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Judges
Law of the People’s Republic of China ATTACHMENT TO: Convergence and the Judicial Role: by The Honourable
J J Spigelman AC Posted to Web Site: 16 July 2002 |
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Chapter 1:
General Provisions |
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Forward: |
And amended according to the
"Decision on the Revision of the “Judges Law of the People' s Republic
of China” adopted at the 22nd Session of the Standing Committee of the Ninth
National People's Congress, on June 30,2001 |
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Article 1. This Law is enacted in accordance with the Constitution to enhance the
quality of judges, to strengthen 'the administration of judges, and to ensure
that the People's Courts independently exercise judicial authority according
to law and that judges perform their functions and duties according to law,
and to safeguard judicial justice. Article 2. Judges
are the judicial personnel who exercise the judicial authority of the State
according to law, including presidents, vice presidents, members of judicial
committees, chief judges and associate chief judges of divisions, judges and
assistant judges of the Supreme People's Court, local People's Courts at
various levels and special People's Courts such as military courts. Article 3. Judges must faithfully implement the Constitution and laws, and serve
the people whole-heartedly Article 4. Judges, when performing their functions and duties according to law,
shall be protected by law. |
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Article 5. The
functions and duties of judges are as follows: (1) to take part in a trial as a
member of a collegial panel or to try a case alone according to law; and (2) to perform other functions
and duties as provided by law. Article 6. Presidents, vice presidents,
members of judicial committees, chief judges, associate chief judges of
divisions shall, in addition to the judicial functions and duties, perform
other functions and duties commensurate with their posts. |
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Article 7. Judges shall perform the following obligations: (1) to strictly observe the
Constitution and laws; (2) to take facts as the basis,
and laws as the criterion when trying cases, to handle cases impartially, and
not to bend law for personal gain; (3) to protect the litigation
rights of the participants in proceedings according to law; (4) to safeguard the State
interests and public interests, and to safeguard the lawful rights and
interests of natural persons, legal persons and other organizations; (5) to be honest and clean,
faithful in the discharge of duties, and to abide by discipline and
professional ethics; (6) to keep State secrets and
the secrets of judicial work; and (7) to accept legal supervision
and supervision by the masses. Article 8. Judges shall enjoy the
following rights: (1) to
have the power and working conditions which are essential to the performance
of functions and duties of judges; (2) to
brook no interference from administrative organs, public organizations or
individuals in trying cases according to law; (3) to be not removed or demoted
from the post or dismissed, and to be not given a sanction, without statutory
basis and without going through statutory procedures., (4) to be remunerated for work
and to enjoy insurance and welfare benefits; (5) to enjoy the safety of the
person, property and residence as ensured by law; (6) to receive training; (7) to lodge petitions or
complaints; and (8) to resign their posts. |
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Article 9. A judge must possess the following
qualifications: (1) to be of the nationality of
the People's Republic of China; (2) to have reached the age of
23; (3) to endorse the Constitution
of the People's Republic of China; (4) to have fine political and
professional quality and to be good in conduct; (5) to be in good health; and (6) to have worked for at least
two years in the case of graduates from law specialties of regular colleges
or universities or from non-law specialties of regular colleges or
universities but possessing the professional knowledge of law, or to have
worked for at least three years in the case of judges of the High Court and
the Supreme Court; those who have Master's Degree or Doctor's Degree of Law
or of non-law specialties but possessing the professional knowledge of law
shall have worked for at least one year, or to have worked for at least two
years in the case of judges of the High Court and the Supreme Court. The judicial personnel who do
not possess the qualifications as provided by sub‑paragraph (6) of the
preceding paragraph prior to the implementation of this Law shall receive
training. The specific measures shall be laid down by the Supreme People's
Court. Where there are really
difficulties in implementing the academic qualifications as provided by sub‑paragraph
(6) of the first paragraph, with the examination and approval of the Supreme
People's court, the academic qualifications of Judges may be extended to
graduates from law specialties of professional training college within certain
time limit. Article 10. The following persons shall not hold the post of a
judge: (1) to have been subjected to
criminal punishment for commission of a crime; or (2) to have been discharged from
public employment. |
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Article 11. A judge shall be appointed or
removed from the post in accordance with the limit of authority for, and
procedures of, appointment or removal as prescribed by the Constitution and
laws. The President of the Supreme
People's Court shall be elected or removed by the National People's Congress.
The vice‑presidents, members of the judicial committee, chief judges
and associate chief judges of divisions and judges shall be appointed or
removed by the Standing Committee of the National People's Congress upon the
recommendation of the President of the Supreme People's Court. The presidents of the local
People's Courts at various levels shall be elected or removed by the local
People's Congresses at various levels. The vice-presidents, members of the
judicial committees, chief judges and associate chief judges of divisions and
judges shall be appointed or removed by the standing committees of the
people's congresses at the corresponding levels upon the recommendation of
the presidents of those courts. The appointment or removal of
the presidents of the intermediate People's Courts set up in prefectures of
the provinces or autonomous regions or set up in the municipalities directly
under the Central Government shall be decided on by the standing committees
of the people's congresses of the provinces, autonomous regions or
municipalities directly under the Central Government on the basis of the
nominations made by the respective councils of chairmen. The vice- presidents, members of
the judicial committees, chief judges and associate chief judges of divisions
and judges shall be appointed or removed by the standing committees of the people's congresses of the provinces,
autonomous regions or municipalities directly under the Central Government
upon the recommendations of the presidents of the higher People's Courts. The presidents of the local
People's Courts at various levels set up in the national autonomous areas
shall be elected or removed by the people's congresses at various levels of
the national autonomous areas. The vice-presidents, members of the judicial
committees, chief judges and associate chief judges of divisions and judges
shall be appointed or removed by the standing committees of the people's
congresses at the corresponding levels upon the recommendations c'. the
presidents of those courts. The assistant judges of the
People's Courts shall be appointed or removed by the presidents of the courts
where they work. The measures for the appointment
or removal of the presidents, vice‑ presidents, members of the judicial
committees, chief judges and associate chief judges of divisions and judges
of the special People's Courts such as the military courts shall be
formulated by the Standing Committee of the National People's Congress
separately. Article 12. Persons to be appointed judges
for the first time shall be selected through strict appraisal, from among
those having got the certificates through the state uniform judicial
examination and the best qualified for the post, and in accordance with the
standards of having both ability and political integrity. Persons to be appointed
presidents, vice-presidents shall be selected from judges or from among those
who are best qualified for the post. Article 13. If a judge is found to be in
any of the following circumstances, a report shall be submitted according to
law concerning the removal of his or her post: (1) having forfeited the
nationality of the People's Republic of China; (2) having been transferred out
of this court; (3) having no need to maintain
his or her original post after a change of post; (4) being determined to be
incompetent in the post through appraisal; (5) being unable to perform the
functions and duties of a judge for a long period of time due to poor health; (6) having retired from the
post; (7) having resigned the post, or
having been dismissed; (8) being disqualified from
continuing to hold the post because of violation of discipline, law or
commission of a crime. Article 14. If the judge is appointed in violation of conditions provided by this
Law, the organ who makes this appointment shall rescind it as soon as
detected. If the higher court detects the lower court's appointment is in
violation of conditions provided by this Law, it shall propose the appointment
to be rescinded according to law by the lower court or by the Standing
Committee of the People's Congress at the corresponding level upon the
recommendation of the lower court. Article 15. No judges may concurrently be members of the standing committees of
the people's congresses, or hold posts in administrative organs,
procuratorial organs, enterprises or institutions, or serve as lawyers. |
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Article 16. Judges who are connected by husband-wife
relationship, or who are directly related by blood, collateral related within
three generations, or closely related by marriage may not, at the same time,
hold the following posts: (1) the president,
vice-presidents, members of the judicial committee, chief judges or associate
chief judges of divisions in the same People's Court; (2) the president,
vice-presidents, judges or assistant judges in the same People's Court; (3) the chief judge, associate
chief judges, judges or assistant judges in the same division; or (4) presidents or
vice=presidents of the People's Courts at the levels next to each other. Article 17. A judge may not act as a defender or an agent ad litem in the capacity
of a lawyer within 2 years after leaving his or her post from the court. A judge may not act as a
defender or an agent ad litem in the case handled by the court which he. or
she had, worked in before leaving his or her post. A judge's spouse and children may
not act as a defender or an agent ad litem in the case handled by the court
which the judge belongs to. |
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Article 18. Judges are divided into
twelve grades. The President of the Supreme
People's Court is the Chief Justice. Judges from the second grade to the
twelfth grade are composed of associate justices, senior Judges and Judges. Article 19. Grades of judges shall be
determined on the basis of their posts, their actual working ability and
political integrity, their professional competence, their achievements in
judicial work and their seniority. Article 20. The grades of judges shall be
established and the measures for their evaluation and promotion shall be
formulated separately by the State. |
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Article 21. Appraisal of judges shall be
conducted by the People's Courts the judges belong to. Article 22. The appraisal of judges shall
be carried out objectively and impartially, through the combined efforts of
the leaders and masses, and routinely and annually. Article 23. The appraisal of judges shall
include their achievements in judicial work, their ideological level and
moral characters, their competence in judicial work and their mastery of law
theories, their attitude in and style of work. However, emphasis shall be
laid on the achievements in judicial work. Article 24. The results of the annual
appraisal shall fall into three grades: excellent, competent and incompetent. The result of appraisal shall be
taken as the basis for award, punishment, training, removal or dismissal of a
judge, and for readjustment of his or her grade and salary. Article 25. A judge shall be informed of
the result of the appraisal in written form. If the judge disagrees with the
result, he or she may apply for reconsideration. |
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Article 26. Theoretical and professional
training for judges shall be carried out in a planned way. The principles of integrating
theory with practice, giving lectures in light of 'the needs, and emphasizing
practical results shall be applied in the training of judges. Article 27. The judges colleges and
universities of the State and other institutions for training judges shall,
in accordance with the relevant regulations, undertake the task of training
judges. Article 28 The results of the studies of
judges and the appraisals made during their training shall be taken as one of
the bases for their appointment and promotion. |
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Article 29. Judges who have made significant
achievements and contributions in judicial work, or performed other
outstanding deeds shall be rewarded. The principle of combining moral
encouragement with material reward shall be applied in rewarding judges. Article 30. Judges who have any of the
following achievements to their credit shall be rewarded: (1) having achieved notable
successes in enforcing laws and handling cases impartially; (2) having accumulated rich
experience in judicial practice that may serve as a guide in judicial work; (3) having made proposals for
the reform of judicial work that have been adopted and have produced
remarkable results; (4) having performed outstanding
deeds in safeguarding the interests of the State, the collective and the
people against heavy losses; (5) having performed outstanding
deeds by bravely fighting against illegal or criminal acts; (6) having made judicial
proposals that have been adopted, and have produced remarkable results, or
having scored outstanding successes in publicizing the importance of the
legal system and guiding the work of the people's mediation committees; (7) having scored outstanding
achievements in protecting State secrets and secrets of judicial work; or (8) having perform, ed other
meritorious deeds. Article 31. The awards include: Citation
for Meritorious Deeds, Merit Citation Class Ill, Merit Citation Class 11,
Merit Citation Class 1, and a title of honour. The awards shall be authorized
and procedures gone through in accordance with the relevant regulations. |
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Article 32. No judges may commit any of
the following acts: (1) to spread statements
damaging the prestige of the State; to join illegal organizations; to take
part in such activities as assembly, procession and demonstration against the
State; and to participate in strikes; (2) to embezzle money or accept
bribes; (3) to bend law for personal
gain; (4) to extort confessions by
torture; (5) to conceal or falsify
evidence; (6) to divulge State secrets or
secrets of judicial work; (7) to abuse functions and
powers; and to infringe upon the legitimate rights and interests of natural
persons, legal persons or other organizations; (8) to neglect his or her duty
so as to wrongly judge a case or to cause heavy losses to the party
concerned; (9) to delay the handling of a
case so as to affect the work adversely; (10) to take advantage of the
functions and powers to seek gain for himself or herself or other people; (11) to engage in profit‑making
activities; (12) to meet the party concerned
or his or her agent without authorization and attend dinners or accept
presents given by the party concerned or his or her agent; or (13) to commit other acts in
violation of law or discipline. Article 33. A judge who has
committed any of the acts listed in Article 30 of this Law shall be given
sanctions; if the case constitutes a crime, he or she shall be investigated
for criminal responsibility. Article 34. Sanctions include a
disciplinary warning, a demerit recorded, a grave demerit recorded, demotion,
dismissal from the post and discharge from public employment. The salary of a judge who has
been dismissed from the post shall at the same time be reduced and his or her
grade be demoted. Article 35. A sanction shall be authorized
and procedures gone through in accordance with the relevant regulations. |
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Article 36. The salary system and scales
for judges shall, in light of the characteristics of judicial work, be formulated
by the State. Article 37. The system under which the
salaries of judges are increased regularly shall be practiced. The salary of
a judge who has been confirmed through appraisal as being excellent or
competent may be raised in accordance with the regulations; the salary of a
judge who has made special contributions may be raised in advance in
accordance with regulations. Article 38. Judges shall enjoy judicial
allowances, regional allowances and other allowances and insurance and
welfare benefits as prescribed by the State. |
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Article 39. If a judge requests
resignation, he or she shall present an application in written form before he
or she shall be removed in accordance with the procedures as provided by law. Article 40. A judge shall be dismissed if
he or she is found to be in any of the following circumstances: (1) to be confirmed by annual
appraisal as being incompetent for two successive years; (2) to be unqualified for the
present post and decline to accept other assignments; (3) to refuse to accept
reasonable transfer, which is necessitated by restructuring of the judicial
organ or reduction of the size of the staff; (4) to have stayed away from
work without leave or to have overstayed his or her leave for fifteen days or
more in succession, or for thirty days or more in a year aggregated; or (5) to fail to perform a judge's
duty, and make no rectification after criticism. Article 41. A judge who is dismissed
shall be removed from the post in accordance with the procedures as provided
by law. |
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Article 42. The retirement system
regarding judges shall, in light of the characteristics of judicial work, be
formulated separately by the State. Article 43. After retirement judges shall
enjoy the insurance of old age pension and other benefits as prescribed by
the State. |
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Article 44. If a judge disagrees with the
sanction or other disciplinary action given to him or her by a People's
Court, he or she may, within thirty days from the date of receiving the
decision on the sanction or other disciplinary action, apply for
reconsideration to the organ which handled the case and shall have the right
to appeal to the organ at a level higher than the organ which handled the
case. The organ that receives the
appeal must make a decision on it in accordance with regulations. Execution of a decision on a
sanction or other disciplinary action given to a judge shall not be suspended
during the period of reconsideration or petition. Article 45. If a State organ or any of
its functionaries commits an act infringing upon the rights of a judge as
provided by Article 8 of this Law, the judge shall have the right to make a
complaint. If an administrative organ, a
public organization or an individual interferes in a case that a judge is
trying according to law, that organ, organization or individual shall be
investigated for responsibility according to law. Article 46. The petition or complaint
made by a judge shall be true to facts. If a judge makes up a story or lodges
a false accusation against an innocent person, he or she shall be
investigated for responsibility according to law. Article 47. Where a sanction or other
disciplinary action given to a judge is wrong, it shall be put right without
delay; if it has damaged the judge's reputation, the reputation shall be
rehabilitated, the ill effects shall be eliminated and an apology shall be
made; if it has caused financial losses to the judge, compensations shall be
made. The persons who are directly responsible for retaliation shall be
investigated for responsibility according to law. |
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Article 48. A People's Court shall
establish a commission for examination and assessment of judges. The functions and duties of a
commission for examination and assessment of judges are to guide the
training, examination, appraisal and assessment of judges. Specific measures
therefor shall be formulated separately. Article 49. The number of persons on a
commission for examination and assessment of judges shall be five to nine. The chairman of a commission for
examination and assessment of judges shall be assumed by the president of the
court it belongs to. |
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Article 50. The
Supreme Court shall, according to the requirement of judicial work, formulate
together with other departments measures on manning quotas of judges of
People's Courts at various levels. Article 51. The State organizes uniform
judicial examinations on persons to be judges and prosecutors for the first
time and for lawyer's qualification certificate. Measures for implementing
the judicial examination shall be formulated by the judicial administrative
department of the State Council together with the Supreme People's Court and
the Supreme People's Procuratorate. Article 52. The executors of the People's
Courts shall be administered with reference to the relevant proisions of this
Law. Measures for the administration
of the clerks of the People's Courts shall be formulated by the Supreme
People's Court. The, administrative judicial
personnel of the People's Courts shall be administered in accordance with the
relevant regulations of the State. Article 53. This Law shall come into
force as of July 1, 1995. |
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