Larry Catá Backer's comments on current issues in transnational law and policy. These essays focus on the constitution of regulatory communities (political, economic, and religious) as they manage their constituencies and the conflicts between them. The context is globalization. This is an academic field-free zone: expect to travel "without documents" through the sometimes strongly guarded boundaries of international relations, constitutional, international, comparative, and corporate law.
Thursday, July 14, 2022
Ying Sun and Hualing Fu, "The Quota Reform in Chinese Courts and Its Implications" (European Chinese Law Research Hub)
The folks over at the European Chinese Law Research Hub
(with thanks to Marianne von Blomberg, Editor ECLR Hub, Research
Associate, Chair for Chinese Legal Culture, University of Cologne) have
posted a marvelous discussion of a new paper by Ying Sun (associate professor at the School of Law, Sun Yat-sen University, China) and Hualing Fu (dean and the Warren Chan professor in human rights and responsibilities at the Faculty of Law of the University of Hong Kong). Marianne von Bloomberg explains:
The quota reform 员额制改革 has transformed the ranks of personnel in Chinese courts nationwide. The reform plan aimed to professionalize the judiciary by better separating adjudication work from political and administrative work in the courts. How did the plans unfold in courts, and how do judges react? Ying Sun (Sun Yat-sen Uni) and Fu Hualing (HKU Law, and also keynote speaker at our forthcoming Annual Conference in Copenhagen!) investigated the implications of the quota reform from the ground up.
One
of the most interesting aspects of the paper touches on the strategic
utility of administrative discipline in the effort to make courts more efficient. Yet intimately tied with this effort is another--the object to make judicial decision making fairer and to coordinate decision making to enhance predictability and avoid substantial personal deviation in outcome. To that end, even as Chinese authorities have sought to better professionalize the judiciary through projects of division of labor and functional differentiation, the authorities have also developed robust processes for disciplining judicial decision making. Though subject to the usual demonification by Western press organs looking to manage mass campaigns (China uses AI to 'improve' courts - with computers 'correcting
perceived human errors in a verdict' and JUDGES forced to submit a
written explanation to the MACHINE if they disagree; ), the two efforts promise a measure of coordination and discipline in the operation of the Chinese judicial system. That produces an irony. Sun and Fu argue: "The centre-piece of judge quota reform was to free frontline judges
from bureaucratic control in judicial decision that they used to be
subjected to, and to abolish the vetting system that required judges to
submit their draft opinions to leaders for approval, all to facilitate
and promote individualized judging." That is true. Nonetheless, the move toward AI assisted judging, and its use for assessing judicial performance returns the judge to the constraints of collective decision making, leaving open the possibility of deviation, but now requiring justification ("Judges must now consult the AI on every case by law, Beijing's Supreme Court said in an update on the system published this week, and if they go against its recommendation they must submit a written explanation for why." (here)). A recent article in the South China Morning Post noted:
Artificial intelligence has been used in all corners of China’s legal system and has a role in every verdict, according to the Supreme People’s Court in Beijing. “The smart court SoS (system of systems) now connects to the desk of every working judge across the country,” said Xu Jianfeng, director of the supreme court’s information centre in a report published on Tuesday in Strategic Study of CAE, an official journal run by the Chinese Academy of Engineering. The system, powered by machine learning technology, automatically screens court cases for references, recommends laws and regulations, drafts legal documents and alters perceived human errors, if any, in a verdict. (China’s court AI reaches every corner of justice system, advising judges and streamlining punishment
)
Professionalization of the judiciary, then, is not an ends in itself--it is the means through which better data may be harvested by judicial AI for better and more consistent decision making across the judicial system as a whole. It is the AI system itself rather than the judiciary that ought to be understood as the core objective of the efforts so well considered by Sun and Fu.
I am cross posting the essay below. The original ECLRH post may be accessed HERE.
And as a plug for the marvelous work at the European Chinese Law
Research Hub: if you have observations, analyses or pieces of research
that are not publishable as a paper but should get out there, or want to
spread event information, calls for papers or job openings, or have a
paper forthcoming- do not hesitate to contact Marianne von Bloomberg.
Haikou Intermediate People’s Court. Photo by Anna Frodesiak
From the year 2014 a new round of judicial reform was launched in
Chinese courts all over the country. For Chinese judges, the most
significant change is the “quota reform”(员额制改革). The quota reform aims
to professionalize the ranks of adjudicators: by edging out a given
percentage of judges, only the better qualified judges would be
re-appointed. The background of the quota reform is the plan to reduce
the level and the intensity of both political and bureaucratic control
over judges in adjudication and to decentralize judicial power to the
rank and file judges only, restoring individualized judging while
enhancing judicial accountability.
A keen interest in the details of the quota reform drew the author
(Ying Sun) to conducting interviews and observations in Guangdong
province, Henan province and other places. She gained first-hand
insights into how the quota reform is implemented and how the judges saw
it.
Before the reform, the number of judges in Chinese courts were calculated in three groups:
the overall size of the judiciary, including judges, but also political and managerial staff and supporting personnel;
the
number of judges, i.e. those with proper judicial qualification and,
importantly, the percentage of judges in the overall established
judicial size; and
the number of so-called “frontline judges” (yixian faguan一线法官),
i.e. judges who actually adjudicate cases as judges and their
percentage among judges excluding judges holding management positions
who are assigned to non-judicial posts.
In 2002, nationwide, there were approximately 210,000 judges and 150,000 of them were frontliners. [1]
The number and percentage of the frontline judges had remained stable
(211,990 judges in 2014) prior to the reforms. A remaining three types
of judges did little or no judging. The first group involved judges in
management positions, including presidents, vice presidents and chief
judges in professional chambers and their deputies; the second, judges
who had transferred from professional chambers to political and
administrative departments within the courts; the third, judges whose
sole responsibility was to execute judgments. The long term objective of
quota reform was to limit judgeship to judges whose principal job was
to judge.
The reform caused a significant shake-up in the overall profile of
the judiciary, with a large number of former judges ceasing to be
judges. The court at hand however was able to absorb and neutralize the
reform impact throughout its implementation.
First, the quota reform’s ambition to separate judges from
administrators forced judges holding political and administrative
offices to make a choice. And their choices were clear: the majority of
them decided to stay in the administrative departments, while
predictably few were willing to give up their status and ranking,
especially those holding key positions.
Second, the quota reform unintentionally gave rise to a renewed
exodus of middle career judges who left for law firms or other private
sector employment. The trend of able judges leaving the judiciary for
other careers was well-known, and the quota reform was intended to reign
in the problem. However, by reducing the size of the judiciary and
creating uncertainty among judges, the reform triggered another
miniature exodus – judges, fearful of being left out and worried about
the future prospect in an uncertain environment, seized the opportunity
to leave the judiciary.
Third, the quota reform posed a significant challenge to courts as
they had to contend with a sizeable group of judges who participated in
the quota selection but failed and as a result were demoted to the rank
of judicial assistants. They did so by offering a transition period, or
grace period, during which some of the disqualified judges were allowed,
de facto, to adjudicate as judges.
The centre-piece of judge quota reform was to free frontline judges
from bureaucratic control in judicial decision that they used to be
subjected to, and to abolish the vetting system that required judges to
submit their draft opinions to leaders for approval, all to facilitate
and promote individualised judging. And indeed, gradually, judging
started to shift away from a collective endeavour with decisions subject
to multiple layers of vetting and approval. The quota system was
successful in placing individualised judging and accountability at the
centre of adjudication in the vast majority of cases and in shifting the
focus of judicial decisions from a fixation on the social impact of a
decision to emphasis on its internal legal quality within an
increasingly self-referencing judicial universe. With the new focus on
the court-centric and rules-based dimension of judging, as the reforms
require, judges do increasingly look for legal guidance to craft a
decision. On the other hand, while the rise of individualised judging
has created space for judges to deliberate individual cases, it does not
reduce judicial accountability. Rather, it created an opportunity for
reconfiguration of the control system. Riding on the tide of
standardisation, a higher court is filling the gap that the reforms
created at the local level and exercising real leadership.
Notwithstanding the fanfare, self-contradictions and tensions, the
reforms have been muddled through to create a more identifiable,
distinct judiciary. It is now well established that judges are those who
judge, excluding political and administrative officers from holding the
title of judgeship. The quota reform reflects the contradictions of
judicial reform in a party-state. As the quota reform story testifies,
the judiciary within a political system can explore spaces for its
professionalization project – judges can judge on their own most of the
time and in most of the cases. In that process, the Party could be both a
helping and a restraining hand, and the bureaucratic system in which
the court is an integral part creates both positive and negative
incentives for the reform.
Ying Sun and Hualing Fu’s paper was published with The China Quarterly, find it here.
Dr. Ying Sun is an associate professor at the School of Law, Sun
Yat-sen University, China. She teaches constitutional law and
comparative legislatures. Her research interests include election
process, the Chinese people’s congress system, judicial reform and
law-making politics in China. Hualing Fu is the dean and the Warren
Chan professor in human rights and responsibilities at the Faculty of
Law of the University of Hong Kong. He specializes in public law and
criminal law, with a focus on China, and cross-border legal relations in
the Greater China region. His other research areas include the
constitutional status of Hong Kong, in particular central–local
relationships in the Hong Kong context and national security
legislation.
Haikou Intermediate People’s Court. Photo by Anna Frodesiak
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