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

　Not all civil cases need to be adjudicated under the principle of “four levels of court but two trials to conclude a case.” Some civil cases only take one trial for the conclusion, such as the cases only to be adjudicated by the SPC and the cases to be adjudicated by local courts according to the Spcial Procedure,the Procedure for Hastening Debt Recovery, and the Procedure of Public Summon.
　Because the principle of “two trials to conclude a case” lacks the third tier judicial review, some Chinese jurists had a concern that it may not be adequate to make sure all possible judicial remedies can be exhausted. To make up this shortcoming, the Chinese legislators added the Procedure of Adjudication Supervision in the CPL as Chapter 16. Under the Procedure of Adjudication Supervision, (1) when a court discovers any of the judgments or rulings made by its own judges or benches have mistakes, the court may decided to retry these cases; (2) when the SPC or a court at high level finds any of the judgments or rulings made by a lower court have mistakes, the court may bring these cases up for a new try or order the lower court to retry these cases; (3) if a party believes that a judgment or ruling has mistake, he may plead the court that adjudicated his case or the court at higher level to retry the case; and (4) the Supreme People’s Procuracy or a procuracy at higher level may request a court at lower level to retry some cases under certain circumstances.
　3. Procuracies’Supervision of Civil Adjudication
　The functions and powers of the people’s procuracies are rather unique compared to the prosecuting organs of the most of western countries.Under Article 17 of the Organic Law of the People’s Procuracy of 1979,the people’s procuracies not only investigate and prosecute criminal cases but also have the powers to supervise the adjudications conducted by the people’s court at all levels. This power can be traced back to Article 129 of the Constitution and is confirmed by the Criminal Procedure Law,the Civil Procedure Law,and the Administrative Litigation Procedure Law.Under Chapter 16 Procedure of Adjudication Supervision of the CPL, if the Supreme People’s Procuracy or a local procuracy discovers that any judgments or rulings were made under the circumstances of insufficient evidence, mistakes, violation of procedure, or corruption, the procuracy may file a protest against the court that rendered these judgments or rulings. The court that receives such a protest must re-adjudicate the case.Since no procuracy participates in civil litigations of either first or second instance, how does a procuracy knows that a judgment or ruling is made under the circumstances described above? Normally, the civil litigants who believe that the judgments might be unfair or the adjudications might have involved with corruption practice may file complaints to the people’s procuracies. If a procuracy believes that a complaint is reasonable, it may investigate the allegation. If the allegation is true, the procuracy may file a protest against the court that rendered the judgment and demand a retrial.
　Every year,the Chinese procuracies file thousands of protests against the judgments or rulings made by Chinese courts.In 2002, the Chinese procuracies filed 8,921 civil case protests (this figure does not include economic and intellectual property dispute cases) and among them, 4,069 cases received different judgments and 601 cases were dismissed after they had been re-adjudicated by courts.Some of these civil protested cases have been compiled by the Procurating Department of the Supreme People’s Procuracy and published by China Law Press since 1999.
　It may be understandable that the Chinese procuracies have this judicial supervision power to contest Chinese courts in criminal cases because the major function of the procuracies is to prosecute criminals. However, it is hard to understand the necessity to give the procuracies such a power in civil litigation. The Chinese legal academia believes giving such a power to the procuracies is unnecessary and allows the procuracies to encroach upon the principle of judicial independence.
　4. Proactive Role of Chinese Judges
　Although the judicial independence of Chinese Judges is confined by the adjudication committees, Chinese judges play more proactive role in Chinese civil proceedings. The CPL requires trial judges to ascertain facts.In addition, Article 116 of the CPL requires trail judges to review all the files for a civil case carefully and authorizes the judges to investigate and collect evidence as necessary before the trial commences. Event for appealed cases, the judges of appellate courts should also verify the facts of the appealed case by consulting the files, making necessary investigations, and questioning the parties.Under these provisions, the judges must not only make sure that all the evidence provided by civil disputing parties is truthful but also ascertain the facts that are not claimed by the litigants.In other words, even if parties provide evidence, the judges may also conduct their own investigation and collect any relevant evidence as long as they believe it is necessary. When Chinese judges investigate civil cases or collect evidence, all individuals and units have to assist them.
　Clearly, China adopted the inquisitorial model for its civil procedure.This model is influenced by the former Soviet Union’s judicial system in which judges not only control trials but also have the power to investigate civil cases, verify evidence provided by litigants and collect additional evidence.
　The Chinese judicial procedure does not have a jury system like the common law countries but has a check-and-balance system called the People’s Assessor System to make sure that the trials and judgments would be fair. However, the People’s Assessor System is very different from the American jury system. Under the People’s Assessor System, the people’s assessors are not selected randomly, instead, they are firstly picked and screened by the local people’s courts with the local justice departments and then the popele’s courts ask their local people’s congresses to confirm their selections.The term of a people’s assessor is five years with unlimited possibility of renewal.Even though the Chinese law proscribes that the people’s assessors have the same power as judges, the law only provides that the people’s assessors should not be less than 1/3 of the members of a collegial bench.Therefore,in most of cases,the judges are the majority members of a collegial bench. Because the decisions of a collegial bench are based on the views of its majority members, the judges’opinions would prevail if the judges outnumber the people’s assessors.