There is a continuing struggle between the demand of a market economy for judicial efficiency, impartiality, and professional conduct on the one hand, and the resistance of the traditional ideology to judicial reform, on the other. The current discipline campaign, as a temporary movement, will undoubtedly reduce the incidence of corruption scandals and result in the punishment of violators over a short period. The tougher job, nevertheless, is to reform the current system by introducing a supervisory scheme thai will deter and deal with abuses effectively in the long run. This will improve the quality of the entire judiciary and further develop true judicial independence in China. In terms of the big picture, the upgrading of judicial performance will not be achieved in isolation, but to a large degree, depend on the progress of the rule of law in China.published_or_final_versio

Zhang, XC

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TitleA law unto themselves: the Chinese government hasacknowledged that corruption in the judiciary is a seriousproblemAuthor(s) Zhang, XCCitation Hong Kong Lawyer, 1998, v. Mar, p. 28-30Issued Date 1998URL http://hdl.handle.net/10722/45522Rights Creative Commons: Attribution 3.0 Hong Kong LicenseA Law untoThe Chinese Government has acknowledged that corruption in.the judiciary is a serious problem. Zhang Xian Chu reportsApparently, judicial corruption inChina has reached the point where thecountry's top leaders are dealing withit personally. For example, in a speechpublished in the People's Daily on 26December 1997, President Jiang Zemin,openly admitted in the National Con-ference on Political and Legal Affairsheld at the end of last year that thereare conspicuous problems in the po-litical and judicial teams. He said thatfrom time to time the people werecomplaining strongly about the judici-ary allowing the breach of laws andoverseeing relaxed and unfair enforce-ment; taking bribes; and bullying andoppressing people. Mr Jiang saidThese problems have seriously af-fected the image of our judicial teamand damaged the reputation of theCommunist Party and the Govern-ment. All the problems, especially theharmfulness of judicial corruptionmust be recognised.'The Conference also acknowledgedthat judicial corruption affects all stagesof judicial proceedings, including in-vest igat ion, prosecut ion andsentencing. The Conference decidedto conduct a campaign against judicialcorruption in the first half of 1998.According to Mr Ren Jianxin, Presi-dent of the Supreme People's Court,the campaign will be focused on thebreach of laws, enforcement at discre-tion, violations in handling cases andmoriey-power deals.Although complaints by HongKong people against judicial corrup-tion in the mainland have often madeheadlines in local newspapers, somefacts revealed in support of the cam-paign are still very striking. A divisionhead in a Shenzhen People's Courtwas arrested recently for private deal-ing with a defendant before trial. Somejudges in Zhuhai and Shantuo werealso dismissed for corruption (see MingPao, 18 December 1997). A strangecase was recently reported in the LegalDaily (19 December 1997). A ShenzhenDistrict Court re-accepted a case filedby a debtor when the court's originaldecision in favour of the creditor hadbeen affirmed by an appellate courtand become effective in 1996. The Dis-trict Court issued its second judgmentordering the creditor to pay the debtorRmbl million without pursuing anydue procedures and reviewing anynew evidence.In Anhui province, a group ofjudges that included the Vice-Presi-dent of a local court was found to beinvolved in manufacturing a false case.In November 1995, a businessman wasarrested by a judge upon the request ofa friend of the judge's. In order tojustify the unlawful arrest and deten-tion, several judges manufactured acomplete set of files back-dated to May1995, forced the businessman to signall the fabricated documents, and thenaccused him of hindering judicial pro-ceedings. The forged documents wereapproved by all the members of thecourt's trial committee after they wereentertained by the parties to the fraud.Most of the Rmb240,000 obtained fromthe businessman was divided amongthe judges before RmblOO,000 wasgiven to the judge's friend. The victimwas illegally detained for more thansix months. Finally, only one judgewas sentenced to one year's imprison-ment, suspended for one year. Theothers were merely given internalCommunist Party warnings, demo-tions or public criticism (see Legal Daily,3 January 1998).In Jiangsu province, 153 cases havebeen found to have been wrongly de-cided by an Intermediate Court in thepast four years, mainly as a result ofjudges favouring their friends or re-ceiving bribes. In the first eleven1months of 1997, forty-two judicial of-ficers were investigated in Hainanprovince and dealt with for variousabuses of process including the sus-pension of death penalties through themaking of false evidence.Despite the existence of these out-rageous cases, it is not true that thequality and performance of the entireChinese judiciary is deteriorating. Onthe contrary - a fair observation clearlyreveals that progress has been made inrecent years.First, extensive legislation at boththe national and local levels has at-tempted to put corrupt practicesbehind the profession. Since 1993, theInterim Regulations on GovernmentOfficers, the Law of People's Police, theLaw of Prosecutors, and the Law of judgeshave been promulgated and supple-mented with many local implementingrules. As such, conduct standards arebeing established for the judiciary andenforcement bodies.Second, great efforts have been di-rected to improving the quality ofjudicial personnel and their work. Ex-aminations have been conducted tocheck their professional knowledgeand skills; universities and trainingcentres have been established to pro-vide them with a higher level ofeducation; and foreign experience hasbeen studied through expanded ex-changes with foreign judiciaries.Third, some practical problemshave been seriously dealt with in or-der to ensure the healthy operationof the judicial system. Initial achieve-ments have been made in correctinglocal protectionism, interference inthe execution of judgments, unlaw-ful enforcement and proceduralviolations.Fourth, the judiciary has been play-ing a more active role in safeguardingthe stability of social order and in sup-porting the establishment of a marketeconomy in China. The fact that thetotal number of cases handled by thePeople's Courts at all levels jumpedfrom fewer than 1.6 million in 1986 tomore than 5.23 million in 1997, dem-onstrates the role of the judiciary inChina's increasingly litigious society.Page 28 Hong Kong Lawyer March 1998Fifth, as the new CriminalLaw, arid Criminal ProcedureLaw, and finalised Civil Pro-cedure Law are implemented,the judicial process is becom-ing more transparent. TheSupreme People's Court, forexample, has continued topublish its interpretations,judgments and instructionsfairly promptly.In light of the above, howcan the serious corruption beexplained? The writer be-lieves that the phenomenonreveals several defects in thecurrent system. The lack ofeffective supervision anddiscipline is perhaps themost important cause ofcorruption. Despite the con-stitutional provision thatjudges be selected by the rel-evant People's Congress orits standing committee (as perarts 62, 67 and 101 of the Constitutionand art 11 of the Law of Judges), inpractice the party leaders have exer-cised the power of j u d i c i a lappointment and control. Conse-quently, judges may not be trulyresponsible to the People's Congressesand in turn, the Congresses may not beable to effectively supervise and con-trol the behaviour of the judges.In his speech at the National Con-ference mentioned above, Mr RenJianxin repeated the principle that ju-dicial reform should adhere to thevision of the Party's leadership andthe socialist system and not be relianton the scheme of checks and balancesadopted in Western countries.The quality of the judiciary has con-cerned many for a long time. It is nosecret that unlike lawyers, most ofwhom hold law degrees or qualifica-tions of equivalent standing, many;judges are retirees from the army withno legal, or even general, higher edu-cation. More importantly, politicalloyalty to the Communist Party andthe Socialist regime is a requirementfor appointment to the bench. As MrRen Jianxin puts it, 'A judge not onlyneeds to be in good command of lawsZhang Xian Chu: 'Many judges are retirees from the army with no Segal, or even generahigher education.'and his professional work, but musthave a firm political stand and be hon-est and upright.'In order to become a practising law-yer in China, one must hold a highereducation degree, pass the nationalqualification examination and, com-plete practical training for one year,However, under the Law of Judges, acollege graduate from a non-law ma-jor may become a judge with relevantworking experience of two years.Moreover, the Law does riot provideany national qualification examinationfor judges and creates an exception toenable those who could not meet thestandards above to become judges af-ter certain training.Unlawful intervention in judicialproceedings is another problem thatprevents courts and judges from faith-fully and impartially performing theirduties. There is bound to be continu-ing conflict between judges' adherenceto the will of the Party's leadershipand the denial of the principle of checkand balances on the one hand, andtheir promotion of judicial independ-ence on the other.The unprecedented establishment ofa market economy in China has openedthe eyes of more and more peo-ple to the possibility ofimproved living standards. Ashuman beings, even judicialpersonnel may not be able toresist the temptation to bettertheir lot. In a sense, the judicialcircle is at a stage of develop-ment that has been experiencedin many other jurisdictions.Thus, although the phenom-enon of judicial corruptionbears certain unique Chinesecharacteristics, it may still beconsidered an inevitableand common symptom oftransition.Last, but not the least, tech-nical defects in the currentlegal system should also beblamed for the judicial abuses.For example, loopholes in leg-islation, disparities among theregulations issued by differ-ent state authorities, and a lackof definitions of many important legalconcepts have made abuses of processpossible.There is a continuing struggle be-tween the demand of a marketeconomy for judicial efficiency, im-partiality, and professional conduct onthe one hand, and the resistance of thetraditional ideology to judicial reform,on the other. The current disciplinecampaign, as a temporary movement,will undoubtedly reduce the incidenceof corruption scandals and result inthe punishment of violators over ashort period. The tougher job, never-theless, is to reform the current systemby introducing a supervisory schemethai will deter and deal with abuseseffectively in the long run. This willimprove the quality of the entire judi-ciary and further develop true judicialindependence in China. In terms of thebig picture, the upgrading of judicialperformance will not be achieved inisolation, but to a large degree, de-pend on the progress of the rule of lawin China.Zhang Xian Chu is a Research Fellow atthe University of Hong Kong's Departmentof Law,Hong Kong Lawyer March 1998 Page 29tt > f&1997^12^180*^*S«Sf J H «» (1997^-12^ 19 H ) 16femflfc*Page 30JtffBitfclitWttt-SJftBAon^ jpfong Lawyer March 1998

A law unto themselves: the Chinese government has acknowledged that corruption in the judiciary is a serious problem

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A law unto themselves: the Chinese government has acknowledged that corruption in the judiciary is a serious problem

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