The judicial system of the People's Republic of China is a complete compact set of people's judicial system, which has played a unique role in the state system.
Broadly speaking, the judiciary in China means law-enforcement activities conducted by the country's judicial organs and organizations in handling prosecuted or non-prosecuted cases. 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 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.
I. Organization, Functions and Powers of the People's Courts
The people's courts of the People's Republic of China are the judicial organs of the state. The People's Republic of China establishes the Supreme People's Court, local people's courts, and special people's courts.The Supreme People's Court supervises the administration of justice by the people's courts at various local levels and by the special people's courts. People's courts at higher levels supervise the administration of justice by those at lower levels. Local people's courts are established according to the administrative divisions, while special people's courts are set up where necessary.
The people's courts try all cases publicly, except those involving state secrets, individual privacy or minors. The accused has the right to defense. Besides the right to defend himself/herself, he or she may also be represented by a lawyer or ask near relatives or guardians to defend him/her.
The Supreme People's Court
The Supreme People's Court, located in Beijing, capital city of China, is the highest judicial organ in China. The Supreme People's Court is responsible to the National People's Congress and its Standing Committee. The Supreme People's Court supervises the administration of justice by the people's courts at various local levels and by the special people's courts. The Supreme People's Court exercises the following functions and powers:
(1) Trying the cases that the Supreme People's Court claims to be heard by itself; (2) hearing appeals against the legal decisions of higher courts and protested cases submitted by the Supreme People's Procuratorate in accordance with legal procedures; (3) supervising the work of local courts and special courts at every level, overruling wrong judgments they might have made, and deciding to review the cases itself or to direct the lower-level courts to conduct a retrial; (4) checking the cases of death penalty reported by high people's courts; and (5) giving a judicial explanation of the law in the judicial process which becomes effective nationally.
Local people's courts at various levels
The local people's courts consist of the high people's courts, the intermediate people's courts and the primary people's courts.
The high people's courts are established at the levels of provinces, autonomous regions and municipalities directly under the Central Government. They exercise the following functions and powers:
(1) Trying criminal, civil and administrative cases as courts of first hearing under their jurisdiction; (2) hearing appeals against the legal decisions of intermediate courts and appeals proposed by the people's procuratorates at the corresponding level according to legal procedures; (3) overruling wrong judgments the lower-level courts might have made, deciding to review the cases themselves or to direct the lower-level courts to conduct a retrial; and (4) checking the cases of death sentence with a reprieve reported by intermediate people's courts and the cases of death penalty authorized by the Supreme People's Court.
The intermediate people's courts areestablished at the levels of cities with districts and prefectures. Their main functions and powers are as follows:
(1)Trying criminal, civil and administrative cases as courts of first hearing under their jurisdiction; (2) hearing appeals against the legal decisions of primary courts and appeals proposed by the people's procuratorates at the corresponding level according to trial and supervising proceedings; and (3) deciding to review the cases themselves or to direct the primary courts to conduct a retrial, overruling wrong judgments the primary courts have made according to legal procedures.
The primary people's courts consist of those courts set up in counties, autonomous counties, cities not divided into districts and municipal districts. Their main functions and powers are as follows:
(1)Trying all cases as courts of first hearing which are not included in the spheres of higher-level courts; (2) reviewing the cases themselves and overruling wrong judgments they have made according to the trial procedures; and (3) directing people's mediation committees in their work.
Special people's courts
Special people's courts are courts set up in special departments for special cases wherever necessary. Currently, there are three special court systems in China, namely, the military judicial system, the railway transport court system and the maritime court system.
Military courts are set up at three levels: the PLA Court, Great Military Region, Services and Arms, and grassroots 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. 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.
The Railway transportation tribunals are special courts set up along railways that mainly try criminal cases investigated by railway public-security authorities and filed by railway prosecutors and cases involving economic disputes.
II. The Trial System of the People's Courts
Open Trials
Except in special circumstances as specified by law, all cases in the people's courts are heard in public. For cases that, by law, should be open to the public, and open means the entire process should be open to public auditing and to the press. 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. Even cases that are not tried openly should be publicized when the verdict is passed.
In accordance with the law, the following four types of cases are not open to the public: (1) cases involving state secrets; (2) cases involving personal privacy; (3) cases involving crimes committed by minors; and (4) cases involving divorce and trade secrets may, upon request by litigants, not be open to the public.
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.
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 have special types of relations with litigants to the suit that may affect the fair handling of the case shall voluntarily withdraw or be challenged by litigants or their representatives to withdraw from the cases.
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.
Second Instance Being Final
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. 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-level 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.
III. Judge System
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.
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.
Chapter 4 of the Judge Law of the People's Republic of China, promulgated on February 28, 1995, specifies that judges be elected with the following qualifications:
(1) A citizen of the People's Republic of China;
(2) At least 23 years of age;
(3) Supports the Constitution of the People's Republic of China;
(4) In good political, professional and moral standing;
(5) In good health; and
(6) 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.
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.
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. 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 who engage in any bad 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.
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.
The Prosecution System
I. Organization, Functions and Powers of the People's Procuratorates
The People's Republic of China establishes the Supreme People's Procuratorate, local people's procuratorates, and special people's procuratorates such as military procuratortates.
People's procuratorates at higher levels direct the work of those at lower levels. Such a top-down structure reflects the pyramid structure of the country's prosecution, in which the superior leads the subordinate. This is noticeably different from the court system in which the higher court supervises the lower court. This centralized system is created to maintain the consistency of the country's legal structure.
The Supreme People's Procuratorate is the highest procuratorial organ. The Supreme People's Procuratorate leads local and special people's procuratorates. Local people's procuratorates include provincial, autonomous regional and municipal people's procuratorates and their branches, as well as procuratorates at the autonomous prefecture, cities directly under provincial governments; county, city, autonomous city and urban district levels. Special procuratorates include military and railway transportation prosecution. Procuratorates are established at levels corresponding to those of courts so that cases can be prosecuted in accordance with legal procedures.
In accordance with the Law on the Organization of People's Procuratorates and other related laws, the people's procuratorates exercise the following functions and powers:
1.Exercise the power of prosecution on cases of treason, separatism and major crimes seriously hindering the uniform implementation of the state's policies, laws, writs, and administrative decrees;
2.Investigate criminal cases they directly handle;
3.Review cases investigated by public security and state security authorities to decide if arrests, prosecutions are warranted; supervise the legality of such investigations;
4.Initiate public prosecution and support public prosecution for criminal cases; supervise the legality of trials conducted by courts;
5.Supervise the rulings and judgments on criminal cases and the legality of activities of jails, detention centers and reform-through-labor institutions;
6.Supervise civil and administrative trials of courts.
II. System of Prosecutors
Prosecutors include chief prosecutor and deputy prosecutor of people's procuratorates at all levels, members of the procuratorial committees, prosecutors and assistant prosecutors.
The chief prosecutor is elected and removed by the people's congress at the same level, but the appointment and removal of local chief prosecutors have to be reported to the chief prosecutor of higher procuratorates who, in turn, will submit the appointments and removals to the standing committee of the people's congress at the same level for approval.
The appointment and removal of the deputy chief prosecutor, members of the procuratorial committee and prosecutors must be submitted to the standing committee of the people's congress at the same level, but the appointment and removal of assistant prosecutors can be approved by the chief prosecutor.
Prosecutors must meet the following conditions:
(1)Be a citizen of the People's Republic of China;
(2)Be at least 23 years of age;
(3)Support the Constitution of the People's Republic of China;
(4)Be in political, professional and moral standing;
(5)Be in good health; and
(6)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 law with a full year of working experience; those holding a Master's or Ph.D. degree in law are not subject to the working-experience limit described above.
Prosecutors are divided into 12 ranks, with the highest being the Chief Prosecutor of the Supreme People's Procuratorate, followed by Grand Prosecutors, Senior Prosecutors and prosecutors (level 2 through 12). The ranking of prosecutors is determined by a range of factors, including their position, performance, professionalism and seniority. Awards are typically a combination of moral and material incentives. These include public recognition of achievements, Third Prize, Second Prize, First Prize and the conferring of an honorary title. Penalties include warning, 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.
Prosecutors are free from interference in exercising their judicial powers from any administrative authorities, social organization or individual; they shall not be removed, demoted, dismissed or disciplined unless for statutory reasons and procedures. Prosecutors receive legal protection for their corporal, property and residential safety. Prosecutors receive remuneration for their performance of duties and enjoy insurance and other benefits. Prosecutors are entitled to powers and working conditions befitting their performance of duties; and they have the right to resign, petition or accuse.
System Governing Investigations
In China, public security organs are an important part of the government. They are both an administrative arm and a judicial organ since they are in charge of public security and criminal investigations, playing a unique role in cracking down on crimes and maintaining social security.
The system governing investigations in China includes:
1.Acceptance and Establishment of Cases
Public security organs 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 organs 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.
Procedures for Case Transfer and Prosecution
Cases concluded by public security organs 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.
The Jail System
Article 3 of the Prison Law states that prisons should follow the principle of combining penalty with reform, education with labor, in a bid to reform prisoners into law-abiding citizens.
Prisons in China are divided into two categories:
Prisons incarcerating inmates who have been condemned by courts to a fixed-term sentence, life sentence or death penalty with two years reprieve. Male and female inmates are warded separately, with female wards managed by female law enforcement personnel. Prisons may also be divided into wards for felons and criminals of misdemeanor.
Penitentiaries for juvenile delinquents, criminals of minor age who have been condemned by courts to a fixed-term sentence, life sentence or death penalty with two years reprieve. Special protection is extended to juvenile delinquents, with customized procedures in place to cater to their needs.
Prison Setup and Staffing
The Prison Law provides that the State Council judicial administration approves the establishment, elimination and relocation of prisons in line with historical, economic and natural factors. This provision is designed to optimize the distribution of prisons and ensure the unified, effective and accurate execution of penalties. Prisons usually have one warden and several deputy wardens and various administrative departments and staff. In addition to administrative offices and commercial institutions, prisons also have sanitary and education facilities.
The Prison Law provides that the managerial personnel of prisons are members of the police force who enjoy the same legal status as public security and traffic police.
Financial System of Prisons
The Prison Law states that the state ensures funding for prisons in reforming inmates. Expenses related to prison police, reformation of prisoners, daily life of inmates, maintenance of prison facilities and other items are budgeted for in the central government's planning. The state provides production facilities and funding needed for prison labor. Land, mineral resources and other natural resources legally employed by prisons, as well as the property of prisons are protected by law; no entity or individual can trespass or damage those properties.
The Arbitration System
The arbitration system is an important component of the judicial system in China. The Arbitration Law of the People's Republic of China, promulgated on August 31, 1994, unified arbitration practices across the country and harmonizes China's arbitration system with internationally accepted principles, systems and practices.
I. Basic Principles of the Arbitration System
1.Voluntarism
Parties to a dispute should voluntarily reach an agreement to resolve their dispute through arbitration. An arbitration committee shall not consider a case without application from a party to the agreement.
2.Independence
Arbitration should be independent of any interference from administrative bodies, social organizations or individuals.
(1)An arbitration agency is not part of the administrative apparatus.
(2)Arbitration institutions are established geographically, independent from each other; they have no affiliation among themselves.
(3)Arbitration committees, arbitration associations and arbitration tribunals are also independent from each other, with arbitration tribunals adjudicating cases free from interference by arbitration associations or arbitration committees.
(4)Courts must exercise the power of supervision over arbitration activities; however, arbitration is not dependent on adjudication and arbitration institutions are not dependent on courts.
3.Legality and Impartiality
The Arbitration Law provides that arbitration should be based on facts, comply with laws and resolve disputes in an impartial and reasonable manner.
II. Essential Components of Arbitration
1.Arbitration Agreement
This demonstrates the principle of voluntary participation of the litigants in arbitration and also guarantees the implementation of the principle in arbitration. The Arbitration Law specifies that there be a written arbitration agreement. The agreement can be included in a contract or an independent agreement. The contents of the agreement should be consent on arbitration, concrete matters to be arbitrated and the chosen arbitration body.
2.Arbitration or Adjudication
This practice represents a respect for the parties' right of choice as to the way to settle their dispute. It means: If the parties have reached an agreement on arbitration, it rules out the jurisdiction of the court over the dispute; the parties can only apply for arbitration to an arbitration body rather than bringing action to the court.If one party does not keep the agreement on arbitration, and brings a suit to the court, the other party has the right to ask the court to reject the appeal according to the Arbitration Law.
3.One Instance Being Final
Article 9 of the Arbitration Law specifies that arbitration adopt the rule of one instance being final. This means that the ruling takes effect immediately upon pronunciation. Even if the parties are not happy with the ruling, they cannot file a suit to the court for the same dispute or apply for arbitration or reconsideration to arbitration organizations.
III. Arbitration Bodies
1. Arbitration Association
China Arbitration Association is a self-disciplinary organization of arbiters. It supervises arbitration committees and their members and the behaviors of arbiters in accordance with their constitution. Arbitration committees are members of the China Arbitration Association. The constitution of the association is made by a national congress. It makes arbitration rules in accordance with the Arbitration Law and the Civil Procedure Law.
2. Arbitration Committees
Arbitration committees are executive bodies established in capital cities of provinces, municipalities directly under the Central Government and autonomous regions. They can also be set up in other cities if necessary.
Arbitration committees are formed with members from government departments and chambers of commerce and registered with the judicial administration of the province, municipality directly under the Central Government and autonomous region.
An arbitration committee consists of one chairman, 2-4 vice-chairmen, and 7-11 members. The chairman, vice chairmen and members should be legal and trade experts and individuals with working experience. The number of legal and trade experts should not be less than one third of the membership of an arbitration committee.
3.Arbitration Tribunals
After taking up an arbitration case, an arbitration committee does not directly arbitrate the case; instead, it forms an arbitration tribunal to adjudicate the case.
Organizationally, an arbitration tribunal can be a collegiate panel or a sole arbitrator. An arbitration panel should be composed of three arbiters, one of whom should the chief arbiter who presides over the arbitration.
In case the parties agree to form a tribunal of three arbiters, each party should designate, or ask an arbitration committee to designate, one arbiter, and the third arbiter, who should be jointly selected by the parties or designated by the arbitration committee chairman jointly authorized by the parties, should be the chief arbiter. In case the parties agree to form a sole-arbiter tribunal, the arbiter should be jointly selected by the parties or designated by the arbitration committee chairman jointly authorized by the parties.
IV. China International Economic and Trade Arbitration Committee
The China International Economic and Trade Arbitration Committee is the only arbitration agency in China that handles international economic and trade disputes. It is headquartered in Beijing, with branch offices in Shenzhen and Shanghai.
The Lawyer System
Article 2 of the Lawyers Law of the People's Republic of China, promulgated on May 15, 1996, defines lawyers as professionals who have obtained a practicing license through legal means to provide legal services.
I. Qualifications for Licensing
To practice, lawyers must first obtain professional qualifications and apply for a license after probation. After obtaining qualifications, they must receive the license for practicing in accordance with legal procedures in order to practice law as a lawyer. Only then can they enjoy the rights of lawyers while assuming duties accordingly.
Individuals who have obtained legal qualifications may retain their qualifications and not engage in the legal profession for a period of time. This is known as separation of legal qualifications from legal practicing.
Lawyers should register their practicing license once a year; unregistered licenses are not valid. Registration is administered by judicial authorities above the Judicial Bureau at the provincial (municipal or autonomous regional) level. If necessary, registration can also be administered by judicial bureaus at the prefectural (city or county) level with authorization from higher judicial authorities.
Licensing Restrictions
In light of the Lawyers Law, lawyers should practice at one law firm rather than at two or more simultaneously. No geographical restrictions should be imposed. Incumbent government office holders should not concurrently be lawyers. While serving on the Standing Committee of the People's Congress at various levels, lawyers should not practice. Unlicensed persons should not practice as lawyers or represent or defend clients for a profit. Persons engaging in legal teaching and research should not be partners in a partnership or a cooperative law firm.
II. Law Firms
The Lawyers Law provides for three forms of law firms: state-funded, cooperative and partnership. Different operational mechanisms are permitted for different forms of law firms and they assume different legal obligations (civil liabilities).
III. Rights and Obligations of Lawyers
1.Rights
Investigation
Article 31 of Lawyers Law provides that when handling legal cases, lawyers, subject to permission by relevant entities or individuals, investigate them for fact-finding purposes.
Access to documents and files
The Criminal Procedure Law provides that the defense attorney may, from the day the procuratorate reviews a lawsuit, access, transcribe or copy judicial documents and technical appraisement documents of the case; they may also, from the day the court handles the case, access, transcribe or copy factual documents used in the case. Article 30 of the Lawyers Law provides that lawyers participating in lawsuits may, in compliance with procedural law, access documents related to the case.
Meet and communicate with persons with limited personal freedoms
Appear in court and participate in lawsuits
Refuse to defend and represent any client
Lawyers' corporal rights are inviolable
2.Obligations
Abide by the Constitution and laws and observe codes of ethics and professional discipline
Defend and represent clients unless circumstances require otherwise
Provide legal aid
Maintain confidentiality
Article 33 of the Lawyers Law states that lawyers should maintain state secrets and commercial secrets known to them in the practice of law and they should not reveal the privacy of their clients.
Refrain from accepting special cases
Article 34 of the Lawyers Law states that lawyers should represent both parties to a dispute at the same time. Article 36 provides that lawyers who have served as judges and prosecutors should not represent or defend clients within two years of retirement from the court or procuratorate.
Refrain from representing clients in private
Refrain from profiting from parties to a dispute by taking advantage of the convenience of legal service or accept money or gifts from clients.
Refrain from meeting judges and prosecutors in violation of rules
Refrain from giving gifts to or bribe judges, prosecutors, arbiters and other related personnel, or prompting or instigating their clients to bribe.
Refrain from hampering testimony giving
Article 35 of the Lawyers Law provides that lawyers should not engage in perjury, hide facts or threaten or prompt others to commit perjury, hide facts or interfere in the legal collection of evidence by the other party.
Refrain from disturbing the order of a court of law or an arbitration tribunal.
The Mediation System
Mediation is an effort by a third party to encourage parties to a dispute to voluntarily reach an agreement to resolve their dispute. There are currently four types of mediation practices in China:
(1)Civil mediation. Mediation by People's Mediation Committees outside the court.
(2)Judicial mediation. Mediation by a court of law in civil and economic disputes and minor criminal cases inside the court. For marital cases, inside-court mediation is a necessary procedure. Whether or not to seek judicial mediation is for litigants to decide. Mediation is not a necessary procedure. A court's mediation document is as valid as its verdict.
(3) Administrative mediation. It has the following two types. One is outside-the-court mediation by grassroots governments such as a township government in ordinary civil disputes; the other is outside-the-court mediation by government departments in compliance with legal provisions in specific civil disputes, economic disputes or labor disputes.
(4) Arbitration mediation. Mediation by arbitration bodies in arbitration cases. Arbitration is called upon only if mediation fails to resolve the differences. This is also an outside-the-court mediation.
Failure of Mediation
Article 91 of the Civil Procedure Law provides that a court of law should adjudicate in a timely fashion if mediation fails to produce an agreement or if one party retracts before the mediation document arrives.
The Notary System
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.
I. 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. The qualifications of notaries are the same as that of judges and prosecutors.
II. Scope of Business
The scope of business of public notary offices is as follows:
1. Notarize civil legal acts such as contracts, trusts, wills, gifts, division of property, and adoption of children;
2. Notarize facts that amount to civil legal acts such as birth, death, marriage, divorce, kinship, identity, degree, and experience;
3. 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;
4. Notarize the enforceability of creditor documents such as repayment agreements and contracts on recovery of debts;
5. 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.
III. Validity of Notarization
Notarized documents are good for the following four purposes:
1. 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.
2. 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.
3. 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.
4.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.
IV. 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.
The State Compensation System
Article 2 of the Law on State Compensation, passed on May 12, 1994 by the Eighth National People's Congress states, Citizens, legal persons or other organizations have the right to seek compensation from the state if state organs and office holders abuse their power and infringe upon their lawful rights and interests and have caused damages thereof.
The State Compensation Law specifies two kinds of compensation: administrative and criminal.
Administrative Compensation
The state should assume the responsibility of compensation if government offices or their staff abuse their power and infringe upon the lawful rights and interests of citizens, legal persons or other organizations and have caused damages thereof. Administrative compensation is the primary component of state compensation.
Claimants of administrative compensation should first file their claim with the administrative body responsible for compensation; they may also raise their claim while applying for administrative reconsideration or filing an administrative suit. They should not directly file a suit without first going through the administrative body responsible for compensation.
Criminal Compensation
Criminal compensation applies when the judicial authorities wrongly detain or arrest citizens or wrongly adjudicate cases.
A compensation committee composed of three to seven judges should be set up in a court above the intermediate level.
Claimants of criminal compensation should first file their claim with the body responsible for compensation; they may also apply to higher authorities for administrative reconsideration within 30 days of expiry of the term if compensation is rejected after expiry of the term, or if they object to the amount of compensation.
Compensation-paying bodies, reconsideration bodies or courts shall charge no fees on compensation claimants.
State compensation is paid in monetary form. Whenever possible, recovery or reinstatement of property should be implemented.
Compensation expenditures should be budgeted for the state financial organs and charged by governments at all levels.
Article 33 of the State Compensation Law specifies how foreign-related state compensation is calculated: This law applies to foreign individuals, enterprises and organizations within the territory of the People's Republic of China. Where the home country of the foreign individual, enterprise or organization does not protect or limits the rights to state compensation of individuals, enterprises or organizations of the People's Republic of China in that country, the People's Republic of China will reciprocate that policy toward individuals, enterprises or organizations of that country. This provision reflects both China's respect for the rights of foreign individuals, enterprises and organizations and its sovereignty and dignity.
The Legal Aid System
China's legal-aid system is still in an embryonic stage. 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. 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. 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. A Center for Legal Assistance under the Ministry of Justice was formally established in Beijing on May 26, 1997.
At present, China has formed a four-tier legal aid 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 aid 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.
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