《中国宪法学 Chinese Constitutional Law》课程教学资源（学术文献）adjudication supervision and judicial independence in china

MARGARET Y.K.WOO Adjudication Supervision and Judicial Independence in the P.R.C. INTRODUCTION The role of judicial independence and the way in which judges actually decide cases are central in the understanding of any legal system.The concept is that judges should decide cases according to enacted law,and free from outside interference.China has,in re- cent years,given renewed attention to the issue of judicial independence.1 Around 1978,under the leadership of Deng Xiaoping,the P.R.C. government began a period of reform and reinstituted its judicial system,which was dismantled during the Cultural Revolution.2 The new legal system claimed to ensure for the courts freedom from in- terference in their work.The 1982 P.R.C.Constitution provided that the people's courts shall"exercise judicial power independently, in accordance with the provisions of the law..."3 The Organic Law of People's Courts similarly proclaimed a guarantee of judicial inde- pendence,4 and to protect the integrity of a judicial decision,pro- vided for the rendering of final judgments after one appeal.5 The MARGARET Y.K.Woo is Associate Professor of Law,Northeastern University School of Law.The author wishes to thank William Alford,Harold J.Berman,Hungdah Chiu,James Feinerman,David Koplow and Andrew Rainer for their insightful sug- gestions and comments on this article.If there are any errors,they are the author's. 1.For an account of the Chinese search for judicial independence in the early years,:Cohen,"The Chinese Communist Party and Judicial Independence 1949. 1959,"82Harv.L.Rev.967(1969). 2.The Cultural Revolution spanned the period of 1966-1976 and marked a time of chaos for China.Based on Mao's proposition that the state should "[d]epend on the rule of man,not the rule of law,"there was a complete destruction of the formal law enforcement apparatus in favor of a"proletarian"legal order.See Chen Shouyi, Liu Shengping and Zhao Shenjiang,"Thirty Years of Building Up of Our Legal Sys- tem,"Faxue Yanjiu (Studies in Law),No.4,1979 at 1;Shao-chuan Leng and Hungdah Chiu,Criminal Justice in Post-Mao China 17-20(1985). 3.Constitution of the People's Republic of China,ch.III,art.129(1982)[here- inafter 1982 Constitution]trans.in Laws of the P.R.C.1979-1982 (compiled by the Legislative Affairs Commission of the Standing Committee of the National People's Congress of the People's Republic of China)[hereinafter Laws of the P.R.C.1979 19821. 4.Organic Law of People's Court,ch.I,art.4,(1983)[hereinafter People's Court Law]trans.in Laws of the P.R.C.1983-1986. 5.People's Court Law,ch.I,art.12. 95 This content downloaded by the authorized user from 192.168.82.207 on Thu,15 Nov 2012 12:27:25 PM All use subject to JSTOR Terms and Conditions

MARGARET Y.K. WOO Adjudication Supervision and Judicial Independence in the P.R.C. INTRODUCTION The role of judicial independence and the way in which judges actually decide cases are central in the understanding of any legal system. The concept is that judges should decide cases according to enacted law, and free from outside interference. China has, in re￾cent years, given renewed attention to the issue of judicial independence.' Around 1978, under the leadership of Deng Xiaoping, the P.R.C. government began a period of reform and reinstituted its judicial system, which was dismantled during the Cultural Revolution.2 The new legal system claimed to ensure for the courts freedom from in￾terference in their work. The 1982 P.R.C. Constitution provided that the people's courts shall "exercise judicial power independently, in accordance with the provisions of the law.. . "3 The Organic Law of People's Courts similarly proclaimed a guarantee of judicial inde￾pendence,4 and to protect the integrity of a judicial decision, pro￾vided for the rendering of final judgments after one appeal.5 The MARGARET Y.K. Woo is Associate Professor of Law, Northeastern University School of Law. The author wishes to thank William Alford, Harold J. Berman, Hungdah Chiu, James Feinerman, David Koplow and Andrew Rainer for their insightful sug￾gestions and comments on this article. If there are any errors, they are the author's. 1. For an account of the Chinese search for judicial independence in the early years, see Cohen, "The Chinese Communist Party and Judicial Independence 1949- 1959," 82 Harv. L Rev. 967 (1969). 2. The Cultural Revolution spanned the period of 1966-1976 and marked a time of chaos for China. Based on Mao's proposition that the state should "[d]epend on the rule of man, not the rule of law," there was a complete destruction of the formal law enforcement apparatus in favor of a "proletarian" legal order. See Chen Shouyi, Liu Shengping and Zhao Shenjiang, "Thirty Years of Building Up of Our Legal Sys￾tem," Faxue Yanjiu (Studies in Law), No. 4, 1979 at 1; Shao-chuan Leng and Hungdah Chiu, Criminal Justice in Post-Mao China 17-20 (1985). 3. Constitution of the People's Republic of China, ch. III, art. 129 (1982) [here￾inafter 1982 Constitution] trans. in Laws of the P.R.C. 1979 - 1982 (compiled by the Legislative Affairs Commission of the Standing Committee of the National People's Congress of the People's Republic of China) [hereinafter Laws of the P.R.C 1979- 1982]. 4. Organic Law of People's Court, ch. I, art. 4, (1983) [hereinafter People's Court Law] trans. in Laws of the P.R C. 1983-1986. 5. People's Court Law, ch. I, art. 12. 95 This content downloaded by the authorized user from 192.168.82.207 on Thu, 15 Nov 2012 12:27:25 PM All use subject to JSTOR Terms and Conditions

96 THE AMERICAN JOURNAL OF COMPARATIVE LAW [Vol.39 Chinese press publicized the asserted independence of the judiciary.6 But what did the Chinese mean when they proclaimed judicial independence?And what mechanisms have the Chinese put in place to ensure judicial independence?Further examination reveals that continuing limits exist on judicial work,both within and with- out the institutions of the legal system.Under the Chinese proce- dural codes,there is liberal institutional supervision of the Chinese judge,reflecting a distinctly Chinese concept of judicial indepen- dence.Chinese judges also face the extra-legal influence of the Chi- nese Communist Party.7 While explicit party influence on particular cases is now discouraged,s party influence on the judicial system as a whole remains,and party influence on particular cases seeps in through the windows opened by the procedural codes.9 This article examines Chinese judicial decision-making as re- flected in the Chinese procedural codes and in the concept of "su- pervision."The article focuses on one particular procedure-the procedure of adjudication supervision-which allows a liberal re- opening of final judgments.Adjudication supervision while profess- ing to ensure justice by allowing the correction of errors,places enormous institutional constraints on individual judicial work and serves to bring in external influences on the Chinese judge.Adjudi- cation supervision allows numerous actors to "supervise"judicial work and by its flexibility,could be used to undermine the validity of a formal legal system. Parts I II of this article will explore the code provisions on this review procedure and the legal actors involved.Parts III exam- ines the Chinese philosophical rationale underlying adjudication su- pervision.Finally,Part IV analyzes how,apart from the Chinese philosophical rationale,adjudication supervision actually works in 6.See e.g.,Peng Zhen,"Several Questions on the Socialist Legal System," trans.in Foreign Broadcast Information Service,Daily Report:People's Republic of China [hereinafter FBIS-CHI,November 27,1979 at L2-L3;Jiang Hua,"Correctly Use the Criminal law and the Law of Criminal Procedure to Exercise Judicial Au- thority Well,"FBIS-CHI,January 14,1980 at L11. 7.See Koguchi,"Some Observations About 'Judicial Independence'in Post- Mao China,"3 B.C.Third W.L.J.197 (1987).At one time,every judicial decision must be reviewed and approved by the Chinese Communist Party through a process called“shuji pi'an.”See supra n.2at22.→Cohen,“The Chinese Communist Party and Judicial Independence:1949-1959,"82 Harv.L.Rev.967 (1969). 8.However,there continues to be direct party interferences in specific cases and local bureaucrats abusing their positions to dictate judicial decisions.In some instances,judges were dismissed because their decisions were inconsistent with the local party or bureaucrat.Ka Changjiu,"Court Reform,"Faxue (Jurisprudence), No.1,1991at147, 9.Some Chinese scholars maintained that independent adjudication may only be guaranteed if judicial work is under the guidance of the Communist Party.See Zhang Jinqing and Xie Bongyu,"Independent Adjudication and the Guidance of the Communist Party,"Faxue Yanjiu (Studies in Law),No.2,1980 at 27-28. This content downloaded by the authorized user from 192.168.82.207 on Thu,15 Nov 2012 12:27:25 PM All use subject to JSTOR Terms and Conditions

96 THE AMERICAN JOURNAL OF COMPARATIVE LAW [Vol. 39 Chinese press publicized the asserted independence of the judiciary.6 But what did the Chinese mean when they proclaimed judicial independence? And what mechanisms have the Chinese put in place to ensure judicial independence? Further examination reveals that continuing limits exist on judicial work, both within and with￾out the institutions of the legal system. Under the Chinese proce￾dural codes, there is liberal institutional supervision of the Chinese judge, reflecting a distinctly Chinese concept of judicial indepen￾dence. Chinese judges also face the extra-legal influence of the Chi￾nese Communist Party.7 While explicit party influence on particular cases is now discouraged,8 party influence on the judicial system as a whole remains, and party influence on particular cases seeps in through the windows opened by the procedural codes.9 This article examines Chinese judicial decision-making as re￾flected in the Chinese procedural codes and in the concept of "su￾pervision." The article focuses on one particular procedure - the procedure of adjudication supervision - which allows a liberal re￾opening of final judgments. Adjudication supervision while profess￾ing to ensure justice by allowing the correction of errors, places enormous institutional constraints on individual judicial work and serves to bring in external influences on the Chinese judge. Adjudi￾cation supervision allows numerous actors to "supervise" judicial work and by its flexibility, could be used to undermine the validity of a formal legal system. Parts I & II of this article will explore the code provisions on this review procedure and the legal actors involved. Parts III exam￾ines the Chinese philosophical rationale underlying adjudication su￾pervision. Finally, Part IV analyzes how, apart from the Chinese philosophical rationale, adjudication supervision actually works in 6. See e.g., Peng Zhen, "Several Questions on the Socialist Legal System," trans. in Foreign Broadcast Information Service, Daily Report: People's Republic of C7hina [hereinafter FBIS-CHI], November 27, 1979 at L2-L3; Jiang Hua, "Correctly Use the Criminal law and the Law of Criminal Procedure to Exercise Judicial Au￾thority Well," FBIS-CHI, January 14,1980 at Lll. 7. See Koguchi, "Some Observations About 'Judicial Independence' in Post￾Mao China," 3 B.C. Third W. L. J. 197 (1987). At one time, every judicial decision must be reviewed and approved by the Chinese Communist Party through a process called "shuji pi'an." See supra n. 2 at 22-23; Cohen, "The Chinese Communist Party and Judicial Independence: 1949-1959," 82 Harv. L. Rev. 967 (1969). 8. However, there continues to be direct party interferences in specific cases and local bureaucrats abusing their positions to dictate judicial decisions. In some instances, judges were dismissed because their decisions were inconsistent with the local party or bureaucrat. Ka Changjiu, "Court Reform," Faxue (Jurisprudence), No. 1, 1991 at 147. 9. Some Chinese scholars maintained that independent adjudication may only be guaranteed if judicial work is under the guidance of the Communist Party. See Zhang Jinqing and Xie Bongyu, "Independent Adjudication and the Guidance of the Communist Party," Faxue Yanjiu (Studies in Law), No. 2, 1980 at 27-28. This content downloaded by the authorized user from 192.168.82.207 on Thu, 15 Nov 2012 12:27:25 PM All use subject to JSTOR Terms and Conditions

1991] ADJUDICATION SUPERVISION IN THE P.R.C. 97 China.Ultimately,this article concludes that adjudication supervi- sion exemplifies both the theory and reality of judicial independence in China-a theory that calls for independence,not of individual judges,but of the court system as a whole,and a reality that casts doubt even on this assertion of independence of the court system as a whole. What is Adjudication Supervision? Adjudication supervision ("shenpan jiandu"),or supervisory re- view,is a procedure for additional,but discretionary,reviews of final judgments.Adjudication supervision applies to both criminal and civil cases,with some notable differences.Under the 1982 Chinese law of Civil Procedure,a party to a civil lawsuit may petition the court which originally tried the case,or a court of higher instance,to re-open the judgment.10 Similarly,under the 1979 Code of Criminal Procedure,a party to a criminal case may seek adjudication supervi- sion.11 Additionally,in a criminal case,a victim or his family or any citizen (whether or not a party to the case)may also present a peti- tion to a people's court to re-open a legally effective judgment oror- der.12 Hence,in a criminal case,the right to re-open a legally effective judgment is available to anyone,not simply to a party to the action as in the civil context. A good example of adjudication supervision is the Sun case.In Sun,a faculty member of an agricultural school in Beijing,was try- ing to stop a disturbance.In the process,Sun killed Zhou,a member of the hooligan gang.The procuracy13 initiated a prosecution of Sun resulting in his conviction and a sentence of 15 years.Sun appealed with the help of a lawyer,who argued that Sun was acting in de- fense of others.On appeal,the court of second instance,the Beijing Intermediate Court,found that Sun had been acting in self-defense 10.See Law of Civil Procedure of the People's Republic of China,pt.2,ch.16, arts.177-188 (as amended and passed April 9,1991)[hereinafter Civil Procedure Lat],expanding on adjudication supervision provisions of 1982 Civil Procedure Law, pt.III,ch.14,arts.157-160.However,most adjudication supervision petitions in China involve petitions for the review of a final criminal judgment.See statistics published in "Judicial Work Report of 1988,"Law Yearbook of China 1989 at 10. 11.Criminal Procedure Law of the People's Republic of China,pt.II,ch.V,art. 148-150(1979)[hereinafter Criminal Procedure Law],trans.in Laws of the People's Republic of China 1979-1982 at 146-147. 12.Criminal Procedure Law,pt.III,ch.V,art.148.A legally effective judgment is defined to include:(1)judgments and orders which have not been appealed and for which the legally prescribed period for appeal has expired;(2)final judgments and orders;and (3)death sentences approved by the Supreme People's Court and judgments of death penalty with a two-year suspension of execution approved by a higher people's court.Criminal Procedure Law,pt.IV,ch.V,art.151. 13.In a criminal setting,the procuracy is the prosecutorial arm of the P.R.C. justice system.The people's procuracy is also responsible for "legal supervision." See 1982 Constitution,ch.III,art.129. This content downloaded by the authorized user from 192.168.82.207 on Thu,15 Nov 2012 12:27:25 PM All use subject to JSTOR Terms and Conditions

1991] ADJUDICATION SUPERVISION IN THE P.R.C. 97 China. Ultimately, this article concludes that adjudication supervi￾sion exemplifies both the theory and reality of judicial independence in China - a theory that calls for independence, not of individual judges, but of the court system as a whole, and a reality that casts doubt even on this assertion of independence of the court system as a whole. What is Adjudication Supervion? Adjudication supervision ("shenpan jiandu"), or supervisory re￾view, is a procedure for additional, but discretionary, reviews of final judgments. Adjudication supervision applies to both criminal and civil cases, with some notable differences. Under the 1982 Chinese law of Civil Procedure, a party to a civil lawsuit may petition the court which originally tried the case, or a court of higher instance, to re-open the judgment.'0 Similarly, under the 1979 Code of Criminal Procedure, a party to a criminal case may seek adjudication supervi￾sion." Additionally, in a criminal case, a victim or his family or any citizen (whether or not a party to the case) may also present a peti￾tion to a people's court to re-open a legally effective judgment or or￾der.'2 Hence, in a criminal case, the right to re-open a legally effective judgment is available to anyone, not simply to a party to the action as in the civil context. A good example of adjudication supervision is the Sun case. In Sun, a faculty member of an agricultural school in Beijing, was try￾ing to stop a disturbance. In the process, Sun killed Zhou, a member of the hooligan gang. The procuracy13 initiated a prosecution of Sun resulting in his conviction and a sentence of 15 years. Sun appealed with the help of a lawyer, who argued that Sun was acting in de￾fense of others. On appeal, the court of second instance, the Beijing Intermediate Court, found that Sun had been acting in self-defense 10. See Law of Civil Procedure of the People's Republic of China, pt. 2, ch. 16, arts. 177-188 (as amended and passed April 9, 1991) [hereinafter Civil Procedure Law], expanding on adjudication supervision provisions of 1982 Civil Procedure Law, pt. III, ch. 14, arts. 157-160. However, most adjudication supervision petitions in China involve petitions for the review of a final criminal judgment. See statistics published in "Judicial Work Report of 1988," Law Yearbook of China 1989 at 10. 11. Criminal Procedure Law of the People's Republic of China, pt. II, ch. V, art. 148-150 (1979) [hereinafter Ciminal Procedure Law], trans. in Laws of the People's Republic of China 1979-1982 at 146-147. 12. Ciminal Procedure Law, pt. III, ch. V, art. 148. A legally effective judgment is defined to include: (1) judgments and orders which have not been appealed and for which the legally prescribed period for appeal has expired; (2) final judgments and orders; and (3) death sentences approved by the Supreme People's Court and judgments of death penalty with a two-year suspension of execution approved by a higher people's court. Criminal Procedure Law, pt. IV, ch. V, art. 151. 13. In a criminal setting, the procuracy is the prosecutorial arm of the P.R.C. justice system. The people's procuracy is also responsible for "legal supervision." See 1982 Constitution, ch. III, art. 129. This content downloaded by the authorized user from 192.168.82.207 on Thu, 15 Nov 2012 12:27:25 PM All use subject to JSTOR Terms and Conditions

98 THE AMERICAN JOURNAL OF COMPARATIVE LAW [Vol.39 but determined that the force used by Sun was excessive.The court of second instance reduced the sentence to two years.Still dissatis- fied,Sun sought another review,by seeking to reopen the Interme- diate Court's legally effective judgment.The Intermediate Court agreed to reopen the case,retried it and this time,found Sun not guilty.Contrary to the rule that a decision is final after one appeal, Sun had two reviews of his conviction.14 A citizen seeking adjudication supervision may file a petition ("shensu")with the court or,in a criminal case,with either the court or the procuracy.The court or the procuracy first investigates the case and,if it finds error in the judgment,refers the case to the judicial committee of the court for discussion and decision.15 Each level of court has a judicial committee responsible for the supervi- sion of the court's work.16 If the judicial committee decides that the case needs to be reopened and retried,it will direct the court accordingly.17 If a procuracy itself discovers an error in a judgment by a court of its own level,it must also seek adjudication supervision.It must first petition the procuracy at the level above it to protest ("kangsu")to a higher level court for a reopening of the lower court judgment.18 A higher level procuracy,in discovering error in a judg- ment of a lower court,files a protest to a court of its own level and not directly with the lower court.19 Upon receiving the protest from the procuracy,the court conducts a retrial.In a criminal case,the procuracy can file protests seeking reversals of acquittals and in- creased sentences as well as reversals of convictions and reduction of sentences.20 14.The case is reported in Zhang Zhiye,"How Do China's Lawyers Work?,"26 Beijing Rev.,No.23 at 26 (June 6,1983);see also Minzhu Yu Fazhi (Democracy and Law),March 1987 at 22-23. 15.Civil Procedure Law,pt.2,ch.16,art.177;Criminal Procedure Law,pt.III, ch.V,art.149. 16.People's Court Law,ch.I,art.11.The composition of the judicial committee is further discussed infra. 17.Criminal Procedure Law,pt.III,ch.V,art.149. 18.People's Procuracy Law,ch.II,art.18 [hereinafter the People's Procuratorate Law],trans.in Laws of the P.R.C.1983-86.Note that the procuracy and the public security(the police arm)have a four-tier organization paralleling that of the court system. 19.Id.The role of the procuracy in a civil case is a much debated one.See Fang Hong,"Concerning the Role of the Procuracy in Supervising the Legality of Civil Cases,"Xiandai Faxue,(Modern Legal Studies),No.1,1988,at 24-26.However,the amended Civil Procedure Law has affirmed the role of the procuracy to intervene in a civil case to seek a re-opening of judgment. 20.In an adjudication supervision,there is no prohibition against increased pun- ishment as there is in an appeal.Hence,the defendant runs the risk of having his case heard again and again until a more severe punishment is meted out.See Woo, "The Right to a Criminal Appeal in the People's Republic of China,"14 Yale J.Int? L.118,138-40(1989). This content downloaded by the authorized user from 192.168.82.207 on Thu,15 Nov 2012 12:27:25 PM All use subject to JSTOR Terms and Conditions

98 THE AMERICAN JOURNAL OF COMPARATIVE LAW [Vol. 39 but determined that the force used by Sun was excessive. The court of second instance reduced the sentence to two years. Still dissatis￾fied, Sun sought another review, by seeking to reopen the Interme￾diate Court's legally effective judgment. The Intermediate Court agreed to reopen the case, retried it and this time, found Sun not guilty. Contrary to the rule that a decision is final after one appeal, Sun had two reviews of his conviction.'4 A citizen seeking adjudication supervision may file a petition ("shensu") with the court or, in a criminal case, with either the court or the procuracy. The court or the procuracy first investigates the case and, if it finds error in the judgment, refers the case to the judicial committee of the court for discussion and decision.'5 Each level of court has a judicial committee responsible for the supervi￾sion of the court's work.'6 If the judicial committee decides that the case needs to be reopened and retried, it will direct the court accordingly.'7 If a procuracy itself discovers an error in a judgment by a court of its own level, it must also seek adjudication supervision. It must first petition the procuracy at the level above it to protest ("kangsu") to a higher level court for a reopening of the lower court judgment.'8 A higher level procuracy, in discovering error in a judg￾ment of a lower court, files a protest to a court of its own level and not directly with the lower court.'9 Upon receiving the protest from the procuracy, the court conducts a retrial. In a criminal case, the procuracy can file protests seeking reversals of acquittals and in￾creased sentences as well as reversals of convictions and reduction of sentences.20 14. The case is reported in Zhang Zhiye, "How Do China's Lawyers Work?," 26 Beijing Rev., No. 23 at 26 (June 6, 1983); see also Minzhu Yu Fazhi (Democracy and Law), March 1987 at 22-23. 15. Civil Procedure Law, pt. 2, ch. 16, art. 177; Criminal Procedure Law, pt. III, ch. V, art. 149. 16. People's Court Law, ch. I, art. 11. The composition of the judicial committee is further discussed infra. 17. Criminal Procedure Law, pt. III, ch. V, art. 149. 18. People's Procuracy Law, ch. II, art. 18 [hereinafter the People's Procuratorate Law], trans. in Laws of the P.R.C. 1983-86. Note that the procuracy and the public security (the police arm) have a four-tier organization paralleling that of the court system. 19. Id. The role of the procuracy in a civil case is a much debated one. See Fang Hong, "Concerning the Role of the Procuracy in Supervising the Legality of Civil Cases," Xiandai Faxue, (Modern Legal Studies), No. 1, 1988, at 24-26. However, the amended Civil Procedure Law has affirmed the role of the procuracy to intervene in a civil case to seek a re-opening of judgment. 20. In an adjudication supervision, there is no prohibition against increased pun￾ishment as there is in an appeal. Hence, the defendant runs the risk of having his case heard again and again until a more severe punishment is meted out. See Woo, "The Right to a Criminal Appeal in the People's Republic of China," 14 Yale J. Int' L. 118, 138-40 (1989). This content downloaded by the authorized user from 192.168.82.207 on Thu, 15 Nov 2012 12:27:25 PM All use subject to JSTOR Terms and Conditions

1991] ADJUDICATION SUPERVISION IN THE P.R.C. 99 Additionally,in both the civil and criminal settings,the presi- dent of any level people's court may sua sponte review decisions of his own court and refer the case to the judicial committee for discus- sion upon discovering an error in a legally effective judgment.21 A court of higher instance may also sua sponte review lower court de- cisions and,in finding error,bring the case up for trial de novo or remand the case to the original lower court for retrial.22 Upon re- ceiving directions from a higher court,the lower court will normally retry the case without first referring the case to the lower court's judicial committee for discussion and decision.23 Regardless which court conducts the retrial,a new collegiate panel is formed for that purpose.24 The retrial will be a complete re- adjudication of the facts and law.25 If the case to be retried is a case from a court of second instance or if the case is to be retried by a court of higher instance,the judgment may not be appealed again.26 If,on the other hand,the case to be retried is a case from a court of first instance,the judgment may be again appealed.27 The procedure codes impose no limitation on the number of times a case may be reopened pursuant to an adjudication supervision. If a retrial is deemed necessary in a civil case,the court will is- sue a ruling to stay the execution of the judgment.28 In a criminal case,by contrast,the execution of the original judgment or order is not suspended during an adjudication supervision proceeding.29 Thus,the convict must serve his sentence even while the court is re- viewing his case under adjudication supervision.30 21.Civil Procedure Law,pt.2,ch.16,art.177;Criminal Procedure Law,pt.III, ch.V,art.149. 22.Civil Procedure Law,pt.2,ch.16,art.177;Criminal Procedure Law,pt.III, ch.V,art.149. 23.Ke Gehuang,"On the Reasons and Basis for Instituting A Retrial,"Zhengfa Luntan (Tribune of Political Science Law),No.3,1988 at 20. 24.Most cases of first instance in the people's courts are tried by a"collegial panel."It is composed of one judge and two people's assessors (lay people in the community).Simple civil cases,minor criminal cases and cases otherwise provided for by law may be heard by a single judge.Appealed or protested cases in the peo- ple's courts are handled by a collegial panel of judges.People's Court Law,ch.I,art. 10. 25.Xu Yichu,"On the Establishment of the Unique Chinese Criminal Procedure of Adjudication Supervision,"Faxue Yanjiu (Studies in Law),No.4,1986 at 75. 26.Civil Procedure Law,pt.2,ch.16,art.184;Criminal Procedure Law,pt.III, ch.V,art.150. 27.Civil Procedure Law,pt.2,ch.16,art.184;Criminal Procedure Law,pt.III, ch.V,art.150. 28.Civil Procedure Law,pt.2,ch.16,art.183.If the civil judgment has already been executed,the court will order a return to status quo,if possible. 29.Criminal Procedure Law,pt.III,ch.V,art.148. 30.Because the execution of a criminal judgment is not suspended during an ad- judication supervision,the mechanism of adjudication supervision cannot be effec- tively used to challenge a death sentence.There is,however,a special review procedure for death sentences.Criminal Procedure Law,ch.IV,arts.144-147. This content downloaded by the authorized user from 192.168.82.207 on Thu,15 Nov 2012 12:27:25 PM All use subject to JSTOR Terms and Conditions

1991] ADJUDICATION SUPERVISION IN THE P.R.C. 99 Additionally, in both the civil and criminal settings, the presi￾dent of any level people's court may sua sponte review decisions of his own court and refer the case to the judicial committee for discus￾sion upon discovering an error in a legally effective judgment.2' A court of higher instance may also sua sponte review lower court de￾cisions and, in finding error, bring the case up for trial de novo or remand the case to the original lower court for retrial.22 Upon re￾ceiving directions from a higher court, the lower court will normally retry the case without first referring the case to the lower court's judicial committee for discussion and decision.23 Regardless which court conducts the retrial, a new collegiate panel is formed for that purpose.24 The retrial will be a complete re￾adjudication of the facts and law.25 If the case to be retried is a case from a court of second instance or if the case is to be retried by a court of higher instance, the judgment may not be appealed again.26 If, on the other hand, the case to be retried is a case from a court of first instance, the judgment may be again appealed.27 The procedure codes impose no limitation on the number of times a case may be reopened pursuant to an adjudication supervision. If a retrial is deemed necessary in a civil case, the court will is￾sue a ruling to stay the execution of the judgment.28 In a criminal case, by contrast, the execution of the original judgment or order is not suspended during an adjudication supervision proceeding.`9 Thus, the convict must serve his sentence even while the court is re￾viewing his case under adjudication supervision.30 21. Civil Procedure Law, pt. 2, ch. 16, art. 177; Criminal Procedure Law, pt. III, ch. V, art. 149. 22. Civil Procedure Law, pt. 2, ch. 16, art. 177; Criminal Procedure Law, pt. III, ch. V, art. 149. 23. Ke Gehuang, "On the Reasons and Basis for Instituting A Retrial," Zhengfa Luntan (Tribune of Political Science & Law), No. 3, 1988 at 20. 24. Most cases of first instance in the people's courts are tried by a "collegial panel." It is composed of one judge and two people's assessors (lay people in the community). Simple civil cases, minor criminal cases and cases otherwise provided for by law may be heard by a single judge. Appealed or protested cases in the peo￾ple's courts are handled by a collegial panel of judges. People's Court Law, ch. I, art. 10. 25. Xu Yichu, "On the Establishment of the Unique Chinese Criminal Procedure of Adjudication Supervision," Faxue Yanjiu (Studies in Law), No. 4, 1986 at 75. 26. Civil Procedure Law, pt. 2, ch. 16, art. 184; Criminal Procedure Law, pt. III, ch. V, art. 150. 27. Civil Procedure Law, pt. 2, ch. 16, art. 184; Criminal Procedure Law, pt. III, ch. V, art. 150. 28. Civil Procedure Law, pt. 2, ch. 16, art. 183. If the civil judgment has already been executed, the court will order a return to status quo, if possible. 29. Criminal Procedure Law, pt. III, ch. V, art. 148. 30. Because the execution of a criminal judgment is not suspended during an ad￾judication supervision, the mechanism of adjudication supervision cannot be effec￾tively used to challenge a death sentence. There is, however, a special review procedure for death sentences. Criminal Procedure Law, ch. IV, arts. 144-147. This content downloaded by the authorized user from 192.168.82.207 on Thu, 15 Nov 2012 12:27:25 PM All use subject to JSTOR Terms and Conditions

100 THE AMERICAN JOURNAL OF COMPARATIVE LAW [Vol.39 Under the Criminal Procedure Law,there is no codified restric- tion on the time or the grounds for the reopening of a legally effec- tive judgment under adjudication supervision.The sole criterion is that the original judgment must have contained "some definite er- ror."31 The same was true under the Civil Procedure Law until its amendment in 1991,which attempts to limit reopenings of civil cases to circumstances of new evidence,insufficient evidence,erroneous application of law,prejudicial violations of law,and judicial miscon- duct.32 Although the asserted policy is that adjudication supervision should not be used to seek a change in the judgment to reflect a change in the law or policy or for complaints that the punishment was too lenient,33 adjudication supervision has in fact been used to reverse judgments after a policy change as well as to increase punishments.34 Adjudication supervision in China is unique in a number of ways.Although the procedural codes of legal systems provide for the reopening of a case on the grounds of new circumstances,35 the P.R.C.adjudication supervision is unusual in allowing the reopening of a case at any time based solely on the later discovery of "error," though there has been no change in the circumstances of the case. Adjudication supervision is also distinguishable from an appeal, the review procedure most common in legal systems.Most signifi- cantly,adjudication supervision is a mechanism that can be started and carried out by officials and judicial institutions.In an appeal, only parties to the action can seek a review of a court decision.In an adjudication supervision,a court president,a Party or govern- 31.Criminal Procedure Law,pt.III,ch.V,art.149.The law does not,however, define what "errors"warrant retrial.Ke Gehuang,"On Reasons and Basis for Insti- tuting a Retrial,"Zhengfa Luntan (Tribute of Political Science Law),No.3,1988 at 15-16.According to some commentators,only an incorrect determination of the facts at the time of judgment can serve as the basis for the reopening.As to error in the application of law,such errors may include the unlawful imposition of death sen- tence on a minor,or a judge's improper refusal to withdraw from a case,or a trial unlawfully closed to the public,or the deprivation of a defendant's right to defense. Id.;see also Shendong Renmin Publishing,Zhonghua Renmin Gonghe Guo Xingshi Susong Fa Jianming Jiaocheng 323 (Teaching Material for the P.R.C.Criminal Pro- cedure)(1987)[hereinafter Zhonghua Renmin Gonghe Guo Xingshi Susong Fa Ji- anming JiaocheJ. 32.Compare Civil Procedure Law(1982 trial implementation),pt.III,ch.14,art 157,with Civil Procedure Law (as amended and passed April 9,1991),pt.2,ch.16, art.179.Because this provision was just adopted,it remains to be seen how well these categories will operate to limit re-openings of civil cases. 33.Id.at17-18. 34.See discussion of this point in Section IV,infra. 35.See e.g.,in the U.S.,Rule 59 60 of the Federal Rules of Civil Procedure provide for reopening of cases for newly discovered evidence;in Germany,Sec.578- 91 of the Federal Procedure Law allow the reopening of final judgments but limited its availability to a period not later than five years from the time the judgment be- comes immune to appellate review. This content downloaded by the authorized user from 192.168.82.207 on Thu,15 Nov 2012 12:27:25 PM All use subject to JSTOR Terms and Conditions

100 THE AMERICAN JOURNAL OF COMPARATIVE LAW [Vol. 39 Under the Criminal Procedure Law, there is no codified restric￾tion on the time or the grounds for the reopening of a legally effec￾tive judgment under adjudication supervision. The sole criterion is that the original judgment must have contained "some definite er￾ror."31 The same was true under the Civil Procedure Law until its amendment in 1991, which attempts to limit reopenings of civil cases to circumstances of new evidence, insufficient evidence, erroneous application of law, prejudicial violations of law, and judicial miscon￾duct.32 Although the asserted policy is that adjudication supervision should not be used to seek a change in the judgment to reflect a change in the law or policy or for complaints that the punishment was too lenient,33 adjudication supervision has in fact been used to reverse judgments after a policy change as well as to increase punishments.'4 Adjudication supervision in China is unique in a number of ways. Although the procedural codes of legal systems provide for the reopening of a case on the grounds of new circumstances,35 the P.R.C. adjudication supervision is unusual in allowing the reopening of a case at any time based solely on the later discovery of "error," though there has been no change in the circumstances of the case. Adjudication supervision is also distinguishable from an appeal, the review procedure most common in legal systems. Most signifi￾cantly, adjudication supervision is a mechanism that can be started and carried out by officials and judicial institutions. In an appeal, only parties to the action can seek a review of a court decision. In an adjudication supervision, a court president, a Party or govern- 31. Criminal Procedure Law, pt. III, ch. V, art. 149. The law does not, however, define what "errors" warrant retrial. Ke Gehuang, "On Reasons and Basis for Insti￾tuting a Retrial," Zhengfa Luntan (Tribute of Political Science & Law), No. 3, 1988 at 15-16. According to some commentators, only an incorrect determination of the facts at the time of judgment can serve as the basis for the reopening. As to error in the application of law, such errors may include the unlawful imposition of death sen￾tence on a minor, or a judge's improper refusal to withdraw from a case, or a trial unlawfully closed to the public, or the deprivation of a defendant's right to defense. Id.; see also Shendong Renmin Publishing, Zhonghua Renmin Gonghe Guo Xingshi Susong Fa Jianming Jiaocheng 323 (Teaching Material for the P.R.C. Criminal Pro￾cedure) (1987) [hereinafter Zhonghua Renmin Gonghe Guo Xingshi Susong Fa Ji￾anming Jiaoche]. 32. Compare Civil Procedure Law (1982 trial implementation), pt. III, ch. 14, art. 157, with Civil Procedure Law (as amended and passed April 9, 1991), pt. 2, ch. 16, art. 179. Because this provision was just adopted, it remains to be seen how well these categories will operate to limit re-openings of civil cases. 33. Id. at 17-18. 34. See discussion of this point in Section IV, infra. 35. See e.g., in the U.S., Rule 59 & 60 of the Federal Rules of Civil Procedure provide for reopening of cases for newly discovered evidence; in Germany, Sec. 578- 91 of the Federal Procedure Law allow the reopening of final judgments but limited its availability to a period not later than five years from the time the judgment be￾comes immune to appellate review. This content downloaded by the authorized user from 192.168.82.207 on Thu, 15 Nov 2012 12:27:25 PM All use subject to JSTOR Terms and Conditions

1991] ADJUDICATION SUPERVISION IN THE P.R.C. 101 ment official can sua sponte invoke the procedure of adjudication su- pervision.While an appeal is a procedure primarily driven by one of the parties'sense of justice,adjudication supervision involves the legal system's sense of correctness.A case resolved to the satisfac- tion of the parties may nevertheless be re-adjudicated until the legal system is satisfied. Second,although appeals normally involve the participation of the parties,adjudication supervision provides no formal opportunity for the parties to argue for or against re-opening.In the determina- tion of whether a case contains "error,"the court may solicit a party's opinion as part of its investigation of the case.However,the procedural codes provide no right for the parties to see or to respond to the record in an adjudication supervision.Although a recent Supreme People's Court directive mandates that the retrial of a criminal case must be public,36 the decision to reopen a case is nor- mally made behind closed doors by court officials and members of the judicial committee,without the involvement of the parties. More problematically,the judgment can be re-opened ex parte,al- lowing access to one side but not the other. Third,while an appeal is a procedure which automatically func- tions to reopen the ruling below for upper level review upon the timely application of the parties,the decision whether to reopen a case pursuant to adjudication supervision is largely discretionary. The Criminal Procedure Law provides virtually no guidance for when a reopening is appropriate,and the Civil Procedure Law has only recently been amended to set forth broad categories for reopening. Finally,while an appeal must be raised within a certain time pe- riod,adjudication supervision may,with one exception,be invoked at any time.37 This lack of restrictions,along with the system's right to re-open a case,renders a judgment particularly vulnerable to the legal system's temporal concept of right and wrong. The Actors In The Adjudication Supervision Process In order to understand adjudication supervision,it is necessary to understand not only how the process works but also who the ac- tors are that make it work.There are three key actors-the judi- cial committee,the court president,and the procuracy.These three 36."Judicial Work Report of 1988,"Law Yearbook 1989 10. 37.The one exception enacted in the 1991 revision of the Civil Procedure Law is that a litigant in a civil case must file a petition to reopen within two years of the date of the final judgment.Civil Procedure Law,pt.2,ch.16,art.182.This time limitation,however,does not apply in any criminal case,nor for reopenings of civil cases initiated by a procurator or court president. This content downloaded by the authorized user from 192.168.82.207 on Thu,15 Nov 2012 12:27:25 PM All use subject to JSTOR Terms and Conditions

1991] ADJUDICATION SUPERVISION IN THE P.R.C. 101 ment official can sua sponte invoke the procedure of adjudication su￾pervision. While an appeal is a procedure primarily driven by one of the parties' sense of justice, adjudication supervision involves the legal system's sense of correctness. A case resolved to the satisfac￾tion of the parties may nevertheless be re-adjudicated until the legal system is satisfied. Second, although appeals normally involve the participation of the parties, adjudication supervision provides no formal opportunity for the parties to argue for or against re-opening. In the determina￾tion of whether a case contains "error," the court may solicit a party's opinion as part of its investigation of the case. However, the procedural codes provide no right for the parties to see or to respond to the record in an adjudication supervision. Although a recent Supreme People's Court directive mandates that the retrial of a criminal case must be public,36 the decision to reopen a case is nor￾mally made behind closed doors by court officials and members of the judicial committee, without the involvement of the parties. More problematically, the judgment can be re-opened ex parte, al￾lowing access to one side but not the other. Third, while an appeal is a procedure which automatically func￾tions to reopen the ruling below for upper level review upon the timely application of the parties, the decision whether to reopen a case pursuant to adjudication supervision is largely discretionary. The Criminal Procedure Law provides virtually no guidance for when a reopening is appropriate, and the Civil Procedure Law has only recently been amended to set forth broad categories for reopening. Finally, while an appeal must be raised within a certain time pe￾riod, adjudication supervision may, with one exception, be invoked at any time.37 This lack of restrictions, along with the system's right to re-open a case, renders a judgment particularly vulnerable to the legal system's temporal concept of right and wrong. The Actors In The Adjudication Supervision Process In order to understand adjudication supervision, it is necessary to understand not only how the process works but also who the ac￾tors are that make it work. There are three key actors - the judi￾cial committee, the court president, and the procuracy. These three 36. "Judicial Work Report of 1988," Law Yearbook 1989 10. 37. The one exception enacted in the 1991 revision of the Civil Procedure Law is that a litigant in a civil case must file a petition to reopen within two years of the date of the final judgment. Civil Procedure Law, pt. 2, ch. 16, art. 182. This time limitation, however, does not apply in any criminal case, nor for reopenings of civil cases initiated by a procurator or court president. This content downloaded by the authorized user from 192.168.82.207 on Thu, 15 Nov 2012 12:27:25 PM All use subject to JSTOR Terms and Conditions

102 THE AMERICAN JOURNAL OF COMPARATIVE LAW [Vol.39 actors have the powers to petition as well as to control the process of reopening final judgments. According to the Organic Law of the People's Courts,courts of every level must establish a judicial committee,38 comprised of the president and the vice-presidents of the court,and the chief judge and associate chief judges of each division of the court.Significantly, the chief procurator of the same level may also sit on the judicial committee,albeit as a non-voting member.39 The judicial committee of the people's court at each level is appointed and removed by the standing committee of the people's congress at the corresponding level.40 The general responsibility of the judicial committee is "to sum up judicial experience and to discuss difficult and important cases and other issues relating to judicial work."41 Hence,it is the judicial committee,not the panel which actually presides at trial,that dis- cusses and decides all "difficult and important"issues,42 including whether a case should be re-opened pursuant to adjudication super- vision.The decision made by the judicial committee is binding on the collegiate panel.43 The most critical member of the judicial committee is the presi- dent of the court,who is elected by the local people's congress at the corresponding level of authority.44 The court president is responsi- ble for the administration of the court and further,approves all de- cisions and judgments issued by the court.45 With such authority,a 38.People's Court Law,ch.I,art.11 39.People's Court Law,ch.I,art.11. 40.Id.Thus,the judicial committee of the Supreme People's Court is appointed and removed by the Standing Committee of the National People's Congress. 41.According to some scholars,the judicial committee is the court's highest re- search and adjudication unit.Ka Changjiu,"Court Reform,"Faxue (Jurisprudence), No.1,1990,p.150. 42.The deliberations are not made public to the defendant and the decision is reached by a majority vote of members of the judicial committee.Zhonghua Renmin Gonghe Guo Xingshi Susong Fa Jianming Jiaocheng at 269.A major criti- cism about the involvement o:judicial committees in judicial work is that it decides the case before trial.See Zhou Shimin,"To Improve the Quality of a Judicial Com- mittee's Discussion and Review of Cases,"Zhengfa Luntan(Tribune of Political Sci- ence and Law),No.2,1988 at 30. 43.A Brief Introduction to the People's Court of the People's Republic of China, published by The General Office of the Supreme People's Court of the People's Re- public of China (1988)[hereinafter A Brief Introduction to the People's Court of the P.RC.]at 9. 44.People's Court Law,ch.III,art.35.The term of the court president is the same as that of the people's congress which elected him,but the people's congress has the power to remove presidents from office before the expiration of the term. People's Court Law,ch.III,art.36.If the people's congress is not in session,the standing committee can remove the court president by reporting the matter to the people's court at the next higher level for submission to the standing committee of the people's congress at the next higher level for approval.Id. 45.Zhonghua Renmin Gonghe Guo Xingshi Susong Fa Jianming Jiaocheng at This content downloaded by the authorized user from 192.168.82.207 on Thu,15 Nov 2012 12:27:25 PM All use subject to JSTOR Terms and Conditions

102 THE AMERICAN JOURNAL OF COMPARATIVE LAW [Vol. 39 actors have the powers to petition as well as to control the process of reopening final judgments. According to the Organic Law of the People's Courts, courts of every level must establish a judicial committee,`8 comprised of the president and the vice-presidents of the court, and the chief judge and associate chief judges of each division of the court. Significantly, the chief procurator of the same level may also sit on the judicial committee, albeit as a non-voting member.39 The judicial committee of the people's court at each level is appointed and removed by the standing committee of the people's congress at the corresponding level.40 The general responsibility of the judicial committee is "to sum up judicial experience and to discuss difficult and important cases and other issues relating to judicial work."'41 Hence, it is the judicial committee, not the panel which actually presides at trial, that dis￾cusses and decides all "difficult and important" issues,42 including whether a case should be re-opened pursuant to adjudication super￾vision. The decision made by the judicial committee is binding on the collegiate panel.43 The most critical member of the judicial committee is the presi￾dent of the court, who is elected by the local people's congress at the corresponding level of authority." The court president is responsi￾ble for the administration of the court and further, approves all de￾cisions and judgments issued by the court.45 With such authority, a 38. People's Court Law, ch. I, art. 11. 39. People's Court Law, ch. I, art. 11. 40. Id. Thus, the judicial committee of the Supreme People's Court is appointed and removed by the Standing Committee of the National People's Congress. 41. According to some scholars, the judicial committee is the court's highest re￾search and adjudication unit. Ka Changjiu, "Court Reform," Faxue (Jurisprudence), No. 1, 1990, p. 150. 42. The deliberations are not made public to the defendant and the decision is reached by a majority vote of members of the judicial committee. Zhonghua Renmin Gonghe Guo Xingshi Susong Fa Jianming Jiaocheng at 269. A major criti￾cism about the involvement uI judicial committees in judicial work is that it decides the case before trial. See Zhou Shimin, "To Improve the Quality of a Judicial Com￾mittee's Discussion and Review of Cases," Zhengfa Luntan (Tribune of Political Sci￾ence and Law), No. 2, 1988 at 30. 43. A Brief Introduction to the People's Court of the People's Republic of China, published by The General Office of the Supreme People's Court of the People's Re￾public of China (1988) [hereinafter A Brief Introduction to the People's Court of the P.RC.] at 9. 44. People's Court Law, ch. III, art. 35. The term of the court president is the same as that of the people's congress which elected him, but the people's congress has the power to remove presidents from office before the expiration of the term. People's Court Law, ch. III, art. 36. If the people's congress is not in session, the standing committee can remove the court president by reporting the matter to the people's court at the next higher level for submission to the standing committee of the people's congress at the next higher level for approval. Id. 45. Zhonghua Renmin Gonghe Guo Xingshi Susong Fa Jianming Jiaocheng at This content downloaded by the authorized user from 192.168.82.207 on Thu, 15 Nov 2012 12:27:25 PM All use subject to JSTOR Terms and Conditions

1991] ADJUDICATION SUPERVISION IN THE P.R.C. 103 court president can reassign a case from one collegiate panel to an- other or to the judicial committee for review,until a decision is reached which meets his approval.46 Additionally,even after a final judgment is rendered,the president of the court has the power,sua sponte,to seek a reopening of the final judgment or order by the ju- dicial committee,if in his opinion,there is error in the judgment or order.47 Most significantly,the president of the people's court pre- sides over meetings of the judicial committees,48 and thus controls when and in what manner a request for reopening is taken up. The third actor in the adjudication supervision process is the procurator.49 The institution of the procuracy,as imported from the Soviet Union,has two functions.The procuracy not only investi- gates and prosecutes crimes,but like the president of the court and the judicial committee,also is responsible for supervising legality in the administration of justice.50 In its supervisory role,the procuracy oversees the trial activities of the courts and monitors the execution of judgments,51 and may sua sponte lodge a protest of a final judg- ment of a court at a lower level in accordance with the procedures for adjudication supervision.52 While a citizen can never participate in a judicial committee discussion on the merits of his petition,the procurator can participate in determining whether a reopening of any case is warranted.In all retrials pursuant to adjudication super- vision,the procuracy must send its personnel to appear in court to oversee the process.53 In sum,the adjudication supervision process depends in large part on the discretion of the judicial committee,the court president, 269.Additionally,the president of the court has the power to appoint the presiding judge of the collegiate panel hearing a case,or to appoint himself to that role.Peo- ple's Court Law,ch.I,art.10 46.Id. 47. People's Court Law,ch.I,art.14. 48.People's Court Law,ch.I,art.11. 49. Procurators are appointed by the corresponding people's congress and its standing committee.People's Procuratorate Law,ch.III,arts.21-24.Hence,like other members of the judicial committee,the procurator at each level is theoreti- cally accountable to the people's congress and the standing committee at the corre- sponding level of authority.People's Procuratorate Law,ch.I,art.10. 50.Article I of the Organic Law of the People's Procuratorate defines the procuracy as "state organs of legal supervision." Organic Law of the People's Procuratorate,ch.I,art.1.See also Harold Berman,Justice in the USSR 239-47(2d ed.1963)(describing the role of Soviet procuracy). 51.People's Procuratorate Law,ch.I,art.5. 52.The procuracy must accept petitions of grievances from citizens,investigate, and determine whether a petition merits registering a protest in court.People's Procuratorate Law,ch.1,arts.6,18.The procuracy may also issue a protest a re- sponse to grievances made by or against prisons,detention houses or institutions in charge of reform through labor.Id.;see also Shen Jungui,"Legal Relationships in A Criminal Retrial,"Xibei Zhengfa Xueyuan Xuebao (Journal of Northwest Institute of Political Science and Law),No.2,1988 at 45. 53.People's Procuratorate Law,ch.I,art.18. This content downloaded by the authorized user from 192.168.82.207 on Thu,15 Nov 2012 12:27:25 PM All use subject to JSTOR Terms and Conditions

1991] ADJUDICATION SUPERVISION IN THE P.R.C. 103 court president can reassign a case from one collegiate panel to an￾other or to the judicial committee for review, until a decision is reached which meets his approval.46 Additionally, even after a final judgment is rendered, the president of the court has the power, sua sponte, to seek a reopening of the final judgment or order by the ju￾dicial committee, if in his opinion, there is error in the judgment or order.47 Most significantly, the president of the people's court pre￾sides over meetings of the judicial committees," and thus controls when and in what manner a request for reopening is taken up. The third actor in the adjudication supervision process is the procurator.49 The institution of the procuracy, as imported from the Soviet Union, has two functions. The procuracy not only investi￾gates and prosecutes crimes, but like the president of the court and the judicial committee, also is responsible for supervising legality in the administration of justice.m In its supervisory role, the procuracy oversees the trial activities of the courts and monitors the execution of judgments,5' and may sua sponte lodge a protest of a final judg￾ment of a court at a lower level in accordance with the procedures for adjudication supervision.52 While a citizen can never participate in a judicial committee discussion on the merits of his petition, the procurator can participate in determining whether a reopening of any case is warranted. In all retrials pursuant to adjudication super￾vision, the procuracy must send its personnel to appear in court to oversee the process.53 In sum, the adjudication supervision process depends in large part on the discretion of the judicial committee, the court president, 269. Additionally, the president of the court has the power to appoint the presiding judge of the collegiate panel hearing a case, or to appoint himself to that role. Peo￾ple's Court Law, ch. I, art. 10. 46. Id. 47. People's Court Law, ch. I, art. 14. 48. People's Court Law, ch. I, art. 11. 49. Procurators are appointed by the corresponding people's congress and its standing committee. People's Procuratorate Law, ch. III, arts. 21-24. Hence, like other members of the judicial committee, the procurator at each level is theoreti￾cally accountable to the people's congress and the standing committee at the corre￾sponding level of authority. People's Procuratorate Law, ch. I, art. 10. 50. Article I of the Organic Law of the People's Procuratorate defines the procuracy as "state organs of legal supervision." Organic Law of the People's Procuratorate, ch. I, art. 1. See also Harold Berman, Justice in the USSR 239-47 (2d ed. 1963) (describing the role of Soviet procuracy). 51. People's Procuratorate Law, ch. I, art. 5. 52. The procuracy must accept petitions of grievances from citizens, investigate, and determine whether a petition merits registering a protest in court. People's Procuratorate Law, ch. 1, arts. 6, 18. The procuracy may also issue a protest a re￾sponse to grievances made by or against prisons, detention houses or institutions in charge of reform through labor. Id.; see also Shen Jungui, "Legal Relationships in A Criminal Retrial," Xibei Zhengfa Xueyuan Xuebao (Journal of Northwest Institute of Political Science and Law), No. 2, 1988 at 45. 53. People's Procuratorate Law, ch. I, art. 18. This content downloaded by the authorized user from 192.168.82.207 on Thu, 15 Nov 2012 12:27:25 PM All use subject to JSTOR Terms and Conditions

104 THE AMERICAN JOURNAL OF COMPARATIVE LAW [Vol.39 and the procuracy.These actors hold considerable power over the work of individual judges within each court.54 Theoretical Underpinnings of the P.R.C.Adjudication Supervision Several modern-day theoretical principles underlie adjudication supervision in China.First,according to Chinese scholars,the power of adjudication supervision springs from an individual's con- stitutional right to petition for redress of grievances.55 This consti- tutional right to petition for redress of grievances (to "shensu") takes several forms.56 Shensu may be a complaint by a citizen di- rected to any state or party organ to contest the validity of an offi- cial act,or a complaint against a judicial organ for rendering an unlawful judgment or for violating trial procedures in rendering a judgment.57 A petition or "shensu"filed in court challenges a final judgment and activates the procedure for adjudication supervision.58 Second,the ability of citizens to petition for adjudication super- vision reflect Mao's theory of mass supervision of justice and law,59 which has been incorporated into Article 27 of the P.R.C.Constitu- tion.60 The "mass line"approach is based on a belief that the au- 54.What this means in terms of the individual judicial decision-making is the fo- cus of Part IV of this article. 55.Article 41 of the Chinese Constitution provides that "citizens have the right to make to relevant state organs complaints or charges against,or exposures of,any state organ or functionary for violation of the law or dereliction of duty."1982 Con- stitution,ch.I,art.41.To many Chinese,the fear of the chaotic Cultural Revolu- tion,urges the unfettered maintenance of this constitutional right.See Ruan Shiping "A Discussion of Several Questions Regarding Shensu,"Minzhu Yu Fazhi (Democracy and Law),No.5,1983 at 22.Zhongguo Fazhi Bao (Legal System Daily), July26,1988at4. 56.According to Chinese scholars,there are four kinds of shensu:(1)shensu against the judiciary;(2)shensu against an administrative agency;(3)shensu against the party;(4)shensu against an electorate.Zhongguo Fazhi Bao,(Legal System Daily),April 19,1988 at 2;see also Zhongguo Fazhi Bao (Legal System Daily),March 15,1988at4. 57.Zhongguo Fazhi Bao (Legal System Daily),March 15,1988 at 4. 58.This constitutional basis for filing a petition (to "shensu")is reminiscent of the U.S.federal habeas corpus proceedings.See 28 U.S.C.2255.Federal habeas re- lief is a post-conviction relief available to persons being held in custody in violation of the laws of the United States.Each state of the United States also has separate post-conviction remedies,but state collateral remedies range from jurisdiction to ju- risdiction.State collateral remedies could include (1)writ of habeas corpus,(2)writ of coram nobis,(3)statutory provision modeled after 28 U.S.C.2255,and(4)the Uni- form Post-Conviction Procedure Act.See generally,Wayne LaFave and Jerold H. Israel,Modern Criminal Procedure 1009-1084(1985).The German legal system also provides a similar constitutional petition.Donald Kommers,The Constitutional Ju- risprudence of the Federal Republic af Germany 15-17(1989). 59.Fan Chongyi,"On the Retrial of a Legally Effective Judgment or Order," Faxue Yanjiu (Studies in Law),No.1,1984 at 60-61;Xu Yichu,"On the Establish- ment of the Unique Chinese Procedure of Adjudication Supervision,"Faxue Yanjiu (Studies in Law),No.4,1986 at 75. 60.Article 27 provides that "all state organs and functionaries must rely on the support of the people,keep in close touch with them,heed their opinions and sug- This content downloaded by the authorized user from 192.168.82.207 on Thu,15 Nov 2012 12:27:25 PM All use subject to JSTOR Terms and Conditions

104 THE AMERICAN JOURNAL OF COMPARATIVE LAW [Vol. 39 and the procuracy. These actors hold considerable power over the work of individual judges within each court.M Theoretical Underpinnings of the P.R.C. Adjudication Supervision Several modern-day theoretical principles underlie adjudication supervision in China. First, according to Chinese scholars, the power of adjudication supervision springs from an individual's con￾stitutional right to petition for redress of grievances.5 This consti￾tutional right to petition for redress of grievances (to "shensu") takes several forms.56 Shensu may be a complaint by a citizen di￾rected to any state or party organ to contest the validity of an offi￾cial act, or a complaint against a judicial organ for rendering an unlawful judgment or for violating trial procedures in rendering a judgment.57 A petition or "shensu" filed in court challenges a final judgment and activates the procedure for adjudication supervision.5 Second, the ability of citizens to petition for adjudication super￾vision reflect Mao's theory of mass supervision of justice and law,59 which has been incorporated into Article 27 of the P.R.C. Constitu￾tion.60 The "mass line" approach is based on a belief that the au- 54. What this means in terms of the individual judicial decision-making is the fo￾cus of Part IV of this article. 55. Article 41 of the Chinese Constitution provides that "citizens have the right to make to relevant state organs complaints or charges against, or exposures of, any state organ or functionary for violation of the law or dereliction of duty." 1982 Con￾stitution, ch. I, art. 41. To many Chinese, the fear of the chaotic Cultural Revolu￾tion, urges the unfettered maintenance of this constitutional right. See Ruan Shiping "A Discussion of Several Questions Regarding Shensu," Minzhu Yu Fazhi (Democracy and Law), No. 5, 1983 at 22. Zhongguo Fazhi Bao (Legal System Daily), July 26, 1988 at 4. 56. According to Chinese scholars, there are four kinds of shensu: (1) shensu against the judiciary; (2) shensu against an administrative agency; (3) shensu against the party; (4) shensu against an electorate. Zhongguo Fazhi Bao, (Legal System Daily), April 19, 1988 at 2; see also Zhongguo Fazhi Bao (Legal System Daily), March 15, 1988 at 4. 57. Zhongguo Fazhi Bao (Legal System Daily), March 15, 1988 at 4. 58. This constitutional basis for filing a petition (to "shensu") is reminiscent of the U.S. federal habeas corpus proceedings. See 28 U.S.C. 2255. Federal habeas re￾lief is a post-conviction relief available to persons being held in custody in violation of the laws of the United States. Each state of the United States also has separate post-conviction remedies, but state collateral remedies range from jurisdiction to ju￾risdiction. State collateral remedies could include (1) writ of habeas corpus, (2) writ of coram nobis, (3) statutory provision modeled after 28 U.S.C. 2255, and (4) the Uni￾form Post-Conviction Procedure Act. See generally, Wayne LaFave and Jerold H. Israel, Modern Cniminal Procedure 1009-1084 (1985). The German legal system also provides a similar constitutional petition. Donald Kommers, The Constitutional Ju￾risprudence of the Federal Republic of Germany 15-17 (1989). 59. Fan Chongyi, "On the Retrial of a Legally Effective Judgment or Order," Faxue Yanjiu (Studies in Law), No. 1, 1984 at 60-61; Xu Yichu, "On the Establish￾ment of the Unique Chinese Procedure of Adjudication Supervision," Faxue Yanjiu (Studies in Law), No. 4, 1986 at 75. 60. Article 27 provides that "all state organs and functionaries must rely on the support of the people, keep in close touch with them, heed their opinions and sug￾This content downloaded by the authorized user from 192.168.82.207 on Thu, 15 Nov 2012 12:27:25 PM All use subject to JSTOR Terms and Conditions