Court governance: some comparisons between Vietnam and China

1. Court governance: some comparisons between Vietnam and China Nick Booth Policy Advisor for Rule of Law and Access to Justice UNDP Viet Nam 23 November 2012

2. Source material: • Survey report on local court governance in Viet Nam (NH Quang and Associates, 2012) • Research Study on Court Administration in China (Randall Peerenboom, Professor of Law La Trobe University Melbourne, Associate Fellow Oxford University Centre for Socio-Legal Studies, 2011)

3. Independent decision-making • Both Viet Nam and China have Constitutional provisions requiring judges to decide cases independently according to law • Constitution of Viet Nam 1992 (as amended), Art. 130: During adjudication, the judges and the jurors are independent and only follow the law • Chinese Constitution (as amended 1999) Article 126: PRC courts shall, in accordance with law, exercise judicial power independently and are not subject to interference by administrative organs, public organizations or individuals

4. Consulting court leadership on cases: Viet Nam • Vietnamese judges frequently seek the opinion of court leaders on how to decide cases (district judges in between 30%-60% of cases and provincial judges in 15% - 40% of cases, depending on the type of case; when there is a disagreement within the hearing panel the figure is as high as 54% (district judges) and 40% (provincial) • Over 96% of judges confirmed existence of internal regulations, and about two-thirds confirmed that these included guidelines on when to consult court leadership on invididual cases; but none of these internal regulations are public

5. Consulting court leadership on cases: China • Until recently, the panel often had to obtain the approval of the court leadership before issuing the final judgment. The cumbersome approval process often led to long delays. • New rules in 1999-2000 gave more power to the trial judge. However, in practice, court leadership continued to intervene in cases, leading to a series of SPC regulations. • 2010 rules set out criteria for determining which cases should be referred to the court leaders for discussion as well as providing that the opinions of senior judges during the discussion shall be used as reference materials for the collegiate bench in making its decision on the case. • In any event, the approval of the adjudicative committee is still needed in major or difficult cases (death penalty, corruption, cases of significant economic impact, overturning a precedent or involving foreign investors or politically sensitive).

6. Consulting higher court for advice: Viet Nam • District courts seek the opinion of higher courts in 10%-30% of cases (depending on type of case), and in 14% of cases when there is disagreement between members of the trial panel • For provincial courts the figure is under 10%, except when there is disagreement between members of the trial panel when the figure rises to 18.4%

7. Consulting higher courts for advice:China • Lower courts frequently seek advice from higher courts in particular cases, in writing or by phone. Lower courts are not bound by the higher court‘s advice, but it is usually followed. The practice is reportedly decreasing. • The Second Five-year Agenda (2005) recommended that lower courts submit cases that involve generally applicable legal issues to the higher court directly for hearing, rather than seeking advice. • In 2011, the SPC issued Several Opinions on Regulating the Relationship between Higher and Lower Courts in Adjudicative Work, stipulating the types of first instance cases which may be referred to the court at the next level for trial, including important, difficult and complex cases; new types of cases, and cases involving legal questions of general significance. The higher court may also on its own initiative decide to try such a case itself. • The Opinions also provide for the means by which a higher court may provide guidance for lower courts, for example, by publishing guiding cases and issuing judicial interpretations or documents on adjudicative work. Significantly, the Opinions does not endorse giving instructions on how the lower court should decide a particular case.

8. Judicial tenure: Viet Nam • Only about 10% of judges support current 5-year appointments, about 20% support an extension to 10 year appointments, about 70% unlimited tenure

9. Judicial tenure: China • Judges are appointed for an unlimited term. They may be dismissed for lack of competence, poor health or for engaging in various misconduct such as embezzling money, extorting confessions by torture or falsifying evidence. Some of the grounds for dismissal involve political considerations, such as divulging state secrets, spreading statements that damage the prestige of the State, joining illegal organizations, participating in assemblies, processions, demonstrations or strikes against the State and the catch-all ”failing to perform a judge’s duty” • However, the Judges Law provides that judges may not be suspended, demoted, removed from office or sanctioned except as provided by law and in accordance with stipulated procedures including internal appeals People’s congresses at the same level are responsible for removing judges, while their standing committees may remove vice presidents and division chiefs. • Dismissal is rare, even for breaches of laws or rules. In 2002, only 0.02% of judges were found to have violated laws or rules.

10. Relationship with local government: Viet Nam • Although court budgets are centrally provided, 46.4% of provincial judges and 66.7% of district judges said that central budgets did not meet operational needs • 13 out of 18 courts interviewed stated that they needed to rely on additional funds from local People’s Congresses and People’s Committees, even though not in line with regulations • Over 70% of judges support court boundaries being drawn differently from local government boundaries, however there is ambivalence about the way to do this (similar levels of support for regional courts as well as maintaining one-court-per-district).

11. Relationship with local government:China • Judges cite interference from local government officials as the most common source of interference, most often in relation to local protectionism. Local government officials may put pressure on a court to decide a case in favor of the local party, deny an outsider’s application for enforcement, or just drag out the enforcement process, usually by requesting additional documents or leaving a case pending. • The main proposals for dealing with local protectionism are to change the way courts are funded and judges are appointed, or to create federal or regional courts. The SPC Second Five-Year Agenda (2005) opted for both approaches, calling for changes in the way cases that cross jurisdictions are to be handled, and recommending that the central and provincial level be responsible for funding the courts. The State Council centralized funding in 2008.

12. Reliance on court decisions and SPC precedent: Viet Nam • Over 90% of judges read decisions of other courts • Some 90% of judges read SPC cassation decisions • Over 90% support SPC interpretation role

13. Reliance on court decisions and SPC precedent: China • SPC issues interpretations of laws such as the Civil Procedure Law, Contract Law and so on, as well as interpretations on specific provisions. These interpretations are often longer than the original law itself, and will deal with many issues that have arisen in practice. • In addition, the SPC will issue interpretations on various legal issues that arise in the course of litigation in the form of replies (pifu) to lower level courts: that is, lower level courts will seek clarification on a particular provision or how the provision should be applied in the particular case, and the court will issue a formal reply. In addition, the SPC issues many documents that provide guidance for the courts in their work. • Courts have begun to look to the judgments of other courts for guidance, and may cite them in explaining their decision. There are countless books and articles about legal precedents in China and evolving judicial practice. There are also numerous reform projects aimed at introducing some form of legal precedents. The goal of such experiments is to ―increase uniformity in judicial decision-making, reduce the number of cases brought to court by increasing predictability, and enhance the quality of the judiciary.‖ • The Third Five-Year Agenda (2009) encourages courts to publish more judgments, suggesting that pilot programs to develop some form of a precedential system are likely to continue.

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