The judicial branch, organized under the constitution and organic law, is one of five organs of state power elected by the National People's Congress (NPC), in the People's Republic of China. China does not have judicial independence or judicial review as the courts do not have authority beyond what is granted to them by the NPC under a system of unified power. The Chinese Communist Party's Central Political and Legal Affairs Commission maintains effective control over the court system and its personnel.[1] [2] Hong Kong and Macau have separate court systems in accordance with the "one country, two systems" doctrine.
According to the Constitution of the People's Republic of China of 1982 and the Organic Law of the People's Courts that went into effect on January 1, 1980, the Chinese courts are divided into a four-level court system (Supreme, High, Intermediate and Primary):
Candidates for judgeship must pass the National Unified Legal Professional Qualification Examination. All lawyers must take an oath pledging loyalty to the Chinese Communist Party.[3]
The court system is paralleled by a hierarchy of prosecuting offices called people's procuratorates, the highest being the Supreme People's Procuratorate.
Local departments of justice can revoke the license of lawyers, this power is used to target lawyers who challenge the authority of the state, particularly human rights lawyers.[4]
The Supreme Court is responsible for establishing and monitoring legal procedures in adherence to the laws and orders made by the legislative organs.
Following civil law traditions, the courts do not establish legally-binding precedent. The Supreme Court has the right to publish legal explanations of laws which are legally-binding but the right to interpret the constitution is reserved by the legislative organs.A verdict made by an inferior court can be challenged in its superior court, up to the Supreme Court, there are four levels of courts in total. A superior court can also designate any of its inferior courts to hear an appeal rather than do so itself.
Court proceedings in China are generally livestreamed, with exceptions including where classified information is discussed or where juveniles testify.
Besides the court system, it is also encouraged to resolve civil conflicts through a state-sponsored and -regulated mediation and arbitration system. After the first hearing of a civil case, the court is required by law to ask both parties if they are willing to resolve their conflict through mediation. If agreed, the court should assign a mediator and oversee the process. If both parties reach an agreement, it will be legally binding after the agreement is reviewed and documented by a judge of the court.
The enforceability of a civil verdict has long been an issue of some controversy, damaging the people's trust in the legal system. To address the problem of civil law enforceability, the Supreme People's Court has established a system to forbid debtors who fail to honor civil verdicts from exorbitant spending, including five-star hotels, air flights, and bullet trains, though there is controversy as to whether this gives the court too much authority.[5]
Courts allow litigants to communicate with it via WeChat, through which the litigant parties can file lawsuits, participate in proceedings, present evidence, and listen to verdicts.[6] As of December 2019, more than 3 million litigants had used WeChat for litigation.
Between the Anti-Rightist Campaign of 1957 and the legal reforms of 1979, the courts—viewed by the leftists as troublesome and unreliable—played only a small role in the judicial system. Most of their functions were handled by other party or government organs. In 1979, however, the National People's Congress began the process of restoring the judicial system. The world was able to see an early example of this reinstituted system in action in the showcase trial of the Gang of Four and six other members of the "Lin-Jiang clique" from November 1980 to January 1981 (see the Four Modernizations). The trial, which was publicized to show that China had restored a legal system that made all citizens equal before the law, actually appeared to many foreign observers to be more a political than a legal exercise. Nevertheless, it was intended to show that China was committed to restoring a judicial system.
The Ministry of Justice, abolished in 1959, was re-established under the 1979 legal reforms to administer the newly restored judicial system. With the support of local judicial departments and bureaus, the ministry was charged with supervising personnel management, training, and funding for the courts and associated organizations and was given responsibility for overseeing legal research and exchanges with foreign judicial bodies.
The 1980 Organic Law of the People's Courts (revised in 1983) and the 1982 State Constitution established four levels of courts in the general administrative structure. Judges are elected or appointed by people's congresses at the corresponding levels to serve a maximum of two five-year terms. Most trials are administered by a collegial bench made up of one to three judges and three to five assessors. Assessors, according to the State Constitution, are elected by local residents or people's congresses from among citizens over twenty-three years of age with political rights or are appointed by the court for their expertise. Trials are conducted by the inquisitorial system, in which both judges and assessors play an active part in the questioning of all witnesses. This contrasts with the adversarial system, in which the judge is meant to be an impartial referee between two contending attorneys. After the judge and assessors rule on a case, they pass sentence. An aggrieved party can appeal to the next higher court.
The Organic Law of the People's Courts requires that adjudication committees be established for courts at every level. The committees usually are made up of the president, vice presidents, chief judges, and associate chief judges of the court, who are appointed and removed by the standing committees of the people's congresses at the corresponding level. The adjudication committees are charged with reviewing major cases to find errors in determination of facts or application of law and to determine if a chief judge should withdraw from a case. If a case is submitted to the adjudication committee, the court is bound by its decision. The Supreme People's Court stands at the apex of the judicial structure. Located in Beijing, it has jurisdiction over all lower and special courts, for which it serves as the ultimate appellate court. It is directly responsible to the National People's Congress Standing Committee, which elects the court president.
China also has 'special' military, rail transport, water transport, and forestry courts. These courts hear cases of counter-revolutionary activity, plundering, bribery, sabotage, or indifference to duty that result in severe damage to military facilities, work place, or government property or threaten the safety of soldiers or workers.[7]
Military courts make up the largest group of special courts and try all treason and espionage cases. Although they are independent of civilian courts and directly subordinate to the Ministry of National Defense, military court decisions are reviewed by the Supreme People's Court. Special military courts were first established in 1954 to protect the special interests of all commanders, political commissars, and soldiers, but they ceased to function during the Cultural Revolution (1966–76). Military courts and procuratorates were reinstituted in October 1978, and open military trials resumed in December of that year.
In April 1986, at the Fourth Session of the Sixth National People's Congress, the General Principles of the Civil Code was approved as "one of China's basic laws." Consisting of more than 150 articles, the code was intended to regulate China's internal and external economic relations to establish a stable base conducive to trade and attractive to foreign investors. Many of its provisions define the legal status of economic entities and the property rights they exercise. The code clearly stipulated that private ownership of the means of production is protected by law and may not be seized or interfered with by any person or organization. It also recognizes partnerships and wholly foreign-owned or joint-venture enterprises.[8]
In March 2011, National People's Congress enacted a revised Criminal Procedure Law which prohibited self-incrimination, allowed for the suppression of illegally obtained evidence, and ensured prompt trials for suspects. The State Council's 2012 white paper on judicial reform, unlike previous papers, does not mention the subordination of the judicial system to "the leadership of" the CCP, and replaces mentions of the Party in other places with "China".[9]
In 2013, the SPC issued Opinions Concerning Sentencing Guidelines for Frequently Committed Offences, which aimed to achieve consistency in sentencing for similar offenses. Therefore, China divided the guidelines into four sections: the guiding principles of sentencing, basic sentence methodology, applications of common mitigating and aggravating factors, and sentences for common offences.[10] These guidelines introduced a methodology for calculating sentences, involving three components: a sentencing starting point, a baseline sentence, and a final sentence. The starting point was determined based on the primary constituent facts of a crime, while the baseline sentence considered secondary facts related to the offense. A final sentence was derived from an adjusted baseline sentence, considering various mitigating and aggravating factors. However, these guidelines were only applicable to less serious offenses, leaving serious crimes without specific guidance.[10]
From 2014 to 2017, the judicial system underwent significant reform aimed at curbing judicial favoritism. Among the key reform provisions was recentralizing personnel appointments and fiscal management of basic and intermediate courts, with these decisions now being made by provincial governments.
In 2015, China began publishing all court decisions in civil and criminal cases across all tiers of the judiciary. This database, the China Judgment Online database, is the world's largest collection of judicial decisions. Although the Supreme People's Court mandates that all local courts upload their judgments, the local courts' compliance with this mandate varies. In 2021, millions of court verdicts were removed, including all capital punishment verdicts.[11] In 2023, administrative proceedings were also removed.[12]
The Supreme People's Court in 2018 began promoting the Mobile Micro Court app. As of March 2020, over 1.3 million people had used the Mobile Micro Court app and over 437,000 cases had been filed through it.
In 2019, the city of Hangzhou established a pilot program artificial intelligence-based Internet Court to adjudicate disputes related to ecommerce and internet-related intellectual property claims. Parties appear before the court via videoconference and AI evaluates the evidence presented and applies relevant legal standards. Following the Hangzhou Internet Court, the Beijing Internet Court and Guangzhou Internet Court were established.[13] In these courts, all aspects of the judicial process from case filing through conclusion are handled online. Major cities including Shanghai, Tianjin, Shenzhen, Wuhan, and Chengdu have established specialized court divisions for cases arising from online disputes.
The Chinese government is also promoting the development of a "smart court" system to increase the use of technology such as artificial intelligence and blockchain to streamline proceedings. The Hangzhou Internet Court was the first court in China to accept blockchain evidence to prove the content of a website at a particular point in time, rather than the public notary method traditionally used to do so.
In February 2023, the General Office of the Chinese Communist Party issued a text titled Opinions on Strengthening Legal Education and Legal Theory Research in the New Era that called for purging "Western erroneous views" from legal education, including constitutional government, separation of powers, and judicial independence.[14] The CCP text is based around adaption and implementation on the views on judicial theory and socialist rule of law with Chinese characteristics as examined in Xi Jinping's published text 'Thought on the Rule of Law'.[15]