Highlights for China’s Newly Amended Judge Law
On April 23, China amended its Judge Law. This is the third amendment (“New Judge Law”) since it was passed as law in 1995. As mentioned in some of my articles, China’s rapid economic development and social changes have made laws and regulations to be changed and adjusted too frequently. Frequent changes to the law are good to address and deal with new issues emerging from the economic development and are ways “to formalize the achievements made from economic and institutional reforms”. However, it also reveals the weakness that China’s legal system is not “stable” or “endurable” to be tested by the time. This is the issue that China’s law makers have to think more profoundly.
Notwithstanding, however, the New Judge Law actually has highlighted some points that China’s judicial reform has been trying to achieve in order to provide an impartial, independent and better functioned judicial system to meet calls from the society and for the protection of foreign investment, for example, how to select quality judges and make judges function as legal professionals instead of governmental officials; how to encourage and foster judge’s independence in decision making without looking behind who is in charge; how to provide a well-established discipline mechanism to ensure judicial power vested to judges would not be abused.
Let’s take a look some highlights from the New Judge Law.
Level up legal practice experience as condition to become a judge
In addition to general requirements, the New Judge Law levels up the qualification requirements for new judges with combined criteria in legal education, bar examination and particular practice experience. Generally, to become eligible to be a new judge, the minimum legal education is bachelor’s degree in law (LLB) or master’s degree if undergraduate degree is not LLB (similar to J.D. degree in US). This requirement could be loosened up for those from less developed regions (for example, inland cities or remote rural areas). Also, now the law requires 3-5 year instead of previous 1-3 year professional practice experience depending on the law degree earned. The higher law degree is earned, the less practice experience is required. For example, 3-year practice experience for all PhD degree judge candidates and 5-year practice experience for all LLB degree judge candidates. The requirement in professional practice eliminates the situation where some people might use their well-established social connection to become a judge quickly.
And, all candidates must pass the bar exam, which imposes another challenge for judge candidates. In China, we call bar exam the most difficult one in the world. Based on statistics, from 2002 to 2017, the average passing rate for bar exam was 14.3%. Many people who had worked for a court with hope to become a judge one day had never passed bar and eventually were removed from the court to work in government branches.
Court Chief must have legal knowledge and legal profession experience
Court chief typically is elected by the local congress. In the past, the law did not expressly require legal knowledge and experience to be part of conditions to be nominated as a court chief but said the election of court chief should be “from incumbent judges or prosecutors and others eligible to be a judge”. That language in history had offered some opportunities for people who had never been in legal profession to become a court chief. Now, the New Judge Law adds legal knowledge and legal practice experience as a condition to be nominated, which, as a matter of fact, requires from now on that all court chiefs must be legal professionals before being nominated. It seems the law makers have realized the leaders in judicial system should not be purely politicians but should have legal experience in order to take responsibilities in leading the court practice.
Assistant Judge no longer exists
Before, assistant judge was the part of judge category and had played important role in judicial practice. Typically, they were authorized to handle small and simple cases or to be part of judge panel as required in more complex cases. However, in the New Judge Law, assistant judge is no longer a part of judge family. The term has been eliminated from judge category. Instead, a position “judge assistant” has been created, who is not a judge but a legal assistant to help judge to review case materials, draft legal documents and do other ancillary jobs for judges.
However, judge assistant is still considered to be a legal professional. As long as a judge assistant has met judge qualification requirements, he is eligible to become a judge in future.
Judge Selection Committee
The New Judge Law establishes the Judge Selection Committee (“JSC”) responsible to review and examine the eligibility of new judge candidates for purpose of judge selection. The new law establishes 2 committees respective at provincial level and supreme court level. Provincial JSC is set up in higher court and is responsible only to judges selected in the said province, including judges for district courts, intermediate courts and higher court. The JSC of Supreme Court is only responsible to selection of judges for the Supreme Court.
The members of the Provincial JSC are comprised of judge representatives from local courts and representatives from other legal professions, of which the judge representatives should not be less than 1/3 of total number. However, it does not provide detailed rules how JSC works, for example, what are the total number of members, how to select members, how to vote…
After new judges are selected by the Provincial JSC and then appointed by the local congress, generally, all newly appointed judges are required to start their career in the grassroot court. This breaks the tradition that new judges always stay at the same court to work. The new rule actually has brought some painful transition time for those who are not willing to relocate to work in another place.
Part-time prohibition, judge’s recusing and practice restriction after retirement
China is a country where friends and families are import social relationship for everyone based on Confucian tradition. Confucian tradition has made China a very challenging place to be “independent” and “not social” in consideration of the need to maintain a normal social connection with friends and families. To eliminate the situations where friends and families could impact judge’s decision, many solutions had been proposed in the past, for example, judge should not meet the litigant in person; retired or resigned judge should not represent clients before the court where he used to work for; court chief has to be relocated to other cities that are not his birth place…the New Judge Law has reflected those ideas by providing several rules to avoid interest conflict and to foster better environment for judges’ fulfillment of their judicial duties.
(1) Part-time prohibition. The New Judge Law provides that the judge in China shall not become a member of the standing committee of the local congress; shall not bear a part-time duty in the executive branches, supervision agencies or prosecution offices; shall not take part-time job in private entities or other organizations for profit; and shall not be a lawyer, arbitrator and notary public while being a judge.
(2) Co-worker prohibition. If marital relationship, lineal relative by blood, collateral relatives by blood up to three generations and close relatives by marriage exist in judges who are working in the same court or adjacent courts, they are prohibited from serving in the same court as co-worker (court chief, depute court chief, member of judicial committee, director or depute director of court division, judge) or as court chief or depute court chief in adjacent courts with judicial supervisory relationship, for example, if husband is a court chief in the district court and wife is a deputy court chief in the appellate court, one of them must be relocated to another court that has no supervisory relationship to the other.
(3) Judicial duty recusing. If a judge’s spouse, parents or child is the partner of a law firm in the judge’s jurisdiction, or is representing clients in his/her jurisdiction, the judge shall be recused himself from his judicial duties.
(4) Restriction to practice law after resignation or retirement. Also, the law prohibits judges from practicing law representing the clients in the same jurisdiction after they are retired or resigned from that jurisdiction.
Quota management for number of judges in the jurisdiction
China uses quota system to manage the total number of judges in each jurisdiction determined by certain criteria such as caseload, social economic development, population and level of court with special consideration for needs of grassroot courts. This is a major reform recently made to professionalize Chinese judges.
The quota system actually eliminates the situations of recruiting “judge backups” at any time from the law school graduates or other resources. Since judge position can only be filled when there is vacancy available, together with the establishment of JSC, selection of new judges would become very strict process. It will become difficult for each court to add a judge to the bench without going through a complex selection and appointment process.
Quota system for the number of judges has been reshaping the landscape of selecting judges in China.
Protection for judges in fulfilling judicial duties
To make fair, impartial and independent decision, with no doubt legal knowledge and experience are important to produce well-reasoned and tested decisions. But social and political environment is also fundamentally important so judges would not be restrained by political and social pressures from making right decisions. The New Judge Law establishes Safeguard Committee for Judge’s Rights. Without legitimate reasons, the judge shall not be removed from the bench. In addition, the judge has rights to refuse any request from any person to do anything that is out of their judicial duties. Finally, the new law provides protection to judges and their close families from defamation, revenge and personal attacks…The New Judge Law highlights the needs to protect judges. Together with rules of performance review and discipline, all these might provide a better environment to encourage judges to fulfill their judicial duties without being afraid of outside pressures.
Judge’s performance review, reward and discipline mechanism
In addition to judge’s protection mechanism, the New Judge Law also provides mechanism for judges’ performance review, reward and discipline rule for their practice. We particularly want to mention the establishment of Judge Discipline Board (“JDB”) to review whether a judge has violated rules intentionally or in matter of gross negligence in performing the judicial duties. However, it is uncertain whether the JDB would function well as its design is based on two facts: (1) it sounds more like an internal organ as it is set up inside of the court system; (2) a half members of JDB are judges although the other half are from other legal professionals. The new law does not provide rules for how JDB works.
To achieve the goal of providing a fair, impartial and independent judicial system under the current political system has been a core mission for China’s judicial reform. Since the first judge qualification exam held in 1995, China has explored many ways to find ultima solutions for reforming its judicial system, including improving the quality of judges, providing procedural, discipline mechanism to ensure fairness, impartiality in decision making process, improving efficiency in court and case management through digital solutions... While having seen huge improvement made to the court practice, however, still people felt past efforts had not touched essential flaws existing in the court system, which had impacted judges to be more professional and more independent in deciding cases. In recent years, starting from Shenzhen, some proposals for furthering reform had been experimented in some major cities, which now reflects in the New Judge Law, for example, adding more practice experience to judge candidates, requiring court chiefs to be law professionals, establishing JSC and JDB, providing protection for judge’s duty fulfillment…It seems the essential mission of the New Judge Law is to professionalize China’s judges and to separate them from being treated as government officials, which is a huge leap for improving the quality of China’s judges and fostering a better independent judicial environment.
However, we feel the New Judge Law is quite rough and many new mechanisms do not have detailed rules to enforce, for example, how JSC to work on judge selection, how JDB to review judge’s behavior for discipline purpose, etc. Further, we see the New Judge Law continues to keep administrative function among judges, court divisions and courts like in executive branches in addition to judge class, which would continue to be a factor to discourage those judges working at the front line. Finally, since the newly appointed judges would be assigned to the grassroot courts, and judges in higher courts will be selected from the lower courts, how to shuffle those judges would be a big challenge in practice.
Having said that, the New Judge Law is a big leap from the previous version. Professionalization of Chinese judges is important to offer a better image of Chinese judges to the world, particularly when China has wowed to provide a better judicial system to protect foreign investment in China.
(Note: As a matter of fact, many new rules in the New Judge Law could also be found in the Court Organization Law of PRC amended in 2018 and other earlier documents related to China’s judicial reform. It is recommended to read those for better understanding of the legislative history for the changes. In this short article, we only mention the New Judge Law.)