Pragmatic choice : decision making in grassroots courts of Guangdong province

Abstract

This thesis focuses on the internal decision making in grassroots courts of China which is regarded as an authoritarian regime and a party-state. Over the past four decades, scholar have paid increasing attention to the degree of judicial independence of China in general, and external institutional settings and embeddedness of Chinese courts in particular. However, external forces can only exert influence on judges through internal mechanisms of the courts. In Contrast, the study of internal exercise and operation of adjudication power within Chinese judiciary is insufficient. This thesis intends to fill the gap by thick descriptions of the actual picture of Chinese grassroots judges’ daily decision making.

Drawing on empirical study of Guangdong Province, this thesis presents a detailed and nuanced depiction of three models in respect of internal adjudication power allocation and operation in the grassroots courts, namely, approval model（审批模式）, handler model（经办人模式）, and quota judge model（员额法官模式）, aiming to demonstrate how external and internal forces are transmitted to the persons who deliver the judgments of cases.

Through examining how different role players within grassroots courts interact in decision making under different models, this thesis identify what factors give rise to different models respectively, discover the commonalities and particularities of these models, and clarify how different role players’ respective weights are attended upon the outcome of cases. This thesis argues that that both approval model and handler model arise from pragmatic philosophy of specific courts securing support of judges, while the quota judge model as product of top-down reform causes more problems than it solves due to lack of concern for practical needs of grassroots judges. This thesis attempts to challenge the conventional theoretical assumptions regarding Chinese courts and judges by suggesting that, under China's political and social realities, the effectiveness of the judicial power allocation system should not be based solely on the level of judges’ independence, but on whether the system meets the pragmatic needs of the courts and judges.

Based on the investigation on approaches of pragmatic choices taken by grassroots courts, this thesis identifies double attributes of Chines grassroots courts: members of grassroots social governance as the first attribute, and de facto trial (first-instance) courts as the second attribute. As members of the Communist Party’s grassroots governance and routine disputes solvers, grassroots courts have an obligation and a practical need to cooperate with other grassroots governance organizations. Without the support of other government agencies, grassroots courts cannot fulfill their responsibilities in respect of grassroots social governance. As trial court, unlike appellate courts in determining legal disputes or the Supreme People’s Court in using judicial interpretation to adjust judicial policy, the primary task of the grassroots courts is facts finding rather than rules making. Chinese grassroots judges exhibit a strong tendency of conservatism and self-restraint in adjudication, limiting themselves to facts finders rather than rules makers.