Chinese Judges Research Articles

Linking Organizational Justice and Psychological Conditions to Chinese Judges’ Turnover Intention

In recent years, more and more Chinese judges have resigned from courts, making the judicial profession less attractive. Many reasons shape judges’ turnover intention, with organizational justice being one of the potentially important yet overlooked contributing factors. Based on survey data collected from 458 judges in a northern Chinese province, this study tests a theoretical framework linking supervisor, peer, and litigant justice directly to judges’ intention to resign and indirectly through occupational stress and satisfaction. Structural equation modeling (SEM) results indicate that supervisor and litigant justice are directly related to lower turnover intention, but peer justice is connected to higher turnover intention among Chinese judges. The association between supervisor justice and judges’ turnover intention is also mediated by occupational stress and job satisfaction, while the relationships between peer and litigant justice and judges’ turnover intention are mainly mediated by job satisfaction. In addition, seasoned and female judges have lower turnover intention.

Judges’ reformulations in judicial interpretation in Chinese judgments

Abstract In hybrid legal contexts in China, judges’ speech acts of reformulating rules serve to demonstrate their ideological and linguistic preferences in law enforcement. A comparative analysis of judges’ reformulations in judgments in the traditional (imperial) and contemporary periods in this study discloses a disparity in their speech style over time. Though judges in the two periods both navigate between the ethical discourse and the legal discourse in the negotiation of meaning in law, traditional judges are found to have reformulated rules from various sources, particularly those of Confucian classics, acting as more of a constructive legal interpreter. In contrast, contemporary judges tend to reformulate rules of the codified law in a more monologic style, thereby displaying greater respect for the autonomy of law in their reformulations. These differences are interpreted from a socio-cultural standpoint.

Ideology and the contextualization of ancient Chinese judicial opinions

Legal genres are situation-sensitive and one same genre may take different structural and functional patterns according to the historical context within which it is situated. Judicial opinions of ancient China, for example, look like a totally different genre in contrast with the language of modern Chinese judicial documents. It is not uncommon that county magistrates’ (ancient Chinese judges) writing considerably downplays the task of reasoning and argumentation and becomes fully devoted to the provision of emotional narratives regarding defendants’ wrong-doings and to the meta-communication of imperial ideological values to grassroots. This paper looks into why ideology is a key concern of ancient Chinese judicial writing, what concrete ideological values are actually invoked and how they are interactively disseminated. The analytical framework combines the notion of contextualization (Gumperz, 1982), interactive framing (Tannen, 1993), and footing (Goffman, 1981). Through a nuanced interpretation of the relatedness of imperial ideological values and judicial language structures, the authors attempt to reveal how ancient judicial opinions are built as speech activities of performing identities and activities of presenting ideological stances and beliefs.

Do Judges in China Follow Wrongly Decided Precedents?—An Empirical Study

Abstract Do Chinese judges follow prior decisions fraught with judicial errors? If they do, why do they do so? The development of policies on the reform of China’s judicial system requires an answer to these questions. Unfortunately, empirical findings that may lead to an answer, especially those based on data collected from case reports, are lacking. To fill this gap, we undertook an analysis of 310 case reports on a complex issue to discover (i) the influence of two wrongly decided precedents announced by the Supreme People’s Court and (ii) the extent to which the rank of the deciding court affects the force of this influence. Our findings suggest that judges may rely on an officially designated precedent even if the latter is wrongly decided and the strength of the influence is negatively correlated with the seniority of the deciding court. Our findings are useful for isolating factors affecting judicial decision making in China, which are necessary for making decisions on the reform of judicial system in that country.

Fractional Fuzzy Neural System: Fractional Differential-Based Compensation Prediction for Reputation Infringement Cases

With the rise of social media and the internet, the rapid dissemination of information has increased the likelihood of reputation infringement. This study utilizes judicial big data and AI to analyze intrinsic connections in reputation infringement cases, aiding judges in delivering consistent rulings. The challenge lies in balancing freedom of speech with the right to reputation and addressing the ambiguity and subjectivity in infringement cases. This research constructs a structured reputation infringement case dataset from Chinese Judgments Online. It introduces a Fractional Fuzzy Neural System (FFNS) to tackle the vagueness in reputation infringement acts and judicial language, enhancing prediction accuracy for case outcomes. The FFNS, integrating fractional calculus, fuzzy logic, and neural networks, excels in adaptability and nonlinear modeling. It uses fractional order fuzzy membership functions to depict the extent and severity of reputation infringement accurately, combining these outputs with neural networks for predictive analysis. The result is a more precise adjudication tool, demonstrating significant potential for judicial application.

Climate Litigation in a ‘Developmental State’: The Case of China

Abstract Despite the absence of a framework climate law, China’s judiciary has expressed its determination to take climate change litigation seriously. This article argues that the Chinese approach to climate change litigation can be better understood within China’s climate governance paradigm. Primarily understanding climate change as a matter of development instead of a matter of environment or human rights, the Chinese government believes that mitigation and adaptation can only be achieved through a smarter development strategy. The state entrusts the power of making and implementing climate policy to the developmental and industrial departments of the executive branch, allowing them to use macroeconomic measures to transform the structure of energy and industry. If this paradigm persists, Chinese judges are unlikely to condemn carbon majors or require the adaptation of more ambitious climate goals. Instead, the judiciary will interpret statutory law or contracts in light of the state’s climate goals, with the hope of incentivizing industrial upgrades. Despite this approach’s apparent advantages of mainstreaming climate considerations, judges are facing the challenge of employing more sophisticated legal techniques and empirical expertise in respect of the energy system.

Connecting Supervisor Procedural Justice to Perceived Tensions With Litigants Among Chinese Judges

Recent literature on procedural justice has consistently shown positive organizational outcomes resulting from fair and just treatment by supervisors. This study expands the current literature by assessing the beneficial effect of being treated fairly and justly by supervisors in court settings. Based on survey data from Chinese judges, this study analyzes the direct linkage between supervisor procedural justice and judges’ perceived tensions with litigants and their indirect relationship through trust in litigants and external procedural justice. The results of structural equation modeling indicate that supervisor justice is positively related to trust in litigants and external procedural justice and negatively associated with tensions with litigants. The indirect connection between supervisor justice and tensions with litigants is mainly through external procedural justice. Female and seasoned judges are more willing than their male and less-experienced counterparts to treat litigants in a procedurally just manner.

Subordination Theory in Practice: An Empirical Analysis of Chinese Courts’ Approaches to Classifying Labour Relationships in Platform Cases

Abstract Determining the juridical nature of the work relationship is key to understanding the capacity of labour law to protect the rights and interests of gig workers. How to apply the traditional ‘subordination’ test and its constituent elements to platform work remains controversial in both theory and practice. In this article we examine the approaches of courts to this question using a sample of 71 Chinese judgments. We construct a binary probit model to conduct an empirical test of the degree of correlation between eight factors which serve to identify protected worker status, on the one hand, and courts’ rulings on the presence or absence of subordination, on the other. We find that, among the factors relevant to the subordination test, ‘control’ and ‘integration’ strongly predict a finding of worker status. We conclude that the subordination test is still being widely used to determine the status of gig workers in China, and that an approach to classification based on the ‘primacy of the facts’ of the case continues to be feasible in the context of platform work.

Punitive damages in consumer public interest litigation in China: an empirical study

With litigation socialisation development, an increasing number of civil litigation cases have taken on social functions. Against this background, a punitive damages system involving social interests has developed. Since the implementation of China’s consumer public interest litigation system in 2013, the number of cases involving punitive damages filed by procuratorates or consumer associations has steadily increased. These cases have mainly concerned the fields of food and medicinal product consumption. Regarding punishment and deterrence, Chinese judges generally hold a positive attitude towards a plaintiff’s request for punitive damages, which has no obvious correlation with plaintiff type, consumption type, or claim scale. In China, the calculation of punitive damages is related to the consumption field involved in the case. Most judges determine punitive damages in fields of food and medicinal product consumption as ten times the defendant’s total sales amount, and in the general consumption field, three times the defendant’s sales amount, but some judges choose to decide the specific amount at their discretion to avoid excessive punishment and ensure that damages are paid. Additionally, most judges believe that there is no relationship between punitive damages and administrative or criminal fines, or they only consider the defendant’s criminal or administrative punishment as a discretionary circumstance for determining punitive damages. Only a few judges believe that there is a correlation among the three, and advocate punitive damages and administrative or criminal fines to offset each other. Chinese judges have two main tendencies in judging the ownership and management of punitive damages; that is, punitive damages are handed over to the state treasury or allocated to special accounts. In view of judges’ understanding of the social attributes of punitive damages and the influence of the guidance of national documents in recent years, allocating punitive damages to special accounts for safekeeping and use, is becoming a growing trend.

Fiscal pressure and judicial decisions: Evidence from financial penalties for official corruption in China

The connection between court resources and judicial behavior has long been acknowledged. This article examines the linkages between local governments' fiscal pressures and Chinese judges' decisions on financial sanctions. Based on data from criminal verdicts of official corruption and county government expenditures, this study finds that Chinese judges are more likely to impose financial penalties, especially fines, when judicial expenditures in a region are low. The conclusion remains unchanged after accounting for the endogeneity problem using the age of the county party secretary and the per capita financial expenditure lagged for one period as instrumental variables. Finally, the imprisonment penalty without increasing revenue is used to test the placebo, and no effect of fiscal pressure on the imprisonment penalty is found.

Unpacking the legal status of platform workers in China: an empirical analysis of judicial attitudes and challenges in the food delivery sector

ABSTRACT The platform economy has generated new business models and employment types, posing new challenges to China’s labour law and social security law. This article collects 324 cases between 2017 and 2020 in which Chinese courts need to determine the employment status of food delivery riders as platform workers. This paper focuses on whether ‘special delivery riders’ under the agent model and ‘crowdsourced riders’ under the crowdsourcing model are identified as employees in these cases and analyse relevant factors considered by judges when they make decisions. More than half of the Chinese judges hold that special delivery riders are employees of agents, while crowdsourced riders are barely found as employees; most judges are reluctant to deem platforms as the liable employers. In general, the algorithm-based management, business organization, and relevant agreements etc. deployed by food delivery platforms may make them free from employer obligations and liabilities, and policymakers often have a tolerant and positive attitude towards the platform employment. Relevant latest policies show the government’s willingness to give platform workers more protection, and the SPC Stable Employment Opinions has specified the criteria for identifying employment relationship in the platform employment. Nevertheless, it takes time to see how they will be implemented.

Face-work in Chinese routine criminal trials

AbstractThis article examines the performative aspect of face-to-face interactions among various legal actors and defendants in routine criminal trials in China. Using 105 trial videos as empirical data, the author develops a face-work framework to understand how an individual judge's “face”—signifying judges' legal and political roles, and their professional status—is established, protected, and enhanced during courtroom interactions. The study shows that the legal face of judges can be established by some characterizations of the nature of criminal trials such as the demarcation of legal space, the speed of the trial, and the apprising of rights to the defendants. Nevertheless, the legal face can also be disrupted by trial interactions due to judges' lack of judicial authority. Hence, Chinese judges maintain their authority through the establishment of their political face. They also use both their political face and legal face to establish their situational professional status. These interactions often lead to punitive and coercive measures against defendants in trials. While the article focuses on routine criminal trials in China, the face-work framework has the potential to explain courtroom interactions in other types of social contexts and legal proceedings.

From hierarchical to panoptic control: The Chinese solution in monitoring judges

Abstract In the wake of the 2014 judicial reforms, are Chinese judges in most circumstances free in their decision-making? Based primarily on interviews with judges, this article argues that although a truncated hierarchy has led to increased judicial autonomy, the state maintains its tight grip over judges. In its new form, the state’s control is more indirect, external, ex post, diffused, and ideological. It allows the state to closely monitor judges’ entire handling of cases (hence the designation “panoptic”). It has some similarities with, yet fundamentally differs from, existing patterns in authoritarian states. While judges’ accountability continues to be largely a bureaucratic matter, this Chinese form of control has nonetheless been effective at a time of soaring caseloads, a slimmed-down judiciary, and increasing insistence on legitimacy. This article seeks to deepen understanding of developments in Chinese courts and, more widely, judicial politics in authoritarian states.

Quarantined judicial expansion: The environmental legal entrepreneurship of Chinese courts, procuratorates, and NGOs

AbstractAlthough judicial empowerment has become increasingly common worldwide, the expansion of judicial powers in authoritarian countries faces persistent obstacles, such as institutional dependence, lack of political clout, and the repression of civil society. Through empirically examining three cases of environmental legal entrepreneurship under China's new public interest litigation (PIL) system, this study aims to reevaluate the patterns and limits of judicial expansion under authoritarianism. It finds that Chinese judges, prosecutors, and NGOs have been able to leverage the PIL system and their respective institutional advantages to substantially expand judicial oversight on eco‐environmental protection. However, the state has established boundaries for such legal entrepreneurship in terms of subject matter, institutional autonomy, and geographic reach, effectively confining them within political spheres considered unthreatening to the regime. Such quarantined judicial expansion shields relevant actors from authoritarian governments' tendency to suppress legal mobilization and thus may be a more viable form of judicial expansion in nondemocratic settings.

Beyond law and politics: an empirical study of judicial mediation in China

Abstract Beyond law and politics, how will other factors influence individual judicial behaviour in China? How do the gains of efficiency and substantive justice compare with the potential losses of procedural protections? Do judges see their role as to resolve the disputes between the parties by the most appropriate means, or is it only an attempt to render and enforce an authoritative binding decision? Through a series of interviews with Chinese judges, the research provides an empirical narrative on how judicial mediation is actually practiced in China and analyses values and limitations of judicial mediation. The article empirically illustrates the multiplicity of influences on judicial behaviour in China, and the perception of the role of judges in China. Conceptually, the article aspires to contribute to the field of comparative judicial behaviour. It attempts to expand our inquiry beyond the focus on the role of politics and law when analysing judicial behaviour.

How do Chinese judges invoke the constitution? Analysis based on 1907 decisions

Abstract The abolition of the judicial interpretation issued by the Supreme People’s Court of the People’s Republic of China in Qi Yuling’s case marks the end of the trend of developing a judicial constitutional review system in China, but issues of courts invoking constitutional norms in judicial decisions continue to arise. This essay investigates the actual situation of the Constitution in judicial decisions by categorizing 1907 court decisions that invoked the Constitution as the reasoning basis and the court decisions which invoked the Constitution as the decision-making basis and by exploring the logic of the use of the Constitution by Chinese judges. In the absence of a constitutional review system, the primary sense of Chinese judges invoking constitutional norms is characterized by “simplistic reasoning”, “politicized enforcement” and the “parent law” concept. The insufficient judgment reason is a universal feature of judicial adjudication in Chinese courts. However, due to the lack of a constitutional review system, the poor perception of the interpretation and application of the constitution may exacerbate the lack of legal arguments invoked by the Constitution. The political model of Constitution enforcement in China makes judges invoke the Constitution in judicial decisions by “asserting the prestige of the Constitution”, which leads to numerous errors in legal argumentation in judicial decisions. This also reflects the tendency of “political enforcement” to take precedence over the legal enforcement of the Constitution. The influence of the old “parent law” concept is that judges can arbitrarily apply constitutional norms directly to civil cases, including fundamental rights norms. By summarizing and describing the above three features, we can depict the activities of current Chinese courts in invoking the Constitution.

The PICC in Chinese Courts

Abstract This article offers, for the first time, a comprehensive survey of all accessible (28) Chinese cases in which Chinese judges or lawyers invoked the Unidroit Principles of International Commercial Contracts (PICC) as applicable law or otherwise made a reference to the PICC. The survey has a particular focus on the use of the PICC to interpret or supplement domestic law, which is widely assumed to have no direct impact on the decisions of local courts. Through a detailed analysis that explores the often-times subtle connection between the PICC and judicial reasoning in Chinese courtrooms, the survey rebuts the ‘no direct impact’ thesis and demonstrates and expounds a range of significant roles the PICC may play in this respect. In doing so, this article also illustrates the case-guiding effect of previously little-known case comments—the dominant vehicle by which Chinese judges presently make the above use of the PICC.

Revisiting property transfer theory: English law and Chinese law compared

AbstractThe relationship between a conveyance's validity and its underlying contract has been a classic but unsettled topic for comparative private lawyers over the past three decades. This paper attempts to add positivist and normative observations drawn from property transfer theories and practices in English and Chinese law. A jurisdiction adopting an ‘intent plus’ model does not necessarily recognise a separate intent to convey distinct from the intent in the underlying contract, as exemplified by Chinese law, while a jurisdiction adopting the ‘intent alone’ model does not necessarily deny the separate intent to convey, as exemplified by English law. One advantage for a jurisdiction that takes the separatist approach is its flexibility, so that it can still choose between pure causality, pure abstraction, or context-based abstraction at a later stage. Recent developments show that English and Chinese law are moving towards this approach. As to whether flaws in the underlying contract infect the validity of the conveyance, the English position depends on vitiating factors, whereas the mainstream Chinese judgments tend to be pro-causal. Justifications favouring causality provided in the English and Chinese academia are different, though neither can stand up to scrutiny. The detecting opportunity argument submitted in this paper helps to justify abstraction.

The company they keep: When and why Chinese judges engage in collegiality

AbstractScholars of law, economics, and political science argue that collegiality matters. Considerable panel effects exist across jurisdictions, and judges compose panels strategically. In China, millions of cases are decided by collegial panels every year; however, little attention has been paid to the issue of collegiality. We offer one of the first empirical inquiries into collegial panels in China. Specifically, when and why do judges engage in collegiality? How does the presiding judge compose a judicial panel? What is the panel effect? Based on 23,564 cases decided by a local court in Beijing, China, from 2015 to 2017, we build a network of judges' collegial behaviors and examine the judges' strategy for panel composition and its potential impact. We argue for an external mechanism of panel effects and provide a strategic account of coalition‐building in a vulnerable environment. For mundane cases, Chinese judges tend to compose panels with junior judges. To some extent, such panels are their comfort zone. When facing complex cases, they tend to step out of their comfort zone and form panels with more capable judges. When doing so, they are also more inclined to make tough decisions, such as ruling against the government in administrative litigation cases and repeated players in civil cases, among others. The study sheds light on judicial politics in China and has the potential to expand our understanding of collective judicial decision‐making in transitional societies.

Native Chieftains and Chinese Judges. The Struggles for Power and Property in the Eighteenth-century South China Frontier

In the article the social, political and economic situation of the XVIII-century Southern Chinese frontier is viewed through the lenses of court felony trials. Two cases from different parts of this vast, culturally and ethnically diverse frontier zone are analyzed in detail. The article is a study of mutual relations of the local peoples and the Chinese administrations, it singles out some strategies of communication and self-presentation employed by locals in their dealings with the Qing officials. I also analyze problems of property and power within the native communities. These problems gave rise to typical conflicts in the frontier region, while the Chinese empire played its role both in provoking and in settling the conflicts.