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Will the Establishment of Circuit Tribunals Break Up the Circular Reforms in the Chinese Judiciary?

Published online by Cambridge University Press:  13 March 2019

Zhiqiong June WANG  and
Jianfu CHEN
Zhiqiong June WANG
Affiliation:
Western Sydney University, AustraliaZhiqiong.Wang@westernsydney.edu.au
Jianfu CHEN
Affiliation:
La Trobe University, AustraliaJ.Chen@latrobe.edu.au
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Abstract

This article examines the objectives for the establishment of circuit tribunals of the Supreme People’s Court of China and the politico-legal functions of such tribunals in the context of judicial reforms that were first launched in 1999. It starts with an analysis of the fundamental problems and difficulties that impeded judicial reforms in the last two decades. It then provides a careful analysis of the establishment of circuit tribunals and examines the political barriers to fundamental reforms towards genuine, though limited, independent adjudication in China. Although we do not believe that the circuit tribunals will be a breakaway force in the Chinese polity, the present reforms do have the potential to break up certain circular reforms and break through some fundamental barriers to deep reform. Further, while judicial independence, in the sense of the judiciary being an independent force in the political and constitutional scheme of checks and balances, is not attainable in the political environment in China today or indeed in the near future, it is hoped that the present reforms might grant the Chinese judiciary some limited, but much needed, autonomy within the Chinese political system.

Information

Type
Article
Information
Asian Journal of Comparative Law , Volume 14 , Issue 1 , July 2019 , pp. 91 - 112
Copyright
© National University of Singapore, 2019 

The Supreme People’s Court of China issued the Provisions on Certain Issues Concerning the Adjudication of Cases by the Circuit Tribunals (SPC Provisions) on 28 January 2015.Footnote 1 On the same day, the First Circuit Tribunal (xunhui fating) of the Supreme People’s Court (SPC) was officially established in Shenzhen, which was soon followed by the establishment of the Second Circuit Tribunal on 31 January 2015 in Shenyang, an old industrial city in Northeastern China. Within a short period of twelve months, four more of these tribunals were established in China. Together, these six tribunals now directly accept certain types of cases locally from twenty-six provinces, leaving only Beijing, Tianjin, Hebei, Shandong, and Inner Mongolia as the final five provincial units whose cases will continue to be handled by the SPC headquarters in Beijing.Footnote 2

Amid the blistering introduction of numerous judicial reform measures and local pilot reform programs since 2013/2014,Footnote 3 it is not surprising that the establishment of the SPC’s circuit tribunals has attracted little attention among western scholars. The initiative might have been seen as simply a continuation of the functional reforms that the Chinese courts initially launched in the late 1990s that have so far yielded only limited results.

The functions and procedural matters pertaining to the circuit tribunals are defined by the SPC Provisions; however, the SPC Provisions are silent on the rationale of such a reform. The President of the SPC, Grand Justice Zhou Qiang, stresses that the circuit tribunals are the ‘experimental fields’ for and ‘pioneers’ of judicial reforms and ‘models’ for future judicial reforms nationwide.Footnote 4 Justice Zhou is also reported as having said that ‘the circuit tribunals today are the future of the SPC or even the future of all courts in China.’Footnote 5 The then-Head of the Central Politico-Legal Committee of the Communist Party of China (CPC) and a member of the Politburo, Mr Meng Jianzhu, echoed a similar sentiment at the official ceremony dispatching judges to the circuit tribunals in December 2016.Footnote 6 He further added that the establishment of circuit tribunals would surely cause a long lasting and deep impact on constructing a highly efficient, fair, and respectable socialist judicial system as well as on perfecting the judicial system and its operation mechanisms.Footnote 7 The Head of the Political Department of the SPC, Mr Xu Jiaxing describes the circuit tribunals as reform platforms on which trial measures will be implemented to break through systemic and institutional barriers to deep judicial reforms.Footnote 8 Some in the official Chinese media simply describe the establishment of the circuit tribunals as a landmark in judicial reforms.Footnote 9 These comments seem to suggest that the establishment of the circuit tribunals might be intended for an agenda beyond its ostensibly stated objectives.

Indeed, in light of the swiftness in the establishment of, and significant resources that have been allocated to, the circuit tribunals, it is reasonable to speculate that the stakes in such an establishment is higher than it has been stated officially. Like the local pilot judicial reform programs that are being implemented, to different extents, nationwide,Footnote 10 the establishment of the circuit tribunals could well be used as means to test alternatives to challenge some long-established boundaries in institutional establishment and, if successful, to establish the judiciary as a semi-autonomous structure in the Chinese political system.

This article examines the objectives for the establishment of the circuit tribunals of the SPC and the politico-legal functions of such tribunals in the context of judicial reforms that were initially launched in 1999. To do so, it is necessary first to establish the politico-legal context of judicial reforms in China and to briefly evaluate the measures that were implemented prior to the present round of reform. Thus, this article starts, in Part I, with an analysis of the fundamental problems and difficulties that impeded judicial reforms in the last two decades or so. Part II then provides a careful analysis of the establishment of circuit tribunals and examines the political barriers to fundamental reforms towards genuine, albeit limited, independent adjudication in China. Although we do not believe that the circuit tribunals will become a breakaway force in the Chinese polity, the present reform does have the potential to break up certain circular reforms and break through some fundamental barriers to deep reform. Further, while judicial independence, in the sense of the judiciary being an independent force in the political and constitutional scheme of checks and balances, is not attainable in the political environment in China today, or indeed in the near future, it is hoped that the present reforms might grant the Chinese judiciary some limited, but much needed, autonomy in the Chinese political system.

1. THE POLITICO-LEGAL SYSTEM AND CIRCULAR JUDICIAL REFORMS IN CHINA

A. The Unholy Trinity: Party, State, and the Judiciary

The Constitution of the People’s Republic of China (Constitution) creates a structure under which the judiciaryFootnote 11 and the executive governments are created by and report to the people’s congresses at the corresponding level. A literal reading of the Constitution would suggest that the government and the judiciary are at the same level of hierarchy. In reality, however, this is not the case. The power structure is governed by the Nomenklatura system that was imported from the former Soviet Union. The unique feature of this system is that, as practically a single party state, it integrates the CPC and the state into one system and the CPC operates beyond and behind the Constitution. Thus, at each level – state, province, prefecture, and county – in addition to the establishment of legislative, executive and judicial structures, there is the CPC structure, although the latter is not stipulated in the Constitution. The party structure is both a parallel structure to, and an integral part of, the three state powers; through such integration, the party assumes leadership over legislative, executive, and judiciary at each level of government.Footnote 12

The integration of party and state and the hierarchical nature of Nomeklatura have two major practical consequences. First, the fundamental principle in institutional establishment in China is that there shall be no party vacuum in the establishment of any state structure, or in other words, no state structure shall be established unless there is a party structure in or at the relevant region or level.Footnote 13 When it comes to the judiciary, this means that a judicial organ can only be established if and only if a party, legislative, and government structure is already in place.Footnote 14 Second, China has a five-level hierarchical power structure (state, province, prefecture, county, and township), and under the Chinese power structure, the Chinese judiciary is a half level below the government in the corresponding structure.Footnote 15

In practice, the status of judiciary in the party power structure – which holds the real power in China – is even lower. In the Chinese party-state power structure, the prestige of the head of a state structure (legislative, executive, or judicial) and the structure itself depends entirely on the membership of the heads in the party power structure. The party power structure scales down from the Standing Committee of the Politburo, followed by the Politburo (members and alternative members), and the Central Committee.Footnote 16 In the entire history of the People’s Republic of China (PRC), the President of the SPC has only managed to be a member of the Central Committee of the CPC, but he has never been a member of the Politburo.Footnote 17

Thus, the judiciary simply has a lower status in a highly hierarchy-conscious polity, and as will be discussed further, the judiciary is also dependent on local government for funding and resources,Footnote 18 its personnel structure, as well as appointments and promotions, all of which are controlled by the party.

The seemingly high status and prestige granted to the judiciary by the Constitution is diminished by the rigid Nomenklatura system; the latter simply subjects the judiciary to the parallel control of two powers – the party and the government at the corresponding level – thereby making the judiciary a ‘bird in a cage’ without independence and, as will be discussed below, without a clear identity.

B. Bird in a Cage and Circular Judicial Reforms

The establishment of circuit tribunals of the SPC is part of new efforts for judicial reform under the Xi-Li administration; as such, the initiative should also be understood in the context of judicial reforms that have been carried out in the Chinese courts in post-Mao China.Footnote 19

Initially, judicial reform measures in post-Mao China were largely ad hoc, aimed at improving the quality of judicial work. After much media publicity about the need for systematic judicial reform,Footnote 20 1999 saw the introduction of the first of such reforms. In October 1999, the SPC formally unveiled its comprehensive and ambitious five-year (1999-2003) court reform plan.Footnote 21 Thereafter, the court system has been subject to periodic five-year reform plans, with the latest being the fourth five-year plan (2014-2018) announced in July 2014 but the details of which were only issued in February 2015.Footnote 22 The five-year reform plans contain detailed and specific measures. With limited exceptions in the fourth (and the latest) five-year plan, these measures mostly deal with internal institutional reform (such as the internal division and structure of the court system), court personnel training and management, trial processes including rules of evidence, and the establishment of a quasi-precedent (guiding cases) system. The objectives of these reforms are to establish a more efficient, effective, professional, clean, and transparent judicial system in China.

Although there has been no independent assessment of the extent of the implementation and effect of these reforms so far,Footnote 23 it is safe to say that the practical measures are capable of improving the judiciary as a whole, and many of them have been swiftly implemented.Footnote 24 Among these measures, some are to significantly change judicial practice in China,Footnote 25 while others tend to repeat earlier proposals, indicating failures in early rounds of reform. Together with continuing reforms made to various procedural laws, and the introduction and implementation of a judicial examination system, the Chinese judiciary is becoming increasingly professional. Fundamentally, however, judicial reform efforts have been largely technical in their nature and internal to the judiciary; they are not aimed at establishing judicial independence. Indeed, Jiang Wei, the Head of the CPC’s Central Committee Leading Group on Judicial Reform, stressed that ‘independent exercise of adjudication and prosecution powers’ is not the same as ‘judicial independence’ and that the two notions must not be confused.Footnote 26 In fact, judicial reforms, like any other reforms in China, have always been under the strict control of the CPC and have only been allowed with the approval of the CPC.Footnote 27

No matter how admirable these efforts aimed at specific internal problems are, they are only capable of tackling certain symptoms of the problems, not their fundamental causes which are often external to the judiciary. Fundamentally, local judicial authorities are created by local people’s congresses and, to various degrees, controlled by local party and administrative authorities,Footnote 28 despite major reform efforts since 1999.

Adding to the institutional setting is the economic fragmentation resulting from economic reforms in post-Mao China that has inevitably led to local protectionism. The widespread practice of local protectionism is often seen to be a result of economic reform, and particularly of the process of decentralization of economic management powers.Footnote 29 This decentralization and implementation of tax sharing (between central and local governments) have effectively created an economic federation in China, if not ‘economic lords’.Footnote 30 In this context, the fact that local economic interests take precedence over the observance of law is not really surprising, and it is in this context that a curious form of ‘judicial independence’ – local judicial protectionismFootnote 31 – emerged in post-Mao China. While courts in China form a kind of judicial hierarchy with the SPC at the top, it should not be surprising that local courts, having been created by and accountable to local authorities, would favour local interests. Nor is it difficult to understand how easily local governments can interfere with judicial activities.

The constraints on judicial reforms are not difficult to see, and indeed were identified long ago by the judiciary itself. The first Outline of Five-Year Reform of the People’s Courts pointed out the need to ‘explore mechanisms to secure court funding and appointment of personnel’.Footnote 32 The second Five-Year Reform Outline declared the same,Footnote 33 and such calls then appeared in the Chinese media from time to time. However, as a matter of common sense, if any reform is to be made in relation to court funding and the appointment of personnel, this will have to be a matter beyond the power of the judiciary itself. It demands fundamental reform that can hardly be initiated by the judiciary itself in the Chinese political context.Footnote 34 Using the metaphor used by Professor Lubman to describe legal reforms in post-Mao China,Footnote 35 the Chinese judiciary is like a ‘bird in a cage’ trying to find a way out but only ending up going in circles without any ability to break free from the cage, unless someone opens the cage from the outside.

C. Identity Crisis and the Struggle for Respect and Professionalism

If the Chinese judiciary’s position in the party-state power structure is awkward and inferior, it has another serious problem: an identity crisis.

For thousands of years, the administration of justice in China was always a part of general administration and judicial personnel were a part of the ‘executive’. Thus, a local magistrate was ‘the judge, the tax collector and the general administrator. He had charge of the postal service, salt administration, pao-chia (traditional self-regulatory organization), police, public works, granaries, social welfare, education, and religious and ceremonial functions’.Footnote 36 The initial establishment of a separate judicature system from administrative organs was only achieved when the Law for the Organization of the Supreme Court and the Law for the Organization of the Courts were issued in 1906 and in 1910 respectively during the Qing reforms.Footnote 37 In this historical context, it is not difficult to see why the Chinese judiciary has such a low status in the Chinese polity today.

While law has always been seen as a political and administrative tool for social order and stability,Footnote 38 the communist attitude towards law and its heavy politicization of law and legal institutions after the founding of the PRC in 1949 have contributed to the identity crisis of the judiciary in China today. From the very early days in the PRC, it was emphasised by some CPC leaders that law was ‘an extension of military force’,Footnote 39 being subordinate to politics,Footnote 40 and that judicial tasks were equivalent to those of the army and the police.Footnote 41 As such, the judiciary is no more than a replaceable political tool, and it was indeed largely replaced by the police and military during the Cultural Revolution (1966-1976).Footnote 42 To the communist leadership, the army was the gun and the law enforcement authorities (including the judiciary) were swords, both of which were tools for maintaining powers and social stability. Not surprisingly, when Deng Xiaoping decided to reduce the size of the Chinese army in the mid-1980s, he had the demobilised army officers transferred to the judicial system, which resulted in, for many years, a situation where the Chinese judges, on average, had less formal legal education than lawyers.Footnote 43

The introduction of the Law on Judges Footnote 44 in 1995 to set up training and qualification requirements for judicial appointment, and the further reform in 2001 to elevate the academic qualification prerequisites and subject judges to the unified National Judicial ExaminationFootnote 45 have seen the courts move towards becoming a relatively sophisticated professional force. However, the politicization of the Chinese judiciary has continued. Although CPC leadership no longer uses the brutal language as its first generation leaders did in the 1950s, the demand for loyalty from the judiciary has never changed. Thus, as alluded to earlier, the judiciary has always been required to subject itself to the leadership of the CPC.Footnote 46

Without exception, all judicial reform documents specifically and explicitly emphasize that judicial reform may only be carried out in accordance with the principle of upholding the leadership of the CPC, that all measures must be beneficial to the strengthening of the position of the party as the ruling party in China, and that the judiciary must always maintain its political character and political obligations of upholding party leadership and loyalty to the party.Footnote 47 These blunt statements of the judiciary being an instrument of the party do little to change the conventional view in China that the judiciary is merely an instrument to implement party policies. The judiciary is often politicized by its own practices as well, such as the frequent use of political campaigns for periodical anti-crime movements or for enforcement of judgments and rulings. Clearly, these imposed or self-imposed political obligations upon the judiciary can compromise the efforts of the courts towards professionalization, not to mention judicial independence. Recent speeches in which leaders within the politico-legal authorities demand not merely loyalty but rather absolute loyalty to the party and its core leadership can only cause further confusion as to the exact identity and functions of the judiciary in China.Footnote 48

The danger of political campaigns and politicization of judicial tasks in line with prevailing party policies is not only that it re-inforces the conception of law as a tool frequently used for perceived needs on selected targets; the instrumentalist approach is also detrimental to efforts at establishing true rule of law in China. While political backing, occurring mostly during judicial campaigns, can lead to short-term gains, the problem is that this kind of concession to Party involvement and intervention carries the danger of legitimizing the use of law as a tool for the ruling party or ruling elite, and hence the danger of a continuing loss of respect for law and for the judiciary among the general populace. It causes long-term damage to the movement towards genuine judicial professionalism, that is, where the judiciary is a neutral, objective, arbiter in dispute resolution that is worthy of respect. The requirement for political and ideological correctness in the recruitment of judicial personnel might not necessarily destroy the movement towards professionalism, but certainly undermines it and reinforces the politicization of the judiciary, which would in turn reinforce the view held by so many Chinese people that the judiciary is nothing but a part of the corrupt bureaucracy. This positioning of the judiciary as a servant of the CPC marginalizes the Chinese judiciary and severely tarnishes its image in society.Footnote 49

D. A Catch-22 Scenario and the Need for Breakthrough

The Chinese judiciary does not just have a problem of judicial independence; it does not even have a proper identity other than as an instrument of the CPC and government. It has been and still is, to various extents, subject to the control of two separate powers: the government and the Party at the corresponding level. As such, judicial reforms in post-Mao China have always been constrained by external forces, and such constraints effectively become a sort of curse upon the judiciary and judicial reforms: restrictions imposed from the outside could only be lifted by the external authorities that initially imposed such restrictions.

To secure a respectable position for the judiciary within the Chinese polity and to establish a judicial identity as a reasonably independent, neutral and impartial arbiter of disputes, China needs fundamental and systematic politico-economic and constitutional reforms. Such reforms will require the backing of the party.Footnote 50 It is no secret that the CPC is the real authority in major policy-making regarding political and fundamental constitutional reforms. In particular, the issue of judicial independence is not one that can easily be claimed or resolved by the judiciary itself; it requires the clear and strong support and approval of the party. But the party is not going to support any independence from it, which is why we see the continuing emphasis on political and ideological correctness over professionalism ever since the start of judicial reforms in the post-Mao period.

We then have an impasse, a Catch-22 scenario in relation to lifting the status of the judiciary and breaking through fundamental barriers to deep judicial reform: professionalization demands some kind of independence for the judiciary and the acquisition of its own identity other than being a pawn or a tool for the CPC or governments. To achieve such professionalism, the judiciary needs the support of the CPC and the involvement of the party leadership which would, at least theoretically, undermine judicial independence. It is therefore unsurprising that the history of post-Mao judiciary reform is nothing but an intense political struggle for power, status or prestige, and identity.Footnote 51

II. CIRCUIT TRIBUNALS: A ‘GAOL BREAKER’?

A. The New Round of Reforms in Context

To put an end to the circular reforms of a ‘bird in the cage’ and to find a way out of the Catch-22 situation, China needs judicial reforms that are more political (external) than legal (internal) in nature. To undertake such reforms, China also needs a theoretical framework to guide and develop a comprehensive reform program, and such a reform would need, at the minimum and within the limits allowed under a one-party leadership principle, to address the following: further strengthening of the judiciary in terms of both their political and social status as well as their economic and financial positions, and the need to improve the professional qualifications and hence professionalism of personnel in such institutions. Such reform must also define, in clear terms, the functions expected of the judiciary. More importantly, it should be recognized that supervision, which is a vertical relationship, is important for judicial accountability, but establishing checks and balances between and among the different state institutions (including the CPC) is an inherent requirement for establishing any meaningful rule of law.

Ultimately, judicial reform is needed not only to secure coherence, transparency and accountability in policy-making, and fairness, certainty, and impartiality in legal processes, but also to establish and maintain rule of law in China. These are not unrealistic ideals; they are essentially about judicial professionalization, or in other words, to let the judiciary out of the cage erected by the executive and the party. These proposals are not academic fantasies either. As early as 1996, the SPC had itself pointed out that any comprehensive reforms would at a minimum need to include the following aspects: (1) the re-establishment of branches of the SPC in different regions, so as to provide direct leadership and supervision over local courts and to bypass local authorities; (2) the power to establish courts and the centralization of all judicial appointments under a national authority; (3) de-linking of the establishment of courts from administrative divisions, with courts to be established according to geographical and population needs; (4) all administration of personnel (including rewards and punishment, transfer and allocation) to be devolved to the courts; and (5) funding for courts to be allocated directly by central authorities and administered by the SPC.Footnote 52

These reforms, though limited in scope and depth, would be part of political reform, but are also fundamental as a minimum guarantee for independence in adjudication and judicial accountability.Footnote 53 Strictly speaking, these are not reform measures for judicial independence, or at least not independence from the party. Despite the moderate nature of the proposals and several attempts to implement some of them, they laid idle for some 18 years until some measures were finally adopted in the 2013 CPC Decision on Certain Major Issues in Comprehensively Deepening Reform (2013 CPC Decision)Footnote 54 that might actually implement part of the proposals.Footnote 55 However, the exact methods and extent of many proposed reforms were framed rather ambiguously in both the 2013 CPC Decision and the 2014 CPC Decision Concerning Certain Major Issues in Comprehensively Moving Forward Ruling the Country According to Law (2014 CPC Decision)Footnote 56 – a decision meant to implement the 2013 CPC Decision in terms of law and legal reform,Footnote 57 and some measures soon encountered major difficulties.Footnote 58

Facing various difficulties and opposition to some of the reform initiatives, the Party then decided to first test the reforms in selected localities before deciding on any nationwide scheme.Footnote 59 Principal measures implemented to various degrees in different locations include establishing a system that would treat judges and prosecutors differently from public servants; establishing a quota system for judges and prosecutors so as to strengthen and improve their quality and status; improving the process for selection and appointment of judges and prosecutors while upholding the principle of party control of cadres; improving the accountability and supervision of judicial processes; introducing a professional tenure system that is appropriate to the responsibilities of judges and prosecutors; promoting a centralized system for personnel and resource management for courts and procuratorates at levels below that of the province; and establishing separate systems for the management of judicial police and other judicial technical personnel.Footnote 60

As a matter of practice, some reforms have been implemented at the national level (ie establishment of circuit tribunals of the SPC), others (ie court personnel and funding arrangements) at local levels to various degrees, and still others concurrently at central and local levels (ie a quota system for judges).

B. Circuit Tribunals: A Pioneer in Judicial Reforms?

In terms of judicial reform of an institutional nature, the most critical and important measures were contained in Paragraph 32 of the 2013 CPC Decision:Footnote 61

The judicial administration system shall be reformed, a unified management of personnel, funds and materials for courts and procuratorates below the provincial level shall be promoted, and a judicial jurisdiction system that is appropriately separated from the administrative divisions shall be explored to ensure that state laws are implemented and enforced properly and uniformly.

In other words, funding and personnel management for judicial authorities below the level of the province will be centralized, and judicial authorities that would have jurisdiction across administrative divisions may be established. The implications of these measures are significant: to break off administrative bondage on judicial authorities and to allow the bird in the cage to stretch the size of its cage to a defined limit.

With regard to these institutional reforms, progress on the establishment of cross-administrative-division intermediate courts has been very limited, and so far limited only to Shanghai and Beijing and was achieved mainly by way of re-assigning jurisdiction to the existing railway courts.Footnote 62 The establishment of specialized intellectual property (IP) courts is technical (rather than political) in nature, and in any event are also very limited in number and restricted to Beijing, Shanghai, and Guangzhou.Footnote 63 Implementation of one of the most important reforms – the centralization of funding for courts below the provincial level – has been, until present, less successful than anticipated.Footnote 64

In terms of the 2013 and 2014 institutional reform initiatives by the CPC, the one reform that currently stands out as having been completely and expeditiously implemented at the national level is the establishment of circuit tribunals of the SPC.Footnote 65

Section IV(2) of the 2014 CPC Decision ‘decrees’ that the Supreme People’s Court is to establish circuit tribunals to adjudicate major administrative, civil, and commercial cases that are cross-administrative-division in nature. Despite an initial report on the difficulties in establishing the tribunals, including issues concerning the legal basis for it,Footnote 66 the implementation of the ‘decree’ was swift. The 2014 CPC Decision was adopted in late October 2014; by 2 December of the same year, the CPC Leading Group on Comprehensively Deepening Reforms had approved the Trial Plan for Establishing Circuit Tribunals submitted by the SPC.Footnote 67 As mentioned at the beginning of this article, by the end of January 2015, two Circuit Tribunals had been established and begun operation, and a year later, another four such tribunals were set up. By any criteria, such developments were rapid and the processes extremely efficient.

However, as we have already alluded to, the idea of establishing some kind of outlets of the SPC outside Beijing is not new. In fact, in the early 1950s, the SPC did have six branch courts established in the six Great Regions (Da Xingzheng Qu – the initial administrative divisions in the PRC). Those branch courts were then under the dual leadership of the SPC and of the governments of the Great Region.Footnote 68 However, because of the control of personnel and finance by the Great Regional governments, the branch courts soon became local-interest-oriented and morphed into a component of the Great Regional governments, while exercising the functions of the SPC at the same time.Footnote 69 Further, the division of China into Great Regions (and the establishment of corresponding branch courts) was only a transitional arrangement resulting from divisions within the army during the Civil War.Footnote 70 Mao’s idea to centralize party and government powers to prevent local separatist practice and local demands for independence soon led to the abolition of the Great Regions as local governments, and with it, the abolition of the SPC’s branch courts in China, despite arguments by the SPC for their retention.Footnote 71

The most important reason for the abolition of the SPC’s branch courts had, however, nothing to do with local separatist practice or local demands to independence. It was the abolition of the Great Regional Party Bureaus (and the Great Regional governments) that rendered the existence of such branch courts of the SPC without any political foundation and thus violating the fundamental principle for institutional establishment.Footnote 72

The problems most commonly identified as undermining judicial work relate to interference by local administrative and party authorities, labelled by the general term ‘local protectionism’;Footnote 73 as such, a major focus of judicial reforms in the last two decades or so has been on curbing local protectionism.Footnote 74 Not surprisingly, the earliest official suggestion in the post-Mao period for the re-establishment of branch courts of the SPC was made in the 1996 SPC report on local protectionism in China.Footnote 75 In 2003, the idea to establish circuit tribunals as a means of curbing local protectionism was raised at the NPC by a congress deputy, and raised again in 2005 at a Political Consultative Conference.Footnote 76 As will be discussed below, the problem of local protectionism remains one of the principal reasons for the establishment of the circuit tribunals.

Institutionally, the new tribunals are defined as permanent adjudication avenues established by the SPC and whose judgments, rulings and decisions are deemed to be those of the SPC.Footnote 77 In other words, the tribunals are an integral part of the SPC that are established outside its Headquarters. Indeed, it was said that the choice to use the word ‘tribunals’ instead of ‘courts’ was to emphasize that they are not independent courts but internal departments of the SPC.Footnote 78 Also important is the fact that each tribunal has a party sub-group and this sub-group is subject to the direct leadership of the party group of the SPC, not the local party committee.Footnote 79 Being defined as outlets of the SPC and having their party organizations subject to the direct control of SPC headquarters thus effectively insulates the tribunals from all local authorities.

As part of the SPC, circuit tribunal judges, who are referred to as Zhushen Faguan (trial judges),Footnote 80 are selected and appointed from among experienced judges of the SPC,Footnote 81 and each of them will only serve a term of two years.Footnote 82 Assistant judges and judge’s clerks are selected from judges of high courts or intermediate courts and serve at the circuit tribunals on a secondment basis.Footnote 83 For all six circuit tribunals, the current practice is that the heads and deputy heads of the circuit tribunals are selected among the SPC judges but appointed by the Standing Committee of the NPC,Footnote 84 and they also serve as trial judges (Zhushen Faguan). For each tribunal, there are currently thirteen trial judges (including the Head and two Deputy Heads of the Tribunal, one anti-corruption supervisor (lianzheng jiancha yuan)), and the total staff number is limited to fifty.Footnote 85

The 2013 CPC Decision only mentions that the circuit tribunals are to adjudicate major administrative, civil, and commercial cases of a cross-administrative-division nature. As an integral part of the SPC, the tribunals theoretically would have the same jurisdiction as the SPC. As a matter of trial practice, the SPC decides on the allocation of specific kinds of cases to the tribunals for adjudication, comprising mainly administrative, civil and commercial, and certain criminal petition cases.Footnote 86 Additionally, each tribunal also handles within its geographical jurisdiction petitions to the SPC.Footnote 87 However, cases concerning intellectual property, foreign-related commercial matters (except Hong Kong, Macau, or Taiwan-related cases), maritime disputes, review of death sentences, state compensation, enforcement (of judgments, rulings, and decisions), and appeals brought by the Supreme People’s Procuratorate will continue to be tried or handled by the SPC headquarters.Footnote 88 Similarly, any cases that will have major implications for the uniform application of law will continue to be adjudicated in Beijing.Footnote 89

A clear indication that the circuit tribunals are to be used as experimental platforms for judicial reforms, even though many of the reform measures are implemented concurrently at local levels, is Article 10 of the SPC Provisions, which incorporates some significant reform measures initiated by the 2014 CPC Decision to ensure that adjudication will be both independent and accountable.Footnote 90 Article 10 of the SPC Provisions states that the circuit tribunals shall implement an adjudication responsibility system for trial judges and collegiate bench in accordance with the principle that adjudicators shall decide cases and that adjudicators shall be accountable. Article 11 of the SPC Provisions also implements part of the current reform measures. Under this Article, the head and deputy heads of a tribunal are required to participate on a collegiate bench in the adjudication of cases, and all judgments, rulings, and decisions must be signed by all members of the collegiate bench and then issued by the presiding judge of the case. In principle, the head and deputy heads of the tribunal will no longer issue judgments, rulings, or decisions if they were not a member of the collegiate bench that heard the case.Footnote 91 These measures, which seem to be those ordinarily expected of an independent tribunal, are in fact major reforms tackling the long-standing problem of ‘those who decide the case do not hear it; and those who tried the case do not decide it’. The rapid implementation of these measures by the circuit tribunals would indeed set an example for lower courts to follow. The principal task of the tribunals is to adjudicate disputesFootnote 92 and the tribunals have worked very hard and efficiently since their establishment. As of the end of September 2017, the six circuit tribunals had adjudicated, in total, 11,751 cases, and for the first nine months of 2017, these tribunals disposed of 45.5 per cent of cases adjudicated by the SPC.Footnote 93 As of the end of November 2016, the First and Second Circuit Tribunals alone had received and interviewed some 72,000 petitioners.Footnote 94 Incomplete data suggests that, for the first two years, cross-administrative-division cases accounted for about 18 per cent of the total administrative, civil, and commercial cases accepted by the First Circuit Tribunal.Footnote 95 This diversion of caseload from the SPC suggests that the SPC can now focus its efforts on policy-making and judicial interpretation.

C. Objectives Stated and Implied

Officially, the objectives of, and hence the rationales for, the establishment of the SPC circuit tribunals are to handle administrative, civil, and commercial cases of a cross-administrative-division nature, and to allow the SPC to handle cases in the localities where disputes occur so as to provide convenience for litigants.Footnote 96 However, there are also unstated or implied objectives. Having cases handled locally – especially those relating to petitions – would contribute to the maintenance of social stability (weiwen) of the national capital, and would also allow the SPC headquarters to focus its energy in formulating judicial policy and judicial interpretations.Footnote 97 As mentioned earlier, Mr Xu Jiaxing, the Head of the Political Department of the SPC, describes the circuit tribunals as platforms for deep and all-out reforms on personnel management and judicial accountability as well as for deep reform of SPC Headquarters so as to overcome systemic and institutional barriers to judicial reform.Footnote 98 Academics describe the principal purposes of the circuit tribunals’ establishment as a means to break up local protectionism, to optimize the functions of the SPC, and to allow the penetration of central authority into local levels at a low cost.Footnote 99 These objectives or justifications call for further explanation.

On the one hand, using the circuit tribunals to handle cross-administrative-division cases does not by itself make much sense. The circuit tribunals are an integral part of the SPC and the SPC, by definition, already has the power to exercise jurisdiction over these cases, whether it is located in Beijing or Shenzhen. It would be convenient for litigants or complainants in the case of petitions if the SPC were to have outlets in different parts of the country. However, convenience is not the principal reason; rather, optimizing the functions of the SPC and maintenance of social stability in Beijing are two much more important reasons.

Although one may debate the principal functions of the SPC, there is little doubt that the SPC has the major function of formulating public policy and maintaining integrity of the legal system in addition to the adjudication of cases. In the early days after re-establishment of the SPC, very few cases went to it. Since 1988, however, the focus of the SPC began to shift towards adjudication.Footnote 100 This soon led to case overload for the SPC: from 2010, the SPC accepted on average more than 10,000 cases per year and between 60,000 to 70,000 petitions.Footnote 101 This in turn caused two major problems. First, the adjudication of individual cases overwhelmed the other functions of the SPC, which are to maintain integrity of the legal system, formulation of public policy, and supervision of the exercise of powers.Footnote 102 Second, the large number of petitions created considerable pressure in terms of maintaining social stability in the capital city of China. The establishment of the SPC outlets outside Beijing would kill two birds with one stone: to allow the SPC to focus on its core functions of policy-making and to reduce the pressure of maintaining social stability in Beijing.Footnote 103

As the tribunals are an integral part of the SPC, the SPC has full control over the tribunals’ personnel, resources, and funding – all important factors for ensuring independent adjudication of cases free from local interference.Footnote 104 With such powers, the SPC is able to undertake all desired institutional and functional reforms – adjudication independence and judicial accountability, trial methods, personnel management in accordance with a differentiated classification of judicial personnel, streamlined (and hence reduced) bureaucratic structure – within the tribunals without any interference from local authorities.Footnote 105 It is in this sense that the SPC and the tribunal structure are pioneers in judicial reform and a potential ‘model’ for local courts.

D. Decoding the Reform: Circuit Tribunals as ‘Gaol Breaker’?

Perhaps the most important objective is one that is not stated explicitly but which can be inferred from the general scheme of ‘deep reforms’ championed by Xi Jinping and as contained in the 2013 and 2014 CPC Decisions. Paragraph 1(2) of the 2013 CPC Decision declares that the overall objective of deep reforms is to perfect and develop the system of Socialism with Chinese characteristics, and to promote the modernization of the country’s governance structures and capabilities. In other words, the ‘deep reforms’ championed by Xi Jinping are institutional reforms that serve to support a socialist system with Chinese characteristics. While the meaning and the nature of such reforms are debatable,Footnote 106 there is little doubt that the CPC has now explicitly asserted its leadership not only over such reforms but also over all state affairs.Footnote 107 In short, Xi’s reforms are aimed at upholding party leadership while undertaking institutional reforms, but the scheme is more complicated than it appears on paper: it is about re-defining or re-asserting the authority of the party in the nation’s governance structure.

The relationship between the party and the three state powers, but especially the judiciary, is always in a state of flux. While Deng Xiaoping clearly and firmly rejected the idea of separation of powers, he was however concerned with the efficiency of his economic reforms. Thus, he advocated the separation of the party and the government, but remained conspicuously silent on the relationship between the party and legislature on the one hand, and the party and judiciary on the other, aside from a general assertion of party leadership over them. Although his political reforms seriously lagged behind economic reforms, and in many senses largely failed, they nevertheless reduced the visibility if not the actual power of the party. Until quite recently, the party had largely retreated to the exercise of its three core powers: control over the army, personnel, and propaganda.Footnote 108

Essentially, Xi’s reforms are also attempts at exploring new and effective mechanisms for direct party control over not only the state structure and the so-called mass organizations (such as the union, women’s association etc), but also other entities that had been separated from the party earlier, such as state-owned enterprises.Footnote 109 Xi’s initiative in establishing numerous ‘Party Leading Groups’ at the central level suggests not only that the leadership of the party has been re-emphasized, but also that many government functions have been taken over by the party directly.Footnote 110

The current judicial reforms are, of course, part of Xi’s deep reforms. If Xi’s objective is to explore mechanisms for direct Party control, he is, not surprisingly, much more tolerant of proposals to separate the judiciary from the bureaucratic structure as long as party control is not weakened. Nonetheless, such a separation involves major re-distribution of powers, and is hence effectively a contest for power. However, Xi’s reforms fit well with the historical struggle of the SPC to become a relatively independent state power player by projecting its powers into local levels of government. The judiciary’s swift move to establish circuit tribunals stems, perhaps, more from the SPC’s self-interest than from enthusiasm for Xi’s reforms. With full and direct control of its six circuit tribunals in different parts of China, the SPC is able to use these tribunals to experiment with judicial reforms that it hopes to introduce to all courts in China. Through these reforms, the SPC and its circuit tribunals could indeed acquire some unique identity as a professional organization as opposed to being just another corrupt bureaucratic authority.

The establishment of circuit tribunals is a limited breakthrough in judicial reform in the sense that it breaks off the constraints imposed by the administrative division and hierarchy while maintaining a direct line of party control – which is clearly one of the objectives of Xi’s deep reforms. If the circuit tribunal experiment is emulated for judicial reforms at the provincial level, the Chinese courts could be freed from control by local governments, albeit with the High Courts still subject to provincial governments. In short, while the judiciary will continue to be controlled by the party, or indeed come under even tighter control, the circuit tribunal system nevertheless makes headway in casting off the shackles of one of the two controlling powers – the administrative authorities. Thus the ‘bird’ might still be in the cage, but the cage is now controlled mainly by one power (instead of two) – the CPC.Footnote 111 Equally significant, the establishment of circuit tribunals breaks down the fundamental principle in establishing state authorities, that is, the principle state authorities can only be established within an existing structure that integrates party mechanisms at the same level.Footnote 112

III. CONCLUDING REMARKS

Despite the rejection of separation of powers in China, the judiciary is unambiguously seen as one of the three state powers under the Constitution. In reality, however, the judiciary has been subject to control of two separate powers – the government and the party at the corresponding level – and possesses an inferior status within the state power structure and a less-than-respectable identity as a judicial authority. Such control effectively renders the judiciary a ‘bird in a cage’ and its reforms circular.

The establishment of circuit tribunals effectively creates a precedent where ‘local courts’ are only subject to one power – the CPC – and such party control is exercised top-down. In this sense, the circuit tribunals’ establishment offers the SPC the potential to break free from the previous cycles of reform, as the tribunals are no longer controlled by local authorities. In this sense, some major barriers to deep reform are also overcome as the SPC finally gains the full power to implement its reform measures in ‘local courts’. Nevertheless, the judiciary will not become a breakaway force in the Chinese polity, as party control, albeit exercised differently, is in fact strengthened.

It is, however, important to reiterate that the establishment of the circuit tribunals must be understood in context. Essentially, such an establishment is part of the CPC’s strategy to re-centralize state powers and to impose direct and strict party control over all state affairs; it is not about judicial independence and, indeed, the Chinese judiciary would continue to be far from independent.

Footnotes

*

Dr Zhiqiong June Wang, Senior Lecturer, School of Law, Western Sydney University.

**

Dr Jianfu Chen, Professor of Law, School of Law, La Trobe University.

References

1. Zuigao renmin fayuan guanyu xunhui fating shenli anjian ruogan wenti de guiding (最高人民法院关于巡回法庭审理案件若干问题的规定) [Provisions of the Supreme People’s Court on Certain Issues concerning the Adjudication of Cases by the Circuit Tribunals] (法释[2015]3号, adopted by the Adjudication Committee of the Supreme People’s Court (SPC) on 5 January 2015, issued by SPC on 28 January 2015, effective 1 February 2015). These Provisions were revised on 19 December 2016, and the revised Provisions became effective on 28 December 2016. For an explanation on the making and application of these Provisions, see He Xiaorong, He Fan, and Ma Yuanjie, “Zuigao renmin fayuan guanyu xunhui fating shenli anjian ruogan wenti de guiding” de lijie yu shiyong (《最高人民法院关于巡回法庭审理案件若干问题的规定》的理解与适用) [On Interpretation and Application of the “Provisions of the Supreme People’s Court on Certain Issues concerning the Adjudication of Cases by the Circuit Tribunals”]’, Renmin fayuan bao (人民法院报) [People's Court Daily] (China, 29 January 2015), 5 <http://rmfyb.chinacourt.org/paper/html/2015-01/29/content_93346.htm?div=-1> accessed 10 March 2018.

2. The decision for a total of six tribunals and the geographical coverage for each tribunal were made largely on the basis of socio-economic development, inter-regional socio-economic cooperation, population density, geographical distance from Beijing, and State development strategies. See the Li Wanxiang, Interview with Xu Jiaxin (SPC Justice), ‘Zuigao renmin fayuan zhengzhibu fuzeren jiexi xunhui fating: shixian guanxia fanwei quanfugai (最高人民法院政治部负责人解析巡回法庭：实现管辖范围全覆盖) [Person-in-Charge of the Political Department of the Supreme People’s Court Explains the Establishment of the Circuit Tribunals: Achieving Full Coverage of All Areas Within Jurisdiction]’ Xinhuanet (China, 30 December 2016) <http://news.xinhuanet.com/politics/2016-12/30/c_1120220108.htm> accessed 10 March 2018.

3. Since the establishment of the CPC Central Committee Leading Group on Comprehensively Deepening Reforms at the end of 2013, the Group had, by the end of September 2017, adopted 48 sets of judicial reform documents and 31 judicial reform plans. During the same period of time, the SPC has, either independently or jointly with other authorities, issued 137 sets of judicial reform documents. The SPC’s latest five-year reform plan (2014-2018) alone contains some 65 reform measures. See Zhou Qiang, ‘Zuigao renmin fayuan guanyu renmin fayuan quanmian shenhua sifa gaige qingkuang de baogao (最高人民法院关于人民法院全面深化司法改革情况的报告) [A Report of the Supreme People’s Court on Comprehensively Deepening Judicial Reform]’ Legal Daily (China, 2 November 2017) <www.legaldaily.com.cn/zt/content/2017-11/02/content_7375632.htm?node=89685> accessed 10 March 2018.

4. Qiao Wenxin, ‘Zhou Qiang zai zuigaorenmin fayuan xunhui fating ganbu lijing xingqianhui shangzuo gongzuobushu yaoqiu—zhashi zuohao xunhui fating gexiang gongzuo, danghao sifa gaige paitoubing (周强在最高人民法院巡回法庭干部离京行前会上作工作部署要求—扎实做好巡回法庭各项工作 当好司法改革排头兵) [Zhou Qiang Exhorts Circuit Tribunal Court Brass at Pre-departure Assembly to Perform Duties Properly and to Be the Pioneers of Judicial Reforms]’ (ChinaCourt [zhongguo fayuan wang], 26 December 2016) <www.chinacourt.org/article/detail/2016/12/id/2494645.shtml> accessed 10 March 2018.

5. Su Jingxiang, ‘Shenme shi zuigao renmin fayuan xunhui fating? (什么是最高人民法院巡回法庭？) [What Are the Circuit Tribunals of the Supreme People’s Court?]’ (Lilun Shiye [Theoretical Horizon], 25 April 2015) <http://lilunsy.ccps.gov.cn/mzyfz/201603/t20160302_74218.html> accessed 10 March 2018. Hu Yunteng (Head of the Second Circuit Tribunal), ‘Weishenme yao sheli xunhui fating? (为什么要设立巡回法庭？) [Why Do We Establish Circuit Tribunals?]’ (2015) No 12 Qiushi [Seeking Truth], 46 <www.qstheory.cn/dukan/qs/2015-06/15/c_1115588377.htm> accessed 10 March 2018.

6. Cai Changchun, ‘Meng Jianzhu: Tansuo wanshan juyou zhongguo tese shehuizhuyi xunhui fating zhidu (孟建柱：探索完善具有中国特色社会主义巡回法庭制度) [Meng Jianzhu: Perfecting the Circuit Tribunal System with Chinese Socialist Characteristics]’ (Legal Daily, 26 December 2016) <www.legaldaily.com.cn/index_article/content/2016-12/26/content_6931811.htm?node=5955> accessed 10 March 2018.

7. ibid.

8. Li Wanxiang, Interview with Xu Jiaxin (n 2).

9. ‘Xinwen 1+1: Zuigaofa xunhuifating zhutui sifagaige’ (《新闻1+1》最高法巡回法庭助推司法改革！) [News 1+1: Circuit Tribunals of the SPC Promote Judicial Reforms]’ (Zhongyang Shisantai, 29 January 2015) <http://zhongyang13.com/cctv13/xinwen1_1/20150130/14509.html> accessed 10 March 2018.

10. Initially, these pilot programs were implemented, from June 2014, in seven selected localities (Jilin, Shanghai, Guangdong, Hubei, Hainan, Guizhou, and Qinghai). A year later, a second group of 11 provinces were selected for trial implementation, and in December 2015 a third group of 14 provinces and centrally administered municipalities was approved for trial implementation. Thus, by the end of 2015, these pilot programs were being implemented nationwide, though to different extents. See Xu Xin, Huang Yanhao, and Wang Xiaotang, ‘Zhongguo sifagaige niandu baogao (2016) (中国司法改革年度报告(2016)) [Annual Report on China’s Judicial Reform (2016)]’ (2017) 34-3 Journal of Shanghai University (Social Sciences) [Shanghai Daxue Xuebao (Shehui Kexue Ban)] 16. For further discussion, see Section II.A below.

11. Zhonghuarenmingongheguo xianfa (中华人民共和国宪法) [Constitution of the People’s Republic of China] (promulgated by the National People’s Congress, 4 December 1982, as amended as of 14 March 2004). It should be pointed out that the word ‘judiciary’ or ‘judicial organs’ often refers to both the courts and procuratorates. In this article, we only use the term ‘judiciary’ to mean the courts unless otherwise specified.

12. For a detailed analysis of the Nomenklatura system in China, see Jianfu Chen, Chinese Law: Context and Transformation (rev edn, Brill Nijhoff 2016) 173–187. Since the 1950s, a vertical line of party committees has been established, with the higher level committee exercising leadership over the lower one and party committee exercising leadership over state structure (legislative, executive, and judiciary) as well as ‘social organizations’ at the same level. At the core of any state institutional establishment is the party structure. See also Liu Zhong, ‘Sijiliangshenzhi de fasheng he yanhua (四级两审制的发生和演化) [The Evolution of the “Four Levels and Two Trial” System]’ (2015) No 4 Faxue Yanjiu [Chinese Journal of Law] 41, 46.

13. Liu Zhong (n 12) 46; He Fan, ‘Zuigaorenminfayuan daqufenyuan wangshi (最高人民法院大区分院往事) [The History of the Branch Courts of the Supreme People’s Court]’ (Chongqing Lüshiwang, 25 January 2015) <www.cqlsw.net/lite/prose/2015012515289.html> accessed 10 March 2018.

14. Limited exceptions do exist in China. The Maritime Courts and Railway Transport Courts were both established to accept cases (including cross-administrative-division cases) concerning maritime affairs and cases relating to railway transport respectively, but none of them has general jurisdiction. Although initially funded by the Ministry of Transport and Ministry of Railways, they were eventually transferred to the local governments for funding. The Party groups within these courts were also subject to leadership of local Party Committee at the corresponding level.

15. Chen (n 12) 179–181.

16. As of March 2018, there are seven members in the Standing Committee of the Politburo, 25 members in the Politburo, and 205 full members and 171 alternative members in the Central Committee. See ‘Dishibajie zhonggong zhongyang zuzhi jiegoutu (第十八届中共中央组织结构图) [Organization Chart of the 18th Central Committee of the Communist Party of China]’ (People’s Daily [Renminwang]) <http://cpc.people.com.cn/GB/64162/351757/index.html> accessed 10 March 2018.

17. Tong Zhiwei, ‘Tong Zhiwei: Tongwang zhongguo fayuan duli shenpan zhi lu (童之伟：通往中国法院独立审判之路) [The Road to Independent Adjudication by Chinese Courts]’ (Aisixiang, 23 April 2016) <www.aisixiang.com/data/98970.html> accessed 10 March 2018. This source is a summary of the contents of seminars by Professor Tong at the University of Chicago, Columbia University, and George Washington University in January 2016.

18. This dependency relationship is currently subject to reform through local pilot programs. In relation to hierarchy, it should also be pointed out that until 1985, the judiciary was in fact a full level below the corresponding government. See Jiang Liping (ed), ‘Zhongguo sifa zhidu de yange he fazhan (中国司法制度的沿革和发展) [The Evolution of the Chinese Judicial System]’ (SCOPSR [Zhongyang Jigou Bianzhiwang], 28 July 2015) <www.scopsr.gov.cn/whsh/ggdf/201507/t20150728_279477.html> accessed 10 March 2018.

19. There is no shortage of literature on judicial reforms in China. See eg Peerenboom, Randall (ed), Judicial Independence in China: Lessons for Global Rule of Law Promotion (CUP 2009)CrossRefGoogle Scholar ; Li, Yuwen, The Judicial System and Reform in Post-Mao China: Stumbling towards Justice (Ashgate 2014)Google Scholar . For Chinese official accounts, see Information Office of the State Council, ‘Judicial Reform in China’ (White Paper, October 2012) <http://english.gov.cn/archive/white_paper/2014/08/23/content_281474983043170.htm> accessed 10 March 2018; Supreme People’s Court, ‘Court Reform in China’ (White Paper, updated 14 March 2017) <http://english.court.gov.cn/2017-03/14/content_28552928.htm> accessed 10 March 2018.

20. Li, Yuwen, ‘Court Reform in China: Problems, Progress and Prospects’ in Jianfu Chen, Yuwen Li and Jan Michiel Otto (eds), Implementation of Law in the People’s Republic of China (Kluwer Law International 2002)Google Scholar .

21. ‘Renmin fayuan wunian gaige gangyao (1999-2003) (人民法院五年改革纲要 (1999-2003)) [The Outline of Five-Year Reform of the People’s Courts]’ (Supreme People’s Court 法发 [1999] 28号, issued on 20 October 1999) <www.iolaw.org.cn/web/special/2015/new.aspx?id=44911> accessed 10 March 2018.

22. ‘Guanyu quanmian shenhua renmin fayuan gaige de yijian—Renmin fayuan disige wunian gaige gangyao (关于全面深化人民法院改革的意见——人民法院第四个五年改革纲要(2014--2018)) [A Summary of the Opinion on Comprehensively Deepening Reform of the People’s Courts—Outline of the Fourth Five-Year Reform of the People’s Courts]’ (Supreme People’s Court, 法发 [2015] 3号, issued on 26 February 2015). See He Xiaorong and Ma Yuanjie, ‘Renmin qunzhong de qipan shi quanmian shenghua renmin fayuan gaige de buxie dongle – “zuigao renmin fayuan guanyu quanmian shenghua renmin fayuan gaige de yijian” de beijing jiexi (人民群众的期盼是全面深化人民法院改革的不竭动力)[Wishes of the People are inexhaustible Sources of Inspriaton to Comprehensively Deepen the Reform of the People’s Court]’ (ChinaCourt [zhongguo fayuan wang], 27 February 2015) <www.chinacourt.org/article/detail/2015/02/id/1558233.shtml> accessed 10 March 2018.

23. As mentioned earlier, there is no shortage of literature on judicial reform in China (see (n 19) above), analyzing its current status and its existing problems, but none is a direct assessment of the recent reforms. The general view is that the judicial reforms so far have been more on the functions of the courts, and that is where the successes have been, but progress on institutional reforms has been limited. See Jiang (n 18).

24. For example, the restoration of the review power for all death penalties to SPC, the implementation of an Open Trial System, a Guiding Case System, and the introduction of civil trial reforms.

25. For example, the establishment of a Guiding Case System, the gradual elimination of the practice of seeking guidance from superior courts in specific adjudication cases, and the gradual reduction of powers of the adjudication committees in the court system.

26. Zou Wei and Wang Sibei, ‘Zhongyang sifa tizhi gaige lingdao xiaozu bangongshi fuzeren xiangjie si zhongquanhui jueding jida jiaodian wenti (中央司法体制改革领导小组办公室负责人详解四中全会决定几大焦点问题) [Person in Charge of Office of the CPC’s Central Committee Leading Group on Judicial Reform Explains Several Focused Issues contained in the Decision of the Fourth Session of the Central Committee of the Party]’ (Zhongguo Zhengfu Wang [State Council of People Republic of China], 31 Oct 2014) <www.gov.cn/xinwen/2014-10/31/content_2773278.htm> accessed 10 March 2018. Similarly, the President of the SPC, Justice Zhou Qiang has called for resolute rejection of the western notions of constitutionalism, separation of powers, and judicial independence: ‘Quanguo gaoji fayuan yuanzhang huiyi zai jing zhaokai, Zhou Qiang qiangdiao zhashi zuohao renmin fayuan gexiang gongzuo, Yi youyi chengji yinjie dang de shijiuda shengli zhaokai (全国高级法院院长会议在京召开 周强强调扎实做好人民法院各项工作 以优异成绩迎接党的十九大胜利召开) [Meeting of Presidents of Higher People’s Courts Nationwide Held in Beijing, All Functions of People’s Courts Are to Be Properly Performed and the Successful Opening of the 19th National Congress of the Communist Party of China Is to Be Welcomed with Excellent Results, Emphasizes Zhou Qiang]’ (Legal Daily, 14 January 2017) <www.legaldaily.com.cn/xwzx/content/2017-01/14/content_6956015.htm?node=53628> accessed 17 January 2017. See also speech delivered by Xi Jinping at the Celebration of the 60th Anniversary of the Establishment of the National People’s Congress: ‘Sheji he fazhan guojia zhengzhi zhidu yao cong guoqing chufa cong shiji chufa (设计和发展国家政治制度 要从国情出发从实际出发) [The Design and Development of a National Political System Must Start From the Practical Reality of a Nation]’ Xinhuanet (China, 5 September 2014) <http://news.xinhuanet.com/politics/2014-09/05/c_1112384483.htm> accessed 10 March 2018.

27. A firm practice has been established in China: each legal institution undertakes institutional reforms internal to its own institution, but conducted under the strict leadership, guidance and coordination of the CPC Central Committee Leading Group on Judicial Reform. On the establishment and functioning of the CPC Central Committee Leading Group on Judicial Reform, see Qin Xudong, ‘Zhongyang sifa tizhi gaige lingdao xiaozu jiexi (中央司法体制改革领导小组解析) [An Analysis of the Central Committee Leading Group on Judicial Reform]’ (Caixinwang, 16 January 2014) <http://china.caixin.com/2014-01-16/100629902.html> accessed 7 April 2017.

28. A problem that has long been recognized by the Chinese judiciary itself. See Special Investigation Group, Supreme People’s Court, ‘Guanyu sifa huodong zhong difang baohu zhuyi wenti de diaocha baogao (关于司法活动中地方保护主义问题的调查报告) [Investigation Report on Local Protectionism in Judicial Activities]’ (18 July 1996), 12–14; Qin Xudong and Ren Zhongyuan, ‘Sifa gaige jianzhi sifa difanghua (司法改革剑指司法地方化) [The Sword of Judicial Reform Aims at Local Protectionism]’ (Caixinwang, 15 November 2013) <http://china.caixin.com/2013-11-15/100605504.html> accessed 26 March 2018.

29. Ma Huaide, ‘Difang baohu zhuyi de chengyin he jiejuezhidao (地方保护主义的成因和解决之道) [Reasons and Solutions for Local Protectionism]’ (2003) No 6 Zhengfa Luntan (政法论坛) [Tribune of Political Science and Law] 156.

30. On economic decentralization and the increasing economic powers of local governments, see Jianfu Chen and Lijian Hong, China Local Business Law Guide (CCH Asia Pacific, 1999) paras 1-070 to 1-090.

31. Local judicial protectionism is defined by some Chinese scholars as a tendency in economic adjudication and enforcement by judicial authorities to render rulings and judgements which favour local parties and local economic interests. See Li Changqi, Chao Xinyong and Peng Xinshi, ‘Jingji shenpan gongzuo zhong de difang baohu zhuyi qinxiang bixu zhizhi (经济审判工作中的地方保护主义倾向必须制止) [The Tendency of Local Protectionism in the Economic Trial should be Prevented]’ (1988) No 4 Xiandai Faxue [Modern Legal Science] 71, 71. For a comprehensive examination of ‘local judicial protectionism’, see Liu Zuoxiang, ‘Zhongguo sifa difang baohu zhuyi zhi pipan (中国司法地方保护主义之批判) [A Critique on Judicial Local Protectionism in China]’ (2003) No 1 Faxue Yanjiu [Studies in Law] 83.

32. Outline of Five-Year Reform of the People’s Courts (n 21) art 43 (referring to possible revision of the Organic Law of the People’s Courts of the People’s Republic of China in relation to the court structure). See also ibid, art 44 (calling for active exploration of possible reform in the judicial cadre system so as to strengthen the supervision of the system by the Party and the People’s Congress); and art 45 (mentioning the need to actively explore possible reform in the funding system in order to secure court funding).

33. ‘Renmin fayuan dier ge wunian gaige gangyao (人民法院第二个五年改革纲要(2004-2008)) [The Second Five-Year Reform Program for the People’s Courts (2004-2008)]’ (Supreme People’s Court 法发[2005] 18号, issued on 26 October 2005) <www.cecc.gov/resources/legal-provisions/second-five-year-reform-program-for-the-peoples-courts-2004-2008-cecc> accessed 26 March 2018. The Supreme People’s Procuratorate stated the same in the second Three-Year Reform plan: ‘Guanyu jinyibu shenhua jiancha gaige de sannian shishi yijian (关于进一步深化检察改革的三年实施意见) [Implementation Opinion on Deepening Three-Year Reform of the Procuratorate System]’ (Supreme People’s Procuratorate on 24 August 2005, 高检发 [2005] 17 号, issued on 12 September 2005).

34. As will be discussed below, some measures were finally taken up by the CPC in 2013 and 2014, but the actual implementation has so far encountered some major difficulties.

35. Lubman, Stanley B, Bird in a Cage: Legal Reform in China after Mao (Stanford University Press 1999)Google Scholar .

36. T’ung-tsu Chu, Local Government in China under the Ch’ing, quoted in William C Jones, ‘Introduction’ in William C Jones et al (trs), The Great Qing Code (Clarendon Press 1994) 10.

37. Zhang Jinfan, Qiao Wei, and You Shaoyi (eds), Zhongguo fazhishi [A Chinese Legal History] (Press of the Masses [Qunzhong Chubanshe] 1986) 342.

38. On the legacy of traditional Chinese law, see Chen (n 12) 20–24.

39. In a speech to cadres attending judicial training courses in 1949, Xie Juepei, who later became the first Minister for Internal Affairs of the PRC, stressed that law was the extension of the army, the state power vested in the organs for punishment. See Northwest University of Political Science and Law (西北政法大学) (ed), Faxue jichu lilun bufen cankao ziliao 法学基础理论部分参考资料 [Reference Materials on Fundamental Aspects of Legal Theory] (Northwest University of Political Science and Law 1982) 74.

40. In the same speech as discussed in (n 39) above, Xie Juepei declared that ‘[l]aw should provide whatever politics needs, and before the law is made, policies, as usual, should be applied’: ibid 94.

41. See Government Administration Council of the Central People’s Government, ‘Zhengwuyuan guanyu jiaqiang renmin sifa gongzuo de zhishi (政务院关于加强人民司法工作的指示) [Instruction of the Government Administration Council to Strengthen People’s Judicial Work]’ in Northwest University of Political Science and Law (n 39) 40. The document was signed by then Premier Zhou Enlai, and first issued and published in the Renmin Ribao (People’s Daily) on 3 November 1950.

42. In the case of the Supreme People’s Court, at the beginning of 1969, there were only 20 people on its books, with 8 persons in charge of adjudication. In contrast, as of May 2013, the Supreme People’s Court official staff number stood at 1,169: Li Meng, ‘Zuigao fayuan de qianshi jinsheng (最高法院的前世今生) [A Brief History of the Supreme People’s Court]’ (Legal Media Bridge Blog, 22 Oct 2014) <http://blog.sina.com.cn/s/blog_5ff29ca40102v636.html> accessed 26 March 2018; Jiang Liping (n 18). More generally, see Yanlai Wang, China’s Economic Development and Democratization (Ashgate 2003) 75–82.

43. As of 1984, less than 3% of the total staff in the court system had undergraduate legal education: Li Meng (n 42). It was claimed that as of 1994 almost 50% of judges nationwide had not even completed vocational legal education. See He Weifang, ‘Tonghguo sifa shixian shehui zhengyi (通过司法实现社会正义) [Realizing Social Justice Through the Judiciary]’ in Xia Yong (ed), Zouxiang quanli de shidai: Zhongguo gongmin quanli fazhan yanjiu (走向权利的时代: 中国公民权利发展研究) [Towards an Age of Rights: Perspectives on Civil Rights Development in China] (Press of China University of Political Science and Law 1995) 228.

44. Zhonghua renmin gongheguo faguan fa (中华人民共和国法官法) [Law on Judges] (adopted by the Standing Committee of National People’s Congress on 28 February 1995, effective 1 July 1995). It was revised on 30 June 2001, and most recently, revised again on 1 September 2017.

45. The requirement was stated in the Measures on Implementation of National Judicial Examination (Trial Provisions): Guojia sifa kaoshi shishi banfa (shixing) (国家司法考试实施办法(试行)) [Measures on Implementation of National Judicial Examination (Trial Provisions)] (Ministry of Justice, SPC, and Supreme People’s Procuratorate (2001) 公告第2号, issued on 31 October 2001, effective 1 January 2002). It was revised and re-issued on 8 August 2008: Guojia sifa kaoshi shishi banfa (国家司法考试实施办法) [Measures on Implementation of National Judicial Examination] (Ministry of Justice, SPC and Supreme People’s Procuratorate, 司发[2008]11 号，issued on 8 August 2008). The National Judicial Examination will be replaced by the Unified National Legal Professional Qualifications Examination (国家法律职业资格考试) from 2018.

46. See sources in (n 26) above.

47. See Outline of Five-Year Reform of the People’s Courts (n 21); Second Five-Year Reform Outline of the People’s Courts (n 33); ‘Renmin fayuan disange wunian gaige gangyao (人民法院第三个五年改革纲要(2009-2013)) [The Third Five-Year Reform Outline of the People’s Courts]’ (Supreme People’s Court 法发 [2009]14号, issued on 17 March 2009, effective 17 March 2009) <www.court.gov.cn/shenpan-xiangqing-323.html> accessed 26 March 2018; and ‘Renmin fayuan disi ge wunian gaige gangyao (人民法院第四个五年改革纲要(2014-2018)) [The Forth Five-Year Reform Outline of the People’s Courts]’ (Supreme People’s Court法发 (2015) 3号, issued 4 February 2015, effective 4 February 2015) at <www.chinacourt.org/law/detail/2015/02/id/148096.shtml> accessed 26 March 2018. The 2013 and 2014 Party Decisions have now put this issue beyond any doubt or debate, and made it clear that the separation of the Party from the judiciary is not on the reform agenda in China today or in the near future.

48. Zhou Qiang (n 26); Meng Jianzhu, ‘zai zhongyang zhengfa weiyuanhui diershiqici quanti huiyishang qiangdiao (孟建柱在中央政法委员会第27日全体会议上强调) [Speech delivered at the 27th Plenary Meeting the Central Politico-Legal Committee]’ (Legal Daily, 31 October 2016) <www.legaldaily.com.cn/zt/content/2016-11/01/content_6861447.htm?node=75436> accessed 26 March 2018. For more detailed discussion see Jianfu Chen, ‘Out of the Shadows and Back to the Future: CPC and Law in China’ (2016) 24 Asia Pacific Law Review 176.

49. Shi Fei, ‘Zuigao renmin fayuan zhengzhi renwu de bianhua: yi 1950-2007 nian zuigao renmin fayuan gongzuo baogao wei zhongxin (最高人民法院政治任务的变化: 以1950-2007年最高人民法院工作报告为中心) [The Transformation of the Political Mission of the Supreme People’s Court: A Study of the Supreme People’s Court Work Reports 1950–2007]’ (2008) No 1 Kaifang Shidai [Open Times] 124, available at <www.aisixiang.com/data/34057.html> accessed 26 March 2018.

50. Chen (n 12) 994–995; Donald C Clarke, ‘Power and Politics in the Chinese Court System: The Enforcement of Civil Judgments’ (1996) 10 Columbia Journal of Asian Law 1.

51. Liu Zhong, ‘Guimo yu neibu zhili: Zhongguo fayuan bianzhi bianqian sanshi nian (规模与内部治理：中国法院编制变迁三十年) [Scale and Internal Governance: 30 Years of Change in the Chinese Court Structure]’ (2012) No 5 Fazhi yu Shehui Fazhi [Law and Social Development] 47, <www.ideobook.com/1277/scale-inner-governance/> accessed 26 March 2018; Jiang Liping (n 18); Li Meng (n 42); Shi Fei (n 49).

52. See Special Investigation Group, Supreme People’s Court (n 28) 17–18.

53. ibid.

54. Zhonggong zhongyang guanyu quanmian shenhua gaige ruogan zhongda wenti de jueding (中共中央关于全面深化改革若干重大问题的决定) [The CPC Decision on Certain Major Issues in Comprehensively Deepening Reform] (adopted at the Third Plenary Meeting of the 18th Central Committee of the CPC on 12 November 2013), English translation available at <www.china.org.cn/china/third_plenary_session/2014-01/16/content_31212602.htm> accessed 10 March 2013.

55. 2013 CPC Decision, s 9. For a summary of the reforms, see Meng Jianzhu, ‘Shenhua sifa tizhi gaige 深化司法体制改革 [Deepening Judicial Reforms]’ (Renmin Ribao [People’s Daily], 25 November 2013) <http://opinion.people.com.cn/n/2013/1125/c1003-23643844.html> accessed 26 March 2018. See also (n 76) below.

56. Zhonggong zhongyang guanyu quanmian tuijin yifuzhiguo ruogan zhongda wenti de jueding (中共中央关于全面推进依法治国若干重大问题的决定) [CPC Decision concerning Certain Major Issues in Comprehensively Moving Forward Ruling the Country According to Law] (adopted at the Fourth Session of the 18th Central Committee of the CPC on 23 October 2014), English translation available at <http://chinacopyrightandmedia.wordpress.com/2014/10/28/ccp-central-committee-decision-concerning-some-major-questions-in-comprehensively-moving-governing-the-country-according-to-the-law-forward/> accessed 24 April 2017.

57. After high praise for the inclusion of a number of major reform measures in the 2013 CPC Decision (see Tang Shihua, ‘Sifa gaige zhenzheng maichule guanjian yibu: duihua yunnansheng gaoyuan fuyuanzhang Tian Chengyou (司法改革真正迈出了关键一步: 对话云南省高院副院长田成有) [Judicial Reforms Finally Taking a Genuine Step: A Conversation with the Deputy Chief Justice Tian Chengyou]’ (Legal Daily, 18 December 2013) <www.legaldaily.com.cn/xwzx/content/2013-12/18/content_5127768.htm> accessed 26 March 2018, scholars suddenly became disappointed that the 2014 CPC Decision did not follow up the initiatives in the 2013 CPC Decision, such as specific methods of centralized funding for courts below the provincial level.

58. Chen Lei, ‘Sifa gaige yudao zuli, zhongyang shengaizu bushu xianxing shidian (司法改革遇到阻力-中央深改组部署先行试点) [Judicial Reforms Encounter Obstacles – Central Committee Leading Group Decided First to Undertake Local Trials]’ (Legal Daily, 12 June 2014) <www.legaldaily.com.cn/index_article/content/2014-06/12/content_5598628.htm?node=6148> accessed 26 March 2018.

59. As mentioned earlier, these programs, still called local pilot programs, were soon implemented nationwide; see (n 10).

60. SPC, ‘Court Reform in China’ (n 19); Xu Xin, Huang Yanhao, and Wang Xiaotang (n 10).

61. The translation below is adapted (and revised against the original Chinese text) from an English text that is available at <www.china.org.cn/china/third_plenary_session/2014-01/16/content_31212602.htm> accessed 24 April 2017.

62. The establishment of cross-administrative-division courts is mandated by the 2014 CPC Decision, but for now has only been tried in Beijing and Shanghai. For both cities, the new cross-boundary courts (and procuratorates) are established based on the system of railway courts (and procuratorates) in Beijing and Shanghai. Interestingly, the 2017 Supreme People’s Court Report to the NPC (delivered on 12 March 2017, adopted on 15 March 2017) said little about the establishment of these courts, suggesting that the progress has been very limited. Some 8 months later in November 2017, the SPC again found little to add to this important aspect of judicial reform when its President delivered a special report on judicial reforms to the Standing Committee of the NPC. See Zhou Qiang (n 3).

63. SPC, ‘Court Reform in China’ (n 19) 11.

64. As at the end of September 2017, only 13 provinces have established centralised funding mechanisms: Zhou Qiang (n 3).

65. For a detailed report on the status of progress of the various reforms, see the report by Zhou Qiang (n 3).

66. Guo Jinchao and Jiang Tao, ‘Zhongguo zuigaofa: Xunhui fating sheli zanwu mingque shijianbiao (中国最高法：巡回法庭设立暂无明确时间表) [Supreme People’s Court: There Is No Specific Timetable for the Establishment of Circuit Tribunals]’ (Zhongxinwang [China News], 1 November 2014) <www.chinanews.com/gn/2014/11-01/6739934.shtml> accessed 26 March 2018.

67. Sun Jungong, ‘Guanyu zuigao renmin fayuan xunhui fating youguan qingkuang de xinwen fabugao (关于最高人民法院巡回法庭有关情况的新闻发布稿) [Press Release by the SPC on the Circuit Tribunals]’ (SPC, 28 January 2015) <www.court.gov.cn/xunhui1/xiangqing-13539.html> accessed 26 March 2018.

68. He Fan (n 13). In fact, -para 2 of art 10 of the Interim Organic Regulation of the PRC for People’s Courts specifically stipulated that ‘People’s Courts (including branch courts or branch tribunals of the Supreme People’s Court) at all levels are a component part of the people’s governments at the same level and are subject to the leadership and supervision of the people’s government committee of the same level’: Fayuan zanxing zuzhi tiaoli (法院暂行组织条例) [Interim Organic Regulation for People’s Courts] (adopted at the Central People’s Committee Conference on 3 September 1951, issued on 4 September 1951) available at <www.npc.gov.cn/wxzl/wxzl/2000-12/10/content_4254.htm> accessed 26 March 2018.

69. Liu Zhong (n 12) 44.

70. Also called ‘Liberation War’ in China, it was a war fought between the Kuomintang (KMT) and CPC from 1945 to 1949.

71. It was officially abolished in July 1954. See He Fang (n 13). For further analysis see Fang Siyuan, ‘Zuigao renmin fayuan xunhui fating de zhidu jian’gou (最高人民法院巡回法庭的制度建构) [On Institutional Building of the Circuit Tribunals of the Supreme People’s Court]’ (2015) No 2 Falü Kexue [Science of Law], <http://article.chinalawinfo.com/ArticleFullText.aspx?ArticleId=93549> accessed 26 March 2018.

72. See discussion above at (nn 13–14).

73. Chen (n 12) 994–1000. See also 2014 CPC Decision, s I para 7.

74. Liu Zhong (n 12) 41.

75. See (n 28).

76. Fang Siyuan (n 71) fn 1. Similarly, the idea to establish cross-administrative boundary courts was officially raised by then-SPC President, Mr Xiao Yang, in 2003: Liu Zhong (n 12) 57.

77. SPC Provisions, art 2.

78. Fang Siyuan (n 71) fn 3.

79. Sun Jungong (n 67); Li Wanxiang, Interview with Xu Jiaxin (n 2).

80. There is no definition of Zhushen Faguan. In practice, such a judge may be the sole judge, trial judge, or the presiding judge in a particular case. See He Xiaorong, He Fan and Ma Yuanjie (n 1). The use of this term is confusing as it confuses the functions of a judge with that of their identity.

81. SPC Provisions, art 1.

82. Sun Jungong (n 67).

83. ibid.

84. In a status-conscious society like China, it is also important to note that all heads of the circuit tribunals were appointed from SPC judges who are already at the rank of vice minister (ie vice presidents of the SPC), a fact that has been emphasized by most media reports on the establishment of the tribunals.

85. Sun Jungong (n 67); Li Wanxiang, Interview with Xu Jiaxin (n 2).

86. SPC Provisions, art 3. As emphasised by the SPC judges, the Provisions do not use the word ‘jurisdiction’, instead, they use the term ‘to accept cases’. See He Xiaorong, He Fan and Ma Yuanjie (n 1).

87. SPC Provisions, art 3.

88. SPC Provisions, art 4.

89. SPC Provisions, art 8.

90. 2014 CPC Decision, s IV.

91. He Xiaorong, He Fan and Ma Yuanjie (n 1). However, there is nothing in the Provisions that would prevent the head or deputy heads of a tribunal doing so.

92. He Xiaorong, He Fan and Ma Yuanjie (n 1).

93. Zhou Qiang (n 3).

94. See Li Wanxiang, Interview with Xu Jiaxin (n 2).

95. Zhou Bin, ‘Zuigaofa xunhui fating fugai woguo liuda quyu (最高法巡回法庭覆盖我国6大区域) [Circuit Tribunals of the Supreme People’s Court Cover Six Greater Regions]’ (Legal Daily, 26 December 2016) <www.legaldaily.com.cn/xwzx/content/2016-12/26/content_6932278.htm?node=53628> accessed 26 March 2018.

96. See the Preamble to the SPC Provisions.

97. Sun Jungong (n 67).

98. See Li Wanxiang, Interview with Xu Jiaxin (n 2).

99. Fang Siyuan (n 71).

100. Li Meng (n 42).

101. Su Jingxiang (n 5).

102. Indeed, the SPC has now become a legitimate political centre, and potentially, a major factor in political infighting due to its policy-making functions. As such, it is in the SPC’s self-interest to focus on such functions rather than to be consumed by adjudication of individual cases. See Liu Zhong (n 12).

103. Fang Siyuan (n 71). Not surprisingly, some Chinese scholars believe that these are the principal reasons for the establishment of the circuit tribunals: Fang Le, ‘Zuigao renmin fayuan xunhui fating de zhidu gongneng (最高人民法院巡回法庭的制度功能) [Institutional Functions of the Circuit Tribunals of the Supreme People’s Court]’ (2017) No 3 Faxue Jia [Jurists] <www.jcfzw.cn/fang-le-zui-gao-ren-min-fa-yuan-xun-11233.html> assessed 26 March 2018.

104. See ‘News 1+1: Circuit Tribunals of the SPC Promote Judicial Reforms’ (n 9).

105. ibid.

106. See various contributions to Nathan Beauchamp-Mustafaga (ed), ‘Special Issue on China’s Fourth Plenum’ (Issue 22, China Brief, 20 November 2014) <https://jamestown.org/wp-content/uploads/2014/11/China_Brief_Vol_14_Issue_22_1_01.pdf?x87069> accessed 26 March 2018.

107. For detailed analysis on this point, see Chen (n 48).

108. On political efforts to separate the Party from the State in post-Mao China, see Chen (n 48) 183–186.

109. For a comprehensive analysis on these aspects, see Chen (n 48). See also Xi Jinping, ‘Zai zhongguo gongchandang dishijiu ci quan’guo daibiao dahui shang de baogao (在中国共产党第十九次全国代表大会上的报告) [Political Report delivered at the 19th CPC National Congress]’ XinhuaNet (China, 27 October 2017) <http://news.xinhuanet.com/politics/19cpcnc/2017-10/27/c_1121867529.htm> accessed 26 March 2018.

110. Xi does this by creating many CPC Leading Groups, which are headed by himself, to exercise powers that would otherwise be exercised by the State Council. See ‘Xi Jinping tian xintouxian—junmin ronghe fazhan weiyuanhui zhuren (习近平添新头衔——军民融合发展委员会主任) Xi Jinping has just acquired another title – Director of the Central Development Commission on Military-Civil Harmony’ (BBC Chinese, 22 January 2017) <www.bbc.com/zhongwen/simp/chinese-news-38710782> accessed 10 March 2018. For further analysis, see Chen (n 48).

111. Not surprisingly, some Chinese scholars see this reform as a ‘historical contribution’ to judicial reforms. See Luo Dian, ‘Xunhui fating zhidu de lishixing gongxian (巡回法庭制度的历史性贡献) [Historical Contribution Made by the Circuit Tribunal System]’ (Renmin Fayuan Bao [People’s Court Daily], 16 June 2017) <http://rmfyb.chinacourt.org/paper/html/2017-06/16/content_126680.htm> accessed 26 March 2018.

112. See (nn 13–14).