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Civil Appeals and Other Means of Recourse Against Judgments in China: a Critical Review of the Procedural Issues (Part 2)

Peter C.H. Chan, Solicitor, Hong Kong; Solicitor, England & Wales, Teaching Fellow, School of Law, City University of Hong Kong, Hong Kong, China

The article explores the unique features of the Chinese civil appellate system. Unlike a common law appeal, a civil appeal in China operates very much like a trial de novo. This article also discusses the absence of fi nality in Chinese civil justice. This undesirable state of aff airs is the direct result of a procedural mechanism (adjudication supervision) that allows the party, the court and the procuratorate to re-open non-appealable judgments when defi nite errors are identifi ed.

5. Adjudication supervision: a critical review of the procedural issues

There are generally four avenues to re-open a legally effective decision under the adjudication supervision procedure: (1) by the adjudicative committee of the same court that rendered the decision upon referral by the president of that court[1]; (2) by the next higher-level court (or the SPC) exercising its adjudicative supervisory jurisdiction[2]; (3) by a party applying to the next higher-level court for re-adjudication (zaishen shenqing) (henceforth, party application)[3]; and (4) by a ‘protest’ (kangsu) from the next higher-level procuratorate (or the Supreme People’s Procuratorate) (henceforth, procuratorial  protest)[4].

5.1      Adjudication supervision through party application

A party may apply to the court for re-adjudication[5]. Article 199 of the Code reads:

‘If a party is of the opinion that a legally effective judgment or ruling is erroneous, that party may file an application for re-adjudication with the court at the next higher level.  If the persons constituting a party are numerous or both parties are citizens, the parties may apply for re-adjudication with the original court that rendered the judgment or ruling.  Where a party applies for re-adjudication, the execution of the judgment or ruling shall not be suspended.’

Two prerequisites must exist before a party can apply for re-adjudication: (a) the judgment or ruling must be legally effective; and (b) the judgment or ruling must contain an error[6].  The default position is for a party to apply to the court at the next higher level, although it is possible (in special circumstances)[7] to apply to the same court that rendered the original judgment.

The court must grant leave for re-adjudication if the party application falls under any of the 13 circumstances set out in Article 200 of the Code[8].  The circumstances in Article 200 are commonly known as the ‘causes of re-adjudication’ (zaishen shiyou).  The following is an overview of the causes of re-adjudication:

(1)   Legal errors:  whether a judgment applied the wrong law is to be determined by the court at the leave stage of re-adjudication[9]. Possible scenarios of erroneous application of the law include where (a) the law applied is clearly inconsistent with the nature of the claim; (b) the law applied has been repealed or has not come into force; and (c) the way the law has been applied clearly contradicts its legislative intent[10]. It has been argued that re-opening judgments by the SPC and courts at higher levels on the basis of legal error has the positive effect of ensuring uniformity in statutory interpretation[11].  However, given that lower-level courts could also re-adjudicate cases (especially since the 2012 amendment of the Code), this argument is only partially accurate.

(2)   Factual errors: Article 200 of the Code listed four irregularities in the fact-finding process as causes of re-adjudication: (a) new evidence has emerged that is sufficient to overturn the original judgment; (b) the findings of basic facts in the original judgment lacked evidential support; (c) the primary evidence supporting the original judgment’s fact-finding is fabricated; and (d) the primary evidence supporting the original judgment’s fact-finding has not been cross-examined[12].  It is quite troubling to see that any new evidence crucial to the case, if uncovered after a judgment becomes legally effective, could be used as a ground to nullify the judgment.  While a limited avenue to introduce new evidence is well justified at the appellate level, allowing any fresh evidence to overturn a final judgment completely defeats finality.  Note particularly that the 6-month time limit for lodging an application for re-adjudication when new evidence emerges is calculated from the date when the party knew (or should have known) about the new evidence, not from the date when the judgment came into effect[13].  A judge could only determine a lawsuit on the basis of evidence presented by the parties.  This is so even for a Chinese judge as the fact-finding regime is premised on a party responsibility system[14].  Only in exceptional circumstances should a Chinese court exercise its ex officio power of investigation and evidence collection[15].  It is indeed absurd that a final decision that contained no actual error could be re-opened 20 years later just because a party uncovered new evidence that could overturn the decision.

(3)   Procedural irregularities: such as illegally denying a party the right to engage in debate; irregularity in the formation of the ‘trial organization’ (shenpan zuzhi); a default judgment being entered against a party who has not been summoned.  While a serious procedural irregularity that infringes basic rights of the party would justify the re-examination of a case, any procedural problems at trial should have been dealt with conclusively at the appellate stage.

(4)   Other irregularities: for instance, where the judgment is tainted by judicial corruption (e.g. acceptance of bribes).

Two causes of re-adjudication  were removed in the 2012 Amendment Version of the Code: (a) jurisdictional error (i.e. the judgment should be set aside for want of jurisdiction); and (b) any procedural irregularity that could affect the correctness of the judgment or ruling (i.e. a catch-all provision for procedural irregularity)[16].  The real reason for their removal is unclear.  While hardly convincing, the reasons given in an authoritative annotation of the Code were that jurisdictional errors are already capable of being rectified under Article 200(6) of the Code (i.e. within the meaning of a legal error) and there is no need for a catch-all provision for procedural irregularity as the list of causes of re-adjudication in Article 200 is already ‘relatively comprehensive’[17].

As a matter of policy, the party application regime for re-adjudication was introduced to rectify the so-called ‘difficulty in commencing the re-adjudication procedure’ (zaishen nan).  Jin noted that the party application regime ‘transformed the retrial procedure into a more appeal-like procedure[18].  There is some truth in this view.  First, the court is obligated to re-open a case if the application raises a valid cause of re-adjudication.  So the list in Article 200 of the Code, in some way, operates like a plethora of grounds for appeal[19].  Second, as an appeal (where a court hearing is held) in practice can look very much like a trial de novo, the de facto procedural characteristics of an appeal and a re-adjudication can be similar.

An encouraging amendment in 2012 is the shortening of the time limit for a party to apply for re-adjudication from 2 years[20] to 6 months[21] from the effective date of the judgment or ruling[22].  The stricter timeframe gives more certainty to a final judgment.  However, the real effect of this amendment is limited as nothing could stop the court from re-opening final judgments through exercising its ex officio power of adjudication supervision after the expiry of the 6-month deadline[23].

A party applying for re-adjudication must submit a ‘written application for re-adjudication’ (zaishen shenqing shu). The court should, within five days after receiving the written application, serve copies of the written application on the opposing parties.  The opposing parties have the opportunity to respond to the written application by serving a ‘written opinion’ (shumian yijian).  The court may require the applicant and the opposing parties to provide supplemental information and question them on relevant matters[24].  The court may either question the parties together or ex parte[25]. 

The court has the discretion to determine whether or not to re-open a judgment upon receiving an application from the party.  This in effect is the leave stage of the re-adjudication procedure.  The court must, within three months after receiving a written application for re-adjudication, examine the application and, if the application complies with the Code (i.e. falls within any of the circumstances in Article 200), issue a ruling to retry the case (i.e. granting leave).  If the application fails to comply with the Code, the court should issue a ruling to dismiss the application (i.e. refusing leave).  Under special circumstances, the president of the court may grant an extension of time beyond three months[26].  Once the court grants leave to re-adjudicate the case, execution of the original judgment would be stayed by a court order[27].  There is no separate set of procedural rules for re-adjudication.  Depending on the situation, the court retrying the case either follows the first-instance procedure or second-instance procedure[28].  A court must form a collegiate bench to retry a case[29].  A party may apply to the court to re-open a mediation agreement if evidence can be adduced to show that the mediation violated the principle of voluntariness or if the content of the settlement has violated the law.  The court, upon reviewing the application and confirming such irregularity, should order a retrial of the case[30].

5.2 Adjudication supervision: ex officio power of the court to re-open final judgments

Under Article 198(1) of the Code, if any ‘definite error’ is discovered in a legally effective judgment, ruling or mediation agreement and the president of the court that rendered the decision believes that a re-adjudication is necessary, the president must submit the case to the adjudicative committee of the court[31], which in turn would decide whether the case should undergo the re-adjudication process[32].

Under Article 198(2) of the Code:

‘Where the Supreme People’s Court discovers any definite error in a legally effective judgment, ruling or mediation agreement rendered by a local people’s court at any level; or where a people’s court at a higher level discovers any definite error in a legally effective judgment, ruling or mediation agreement rendered by a people’s court at a lower level, the Supreme People’s Court or the court at a higher level shall have the power to directly retry the case or direct a people’s court at a lower level to retry the case.’

Article 198(2) encapsulates the power of a higher-level court to supervise the adjudicative activities of a lower-level court (and the SPC’s powers to supervise the adjudicative activities of all courts in China)[33].

It is important to note that the power of adjudication supervision set out in Article 198 of the Code is free-standing, which means that even where the parties have not applied for re-adjudication, the same court (through its adjudicative committee) or a higher-level court (or the SPC) may initiate the process on its own.

While noting the need to maintain quality and consistency in civil adjudication in a system that lacked more sophisticated mechanisms, the court’s ex officio power to re-open a ‘final’ judgment can be criticized on a number of levels: (a) the arbitrariness in the court’s exercise of this power (due to an ill-defined threshold for re-opening judgments); (b) the free-standing nature of such power is inconsistent with the system of appellate review (e.g. an appeal must be initiated by the party); (c) the lack of procedural safeguards (e.g. time limits) against the abuse of this power; and (d) the intrusion of the court into the realm of private justice by the recent extension of the court’s ex officio power to re-open mediation agreements.   The retention of the court’s ex officio power under Article 198 not only complicates the normal course of adjudication, but also infringes adjudicatory autonomy[34], assaults the principle of party disposition and takes away the normative force of ‘final’ judgments and rulings re-opened under the procedure.

First, the triggering threshold for re-opening a legally effective decision or a mediation agreement is the finding of any ‘definite error’ (queyou cuowu) in the decision or mediation agreement[35].  The term ‘definite error’, however, is not defined in the Code or any judicial interpretation.  One widely accepted view is that a legally effective decision (or mediation agreement) is generally tainted by ‘definite error’ if any of the circumstances set out in Articles 200 and 201 of the Code are present[36]. However, nothing in the Code or any other normative instrument prohibits the adjudicative committee of the same court or a court at a higher level (or the SPC) to go beyond the scopes in Articles 200 and 201 in determining what ‘definite error’ means[37].  Article 200 of the Code is expressed to apply only to situations where there is a party application[38] or a procuratorial protest (or procuratorial recommendation)[39].  Article 201 of the Code is expressed to apply only to the situation of party application. Therefore, the threshold of ‘definite error’ remains undefined.  The lack of a definition for this monumentally important threshold is troubling as the test for determining whether or not to re-open a legally effective judgment could well be arbitrary, potentially allowing extraneous factors to affect its outcome.  A basic court judge observed that the Code simply failed to provide sufficient procedural guidance on the operation of the Article 198 regime.  As a result, the court is left with enormous discretion to interpret the threshold of ‘definite error’[40]. 

Second, a procedure that allows courts to re-open final decisions ex officio does not fit in at all with the theory underlying an appellate system.  Under the appellate procedure, a party must lodge the appeal.  The court cannot in any way force the appellate review procedure on the parties. The literature in Mainland China struggled to find a consistent theory that justifies the retention of the court’s ex officio power to re-open judgments.  Some simply stop at saying that this is a ‘unique feature’ of the Chinese civil justice system[41].

Third, the Article 198 regime has no detailed procedural arrangement.  Under the party application regime, three distinct stages are stipulated in the Code: (a) the initiation stage where the party submits an application; (b) the leave stage where the court determines whether an effective judgment should be re-opened; and (c) the actual re-adjudication stage.  Under Article 198, however, no such arrangement is provided as though the court would simply operate behind closed doors with no procedural restrictions at all.  The lack of a clear procedural arrangement under Article 198 has serious implications, most notably the absence of any time limit for the re-opening of judgments.  Under the party application regime, the party must file an application for re-adjudication within 6 months from the effective date of the judgment or ruling[42], and upon receiving the party application, the court must decide whether or not to allow leave within 3 months[43].  The Article 198 regime imposes no such time limits on the court.   It is difficult to defend a system that is both opaque and lacking in the necessary procedural safeguards. 

Fourth, a glaring shortcoming of the 2012 revision to Article 198 of the Code is the extension of the court’s ex officio power to re-open a case settled by court mediation.  If a mediation agreement is found to contain any ‘definite error’, it should be re-opened like any legally effective judgment or ruling.  ‘Definite error’ in the context of mediation agreements is not defined in the Code, although some guidance is provided in Article 201 of the Code[44]:

“A party may apply for retrial against a legally effective mediation agreement if he can adduce any evidence that the mediation violated the principle of voluntariness or any content of the mediated settlement violated the law.  If the people’s court finds the evidence to be true upon examination, it shall conduct a retrial”.

Allowing the court to set aside a private settlement arrangement ex officio and to order a retrial of the case opens the door for unwarranted judicial intervention of private justice.  While it may be a panacea for the problem of coercive practices in court mediation, its remedial effect fails to outweigh the harm it creates.  The problem of coercive mediation practices should be tackled not by giving more power to the court to intervene, but by reforming the crippled court mediation system in China[45].  If the mediation agreement violated the law, the most straightforward remedy is to disallow enforcement[46].  It would be much more consistent with the principle of party disposition to leave the parties themselves to decide what to do next if enforcement is refused[47], rather than to allow the court to re-open an otherwise settled dispute.  Of course, proponents of this amendment would argue that a mediation agreement is not purely a private settlement under Chinese procedural theory, as the court’s authority to sanction the settlement is a manifestation of its adjudicatory power[48]. Some academics in Mainland China have questioned the need to retain the court’s ex officio power of adjudication supervision.  Tang, for instance, calls for the abolition of such a system.  By removing its ex officio power to re-open final judgments, the judiciary would be able to focus on improving the quality of its adjudicatory work (and would thereby become more confident with its own decisions), instead of having to rely on the re-adjudication mechanism to correct errors[49].

5.3 Procuratorial supervision: enhancing accountability or violation of adjudicatory autonomy?

The Chinese procuratorates exercise enormous powers in adjudication supervision.  Article 208 of the Code confers (a) the power on the Supreme People’s Procuratorate (SPP) to protest (kangsu) against a legally effective judgment or ruling of any court in China; and (b) the power on a higher level procuratorate to protest against a legally effective judgment or ruling of a lower level court, if the judgment or ruling falls under any of the circumstances set out in Article 200 of the Code. A procuratorate may lodge a protest ex officio, i.e. without the need of a ‘request for protest’ from the party[50].  While the court may reject a party application for re-adjudication[51], it must re-open an effective judgment upon receiving a procuratorial protest[52]. There is no apparent time limit for lodging procuratorial protests when the procuratorate exercises this power ex officio[53].  Article 208 of the Code also confers the power on procuratorates (the SPP or a higher level procuratorate) to protest against a mediation agreement of a lower level court if the mediation agreement causes any damage to ‘national interest’ or ‘public interest’.  Article 209 of the Code allows parties to file a ‘request for protest’ (kangsu shenqing) with a procuratorate[54].  This mechanism can only be used when the party has exhausted its rights under the party application regime: i.e. when (a) the court rejects the party’s application for retrial; (b) the court fails to grant leave for retrial within the prescribed time limit; or (c) there is a ‘clear error’ (mingxian cuowu) in the judgment or ruling entered after the retrial[55].  ‘Clear error’ is not defined in the Code or any judicial interpretation, but presumably it has the same meaning as ‘define error’.

The procuratorate must determine whether or not to lodge a protest within three months upon receiving a request for protest[56].  The procuratorate may investigate the matter and request for information from the parties (or non-parties) for verification purposes[57].  The procuratorate deciding to proceed with a protest must produce a ‘written protest’ (kangsu shu), and the court accepting the protest[58] must set the case down for retrial within 30 days from receiving the written protest.  As a general rule, the court receiving the protest should transfer the case to a lower-level court for retrial if the case is re-opened pursuant to any of the causes of re-adjudication set out in Article 200(1) to (5) of the Code.  However, if the case has already been retried earlier by a lower-level court, the court receiving the protest should retry the case on its own[59].  The procuratorate may send a representative to be present at a retrial hearing initiated by procuratorial protest[60].

An additional supervisory power has been conferred on the procuratorate in the 2012 Amendment Version of the Code.  A procuratorate at the same level as the court that rendered the legally effective judgment may issue a ‘procuratorial recommendation’ (jiancha jianyi) in relation to the judgment if any of the circumstances in Article 200 of the Code is present[61].  This is contrasted with a procuratorial protest, which can only be lodged by a higher-level procuratorate.  The scope of a procuratorial recommendation is much wider than that of a procuratorial protest[62], i.e. a protest is only limited to ‘civil adjudicatory activities’ (minshi shenpan huodong) while a recommendation may cover any matter relating to ‘civil litigation’ (minshi susong)[63].  Unfortunately, no procedural guidance from the SPC or SPP is given on how the procuratorate should exercise its power of recommendation, especially when it concerns matters outside the adjudication supervision procedure.  The 2012 Amendment Version of the Code also confers the power on procuratorates to recommend the re-opening of mediation agreements sanctioned by same-level courts if the mediation agreements cause any damage to ‘national interest’ or ‘public interest’[64].  While being called a ‘recommendation’ and there is no mandatory rule requiring the court to re-open a judgment upon receiving a recommendation, the normative effect of a procuratorial recommendation could well be very similar to that of a procuratorial protest[65].  Given the legal tradition that the judiciary is under the supervision of the procuratorate, courts are likely to re-open judgments upon receiving procuratorial recommendations unless there are compelling reasons not to do so.  It remains to be seen how courts in reality would react to procuratorial recommendations.

 

6. The importance of finality

Without the finality of judgment, civil justice becomes uncertain and unpredictable[66].  Adjudication supervision in China, which allows the endless re-opening of effective judgments, destroys finality.  The benefit of correcting ‘definite errors’ in adjudication is outweighed by the damage this procedure has done to the stability and predictability of the system. When an effective judgment can be re-opened (even by non-litigant entities) under protocols that afford litigants much less procedural safeguards than those available under the appellate process, litigating in Chinese courts becomes a gamble altogether.  The judiciary’s failure to guarantee finality not only lowers public confidence in the system[67] but also discount efforts made in the past to develop the rule of law.  While a retrial ruling that corrects errors in a judgment would make the original losing party happy (and may serve populist policy objectives)[68], its long-term damage to overall justice would eventually prove to work in China’s disfavour from the perspective of developing a stable and reliable legal system, which is indispensible for any successful market economy.     Adjudication supervision not only destroys finality but also infringes the autonomy of the individual judge in civil adjudication[69].  In fact, limiting the adjudicatory autonomy of the judge is an intended consequence of adjudication supervision.  If judges were allowed to render truly final judgments that cannot be re-opened, higher authorities within the judiciary would lose control over individual judges.  Any reform to uphold the principle of finality would threaten the bureaucratic fabric of the Chinese Judiciary where judicial discipline is paramount[70], and where the individual judge is institutionally weak[71].

 

7.   Concluding remarks

 The Chinese approach of complete review frustrates the true nature of civil appeals.  The appellate court is too powerful: save for a few minor restrictions, the appellate court may redefine the remit of the appeal, entertain new evidence and legal issues, and review the merits of every factual and legal finding of the first instance court.  In practice, the factual review takes the form of a fresh fact-finding exercise.  This approach makes second instance procedure in China more like a trial de novo than a genuine appellate review. To move forward, China needs to consider adopting a limited review of appeals.  Consistent with the principle of party presentation, the scope of review should be limited to the request for appeal only.  The purpose of an appeal is not to retry the case.  The appellate court should not reinvent the wheel by repeating the fact-finding exercise and should not disturb first instance findings of facts unless there are plain errors[72]. New evidence should not be accepted on appeal unless there are good reasons.  The test in Ladd v Marshall[73] may offer some useful guidance in formulating the future test for admission of new evidence in appellate review. From the perspective of procedural efficiency, remittals should be avoided as much as possible[74].

However, reforming the appellate system itself is insufficient.  The adjudication supervision procedure continues to be the greatest hurdle for constructing a reliable and effective appellate system.  Adjudication supervision creates unpredictability in access to justice in China.  When finality cannot be guaranteed, justice cannot be secured.  The prevailing judicial culture that views finality as an obstacle thwarts any genuine reform effort to develop the rule of law in civil procedure.  Populist manipulation of the adjudication supervision procedure further complicates the matter.  When effective judgments can be revoked on populist policy grounds cloaked in the name of adjudication supervision, procedural safeguards (no matter how well designed) would become superfluous.  Paradoxically, allowing populist objectives to sway determinations in adjudication supervision indirectly encourage litigants to petition even more fiercely, as doing so their grievances are most likely to be heard and taken seriously by the courts.  Litigants who are less vocal before would follow suit.  Adjudication supervision triggered by extraneous factors is bound to backfire.  No judge would ever be sure what would happen next in a culture where social sentiments dictate the daily schedules of courts.  It shows that the best way to deliver justice is through upholding the rule of law, not by chasing populist goals. 

On a procedural level, the principle of party disposition can only be upheld when courts are banned from exercising its ex officio power of adjudication supervision.  This can simply be done through amending the Code.  Such an amendment would at least put the parties in the driver’s seat and prevent situations where the court forces its will on the parties by re-opening judgments.  It would also avoid the abuse of such power, e.g. the court re-opening judgments ex officio that are unfavourable to local authorities or vested interests. The regime of party application for re-adjudication can be improved by providing detailed practice directions on the standards for triggering re-adjudication.  For instance, the definition of legal error under Article 200(6) of the Code remains vague.  If an overly wide interpretation is adopted, even trivial errors of law could disturb the finality of judgments, which is clearly unwarranted.  Ideally, adjudication supervision should only be triggered when there is a serious procedural violation (e.g. the violation resulted in the denial of a fair trial).  If the substantive causes of re-adjudication are to be retained (e.g. the re-opening of a judgment tainted by factual error), it is advisable that Article 200 should at least specify that a final judgment should not be re-opened unless the substantive error is sufficiently serious that the judgment would have been materially different but for the error.  Procuratorial supervision of civil litigation threatens adjudicatory autonomy and infringes the principle of party disposition.  While procuratorial oversight on certain judicial issues (such as judicial corruption and serious dereliction of judicial duty) is justified in the context of China’s legal tradition, the procuratorial portfolio should not include intervening with individual civil lawsuits.  Unfortunately, a converse trend has been witnessed in the latest reform where policy makers expanded the supervisory powers of the procuratorate to cover all matters relating to civil litigation.  This trend is indeed worrying. 

The notion that uniformity of the law can be achieved through adjudication supervision may be sound in theory.  In practice, however, retrial decisions (especially retrial decisions of lower-level courts) can be just as inconsistent as first or second instance decisions. The rules of adjudication supervision are primarily catered for correcting errors identified in effective judgments, not for achieving consistency in jurisprudence.  To achieve uniformity, the highest level of courts must be in a position to declare universal norms.  This cannot be achieved unless policy makers are willing to fundamentally reform the current system in China.  Some Chinese academics are in favour of revoking the current two-instance system[75] in the long run, to be replaced by a three-tier system with the third level cassation or Revision to the SPC[76].  Zhang and Li highlighted a number of weaknesses of the two-instance system[77].  Civil appeals today are mostly heard by intermediate courts, which are relatively low ranking (only one level higher than the basic-level courts).  There are in total 409 intermediate courts in China[78].  It is difficult to manage the quality of appellate review and avoid discrepancies in application of the law when appeals are heard by such a vast number of (relatively) low-ranking courts[79]. Since an intermediate court that hears an appeal usually has its seat within or near the community where the dispute arose, the court is much more prone to influence from stakeholders within that community, including interference motivated by local protectionism.  Furthermore, given the traditionally close connections between intermediate courts and basic-level courts of any given region (in terms of administrative link, adjudication supervision and personnel), it is questionable whether appellate judges of the intermediate courts are impartial enough to review decisions made by their brethren at basic-level courts whom they are closely associated with[80].  Under the three-tier system, the SPC should abandon adjudication supervision and focus on clarifying the law with the view of achieving uniformity (through Revision or cassation)[81].  Guided by norms declared by the SPC, greater consistency (as well as accuracy) in application of the law can be expected at second instance even where the bulk of appeals are still handled by intermediate courts[82]. Adopting the three-tier system would inevitably make adjudication supervision redundant.  Given the judiciary’s obsession with material truth and substantive justice, it is unsurprising that leaders of China’s courts are generally not keen with the idea of establishing a Chinese court of Revision or cassation[83] and would prefer to retain the adjudication supervision procedure[84]. The adjudication supervision system is not just about correcting errors in effective judgments.  It is the cement of a power matrix that regulates activities within the judicial bureaucracy in China. As long as the beneficiaries of adjudication supervision can still exert influence over policy-making, the two-instance system is expected to remain[85].

    Ultimately, Chinese courts must embrace finality as a fundamental principle of civil adjudication.  The absence of finality in China affects not only the rights of individual litigants but also the country as a whole, as investors cannot trust a system in which the fruits of their legal battles could be set aside in the name of substantive justice. China is at the crossroads of modernization.  To match the aspirations of a true market economy, China needs to build a stable and predictable legal system.  Finality of judgment is at the heart of a stable and predictable legal system.  Supervision in any organisation is important from an accountability perspective.  But any supervision would be counterproductive if there is no empowerment of the individual.  The Chinese individual judge is simply not trusted with the task of adjudication.  Collective wisdom of the court organization therefore takes precedence over the professional judgment of the adjudicator.  Without empowering individual judges and fundamentally changing the judicial culture, any procedural reform would be futile.



[1] Article 198(1) of the Code; also see Article 14 of the Organic Law.

[2] Article 198(2) of the Code; also see Article 14 of the Organic Law.

[3] Article 199 of the Code.  For a party applying to re-open a mediation agreement, see Article 201 of the Code.

[4] Article 208 of the Code; also see Article 14 of the Organic Law.  A judgment can also be re-opened by the court on a discretionary basis when it receives a procuratorial recommendation from the same level procuratorate.

[5] A party’s right to ‘apply’ (shenqing) for re-adjudication is sometimes translated as a party’s right to ‘petition’ for re-adjudication.  As the word ‘petition’ is frequently used to refer to the right to petition against state authorities (under Article 41 of the PRC Constitution), to avoid confusion this article uses ‘party application’ (instead of ‘party petition’) to describe the regime under which the party initiates the re-adjudication procedure.

[6] See above, footnote 28, p. 323.  “Error” in a legally effective judgment or ruling is explained in Article 200 of the Code.  If the case falls under any of the circumstances set out in Article 200, it is deemed that the judgment or ruling is tainted by error.

[7] Such circumstances are stated in Article 199 of the Code.  The rationale is that if both parties are citizens, seeking relief from the original trial court would save traveling time and cost.  If the parties on one side are numerous, it is more conducive for fact-finding if the original court re-adjudicates the case: Ibid., p. 323.

[8] Article 200 of the Code reads: ‘If the party's application satisfies any of the following circumstances, the people’s court shall retry the case:

(1) there is new evidence sufficient to overturn the original judgment or ruling;

(2) there is a lack of evidence supporting the basic facts established in the original judgment or ruling;

(3) the principal evidence supporting the facts established in the original judgment or ruling was fabricated;

(4) the principal evidence supporting the facts established in the original judgment or ruling was not cross-examined;

(5) the concerned party, not being able to gather the principal evidence required in the trial of the case itself due to objective reasons, applied to the people’s court in writing to investigate and gather evidence, but the people’s court did not do so;

(6) there was a definite error in the application of the law in the original judgment or ruling;

(7) the composition of the trial organization was unlawful or a member of the adjudication personnel who, in accordance with law, ought to have recused himself/herself, did not do so;

(8) a person with no capacity to engage in litigation was not represented by a statutory agent or a person that ought to have participated in the action did not do so due to a reason not attributable to himself/herself/itself or his/her/its agent ad litem ;

(9) a party's right to defend himself/herself/itself was denied in violation of the law;

(10) a default judgment was rendered without a summons having been issued;

(11) the original judgment or ruling omitted claims or exceeded the claims;

(12) the legal document on the basis of which the original judgment or ruling was rendered has been vacated or modified; or

(13) a member of the adjudication personnel, in the trial of the case, accepted a bribe, practised favouritism by committing fraud or made a judgment that perverted the law.

[9] The leave stage of re-adjudication under the party application regime is set out in Article 204 of the Code.

[10] See above footnote 28, p. 326. Obviously, there cannot be an exhaustive list of all the possible scenarios of erroneous application of the law.  Hence, the question of legal error must be left to the professional judgment of the court handling the application. 

[11] See above, footnote 108, p. 38.

[12] Article 68 of the Code regulates the cross-examination of evidence (zhizheng) in court.  Note that cross-examination in the Chinese fact-finding context is a procedure to ensure the reliability and authenticity of evidence.  It gives parties an opportunity to question one another on the evidence adduced and allows the court to investigate further if parties object to the admission of certain evidence: see above, footnote 28, p. 106.  Cross-examination of evidence under Chinese civil procedure must not be confused with cross-examination of witnesses under common law civil procedure. P.J. Schmidt. A Review of China’s New Civil Evidence Law// Pacific Rim Law & Policy Journal. Vol. 12(2), 2003, pp. 291 – 313, at pp. 309 – 311.

[13] Article 205 of the Code.

[14] See above, footnote 96, pp. 233 – 243.

[15] Ibid., pp. 234 – 237.

[16] These two causes of re-adjudication were provided under Article 179 of the Code (2007 Amendment Version).  Also see above, footnote 19, p. 350 – 360.

[17] See above, footnote 28, p. 330.

[18] See above, footnote 108, p. 37. 

[19] Ibid. p. 37.

[20] Article 184 of the Code (2007 Amendment Version).

[21] Article 205 of the Code (2012 Amendment Version).

[22] For circumstances set out in subsections (1), (3), (12) and (13) of Article 200 of the Code, the party must file an application within 6 months from the date when the party knows or should have known about the relevant circumstance(s).

[23] Article 198 of the Code.

[24] Article 203 of the Code.  Note that failure to submit a ‘written opinion’ by the opposing party does not prevent the court from examining the written application for re-adjudication and determining whether or not to grant leave.

[25] See above, footnote 28, p. 333.

[26] Article 204 of the Code.

[27] According to Article 206 of the Code, the stay of execution does not apply to claims relating to child support, medical expenses etc.

[28] Article 207 of the Code.  A number of scenarios are possible when it comes to which type of procedure to adopt in re-adjudication triggered by party application: (a) where a party applies to the court at the next higher level for re-adjudication (which is the default position under Article 199), and the re-adjudication is conducted by that court, second-instance procedure should apply; (b) if a party applies to the same court that rendered the original judgment for retrial (which is the exceptional position under Article 199), first-instance procedure should apply if the original judgment was a first-instance judgment, or second-instance procedure should apply if the original judgment was a second-instance judgment; and (c) where pursuant to a party application, the SPC or a high court (provincial level) refers the case back to the original court (or a court of the same level of the original court) for re-adjudication, the applicable procedure would depend on whether the original judgment was a first-instance or second-instance judgment: see above, footnote 28, p. 338.

[29] Article 207 of the Code.

[30] Article 201 of the Code.  Note that the principle of voluntariness applies to both the initiation of mediation and the settlement itself.  If the court forces a party to mediate or imposes settlement terms on a party against its will, the mediation agreement could be set aside under Article 201.  The issue of re-opening a mediation agreement will be further explored below in the context of the court exercising ex officio power of adjudication supervision.

[31] For a succinct summary of the role and responsibilities of the adjudicative committee, see above, footnote 100, pp. 102 – 103.

[32] This internal mechanism to re-open a legally effective judgment by the adjudicative committee (upon the initiation of the court president) is also stipulated under Article 14(1) of the Organic Law.

[33] When the higher-level court decides to re-open a case, it may either re-adjudicate the case by itself (tishen), which is the norm, or (where necessary) remit the case to the lower level court for retrial: see Article 27 of the 2008 Interpretation; also see Article 27 of the 2009 Opinion.  As for the SPC or a high court (provincial level), the common practice is to direct the original court that rendered the legally effective judgment or any court of the same level as the original court to retry the case: see Article 27 of the 2008 Interpretation.

[34] Conferring on the court ex officio power to re-open final judgments presumes that judges who are higher up in the judicial hierarchy possess greater judicial competence than the adjudicator(s) who directly handled the lawsuits (at trial and appeal).  It is questionable whether this presumption is always accurate given the way to move up the Chinese judicial ladder is not necessarily through adjudicative excellence. 

[35] Articles 198 of the Code.

[36]  See above, footnote 28, p. 321. 

[37] One possible restriction on the court’s ex officio power can be found in a judicial interpretation (Article 30 of the 2008 Interpretation) which provides that where the parties have not applied for a retrial and the procuratorate has not presented a protest, the court should re-open a legally effective judgment/ruling or mediation agreement under Article 198 if the judgment/ruling or mediation agreement harms national interest or public interest (i.e. tainted by definite error): see J.G. Zhu. Zaishen Shiyou de Yizhong Jiedu [One Approach to Interpreting the Causes of Re-adjudication]// research paper presented at the 2012 Civil Procedure Law Research Conference [minshi susong faxue yanjiu hui 2012 nian nianhui], avaloble at: http://www.civilprocedurelaw.cn/html/spcx_1179_3095.html). However, Article 30 of the 2008 Interpretation looks more like a provision requiring the court to step in where the error in the judgment or mediation agreement would give rise to concerns of national interest or public interest, rather than a restriction on the court’s ex officio power under Article 198 of the Code.

[38] Article 199 of the Code.

[39] Article 208 of the Code.

[40] Based on an interview (in May 2012) with a basic court judge who specializes in intellectual property adjudication in a leading commercial city in China.

[41] See above, footnote 31, p. 333.

[42] Article 205 of the Code.

[43] Article 204 of the Code.

[44] See above, footnote 28, p. 321

[45] See above, footnote 96, pp. 249-256.

[46] As a mediation agreement must be sanctioned by the court before it becomes binding, the judge should reject a mediation agreement that contains illegal terms in the first place, rather than waiting until the enforcement stage to rectify the problem.

[47] For instance, the parties may decide to apply to re-open the mediation agreement under Article 201 of the Code. 

[48] W.P. Zhang ed. Xin Minshi Susong Fa Zhuanti Jiangzuo [Lectures on Civil Procedure Law of the People’s Republic of China]. China Legal Publishing House, Beijing, 2012, p. 21.

[49] W.J. Tang. Minsu Fa Xiugai Zhong Jiancha Jiandu Quan De Wanshan [Perfecting the Supervisory Powers of the Procuratorate in the Revision of the Civil Procedure Law// Procuratorial Daily, 23 May 2011.  However, Tang is in favour of retaining the supervisory power of the procuratorate over civil adjudication.

[50] See above, footnote 28, pp. 339 – 340.

[51] Article 204 of the Code.

[52] Article 211 of the Code; also see above, footnote 19, p. 343.

[53] Article 208 of the Code provides no time limit for procuratorial protest; also see above, footnote 7, p. 40.  But there is a time limit for protest triggered by a ‘request for protest’: see Article 209 of the Code.

[54] A party is only allowed to request for procuratorial protest once: see Article 209 of the Code.

[55] The requirement to exhaust all avenues under the party application regime first before seeking redress from the procuratorate was absent in the 2007 Amendment Version of the Code. 

[56] Article 209 of the Code.

[57] Article 210 of the Code.

[58] The court receiving a procuratorial protest must be the next higher-level court of the court that rendered the original judgment.

[59] Article 211 of the Code.

[60] Article 213 of the Code.

[61] Article 208 of the Code.  Alternatively, the procuratorate may request a higher-level procuratorate to lodge a protest against the judgment.  A procuratorial recommendation can be issued either upon party request or by the procuratorate ex officio.  The procedure for party request for procuratorial recommendation is almost identical to that for procuratorial protest, except (in theory) that there is no obligation for the court to re-open a judgment upon receiving a recommendation.

[62] A procuratorial recommendation is not limited to the adjudication supervision procedure.  For instance, a recommendation may cover matters relating to judicial conduct in first-instance proceedings: see Article 208(3) of the Code.

[63] Note amendment to Article 14 of the Code (2012 Amendment Version of the Code). 

[64] Article 208 of the Code.

[65] W.P. Zhang ed. Xin Minshi Susong Fa Zhuanti Jiangzuo [Lectures on Civil Procedure Law of the People’s Republic of China]. China Legal Publishing House, Beijing, 2012, p. 19.

[66] A.A.S. Zuckerman. Zuckerman on Civil Procedure: Principles of Practice. 2nd edition. Sweet & Maxwell Limited, London, 2006, p. 932 (para. 24.49).

[67] Ibid., p. 932.

[68] B.L. Liebman.  A Populist Threat to China’s Courts?, in Chinese Justice: Civil Dispute Resolution in Contemporary China. M.Y.K. Woo, M.E. Gallagher eds., Cambridge University Press, New York, 2011, pp. 269 – 313.

[69] See above, footnote 100, pp. 118 – 119.

[70] C. Minzner. Judicial Disciplinary Systems for Incorrectly Decided Cases: The Imperial Chinese Heritage Lives On, in Chinese Justice: Civil Dispute Resolution in Contemporary China. M.Y.K. Woo, M.E. Gallagher eds., Cambridge University Press, New York, 2011, pp. 58 – 90, at pp. 58 – 90.

[71] See above, footnote 96, p. 256.

[72] Fu noted that the role of the appellate court is to assess whether the factual findings at first instance were accurate, not to conduct a retrial of the facts.  See above, footnote 34, p. 43.

[73] [1954] 1 WLR 1489, 1491.

[74] See above, footnote 34, p. 43.  Even if a remittal cannot be avoided, the appellate judgment should clearly indicate the reasons for the remittal.

[75] Under the current Chinese appellate system, a second instance decision is said to be ‘final’: Article 175 of the Code and Article 12 of the Organic Law.

[76] For an overview of discretionary review appeal in the German context, see P.L. Murray, R. Sturner. German Civil Justice. Carolina Academic Press, Durham, NC, 2004, pp. 386-399.

[77] See above, footnote 31, p. 50.

[78] Abailable at: http://www.court.gov.cn/jgsz/rmfyjj/.

[79] See above, footnote 31, p. 50.

[80] Ibid., p. 50.

[81] Currently, the SPC hears second-instance appeals just like an intermediate or high court.  With the proposed reform, it would no longer be appropriate for the SPC to continue with this role.  Such a change would require a reconfiguration of the appellate system such that the high courts would become the highest-level court that handle second-instance appeals.

[82] See above, footnote 34, pp. 43 – 44.

[83] As Murray and Sturner noted, ‘The purpose of such [discretionary] review appeal is not primarily to obtain correct justice in the individual case.  More important to the court’s willingness to decide any given review appeal is the significance of the issue presented to the system of justice as a whole.  The decisions of the Federal Supreme Court of Justice serve to unify and rationalize Germany’s entire system of civil justice.’  See above, footnote 190, p. 386.  The purpose of Revision or cassation is clearly different from the core objective of the Chinese Judiciary to achieve substantive justice in the individual case.  This is one of the reasons why leaders of the judiciary are not particularly keen with the idea of adopting the three-tier system.

[84] Another possible hurdle in eliminating adjudication supervision is the inevitable objection from vested interests (e.g. from the powerful members of the adjudicative committees of all levels of courts in China).  

[85] While reluctant to pursue any structural changes to the appellate system, the SPC has made a modest attempt to enhance uniformity in the application of law through publishing ‘guiding cases’ (zhidao anli).  Courts of all levels should refer to these guiding cases when adjudicating similar cases: see Article 7 of the Provisions of the Supreme People’s Court on Case Guidance (Zuigao Renmin Fayuan Guanyu Anli Zhidao Gongzuo De Guiding), effective since 26 November 2010 (Judicial Interpretation (fafa) No. 51 [2010]).  For an overview of the system of guiding cases, see above, footnote 108, pp. 29 – 60.

Bibliography:

  1. A.A.S. Zuckerman. Zuckerman on Civil Procedure: Principles of Practice. 2nd edition. Sweet & Maxwell Limited. London, 2006. p. 932 (para. 24.49).
  2. B.L. Liebman. A Populist Threat to China’s Courts?, in Chinese Justice: Civil Dispute Resolution in Contemporary China. M.Y.K. Woo, M.E. Gallagher eds., Cambridge University Press. New York, 2011. pp. 269–313.
  3. C. Minzner. Judicial Disciplinary Systems for Incorrectly Decided Cases: The Imperial Chinese Heritage Lives On, in Chinese Justice: Civil Dispute Resolution in Contemporary China. M.Y.K. Woo, M.E. Gallagher eds., Cambridge University Press. New York, 2011. pp. 58–90, at pp. 58–90.
  4. P.J. Schmidt. A Review of China’s New Civil Evidence Law // Pacific Rim Law & Policy Journal. Vol. 12 (2). 2003. pp. 291–313. at pp. 309–311.
  5. P.L. Murray, R. Sturner. German Civil Justice. Carolina Academic Press, Durham. NC, 2004. pp. 386–399.
  6. W.J. Tang. Minsu Fa Xiugai Zhong Jiancha Jiandu Quan De Wanshan [Perfecting the Supervisory Powers of the Procuratorate in the Revision of the Civil Procedure Law // Procuratorial Daily. 2011.
  7. W.P. Zhang ed. Xin Minshi Susong Fa Zhuanti Jiangzuo [Lectures on Civil Procedure Law of the People’s Republic of China]. China Legal Publishing House. Beijing, 2012. p. 19, 21.