Monday, December 19, 2005
The Supreme People's Court has finally published its second five-year plan for court reform (人民法院第二个五年改革纲要(2004－2008)). This document was reported to have been issued in October; it is dated Oct. 26, and news reports appeared at the time discussing its contents. But the document itself was inexplicably unavailable to those of us who were looking for it; it did not, for example, appear on the SPC's web site. But now we finally have it: click here.
Below are some initial impressions based on a quick reading. I've also included a few queries at the end and would welcome suggested answers. This post is open to comments.
This is an interesting document with a number of good and specific suggestions and goals that go beyond the platitudes one often sees in these things. A few things that struck me:
1. Death penalty: (a) Hearings (开庭审理) at the second instance as well as the first. (b) All death penalties to be reviewed by Supreme People's Court.
2. Change in function of higher courts: Change from a principle of jurisdiction by importance of case (e.g., amount in controversy) or party to a system of jurisdiction by type of legal principle at stake. Thus, higher courts will not have original jurisdiction in cases where no legal issue of broad significance is at stake.
3. Increase finality of judgments (at least this is how I read Item 9): Bring more order into the system of zaishen (再审).
4. Reform the system of qingshi (请示): If there's an important legal issue at stake that can only be resolved by a higher court, then the lower court (or the parties) should request that the higher court simply take jurisdiction over the whole case and hear it.
5. Reform of adjudication committee: Item 23 seems to contemplate separate ACs for criminal and civil matters. This would seem to mean the end of the AC as a single body with jurisdiction over everything the court does, and would leave the court president as the head (whereas I believe that now, at least in form, the AC as an organ of collective leadership is superior to the president). Kind of a big step.
6. Reform of personnel selection: The document suggests that higher court judges should increasingly be taken from skilled lower court judges and other legally talented people, but it's not specific on how this would happen, since it doesn't recommend changing the basic system of judicial appointment.
7. Reforms in court financing: Here the document is quite specific: it suggests that court finances should be guaranteed at the state level and paid at a level not lower than the provincial treasury. This would make a big difference in the way courts operate if it could be effected.
Something I didn't see: Section 4 on improving the enforcement of judgments didn't seem to offer very much by way of specifics. Did anyone see something there they found significant?
Questions about obscure (to me) terms:
1. What is 各级人民法院的法官员额比例方案 (Item 36)?
2. What is it talking about in Item 25 when it says 实现司法政务管理的集中化和专门化?
This isn't exactly Chinese law-related, but it may be of interest to enough readers of this blog to be worth posting. The first paragraph of the job announcement is as follows:
The University of Oklahoma invites nominations and applications for the Harold J. & Ruth Newman Chair in US-China Issues in the School of International and Area Studies, a tenured position at the level of associate or full professor. The holder of the Newman Chair will also serve as the Director of the University’s new Institute for US-China Issues. The establishment of the Chair and Institute is part of a broad Asia-related initiative, led by President David L. Boren, to strengthen the role of the University of Oklahoma as a major center for education, scholarship and public outreach on Asia and US-Asia issues.
Here's the full text: Download oklahoma.pdf
Sunday, December 18, 2005
On Dec. 8, 2005, Peking University's Faculty of Law formally launched its Center for Research in Soft Law (软法研究中心), with Luo Haocai (罗豪才) (Peking Univ. Faculty of Law) as honorary director, Jiang Ming'an (姜明安) (Peking Univ. Faculty of Law) as director, and Song Gongde (宋功德) (National Institute of Administration) as executive director.
The text of Luo's speech at the founding ceremony, where he lays out some of the problems in the field and the goals of the center, can be found here.