social development and civil litigation and reasonably define the civil & commercial adjudicative duties of courts at four levels, the SPC has issued the . According to this Circular, (i) the value of the subject matter of the action of the civil & commercial cases of first instance over which primary people’s courts have jurisdiction has been enhanced; (ii) cases of disputes over marriage, inheritance, family, property management services, personal injury compensation, reputation, traffic accidents and labor activities, as well as cases of mass disputes shall generally be under the jurisdiction of primary people’s courts; (iii) as regards major and complicated cases, cases of new types and cases of universal significance in terms of the application of law, superior people’s courts may decide to hear such cases on their own either independently or upon requests by inferior people’s courts.

To regulate the remand for retrial system. In February, 2015, the SPC released judicial interpretation on the . Such judicial interpretation unifies the standards of ordered retrial of a case and review of a case and strictly prohibits the practice of arbitrarily remanding of a case for retrial. It makes clear that in case of a ruling of ordered retrial of a case and/or remanding of a case for retrial, the superior people’s courts shall elaborate the specific causes for such ordered retrial of a case and/or remanding of a case for retrial in the ruling.

To advance the standardization construction of courts. The SPC has formulated and published the Several Regulations on Case Number of Cases of the People’s Courts and its companion standards, and the Business Standards for Information of Cases of the People’s Courts (2015) and other standardization documents, which codify 3,512 courts all over China and set up a three-level case types system that could be divided into 10 categories, 52 sub-categories and 131 items. It covers more than 130 types of judicial authenticity activities and over 15 million cases each year, laying a solid foundation for the construction of new standard system of case information.

To improve the guiding cases system. As of December 31, 2015, the SPC has successively published 56 guiding cases in 11 batches successively and promulgated rules of implementation on the guiding cases work. In the event that a case heard by a people’s court at any level is similar to a guiding case published by the SPC in terms of basic facts and the application of law, the people’s court shall render a judgment/ruling by reference to the headnotes of the judgment/ruling in the guiding cases and quoted such guiding cases as a juridical reason. In April 2015, the SPC set up an intellectual property guiding cases study base in Beijing Intellectual Property Court where guiding cases will be collected, compiled, systemized and adjudication rules and experiences for intellectual property cases will be timely summarized and published in an appropriate way.