Article 126 of the Constitution states: ‘The people’s courts shall, in accordance
with the law, exercise judicial power independently and are not subject to
interference by administrative organs, public organizations or individuals.’^45
But external interference from the legislature and the Party is unavoidable. As the
sovereign organ of the state, the NPC is entitled to ‘supervise’ the courts.^46 There are
rounds of debate concerning the legitimacy and feasibility of the legislature ‘super-
vising individual cases’; however, the legislature itself has not yet stepped into the
judicial field. It is obvious that the members sitting in the legislature lack sufficient
professional expertise, but the legislature never gives that possibility up in a context
where no ‘separation of powers’ exists. Further, the Chinese judiciary remains under
control of the Party, as the Party has a Political and Legal Affairs Committee to
supervise intelligence, the police, prosecutors and judicial courts.^47
However, the most serious problem remains ‘local protectionism’. More than
fifteen years ago, Stanley B. Lubman pointed out that ‘“local protectionism”
remains an ominous reason for non-enforcement of judgments’.
48
The reason
behind this argument is:
The same political and economic forces that influence the outcome of
judgments can also create formidable obstacles to enforcing a judg-
ment against a local individual or enterprise. Economic reform has
increased the dependence of local government on revenue from local
enterprises and has consequently increased their inclination to defend
such enterprises against economic damage.^49
Targeting that, a new round of judicial reform is under way. In order to prevent local
protectionism, the courts are gradually being financed by the central government.
Guiding cases
Another ‘great leap’ of the Chinese judiciary is the implementation of a ‘guiding cases
system’ in 2010 , which could be a Chinese version of the common-law system’s
doctrine of precedent. The Supreme People’s Court issued the Provisions of the
Supreme People’s Court Concerning Work on Guiding Cases on 26 November 2010 ,
declaring that ‘People’s courts at all levels should refer to the Guiding Cases released
by the Supreme People’s Court when adjudicating similar cases’.^50 However, the
Chinese guiding cases remain different from a common-law precedent in two
respects. First, there have been only a few guiding cases released by the Supreme
People’s Court since the provisions were introduced. The first round of four guiding
(^45) The 1982 Constitution, Art. 126. (^46) Ibid., Art. 67.
(^47) Stanley Lubman (ed.),China’s Legal Reforms(Oxford: Oxford University Press, 1996 ), p. 16.
Also Benjamin Liebman, ‘China’s courts: restricted reform’, in Clarke,China’s Legal System,
p. 66.
(^48) Lubman,Bird in a Cage,p. 268. (^49) Ibid., p. 268.
(^50) Provisions of the Supreme People’s Court Concerning Work on Guiding Cases, Art. 7.