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China: Revisions to Laws on Judges and Prosecutors Proposed

(Jan. 8, 2018) On December 22, 2017, the People’s Republic of China (PRC) National People’s Congress Standing Committee (NPCSC) began discussions on draft amendments to the country’s laws on judges and prosecutors. Five days later, the legislative body completed a first reading of the two draft revisions. (China Mulls Revisions to Laws on Judges, Prosecutors, XINHUANET (Dec. 22, 2017); Judges Law of the PRC (promulgated on Feb. 28, 1995, amended on June 30, 2001), National People’s Congress (NPC) website; Chinese text, Central People’s Government of the PRC website; Public Procurators Law of the PRC (promulgated on Feb. 28, 1995, amended on June 30, 2001), NPC website (bilingual English and Chinese texts).)

Draft Provisions on Judges

The draft proposal adds provisions to the Judges Law to establish selection committees responsible for examining the professional competence of judges who are candidates for positions in the Supreme People’s Court (SPC) and in provincial-level courts. (China Mulls Revisions to Laws on Judges, Prosecutors, supra.) The draft also raises the professional standards for becoming a judge, requiring prospective judges to have at least five years of legal practice. Currently the Law on Judges provides that those holding a master’s or doctoral degree may be recruited as judges after one year of legal practice. (Id.; Judges Law of the PRC art. 9(6).)

In addition, the draft amendment provides for tighter supervision of judges by requiring that committees be set up in the SPC and in provincial-level courts to prescribe punishments for judges who have made “wrong decisions with serious consequences, as a result of negligence or deliberate breach of laws and regulations.” (China Mulls Revisions to Laws on Judges, Prosecutors, supra.) Another proposed revision would ban judges from working part time in profit-making organizations, but permit them, upon approval, to teach or do research part time in institutions of higher education or research. (Id.) Finally, the draft states that persons whose notary or law practice certificates have been revoked are to be banned for life from serving as judges. (Id.)

Draft Provisions on Prosecutors

The draft revision to the Law on Public Procurators introduces a selection mechanism for prosecutors similar to that for judges noted above—that is, the establishment of committees to select prosecutors for the Supreme People’s Procuratorate (SPP) and provincial-level procuratorates. (Id.) The proposal calls for prosecutors to be selected from among lawyers, legal scholars, and others who practice law. (Id.) This draft, like the one on revisions to the Judges Law, provides for the establishment of punishment committees in the SPP and provincial-level procurators in order to tighten supervision over prosecutors. (Id.)

Related Development

The NPC Standing Committee also conducted a first review of a draft law on the people’s (lay) assessor system (renmin peishenyuan), legislation that “allows for a wider range of candidates to become jurors and explicitly states their duties.” (Draft Law Clarifies Rules on People’s Juries, XINHUANET (Dec. 21, 2017).) The draft is based on a 2004 decision adopted by the NPCSC that launched the lay assessor system on a trial basis, and on experience gained since April 24, 2015, with a pilot implementation of the system in 50 courts in ten regions throughout China. (Id.; Wang Mingyan, A Closer Look at China’s People’s Jury System, CGTN (Mar. 1, 2017) ; Decision of the Standing Committee of the National People’s Congress on Improving the System of People’s Assessors (Decision) (adopted Aug. 28, 2004, in force on May 1, 2005), NPC website; Chinese text of the Decision, NPC website; see also People’s Assessor System Reform Pilot Implementation Measures (promulgated May 20, 2015), China Law Translate website.)

Section 38 of the Organic Law of the People’s Courts provides that “citizens who have the right to vote and stand for election and have reached the age of 23 shall be eligible to be elected as lay assessors; however, persons who have once been deprived of political rights shall be excluded.” In practice, most of the lay assessors are nominated by working units and selected by courts. (Organic Law of the People’s Courts of the PRC (adopted July 1, 1979, as last amended Oct. 31, 2006, NPC website.)

The draft law specifies that the jury system is applicable to “civil, criminal, and administrative cases in the first instance that involve group or public interests, receive widespread public attention, or have major social impact, except cases where only judges are allowed.” (Draft Law Clarifies Rules on People’s Juries, supra.) Some other highlights of the draft law are as follows:

  • citizens with a high school education or above, instead of the current requirement of higher education, can be selected as jurors;
  • the age limit for lay assessor candidates is changed from 23 years and above (in the Decision, art. 4(2) and also in the Organic Law of the Courts, art. 38) to 28 years and above;
  • lay assessor selection is random, from among eligible local residents, but with a certain proportion of jurors chosen on the basis of personal applications and referrals by organizations;
  • participation by lay assessors is not only in the form of three-person, but also seven-person, collegiate benches together with judges;
  • equal rights of lay assessors with judges on the three-person collegiate benches, but on the seven-person benches, the assessors may be involved only in fact-finding, not in the application of legal clauses;
  • the use of seven-person collegiate benches for criminal cases likely to involve a sentence of over ten years of imprisonment for the defendant, public interest litigation cases, and major cases that affect the public interest in such matters as land expropriation, environmental protection, and food safety;
  • inclusion of provisions on the terms of certain types of financial compensation for lay assessors; and
  • the restriction of the term of lay assessors to one term of five years, typically not permitting a second term of work, and imposition of an obligation on the courts to set a limit on the annual number of cases an assessor can hear. (Id.)

In addition, the draft law states that refusal to serve as a lay assessor will result in public notification of the person’s work unit and household registration office and that those who do participate in trial activities will not have their wages deducted by the employer. (Draft Jury Law: Additional 7-Person Collegiate Panel to Hear Major Cases, SINA (Dec. 22, 2017) (in Chinese); see also Wang Mingyan, A Closer Look at China’s People’s Jury System, supra).)