Procedure Law And Court Rules-法搜-中国法律信息搜索网

　After the Cultural Revolution ended in 1976, and particularly after Deng Xiaoping (1904–1997) was restored to power in 1978, the new Chinese leaders started an ambitious campaign to establish a modern legal system and bring the rule of law to China,albeit within the context of a socialist dictatorship.The three very basic laws that China needed but did not have at that time were criminal code,criminal procedure code,and civil procedure code. In 1979,the NPC enacted the criminal code and the criminal procedure code first. In September 1979,the Legal Affairs Working Commission of the NPC’s Standing Committee began to draft the first civil procedure code. On March 8, 1982, the NPC’s Standing Committee enacted the first civil procedure law of the PRC on an experimental basis or the Provisional Civil Procedure Law
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　After nine-year experimental application of this provisional civil procedure law,on April 9, 1991,the NPC enacted a new civil procedure law at its Fourth Session of the Seventh Congress.During these nine years, China had transformed its economic system from the planed economy to the market economy,the privately-owned businesses also grew tremendously,and the legislations related to civil laws such as the Marriage Law,the Succession Law, the General Principles of Civil Law,the Economic Contract Law, etc had been enacted. In 1986,the Legal Affairs Working Commission of the NPC’s Standing Committee began to revise the provisional civil procedure law according to these changes and these new legislations.The Provisional Civil Procedure Law of 1982 had 205 articles while the Civil Procedure Law (CPL) of 1991 has 270 articles. The CPL of 1991 has existed for twenty-five years and has not been amended.
　
　II. Distinctive Characteristics of Chinese Civil Procedure Law
　Although the CPL of 1991 looks as similar to a piece of legislation based on the continental European legal model, it has some of its distinctive characteristics because of the influences of the current Chinese social system, judicial establishment,culture value,and legal traditions.Such distinctive characteristics are summarized and discussed as follows.
　1. Trial Independent Resting in Courts not Judges or Benches
　Unlike Western countries and the United Nations, which consider the core principle of judicial independence as the independence of judges,the Chinese constitution only recognize the judicial independence of courts.In addition, according to Article 11 of the Organic Law of the People’s Court, every people’s court must establish an adjudicating committee that has the power to discuss and decide significant or difficult cases and other issues related to adjudication. Such a setting obviously undermines the judicial independence of trial judges and collegial benches. If a case is considered significant or difficult, it may have to be submitted to the adjudicating committee to discuss and decide the judgment. The problem is that the adjudicating committee decides the judgment behind closed doors instead of before the court. As a result, the adjudicating committee does not hear the testimonies of witnesses and the verification of evidence before the court. The rights of the plaintiffs and defendants to an open and fair trial could be denied.
　This Chinese concept of judicial independence of courts resulted in the current system of Chinese trial and judgment delivery discussed above and gives some leeway for other members of the courts to intervene in trial outcomes. Therefore, some Chinese jurists challenge the legality of the final review power resting on the adjudicating committees of local courts.Some even argue that China should treat the independence of trial judges as the center of judicial independence and abandon the establishment of adjudicating committees.However, some believe that the pros outweigh the cons resulting from the current establishment of the adjudicating committees in local courts because it serves to prevent corrupt judges from giving unfair judgments. Of course, one of the fundamental problems of judicial independence in China is due to the current political system, under which the courts’ budgets and judges’salaries are controlled by their local governments while the judges’promotions and removals are mainly controlled by the central government.
　The Five-year Reform Plan of the People’s Courts promulgated in October 1999 aims to establish a fair, clean,and efficient judicial system and deals with some of the problems stated above. One of its major reforms is to increase the responsibility of the collegiate benches and independent judges in adjudication. According to the plan, except for those very “significant and difficult” cases that should be submitted to the adjudicating committee for judgment, the collegiate benches and independent judges should determine all cases. The presidents of the people’s court cannot change their judgments. However, it is the adjudicating committee of the people’s courts that has the power to decide which cases are to be considered “significant and difficult.”For these cases, the adjudicating committee can still decide the judgments behind closed doors. Therefore, independent power of adjudication of judges and even collegiate benches remains limited.
　2. Two Trials to Conclude a Case
　In 1954 when the PRC enacted its first Organic Law of the People’s Court, it adopted the principle of “the four levels of courts and at most, two trials to conclude a case”, which means one trial at the first instance and one trial at the second instance (on appeal) to conclude a case. Therefore, most Chinese litigation is adjudicated in basic people’s courts (at county level) or intermediate people’s courts (at metropolitan city level), while higher people’s courts, and the Supreme People’s Court handle appeals. Intermediate people’s courts handle cases appealed from judgments entered by basic people’s courts. The CPL also follows this principle. Article 158 of the CPL proscribes:“The judgments and rulings of a people''s court of the second instance shall be final.” According to the Chinese scholars,the main reasons behind this principle are (1) to reduce the financial burdens of litigating parties, (2) to avoid the prolong of litigation, and (3) to prevent the higher courts and the Supreme People’s Courts from being overwhelmed with adjudicating appeals so that these courts can focus on directing and supervising the operations of lower courts.