Document Type

Article

Publication Title

New Mexico Law Review

Volume

39

Publication Date

2009

Keywords

China, responsibility systems, judicial disciplinary systems

Abstract

Local Chinese courts commonly use responsibility systems (mubiao guanli zeren zhi, zeren zhuijiu zhi) to evaluate and discipline judges. Judges receive sanctions under these systems for a wide range of behavior, such as illegal or unethical dealings with parties and lawyers, inappropriate courtroom behavior, and neglect of duty.

Many local court Chinese responsibility systems also discipline judges for simple legal error. Judges may face sanctions linked to the number of cases that are reversed on appeal, simply because the interpretation of law made by a higher court differs from that of the original trial judge. Sanctions include monetary fines and negative notations in a judge’s career file. Such practices violate Chinese Supreme People’s Court (SPC) judicial interpretations specifically barring the use of responsibility systems to sanction judges for simple legal error. Local Chinese courts, however, have continued to promulgate such systems.

Court responsibility systems that discipline judges for simple legal error create a perverse set of incentives for Chinese judges. In order to avoid appellate reversal, lower Chinese judges rely on an ill-defined system of advisory requests (qingshi) to solicit the views of higher courts and judges regarding how to decide pending cases. As Chinese judges themselves note, excessive resort to qingshi practices has many negative effects. It undermines appellate review, since the court or judge who reviews the case on appeal can be the same one who responded to the initial qingshi request regarding how to decide the case in the first place. It creates a relatively passive Chinese judiciary reliant on top-down direction. Last, it contributes to an overload of higher-level judicial authorities forced to handle a myriad of requests for guidance from lower-level courts. Unsurprisingly, the SPC has made qingshi reform a key component of both the 2004–2008 and the 2009–2013 plans for court reform.

So what is going on? Why do local Chinese courts continue to use internal disciplinary systems that violate Chinese law and negatively affect daily operations of the judiciary?

Historically, the use of disciplinary sanctions to punish judges for cases of simple legal error reversed on appeal is deeply rooted in imperial Chinese legal practices dating back to the Qin dynasty. Politically, the disciplinary sanctions employed by modern Chinese court responsibility systems and their imperial analogues reflect a comprehensive governance strategy employed by generations of centralized, authoritarian Chinese rulers to address pervasive principal–agent problems in a sprawling bureaucracy. However, these policies are generating conflict with rule-of-law norms established in the post-1978 reform period, and incarnated in the 1998 SPC judicial interpretations.

Existing literature on the post-1978 Chinese legal system has devoted significant attention to formal legal norms promulgated by central institutions such as the SPC and the National People’s Congress (NPC), but ignore the underlying incentive structures that can drive judicial behavior. Local court responsibility systems and the incentives they create for individual Chinese judges are “terra incognita in terms of published systematic studies."

This article presents an overview of Chinese court responsibility systems and their disciplinary treatment of incorrectly decided cases (cuo’an), and analyzes the important practical problems created in the Chinese legal system as a result of official use of responsibility systems to discipline judges for legal error. It also identifies the extent to which the key elements of modern People’s Republic of China (PRC) court responsibility systems are firmly grounded in prior imperial precedent.

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