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Advances in Social Sciences Research Journal – Vol. 11, No. 1
Publication Date: January 25, 2024
DOI:10.14738/assrj.111.16322.
Zhu, S. (2024). Chinese Judicial Reform and Legislative Reform: Conflicts and Mutual Promotion. Advances in Social Sciences
Research Journal, 11(1). 308-317.
Services for Science and Education – United Kingdom
Chinese Judicial Reform and Legislative Reform: Conflicts and
Mutual Promotion
Shaoming Zhu
University College Cork School of Law
ABSTRACT
In the Chinese law context, judicial reform has close consequences on legislation.
On the one hand, some judicial reform outcomes have become laws. On the other
hand, when some of the measures and policies of the judicial reform are not
consistent with the Constitution and other laws, they could cause problems in
practice. This paper argues that judicial reform should be coherent with legislative
reform in order to ensure consistency with the Constitution, maintain uniformity in
the application of law, and prevent the legislature from exceeding its authority. The
purpose of this paper is to consider the legitimacy and limit of the judicial reform
power, and search for a balance between efficiency and legitimacy in judicial
reform.
THE ROOTS OF JUDICIAL REFORM
It has been more than two decades since China first started the idea of judicial reform at the
National Working Conference on Political Science and Law in 1992. 1 The conference put
forward that the political and legal work in terms of the institution, policy, relevant regulations,
and work methods shall be reformed and progress shall be made gradually.2 Meanwhile, “rule
of law” was first proposed in 1997 at the 15th National Congress of the Communist Party of
China.3 In 1999, an Amendment of the Constitution of the People’s Republic of China was
approved and a new first paragraph was added to Article 5 of the Constitution, which reads,
“The People’s Republic of China governs the country according to law and makes it a socialist
country under rule of law.”4 In 2002, “rule of law” was written into the Constitution of the
Communist Party of China.5 Following the Hu administration’s realization of “the importance
of the rule of law by deepening its knowledge of its own administration and summarizing its
long-term practice and experience”,6 the “rule of law” has been strengthened under the Xi
1 News of the Communist Party of China, http://dangshi.people.com.cn/GB/151935/176588/176597/10556460.html
2
Id.
3 Zemin Jinag’s report at the 15th National Congress of the Communist Party of China,
http://cpc.people.com.cn/GB/64162/64168/64568/65445/4526287.html
4 Amendment to the Constitution of the People’s Republic of China,
http://www.npc.gov.cn/englishnpc/Constitution/node_2827.htm
5 The Constitution states that: the Communist Party of China leads the people in promoting socialist democracy. It
integrates its leadership, the position of the people as masters of the country, and the rule of law, takes the path of
political development under socialism with Chinese characteristics, expands socialist democracy, improves the
socialist legal system, builds a socialist country under the rule of law, consolidates the people’s democratic
dictatorship and builds socialist political civilization.
6
Jintao Hu presided over the Politburo collective study and emphasized to strengthen the administrative capacity,
http://www.chinanews.com/others/news/2006/07-03/752377.shtml
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Zhu, S. (2024). Chinese Judicial Reform and Legislative Reform: Conflicts and Mutual Promotion. Advances in Social Sciences Research Journal,
11(1). 308-317.
URL: http://dx.doi.org/10.14738/assrj.111.16322
administration. On November 12th, 2013, the Third Plenary Session of the 18th CPC Central
Committee adopted “The Decision on Major Issues Concerning Comprehensively Deepening
Reforms”, which decides legal reform as one of the focus points of the comprehensive reform.7
In order to put the Decision into operation, the People’s Supreme Court, the People’s
Procuratorates, the Ministry of Public Security and the Ministry of Justice have all issued
specific measures regarding deepening legal reform. For example, on February 26, 2015, the
Supreme People’s Court formally released the Opinion of the Supreme People’s Court on
Deepening Reform of the People’s Courts Comprehensively,8 which has become the guiding
document for the reform in local courts. People’s courts in many provinces have started the
reform process according to this Opinion.
During the past 20 years, judicial reform has become a very important power to push forward
the rule of law in China. The reforms on the court system, the procuratorate and the judicial
administration have made great progress.
JUDICIAL REFORM AND EXISTING LAW
The other direct impact of judicial reform is legislative activities and the enforcement of
legislation. Some of the trials and output of the legal reforms have become legislation, especially
legislation on criminal matters and administrative matters. These reform measures can be
divided into two situations. One is that the reform measures are completely new that are aimed
to supply the existing rules and improve the efficiency and guarantee justice of the judicial
system. For example, the administrative cross-regional jurisdiction was a judicial reform
experiment in some local courts and did not exist in the 1990 Administrative Law. However, it
was written into the Administrative Law in 2015 as a supplement of the previous law.
The other situation is to replace the past practice with new rules and systems. For example,
community correction, as an important part of the judicial reform, has been applied as a
consequence of abolishing the practice of re-education through labor. The system of re- 7 The PlenumResolution concernsthe judicialstructuralreformand operationalmechanisms and putsforward a series of new,
interrelated measures, which include reforming judicialmanagementsystems, promoting the united management of assets of
local courts and procuratorates at provincial levels and lower, and exploring the establishment ofjudicial jurisdiction systemsthat
are appropriately separated fromadministrative divisions; completing operationalmechanismsforjudicial power, perfecting case
handling responsibility systemsfor presiding judges and collegiate benches, and letting those who hear casesjudge, and those who
judge, be responsible;strictly standardizing sentence commutation, parole andmedical bail procedures; completingmechanisms
to prevent and correctmisjudged cases, and investigate responsibility, and strictly implementing rulesto eliminate illegal evidence;
establishingmechanismsto end letters and petitionsrelating to the laworto lawsuits according to the law; abolishing the re- education through laboursystem, perfecting punishment and correction lawsfor unlawful and criminal acts, etc.
http://cpc.people.com.cn/n/2013/1116/c64094-23561783-5.html,
English version: http://chinacopyrightandmedia.wordpress.com/2013/11/19/explanation-concerning-the-ccp-central- committee-resolution-concerning-some-major-issues-in-comprehensively-deepening-reform/#more-3235
8 According to “Opinion on ComprehensivelyDeepening the Reformofthe People’s Courts”, which is also known as “the Third
Five-Year ReformOutline ofthePeople’s Courts(2014-2018)”,the reformofthe people’s courtsinclude sevenmain tasks: 1)
Establish a judicial jurisdiction systemproperly independentfromthe administrative jurisdiction divisions; 2) Establish a litigation
systemwith courtroomtrial asfocus; 3)Optimize the internal allocation of functions and duties ofthe people’s courts; 4) Perfect
the operatingmechanismofjudicial powers; 5) Establish an open,transparent, and convenientjudicialmechanism; 6) Promote the
professionalismofjudgesin courts and deepen reformof court personnelmanagement; 7) Ensure the people’s courtsto
independently and fairly exercise theirjudicial powers according to laws and regulations.
http://chinalawtranslate.com/court-reform-plan/?lang=en
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Advances in Social Sciences Research Journal (ASSRJ) Vol. 11, Issue 1, January-2024
Services for Science and Education – United Kingdom
education through labor had been criticized for infringing on human rights, as well as violating
the Constitution, the Legislation Law and the Law on Administrative Penalty. In 2003, China
launched the first trial of community correction as a new way to “improve punishment and
correction laws regarding illegal and criminal acts.”9 Since then, community correction was
practiced nationwide until 2009.10 In 2012, community correction was officially written into
the Criminal Procedure Law.11
Meanwhile, some reform measures have not been adopted by the legislature, although they
have proven sufficient. For example, the improvement of the juvenile justice system has been
an important delegation in the judicial reform progress. In 2007, the People’s Supreme
Procuratorate issued the “Notice of the Supreme People’s Procuratorate on Issuing the Rules
for the People’s Procuratorate’s Handing of Criminal Cases Involving Minors,” in which some
protective measures for the juveniles are suggested, such as not using compulsory tools when
interrogating criminal juvenile suspects.12 These measures were considered beneficial to the
juveniles’ mental health, but they are not adopted by the revised Criminal Law. Except the
circumstances where judicial reform can promote or inspire new legislation, judicial reform
can also cause conflicts with current legislation. Some measures on legal reforms are not
consistent with existing laws and the legal reform effort itself is running outside the framework
of the current legal system. For example, the reform of the court personnel management is
challenging the existing laws that govern the relevant issues. The Opinion of the Supreme
People’s Court on Deepening Reform of the People’s Courts Comprehensively states that, to
reform the selection system for judges, it will establish distinct qualifications for judicial
appointments, establish judicial election committees at the provincial level, increase the age of
newly appointed judges and establish mechanisms for unified nominations. 13 However,
according to Article 101 of the Constitution,14 Article 8 of the Organic Law of the Local People’s
Congresses and Local People’s Governments, 15 and Article 11 of Judges Law (2001), the
9 Decision of the Central Committee of the Communist Party of China on Some Major Issues Concerning
Comprehensively Deepening the Reform, X. Promoting the Rule of Law (34) Improving the judicial system to protect
human rights, November 2013.
10 The mechanism of community correction is gradually improved, http://www.gov.cn/jrzg/2011-
02/21/content_1807330.htm
11 Criminal Procedure Law, Article 258: Where a criminal is sentenced to public surveillance, gets suspended sentence,
is on parole or temporarily serves his/her sentence outside prison, the criminal shall, in accordance with the law, be
subject to community correction carried out by a community correction organization.
12 Article 11, Notice of the Supreme People’s Procuratorate on Issuing the Rules for the People’s Procuratorate’s
Handing of Criminal Case Involving Minors, September 2006. http://www.spp.gov.cn/site2006/2007-02-
01/0005412013.html
13 50, 54 of The Opinion of the Supreme People’s Court on Deepening Reform of the People’s Courts Comprehensively.
14 The Constitution, Article 101: (1) Local people’s congresses at their respective levels elect and have the power to
recall governors and deputy governors, or mayors and deputy mayors, or heads and deputy heads of counties,
districts, townships and towns. (2) Local people’s congresses at and above the county level elect, and have the power
to recall, presidents of people’s courts and chief procurators of people’s procuratorates at the corresponding level.
The election or recall of chief procurators of people’s procuratorates shall be reported to the chief procurators of the
people’s procuratorates at the next higher level for submission to the standing committees of the people’s congresses
at the corresponding level for approval.
15 The Organic Law of the Local People’s Congresses and Local People’s Governments of the People’s Republic of
China, Article 8: Local people’s congresses at and above the county level shall exercise the following functions and
powers: (6) to elect the presidents of the people’s courts and the chief procurators of the people’s procuratorates at
the corresponding levels; the election of the chief procurator of a people’s procuratorate shall be reported to the