Media Center



September 25, 2007 - Washington, DC

Good morning, distinguished representatives and ambassadors, Permanent Observers of the Organization of American States, and all of the rest of the delegates. Ladies and gentlemen, I feel truly honored and happy to be sharing some of my experiences and observations about judicial reform in China. My following presentation will not only cover or focus on the judicial systems latest developments but also on its potential challenges. Today I’d rather not speak as the Vice President of the Supreme Court, but as a professor of law, so that I can be more objective and open-minded. After my presentation, the floor with be open for questions, and my colleagues and I will be more than happy to answer your questions if time allows.

Let me start with the first question of how the Chinese perform and promote judicial reform. There are several different backgrounds. The first one is from an international background: China has already signed and ratified different kinds of treaties as part of the efforts to join the international community. For instance, we have signed human rights, environmental, and intellectual property rights treaties as well as anti-terrorist treaties. Secondly, we gained full membership from the WTO in 2001. Two very important principles like transparency and consistency of application of law are basic requirements of the WTO which push forward the Chinese judiciary to do some reform. On the international front we signed several of bilateral agreements on extradition and judicial cooperation in civil and criminal matters with OAS Member States such as Argentina, Brazil and Peru and with other states like Portugal.

Domestic improvements also advanced the reforms. Supposedly we have a very good record for economic reform. For almost thirty years, China has had a continuous annual growth rate of 9.67% each year. That is one of the longest periods of growth in history. Right now, especially for the leading political group, they have been paying a lot of attention to the basic needs of the people and social welfare matters. We are learning new concepts about sustainable development. Increasing protection of basic human rights will result in a more harmonious society. The fast growing economy leaves the public district needing further protection of their legal rights, thus resulting in more disputes turning into lawsuits. In China we call it a “litigation explosion.” There were only 502,000 cases filed in 1979. In 1989 there were four times as many cases filed. By 1999 there were twelve times as many cases filed as in 1979. There were eight million cases filed between 2000 and 2005. Incredibly, seven million court cases were filed last year alone. How about the first 6 months of this year? There have been five million cases filed already. We expect to handle 10 million cases in China. That is truly a litigation explosion. The market economy requires the rule of law to govern the growing economy and adjudicate the social conflicts. This is the reason why the judicial system is expected to take more responsibilities.

More judiciary reforms came from the legislature. The legislature made material amendments to constitutional law and I would like to mention some of them. The first law was passed in 1993, and it was the turning point from a planned economy to a market economy. The rule of law became a part of our Constitution as one of the amendments in 1999. Then, another very important amendment restored the protection of private property. What was the result of that legislation? More than five million private enterprises were established by the end of 2006. What happened to foreign investment? There were 564,000 invested enterprises by the end of 2006.

Then another very new conception: human rights. For China, human rights are a really new concept. I remember a story, twenty years ago, while I was doing my doctorate dissertation research at Yale Law School, my professor suggested that I write something about human rights. I said, “That is an Indian notion – I don’t know human rights at all.” A similar expression does not exist within Chinese legislative history. The closest thing we have is good governance. But 20 years later, things are very different.

Another additional important legislation was the administrative litigation procedure law. This marked the beginning of a judicial review in China.

Additionally the legislature passed the judges’ law, marking the beginning of professionalism in the judiciary in China. Thirdly they passed the supervision law, which is the beginning of a concrete and legitimate relationship between the judiciary and the legislature. And then the legislature passed property law, where we are expecting more cases from property rights disputes. It is going to be in effect next month. And finally, labor contracts law. That was the beginning of labor suits and conflicts, and will result in even more lawsuits in court.

Now I will speak more about the judiciary in particular. We call the Chinese judiciary a “young one”, but why? Before 1979, China had hardly anything resembling a modern judiciary. Just as our Chief Justice Xiao Yang said when he studied law in the Renmin University of China Department of Law in the 1960s, there were only three laws in China. The first one was the Constitution, the second one was the marriage law, and the third law one is regulation and punishment of counterrevolutionaries. So in court we only have two types of cases, divorce and all the crimes under the names of counterrevolutionaries. So that is all we could do as a judiciary. So it is very young, and really we begin our process in 1979.

Now I’ll talk about the judicial profession. Before 1979, the judiciary was neither recognized nor respected. The government appointed all of the judges. The judges did not come from law school because the legal education had been suspended for 20 years. My legal professors did not attend law school; most of them came from English learning institutions. So where do we choose our judges from now? No judge should come from a background without a legal education. Previously, the judiciary operated like an administration, not a judiciary. Lower courts used to report to the higher courts for a final decision, so there was no purpose for the appellate hearing. Additionally, the judges had no confidence in the court system because some of the local courts and district court judges were not qualified. What’s more, we could not tell if the judges were qualified as there was no entrance examination. The judgments did not include any legal analysis. They were only sentences without reasoning. On top of that, final judgments were not made public; the judgments were kept secret in court documents and were only known by the parties. Judicial credibility was also in doubt, because we have very harmful standards for the credibility on two points. The first one is that the final judgments were easily challenged or overruled during the retrial. In China, a retrial used to mean that the defendant’s rights had to be proved. The retrial occurred after the final decision had been made and frequently overturned the original decision. No one could expect the original decision to be finalized. Enforcement was also a problem as civil judgments were rarely enforced.

I would like to briefly summarize my introduction to the judiciary history of China. First I would like to say that judicial reform has been a natural outcome of political reform following thirty years of successful economic reform in China. Secondly, I should say that judicial reform is an inevitable and unstoppable trend in China, since the general people, the central leadership, and especially the current judiciary demand and require it. There is another famous expression, “Democracy, rule of law, freedom, human rights, equality and fraternity are values shared universally.” Who originally said this phrase? You might assume it is probably a Western political leader, but no, it is none other than the Premier of China. When he said it, he was speaking to a group of foreign journalists. The Chinese leadership has changed their traditional ways over the last 20 years.
Human rights is recognized and provided in our constitution.

But I have another observation: different nations might have different approaches to realize and cherish these values; however, they are most closely related to judicial functions. The Chinese judiciary should not be the exception. How should we complete these human rights reforms? In China we have the design. Desirable achievements of judiciary reform would largely depend on a strategy that appeases and adjusts to the current practices in Chinese society. You cannot go faster than or beyond reality or you will not reach your goal. Of course the Chinese can continue to learn something from other judiciaries and also from other jurisdictions. From other countries we have learned about the leading case, juries, cross examination and dissenting opinions from the bench. Even though China is a Civil Law country, we continue to learn from other judicial systems including countries that practice Common Law.

I have arrived at the main point of my presentation: the process and achievement of judicial reform in China. I will divide them into two phases. The first is the five-year plan for judicial reform, which takes place from 1999-2003 for which we set several goals and demands. The first goal was to have a fully established notion of three procedures: the civil, criminal, and administrative litigation procedures.

Secondly we wanted to increase the independence of the judges on the collegiate bench. What is the independence of judges? The collegiate bench is a bench with 3 judges – one sitting in the center as the presiding judge and two assistants sitting beside him. Almost all but 8 percent of all cases are decided by this manner in China. If these three judges can reach the judgments by a majority of 2 to 1, they can pass the judgment. If three judges have separate opinions, they will present their findings to another committee called the “Adjudication Commission”. The five-year plan also reviewed judicial credibility and how to improve professionalism in the judiciary. Finally the five-year plan included renovations of court facilities all around the country.

Concrete measures were taken. First, the Supreme Court ruled that the lower courts and the Supreme Court could implement the changes. On a side note, only the Supreme Court can do the interpretation in China, because in a Civil Law country most of the laws are abstract. When the judges are taking the phrase from the law, the facts from different cases are never the same. So, they need the interpretation of law by the Supreme Court so that the lawyers and the judges can have a final decision and apply them to the facts easily.

Secondly, because of the litigation explosion we cannot use the traditional system of a panel of judges so we have to use a single judge trial procedure more often. Next, we established cross-examination so that the parties would be able to question one another directly in court. Additionally we created more enforcement officers at all levels of the courts, more than enough to enforce the most important of the civil judgments. To increase the professionalism of the courts we hired more judges with full law school education.

For all of the current judges they have had enough practical experience so they did not have to retire and go back to school. Lastly, the courthouse reconstruction is very fantastic. I will show you one of the pictures of this building. This is a local court from Shandong Province. And if you have time, you are welcome to visit my court, the Supreme Court of China. The invitation is permanently extended to your General Director, if you can organize a group to visit our court and our Ministry of Justice the next time you visit China.

That is all I will say about the first fiver –year plan so that I may address the second five-year plan more completely, which covers the years 2004-2008. You will see that we set very different goals. The first goal is to ensure judicial fairness, neutrality. Next we will increase the credibility of the courts decisions through increased enforcement and retrial. Additionally we will ensure the consistent application of law as required by WTO rules and principles. Fourthly, we will encourage increased judicial transparency. Then, we will promote judicial professionalism by attracting the best legal professionals to courts, like me as a professor of law. Lastly we will try to increase the judicial efficiency to handle the litigation explosion.

What measure have we taken so far in the current five-year plan? Recently we have improved judicial neutrality. How did we do that? First we legitimated the judicial relationship with the local congress. I mentioned before that the relationship between the judiciary and the legislative branch is more powerful in China because we do not have checks and balances with the executive and judicial branches. All the presidents and mayors and governors are elected by the Congress at the same level. That is why they simply have every power, even the power to look into the individual cases of the court.

When I was the Vice President of the High Court or in the Middle Court, sometimes I was asked, “Do you think this judgment is right? You cannot say that this is intervention or interference because they said they have the power. Even they have the regulation published per mandate in the local congress. Then five years later they found themselves in trouble. People regarded the legislature as the appellate body for all the courts. All the cases presented to the Parliament get sent to the Congress for adjudication.

Congress may overturn the ruling and then the court will have to retry it again. The National People’s Congress says this condition cannot go on because there will be lots of problems, because if the Lower Court changes their judgments according to the opinions of the Local Congress and the Higher Court overrules their decision, then who was responsible for making the decision? Who should be responsible for that decision? Then the legislature passed a law last year, which made supervision from the local courts illegal. Finally the Local Congress could not intervene in the individual cases at any level of the courts.

Another positive reform in the second five-year phase was increasing the balance between the prosecution and the defense. In my opinion there is no other system in the world with a balance like ours. Prosecutors are part of the judiciary in China, so the lawyers on the defense side will say that the prosecutors enjoy more privileges than them. With the new law introducing cross-examination, we restored the balance in the courts. Now the judges keep asking questions and the prosecutors and lawyers can cross-fire. That is the balance we are trying to reach.

Next I will discuss improved human rights protection. We have a larger scope of understanding of human rights in our procedures since we first began the modern judiciary. First of all, we have the presumption of innocence. This is a very important principle recognized and applied in court hearings. Then there are procedural rights that guarantee the fair trial influenced by procedure law.

Procedure law is implemented and interpreted by the Supreme Court. We also have a law against confession without some corroborating evidence because confession may result from the cruel treatment of prisoners. The law against confession has all but eliminated this problem in our jails. Because of this we have around four thousand people declared innocent every year. The numbers are going down because the prosecutors have done a much better job of giving evidentiary support. I believe that the notion of human rights is not only for the accused but also for the plaintiffs, including those plaintiffs in civil litigation.

Partially to bring awareness to this cause, I was fortunate enough to found the first NGO for Legal Aid in 1992 right after I graduated from Yale Law School. It is called the Center for the Protection of Rights of Disadvantaged Citizens at the Wuhan University. Our organization has had a big impact on criminal litigation.

And then our NGO turned towards civil litigation. We transformed the idea of legal aid to judicial aid, which means the court waives or detracts something from court and litigation fees. This benefited poor litigants or poor plaintiffs who could not hand in some fees for the registration of cases, and then it could be waived. Last year all the courts waived a total of 1.2 billion Chinese Yuan so that the plaintiffs could file their cases with the courts.

Furthermore, we find some problems with the victims in criminal cases. They also should receive human rights protection. If someone is killed and their son and wife are left behind without any other pension and the accused has no ability to pay for the civil damages, then they are left poor. So the local courts try to raise funds from the government. There is a foundation trying to give money to raise those children or to pay for the damages instead. So we have a large notion that in all the criminal and civil processes, the accused but also the victims as well as the plaintiffs should enjoy full human rights protection.

I would like to say something about the improvements in judicial review. Judicial review is also very young in China; it has only been around for 15 years. One of the main reasons to change the jurisdiction has been because the defendants are officials in the same place where the court presides. If this happens we have another choice, cross jurisdiction. What is that? If the official in this county is the defendant, then we change the jurisdiction to another county. The court in city A will only take the case if the defendant from city B is different from the court. That is what we call “cross jurisdiction”. Sometimes we simply designate the higher court to hear the case.

Furthermore, we recall chief officials to appear in court, especially when they have committed publicly bad acts. We tried to make them learn something from their mistakes. We also emphasized the importance of those judgments.

Then we come to the second point about the consistent application of law, which is very hard for China because we have more than 3000 local courts, more than 300 appellate courts we call “intermediary courts,” and each province has its own High Court. Altogether we have more than 3,500 courts in China. How can consistently apply the law? The first step we are taking is to give the final say on death penalty cases to the Supreme Court. I would like to include some interesting information about the death penalty. We need to have more prudent judgments to try to cut down the number of death penalty cases, which will result in fewer capital punishments. The death penalty according to international convention must only be for the most serious crimes. China has implemented a very good rule for the death penalty called the two year suspension. It is the same notion as direct capital punishment, but it is delayed two years. If the accused remains on good behavior throughout those two years, the sentence will change to a life sentence or twenty years in prison. There has not yet been a case since where the prisoner was immediately executed after the two years since the law was implemented. We then required that all death penalty cases must be subject to appellate hearing in a higher court before being submitted to the Supreme Court for final review.

Next I will talk about central jurisdiction in international cases. First of all, in cases related to international trade and investment, we have only one court in each province that can hear these cases. In reviewing international arbitration, there are preliminary decisions. If the local court tried to refuse to recognize international arbitration, they must report to the higher court.

Additionally, if the higher court agrees with the lower court, then they must report to the Supreme Court for the final decision. The lower court has the power to make a decision on international arbitration but if there is an appeal it can be sent to the higher courts.

We have another interesting judicial reform in maritime jurisdiction; very experimental territory for the courts.

The changing maritime jurisdiction will be a significant trend in future Chinese judiciary reform because all the courts are situated in the same territory as to the executive, and they overlap on the same jurisdiction area.

But maritime is different for instance, the Wuhan maritime court situated in Wuhan has jurisdiction over all the cases from Jiangyin upstream and downstream to Shanghai. So, six provinces and nine cities are under this court’s jurisdiction – there are no more local protections. This system will enable the courts to be more efficient because they are specialized in maritime law.

There is a very interesting development about the leading case. In China, the high courts or the Supreme Court do all of the leading cases. It is different from common law. Some case might be chosen from a local court to be the example or the model for all the other courts in China. From these leading cases the judiciary creates seminal facts to create consistent judgments. That is the meaning of a leading case in China.

Regarding the professional judiciary, we created a successful new selection system and promotion mechanism for judges. We require exams for legal professionals including judges, prosecutors and lawyers since 2002. Recently, an increasing number of experienced lawyers and professors have joined the judiciary. The increase in knowledge is especially apparent in the Supreme Court where seven full professors have joined as justices and senior judges. And in only one year we promoted more than one hundred judges from the lower courts to the higher ones. And how do we select judges for promotion? To select the judges we grade them on their best judgments, usually regarding a leading case.

Lower justices also have to send reports to the higher courts semi-annually to be graded.

Next I will talk about the adjudication commission. There is a higher body for every court so that if a panel of judges cannot make a decision, they will report to the adjudication commission. This commission will decide which of the three decisions is final. The commission is organized by all the directors of the different divisions and by the president and vice president of all levels of the courts. Then, to try to be more professional, we submit them to subcommittee for civil, criminal, and administrative litigation.

Now I will speak quickly about professional training programs. We have a national judge’s college because we need to train the new judges before they can be appointed. Also we have very good lend-learn training program with several university law schools in the United States. For example we have a master degree program with 38 graduates from Temple University Law School. Next year the lend-learn program will be with Hong Kong City University Law School. 20 judges will be selected each year for this program. We hope there will be more cooperation with American and European as well as countries from the Organization of American States to create more exchanges and joint programs.

Asian consultation and due process as well as the exchanges between judicial traditions has become an interesting area for judicial reform. There is an exchange program between civil law countries and common law countries. The program selects 10 judges from China each year to participate. We send them to Bangkok and they prepare for two cases, one criminal and one civil. Then three of the judges play their own roles as judges and the rest play witnesses to the parties and council. Then they do the cases again in the form of a traditional Chinese panel. Then the facts will be taken over by judges from India, Pakistan, Hong Kong, from common law countries and districts. They do the cases independently. After studying the results of both cases, the results were totally different. Then all judges and professors sat down to discuss why. The conference was very encouraging and everybody learned a lot from the experience.
What about transparency? Our new policy includes free access to anyone over eighteen years old with valid identification. There are three types of cases that are exceptions. We do not allow the public involving state secrets, juvenile issues and privacy. Today the most important cases in China are broadcast over the internet and televised live.

We are also trying to develop a system similar to the jury system in the United States. We call it the people’s assessor system. How is it different? The pre-process assessor is selected by Congress not by a citizen list and they share the same power as an ordinary judge on the bench. They make decisions not only on facts but also by application of law and sentencing. Most of the assessors are experts in a specific field such as intellectual property rights or maritime law. Often they make up for some of the knowledge that the judges might not have. It is easier then for judges to proceed with complicated cases.

We have begun publishing Chinese law in English and Chinese. There is a magazine that publishes the Supreme Court’s leading cases and interpretations. Most important of all we have an English edition of China Law Report. I promise to send this as a gift to your library of this organization.

From next year on, all the Supreme Court cases in China published in English will be sent to your library as a gift from the Supreme Court of China. We have websites dedicated to the most recent cases, such as those on intellectual property rights and maritime law that can be viewed in English or Chinese.

The newest developments in judicial reform in China come from new laws about dissenting opinions. For the first time ever, a panel of judges in China can release a final and a dissenting opinion. Of course this has created lots of debates, but we think they are very encouraging, and we encourage them to go on. Right now courts in Beijing and Shanghai try to follow up about the dissenting opinions disclosure.

Then quickly I will move on to talk about reforming the courts’ credibility. One area of concern has been the retrial system. We have tried to limit the reasons for retrial to newly discovered evidence, judgments based on forged evidence, unapproved evidence, the wrong application of law, trial without due jurisdiction, and sometimes judgments unclaimed or partial judgments due to corruption. Another problem is that there is no statute of limitations for retrial even though we do have them for ordinary trial. For ordinary trial the current limit is two years. The retrial must be done from a higher court and not by a similar court. Intermediary courts are the first ones available for retrial. And the higher court and the Supreme Court can restart their own trial.

Next we move on to enforcement. I heard a lot of complaints from foreign investors that the time is too short for them to apply for enforcement, which is six months right now. For some companies, they spend months in trial to win an international arbitration award and the court rules that it has taken too long for them to apply. We will take more enforcement action. Longer judicial dictation – right now it is only 15 days, but we will extend them to one or two months for more fines for those who are not really honoring their judgments. We will most closely track the bankruptcies of companies. If you do not honor the court’s judgment your name will be blacklisted for credit in China, your rights will be suspended from immigration and you may not leave the country.

This leads me to the issues facing the courts over the next five years. The first issue concerning the future of the courts is due process. The first debate will be how to maximize efficiency while maintaining the due process requirement. The problem is typical in China because we have a statute of limitations for our first hearing and the appellate hearing. China has to deal with millions of cases, so how can this be managed? We have to balance efficiency versus equality. Due process is also important for pretrial arbitration. Thirty percent of all cases finish before trial in mediation. Do we need due process? If we do, then more time is needed to figure out how it fits into the Chinese judicial system.

Secondly, I will address the appointment of judges. A possible change would be to make the national legislature and local legislature responsible for equal portions of the appointments. Next, we plan to establish a environmental protection tribunal in one of the provinces. Judicial financial support is another issue that is important to the local governments. Can the system be changed to a legislative budget?

We still have many improvements to make in terms of judicial credibility. Why should multiple courts have the responsibility to enforce the same judgments? That would leave the best for the judiciary, not leaving it to the enforcement. Another critical area is to protect victim’s rights in criminal procedures. In addition we will need to consider rebalancing judicial discretion, especially the Supreme Court. We function as a law maker so we must use discretion which may be compromised by time constraints and facts. So there are lots of debates on this question.
Lastly we must address judicial professionalism because there is a dearth of qualified judges in the Western provinces. Many of the top judges have decided to retire or resign because they earn less money than as a dean at an law school in the United States. They want more, and it is the same thing in China.

I have probably occupied too much of your time. Thank you for listening and I will open the floor to the audience for questions. My colleagues over there will be happy to answer some of your questions. Thank you very much.

Question and Answer session:

Moderator: Thank you Justice Wan Exiang for your very insightful and thorough presentation. Since we do have a few minutes left we are going to open the floor for just a couple of questions because Justice Wan Exiang has expressed that he has to take a train. So I understand that we have a question from the Ambassador of Panama.

Ambassador Royo of Panama: Thank you, and thank you for this magnificent conference you have given us this morning. There could be and maybe should be a lot of questions because almost everything you have explained to us is new for us, because many of us don’t know the judicial system in your country. I am going to make just two questions. The first is the following: when a student graduates from a law school in China and he wants to enter and he is probably going to be appointed by the provincial congress, the people’s provincial congress, what are the requisites he needs to be appointed. In some developed countries you have to make a contest, you have to study for two or three years and you have to pass an examination. It is very hard in order to become a judge. I don’t know how it is in China. Secondly, if when he enters the system and he’s already a judge, is he protected by what we call a career law, a professional career law in justice so he can work in the system for 20 years or 30 years until he gets retirement? And the second question is this: about the death penalty is there any discussion, not only among the people that form the government in China, not only among the lawyers but in the civil society, is there any discussion in China about the abolition of the death penalty? And when you talk about the most serious crimes, can you explain to us which are the most serious crimes because sometimes, I don’t know when, but I read that an employee of the government that participated in corruption perhaps was sentence to the death penalty. Is that still a serious crime? Because in our country, that is assassination, homicide, and usually crimes against other human beings. Thank you.

Justice Wan Exiang: Thank you, very good question. First one, quickly about the qualification of a judge, if you are a fresh graduate student from law school, you have to at least pass the one very important qualification exam called the unified exam for judges, lawyers and prosecutors. Then after you have passed the exam, you have to be trained in one of our national judge’s college branches. We have 17 in different provinces. Then you could be an assistant judge. After some time, then you will wait on a waitlist to be appointed by the local congress if there is a vacancy.
About the death penalty, abolition of the death penalty in China is a really heated discussion. You know China has a long history, especially the local people and older people have already discussed about that. But my opinion to you is that it is really difficult right now for the people to agree about this one. Eye for eye, blood for blood is still a tradition in China, and the people who shoulder the most burden are the victims, the relatives in the criminal case in which their relatives are killed just demand the death penalty. They say, “I just want this person to die who killed my daughter or son – nothing else. I don’t need money.” They even keep the corpse not buried. So in this way the court really faces a lot of problems in ways that they cut down the number of death penalties very quickly. And in one of the official discussions in the national people’s congress we are trying to abolish some of the crimes that fall under the death penalty, for instance corruption. 90% on the internet have said no. So desperately on corruption especially we say that the latest death penalty case about the highest official, the director for something like the FDA in China was sentenced to the death penalty. The money involved was not really enough, not really the highest one, only $55 million. Comparably there were other officials with 4 or 6 times higher than his, but the severity, I mean the harmfulness of his crime was the risk for everybody in the country, about food safety and drug safety. So we think the order of the society is not based on the money, but on the seriousness of the crime. So it is really hard to say what kind of crimes should be abolished for the death penalty. It just depends on facts for the individual cases. I don’t know whether I have answered all of your questions. Thank you.

Moderator: We have time for one more. The Ambassador from Uruguay has the floor.

Ambassador Flores of Uruguay: Thank you very much and I would like to reiterate by congratulating Profesor Wan Exiang for this conference that he has given us. A number of questions have arisen, and the first is, how to bring about the judicial reform to which you made reference, and for whom and what is the process? The second is, how, if it is prohibited, is the relationship between national and international law, or how does the application of the two coincide in the internal judicial order of China? The third is that, you mentioned a series of cases that revolutionized the amount or volume of jurisprudence, so how do you classify these cases, to what do the cases correspond in general, and what are the majority of these cases that you mentioned? And lastly, what is the value of the precedents of Chinese law? Thank you.

Honorable Wan Exiang: Very good questions. Thank you Madame. With respect to her first question about who is leading or carrying out the judicial reform in China, I mentioned two judicial reform plans - the first five year and the second five year. The first and the second are all carried out by ourselves, led by the Supreme Court of China; we make the plan. But we find more difficulties, because the judicial reform is not only counseling about the judiciary, sometimes it is counseling about the relationship with the administration, and sometimes it is about the relationship with the legislature. So we need amendments of law, so right now for the third five year plan we need to go to the legislature for their support to make changes of law so that we can go forward. And then about the relationship between national law and international law - in China we have a provision in our general laws that international law, especially treaties signed and ratified by China, prevail compared with national law always. There is the assumption that China has made reservations too. So, treaty law is always higher than national law. Then with the precedents, we say that whether we have a leading case, how should we get around that in just one or two years? Right now we are trying to make some designation or just set up a standard for those cases to be declared as the model or standard for all of the rest of the courts to follow. So it can hardly be said as a precedent, but we just define it as a leading case. The case is going to lead all our other courts to follow. They might be changed in the following years. Also they may be changed by the Supreme Court rulings in the new case; so it is somewhat different. Probably we are going to publish some of those leading cases in English as a gift sent to your library. Thank you very much.

Moderator: We have one more question. The Ambassador of Venezuela has the floor.

Ambassador Valero Briceño of Venezuela: Thank you to Doctor Wan Exiang for your presentation which evidently clarifies or permits us to clarify many worries regarding the Chinese process or the process that is advancing in China right now. There is no doubt that the process that China experienced in recent years is one that is completely unknown. Some analysts, with the intention of defining the Chinese process, have come to talk of liberal socialism in China. What is certain is that China has constructed an undocumented process of a new type. In your presentation you made reference to the establishment in this year, 2007, of property law, and you spoke of course of its establishment in a socialist state, in a socialist regime. You spoke of private property, of the established protections in article 16 amended from the respective laws. And I would like if possible for you to explain a little bit more of how this relationship between a socialist state economy and the judicial coordination that permits the coexistence of state property and private property has been progressing. This would interest me if you, sir, could explain this to me a little bit more. Thank you.

Honorable Wan Exiang: Thank you, it’s a challenging question. In China in our Constitution it is provided that it is a socialist country and state, but with China it is special. We always have something special in our legal system and our judicial system as I presented it in my speech. So the property law is part of the civil law or civil code. There are going to be tortes, already we have contracts, and the property laws are one of the four chapters of the code in civil litigation or civil legislation. So always the socialists in China lead a collective forum for the property for most of the citizens, to my understanding. However private property, private ownership is also provided in our Constitution to be the target for protection and fairness. There were some conflicts sometimes in our lower codes with lawsuits in court hearings about state owned enterprises and private property rights. Some of the representatives from the state-owned property said, “This is state-owned property, you will need privileges from the court decision.” But the judges said, “No, you are on equal ends, equal standing.” Private property or state-owned properties in lawsuits are the same standing parties in court. We are standing neutrally in between to decide on facts. Nothing is different from any other country about law court suits. So I am not worried about the banters between the public ownership and the private ownership. It has already been provided in our Constitution.
So to understand China as I present to you, there are more than five million private enterprises. If they were not protected, how could they have grown up? And more than 50% of employment comes from the private sector, not really by state-owned – they are coming down. The percentage employed by the private sector is going up. So, the law has to follow up to protect those private property rights. The reason I explained why we are expecting more lawsuits, there are lots of private sector and property-ownership disputes between themselves. And in this way the court will be busier than before. We are going to have more disputes among different ownership, not only from public ownership but also private. Probably I cannot answer all of your doubts. Hopefully we could put together some kind of seminar later with Chinese officials or judges from your state and your other member states, and you’re welcome to Beijing sometime to have a more detailed discussion about it. Thank you.

Moderator: On behalf of the Organization of American States, I would like to thank once again our very distinguished speaker, Justice Wan Exiang, the Vice President of China’s Supreme Court of Justice for being here today and for your very interesting presentation. I would also like to thank our audience, both in Washington and throughout the Hemisphere who have followed today’s program through the internet, radio and television. And very especially I would like to thank our sponsors, the Universidad de San Martin de Porres from Lima, Peru and the governments of France and China. We look forward to your joining us again on October 23, at 3 pm, with our next speaker at the Lecture Series who will be Kermal Dervis the UNDP administrator, and he will be speaking on the progress to date of the UN Millennium Development Goals. Thank you very much.