Court­ing change in China’s ju­di­ciary

The na­tion’s legal ea­gles are as­sess­ing a se­ries of far-reach­ing re­forms to the legal sys­tem de­signed to im­prove the ser­vice and al­low judges greater in­de­pen­dence when hear­ing cases and reach­ing ver­dicts, as Cao Yin re­ports.

China Daily (Canada) - - FRONT PAGE -

Four days be­fore the Bei­jing In­tel­lec­tual Prop­erty Court opened on Nov 6, Jiang Ying was in­vited to join the new in­sti­tu­tion as a se­nior judge.

Although the 47-year-old was happy in her old job, she couldn’t re­sist the op­por­tu­nity to work at the IP court, which is part of a pi­lot pro­gram to as­sess the im­pact of a se­ries of re­forms to the ju­di­cial sys­tem pro­posed by the cen­tral lead­er­ship in Oct 2013.

Dur­ing her 20 years as a judge at the Bei­jing No 1 In­ter­me­di­ate Peo­ple’s Court, Jiang had heard and ruled on many IP dis­putes, but she was still ner­vous and ex­cited when she ar­rived at her new­work­place.

“The IP court is a pi­lot pro­gram to de­velop new ways of hear­ing IP-re­lated cases and to ex­plore other ar­eas that may ben­e­fit from re­form,” she said.

The court is testing pro­posed new na­tional guide­lines that will af­fect the way judges are al­lo­cated, and that will al­low them to reach ver­dicts with­out the need to re­view ev­ery case with se­nior col­leagues, ac­cord­ing to Jiang.

The re­forms pro­pose that the na­tion’s ju­di­cial of­fi­cers should be split into three groups: Ap­prox­i­mately 30 per­cent will be­come­judge­sand­pros­e­cu­tors, 50 per­cent will be clas­si­fied as legal as­sis­tants, and the rest will over­see ad­min­is­tra­tion.

“In other words, it will be harder to be­come a judge, and we ex­pect to see an ob­vi­ous decline in their num­bers to pub­licly in­di­cate that the sys­tem is be­ing stream­lined to im­prove ef­fi­ciency,” she said.

The IP court cur­rently em­ploys 25 judges, in­clud­ing three court pres­i­dents. A num­ber of younger judges will be­come as­sis­tants when the re­form is rolled out na­tion­wide, although the timetable has yet to be fi­nal­ized.

Ac­cord­ing to Jiang, some jud­gesinother­courtshave­com­plained about the al­lo­ca­tion sys­tem, fear­ing that their roles will change­andthey­will­bepre­vented from hear­ing cases.

“Very few of my col­leagues in theIP­courta­gree­with­the­crit­ics. Some younger judges, such as those who have worked for less than five years, are quite keen to be­come legal as­sis­tants be­cause they re­al­ize they still­have a great deal to learn,” she said.

The re­duc­tion in the num­ber of judges will pro­mote greater pro­fes­sion­al­ism among those hop­ing­tomake it tothe top tier, andwill also im­prove their abil­ity to form judg­ments if they do make the grade, she added.

“More­over, the judges who work here are ex­perts in IP dis­putes, and they’re afraid they won’tbeal­lowed­to­hearthemif they are moved else­where or their roles are changed, be­cause the re­form stip­u­lates that IP cases will only be tack­led in the IP court,” she added.

Ruan Chuan­sheng, a crim­i­nal lawyer in Shang­hai, where the pi­lot pro­gram is also in op­er­a­tion, had a dif­fer­ent per­spec­tive. He said some of his friends and col­leagues in the courts and lo­cal jus­tice de­part­ments are deeply con­cerned about the al­lo­ca­tion sys­tem.

“Most of them are anx­ious about whether they will be se­lected as judges, be­cause they think work­ing as a legal as­sis­tant will mean their past ef­forts have all been in vain,” said the 45-year-old, who has worked as a de­fense lawyer in crim­i­nal cases for about 12 years.

He con­firmed that some Shang­hai courts in­tend to base the al­lo­ca­tion on length of ser­vice and se­nior­ity, “which is a re­straint and not the orig­i­nal ide­abehindthere­form,” he­said.

Em­ploy­ees’ terms of ser­vice, in­clud­ing pay rates and pro­mo­tion prospects, will also be amended, and some peo­ple are con­cerned about their fu­tures, headded. Un­sur­pris­ingly, Ruan and his col­leagues are wait­ing anx­iously to see the re­sults of the al­lo­ca­tion process.

Since 2013, his em­ployer, Shang­hai Heng­tai Law Of­fices, has en­gaged a small num­ber of for­mer ju­nior judges who have aban­doned court work for fear they will be pe­nal­ized fi­nan­cially if they are “down­graded” to the role of legal as­sis­tant.

“They al­ready find it hard to shoul­der the cost of living in a big city, and the large re­duc­tion in the num­ber of cases they will hear ev­ery year will make things even harder. Af­ter all, they need to earn enough to live,” said Ruan, who used to work in a lo­cal court, re­fer­ring to a change in the sys­tem that will see judges and legal as­sis­tants paid on the ba­sis of their an­nual vol­ume of work.

Although he has con­cerns about some of the pro­posed changes, Ruan said he’s been de­lighted tow­it­nes­sachangein the at­ti­tudes of the courts, po­lice and pros­e­cu­tors to­ward lawyers over the past two years.

“In some tri­als, the judges and­pros­e­cu­tors in­ter­rupt­edme fre­quently when I was de­fend­ing my client, and my ap­pli­ca­tions to read case doc­u­ments were also ig­nored,” he said.

Guo Jie, a judge at a court in San­ming, Fu­jian prov­ince, said the re­forms will give judges greater in­de­pen­dence be­cause they will no longer be re­quired to re­port to court pres­i­dents, whore­view­cases and ad­vise on ver­dicts.

Ac­cord­ing to Jiang, the process of re­form has in­evitably thrown up a num­ber of prob­lems that may af­fect ef­fi­ciency, such as a lack of clar­ity about the roles and re­spon­si­bil­i­ties of legal as­sis­tants.

“Some peo­ple have said the as­sis­tants will be re­spon­si­ble for con­duct­ing re­search and deal­ing with peo­ple who want to ap­peal ear­lier judg­ments, but no spe­cific role has been stated in the re­forms,” she said.

An­other prob­lem is that the num­ber of cases han­dled by each court changes from year to year, which means the al­lo­ca­tion of judges should be flex­i­ble rather than a fixed per­cent­age, she added, point­ing out that from 2011 to 2013, the Bei­jing No. 1 In­ter­me­di­ate Peo­ple’s Court heard an av­er­age 4,500 cases an­nu­ally, but last year the num­ber soared to 12,000.

“The pro­posed al­lo­ca­tion of judges might not meet the ris­ing de­mand, so it will be nec­es­sary to ad­just the num­ber reg­u­larly,” she said.

A judge in Bei­jing, who pre­ferred not to be named, said that un­der the re­forms ex­tra­ju­di­cial work, such as deal­ing with pe­ti­tion­ers, should no longer be the re­spon­si­bil­ity of judges, but the lack of clar­ity means that still isn’t the case.

He said he was dis­ap­pointed when the Supreme Peo­ple’s Court, China’s top legal body, is­suedanup­dat­edguide­li­neon re­form on Feb 26, be­cause the cri­te­ria un­der which judges will be se­lected is still un­clear.

Un­der the amended guide­line, the Supreme Peo­ple’s Court said the aim of the re­forms is to es­tab­lish a sys­tem of trial firmly rooted inChi­nese cul­ture by 2018. How­ever, Tian He, a legal re­searcher at the In­sti­tute of Law at the Chi­nese Academy of So­cial Sciences, said the pi­lot pro­gram, which has no spec­i­fied time limit, should con­tinue for as long as it takes to gar­ner suf­fi­cient in­for­ma­tion. The re­forms will only be im­ple­mented ef­fec­tively and gain gen­eral ac­cep­tance if prob­lems are iden­ti­fied and rec­ti­fied quickly, she added.

“As we push through th­ese re­forms, we should lis­ten to the opin­ions of legal in­sid­ers, es­pe­cially those in the grass­roots legal bod­ies. Re­form al­ways dam­ages some­body’s in­ter­ests, but the key is to en­sure that it benefits as­many peo­ple as pos­si­ble.” Con­tact the writer at caoyin@chi­

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