A typology of judicial liability for error in Chinese courts

Abstract

Based on a fieldwork investigation of frontline judges in Chinese courts, this article provides empirical evidence for understanding the nuances of accountability of Chinese judges for error. The study looks at the wider perspective of judicial errors (encompassing mistakes, omissions, faults and wrongdoings committed by judges at any stage of the proceedings), as opposed to simply, incorrectly decided cases. We incorporate “the seriousness of the consequence of the error” and “the cause of the error” to develop a two-by-two matrix to explain the nature and gravity of liability of the judge. It is discovered that the same error may result in varying magnitudes of sanctions because of the different social and political consequences that emerge from the error. An error of institutional cause attracts lighter sanction as compared to an error of individual cause when the consequence is of the same magnitude. We also argue that the judicial reform in 2015 did not fundamentally transform the logic of disciplining judges and the way judges are held accountable for their errors in the Chinese courts as the reform did not bring about any major change in the institutional environment. The typology thus provides a comprehensive theoretical framework for understanding judges’ accountability for error and judicial discipline in China.