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Will the Establishment of Circuit Tribunals Break Up the Circular Reforms in the Chinese Judiciary?

Published online by Cambridge University Press:  13 March 2019

Zhiqiong June WANG  and
Jianfu CHEN
Zhiqiong June WANG
Affiliation:
Western Sydney University, [email protected]
Jianfu CHEN
Affiliation:
La Trobe University, [email protected]
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Abstract

This article examines the objectives for the establishment of circuit tribunals of the Supreme People’s Court of China and the politico-legal functions of such tribunals in the context of judicial reforms that were first launched in 1999. It starts with an analysis of the fundamental problems and difficulties that impeded judicial reforms in the last two decades. It then provides a careful analysis of the establishment of circuit tribunals and examines the political barriers to fundamental reforms towards genuine, though limited, independent adjudication in China. Although we do not believe that the circuit tribunals will be a breakaway force in the Chinese polity, the present reforms do have the potential to break up certain circular reforms and break through some fundamental barriers to deep reform. Further, while judicial independence, in the sense of the judiciary being an independent force in the political and constitutional scheme of checks and balances, is not attainable in the political environment in China today or indeed in the near future, it is hoped that the present reforms might grant the Chinese judiciary some limited, but much needed, autonomy within the Chinese political system.

Type
Article
Information
Asian Journal of Comparative Law , Volume 14 , Issue 1 , July 2019 , pp. 91 - 112
Copyright
© National University of Singapore, 2019 

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Footnotes

*

Dr Zhiqiong June Wang, Senior Lecturer, School of Law, Western Sydney University.

**

Dr Jianfu Chen, Professor of Law, School of Law, La Trobe University.

References

1. Zuigao renmin fayuan guanyu xunhui fating shenli anjian ruogan wenti de guiding (最高人民法院关于巡回法庭审理案件若干问题的规定) [Provisions of the Supreme People’s Court on Certain Issues concerning the Adjudication of Cases by the Circuit Tribunals] (法释[2015]3号, adopted by the Adjudication Committee of the Supreme People’s Court (SPC) on 5 January 2015, issued by SPC on 28 January 2015, effective 1 February 2015). These Provisions were revised on 19 December 2016, and the revised Provisions became effective on 28 December 2016. For an explanation on the making and application of these Provisions, see He Xiaorong, He Fan, and Ma Yuanjie, “Zuigao renmin fayuan guanyu xunhui fating shenli anjian ruogan wenti de guiding” de lijie yu shiyong (《最高人民法院关于巡回法庭审理案件若干问题的规定》的理解与适用) [On Interpretation and Application of the “Provisions of the Supreme People’s Court on Certain Issues concerning the Adjudication of Cases by the Circuit Tribunals”]’, Renmin fayuan bao (人民法院报) [People's Court Daily] (China, 29 January 2015), 5 <http://rmfyb.chinacourt.org/paper/html/2015-01/29/content_93346.htm?div=-1> accessed 10 March 2018.

2. The decision for a total of six tribunals and the geographical coverage for each tribunal were made largely on the basis of socio-economic development, inter-regional socio-economic cooperation, population density, geographical distance from Beijing, and State development strategies. See the Li Wanxiang, Interview with Xu Jiaxin (SPC Justice), ‘Zuigao renmin fayuan zhengzhibu fuzeren jiexi xunhui fating: shixian guanxia fanwei quanfugai (最高人民法院政治部负责人解析巡回法庭：实现管辖范围全覆盖) [Person-in-Charge of the Political Department of the Supreme People’s Court Explains the Establishment of the Circuit Tribunals: Achieving Full Coverage of All Areas Within Jurisdiction]’ Xinhuanet (China, 30 December 2016) <http://news.xinhuanet.com/politics/2016-12/30/c_1120220108.htm> accessed 10 March 2018.

3. Since the establishment of the CPC Central Committee Leading Group on Comprehensively Deepening Reforms at the end of 2013, the Group had, by the end of September 2017, adopted 48 sets of judicial reform documents and 31 judicial reform plans. During the same period of time, the SPC has, either independently or jointly with other authorities, issued 137 sets of judicial reform documents. The SPC’s latest five-year reform plan (2014-2018) alone contains some 65 reform measures. See Zhou Qiang, ‘Zuigao renmin fayuan guanyu renmin fayuan quanmian shenhua sifa gaige qingkuang de baogao (最高人民法院关于人民法院全面深化司法改革情况的报告) [A Report of the Supreme People’s Court on Comprehensively Deepening Judicial Reform]’ Legal Daily (China, 2 November 2017) <www.legaldaily.com.cn/zt/content/2017-11/02/content_7375632.htm?node=89685> accessed 10 March 2018.

4. Qiao Wenxin, ‘Zhou Qiang zai zuigaorenmin fayuan xunhui fating ganbu lijing xingqianhui shangzuo gongzuobushu yaoqiu—zhashi zuohao xunhui fating gexiang gongzuo, danghao sifa gaige paitoubing (周强在最高人民法院巡回法庭干部离京行前会上作工作部署要求—扎实做好巡回法庭各项工作 当好司法改革排头兵) [Zhou Qiang Exhorts Circuit Tribunal Court Brass at Pre-departure Assembly to Perform Duties Properly and to Be the Pioneers of Judicial Reforms]’ (ChinaCourt [zhongguo fayuan wang], 26 December 2016) <www.chinacourt.org/article/detail/2016/12/id/2494645.shtml> accessed 10 March 2018.

5. Su Jingxiang, ‘Shenme shi zuigao renmin fayuan xunhui fating? (什么是最高人民法院巡回法庭？) [What Are the Circuit Tribunals of the Supreme People’s Court?]’ (Lilun Shiye [Theoretical Horizon], 25 April 2015) <http://lilunsy.ccps.gov.cn/mzyfz/201603/t20160302_74218.html> accessed 10 March 2018. Hu Yunteng (Head of the Second Circuit Tribunal), ‘Weishenme yao sheli xunhui fating? (为什么要设立巡回法庭？) [Why Do We Establish Circuit Tribunals?]’ (2015) No 12 Qiushi [Seeking Truth], 46 <www.qstheory.cn/dukan/qs/2015-06/15/c_1115588377.htm> accessed 10 March 2018.

6. Cai Changchun, ‘Meng Jianzhu: Tansuo wanshan juyou zhongguo tese shehuizhuyi xunhui fating zhidu (孟建柱：探索完善具有中国特色社会主义巡回法庭制度) [Meng Jianzhu: Perfecting the Circuit Tribunal System with Chinese Socialist Characteristics]’ (Legal Daily, 26 December 2016) <www.legaldaily.com.cn/index_article/content/2016-12/26/content_6931811.htm?node=5955> accessed 10 March 2018.

7. ibid.

8. Li Wanxiang, Interview with Xu Jiaxin (n 2).

9. ‘Xinwen 1+1: Zuigaofa xunhuifating zhutui sifagaige’ (《新闻1+1》最高法巡回法庭助推司法改革！) [News 1+1: Circuit Tribunals of the SPC Promote Judicial Reforms]’ (Zhongyang Shisantai, 29 January 2015) <http://zhongyang13.com/cctv13/xinwen1_1/20150130/14509.html> accessed 10 March 2018.

10. Initially, these pilot programs were implemented, from June 2014, in seven selected localities (Jilin, Shanghai, Guangdong, Hubei, Hainan, Guizhou, and Qinghai). A year later, a second group of 11 provinces were selected for trial implementation, and in December 2015 a third group of 14 provinces and centrally administered municipalities was approved for trial implementation. Thus, by the end of 2015, these pilot programs were being implemented nationwide, though to different extents. See Xu Xin, Huang Yanhao, and Wang Xiaotang, ‘Zhongguo sifagaige niandu baogao (2016) (中国司法改革年度报告(2016)) [Annual Report on China’s Judicial Reform (2016)]’ (2017) 34-3 Journal of Shanghai University (Social Sciences) [Shanghai Daxue Xuebao (Shehui Kexue Ban)] 16. For further discussion, see Section II.A below.

11. Zhonghuarenmingongheguo xianfa (中华人民共和国宪法) [Constitution of the People’s Republic of China] (promulgated by the National People’s Congress, 4 December 1982, as amended as of 14 March 2004). It should be pointed out that the word ‘judiciary’ or ‘judicial organs’ often refers to both the courts and procuratorates. In this article, we only use the term ‘judiciary’ to mean the courts unless otherwise specified.

12. For a detailed analysis of the Nomenklatura system in China, see Jianfu Chen, Chinese Law: Context and Transformation (rev edn, Brill Nijhoff 2016) 173–187. Since the 1950s, a vertical line of party committees has been established, with the higher level committee exercising leadership over the lower one and party committee exercising leadership over state structure (legislative, executive, and judiciary) as well as ‘social organizations’ at the same level. At the core of any state institutional establishment is the party structure. See also Liu Zhong, ‘Sijiliangshenzhi de fasheng he yanhua (四级两审制的发生和演化) [The Evolution of the “Four Levels and Two Trial” System]’ (2015) No 4 Faxue Yanjiu [Chinese Journal of Law] 41, 46.

13. Liu Zhong (n 12) 46; He Fan, ‘Zuigaorenminfayuan daqufenyuan wangshi (最高人民法院大区分院往事) [The History of the Branch Courts of the Supreme People’s Court]’ (Chongqing Lüshiwang, 25 January 2015) <www.cqlsw.net/lite/prose/2015012515289.html> accessed 10 March 2018.

14. Limited exceptions do exist in China. The Maritime Courts and Railway Transport Courts were both established to accept cases (including cross-administrative-division cases) concerning maritime affairs and cases relating to railway transport respectively, but none of them has general jurisdiction. Although initially funded by the Ministry of Transport and Ministry of Railways, they were eventually transferred to the local governments for funding. The Party groups within these courts were also subject to leadership of local Party Committee at the corresponding level.

15. Chen (n 12) 179–181.

16. As of March 2018, there are seven members in the Standing Committee of the Politburo, 25 members in the Politburo, and 205 full members and 171 alternative members in the Central Committee. See ‘Dishibajie zhonggong zhongyang zuzhi jiegoutu (第十八届中共中央组织结构图) [Organization Chart of the 18th Central Committee of the Communist Party of China]’ (People’s Daily [Renminwang]) <http://cpc.people.com.cn/GB/64162/351757/index.html> accessed 10 March 2018.

17. Tong Zhiwei, ‘Tong Zhiwei: Tongwang zhongguo fayuan duli shenpan zhi lu (童之伟：通往中国法院独立审判之路) [The Road to Independent Adjudication by Chinese Courts]’ (Aisixiang, 23 April 2016) <www.aisixiang.com/data/98970.html> accessed 10 March 2018. This source is a summary of the contents of seminars by Professor Tong at the University of Chicago, Columbia University, and George Washington University in January 2016.

18. This dependency relationship is currently subject to reform through local pilot programs. In relation to hierarchy, it should also be pointed out that until 1985, the judiciary was in fact a full level below the corresponding government. See Jiang Liping (ed), ‘Zhongguo sifa zhidu de yange he fazhan (中国司法制度的沿革和发展) [The Evolution of the Chinese Judicial System]’ (SCOPSR [Zhongyang Jigou Bianzhiwang], 28 July 2015) <www.scopsr.gov.cn/whsh/ggdf/201507/t20150728_279477.html> accessed 10 March 2018.

19. There is no shortage of literature on judicial reforms in China. See eg Peerenboom, Randall (ed), Judicial Independence in China: Lessons for Global Rule of Law Promotion (CUP 2009)CrossRefGoogle Scholar ; Li, Yuwen, The Judicial System and Reform in Post-Mao China: Stumbling towards Justice (Ashgate 2014)Google Scholar . For Chinese official accounts, see Information Office of the State Council, ‘Judicial Reform in China’ (White Paper, October 2012) <http://english.gov.cn/archive/white_paper/2014/08/23/content_281474983043170.htm> accessed 10 March 2018; Supreme People’s Court, ‘Court Reform in China’ (White Paper, updated 14 March 2017) <http://english.court.gov.cn/2017-03/14/content_28552928.htm> accessed 10 March 2018.

20. Li, Yuwen, ‘Court Reform in China: Problems, Progress and Prospects’ in Jianfu Chen, Yuwen Li and Jan Michiel Otto (eds), Implementation of Law in the People’s Republic of China (Kluwer Law International 2002)Google Scholar .

21. ‘Renmin fayuan wunian gaige gangyao (1999-2003) (人民法院五年改革纲要 (1999-2003)) [The Outline of Five-Year Reform of the People’s Courts]’ (Supreme People’s Court 法发 [1999] 28号, issued on 20 October 1999) <www.iolaw.org.cn/web/special/2015/new.aspx?id=44911> accessed 10 March 2018.

22. ‘Guanyu quanmian shenhua renmin fayuan gaige de yijian—Renmin fayuan disige wunian gaige gangyao (关于全面深化人民法院改革的意见——人民法院第四个五年改革纲要(2014--2018)) [A Summary of the Opinion on Comprehensively Deepening Reform of the People’s Courts—Outline of the Fourth Five-Year Reform of the People’s Courts]’ (Supreme People’s Court, 法发 [2015] 3号, issued on 26 February 2015). See He Xiaorong and Ma Yuanjie, ‘Renmin qunzhong de qipan shi quanmian shenghua renmin fayuan gaige de buxie dongle – “zuigao renmin fayuan guanyu quanmian shenghua renmin fayuan gaige de yijian” de beijing jiexi (人民群众的期盼是全面深化人民法院改革的不竭动力)[Wishes of the People are inexhaustible Sources of Inspriaton to Comprehensively Deepen the Reform of the People’s Court]’ (ChinaCourt [zhongguo fayuan wang], 27 February 2015) <www.chinacourt.org/article/detail/2015/02/id/1558233.shtml> accessed 10 March 2018.

23. As mentioned earlier, there is no shortage of literature on judicial reform in China (see (n 19) above), analyzing its current status and its existing problems, but none is a direct assessment of the recent reforms. The general view is that the judicial reforms so far have been more on the functions of the courts, and that is where the successes have been, but progress on institutional reforms has been limited. See Jiang (n 18).

24. For example, the restoration of the review power for all death penalties to SPC, the implementation of an Open Trial System, a Guiding Case System, and the introduction of civil trial reforms.

25. For example, the establishment of a Guiding Case System, the gradual elimination of the practice of seeking guidance from superior courts in specific adjudication cases, and the gradual reduction of powers of the adjudication committees in the court system.

26. Zou Wei and Wang Sibei, ‘Zhongyang sifa tizhi gaige lingdao xiaozu bangongshi fuzeren xiangjie si zhongquanhui jueding jida jiaodian wenti (中央司法体制改革领导小组办公室负责人详解四中全会决定几大焦点问题) [Person in Charge of Office of the CPC’s Central Committee Leading Group on Judicial Reform Explains Several Focused Issues contained in the Decision of the Fourth Session of the Central Committee of the Party]’ (Zhongguo Zhengfu Wang [State Council of People Republic of China], 31 Oct 2014) <www.gov.cn/xinwen/2014-10/31/content_2773278.htm> accessed 10 March 2018. Similarly, the President of the SPC, Justice Zhou Qiang has called for resolute rejection of the western notions of constitutionalism, separation of powers, and judicial independence: ‘Quanguo gaoji fayuan yuanzhang huiyi zai jing zhaokai, Zhou Qiang qiangdiao zhashi zuohao renmin fayuan gexiang gongzuo, Yi youyi chengji yinjie dang de shijiuda shengli zhaokai (全国高级法院院长会议在京召开 周强强调扎实做好人民法院各项工作 以优异成绩迎接党的十九大胜利召开) [Meeting of Presidents of Higher People’s Courts Nationwide Held in Beijing, All Functions of People’s Courts Are to Be Properly Performed and the Successful Opening of the 19th National Congress of the Communist Party of China Is to Be Welcomed with Excellent Results, Emphasizes Zhou Qiang]’ (Legal Daily, 14 January 2017) <www.legaldaily.com.cn/xwzx/content/2017-01/14/content_6956015.htm?node=53628> accessed 17 January 2017. See also speech delivered by Xi Jinping at the Celebration of the 60th Anniversary of the Establishment of the National People’s Congress: ‘Sheji he fazhan guojia zhengzhi zhidu yao cong guoqing chufa cong shiji chufa (设计和发展国家政治制度 要从国情出发从实际出发) [The Design and Development of a National Political System Must Start From the Practical Reality of a Nation]’ Xinhuanet (China, 5 September 2014) <http://news.xinhuanet.com/politics/2014-09/05/c_1112384483.htm> accessed 10 March 2018.

27. A firm practice has been established in China: each legal institution undertakes institutional reforms internal to its own institution, but conducted under the strict leadership, guidance and coordination of the CPC Central Committee Leading Group on Judicial Reform. On the establishment and functioning of the CPC Central Committee Leading Group on Judicial Reform, see Qin Xudong, ‘Zhongyang sifa tizhi gaige lingdao xiaozu jiexi (中央司法体制改革领导小组解析) [An Analysis of the Central Committee Leading Group on Judicial Reform]’ (Caixinwang, 16 January 2014) <http://china.caixin.com/2014-01-16/100629902.html> accessed 7 April 2017.

28. A problem that has long been recognized by the Chinese judiciary itself. See Special Investigation Group, Supreme People’s Court, ‘Guanyu sifa huodong zhong difang baohu zhuyi wenti de diaocha baogao (关于司法活动中地方保护主义问题的调查报告) [Investigation Report on Local Protectionism in Judicial Activities]’ (18 July 1996), 12–14; Qin Xudong and Ren Zhongyuan, ‘Sifa gaige jianzhi sifa difanghua (司法改革剑指司法地方化) [The Sword of Judicial Reform Aims at Local Protectionism]’ (Caixinwang, 15 November 2013) <http://china.caixin.com/2013-11-15/100605504.html> accessed 26 March 2018.

29. Ma Huaide, ‘Difang baohu zhuyi de chengyin he jiejuezhidao (地方保护主义的成因和解决之道) [Reasons and Solutions for Local Protectionism]’ (2003) No 6 Zhengfa Luntan (政法论坛) [Tribune of Political Science and Law] 156.

30. On economic decentralization and the increasing economic powers of local governments, see Jianfu Chen and Lijian Hong, China Local Business Law Guide (CCH Asia Pacific, 1999) paras 1-070 to 1-090.

31. Local judicial protectionism is defined by some Chinese scholars as a tendency in economic adjudication and enforcement by judicial authorities to render rulings and judgements which favour local parties and local economic interests. See Li Changqi, Chao Xinyong and Peng Xinshi, ‘Jingji shenpan gongzuo zhong de difang baohu zhuyi qinxiang bixu zhizhi (经济审判工作中的地方保护主义倾向必须制止) [The Tendency of Local Protectionism in the Economic Trial should be Prevented]’ (1988) No 4 Xiandai Faxue [Modern Legal Science] 71, 71. For a comprehensive examination of ‘local judicial protectionism’, see Liu Zuoxiang, ‘Zhongguo sifa difang baohu zhuyi zhi pipan (中国司法地方保护主义之批判) [A Critique on Judicial Local Protectionism in China]’ (2003) No 1 Faxue Yanjiu [Studies in Law] 83.

32. Outline of Five-Year Reform of the People’s Courts (n 21) art 43 (referring to possible revision of the Organic Law of the People’s Courts of the People’s Republic of China in relation to the court structure). See also ibid, art 44 (calling for active exploration of possible reform in the judicial cadre system so as to strengthen the supervision of the system by the Party and the People’s Congress); and art 45 (mentioning the need to actively explore possible reform in the funding system in order to secure court funding).

33. ‘Renmin fayuan dier ge wunian gaige gangyao (人民法院第二个五年改革纲要(2004-2008)) [The Second Five-Year Reform Program for the People’s Courts (2004-2008)]’ (Supreme People’s Court 法发[2005] 18号, issued on 26 October 2005) <www.cecc.gov/resources/legal-provisions/second-five-year-reform-program-for-the-peoples-courts-2004-2008-cecc> accessed 26 March 2018. The Supreme People’s Procuratorate stated the same in the second Three-Year Reform plan: ‘Guanyu jinyibu shenhua jiancha gaige de sannian shishi yijian (关于进一步深化检察改革的三年实施意见) [Implementation Opinion on Deepening Three-Year Reform of the Procuratorate System]’ (Supreme People’s Procuratorate on 24 August 2005, 高检发 [2005] 17 号, issued on 12 September 2005).

34. As will be discussed below, some measures were finally taken up by the CPC in 2013 and 2014, but the actual implementation has so far encountered some major difficulties.

35. Lubman, Stanley B, Bird in a Cage: Legal Reform in China after Mao (Stanford University Press 1999)Google Scholar .

36. T’ung-tsu Chu, Local Government in China under the Ch’ing, quoted in William C Jones, ‘Introduction’ in William C Jones et al (trs), The Great Qing Code (Clarendon Press 1994) 10.

37. Zhang Jinfan, Qiao Wei, and You Shaoyi (eds), Zhongguo fazhishi [A Chinese Legal History] (Press of the Masses [Qunzhong Chubanshe] 1986) 342.

38. On the legacy of traditional Chinese law, see Chen (n 12) 20–24.

39. In a speech to cadres attending judicial training courses in 1949, Xie Juepei, who later became the first Minister for Internal Affairs of the PRC, stressed that law was the extension of the army, the state power vested in the organs for punishment. See Northwest University of Political Science and Law (西北政法大学) (ed), Faxue jichu lilun bufen cankao ziliao 法学基础理论部分参考资料 [Reference Materials on Fundamental Aspects of Legal Theory] (Northwest University of Political Science and Law 1982) 74.

40. In the same speech as discussed in (n 39) above, Xie Juepei declared that ‘[l]aw should provide whatever politics needs, and before the law is made, policies, as usual, should be applied’: ibid 94.

41. See Government Administration Council of the Central People’s Government, ‘Zhengwuyuan guanyu jiaqiang renmin sifa gongzuo de zhishi (政务院关于加强人民司法工作的指示) [Instruction of the Government Administration Council to Strengthen People’s Judicial Work]’ in Northwest University of Political Science and Law (n 39) 40. The document was signed by then Premier Zhou Enlai, and first issued and published in the Renmin Ribao (People’s Daily) on 3 November 1950.

42. In the case of the Supreme People’s Court, at the beginning of 1969, there were only 20 people on its books, with 8 persons in charge of adjudication. In contrast, as of May 2013, the Supreme People’s Court official staff number stood at 1,169: Li Meng, ‘Zuigao fayuan de qianshi jinsheng (最高法院的前世今生) [A Brief History of the Supreme People’s Court]’ (Legal Media Bridge Blog, 22 Oct 2014) <http://blog.sina.com.cn/s/blog_5ff29ca40102v636.html> accessed 26 March 2018; Jiang Liping (n 18). More generally, see Yanlai Wang, China’s Economic Development and Democratization (Ashgate 2003) 75–82.

43. As of 1984, less than 3% of the total staff in the court system had undergraduate legal education: Li Meng (n 42). It was claimed that as of 1994 almost 50% of judges nationwide had not even completed vocational legal education. See He Weifang, ‘Tonghguo sifa shixian shehui zhengyi (通过司法实现社会正义) [Realizing Social Justice Through the Judiciary]’ in Xia Yong (ed), Zouxiang quanli de shidai: Zhongguo gongmin quanli fazhan yanjiu (走向权利的时代: 中国公民权利发展研究) [Towards an Age of Rights: Perspectives on Civil Rights Development in China] (Press of China University of Political Science and Law 1995) 228.

44. Zhonghua renmin gongheguo faguan fa (中华人民共和国法官法) [Law on Judges] (adopted by the Standing Committee of National People’s Congress on 28 February 1995, effective 1 July 1995). It was revised on 30 June 2001, and most recently, revised again on 1 September 2017.

45. The requirement was stated in the Measures on Implementation of National Judicial Examination (Trial Provisions): Guojia sifa kaoshi shishi banfa (shixing) (国家司法考试实施办法(试行)) [Measures on Implementation of National Judicial Examination (Trial Provisions)] (Ministry of Justice, SPC, and Supreme People’s Procuratorate (2001) 公告第2号, issued on 31 October 2001, effective 1 January 2002). It was revised and re-issued on 8 August 2008: Guojia sifa kaoshi shishi banfa (国家司法考试实施办法) [Measures on Implementation of National Judicial Examination] (Ministry of Justice, SPC and Supreme People’s Procuratorate, 司发[2008]11 号，issued on 8 August 2008). The National Judicial Examination will be replaced by the Unified National Legal Professional Qualifications Examination (国家法律职业资格考试) from 2018.

46. See sources in (n 26) above.

47. See Outline of Five-Year Reform of the People’s Courts (n 21); Second Five-Year Reform Outline of the People’s Courts (n 33); ‘Renmin fayuan disange wunian gaige gangyao (人民法院第三个五年改革纲要(2009-2013)) [The Third Five-Year Reform Outline of the People’s Courts]’ (Supreme People’s Court 法发 [2009]14号, issued on 17 March 2009, effective 17 March 2009) <www.court.gov.cn/shenpan-xiangqing-323.html> accessed 26 March 2018; and ‘Renmin fayuan disi ge wunian gaige gangyao (人民法院第四个五年改革纲要(2014-2018)) [The Forth Five-Year Reform Outline of the People’s Courts]’ (Supreme People’s Court法发 (2015) 3号, issued 4 February 2015, effective 4 February 2015) at <www.chinacourt.org/law/detail/2015/02/id/148096.shtml> accessed 26 March 2018. The 2013 and 2014 Party Decisions have now put this issue beyond any doubt or debate, and made it clear that the separation of the Party from the judiciary is not on the reform agenda in China today or in the near future.

48. Zhou Qiang (n 26); Meng Jianzhu, ‘zai zhongyang zhengfa weiyuanhui diershiqici quanti huiyishang qiangdiao (孟建柱在中央政法委员会第27日全体会议上强调) [Speech delivered at the 27th Plenary Meeting the Central Politico-Legal Committee]’ (Legal Daily, 31 October 2016) <www.legaldaily.com.cn/zt/content/2016-11/01/content_6861447.htm?node=75436> accessed 26 March 2018. For more detailed discussion see Jianfu Chen, ‘Out of the Shadows and Back to the Future: CPC and Law in China’ (2016) 24 Asia Pacific Law Review 176.

49. Shi Fei, ‘Zuigao renmin fayuan zhengzhi renwu de bianhua: yi 1950-2007 nian zuigao renmin fayuan gongzuo baogao wei zhongxin (最高人民法院政治任务的变化: 以1950-2007年最高人民法院工作报告为中心) [The Transformation of the Political Mission of the Supreme People’s Court: A Study of the Supreme People’s Court Work Reports 1950–2007]’ (2008) No 1 Kaifang Shidai [Open Times] 124, available at <www.aisixiang.com/data/34057.html> accessed 26 March 2018.

50. Chen (n 12) 994–995; Donald C Clarke, ‘Power and Politics in the Chinese Court System: The Enforcement of Civil Judgments’ (1996) 10 Columbia Journal of Asian Law 1.

51. Liu Zhong, ‘Guimo yu neibu zhili: Zhongguo fayuan bianzhi bianqian sanshi nian (规模与内部治理：中国法院编制变迁三十年) [Scale and Internal Governance: 30 Years of Change in the Chinese Court Structure]’ (2012) No 5 Fazhi yu Shehui Fazhi [Law and Social Development] 47, <www.ideobook.com/1277/scale-inner-governance/> accessed 26 March 2018; Jiang Liping (n 18); Li Meng (n 42); Shi Fei (n 49).

52. See Special Investigation Group, Supreme People’s Court (n 28) 17–18.

53. ibid.

54. Zhonggong zhongyang guanyu quanmian shenhua gaige ruogan zhongda wenti de jueding (中共中央关于全面深化改革若干重大问题的决定) [The CPC Decision on Certain Major Issues in Comprehensively Deepening Reform] (adopted at the Third Plenary Meeting of the 18th Central Committee of the CPC on 12 November 2013), English translation available at <www.china.org.cn/china/third_plenary_session/2014-01/16/content_31212602.htm> accessed 10 March 2013.

55. 2013 CPC Decision, s 9. For a summary of the reforms, see Meng Jianzhu, ‘Shenhua sifa tizhi gaige 深化司法体制改革 [Deepening Judicial Reforms]’ (Renmin Ribao [People’s Daily], 25 November 2013) <http://opinion.people.com.cn/n/2013/1125/c1003-23643844.html> accessed 26 March 2018. See also (n 76) below.

56. Zhonggong zhongyang guanyu quanmian tuijin yifuzhiguo ruogan zhongda wenti de jueding (中共中央关于全面推进依法治国若干重大问题的决定) [CPC Decision concerning Certain Major Issues in Comprehensively Moving Forward Ruling the Country According to Law] (adopted at the Fourth Session of the 18th Central Committee of the CPC on 23 October 2014), English translation available at <http://chinacopyrightandmedia.wordpress.com/2014/10/28/ccp-central-committee-decision-concerning-some-major-questions-in-comprehensively-moving-governing-the-country-according-to-the-law-forward/> accessed 24 April 2017.

57. After high praise for the inclusion of a number of major reform measures in the 2013 CPC Decision (see Tang Shihua, ‘Sifa gaige zhenzheng maichule guanjian yibu: duihua yunnansheng gaoyuan fuyuanzhang Tian Chengyou (司法改革真正迈出了关键一步: 对话云南省高院副院长田成有) [Judicial Reforms Finally Taking a Genuine Step: A Conversation with the Deputy Chief Justice Tian Chengyou]’ (Legal Daily, 18 December 2013) <www.legaldaily.com.cn/xwzx/content/2013-12/18/content_5127768.htm> accessed 26 March 2018, scholars suddenly became disappointed that the 2014 CPC Decision did not follow up the initiatives in the 2013 CPC Decision, such as specific methods of centralized funding for courts below the provincial level.

58. Chen Lei, ‘Sifa gaige yudao zuli, zhongyang shengaizu bushu xianxing shidian (司法改革遇到阻力-中央深改组部署先行试点) [Judicial Reforms Encounter Obstacles – Central Committee Leading Group Decided First to Undertake Local Trials]’ (Legal Daily, 12 June 2014) <www.legaldaily.com.cn/index_article/content/2014-06/12/content_5598628.htm?node=6148> accessed 26 March 2018.

59. As mentioned earlier, these programs, still called local pilot programs, were soon implemented nationwide; see (n 10).

60. SPC, ‘Court Reform in China’ (n 19); Xu Xin, Huang Yanhao, and Wang Xiaotang (n 10).

61. The translation below is adapted (and revised against the original Chinese text) from an English text that is available at <www.china.org.cn/china/third_plenary_session/2014-01/16/content_31212602.htm> accessed 24 April 2017.

62. The establishment of cross-administrative-division courts is mandated by the 2014 CPC Decision, but for now has only been tried in Beijing and Shanghai. For both cities, the new cross-boundary courts (and procuratorates) are established based on the system of railway courts (and procuratorates) in Beijing and Shanghai. Interestingly, the 2017 Supreme People’s Court Report to the NPC (delivered on 12 March 2017, adopted on 15 March 2017) said little about the establishment of these courts, suggesting that the progress has been very limited. Some 8 months later in November 2017, the SPC again found little to add to this important aspect of judicial reform when its President delivered a special report on judicial reforms to the Standing Committee of the NPC. See Zhou Qiang (n 3).

63. SPC, ‘Court Reform in China’ (n 19) 11.

64. As at the end of September 2017, only 13 provinces have established centralised funding mechanisms: Zhou Qiang (n 3).

65. For a detailed report on the status of progress of the various reforms, see the report by Zhou Qiang (n 3).

66. Guo Jinchao and Jiang Tao, ‘Zhongguo zuigaofa: Xunhui fating sheli zanwu mingque shijianbiao (中国最高法：巡回法庭设立暂无明确时间表) [Supreme People’s Court: There Is No Specific Timetable for the Establishment of Circuit Tribunals]’ (Zhongxinwang [China News], 1 November 2014) <www.chinanews.com/gn/2014/11-01/6739934.shtml> accessed 26 March 2018.

67. Sun Jungong, ‘Guanyu zuigao renmin fayuan xunhui fating youguan qingkuang de xinwen fabugao (关于最高人民法院巡回法庭有关情况的新闻发布稿) [Press Release by the SPC on the Circuit Tribunals]’ (SPC, 28 January 2015) <www.court.gov.cn/xunhui1/xiangqing-13539.html> accessed 26 March 2018.

68. He Fan (n 13). In fact, -para 2 of art 10 of the Interim Organic Regulation of the PRC for People’s Courts specifically stipulated that ‘People’s Courts (including branch courts or branch tribunals of the Supreme People’s Court) at all levels are a component part of the people’s governments at the same level and are subject to the leadership and supervision of the people’s government committee of the same level’: Fayuan zanxing zuzhi tiaoli (法院暂行组织条例) [Interim Organic Regulation for People’s Courts] (adopted at the Central People’s Committee Conference on 3 September 1951, issued on 4 September 1951) available at <www.npc.gov.cn/wxzl/wxzl/2000-12/10/content_4254.htm> accessed 26 March 2018.

69. Liu Zhong (n 12) 44.

70. Also called ‘Liberation War’ in China, it was a war fought between the Kuomintang (KMT) and CPC from 1945 to 1949.

71. It was officially abolished in July 1954. See He Fang (n 13). For further analysis see Fang Siyuan, ‘Zuigao renmin fayuan xunhui fating de zhidu jian’gou (最高人民法院巡回法庭的制度建构) [On Institutional Building of the Circuit Tribunals of the Supreme People’s Court]’ (2015) No 2 Falü Kexue [Science of Law], <http://article.chinalawinfo.com/ArticleFullText.aspx?ArticleId=93549> accessed 26 March 2018.

72. See discussion above at (nn 13–14).

73. Chen (n 12) 994–1000. See also 2014 CPC Decision, s I para 7.

74. Liu Zhong (n 12) 41.

75. See (n 28).

76. Fang Siyuan (n 71) fn 1. Similarly, the idea to establish cross-administrative boundary courts was officially raised by then-SPC President, Mr Xiao Yang, in 2003: Liu Zhong (n 12) 57.

77. SPC Provisions, art 2.

78. Fang Siyuan (n 71) fn 3.

79. Sun Jungong (n 67); Li Wanxiang, Interview with Xu Jiaxin (n 2).

80. There is no definition of Zhushen Faguan. In practice, such a judge may be the sole judge, trial judge, or the presiding judge in a particular case. See He Xiaorong, He Fan and Ma Yuanjie (n 1). The use of this term is confusing as it confuses the functions of a judge with that of their identity.

81. SPC Provisions, art 1.

82. Sun Jungong (n 67).

83. ibid.

84. In a status-conscious society like China, it is also important to note that all heads of the circuit tribunals were appointed from SPC judges who are already at the rank of vice minister (ie vice presidents of the SPC), a fact that has been emphasized by most media reports on the establishment of the tribunals.

85. Sun Jungong (n 67); Li Wanxiang, Interview with Xu Jiaxin (n 2).

86. SPC Provisions, art 3. As emphasised by the SPC judges, the Provisions do not use the word ‘jurisdiction’, instead, they use the term ‘to accept cases’. See He Xiaorong, He Fan and Ma Yuanjie (n 1).

87. SPC Provisions, art 3.

88. SPC Provisions, art 4.

89. SPC Provisions, art 8.

90. 2014 CPC Decision, s IV.

91. He Xiaorong, He Fan and Ma Yuanjie (n 1). However, there is nothing in the Provisions that would prevent the head or deputy heads of a tribunal doing so.

92. He Xiaorong, He Fan and Ma Yuanjie (n 1).

93. Zhou Qiang (n 3).

94. See Li Wanxiang, Interview with Xu Jiaxin (n 2).

95. Zhou Bin, ‘Zuigaofa xunhui fating fugai woguo liuda quyu (最高法巡回法庭覆盖我国6大区域) [Circuit Tribunals of the Supreme People’s Court Cover Six Greater Regions]’ (Legal Daily, 26 December 2016) <www.legaldaily.com.cn/xwzx/content/2016-12/26/content_6932278.htm?node=53628> accessed 26 March 2018.

96. See the Preamble to the SPC Provisions.

97. Sun Jungong (n 67).

98. See Li Wanxiang, Interview with Xu Jiaxin (n 2).

99. Fang Siyuan (n 71).

100. Li Meng (n 42).

101. Su Jingxiang (n 5).

102. Indeed, the SPC has now become a legitimate political centre, and potentially, a major factor in political infighting due to its policy-making functions. As such, it is in the SPC’s self-interest to focus on such functions rather than to be consumed by adjudication of individual cases. See Liu Zhong (n 12).

103. Fang Siyuan (n 71). Not surprisingly, some Chinese scholars believe that these are the principal reasons for the establishment of the circuit tribunals: Fang Le, ‘Zuigao renmin fayuan xunhui fating de zhidu gongneng (最高人民法院巡回法庭的制度功能) [Institutional Functions of the Circuit Tribunals of the Supreme People’s Court]’ (2017) No 3 Faxue Jia [Jurists] <www.jcfzw.cn/fang-le-zui-gao-ren-min-fa-yuan-xun-11233.html> assessed 26 March 2018.

104. See ‘News 1+1: Circuit Tribunals of the SPC Promote Judicial Reforms’ (n 9).

105. ibid.

106. See various contributions to Nathan Beauchamp-Mustafaga (ed), ‘Special Issue on China’s Fourth Plenum’ (Issue 22, China Brief, 20 November 2014) <https://jamestown.org/wp-content/uploads/2014/11/China_Brief_Vol_14_Issue_22_1_01.pdf?x87069> accessed 26 March 2018.

107. For detailed analysis on this point, see Chen (n 48).

108. On political efforts to separate the Party from the State in post-Mao China, see Chen (n 48) 183–186.

109. For a comprehensive analysis on these aspects, see Chen (n 48). See also Xi Jinping, ‘Zai zhongguo gongchandang dishijiu ci quan’guo daibiao dahui shang de baogao (在中国共产党第十九次全国代表大会上的报告) [Political Report delivered at the 19th CPC National Congress]’ XinhuaNet (China, 27 October 2017) <http://news.xinhuanet.com/politics/19cpcnc/2017-10/27/c_1121867529.htm> accessed 26 March 2018.

110. Xi does this by creating many CPC Leading Groups, which are headed by himself, to exercise powers that would otherwise be exercised by the State Council. See ‘Xi Jinping tian xintouxian—junmin ronghe fazhan weiyuanhui zhuren (习近平添新头衔——军民融合发展委员会主任) Xi Jinping has just acquired another title – Director of the Central Development Commission on Military-Civil Harmony’ (BBC Chinese, 22 January 2017) <www.bbc.com/zhongwen/simp/chinese-news-38710782> accessed 10 March 2018. For further analysis, see Chen (n 48).

111. Not surprisingly, some Chinese scholars see this reform as a ‘historical contribution’ to judicial reforms. See Luo Dian, ‘Xunhui fating zhidu de lishixing gongxian (巡回法庭制度的历史性贡献) [Historical Contribution Made by the Circuit Tribunal System]’ (Renmin Fayuan Bao [People’s Court Daily], 16 June 2017) <http://rmfyb.chinacourt.org/paper/html/2017-06/16/content_126680.htm> accessed 26 March 2018.

112. See (nn 13–14).