During the past three years, China has proclaimed a judicial reform campaign that aims to follow the “rule by law” (yifa zhiguo) in civil dispute resolutions. In delivering the 2014 annual work report of the Supreme People’s Court (SPC) to the National People’s Congress on March 12, 2015, Zhou Qiang (president of the SPC) said, “2015 is a critical year for deepening the [judicial] reform in a comprehensive manner, it is a year to fully implement ‘the rule by law’. . . . [We] endeavour to let the people feel that justice is done in every case.” The adoption of “rule by law” principles would be particularly welcomed by international companies and likely would attract more companies to do business in China. But any real change in Chinese judicial practice and culture is unlikely. The Chinese judiciary has always been obsessed with the social effect of civil adjudication. One may attribute this to Wang Shengjun, president of the SPC1 from 2008 to 2013, who turned Chinese courts into state-funded mediation centers designed to preserve a “harmonious society” (hexie shehui).
Wang Shengjun’s departure and the ensuing reshuffling in the SPC’s leadership did not in any significant way change the practice of civil-dispute resolution in China. Judges today still firmly believe that they have a clear mandate to resolve disputes in such a way that “the case is closed and the dispute is [truly] resolved” (anjie shiliao). The adjudicatory principle of anjie shiliao is a political concept, not a legal concept. Simply put, the successful disposition of a lawsuit is only accomplished under anjie shiliao if it is coupled with the eradication of social discontent with respect to matters arising from the dispute.
The Chinese judiciary as an institution is weak under the Chinese constitutional order. Article 128 of the Chinese Constitution reads, “The Supreme People’s Court is responsible to the National People’s Congress and its Standing Committee. Local people’s courts at different levels are responsible to the organs of state power which created them.” The president of the SPC is selected by the National People’s Congress.2 Presidents of all other courts at various levels are selected by the people’s congresses at corresponding levels.3 The direct subordination of the judiciary to the legislature means that there can be no real judicial independence in China unless the constitutional structure is modified — which is unlikely because Chinese constitutional theory specifically rejects the concept of separation of power.4 While the legislature has de jure control over the judiciary, real control over the courts is exercised by the administrative authorities that control court budgets.5 Mo Zhang observed that this fiscal link between the local administration and the courts has entrenched local protectionism in civil adjudication.6 This situation is changing, however; recent judicial reform assigns fiscal decision-making authority for intermediate and basic-level courts to their respective provincial high court.7
The individual Chinese judge also is institutionally weak. There are certain features of the Chinese court system that tend to weaken the adjudicatory autonomy of the individual judge (such as the predominant role of the adjudicative committee in the court).8 External interference with the adjudicatory process is the norm, rather than the exception.9 Yaxin Wang has warned that the “bureaucratization of the court” severely hinders the development of adjudicatory autonomy in China. Under this bureaucratic culture, the collective decision of the court organization trumps the decision of the individual judge, even when the individual judge has superior knowledge and understanding of the case.10
The Chinese judiciary prizes discipline over the adjudicatory autonomy of the individual judge. Supervision by the court leadership and higher-level courts forms the fabric of the Chinese adjudicatory system. The institutional weakness of the individual judge is further exacerbated by the fact that the Chinese judiciary is not independent. According to Benjamin L. Liebman, while reforms in the past have, to a certain extent, helped transform the court from a mere instrument of the ruling elite to a public service that seeks to resolve civil disputes effectively, political forces still shape the appointment of the court leadership, the adjudication of politically sensitive civil lawsuits, and other key areas of judicial practice.11
Under the current SPC leadership, the judiciary’s role remains politicized. The court’s continuing main objective is to “maintain (social) stability” (weiwen) and prevent cases from evolving into “disputes involving the masses,” or literally “mass events” (qunzhong shijian). So while the populist policies implemented by Wang Shengjun have technically lapsed, the current system still requires judges to perform the political function of maintaining social stability. This article seeks to explain this phenomenon from a proceduralist perspective by analyzing the trial management system in the context of Chinese civil dispute resolution. Reference is specifically made to the judicial preference for court mediation (over adjudication) as an illustration of the trial management system’s effect on civil justice in China.
In China, the concept of “trial management” (also known as “judicature management”) (shenpan guanli) is categorically different from the Western concept of “case management.” Apart from considering the efficiency of handling cases, the concept of “trial management” embraces the administrative functions of managing the court institution, the individual judge’s conduct (including disciplinary matters), and the implementation of policy objectives in civil adjudication (e.g., the policy objective of preferring mediation to adjudication). According to Yulin Fu and Zhixun Cao, from the Chinese legal perspective, the court’s main function is dispute resolution.12 The Chinese contemporary concept of “dispute resolution” is about the pursuit of a state where “the case is closed and the dispute is [truly] resolved” (anjie shiliao). Anjie shiliao is not a purely procedural concept but rather a socio-legal phenomenon. Trial management measures the procedural efficacy and social impact of court work by meticulously collecting and analyzing data on case processing. Among other benchmarks, trial management takes indices such as “mediation settlement rate,” “withdrawal rate,” “actual enforcement rate,” and “the rate of reversal and new trial by remittal of first-instance decisions (decisions in error)” into account in the assessment of judicial merit. These benchmarks feature in a scoring matrix that is applied to evaluate a judge’s performance by measuring the level of fairness (gongzheng zhibiao), efficiency (xiaolü zhibiao), and effectiveness (xiaoguo zhibiao) in the handling of cases by the court under review. Some academics in Mainland China, such as Yanmin Cai, have questioned the appropriateness of using indices like “mediation settlement rate” as points of reference for the evaluation of judicial work, because overemphasizing settlement rates may result in the proliferation of abusive practices in court mediation.13
This article surveys the key policy principles underlying China’s civil trial management system by examining the overarching SPC interpretation of the so-called “Case Quality Evaluation” and the actual operation of the system. The article also contains the views of judges from both intermediate and basic-level courts that tend to validate the basic argument advanced in this article: that trial management promotes a mass case-processing system designed predominantly to alleviate social discontent in line with the prevailing political goal of maintaining public order and social stability (weiwen).
The trial management system regulates procedural matters in litigation and manages the ever-increasing caseload of Chinese courts. While effective as a case-processing mechanism, it serves predominantly institutional goals. Fairness in the individual case becomes secondary when the institutional needs become pressing (e.g. the need to clear backlogs). This has far-reaching ramifications for the administration of justice in China. The problem is further complicated by the rigid and artificial criteria for evaluating “case quality” under the system.
The specific criteria for assessing a judge’s performance (faguan kaohe) vary from court to court. However, some common criteria are ascertainable. The promotion of court settlement through mediation is one of them.
In 2011, the SPC issued an opinion to provide guidance on trial management: the Supreme People’s Court’s Several Opinions on Strengthening Trial Management Work in the People’s Courts (SPC Trial Management Opinion).14 The opinion sets out a high-level framework for trial management:
With the institutional and political backdrop of trial management in mind, it is not difficult to understand the judiciary’s tolerance of abusive practices in court mediation. Coercive mediation tactics are seen as a necessary evil in the routine disposal of cases.
From a procedural perspective, mediation occupies a unique position in any civil justice system in that it (if appropriately deployed) provides an alternative to litigation while preserving the parties’ right of access to court. The procedural nature and function of mediation changes if policy is allowed to dictate the mediation process, especially when such policy contravenes the law. This is exactly what happened in China under Wang Shengjun’s presidency. Mediation, in particular court mediation, became a policy tool to further the ruling objective of maintaining social harmony, sometimes at the expense of procedural justice. From a socio-legal perspective, a broader issue needs to be considered: Are the ruling elites in China still using courts as a medium to secure dominance, rather than respecting the judicial process (whether adjudication, court mediation, or court-annexed mediation) as a uniquely important domain in its constitutional matrix that is best left to do its business alone without external interference? This question is particularly relevant to an international audience that seeks to understand what China is doing in its new wave of judicial reform that allegedly aims to follow “the rule by law” (yifa zhiguo).
The promulgation of the Supreme People’s Court Guidance Opinion Relating to the Commencement of the Work on Case Quality Evaluation (2011 SPC Case Quality Opinion)21 was a landmark development in trial management.22 The opinion lays out a structure by which case quality and judicial efficacy may be measured. Its four themes are: (1) unifying standards in the Case Quality Evaluation system with the view to promote efficiency and fairness in litigation; (2) constructing a sophisticated, “scientific,” and systemic evaluative framework encompassing adjudication and nonadjudicatory matters (e.g., enforcement work and management of judicial personnel); (3) institutionalizing the Case Quality Evaluation system with clear delineation of the responsibilities of different divisions within the court, as well as clarifying the supervisory and evaluative powers of higher-level courts over lower courts in relation to case quality evaluation; and (4) improving data collection, analysis, and management, and establishing effective reporting channels on matters concerning case quality evaluation.
Courts are expected to operate in a way that satisfies the requirements under the Case Quality Evaluation system. The overall “score” determines how well a court has performed in a given evaluation cycle.
The Case Quality Evaluation system consists of three levels of evaluative indices: (1) the primary index, consisting of a single “Integrated Case Quality Index,” which is the “overall score” of the court under evaluation; (2) the secondary indices, consisting of the “Fairness Index” (40 percent of the primary index), “Efficiency Index” (30 percent of the primary index) and “Effectiveness Index” (30 percent of the primary index); and (3) the tertiary indices, which are components of the secondary indices and consist of 31 separate indices, encompassing a wide range of matters, each with different weights.
Among the 31 tertiary indices, the following indices incentivize and explicitly encourage courts to facilitate settlements through court mediation or persuade the claimant to withdraw the claim:
Among the tertiary indices, the following indices have the direct effect of encouraging courts to prefer mediation (instead of rendering judgments):
Among the tertiary indices, the following indices have an indirect effect of encouraging courts to prefer mediation (instead of rendering judgments):
The Trial Management Office (shenpan guanli bangongshi) (Office), a constituent unit of the court system, has the mandate to manage all aspects of adjudication in a court. It is accountable to the court president and the powerful court adjudicative committee and is responsible for managing court processes (i.e., the workflow manager), evaluating case quality, assessing overall effectiveness of the court’s adjudication work, and assisting in the evaluation of the work of individual judges.38 The Office, however, does not evaluate individual judges. It may issue guidelines on trial management but cannot sanction an individual judge directly for failure to comply with such guidelines. The Office works with the judges to prescribe the number of cases each judge should accept within a given period to maintain case-processing standards.
The Office is set up with a strong policy objective in mind — to use the court as an instrument for social control, consistent with the Case Quality Evaluation system. But meeting the system’s indices can be overwhelming for a judge. It takes time away from his work as an adjudicator, and the rigidity of the indices sometimes hampers his ability to effectively handle his cases.39 Some courts are compelled to offer inflated statistics in the Case Quality Evaluation exercise to survive40 Another interesting feature is that the Office is partially composed of bureaucrats with no legal experience.41 This situation, which in many ways threatens judicial impartiality, is consistent with the prevailing understanding that courts are part of the Chinese bureaucracy, rather than an autonomous organ. Like any other state machinery in China, courts are managed in a “scientific” and quantitative way. This practice goes against the international community’s commonly held view that the judiciary of any jurisdiction plays a special role in society and should be managed in a way that reflects its special status. For instance, under the common-law system, the overall management of the courts is left to senior judges, not nonjudicial officials.
Chapter 16 of the Judges Law of the People’s Republic of China42 governs assessment of judges by requiring that each court establish a “Commission for Examination and Assessment of Judges” (faguan kaoping weiyuanhui).43 The membership of the Commission for Examination and Assessment of Judges varies from court to court. Chaired by the president of the court, the commission members typically include the heads and deputy heads of various divisions of the court and other senior judges. The commission is an internal arrangement. While its establishment is provided under the Judges Law, its detailed operations are governed under internal regulations of the specific court.44
The Commission for Examination and Assessment of Judges reviews reversed judgments to see if the individual judge under evaluation was “at fault.” In more serious cases, judges can be disciplined for reversed decisions where serious fault is found (e.g., accepting a bribe, complete neglect of the law). “Lesser faults” (such as erroneous interpretation of the law) result in the deduction of “marks” or “points” in the court’s internal assessment record, which in turn affects the overall performance evaluation of the judge. Even when the judge is not at fault, an appellate reversal taints the record of the judge and renders the judge less competitive in a promotion process.45
The judicial merit system adds an additional layer of risk by penalizing judges if their judgments are reversed. The penalties create yet another incentive to prefer mediation, because a mediation statement (tiaojie shu) cannot be appealed (hence cannot be reversed). Yanmin Cai interviewed ten judges and found that the judges are increasingly burdened by the current performance appraisal system to such a degree that it is affecting the quality of adjudication.46
An intermediate court judge said that judges in China generally see themselves as bureaucrats rather than the vanguards of justice. When the volume of cases is overwhelmingly large, judges have no choice but to work in a “factory style” that allows very little time for attention to the quality of justice. Given the personal risks involved, no judge would be willing to go out of the way to do justice, especially if doing so will contravene the directions and policies of the court leadership. Scoring well in performance evaluations and avoiding complaints are the best guarantee to career advancement.47
It is indeed ironic that an evaluative system that claims to uphold quality turns out to be the culprit that jeopardizes the quality of justice.
In spite of its name, the actual operation of the Case Quality Evaluation system and the numerous indices do not provide a qualitative assessment. Instead, each court is assessed on a quantitative scale. The cumulative effect of this grading system on the judiciary is not surprising: Courts focus on quickly terminating cases rather than on dispensing justice. Courts must worry, for instance, that a large number of cases overturned or remitted on appeal would reflect negatively on the court’s ability to resolve disputes conclusively.48 This is the so-called “scientific” nature of the evaluation system emphasized under the 2011 SPC Case Quality Opinion. Nowhere in the evaluation scale can one find qualitative metrics, such as the quality of the written judgments or the significance of the judgments (e.g. the “precedential value” of a court decision, obviously “precedential” in a nonbinding sense). The danger of focusing almost completely on numbers is that one inevitably loses sight of the bigger picture. A court may be doing an enormous service to the local community by accepting cases that are complex and sensitive (or that concern novel legal issues), but in doing so the court risks a higher rate of appellate reversals. Neither does the current Case Quality Evaluation scale take into account what the court has done to protect the procedural rights of the parties. Such a number-crunching system incentivizes courts to become rigid case-processors; it discourages the bench to venture into “hard cases” or to do justice in an individual case when it risks tainting the court’s record. The individual judge in fact would even be “penalized” under the current system for demonstrating any form of judicial innovation, as an attempt to go against established norms might result in an appellate reversal (a key tertiary index under the Case Quality Evaluation system).
Adrian Zuckerman made it clear that the role of the court is not limited to dispute resolution: “[L]ike its criminal counterpart, the civil court provides a public service that is crucial to the maintenance of a society governed by the rule of law: a law enforcement service.”49 If the court is the enforcer of rights, a judiciary that overemphasizes mediation settlement rates and other quantitative results cannot at the same time be a good enforcer of rights. The trial management system is flawed in the following aspects:
Article 126 of the Chinese Constitution reads:
The people’s courts exercise judicial power independently, in accordance with the provisions of the law, and are not subject to interference by any administrative organ, public organization or individual.59
Yet the trial management system allows an “administrative organ” within the court (trial management office) or “individuals” (trial management office members) to interfere with the adjudicatory decisions of the individual judge and imposes quantitative parameters on how cases should be handled. The system robs judges of the freedom to decide a case on its facts free from interference. Judges in China must meet the expectations enshrined in the Case Quality Evaluation system for career advancement. Serious deviations from these expectations are likely to result in disciplinary consequences. Thus, trial management becomes a hanging dagger for judges.
The evaluation covers even minute details of the judge’s conduct at court hearings, as a pro-forma “observer log” designed for trial management purposes shows.60
Trial management is a glaring violation of Article 126 of the Chinese constitution. The all-pervasive nature of trial management violates adjudicatory autonomy of the bench. While the Chinese constitution is not directly enforceable in a lawsuit, the principles enshrined in it should give courts (especially the SPC) a moment of pause to think about whether this quantitative and arbitrary evaluation system is actually improving or jeopardizing the overall quality of justice in China.
Trial management frustrates the ability of the individual judge to handle cases independently. While a degree of bureaucratic interference (e.g., in matters like managing personnel and work delegation) is expected given China’s legal tradition, the Case Quality Evaluation trespasses into the actual adjudicatory work of individual judges. The system requires judges to follow fixed parameters without any regard to the actual circumstances of the individual case (e.g., complexity, the actual liability of parties and whether there are any special circumstances). Institutional goals therefore override the imperative of defending justice in the individual case. A civil court that follows strictly the Case Quality Evaluation system is at best a center for mass case processing, not a forum for upholding rights. The business of adjudication becomes a game of avoiding mistakes and “toeing the party line.” Judges are inevitably risk adverse and do not go out of the way to do justice if there are potential disciplinary consequences. It follows that, given such risk adverseness, judges are likely to continue to rely heavily on mediation, because a settlement is virtually an ironclad guarantee of “anjie shiliao.” As long as leaders focus on the social effect of civil litigation and the ill-defined concept of “anjie shiliao,” any effort to reform the judicial system and to implement the “rule by law” will be an uphill battle.