[Joint House and Senate Hearing, 114 Congress]
[From the U.S. Government Publishing Office]
ACCESS TO JUSTICE
=======================================================================
EXCERPTED
FROM THE
2015 ANNUAL REPORT
OF THE
CONGRESSIONAL-EXECUTIVE COMMISSION ON CHINA
ONE HUNDRED FOURTEENTH CONGRESS
FIRST SESSION
__________
OCTOBER 8, 2015
__________
Printed for the use of the Congressional-Executive Commission on China
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LEGISLATIVE BRANCH COMMISSIONERS
House
Senate
CHRISTOPHER H. SMITH, New Jersey, MARCO RUBIO, Florida, Cochairman
Chairman JAMES LANKFORD, Oklahoma
ROBERT PITTENGER, North Carolina TOM COTTON, Arkansas
TRENT FRANKS, Arizona STEVE DAINES, Montana
RANDY HULTGREN, Illinois BEN SASSE, Nebraska
TIMOTHY J. WALZ, Minnesota SHERROD BROWN, Ohio
MARCY KAPTUR, Ohio DIANNE FEINSTEIN, California
MICHAEL M. HONDA, California JEFF MERKLEY, Oregon
TED LIEU, California GARY PETERS, Michigan
EXECUTIVE BRANCH COMMISSIONERS
CHRISTOPHER P. LU, Department of Labor
SARAH SEWALL, Department of State
STEFAN M. SELIG, Department of Commerce
DANIEL R. RUSSEL, Department of State
TOM MALINOWSKI, Department of State
Paul B. Protic, Staff Director
Elyse B. Anderson, Deputy Staff Director
(ii)
Access to Justice
Introduction
Chinese citizens continued to turn to the legal system for
help when they were harmed by environmental hazards,\1\ unsafe
food,\2\ discrimination,\3\ and other causes.\4\ Chinese law
allows citizens to use the legal system to dispute unlawful
government acts.\5\ International human rights instruments,
such as the Universal Declaration of Human Rights and the
International Covenant on Civil and Political Rights, likewise
call for the ability of citizens to obtain effective legal
remedies when their rights are violated.\6\ During the 2015
reporting year, however, the Commission observed a persistent
gap between the Chinese government's rhetoric regarding the
importance of laws and the actual ability of citizens to use
the legal system to protect their rights.\7\ Recent judicial
reforms indicate recognition by the Chinese government that the
current system is dysfunctional,\8\ and official media has
touted that the revised PRC Administrative Litigation Law
``will make it easier for citizens to take the government to
court.'' \9\ It is too soon, however, to determine fully the
impact of these developments. Teng Biao, a Chinese lawyer,
explained that ``[t]he major problem with rule of law in
mainland China is not establishing legal provisions but rather
implementing laws.'' \10\
The Fourth Plenum and Judicial Reforms
In October 2014, the Chinese Communist Party's leaders
gathered for the Fourth Plenum of the 18th Party Congress
Central Committee and issued the Decision on Several Major
Issues in Comprehensively Advancing Governance of the Country
According to Law (Fourth Plenum Decision).\11\ The purposes of
the Fourth Plenum Decision, according to the government's June
2015 report on ``Progress in China's Human Rights in 2014,''
were ``to protect civic rights, to defend human dignity and to
put basic human rights into practice.'' \12\ The Fourth Plenum
Decision reportedly underscored President and Party General
Secretary Xi Jinping's effort to boost public confidence in the
legal system \13\ by outlining a number of structural reforms
to judicial institutions, including: \14\
Emphasizing that judges should not be removed
except for legal reasons and unless legal procedures
are followed; \15\
Creating a ``lifetime'' (zhongshen)
responsibility system whereby judges are responsible
throughout their careers for cases that they
adjudicated; \16\
Ensuring that courtroom hearings play a
decisive role in ascertaining facts and impartial
adjudication,\17\ which could entail reconsidering the
role of court ``adjudication committees'' (shenpan
weiyuanhui) that currently can instruct judges on how
to decide certain cases; \18\
Introducing a model whereby judges are
promoted from lower courts; \19\
Changing from a ``case filing review system''
(li'an shencha zhi) to a ``case filing registration
system'' (li'an dengji zhi); \20\ and
Establishing ``circuit tribunals'' (xunhui
fating) to try major administrative or civil commercial
cases involving more than one province.\21\ Two of
these tribunals reportedly heard their first cases by
May 2015.\22\
The Fourth Plenum Decision also endorsed improving the
legal aid system and expanding the scope of aid, with the
stated objective of ensuring that citizens may obtain timely
and effective legal assistance when their rights were infringed
upon.\23\ This past year, the Commission observed efforts with
respect to the provision of legal aid in at least one domestic
violence case,\24\ a development that coincided with the public
release of the draft PRC Anti-Domestic Violence Law.\25\ At
present, however, the scope of government-funded legal aid
remains limited. For example, free legal assistance is
available to criminal defendants only when the defendant is
facing life imprisonment or death \26\ or when certain
vulnerable populations like minors or people who are blind,
deaf, or mute are involved.\27\ Amendments to the laws
governing civil and administrative cases that restrict the
ability of non-lawyers to represent parties also reportedly may
cause citizens to try to resolve their grievances outside the
legal system.\28\ Such ``barefoot'' non-lawyers offer an
alternative source of assistance when litigants cannot afford
or find lawyers to take their cases.\29\
In February 2015, the Supreme People's Court (SPC) publicly
released its fourth five-year reform plan (SPC Reform
Plan),\30\ which echoed themes in the Fourth Plenum
Decision.\31\ The SPC Reform Plan called for establishing
mechanisms to prevent official interference in judicial
activities,\32\ but articles in state- and Party-run Chinese
media emphasized that the Chinese government was not adopting a
model of judicial independence based on the United States or
other Western nations.\33\ SPC President Zhou Qiang said that
courts must ``resolutely resist the influence of mistaken
Western viewpoints and ways of thinking . . . .'' \34\ The
Fourth Plenum Decision indicated the Party's continuing
interaction with the courts by calling on the Party to
``support the courts and procuratorates in exercising their
functions and authorities independently and fairly according to
the law.'' \35\ Furthermore, the Fourth Plenum Decision called
on the Party's political-legal committees to continue to
``ensure that China's Constitution and laws are implemented
correctly and uniformly.'' \36\ Reports indicate that the
committees' interference might be decreasing,\37\ but a spate
of recent resignations by judges \38\ is attributed in part to
complaints about outside interference in their work.\39\
During the reporting year, the government and Party
similarly took a hardline stance against ``Western''
constitutionalism,\40\ despite the Fourth Plenum Decision's use
of language on the importance of China's Constitution \41\ and
the Chinese government's declaration that ``Constitution Day''
would be commemorated on December 4.\42\ The ability of
citizens to invoke the Constitution as a basis for challenging
government actions remains limited.\43\ The National People's
Congress Standing Committee has exclusive power to interpret
and supervise enforcement of China's Constitution.\44\
The extent to which the Fourth Plenum Decision and SPC
Reform Plan will ultimately translate into concrete
improvements in the judicial system remains unclear. Scholars
have debated the significance of the Fourth Plenum Decision--
including what is meant by ``advancing governance of the
country according to law'' \45\--when, as noted by scholars in
a July 2015 Asia Policy roundtable, the Decision ``also
underscores the [Party's] sustained leadership over the Chinese
legal system.'' \46\ One U.S. expert on Chinese law raised
questions concerning how to reconcile the Fourth Plenum
Decision's support for the importance of the legal system with
the crackdown on freedoms of expression, assembly, and
association observed this past year.\47\
Judicial Transparency
The theme of government transparency runs throughout the
Fourth Plenum Decision.\48\ The Chinese government began
implementing the Open Government Information Regulations in
2008,\49\ but citizens have continued to face substantial
obstacles when seeking information from the government.\50\ The
SPC had likewise previously been slow to increase transparency
and did not create a national online database until 2013.\51\
[For more information on government transparency, see Section
III--Institutions of Democratic Governance.]
This past year, the judiciary emphasized mechanisms for
enhancing transparency. In March 2015, the SPC issued a white
paper on judicial transparency that called for greater access
to trials, increased use of electronic filing systems, and
expanded access to case decisions.\52\ When releasing the white
paper, He Xiaorong, office director of the SPC Judicial Reform
Leading Group, told reporters that, by the end of 2014, Chinese
courts had uploaded nearly six million court judgments to the
public database.\53\ Access to such a vast pool of cases could
help to ``develop a body of precedents to guide the legal
community and create judicial transparency and accountability
to address public concerns about the fairness of the litigation
system,'' according to a December 2014 post on the American
Chamber of Commerce in Shanghai website.\54\
The SPC released its 10th batch of ``guiding cases'' in
April 2015.\55\ In June 2015, the SPC issued rules specifying
how judges should refer to guiding cases in subsequent
cases.\56\ The rules explained that judges should respond when
parties raise guiding cases when arguing their positions to the
court,\57\ and SPC officials reportedly ``stressed the use of
referential precedent to ensure fairer judgements.'' \58\
Citizen Petitioning and Revisions to
the Administrative Litigation Law
The PRC Administrative Litigation Law (ALL),\59\ which
provides a framework for citizens to challenge government
actions in court,\60\ underwent significant revisions during
the past reporting year.\61\ Application of the law, which
initially took effect 25 years ago,\62\ was hindered by common
barriers referred to as the ``three difficulties'' (san nan):
difficulties in filing cases, trying cases, and enforcing
judgments.\63\ Following passage by the National People's
Congress Standing Committee in November 2014, revisions to the
ALL took effect on May 1, 2015.\64\ Revised provisions
included, among others:
Expanding the scope of permitted cases by
eliminating the ``specific administrative act''
requirement in the previous version of the ALL; \65\
Listing 12 areas for which legal proceedings
may be launched against the government, such as alleged
violations of agreements on land and housing
compensation, disputes over administrative detention,
and abuse of administrative power; \66\ and
Requiring that a representative of the
relevant administrative agency appear in court.\67\
Announcement of the amendments was followed by an April
2015 SPC interpretation that provided additional guidance on
issues such as procedures for filing cases and examples of
litigation demands that meet the legal standard.\68\ The
Commission has not observed statistics establishing whether
these recent reforms have begun to address long-standing
obstacles to administrative cases.
Chinese official media expressed hope that a byproduct of
the ALL revisions would be to increasingly funnel citizen
complaints away from the petitioning (xinfang) system--through
which individuals with grievances seek redress from government
officials \69\--and toward the courts.\70\ According to a
November 2014 media report, more than 4 million petitions
involving administrative disputes have been filed annually.\71\
Wang Cailiang, a lawyer and deputy director of the All China
Lawyers Association Administrative Law Committee, told the
media, ``With the [ALL] amendment, many more people would see
the courts as an avenue to seek justice, instead of going to
Beijing hoping to talk to officials.'' \72\
The basic legal framework for the petitioning system--the
2005 Regulations on Letters and Visits (2005 Regulations)--
remained unchanged during the 2015 reporting year.\73\ The
Party and government continued to discuss proposals that were
addressed during the 2014 reporting year,\74\ including with
respect to channeling law and litigation-related petitions
through legal channels \75\ and increasing the use of online
petitioning.\76\ In May 2015, the Ministry of Justice issued
the Opinion Regarding Further Strengthening Law- and
Litigation-Related Petition Work and the Measures on Judicial
and Administrative Agencies To Conclude Petitioning
Matters.\77\ Also in May 2015, the State Bureau for Letters and
Visits announced plans to consider drafting a petitioning law
to improve the 2005 Regulations.\78\
Harassment and Abuse of Human Rights
and Public Interest Lawyers
During the 2015 reporting year, the Chinese government used
criminal investigations and charges against citizens who
engaged in activities that allegedly threatened the existing
political system.\79\ Lawyers who represented people seeking to
safeguard their rights \80\ also faced reprisals.\81\ In
December 2014, for example, hundreds of lawyers signed a letter
protesting the detention of lawyer Zhang Keke after he openly
invoked in court the rights to freedom of speech and religion
provided for in China's Constitution.\82\ In May 2015, the
government charged public interest lawyer Pu Zhiqiang with
``inciting ethnic hatred'' \83\ and ``picking quarrels and
provoking trouble'' \84\ related to comments from his microblog
accounts.\85\ Pu was among the 14 Chinese civil rights
advocates profiled in a 2005 issue of the Hong Kong-based Asia
Weekly.\86\ According to the Economist, ``All of the activists
pictured on the magazine's cover have since been imprisoned,
detained, beaten or threatened, except for one lawyer who had
already fled the country into exile in Canada.'' \87\
Other cases of concern during the 2015 reporting year
included:
Xia Lin. Public security officers in Beijing
municipality took lawyer Xia Lin into custody in
November 2014 and subsequently criminally detained him
on suspicion of ``fraud.'' \88\ Chinese Human Rights
Defenders raised concerns that Xia's ongoing detention
may be retaliation for representing Pu Zhiqiang and Guo
Yushan, founder of the NGO Transition Institute.\89\
Tang Jingling. In May 2014, public security
officials in Baiyun district, Guangzhou city, Guangdong
province, took human rights lawyer Tang Jingling from
his home and later criminally detained him on suspicion
of ``picking quarrels and provoking trouble.'' \90\
Authorities arrested Tang on the charge of ``inciting
subversion of state power.'' \91\ The trial of Tang and
two other rights advocates concluded in July 2015,\92\
but authorities had not announced a verdict as of
September 2015. Tang gained prominence as a rights
lawyer working on cases related to land seizures and
corruption.\93\ His 2014 detention reportedly was
linked to a larger crackdown around the 25th
anniversary of the violent suppression of the 1989
Tiananmen protests.\94\
Yu Wensheng. In October 2014, authorities
criminally detained Yu Wensheng, a well-known human
rights lawyer, on suspicion of ``picking quarrels and
provoking trouble.'' \95\ Reports suggested that Yu's
detention was linked to his efforts to meet with a
client whom authorities detained for his support of the
2014 pro-democracy protests in Hong Kong.\96\
Authorities released Yu in January 2015,\97\ but his
wife issued a statement in June 2015 reporting that
domestic security officials had been harassing Yu and
his family at their home.\98\
Qu Zhenhong. In May 2014, public security
officials in Beijing took into custody lawyer Qu
Zhenhong, the niece and defense counsel for Pu
Zhiqiang, on suspicion of ``illegally gathering
citizens' information.'' \99\ Following her formal
arrest, authorities released Qu on bail in May
2015.\100\
Despite the personal risks underscored by the cases
described above, lawyers continued to provide advice to
citizens who sought to access the legal system during this
reporting year in cases that involve issues such as religious
freedom,\101\ opposition to forced eviction,\102\ and freedom
of speech and association.\103\ The mainland China-based China
Human Rights Lawyers Group, members of which provide legal
services to citizens who have been detained for exercising
their civil rights,\104\ marked its one-year anniversary in
September 2014 with 225 participating lawyers.\105\
july 2015 crackdown on rights lawyers and advocates
Beginning on July 9, 2015, Chinese authorities took into
custody more than 200 lawyers and rights advocates within a 48-
hour time period in what appeared to be a nationwide,
coordinated crackdown.\106\ As of September 1, 2015,
authorities from 24 provinces and provincial-level
municipalities had summoned for questioning, harassed,
prevented from leaving China, or had taken into custody at
least 300 lawyers, law firm staff, rights advocates, and some
of their family members; 23 remained in detention or were being
held under `` `residential surveillance' in unknown
locations,'' according to Chinese Human Rights Defenders.\107\
The crackdown received widespread condemnation from foreign
governments,\108\ international non-governmental organizations
and bar associations,\109\ and scholars.\110\ In a letter to
Chinese President and Communist Party General Secretary Xi
Jinping that urged the immediate release of all of the detained
individuals in the crackdown, the New York City Bar Association
noted, ``Chinese law and international standards protect the
rights of lawyers in China both to practice their profession
and to carry out their professional duties to clients free of
government interference. These detentions violate those
standards and undermine the rule of law.'' \111\ [For
information on some of the detained lawyers' cases, see Section
I--Findings--Access to Justice.]
Notes to Section III--Access to Justice
\1\ ``Landmark Case on Lead Poisoning in Children Begins in
China,'' Reuters, reprinted in Guardian, 12 June 15; Alexandra Harney,
``Lead Poisoning Lawsuit Tests China's Resolve Over Pollution,''
Reuters, reprinted in The Age, 6 May 15; ``Wuhan Residents' Pollution
Case Filed Against Guodingshan Garbage Incinerator Plant Seeking 7 Yuan
Compensation'' [Wuhan jumin gao guodingshan laji fenshao chang wuran
huo li'an, suopei 7 yuan], The Paper, 18 April 15; ``5 Lanzhou
Residents Suing `Lanzhou Veolia' Are Finally Able To File Case''
[Lanzhou 5 shimin su ``yang shuiwu'' zhong huo li'an], Legal Daily, 26
February 15. For other examples of citizens attempting to use the legal
system to address environmental concerns, see Dominique Patton,
``Chinese Citizens Sue Government Over Transparency on Monsanto
Herbicide,'' Reuters, 8 April 15; ``Court Hearing China's Landmark NGO
Environmental Lawsuit,'' China Daily, 15 May 15.
\2\ Zheng Caixiong, ``Half of Poisoned Food Cases Involved Pork,''
China Daily, 10 July 15. Under the revised Food Safety Law, violators
are liable for compensation when they cause harm to consumers. National
People's Congress, PRC Food Safety Law [Zhonghua renmin gongheguo
shipin anquan fa], passed 28 February 09, amended 24 April 15,
effective 1 October 15, arts. 126, 147, 148.
\3\ China Labour Bulletin, ``Plaintiff Awarded 2,000 Yuan by Court
in Hangzhou Gender Discrimination Case,'' 13 November 14; China Labour
Bulletin, ``Plaintiff Obtains 30,000 Yuan in China's First Gender
Discrimination Lawsuit,'' 9 January 14.
\4\ Supreme People's Court, Supreme People's Court Work Report
[Zuigao renmin fayuan gongzuo baogao], 12 March 15, 39. See also Susan
Finder, ``Supreme People's Court President Says Court Reforms in `Deep
Water Area,' '' Supreme People's Court Monitor (blog), 15 March 15.
\5\ PRC Administrative Litigation Law [Zhonghua renmin gongheguo
xingzheng susong fa], passed 4 April 89, amended 1 November 14,
effective 1 May 15, art. 11; Supreme People's Court Interpretation
Regarding Several Questions on the Application of the PRC
Administrative Litigation Law [Zuigao renmin fayuan guanyu shiyong
``zhonghua renmin gongheguo xingzheng susong fa'' ruogan wenti de
jieshi], issued 20 April 15, effective 1 May 15, art. 1. See also Kevin
J. O'Brien and Li Lianjiang, ``Suing the State: Administrative
Litigation in Rural China,'' China Journal, No. 51 (January 2004).
\6\ Universal Declaration of Human Rights, adopted and proclaimed
by UN General Assembly resolution 217A (III) of 10 December 48, art. 8;
International Covenant on Civil and Political Rights (ICCPR), adopted
by UN General Assembly resolution 2200A (XXI) of 16 December 66, entry
into force 23 March 76, art. 2. China signed the ICCPR in 1998 but has
not yet ratified it. ``Over One Hundred Lawyers and Citizens Urge
National People's Congress To Ratify International Conventions on Human
Rights and Enact Press Laws'' [Yu bai lushi ji gongmin yu renda pizhun
guoji gongyue baozhang renquan ji banbu xinwen fa], Radio Free Asia, 10
March 15.
\7\ Rachel Lu, ``China's President Raises Eyebrows With Sharp
Rhetoric on Rule of Law,'' Foreign Policy, TeaLeafNation (blog), 3
February 15; Stanley Lubman, ``Chinese Rule of Law: The Rhetoric and
the Reality,'' Wall Street Journal, China Real Time Report (blog), 4
April 11.
\8\ Susan Finder, ``China's Master Plan for Remaking Its Courts,''
The Diplomat, 26 March 15.
\9\ Zhou Yu, ``Newly Amended Law Empowers Private Citizens To Sue
Government,'' Global Times, 6 April 15. See also ``China Adopts
Amendment to Administrative Procedure Law,'' Xinhua, 1 November 14;
``Amendment to Administrative Procedure Law Hailed in China,'' Xinhua,
24 December 13.
\10\ ``Experts Pessimistic on CCP Fourth Plenum Proposals on Ruling
the Country According to Law'' [Zhuanjia bu kanhao zhonggong si zhong
quanhui tichu de yifa zhiguo], Radio Free Asia, 28 October 14.
\11\ Chinese Communist Party Central Committee, Decision on Several
Major Issues in Comprehensively Advancing Governance of the Country
According to Law [Zhonggong zhongyang guanyu quanmian tuijin yifa
zhiguo ruogan zhongda wenti de jueding], issued 23 October 14. Various
government agencies have issued follow-on documents. See, e.g., Supreme
People's Procuratorate, Opinion Concerning Implementation of the
``Chinese Communist Party Central Committee, Decision on Several Major
Issues in Comprehensively Advancing Governance of the Country According
to Law'' [Zuigao renmin jianchayuan guanyu guanche luoshi ``zhonggong
zhongyang guanyu quanmian tuijin yifa zhiguo ruogan zhongda wenti de
jueding'' de yijian], reprinted in Procuratorial Daily, 5 February 15;
Supreme People's Court, Opinion Concerning Comprehensively Deepening
People's Courts' Reform [Zuigao renmin fayuan guanyu quanmian shenhua
renmin fayuan gaige de yijian], issued 26 February 15.
\12\ State Council Information Office, ``Progress in China's Human
Rights in 2014,'' reprinted in Xinhua, 8 June 15.
\13\ ``Xi Stresses Boosting Public Confidence in Judicial System,''
Xinhua, 25 March 15; Luo Shuzhen, ``Have Strength To Reform and
Innovate; Continue To Improve Judicial Credibility, Allow the People in
Each Judicial Case To Have the Feeling of Fair Justice'' [Yongyu gaige
chuangxin buduan tigao sifa gongxinli rang renmin qunzhong zai mei yi
ge sifa tiaojian zhong dou ganshou dao gongping zhengyi], China Court
Net, 8 May 15.
\14\ For additional judicial reforms raised in the Fourth Plenum
Decision, see Chinese Communist Party Central Committee, Decision on
Several Major Issues in Comprehensively Advancing Governance of the
Country According to Law [Zhonggong zhongyang guanyu quanmian tuijin
yifa zhiguo ruogan zhongda wenti de jueding], issued 23 October 14,
sec. 4 (``Guarantee Judicial Fairness, Raise Judicial Credibility'').
The Fourth Plenum Decision did not propose increased centralization of
court finances; instead, only limited local experimentation is
underway. Wang Guibin, ``Shanghai Legal System Reform: Legal Inspection
of Budget by Municipal Finance Bureau Administration'' [Shanghai sifa
tizhi gaige: fajian yusuan you shi caizheng ju zhi guan], Beijing News,
19 January 15; Supreme People's Court, ``Shanghai Deploys Pilot Program
To Comprehensively Advance Legal System Reforms'' [Shanghai bushu
quanmian tuijin sifa tizhi gaige shidian gongzuo], 24 April 15; Carl
Minzner, ``Legal Reform in the Xi Jinping Era,'' Asia Policy, No. 20
(July 2015), 6-7. Professor Donald Clarke noted that the centralization
up to the provincial level of court finances and personnel appointments
``is popular among [Chinese] legal academics but controversial among
judges.'' Donald Clarke, ``The Fourth Plenum's `Decision': My Take,''
Chinese Law Prof Blog, 29 October 14. The centralization of court
finances was reportedly considered following the Third Plenum of the
18th Party Congress. See John Wagner Givens, Jamestown Foundation,
``Fleshing Out the Third Plenum: The Direction of China's Legal
Reform,'' China Brief, Vol. 14, No. 6, 21 March 14, 10.
\15\ Chinese Communist Party Central Committee, Decision on Several
Major Issues in Comprehensively Advancing Governance of the Country
According to Law [Zhonggong zhongyang guanyu quanmian tuijin yifa
zhiguo ruogan zhongda wenti de jueding], issued 23 October 14, sec.
4(1.3).
\16\ Ibid., sec. 4(3.3).
\17\ Ibid., sec. 4(3.2).
\18\ Susan Finder, ``Where Is the Supreme People's Court Headed
With Judicial Committee Reform?'' Supreme People's Court Monitor
(blog), 21 December 14. For more information regarding the adjudication
committee system and calls for its reform, see Zhu Lei, ``Committee
Member Shi Jie's Proposal: Further Reform the System of Adjudication
Committees'' [Shi jie weiyuan jianyi: jinyibu gaige shenpan weiyuanhui
zhidu], Legal Daily, 6 March 15; Procedural Law Research Institute,
China University of Political Science and Law, ``Consensus and
Disagreement: Concerning Reform of the Court Adjudication Committee
System'' [Gongshi yu fenqi: guanyu shenpan weiyuanhui zhidu gaige], 5
May 15; ``Chen Ruihua: Mistakes in Justice--Comments on Court
Adjudication Committee System'' [Chen ruihua: zhengyi de wuqu--ping
fayuan shenpan weiyuanhui zhidu], Ai Sixiang, 11 October 11; Xin Frank
He, ``China and Its Adjudication Committees,'' East Asia Forum, 3
December 11.
\19\ Chinese Communist Party Central Committee, Decision on Several
Major Issues in Comprehensively Advancing Governance of the Country
According to Law [Zhonggong zhongyang guanyu quanmian tuijin yifa
zhiguo ruogan zhongda wenti de jueding], issued 23 October 14, sec.
6(1.3).
\20\ Ibid., sec. 4(2.4). The Supreme People's Court subsequently
issued provisions in April 2015. Zhang Ziyang, ``Supreme People's Court
Issues `Provisions on Several Issues Regarding Case Registration and
Filing' '' [Zuigao renmin fayuan gongbu ``guanyu renmin fayuan dengji
li'an ruogan wenti de guiding''], Xinhua, reprinted in China News Net,
16 April 15; Susan Finder, ``New Docketing Procedures Come to the
Chinese Courts,'' Supreme People's Court Monitor (blog), 18 June 15.
\21\ Chinese Communist Party Central Committee, Decision on Several
Major Issues in Comprehensively Advancing Governance of the Country
According to Law [Zhonggong zhongyang guanyu quanmian tuijin yifa
zhiguo ruogan zhongda wenti de jueding], issued 23 October 14, sec.
4(2.3); Shannon Tiezzi, ``4 Things We Learned From China's 4th
Plenum,'' The Diplomat, 23 October 14.
\22\ ``Gavel Falls on Supreme People's Court First Circuit Court's
First Case'' [Zuigao renmin fayuan diyi xunhui fating shou an luochui],
People's Court Daily, reprinted in Xinhua, 5 May 15; ``Supreme People's
Court Second Circuit Court Hears First Case in Shenyang'' [Zuigaofa
di'er xunhui fating zai shenyang jin shen diyi an], China News Net,
reprinted in People's Daily, 10 March 15.
\23\ Chinese Communist Party Central Committee, Decision on Several
Major Issues in Comprehensively Advancing Governance of the Country
According to Law [Zhonggong zhongyang guanyu quanmian tuijin yifa
zhiguo ruogan zhongda wenti de jueding], issued 23 October 14, sec.
5(3).
\24\ See, e.g., ``Bozhou Establishes First Domestic Violence
Shelter, Women Injured by Domestic Violence Can Receive Legal Aid''
[Bozhou chengli shoujia fan jiabao bihusuo; jiabao shouhai funu ke huo
de falu yuanzhu], Bozhou Daily, reprinted in Hefei Hotline, 5 May 15.
\25\ State Council Legislative Affairs Office, PRC Anti-Domestic
Violence Law (Draft) (Draft for Comment) [Zhonghua renmin gongheguo fan
jiating baoli fa (cao'an) (zhengqiu yijian gao)], 25 November 14; Simon
Denyer, ``Battered Women in China Could Finally Get a Measure of Legal
Protection,'' Washington Post, 6 March 15; ``China's Draft Domestic
Violence Law `Largely Cosmetic': Feminists,'' Radio Free Asia, 30 July
15; Liu Rong, ``Standing Committee of the National People's Congress
Today Convened Its 16th Meeting, Anti-Domestic Violence Law Is Publicly
Revealed'' [Quanguo renda changweihui jin zhaokai 16 ci hui fan jiabao
fa chu liangxiang], People's Daily, reprinted in National People's
Congress News Net, 24 August 15. For a report on how ordinary Chinese
view domestic violence, see ``Heard in the Hutong: How Chinese View
Domestic Violence,'' Wall Street Journal, China Real Time Report
(blog), 8 May 15.
\26\ PRC Criminal Procedure Law [Zhonghua renmin gongheguo xingshi
susong fa], passed 1 July 79, amended 17 March 96, 14 March 12,
effective 1 January 13, art. 34. See also Dui Hua Foundation, ``China's
New Criminal Procedure Law: Death Penalty Procedures,'' Dui Hua Human
Rights Journal, 3 April 12.
\27\ PRC Criminal Procedure Law [Zhonghua renmin gongheguo xingshi
susong fa], passed 1 July 79, amended 17 March 96, 14 March 12,
effective 1 January 13, arts. 34, 266. See also ``New Issues and
Countermeasures for Criminal Law Legal Aid System Following Revisions''
[Xingshi falu yuanzhu zhidu xiuding hou de xin wenti ji duice], China
Court Net, reprinted in China Legal Aid Net, 13 May 14. For an example
of a pro bono legal aid program see `` `Assistance Plan for the
Wronged' Starting on Friday'' [``Mengyuanzhe yuanzhu jihua'' ben zhouwu
qidong], Beijing Shangquan Law Firm (blog), 20 May 14.
\28\ Aaron Halegua, ``China's Restrictions on Barefoot Lawyers
Could Backfire,'' South China Morning Post, 29 March 15.
\29\ Ibid.
\30\ Supreme People's Court, Opinion on Comprehensively Deepening
Reform of the People's Courts--Fourth Five-Year Outline for Reform of
the People's Courts (2014-2018) [Zuigao renmin fayuan guanyu quanmian
shenhua renmin fayuan gaige de yijian--renmin fayuan disi ge wu nian
gaige gangyao (2014-2018)], 4 February 15; Xu Juan, ``Supreme People's
Court Releases Post-Revision `Fourth Five-Year Reform Plan' ''
[Zuigaofa fabu xiuding hou de ``si wu gaige gangyao''], People's Daily,
27 February 15. The Ministry of Public Security, Supreme People's
Procuratorate, and the Ministry of Justice also issued reform plans.
``Comprehensively Deepening Public Security Reform Includes
Cancellation of Temporary Residency Permit System Among 15 Prominent
Highlights'' [Quanmian shenhua gong'an gaige han'gai quxiao zanzhuzheng
zhidu deng 15 ge tuchu liangdian], People's Daily, reprinted in Legal
Daily, 16 February 15; ``Opinion Concerning Deepening Procuratorial
Reforms (2013-2017 Work Plan) (2015 Revised Edition)'' [Guanyu shenhua
jiancha gaige de yijian (2013-2017 nian gongzuo guihua) (2015 nian
xiudingban)], Procuratorial Daily, 26 February 15; ``Outline of the
Procuratorate Reform Plan,'' translated in China Law Translate (blog),
27 February 15; Ministry of Justice, ``Ministry of Justice: Fully Exert
Judicial and Administrative Offices' Functional Roles, Earnestly
Complete Comprehensive Advancements Towards Rule of Law in All Work''
[Sifabu: chongfen fahui sifa xingzheng jiguan zhineng zuoyong, renzhen
zuo hao quanmian tuijin yifa zhiguo gexiang gongzuo], 17 March 15.
\31\ See, e.g., Supreme People's Court, Opinion on Comprehensively
Deepening Reform of the People's Courts--Fourth Five-Year Outline for
Reform of the People's Courts (2014-2018) [Zuigao renmin fayuan guanyu
quanmian shenhua renmin fayuan gaige de yijian--renmin fayuan disi ge
wu nian gaige gangyao (2014-2018)], 4 February 15, sec. 3(3)17; Chinese
Communist Party Central Committee, Decision on Several Major Issues in
Comprehensively Advancing Governance of the Country According to Law
[Zhonggong zhongyang guanyu quanmian tuijin yifa zhiguo ruogan zhongda
wenti de jueding], issued 23 October 14.
\32\ Supreme People's Court, Opinion on Comprehensively Deepening
Reform of the People's Courts--Fourth Five-Year Outline for Reform of
the People's Courts (2014-2018) [Zuigao renmin fayuan guanyu quanmian
shenhua renmin fayuan gaige de yijian--renmin fayuan disi ge wu nian
gaige gangyao (2014-2018)], 4 February 15, para. 55. See also ``China
Regulates Against Officials' Judicial Meddling,'' Xinhua, 30 March 15;
Xing Shiwei, ``Leading Cadres' Lawbreaking and Judicial Interference
Can Lead to Criminal Responsibility'' [Lingdao ganbu weifa ganyu sifa
ke zhui xing ze], Beijing News, 31 March 15.
\33\ Zhang Chunxian, ``Zhang Chunxian: Comprehensively Advance
Ruling Xinjiang According to Law'' [Zhang chunxian: quanmian tuijin
yifa zhi jiang], People's Daily, 7 January 15; Liu Ruifu, ``The
Fundamental Differences Between China's Independent, Impartial Justice
and Western Countries' `Judicial Independence' '' [Woguo duli gongzheng
sifa yu xifang guojia ``sifa duli'' de genben qubie], Seeking Truth,
reprinted in Xinhua, 26 December 14. See also Qian Gang, ``Who Gave
`Judicial Independence' a Death Sentence?'' China Media Project, 14
January 15; Sui-Lee Wee, ``China's Top Court Says No to West's Model of
Judicial Independence,'' Reuters, 26 February 15.
\34\ Wen Yaqiong, ``Supreme People's Court: Distinguish Clearly
Between Western `Judicial Independence' and `Separation of Powers' ''
[Zuigaofa: huaqing yu xifang ``sifa duli'' ``san quan dingli,''
jiexian], China Internet Information Center, 25 February 15; Josh Chin,
``Don't Call It Western, China's Top Court Unveils Vision for Reform,''
Wall Street Journal, China Real Time Report (blog), 26 February 15.
\35\ Chinese Communist Party Central Committee, Decision on Several
Major Issues in Comprehensively Advancing Governance of the Country
According to Law [Zhonggong zhongyang guanyu quanmian tuijin yifa
zhiguo ruogan zhongda wenti de jueding], issued 23 October 14, sec.
4(1).
\36\ Ibid., sec.7(1).
\37\ ``Political-Legal Committees Carry Out 11 Reforms This Year:
Leaders' Interference in Judicial Process Will Be Recorded''
[Zhengfawei jinnian jinxing 11 xiang gaige: lingdao ganyu sifa yao
jilu], Xinhua, reprinted in Sina, 22 January 15; Qiu Rui, ``Mainland
Political-Legal Committees Show Signs of Reform'' [Dalu zhengfawei
xianlu gaige jixiang], Phoenix Weekly, 19 January 15; Keith Zhai,
``Communist Party Committees Are Meddling Less in Courtrooms: Judges,''
South China Morning Post, 12 December 13; Song Shijing and Li
Xiangrong, ``Politics and Law Committee Reform Accelerates, Advocating
Rule of Law Thinking and Non-Intervention in Specific Cases''
[Zhengfawei gaige jiasu, changdao fazhi siwei bu jieru juti anjian],
Beijing News, reprinted in People's Daily, 23 October 14. For a report
on opposing views, see ``China's Judicial Reforms Won't Shake Party
Hold on Courts: Experts,'' Radio Free Asia, 31 March 15.
\38\ Ren Zhongyuan and Huang Ziyi, ``Shortage of Judges, Court
Panic: Things Are Changing'' [Faguan huang, fayuan huang: shiqing zheng
zai qi bianhua], Southern Weekend, 17 April 15; Wu Lina, ``Loss of
Judges Serious, Can Salary Alone Get Modern `Judge Bao' To Stay?''
[Faguan liushi yanzhong dandu xinchou nengfou liuzhu xiandai ``bao
gong''], Xinhua, reprinted in China Court Network, 15 April 15.
\39\ Tan Mintao, ``Judicial Reforms Are Coming, Why Do Judges Still
Want To Resign? '' [Sifa gaige lai le, faguan weihe hai yao cizhi?],
Consensus Net, 16 April 15; Stanley Lubman, ``China's Exodus of
Judges,'' Wall Street Journal, China Real Time Report (blog), 4 May 15.
See also ``Legal Window: Resignations of Chinese Judges Reflect Deep
Problems'' [Falu chuangkou: zhongguo faguan cizhi zheshe shengce
wenti], Voice of America, 5 June 15.
\40\ ``People's Daily: Blindly Following Western So-Called
`Constitutional Government' Is Nothing More Than Cutting Feet To Fit
the Shoes'' [Renmin ribao: mangmu gen xifang suowei ``xianzheng'' pao
wuyi xuezushilu], People's Daily, reprinted in China News, 5 February
15; Minxin Pei, ``China's War on Western Values,'' Project Syndicate,
10 February 15. See also Jacques deLisle, ``The Rule of Law with Xi-Era
Characteristics: Law for Economic Reform, Anticorruption, and Illiberal
Politics,'' Asia Policy, No. 20 (July 2015), 28. For a contrasting view
on recent discussions of constitutionalism, see Cheng Li, ``Fourth
Plenum Has Opened Up Discourse on Constitutionalism, Governance,''
China's Transition, Bloomberg Brief, October 2014, 8.
\41\ Chinese Communist Party Central Committee, Decision on Several
Major Issues in Comprehensively Advancing Governance of the Country
According to Law [Zhonggong zhongyang guanyu quanmian tuijin yifa
zhiguo ruogan zhongda wenti de jueding], issued 23 October 14, sec. 2.
\42\ Guo Junkui, `` `National Constitution Day' Strengthens the
Constitution's Supreme Idea'' [``Guojia xianfa ri'' qianghua xianfa
zhishang de linian], People's Daily, 4 December 14; State Council
Information Office, ``Progress in China's Human Rights in 2014,''
reprinted in Xinhua, 8 June 15, sec. 3(1). See also ``On China's First
Constitution Day, Distance From Constitutional Rule Remains Great''
[Zhongguo shou ge xianfa ri juli xingzheng reng yaoyuan], Radio Free
Asia, 4 December 14.
\43\ ``China's Constitution `Useless' Without Enforcement:
Lawyers,'' Radio Free Asia, 4 December 14; Otto Malmgren, ``Article 37:
The Right to Liberty of Person Under the Chinese Constitution,'' China-
EU Law Journal, Vol. 2, No. 1-2 (September 2013), 42-43; Jerome A.
Cohen, ``A Constitutional Court for China? Taiwan's Example,'' US-Asia
Law Institute, New York University School of Law, 28 October 09. See
also Joanna Chiu, ``China's Constitutional Crisis,'' Atlantic, 3
September 13.
\44\ ``NPC's Power of Supervision,'' Xinhua, reprinted in China
Daily, 3 March 15; Keith J. Hand, ``An Assessment of Socialist
Constitutional Supervision Models and Prospects for a Constitutional
Supervision Committee in China: The Constitution as Commander?'' Social
Science Research Network, 29 June 15, revised 25 July 15, last visited
3 August 15, 1. See also Gui Tiantian, ``Former Supreme People's Court
President Proposes Adding Constitutional Committee to the National
People's Congress'' [Zuigao fayuan yuan yuanzhang jianyi zai quanguo
renda zengshe xianfa weiyuanhui], Beijing Youth Daily, reprinted in
People's Daily, 8 November 14. China does not have a constitutional
court or specialized committee within the National People's Congress
for examining constitutional issues.
\45\ Chinese Communist Party Central Committee, Decision on Several
Major Issues in Comprehensively Advancing Governance of the Country
According to Law [Zhonggong zhongyang guanyu quanmian tuijin yifa
zhiguo ruogan zhongda wenti de jueding], issued 23 October 14. See,
e.g., Jerome A. Cohen, ``China's Socialist Rule of Law Still Offers
Real Hope of Improvements to Legal System,'' New York University School
of Law, US-Asia Law Institute, 5 November 14; Elizabeth C. Economy,
``Is China Committed to Rule of Law?'' Council on Foreign Relations, 29
October 14; ``YCW Conversation--Legal Reform in China,'' Young China
Watchers, 28 April 15.
\46\ ``Roundtable: The Future of `Rule According to Law' in
China,'' Asia Policy, No. 20 (July 2015), 3. Participants in the
roundtable were Carl Minzner, Donald Clarke, Ling Li, Jacques deLisle,
Kjeld Erik Brog