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.
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 firstname.lastname@example.org