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Advancing the rule of law can help put an end to miscarriages of justice
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UPDATED: December 22, 2014 NO. 52 DECEMBER 25, 2014
Independence of Law
The establishment of circuit courts will help promote judicial justice
By Yin Pumin

China has a centrally controlled judicial system, but in practice it is highly divided and flexible according to local practice due to the country's size and imbalanced development.

In June 2014, the Leading Group for Overall Reform, directly led by President Xi Jinping, approved guidelines that concentrated the supervision of local courts' personnel and property at the provincial level of government, an effort to cut intervention.

Some legal experts have expressed concerns that such an arrangement will strengthen provincial governments' control of the judiciary at the expense of the SPC, while others say the reforms would strengthen the clout of the judiciary at the national level while maintaining the centrally controlled judicial system.

"With more courts directly under its control, the SPC will exert its judicial power over local government organs, as the new arrangement will strengthen a 'vertical' management system," Fan said, referring to the reform proposal under which courts and prosecutors would no longer report to local governments but to higher levels.

Zhang with Peking University added that the reform plans were intended to limit provincial and municipal authorities' ability to interfere in judicial proceedings by placing cross-regional judicial bodies and the circuit courts directly under the SPC.

The plans also help fight local protectionism in commerce. Under the plans, courts would hold hearings on a roster of different locations for specific periods. Such arrangements would provide alternative channels for the public to have their cases heard, legal experts said.

"In certain circumstances, such as a case involving parties from more than two regions or a case involving large sums of money, the parties can appeal to either a regional court or the circuit court," Fan said. "It also creates competition between the two judicial systems, which will better promote justice," he added.

However, Bi said that the new plans are only the first step. "To make it a formal procedure would involve a number of law amendments, including to the Constitution," he said.

Pilot program

In July 2014, Shanghai initiated a program to make judges more accountable and curb government intervention in trials by creating a clear-cut division between judicial staff and administrative personnel.

Pioneering China's judicial reform, the Shanghai pilot covered measures to improve management and job security of judicial staff, enhance accountability of judges and unify the personnel and finance management of local courts.

In an effort to improve professionalism, a clear division will be set between judges and procurators, other judicial staff, and the administrative personnel, who will be placed under separate management, according to the reform plan.

Judges and procurators may be selected from a pool of lawyers, legal scholars and other legal professionals.

A responsibility system will strengthen the role of trial judges and make their work more independent, changing the practice of their rulings, which will have to go through excessive signing and approvals by the court's chief justices.

The reform also targets the decision-making power of the judicial council, limiting their use in complicated cases on which the collegial panel showed a major split.

"The responsibility system aims to tackle the administrative intervention in courts and avoid the practice of 'trying but not judging,'" said Zou Rong, a professor at the Shanghai-based East China University of Political Science and Law.

Greater judicial power will also come with greater responsibility, as trial judges and procurators will assume a lifelong accountability to their cases, which means they will be called to account for previous miscarriage of justice.

The plan will also require the judges and procurators at district or county-level courts to be nominated by provincial-level judicial authority. Funds of local courts will come from the provincial, rather than the local finance.

Tang Xiaotian, Vice General Secretary of Shanghai Law Society, said the financial independence will guard the courts from the influence of the local government.

Email us at: yinpumin@bjreview.com

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