MARGARET Y.K.WOO Adjudication Supervision and Judicial Independence in the P.R.C. INTRODUCTION The role of judicial independence and the way in which judges actually decide cases are central in the understanding of any legal system.The concept is that judges should decide cases according to enacted law,and free from outside interference.China has,in re- cent years,given renewed attention to the issue of judicial independence.1 Around 1978,under the leadership of Deng Xiaoping,the P.R.C. government began a period of reform and reinstituted its judicial system,which was dismantled during the Cultural Revolution.2 The new legal system claimed to ensure for the courts freedom from in- terference in their work.The 1982 P.R.C.Constitution provided that the people's courts shall"exercise judicial power independently, in accordance with the provisions of the law..."3 The Organic Law of People's Courts similarly proclaimed a guarantee of judicial inde- pendence,4 and to protect the integrity of a judicial decision,pro- vided for the rendering of final judgments after one appeal.5 The MARGARET Y.K.Woo is Associate Professor of Law,Northeastern University School of Law.The author wishes to thank William Alford,Harold J.Berman,Hungdah Chiu,James Feinerman,David Koplow and Andrew Rainer for their insightful sug- gestions and comments on this article.If there are any errors,they are the author's. 1.For an account of the Chinese search for judicial independence in the early years,:Cohen,"The Chinese Communist Party and Judicial Independence 1949. 1959,"82Harv.L.Rev.967(1969). 2.The Cultural Revolution spanned the period of 1966-1976 and marked a time of chaos for China.Based on Mao's proposition that the state should "[d]epend on the rule of man,not the rule of law,"there was a complete destruction of the formal law enforcement apparatus in favor of a"proletarian"legal order.See Chen Shouyi, Liu Shengping and Zhao Shenjiang,"Thirty Years of Building Up of Our Legal Sys- tem,"Faxue Yanjiu (Studies in Law),No.4,1979 at 1;Shao-chuan Leng and Hungdah Chiu,Criminal Justice in Post-Mao China 17-20(1985). 3.Constitution of the People's Republic of China,ch.III,art.129(1982)[here- inafter 1982 Constitution]trans.in Laws of the P.R.C.1979-1982 (compiled by the Legislative Affairs Commission of the Standing Committee of the National People's Congress of the People's Republic of China)[hereinafter Laws of the P.R.C.1979 19821. 4.Organic Law of People's Court,ch.I,art.4,(1983)[hereinafter People's Court Law]trans.in Laws of the P.R.C.1983-1986. 5.People's Court Law,ch.I,art.12. 95 This content downloaded by the authorized user from 192.168.82.207 on Thu,15 Nov 2012 12:27:25 PM All use subject to JSTOR Terms and Conditions
MARGARET Y.K. WOO Adjudication Supervision and Judicial Independence in the P.R.C. INTRODUCTION The role of judicial independence and the way in which judges actually decide cases are central in the understanding of any legal system. The concept is that judges should decide cases according to enacted law, and free from outside interference. China has, in recent years, given renewed attention to the issue of judicial independence.' Around 1978, under the leadership of Deng Xiaoping, the P.R.C. government began a period of reform and reinstituted its judicial system, which was dismantled during the Cultural Revolution.2 The new legal system claimed to ensure for the courts freedom from interference in their work. The 1982 P.R.C. Constitution provided that the people's courts shall "exercise judicial power independently, in accordance with the provisions of the law.. . "3 The Organic Law of People's Courts similarly proclaimed a guarantee of judicial independence,4 and to protect the integrity of a judicial decision, provided for the rendering of final judgments after one appeal.5 The MARGARET Y.K. Woo is Associate Professor of Law, Northeastern University School of Law. The author wishes to thank William Alford, Harold J. Berman, Hungdah Chiu, James Feinerman, David Koplow and Andrew Rainer for their insightful suggestions and comments on this article. If there are any errors, they are the author's. 1. For an account of the Chinese search for judicial independence in the early years, see Cohen, "The Chinese Communist Party and Judicial Independence 1949- 1959," 82 Harv. L Rev. 967 (1969). 2. The Cultural Revolution spanned the period of 1966-1976 and marked a time of chaos for China. Based on Mao's proposition that the state should "[d]epend on the rule of man, not the rule of law," there was a complete destruction of the formal law enforcement apparatus in favor of a "proletarian" legal order. See Chen Shouyi, Liu Shengping and Zhao Shenjiang, "Thirty Years of Building Up of Our Legal System," Faxue Yanjiu (Studies in Law), No. 4, 1979 at 1; Shao-chuan Leng and Hungdah Chiu, Criminal Justice in Post-Mao China 17-20 (1985). 3. Constitution of the People's Republic of China, ch. III, art. 129 (1982) [hereinafter 1982 Constitution] trans. in Laws of the P.R.C. 1979 - 1982 (compiled by the Legislative Affairs Commission of the Standing Committee of the National People's Congress of the People's Republic of China) [hereinafter Laws of the P.R.C 1979- 1982]. 4. Organic Law of People's Court, ch. I, art. 4, (1983) [hereinafter People's Court Law] trans. in Laws of the P.R C. 1983-1986. 5. People's Court Law, ch. I, art. 12. 95 This content downloaded by the authorized user from 192.168.82.207 on Thu, 15 Nov 2012 12:27:25 PM All use subject to JSTOR Terms and Conditions
96 THE AMERICAN JOURNAL OF COMPARATIVE LAW [Vol.39 Chinese press publicized the asserted independence of the judiciary.6 But what did the Chinese mean when they proclaimed judicial independence?And what mechanisms have the Chinese put in place to ensure judicial independence?Further examination reveals that continuing limits exist on judicial work,both within and with- out the institutions of the legal system.Under the Chinese proce- dural codes,there is liberal institutional supervision of the Chinese judge,reflecting a distinctly Chinese concept of judicial indepen- dence.Chinese judges also face the extra-legal influence of the Chi- nese Communist Party.7 While explicit party influence on particular cases is now discouraged,s party influence on the judicial system as a whole remains,and party influence on particular cases seeps in through the windows opened by the procedural codes.9 This article examines Chinese judicial decision-making as re- flected in the Chinese procedural codes and in the concept of "su- pervision."The article focuses on one particular procedure-the procedure of adjudication supervision-which allows a liberal re- opening of final judgments.Adjudication supervision while profess- ing to ensure justice by allowing the correction of errors,places enormous institutional constraints on individual judicial work and serves to bring in external influences on the Chinese judge.Adjudi- cation supervision allows numerous actors to "supervise"judicial work and by its flexibility,could be used to undermine the validity of a formal legal system. Parts I II of this article will explore the code provisions on this review procedure and the legal actors involved.Parts III exam- ines the Chinese philosophical rationale underlying adjudication su- pervision.Finally,Part IV analyzes how,apart from the Chinese philosophical rationale,adjudication supervision actually works in 6.See e.g.,Peng Zhen,"Several Questions on the Socialist Legal System," trans.in Foreign Broadcast Information Service,Daily Report:People's Republic of China [hereinafter FBIS-CHI,November 27,1979 at L2-L3;Jiang Hua,"Correctly Use the Criminal law and the Law of Criminal Procedure to Exercise Judicial Au- thority Well,"FBIS-CHI,January 14,1980 at L11. 7.See Koguchi,"Some Observations About 'Judicial Independence'in Post- Mao China,"3 B.C.Third W.L.J.197 (1987).At one time,every judicial decision must be reviewed and approved by the Chinese Communist Party through a process called“shuji pi'an.”See supra n.2at22.→Cohen,“The Chinese Communist Party and Judicial Independence:1949-1959,"82 Harv.L.Rev.967 (1969). 8.However,there continues to be direct party interferences in specific cases and local bureaucrats abusing their positions to dictate judicial decisions.In some instances,judges were dismissed because their decisions were inconsistent with the local party or bureaucrat.Ka Changjiu,"Court Reform,"Faxue (Jurisprudence), No.1,1991at147, 9.Some Chinese scholars maintained that independent adjudication may only be guaranteed if judicial work is under the guidance of the Communist Party.See Zhang Jinqing and Xie Bongyu,"Independent Adjudication and the Guidance of the Communist Party,"Faxue Yanjiu (Studies in Law),No.2,1980 at 27-28. This content downloaded by the authorized user from 192.168.82.207 on Thu,15 Nov 2012 12:27:25 PM All use subject to JSTOR Terms and Conditions
96 THE AMERICAN JOURNAL OF COMPARATIVE LAW [Vol. 39 Chinese press publicized the asserted independence of the judiciary.6 But what did the Chinese mean when they proclaimed judicial independence? And what mechanisms have the Chinese put in place to ensure judicial independence? Further examination reveals that continuing limits exist on judicial work, both within and without the institutions of the legal system. Under the Chinese procedural codes, there is liberal institutional supervision of the Chinese judge, reflecting a distinctly Chinese concept of judicial independence. Chinese judges also face the extra-legal influence of the Chinese Communist Party.7 While explicit party influence on particular cases is now discouraged,8 party influence on the judicial system as a whole remains, and party influence on particular cases seeps in through the windows opened by the procedural codes.9 This article examines Chinese judicial decision-making as reflected in the Chinese procedural codes and in the concept of "supervision." The article focuses on one particular procedure - the procedure of adjudication supervision - which allows a liberal reopening of final judgments. Adjudication supervision while professing to ensure justice by allowing the correction of errors, places enormous institutional constraints on individual judicial work and serves to bring in external influences on the Chinese judge. Adjudication supervision allows numerous actors to "supervise" judicial work and by its flexibility, could be used to undermine the validity of a formal legal system. Parts I & II of this article will explore the code provisions on this review procedure and the legal actors involved. Parts III examines the Chinese philosophical rationale underlying adjudication supervision. Finally, Part IV analyzes how, apart from the Chinese philosophical rationale, adjudication supervision actually works in 6. See e.g., Peng Zhen, "Several Questions on the Socialist Legal System," trans. in Foreign Broadcast Information Service, Daily Report: People's Republic of C7hina [hereinafter FBIS-CHI], November 27, 1979 at L2-L3; Jiang Hua, "Correctly Use the Criminal law and the Law of Criminal Procedure to Exercise Judicial Authority Well," FBIS-CHI, January 14,1980 at Lll. 7. See Koguchi, "Some Observations About 'Judicial Independence' in PostMao China," 3 B.C. Third W. L. J. 197 (1987). At one time, every judicial decision must be reviewed and approved by the Chinese Communist Party through a process called "shuji pi'an." See supra n. 2 at 22-23; Cohen, "The Chinese Communist Party and Judicial Independence: 1949-1959," 82 Harv. L. Rev. 967 (1969). 8. However, there continues to be direct party interferences in specific cases and local bureaucrats abusing their positions to dictate judicial decisions. In some instances, judges were dismissed because their decisions were inconsistent with the local party or bureaucrat. Ka Changjiu, "Court Reform," Faxue (Jurisprudence), No. 1, 1991 at 147. 9. Some Chinese scholars maintained that independent adjudication may only be guaranteed if judicial work is under the guidance of the Communist Party. See Zhang Jinqing and Xie Bongyu, "Independent Adjudication and the Guidance of the Communist Party," Faxue Yanjiu (Studies in Law), No. 2, 1980 at 27-28. This content downloaded by the authorized user from 192.168.82.207 on Thu, 15 Nov 2012 12:27:25 PM All use subject to JSTOR Terms and Conditions
1991] ADJUDICATION SUPERVISION IN THE P.R.C. 97 China.Ultimately,this article concludes that adjudication supervi- sion exemplifies both the theory and reality of judicial independence in China-a theory that calls for independence,not of individual judges,but of the court system as a whole,and a reality that casts doubt even on this assertion of independence of the court system as a whole. What is Adjudication Supervision? Adjudication supervision ("shenpan jiandu"),or supervisory re- view,is a procedure for additional,but discretionary,reviews of final judgments.Adjudication supervision applies to both criminal and civil cases,with some notable differences.Under the 1982 Chinese law of Civil Procedure,a party to a civil lawsuit may petition the court which originally tried the case,or a court of higher instance,to re-open the judgment.10 Similarly,under the 1979 Code of Criminal Procedure,a party to a criminal case may seek adjudication supervi- sion.11 Additionally,in a criminal case,a victim or his family or any citizen (whether or not a party to the case)may also present a peti- tion to a people's court to re-open a legally effective judgment oror- der.12 Hence,in a criminal case,the right to re-open a legally effective judgment is available to anyone,not simply to a party to the action as in the civil context. A good example of adjudication supervision is the Sun case.In Sun,a faculty member of an agricultural school in Beijing,was try- ing to stop a disturbance.In the process,Sun killed Zhou,a member of the hooligan gang.The procuracy13 initiated a prosecution of Sun resulting in his conviction and a sentence of 15 years.Sun appealed with the help of a lawyer,who argued that Sun was acting in de- fense of others.On appeal,the court of second instance,the Beijing Intermediate Court,found that Sun had been acting in self-defense 10.See Law of Civil Procedure of the People's Republic of China,pt.2,ch.16, arts.177-188 (as amended and passed April 9,1991)[hereinafter Civil Procedure Lat],expanding on adjudication supervision provisions of 1982 Civil Procedure Law, pt.III,ch.14,arts.157-160.However,most adjudication supervision petitions in China involve petitions for the review of a final criminal judgment.See statistics published in "Judicial Work Report of 1988,"Law Yearbook of China 1989 at 10. 11.Criminal Procedure Law of the People's Republic of China,pt.II,ch.V,art. 148-150(1979)[hereinafter Criminal Procedure Law],trans.in Laws of the People's Republic of China 1979-1982 at 146-147. 12.Criminal Procedure Law,pt.III,ch.V,art.148.A legally effective judgment is defined to include:(1)judgments and orders which have not been appealed and for which the legally prescribed period for appeal has expired;(2)final judgments and orders;and (3)death sentences approved by the Supreme People's Court and judgments of death penalty with a two-year suspension of execution approved by a higher people's court.Criminal Procedure Law,pt.IV,ch.V,art.151. 13.In a criminal setting,the procuracy is the prosecutorial arm of the P.R.C. justice system.The people's procuracy is also responsible for "legal supervision." See 1982 Constitution,ch.III,art.129. This content downloaded by the authorized user from 192.168.82.207 on Thu,15 Nov 2012 12:27:25 PM All use subject to JSTOR Terms and Conditions
1991] ADJUDICATION SUPERVISION IN THE P.R.C. 97 China. Ultimately, this article concludes that adjudication supervision exemplifies both the theory and reality of judicial independence in China - a theory that calls for independence, not of individual judges, but of the court system as a whole, and a reality that casts doubt even on this assertion of independence of the court system as a whole. What is Adjudication Supervion? Adjudication supervision ("shenpan jiandu"), or supervisory review, is a procedure for additional, but discretionary, reviews of final judgments. Adjudication supervision applies to both criminal and civil cases, with some notable differences. Under the 1982 Chinese law of Civil Procedure, a party to a civil lawsuit may petition the court which originally tried the case, or a court of higher instance, to re-open the judgment.'0 Similarly, under the 1979 Code of Criminal Procedure, a party to a criminal case may seek adjudication supervision." Additionally, in a criminal case, a victim or his family or any citizen (whether or not a party to the case) may also present a petition to a people's court to re-open a legally effective judgment or order.'2 Hence, in a criminal case, the right to re-open a legally effective judgment is available to anyone, not simply to a party to the action as in the civil context. A good example of adjudication supervision is the Sun case. In Sun, a faculty member of an agricultural school in Beijing, was trying to stop a disturbance. In the process, Sun killed Zhou, a member of the hooligan gang. The procuracy13 initiated a prosecution of Sun resulting in his conviction and a sentence of 15 years. Sun appealed with the help of a lawyer, who argued that Sun was acting in defense of others. On appeal, the court of second instance, the Beijing Intermediate Court, found that Sun had been acting in self-defense 10. See Law of Civil Procedure of the People's Republic of China, pt. 2, ch. 16, arts. 177-188 (as amended and passed April 9, 1991) [hereinafter Civil Procedure Law], expanding on adjudication supervision provisions of 1982 Civil Procedure Law, pt. III, ch. 14, arts. 157-160. However, most adjudication supervision petitions in China involve petitions for the review of a final criminal judgment. See statistics published in "Judicial Work Report of 1988," Law Yearbook of China 1989 at 10. 11. Criminal Procedure Law of the People's Republic of China, pt. II, ch. V, art. 148-150 (1979) [hereinafter Ciminal Procedure Law], trans. in Laws of the People's Republic of China 1979-1982 at 146-147. 12. Ciminal Procedure Law, pt. III, ch. V, art. 148. A legally effective judgment is defined to include: (1) judgments and orders which have not been appealed and for which the legally prescribed period for appeal has expired; (2) final judgments and orders; and (3) death sentences approved by the Supreme People's Court and judgments of death penalty with a two-year suspension of execution approved by a higher people's court. Criminal Procedure Law, pt. IV, ch. V, art. 151. 13. In a criminal setting, the procuracy is the prosecutorial arm of the P.R.C. justice system. The people's procuracy is also responsible for "legal supervision." See 1982 Constitution, ch. III, art. 129. This content downloaded by the authorized user from 192.168.82.207 on Thu, 15 Nov 2012 12:27:25 PM All use subject to JSTOR Terms and Conditions
98 THE AMERICAN JOURNAL OF COMPARATIVE LAW [Vol.39 but determined that the force used by Sun was excessive.The court of second instance reduced the sentence to two years.Still dissatis- fied,Sun sought another review,by seeking to reopen the Interme- diate Court's legally effective judgment.The Intermediate Court agreed to reopen the case,retried it and this time,found Sun not guilty.Contrary to the rule that a decision is final after one appeal, Sun had two reviews of his conviction.14 A citizen seeking adjudication supervision may file a petition ("shensu")with the court or,in a criminal case,with either the court or the procuracy.The court or the procuracy first investigates the case and,if it finds error in the judgment,refers the case to the judicial committee of the court for discussion and decision.15 Each level of court has a judicial committee responsible for the supervi- sion of the court's work.16 If the judicial committee decides that the case needs to be reopened and retried,it will direct the court accordingly.17 If a procuracy itself discovers an error in a judgment by a court of its own level,it must also seek adjudication supervision.It must first petition the procuracy at the level above it to protest ("kangsu")to a higher level court for a reopening of the lower court judgment.18 A higher level procuracy,in discovering error in a judg- ment of a lower court,files a protest to a court of its own level and not directly with the lower court.19 Upon receiving the protest from the procuracy,the court conducts a retrial.In a criminal case,the procuracy can file protests seeking reversals of acquittals and in- creased sentences as well as reversals of convictions and reduction of sentences.20 14.The case is reported in Zhang Zhiye,"How Do China's Lawyers Work?,"26 Beijing Rev.,No.23 at 26 (June 6,1983);see also Minzhu Yu Fazhi (Democracy and Law),March 1987 at 22-23. 15.Civil Procedure Law,pt.2,ch.16,art.177;Criminal Procedure Law,pt.III, ch.V,art.149. 16.People's Court Law,ch.I,art.11.The composition of the judicial committee is further discussed infra. 17.Criminal Procedure Law,pt.III,ch.V,art.149. 18.People's Procuracy Law,ch.II,art.18 [hereinafter the People's Procuratorate Law],trans.in Laws of the P.R.C.1983-86.Note that the procuracy and the public security(the police arm)have a four-tier organization paralleling that of the court system. 19.Id.The role of the procuracy in a civil case is a much debated one.See Fang Hong,"Concerning the Role of the Procuracy in Supervising the Legality of Civil Cases,"Xiandai Faxue,(Modern Legal Studies),No.1,1988,at 24-26.However,the amended Civil Procedure Law has affirmed the role of the procuracy to intervene in a civil case to seek a re-opening of judgment. 20.In an adjudication supervision,there is no prohibition against increased pun- ishment as there is in an appeal.Hence,the defendant runs the risk of having his case heard again and again until a more severe punishment is meted out.See Woo, "The Right to a Criminal Appeal in the People's Republic of China,"14 Yale J.Int? L.118,138-40(1989). This content downloaded by the authorized user from 192.168.82.207 on Thu,15 Nov 2012 12:27:25 PM All use subject to JSTOR Terms and Conditions
98 THE AMERICAN JOURNAL OF COMPARATIVE LAW [Vol. 39 but determined that the force used by Sun was excessive. The court of second instance reduced the sentence to two years. Still dissatisfied, Sun sought another review, by seeking to reopen the Intermediate Court's legally effective judgment. The Intermediate Court agreed to reopen the case, retried it and this time, found Sun not guilty. Contrary to the rule that a decision is final after one appeal, Sun had two reviews of his conviction.'4 A citizen seeking adjudication supervision may file a petition ("shensu") with the court or, in a criminal case, with either the court or the procuracy. The court or the procuracy first investigates the case and, if it finds error in the judgment, refers the case to the judicial committee of the court for discussion and decision.'5 Each level of court has a judicial committee responsible for the supervision of the court's work.'6 If the judicial committee decides that the case needs to be reopened and retried, it will direct the court accordingly.'7 If a procuracy itself discovers an error in a judgment by a court of its own level, it must also seek adjudication supervision. It must first petition the procuracy at the level above it to protest ("kangsu") to a higher level court for a reopening of the lower court judgment.'8 A higher level procuracy, in discovering error in a judgment of a lower court, files a protest to a court of its own level and not directly with the lower court.'9 Upon receiving the protest from the procuracy, the court conducts a retrial. In a criminal case, the procuracy can file protests seeking reversals of acquittals and increased sentences as well as reversals of convictions and reduction of sentences.20 14. The case is reported in Zhang Zhiye, "How Do China's Lawyers Work?," 26 Beijing Rev., No. 23 at 26 (June 6, 1983); see also Minzhu Yu Fazhi (Democracy and Law), March 1987 at 22-23. 15. Civil Procedure Law, pt. 2, ch. 16, art. 177; Criminal Procedure Law, pt. III, ch. V, art. 149. 16. People's Court Law, ch. I, art. 11. The composition of the judicial committee is further discussed infra. 17. Criminal Procedure Law, pt. III, ch. V, art. 149. 18. People's Procuracy Law, ch. II, art. 18 [hereinafter the People's Procuratorate Law], trans. in Laws of the P.R.C. 1983-86. Note that the procuracy and the public security (the police arm) have a four-tier organization paralleling that of the court system. 19. Id. The role of the procuracy in a civil case is a much debated one. See Fang Hong, "Concerning the Role of the Procuracy in Supervising the Legality of Civil Cases," Xiandai Faxue, (Modern Legal Studies), No. 1, 1988, at 24-26. However, the amended Civil Procedure Law has affirmed the role of the procuracy to intervene in a civil case to seek a re-opening of judgment. 20. In an adjudication supervision, there is no prohibition against increased punishment as there is in an appeal. Hence, the defendant runs the risk of having his case heard again and again until a more severe punishment is meted out. See Woo, "The Right to a Criminal Appeal in the People's Republic of China," 14 Yale J. Int' L. 118, 138-40 (1989). This content downloaded by the authorized user from 192.168.82.207 on Thu, 15 Nov 2012 12:27:25 PM All use subject to JSTOR Terms and Conditions
1991] ADJUDICATION SUPERVISION IN THE P.R.C. 99 Additionally,in both the civil and criminal settings,the presi- dent of any level people's court may sua sponte review decisions of his own court and refer the case to the judicial committee for discus- sion upon discovering an error in a legally effective judgment.21 A court of higher instance may also sua sponte review lower court de- cisions and,in finding error,bring the case up for trial de novo or remand the case to the original lower court for retrial.22 Upon re- ceiving directions from a higher court,the lower court will normally retry the case without first referring the case to the lower court's judicial committee for discussion and decision.23 Regardless which court conducts the retrial,a new collegiate panel is formed for that purpose.24 The retrial will be a complete re- adjudication of the facts and law.25 If the case to be retried is a case from a court of second instance or if the case is to be retried by a court of higher instance,the judgment may not be appealed again.26 If,on the other hand,the case to be retried is a case from a court of first instance,the judgment may be again appealed.27 The procedure codes impose no limitation on the number of times a case may be reopened pursuant to an adjudication supervision. If a retrial is deemed necessary in a civil case,the court will is- sue a ruling to stay the execution of the judgment.28 In a criminal case,by contrast,the execution of the original judgment or order is not suspended during an adjudication supervision proceeding.29 Thus,the convict must serve his sentence even while the court is re- viewing his case under adjudication supervision.30 21.Civil Procedure Law,pt.2,ch.16,art.177;Criminal Procedure Law,pt.III, ch.V,art.149. 22.Civil Procedure Law,pt.2,ch.16,art.177;Criminal Procedure Law,pt.III, ch.V,art.149. 23.Ke Gehuang,"On the Reasons and Basis for Instituting A Retrial,"Zhengfa Luntan (Tribune of Political Science Law),No.3,1988 at 20. 24.Most cases of first instance in the people's courts are tried by a"collegial panel."It is composed of one judge and two people's assessors (lay people in the community).Simple civil cases,minor criminal cases and cases otherwise provided for by law may be heard by a single judge.Appealed or protested cases in the peo- ple's courts are handled by a collegial panel of judges.People's Court Law,ch.I,art. 10. 25.Xu Yichu,"On the Establishment of the Unique Chinese Criminal Procedure of Adjudication Supervision,"Faxue Yanjiu (Studies in Law),No.4,1986 at 75. 26.Civil Procedure Law,pt.2,ch.16,art.184;Criminal Procedure Law,pt.III, ch.V,art.150. 27.Civil Procedure Law,pt.2,ch.16,art.184;Criminal Procedure Law,pt.III, ch.V,art.150. 28.Civil Procedure Law,pt.2,ch.16,art.183.If the civil judgment has already been executed,the court will order a return to status quo,if possible. 29.Criminal Procedure Law,pt.III,ch.V,art.148. 30.Because the execution of a criminal judgment is not suspended during an ad- judication supervision,the mechanism of adjudication supervision cannot be effec- tively used to challenge a death sentence.There is,however,a special review procedure for death sentences.Criminal Procedure Law,ch.IV,arts.144-147. This content downloaded by the authorized user from 192.168.82.207 on Thu,15 Nov 2012 12:27:25 PM All use subject to JSTOR Terms and Conditions
1991] ADJUDICATION SUPERVISION IN THE P.R.C. 99 Additionally, in both the civil and criminal settings, the president of any level people's court may sua sponte review decisions of his own court and refer the case to the judicial committee for discussion upon discovering an error in a legally effective judgment.2' A court of higher instance may also sua sponte review lower court decisions and, in finding error, bring the case up for trial de novo or remand the case to the original lower court for retrial.22 Upon receiving directions from a higher court, the lower court will normally retry the case without first referring the case to the lower court's judicial committee for discussion and decision.23 Regardless which court conducts the retrial, a new collegiate panel is formed for that purpose.24 The retrial will be a complete readjudication of the facts and law.25 If the case to be retried is a case from a court of second instance or if the case is to be retried by a court of higher instance, the judgment may not be appealed again.26 If, on the other hand, the case to be retried is a case from a court of first instance, the judgment may be again appealed.27 The procedure codes impose no limitation on the number of times a case may be reopened pursuant to an adjudication supervision. If a retrial is deemed necessary in a civil case, the court will issue a ruling to stay the execution of the judgment.28 In a criminal case, by contrast, the execution of the original judgment or order is not suspended during an adjudication supervision proceeding.`9 Thus, the convict must serve his sentence even while the court is reviewing his case under adjudication supervision.30 21. Civil Procedure Law, pt. 2, ch. 16, art. 177; Criminal Procedure Law, pt. III, ch. V, art. 149. 22. Civil Procedure Law, pt. 2, ch. 16, art. 177; Criminal Procedure Law, pt. III, ch. V, art. 149. 23. Ke Gehuang, "On the Reasons and Basis for Instituting A Retrial," Zhengfa Luntan (Tribune of Political Science & Law), No. 3, 1988 at 20. 24. Most cases of first instance in the people's courts are tried by a "collegial panel." It is composed of one judge and two people's assessors (lay people in the community). Simple civil cases, minor criminal cases and cases otherwise provided for by law may be heard by a single judge. Appealed or protested cases in the people's courts are handled by a collegial panel of judges. People's Court Law, ch. I, art. 10. 25. Xu Yichu, "On the Establishment of the Unique Chinese Criminal Procedure of Adjudication Supervision," Faxue Yanjiu (Studies in Law), No. 4, 1986 at 75. 26. Civil Procedure Law, pt. 2, ch. 16, art. 184; Criminal Procedure Law, pt. III, ch. V, art. 150. 27. Civil Procedure Law, pt. 2, ch. 16, art. 184; Criminal Procedure Law, pt. III, ch. V, art. 150. 28. Civil Procedure Law, pt. 2, ch. 16, art. 183. If the civil judgment has already been executed, the court will order a return to status quo, if possible. 29. Criminal Procedure Law, pt. III, ch. V, art. 148. 30. Because the execution of a criminal judgment is not suspended during an adjudication supervision, the mechanism of adjudication supervision cannot be effectively used to challenge a death sentence. There is, however, a special review procedure for death sentences. Criminal Procedure Law, ch. IV, arts. 144-147. This content downloaded by the authorized user from 192.168.82.207 on Thu, 15 Nov 2012 12:27:25 PM All use subject to JSTOR Terms and Conditions