Judicial Independence and Rule of Law in China

Chinese courts have traditionally been viewed as Party/State organs with judges inclined to see themselves as part of the government. However, as economic and legal reforms have progressed the role of the courts has changed. Economic expansion has produced a more divided and pluralistic society that entails growing social cleavages and a rapidly expanding middle-class with significant interests to protect. As a consequence, citizens are increasingly looking to the courts to resolve disputes and to provide a neutral forum for reducing social tensions. The judiciary therefore is being asked to play a greater and more crucial role than in the past.

Before 1995 a minority of the Chinese judges were law school graduates, and those entering the judiciary generally relied on their connections to get there. A large amount of those appointed to the bench were drawn from the ranks of military officers. In the lower level positions, judges were promoted based on their experience and relations. In order to tackle such circumstances and satisfy the demands of the “new Chinese People,” the Judges Law of 1995 required mandatory college education for those who would enter the judiciary. The law established an obligatory national examination, as well as continuing legal education requirements for sitting judges. This law was subsequently amended to require that new judges must have two years in legal practise in addition to a Bachelor’s degree. The law also provided that unqualified judges were to be dismissed or transferred to non-adjudication posts. Presiding judges are to be chosen by competitive selection, and are required to possess superior verbal and written skills. All in all, the purpose of the law was to introduce merit based standards to replace the past political motivations.[1]

According to reports, after 1995 80% of the judges had a least dazhuan qualifications, meaning two years of legal training at college level. However, only 5% had a benke four year Bachelor degree, and only around 2% held a graduate degree in law continuing to raise doubts as to the level of judicial competence. Furthermore, in 1999 the People’s courts supervised and reviewed 96,739 cases, and corrected judgment in 21,862, which produced criticism on the lack of legitimacy of the legal system.[2]

Today in China judges can be dismissed for lack of competence, poor health, and certain forms of conduct like embezzling money, confessions by torture or false evidence. This dismissal can also be exercised for political reasons such as divulging state secrets, joining illegal organizations, assemblies and demonstrations. In general terms, judges can be dismissed for what is defined as behaving in ways not worthy of a judge.[3]

It is commonly pointed out that corrupt practices like maiguan maiguan are yet common in less-developed regions. The cases of corruption of judges are usually connected to their lack of remuneration. The lack of funding of regional judges to some extent explains the illegal confiscation of property, or freezing of accounts. Furthermore, courts in rural areas often lack basic infrastructure, and usually consist of a desk, some chairs without computers or equipment. Legal practice therefore is often difficult. Economic sufficiency of the judiciary in all the areas of China appears to be essential to put an end to corruption and for facilitating an adjusted functioning of the judiciary.[4]

As with the rural areas, some cities in China have a greater reputation for being corrupt than others. Judicial corruption is considered more serious in Beijing than in Shanghai. Malpractice of the judges such as bribery, ex-parte meetings in restaurants, karaoke bars, saunas, and other “investigation trips” with the interested parties, have brought several protests and scandals. In 1998 an “Educational Rectification Campaign” was launched, which in six months resulted in 12,000 citizen reports of illegal activities by courts and prosecutors, disciplining around 5,000 judges and prosecutors, and acts of correction in over 8,000 cases. [5]

Only when a judge is competent can the independence of the judiciary be guaranteed. Judicial independence and competence are key elements for ensuring a society governed by the rule of law. Rule of law as referring to the principle by which all persons, institutions, and entities, public and private, including the State itself, are accountable to laws that are publicly promulgated, equally enforced and independently adjudicated and which are consistent with international human rights, norms and standards. It requires, as well, measures to ensure adherence to principles of supremacy of law, equality before law, fairness in the application of law, participation in decision-making, legal certainty, avoidance of arbitrariness and procedural and legal transparency. In all these elements competent and independent judges have a vital role.[6]

Judicial corruption has a serious and negative effect on the whole legal system. The experiences of other developing countries show that runaway corruption undermines critical governing institutions, fuels public resentment, exacerbates socioeconomic inequality, creates massive distortions, and magnifies the risks of crises. The failure to contain official corruption may endanger China’s economic development.[7]

China appears to demand new measures that are the product of a gradual generational change. For the interests of Chinese society as a whole, greater judicial independence and meritocracy should be implemented in their courts in order to provide a strong legal system governed by the rule of law rather than the interest of the Party. Considering the fundamental role that judges play in a society, and for a legal system, China should exercise every effort to provide for adequate resources and recruit competent professionals to the judiciary. When competence and independence of the primary legal actor are introduced, rule of law may be effective, and China’s model will progress further.

[1] R. Peerenboom, China’s Long March toward the Rule of Law Cambridge: Cambridge University Press (2002); M. Pei, Corruption threatens China’s Future, Carnegie Endowment of International Peace, Policy Brief, 55 (2007).

[2] Ibid. See also: J.M. Otto, Conclusion: A Comparative Outlook on Law-Making in China. in: J.M. Otto, M.V. Polak, J. Chen and Y Li, Law-Making in the People’s Republic of China, The Hague: Kluwer Law International (2000).

[3] Ibid.

[4] Ibid.

[5] Ibid.

[6] Report of the Secretary General S/2004/616 (2004); See also Amnesty International, People’s Republic of China: Establishing the rule of law and respect for human rights: The need for institutional and legal reforms (2002).

[7] Ibid.


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