would you be able to integrate this old paper into a 4000 word essay on the chinese law, half of it being on the previous essay?

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Analysis of the Chinese Judicial System

Overview

China has developed a system of judiciary that encompasses a much wider scope than just the judges and courts (Wang, Biddulph & Godwin, 2017). Other than the courts and judges, the Chinese judicial system also incorporates aspects such as the People’s Procuratorate, People’s Courts, justice department and public security agencies. Both the justice department and public security agencies are under the auspices of the Ministry of Justice and Ministry of Public Security respectively. The functions and powers of each of the above are defined by both the Constitution and applicable laws.

The Constitution of the Peoples’ Republic of China vests all judicial powers in the National People’s Congress (Wang, Biddulph & Godwin, 2017). Consequently, the National People’s Congress exercises the power granted to it by the Constitution to supervise the Supreme People’s Court, the Supreme People’s Procuratorate and the State Council. The State Council is sometimes referred to as the Executive. Alone, the basic structure above portends certain ramifications in terms of separation of functions.

First, the arrangement effectively separates functions at various levels. No power(s) is however separated. Accordingly, every agency is granted distinct powers and functions which they are expected to exercise without interfering with each other unless the law so permits. It is only the Supreme People’s Court which has the authority to render judicial interpretations. Courts are not empowered to interpret or declare certain laws, regulations or rules invalid. The power to interpret or invalidate laws, rules or regulations vests in the Standing Committee of the National People’s Congress. Jurisdiction of the courts is therefore limited to the determination of the legality of administrative conducts to an extent specifically permitted under the law.

Besides the limitation on the jurisdictional powers of the courts, it is also critical to highlight the role of the Communist Party of China within courts’ functioning matrix (Wang, Biddulph & Godwin, 2017). The work of all the judicial agencies in the People’s Republic of China is coordinated and monitored by the Political-legal Committee of the Communist Party. As per law established, the Political-legal Committee carries out primary policy oversight of all the agencies making up the judiciary.

Essential Characteristics

No separation between executive and judiciary

Chinese judicial system is a part of the state. Basically, the courts act as a pseudo agency within the general administration of the People’s Republic of China (PRC). This is a common attribute in most socialist states. Thus, the judicial system is not independent of the influence of the state as the institution represents one of the agencies of the administration. China therefore embraces the principle of separation of the executive from the Judiciary.

A people’s justice system

One of the fundamental duties of the judiciary is to administer what is commonly referred to as a “people’s justice”. This is in tandem with the aspirations of socialist democracies such as China. A people’s justice by definition implies justice that resonates with the interests of socialist aspirations of the people of China. Contrasted with the principle of individual justice, the people’s justice system of judiciary, courts in China serve to protect the collective interests of the people against those of individuals. Individual justice systems work to further individual interests against those of the state.

Committed to its mandate

The Chinese Judiciary is generally committed to realizing its mandate of developing the socialist regime. As an institution, it is tasked with the responsibility of speedy adjudication of cases. In addition, its obligations extend to educating the citizenry regarding the socialist ideals which establish the foundation upon which PRC thrives. Through the judiciary, Chinese citizens are sensitized about the need to devote themselves to the socialist ideologies which lie at the epicenter of the Chinese society. Courts are duty bound to instill the spirit of adherence to the norms and causer of socialism, Constitution and other laws of the land. Just like other state departments, the courts remain committed to promoting the integrity and unity of the nation. Lastly, the judiciary functions to assist the government in containing reactionaries, counter-revolutionaries and others opposed to the socialist regime.

Incorporates people’s assessors

Cases are heard by the People’s courts. The people are usually represented in the process of justice administration. Criminal cases and counter-revolutionary related crimes may attract masses to discuss and render suggestions. People’s assessors are elected from amongst adult citizens who are eligible voters and who have the right to run for elections. The Ministry of Justice determines how the election of assessors is conducted as well as their tenure. Assessors are no different from judges of their respective courts as far as the enjoyment of equal rights is concerned.

Judges elected by Congress

Courts in China are the products of election by Congress at various levels of administration. Congress refers to the social assemblies which exist at different levels within the Chinese administrative arrangement. Courts and judges appointed by Congress at the different levels are accountable to their respective congresses. Power is equally granted to Congress to ouster a judge from office.

Different nationalities, different languages

The judicial system in China grants all citizens of different nationalities and languages the right to rely on both their spoken or written languages during court processes. This is particularly important given that nationals of other countries may wish to participate in the Chinese court proceedings as witnesses, accused persons or even members of the public gallery.

Structure and Organization of the People’s Courts

The People’s Republic of China’s Constitution creates a unitary system of courts that supersedes the individual autonomies of the local areas and provinces. Accordingly, the hierarchy of the Courts is such that no distinction is made with regard to jurisdictions of state, federal and territories. A comprehensive evaluation of the courts' hierarchy places the Supreme People's Court at the apex and is based in Beijing. Just below the Supreme People’s Court are the High People’s Court and Special People’s Court occupying the same position within the hierarchy. Moving a step further below, we find the Intermediate People’s Courts. A good example is the Guangzhou Intermediate People’s Court. Right below the Intermediate People’s is the Basic People’s Courts. This is the category of Courts established at the county level. Finally, closing up the hierarchy are Dispatched Tribunals of Basic People's Courts. Such courts exist at the county level. A detailed analysis of the hierarchy follows below.

Supreme People’s Court

This is the highest ranking organ of the Chinese judiciary (China, 2004). It also doubles as the court of the last instance or final appellate jurisdiction. Ideally, no appeal can lie beyond the Supreme People’s Court. Any matter originating from lower courts can be heard up until the Supreme which prevails with finality on any matter brought before it by way of appeal. In recent times, the highest court on the land has managed to establish a series of Circuit in provinces such as Zhengzhou, Shenyang, Shenzhen and Nanjing. These Courts are under special instructions to hear and determine relevant cases brought before them.

As far as jurisdiction goes, the Supreme People’s Court enjoys both original and appellate jurisdiction (Finder, 1993). Original jurisdiction means the authority to hear and conclusively determine fresh cases lodged before it for the first time. Original jurisdiction applies both in civil and criminal cases that the Court is mandated under its general jurisdiction to hear and determine. As the court of first instance in civil cases, the Supreme People’s Court has jurisdiction over matters of national interest and concern and those that it deems appropriate to hear. In this sense, the Court can invoke its discretion to hear and determine matters not expressly stated by law to fall within the ambit of its civil jurisdiction. The Court’s original jurisdiction with regard to criminal matters extends to matters which have a grave or great national impact. On the same realm, the Court may invoke its original jurisdiction to review complex administrative cases brought before it. The Court’s appellate jurisdiction is limited to appeals emanating from the People’s High Court or Special Courts.

Beyond adjudication, the Supreme People’s Court is empowered to pronounce judicial interpretation (Civil Procedure Law of the People Republic of China, 1991). This can be seen as a quasi-legislative role of the Court. Judicial interpretations of the laws and regulations as far as their meaning and application are binding upon all courts within the territory of China. The court is how however bound by neither its legal interpretations nor decisions. It may depart from its earlier decisions or interpretations if circumstances qualify such departure. Additionally, the Court often issue guiding cases in order to promote consistency in the determination of cases in lowers courts.

High People’s Courts

A High People’s Court enjoys both original and appellate jurisdiction. As a court of first instance, the Court exercises legal jurisdiction over matters of major impact in their respective geographical jurisdictions. What amounts to major impact is not defined within the Chinese Civil Procedure. However, this apparent lacuna has been somehow cured by the Supreme People’s Court by suggesting that regard should be had to the monetary value of the so-called matter major impact (Notice of the Supreme People’s Court, 2015). In criminal cases, the Court may exercise the original jurisdiction in criminal matters with a significant impact in the provinces they cover.

As an appellate court, the High People’s Court hears appeals from all the intermediate courts situated within its territorial jurisdiction (Potter, 1991). It has the authority to review and approve death sentences. However, whenever it invokes its review jurisdiction in this regard, execution must be suspended for a definite period of two years. The two years is a statutory requirement under the state's criminal law. Essentially, the two-year stay of execution is important in monitoring the behavior of the convict while in incarceration. Should they commit further crimes while in custody during this period, the High People’s Court can then make further orders authorizing execution. However, if the convict displays good conduct, they will be commuted to life imprisonment instead.

Intermediate People’s Courts

Intermediate People’s Courts are second administrative level courts (Administrative Procedure Law, 1989). They are the second lowest in the hierarchy. Such courts also enjoy original and appellate jurisdictions. The original jurisdiction is with respect to important matters from within the local administrative units. As courts of appeal, Intermediate People’s Courts handle appeals lodged from the Basic People’s Courts.

Original jurisdiction of the Intermediate People’s Courts applies to the following civil cases; matter of significant impact at the respective prefectural levels, major foreign cases or those with foreign element and cases declared by the High People’s Court to rightfully fall within the jurisdiction of the Intermediate People’s Court (Administrative Procedure Law, 1989). Foreign element, in this case, implies matters involving for example a Chinese citizen living abroad, a foreigner living in China, a legal entity incorporated under foreign laws etc.

The criminal jurisdiction of the Intermediate People’s Court relates to cases that pose a security threat to the state, cases punishable by life imprisonment or death penalty or those involving terrorism. The Courts’ review jurisdiction extends to matters brought against state councils, cases that fall within the purview of the Customs or complex cases originating from different prefecture levels.

Basic People’s Courts and Dispatched Tribunals

These courts are variously known as Primary People’s Courts. They occupy the lowest position within the hierarchy. Effectively, they form the third administrative level. Such courts have a general original jurisdiction with respect to the discretion to handle both civil and criminal cases at the third prefecture level (Clarke, 2003). The jurisdiction may however be limited by specific laws or regulations. Courts in this category may create branch offices known as dispatched tribunals in remote areas or cities. The dispatched tribunals are usually found at the fourth administrative levels also known as townships.

Conclusion

The purpose of this essay was exclusively to explain the features and structure of the Chinese judicial system. Some of the essential features have been extensively discussed in the essay. From the analysis, it is evident that the hierarchy of courts places the Supreme People’s Court at the apex and is based in Beijing. Just below the Supreme People’s Court is established the High People’s Court and Special People’s Court occupying the same position within the hierarchy. Moving a step further below, we find the Intermediate People’s Courts. A good example is the Guangzhou Intermediate People’s Court. Right below the Intermediate People’s is the Basic People’s Courts. This is the category of Courts established at the county level. Finally, closing up the hierarchy are Dispatched Tribunals of Basic People's Courts. Such courts exist at the county level.

References

Administrative Procedure Law of the People's Republic of China (Adopted at the Second Session of the Seventh National People's Congress on April 4, 1989 and promulgated by Order No.16 of the President of the People's Republic of China on April 4, 1989)

China, C. (2004). Constitution of the People's Republic of China. Foreign Languages Press.

Civil Procedure Law of the People Republic of China, National People’s Congress, 9 April 1991

Clarke, D. C. (2003). Empirical research into the Chinese judicial system. Beyond Common Knowledge: Empirical Approaches to the Rule of Law, 164-92.

Finder, S. (1993). The Supreme People's Court of the People's Republic of China. J. Chinese L., 7, 145.

Notice of the Supreme People’s Court on Adjusting the Standards Applicable to the Jurisdictions of High People’s Courts and Intermediate People’s Courts over First-instance Civil and Commercial Cases] Supreme People’s Court, 30 April 2015

Potter, P. B. (Ed.). (1991). The Administrative Litigation Law of the PRC

Wang, Y., Biddulph, S., & Godwin, A. (2017). A Brief Introduction to the Chinese Judicial System and Court Hierarchy. Asian Law Centre, Melbourne Law School, The University of Melbourne.