Judicial independence in China: A comparative perspective

Mugelli, Caterina (2013) Judicial independence in China: A comparative perspective. Acta Juridica Hungarica, 54 (1). pp. 40-57. ISSN 1216-2574

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Abstract

As a general assumption, the presence of an independent, honest and competent judiciary in the so-called rule-of-law countries benefits both the protection of citizens’ rights and economic growth. This essay aims to give a definition of the judicial independence principle in the People’s Republic of China. To this end the author describes the general understanding of the principle within the Western legal tradition, stressing the importance of different guarantees embraced within given societies. Due consideration is given to judicial tenure and the appointment and salaries of judges.After an historical introduction this understanding is used as a yardstick to gauge the Chinese system. Not surprisingly, the Chinese judiciary cannot be yet considered independent, notwithstanding the undeniable progress made in the last decades. The subsequent explanation of the achievements of the Chinese judicial reforms are therefore instrumental in explaining that, in the Chinese context, it would be more appropriate to refer to judicial impartiality than to judicial independence. Without political reform, the Chinese judiciary will always be dependent on the legislative, in accordance with Chinese traditions and the country’s political structure. In conclusion, even if it is still not possible to use the term “judicial independence”, as understood in the West, judges’ professionalism appears to be a suitable tool for achieving a more reliable and impartial judiciary.

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