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In the context of comprehensively promoting the rule of law, judicial fairness and efficiency are the core yardsticks for measuring the level of the rule of law. However, in recent years, the frequent phenomenon of ‘judicial vacillation’ - that is, the repeated flow of cases through the process without substantive progress - has become a persistent obstacle to judicial justice. The typical case of ‘Chen Yanping’ has revealed the deep-rooted problems of inefficiency and procedural alienation in China's criminal procedure. This paper analyses the performance and causes of judicial vacillation, and combines the experience of comparative law to propose a specific path for system reconstruction.

From 17 May 2018 to 21 February 2025, the judicial process of Chen Yanping's case has gone through four first-instance trials (the fourth first-instance trial has not yet begun), and three remand trials, forming a ‘judicial marathon’ that has lasted for seven years. This case not only exposes the inefficiency of individual trials, but also reflects the systemic dilemma of ‘judicial vacillation’ in China's criminal procedure. After the revision of the Criminal Procedure Law in 2018 and the updating of the judicial interpretation in 2021, such phenomenon has not been fundamentally improved. By analysing the procedural alienation of Chen Yanping's case, this article explores how to crack the problem of judicial idling through institutional innovation.

I. A Typical Sample of Judicial Vacancy: The Procedural Dilemma of Chen Yanping's Case

(A) Timeline

May 17, 2018: criminally detained on suspicion of ‘gathering a crowd to disrupt social order’.

December 30, 2020: Congtai District Court sentenced to 3 years and 6 months in prison.

11 June 2021: Handan Intermediate Court remanded for retrial on the grounds of ‘unclear facts and insufficient evidence’.

11 March 2022: Congtai District Court upheld the sentence.

31 August 2022: Handan Intermediate Court again remanded for retrial on the same grounds.

11 September 2023: Congtai District Court upheld the verdict for the third time.

19 August 2024: remanded for a third time by the Handan Intermediate Court

21 February 2025: case still in remand status

(ii) Core features of procedural alienation

Circularity of remand: the same court issued the same judgement three times, and the Central Court remanded the case three times on the grounds of ‘factual inaccuracies’, resulting in a meaningless flow of ‘Basic Court - Central Court - Basic Court’. (c) The disorderly nature of the duration of the trial.

Disorderly length of trial: the period of time between criminal detention and the lack of a final trial spanned seven years, in serious violation of the time limit for the trial of ordinary cases set out in article 208 of the Criminal Procedure Law.

Ambiguity of adjudication standards: The core disputes in the case (e.g., the completeness of the chain of evidence and the standards for the application of the law) were never substantively resolved, leading to repeated initiation of proceedings.

II. Institutional causes of judicial vacillation

(a) Structural deficiencies in the current remand system

(a) Generalisation of the grounds for remand: Article 238 of the Interpretation of the Criminal Procedure Law of 2021 still uses ‘unclear facts and insufficient evidence’ as the main basis for remand, but does not provide for specific review criteria, leading to excessive discretion on the part of the higher courts.

Lack of procedural regulation after remand: the current law does not limit the number of remands, nor does it establish a mandatory mechanism for correcting errors after remand, resulting in a vicious circle of ‘remand - maintenance - remand’.

(ii) The tendency to administrativeise local judicial power

Local courts are subject to the control of the local government: the Congtai District Court made the same judgement on three occasions, but it was repeatedly remanded by the Central Court, which may imply the protection of local interests or administrative intervention.

The distorting effect of performance appraisal: the rate of remand is used as one of the court's appraisal indicators, prompting higher courts to favour remand over direct revision of judgements, exacerbating procedural vacillation.

(iii) Failure of the mechanism for guaranteeing litigation efficiency

(d) Trial limit supervision is a mere formality: although the Criminal Procedure Law sets out clear trial deadlines, there is a lack of substantive accountability mechanisms for overrunning trials.

Insufficient application of summary proceedings: this case does not reflect the role of the new system of leniency in pleading guilty and accepting punishment, which was added by the 2018 amendments to the law, in simplifying proceedings.

iii. institutional mirrors in comparative law perspective

(i) Germany's ‘leapfrog appeal’ system

Article 302 of the German Code of Criminal Procedure provides that defendants may appeal directly to the Federal Supreme Court, bypassing the intermediate courts, with the aim of reducing the number of procedural layers and preventing local protectionism. This system enhances efficiency by compressing trial levels, and is worthy of our reference.

(ii) Japan's designated jurisdiction system

Article 248 of the Rules of Criminal Procedure of Japan allows the Supreme Court to designate other local courts to have jurisdiction over a case under certain circumstances, which effectively avoids biased hearings by the trial court due to various reasons.

(iii) The ‘triple review’ mechanism in the United States

The United States federal court system has raised the threshold for remand to substantial errors of law through strict appellate standards of review (e.g., the ‘plain error’ doctrine), significantly reducing procedural repetition.

IV. Paths to Reconstruct the System to Crack the Judicial Vacancy

(a) Establishment of rules limiting the number of remands for retrial

Suggestions in the Criminal Procedure Law to add provisions: ‘the court of second instance may not be remanded more than two times, the third time to designate jurisdiction directly’.

(ii) Improving the Jurisdiction Objection Procedure

(i) Granting defendants the right to object to jurisdiction: It is made clear that defendants may apply to the court for a change of jurisdiction after receiving the second remand ruling.

Adding provisions to the ‘disqualification’ system: making it clear that in the event that the entire criminal division of the court is unable to participate in the trial of a case, the court as a whole will be triggered to ‘disqualify’ the mechanism. This is to ensure the fairness, impartiality, professionalism and seriousness of the people's justice.

Establishment of a mandatory mechanism for relocation of jurisdiction: for cases that have been remanded for retrial more than twice, the higher court will designate a court that is not affiliated with the place of the original trial to hear the case.

(iii) Optimising the performance appraisal system

Replacing the ‘rate of remand’ with the ‘rate of conviction and settlement’ as the core assessment indicator, encouraging courts to pursue substantive justice rather than procedural repetition. At the same time, an accountability mechanism for overdue trials has been established, and judicial inspection procedures have been initiated for long-outstanding cases.

(iv) Promoting reforms to de-administer judicial power

Implementing provincial-level management of court personnel and property, and divesting local administrative organs of undue interference in judicial trials. Explore the establishment of inter-administrative courts specialising in major cases that are susceptible to local factors.

V. Conclusion

Judicial vacillation is not only a procedural problem, but also a ‘scar’ of judicial credibility. Chen Yanping case has not been resolved for seven years, warning us of the urgent need to make justice through institutional innovation to return to the ‘points to stop the controversy’ of the essence of the function, can not let the criminal procedure is alienated into a ‘power game tool’ product. 2025 is the implementation of the Criminal Procedure Law The year 2025 is the 45th anniversary of the implementation of the Criminal Procedure Law, and there is an urgent need to respond to the proposition of procedural justice through legislation. The next revision of the Criminal Procedure Law should be an opportunity, ‘two remand that is designated (avoidance) jurisdiction’ into the framework of the revision of the law, not only for complex cases to provide solutions, but also for the construction of ‘accurate, refined, efficient’ criminal procedure to contribute to the wisdom of the system. The only way to avoid more similar cases from falling into the quagmire of ‘procedural idleness’ is to let justice return to its essential function of ‘settling scores and stopping disputes’, and to truly realise the goal of ‘letting the people feel fairness and justice in every judicial case! The goal of ‘let the people feel fairness and justice in every judicial case’ can be truly achieved.

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