Convergence and the Judicial Role: Recent Developments in China
ADDRESS BY THE HONOURABLE J J SPIGELMAN AC
CHIEF JUSTICE OF NEW SOUTH WALES
TO THE CHINA EDUCATION CENTRE, UNIVERSITY OF SYDNEY
11 JULY 2002
CONVERGENCE AND THE JUDICIAL ROLE:
RECENT DEVELOPMENTS IN CHINA
The XVIth Congress of the International Academy of Comparative Law will be held in Brisbane commencing this weekend. The general theme of the Congress is "Convergence of Legal Systems in the 21st Century". Professor Gabriel Moens, Professor of Law at the University of Queensland and chair of the Congress, referred to the theme in the context of recent comparative law literature in the following terms:
"One idea that figures prominently in the relevant comparative law literature concerns an observable tendency of the world's legal families to embrace a common intellectual framework for the consideration and resolution of current problems."
The extent, if any, to which China can now be said to adopt such a "common intellectual framework" is a matter of great significance.
At the level of form and rhetoric, change in the Chinese legal system since 1978 has been nothing short of revolutionary. At the level of practice, change is palpable, but its present significance and prognosis are extremely difficult to assess. There are elements of this development which it is appropriate to analyse in terms of "convergence".
At the time the reforms commenced, China had just emerged from the calamitous years of the Cultural Revolution, during which nothing that could be described as a legal system had been permitted to survive. Although there were some personnel from the previous system that could be drawn on, the era of the Four Modernisations required the reconstruction of legal institutions, virtually from scratch.
There are many aspects of the multifaceted process often described as "globalisation" which manifest the spread of concepts commonly ascribed to the West. Perhaps, none has been more significant than what has been called "the rule of law revival" [1]. The dramatic quality of what is now being contemplated and even attempted in this respect in China, is emphasised by the fact that neither in the previous thirty year history of the People's Republic of China, nor, even more significantly, in the millennia of prior tradition of China's long civilisation, was there an institutional model anything like the rule of law administered by an independent judiciary.
The Chinese tradition preferred the rule of man to the rule of law. It is well expressed in one of the aphorisms attributed to Confucius:
"I could adjudicate law suits as well as anyone. But I would prefer to make law suits unnecessary."
Accordingly, an Imperial administrator who had efficiently disposed of a huge caseload would not have received any accolade. Rather, his competence would be questioned for allowing so much contentiousness to exist on his patch. The great Australian sinologist of Belgian origin, Pierre Rykmans, who writes under the pseudonym of Simon Leys, explained this tradition in annotations to his translation of the Analects of Confucius:
"... When a nation needs to be ruled by a plethora of new laws, by a proliferation of minute regulations, amendments, and amendments of amendments, usually it is because it has lost its basic values and is no longer bound by common traditions and civilised conventions. For a society, compulsive law making and constant judicial intervention are a symptom of moral illness." [2]
In this respect, contemporary China has converged with the West.
A rival philosophical tradition in China, known as the Legalists, emphasised severe law and harsh punishments, on the basis of what, in the West, would be regarded as a Hobbesian view of the world. This authoritarian tradition is not a forerunner of a rule of law philosophy. It is rule by law, rather than the rule of law. [3]
The Chinese tradition never developed a concept similar to the rule of law. Nor did any institution emerge which could be considered to be an independent judiciary. Local prefects operated in a context in which the execution and enforcement of the law and dispute resolution were part of an undifferentiated governmental function. There was, in short, nothing analogous to a separation of powers, nor even of separate institutions sharing power.
The attempt to establish a separate judiciary during the Nationalist era proved of no long-term significance, other than in Taiwan. In the People's Republic of China, the period of Party rule prior to the Cultural Revolution, did lead to the emergence of a separate institution in the form of a hierarchical court structure, based in large measure on Soviet experience. This tradition has proven to be of longer-term significance as a partial model for reconstruction after the end of the Cultural Revolution.
Article 78 of the Constitution of the People's Republic adopted in 1954, stated that "people's courts shall conduct adjudication independently and shall be subject only to the law". Like the famous 1936 Constitution of the USSR, Article 78 did not reflect actual practice. Party control of judicial decision-making at all levels prevented the emergence of an independent judiciary. Whatever development may originally have been intended, party control extending to the disposition of specific cases, was decisively reasserted during the Anti-Rightist Movement of 1957 and 1958. [4]
The Stimulus of Economic Reform
The transformation of the Chinese economy over the last two decades has been extraordinary. The transformation of its legal system has been equally extraordinary. There is no doubt that legal reform has been driven by economic reform. [5]
The linkage recognises the strategic role of the law and of the legal system in sustaining economic progress. The objective is said to be the creation of "a socialist market economy".
Markets in a face-to-face sense - like an Oriental bazaar or a Mediterranean rialto - have existed under all systems of government and law. However, a market economy is a rare phenomenon. Only certain kinds of society, governmental structure and legal system have been able to sustain a market economy. A market economy is not a force of nature. It is a human construct. More than anything else, a successful market economy is the product of good government and of the law. In the Town Hall of Siena, there are two wonderful frescos by Lorenzetti: Allegories of Good and of Bad Government. Even a cursory glance at the latter, with its depiction of decay and chaos, will convince anyone that without law, there can be no market system. [6]
An important motive for reform has been the, now completed accession of China to the World Trade Organisation. The ability of other nations to obtain the benefits of trade agreements depends on domestic compliance with the obligations imposed by such agreements. This is obviously so with respect to the administration of customs matters, but it is also true with respect to a wide range of potential interference with trade in the course of warehousing, distribution, transportation, insurance, transfer payments and various forms of regulation e.g. health.
An obligation to provide an independent judiciary has long existed in Article X of the General Agreement on Tariffs and Trade 1947, now administered by the WTO, albeit expressed in the language of obfuscation, so common a product of the compromises involved in treaty negotiation. The GATT contains an express obligation to publish all relevant laws, including "judicial decisions". There is also an express obligation to administer such laws "in a uniform impartial and reasonable manner" and to create or maintain judicial tribunals for "the proper review and correction of administrative action" in a sphere described as "relating to customs matters", but expressed to extend "inter alia", whatever that might mean. [7]
Although the focus of these obligations is on trade-related activity, the institutional implications cannot readily be restricted to such decision-making. The scope of legal issues capable of impinging upon trade cannot be, and is not, narrowly confined.
These issues were of considerable concern in the process of negotiating China's accession to the WTO. The final Protocol for the Accession of the People's Republic of China to the WTO included obligations for the publication and enforcement of "all laws, regulations and other measures pertaining to or affecting trading goods, services, TRIPS or the control of foreign exchange". [8] The specific obligation with respect to judicial review is in the following terms:
"China shall establish, or designate, and maintain tribunals, contact points and procedures for the prompt review of all administrative actions relating to the implementation of laws, regulations, judicial decisions and administrative rulings of general application referred to in Article X:1 of the GATT 1994, Article 1 VI of the GATS and the relevant provisions of the TRIPS Agreement. Such tribunals shall be impartial and independent of the agency entrusted with administrative enforcement and shall not have any substantial interest in the outcome of a matter." [9]
The Chinese accession to the WTO was based on a Report of a Working Party which commented on issues raised in relation to judicial review as follows:
"The representative of China confirmed that it would revise its relevant rules and regulations so that its relevant domestic rules and regulations would be consistent with the requirements of the WTO Agreement and the Draft Protocol on procedures for judicial review of administrative action. He further stated that the tribunals responsible for such reviews would be impartial and independent of the agency entrusted with the administrative enforcement and would not have any substantial interest in the outcome of the matter." [10]
A Legislative Explosion
A critical component of the process of legal reform has been a formidable body of new statute law. The Criminal Law and the Criminal Procedure Law of 1979 were the first codes promulgated in China since the abrogation of the six Nationalist Codes in 1949. Thereafter, there was enacted the Economic Contract Law of 1981, with substantial revision in 1993. It was replaced by the Contract Law of 1999. The General Principles of Civil Law of 1986 is a codification of large part of civil law. A body of administrative law was adopted in the Administrative Litigation Law of 1990. Regulatory procedures were harmonised in the Administrative Punishment Law of 1996. In 1994, the State Indemnity Law established the possibility of suing government agencies. The Law on Lawyers of 1996 legitimised and regulated a private legal profession. This is only the tip of the iceberg of legislation in what has accurately been described as a "legislative explosion". [11]
The primary model was that of the civilian system. A detailed review of these Codes, I am sure, would identify numerous matters to which the label of "convergence" could properly be applied. The General Principles of Civil Law is derived from the German Civil Code. European law, rather than Anglo-American common law, was the model adopted in the six Nationalist Codes about 90 years ago and that has re-emerged. As one author noted in 1989: [12]
"... virtually the whole technical and conceptual language of Chinese law is translated from European ideas".
More recently some influences from the common law tradition have emerged. Amendment to the General Principles of Civil Law in 1991 changed the duty of the court to collect evidence and transferred the primary burden to the parties to litigation. Trial procedures were amended to become more adversarial and less inquisitorial. New rules of evidence were introduced. [13] Amendments to the Criminal Procedure law in 1996 introduced adversary elements to the fact-finding process in criminal trials. [14]
For a nation in which, not much more than half a century ago, there were foreign enclaves ruled on principles of "extraterritoriality", imposed by force but justified on the basis of the absence of a legal system in China, this body of statute law enacted in a period of about two decades, represents an extraordinary achievement. The issue, of course, is one of enforcement.
This issue gives rise to two distinct matters. The first is the role, and authority of the judiciary, on which I will focus in this paper. The second, and in many respects the more difficult matter, is the enforcement of judicial orders and awards. Difficulty of enforcement of judicial orders is, on the basis of my contact with Chinese judges, a matter of great concern to the Chinese judiciary. It is, however, beyond the scope of this paper.
The Rule of Law
The idea of 'the rule of law' has played a prominent part in Chinese debate over the last two decades. Although long established in Western discourse, the concept has a chameleon-like quality. [15] It is understandable that in Chinese debate, the terminology translated as 'the rule of law' is not always used in the same sense as the words would be used in the West. [16] The debate over the rule of law culminated in a formal commitment to something like this terminology in 1997 at the XVIth National Congress of the Communist Party of China.
Article 5 of the Constitution of the People's Republic of China was formally amended in March 1999 at the Second Session of the Ninth National People's Congress by adding the following sentence, in the translation available on the website of the Ministry of Foreign Trade and Economic Cooperation. [17]
"The People's Republic of China governs the country according to law and makes it a socialist country ruled by law."
Unofficial translations by academic commentators of the term fazhi guojia refer to a "socialist rule-of-law state". [18] That is not necessarily the same as a "socialist country ruled by law", in an official translation. It is not clear that a Rechtsstaat is what is intended.
The process that culminated in the constitutional amendment to Article 5 began with a public address in February 1996 by Jiang Zemin, in which he used a four-character slogan generally translated as "govern the country according to law". That formulation is found in the new Article 5. However, in Jiang's address, this terminology formed part of a sentence in which his reference to the law was counterbalanced by the phrase "protect the nation's long-term peace and stability". The terminology of "stability" is often an indirect reference for the continuation of control by the Party. [19]
There remains considerable ambiguity as to the sense in which the terminology of the new Article 5 is to be understood. It may be closer to rule by law, rather than rule of law. [20] Nevertheless, there is now a substantial Chinese legal literature which propounds the rule of law to be the true intent of the reforms. [21]
There is a basic tension between the idea of the rule of law and other aspects of the Constitution which still reflect an alternative principle that the law must serve the party State.
Article 1 of the Constitution continues to state:
"The People's Republic of China is a socialist State under the people's democratic dictatorship led by the working class and based on the alliance of workers and peasants.
A socialist system is the basic system of the People's Republic of China. Disruption of a socialist State by any organisation or individual is prohibited."
As one author notes:
"These two principles have co-existed uncomfortably since the inception of legal reform." [22]
Tension between the rule of law and other organising principles of governance is not, however, unique to China. The proper scope of judicial authority in the West, for example in debates over the divine rights of kings and Parliamentary supremacy, have waxed and waned in Western nations over many centuries. These debates continue today in such contexts as judicial review and bills of rights. The issue is one of balance as a matter of substance, not form.
Judicial Independence
In China, the relationship between the Party and the courts remains a critical issue. The prior tradition permitted party intervention in the judicial process by the examination and approval of individual cases by party cardres, a system referred to as shuji pian. [23] One of the first clear indications of the reform process was the instruction by the Central Committee of the Party in September 1979 abolishing this system. [24]
However, the Constitution adopted in 1982 reflects the continued tension.
On the one hand, the Preamble to the Constitution refers more than once to "the leadership of the Communist Party" and Article 3 states:
"All administrative, judicial and procuratorial organs of the State are created by the people's congresses to which they are responsible and by which they are supervised."
On the other hand, Article 5 provides:
"All State organs, the armed forces, all political parties and public organisations and all enterprises and institutions must abide by the Constitution and the law. All acts in violation of the Constitution and the law must be investigated.
No organisation or individual is privileged to be beyond the Constitution or of the law."
At the level of rhetoric, something not dissimilar to a Western conception of judicial independence has emerged over the last two decades. At the very least, direct intervention by the Party in the adjudication process is no longer regarded as legitimate.
The steps that have been taken to strengthen the Chinese judiciary as a separate institution are such as to suggest that real change is intended. The independence of the judiciary from other functions of government is not a matter capable of description with absolute precision. There are questions of degree involved.
The difficulty in the case of China is the reconciliation of an independent judiciary with the maintenance of an official ideology, which appears inconsistent with any level of independence. The State is still said to be founded on the Four Cardinal Principles, namely adherence to the socialist road, the people's democratic dictatorship, Marxism-Leninism and Mao Zedong Thought (with the recent addition of Deng Xiaoping Theory) and the leading role of the Communist Party of China. Nevertheless, some degree of institutional differentiation has appeared, even if it does not constitute a strict separation of powers. The process will obviously take time. This is not unprecedented.
English legal history is, in large measure, derived from an analogous unified concept of the State, encompassed in the idea of the Crown. In English history, the Crown also played a "leading role". It took centuries for the Crown to be clearly divided into its three manifestations. First, as the embodiment of justice in the legal system; secondly, as the executive, and thirdly, as one component part of the legislature. I am not suggesting that the Secretary-General of the Communist Party of China is on the way to becoming some kind of constitutional monarch. I am simply noting that substantial institutional differentiation is possible within a unifying concept. We could not expect that what took centuries to achieve in England, would be done within two decades in China.
The tradition of judicial independence with which we are familiar in Australia extends beyond independence from external interference to encompass independence from other judges. This is alien to Chinese practice in which a panel of judges in a particular case is expected to consult within the court. Many cases are, in substance, decided by the court leadership rather than the panel. [25] Steps have been taken to limit this practice but this appears to be driven more by economy and efficiency than by any principle of independence. [26] In our tradition, the personal independence of the individual judge is a recognition of professional autonomy.
A tradition of judicial independence depends on the background, quality, training and cast of mind of the judges and on their sense of collegiality. Just over two decades ago, China had no institutionalised judiciary and no judges. It now has something of the order of 30,000 superior judges and 180,000 lower court judges. Inevitably, a very substantial proportion of those who have been appointed have not had appropriate training or background. As I understand the position, a majority are retired officers of the People's Liberation Army. In 1982, the then recently re-established Ministry of Justice, announced that 57,000 "outstanding army officers" were being assigned to the court system. [27] The ingrained mode of decision-making of such recruits was not instinctively such as we would call "judicial". In recent years, determined efforts have been made to change the quality of the judiciary in terms of qualifications, competence, cast of mind and collegiality.
The Judges Law
In 1995, the Standing Committee of the Eighth National People's Congress adopted a new Judges' Law of the People's Republic of China. This was subsequently amended at the Ninth National People's Congress in June 2001. The objective of the law was stated in Article 1 as follows:
"This law is enacted in accordance with the Constitution to enhance the quality of judges, to strengthen the administration of judges, and to ensure that the people's courts independently exercise judicial authority according to law and that judges perform their functions and duties according to the law, and to safeguard judicial justice."
The Judges Law identifies the functions and duties of the judiciary, makes provision for what was described as "rights", including restrictions on interference with judicial functions. It makes express provision for appointment and removal, establishes qualifications, regulates certain conflicts of interests and provides for rewards and discipline. Of particular significance is the requirement for practical training and education as qualifications for appointment as a judge. Only a small proportion of the judges had such qualifications when appointed. In the discussions in which I and other Australian judges have participated, both in China and also with visiting delegations to Australia, it is accepted that it will be some years before the judiciary of China reflects the aspirations laid down in the Judges' Law.
Code of Judicial Ethics
My own interest in, and a substantial proportion of my knowledge of, recent developments in the Chinese judiciary, is based on a visit to China I made last November as one of a team of four Australian judges to lecture at a training course for Chinese judges at the National Judges' College in Beijing. This visit was organised by the Human Rights and Equal Opportunity Commission (HREOC) as part of an intergovernmental programme called the Human Rights Technical Co-operation Programme. [28]
Our task was to lecture on judicial independence and judicial ethics. As events transpired, only a fortnight before our visit, on 18 October 2001, the Judicial Committee of the Supreme People's Court of China had promulgated, for the first time, a Code of Judicial Ethics for judges in the People's Republic. This provided a focal point for our presentation. We participated in the first training session for Chinese judges with respect to the new Code. Our audience consisted of about one hundred intermediate court level judges, in Australian terms, roughly equivalent to a District Court.
The Code of Ethics is an exemplary document. The new Code asserts a number of fundamental principles of judicial conduct:
· Both the fact of and the appearance of impartiality.
· No extraneous interference or influence.
· Disqualification if impartiality might reasonably be questioned.
· Treatment of all parties equally in word and deed.
· A duty to state reasons for judgment.
· No commentary on other cases, including appeals.
· Conduct of cases efficiently and within time limits.
· Case management to avoid unnecessary delay.
· A ban on inducements, gifts, conflicts.
· Observing proper decorum.
· Continuing education.
· Restriction on extra-judicial and post retirement activities.
The new Code of Judicial Ethics represents one part of a systematic effort to improve the quality of judicial decision-making in China. The overall picture is one which suggests that China is in the middle of a very serious effort to establish the judiciary as a separate institution of considerable strength.
Towards Institutional Autonomy
A substantial body of men and women in the Chinese judiciary are actively engaged in this process of institutionalisation. It is not possible to determine the extent to which the growing appearance of institutional autonomy reflects the reality. Although future success cannot be stated with any degree of certainty, it is plainly a serious endeavour. Steps are also being taken to address the traditional low status of judges. I am not aware of the debate that is probably going on internally about the low level of remuneration. Once that becomes a primary focus for concern, Western judges will experience a real sense of convergence.
Only a week ago, the Chief Justice of China announced a new series of measures directed to improving the quality of the judiciary. He indicated that all new judges would have to pass exams and receive special training. Existing judges without a law degree would be required to obtain one within a fixed time. I assume this applies only to senior judges, but it may go further. The present practice by which clerks could be promoted to become judges after a certain number of years is to change. In making the announcement, the Chief Justice Xiao Yang said:
"Courts have often been taken as branches of the government and judges viewed as civil servants who have to follow orders from superiors, which prevents them from exercising mandated legal duties like other members of the judiciary."
He meant, I think, the judiciary outside China, a revealing perspective in itself.
The Chief Justice added that professional judges would:
"... form a chosen group of elites who speak the same legal language, think in a unique legal formula, believe in and pursue social justice."
The Chief Justice predicted:
"Over the years, unique professional traditions and qualities come into being, which will give judges the strength and the power to ward off outside interferences." [29]
The sentiments are, of course, exemplary. The Chief Justice of China was correct to describe this ambition as a "huge system engineering project". It appears designed to create the reality and appearance of institutional autonomy.
The seriousness of the effort is clear from the level of interest and intensity of questioning that I have experienced from visiting Chinese delegations to Sydney and also during the training course in which I participated in Beijing. That course included four lectures from Australian judges and addresses by a number of Chinese judges and legal academics. The training course was based on a volume of materials made available in both English and Chinese. The primary focus was the Code of Judicial Ethics, then some two weeks old. The training materials included a copy of that new Code and of the Judges' Law of China. It also included, in Chinese and English, the Judiciary Act of Germany, the Judges' Act of Canada, the Judges' Status Law of Russia and, the codes of conduct for judges from the United States, Canada, Italy and the American Bar Association Model Code. It also included the resolution adopted in Milan in September 1985 by the 7th United Nations Congress on the Prevention of Crime and the Treatment of Offenders entitled "The Basic Principles on the Independence of the Judiciary". It did not, however, include a copy of the Beijing Statement of Principles of the Independence of the Judiciary, issued in Beijing on 19 August 1995 and amended in Manila on 28 August 1997, which has been signed by thirty-two Chief Justices of the Asia and Pacific region, including on behalf of the President of the Supreme People's Court of the People's Republic of China. Nevertheless, that was a document to which the Australian judges made reference in the course of our addresses.
An extensive programme of training of judges has been instituted. The National Judicial College was established in Beijing. It conducts residential training of senior judges. There is also a well funded programme encouraging contact with legal systems throughout the world. Delegations of Chinese judges now frequently travel abroad. In the Supreme Court of New South Wales, we now receive up to a dozen delegations a year. This appears to be part of a programme to broaden the perspective of the Chinese judiciary.
A large number of delegations of foreign judges have attended conferences and seminars of Chinese judges, including at the National Judicial College. These have been welcomed at a very high level in China. Late last year a delegation to a seminar of the Supreme People's Court in Beijing, included a judge of the New South Wales Court of Appeal, a judge of the Bundesgerichtshof, the President of the Tribunal Grande Instance Quimper and the Dean of the Law School at Montreal University in Canada. The delegation was welcomed by Li Peng, Chairman of the Standing Committee of the People's Congress and Xiao Yang, the Chief Justice of China. There is no doubt that the programme of judicial reform has support at the highest level.
Of particular significance for the establishment of a tradition of judicial independence is the sense of collegiality amongst the judiciary. This has been fostered in a number of ways as the recent speech of the Chief Justice I have quoted suggests.
Just over a year ago, a new uniform was adopted by the Chinese judiciary, replacing the former uniform with its epaulette and caps, reflecting the military origins of most of the judiciary. The announcement said that the uniform introduced in 1984 looked military and "did not reflect the unique social role of judges". [30] The new dress is a black robe with four yellow buttons on the red front of the robe, the same colours as the National flag. The four buttons represent the four levels of courts in the Chinese hierarchy. The judges are subject to sumptuary laws, requiring them to wear business suits to work - black suits, but grey in summer - with a badge in the right lapel.
Of similar symbolic significance was the appointment earlier this year of forty-one "grand justices", together with a similar number of "grand procurators". This is a new professional title. It appears that those appointed will have a role in resolving complaints about the judiciary. [31]
Prospect
China has an extraordinarily long tradition of beguiling Westerners and deceiving them about how things are working in practice. My own first visit to China was in 1974 as part of the entourage of E.G. Whitlam, then Prime Minister. The public appearance was of sweetness and harmony. However, the Gang of Four was still in control and unspeakable things were happening behind the scenes.
You will permit a historical interlude. The welcoming party for the Australian delegation at Beijing Airport was led by Zhou Enlai. As the Australian jet was approaching, Zhou sought out and warmly greeted a slight figure in the line up. It was Deng Xiaoping. This was the first time that Deng had been seen in public for many years. In retrospect, this public rehabilitation was a moment of monumental significance.
The authority of the courts in China, particularly vis a vis the party, government departments, the military (and their various commercial offshoots) and also vis a vis other parts of the justice system, such as the Procurate, remains problematic. Nevertheless, there do appear to have been significant changes.
The transparency of the judicial process has also increased, although it is too early to say how far the principle of open justice will be adopted. However, one author observes:
"The main function of a public trial is changing from a method to educate people to abide by law to a means of public supervision of judicial performance". [32]
I have been impressed by the spirit of candour with which the Chinese judges approach their training tasks, both at the National Judicial College in Beijing and in the delegations that visit Sydney. The Chinese judges engage in vigorous dialogue and questioning. They openly acknowledge the problem of corruption within the judiciary and also the existence of limits on the freedom of discussion in which they can openly engage, although plainly those limits as set much wider that had hitherto been the case.
An element of defensiveness is apparent amongst some Chinese judges. Some regard the new requirements as an impediment to the efficient conduct of the courts. It is plain that many regard the new obligation contained in the Code of Ethics to provide reasons for decision as detracting from what they regard to be an efficient system. Many do not see the point of giving reasons, an understandable belief for those originally trained in the People's Liberation Army. Some judges express doubts about the value of impartiality.
I am not able to separate rhetoric from reality, in order to assess the true extent of judicial independence in prospect. It is plain that there are limits to the Party's preparedness to surrender power, but the boundary is not clear. It may be that the most distinctive characteristic of the Chinese authoritarian tradition is that the boundary of permissible behaviour is left deliberately vague. In many cases, vagueness encourages timidity and risk aversion. Clear rules often identify possibilities of evasion and permit risk assessment.
Whatever the future may hold, no lawyer could regard the recent reforms as anything but a positive development. However, our own tradition strongly suggests that true institutional autonomy requires some form of judicial tenure. That does not exist in China. Nor am I aware that it is in contemplation. Furthermore, the traditional style of adjudication and the relationship of judges amongst themselves have a bureaucratic quality which does not reflect a sense of professional independence. [33]
The progress already made is impressive. Convergence, however, remains partial.
A Chinese Model
The ideas of the rule of law and of judicial independence are drawn from the West. I am not sufficiently familiar with the Chinese legal literature to know what, if any, reliance is being placed on Chinese tradition. There is at least one role model for judges in that tradition.
Bao Zheng, known as Bao Gong, born at the turn of the millennium in 999 was an outstanding government official of the Northern Song Dynasty. He is a popular character in Chinese opera, in which he is portrayed with a black face. As I understand it, in Chinese opera a black face may indicate either a rough and bold character or an impartial and selfless personality. It is the latter that applies to Bao Gong. He is known for dispensing justice without fear or favour and with such impartiality, that he punished the son-in-law of the Emperor, the uncle of a high ranked imperial concubine, and many government officials. The Chinese judiciary does not have to look to the West for a role model of judicial independence, integrity and impartiality. [34]
1 Thomas Carothers "The Rule of Law Revival" Foreign Affairs, March/April 1998.
2 Simon Leys (Trans) The Analects of Confucius, W.W. Norton, 1997 at fn 176.
3 Eric W. Orts "The Rule of Law in China" 2001, 34 Vanderbuilt Journal of Transnational Law, 43 esp at 52-55; Albert H.Y. Chen "Towards a Legal Enlightenment: Discussions in Contemporary China on the Rule of Law" 2000, 17 UCLA Pacific Basin Law Journal 125 at 129-130; John K. Fairbank and Edwin O. Reischauser, China: Tradition and Transformation Revised Edition 1989 at 43-54.
4 See Jerome A. Cohen The Chinese Communist Party and 'Judicial Independence': 1949-1959 (1969) 82 Harvard Law Review 967; Larry Smeets "Judicial Independence in the People's Republic of China" (1992) 8 Australian Journal of Law and Society 60.
5 See Stanley Lubman Birds in a Cage: Legal Reform in China After Mao, Stanford University Press, 1999 esp Chapter 5.
6 Quentin Skinner "Legal Symbolism in Earlier Renaissance Art: Ambrogio Lorenzetti's Frescos in Siena" 1994, The Cambrian Law Review 9.
7 General Agreement on Tariffs and Trade, 1947 Article X, sub-articles 1, 3(a) and (b).
8 Protocol on the Accession of the People's Republic of China, Part 1.2C Transparency.
9 Protocol on the Accession of the People's Republic of China, Part 1.2D Judicial Review.
10 "Report of the Working Party on the Accession of China" World Trade Organisation, 1 October 2001.
11 Lubman supra at 173. Lubman has outlined the new legislation esp at 160-168 and 175-183; see also Anthony Dicks "The Chinese Legal System: Reforms in the Balance" 1989 China Q 540 at 550-560, 568-569.
12 Dicks supra at 560. See also Perry Keller "Sources of Order in Chinese Law" (1994) 42
Amer J. of Comparative L. 711 at 717-719.
13 Xian Chu Zhang "China Law" (1999) The International Lawyer 677 at 689..
14 Wang supra at p11.
15 See Keith Mason "The Rule of Law" in P.D. Finn (ed) Essays on Law and Government: Volume 1 Principles and Values, Law Book Company Sydney 1995 at 114.
16 See Chen, supra passim; Orts supra esp at 74-77, 106-110; Wang, "The Developing Rule of Law in China" Harvard Asia Quarterly, Autumn 2000 (accessible at www.fas.harvard.edu); Lubman supra esp at 123-131.
17 http://www.moftec.gov.cn/moftec_en
18 See Orts supra at 45 fn 5, Chen supra at 128.
19 Lubman supra at 128-130.
20 Orts supra at 48.
21 Chen supra reviews the literature.
22 Lubman supra at 123.
23 Smeets supra at 70.
24 Smeets supra at 75.
25 See Lubman supra 260-262.
26 See for example the observations of the Chief Justice of China in China Daily 3 March 2001.
27 Jonathan D. Spence The Search for Modern China Hutchinson, London 1990 p708.
28 I have reviewed this visit in my Address to the Law and Justice Foundation "Law and Justice Address" 2002, 11 Journal of Judicial Administration 123.
29 See China Daily 8 July 2002; People's Daily 8 July 2002; Sydney Morning Herald 9 July 2002.
30 China Daily 9 March 2000.
31 China Daily 23 March 2002.
32 Zhang supra at 692.
33 Lubman supra at 292-297.
34 On Bao Gong see http://chinese culture.about.com/library/weekly/aa110200.bfm,
http://www.c35.org.sg/local/great/baogong.html, http://www.chinavista.com/experience/face/face/html
AttachmentsThe Code of Judicial Ethics for Judges of
the People's Republic of China
Foreword
To train a group of high-quality judges with firm political position, professional conversance, good conduct and honesty is an important condition for the rule of law and the construction of a socialist country ruled by law and is also an important safeguard for the people's court to implement the Constitution and exercise judicial functions. The high standard judicial ethics of judges is very important to ensure judicial impartiality and to protect the authority and dignity of the Judiciary. This code is enacted in accordance with the Judges Law of the People's Republic of China and other relevant regulations to regulate and improve the standard of judicial ethics for judges, to enhance the professional quality of judges and maintain the good image of judges and the people's court.
Chapter I Safeguard Judicial Impartiality
Article 1. A judge should strive to achieve substantial impartiality and procedural impartiality in performing his duties. A judge should appear to be impartial through his words and conduct so as to avoid any reasonable doubt from the public upon judicial impartiality.
Article 2. A judge should perform his duties in accordance with the Constitution and other laws and on the principle of judicial independence. A judge should perform his duties with no interference from administrative departments, social organizations or individuals and no influence other than the influence from laws.
Article 3. During the trial process the judge shall abide by recusation principle. A judge shall disqualify himself mi a lawsuit in which the judge's impartiality might reasonably be questioned.
Article 4. A judge should resist the influence from the parties, attorney, defendants and other people or through their social contacts and should handle the situation according to relevant regulations
Article 5. A judge should not, against the will of the parties, use improper means to force the parties to withdraw the proceeding or accept mediation.
Article 6. A judge should make all the judgements openly and objectively and accept the supervision from the public. This proscription does not extend to the cases cannot be opened or cannot have an open trial according to law.
Article 7. During the process of a lawsuit, a Judge should reason and adjudicate independently and insist the right opinion.
Article 8. During the process of a lawsuit, a Judge should not meet one party or his or her agent without authorization.
Article 9. A judge should avoid prejudice, misuse of his function and neglect of law in performing his duties.
Article 10. A judge should treat all the parties and participants of the proceeding equally in performing his duties. The judge should not by words or conduct manifest any discrimination. The judge has the responsibility to stop and correct any discriminatory words or conduct by any participants or other people.
A judge should be fully aware of the possible differences may arise from nationality, race, sex, profession, religion, education level, health, residence and other factors and shall safeguard the equally and fully implementation of the litigation right and other rights of all the parties.
Article 11. A judge should be neutral during the trial.
Before the judgment is rendered, a judge should not express his views or attitude towards the judgement through his words, expression or conduct.
A judge should adjudicate according to law and be careful with his words and conduct during the proceedings so as to avoid any reasonable doubts upon his neutrality from the parties and other participants.
Article 12. A judge should specify the reasons for the measures and judgement relating to the substantial rights and litigating right of the parties. A judge should not make a conclusion or take any measures subjectively and unilaterally.
Article 13. A judge should respect the right of other judges to perform their duties independently and:
1. should not give any comments on the lawsuits being handled by other court or give any suggestions or opinions on a lawsuit in which he has personal interests. This proscription does not extend to the situation when the judge is exercising his judicial duties or is giving comments or suggestions through proper procedures,
2. should not ask about or interfere in the lawsuits being handled by the subordinate courts without authorization.
3. should not issue his personal views to the superior courts about the second instance cases.
Article 14. A judge should not ask for information about the lawsuits being handled by other judges unless he is performing adjudicative or administrative duties.
A judge should not disclose or provide information about a lawsuit, the ways to contact the judge in charge or other related information to the parties, attorney and defendants. A judge should not introduce or contact the judge in charge for the parties, attorney and defendants.
Article 15. A judge should avoid improper influence from the media or the public during the process of the lawsuit.
Article 16. A judge should refrain from giving any comments in public or to the media, which is detrimental to the seriousness and authority of a valid judgement. If a judge thinks there is something wrong with a valid judgement or the trial process, he may report to the president of the court or report to the relevant courts.
Article 17. A judge having definite evidence to believe other Judges may, or have already violated the professional ethics of judges, or other j judiciary personnel may or have already violated their professional ethics and these conduct may influence the Judicial impartiality should take appropriate measures or inform the relevant authorities.
Chapter II Enhance Judicial Efficiency
Article 18. A judge should be diligent and devoted to the performance of his duties. A judge's personal matters, schedule or other activities should not conflict with his or her judicial duties.
Article 19. A judge should abide by the time limit for lawsuit regulated by law and should accept the case, hear the proceeding and make judgement within the time limit.
Article 20. A judge should avoid carelessness and delay without proper reason and dispose his business seriously, promptly and efficiently, and should:
1. enhance efficiency through proper arrangements of judicial business.
2. pay enough attention to the performance of all judicial duties and handle every case with same attention and carefulness and devote reasonably enough time.
3. with the precondition of high quality of judgement, save time for the parties, attorney and defendants and pay attention to the efficient cooperation with other judges and staffs.
Article 21. A judge should supervise the parties to abide by the procedures and respect all the time limits, so as to avoid unreasonable or unnecessary delay caused by the parties.
Article 22. A judge should take effective measures to enforce the valid judgement as soon as possible.
Chapter III Keep Honest and Clean
Article 23. A judge is not allowed to use his capacities directly or indirectly to obtain any improper benefit.
Article 24. A judge is not allowed to accept entertainment, money, gifts or other benefit from the parties, attorney and defendants.
Article 25. A judge is not allowed to participate commercial or other economic activities which may lead the public to cast doubt on his image of being honest and clean.
Article 26. A judge should handle his personal issues properly, and should not disclose his capacity as a judge intentionally for special treatment. A judge should not use the prestige and influence of a judge to seek personal interests for himself, his relatives or other people.
Article 27. The life style and standard of a judge and his family should consist with their position and income.
Article 28. A judge cannot act as a lawyer or Judicial advisor for enterprises, organizations or individuals at the same time. A judge is not allowed to provide advice or Judicial suggestion on pending cases to the parties, attorney and defendants.
Article 29. A judge should report his income and property according to relevant regulations.
Article 30. A judge should inform his family members about the requirements for a judge mi judicial conduct and professional ethics and urge his family members not to violate relevant regulations.
Chapter IV Observation of Judicial Decorum
Article 31. A judge should strictly observe the Judicial decorum and keep good appearance and conduct, so as to preserve the authority of the people's court and the good image of the judge.
Article 32. A judge should respect the human dignity of the parties and other participants, and should:
1. hear the parties and other participants carefully and patiently and should not interrupt or stop a party or other participants unless for the reason of protecting the order of the court or because of the requirement of a trial.
2. use standard, correct and civilized language and should not admonish or say improper words to the parties or other participants.
Article 33. A judge should comply with the rules of the court during the trial and should require all the staff of that court to do so and maintain the dignity of the court, and should:
1. wear robe or uniform according to relevant regulations, wear badge and keep clean and tidy;
2. appear to the court on time, do not be absent or late and do not leave early or enter or leave the court at his pleases;
3. concentrate on the lawsuit and the hearing, do nothing irrelevant with the lawsuit.
Chapter V Enhance Self-cultivation
Article 34. A judge should enhance his professionalism and should have high political and professional quality. A judge should implement the Constitution and laws faithfully and serve the people whole-heartedly.
Article 35. A judge should have rich social experience and profound understanding to the social reality.
Article 36. A judge has the right and obligation to be trained and educated and should study the judicial theory and absorb new knowledge diligently so as to improve his abilities and skills of controlling a trial, deciding evidences and writing Judicial documents. A Judge should possess the necessary knowledge and professional ability to perform his function.
Article 37. A judge should be self-disciplinary and without impropriety at his daily life. A judge should cultivate a high standard moral criterion and act as a model of observing public and family virtues.
Chapter VI Limitation of extra-judicial activities
Article 38. The extra-judicial activities of a judge should cause no reasonable doubt of the public upon his impartiality and honesty, should not affect the performance of his functions and should not cause negative impact on the trustworthiness of the people's court.
Article 39. A judge should refuse and stop any hobby or conduct which is against the public interest, public order, social virtue and customs and may influence the image of judge and his impartiality.
Article 40. A judge should be careful in making social contacts and friends. A judge should carefully handle the contacts with the parties, lawyers and other persons who are possible to influence the image of the judge, so as to avoid the impression of public that the judge is not impartial or not honest and avoid the possible confusion and embarrassment in the performance of his functions.
Article 41. A judge should not join any organization with a nature of evil religion.
Article 42. A judge should not disclose or use the judicial information of a close trial or business secret, personal privacy and other confidential information acquired during the process of a lawsuit.
Article 43. A judge should not join any profit-making organization or any organization may make profit by using the influence of the judge.
Article 44. A judge may participate in academic research and other social activities which are helpful in promoting judicial construction and judicial reform. However, these activities should be in compliance with the law, construct no obstruction to Judicial impartiality and the preservation of judicial authority and will not conflict with the judge's judicial function.
Article 45. A judge should be cautious in publishing a paper or interview with the media. The judge should not issue any improper comments on specific lawsuits or parties so as to avoid reasonable doubt upon judicial impartiality caused by improper wording.
Article 46. After retirement, a judge should continue to maintain a good image and should avoid the reasonable doubt of the public upon judicial impartiality caused by his improper words or conduct.
Supplementary Provisions
Article 47. The courts at different levels should provide guidance and exercise supervision in the implementation of this code in their own court.
Article 48. The jurors shall be administered by this code when they are exercising judicial function. The administrative personnel and judicial police shall be administered with reference to the relevant provisions of this code.
Article 49. The Supreme Court will be responsible for the explanation of this code.
Article 50. This code shall come into force as of the date of issue [18 October 2001].
viii JUDGES LAW
JUDGES LAW OF THE PEOPLE'S REPUBLIC OF CHINA
(Adopted at the 12th Session of the Standing Committee of the
Eighth National People's Congress on February 28, 1995,
And amended according to the "Decision on the Revision of the
‘Judges Law of the People' s Republic of China ' adopted at the 22" Session of the Standing Committee of the Ninth National People's Congress, on June 30,2001)
TABLE OF CONTENTS
CHAPTER I GENERAL PROVISIONS
CHAPTER II FUNCTIONS AND DUTIES
CHAPTER Ill OBLIGATIONS AND RIGHTS
CHAPTER IV QUALIFICATIONS FOR A JUDGE
CHAPTER V APPOINTMENT AND REMOVAL
CHAPTER VI POSTS TO BE AVOIDED
CHAPTER VII GRADES OF JUDGES
CHAPTER VII APPRAISAL
CHAPTER IX TRAINING
CHAPTER X AWARDS
CHAPTER XI PUNISHMENT
CHAPTER XII SALARY, INSURANCE AND WELFARE
CHAPTER XIII RESIGNATION AND DISMISSAL
CHAPTER XIV RETIREMENT
CHAPTER XV PETITION AND COMPLAINT
CHAPTER XVI COMMISSION FOR EXAMINATION AND ASSESSMENT OF JUDGES
CHAPTER XVII SUPPLEMENTARY PROVISIONS
CHAPTER I GENERAL PROVISIONS
Article 1 This Law is enacted in accordance with the Constitution to enhance the quality of judges, to strengthen 'the administration of judges, and to ensure that the People's Courts independently exercise judicial authority according to law and that judges perform their functions and duties according to law, and to safeguard judicial justice.
Article 2 Judges are the judicial personnel who exercise the judicial authority of the State according to law, including presidents, vice presidents, members of judicial committees, chief judges and associate chief judges of divisions, judges and assistant judges of the Supreme People's Court, local People's Courts at various levels and special People's Courts such as military courts.
Article 3 Judges must faithfully implement the Constitution and laws, and serve the people whole-heartedly
Article 4 Judges, when performing their functions and duties according to law, shall be protected by law.
CHAPTER II FUNCTIONS AND DUTIES
Article 5 The functions and duties of judges are as follows:
(1) to take part in a trial as a member of a collegial panel or to try a case alone according to law; and
(2) to perform other functions and duties as provided by law.
Article 6 Presidents, vice presidents, members of judicial committees, chief judges, associate chief judges of divisions shall, in addition to the judicial functions and duties, perform other functions and duties commensurate with their posts.
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CHAPTER Ill OBLIGATIONS AND RIGHTS
Article 7 Judges shall perform the following obligations:
(1) to strictly observe the Constitution and laws;
(2) to take facts as the basis, and laws as the criterion when trying cases, to handle cases impartially, and not to bend law for personal gain;
(3) to protect the litigation rights of the participants in proceedings according to law;
(4) to safeguard the State interests and public interests, and to safeguard the lawful rights and interests of natural persons, legal persons and other organizations;
(5) t to be honest and clean, faithful in the discharge of duties, and to abide by discipline and professional ethics;
(6) to keep State secrets and the secrets of judicial work; and
(7) to accept legal supervision and supervision by the masses.
Article 8 Judges shall enjoy the following rights:
(1) to have the power and working conditions which are essential to the performance of functions and duties of judges;
(2) to brook no interference from administrative organs, public organizations or individuals in trying cases according to law;
(3) to be not removed or demoted from the post or dismissed, and to be not given a sanction, without statutory basis and without going through statutory procedures.,
(4) to be remunerated for work and to enjoy insurance and welfare benefits;
(5) to enjoy the safety of the person, property and residence as ensured by law;
(6) to receive training;
(7) to lodge petitions or complaints; and
(8) to resign their posts.
CHAPTER IV QUALIFICATIONS FOR A JUDGE
Article 9 A judge must possess the following qualifications:
(1) to be of the nationality of the People's Republic of China;
(2) to have reached the age of 23;
(3) to endorse the Constitution of the People's Republic of China;
(4) to have fine political and professional quality and to be good in conduct;
(5) to be in good health; and
(6) to have worked for at least two years in the case of graduates from law specialties of regular colleges or universities or from non-law specialties of regular colleges or universities but possessing the professional knowledge of law, or to have worked for at least three years in the case of judges of the High Court and the Supreme Court; those who have Master's Degree or Doctor's Degree of Law or of non-law specialties but possessing the professional knowledge of law shall have worked for at least one year, or to have worked for at least two years in the case of judges of the High Court and the Supreme Court.
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The judicial personnel who do not possess the qualifications as provided by sub-paragraph (6) of the preceding paragraph prior to the implementation of this Law shall receive training. The specific measures shall be laid down by the Supreme People's Court.
Where there are really difficulties in implementing the academic qualifications as provided by sub-paragraph (6) of the first paragraph, with the examination and approval of the Supreme People's court, the academic qualifications of Judges may be extended to graduates from law specialties of professional training college within certain time limit.
Article 10 The following persons shall not hold the post of a judge:
(1) to have been subjected to criminal punishment for commission of a crime; or
(2) to have been discharged from public employment.
CHAPTER V APPOINTMENT AND REMOVAL
Article 11 A judge shall be appointed or removed from the post in accordance with the limit of authority for, and procedures of, appointment or removal as prescribed by the Constitution and laws.
The President of the Supreme People's Court shall be elected or removed by the National People's Congress. The vice-presidents, members of the judicial committee, chief judges and associate chief judges of divisions and judges shall be appointed or removed by the Standing Committee of the National People's Congress upon the recommendation of the President of the Supreme People's Court.
The presidents of the local People's Courts at various levels shall be elected or removed by the local People's Congresses at various levels. The vice-presidents, members of the judicial committees, chief judges and associate chief judges of divisions and judges shall be appointed or removed by the standing committees of the people's congresses at the corresponding levels upon the recommendation of the presidents of those courts.
The appointment or removal of the presidents of the intermediate People's Courts set up in prefectures of the provinces or autonomous regions or set up in the municipalities directly under the Central Government shall be decided on by the standing committees of the people's congresses of the provinces, autonomous regions or municipalities directly under the Central Government on the basis of the nominations made by the respective councils of chairmen. The vice- presidents, members of the judicial committees, chief judges and associate chief judges of divisions and judges shall be appointed or removed by the standing committees of the people's congresses of the provinces, autonomous regions or municipalities directly under the Central Government upon the recommendations of the presidents of the higher People's Courts.
The presidents of the local People's Courts at various levels set up in the national autonomous areas shall be elected or removed by the people's congresses at various levels of the national autonomous areas. The vice-presidents, members of the judicial committees, chief judges and associate chief judges of divisions and judges shall be appointed or removed by the standing committees of the people's congresses at the corresponding levels upon the recommendations c'. the presidents of those courts.
The assistant judges of the People's Courts shall be appointed or removed by the presidents of the courts where they work.
The measures for the appointment or removal of the presidents, vice- presidents, members of the judicial committees, chief judges and associate chief judges of divisions and judges of the special People's Courts such as the military courts shall be formulated by the Standing Committee of the National People's Congress separately.
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Article 12 Persons to be appointed judges for the first time shall be selected through strict appraisal, from among those having got the certificates through the state uniform judicial examination and the best qualified for the post, and in accordance with the standards of having both ability and political integrity.
Persons to be appointed presidents, vice-presidents shall be selected from judges or from among those who are best qualified for the post.
Article 13 If a judge is found to be in any of the following circumstances, a report shall be submitted according to law concerning the removal of his or her post:
(1) having forfeited the nationality of the People's Republic of China;
(2) having been transferred out of this court;
(3) having no need to maintain his or her original post after a change of post;
(4) being determined to be incompetent in the post through appraisal;
(5) being unable to perform the functions and duties of a judge for a long period of time due to poor health;
(6) having retired from the post;
(7) having resigned the post, or having been dismissed;
(8) being disqualified from continuing to hold the post because of violation of discipline, law or commission of a crime.
Article 14 If the judge is appointed in violation of conditions provided by this Law, the organ who makes this appointment shall rescind it as soon as detected. If the higher court detects the lower court's appointment is in violation of conditions provided by this Law, it shall propose the appointment to be rescinded according to law by the lower court or by the Standing Committee of the People's Congress at the corresponding level upon the recommendation of the lower court.
Article 15 No judges may concurrently be members of the standing committees of the people's congresses, or hold posts in administrative organs, procuratorial organs, enterprises or institutions, or serve as lawyers.
CHAPTER VI POSTS TO BE AVOIDED
Article 16 Judges who are connected by husband-wife relationship, or who are directly related by blood, collateral related within three generations, or closely related by marriage may not, at the same time, hold the following posts:
(1) the president, vice-presidents, members of the judicial committee, chief judges or associate chief judges of divisions in the same People's Court;
(2) the president, vice-presidents, judges or assistant judges in the same People's Court;
(3) the chief judge, associate chief judges, judges or assistant judges in the same division; or
(4) presidents or vice-presidents of the People's Courts at the levels next to each other.
Article 17 A judge may not act as a defender or an agent ad litem in the capacity of a lawyer within 2 years after leaving his or her post from the court.
A judge may not act as a defender or an agent ad litem in the case handled by the court which he. or she had, worked in before leaving his or her post.
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A judge's spouse and children may not act as a defender or an agent ad litem in the case handled by the court which the judge belongs to.
CHAPTER VII GRADES OF JUDGES
Article 18 Judges are divided into twelve grades.
The President of the Supreme People's Court is the Chief Justice. Judges from the second grade to the twelfth grade are composed of associate justices, senior Judges and Judges.
Article 19 Grades of judges shall be determined on the basis of their posts, their actual working ability and political integrity, their professional competence, their achievements in judicial work and their seniority.
Article 20 The grades of judges shall be established and the measures for their evaluation and promotion shall be formulated separately by the State.
CHAPTER VIII APPRAISAL
Article 21 Appraisal of judges shall be conducted by the People's Courts the judges belong to.
Article 22 The appraisal of judges shall be carried out objectively and impartially, through the combined efforts of the leaders and masses, and routinely and annually.
Article 23 The appraisal of judges shall include their achievements in judicial work, their ideological level and moral characters, their competence in judicial work and their mastery of law theories, their attitude in and style of work. However, emphasis shall be laid on the achievements in judicial work.
Article 24 The results of the annual appraisal shall fall into three grades: excellent, competent and incompetent.
The result of appraisal shall be taken as the basis for award, punishment, training, removal or dismissal of a judge, and for readjustment of his or her grade and salary.
Article 25 A judge shall be informed of the result of the appraisal in written form. If the judge disagrees with the result, he or she may apply for reconsideration.
CHAPTER IX TRAINING
Article 26 Theoretical and professional training for judges shall be carried out in a planned way.
The principles of integrating theory with practice, giving lectures in light of 'the needs, and emphasizing practical results shall be applied in the training of judges.
Article 27 The judges colleges and universities of the State and other institutions for training judges shall, in accordance with the relevant regulations, undertake the task of training judges.
Article 28 The results of the studies of judges and the appraisals made during their training shall be taken as one of the bases for their appointment and promotion.
CHAPTER X AWARDS
Article 29 Judges who have made significant achievements and contributions in judicial work, or performed other outstanding deeds shall be rewarded.
The principle of combining moral encouragement with material reward shall be applied in rewarding judges.
Article 30 Judges who have any of the following achievements to their credit shall be rewarded:
(1) having achieved notable successes in enforcing laws and handling cases impartially;
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(2) having accumulated rich experience in judicial practice that may serve as a guide in judicial work;
(3) having made proposals for the reform of judicial work that have been adopted and have produced remarkable results;
(4) having performed outstanding deeds in safeguarding the interests of the State, the collective and the people against heavy losses;
(5) having performed outstanding deeds by bravely fighting against illegal or criminal acts;
(6) having made judicial proposals that have been adopted, and have produced remarkable results, or having scored outstanding successes in publicizing the importance of the legal system and guiding the work of the people's mediation committees;
(7) having scored outstanding achievements in protecting State secrets and secrets of judicial work; or
(8) having perform, ed other meritorious deeds.
Article 31 The awards include: Citation for Meritorious Deeds, Merit Citation Class Ill, Merit Citation Class 11, Merit Citation Class 1, and a title of honour.
The awards shall be authorized and procedures gone through in accordance with the relevant regulations.
CHAPTER XI PUNISHMENT
Article 32 No judges may commit any of the following acts:
(1) to spread statements damaging the prestige of the State; to join illegal organizations; to take part in such activities as assembly, procession and demonstration against the State; and to participate in strikes;
(2) to embezzle money or accept bribes;
(3) to bend law for personal gain;
(4) to extort confessions by torture;
(5) to conceal or falsify evidence;
(6) to divulge State secrets or secrets of judicial work;
(7) to abuse functions and powers; and to infringe upon the legitimate rights and interests of natural persons, legal persons or other organizations;
(8) to neglect his or her duty so as to wrongly judge a case or to cause heavy losses to the party concerned;
(9) to delay the handling of a case so as to affect the work adversely;
(10) to take advantage of the functions and powers to seek gain for himself or herself or other people;
(11) to engage in profit-making activities;
(12) to meet the party concerned or his or her agent without authorization and attend dinners or accept presents given by the party concerned or his or her agent; or
(13) to commit other acts in violation of law or discipline.
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Article 33 A judge who has committed any of the acts listed in Article 30 of this Law shall be given sanctions; if the case constitutes a crime, he or she shall be investigated for criminal responsibility.
Article 34 Sanctions include a disciplinary warning, a demerit recorded, a grave demerit recorded, demotion, dismissal from the post and discharge from public employment.
The salary of a judge who has been dismissed from the post shall at the same time be reduced and his or her grade be demoted.
Article 35 A sanction shall be authorized and procedures gone through in accordance with the relevant regulations
CHAPTER XII SALARY, INSURANCE AND WELFARE
Article 36 The salary system and scales for judges shall, in light of the characteristics oll judicial work, be formulated by the State.
Article 37 The system under which the salaries of judges are increased regularly shall be practiced. The salary of a judge who has been confirmed through appraisal as being excellent or competent may be raised in accordance with the regulations; the salary of a judge who has made special contributions may be raised in advance in accordance with regulations.
Article 38 Judges shall enjoy judicial allowances, regional allowances and other allowances and insurance and welfare benefits as prescribed by the State.
CHAPTER XIII RESIGNATION AND DISMISSAL
Article 39 If a judge requests resignation, he or she shall present an application in written form before he or she shall be removed in accordance with the procedures as provided by law.
Article 40 A judge shall be dismissed if he or she is found to be in any of the following circumstances:
(1) to be confirmed by annual appraisal as being incompetent for two successive years;
(2) to be unqualified for the present post and decline to accept other assignments;
(3) to refuse to accept reasonable transfer, which is necessitated by restructuring of the judicial organ or reduction of the size of the staff;
(4) to have stayed away from work without leave or to have overstayed his or her leave for fifteen days or more in succession, or for thirty days or more in a year aggregated; or
(5) to fail to perform a judge's duty, and make no rectification after criticism.
Article 41 A judge who is dismissed shall be removed from the post in accordance with the procedures as provided by law.
CHAPTER XIV RETIREMENT
Article 42 The retirement system regarding judges shall, in light of the characteristics of judicial work, be formulated separately by the State.
Article 43 After retirement judges shall enjoy the insurance of old age pension and other benefits as prescribed by the State.
CHAPTER XV PETITION AND COMPLAINT
Article 44 If a judge disagrees with the sanction or other disciplinary action given to him or her by a People's Court, he or she may, within thirty days from the date of receiving the decision on the sanction or other disciplinary action, apply for reconsideration to the organ which handled
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the case and shall have the right to appeal to the organ at a level higher than the organ which handled the case.
The organ that receives the appeal must make a decision on it in accordance with regulations.
Execution of a decision on a sanction or other disciplinary action given to a judge shall not be suspended during the period of reconsideration or petition.
Article 45 If a State organ or any of its functionaries commits an act infringing upon the rights of a judge as provided by Article 8 of this Law, the judge shall have the right to make a complaint.
If an administrative organ, a public organization or an individual interferes in a case that a judge is trying according to law, that organ, organization or individual shall be investigated for responsibility according to law.
Article 46 The petition or complaint made by a judge shall be true to facts. If a judge makes up a story or lodges a false accusation against an innocent person, he or she shall be investigated for responsibility according to law.
Article 47 Where a sanction or other disciplinary action given to a judge is wrong, it shall be put right without delay; if it has damaged the judge's reputation, the reputation shall be rehabilitated, the ill effects shall be eliminated and an apology shall be made; if it has caused financial losses to the judge, compensations shall be made. The persons who are directly responsible for retaliation shall be investigated for responsibility according to law.
CHAPTER XVI COMMISSION FOR EXAMINATION AND ASSESSMENT OF JUDGES
Article 48 A People's Court shall establish a commission for examination and assessment of judges.
The functions and duties of a commission for examination and assessment of judges are to guide the training, examination, appraisal and assessment of judges. Specific measures therefor shall be formulated separately.
Article 49 The number of persons on a commission for examination and assessment of judges shall be five to nine.
The chairman of a commission for examination and assessment of judges shall be assumed by the president of the court it belongs to.
CHAPTER XVII SUPPLEMENTARY PROVISIONS
Article 50 The Supreme Court shall, according to the requirement of judicial work, formulate together with other departments measures on manning quotas of judges of People's Courts at various levels.
Article 51 The State organizes uniform judicial examinations on persons to be judges and prosecutors for the first time and for lawyer's qualification certificate. Measures for implementing the judicial examination shall be formulated by the judicial administrative department of the State Council together with the Supreme People's Court and the Supreme People's Procuratorate.
Article 52 The executors of the People's Courts shall be administered with reference to the relevant provisions of this Law.
Measures for the administration of the clerks of the People's Courts shall be formulated by the Supreme People's Court.
The, administrative judicial personnel of the People's Courts shall be administered in accordance with the relevant regulations of the State.
Article 53 This Law shall come into force as of July 1, 1995.
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