Saturday, May 27, 2017, 2:44 AM CST – China

Society

Judicial Corruption

Breaking Down the Courtroom Door

A lack of transparency and a rigid hierarchy is fostering corruption among China’s courts. Can the authorities force internal court politics into the light?

Judges from Shenzhen Intermediary Court publicly take their vows on China’s first Constitution Day, December 4, 2014 Photo by CFP

In the first four months of 2015, at least 10 presidents or vice-presidents of Chinese courts at different levels were investigated or formally disciplined, bringing the rate of investigations resulting in criminal charges between January 2008 and April 2015 to 93.57 percent, 33 percent of which were for “violation of law and discipline,” and 10 percent for “serious disciplinary violations.”

China currently has 32 high courts, including one military court, 409 intermediate courts, and 3,117 local courts. Among the judicial officials to have fallen in the past eight years, 67 were from local courts, 21 from intermediate courts, four from high courts and one from China’s Supreme People’s Court (SPC). Based on public data, NewsChina found that among closed cases, 60 percent involved bribe-taking, corruption and the large-scale acquisition of illicit assets.

Huang Songyou, former vice-president of the SPC, was jailed for life in 2010 after being found guilty of corruption and embezzlement, becoming the highest ranking judicial official to be convicted of a crime since the founding of the People’s Republic of China in 1949.

Authority

According to China’s Judges Law and the Organic Law of the People’s Courts – the two main statutes governing China’s judiciary branch – the authority of Chinese judicial officials falls under three main jurisdictions: trials, personnel and administrative management. In all Chinese courts, however, the court president retains the highest authority.

He Bing, law professor at the China University of Political Science and Law, told NewsChina that judges have the fundamental right to conduct trials independently, and that only particularly complex cases are turned over to the judicial committee, and, by extension, the oversight of the court president or vice-president.

Nevertheless, He claims that because court leaders are authorized to appoint a presiding judge at trial and assess the performance of all judges, their relationship is, in practice, rigidly hierarchical. What’s more, court leaders also have the right to make judicial decisions, and the right to supervise trials. Sometimes, for example, publication of details relating to cases that do not require referral to a judicial committee have to be signed off by the court president.

Chen Yongsheng, law professor at Peking University, told NewsChina that an unavoidable consequence of this structure is that “if a court leader wants to, he or she can play a role in any trial he or she likes, resulting in widespread bribery.”

In February 2011, the SPC published a number of regulations aiming to prevent court officials from interfering in due process, requiring judges to file a written record of their involvement in cases for which they were not responsible. In February 2015, the SPC made public its fourth set of reform guidelines (for the period 2014-2018) in which it stated that all written records made under the supervision of court presidents and presiding judges must be properly filed; an attempt to introduce a system of checks and balances into the court system.

In 2013, the Intermediate People’s Court of Kaifeng, Henan Province, conducted a survey of 240 judges in the city to determine the effects of this new mechanism. They found that only 25 percent of respondents were familiar with the new regulations, while 22 percent were aware of them, but paid them no attention. 48 percent of respondents claimed to be completely unaware of the regulations.

According to the court’s research group, the reason for this lack of awareness was that the boundary between legal and illegal involvement in trials remains blurry. What’s more, court presidents or vice-presidents all possess the means to deliberately prevent their illegal activities from being documented.

Transparency

Peking University law professor Zhang Qianfan told our reporter that a main contributer to judicial corruption is the lack of transparency in the legal system. “Absence of judicial transparency is seen in the court’s unwillingness to disclose trial decisions,” he said. In addition, some courts even “hire people to sit in on trials in order to occupy more seats in the courtroom, insulating themselves against public oversight.”

In 1998, the SPC stipulated that in civil and economic cases, judges are not allowed to privately contact either party or their legal counsel. But in reality, violations abound.

Professor Chen Yongsheng has found that compared to courts, heads of procuratorates and lower-level procurators are less likely to be involved in corruption. Chen told NewsChina that a main reason for the difference is that procuratorates are mainly responsible for prosecuting criminal cases. The checks and balances between public security and the procuratorate authorities are “relatively strong,” according to Chen.

“In criminal proceedings, the only way for a procuratorate to illegally interfere with a trial is to refuse to file a case,” Chen told NewsChina. “But this [decision] still falls under the supervision of the public security department, leaving little opportunity for the procuratorate to break laws and regulations.”

In comparison, courts have more space to exercise discretionary power. For example, a judge can hand down a maximum prison sentence of 10 years for robbery. In civil cases, however, judges have more room to individually determine the amount of compensation involved.

In China’s current legal context, Chen said, court presidents are elected and dismissed by their relevant People’s Congress, whose delegates usually have a five-year tenure. The problem, Chen claims, is that “after the annual congress, delegates return to their regular jobs, and can hardly be expected to continue to fulfill their supervisory duties.”

Ambivalence

Between 2006 and 2013, Zuo Weimin, law professor at Sichuan University, conducted research into the role of court leaders. He found that the majority of leaders’ work pertained to management and politics rather than the law, at least according to feedback from judges, lawyers and the public. The higher the court, the more obvious the managerial role played by its leaders.

Zuo Weimin also found that among the 31 high court heads he surveyed in 2008, only 13 had experience conducting trials, a number that had fallen to 10 by 2013. That year, in another survey of 40 intermediate court leaders in two provinces, Zuo found that only 60 percent had experience working in the judicial system. Of those who did, many had no experience conducting trials.

A high court judge, who spoke to NewsChina on condition of anonymity, said that court leaders generally play the role of a “behind the scenes coordinator, especially in situations involving specific ‘connections.’”

Even though Professor Zuo’s research did not identify any direct link between the role of court leaders and corruption, some law professors believe that the judicial system has developed a bureaucratic hierarchy in which court leaders hold paramount authority.

“In some developed countries, the president of a court is usually the chief judge, who presides over trials. Some cases heard by court leaders are used as case studies in law schools,” Jiang Ming’an, law professor at Peking University told NewsChina, adding that in China, it was likely to be a different story.

Jiang said that public trials conducted under civil supervision in which each party’s right to appeal is safeguarded are a good way to weed out judicial corruption. He said that the SPC has been taking steps to promote transparency, particularly in recent years, including the live microblogging of the trials of disgraced former Chongqing Party chief Bo Xilai, the promotion of the judicial system as well as the practice of simultaneous publication of verdicts by courts at different levels in 2014.

Professor Jiang emphasized the importance of promoting conscientiousness within the legal community, particularly at universities. “When everyone in the legal circle is aware of the rules governing everyone else, engaging in corruption will be a bigger risk.”

Tags:

Editor's Picks

Sex for Snacks

In cities like Shanghai and Chongqing, a handful of high school…[More]

Worked to Death

A growing number of young Chinese white-collar employees are dying of…[More]

TROTSKY IN CHINA

How Communism’s most controversial theorist finally found an audience – in…[More]

What do Chinese People Want?

“I wish I could do what you do.”…[More]

THE HERMIT HUNTER

A student of Buddhism with a keen interest in China’s…[More]

Prize Fighter

Elevated into the State-approved pantheon of great Chinese writers thanks to…[More]

Dams in Distress

In 1975, over 60 dams collapsed after a rainstorm in Zhumadian city, Henan…[More]

Pathologically Politicized

Practitioners at all levels concur that “messy” is the word that…[More]

HIVE MINDED

China’s indigenous honey bee is under threat from both environmental…[More]

The New Class

China’s growing online education market has attracted the attention of…[More]

Exam Boot Camp

A middle school in Anhui province has earned a reputation for…[More]

From Stall to Mall

Taobao’s shift towards a business-to-consumer model has come at a…[More]

In Whose Court?

The failure of the country’s administrative litigation system has prompted…[More]

Tradition on Trial

After Confucianism made the maintenance of inequality between the sexes fundamental…[More]

Inevitable Brutality

The vicious murder of a doctor in a Zhejiang hospital shows…[More]

Progress or Pornography?

A new sex education primer aimed at elementary school-age children has…[More]

Graft Breeds Graft

The gap between the investigation and prosecution of official corruption cases…[More]

Saving Nature

The concept of animal welfare is yet to be widely acknowledged…[More]

Problem Solved?

Former Politburo member Bo Xilai’s public trial sends mixed messages…[More]

BEWILDERING

A 74-year-old man surnamed Xie from Shenyang, Liaoning Province was duped out of 420,000 yuan (US$69,342), despite bank employees’ efforts to…[More]

An Avoidable Tragedy

Poor city planning and lax safety regulations turned a minor gas…[More]

Who Cares?

A new law decrees that all Chinese citizens are now obliged…[More]

ANGRY

A policeman pulled his gun to dissuade villagers from stealing oranges…[More]

Mean Streets

The chengguan system has become the most visible symptom of a…[More]

How do Chinese people live?

So, the bottom line is that Beijing is an expensive place.…[More]

Back in Action

After stagnating for 10 years, China’s SOE reform has fired up…[More]

THE HANGING DEAD

The hanging coffins of the Bo people, a Chinese ethnic minority…[More]

AMUSING

Wang Xun, an archeologist with Peking University, arranged the bones of…[More]

Trust Trip

Embarking on a three-month car journey around China without handing over…[More]

Fading Lights

For those who grew up under the bright lights of China…[More]