Bird still caged? China s courts under reform. Workshop, June 3-4, 2016, Vienna, Austria. (University of Vienna, Department of East Asian Studies)

Transcription

1 Bird still caged? China s courts under reform Workshop, June 3-4, 2016, Vienna, Austria (University of Vienna, Department of East Asian Studies) At this workshop, expert participants will exchange information on and provide insight and analysis of the latest development of the judicial reform programs that were launched by the Chinese Communist Party (CCP) in 2014 as a critical part of its rule of law political program, which promised to comprehensively advance the law-based governance. The implementation of this program is expected to further institutionalize, if not perpetuate, the CCP s rule. The judicial reform, as a core sub-program is designed to improve the capacity of the Chinese justice system to solve disputes, to provide support for economic development and, most importantly, to improve the governance of the CCP. So far, a number of experimental reform programs have been carried out in selected courts. These programs, expected to be extended to all courts in 2016, will bring significant changes to the operation of the Chinese judiciary, including, inter alia, the appointment and accountability of judges, the appropriation of court budgets, the structure of court personnel and the relationship between different instances of courts and between courts, other state institutions and the CCP. The workshop hopes to capture these new developments and to provide a basis upon which more focused discussion on the operation of the Chinese judicial and legal systems within the broader context of Chinese contemporary politics and society can be built. The workshop will be held in both Chinese and English and conclude with an English language Round Table on the broader political and social implications of judicial reform in China. Workshop participants (confirmed): Björn AHL, University of Cologne Jerome A. COHEN, New York University (video) Matthew ERIE, Oxford University FU Yulin, Peking University Law School Christian GÖBEL, University of Vienna HOU Meng, Peking University Law School LI Ling, University of Vienna Agnes SCHICK-CHEN, University of Vienna

2 Workshop Schedule 6.1 Wednesday Arrival of international participants 6.2 Thursday Arrival of European participants 6. 3 Friday Department of East Asian Studies [Spitalgasse 2, Hof 2, 1090 Vienna], Meeting Room: 08:45 09:00 Introduction 09:00 10:00 Jerome Cohen - Perspectives on China s Court Reform: Past and Present Discussants: Fu Yulin, Ling Li 10:00 10:45 Fu Yulin - An overview of China s judicial reforms (Moderation: Li Ling) 10:45 11:00 Coffee Break 11:00 12:00 Björn Ahl - Chinese Judicial Reforms as Judicialization Discussant: Hou Meng, Fu Yulin 12:00 13:00 Hou Meng - The Supreme People s Court and Judicial Reform Discussant: Björn Ahl, Fu Yulin (Moderation: Christian Göbel) 13:00 14:30 Lunch

3 15:00 17:00 Law Faculty [Juridicum, Schottenbastei 10-16, 1010 Vienna], Seminarraum 34: Roundtable: China s Judicial Reforms and the Rule-of-Law as a Political Program under Xi Jinping (Moderation: Prof. Friedl Weiss, Dept. of European, International and Comparative Law, University of Vienna) Speakers: All participants 6.4 Saturday Dept. of East Asian Studies, Seminarraum SIN 2 09:00 10: 00 Fu Yulin Judicial reform and judicial accountability (Moderation: Li Ling) Discussants: Björn Ahl, Li Ling 10:00 10:15 Coffee Break 10:15 11:15 Li Ling Judicial Reform and judicial corruption Discussant: Christian Göbel, Matthew Erie 11:15 12:15 Matthew Erie: US and UK Foreign Anti-Corruption Acts and Chinese law Discussant: Ling Li, Fu Yulin (Moderation: Agnes Schick-Chen) 12:15 13:15 Lunch

4 13:15 14:15 Matthew Erie: China and Islam: The Prophet, the Party, and Law Discussants: Fu Yulin, Agnes Schick-Chen 14:15 15:00 Agnes Schick-Chen - Narratives of Judicial Reform Reforming Judicial Narratives: using the image(s) of the person to retell the story of the institution? 15:00 15:45 Jean Christopher Mittelstaedt: Towards a holistic understanding of Chinese law (Moderation: Christian Göbel) 15:45 16:00 Coffee Break 16:00 17:00 Concluding remarks Post-workshop matters (Moderation: Li Ling) 6.5 Sunday Departure of participants

5 Titles and Abstracts: Fu Yulin 18 大 以 来 中 国 司 法 改 革 论 评 Judicial reform and judicial accountability (See details in separate attachment) Hou Meng The Supreme People s Court and Judicial Reform 自 2013 年 以 来, 中 国 开 展 了 新 一 轮 司 法 改 革 最 高 法 院 在 其 中 扮 演 着 重 要 的, 但 非 决 定 性 的 角 色 一 方 面, 最 高 法 院 要 配 合 中 共 最 高 层 的 决 策 制 定, 为 深 改 组 提 供 决 策 草 案 另 一 方 面, 最 高 法 院 又 是 具 体 司 改 政 策 的 执 行 者 有 些 司 改 政 策, 最 高 法 院 借 助 于 中 央 能 够 得 以 强 力 推 行, 例 如, 设 立 巡 回 法 庭 ; 但 更 多 的 司 改 政 策, 却 需 要 地 方 党 政 部 门 的 大 力 支 持, 例 如, 司 法 员 额 制 度 法 院 人 财 物 省 级 统 管 因 此, 在 这 一 轮 司 法 改 革 中, 最 高 法 院 不 断 去 协 调 与 中 央 的 关 系, 与 地 方 的 关 系, 从 而 推 动 司 法 事 权 更 加 独 立, 强 化 最 高 法 院 对 整 个 司 法 体 制 的 控 制 力 Ahl, Björn "Chinese Judicial Reforms as Judicialization" Increasing reliance on courts and judicial means for addressing questions of public policy and important political controversies is a significant phenomenon of constitutional development in rule-of-law systems. Whether we can observe similar developments in authoritarian states remains contested. In contrast to other studies that have found courts to be weak and dependent institutions of the party state I argue that the transformation of Chinese courts and their immediate institutional contexts constitute a process of judicialization. I distinguish between judicialization processes on the central and local levels. On the national level, the study focuses on the Supreme People s Court, which has become a quasi-legislative body. Agnes Schick-Chen: Narratives of Judicial Reform Reforming Judicial Narratives: using the image(s) of the person to retell the story of the institution? Under the presupposition that legal policy in the PRC has been developing from a predominantly reactive to a tentatively responsive mode, citizens perceptions, social discourses and their political implications have to be considered basic parameters of China s legal reforms in the 21st century. With the courtroom being the experiential and imaginary space of the most immediate and dramatic encounter with the law for many in China (and elsewhere), the judiciary is one of the legal institutions having a major impact on how Chinese people feel, think and talk about law and the

6 legal system. To counter actual tendencies and popular perceptions of unsatisfying quality of court procedures that would not only diminish chances of diverting protest, but rather heighten the possibility of provoking it, 以 人 为 本 司 法 为 民 has been introduced as one of the leitmotivs of judicial reform in the PRC. In order to be adopted as part of their (self-)understanding by those who according to this directive should not only be the beneficiaries, but the roots or main reason of judicial reform, this politicolegal content needs to be converted into a social narrative that would then translate into individual narratives contributing to identity formation and behavioral orientation. Such processes of reframing of the politico-legal narrative and re-telling it as a story to be understood by larger parts of the Chinese population today are mainly taking place in the media. Due to a high degree of narrativity and figurative potential, film presents itself not only as a vehicle of communication, but as a platform of identification for the audience, providing narratives that enable the viewer to make sense of issues as abstract as those addressed by judicial reform in his or her own lifeworld. In this context, the presentation intends to show how the stories of improving grassroots justice and democratizing justice are told in two recent media events in the PRC, i.e. the television series 小 镇 大 法 官 [ 中 国 式 法 庭 ] (2013) and Xu Ang s feature film 十 二 公 民 (2015). It claims that in both cases, the narrative of 以 人 为 本 allows not only for the interpretation of the people being the main reason, but also of the person being the main constituent of reforming justice in its institutionalized form. Ling Li Judicial reforms and judicial corruption In my previous research, I have identified certain noticeable trends and patterns of corrupt conduct in China s courts. I have also analyzed corrupt behavior of different groups of judges and come to the conclusion that the proliferation and pervasiveness of corruption in China s courts is correlated to certain features of the adjudicative decision-making mechanism installed in these courts because of the immediate political functions that courts are designed to serve. At this workshop, I will make an initial assessment of the effects of the newly implemented judicial reform measures on curbing judicial corruption in light of my previous findings. (See details in separate attachment.) Matthew Erie Muslim Minorities and Shariʿa in China The PRC does not officially recognize religious law. Nonetheless, there are over 20 million Muslims in China who practice shariʿa or Islamic law and ethics, a source of normative behavior that secular states from the U.S. to France to Russia demonize as anti-modern. How do Muslims in China reconcile their informal religious law with a dominant state law, and what can their practice teach us about law, more generally, in China? This talk is based on my book China and

7 Islam: The Prophet, the Party, and Law (Cambridge University Press, 2016), the first study of Islamic law in contemporary China, and a rare ethnographic approach to the study of law in China. Based on nearly two years of fieldwork among Chinese Muslims (Hui) in northwest China from 2009 to 2015, this talk provides a view from the mosque to understand the work of clerics, female educators and Qur anic interpreters, Salafi reformists, and Muslim cadres who integrate the law of belief in to the law of the (post)socialist state. I argue that Hui and the Party-State mobilize shariʿa for their own definitions of the good, but do so through the domain of the minjian (Ch. popular; unofficial) often through anxious collaborations between Muslim authorities and Party-State officials as they solve disputes in reference to multiple legalities. Rule By Virtue: Anti-Corruption as Transnational Norm How do legal norms of foreign law enter Chinese law and society? And what are the points of nexus and convergence (as much as conflict ) between and among different legal systems? This talk is based on preliminary research that takes anti-corruption law as an entry into thinking about the interaction of foreign law and domestic law. Specifically, I ask how (if at all) the US Foreign Corrupt Practices Act (FCPA) interacts with PRC domestic legislation and Party rules to police the relationship between foreign businesses, Chinese counterparts, and Party-State representatives in the context of China s anti-corruption drive. This inter-disciplinary project draws from anthropology and law to investigate how foreign and Chinese lawyers who conduct internal compliance investigations and related training sessions for companies in China are nodes for normative adaption and cross-border techniques of transactional law. Law firms become ethnographic sites that generate questions for the study of law, politics, and culture. How does Anglo-American law define corruption in a different cultural context where gifting is the glue of relationships? How does anti-corruption legal practice promote both foreign businesses and governments interests and those of the PRC in ways that human rights promotion does not? Does anti-corruption law demonstrate a blurring of law across the domains of public and private, Anglo-American and Chinese, international and domestic? This talk will introduce these research questions and provide a framework for addressing them, but will also solicit feedback to further refine the research project. Jean Christopher Mittelstaedt: Towards a holistic understanding of Chinese law This talk is centred on the broad question of how the Chinese legal system and Chinese law should be understood. I argue that rather than focusing solely on legal institutions, the oppression lawyers face from the state, or government interference into cases, it is of even greater value to understand the Chinese legal system from within the confines of the aims of the CCP, particularly the CCP s political, ideological and organizational leadership that is outlined in the CCP s Constitution. The development of the Chinese legal system should not be understood isolated but in conjunction with the development of other instruments of governance such as ideological education, Party building, or economic reform. Thus, the Chinese legal system must be understood holistically as inseparable from the aim of achieving a moderately prosperous society and a spiritual civilization. Through the

8 promulgation of norms, this leadership encroaches on the whole of society through the Party s organizations at the grassroots and within other sectors of society. The proposed argument will hence be threefold: first, I highlight the importance of a holistic approach to understand law under the CCP s leadership. Second I propose that the Party Constitution s leadership principle is the key to understanding the role of law within this system. The leadership concept incorporates political, ideological and organizational aspects and its interpretation is rooted in a process of dynamic practice. Third, at the example of the promulgated Standards on Integrity and Self-Restraint ( 中 国 共 产 党 廉 洁 自 律 准 则 ) and Regulations on Disciplinary Punishments ( 中 国 共 产 党 纪 律 处 分 条 例 ), I will touch on the importance of intra- Party rules as a proxy to arrive at a comprehensive understanding of the leadership roles institutionalization and the role law plays.