Towards A Professionalized Judiciary: An Insight into the Ongoing Chinese Reform on Judicial Selection in Comparison with France

• Author: Mengyu Zhu
• Position: The George Washington University Law School
• Pages: 147-182

e Indonesian Journal of International & Comparative Law

ISSN: 2338-7602; E-ISSN: 2338-770X

http://www.ijil.org

© 2014 e Institute for Migrant Rights Press

towards a ProfEssionalizEd

JudiCiary

an insigHt into tHE ongoing CHinEsE rEform on JudiCial

sElECtion in ComParison witH franCE

Mengyu Zhu

e George Washington University Law School

E-mail: mzhu@law.gwu.edu

In late 2014, the Chinese government called on a thorough judicial reform, and

dedicated signicant eort in reorganizing the judicial selection process. e

approach of this reform may be comparable to the French pattern of judicial

selection, a highly professionalized, independent civil service mode. is article

examines several crucial aspects of the Chinese judicial selection reform in com-

parison with its French precedent, including the recruitment process of judges,

their pre-service professional training, their advancement in the career path and

their sanctions, and also observes certain weak points of the ongoing reform.

Keywords: Law Reform, Comparative Law, Communist Legal System, Developing

Countries, Eastern Law.

I. INTRODUCTION

At the Fourth Plenary Session of the 18th Central Committee of the

Communist Party of China (CPC) held in late October, 2014, the Gen-

eral Secretary of the Party, Mr. Xi Jinping, announced that “our target

is to advance the rule of law, form a legal system with Chinese charac-

teristics, and build our country under the socialist rule of law.”1 is is

1. Zhonggong Shiba Jie Si Zhong Quanhui Gongbao, (中共十八届四中全会公

报), [e Eighteen Session of the Fourth Plenary Session Bulletin], (Oct. 24,

2014, 17:45 PM), http://www.js.xinhuanet.com/2014-10/24/c_1112969836.

III Indonesian Journal of International & Comparative Law 147-82 (January 2016)

148

Mengyu

the rst time ever that the CPC dedicates an entire Plenary Session to

the issues of judicial reform. In its public report, the Committee pro-

poses a comprehensive reform over the entire judicial system in China,

including the legislation, enforcement, availability of legal services, and

the promotion of t he Constitution.2 In fact, the core leaders of CPC had

started its eort before this plenary session. In June 2014, the Reform

Leader Group of CPC Central Committee, presided by Mr. Xi, had al-

ready issued a guideline decision over the key issues in this judicial

reform (hereinaer the Guideline Decision). is guideline, taking the

form of an internal circular within the related branches of CPC, has not

yet been made published until today.3

On February 25, 2015, the Supreme People’s Court published the

Opinion on Comprehensive Reform of People’s Court (hereinaer Reform

Opinion).4 is 15 page outline of the planned reform is expected to be

accomplished by 2018, spotting 65 issues with roughly 1/4 concerning

directly or very closely to the reorganization of the judiciary.

Chinese scholars, within or outside the court system,5 have been

debating over the reform of judicial selection for more than 20 years.

Some have suggested introducing the US approach for selecting judges,

appointing prominent lawyers into the court system. Although the

htm.

2. Xinhua News Agency, Zhonggong Zhongyang Guanyu Quanmian Tuijin Yi-

fazhiguo Ruogan Zhongdawenti de Juding (中共中央关于全面推进依法治

国若干重大问题的决定), [CPC Central Committee’s De cision on the Major

Issues Concerning the Advancement of Rule of Law ](Oct. 28, 2014, 18:53

PM), http://news.xinhuanet.com/politics/2014-10/28/c_1113015330.htm.

3. e authority of this CPC-issued guideline merits further explanation. is

document is not legally binding and it does not involve any legal institution in

that sense. However, given the social-political context of contemplation China,

the CPC has dominant control over state organs including the courts, and the

guideline issued by CPC would naturally be binding politically. is binding

eect is expected not only by CPC authority, but also by every government

ocial and ordinary citizens.

4. Guanyu Quanmian Shenhua Renminfayuan Gaige de Yijian (关于全面深化

人民法院改革的意见), (Oct. 24, 2014), http://www.chinacourt.org/law/de-

tail/2015/02/id/148096.shtml.

5. In China, some scholars actually work at the courts (especially higher courts)

or the procuratorate, instead of universities and research institutions. ey

have the title of judge, or research judge, but they usually do not take part in

adjudication activities.

149

Toward A Professionalized Judiciary?

Mengyu

Guideline Decision has not completely abandoned this approach, it

appears to be aiming more at building a European style court system,

turning the judges into professional civil servants.

It should be noted that neither the CPC, nor the Chinese court

authorities had ever ocially stated that they were referring to any

particular foreign jurisdiction while announcing their reform. However,

the court-based researchers have conducted abundant comparative

studies, in which certain foreign jurisdictions have been repeatedly

cited: the United States and the United Kingdom as representatives of

common law system, and France and Germany as role models of the

continental law system.6

China has long qualied itself as a continental law country, and

France as one of the most recognized civil law jurisdiction. Apart

from the simple fact of both being continental law jurisdictions,

the two countries do share a lot of things in common in their court

systems. Judges in both systems are more like government employed

civil servants rather than prominent lawyers wearing black robe; their

selection both rely on examinations (or concours in French) rather than

appointments from other branches. A comparative study certainly

could provide a basis to examine the direction of the ongoing reform in

China in light of the French model.

It should also be emphasized that the proposed Chinese reform

is not a mere copy of the French judicial selection system. e many

aspects that the Chinese reform intentionally chose not to follow the in

continental model, may reect the fact that they are impossible to be

implemented, but may also reect the existing drawbacks of the French

system.

is study begins with a contextual exhibition of the current

judicial selection system in France and in pre-reform China. It then

examines several crucial aspects of the Chinese judicial selection

reform in comparison with its French precedent. e rst issue

raised would be the recruitment of judges, the organization of the

concours, the commission of recruitment, and alternative methods of

recruitment. e study would then move forward to the pre-service

6. In 2008, the researchers at Supreme People’s Court collectively published a

book entitled e Judicial Organization of United States, United Kingdom, Ger-

many and France, which indicates their focus in foreign judicial system study.