Judicial system

The judiciary in China has both broad and narrow meanings. Broadly speaking, the judiciary means law-enforcement activities conducted by the country's judicial organs and organizations in handling prosecuted or non-prosecuted cases. Narrowly speaking, it applies to law-enforcement activities conducted by the country's judicial organs in handling prosecuted cases. This presentation uses the term in the broader sense.

Judicial organs here mean public-security organs (including state security organs) responsible for investigation, prosecution, trial and execution of cases, the prosecutors, the trial institutions and the custodial system. Judicial organizations here refer to lawyers, public notaries, and arbitration organizations. The latter, though not part of the judicial apparatus, are an integral part and a link in the overall judiciary system.

The judiciary system in general refers to the nature, mission, organizational setup, principles and procedures of judicial organs and other judicial organizations. This system comprises sub-systems for investigation, prosecution, trial procedures, jails, judicial administration, arbitration, lawyers, public notaries and state compensation.

The Trial System

The trial system refers to the court system governing the establishment of courts, judges, and trials. Organization and Responsibilities of People's Courts

According to the current Constitution, and the Law on the Organization of People's Courts, People's Courts represent the main trial organ of the state. Organizationally, this court system consists of local courts, special courts and the Supreme Court, with all the first two subject to the supervision of the latter. Local courts are established in accordance with the administrative divisions, while special courts are set up where necessary.

1. Local courts are divided into three levels: Grassroots, Intermediate and Higher.

Under the Law on the Organization of People's Courts, grassroots-level courts consist of tribunals in counties/autonomous counties, cities without administrative districts, or administrative districts of cities. Their responsibilities are:

Try criminal, civil and administrative cases as courts of first hearing, except where otherwise provided for by law. Cases deemed to be of a serious nature that should be handled by superior courts can be referred to those superior courts; Handle civil disputes and misdemeanors that do not need trials; Guide the work of the People's Arbitration Committees. To facilitate lawsuits, grassroots courts may set up tribunals, which are not trial units, but have the responsibility to hear general civil and misdemeanors, guide the work of People's Arbitration Committees, publicize laws and regulations, and handle petitions. Their judgments and decisions represent the judgments and decisions of the grassroots People's Courts.

Intermediate courts are those set up in prefectures, cities directly under provinces (autonomous regions and municipalities directly under the central government) and districts in the four municipalities directly under the central government (hereinafter referred to as "municipalities"). Their responsibilities include:

Try the following categories of cases: a) First-hearing cases under their jurisdiction, as prescribed by law. According to the Law on Criminal Procedures, these cases include those involving national security; criminal cases that may involve life imprisonment or the death penalty; criminal cases committed by foreigners or cases involving Chinese citizens violating the lawful rights and interests of foreigners. According to the Law on Civil Procedures, civil cases heard by intermediate courts are major foreign-related cases; cases of major implications within their jurisdictions; and cases that intermediate courts are ordered to hear by the Supreme Court. In addition, according to the Law on Administrative Procedures, intermediate courts are authorized to hear the following cases: verification of patent rights; customs handling; suits against administrative actions taken by State Council departments or governments of the provinces (autonomous regions, municipalities); other important and complicated cases;

b) First-hearing cases transferred by grassroots courts;

c) Cases appealing or protesting the verdicts and decisions of grassroots courts.

For criminal, civil and administrative cases that intermediate courts deem to be of a serious nature, the intermediate court may request that the cases be transferred to superior courts.

Supervise the performance of grassroots courts within their jurisdiction. They have the power to examine or order grassroots courts to re-examine verdicts or decisions issued by those courts that have already taken effect but that have been found to contain errors. According to the law on court organization, Higher Courts are set up in provinces (autonomous regions and municipalities). Their responsibilities include:

Try the following categories of cases: a) Criminal, civil and administrative cases of major proportions and complications under their jurisdiction, as provided for by the law;

b) First-hearing cases transferred by lower courts;

c) Cases appealing or protesting the verdicts and decisions made by lower courts. Higher courts in areas where a maritime court is located are authorized to try cases appealing the verdicts and rulings made by the maritime court;

d) Protested cases submitted by prosecutors in accordance with trial-monitoring procedures.

Review first-hearing cases involving the death penalty ruled by intermediate courts where the accused renounces the right to appeal. If the Higher Court raises no objection to the death penalty, it then files the case with the Supreme Court for verification; if it disagrees with the death penalty ruling, it can either re-examine the case or refer the case back to the Intermediate Court. Review cases submitted by intermediate courts involving a death penalty with two years' reprieve. Approve certain death-penalty cases as authorized by the Supreme Court. Supervise trials by lower courts. For verdicts or judgments passed by lower courts that have been found to contain errors, higher courts are authorized to hear or ask lower courts to reexamine the case. 2. Special courts are courts set up in special departments for special cases wherever necessary. Currently, China has special courts handling military, maritime, railway cases.

Military courts are set up at three levels: grassroots; Great Military Region, Services and Arms; and the PLA Court.

The PLA Court is the supreme military court whose responsibilities include:

Try first-hearing cases involving crimes committed by individuals above the division commander level. Try foreign-related criminal cases. p style="margin-left:3;margin-right:3;margin-top:6;margin-botom:0">

Try second-hearing cases, verification and review of cases involving death penalty. Great Military Region and Services and Arms Courts are intermediate courts set up in great military regions, the navy, the air force, the Second Artillery Army and the PLA General Headquarters. Their responsibilities include:

Try first-hearing cases involving crimes committed by individuals at the deputy division commander and regiment level. Try cases that may involve death penalty and cases under their jurisdiction as authorized or designated by superior military courts. Try cases appealing or protesting rulings or verdicts passed by lower courts. Grassroots military courts consist of tribunals set up in armies, provincial military regions, naval fleets, and air forces within Great Military Regions and in army units deployed in Beijing directly under the headquarters. Their responsibilities include:

Try cases involving crimes committed by individuals under the battalion commander level and first-hearing cases that may involve a penalty up to life imprisonment. Try first-hearing cases under its jurisdiction as authorized or designated by superior military courts. Maritime courts are special courts set up to try first-hearing maritime or sea-shipping cases for the purpose of exercising judicial jurisdiction over maritime affairs. In May 1989, the Supreme People's Court made a Decision on the Scope of Cases to Be Handled by Maritime Courts. That decision specified that maritime courts handle maritime or commercial cases between Chinese legal persons/citizens, between Chinese legal persons/citizens and foreign legal persons/citizens, and between foreign legal persons/citizens. These cases fall into 14 subsets in five categories:

Ten categories of cases involving maritime torts and disputes, including: damage claim cases involving collision of vessels; damage claim cases involving vessels colliding into buildings and facilities on the sea, sea-linked waters and ports; claim cases involving vessels discharging or leaking hazardous materials or waste water causing water pollution or damaging other vessels or cargo; claim cases involving casualties in the course of sea-borne shipping or operations on the sea, sea-linked waters and ports. Fourteen categories of commercial cases, including: cases involving shipping contract disputes; contract dispute cases involving passengers and baggage; cases involving seaman labor contract disputes; cases involving maritime rescue and salvage contract disputes; cases involving maritime insurance contract disputes. Eleven other categories of maritime cases, including: cases involving major liabilities in shipping and maritime operations; cases involving port operation disputes; cases involving general average disputes; cases involving offshore development and exploitation; cases involving the ownership, proprietorship, mortgage or preferred maritime right of claim of vessels; administrative cases involving maritime or inland river authorities; and cases involving maritime fraud. Five categories of cases involving maritime enforcement, including: cases involving compulsory enforcement requested by maritime and inland river authorities; cases involving applications for enforcement of arbitration awards filed by litigants; cases involving applications filed with Chinese maritime courts by litigants for recognition and enforcement of arbitration awards given by arbitration agencies in foreign countries or regions, in accordance with provisions of the convention on recognition and enforcement of foreign arbitration; cases involving applications filed by litigants to Chinese maritime courts for assistance in enforcement of rulings given by foreign courts, in accordance with judicial assistance accords China signed with foreign countries, or with the principle of reciprocity. Two categories of cases involving requests for preservation: cases involving pleas for detaining vessels prior to the opening of trial; cases involving pleas for detaining cargoes aboard ships or fuel for the ships prior to the opening of trial.

Railway transportation tribunals are special courts set up along railways that try the following types of cases:

Criminal cases investigated by railway public-security authorities and filed by railway prosecutors. Cases involving economic disputes. In accordance with rulings of the Supreme People's Court, these cases fall into 12 categories: cases involving railway cargo transportation contract disputes; cases involving disputes over the execution of international railway collaboration contracts; cases involving economic disputes within the railway system; cases involving torts that have resulted in damages to railways in violation of railway safety regulations; and tort cases involving human and property losses caused by railway operations and dispatch operations, where the litigant chooses to bring action to the railway tribunal.

3.The Supreme People's Court is located in Beijing, capital city of China. It is the highest judicial organ, exercising the highest judicial power while supervising lower courts and special courts. The Supreme People's Court is presided over by one president and a number of vice presidents, chief justices and justices. The Supreme People's Court exercises the following powers:

Supervise lower courts and special courts. For judgments and rulings passed by lower and special courts that have been found to contain errors, the Supreme People's Court have the power to hear the cases or order lower courts to reexamine the cases. Try the following cases: a) First-hearing cases falling under its jurisdiction as prescribed by the law or as deemed necessary by the court itself. The Law on Criminal Procedure stipulates that the Supreme People's Court has first-hearing right to try criminal and civil cases of major proportions nationwide. The Law on Administrative Procedure provides that the Supreme People's Court has first-hearing jurisdiction over administrative cases of a material and complicated nature.

b) Cases appealing or protesting rulings of higher courts and special courts, and protested cases submitted by the Supreme People's Procuratorate in accordance with legal procedures.

Approve death penalty cases. Issue judicial interpretations on how to apply law and writs. Lead and manage judicial administration of courts at all levels across the country. Organizational structure of the court system in China:

Judge System

The judge system, a major component of the judiciary, refers to all the rules and institutions related to the election and qualification of judges, forms of election, tenures, rewards and penalties, and salary and compensation of judges. China promulgated a Judge Law on February 28, 1995, which contains 17 chapters and 42 articles.

1. Qualifications of Judges

Judges exercise state judicial power in accordance with law. They include presidents and vice presidents of courts at various levels, members of judicial committees, presidents and vice presidents of tribunals, judges and assistant judges. The responsibility of judges is to participate in collegiate panels or be independent judges at trials.

Judges are elected with the following qualifications:

A citizen of the People's Republic of China; At least 23 years of age; Supports the Constitution of the People's Republic of China; In good political, professional and moral standing; In good health; A graduate of law from an institution of higher learning, or a non-law graduate from an institution of higher learning with in-depth knowledge of law, with two years of working experience; or holders of a bachelor's degree in JD with a full year of working experience; those holding a Master's or Ph.D. degree in JD are not subject to the working-experience limit described above. Those that have been penalized for crimes or have been dismissed from their public offices shall not be elected judges.

In addition, according to the Law on the Organization of People's Courts, presidents, vice presidents, presiding judge and deputy presiding judge of tribunals, judges and assistant judges, as well as People's Assessors shall be citizens with voting rights and rights of being elected, 23 years of age and with legal knowledge.

2. The Appointment and Removal of Judges

The Constitution and laws provide for the powers and procedures for appointing and removing judges.

Presidents of courts at local levels are elected and removed by the People's Congress at the same level and the tenure of the presidents is the same as the People's Congress; the president nominates the vice president, members of the Judicial Committee, presiding judges, deputy presiding judges and judges for appointment and removal by the Standing Committee of the People's Congress at the same level. Assistant judges of a court are appointed and removed by the president of the court. Judges sitting at special courts are elected and removed with procedures separately set forth by the Standing Committee of the National People's Congress.

Primary judges and assistant judges are recruited from among qualified candidates through open examination. The president, vice president, members of the Judicial Committee, presiding judge and deputy presiding judge shall be selected from among candidates who have practical working experience.

Judges shall not concurrently hold positions in the Standing Committee of the People's Congress, executive offices, the procuratorate, business, non-profit institutions, or in the legal profession.

Judges who have lost their citizenship, been found to be incompetent, been unable to perform their duties for a protracted period of time due to disciplinary violations, criminal records or health reasons, shall be removed from their position in accordance with legal procedures.

3. Safeguards for Judges

The Judge Law provides judges with the following safeguards:

Professional safeguards: Judges shall be granted adequate powers and working conditions in order to perform their duties; they shall be free from interference in exercising their judicial powers from any administrative authorities or individual; they shall not be removed, demoted, dismissed or disciplined unless for statutory reasons and procedures. Salary safeguards: Judges shall receive remuneration for their performance of duties and enjoy insurance and other benefits. Corporal safeguard: Judges shall receive legal protection for their corporal, property and residential safety. Others: Judges shall have the right to resign, petition or accuse, or participate in training.

4. Promotions

Judges are divided into 12 levels, with the president of the Supreme People's Court being the Chief Justice and those between Level 2 and 12 being labeled Justice, Senior Judge and Judge. The level of seniority is determined by the judge's position, performance, professionalism and seniority. Promotions are based on annual performance reviews, which are conducted by the courts where the judges serve. Performance reviews shall be conducted in an objective, impartial manner and combine evaluations by both superiors and subordinates.

5. Rewards and Penalties

Judges are rewarded for their outstanding performance and contributions. Rewards can be public recognition of performance, Third Reward, Second Reward, First Reward and the conferring of an honorary title.

Judges must not engage in any of the following acts: disseminate information harmful to the reputation of the state; participate in illegal organizations; participate in anti-government gatherings, demonstrations and protests; participate in strikes; embezzle or take bribes; practice favoritism in breach of law; extort confessions by torture; conceal or forge evidence; leak state secrets or confidential information related to judicial proceedings; abuse power to violate the lawful rights and interests of citizens, legal persons or other organizations; neglect duties resulting in wrong rulings or serious damages to the litigant(s); purposefully delay proceedings; abuse power to seek profit for themselves or others; engage in business activities; meet in private with litigants and their representatives and accept their gifts and favors.

Judges who engage in any of the above acts will be disciplined to varying degrees. These can be warnings; a record of demerit in personal files; a record of a major demerit; demotion; removal from position; dismissal from office. A removal from position is accompanied by a lowering of salary and rank; those who have committed a crime will be prosecuted for their criminal liabilities.

6. Other Provisions

Judges enjoy rights of retirement, resignation, training, petition and complaint. After retirement, they shall be entitled to pension insurance and other benefits as prescribed by the state.

Forms of Court Trials

According to the Law on the Organization of People's Court and other laws, trials of People's Courts take the following forms:

1. Sole Judge Court

This kind of court is presided over by one judge for trying simple cases. Legally speaking, these cases include:

First-hearing criminal cases handled upon complaint and other minor criminal cases; Simple civil cases and cases involving economic disputes handled by grassroots courts and their detached tribunals; Cases tried using special procedures, except for cases involving voters' qualification or other complicated cases, which should be tried by a collegiate panel.

2. Collegiate Panels

Collegiate panels consist of at least three judges or a combination of judges and People's Assessors. First-hearing criminal and civil cases are generally tried by a collegiate panel except for those simple cases for which a sole judge is sufficient. First-hearing administrative cases, without exception, are handled by a collegiate panel; second-hearing, reexamined cases and death penalty verification cases are handled by a collegiate panel.

A collegiate panel, as a basic form of the People's Court, is not inflexible in its composition; rather, its members are appointed on a case-by-case basis. The president or the presiding judge designates a judge to be the chief judge. When the president of the court or the presiding judge of a tribunal themselves attend a case, they serve as the chief judge concurrently. When assessing a case, the collegiate panel should follow the principle of the minority submitting to the opinions of the majority when disagreement arises. The opinions of the minority, however, should be recorded in the court log with signatures of members of the panel.

3. Judicial Committee

According to the Law on the Organization of People's Courts, courts at all levels set up a Judicial Committee, the members of which are nominated by the president for appointment by the People's Congress at the same level. The Judicial Committee is presided over by the president of the court and its responsibilities include:

Deliberate on major, complicated cases; Summarize judicial practices; Discuss other judicial issues.

The Fundamentals of China's Judicial System

1. Open Trials

Article 125 of the Constitution provides that open trials mean that all cases tried by courts should be conducted openly unless otherwise provided for by the law. Even cases that are not tried openly should be publicized when the verdict is passed. "Open" means the entire process should be open to public auditing and to the press. For cases that, by law, should be open to the public, the court should announce before the trial opens the outline of the case, the name of the litigant, the time and the place of the trial.

Article 7 of the Law on the Organization of People's Courts provides that the following three types of cases are not open to the public:

Cases involving state secrets; Cases involving personal privacy; Cases involving crimes committed by minors. In addition, in accordance with provisions of civil procedure law, cases involving divorce and trade secrets may, upon request by litigants, not be open to the public.

2. Defense System

The Constitution and the law on the organization of courts provide that the accused is entitled to the right to a proper defense. The law on criminal procedure further provides that the courts have the obligation to ensure that the accused obtains defense, and sets forth specific procedures that any suspects or accused may, in addition to exercising the right to defend themselves, appoint one or two representatives to defend them. Those eligible to defend the accused include:

Lawyers; Persons recommended by people's organizations or the employer of the suspect or the accused; The custodian or relative of the suspect or the accused.

However, those that are currently serving a sentence or those that have been deprived of, or are restricted in personal freedom should not represent the suspect or the accused.

For public-prosecuted cases, the suspect has the right to appoint a defender starting from the day the case is transferred for prosecution; for privately prosecuted cases, the accused has the right to appoint a defender anytime. Should the accused, for economic or other reasons, be unable to appoint a defender to a court where a public prosecutor appears, the court may designate a legal-aid lawyer to defend him or her free of charge. Furthermore, when the accused is blind, deaf, mute or a minor and has not appointed a defender, or when the accused may face death penalty and does not appoint a defender, the court should designate a legal-aid lawyer to defend him or her free of charge.

3. Second Instance Being Final

Article 12 of the Law on the Organization of People's Courts states that the courts have to try cases on two levels, with the second instance being the final judgment. This means a case is closed after going through two levels of trial.

The courts practice a four-level system in which the second instance is the final judgment. Jurisdiction depends on the nature and complexity of the case. Should the litigant not agree with the judgment or ruling of the first instance, he or she may, within a specified period of time, appeal to the higher court. If the procuratorate believes that the first-instance ruling or judgment is indeed mistaken, it may, within a specified period of time, protest the ruling or judgment to the higher court. If, within the specified period of time, the litigant fails to appeal and the procurator fails to protest, then the first-instance judgment or ruling stands as the legally binding judgment or ruling. The superior court, after reviewing appealed or protested cases in accordance with second-instance procedures, passes a judgment or ruling that is the final judgment or ruling. Except for cases involving the death penalty, all other cases take legal effect immediately upon announcement.

In accordance with legal provisions, the following cases are tried with the first instance being final:

First-instance cases handled by the Supreme People's Court; Cases heard by grassroots courts in accordance with civil procedures, such as voter qualification cases, cases determining citizens to be legally disabled or partially disabled, cases pronouncing persons missing, cases pronouncing persons dead, or cases determining property unclaimed.

4. System of Collegiate Panels

Article 10 of the Law on the Organization of People's Court provides that courts shall practice a system of collegiate panels when trying cases. Except for first-instance simple civil cases and other cases otherwise provided for by the law, all cases are tried with a collegiate panel present. This system refers to a panel of at least three judges or a combination of at least three judges and People's Assessors, as opposed to trials conducted by one judge alone. The composition of the collegiate panel should be an odd number, usually three, and the principle of the minority submitting to the majority is observed, provided that the opinions of the minority are recorded in the court log. The judges and People's Assessors enjoy the same rights.

5. Challenge System

The challenge system refers to a system in which judicial officers shall or are required to withdraw from the cases because of their special relationship with these cases or litigants, which may undermine the impartiality of the judgment.

In accordance with criminal procedures, judges, prosecutors and investigators who meet any of the following conditions shall voluntarily withdraw or be challenged by litigants or their representatives to withdraw from the cases:

They themselves are litigants or next-of-kin of litigants; They themselves or their close relatives hold stakes in the case; They have held the positions as witness, expert witness, defender or the advocate of litigants in incidental civil actions; They have other types of relations with litigants to the suit that may affect the fair handling of the case.

These restrictions apply to secretaries, translators and experts as well.

The withdrawal of judges is decided by the president of the court; while the withdrawal of the president is decided by the Judicial Committee of the court.

The civil procedure law and administrative procedure law have similar provisions.

6. System for Verification of Death Penalty Cases

This system refers to the procedures and rules that have to be observed in verifying death penalty cases.

The Law on the Organization of People's Courts and the Criminal Procedure Law provide that all death penalty cases, unless handled by the Supreme People's Court, are reported to the Supreme People's Court for verification and approval. The Supreme People's Court, if necessary, may authorize Higher People's Courts at the provincial level to exercise that power for death-penalty cases involving homicides, rape, robbery, explosion and other crimes that seriously threaten public security and social security. Cases involving a death penalty with a two-year probation ruled by intermediate courts are verified and approved by higher courts. Death penalty cases ruled by intermediate courts are first verified and approved by higher courts before being submitted to the Supreme People's Court for verification and approval. Should the higher court disagree with the death penalty verdict, it may want to hear the case or refer it back for re-examination.

7. System for Judicial Supervision

Also known as the re-examination system, this refers to a special arrangement for the court to reexamine judgments and rulings that have already taken effect. It actually represents a remedy to the system of second instance being final.

According to the Law on the Organization of People's Courts and the three procedural laws on civil, criminal and administrative cases, China's system of judicial supervision comprises the following components:

The precondition for initiating the judicial supervision procedure is that judgments and rulings that have already taken effect have been found to contain errors in establishment of facts or application of laws. The judicial supervision procedure can only be initiated by presidents of courts, superior courts, superior procuratorates, the Supreme People's Court and the Supreme People's Procuratorate. The way this procedure works is that presidents of courts ask the Judicial Committee to handle the matter; the Supreme People's Court asks or designates lower courts to reexamine the case; the Supreme People's Procuratorate and higher procuratorates protest a case in accordance with procedures for judicial supervision. In reexamining a case under the judicial supervision procedure, courts form a separate Collegiate Panel. If the original case was a first-instance case, then it should be re-examined in accordance with first-instance procedures; rulings or judgments arising thereof are subject to appeal or protest. If the original case was a second-instance case, or was tried by higher courts, then second-instance procedures should be followed and rulings or judgments arising thereof shall be final.

8. System of Judicial Assistance

This refers to a practice whereby the judicial authorities of a country (usually courts), in accordance with international treaties or bilateral/multilateral agreements (or the principle of reciprocity in the absence of a treaty), perform the judicial procedures at the request of another country's judicial authorities or parties to a lawsuit.

Judicial assistance in China consists of three aspects:

Delivery of documents and investigations in search of evidence; Mutual recognition and enforcement of court rulings and arbitration awards; Criminal judicial assistance, including delivery of documents, investigation in search of evidence and extradition of criminals.

System Governing Investigations

This system governs investigations and other mandatory measures taken in accordance with law by public security authorities and procuratorates in handling cases. It consists of provisions regarding the nature and mission, organizational structure, principles of activities and working procedures of investigation authorities. Status and Nature of Public Security Authorities

Public security authorities are an important part of the government. They are both an administrative arm and a judicial organ since they are in charge of criminal investigations, playing a unique role in cracking down on crimes and maintaining social security.

Criminal Police

Criminal police are a major force of the police.

1. Qualification Requirements for Investigative Officers

Article 26 of the People's Police Law provides that investigative officers should meet the following conditions:

Citizens at least 18 years of age; Support the Constitution of the People's Republic of China; In good political, professional and moral standing; In good health; Have at least a senior high school education; Willing to be a policeman.

Persons who have the following records should not be a member of the police:

Having received criminal penalty for committing a crime; Having been dismissed from public office.

2. Promotions

Police are divided into 13 ranks in five categories:

Police Commissioner and Deputy Commissioner; Police Superintendent Level 1, 2 and 3; Police Inspector Level 1, 2 and 3; Police Sergeant Level 1, 2 and 3; Police Constable Level 1 and 2.

The Ministry of Public Security supervises the ranking and promotions of the police.

Investigations

1. Acceptance and Establishment of Cases

Public security authorities should immediately accept, inquire about, take notes of and hear cases of suspects turned in, reported or brought to the police by citizens or suspects who turn themselves in. Those that meet conditions should be accepted and filed as a case and for complicated and material cases, an investigation plan and, if necessary, necessary measures have to be taken.

2. Procedures for Criminal Investigations

For criminal cases that already been filed with the police, investigations should be launched for a thorough and impartial collection of evidence that may determine whether the suspect is guilty or innocent and, if guilty, whether it is a felon or a misdemeanor. Depending on actual needs, various detective means and measures will be taken in strict compliance with statutory procedures.

3. Procedures for Detentions and Arrests

Public security authorities may proceed to detain criminals caught in the act or material suspects in accordance with statutory procedures; they may also seek approval from procuratorates for an arrest warrant for suspects for whom sufficient evidence of incrimination exists and a sentence is likely, and for whom measures such as obtaining a guarantor in anticipation of trial out of custody and surveillance of residence is insufficient for ensuring social security and order.

4．Procedures for Case Transfer and Prosecution

Cases concluded by public security authorities for which the facts are clearly established, evidence is verified and sufficient, the nature of crime and name of felony correctly defined, legal procedures completed and for which criminal liabilities should be prosecuted, should be transferred to the procuratorate at the same level to determine whether public prosecution is warranted.

5. Procedures for Evidence Gathering

Detectives should strictly follow statutory procedures in collecting all kinds of evidence that can prove whether a suspect is guilty or not, or how serious the felony is. Extortion of confession through torture and collecting evidence through threat, inducement, deception or other illegal means are strictly forbidden.

Public Notary System

Public notaries are persons accredited by the state to witness civil matters for legal purposes. In the past, public notaries were state offices representing the state in witnessing legal relations in civil matters. State notary offices, at the request of applicants, notarize legal acts and the truthfulness and legality of legal documents and facts in order to protect public property and safeguard the lawful rights and interests of citizens. Since October 1, 2000, the Ministry of Justice has implemented a plan to reform the notary system. Under the new scheme, public notary offices are no longer administrative bodies; rather, they are non-profit entities with a legal-person status that independently conduct notary business to meet market demand and assume full responsibility for their operations. In the future, the state will no longer approve the establishment of public notary offices as administrative bodies. Public notaries will be recruited openly through examinations administered by the Ministry of Justice. Setup of Public Notary Offices

Public notary offices are set up in municipalities directly under the central government, counties (autonomous counties), and cities. Subject to approval from judicial authorities of provinces, autonomous regions and municipalities, districts of cities may also set up public notary offices. All the offices are independent of each other.

Each office should have a director and a deputy director who should be notaries themselves.

Scope of Business

Notarize civil legal acts such as contracts, trusts, wills, gifts, division of property, and adoption of children; Notarize facts that amount to civil legal acts such as birth, death, marriage, divorce, kinship, identity, degree, and experience; Notarize documents that amount to civil legal acts such as authenticity of signatures and seals on certificates, consistency of copies of certificates, excerpts, translations and photocopies with the originals; Notarize the enforceability of creditor documents such as repayment agreements and contracts on recovery of debts; Auxiliary business, such as preservation of evidence, maintenance of wills or other documents, drafting notary documents on behalf of clients, notarizing the opening of lottery draws, etc.

Validity of Contracts

Notarized documents are good for the following four purposes:

Evidence. Article 67 of the Civil Procedure Law states, "Legal acts, legal facts and documents that have been notarized through legal procedures should be regarded as a basis for establishing facts, except where opposing evidence is sufficient to overrule the notarized documents." Enforceability. At present, this is limited only to the recovery of debts and goods. Liability documents notarized by public notaries are enforceable; if one party fails to comply, the other party can apply to the local grassroots court that has jurisdiction for enforcement. Legality. This means certain legal acts take effect and become legally binding only after they are notarized. These include adoption of children and marriage registration between Chinese citizens and foreigners. Extraterritoriality. Notarized documents are legally valid outside China. This is an extension of the inherent legal effect of notarized documents abroad. According to international practice, notarized documents sent by Chinese citizens and legal entities for use abroad can take legal effect and be accepted by the host country only after they are certified by the Chinese Foreign Ministry and Foreign Affairs Offices of the provinces, autonomous regions and municipalities or foreign embassies or consulates in China.

Procedures

Public notary offices and persons applying for notarization should observe the following procedures:

1. Application and Acceptance of Applications

Except for wills and adoption, which require the applicant to go to the public notary office in person, citizens or legal persons can authorize an agent to handle the notarization procedures on their behalf. Applications should be filed with a public notary office that has jurisdiction and an application form should be filled out and be affixed with a signature or seal. Applications should come with other supporting documentation such as ID, letter of authorization, documents to be notarized, property ownership certificates or other materials. The public notary office should make a preliminary decision whether to accept the application or not upon receipt of application documents.

2. Review

An important link in notarization, public notaries should carefully review the number of applicants, identity, qualifications, capability of civil acts, intentions of applicants and applicable rights. They should also verify whether the acts, facts or documents to be notarized are true and legal, whether the documents to be notarized are complete, whether the wording is accurate, and whether the signature or seal is complete.

3. Certification

Public notaries should produce a public notary certificate for qualified applicants.

4. Special Procedures

These refer to procedures required for special types of public notarization, such as tendering and bidding, opening of lottery draws and auction bids. In such cases, public notaries should be at the scene themselves and read a public notary statement regarding what is truthful and legal. Furthermore, they should produce a notary document and deliver it to applicants within seven days of notarization.

5. Reconsideration

Applicants who object to decisions given by a public notary office not to accept an application, refuse to notarize or withdraw a public notary document may apply within a specified period of time to the judicial authorities for reconsideration; those who object to the reconsideration decision may file a suit to a court of law within the specified period of time.

System for Judicial Administration

The judicial administration is an important component of the state apparatus and a major functional department of the government. It is responsible for administering judicial execution and managing laws and regulations. Organizationally, the Ministry of Justice supervises all the judicial departments across the country; local judicial authorities are subordinate to superior judicial authorities and to the government at the same level.

Main responsibilities of judicial authorities include:

1. Manage Reform-through-labor and Reeducation-through-labor Institutions

Organize and lead reform-through-labor and reeducation-through-labor work; Set the location of jails and reformatories and placement of prisoners and inmates; Direct, supervise and inspect prisons and reformatories and accurately implement policies and guidelines for reform- and re-education-through-labor work; Propose or review decisions concerning reform- or re-education-through-labor; Draft and review long-term plans and annual plans; Direct jails and reformatories to improve management; Sum up and promote advanced practices in reform- and re-education-through-labor; Inspect and handle major incidents that take place at jails or reformatories; Mete out disciplinary penalties for wardens who violate laws or discipline; Manage, inspect, train and promote officers at jails and reformatories. 2. Regulate Lawyers

Supervise and direct lawyers, law firms and bar associations; Review constitutions of bar associations; Handle applications for taking part in lawyers qualification examination and administer the examination; Confer lawyer's qualifications and licenses; Determine the setup of law firms and the development of lawyers; Draft rules for legal assistance; Penalize lawyers who breach professional discipline, including revoking qualifications of those who are seriously incompetent; Develop rules for lawyers to charge fees; Sum up and promote good practices of lawyers; Draft development plans for the legal profession. 3. Regulate Public Notaries

Supervise public notaries; Determine the setup of public notary offices, the staffing, organization and examination of public notaries; Appoint and remove the director and deputy director of public notary offices; Supervise fee-charging and expenditures by public notaries; Perform disciplinary inspections of public notaries; Sum up and promote good practices of public notaries. 4. Manage Training of Judicial Officials

Draft guidelines for training judicial officials and develop training plans; Direct the operation of political and law schools, including training of faculty and developing of textbooks; Sum up and promote good practices in training. 5. Manage Legal Education

Set the direction of legal education, draft development plans, coordinate legal education nationwide, and collaborate with the Ministry of Education in supervising legal education across the country; Appoint and remove leading officials of political and law schools affiliated with the Ministry of Justice, review and approve capital expenditures and major expenditures of those schools, determine the setup of programs, enrolment and placement of graduates; Take the lead in developing textbooks for legal education across the country. 6. Direct People's Mediation Committees

Manage the organizational, ideological and operational buildup of People's Mediation Committees and direct them in their mediation work; Study causes, characteristics and patterns of civil disputes and propose ways to prevent such disputes; Publicize policies, laws and ethics; Sum up and promote good practices in mediation. 7. Promote Public Awareness of Rule of Law

This includes collaboration with relevant departments in launching publicity campaigns, introducing legal courses into schools and publishing legal periodicals and books.

8. Supervise Foreign Affairs of Judicial Departments.

The Ministry of Justice supervises all foreign affairs of the country's judicial organs. This entails determination of direction, scope and forms of foreign affairs and logistical arrangements; sending delegations to visit abroad and attend international conferences; receiving foreign visitors and briefing them on China's legal developments; conducting international legal assistance.

9. Supervise Theory-building and Research in Judicial Administration

Define the organizational setup and missions of research institutions in the judicial apparatus; Draft laws, regulations and rules concerning judicial administration; Study issues related to judicial administration, crimes (particularly juvenile delinquency).

Legal Assistance

Legal assistance is a system of legal remedy adopted by many countries in the world. Under this system, the state, throughout the legal process and at all levels, provides legal assistance, through reduction or exemption of fees, to the underprivileged of society who have difficulty safeguarding their own rights through the normal legal means, because of economic problems or otherwise. As a major safeguard to realize social justice and judicial parity and to protect civil rights, legal assistance occupies a very important position in a country's judicial system. Article 34 of the revised Criminal Procedure Law of the People's Republic of China, passed on March 17, 1996, states, "For public-prosecuted cases, the court can designate a lawyer who provides legal assistance to defend the accused if the accused fails to appoint a defense attorney for economic or other reasons. If the accused fail to appoint a defender because they are blind, deaf, mute or a minor, the court should designate a lawyer who provides legal aid to defend the accused. If the accused receives a death penalty, but fails to appoint a defense attorney, the court should designate a lawyer who provides legal aid to defend the accused." This is the first time in the history of Chinese legislation that legal assistance was written into law.

The Lawyers Law, passed on May 15, 1996, provides more specifics with regard to legal assistance. Chapter 6 of the law says, "Citizens who need legal assistance but cannot afford to pay for lawyers' fees, may, in accordance with state regulations, seek legal assistance in matters such as supporting the elderly, workplace injuries, criminal lawsuits, state compensation, and the granting of pensions for the disabled or survivors of an accident. Lawyers should assume the responsibility of legal assistance and dutifully help those in need in accordance with State regulations. Specific rules for legal assistance will be worked out by the State Council judicial administration and submitted to the State Council for approval." These provisions define the scope of legal assistance and require lawyers to provide legal assistance. In addition, they lay the foundation for future legislation on legal aid.

At present, China has formed a four-tier legal assistance structure:

1. At the national level, a Center for Legal Assistance has been created under the Ministry of Justice to supervise and coordinate legal assistance across the country. This center, created on May 26, 1997, is responsible for supervising legal assistance, drafting regulations and rules, mapping out medium- to long-term plans and annual plans, coordinate legal assistance work nationwide, and conducting exchanges with foreign legal-aid groups and individuals.

On the same day, the China Legal Aid Foundation was created to raise, manage and use the funds, publicize the legal aid system, and promote judicial justice. Funding comes from donations and sponsorships given by domestic organizations, enterprises and individuals; interest; proceeds from bond and stock trading.

2. Legal-aid centers have also been established in provinces (autonomous regions) to supervise and coordinate legal-aid work in their respective jurisdiction.

3. The next tier is prefectures and cities where the legal-aid centers perform a dual duty: administer and implement legal-aid programs in their jurisdiction.

4. Finally, where conditions permit, legal-aid centers are also set up in counties and districts; where conditions do not permit, the Judicial Bureau of the counties and districts should be responsible for legal aid.

Applicants for legal aid should meet two conditions: that have sufficient reason to prove they need legal assistance to safeguard their lawful rights and interests; and that they indeed cannot afford to pay, in part or full, the legal fees.

Legal assistance is rendered by three groups of people: lawyers, public notaries and grassroots legal professionals. Lawyers provide procedural aid (including defense for criminal cases, representation for criminal cases, and representation for civil procedures) and non-procedural aid; public notaries provide notarization assistance; grassroots legal professionals provide legal counseling, document drafting and general non-procedural aid.

In China, legal aid is funded by three sources: government, social donations and volunteering. Though still in an embryonic stage, China's legal-aid system as a major legal institution will surely play an important role in realizing the rule of law in China, safeguarding fundamental human rights and promoting social stability.

Legal System in Hong Kong, Macao and Taiwan

Hong Kong On July 1, 1997, the People's Republic of China resumed the exercise of sovereignty over Hong Kong. To maintain national unity and territorial integrity and Hong Kong's prosperity and stability, the Chinese government, in accordance with the "one country, two systems" policy and provisions of the Constitution, set up the Hong Kong Special Administrative Region (HKSAR). The HKSAR bases all its institutional setup, including the legal structure, on the Basic Law of the HKSAR.

According to the Basic Law of the HKSAR and other laws of Hong Kong, the judicial organ of the HKSAR consists of courts at all levels that exercise judicial powers and other bodies such as the Department of Justice that exercise prosecution powers.

1. Court system

Grassroots courts: district courts, magistrates' courts and special courts; High courts: Court of Appeal and the Court of First Instance; Court of Final Appeal

Note: Sources from Xiong Xianjue, New Views on China's Judiciary and Its System, China Legal Press, 1998.

Hong Kong has four district courts that adjudicate civil and criminal cases within their jurisdiction. In addition, it has nine Magistrates' Courts that are the primary courts for criminal cases. The High Court exercises judicial powers on civil and criminal cases, while the Court of Final Appeal exercises the final judicial power.

2. Prosecution

Article 63 of the Basic Law of the HKSAR states, "The Department of Justice of the HKSAR controls criminal prosecutions, free from any interference." The Department of Justice is the largest legal institution in Hong Kong, a unique, complicated and diversified department. Its responsibilities involve legislation, judicial administration, prosecution, civil representation, legal and policy drafting and reform, and the legal profession. In terms of nature and mission, it is similar to the US Department of Justice.

The Department of Justice as the prosecution, aside from prosecuting criminal cases in Hong Kong, also appears in court on behalf of the government in all civil (including administrative) lawsuits against the government. As the protector of public interests, it can apply for a judicial review; it can also appear in court on behalf of public interests to participate in the trial of cases that involve material public interests. It also informs courts of acts of contempt of court and assist courts in its operations. The attorney general is the legal counsel to the HKSAR government and the Chief Executive. In a word, except for judicial power, the Department of Justice almost handles everything else.

Macao

On December 20, 1999, the Chinese government resumed exercise of sovereignty over Macao and the Macao Special Administrative Region (MSAR) was established. According to the Basic Law of the MSAR, MSAR practices a high degree of autonomy and exercises independent judicial and final-appeal powers. This constitutes the cornerstone of the judiciary of the MSAR.

1. Court System

The MSAR has a three-tier court system: lower, intermediate and final-appeal courts. There is no district court because of the limited geographical size of the region. There are, therefore, few special courts; only administrative courts are created.

Lower courts Lower courts in the MSAR are first-instance courts which, depending on needs, can have special tribunals for criminal, civil or economic cases.

Intermediate courts These courts exercise part of the powers that used to be exercised by the High Court before Macao's return to China.

Administrative courts These are special courts for handling administrative, taxation and customs cases and they are lower courts. Litigants who object to their ruling can appeal to intermediate courts.

Final-appeal court As the name indicates, the final-appeal court exercises the power of final adjudication.

2. Prosecution

The MSAR's prosecution exercises the following nine powers:

Participate in lawsuits on behalf of the Macao region, municipal government and persons with legal disabilities; Bring criminal actions and appear in courts in support of public prosecution during trials of criminal cases; Maintain judicial independence and enforce court rulings; Represent laborers and their dependents in courts; Lead criminal investigations and supervise the police; Prevent crimes and participate in lawsuits involving bankruptcy and public interests; Provide legal counseling to the Governor (Chief Executive); Protest undue rulings of courts; Exercise other powers as granted by law The prosecution of the MSAR is an independent body. It enjoys a status similar to the Supreme People's Procuratorate of the People's Republic of China, but there is a major difference between the two: the Chief Prosecutor of the MSAR's prosecution is nominated by the Chief Executive and appointed by the central government; the prosecutors are appointed and removed by the Chief Executive. Therefore, the MSAR prosecution is under strict scrutiny and supervision of the Chief Executive.

Taiwan

The "central government" in Taiwan has established five "Yuan" (house) for executive, legislative, judicial, impeachment and examination affairs.

The "Judicial Yuan" has a unique position in the government. It has a "president" and a "vice president," a secretary general and a deputy secretary. The "Judicial Yuan" has a panel of 17 justices. It consists of common courts, administrative courts, public-servants disciplinary committee and various other committees. The "Judicial Yuan" exercises wide-ranging powers, including civil, criminal and administrative judicial powers, public-servants disciplinary powers and the power to interpret the "Constitution" and laws. In addition, the various committees under the "Judicial Yuan" also exercise their own powers.

Organizational Chart of the "Judicial Yuan"

The "Ministry of Justice" is subordinate to the "Executive Yuan" in charge of administrative affairs related to prosecution, prison management and judicial protection, as well as legal affairs of the "Executive Yuan." The "Minister of Justice" oversees the operation of the ministry and prison management. There is an "executive minister" and an "assistant minister" under the "minister."

Organizational Chart of "Ministry of Justice"

Organizations Affiliated to the "Ministry of Justice"

1. Court system

Taiwan has a three-tier court system: Supreme Court, High Courts, and District Courts. Their interrelationship is of a judicial rather than a hierarchical nature.

Supreme Court The Supreme Court is the highest judicial organ in Taiwan and the court of final appeal. It has five civil tribunals and five criminal tribunals.

High Courts High Courts are established in the provinces or special regions and represent the second tier of Taiwan's court system. Each High Court has several tribunals for civil and criminal trials. Each tribunal has a presiding judge and two judges. Special courts may also be set up. Other institutions include a public prosecutor, criminal archive center and clerks.

District Courts These courts, the lowest in the court system, are set up in counties or cities. If the county or city is small, a court may be set up for several counties or cities; on the other hand, if the county or city is too large, branch courts may be set up. Local courts are usually presided over solely by one judge. Cases of major proportion are presided over by a panel of three judges.

Chart of Courts at Various Levels and Their Major Responsibilities

2. Prosecution System

Taiwan has a three-tier prosecution system: the Supreme Court's Prosecution Department, High Courts' Prosecution Division and District Courts' Prosecution Section. All belong to the "Ministry of Justice," which, in turn, is under the "Executive Yuan."

Prosecution Department of the Supreme Court This department consists of one prosecutor-general and a number of prosecutors. The prosecutor-general oversees prosecution affairs, and implements programs and drafts work plans.

Prosecution Divisions of High Courts Each division has a chief prosecutor and several prosecutors.

Prosecution Sections of District Courts Like their higher counterparts, each of these sections has a chief prosecutor and a number of prosecutors, with the chief prosecutor responsible for supervising prosecution affairs of that court, disciplining court staff, and evaluating their performance.