(Pix © Larry Catá Backer 2016)
There are differences in the way one can go about making critiques of the Chinese political, constitutional. legal and economic order, Each of these different paths to critique might produce substantially distinct insights. In the West, for example, it is common to apply what I call the outside-in approach. That starts from the set of premises extracted from global consensus or the reading of democratic traditions among influential states, and then projects those into China, comparing how the Chinese approach stacks up against these outside models. A less common approach, but one sometimes used by comparative scholars is what I call the inside-out approach. This starts by a rigorous examination of the system to be examined, both the theory and practice of governance, and then projects those out against a set of foreign markers. The outside-in approach tends to reveal more about the foreign system projected inward and the extent of global harmonization, along with the character of that harmonization. The inside-out tends to provide greater insight into the working of the system examined and the extent to which the gaps between theory and implementation reveal weakness, including coherence in form or function that might be advanced through a study of foreign systems.
It is in this light that Flora Sapio, Jean Mittelstaedt, Shaoming Zhou, Sun Yuhua, and I considered these issues.
Part I: Larry Catá Backer
Part II: Flora Sapio
Part III: Jean Mittelstaedt
Part IV: Shaoming Zhou
Part V: 中外学者对中国法治改革的关注与讨论.
Part VI Sun Yuhua
Part VII White Jade
In this post Dr. Sun Yuhua provides views on Chinese Judicial reform: "Commentary on Chinese Judicial Reform I: The Quota System". It follows.
COMMENTARY ON THE CHINESE JUDICIAL REFORMⅠ:
THE QUOTA SYSTEM
Sun Yuhua
The Purpose of the Quota System is to reserve the limited number of judgeships for elite judges and increase their salaries. The reformers believe that the Quota System will ensure that limited financial resources will be used to hire highly qualified judges. The retained judges will not worry about earning a living, but will gain honor from their profession and have less motive to engage in corrupt behavior. However, the practical effect of this reform is to push young judicial elites out of the judge troop.
We can find the truth of the reform from a conversation between the chief of the Political and Legal Committee , Meng Janzhu, and the famous jurist He Qinghua. In the meeting between Meng and several famous jurists, He, who is the former President of East China University of Political Science and Law (ECUPL), commented that after the reform, the percentage of ECUPL graduates who went into the courts and procuratorates was reduced to less than 3％, which was much lower than before the reform. [1]
If the reform pushes qualified young judges out of the court and leaves the less-qualified "old comrades" who hear fewer cases, how can it achieve the goal of increasing the prestige of the courts? Of course it cannot, because the only result of such a reform is that the old comrades’ salaries are improved and the new comrades will have no future.
1. The leadership and old comrades have priority in the Quota System
The leaders of the courts are the ex officio judges. The old comrades are incorporated into the judge Quota by the outdated lower standard for judges. But the new comrades should stay in the judicial assistant positions out of the Quota for at least 5 years.
1) How can the Quota System reform give priority to the old comrades?
In the Quota System reform, the leaders of the local courts have the real power to enforce the reform. They first guarantee themselves a place in the quota, and then they give preferential treatment to the old comrades, many of whom cannot pass the National Judicial Qualification Examination and do not have proper qualifications. Some of them did not even graduate from the law school and have never judged a single case. In Shanghai, the order of selecting judges is: (1) the leadership, (2) the old comrades who joined the court before 2013, and (3) the young people who joined the court after 2013. [2]If a young person takes a job in the court after 2013, no matter how high his qualification is, he will be a judge assistant and remain out of the Quota for 5 years. In this period, he cannot judge any case independently and his salary is much lower than a Quota member’s.
According to “The pilot judicial system reform program of Shanghai High People's Court”, “Judges include the president, the deputy presidents, the judicial committee members, the chief judges and their associates in the divisions, and other judges.”
“1. The Quota System (1) the number of judges is limited to 33%, the number of judicial assistants (审判辅助人员)is limited to 52%, and the number of administrative staff is limited to 15%...3. In the transition period, we will establish the Quota System step by step. All the members who join into the court before December 31, 2013 get their positions and ranks according to the old rule. The others should follow the new policy. ”[3]
2) What is the new policy for the new comrades?
The Quota System requires young people entering the court after 2013 to spend at least 5 years in the positions of judge assistants. [4]Nowadays in Shanghai, if someone wants to become a judge, he needs to study for three years to get a master’s degree in law. When he joins into the court, he is not young. After 5 years in the assistant position, he cannot get enough promotion opportunities. By contrast, if someone works in a normal administrative position, he only needs a bachelor’s degree. In 5 years he can get two promotion opportunities. Therefore, after the Quota system reform, the judge assistants are worried about their future. Some of them transfer to Administrative positions and some move to law firms after accumulating a sufficient social network. Because the judge team is unstable, some local courts do not permit the young judges to resign within minimum years in employment contracts Another local court’s regulations state that without the unanimity of members of the adjudicatory committee, judges can not resign.
According to “The pilot judicial system reform program of Shanghai High People's Court:”
The judges of basic courts should be selected from the excellent judge assistants. The judge assistants should at least work for 5 years, and then they will get opportunities to be selected to the judges of the basic courts. The judges of high courts and municipal courts should generally be selected from the excellent judges in the basic courts.
2. Can the Leaders and old comrades in the quota of judges improve the quality of trials?
There is a strange but real phenomenon in Chinese courts that many leaders of courts are more like bureaucrats rather than judges . For example,a former justice of the Supreme People’s Court, had no professional education in law and never made a judgment, but spent all day and night preaching that “courts should serve for politics,” and hosted all kinds of meetings and delivered “important speeches” in all levels of courts in China. This judge was one of the most typical examples of the leaders of courts. In fact, in the court system of China, it is very common that the court leaders don't judge cases, and the old judges cannot pass the Judicial Qualification Examination, which is even more serious in the courts of underdeveloped areas.
3. The purpose of Quota System is to control the number of judges, but are there too many judges or too few?
In Shanghai, before the reform, each judge(including the assistant judges) handled an average of more than 130 cases each year, which was more than 2.5 times the national standard.[5] .If there had not been a lot of young law school graduates to join the team, the courts could not have dealt with so many cases. The reform, however, will push many young people out of the quota, which will further raise the pressure on judges.
NOTES:
[1] 孟建柱与律师专家“热聊”司改 四大金句成风向标，http://xz.people.com.cn/n2/2016/0111/c138901-27513508-2.html
[2] “上海法院司法改革方案”，http://bbs.yjbys.com/600188.htm.l
[3] “上海法院司法改革方案”，http://bbs.yjbys.com/600188.htm.l
[4] “上海法院司法改革方案”，http://bbs.yjbys.com/600188.htm.l
[5] 2013年上海法官年人均办案数为全国2.25倍，http://sh.eastday.com/m/2014shlh/u1a7900716.html
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