Thursday, June 7, 2007

Visiting the Courthouse in Xiamen

I had the opportunity, together with my American Constitutional Law students, to visit the courts in Xiamen, listen in on a case, and talk to some of the judges of the district afterwards. (Not all of my students were able to attend – some have a class in Marxist Philosophy right after my class (!) and the courthouse field trip took all morning). All of this happened courtesy of Touro Law School, which has a summer program in Xiamen. They have been very kind, and have included me and my law students in several of their activities. Today was a real highlight for me.
The courthouse is brand-new, having been completed only in November. It was a beautiful facility, with the courtroom we visited having flat-screen computer monitors at counsel tables and at the bench. Although it was a small room, the judge and the attorneys spoke through microphones. The judge’s bench had three chairs, though only one judge presided for the case we watched. We were later told that the case was tried under a simplified procedure that allowed for only one judge because the amount in controversy was so low – only 47,000 yuan (about $6200). The people in the photo above are the court reporter (seated) and the attorney for the defendant (yes, "courtroom attire" is more casual in China).

The proceeding was all in Chinese, naturally, but my students explained it all to me afterwards. It was a contract dispute having to do with the defendant’s alleged failure to pay for goods ordered from the plaintiff. The defendant claimed there was no contract, and that the goods were not actually delivered. The plaintiff produced documentary proof, including delivery receipts signed by an employee of the defendant. But the defendant claimed that the employee and the plaintiff had colluded, and that the goods were never delivered.
The procedure seemed very odd – there were no witnesses called, and it seemed the case was to be decided only on documentary evidence (with no sponsoring witnesses for the exhibits!). There was one familiar element – everyone stood when the judge walked in. And the judge was wearing a black robe – but there was a red placket with gold buttons down the front. The judge started the proceeding with some kind of explanatory statement, and then each side made opening arguments. The plaintiff’s attorney then handed a thick sheaf of stapled paper to the bailiff who then handed it to the judge. After the judge looked it over, the bailiff handed the packet to the defendant’s attorney. She then made objections to the evidence, flipping through each page and making sometimes lengthy comments. After she spoke, the plaintiff’s attorney responded, and then it kept going back and forth until I began to wonder whether it would ever end! (I asked my students if there was any limitation on the number of rebuttal opportunities and they said there wasn’t). Finally the arguments concluded, and the judge said he would announce his ruling at a later time.

The way the courtroom was set up was with counsel’s table facing each other rather than facing the judge, so it often seemed that the attorneys were talking to each other rather than to the judge – which would merit an immediate reprimand in an American court. So that seemed pretty peculiar to me.

It seemed the whole thing was a media event, too – not because of the case, but because American law students and professors were attending court. There was a reporter from the local television news with two cameramen filming the judge and the audience. And afterwards the reporter interviewed several of the American students as well as yours truly. So who knows, I may end up on the Xiamen news (but since I have no idea what channel is the local one, I doubt I’ll be able to see myself!).

After the courtroom visit, we got a tour of the courthouse. The lobby was pretty impressive – that’s where we took the picture of me and my students. I thought it was interesting to see the “scales of justice.” I had not thought of it as a universal symbol for the courts, so it was a surprise to see it in a Chinese courthouse. I don’t know if you can see the Chinese touch – there is a dragon engraved in the center balancing the scales. There was also a very traditional “Lady Justice” engraving at the entrance to the courthouse.

And is that the Roman Coliseum?! (Roman law = civil law? China as a civil law country? Marco Polo brought Chinese noodles to the Italians?!) My students couldn’t tell me who the 8 men are (they're not the 8 Immortals, maybe some law-givers?) – but isn’t it interesting that one seems to have a halo?! All in all a very Western façade for a Chinese courthouse, I thought

The lobby made up for the Western façade, though. The wall was covered in Chinese characters, and my students tell me they are all characters for “law.”
After the tour, we met with a group of judges. There were judges from the district courts and from the intermediate court. The intermediate court has both appellate and original jurisdiction, though we didn’t get a very good explanation of which cases get sent in the first instance to the intermediate court. (The man in the orange shirt is the chief judge for the district). (Do you notice anything odd about the picture? How about the fact that all the Americans have big cheesy grins while the Chinese are as sober as, well, judges? I find this a fairly typical cultural difference – the Chinese will smile only in the most casual of photos. Look again at the photo of me and my students . . . . )

The judges were kind enough to spend an hour answering questions from the students. (We were told beforehand not to ask them any questions about the recent demonstration about the chemical plant since it was considered an illegal demonstration and was a very sensitive subject).

The judges told us that the hardest part of their job is the caseload – there has been a big increase in lawsuits in China in recent years. They also explained the role of case law in the Chinese system, which is basically a civil law rather than a common law system. Even cases from the People’s Court (the Supreme Court in China) are considered only persuasive authority, not mandatory authority. Judges are responsible only for applying statutory law. They admitted, however, that sometimes it was difficult to know what law applied or how to apply that law because cases came up that did not seem to be squarely addressed by the statutes. They said then they relied on case law and legal theory.

I had heard that there was no requirement in China that judges be trained in the law. But these judges said that judges were required to pass both the national bar exam (which has only about a 10% pass rate) and the national civil service exam. (Speaking of exams, as we were riding in the bus to the courthouse, one of my students told me that today was the day for the national college entrance exam. She said that the exam used to be in July, and students therefore used to call the month “Black July!”)

I posed a hypothetical for the judges (what can I say? I’m a law professor – it’s what I do!): What if I were to file a case in your court saying that the law which requires women to retire at age 55 and men to retire at age 60 violated the Chinese Constitution, which guarantees equality between the sexes. How would you rule? They all laughed, and seemed truly amused by the question. And they answered as I knew they would – the case would be dismissed. The courts do not have jurisdiction to consider whether statutes are constitutional. I would have to go to Beijing to petition the legislature to change the law, that’s all. I thought this would be an important point for the American students to understand – our concept of judicial review, with a judiciary empowered to strike down legislation as unconstitutional, is not that common in the rest of the world.

I’m really glad I got to see a case in Chinese court – not a typical tourist activity, but a lawyer’s dream destination! And having the opportunity to interact with Chinese judges was hugely interesting.


Anonymous said...

The casual attire really takes some adjustment. Then again my legal secretary could not understand why I willing pull on hosiery each day, even when not going to court. In the picture of the facade, there are six pillar looking things above the lady justice. Any idea what those represent? Are they the tablets from the Code of Hammarabbi (and I probably massacred the name)?

What an interesting morning and such profound difference in concept from the US right to challenge constitutionality.


mimifrancoise said...

Very interesting morning for you. I bet the courthouse has no AC, hence the lack of coat and tie.