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On Ethnic Minority Cultures and the Reform of Judicial Trial Proceedings
September 28,2016   By:chinahumanrights.org
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Zhang Yonghe,  (photo: Zhao Yifan)

On Ethnic Minority Cultures and the Reform of Judicial Trial Proceedings 
 
Zhang Yonghe

Professor and Executive Director of Institute of Human Rights
of Southwest University of Political Science and Law
 
Abstract: In view of the differences in the specific types, settlement modes and conditions of disputes between areas inhabited by ethnic minorities and those inhabited by the Han Chinese, the largest ethnic group in China, many attempts have been made in the reform of the trial modes in areas inhabited by ethnic minorities on the basis of the characteristics and requirements of disputes and settlement in these areas. To make legal services easily accessible to local people, the people’s courts in the areas have formed circuit courts to operate in rural areas, remote and sparsely populated areas on a periodical or irregular basis and try to register lawsuits and open a court session on the spot, mediate and wind up a case in a single court session. The flexibility in the time and place of lawsuit registration and trial, which is conducive to improving the accessibility of the current legal system in China, can reduce the cost of litigation and improve the efficiency of the court, and thereby enhance judicial transparency, prevent the intensification of disputes, facilitate people's mediation, a unique Chinese institution aimed at increasing judicial efficiency and reducing litigation cost, and increase the public awareness of law. 
 
However, owing to such shortcomings such as fuzzy delimitation of case registration, untimeliness and inadequacy in the translation of legal documents into ethnic languages, the circuit courts sometimes become pestered by formalism, which may adversely affect the non-litigious dispute resolution mechanism. The causes of disputes in these areas are often trivial and the subject matter of an action is small, yet they nonetheless tend to involve an array of factors. Consequently, such disputes are often rather costly to process due to restrictions placed by natural conditions and other factors. At the same time, since minority ethnic groups tend to identify with dispute settling modes integrating their ethnic conventions and characters, it is therefore desirable to integrate litigation and mediation by combining effectively judicial authority and ethnic social customs. However, the integration of litigation and mediation in ethnic minority regions has encountered a number of objective and subjective challenges. The former include insufficient funding of courts on various levels, inadequate qualifications of court mediators, the unwillingness of parties concerned to accept mediation, and the latter category of challenges includes the over-exaggeration of the advantage of mediation and the one-sided pursuit of a high rate of conclusion or settlement of disputes. Due to the fact that the people’s assessors who are randomly selected often cannot participate in a case trial on time, the presiding judges tend to choose their favorite assessors, some of whom even become "professional assessors", while people’s assessors are supposed to be lay people randomly selected from citizenry. Since it is financially difficult for courts in ethnic minority regions to give subsidies to assessors in time as required, assessors are not motivated to play an active role in trial activities. In view of this, in the legal practice in such regions, the rate of assessors’ participation remains low, despite the gradual annual growth in the numbers of cases that assessors participate in.  
 
Keywords: Ethnic Minorities; Circuit Courts; Integration of Litigation and Mediation; People’s Assessors
 
Zhang Yonghe, Professor, Executive Dean of Human Rights Institute at Southwest University of Political Science and Law.