From May 9th – 18th 2017 a delegation of twelve Chinese judges visited North Rhine-Westphalia. In addition to representatives from the Supreme People’s Court of the People’s Republic of China the delegation included representatives of the Higher and Intermediate People’s Courts of the Ningxia Hui Autonomous Region, the Province Gansu and the national Central City Tianjin.
At the beginning of the visit the delegation was welcomed at the Ministry of Justice of the state of North Rhine-Westphalia by state secretary Krems. The judges were introduced to state structure and judicial system in Germany as well as the course of German legal education.
The main focus of the of the trip were expert discussions with German colleagues at the District Court of Essen, the Higher Administrative Court of North Rhine-Westphalia and the Higher Regional Court of Cologne. Workshops covered topics related to the daily routine at courts and legal issues from the different legal systems in China and Germany. Many of the German participants already had experiences with the Chinese legal system from prior visits to China with the judges exchange program or their involvement in the training courses on legal methodology, which the GIZ conducts in cooperation with the National Judges College in China.
How to bring a legal action before a court was one of the topics discussions focused on. The Chinese side focused very much on practical issues. During the explanations of the head of the Chinese delegation, the director of the department for case filing at the Supreme People’s Court, the mere size of the People’s Republic and the obstacles arising thereof became evident: in the department for case filing alone, 50 judges are employed. Due to the size of country and travel distances it was oftentimes inconvenient to file a lawsuit with the competent court at the defendant’s residence. Therefore, in China the claimant could turn to a court at his residence, which then forwarded the lawsuit to the competent court. Additionally, the number of electronically filed lawsuits had been rising in recent times. Regarding the acceptance of cases at court, the German participants emphasized the significance of the distribution of cases to the single court divisions in accordance with abstract criteria, which have been determined in advance; this system helps to guarantee the independence and impartiality of the judges then hearing the case.
Another topic of the workshops was effective law enforcement. What imposes a great challenge to the Chinese legal system at the moment, is the protection of creditors against the transfer of assets and property by the debtor between the filing of a lawsuit and the enforcement of a judgment in favor of the creditor. Only recently, China introduced a possibility for a claimant to apply for interim measures by the court to restrain the defendant from such actions. The Chinese colleagues also learned about the interim measures in administrative processes in Germany through a role play at the Higher Administrative Court of North Rhine-Westphalia.
What is also problematic in China, is the duration of appeal procedures. Especially the transfer of the court files to the appeal instance is regularly affected by delays. Like in Germany, there a no legal provisions regulating the transfer of the court files. However, in Germany the files are usually transferred promptly – what astonished the Chinese colleagues during discussions.
Furthermore, the digitization of the court organization was dealt with. While the comprehensive introduction of the so called electronic file at German courts is still pending, the development of electronic communication is already very much advanced at Chinese courts. Not only can lawsuits be filed electronically; also the recording of court hearings (via voice recognition technology) as well as the (online) publication of court rulings are conducted digitally. Concerns regarding privacy and data protection, which are prevalent in Germany, are generally not shared by Chinese observers.
Another focal point of the workshop discussions were structure and financing of the judicial system. While in Germany the judiciary is supervised by the Ministry of Justice, in China oversight over lower courts falls within the competence of the Supreme People’s Court. More than half of the departments of the Supreme People’s Court are occupied with similar administrative tasks; only the rest actually rule over legal cases. Although not being supervised by the ministry or a similar authority part of the government, courts in China are less independent compared to those in Germany. At present, the Chinese Government undertakes some efforts to improve judicial independence, a manifestation of which is the transfer of the competence of budget distribution from the local governments to the Supreme People’s Court. Courts on provincial level are co-financed by the Central Government and the respective Provincial Government. Since financial strength differs between the particular provinces, the salaries for judge also vary widely.
Finally, the workshops covered different topics from procedural law and evidence in both administrative and civil trials. Herein discussions identified many similarities between the two legal systems. For instance, both Chinese and German civil procedure law have a principle established, according to which each party has to prove the facts that are in favor of its own case. In addition, both jurisdictions know alleviations of the burden of proof in cases of medical, animal owner’s and product liability.
Beyond the professional exchange during the workshops the Chinese delegation also had the chance to visit the trial of a criminal case before the District Court of Bochum. The hearing concerning the allegation of driving without a license sparked lively debates: The Chinese colleagues were somewhat surprised by the not all too dominant appearance of the (female) judge presiding the trial and by the extensive opportunities to make a statement the defendant enjoys in Germany. What led to astonishment, too, was the fact that a rather trivial allegation brought about a hearing before the district court. In China such cases of minor importance can be handled through an administrative punishment imposed on the defendant by the police, without even involving a court session; an administrative punishment can include such severe measures as detention. The latter fact, in turn, surprised the German participants being accustomed to the constitutional principle that a measure going in line with the deprivation of personal liberty can only be taken by a judge – what is generally considered a core principle of the rule of law.
During the visit, the Chinese colleagues’ interest was much aroused by the state elections taking place at the time in North Rhine-Westphalia. Election posters and talks with voters and election workers at a polling station gave an insight into procedure and significance of the state election. On the election night the delegation followed live broadcasts of the first vote counts and thus experienced an example of active democracy – especially regarding the loss of the state government’s party.
The visit to North Rhine-Westphalia also held opportunities for the Chinese delegation to discover the Ruhr area and its attractions and traditions; the delegation visited Villa Huegel as well as Zeche Zollverein, and witnessed the live spectacle of a soccer game of the Bundesliga at the famous stadium “auf Schalke”. The Chinese colleagues were particularly impressed by the economic and cultural shift the Ruhr area has accomplished in recent years – from an industrial region plagued by environmental pollution to one of the greenest areas of Europe with a striving service sector.