Judicial system of the People's Republic of China
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The judicial system (or judicial branch) of the People's Republic of China has both broad and narrow meanings. Broadly speaking, the judiciary means law enforcement activities conducted by the country's judicial organs and organizations in handling prosecuted or non-prosecuted cases. Narrowly speaking, it applies to law enforcement activities conducted by the country's judicial organs in handling prosecution cases. This article uses the term in the broader sense.
Judicial organs here mean public security organs (including state security organs) responsible for investigation, prosecution, trial and execution of cases, the prosecutors, the trial institutions and the custodial system. Judicial organizations here refer to lawyers, public notaries, and arbitration organizations. The latter, though not part of the judicial apparatus, are an integral part and a link in the overall judiciary system.
The judiciary system in general refers to the nature, mission, organizational setup, principles and procedures of judicial organs and other judicial organizations. This system comprises sub-systems for investigation, prosecution, trial procedures, jails, judicial administration, arbitration, lawyers, public notaries and state compensation.
China has a four-level court system. At the top is the Supreme People's Court in Beijing. Lower courts are the higher people's courts in provinces, autonomous regions, and special municipalities; intermediate people's courts at the prefecture level and also in parts of provinces, autonomous regions, and special municipalities; and basic people's courts in counties, towns, and municipal districts. Special courts handle matters affecting the military, railroad transportation, water transportation, and forestry.
Constitutionally, the court system exercises judicial power independently and technically is free of interference from administrative organs, public organizations, and individuals. The Supreme People's Court supervises the administration of justice by local courts and special courts, while courts at higher levels oversee the administration of courts at lower levels. At each level, the courts are "responsible to the organs of state power which created them." Judges are limited to two consecutive terms running concurrently with the National People's Congress or local people's congresses.
The court system is paralleled by a hierarchy of prosecuting organs called people's procuratorates; at the apex stands the Supreme People's Procuratorate. The procurators serve as prosecutors, or district attorneys, and are limited to two consecutive terms running concurrently with the NPC or local people's congresses.
[edit] Background of justice in China
- See also: Chinese law and Legal history of China
The legal apparatus that existed before the changes made during the Cultural Revolution has been resurrected. The State Council again has a Ministry of Justice, and procuratorial organs and a court system have been reestablished. The legal framework for this system has been provided through the adoption of various laws and legal codes. For the first time, the law provides that there should be no discrimination among defendants based on their class origin. China has also reestablished a system of lawyers.
The actual functioning of this legal apparatus, however, continues to be adversely affected by a shortage of qualified personnel and by deeply ingrained perspectives that do not accord the law priority over the desires of political leaders. Thus, for example, when the top CCP leadership ordered a severe crackdown on criminal activity in 1983, thousands were arrested and executed without fully meeting the requirements of the newly passed law on criminal procedures. That law was subsequently amended to conform more closely with the actual practices adopted during the crackdown.
[edit] Overview
China's legal system, instituted after the establishment of the PRC in 1949, is largely based on that of the former USSR. However, after 1957, Mao Zedong's government consistently circumvented the system in its campaign to purge the country of rightist elements and "counter-revolutionaries." The Ministry of Justice was closed down in 1959, not to reopen until 1979, and the excesses of the Cultural Revolution wrought havoc on legal institutions and procedures. Efforts to reestablish a credible legal system resumed in 1977 (when there were no lawyers in China), as party moderates came to power. These efforts were accelerated in the early 1980s as China sought to provide the legal protection required by foreign investors.
The highest judicial organ is the Supreme People's Court, which, with the Supreme People's Procuratorates, supervises the administration of justice in the basic people's courts and people's tribunals (courts of first instance), intermediate people's courts, and higher people's courts. The judiciary is independent but subject to the Communist Party's policy guidance. The legal profession was still in an incipient stage of development in the mid-1980s. Over 25 law departments at universities and four special schools for training legal officials were in operation in 1987, when China had 26,000 lawyers. By 1993, there were 70,000 lawyers with plans to increase this number to 150,000.
A major anticrime campaign during the autumn of 1983 resulted in public executions at the rate of at least 200 a month; capital punishment may be meted out for 65 offenses, including embezzlement and theft. Under the Chinese criminal codes, as revised in 1979, local committees may sentence "hoodlums" to terms in labor camps of up to four years, in proceedings that grant the suspect no apparent opportunity for defense or appeal. Government records for 1990 indicated that nearly 870,000 persons were assigned to such camps during the 1980s. Since 1990, sentences to labor camps may be judicially challenged under the Administrative Procedures Law. In practice the review of such a sentence is rarely sought.
Due process rights are afforded in the 1982 Constitution, but they have limited practical import. The Criminal Procedural Law requires public trials, with an exception for cases involving state secrets, juveniles, or personal privacy. Cases are rapidly processed and conviction rates are about 99%. The 1976 Criminal Code contained 26 crimes punishable by death. A 1995 law raised this number to 65, including financial crimes such as passing fake negotiable notes and letters of credit, and illegal "pooling" of funds. Appeal is possible but with little chance of success. However in 1996, the National Peoples' Congress passed new legislation to reform criminal procedure and the legal profession. The new legislation recognized for the first time that lawyers represent their clients, not the state. Under the new system lawyers may establish private law firms. Defendants may also ask near relatives or guardians to provide additional defense.
Amendments to the criminal procedure became effective in January 1997. The amendments state that suspects may retain a lawyer after being first interrogated by an investigative organ. Attorneys may conduct limited investigation, call defense witnesses, and argue their client's cases in open court. According to the amendments defendants will enjoy a presumption of innocence.
Beginning in 1998, the government began a comprehensive "internal shake-up" of the judiciary, resulting in the punishment or dismissal of over 4,200 judicial branch employees. In January 1999, the former head of the Anti-corruption Bureau of the Supreme People's Procuratorate was dismissed for corruption.
China's entry into the World Trade Organization (WTO) in December 2001 has caused China to undertake a full-scale revision of its laws and regulations in order to adhere to WTO rules. In opening its market up to sectors involving finance, insurance, telecommunications, commerce, transportation, construction, tourism, and other services, China will require its judicial system to perform in accordance with international standards.
As of January 2003, China's lawyers were adhering to a new policy to wear dark suits in court, in an attempt to promote professionalism and as a step toward integration with international practices.
[edit] Trial system
The trial system refers to the court system governing the establishment of courts, judges, and trials.
[edit] Organization and Responsibilities of the People's Courts
According to the current Constitution, and the Law on the Organization of People's Courts, people's courts represent the main trial organ of the state. Organizationally, this court system consists of local courts, special courts and the Supreme Court, with all the first two subject to the supervision of the latter. Local courts are established in accordance with the administrative divisions, while special courts are set up where necessary.
[edit] Local Courts
Local courts are divided into three levels: Grassroots, Intermediate and Higher.
Under the Law on the Organization of People's Courts, grassroots-level courts consist of tribunals in counties/autonomous counties, cities without administrative districts, or administrative districts of cities. Their responsibilities are:
- To try criminal, civil and administrative cases as courts of first hearing, except where otherwise provided for by law. Cases deemed to be of a serious nature that should be handled by superior courts can be referred to those superior courts;
- To handle civil disputes and misdemeanors that do not need trials;
- To guide the work of the People's Arbitration Committees.
To facilitate lawsuits, grassroots courts may set up tribunals, which are not trial units, but have the responsibility to hear general civil and misdemeanors, guide the work of People's Arbitration Committees, publicize laws and regulations, and handle petitions. Their judgments and decisions represent the judgments and decisions of the grassroots People's Courts.
Intermediate courts are those set up in prefectures, cities directly under provinces (autonomous regions and municipalities directly under the central government) and districts in the four municipalities directly under the central government (hereinafter referred to as "municipalities"). Their responsibilities include:
- To try the following categories of cases:
a) First-hearing cases under their jurisdiction, as prescribed by law. According to the Law on Criminal Procedures, these cases include those involving national security; criminal cases that may involve life imprisonment or the death penalty; criminal cases committed by foreigners or cases involving Chinese citizens violating the lawful rights and interests of foreigners. According to the Law on Civil Procedures, civil cases heard by intermediate courts are major foreign-related cases; cases of major implications within their jurisdictions; and cases that intermediate courts are ordered to hear by the Supreme Court. In addition, according to the Law on Administrative Procedures, intermediate courts are authorized to hear the following cases: verification of patent rights; customs handling; suits against administrative actions taken by State Council departments or governments of the provinces (autonomous regions, municipalities); other important and complicated cases;
b) First-hearing cases transferred by grassroots courts;
c) Cases appealing or protesting the verdicts and decisions of grassroots courts.
For criminal, civil and administrative cases that intermediate courts deem to be of a serious nature, the intermediate court may request that the cases be transferred to superior courts.
- To supervise the performance of grassroots courts within their jurisdiction. They have the power to examine or order grassroots courts to re-examine verdicts or decisions issued by those courts that have already taken effect but that have been found to contain errors.
According to the law on court organization, Higher Courts are set up in provinces (autonomous regions and municipalities). Their responsibilities include:
- To try the following categories of cases:
a) Criminal, civil and administrative cases of major proportions and complications under their jurisdiction, as provided for by the law;
b) First-hearing cases transferred by lower courts;
c) Cases appealing or protesting the verdicts and decisions made by lower courts. Higher courts in areas where a maritime court is located are authorized to try cases appealing the verdicts and rulings made by the maritime court;
d) Protested cases submitted by prosecutors in accordance with trial-monitoring procedures.
- Review first-hearing cases involving the death penalty ruled by intermediate courts where the accused renounces the right to appeal. If the Higher Court raises no objection to the death penalty, it then files the case with the Supreme Court for verification; if it disagrees with the death penalty ruling, it can either re-examine the case or refer the case back to the Intermediate Court.
- Review cases submitted by intermediate courts involving a death penalty with two years' reprieve.
- Approve certain death-penalty cases as authorized by the Supreme Court.
- Supervise trials by lower courts. For verdicts or judgments passed by lower courts that have been found to contain errors, higher courts are authorized to hear or ask lower courts to reexamine the case.
[edit] Special Courts
Special courts are courts set up in special departments for special cases wherever necessary. Currently, China has special courts handling military, maritime, railway cases.
Military courts are set up at three levels: grassroots; Great Military Region, Services and Arms; and the PLA Court.
The PLA Court is the supreme military court whose responsibilities include:
- To try first-hearing cases involving crimes committed by individuals above the division commander level.
- To try foreign-related criminal cases.
- To try second-hearing cases, verification and review of cases involving death penalty.
Great Military Region and Services and Arms Courts are intermediate courts set up in great military regions, the navy, the air force, the Second Artillery Corp and the PLA General Headquarters. Their responsibilities include:
- Try first-hearing cases involving crimes committed by individuals at the deputy division commander and regiment level.
- Try cases that may involve death penalty and cases under their jurisdiction as authorized or designated by superior military courts.
- Try cases appealing or protesting rulings or verdicts passed by lower courts.
Grassroots military courts consist of tribunals set up in armies, provincial military regions, naval fleets, and air forces within Great Military Regions and in army units deployed in Beijing directly under the headquarters. Their responsibilities include:
- Try cases involving crimes committed by individuals under the battalion commander level and first-hearing cases that may involve a penalty up to life imprisonment.
- Try first-hearing cases under its jurisdiction as authorized or designated by superior military courts.
Maritime courts are special courts set up to try first-hearing maritime or sea-shipping cases for the purpose of exercising judicial jurisdiction over maritime affairs. In May 1989, the Supreme People's Court made a Decision on the Scope of Cases to Be Handled by Maritime Courts. That decision specified that maritime courts handle maritime or commercial cases between Chinese legal persons/citizens, between Chinese legal persons/citizens and foreign legal persons/citizens, and between foreign legal persons/citizens. These cases fall into 14 subsets in five categories:
- Ten categories of cases involving maritime torts and disputes, including: damage claim cases involving collision of vessels; damage claim cases involving vessels colliding into buildings and facilities on the sea, sea-linked waters and ports; claim cases involving vessels discharging or leaking hazardous materials or waste water causing water pollution or damaging other vessels or cargo; claim cases involving casualties in the course of sea-borne shipping or operations on the sea, sea-linked waters and ports.
- Fourteen categories of commercial cases, including: cases involving shipping contract disputes; contract dispute cases involving passengers and baggage; cases involving seaman labor contract disputes; cases involving maritime rescue and salvage contract disputes; cases involving maritime insurance contract disputes.
- Eleven other categories of maritime cases, including: cases involving major liabilities in shipping and maritime operations; cases involving port operation disputes; cases involving general average disputes; cases involving offshore development and exploitation; cases involving the ownership, proprietorship, mortgage or preferred maritime right of claim of vessels; administrative cases involving maritime or inland river authorities; and cases involving maritime fraud.
- Five categories of cases involving maritime enforcement, including: cases involving compulsory enforcement requested by maritime and inland river authorities; cases involving applications for enforcement of arbitration awards filed by litigants; cases involving applications filed with Chinese maritime courts by litigants for recognition and enforcement of arbitration awards given by arbitration agencies in foreign countries or regions, in accordance with provisions of the convention on recognition and enforcement of foreign arbitration; cases involving applications filed by litigants to Chinese maritime courts for assistance in enforcement of rulings given by foreign courts, in accordance with judicial assistance accords China signed with foreign countries, or with the principle of reciprocity.
- Two categories of cases involving requests for preservation: cases involving pleas for detaining vessels prior to the opening of trial; cases involving pleas for detaining cargoes aboard ships or fuel for the ships prior to the opening of trial.
Railway transportation tribunals are special courts set up along railways that try the following types of cases:
- Criminal cases investigated by railway public-security authorities and filed by railway prosecutors.
- Cases involving economic disputes. In accordance with rulings of the Supreme People's Court, these cases fall into 12 categories: cases involving railway cargo transportation contract disputes; cases involving disputes over the execution of international railway collaboration contracts; cases involving economic disputes within the railway system; cases involving torts that have resulted in damages to railways in violation of railway safety regulations; and tort cases involving human and property losses caused by railway operations and dispatch operations, where the litigant chooses to bring action to the railway tribunal.
[edit] Supreme Court
The Supreme People's Court is located in Beijing. It is the highest judicial organ, exercising the highest judicial power while supervising lower courts and special courts. The Supreme People's Court is presided over by one president and a number of vice presidents, chief justices and justices. The Supreme People's Court exercises the following powers:
- Supervise lower courts and special courts. For judgments and rulings passed by lower and special courts that have been found to contain errors, the Supreme People's Court have the power to hear the cases or order lower courts to reexamine the cases.
- Try the following cases:
a) First-hearing cases falling under its jurisdiction as prescribed by the law or as deemed necessary by the court itself. The Law on Criminal Procedure stipulates that the Supreme People's Court has first-hearing right to try criminal and civil cases of major proportions nationwide. The Law on Administrative Procedure provides that the Supreme People's Court has first-hearing jurisdiction over administrative cases of a material and complicated nature.
b) Cases appealing or protesting rulings of higher courts and special courts, and protested cases submitted by the Supreme People's Procuratorate in accordance with legal procedures.
- Approve death penalty cases.
- Issue judicial interpretations on how to apply law and writs.
- Lead and manage judicial administration of courts at all levels across the country.
[edit] Judge System
The judge system, a major component of the judiciary, refers to all the rules and institutions related to the election and qualification of judges, forms of election, tenures, rewards and penalties, and salary and compensation of judges. China promulgated a Judge Law on February 28, 1995, which contains 17 chapters and 42 articles.
[edit] Qualifications of Judges
Judges exercise state judicial power in accordance with law. They include presidents and vice presidents of courts at various levels, members of judicial committees, presidents and vice presidents of tribunals, judges and assistant judges. The responsibility of judges is to participate in collegiate panels or be independent judges at trials.
Judges are elected with the following qualifications:
- A citizen of the People's Republic of China;
- At least 23 years of age;
- Supports the Constitution of the People's Republic of China;
- In good political, professional and moral standing;
- In good health;
- A graduate of law from an institution of higher learning, or a non-law graduate from an institution of higher learning with in-depth knowledge of law, with two years of working experience; or holders of a bachelor's degree in Juris Doctor with a full year of working experience; those holding a Master's or Ph.D. degree in JD are not subject to the working-experience limit described above.
Those that have been penalized for crimes or have been dismissed from their public offices shall not be elected judges.
In addition, according to the Law on the Organization of People's Courts, presidents, vice presidents, presiding judge and deputy presiding judge of tribunals, judges and assistant judges, as well as People's Assessors shall be citizens with voting rights and rights of being elected, 23 years of age and with legal knowledge.
[edit] The Appointment and Removal of Judges
The Constitution and laws provide for the powers and procedures for appointing and removing judges.
Presidents of courts at local levels are elected and removed by the People's Congress at the same level and the tenure of the presidents is the same as the People's Congress; the president nominates the vice president, members of the Judicial Committee, presiding judges, deputy presiding judges and judges for appointment and removal by the Standing Committee of the People's Congress at the same level. Assistant judges of a court are appointed and removed by the president of the court. Judges sitting at special courts are elected and removed with procedures separately set forth by the Standing Committee of the National People's Congress.
Primary judges and assistant judges are recruited from among qualified candidates through open examination. The president, vice president, members of the Judicial Committee, presiding judge and deputy presiding judge shall be selected from among candidates who have practical working experience.
Judges shall not concurrently hold positions in the Standing Committee of the People's Congress, executive offices, the procuratorate, business, non-profit institutions, or in the legal profession.
Judges who have lost their citizenship, been found to be incompetent, been unable to perform their duties for a protracted period of time due to disciplinary violations, criminal records or health reasons, shall be removed from their position in accordance with legal procedures.
[edit] Safeguards for Judges
The Judge Law provides judges with the following safeguards:
- Professional safeguards: Judges shall be granted adequate powers and working conditions in order to perform their duties; they shall be free from interference in exercising their judicial powers from any administrative authorities or individual; they shall not be removed, demoted, dismissed or disciplined unless for statutory reasons and procedures.
- Salary safeguards: Judges shall receive remuneration for their performance of duties and enjoy insurance and other benefits.
- Corporal safeguard: Judges shall receive legal protection for their corporal, property and residential safety.
- Others: Judges shall have the right to resign, petition or accuse, or participate in training.
[edit] Promotions
Judges are divided into 12 levels, with the president of the Supreme People's Court being the Chief Justice and those between Level 2 and 12 being labeled Justice, Senior Judge and Judge. The level of seniority is determined by the judge's position, performance, professionalism and seniority. Promotions are based on annual performance reviews, which are conducted by the courts where the judges serve. Performance reviews shall be conducted in an objective, impartial manner and combine evaluations by both superiors and subordinates.
[edit] Rewards and Penalties
Judges are rewarded for their outstanding performance and contributions. Rewards can be public recognition of performance, Third Reward, Second Reward, First Reward and the conferring of an honorary title.
Judges must not engage in any of the following acts: disseminate information harmful to the reputation of the state; participate in illegal organizations; participate in anti-government gatherings, demonstrations and protests; participate in strikes; embezzle or take bribes; practice favoritism in breach of law; extort confessions by torture; conceal or forge evidence; leak state secrets or confidential information related to judicial proceedings; abuse power to violate the lawful rights and interests of citizens, legal persons or other organizations; neglect duties resulting in wrong rulings or serious damages to the litigant(s); purposefully delay proceedings; abuse power to seek profit for themselves or others; engage in business activities; meet in private with litigants and their representatives and accept their gifts and favors.
Judges who engage in any of the above acts will be disciplined to varying degrees. These can be warnings; a record of demerit in personal files; a record of a major demerit; demotion; removal from position; dismissal from office. A removal from position is accompanied by a lowering of salary and rank; those who have committed a crime will be prosecuted for their criminal liabilities.
[edit] Other Provisions
Judges enjoy rights of retirement, resignation, training, petition and complaint. After retirement, they shall be entitled to pension insurance and other benefits as prescribed by the state.
[edit] Forms of Court Trials
According to the Law on the Organization of People's Court and other laws, trials of People's Courts take the following forms:
[edit] Sole Judge Court
This kind of court is presided over by one judge for trying simple cases. Legally speaking, these cases include:
- First-hearing criminal cases handled upon complaint and other minor criminal cases;
- Simple civil cases and cases involving economic disputes handled by grassroots courts and their detached tribunals;
- Cases tried using special procedures, except for cases involving voters' qualification or other complicated cases, which should be tried by a collegiate panel.
[edit] Collegiate Panels
Collegiate panels consist of at least three judges or a combination of judges and People's Assessors. First-hearing criminal and civil cases are generally tried by a collegiate panel except for those simple cases for which a sole judge is sufficient. First-hearing administrative cases, without exception, are handled by a collegiate panel; second-hearing, reexamined cases and death penalty verification cases are handled by a collegiate panel.
A collegiate panel, as a basic form of the People's Court, is not inflexible in its composition; rather, its members are appointed on a case-by-case basis. The president or the presiding judge designates a judge to be the chief judge. When the president of the court or the presiding judge of a tribunal themselves attend a case, they serve as the chief judge concurrently. When assessing a case, the collegiate panel should follow the principle of the minority submitting to the opinions of the majority when disagreement arises. The opinions of the minority, however, should be recorded in the court log with signatures of members of the panel.
[edit] Judicial Committee
According to the Law on the Organization of People's Courts, courts at all levels set up a Judicial Committee, the members of which are nominated by the president for appointment by the People's Congress at the same level. The Judicial Committee is presided over by the president of the court and its responsibilities include:
- Deliberate on major, complicated cases;
- Summarize judicial practices;
- Discuss other judicial issues.
[edit] The Fundamentals of China's Judicial System
[edit] Open Trials
Article 125 of the Constitution provides that open trials mean that all cases tried by courts should be conducted openly unless otherwise provided for by the law. Even cases that are not tried openly should be publicized when the verdict is passed. "Open" means the entire process should be open to public auditing and to the press. For cases that, by law, should be open to the public, the court should announce before the trial opens the outline of the case, the name of the litigant, the time and the place of the trial.
Article 7 of the Law on the Organization of People's Courts provides that the following three types of cases are not open to the public:
- Cases involving state secrets;
- Cases involving personal privacy;
- Cases involving crimes committed by minors.
In addition, in accordance with provisions of civil procedure law, cases involving divorce and trade secrets may, upon request by litigants, not be open to the public.
[edit] Defense System
The Constitution and the law on the organization of courts provide that the accused is entitled to the right to a proper defense. The law on criminal procedure further provides that the courts have the obligation to ensure that the accused obtains defense, and sets forth specific procedures that any suspects or accused may, in addition to exercising the right to defend themselves, appoint one or two representatives to defend them. Those eligible to defend the accused include:
- Lawyers;
- Persons recommended by people's organizations or the employer of the suspect or the accused;
- The custodian or relative of the suspect or the accused.
However, those that are currently serving a sentence or those that have been deprived of, or are restricted in personal freedom should not represent the suspect or the accused.
For public-prosecuted cases, the suspect has the right to appoint a defender starting from the day the case is transferred for prosecution; for privately prosecuted cases, the accused has the right to appoint a defender anytime. Should the accused, for economic or other reasons, be unable to appoint a defender to a court where a public prosecutor appears, the court may designate a legal-aid lawyer to defend him or her free of charge. Furthermore, when the accused is blind, deaf, mute or a minor and has not appointed a defender, or when the accused may face death penalty and does not appoint a defender, the court should designate a legal-aid lawyer to defend him or her free of charge.
[edit] Second Instance Being Final
Article 12 of the Law on the Organization of People's Courts states that the courts have to try cases on two levels, with the second instance being the final judgment. This means a case is closed after going through two levels of trial.
The courts practice a four-level system in which the second instance is the final judgment. Jurisdiction depends on the nature and complexity of the case. Should the litigant not agree with the judgment or ruling of the first instance, he or she may, within a specified period of time, appeal to the higher court. If the procuratorate believes that the first-instance ruling or judgment is indeed mistaken, it may, within a specified period of time, protest the ruling or judgment to the higher court. If, within the specified period of time, the litigant fails to appeal and the procurator fails to protest, then the first-instance judgment or ruling stands as the legally binding judgment or ruling. The superior court, after reviewing appealed or protested cases in accordance with second-instance procedures, passes a judgment or ruling that is the final judgment or ruling. Except for cases involving the death penalty, all other cases take legal effect immediately upon announcement.
In accordance with legal provisions, the following cases are tried with the first instance being final:
- First-instance cases handled by the Supreme People's Court;
- Cases heard by grassroots courts in accordance with civil procedures, such as voter qualification cases, cases determining citizens to be legally disabled or partially disabled, cases pronouncing persons missing, cases pronouncing persons dead, or cases determining property unclaimed.
[edit] System of Collegiate Panels
Article 10 of the Law on the Organization of People's Court provides that courts shall practice a system of collegiate panels when trying cases. Except for first-instance simple civil cases and other cases otherwise provided for by the law, all cases are tried with a collegiate panel present. This system refers to a panel of at least three judges or a combination of at least three judges and People's Assessors, as opposed to trials conducted by one judge alone. The composition of the collegiate panel should be an odd number, usually three, and the principle of the minority submitting to the majority is observed, provided that the opinions of the minority are recorded in the court log. The judges and People's Assessors enjoy the same rights.
[edit] Challenge System
The challenge system refers to a system in which judicial officers shall or are required to withdraw from the cases because of their special relationship with these cases or litigants, which may undermine the impartiality of the judgment.
In accordance with criminal procedures, judges, prosecutors and investigators who meet any of the following conditions shall voluntarily withdraw or be challenged by litigants or their representatives to withdraw from the cases:
- They themselves are litigants or next-of-kin of litigants;
- They themselves or their close relatives hold stakes in the case;
- They have held the positions as witness, expert witness, defender or the advocate of litigants in incidental civil actions;
- They have other types of relations with litigants to the suit that may affect the fair handling of the case.
These restrictions apply to secretaries, translators and experts as well.
The withdrawal of judges is decided by the president of the court; while the withdrawal of the president is decided by the Judicial Committee of the court.
The civil procedure law and administrative procedure law have similar provisions.
[edit] System for Verification of Death Penalty Cases
This system refers to the procedures and rules that have to be observed in verifying death penalty cases.
The Law on the Organization of People's Courts and the Criminal Procedure Law provide that all death penalty cases, unless handled by the Supreme People's Court, are reported to the Supreme People's Court for verification and approval. The Supreme People's Court, if necessary, may authorize Higher People's Courts at the provincial level to exercise that power for death-penalty cases involving homicides, rape, robbery, explosion and other crimes that seriously threaten public security and social security. Cases involving a death penalty with a two-year probation ruled by intermediate courts are verified and approved by higher courts. Death penalty cases ruled by intermediate courts are first verified and approved by higher courts before being submitted to the Supreme People's Court for verification and approval. Should the higher court disagree with the death penalty verdict, it may want to hear the case or refer it back for re-examination.
[edit] System for Judicial Supervision
Also known as the re-examination system, this refers to a special arrangement for the court to reexamine judgments and rulings that have already taken effect. It actually represents a remedy to the system of second instance being final.
According to the Law on the Organization of People's Courts and the three procedural laws on civil, criminal and administrative cases, China's system of judicial supervision comprises the following components:
- The precondition for initiating the judicial supervision procedure is that judgments and rulings that have already taken effect have been found to contain errors in establishment of facts or application of laws.
- The judicial supervision procedure can only be initiated by presidents of courts, superior courts, superior procuratorates, the Supreme People's Court and the Supreme People's Procuratorate.
- The way this procedure works is that presidents of courts ask the Judicial Committee to handle the matter; the Supreme People's Court asks or designates lower courts to reexamine the case; the Supreme People's Procuratorate and higher procuratorates protest a case in accordance with procedures for judicial supervision.
- In reexamining a case under the judicial supervision procedure, courts form a separate Collegiate Panel. If the original case was a first-instance case, then it should be re-examined in accordance with first-instance procedures; rulings or judgments arising thereof are subject to appeal or protest. If the original case was a second-instance case, or was tried by higher courts, then second-instance procedures should be followed and rulings or judgments arising thereof shall be final.
[edit] System of Judicial Assistance
This refers to a practice whereby the judicial authorities of a country (usually courts), in accordance with international treaties or bilateral/multilateral agreements (or the principle of reciprocity in the absence of a treaty), perform the judicial procedures at the request of another country's judicial authorities or parties to a lawsuit.
Judicial assistance in China consists of three aspects:
- Delivery of documents and investigations in search of evidence;
- Mutual recognition and enforcement of court rulings and arbitration awards;
- Criminal judicial assistance, including delivery of documents, investigation in search of evidence and extradition of criminals.
[edit] Prosecution System
The prosecution system refers to the nature, mission and organizational structure of a country's prosecution apparatus, as well as the principles for its organization and activities and working institutions.
According to the Law on the Organization of People's Procuratorates, the People's Procuratorates are the State's organs for legal supervision that exercise the power of prosecution. They are elected by and report to the People's Congress at the same level.
[edit] Organization of Procuratorates
Article 2 of the Law on the Organization of People's Procuratorates states that procuratorates are set up at the supreme and local levels; in addition, special procuratorates such as military procuratorial organs are set up. Such a top-down structure reflects the pyramid structure of the country's prosecution, in which the superior leads the subordinate. This is noticeably different from the court system in which the higher court supervises the lower court. This centralized system is created to maintain the consistency of the country's legal structure.
The Supreme People's Procuratorate leads local and special procuratorates. Local means provincial, autonomous regional and municipal procuratorates and their branches, as well as procuratorates at the autonomous prefecture/cities directly under provincial governments, county, city, autonomous city and urban district levels. Special procuratorates include military and railway transportation prosecution. Procuratorates are established at levels corresponding to those of courts so that cases can be prosecuted in accordance with legal procedures.
[edit] Responsibilities of Procuratorates
According to the Law on the Organization of People's Procuratorates and other related laws, procuratorates exercise the following powers:
- Exercise the power of prosecution on cases of treason, separatism and major crimes seriously hindering the uniform implementation of the state's policies, laws, writs, administrative decrees;
- Investigate criminal cases they directly handle;
- Review cases investigated by public security and state security authorities to decide if arrests, prosecutions are warranted; supervise the legality of such investigations;
- Initiate public prosecution and support public prosecution for criminal cases; supervise the legality of trials conducted by courts;
- Supervise the rulings and judgments on criminal cases and the legality of activities of jails, detention centers and reform-through-labor institutions;
- Supervise civil and administrative trials of courts.
[edit] Organizational Structure of Procuratorates
Organizationally, procuratorates are composed of procuratorial committees and other specialized departments.
[edit] Procuratorial Committee
The chief prosecutor of a procuratorate oversees the day-to-day operation of procuratorates. Clause 2, Article 3 of the Law on the Organization of People's Procuratorates states that People's Procuratorates at all levels should establish a Procuratorial Committee and a democratic centralization system should be implemented. The committee should, under the leadership of the chief prosecutor, deliberate on major cases and other major issues. Should the chief prosecutor disagree with the decision of the majority of the committee members, he or she may refer the issue to the People's Congress at the same level for adjudication.
[edit] Working Body
Internally, working bodies are created within each procuratorate. These include prosecutors for criminal, economic, disciplinary, jails, and civil and administrative cases. In particular, procuratorates have set up anti-corruption bureaus and reporting centers that fight embezzlement, bribery, dereliction and infringements of rights through collaboration with the masses.
[edit] System of Prosecutors
This system aims at managing prosecutors who, in accordance with laws, exercise the state power of prosecution at procuratorates. It consists of rules specifying the responsibilities, rights and obligations, qualifications, appointments and removals, examination, training, awards and penalties, salary and compensation, resignation, and retirement of prosecutors. The Prosecutors Law was adopted on February 28, 1995 at the 12th session of the Standing Committee of the Eighth National People's Congress. That law went into force on July 1, 1995.
[edit] Qualifications of Prosecutors
Prosecutors include chief prosecutor and deputy prosecutor of People's Procuratorates at all levels, members of the Procuratorial Committee, prosecutors and assistant prosecutors. Prosecutors as a whole must meet the following qualifications:
- Be a citizen of the People's Republic of China;
- Be at least 23 years of age;
- Support the Constitution of the People's Republic of China;
- Be in political, professional and moral standing;
- Be in good health;
- A graduate of law from an institution of higher learning, or a non-law graduate from an institution of higher learning with in-depth knowledge of law, with two years of working experience; or holders of a bachelor's degree in law with a full year of working experience; those holding a Master's or Ph.D. degree in law are not subject to the working-experience limit described above.
Those that have been penalized for crimes or have been dismissed from their public offices cannot be elected judges.
Prosecutors obtain their qualifications in two ways:
- Through qualification examinations. Open examinations are administered regularly by the Supreme People's Procuratorate to recruit junior and assistant prosecutors. Chinese citizens with a three-year college education are eligible for the examination. Those who have passed the examination and are deemed as being in good political and ethical standing will be qualified as prosecutors and awarded a Certificate of Qualifications for Prosecutor;
- Through training and tests.
Prosecutors and prosecution personnel can be disqualified for any of the following reasons:
- Resignation approved;
- Dismissed by procuratorial bodies;
- Removal of name from roll;
- Removal from office as a disciplinary penalty;
- Removal from position;
- Criminally penalized;
- Other reasons incompatible with the position of prosecutor.
[edit] System for Appointment and Removal of Prosecutors
The chief prosecutor is elected and removed by the People's Congress at the same level, but the appointment and removal of local chief prosecutors have to be reported to the chief prosecutor of higher procuratorates who, in turn, will submit the appointments and removals to the Standing Committee of the People's Congress at the same level for approval.
The appointment and removal of the deputy chief prosecutor, members of the Procuratorial Committee and prosecutors must be submitted to the Standing Committee of the People's Congress at the same level, but the appointment and removal of assistant prosecutors can be approved by the chief prosecutor.
[edit] Promotions, Awards and Penalties of Prosecutors
Prosecutors are promoted in two ways: regular promotions and selective promotions.
Prosecutors are divided into 12 ranks, with the highest being the Chief Prosecutor of the Supreme People's Procuratorate, followed by Grand Prosecutors, Senior Prosecutors and prosecutors (level 2 through 12). The ranking of prosecutors is determined by a range of factors, including their position, performance, professionalism and seniority.
Awards are typically a combination of moral and material incentives. These include public recognition of achievements, Third Prize, Second Prize, First Prize and the conferring of an honorary title.
Penalties include warning, a record of demerit in personal files; a record of a major demerit; demotion; removal from position; dismissal from office. A removal from position is accompanied by a lowering of salary and rank; those who have committed a crime will be prosecuted for their criminal liabilities.
[edit] Safeguards for Prosecutors
Prosecutors are protected by law in performing their duties. These include:
- Professional safeguards: Prosecutors are free from interference in exercising their judicial powers from any administrative authorities, social organization or individual; they shall not be removed, demoted, dismissed or disciplined unless for statutory reasons and procedures.
- Corporal safeguard: Prosecutors receive legal protection for their corporal, property and residential safety.
- Salary safeguards: Prosecutors receive remuneration for their performance of duties and enjoy insurance and other benefits.
- Others: Prosecutors are entitled to powers and working conditions befitting their performance of duties; they have the right to resign, petition or accuse.
[edit] Working Procedures
These govern the scope of operations and activities for prosecutors. They include:
1. Procedures for procuratorates supervising criminal investigations undertaken by public security (including state security) authorities.
- Verify and approve arrest warrants. The Constitution provides that, unless approved or ruled by procuratorates or courts and executed by public security authorities, citizens are not subject to arrest;
- Verify criminal cases concluded and transferred by public security authorities to determine if public prosecution is warranted.
- Supervise the legality of investigation activties by public security authorities.
2. Procedures for prosecutors to directly accept and investigate cases. According to an order issued by the Supreme People's Procuratorate in early 1998, 53 types of cases in four categories are directly handled by procuratorates:
- Embezzlement and bribery as defined in Chapter 8, Criminal Code, as well as other crimes such as misappropriation of public funds as defined in other chapters that should be penalized as those specified in Chapter 8;
- Dereliction of duties as defined in Chapter 9, Criminal Code, including abuse of power, negligence of duties, perversion of law in prosecution and adjudication;
- Violation of citizens' corporal rights and democratic rights committed by government employees, such as illegal detention, illegal searches and extortion of confessions through torture;
- Other major crimes committed by government employees that require direct involvement of procuratorates; in such cases, approval by procuratorates above the provincial level is needed.
3. Public prosecution: According to the Criminal Law and criminal procedure law, except for a few private prosecution cases, most criminal cases will be publicly prosecuted by People's Procuratorates to People's Courts that have jurisdiction. Cases submitted by public security authorities have to be reviewed by procuratorates without exception and a decision on public prosecution should be made within a month. For cases of a substantive and complicated nature, that deadline can be extended by another half month. Public prosecutions have to be brought to courts with jurisdiction for cases for which facts have been verified and evidence is accurate and sufficient and for which criminal liabilities must be prosecuted.
4. Judicial supervision - supervision over judicial activities undertaken by courts in handling civil, criminal and administrative cases. The appearance of prosecutors in trials of criminal cases means not just support of public prosecution but also supervision of the trial proceedings. In addition, prosecutors are empowered to protest rulings or judgments on criminal cases wrongly passed by courts.
5. Supervision on enforcement of criminal rulings and on jails. This includes:
- Execution death penalty: Members of procuratorates must be present at executions to supervise proceedings and verify the identity of the condemned prisoner.
- Penalties carried out at jails and penitentiaries, including the legality of reduction in sentencing, probation, medical parole, serving sentence outside prison, and suspension of sentence.
- Legality of activities at detention centers and reform-through-labor institutions.
[edit] System Governing Investigations
This system governs investigations and other mandatory measures taken in accordance with law by public security authorities and procuratorates in handling cases. It consists of provisions regarding the nature and mission, organizational structure, principles of activities and working procedures of investigation authorities.
Status and Nature of Public Security Authorities
Public security authorities are an important part of the government. They are both an administrative arm and a judicial organ since they are in charge of criminal investigations, playing a unique role in cracking down on crimes and maintaining social security.
Criminal Police
Criminal police are a major force of the police.
1. Qualification Requirements for Investigative Officers
Article 26 of the People's Police Law provides that investigative officers should meet the following conditions:
- Citizens at least 18 years of age;
- Support the Constitution of the People's Republic of China;
- In good political, professional and moral standing;
- In good health;
- Have at least a senior high school education;
- Willing to be a policeman.
Persons who have the following records should not be a member of the police:
- Having received criminal penalty for committing a crime;
- Having been dismissed from public office.
2. Promotions
Police are divided into 13 ranks in five categories:
- Police Commissioner and Deputy Commissioner;
- Police Superintendent Level 1, 2 and 3;
- Police Inspector Level 1, 2 and 3;
- Police Sergeant Level 1, 2 and 3;
- Police Constable Level 1 and 2.
The Ministry of Public Security supervises the ranking and promotions of the police.
Investigations
1. Acceptance and Establishment of Cases
Public security authorities should immediately accept, inquire about, take notes of and hear cases of suspects turned in, reported or brought to the police by citizens or suspects who turn themselves in. Those that meet conditions should be accepted and filed as a case and for complicated and material cases, an investigation plan and, if necessary, necessary measures have to be taken.
2. Procedures for Criminal Investigations
For criminal cases that already been filed with the police, investigations should be launched for a thorough and impartial collection of evidence that may determine whether the suspect is guilty or innocent and, if guilty, whether it is a felon or a misdemeanor. Depending on actual needs, various detective means and measures will be taken in strict compliance with statutory procedures.
3. Procedures for Detentions and Arrests
Public security authorities may proceed to detain criminals caught in the act or material suspects in accordance with statutory procedures; they may also seek approval from procuratorates for an arrest warrant for suspects for whom sufficient evidence of incrimination exists and a sentence is likely, and for whom measures such as obtaining a guarantor in anticipation of trial out of custody and surveillance of residence is insufficient for ensuring social security and order.
4．Procedures for Case Transfer and Prosecution
Cases concluded by public security authorities for which the facts are clearly established, evidence is verified and sufficient, the nature of crime and name of felony correctly defined, legal procedures completed and for which criminal liabilities should be prosecuted, should be transferred to the procuratorate at the same level to determine whether public prosecution is warranted.
5. Procedures for Evidence Gathering
Detectives should strictly follow statutory procedures in collecting all kinds of evidence that can prove whether a suspect is guilty or not, or how serious the felony is. Extortion of confession through torture and collecting evidence through threat, inducement, deception or other illegal means are strictly forbidden.
[edit] Prison System
The Prison Law of the People's Republic of China was adopted and went into force on December 20, 1994 at the 11th meeting of the Standing Committee of the Eighth National People's Congress.
Regulatory Authorities
The Prison Law provides that the State Council judicial administration (Ministry of Justice) supervises all prisons across the country. The Ministry of Justice has a Bureau of Prison Administration that supervises all prisons in the country. In the provinces (municipalities directly under the central government and autonomous regions), offices of justice are responsible for managing prisons in their own jurisdiction through their prison administration arms.
Prisons in China are divided into two categories:
- Prisons incarcerating inmates who have been condemned by courts to a fixed-term sentence, life sentence or death penalty with two years reprieve. Male and female inmates are warded separately, with female wards managed by female law enforcement personnel. Prisons may also be divided into wards for felons and criminals of misdemeanor.
- Penitentiaries for juvenile delinquents, criminals of minor age who have been condemned by courts to a fixed-term sentence, life sentence or death penalty with two years reprieve. Special protection is extended to juvenile delinquents, with customized procedures in place to cater to their needs.
Prison Setup and Staffing
The Prison Law provides that the State Council judicial administration approves the establishment, elimination and relocation of prisons in line with historical, economic and natural factors. This provision is designed to optimize the distribution of prisons and ensure the unified, effective and accurate execution of penalties.
Prisons usually have one warden and several deputy wardens and various administrative departments and staff. In addition to administrative offices and commercial institutions, prisons also have sanitary and education facilities.
The Prison Law provides that the managerial personnel of prisons are members of the police force who enjoy the same legal status as public security and traffic police.
Financial System of Prisons
The Prison Law states that the state ensures funding for prisons in reforming inmates. Expenses related to prison police, reformation of prisoners, daily life of inmates, maintenance of prison facilities and other items are budgeted for in the central government's planning. The state provides production facilities and funding needed for prison labor. Land, mineral resources and other natural resources legally employed by prisons, as well as the property of prisons are protected by law; no entity or individual can trespass or damage those properties.
Fundamental Principles
Article 3 of the Prison Law states that prisons should follow the principle of combining penalty with reform, education with labor, in a bid to reform prisoners into law-abiding citizens.
1. Transformation Through Punishment
Prisons punish criminals because, without punishment, it is difficult for criminals to come to grips with their crimes and begin their life anew. While punishment focuses on enforcement, reform focuses on transformation. Punishment is the means, while transformation is the end. The purpose of punishment is to transform criminals into law-abiding citizens. This is precisely what criminal penalties are for. Prisons do not punish criminals for punishment's sake.
2. Combining Education with Labor
To effectively reform prisoners, it is also necessary to combine education with labor. Education can be multifaceted: ideological, cultural, vocational and technical.
Execution of Penalties
Law enforcement authorities implement criminal rulings and judgments passed by judicial authorities that have already taken effect, in accordance with legal procedures. Chinese prisons execute the following types of penalties:
1. Committal, i.e. commitment to imprisonment of convicts who have been condemned to death penalty with two years reprieve, life sentence or a fixed-term sentence. Committal means the beginning of the execution of penalty, a serious law enforcement activity. Therefore, it must be conducted in strict compliance with legal procedures.
Public security authorities that incarcerate criminals that have been condemned to death penalty with two years reprieve, life sentence or a fixed-term sentence must transfer the criminals to prisons for execution of penalty within one month of receipt of the execution notice or ruling. While transferring the criminals to the prison, courts must present relevant legal documents including copies of the prosecution statement prepared by the procuratorate, the ruling by the court, notice of execution and form of registration for closure of case. Prison authorities may reject criminals if these documents are not received. If these documents are not complete or contain errors, the court that issues the ruling in effect has to amend or correct the documents in a timely fashion; those that may lead to mistaken imprisonment may not be accepted.
Criminals that have been taken in should go through physical, corporal and personal-effect examinations. Criminals condemned to life imprisonment or fixed-term sentence who have been found, during the physical examination, to have contracted serious illness needing medical treatment on bail or female criminals who are pregnant or breast-feeding their newborn may be exempted from imprisonment temporarily. That provision, however does not include criminals condemned to death penalty with a two years reprieve. The prison should notify the court of the result of the physical examination and the court, in turn, should decide whether the criminals should be allowed to seek medical treatment on parole. Personal effects that have been found to be incompatible with regulations should be confiscated; non-essentials should, upon approval of the inmate, be turned in to the prison authorities for safekeeping or returned to the relatives of the inmate. Female inmates should be examined by female police officers. Criminals should not bring their children with them to the prison.
Upon admission into the prison, the prison authorities should notify the family of the inmate; the notice should be issued within five days of admission.
2. Handling of Petitions, Accusations and Reporting by Inmates
During the execution of penalty, petitions filed by inmates should be referred without delay to procuratorates or courts. Prisons should set up a complaints box and designate a special individual to open the box in order to facilitate grievance redress. The procuratorates or the courts should notify the prison within six days of receipt of a letter of suggestions submitted by the prison.
Inmates have the right to bring a charge against or report prison police and other personnel for their illegal acts. The prison authorities should process the submitted materials and get the matter resolved if it falls within their jurisdiction; if it is not within their jurisdiction, then it should be transferred without delay to procuratorates or courts.
3. Serving a Sentence Outside the Prison
This is a system that allows criminals who meet prescribed conditions to serve their sentence outside the prison temporarily. This is done in two ways. First, upon announcement of the ruling, if the convict is seriously ill warranting medical treatment on bail, or is pregnant or breast-feeding her baby, the court may decide that the convict can serve his or her sentence outside the prison. Second, while serving a term, an inmate may be permitted to serve the remainder of the sentence outside the prison through meeting the following conditions: seriously ill and in danger of death in the short term; serious chronic illness for which medical treatment is not effective; over 60 years of age, in poor physical conditions and unlikely to endanger society anymore; physically handicapped and unable to work. In such cases, the prison authorities should prepare a written proposal and submit it to prison administration authorities of the provinces (municipalities and autonomous regions).
Once the circumstances permitting a temporary serving of a sentence outside the prison are no longer there, prisoners should be readmitted and continue to serve their sentence. If the decision was made by a court, the prisoner should be handed over by the public security handler to the prison authorities; if the decision was made by the prison authorities, the public security authorities that handle the case should notify the prison authorities in a timely fashion. Those that have already served their sentence outside the prison should complete release formalities at the original admission prison. For those that died while serving their sentence outside the prison, public security authorities should notify the original admission prison of the death.
4. Commutation of Sentence and Parole
Commutation means an abatement of sentence in accordance with legal requirements and procedures. Prisons are responsible for filing applications to courts for prisoners who meet requirements for commutation. The court should review an application and adjudicate within one month of receipt of proposal. For complicated or extraordinary cases, that deadline may be extended for one more month.
5. Release and Placement
Upon completion of their term, prisoners should be released and issued a certificate of release. The prisoner should provide a written evaluation of the prisoner's performance in prison and hand it over along with a copy of the ruling to the public security outlet that handles the registration of permanent residence of the former prisoner.
The released person should apply for registration of permanent residence with the local public security authorities with the certificate of release and they should enjoy equal rights as other citizens.
Prison Administration
Prison administration includes the following:
1. Classification
Prisoners, based on the nature of their crime, type of penalty, length of sentence, performance, age, gender and other characteristics, are classified into different groups and are incarcerated, managed and educated accordingly.
2. Use of Warning, Preventive Devices and Weapons
Warning, including armed warning, is resorted to by prison police to maintain normal order and security at prisons. Prison authorities may also decide to take security precautions such as guarding and control behind the cordon line. In addition, the prison authorities should also mobilize militias, security-maintenance organizations and the general public surrounding the prison to maintain order and security in the surrounding areas. Once inmates attempt to escape, riot, revolt, or outsiders attempt to break into a jail or stage a riot, prison police can join hands with external forces to put down the unrest.
Preventive devices are used for inmates inclined to commit dangerous acts. They are not to be used for inmates who are advanced in age with illness, handicapped inmates and minor inmates under normal circumstances. Except for rare circumstances, they are not to be used on female inmates. Inmates who wear these preventive devices should not participate in labor activities organized by prison authorities.
Use of preventive devices on inmates must be approved by prison authorities. If a contingency warrants it, these devices can be put on inmates before approval is secured, but approval formalities must be secured immediately afterwards. Inmates should not wear handcuffs or shackles longer than seven days normally and not longer than 15 days maximum, except for prisoners awaiting execution.
Armed police and prison police may use weapons in emergency situations in compliance with legal procedures.
3. Communications and Meetings
While serving their sentence, prisoners may communicate with others, but their correspondence must be screened by relevant authorities. However, their letters to superior prison and judicial authorities should not be screened.
While serving their sentence, prisoners may also meet with visiting relatives or custodians. In principle, they should not meet people outside their kinship, unless otherwise approved.
In practice, aside from normal visiting times, prison authorities also allow prisoners to visit their family or handle a family emergency for a period of three to five days, but not to exceed seven days in special circumstances.
4. Living and Hygiene
Adult prisoners normally work eight hours a day; extended work hours as necessitated by production plans should be approved by prison authorities.
Prisoners also have two hours of study time and eight hours of sleep everyday. Prisoners of minor age work half a day and study half a day; their sleep time should be no less than nine hours a day. Prisoners of minor age should not engage in heavy manual labor, labor that is beyond their physical capabilities, or other work that hampers their physical health. In addition, prisoners should have time for cultural or sports activities everyday.
Prisoners should take statutory holidays and weekends off.
Prisoners should be provided with food and beverages comparable to those provided to workers in similar fields at local state-owned enterprises of similar size. Prisoner kitchens should be managed by full-time staff and efforts should be made to improve the diet of prisoners as much as possible.
Prison cells and surrounding facilities should comply with requirements for incarcerating criminals and other statutory requirements such as sanitation, fire control, anti-earthquake and heating standards.
In addition, prisons should also set up clinics or hospitals in accordance with the size of the prison and the number of inmates and be equipped with needed medical devices and drugs.
5. Rewards and Punishment
Prison authorities may reward or punish inmates in compliance with legal procedures on the basis of evaluations of prisoners' performance in transforming themselves through education and labor.
Evaluations cover prisoners' ideological, educational (political, cultural and technical), disciplinary and physical labor performance.
Rewards can be public recognition, material incentive or a record of merit in the individual's personal file; punishments can be warning, a record of demerit in the individual's personal file or solitary confinement. Any reward or punishment should be recorded faithfully in the prisoner's file.
[edit] Arbitration System
Arbitration is a legal arrangement whereby both parties to a civil (commercial) dispute reach an agreement to voluntarily submit the case to a third party to adjudicate in accordance with specified procedures and rules and following the principle of impartiality, and whereby both parties are bound to enforce the ruling.
Arbitration is usually a non-governmental trade activity; it represents a private action. Together with composition, mediation and action, it is a common way to settle civil (commercial) disputes. Arbitration, however, is subject to state supervision. The State intervenes through courts in accordance with legal provisions of the place where the arbitration takes place in the validity of the arbitration award, the making of arbitration procedures, the enforcement of awards and in the case of involuntary enforcement by a party. Arbitration, therefore, is a judicial activity and a part of China's judicial regime.
The Arbitration Law of the People's Republic of China, promulgated on August 31, 1994, unified arbitration practices across the country and harmonizes China's arbitration system with internationally accepted principles, systems and practices.
Basic Principles
1. Voluntarism:
Parties to a dispute should voluntarily reach an agreement to resolve their dispute through arbitration. An arbitration committee shall not consider a case without application from a party to the agreement.
2. Independence:
Arbitration should be independent of any interference from administrative bodies, social organizations or individuals.
- An arbitration agency is not part of the administrative apparatus.
- Arbitration institutions are established geographically, independent from each other; they have no affiliation among themselves.
- Arbitration committees, arbitration associations and arbitration tribunals are also independent from each other, with arbitration tribunals adjudicating cases free from interference by arbitration associations or arbitration committees.
- Courts must exercise the power of supervision over arbitration activities; however, arbitration is not dependent on adjudication and arbitration institutions are not dependent on courts.
3. Legality and Impartiality:
The Arbitration Law provides that arbitration should be based on facts, comply with laws and resolve disputes in an impartial and reasonable manner.
Arbitration Bodies
1. Arbitration Association
China Arbitration Association is a self-disciplinary organization of arbiters. It supervises arbitration committees and their members and the behaviors of arbiters in accordance with their constitution. Arbitration committees are members of the China Arbitration Association. The constitution of the association is made by a national congress. It makes arbitration rules in accordance with the Arbitration Law and the Civil Procedure Law.
2. Arbitration Committees
Arbitration committees are executive bodies established in capital cities of provinces, municipalities and autonomous regions. They can also be set up in other cities if necessary.
Arbitration committees are formed with members from government departments and chambers of commerce and registered with the judicial administration of the province (municipality, autonomous region).
An arbitration committee consists of one chairman, two-to-four vice chairmen, and seven to 11 members. The chairman, vice chairmen and members should be legal and trade experts and individuals with working experience. The number of legal and trade experts should not be less than one third of the membership of an arbitration committee.
Arbiters should meet the following qualifications:
- Eight full years in the arbitration field;
- Eight full years in the legal profession;
- Eight full years as judge;
- Specialized in legal research and teaching and holding a senior professional title;
- Familiar with legal knowledge, specializing in economic and trade activities and holding a senior professional title or with equivalent qualifications.
An arbitration committee has different panels of arbiters for different trades.
3. Arbitration Tribunals
After taking up an arbitration case, an arbitration committee does not directly arbitrate the case; instead, it forms an arbitration tribunal to adjudicate the case.
Organizationally, an arbitration tribunal can be a collegiate panel or a sole arbitrator. An arbitration panel should be composed of three arbiters, one of whom should the chief arbiter who presides over the arbitration.
In case the parties agree to form a tribunal of three arbiters, each party should designate, or ask an arbitration committee to designate, one arbiter, and the third arbiter, who should be jointly selected by the parties or designated by the arbitration committee chairman jointly authorized by the parties, should be the chief arbiter. In case the parties agree to form a sole-arbiter tribunal, the arbiter should be jointly selected by the parties or designated by the arbitration committee chairman jointly authorized by the parties.
Essential Components of Arbitration
1. Arbitration or Adjudication
This practice represents a respect for the parties' right of choice as to the way to settle their dispute. It means:
If the parties have reached an agreement on arbitration, it rules out the jurisdiction of the court over the dispute; the parties can only apply for arbitration to an arbitration body rather than bringing action to the court.
However, courts may have jurisdiction over disputes that the parties have already signed an agreement about under special circumstances. These include:
- The arbitration agreement is invalid or its validity has expired;
- One party brings a suit to the court and the other party answers the lawsuit and mounts a substantial defense that does not challenge the jurisdiction of the court over the dispute. In such cases, the parties are understood to have renounced the original arbitration agreement and the court has judicial power to adjudicate the case.
2. One Instance Being Final
This means that the ruling takes effect immediately upon pronunciation. Even if the parties are not happy with the ruling, they cannot file a suit to the court for the same dispute or apply for arbitration or reconsideration to arbitration organizations. Instead, they should automatically implement the ruling; otherwise the other party has the right to apply to the court for enforcement.
As a remedy to the one-instance-being-final practice, however, parties may apply to the court for a review and verification of the case and annulment of the arbitration ruling if they believe it is indeed wrong and conditions for a legal revocation have been met.
International Economic and Trade Arbitration
The China International Economic and Trade Arbitration Committee handles international economic and trade disputes. It is headquartered in Beijing, with branch offices in Shenzhen and Shanghai. The Beijing Arbitration Commission, headquartered in Beijing, also handles international economic and trade disputes, in addition to domestic commercial matters.
[edit] Lawyer System
This system governs the nature, mission, organization, operational principles of lawyers, as well as how lawyers provide legal services.
Nature, Mission and Status
1. Nature
Article 2 of the Lawyers Law of the People's Republic of China, promulgated on May 15, 1996, defines lawyers as "professionals who have obtain