By Michelle Winglee
Since October 2014, the first time in which ‘rule of law’ was designated as the main theme during China’s annual high-level party meetings, the country’s legal reforms have become a central issue. Meanwhile, from controversies around the death penalty to property division in divorce cases, China’s judges are facing new challenges.
From May 8-19th a delegation of 20 judges from Jiangsu Province participated in the University of Maryland’s Office of China Affairs and Carey School of Law training program to learn about alternative dispute resolution (ADR) and family court proceedings in the United States.
“The legal system in China is quite developed, but we want to learn how we can improve it,” said the Jiangsu delegation leader from the Provincial People’s Congress Legal Committee. The judge, who began studying law in the 1980’s, was among the frontier of new legal professionals after the current Constitution of the People’s Republic of China was adopted in 1982. While traditions for governing China’s society date back to Confucius in the mid 500’s BCE, its modern civil law system has been influenced by the West.
Jiangsu Province, one of the wealthiest in China, is on the forefront of developments in China’s legal system. And, caseloads have been increasing dramatically. Judges from the Jiangsu delegation, ranging from civil to criminal court justices, reviewed 200-300 cases per year in addition to being responsible for a range of administrative tasks.
In the U.S., ADR and other meditation services are a common way of resolving conflicts outside of the courtroom – avoiding high lawyer fees while softening the case load for judges. According to statistics from the U.S. Department of Justice, ADR saved over $70 million in litigation expenses and avoided 2,733 months of litigation in 2016.
Through site visits, including to the Center for Dispute Resolution at the University of Maryland, the Maryland Court of Special Appeals ADR Division, and the District Court of Maryland’s ADR Office, delegates gained an understanding for out-of-court dispute resolution mechanisms.
The Jiangsu judge delegation also gained insights inside courtroom proceedings. Visiting the Supreme Court in Washington D.C. and sitting in on circuit and district court trials, the group engaged with current and former judges, magistrates, and other legal professionals. The delegation also learned about new trends towards paper-less procedures and e-filing of legal documents.
However, not all lessons of the U.S. legal system are applicable in China. The Chinese legal system maintains a single presiding national law as opposed to federal and state laws in the United States. Also, the majority of Chinese currently represent themselves in court rather than hiring lawyer – decreasing the financial incentive to adopt the ADR practice.
“The two systems are very different, but there are ideological aspects to the U.S. system that are worthy of study,” remarked a judge from Jiangsu’s High Court. She noted that reforms to China’s legal system would come slowly and through a collective effort.