Civil justice reform has burst onto the public agenda in many countries, its supporters ranging from individual commentators to international bodies such as the World Bank. China is no exception and the government has responded, announcing a new, key phase in its civil justice development program.
It now seems accepted in China that a substandard civil justice system causes major harm. It injures the individuals and businesses that are subject to it and also works against all sorts of political goals, from anti-corruption to product safety to environmental protection. Without effective controls, laws on the statute book cannot be translated effectively into factual realities except as crude approximations.
Reform of such a system is never easy, in any country. Vested interests come into play and observers often disagree as to what the problems are and what should be done about them. Change is slowed by the mental habits of the existing judiciary, practitioners and other habitual participants, as well as unintended consequences.
Towards the end of 2005, the Supreme People's Court President, Xiao Yang, announced an ambitious five-year reform program for the Chinese courts. Further emphasis was given to this at the National People's Congress in March. The most important problems to be addressed are:
Incompetence among some of China's 200,000 or so judges. The plan identifies training as part of the answer and doubtless that is true, though broader concepts of professionalism and integrity cannot be internalized through schooling alone.
Lack of judicial independence. Reform efforts here will apparently focus on reducing the influence of local government on local judges, a significant problem in China given the continuing importance of the state-owned business sector. Independence from the central government is a rather more complicated matter: influence at that level tends to be driven more by broader policy concerns than by private financial interests and its attenuation would have obvious political implications. Thus, there is no proposal yet for security of judicial tenure; nor for a more transparent appointment system; nor for the abolition of the practice of judges seeking behind-the-scenes guidance from more senior judges on the acceptance or disposal of difficult cases (though there is some talk of limiting this). It is probably right to leave these difficult issues alone for now, but they will have to be addressed in the future.
Difficulties in enforcing court orders in practice. If civil judgments are to be more than merely advisory, an effective method of enforcement is essential. The options boil down to seizing the judgment debtor's assets or imposing some unpleasant consequence for violating the court's order (such as imprisonment or a fine). This is currently a weak aspect of the Chinese civil justice system in many provinces, with local influence sometimes being brought to bear to block enforcement. According to the reform plan, much attention is to be given to this issue.
Finality. Another problem with the current Chinese civil court system is that judges can too easily procrastinate when a judgment is sought to which the claimant is entitled, yet which would be contrary to powerful interests. A related problem is that China has a system whereby officials known as procurators can challenge civil judgments in another first-instance court. This system carries an inherent risk of lobbying and the use (or abuse) of connections. We are told that action will be directed at solving these problems, though the details remain unclear.
Lack of predictability in interpreting the law. Predictability of legal consequences is important, both as a matter of fairness to individuals and to enable rational economic planning. While Chinese legislation has become famous for its vagueness, the problem of ambiguous statutes exists in all legal systems, and can be much lessened by judicial guidance on the tricky points. The reforms propose to assist the development of such a system in China by promoting publication of judgments and increasing their status as "guidance" on the interpretation of the law (a concept not as rigid as the Anglo-American precedent system, but similar to the principle which applies in continental Europe).
All good stuff, but it remains to be seen what will happen in practice. First, there is likely to be a tense debate behind the scenes. Many powerful people benefit from the loopholes of the current system. While it is encouraging that the government has turned its attention to these issues, the specific package and the effectiveness of its implementation have yet to become clear. As usual, the key political debates will take place out of the public gaze.
Secondly, the effective change of a civil justice system needs to be a slow and cautious process if it is to succeed. History suggests that the most important changes develop over generations, not by sudden reform. In a way, the newness of the existing Chinese civil justice system (which is substantially a creature of the last quarter-century, albeit with some older influences) makes it easier to mould: problems are not yet too deep to uproot. The risk, of course, is that the changes will be unprincipled and easily undone if they prove inconvenient to powerful interests.
This leads on to a third point: institutional reforms can only succeed if they proceed in parallel with the development of a sufficient number of independent-minded and principled legal professionals conscious of the spirit of the laws, not just their letter. The growth of such a body of people is well under way, but its future development seems likely, in turn, to depend on the broader development of civil society and political institutions.
The reform train seems to be moving in the right direction but may yet be derailed. Let us hope not, in the interests of China and the world.
The author is a partner with Herbert Smith LLP in Shanghai and heads the firm's mainland China dispute resolution service.
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