《中国宪法学 Chinese Constitutional Law》课程教学资源（学术文献）adjudication supervision and judicial independence in china

100 THE AMERICAN JOURNAL OF COMPARATIVE LAW [Vol.39 Under the Criminal Procedure Law,there is no codified restric- tion on the time or the grounds for the reopening of a legally effec- tive judgment under adjudication supervision.The sole criterion is that the original judgment must have contained "some definite er- ror."31 The same was true under the Civil Procedure Law until its amendment in 1991,which attempts to limit reopenings of civil cases to circumstances of new evidence,insufficient evidence,erroneous application of law,prejudicial violations of law,and judicial miscon- duct.32 Although the asserted policy is that adjudication supervision should not be used to seek a change in the judgment to reflect a change in the law or policy or for complaints that the punishment was too lenient,33 adjudication supervision has in fact been used to reverse judgments after a policy change as well as to increase punishments.34 Adjudication supervision in China is unique in a number of ways.Although the procedural codes of legal systems provide for the reopening of a case on the grounds of new circumstances,35 the P.R.C.adjudication supervision is unusual in allowing the reopening of a case at any time based solely on the later discovery of "error," though there has been no change in the circumstances of the case. Adjudication supervision is also distinguishable from an appeal, the review procedure most common in legal systems.Most signifi- cantly,adjudication supervision is a mechanism that can be started and carried out by officials and judicial institutions.In an appeal, only parties to the action can seek a review of a court decision.In an adjudication supervision,a court president,a Party or govern- 31.Criminal Procedure Law,pt.III,ch.V,art.149.The law does not,however, define what "errors"warrant retrial.Ke Gehuang,"On Reasons and Basis for Insti- tuting a Retrial,"Zhengfa Luntan (Tribute of Political Science Law),No.3,1988 at 15-16.According to some commentators,only an incorrect determination of the facts at the time of judgment can serve as the basis for the reopening.As to error in the application of law,such errors may include the unlawful imposition of death sen- tence on a minor,or a judge's improper refusal to withdraw from a case,or a trial unlawfully closed to the public,or the deprivation of a defendant's right to defense. Id.;see also Shendong Renmin Publishing,Zhonghua Renmin Gonghe Guo Xingshi Susong Fa Jianming Jiaocheng 323 (Teaching Material for the P.R.C.Criminal Pro- cedure)(1987)[hereinafter Zhonghua Renmin Gonghe Guo Xingshi Susong Fa Ji- anming JiaocheJ. 32.Compare Civil Procedure Law(1982 trial implementation),pt.III,ch.14,art 157,with Civil Procedure Law (as amended and passed April 9,1991),pt.2,ch.16, art.179.Because this provision was just adopted,it remains to be seen how well these categories will operate to limit re-openings of civil cases. 33.Id.at17-18. 34.See discussion of this point in Section IV,infra. 35.See e.g.,in the U.S.,Rule 59 60 of the Federal Rules of Civil Procedure provide for reopening of cases for newly discovered evidence;in Germany,Sec.578- 91 of the Federal Procedure Law allow the reopening of final judgments but limited its availability to a period not later than five years from the time the judgment be- comes immune to appellate review. 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

100 THE AMERICAN JOURNAL OF COMPARATIVE LAW [Vol. 39 Under the Criminal Procedure Law, there is no codified restric￾tion on the time or the grounds for the reopening of a legally effec￾tive judgment under adjudication supervision. The sole criterion is that the original judgment must have contained "some definite er￾ror."31 The same was true under the Civil Procedure Law until its amendment in 1991, which attempts to limit reopenings of civil cases to circumstances of new evidence, insufficient evidence, erroneous application of law, prejudicial violations of law, and judicial miscon￾duct.32 Although the asserted policy is that adjudication supervision should not be used to seek a change in the judgment to reflect a change in the law or policy or for complaints that the punishment was too lenient,33 adjudication supervision has in fact been used to reverse judgments after a policy change as well as to increase punishments.'4 Adjudication supervision in China is unique in a number of ways. Although the procedural codes of legal systems provide for the reopening of a case on the grounds of new circumstances,35 the P.R.C. adjudication supervision is unusual in allowing the reopening of a case at any time based solely on the later discovery of "error," though there has been no change in the circumstances of the case. Adjudication supervision is also distinguishable from an appeal, the review procedure most common in legal systems. Most signifi￾cantly, adjudication supervision is a mechanism that can be started and carried out by officials and judicial institutions. In an appeal, only parties to the action can seek a review of a court decision. In an adjudication supervision, a court president, a Party or govern- 31. Criminal Procedure Law, pt. III, ch. V, art. 149. The law does not, however, define what "errors" warrant retrial. Ke Gehuang, "On Reasons and Basis for Insti￾tuting a Retrial," Zhengfa Luntan (Tribute of Political Science & Law), No. 3, 1988 at 15-16. According to some commentators, only an incorrect determination of the facts at the time of judgment can serve as the basis for the reopening. As to error in the application of law, such errors may include the unlawful imposition of death sen￾tence on a minor, or a judge's improper refusal to withdraw from a case, or a trial unlawfully closed to the public, or the deprivation of a defendant's right to defense. Id.; see also Shendong Renmin Publishing, Zhonghua Renmin Gonghe Guo Xingshi Susong Fa Jianming Jiaocheng 323 (Teaching Material for the P.R.C. Criminal Pro￾cedure) (1987) [hereinafter Zhonghua Renmin Gonghe Guo Xingshi Susong Fa Ji￾anming Jiaoche]. 32. Compare Civil Procedure Law (1982 trial implementation), pt. III, ch. 14, art. 157, with Civil Procedure Law (as amended and passed April 9, 1991), pt. 2, ch. 16, art. 179. Because this provision was just adopted, it remains to be seen how well these categories will operate to limit re-openings of civil cases. 33. Id. at 17-18. 34. See discussion of this point in Section IV, infra. 35. See e.g., in the U.S., Rule 59 & 60 of the Federal Rules of Civil Procedure provide for reopening of cases for newly discovered evidence; in Germany, Sec. 578- 91 of the Federal Procedure Law allow the reopening of final judgments but limited its availability to a period not later than five years from the time the judgment be￾comes immune to appellate review. 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. 101 ment official can sua sponte invoke the procedure of adjudication su- pervision.While an appeal is a procedure primarily driven by one of the parties'sense of justice,adjudication supervision involves the legal system's sense of correctness.A case resolved to the satisfac- tion of the parties may nevertheless be re-adjudicated until the legal system is satisfied. Second,although appeals normally involve the participation of the parties,adjudication supervision provides no formal opportunity for the parties to argue for or against re-opening.In the determina- tion of whether a case contains "error,"the court may solicit a party's opinion as part of its investigation of the case.However,the procedural codes provide no right for the parties to see or to respond to the record in an adjudication supervision.Although a recent Supreme People's Court directive mandates that the retrial of a criminal case must be public,36 the decision to reopen a case is nor- mally made behind closed doors by court officials and members of the judicial committee,without the involvement of the parties. More problematically,the judgment can be re-opened ex parte,al- lowing access to one side but not the other. Third,while an appeal is a procedure which automatically func- tions to reopen the ruling below for upper level review upon the timely application of the parties,the decision whether to reopen a case pursuant to adjudication supervision is largely discretionary. The Criminal Procedure Law provides virtually no guidance for when a reopening is appropriate,and the Civil Procedure Law has only recently been amended to set forth broad categories for reopening. Finally,while an appeal must be raised within a certain time pe- riod,adjudication supervision may,with one exception,be invoked at any time.37 This lack of restrictions,along with the system's right to re-open a case,renders a judgment particularly vulnerable to the legal system's temporal concept of right and wrong. The Actors In The Adjudication Supervision Process In order to understand adjudication supervision,it is necessary to understand not only how the process works but also who the ac- tors are that make it work.There are three key actors-the judi- cial committee,the court president,and the procuracy.These three 36."Judicial Work Report of 1988,"Law Yearbook 1989 10. 37.The one exception enacted in the 1991 revision of the Civil Procedure Law is that a litigant in a civil case must file a petition to reopen within two years of the date of the final judgment.Civil Procedure Law,pt.2,ch.16,art.182.This time limitation,however,does not apply in any criminal case,nor for reopenings of civil cases initiated by a procurator or court president. 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. 101 ment official can sua sponte invoke the procedure of adjudication su￾pervision. While an appeal is a procedure primarily driven by one of the parties' sense of justice, adjudication supervision involves the legal system's sense of correctness. A case resolved to the satisfac￾tion of the parties may nevertheless be re-adjudicated until the legal system is satisfied. Second, although appeals normally involve the participation of the parties, adjudication supervision provides no formal opportunity for the parties to argue for or against re-opening. In the determina￾tion of whether a case contains "error," the court may solicit a party's opinion as part of its investigation of the case. However, the procedural codes provide no right for the parties to see or to respond to the record in an adjudication supervision. Although a recent Supreme People's Court directive mandates that the retrial of a criminal case must be public,36 the decision to reopen a case is nor￾mally made behind closed doors by court officials and members of the judicial committee, without the involvement of the parties. More problematically, the judgment can be re-opened ex parte, al￾lowing access to one side but not the other. Third, while an appeal is a procedure which automatically func￾tions to reopen the ruling below for upper level review upon the timely application of the parties, the decision whether to reopen a case pursuant to adjudication supervision is largely discretionary. The Criminal Procedure Law provides virtually no guidance for when a reopening is appropriate, and the Civil Procedure Law has only recently been amended to set forth broad categories for reopening. Finally, while an appeal must be raised within a certain time pe￾riod, adjudication supervision may, with one exception, be invoked at any time.37 This lack of restrictions, along with the system's right to re-open a case, renders a judgment particularly vulnerable to the legal system's temporal concept of right and wrong. The Actors In The Adjudication Supervision Process In order to understand adjudication supervision, it is necessary to understand not only how the process works but also who the ac￾tors are that make it work. There are three key actors - the judi￾cial committee, the court president, and the procuracy. These three 36. "Judicial Work Report of 1988," Law Yearbook 1989 10. 37. The one exception enacted in the 1991 revision of the Civil Procedure Law is that a litigant in a civil case must file a petition to reopen within two years of the date of the final judgment. Civil Procedure Law, pt. 2, ch. 16, art. 182. This time limitation, however, does not apply in any criminal case, nor for reopenings of civil cases initiated by a procurator or court president. 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

102 THE AMERICAN JOURNAL OF COMPARATIVE LAW [Vol.39 actors have the powers to petition as well as to control the process of reopening final judgments. According to the Organic Law of the People's Courts,courts of every level must establish a judicial committee,38 comprised of the president and the vice-presidents of the court,and the chief judge and associate chief judges of each division of the court.Significantly, the chief procurator of the same level may also sit on the judicial committee,albeit as a non-voting member.39 The judicial committee of the people's court at each level is appointed and removed by the standing committee of the people's congress at the corresponding level.40 The general responsibility of the judicial committee is "to sum up judicial experience and to discuss difficult and important cases and other issues relating to judicial work."41 Hence,it is the judicial committee,not the panel which actually presides at trial,that dis- cusses and decides all "difficult and important"issues,42 including whether a case should be re-opened pursuant to adjudication super- vision.The decision made by the judicial committee is binding on the collegiate panel.43 The most critical member of the judicial committee is the presi- dent of the court,who is elected by the local people's congress at the corresponding level of authority.44 The court president is responsi- ble for the administration of the court and further,approves all de- cisions and judgments issued by the court.45 With such authority,a 38.People's Court Law,ch.I,art.11 39.People's Court Law,ch.I,art.11. 40.Id.Thus,the judicial committee of the Supreme People's Court is appointed and removed by the Standing Committee of the National People's Congress. 41.According to some scholars,the judicial committee is the court's highest re- search and adjudication unit.Ka Changjiu,"Court Reform,"Faxue (Jurisprudence), No.1,1990,p.150. 42.The deliberations are not made public to the defendant and the decision is reached by a majority vote of members of the judicial committee.Zhonghua Renmin Gonghe Guo Xingshi Susong Fa Jianming Jiaocheng at 269.A major criti- cism about the involvement o:judicial committees in judicial work is that it decides the case before trial.See Zhou Shimin,"To Improve the Quality of a Judicial Com- mittee's Discussion and Review of Cases,"Zhengfa Luntan(Tribune of Political Sci- ence and Law),No.2,1988 at 30. 43.A Brief Introduction to the People's Court of the People's Republic of China, published by The General Office of the Supreme People's Court of the People's Re- public of China (1988)[hereinafter A Brief Introduction to the People's Court of the P.RC.]at 9. 44.People's Court Law,ch.III,art.35.The term of the court president is the same as that of the people's congress which elected him,but the people's congress has the power to remove presidents from office before the expiration of the term. People's Court Law,ch.III,art.36.If the people's congress is not in session,the standing committee can remove the court president by reporting the matter to the people's court at the next higher level for submission to the standing committee of the people's congress at the next higher level for approval.Id. 45.Zhonghua Renmin Gonghe Guo Xingshi Susong Fa Jianming Jiaocheng at 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

102 THE AMERICAN JOURNAL OF COMPARATIVE LAW [Vol. 39 actors have the powers to petition as well as to control the process of reopening final judgments. According to the Organic Law of the People's Courts, courts of every level must establish a judicial committee,`8 comprised of the president and the vice-presidents of the court, and the chief judge and associate chief judges of each division of the court. Significantly, the chief procurator of the same level may also sit on the judicial committee, albeit as a non-voting member.39 The judicial committee of the people's court at each level is appointed and removed by the standing committee of the people's congress at the corresponding level.40 The general responsibility of the judicial committee is "to sum up judicial experience and to discuss difficult and important cases and other issues relating to judicial work."'41 Hence, it is the judicial committee, not the panel which actually presides at trial, that dis￾cusses and decides all "difficult and important" issues,42 including whether a case should be re-opened pursuant to adjudication super￾vision. The decision made by the judicial committee is binding on the collegiate panel.43 The most critical member of the judicial committee is the presi￾dent of the court, who is elected by the local people's congress at the corresponding level of authority." The court president is responsi￾ble for the administration of the court and further, approves all de￾cisions and judgments issued by the court.45 With such authority, a 38. People's Court Law, ch. I, art. 11. 39. People's Court Law, ch. I, art. 11. 40. Id. Thus, the judicial committee of the Supreme People's Court is appointed and removed by the Standing Committee of the National People's Congress. 41. According to some scholars, the judicial committee is the court's highest re￾search and adjudication unit. Ka Changjiu, "Court Reform," Faxue (Jurisprudence), No. 1, 1990, p. 150. 42. The deliberations are not made public to the defendant and the decision is reached by a majority vote of members of the judicial committee. Zhonghua Renmin Gonghe Guo Xingshi Susong Fa Jianming Jiaocheng at 269. A major criti￾cism about the involvement uI judicial committees in judicial work is that it decides the case before trial. See Zhou Shimin, "To Improve the Quality of a Judicial Com￾mittee's Discussion and Review of Cases," Zhengfa Luntan (Tribune of Political Sci￾ence and Law), No. 2, 1988 at 30. 43. A Brief Introduction to the People's Court of the People's Republic of China, published by The General Office of the Supreme People's Court of the People's Re￾public of China (1988) [hereinafter A Brief Introduction to the People's Court of the P.RC.] at 9. 44. People's Court Law, ch. III, art. 35. The term of the court president is the same as that of the people's congress which elected him, but the people's congress has the power to remove presidents from office before the expiration of the term. People's Court Law, ch. III, art. 36. If the people's congress is not in session, the standing committee can remove the court president by reporting the matter to the people's court at the next higher level for submission to the standing committee of the people's congress at the next higher level for approval. Id. 45. Zhonghua Renmin Gonghe Guo Xingshi Susong Fa Jianming Jiaocheng at 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. 103 court president can reassign a case from one collegiate panel to an- other or to the judicial committee for review,until a decision is reached which meets his approval.46 Additionally,even after a final judgment is rendered,the president of the court has the power,sua sponte,to seek a reopening of the final judgment or order by the ju- dicial committee,if in his opinion,there is error in the judgment or order.47 Most significantly,the president of the people's court pre- sides over meetings of the judicial committees,48 and thus controls when and in what manner a request for reopening is taken up. The third actor in the adjudication supervision process is the procurator.49 The institution of the procuracy,as imported from the Soviet Union,has two functions.The procuracy not only investi- gates and prosecutes crimes,but like the president of the court and the judicial committee,also is responsible for supervising legality in the administration of justice.50 In its supervisory role,the procuracy oversees the trial activities of the courts and monitors the execution of judgments,51 and may sua sponte lodge a protest of a final judg- ment of a court at a lower level in accordance with the procedures for adjudication supervision.52 While a citizen can never participate in a judicial committee discussion on the merits of his petition,the procurator can participate in determining whether a reopening of any case is warranted.In all retrials pursuant to adjudication super- vision,the procuracy must send its personnel to appear in court to oversee the process.53 In sum,the adjudication supervision process depends in large part on the discretion of the judicial committee,the court president, 269.Additionally,the president of the court has the power to appoint the presiding judge of the collegiate panel hearing a case,or to appoint himself to that role.Peo- ple's Court Law,ch.I,art.10 46.Id. 47. People's Court Law,ch.I,art.14. 48.People's Court Law,ch.I,art.11. 49. Procurators are appointed by the corresponding people's congress and its standing committee.People's Procuratorate Law,ch.III,arts.21-24.Hence,like other members of the judicial committee,the procurator at each level is theoreti- cally accountable to the people's congress and the standing committee at the corre- sponding level of authority.People's Procuratorate Law,ch.I,art.10. 50.Article I of the Organic Law of the People's Procuratorate defines the procuracy as "state organs of legal supervision." Organic Law of the People's Procuratorate,ch.I,art.1.See also Harold Berman,Justice in the USSR 239-47(2d ed.1963)(describing the role of Soviet procuracy). 51.People's Procuratorate Law,ch.I,art.5. 52.The procuracy must accept petitions of grievances from citizens,investigate, and determine whether a petition merits registering a protest in court.People's Procuratorate Law,ch.1,arts.6,18.The procuracy may also issue a protest a re- sponse to grievances made by or against prisons,detention houses or institutions in charge of reform through labor.Id.;see also Shen Jungui,"Legal Relationships in A Criminal Retrial,"Xibei Zhengfa Xueyuan Xuebao (Journal of Northwest Institute of Political Science and Law),No.2,1988 at 45. 53.People's Procuratorate Law,ch.I,art.18. 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. 103 court president can reassign a case from one collegiate panel to an￾other or to the judicial committee for review, until a decision is reached which meets his approval.46 Additionally, even after a final judgment is rendered, the president of the court has the power, sua sponte, to seek a reopening of the final judgment or order by the ju￾dicial committee, if in his opinion, there is error in the judgment or order.47 Most significantly, the president of the people's court pre￾sides over meetings of the judicial committees," and thus controls when and in what manner a request for reopening is taken up. The third actor in the adjudication supervision process is the procurator.49 The institution of the procuracy, as imported from the Soviet Union, has two functions. The procuracy not only investi￾gates and prosecutes crimes, but like the president of the court and the judicial committee, also is responsible for supervising legality in the administration of justice.m In its supervisory role, the procuracy oversees the trial activities of the courts and monitors the execution of judgments,5' and may sua sponte lodge a protest of a final judg￾ment of a court at a lower level in accordance with the procedures for adjudication supervision.52 While a citizen can never participate in a judicial committee discussion on the merits of his petition, the procurator can participate in determining whether a reopening of any case is warranted. In all retrials pursuant to adjudication super￾vision, the procuracy must send its personnel to appear in court to oversee the process.53 In sum, the adjudication supervision process depends in large part on the discretion of the judicial committee, the court president, 269. Additionally, the president of the court has the power to appoint the presiding judge of the collegiate panel hearing a case, or to appoint himself to that role. Peo￾ple's Court Law, ch. I, art. 10. 46. Id. 47. People's Court Law, ch. I, art. 14. 48. People's Court Law, ch. I, art. 11. 49. Procurators are appointed by the corresponding people's congress and its standing committee. People's Procuratorate Law, ch. III, arts. 21-24. Hence, like other members of the judicial committee, the procurator at each level is theoreti￾cally accountable to the people's congress and the standing committee at the corre￾sponding level of authority. People's Procuratorate Law, ch. I, art. 10. 50. Article I of the Organic Law of the People's Procuratorate defines the procuracy as "state organs of legal supervision." Organic Law of the People's Procuratorate, ch. I, art. 1. See also Harold Berman, Justice in the USSR 239-47 (2d ed. 1963) (describing the role of Soviet procuracy). 51. People's Procuratorate Law, ch. I, art. 5. 52. The procuracy must accept petitions of grievances from citizens, investigate, and determine whether a petition merits registering a protest in court. People's Procuratorate Law, ch. 1, arts. 6, 18. The procuracy may also issue a protest a re￾sponse to grievances made by or against prisons, detention houses or institutions in charge of reform through labor. Id.; see also Shen Jungui, "Legal Relationships in A Criminal Retrial," Xibei Zhengfa Xueyuan Xuebao (Journal of Northwest Institute of Political Science and Law), No. 2, 1988 at 45. 53. People's Procuratorate Law, ch. I, art. 18. 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