Thursday, July 15, 2010
Inspired by my recent post on the PRC judicial exam, guest blogger Glenn Tiffert, a Ph.D. candidate in Chinese history at the University of California at Berkeley, has kindly offered the following post on the judicial examination in the Nationalist period (1928-1949).
“Discuss the relationship between the rule of law and the administration of justice (論法治與司法之關係)” in classical Chinese -- a question from the 1947 National Judges Examination (司法官考試), one of the last exams of its kind on the Chinese mainland for nearly fifty years. 
During the Nationalist period (1928-1949), the Judges Examination was the principal route to judicial and procuratorial appointment, though alternative paths opened up to accommodate the rapid post-war expansion of the court system in the 1940s. Originally, the test was inspired by the judicial examinations given in Meiji Japan and, from its inception under the Qing dynasty in 1910, it blended elements of the traditional imperial examinations with the imperatives of an urgently modernizing nation struggling to reconcile its heritage with a body of human, institutional and normative substitutes forced upon it from abroad. Alongside subjects such as criminal, civil, constitutional, commercial and procedural law, which required examinees to cite statute provisions and legal principles in detail from memory, the exam incorporated sections that were philosophical, political and historical in nature. During the early Beiyang era, for example, it included questions on the Chinese Classics, and during the Nationalist period it tested Language (國文), History & Geography (史地) and, consistent with the drive to partyize the judiciary (司法黨化), Guomindang Party Principles (黨義) and the teachings of Sun Yat-sen (國父遺教). Consider the following questions drawn from the 1946, 1947 and 1948 exams:
- Language: Confucius says “When you have found out the truth about any accusation, grieve for and pity them, and do not feel joy at your own ability.” Explain and discuss. (孔子云如得其情則哀情而勿喜試申論之.) (1946 正試)
- Party Principles: With respect to the sequence of building the country after the period of military administration, why was it necessary to undergo a period of political tutelage before it was possible to reach the period of constitutional government? Explain the reasons. (建國之程序於軍政時期之後, 何以必須經過訓政時期, 方能達到憲政時期? 試說明其理由.) (1947 正試)
- History: In the Song dynasty, Wang Anshi’s reforms did not prevail. Consider their successes and failures. (宋王安石行新法不成, 試論其得失.) (1947 正試)
- Teachings of Sun Yat-sen: Describe Sun Yat-sen’s position on individual freedom. (試述國父對於個人自由之主張.) (1948 銓定資格考試)
The Language section was noteworthy because it asked examinees to: 1). answer a question of philosophy or theory with an essay of 300 characters or more in classical Chinese (文言文); and, 2). draft an internal judicial document (公文) using the highly stylized and classically inflected forms unique to that bureaucratic genre. To mainstream Nationalist and PRC critics alike, these requirements exemplified the ossified formalism of Republican law, and the judiciary’s cultivated social detachment and elitism. In the early years of the PRC, the CCP would intensify such attacks and tear down the entire model of adjudication and legal professionalism they described.
The format, frequency and administration of the Judges Examination evolved over the course of the Nationalist period. In keeping with the times, stability was elusive. In 1933, the exam consisted of four stages: a preliminary exam (甄錄試, later 初試), a main exam (正試), an oral exam (口試) and, after a two-year practicum at a court or procuratorate, an advanced exam (再試), after which a successful examinee began a career as a candidate (候補) judge or procurator. Each stage was contingent on successful passage of the one before it. Examinees were required to have graduated first from the law faculty of a university or specialized professional college. They arrived as much as one month before the preliminary exam to obtain local accommodations and finalize their preparations and, if consecutively successful, could expect to emerge from the oral exam three months later. In 1933, the preliminary and main exams were given in Beiping and Nanjing, but reading and grading all took place in Nanjing, as did the oral exam, which required Beiping examinees who qualified for it to travel south on short notice. Needless to say, the expenses for academic preparation, travel, accommodations and food made taking the Judges Examination costly and restricted participation to a select group of affluent students. Later exams were given at multiple sites around the country, often on an irregular and ad hoc basis. Exam questions were published in law journals. The examples provided here [1947 exam | 1948 exam] appeared in issues of the 震旦法律經濟雜誌 (Revue Juridique et Économique de l’Université l’Aurore) published in Shanghai.
The Judges Examination was emblematic of the diffusion of authority plaguing the Nationalist legal system. The Ministry of Education under the Executive Yuan accredited the law schools that qualified students to sit for the exam and regulated their curricula. In principle, the exam was part of the national higher civil service examinations and therefore under the jurisdiction of the Examination Yuan. But the chief examiner in 1933 was a judge from the Supreme Court under the Judicial Yuan, and many of the later, irregular exams were sponsored directly by the Ministry of Justice under the Executive Yuan. After passing the 1933 oral exam, candidates submitted their practicum preferences to the Examination Yuan, which forwarded them to the Ministry of Justice. The Ministry of Justice, pursuant to its authority over administrative matters in the judicial system, assigned examinees to courts and procuratorates based on need, personal preferences and exam rankings. Personnel issues during the practicums, including performance evaluations, were under the jurisdiction of the Ministry of Justice, as was the work product of examinees on the procuratorial track. But the work product of examinees on the judicial track, for example any judgments they wrote, fell under the dual authority of the Ministry and the regular court hierarchy under the Judicial Yuan. After passing the advanced exam, the Ministry of Justice assigned candidates to their posts. Legal reform in the Nationalist period was like this.
The deviations, compromises and changes to the formal examination regime are too numerous to list here, but a few are worthy of special mention. In 1942, under the authority of the Ministry of Education and pursuant to plans for post-war judicial expansion, a number of leading law schools established specialized judicial groups (司法組) to recruit and prepare students for judicial careers. Graduates took a Judicial Group Graduate Assessment Exam (各大學及獨立學院法律系司法組畢業生銓定資格考試) instead of the ordinary preliminary exam. In 1946, 132 students passed this exam, and in 1947 the number was 229. In 1948 successful candidates in the main exam no longer underwent lengthy court practicums but proceeded directly to National Chengchi University (中央政治大學), the Guomindang’s party school, for training, highlighting the blurred boundaries between party and state in the Nationalist legal system. As part of their curriculum, Roscoe Pound, acting as an advisor to the Ministry of Justice, delivered a celebrated series of lectures with interpretation provided by his former student, then a luminary in Chinese legal circles, Yang Zhaolong (楊兆龍). By this point, the Nationalist government had also introduced examinations for other categories of legal personnel in a bid to raise professional standards. These included: an exam for Trial Officers in County Level Judicial Bureaus (審判官考試), a Judicial Clerk’s Exam (書記官考試), a Prison Warden’s Exam (監獄官考試), and a Lawyer’s Exam (律師考試).
In retrospect, the National Judges Examination produced a rigorously trained and selected corps of judges to staff China’s courts. They were erudite, modern successors to the scholar-officials of imperial China, and consciously cultivated this association. But they were also a profoundly homogenous group ill suited by training and socialization to the needs and condition of the society around them, as was the model of judicial development adopted and pursued by the succession of Republican governments that produced them.
Partial Data on Successful Candidates in the Judges Examinations
For a country the size of China, in a period when the government was actually funding judicial reconstruction with atypical generosity and holding extra, ad hoc examinations to boost judicial staffing, the data above hints at the severity of the bottleneck the Judges Examination system imposed. Cumulatively, the years of study required to pass the exam, the impractically high standards set by it, war, maladministration, fiscal constraints and bureaucratic infighting meant that, in spite of the appearance of alternative paths to appointment, the judiciary grew far too slowly to penetrate much beyond the major cities and core counties under Nationalist control. As late as 1947, four decades after the first modern, local courts opened in Tianjin and Beijing, one high-ranking Ministry of Justice official conceded that adequate numbers of judges and procurators “would take many peaceful years to train.” The following year, the Nationalist government reported only 748 local courts for its approximately 2,000 administrative districts, an indeterminate number of which barely functioned if at all, casualties of over-ambitious planning, hyperinflation and civil war. When the CCP ascended to power in 1949, this record of disappointment and the human, institutional and normative legacies it bequeathed informed the inputs and choices through which the PRC judicial system took shape.
For a fascinating personal account of the 1933 Judges Examination, see: http://www.law-culture.com/shownews.asp?id=7950 (last accessed July 15, 2010), which has been published as 俞履德, “国民党政府对司法官选拔和培训,” in 文史资料存稿选编: 政党政府, (北京: 中国文史出版社, 2002).
Glenn D. Tiffert is a Ph.D. Candidate in Chinese history at the University of California, Berkeley. This article is adapted from a forthcoming study by the author on the development of the judicial system in the early years of the PRC.
 “三十六年度司法官考試試題.” 震旦法律經濟襍誌 3, no. 7 (1947): 96.
 “法院組織法”Art. 33 (with amendments promulgated January 17, 1946), In 最新六法全書, (上海: 中國法規刊行社, 1946), 461; 謝冠生. 戰時司法紀要. (臺北: 司法院秘書處, 1971), 427-478.
 Judges did not have to be members of the Guomindang, and in fact many were not. The China Democratic League, a center-left party, counted many judges and lawyers among it members. But judges did have to perform their official duties within the framework of Guomindang policies and goals, and tolerate Guomindang supervision and interference in sensitive cases.
 俞履德, “国民党政府对司法官选拔和培训,” in 文史资料存稿选编: 政党政府, (北京: 中国文史出版社, 2002).
 “三十六年度司法官考試試題,” 震旦法律經濟襍誌 3, no. 7 (1947): 96; “三十七年各大學及獨立學院法律系司法組畢業生銓定資格考試試題,” 震旦法律經濟襍誌 4, no. 7 (1948): 238.
 國史館, ed., 中華民國史法律志(初稿), (臺北: 國史館, 1994), 529-530.
 Roscoe Pound, Some Problems of the Administration of Justice in China (Nanking: National Chengchi University, 1948).
 Xiaoqun Xu, Trial of Modernity: Judicial Reform in Early Twentieth-Century China, 1901-1937 (Stanford: Stanford University Press, 2008).
 Figures taken from: 國史館, ed., 中華民國史法律志(初稿). (臺北: 國史館, 1994), 529; 冷霞, “近代中国的司法考试制度,” in 20世纪外国司法制度的改革, ed. 何勤华, (北京: 法律出版社, 2003), 353.
 In 1946 and 1947, the Preliminary Examination was offered twice to meet the needs of post-war judicial reconstruction.
 Chao-lung Yang, “The Power of Chinese Courts,” Vanderbilt Law Review 1, (1947-1948): 21.
Wednesday, July 14, 2010
With all the handwringing these days about the crafty Chinese taking trusting American businesses to the cleaners, isn't it nice to see that other US firms are stepping up to the plate to do their part for the balance of payments? (For the literal-minded among you, I'm kidding.)
Here's a very interesting (if you like corporate finance) set of posts from the China Private Equity blog on how Chinese firms get talked into doing reverse mergers into US firms, with the hope (rarely fulfilled) of getting listed on Nasdaq.
- The Reverse Merger Minefield (June 8)
- TMK Power Industries - Anatomy of a Reverse Merger (July 4)
- Reverse Mergers - Knowledgeable Comment (July 13)
Monday, July 12, 2010
Putting melamine in milk seems a bit like eating peanuts or making Gao Zhisheng disappear; once you start, you just can't stop. I last blogged about this addiction in January; here's a news story showing that tainted milk is still being sold.
What can be done? According to Rio Praaning Prawira Adiningrat, secretary general of the Public Advice International Foundation, "The Chinese government has enormously and effectively responded with new laws and new regulations, and tries to implement this as soon as it can . . . . I think they are absolutely doing the best they can."
One of the effective new regulations showing this zeal is reported here: lawyers being instructed by their governing bodies not to take melamine-related cases.
Sunday, July 11, 2010
Reader Richard Li offers a first-hand perspective on the September 2009 administration of the National Judicial Examination. I like the system of posting official answers and then giving consideration to dissenting views submitted by test-takers. Richard notes that there's no evidence that the system actually worked in practice, but it's still a good idea that other bar examiners ought to consider.
Since the Ministry of Justice (“MOJ”) began to open the floodgates to thousands of unqualified lawyers in 2007, the number of registered test takers of National Judicial Examination has taken off and the year of 2009 hit a record high. In 2009, nearly 420,000 people registered, and over 350,000 finally sat for the test. [Note]
Owing to the worldwide economic recession, my month-long study leave was approved without any trouble. In fact, my test preparation began a month earlier. The entire preparation process was extremely frustrating, for there were a host of provisions and principles to memorize. To try to remember important articles of one area such as criminal law is daunting, let alone the entire legal system. It was not until the test preparation that I realized my memory only had limited capacity. When it runs to the maximum, to input every extra piece of information will erase an old piece.
The test has totally four sections and two sections for each day. Section One consists of 100 questions regarding jurisprudence, economic law, international law, and other small terrains of the law. In general, this year's Section One has more questions regarding minor areas of the law than the previous year's test had. As a result, there may be few test takers but are worried about their scores of this section.
Section Two covers criminal law, criminal procedures, administrative law, and administrative procedures. It is widely accepted that this section has been the most vexing one among the four sections for years, not only because of the obscurity of administrative law, but also the depth of criminal law. With respect to criminal law, there is an analogy with the way a question is made. The law shows you how to get to the depth of 80 meters, while the question asks you the depth of 100 meters. Therefore, just because you are able to clearly recall the applicable provisions doesn't mean you can work out the answer. The most efficient way to find the answer is to get acquainted with the schools of the professors who framed those questions.
Section Three comprises civil law, civil procedures, arbitration, and commercial law. In this year's test, this section might be the most reasonable among the four. It is foreseeable that the average score of this section will be the highest compared to other three. However, from my perspective, civil law questions, which accounts for nearly three fifths of this section, were not properly framed. Some were ambiguous and open to different interpretations. This problem will to some extent frustrate the purpose of the test.
Section Four only has essay questions. Timing is a pivotal matter for this section, as you need to write around 5,000 words in order to answer the seven questions properly. Test takers who relied on the test training institutes for information might find themselves depressed, as all of this year's essay questions were quite unexpected.
MOJ released all the test questions as well as the official key within one week after the test date. At the same time, it set up a bulletin board allowing test takers to post their dissenting views on the official answers to each questions and the answers they gave. [Note] It was provided in MOJ’s No. 85 Announcement in 2009 that officials from MOJ would collect and collate test takers’ dissenting views and their proposed answers, and submit them to a panel of experts for verification before marking the test papers. Answers surviving the verification process were used in the paper marking. [Note] However, in practice, MOJ usually did not publicize the changes to the official key after verification, so the verification process and the final answers remained unknown to the test takers.
Many test takers have been complaining that the National Judicial Examination is a far cry from the professed "practical test". Its drawbacks the critics have pointed out may include but are not limited to the following:
1. The ability to reason is not tested. Instead, questions mainly concern the literal meaning of the rules. If it is allowed to bring in laws and regulations, then almost all the questions are easy to answer. In the real world, lawyers most of the time have the access to legal texts.
2. Too many impractical and unimportant laws are tested in the test. Some provisions may not be quoted by lawyers in their whole life career.
3. Since there are a fair number of errors in the official key every year, the results may not correctly demonstrate test takers’ actual knowledge of the law.