Dec 03, 2016
Even after more than two decades of close scrutiny, Susan Finder remains fascinated by China’s judicial system. The legal scholar’s wish to unmask the inner workings of the country’s courts for foreign observers led her in 2013 to start the blog Supreme People’s Court Monitor, a steady source of insight for China watchers.
Finder currently teaches a course on Chinese judicial reform at Peking University Shenzhen Graduate School, where she is a distinguished scholar-in-residence for the School on Transnational Law. Shenzhen, a city in China’s southern Guangdong province, is “a good place to be,” she says. Owing to its location right across the border from Hong Kong, where Finder lives, the city’s courts often interact with other jurisdictions — for example, when handling cross-border cases — and as such, the city has become a testing ground for judicial reforms.
Finder spoke to Sixth Tone about live-streamed court cases, the Supreme People’s Court’s database of judgments, and how these transparency efforts influence judges, lawyers, and the Chinese public. The interview has been edited for brevity and clarity.
Sixth Tone: China’s legal system seems to be in a state of constant reform. How has the average Chinese citizen experienced these changes?
Susan Finder: The general level of professionalism of judges is way up from 20 years ago. There is a much higher percentage of judges who are legally trained, for example. There is also a big push within the judiciary to do more in-service training. Transparency reform also pushed some judges to be better.
It’s also easier to bring a case before a court. Last year, the policy toward case acceptance was changed. Courts are now required to accept cases if they meet superficial requirements, whereas before it was kind of a semi-approval procedure. Whether the ordinary person gets this, I would guess perhaps not. Unless there’s a need, the ordinary person would rather stay away from courts and officials in general.
Sixth Tone: Recent efforts to give the outside world a better view into what happens in Chinese courts have resulted in things like publicly available video recordings and judgment databases. How meaningful an impact have these efforts had?
Susan Finder: Since the end of 2013, there has been a big push for greater transparency. About 200,000 cases have been live-streamed, or have been made available in video libraries, but they generally don’t get an enormous number of viewers. The Kuaibo case is one of relatively few that have gotten a lot of attention from a mass audience.
For us legal specialists, it’s a fantastic tool. I can be sitting at my desk in Hong Kong, a village in France, or wherever and watch a Chinese trial. You can see how judges treat defendants or how judges interact with the lawyers — all these kinds of things. For the specialist, it’s fascinating.
Sixth Tone: How are cases selected to be videotaped?
Susan Finder: I’ve heard judges saying that sometimes senior management will say, “We need to stream a case — any volunteers?” The cases are considered to be better in some way. Regulations say that they are supposed to be typical in the sense of being a model. They can be used for instructive purposes for judges, lawyers, or the public.
From a survey I saw, lawyers welcomed it because it was a form of PR for them. Judges generally didn’t like it because they felt that it put more public pressure on them.
Sixth Tone: What impact has the Supreme People’s Court case database had on the legal process?
Susan Finder: I think it’s tremendously important, and I think it will generally have very positive long-term effects. It has different impacts on different kinds of people. There is pressure on the judges to write better judgements because the judgements are going to be online, so at least theoretically people can take a look at it and see if the judgement makes any sense.
It could be a way to push aside pressure from people or institutions who want to interfere in a court decision. If the judgement is going to be online and there is pressure to make a decision that doesn’t make sense in light of the facts, it indirectly means people may be less inclined to pressure the judiciary.
When lawyers litigate a case, they’ll look at similar cases and see how that case or the Supreme People’s Court has dealt with this issue. And then the general practice is to attach a copy of that judgement to the back of your brief. Lawyers from both sides will attach copies of judgements that support their position, with the idea of persuading the judge that their client is right and that the reasoning of whatever judgement they’re attaching should be followed.
Sixth Tone: What are the shortcomings of the database as it exists right now?
Susan Finder: A recent study by people at Peking University found that some provinces are better about uploading their judgements than others. A couple of courts upload about 90 percent — a very high percentage. Places like Tibet and Xinjiang uploaded around 10 or 20 percent.
It couldn’t be 100 percent because there are a number of exceptions. For example, cases that involve state secrets, juveniles, and some other categories won’t be uploaded.
Sixth Tone: Have the reforms impacted criminal and civil law in equal measure?
Susan Finder: Criminal justice reforms happen more slowly. There’s been a lot of thinking in the courts on how criminal justice should be reformed, and in October a multi-institutional document was finally issued about reform in the criminal justice system.
The transparency measures have an effect across the spectrum of cases. It’s just easier for reforms to be evident in civil and commercial areas, which account for most Chinese court cases. In people’s minds, criminal cases are the majority, but in reality they’re not: It’s civil and commercial cases. A lot of people fighting over inheritance, a lot of divorce cases involving fighting over children and property. A business culture that doesn’t take contracts seriously. Chinese people are as disputatious as anybody else.
(Header image: People watch a live broadcast of court case in Pengshui County, Chongqing, Nov. 20, 2012. Xu Xiaofan/VCG)