Judicial system

Judicial system

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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.

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.