《Understanding Chinese courts and legal process:law with Chinese characteristics》

PART ONE Legal Process in China1

CHAPTER 1 Introduction to the Chinese Legal Process3

1. Introduction to Judicial Process3

2. Legal Environment Within Which the Court Operates6

a. The Law of Criminal Procedure8

(1) The Ministry of Public Security's Role in Law Enforcement10

(2) Procuratorate's Role in Law Enforcement14

b. The Law of Civil Procedure15

c. The Law of Administrative Procedure19

d. Non-Litigation Dispute Resolution Procedures:Mediation and Arbitration22

e. Changing Roles of Lawyers and Judges24

PART TWOThe Court and Its Work29

CHAPTER 2Organization and Judicial Administration31

1. Sources and Limitations of Authority31

2. Court Structures and Judicial Administration35

a. Court Structures and General Responsibilities of the Supreme People's Court35

b. Court Organizational Structures38

c. Non-Adjudicative Operational Responsibilities41

d. Operational Responsibilities under Adjudicative Divisions42

3. Court Personnel44

CHAPTER 3Judicial Process: Operation of the Courts51

1. Jurisdictional Authority: Cases of First Instance51

a. Basic People's Courts52

b. Intermediate People's Courts52

c. Higher People's Courts53

d. Special Courts54

e. Supreme People's Court54

2. Court Review55

a. Right of Review by Appeals and Protests: Cases of Second Instance55

b. Discretionary Review by Supervisory Procedures: Adjudication Supervision57

(1) Petition or Application for Retrial59

(2) Court President's Discretion to Refer Case to Adjudication Committee60

(3) Procuratorate's Right to Protest61

c. Review of Death Sentences63

3. Functions of the Court64

a. Adjudication Function65

b. "Judicial Interpretation" Function67

4. Internal Decision-Making Operations of the Court70

a. Procedural Channels of Decision-Making70

(1) Cases of First Instance70

(2) Cases of Second Instance72

b. Adjudication Supervision74

(1) Procedure for Discretionary Review and Retrial of a "Final" Decision74

(2) Adjudication (Judicial) Committee75

c. "Decisions": Making Them and The Effect of"Binding Guidance"76

(1) Who Makes Them and How76

(2) Types of"Decisions"78

(3) Uses of Decisions: "Binding Guidance"81

5. Execution of Judgments83

6. Foreigners in Chinese Courts86

a. Litigation86

b. Arbitration88

7. International Judicial Assistance89

8. Chinese Courts and Hong Kong92

PART THREENew Laws "Professionalizing" Enforcers of Laws95

CHAPTER 4 Engines of Change: Procedural Means and Professional Manpower97

CHAPTER 5New Laws Professionalizing Personnel of Judicial Institutions101

1. Judge's Law (1995)101

2. Procurator's Law (1995)107

3. Police Law (1995)110

4. Lawyer's Law (1996)115

PART FOURChinese Courts: Now and Into the Year 2000119

CHAPTER 6 Moving Toward Goals: Directions and Developing Themes121

1. Priorities in Achieving National Goals123

2. Increased Transparency of Judicial Process125

3. Judicial "Independence in Accordance with the Law"127

4. Court's Increasing Importance: From Mediation to Litigation—The "Great Leap Forward"131

5. "Rule of Law with Chinese Characteristics"—What's in a Name?133

CHAPTER 7 Court's Relationship with Other Legal Institutions and Processes141

1. Inter-Action Among Judicial Institutions: "Checks and Balances?"141

2. The Supreme People's Court and Its Lower Courts143

3. Court Review: Non-Exclusive, But Ultimate Judicial Arbiter of Disputes from Non-Judicial Forums145

Conclusion: Final Observations: Try to Understand China146

Appendix149

1. Organic Law of People's Courts (as amended 1983)150

2. Administrative Procedure Law (1989)158

3. Civil Procedure Law ( 1991 )174

4. Constitution (as amended 1993)231

5. Arbitration Law (1994)265

6. State Compensation Law (1994)280

7. Judge's Law (1995)292

8. Police Law (1995)303

9. Procurator's Law (1995)313

10. Administrative Punishment Law(1996)323

11. Lawyer's Law (1996)335

12. Criminal Procedure Law (1979)343

13. Criminal Procedure Law Amendments(1996)373

Index399