TYGlobe

The fourth amendment to the Civil Procedure Law of the People's Republic of China has aroused widespread attention. Among the revisions, the expansion of the scope of application of the single-judge system, as well as the adjustment to the previous traditional procedural configuration of "taking the collegial system as the mainstay and the single-judge system as the supplement", have triggered extensive discussions in both the legal academia and the practical legal circle. The allocation of trial resources has long been an important topic in the design of judicial systems and litigation systems. This paper analyzes the reasons for the expansion of the single-judge system from a practical perspective and puts forward several suggestions on how to optimize the system.

I.

Amendment to the Civil Procedure Law

On December 24, 2021, the Supreme People's Court submitted the *Civil Procedure Law of the People's Republic of China (Draft Amendment)* to the Standing Committee of the National People's Congress. This is the fourth amendment to the Civil Procedure Law of China. One of the core contents of the Draft Amendment is to expand the scope of application of the single-judge system, which is also referred to as "the expansion of the single-judge system". The relevant revisions are as follows:

1. It provides for the trial mode of the sole-judge system for general procedures, which has changed the previous practice that only the collegial panel system rather than the sole-judge system can be applied to general procedures:

Paragraph 2 of Article 40: Civil cases to which the summary procedure applies shall be tried by a single judge alone. Civil cases of first instance tried by basic people's courts with clear basic facts and clearly defined rights and obligations may be tried by a single judge alone under the ordinary procedure.

2. It also provides for the trial mode of the single-judge system applicable to the procedure of second instance, which constitutes a breakthrough over the previous rule that only the collegial system may be applied in the trial of second instance cases.

Paragraph 2 of Article 41: An intermediate people's court may assign a single judge to hear civil cases of first instance concluded through summary procedure, or civil cases of second instance where an appeal is filed against a ruling, on the conditions that the facts are clear, the rights and obligations are clearly defined, and the consent of both parties is obtained.

3. A negative list for the application of the single-judge system is added, which provides that six categories of cases, namely cases involving major interests, affecting social stability, producing extensive social impact, being new-type, difficult or complicated, and cases where the collegial system shall be applied as prescribed by law, shall not be heard by a single judge (Article 42).

4. In addition, a conversion mechanism between the sole-judge trial system and the collegial panel system has been newly introduced. It is explicitly stipulated that the People's Courts may, pursuant to the provisions of the law, convert the trial organization ex officio, and the parties may raise an objection to the application of the sole-judge trial system to their cases:

Paragraph 2 of Article 43: Where a party considers that the trial of the case by a single judge violates the provisions of the law, the party may file an objection with the people's court. The people's court shall examine the objection filed by the party. If the objection is tenable, the people's court shall render a ruling to transfer the case to a collegial panel for trial; if the objection is untenable, the people's court shall render a ruling to dismiss the objection.

II.

Drivers for the Expansion of the Single-Judge System

In terms of nature, law is by no means immutable. It is a fundamental feature of law that it adapts and evolves in response to changes in objective conditions and the times. ① China explicitly stipulated that the collegial system shall be adopted for civil trials in the *Civil Procedure Law of the People's Republic of China (for Trial Implementation)* enacted in 1982, and has taken the collegial system as the basic form of trial organization since its inception. However, from the perspective of current judicial practice, the operation of the collegial system seems to be increasingly trapped in the shackles of alienation phenomena such as "formal collegiality with substantive single-judge adjudication" and "collegial panel without actual deliberation". With the introduction of emerging reform concepts such as diversion of complicated and simple cases, reflection on the legal status of the sole-judge system and the collegial system has received growing attention, and the reform of the sole-judge system has become a powerful measure to implement the concept of diversion of complicated and simple cases and reshape the pattern of trial organizations. ② The expansion of the sole-judge system will inevitably lead to the restriction of the collegial system, which is generally based on the reality of case adjudication and is mainly reflected in the following two points:

1. In light of the actual situation of more cases and fewer judicial personnel

According to the statement of President Zhou Qiang, "In recent years, with economic and social development and the advent of the information era, the number of disputes has maintained sustained and rapid growth, the situation of civil trial work has undergone profound changes, and some provisions of the current Civil Procedure Law can no longer fully meet the judicial demands of the people for fair, efficient and convenient dispute resolution, thus making it necessary to improve the Law." From the perspective of judicial practice, primary people's courts and courts of second instance are confronted with the dilemma of a sharp increase in litigation cases. The successive implementation of the case-filing registration system and the judge quota system has further exposed courts to the pressure of "more cases, fewer judges", and such pressure is still on the rise. Where the judicial environment is difficult to change, it is logically justifiable and a natural choice to resolve the contradiction of "more cases, fewer judges" by expanding the application of the single-judge trial system.

2. Based on the phenomenon of "collegiality in form, sole adjudication in substance"

"Collegial System in Form but Sole-Judge System in Practice" refers to the practical dilemma in the civil litigation practice of basic-level people's courts in China, where a form of trial organization operates as the collegial system formally but follows the prevalently applied sole-judge system in effect. This phenomenon is mainly manifested in two aspects: (1) Although the collegial system stipulates that cases shall be heard by a collegial panel composed of an odd number of three or more judicial officers, in actual operation, cases are usually placed under the specific charge of the so-called principal judge, while other judicial officers only act as onlookers. Especially in cases applying the people's assessor system, non-principal judges have no actual knowledge of case facts and trial progress, and only participate symbolically. Even if their names are indicated on the judicial documents, the principal judge still bears the actual liability. (2) As for the actual application ratio of the collegial system, although judicial policies emphasize the principle of "taking the collegial system as the mainstay and the sole-judge system as the supplement", available data shows that the proportion of sole-judge trials in practice has reached approximately 90%③. To timely alleviate the trial pressure caused by the surge in case volume, courts across China have almost unanimously expanded the scope of application of summary procedures. It can be said that the collegial system applied in basic-level people's courts has been virtually replaced by the sole-judge system in practice.

It should be emphasized that the phenomenon of "formal collegial system with de facto single-judge adjudication" has long attracted attention and discussion. Some scholars point out that since such phenomenon has become pervasive in judicial practice, formalism should be eliminated from the perspective of legal realism, and the nominal collegial system should be replaced by the single-judge system. While such realism-based understanding is reasonable to a certain extent, it also implies a dangerous line of thinking: whenever a procedure or system cannot be effectively implemented and exists only in form, it shall be replaced or eliminated. This may make people reluctant to strive for the implementation of such procedure or system, and lose the ideal of constructing procedural justice. If this logic is extended, many procedures may face elimination due to formalization, especially with the support of the so-called empirical data.④

III.

Optimization of the Single-Judge System Reform

Against the backdrop of common problems such as "excessive caseloads and insufficient judicial staff" in China's judicial practice, the Supreme People's Court issued relevant Guiding Opinions on Advancing the Diversion of Complicated and Simple Cases in 2016, aiming to optimize the allocation of judicial resources through institutional design. In 2020, the Supreme People's Court again made work arrangements for the implementation of the complicated and simple case diversion system, so as to improve judicial efficiency and better uphold fairness and justice. However, the reform of the single-judge trial system launched under the background of the complicated and simple case diversion, despite its achieved results, still has certain theoretical and practical deficiencies, including restricted right of parties to participate in proceedings, absence of a unified standard for distinguishing simple cases from complicated cases, excessive discretion held by courts over the conversion of trial organizations, and possible undue simplification of the single-judge trial system applicable in first-instance procedures, among others. With regard to how to optimize the aforesaid system, the author puts forward the following suggestions:

1. Establish supporting linkage mechanisms compatible with the reform of "diversion of complex and simple cases"

Given the wide variety of case types and varying degrees of complexity in judicial practice, it is necessary to differentiate the qualifications of single judges entrusted with case handling, and it is of particular importance to develop supporting linkage mechanisms aligned with the reform of case diversion according to complexity. At present, people's courts across China generally arrange for senior judges to make assessments based on factors including the difficulty coefficient and type of cases. Relatively low qualification requirements are set for judges handling summary cases, while relatively high qualification requirements apply to judges handling ordinary cases. However, China has not put in place explicit differentiation rules on the levels of judge qualifications. Therefore, the core of developing the aforesaid supporting linkage mechanisms lies in establishing a scientific and rational trial resource allocation mechanism, which includes improving the personnel allocation mechanism, formulating internal court performance evaluation mechanisms, conducting regular evaluation of the overall competence of judges, keeping all relevant records on file, and assigning corresponding cases to judges on the strength of such records. ⑤

2. Establish a standardized conversion mechanism for trial organizations

The law grants sole judges the power to effect conversion of the trial organization. Notwithstanding that parties have the right to raise objections, the power to conduct final review on the validity of objections and render decisions remains vested in judges. The dominant position of the people's courts in the trial organization conversion mechanism is detrimental to the protection of parties' procedural interests, which can be mitigated through the following two measures: (1) Grant parties partial right to select the trial organization upon mutual consensus, transform the existing unary structure of ex officio trial organization conversion into a binary structure where ex officio conversion and conversion upon application coexist, so as to attenuate the courts' functions and powers via the parties' right of application; (2) Despite that the parties' right of application is ultimately subject to the courts' review and judgment exercised in accordance with their statutory functions and powers, the review and judgment process of the courts shall be standardized and reasonable, that is, the courts shall not arbitrarily reject applications submitted by the parties.

3. Strengthen the supervision and administration of single-judge trials

On the one hand, a professional trial supervision mechanism shall be established. Where a sole judge trying a case has doubts about the case or deems it necessary to submit the case for discussion, the organ with relevant functions and powers shall preside over and conduct the discussion. The outcomes of the discussion and possible circumstances arising therefrom shall also be regulated, and corresponding resolution channels shall be established. On the other hand, sound and specific standards for the conversion of trial organizations shall be formulated as far as possible, so as to further define the scope of application of the single-judge system.

IV.

Conclusion

The latest amendments to the Civil Procedure Law reflect the urgent need to enhance litigation efficiency. Expanding the application of the single-judge system is one of the effective approaches, which has continuously demonstrated its unique efficacy in allocating judicial resources and improving procedural efficiency, among other areas. However, it shall also be recognized that while this reform addresses the practical judicial issue of the mismatch between judicial manpower and caseload in China by saving trial resources, it will also produce other negative effects. Accordingly, formulating and optimizing relevant measures, strengthening checks and oversight, and improving supporting initiatives are all pressing challenges requiring deliberation and implementation at the current stage.

Notes

① [Germany] Hegel: *Elements of the Philosophy of Right*, translated by Fan Yang and Zhang Qitai, The Commercial Press, 1982 Edition, p. 7.

② Dong Chuchao, Fang Yuxue: "Reform of the Sole-Judge System Under the Background of Diversion of Complicated and Simple Cases: Logical Origin Exploration and Practical Review", *Social Sciences Dynamics*, p. 42.

③ Chen Li, *The Practical Dilemma and Institutional Transformation of "Formal Collegiality with Substantial Single-Judge Adjudication" — A Study Targeting the Civil Procedure of Primary People's Courts in China*, Nanjing University Law Review, Spring Volume 2019, Nanjing University Press, 2019, p. 275.

④ Zhang Weiping, "Comprehensive Judgment on Procedural Allocation of Trial Resources: An Analysis Centered on Civil Litigation Procedures", *Tsinghua Law Review*, Issue 1, 2022, p. 202.

⑤ Chen Li, "Practical Dilemmas and Institutional Transformation of 'Collegial Trial in Form, Sole Adjudication in Substance': Taking Civil Procedure of Primary Courts as the Research Object", *Nanjing University Law Review*, 2019 Spring Issue, p. 288.