I am honored to have published How China’s Supreme People’s Court Supports the Development of Foreign-Related Rule of Law in China Law & Society Review. I have also posted it on SSRN. As an alternative for those unable to download the article from the Brill website or SSRN, I have uploaded it to this website. Many thanks to the many colleagues and friends who have contributed to this article in any way. Special thanks to Sida Liu!
On February 27, 2024, the Supreme People’s Court (SPC) held a press conference to announce the new SPC case database 人民法院案例库 (People’s Courts Case Database). As of this writing, fewer than 4000 cases have been incorporated. This new case database provides a collection of edited cases (案例) rather than original judgments, rulings, or other judicial documents as collected in China Judgements Online (裁判文书网). I summarize below the process by which edited cases are selected for inclusion in the People’s Courts Case Database.
The new People’s Courts Case Database is accessible from the SPC’s homepage, which is, the last time I checked, not accessible for those with a US IP address. I trust it can be accessed directly through the above link. It is intended to be accessible outside of China and appears to be hosted by the same platform as China Judgements Online. Similar to the China Judgements Online Platform, it requires the user to register and provide personal information. Even after such information is provided, the login process is not smooth, for those without a mainland China identification card.
This blogpost will address the selection process, the apparent rationale for establishing this case database, and whether it imposes new requirements on Chinese judges. It will flag matters that this case database does not yet address.
The large number of model/typical/exemplary cases that the SPC has issued in the past year makes it clear that President Zhang Jun favors those to guide the lower courts, rather than large numbers of policy documents. So the decision for the Chinese Courts Case Database to serve as a database for various types of edited and especially selected cases, such as guiding cases, typical cases, and other types of cases selected for their persuasive or exemplary value is consistent with the views of President Zhang Jun on the use of cases. It appears from the press conference announcing the Chinese Courts Case Database that launching the database timely was the primary responsibility of the Research Office, also involving other divisions and offices.
The SPC has described it as a new public legal service product (公共法律服务产品), launched before the Two Sessions. It is yet another product of last year’s thematic education campaign (主题教育). As described in my article published in US Asia Law Institute’s Perspectives, during the campaign, President Zhang required SPC divisions, offices, circuit courts, and affiliated institutions to undertake research focusing on current significant problems or issues in their area of law or responsibility and write reports proposing practical solutions. One of the problems brought to the surface during that campaign was that [edited] cases issued for guidance (案例指导) were not standardized, timely, comprehensive, or consistent. Followers of this blog would have known that.
Although the SPC describes the new database as providing more authoritative, standardized, and comprehensive guidance, with such a small number of cases in the database and such a large number of issues that face Chinese courts daily, as a practical matter it will not be a “one-stop platform” for Chinese judges or lawyers. The SPC requires judges to check it when undertaking a similar case search (see my former student’s description of the process).
The procedure by which cases are incorporated into the Chinese Courts Case Database is analogous, but not identical, to the process by which guiding cases and typical cases are selected. The details of the process for selecting typical [foreign-related] cases contained in my forthcoming article are consistent with the process described in one of the press releases accompanying the launch of the Chinese Courts Case Database. It is a bureaucratic process involving multiple levels of review.
Depending upon the entity that has submitted the case, the proposed edited cases are reviewed by members of the relevant operational division of the SPC. The entire division (sitting as the professional judges meeting) reviews and discusses a group of cases for proper application of law, reasoning, and ethical orientation (value orientation 价值导向). If the judges in the operational division consider that certain cases are suitable for inclusion in the database, they will be reported to the relevant SPC leader for approval. I surmise that an explanatory report accompanies the selected cases. The press release states that the cases are thereafter sent to the Research Office for review. During the review process, the Research Office reviews the format and substance of the selected cases, involving experts in the review. As part of the formatting process, each case is labeled with a special number (see below). I surmise the initial approval by the SPC leader is subject to final clearance by the Research Office. Otherwise, the Research Office could be in the awkward position of negating a decision by a leader. This procedure highlights the unique role of the Research Office at the SPC.
This process appears to involve more reviews than typical cases, but fewer approvals than guiding cases. Therefore cases incorporated in the database should be considered highly authoritative and therefore highly persuasive. From the number of WeChat articles on local court websites announcing the good news that one or more of their cases had been incorporated into the database, it must useful for court key performance indicators (KPIs).
Annually, the SPC issues many reference (typical) cases, as selected by various divisions of the SPC and in connection with a variety of events. My 2022 blogpost lists about ten different types of regularly issued typical cases. It is clear that guiding cases are the most persuasive and these People’s Court Case Database cases are highly persuasive, but that still leaves many SPC typical cases that need sorting. One friend knowledgeable about the selection process for typical (model) and guiding cases, particularly in the intellectual property (IP) field, classified SPC Gazette cases as ranking second in prestige, behind guiding cases. The friend described the top ten and the fifty typical IP cases issued annually as “the Oscars.” The friend viewed the ten top cases as “best actors and actresses,” and the fifty typical ones as the “best supporting roles.” The friend noted that the digests (要旨) issued by the SPC IP Court are not as influential as guiding cases. My understanding is that lower court IP judges would consider them when deciding cases because they are statements of the view of the SPC IP Court on that particular issue.
A second issue for all these typical cases is that there does not seem to be a mechanism for reviewing previously issued typical cases to determine whether the case is still valid. The SPC published a four-part five-volume set of typical cases（最高人民法院发布的典型案例汇编 2009-2021), pictured below. These volumes only include cases published in the SPC Gazette and the SPC’s official website, therefore not including the cases in the journals published by the operational divisions or the National Judges College. It is unclear whether the SPC plans to incorporate the journal cases into the People’s Courts Case Database. That would require a significant amount of personnel time to review those prior typical cases for timeliness and consistency.
Third, the approval process described above will take some time, which means that cutting-edge cases will be found in China Judgments Online rather than this database.
So the database has not yet resolved the problems identified last year but has provided an authoritative database to check.
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Many thanks to an anonymous peer reviewer for reviewing several drafts of this blogpost.
What is the Supreme People’s Court’s (SPC’s) contribution to developing the national strategy of “foreign-related rule of law (涉外法治)”? My forthcoming article in China Law & Society Review sets out a broad framework for understanding what it is, but inevitably, like all academic works, the specific details will be out of date as soon as it is published. It can only be current as of the last time I was able to make substantial amendments, that is, in November 2023. The slow process of finalizing the article (particularly the references) meant that I could incorporate references to the Tenth Politburo Study Session on Foreign-Related Rule of Law. Since then, the SPC has continued to contribute to the national strategy of developing foreign-related rule of law. This blogpost flags those recent developments without duplicating what others have already written. The recent developments include the SPC issuing the following since October, 2023:
A September 2023 press release issued along with the fourth group of Belt & Road typical cases (为高质量共建“一带一路”提供有力司法服务和保障——最高人民法院民四庭负责人就发布第四批涉“一带一路”建设典型案例相关问题答记者问) flagged all of these judicial interpretations,. They were described in this October 2023 blogpost as “forthcoming attractions.”
The interpretation specifies that the burden is on the parties to provide the content of the chosen law if they have a choice-of-law agreement, but it falls to the court to ascertain foreign law if the parties lack a choice-of-law agreement. Other provisions are intended to change the practice of Chinese courts deciding that they cannot ascertain foreign law and it is preferable to apply Chinese law instead. Please see this Library of Congress article for further details.
Typical cases are a type of SPC soft law. They are a tool by which the SPC seeks to unify the judgment (adjudication) standards of the Chinese courts. They are a means by which the SPC seeks to harmonize the decisions of the Chinese courts to be consistent with SPC policy (or said another way, strengthen the firm guiding hand of the SPC). That guidance can relate to substantive or procedural issues, because the issues that come before the Chinese courts far outpace the infrastructure of existing law, including judicial interpretations. The number of typical cases relating to arbitration matters therefore also signals that China’s Arbitration Law is insufficient for the current needs of the Chinese courts. Additionally, given the role of the SPC in social governance, typical cases also enable the SPC to do its part to further the latest Party policy, in this instance, the development (construction) of foreign-related rule of law. As highlighted several times on this blog, SPC President Zhang Jun appears to favor using typical cases to guide the lower courts and I expect this website (currently down) is the one that will be repurposed to make various types of typical cases more easily available.
The document that can be so classified is the December, 2023 Work Guidelines of the Supreme People’s Court for the One-Stop Diversified International Commercial Dispute Resolution Platform (for Trial Implementation) (One-Stop Platform Guidelines). Since the China International Commercial Court was established, the SPC has stressed (and the academic world far more!) the innovation of the “One-Stop Platform.” This new document draws together SPC and lower court experience and thinking on how a “One-Stop Platform” should operate in the Chinese context. Among other innovations, it has detailed provisions concerning neutral evaluation. The incorporation of neutral evaluation into the One-Stop Platform Guidelines shows that the SPC (and the Chinese judicial system more generally) continues to make reference to “beneficial foreign/international experience.”
As flagged in several press conferences or press releases issued in recent months, the issuance of these judicial interpretations, typical cases, and other judicial normative documents is linked to the importance the Party leadership places on developing foreign-related rule of law, as illustrated by the November 2023 Politburo study session. As shown by my 1993 article on the SPC, foreign-related matters were historically at the margins of its work. One old-timer described the #4 Civil Division (the division handling foreign-related civil and commercial matters) to me as “小众“–niche–with a relatively small number of judges and responsible for a more limited range of issues, in comparison to the other SPC civil divisions.
These recent SPC documents taken together, provide insights into the important role of the SPC in developing Chinese law, in this case, foreign-related law–because many important provisions are missing from National People’s Congress (+ its Standing Committee) legislation, it falls to the SPC, through judicial interpretations, typical cases, and documents such as Meeting Minutes/Conference Summaries to fill in the gaps that enable the courts and the Chinese legal system to operate. It should be clear that the SPC is providing some of the basic building blocks for the construction (development) of foreign-related rule of law.
Happy Year of the Dragon to all readers and followers!
In December, 2023, the Supreme People’s Court (SPC)’s glossy magazine China Trial (中国审判) featured the top 10 keywords of the people’s courts for 2023 (人民法院十大关键词). Provincial high court WeChat public accounts republished the article in a way that enabled those courts to incorporate examples from courts under their jurisdiction and to link to further commentary on the Xuexi Qiangguo (学习强国) platform. As the followers of this blog could anticipate, each keyword is illustrated with Xi Jinping quotations, important speeches by SPC President Zhang Jun, illustrations of model court practice, and commentary by leading academics. “For the avoidance of doubt,” the invited commentary by leading academics is not meant as scholarly analysis. The article itself and the invited commentary are worded in New Era official discourse. The intent is to weave these phrases into a summary of 2023 and forward-looking SPC policy. These keywords (or at least their spirit) are found in the report on the recently concluded National Conference of Higher Court Presidents. That report (2024 National Court Presidents Conference report) focuses on 2024 goals.
Who is the audience for this China Trial article? I surmise it is those in political and court leadership positions. Line judges are more pragmatic. They have learned the significance of these keywords through Party meetings but are more focused on their cases.
The readers of this blog could anticipate a version of this phrase would rank first. Dean Xu Shenjian of the China University of Political Science and Law explained what this means. (Among Dean Xu’s many writings is a forthcoming book with one of my colleagues at the Peking University School of Transnational Law on legal ethics in Greater China.)
Dean Xu said that this phrase has become the core concept of the work of the courts. This concept not only emphasizes the unity of political responsibility and legal responsibility but also highlights the important position of judicial work within the framework of the comprehensive rule of law. This requires that the court’s work be integrated into the country’s major political principles and social governance. Court work is professional work with a strong political nature, and it is also political work with a strong professional nature. He said that courts should strive to organically unify political thinking and adhere to the rule of law in specific judicial practices.
Comment: This principle has been stressed by SPC President Zhang Jun since he assumed office and post 19th Party Congress, by former SPC President Zhou Qiang. This principle can be expected to be incorporated into the forthcoming sixth five-year court reform plan and underlies court practice at all levels. This blog has previously mentioned this (see here, here, and here, for example) and my forthcoming article in China Law & Society Review will also discuss this. It is emphasized in the 2024 National Court Presidents Conference report.
The second-ranking keyword is “active justice.” Professor Zhang Qi, retired Peking University law professor of legal theory, was invited to explain this phrase. He said active justice means that in the New Era, courts will implement the central government’s decision-making and deployment, based on its judicial functions, transform judicial concepts, adhere to a proactive judiciary that actively assumes its responsibilities, and provide powerful judicial services and guarantees for Chinese-style modernization.
Comment: I flagged this keyword in several blogposts in 2023 and my forthcoming article also discusses this. As Judge Liu Shude recently gave a long presentation on active justice and reasoning in judicial documents, I surmise that this phrase will be further developed during President Zhang Jun’s tenure. This principle can be expected to be incorporated into the forthcoming SPC report to the National People’s Congress and in the new judicial reform outline plan. It is mentioned several times in the 2024 National Court Presidents Conference report.
According to the explanation of this keyword, the core concept is that the rule of law must not only focus on the back end to treat existing diseases but also focus on the front end to treat future diseases…” To solve this problem, the people’s courts must actively integrate into national and social governance, insist on handling one case and resolving a group.
Comment: As several blogposts have identified, these principles have been stressed by SPC President Zhang Jun, particularly using typical cases to resolve multiple cases. Post-19th Party Congress, former SPC President Zhou Qiang stressed these as well, as they are part of Xi Jinping legal thought.
This blog has not used this phrase, although it has identified aspects of linked policies. Professor Wang Kai of Beihang University Law School explained this as follows. Under the unified leadership of the Party, administrative and judicial powers are designed to protect the fundamental interests of the people. Therefore, in judicial work, the judiciary must form a positive and working relationship with administrative organs, jointly promote strict law enforcement, and fair administration of justice.
Comment: Cooperation and harmonization of approaches between the judiciary and administrative authorities have been stressed since 2022, if not earlier. The fact that it is included as a top keyword signals that this will be further developed. Although I haven’t written about this yet, I have pointed this trend to those working in specific regulatory areas, such as intellectual property law (see this joint policy document issued by the SPC and the Intellectual Property Administration and the 2022 Opinions on Providing Judicial Services and Safeguards for Accelerating the Construction of a Unified National Market.
The core of this phrase is to encourage judges to put themselves in the shoes of litigants. The comments of Professor Xiong Qiuhong of the China University of Political Science and Law (previously seconded to the SPC’s judicial reform office, and almost 20 years ago, a Yale Law School visiting scholar), provided further analysis that provides a glimpse into official assessments of public perceptions about the judicial system. She said that “litigants often file lawsuits out of necessity and sometimes have doubts about whether judicial officers can administer justice impartially. If judicial personnel can put themselves in others’ shoes and engage in judicial trials with the concept of “if I am suing”, listen carefully to the demands of the parties, take their views seriously, and patiently watch every word and deed of the parties so that the parties can feel the process of participating in the litigation. When they feel that they are taken seriously and that their active participation can effectively affect the outcome of litigation, they can reduce or even eliminate the doubts of the parties and build trust in judicial fairness.”
Comment: Professor Xiong’s comments provide a semi-official assessment of public perceptions of the judiciary. This phrase is mentioned in the 2024 National Court Presidents Conference report.
Professor Xiong Yuemin (熊跃敏) of Beijing Normal University’s law school focused on the revision of the judicial performance indicator system when explaining the significance of this phrase. She said that establishing an improved set of trial management indicator systems that are consistent with requirements for the people’s courts to thoroughly implement Xi Jinping’s thought on the rule of law and is important to promote the modernization of trial work through the modernization of trial management.
Comment: I had flagged this in my NYU article. When I raised this reform with a well-known scholar of China’s court system, he responded with a link to Goodhart’s Law: “when a measure becomes a target, it ceases to be a good measure.” As explained in this article: “In other words, when we use a measure to reward performance, we provide an incentive to manipulate the measure in order to receive the reward. This can sometimes result in actions that actually reduce the effectiveness of the measured system while paradoxically improving the measurement of system performance.”
This phrase is further expanded in the 2024 National Court Presidents Conference report to incorporate both political and substantive aspects.
Based on discussions with judges in local courts (and research), letters and visits work has become much more important in the local courts, with the stress on resolving the underlying issue (linking to the ongoing theme of “resolving disputes at source” (see keyword #3) and the greater importance of letters and visits (Xinfang) work nationally. The experience of some friends (and former students) who are working or have worked in local courts is that petitioners can be very strategic in how they petition, with keen sensibilities about extracting the maximum benefits from petitioning.
The spirit of this phrase can be found in the 2024 National Court Presidents Conference report.
The explanation of “one network” links to a national conference at the National Judges College, at which President Zhang Jun spoke. The intent appears to create a unified network for the courts, planned and implemented by the SPC, which will enable unified data collection. One of the provincial court presidents revealed in national court media what has been said in scholarship, that digitalization of the courts is insufficiently coordinated, leading to inconsistencies, duplication, and wasted resources.
This section mentioned that the SPC will proactively strengthen cooperation with other law enforcement and judicial agencies to open up “data islands” and achieve information sharing.
Comment: It is unclear what the single network to which President Zhang Jun referred in that speech incorporates a single network for judicial decisions much discussed in both the domestic and international press. The lack of coordination and wasted resources in the digitalization of the courts is not surprising. I would be surprised if the increased data sharing with other institutions goes smoothly, based on the SPC’s experience in linking its system with the Ministry of Justice for dealing with international judicial assistance matters.
The 2024 National Court Presidents Conference report contains a summary of the latest policy on China Judgments Online, further developed in this notice:
持续深化司法公开，加大裁判文书上网力度，妥善解决文书网使用效果不佳等问题，平衡好文书公开与当事人合法权利、隐私保护之间的关系，加强人民法院案例库建设，更优更实为司法审判优质高效服务，为社会公众学法、专家学者科研、律师办案服务。Continue to deepen judicial disclosure, increase efforts to make judgment documents online, properly solve problems such as poor usability of the Judgments website, balance the relationship between disclosing court documents and the parties’ legal rights and privacy protection, strengthen the construction of the people’s court case database, and make it better and more practical to provide high-quality and efficient services for judicial trials, as well as legal services for the public, scientific research by experts and scholars, and case handling by lawyers.
The explanation of this phrase links to two of the important SPC events in 2023–the conclusion of the pilot on the reform of the four levels of the Chinese courts and a related notice specifying the types of cases that lower courts should transfer to higher-level courts and a new system of guidance by court leaders that SPC President Zhang Jun unveiled in early September 2023, entitled “review (阅核)” piloted in some courts. (For those who understand Chinese, I recommend the four-minute video of President Zhang embedded in this WeChat article, in which he explains the difference between review and approval (审批). For those who do not, a brief glimpse of the video may reveal some differences between Chinese official judgecraft and that elsewhere in the world.)
Comment: Both events are linked to evolving policies under President Zhang Jun promoting guidance by higher-level courts of lower-level courts and guidance by senior judges of ordinary judges. One of the important reforms of the 4th Five-Year Judicial Reform Plan Outline was increasing the scope of judicial autonomy, while significantly increasing judicial accountability/responsibility. The fact that a senior academic published an article in People’s Court Daily to promote the review system in late November 2023 may signal a repurposed approval system for judicial decisions, in the forthcoming Sixth Five-Year Judicial Reform Plan Outline.
Comment: Although I have not previously written about this, I have been monitoring the development of the review system since that WeChat post was made public. This phrase is developed in one sentence in the 2024 National Court Presidents Conference report and is characterized as a policy requirement of the SPC (最高法关于阅核工作的意见要求), focusing on the supervisory responsibilities of senior judges.
Investigation and research is a phrase that has its roots in Mao Zedong thought, but which Xi Jinping has further developed (see this webpage with his important remarks). As explained in this section, it is not only about deeply understanding problems but rather coming up with “prescriptions” to solve them, therefore linking with keyword #3.
Comment: I have an extended discussion of this in my NYU article.
These ten keywords provide signals concerning the reshaping of the Chinese judiciary under the leadership of President Zhang Jun. It can be expected that the forthcoming sixth five-year judicial reform plan will reflect these keywords and their related themes. As can be seen, for the most part, they are incorporated into the goals for 2024. From these ten keywords and the 2024 National Court Presidents Conference report, further details concerning President Zhang Jun’s policies can be seen. The repurposing of the phrase “four modernization” is highlighted in that report: “promote the formation of the “four modernizations” work layout of trial concepts, mechanisms, systems, and management (推进形成审判理念、机制、体系、管理“四个现代化”的工作布局).
From these ten keywords and the National Court President Conference report, we can see one aspect of the ongoing complex evolution of China’s judicial system. When Dean Jiang Huiling spoke to my class in 2022, he commented that “in the current arrangement–in the Zhengfa (政法) reforms, Chinese characteristics have a great deal of weight and also in the reconstruction of the legal system. Although China has learned a great deal from other countries, China has to go on its own way, since it has its own history, political situation, and historical stage and there is a change in the international situation.” We are gradually seeing where China is “going its own way” and where developments are harmonized internationally.
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Many thanks to my readers for their patience these past several months while I have focused on finalizing my “neverending article” for publication and packing up several decades of books housed in my (former) office at Hong Kong University. A special thank you is due to those at Hong Kong University Law Faculty who made that office possible.
A separate special thank you is due to the two anonymous peer reviewers of this blogpost, particularly the person who called my attention to the repurposing of “four modernizations.”
If any readers have alternative translation suggestions, please contact me through the comment function or by email.
In November 2023, the Supreme People’s Court (SPC) issued a judicial interpretation intended to encourage and standardize the way that the courts issue judicial suggestions (advice) (司法建议), entitled Provisions of the SPC on Several Issues Concerning Comprehensive Judicial Advice Work (Judicial Advice Work Judicial Interpretation) (最高人民法院关于综合治理类司法建议工作若干问题的规定). For those in jurisdictions in which the SPC’s official website is inaccessible, see this link. When a translation becomes available, I will post it. As a judicial interpretation, its provisions are binding on the lower courts, unlike its predecessor 2012 and 2007 documents. Judicial suggestions (advice), the subject of this recent law review article (with detailed historical background), and promoted in these model cases about which I wrote this summer, are often issued in the context of litigation or after a court reviews a group of disputes. As illustrated by those model cases, it is a function being reinvigorated under President Zhang Jun. It is mentioned briefly in the Civil Procedure and Administrative Litigation Laws but not in the Organic Law of the People’s Courts. Now, as in the era of the Wang Shengjun presidency of the SPC, it is linked to active justice. It is also linked with resolving disputes at source, and the courts participating in social governance. As previously mentioned, resolving disputes at source appears to be derived from Chinese medicine philosophy in seeking to resolve the root cause of disputes by using the data, insights, and multiple functions of the courts to that end. For those interested in comparisons and the possible impact of President Zhang Jun’s Supreme People’s Procuratorate (SPP) experience on the SPC, the Supreme People’s Procuratorate updated its regulations on procuratorial suggestions in 2018. It is yet another function of the Chinese courts that has its roots in the Soviet system.
This quick blogpost flags what is new, the issues to which the new judicial interpretation responds, and places the interpretation in its larger context.
The Judicial Advice Judicial Interpretation recasts its content in the language of Xi Jinping New Era political-legal jargon, in contrast to its predecessor document, which dates from 2012 and reflects the political-legal jargon of the period. However, in my view, that would be insufficient to merit a judicial interpretation. Given that judicial advice of a particular type has become a priority under President Zhang Jun, the judicial interpretation is intended to guide other divisions and entities within the SPC and the lower courts to provide judicial advice that better reflects SPC leadership priorities. It therefore:
There is no requirement of greater transparency but some local courts have posted some information about their judicial advice. The Shanghai Maritime Court is one court that posts judicial advice and responses, some other courts issue more limited information.
Surmising from the article published by the drafters of the interpretation recently in the SPC journal Journal of Applied Jurisprudence (the understanding and application), all of whom are affiliated with the SPC’s Research Office, that office took the lead in drafting this interpretation. It is to be expected that the Research Office took the lead because it often deals with cross-institutional issues.
I derive the comments in this section from Ms. Dou Xiaohong’s recent article in the National Judges College academic journal Journal of Law Application (法律适用). She did a deep dive into several thousand items of judicial advice issued in province “S” over the last several years and a more limited number from other provinces and did some cross-jurisdiction comparison. Some of the comparisons work better than others, but it does not take away from the main focus of the article. She works in the Research Office of the Sichuan Provincial Higher People’s Court so “S” likely refers to Sichuan. Presumably, the drafters of the judicial interpretation were aware of her article. She characterizes judicial advice as a form of soft law governance. She found (among other points):
Ms. Dou makes a number of suggestions, not all of which the drafters of the judicial interpretation incorporated:
The promotion of higher quality judicial advice (suggestions) through the issuance of this judicial interpretation is another example of the development of the Chinese courts in the Xi Jinping New Era, post the 2019 Zhengfa (political-legal) reforms, stressing the role of the courts in social governance. Unlike some of the other aspects of “active justice,” judicial advice has its roots in legislation, although it is not mentioned in the Organic Law of the People’s Courts. This interpretation highlights a function of the Chinese courts that has existed for many years but has more recently become more important to SPC leadership. Transparency concerning judicial advice is uneven throughout the courts, and it is unclear the extent to which the SPC itself provides judicial suggestions. Lower court practice appears to vary. It appears from Ms. Dou’s article that many lower court judges are more focused on closing cases than issuing soft law judicial advice and providing advice for the sake of meeting a performance target. However, it may also depend on the subject of the judicial advice and whether the recipient perceives the advice provided by the courts as useful, as some local judges have mentioned to me that well-targeted judicial advice has led to inter-institutional discussions. The requirement of “listening to the views” of the entity that is to receive the advice (i.e. receiving their assent) is likely to result in fewer items of judicial advice issued, as courts are likely to consider the procedure too troublesome. However, we will need to wait for the revamped performance indicators under discussion to be released to understand better what the longer-term implications of this judicial interpretation are likely to be.
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Many thanks to those who commented on an earlier draft of this blogpost.
I am honored to have contributed a short essay to the New York University School of Law’s U.S. Asia Law Institute Perspectives blog, entitled New Directions for the Supreme People’s Court? Many thanks to those who contributed to this essay in any way. Special thanks are due to the many Chinese judges (and other court staff) with whom I have had shorter or longer conversations since the border reopened earlier this year, the people who commented on earlier drafts of the essay, and Katherine Wilhelm for her skillful editing!
This is my third contribution to the Perspectives blog. In 2022, I contributed Decoding the Supreme People’s Court’s Services and Safeguards Opinions and in 2021 Why I Research China’s Supreme People’s Court.
For those who are not familiar with my long-term interest in the Supreme People’s Court, as the 2021 essay begins, “some say it is my fate in life (缘分) to research China’s Supreme People’s Court (SPC). I was set on this unlikely path in the late 1980s, when I was introduced to a series of Chinese judges who were open enough to meet with a young American and answer my many questions about the epic changes just beginning at their courts. One meeting led to another, and eventually enabled me to write my 1993 article, “The Supreme People’s Court of the People’s Republic of China,” [available here] the first systematic study of the court by a scholar from inside or outside of China.
At the end of September (2023) the Supreme People’s Court (SPC) issued its fourth group of Belt & Road (BRI) Typical /Model /Exemplary ) (this post will use the translation “typical”) Cases (第四批涉“一带一路”建设典型案例) (see an alternative link in case the official website is unavailable). An English translation is available here. Along with the cases, the SPC issued a press release in the form of answers by a responsible person of the SPC’s #4 Civil Division to a reporter’s questions (为高质量共建“一带一路”提供有力司法服务和保障——最高人民法院民四庭负责人就发布第四批涉“一带一路”建设典型案例相关问题答记者问).
“For the avoidance of doubt,” the points made by these typical cases (please see last year’s blogpost for a refresher on typical cases) apply to all types of foreign-related cases, whether or not they involve the BRI in some way. Including “BRI” in the title highlights that these cases contribute to supporting the BRI (on the 10th anniversary of the strategy) and developing (“constructing” 建设) “foreign-related rule of law.” I’ll make several quick points about the cases and derive some useful information from the press release.
This group of 12 typical cases includes:
A 2022 blogpost explains the selection process. I’ll leave the discussion of the implications of these cases to the law firms, some scholars, and some other websites and focus on the takeaways from the press release. The press release updates last year’s report on the SPC’s work in foreign-related cases in support of related policies.
The press release ties the work of the SPC to the January 2018 Party Central Committee and State Council General Office policy document on BRI dispute resolution (summarized here and discussed further in my “neverending article”) and flags that the SPC has conscientiously implemented the decisions and arrangements of the Party Central Committee. The one-year gap between the third and fourth groups of typical BRI cases signals that the SPC leadership considers this a priority area. The phrase at the beginning of the press release (“providing powerful judicial services and guarantees (safeguards) for high-quality joint construction of the “Belt and Road”) signals the continuing importance of providing judicial “services and safeguards” for major national strategies, including the BRI, whether in the form of a document or typical cases.
The press release mentions the China International Commercial Court (CICC), its expert committee, and the establishment of local international commercial courts. The CICC has accepted a total of 27 international commercial cases, 17 of which have been concluded. A judgment was posted in July on the Chinese version of the CICC website but has yet to be translated.
Although the CICC is often linked to the BRI, the cases that the CICC has accepted include parties from jurisdictions that are not participating in the BRI, such as the United States. Among the typical cases released this time, one is a CICC case. The press release notes that the SPC will revise the CICC-related judicial interpretations to reflect the amendments to the foreign-related section of the Civil Procedure Law.
The BRI-related services and safeguards policy documents, about which I have previously written (and about which I have more to say in the neverending article) served as the policy framework for establishing local international commercial courts. The SPC has approved twelve local courts in Suzhou, Beijing, Chengdu, Xiamen, Changchun, Quanzhou, Wuxi, Nanning, Hangzhou, Ningbo, Nanjing, and Qingdao as “international commercial courts (tribunals).” It requires some detective work to determine the jurisdiction of each international commercial court.
The SPC reiterates its accomplishments in establishing a “one-stop” diversified resolution mechanism for international commercial disputes to achieve an organic connection between litigation, arbitration, and mediation. As mentioned in the 2022 report, ten international commercial arbitration institutions and two international commercial mediation institutions are part of the SPC’s “one-stop” mechanism.
On improving the system of applicable rules for foreign-related commercial laws and unifying judicial standards, the spokesperson flagged that the SPC issued the Conference Summary [Meeting Minutes] on Foreign-Related Commercial and Maritime Trial Work (Foreign-Related Commercial & Maritime Law Conference Summary (Chinese and bilingual versions) (see my previous blogpost on the document), setting forth the SPC’s views on 111 issues in foreign-related matters. In my “neverending article,” I describe conference summaries (会议纪要 ) as intermediate documents, issued after courts confront new issues arising from a major policy document or new situation when the approaches of the lower courts need to be harmonized but it is not yet appropriate to issue a judicial interpretation. A book recently published by the drafters of the Foreign-Related Commercial & Maritime Law Conference Summary （《全国法院涉外商事海事审判工作座谈会会议纪要》理解与适用） reveals that after the #4 Civil Division prepared an initial draft, they “broadly sought comments” from relevant SPC departments, relevant State Council ministries and commissions, and selected experts. That means that the document represents a greater consensus of the relevant institutions on the issues addressed than commentators realized.
Additionally, in the past ten years, the SPC has issued guidance on foreign-related matters to the lower courts in the form of judicial interpretations (32), policy documents (9), guiding cases (18), and almost 150 typical cases. These statistics update those set out in the 2022 report.
As mentioned in the 2022 report, the SPC has actively participated in the revision of foreign-related laws such as the Civil Procedure Law (to come into effect next 1 January and the Arbitration Law (amendments ongoing, see this blogpost on the SPC’s contribution). My neverending article has a more extended discussion of this.
The press release flags some “forthcoming attractions” related to the SPC’s foreign-related judicial work.
a. Coming soon is the Interpretation on Several Issues Concerning the Application of the “Law of the People’s Republic of China on the Law Applicable to Foreign-Related Civil Relationships” (2) (关于适用〈中华人民共和国涉外民事关系法律适用法〉若干问题的解释（二）. The spokesperson revealed that the judicial interpretation had already been approved by the SPC’s judicial committee. It incorporates provisions relating to ascertaining foreign laws.
b. As mentioned above, the SPC will revise the CICC-related judicial interpretations to reflect the amendments to the foreign-related part of the Civil Procedure Law. The press release does not mention amending the comprehensive judicial interpretation of the Civil Procedure Law to reflect those amendments, but I surmise those are also being contemplated.
c. A third judicial interpretation, the “Interpretation on Several Issues Concerning the Application of International Treaties and International Practices in the Trial of Foreign-Related Civil and Commercial Cases”（关于审理涉外民商事案件适用国际条约和国际惯例若干问题的解释） is still in draft. Because the original provisions on the application of international treaties in the General Principles of Civil Law were abolished when the Civil Code was promulgated, leaving the rules for the application of international treaties unclear, the SPC is drafting an interpretation to deal with a group of issues. Those include the application of international treaties, the relationship between party autonomy and the application of international treaties, the choice of application of international treaties that are not in force in China, the application of international practices (two typical cases discuss the application of the Uniform Customs & Practice for Documentary Credits (UCP 600) and public order treaty reservations.
2. Databases on foreign law and expertise on foreign law.
With the support of some CICC expert committee members, one of the SPC’s BRI research databases and foreign law ascertainment service agencies, a foreign (non-mainland Chinese)legal database with legislation, international law documents and other legal information on ten ASEAN countries, seven South Asian countries and the ASEAN international organization has been created. Separately another service provider has created a BRI expert legal database. The 2022 report flagged these developments.
3. Judicial materials and training on foreign-related matters
The Supreme People’s Court is compiling a “Compilation of Common Laws and Regulations in Foreign-related Civil and Commercial Matters” to assist new hires and will increase the training and guidance to improve judicial competence on the application of international treaties. Improving judicial training on foreign-related matters has been an ongoing issue. Post-Covid, a number of training programs for judges and judges assistants on foreign-related matters have been held.
The most recent one was a national program, held at the National Judges College, focused on training senior personnel in foreign-related matters, at which Justice Tao Kaiyuan spoke. Those speaking at the program (from the relevant departments) included representatives from the Central Foreign Affairs Commission, the Legislative Affairs Commission under the National People’s Congress Standing Committee, Ministry of Foreign Affairs, Ministry of Commerce, as well (presumably) senior personnel from the SPC’s #4 Civil Division and the International Cooperation Bureau (which deals with treaty negotiation and judicial assistance matters). Local courts that have run such programs include Beijing (with the assistance of the University of International Business and Economics).
4. Judicial Assistance
China has concluded 171 bilateral judicial assistance treaties with 83 countries and has acceded to nearly 30 related international conventions (no change from October, 2022). In contrast to twenty or even ten years ago, the number of judicial assistance matters dealt with by the Chinese courts has increased. The press release mentions improving the quality and efficiency of international judicial assistance such as better cooperation in the cross-border service of judicial documents, cross-border investigation and evidence collection, ascertainment of foreign law, and recognition and enforcement of foreign (extra-territorial) judgments and arbitral awards. This does not yet mean that it is possible for foreign litigators to take depositions in mainland China for foreign court proceedings. Service of process was an issue in this 2022 case in the Southern District of New York.
Although no formal announcement has been made in the Chinese press (of which I am aware), it appears that sometime during the last six months, more likely before early June (2023), the Supreme People’s Court (SPC)’s Judicial Reform Office, or more formally the office of the SPC’s leading small group for judicial reform (最高人民法院司法改革领导小组办公室) ceased to exist as a separate entity. Its work has been assumed by the Research Office. The leading small group that the Judicial Reform Office supported appears to have been disbanded as well. This post provides some comments on the office, some fragments concerning its history, an explanation of the nature of the office and leading small groups, and evidence for reaching the conclusion that the office no longer exists.
Over the past 10 years, this blog has discussed or cited statements or documents issued, reports drafted, and books published by the Supreme People’s Court (SPC)’s Judicial Reform Office. As is visible from the photo above, I have a collection of books edited by that office, many of which I have not yet cited in this blog or my other writings. Some books contain documents, others set out authorized commentary, and others are collections of analytical essays for the most part written by lower court judges. I had intended to draw on some of these materials when writing something more detailed about the drafting of judicial reform measures, setting out my understanding of the drafting process. A number of our Peking University School of Transnational Law students have interned in the Judicial Reform Office. I will now need to wait until I am able to gather enough information about how the new system operates before writing a current and historical description.
The offices of leading small groups are not permanently established, although this one had been in existence for almost twenty years. It is not unusual for them to be abolished and their duties assumed by permanent institutions. The temporary nature of the office may explain why published structure charts of the SPC have never mentioned the Judicial Reform Office. The SPC has other such offices, but this one appears to be the most well-known. Leading small group offices exist in analogous form at the local level as well.
For those who are not aware of the system of “leading small groups,” many exist throughout the Chinese Party and government system to deal with cross-institutional matters, often involving participants from multiple Party and/or state institutions. There seems to be a growing English language scholarly literature on multi-institutional leading small groups, mostly behind publishers’ paywalls, but this detailed summary of leading small groups and affiliated offices by Alice Miller is helpful to those without university library access. The summary explains that “leading small group general offices have dedicated office space, a roster of personnel, and an operating budget for administrative expenses. Although they cannot implement anything on their own, they can levy work on other offices.” My forthcoming (“neverending”) article has a description of the SPC’s Judicial Reform Office levying work on (assigning work to) other SPC offices, divisions, and institutions.
The Judicial Reform Leading Small Group and its supporting office were established in 2006. Although I have not been able to find the document approving its establishment, I assume that it was established to draw together a team of people to focus on judicial reform matters and to coordinate matters across multiple SPC entities, with the lower courts, and with the related Party bureaucracies. The Judicial Reform Leading Small Group had a predecessor entity entitled the SPC Judicial Reform Research Leading Small Group (最高人民法院司法改革研究领导小组). The China Institute of Applied Jurisprudence provided institutional support for the predecessor entity. I assume that the establishment of the SPC’s Judicial Reform Leading Small Group and its predecessor are linked to the 2003 establishment of the Party’s Central Judicial System Reform Leading Small Group (中央司法体制改革领导小组), which has (had?) members from multiple Party and state institutions. That Leading Small Group also has (had) an affiliated office (中央司法体制改革领导小组办公室). I have not seen public mention of the Party’s Central Judicial System Reform Leading Small Group in the past year or more, so I assume it has been disbanded and its functions subsumed by some part of the Central Political-Legal Committee/Commission.
Prior to 2003, judicial reform research at the SPC was conducted and coordinated by the Research Office. That office often deals with SPC cross-institutional matters, such as the transition to the Civil Code. So this development appears to be an instance of the SPC either going back to the “good old days” or as a former SPC judge recently wrote about the end of a piloted judicial reform, “restoring the original condition (恢复原状).”
During the March 2023 meeting of the National People’s Congress, He Fan, previously mentioned on this blog, spoke to the press about judicial reform, as a responsible person of the Judicial Reform Office (最高人民法院司法改革领导小组办公室负责人). In September of this year, public statements concerning judicial reform (in this case, the termination of the piloted reform of the four levels of the courts) were issued by a responsible person of the Research Office. A related document issued in June (2023) did not mention the Judicial Reform Office or the Judicial Reform Leading Small Group. When He Fan spoke at Fudan University Law School in September, he was described as a vice director of the Research Office and the former responsible person of the Judicial Reform Office (最高人民法院研究室副主任、原司法改革办公室负责人何帆博士). So I surmise from this that sometime between March and June, the Judicial Reform Office was abolished and its responsibilities and personnel were transferred to the Research Office.
I will be monitoring this change (to the extent possible). Questions that come to mind include the following. What will being located in the Research Office mean for judicial reform matters? Will the staff take on additional tasks in addition to judicial reform matters? What will this mean for the analysis of the impact of prior judicial reforms? What will this mean for the drafting of the sixth judicial reform plan outline? Will this mean more or fewer staff resources? When the plan is issued, will we on the outside of the Chinese court system notice the impact of this bureaucratic change? And as several highly knowledgeable persons have asked me in recent weeks, how should the judicial reforms of the last ten years be objectively assessed?
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Many thanks to the knowledgeable persons who contributed to this blogpost. Those with additional information or corrections should contact me. My apologies to my patient followers for the long gap between blogposts. but I have spent much of the last two months revising my “endless” long article for publication, as it needed to be updated to reflect recent changes. This change requires an additional update. I plan to do several more analytical blogposts in the upcoming months, but use more of my time putting together my research, as highlighted earlier this year.
In late May of this year (2023), the Supreme People’s Court (SPC) issued a set of typical cases on resolving real estate and construction disputes at their source provided by the SPC’s #6 Circuit Court (the circuit court covering the northwest provinces and autonomous regions), entitled “Typical Cases of Litigation Source Governance in the field of Real Estate and Construction Projects in the Circuit Courts area (巡回区房地产及建设工程领域诉源治理典型案例). These typical cases have not received their due attention outside the Chinese court system. They are helpful for understanding how the Chinese court system is evolving under the leadership of SPC President Zhang Jun. These ten typical cases are examples of court practices that the SPC has provided to lower courts for guidance. The guidance focuses on two principal areas: how to implement properly the requirements of President Zhang Jun and the SPC’s Party group to serve national and social governance by resolving disputes at their source (linking to the General Secretary’s important instructions and related documents; and second, how to use “active justice” (能动司法) to achieve these objectives.
As I flagged in May of this year, President Zhang Jun has revived the concept of “active justice.” In that same blogpost and in earlier ones, I mentioned that resolving disputes at their source has become an important task for the Chinese courts. The cases weave together these policies in one perfectly designed package.
These cases also tell a story about how active justice and resolving disputes at their source can involve the courts undertaking some functions that should be left to the lawyers.
These ten cases are not accounts of specific court cases but rather are examples of exemplary practices. This is not the first time that the SPC has issued “typical cases” that are exemplary practices. Since 2017, the judicial reform leading group of the SPC has issued typical cases that illustrate judicial reform practices that provide useful reference materials for other courts.
Resolving disputes at source is a Party policy mentioned briefly in the 2019 fourth plenum of the 19th Party Congress decision, the SPC document implementing that Party Congress decision, and the 5th judicial reform plan document. It was further developed in subsequent documents. It links to the Party’s (and SPC’s) diversified dispute resolution policies. An academic article recently published unfortunately does an inadequate job of defining the policy and describing the policy’s development. Moreover, it incorporates some translation errors. Although both authors are affiliated with prominent academic institutions with serious scholars of the Chinese courts, it appears to this reader that they failed to seek the perspective of some persons with a greater historical perspective on SPC developments. It is another instance in which peer review did not catch inadequacies.
According to several SPC press releases and articles related to these cases, the foundational document for recent SPC and other legal institution policies is a February 2021 Central Committee document (never publicly released) entitled Opinions on Strengthening the Governance of Sources of Litigation and Promoting the Resolution of Sources of Contradictions and Disputes” (关于加强诉源治理推动矛盾纠纷源头化解的意见). I surmise that the document includes the phrase “promote basic level social governance” (促进基层社会治理) and likely “national governance.”
The SPC issued a long and detailed document implementing that Central Committee document in September 2021, entitled Implementing Opinions on Deepening the Building of the One-stop Diversified Dispute Resolution Mechanism of the People’s Courts to Promote the Resolution of Conflicts and Disputes at Their Source (Implementing Opinions on Promoting the Resolution of Disputes at Source)(最高人民法院关于深化人民法院一站式多元解纷机制建设推动矛盾纠 纷源头化解的实施意见 that the authors of the above article missed in their research. One of the many objectives listed in this document is reducing the per capita rate of litigation.
Judge Wu Zhaoxiang, deputy head of the #6 Circuit Court (and also deputy head of the SPC’s Research Office, whom I quoted in my book chapter on the drafting of criminal procedure judicial interpretations), explained why they focused on real estate and construction disputes. He said it is because these disputes are important.
Within the jurisdiction of the 6th Circuit, “there are tens of thousands of lawsuits flooding into the courts every year, with huge amounts of ‘real money’ worth billions at every turn. It involves the development of business of tens of thousands of enterprises and the well-being of the people, and it is related to the country’s economic development, financial security, and social stability.” Judge Wu mentioned that some small, medium-sized, and even large real estate companies have encountered difficulties such as in funding, resulting in failure to hand over buildings in time, causing home buyers to stop paying mortgages, which has attracted a great deal of public attention. Many of the construction cases involve unpaid contractors and actual constructors. [“Actual constructors” (实际施工人) refers to companies /other entities that to which contractors have improperly subcontracted, although they may not have the proper certificates, etc. to do so]. The problem of wage arrears to migrant workers has not been completely resolved, and “collective rights protection incidents of migrant workers” still occur from time to time.
Statistics provided in one report bear this out. Shaanxi courts accepted 13,900 construction dispute cases in 2020, 17,800 cases, in 2021 and 18,400 cases in 2022. The Qinghai courts heard more than 8,400 real estate-related cases and 10,300 construction disputes, the Ningxia courts accepted 36,600 cases in the fields of real estate and construction since 2020, and the courts of the Xinjiang Corps accepted 15,300 real estate and construction cases in the past three years. The same report signaled that real estate and construction disputes are on the rise nationally.
The 6th Circuit labeled the ten typical cases with the lessons to be learned (which I have italicized), similarly to the judicial reform typical cases mentioned above. I further describe the first one, because the points in the typical cases repeat one another:
SPC Vice President Yang Linping, the head of the #6 Circuit Court, repeatedly used the phrase “active justice (能动司法) in her speech announcing the significance of these cases, which was reprinted as an article published in People’s Justice (人民司法). By doing this she is promoting the new spirit of the SPC leadership under President Zhang Jun. Some of that new spirit is putting a new spin on earlier policies, such as resolving disputes at source by promoting mediation, thereby transmitting the Fengqiao Experience. Active justice is another old policy receiving a new spin. “Active justice” appears to be a flexible concept and since President Zhang Jun has started to mention it, those in various levels of courts and substantive areas have used it, generally without a specific definition. From these cases and other sources, it involves the use of less prominent functions of the courts (such as coordination with administrative authorities and liaison with the local Party committee to resolve the core problems of a dispute. Resolving disputes at source appears to be derived from Chinese medicine philosophy in seeking to resolve the root cause of disputes by using the data, insights, and multiple functions of the courts to that end. It also is a flexible concept.
What is little discussed in articles about “active justice” thus far is why the courts are taking on some of the roles they are. For example, one of the exemplary methods promoted in these cases and praised highly was the courts analyzing and summarizing the compliance management risks of large construction companies as derived from relevant litigation and the courts issuing suggestions for corporate compliance management as well as providing judicial suggestions to administrative agencies on how they might better exercise their regulatory authority.
It occurred to me that in many other jurisdictions (I don’t believe the civil or common law distinction makes a difference), it would be either law firms or events sponsored by bar associations (lawyer associations) that would host events aimed at real estate or construction counsel (in law firms, in-house, or with government) to convey their insights about recent litigation. My initial reaction was that the situation might be different in first-tier areas of China, given that lawyers are better educated in those areas and companies have better counsel, and so the courts might be less “active” in providing advice. I, therefore, checked my initial reaction with a highly experienced judge in a first-tier city. He said that no, courts in his municipality also issue judicial suggestions (link is to a related academic article) to enterprises and administrative agencies requiring them to improve some aspect of their operations. It is part of their work to “serve the greater situation” and courts have performance indicators concerning judicial suggestions/advice. “So we take away a lot of business from lawyers by providing free legal advice.”
Like all Chinese Party and state organs, the Supreme People’s Court (SPC) handles requests for instructions (请示), (also translated as requests for advisory opinions). A request for instructions is a type of document submitted by a subordinate to a superior state or Party organ to request instructions or approval. It is one of many discrete matters that reveals the SPC’s bureaucratic operations.
Requests for instructions are incorporated into the 2012 SPC measures on official documents of the people’s courts (人民法院公文处理办法), which implement the Party and government’s regulations on official documents (党政机关公文处理工作条例) (an English translation of the latter can be found here).
This system has existed for many years and has been controversial for at least 40 years, if not longer. When I wrote about the SPC 30 years ago, I devoted several pages to describing the practices concerning requests for instructions, including telephone requests, as they were understood at the time, and also mentioned controversies about the practice. At the time, I was not aware that old regulations concerning the practice existed.
In early June, the SPC released updated procedures on requests for instructions concerning the application of law (Provisions of the Supreme People’s Court on Responding to Requests for Instructions on the Application of Law (Provisions on Requests for Instructions) 最高人民法院关于法律适用问题请示答复的规定), to be implemented from 1 September. The Provisions on Requests for Instructions themselves further reveal some of the details of the SPC’s bureaucratic operations and relate to formal requests, not to informal versions. The Provisions on Requests for Instructions also attach form documents for the lower courts to use, to standardize formats. They are not a judicial interpretation (as can be seen by the document number–fa (法), but a judicial document (司法文件), but the lower courts will implement its provisions. This post will address what is new or different, the matters to which it applies and does not, the Monitor’s views about the reasons for issuing this guidance, and other insights the Provisions provide.
The Provisions on Requests for Instructions apply to requests for instructions on legal issues, not factual issues submitted to the SPC. In general, the requests must be submitted by Higher People’s Court, although for intellectual property cases, first-instance courts may directly submit them to the SPC, which I surmise intended to refer to the SPC’s Intellectual Property Court. These Provisions are related to the reform of the four levels of the Chinese courts and are part of larger reforms focusing more of the work of the SPC on questions of law rather than fact and law.
Article 2 defines the scope of cases that can be submitted:
The Provisions on Requests for Instructions require the judicial (adjudication) committee of the requesting court to have considered the issue and to provide relevant information about that discussion, consistent with requirements relating to retrial cases, discussed here. Additionally, the court must prepare a package of documents, including a search of prior cases, and a report on the issues and reason for the request, the views of the collegial panel that heard the case, and related reports from the lower court, if the request originated below. The standard form document provides guidance to the lower courts on format.
The SPC’s case filing division is designated as the SPC entity to receive the requests and dispatch them. They are required to review the requests within three days and inform the requesting court whether or not the request is accepted or rejected and whether additional materials are needed.
If the issue relates to a judicial interpretation or a judicial regulatory document (规范性文件) etc., the Provisions on Requests for Instructions require that the matter should be sent to the drafting department, the principal department if relevant, or otherwise the apparently relevant division or office. If the relevant division or office does not want to review it, it can negotiate with the case-filing division to take the matter back and cannot request another division or office to take on the matter without case-filing division clearance. The vice president of the SPC in charge of these matters will resolve any disputes.
The division that takes on the request is required to designate one person to be in charge of the request, which is then to be reviewed collectively, in a professional judges meeting, as provided in a 2017 SPC opinion. Several divisions or offices can handle a request together, or views from institutions or experts outside the SPC can be sought if needed. Responses should be in writing and in the name of the SPC itself, but may also be provided over the phone, with a record kept of the response. The requesting court should (must) implement its provisions but not cite the response as the basis for its decision.
The draft response needs to be reviewed by the Research Office before it is submitted to the relevant vice president in charge for approval, and if necessary, the SPC president or judicial committee may consider it. The Provisions on Requests for Instructions impose a two-month deadline on responses, which can be extended.
Transparency is permissive, and if a case is significant, the SPC can request that the case be transferred for a hearing, or otherwise the case be reworked as a guiding case or judicial opinion.
The procedures apply to ordinary requests for instructions concerning legal issues, but not requests for instructions that may arise when a lower court considers one of the four types of cases. Those cases are those that are politically sensitive, difficult, or involve mass cases. The objective is to protect front-line judges from deciding “Four Types of Cases” autonomously in a way that is considered wrong or inconsistent with policy and legal provisions as well as the court leaders above them. The guidance for those cases authorizes court leaders, in those cases, to seek guidance from higher-level courts on the handling of those cases.
The 2017 Opinion mentioned above also provides for other exceptions for requests for instructions in certain major criminal cases.
These Provisions do not apply to the Prior Reporting of the judicial review of arbitration cases, under a separate judicial interpretation.
On why this guidance was issued, I surmise that the SPC leadership has seen many such requests for instructions but judges have delayed responding to them, have forwarded them to other divisions for response, and different parts of the SPC have issued conflicting responses. Additionally, the SPC may have seen many requests involving determinations of facts as well as law. Therefore, I surmise, the SPC leadership charged case-filing and trial management divisions with drafting updated regulations.
Statistics on the number of requests for instructions (either formal or informal) at either the SPC or below are unavailable. A highly experienced Chinese judge commented to me that an important reason for lower court judges to request instructions is to avoid “making mistakes” that may have negative consequences on the individual judges or panel of judges involved or may lead a higher court to reverse the lower court. My own earlier research and that of Professor He Xin found other reasons as well (in the lower-level courts).
As I wrote previously, fifteen or more years ago, there had been proposals even within the SPC for the system to be “proceduralized” or “judicialized–see Dean Jiang’s 2007 article. The second judicial reform plan (see the original Chinese and an English translation) under the late SPC President Xiao Yang), called for reform to the system of reporting and seeking approval/request for instructions system. However, times have changed. The SPC leadership is required to seek instructions on certain matters.
The Provisions require a reply database to be established and higher courts to report the replies they have given on an annual basis to the SPC. Presumably, the higher courts will impose the same requirement on the intermediate courts within their jurisdiction. This is part of the SPC leadership’s push to extend its supervision of the many entities within the SPC and the lower courts. At the level of the SPC, this is one part of leadership efforts to impose more uniformity in the application of law by SPC divisions, offices, and circuit courts. It is one aspect of strengthening the firm guiding hand of the SPC.
A fundamental principle of Chinese bureaucracy over the millennia is that a change in leadership brings a change in policy. As we know, Zhang Jun (张军) is now the president of the Supreme People’s Court (SPC), having taken over from Zhou Qiang in March.
I surmise that President Zhang Jun’s long career involving criminal law matters, starting out at the SPC and with hands-on experience working in many of the most important institutions related to the SPC has shaped his view of the role and appropriate operation of the Chinese courts. I will first add to the English language description of President Zhang’s biography before deriving from several recent articles what I view as an evolving new spirit at the SPC.
Although others have compiled his biography, with one in English and many in Chinese, I will tweak the narrative in English, based on the Chinese biographies, and on what I understand to be the importance of the institution in which (I surmise) he had formative experiences.
The Chinese version of his biography linked above states that between 1985-1995, Zhang Jun worked in the SPC’s Research Office’s General Department and Criminal Law Department as a clerk; then as a deputy judge (助理审判员) and deputy head of the Criminal Law Department; and the head of the Criminal Law Department and judge (审判员), with two years spent outside the SPC, 1990-91 at the Central Party School and in 1991-92, was seconded to the Beijing Haidian District People’s Court as the deputy head of the economic crimes group. His early career progression reflects what I wrote 30 years ago, that “graduates from law schools assigned to the Court as clerks are generally required to work for two years in a basic level and in an intermediate court to give them experience “at the grassroots level,” while their positions [at the SPC] are retained.” From 1995-98, he was promoted to be one of the deputy heads of the Research Office.
I emphasize these apparently minor details because, in my view, these were formative experiences that will have an impact on his leadership of the SPC. His early experience reflects the careers of an entire generation of senior legal specialists, most of whom have retired or have been reallocated to pre-retirement roles at the National People’s Congress (NPC) Standing Committee or the Standing Committee of the Chinese People’s Consultative Committee (CPPCC). He would have been assigned to the SPC (although it is not so stated), and the progression of his career. starting out as a clerk reflects the career path for many (back in the day), as I described in my 1993 article. The quota judge reform (discussed here), has changed the career path for young judicial personnel. The fact that President Zhang started out and spent many years at the SPC’s Research Office means that he is deeply familiar with the making and implementation of judicial policy, particularly criminal law (and procedure) policy. I mean policy broadly.
This gives me an opportunity to flag the role of the SPC’s Research Office. It is a special institution within the SPC, designated as a comprehensive operational department (综合业务部门), which one former staff member described to me as the “Brains” of the SPC. At the time that President Zhang was assigned to the office, the China Institute for Applied Jurisprudence had not yet been established, so applied research would have been done by the Research Office. As can be derived from multiple earlier blogposts, it is closely involved with the drafting of judicial policy and interpretations, as well as Hong Kong and Macau-related and juvenile-related judicial matters. The Research Office is the gatekeeper for reviewing proposals for new or amended judicial interpretations, as well as examining and coordinating the drafting of judicial interpretations. It also acts as the liaison when other central institutions forward their draft legislation and draft judicial interpretations to the SPC for comments, coordinating the SPC’s response with other divisions and offices, with a knowledgeable person noting to me earlier that “the view of the Research Office prevails.” It appears to have an analogous role in the drafting of judicial policy documents. I noted earlier that it has an important role in responding to requests for instructions from the lower courts.
A quotation of SPC Senior Judge Yu Tongzhi (previously mentioned in this blog) from his 2020 book, Ten Lessons on Criminal Practice, is relevant in understanding the thinking of Chinese judges working in the area of criminal law and procedure):
talking politics [讲政治] is a basic quality required of a criminal judge [Talking about politics, in a nutshell, means observing and dealing with problems politically. ]. In the past, we often said that criminal adjudication [trials] was a “knife handle”（刀把子）[tool of the Party], now this slogan is used less, but the function of criminal trials as a “knife handle” has never disappeared and cannot disappear. Of course there is no contradiction with strengthening the protection of human rights. Now Central leaders repeatedly say: the primary responsibility of the entire political-legal system is to safeguard political security, not only criminal adjudication and not only the adjudication work of the courts…
Judges from the SPC down to the local district courts (and the Monitor as well) are observing SPC media for signals of changes in policy. Gradually President Zhang Jun’s priorities will become clear to those of us outside the System and we will see which of Zhou Qiang’s initiatives will remain vibrant. A number of President Zhang Jun’s talks and visits have been made public–the purpose is to inform those in and outside the System of the spirit of the Chinese courts under new leadership. I’ll identify a few articles that twinkle new, amended, or repurposed policies and priorities.
The first article (and in my view, the most important) is the earliest, 抓实公正与效率 (Seize Justice and Efficiency), in which President Zhang Jun transforms General Secretary/President Xi Jinping’s series of speeches during the Two Sessions, the spirit of the annual Central Political-Legal Commission Conference, and suggestions from NPC and CPPCC deputies into more specific measures for the SPC leadership and correspondingly, the entire court system to implement. The ability to do this well is a crucial skill for any SPC President. According to a subsequent report about President Zhang Jun’s speech at the National Judges College, the themes in this article were transformed into a special training course for local senior court leaders.
Among the themes he stressed were: “serving the overall situation, serving people’s justice, and promoting the political foundation of the party’s governance”, which he characterized as the “duties and missions” of the people’s courts. He did not discuss the broader implications of “serving the overall/greater situation (大局服务).” As I have written a great deal on SPC policy documents issued in the past 10 years and I predicted in this 2022 brief article that the SPC will focus more on issuing policy documents, I will be monitoring SPC official media to see whether any change is visible in the way that judicial policy is transmitted.
President Zhang Jun stressed the themes of “fairness (justice) and efficiency (公正与效率). Promoting fairness/justice, he characterized as promoting substantive fairness, while paying attention to procedural fairness. He said “It is necessary to avoid simply [mechanically] ‘handling of cases according to law.’ It is the people who feel fairness and justice, not ourselves, we need to stress procedural justice…People come to the court to solve problems, not to ‘follow the procedure’. ” The theme of combining substantive and procedural justice is not new in China (there is a robust scholarly literature (including in English) discussing it, with a forthcoming related article by Professors Rachel Stern and Benjamin Liebman, Gao Wenwa, and Wu Xiaohan that I recommend (I was privileged to read a pre-publication draft). The fact that President Zhang Jun raised these themes so early means that they will be emphasized during his term in office.
The second theme that he stressed is improving efficiency, but without an overemphasis on efficiency, which he said would lead to more petitioning. He also encouraged judges to engage in the in-depth analysis of judicial big data, put forward judicial suggestions to relevant departments (see a recent paper on this topic), and promote the strengthening and comprehensive management of resolving disputes at source (mentioned in earlier blogposts).
He flagged ‘handling a typical case and promoting a solution for a group,’ so we can expect continued or greater use of typical (model/exemplary) cases (as discussed earlier). Unsurprisingly, President Zhang Jun reminded court leaders of their dual responsibilities (political and professional matters) and reminded them of the requirement to implement the “three regulations,” that is reporting the interference in the handling of cases, and the failure to report interference. It can be surmised that the incompletely implemented judicial reform of Chinese court finances, along with the deterioration of local public finances means that courts are under even more pressure to protect local interests. President Zhang Jun reminded judges that these are needed to promote an incorrupt judiciary and signaled that disciplinary inspection and supervision departments should strengthen supervision. I surmise that the SPC itself will be a target of heightened scrutiny by those institutions, in view of the multiple corruption cases that arose in recent years, especially given the larger number that arose compared to those at the Supreme People’s Procuratorate.
2. 国家法官学院开学第一课——能动司法 (The First Class at the National Judges College–Judicial Activism). Although President Zhang signalled how he thought criminal, civil, and administrative case hearing should be modernized in his speech to newly appointed intermediate and basic level court presidents, the most important message in the speech was about judicial activism (能动司法 but different from Marbury v. Madison–his reference). He said an “active judiciary must strictly perform its duties in accordance with the law. Political effects and social effects extend from legal effects. Sacrificing legal effects to talk about so-called political effects and social effects one-sidedly violates the comprehensive rule of law and loses the legal basis. How can it be good? ” Over 10 years ago, SPC President Wang Shenjun promoted judicial activism (there appears to be a large English-language discussion of this term, mostly behind publishers’ paywalls, but my reading is that President Zhang is repurposing the term. How he is repurposing it remains to be seen.
3. 就是头拱地也要把人民的事办好 “Even if you put your head down, you must do the people’s affairs well.” This article reports on an SPC Party Group related to the ongoing thematic education campaign (主题教育). President Zhang stressed that the courts need to do a better good job in the work of “responding to letters” (把“有信必复”工作做实做好), He said “responding to letters” is a systematic project that requires overall planning and scientific arrangements. He said “‘respond to every letter’ (“有信必复) is to let the people know that the letter has been received and who is handling it in the shortest possible time.” He noted that the petitioning related to litigation, in the final analysis, shows that the courts have not done their work well enough (涉诉信访问题说到底，是法院的工作还有不足).
He reminded his audience that leaders of courts at all levels should take the lead in handling major difficult and complicated cases reflected in letters, promote substantive resolution, and ensure the smooth and orderly development of this work. ”
I take from this that letters and visits work will become much more important in the local courts, with the stress on resolving the underlying issue (linking to the ongoing theme of “resolving disputes at source” and the greater importance of letters and visits (Xinfang) work nationally. It is not likely that court leaders will deal with petitioners in the first instance. Professors He Xin and Feng Yuxin wrote about veteran petitioners in this 2018 article (behind the paywall again). The experience of some friends who are working or have worked in local courts is that petitioners can be very strategic in the way they petition, with keen sensibilities about how to extract the maximum benefits from petitioning. Now retired Justice Hu Yunteng wrote about how to best handle administrative litigation-related petitioning at the #2 Court, explained here. From this recent article in People’s Daily, it appears that the Shenzhen Intermediate Court has led the way in litigation-related petitioning reform, investing much more staff time (I surmise including judges) and creating a platform for responding to visits, calls, and letters from the public, with a 100% rate of responses to calls.
4. 办公室不是清水衙门 “the office isn’t a clear water yamen.” This phrase is a contrast to what I wrote about the SPC 30 years ago. In my 1993 article, I quoted a graduate of a prominent Beijing law school, who told me he and his classmates were reluctant to be assigned to the SPC, and labelled it a “clear water yamen” for the low salary, meager fringe benefits, shabby housing, and rigid internal discipline.” President Zhang warned that judges and judicial personnel face the risk of being “hunted” [sought for improper benefits] in different forms. They must always “adhere to the moral integrity and self-discipline”, keep vigilant…and do not want to be corrupt. “The three regulations [mentioned above, about reporting improper interference] must be strictly enforced.” President Zhang has mentioned team rectification (队伍整顿) several times, linked to the thematic education campaign.
5. 承继人民司法优良传统 以审判工作现代化服务保障中国式现代化 ‘Inheriting the fine traditions of the people’s judiciary, guaranteeing Chinese-style modernization with the modernization of trial work”-this article is an account with his meeting with the old cadres of the SPC. I derive a sense of the new spirit concerning judicial reform from this article. President Zhang said ” a full assessment of the implementation of the judicial reforms undertaken in recent years should be undertaken, the positive aspects should be summarized, and those that have encountered problems in implementation should be deeply improved” (对近些年的司法改革实施情况做一个全面的评估，好的方面要总结，落实中的问题要深化完善). From this, I surmise that we will not see major judicial reforms (see Dean Jiang Huiling’s analysis), but more limited measures to improve the implementation of previous measures and the assessment will be for internal use only, as one for external use (the judicial reform white paper) has already been issued.
This article has flagged only some of the work and priorities of the Chinese courts under President Zhang Jun, in the short time he has been in office. There are many areas of law for which I have not seen related reports. For those matters discussed above, how the work is implemented and priorities are implemented in practice over the next years as well as the impact of these priorities remain to be seen.
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Many thanks to my anonymous peer reviewers for reviewing a draft of this blogpost.
In March of this year, Supreme People’s Court (SPC) Vice President Justice Tao Kaiyuan released, by the standards applicable to senior SPC leaders, forthright public comments about the state of Chinese international commercial dispute resolution and her proposed solutions in an article in the SPC’s glossy journal China Trial (中国审判 ). Based on the article, she appears to continue to have responsibility for the #4 Civil Division, the one focusing on cross-border commercial matters and arbitration. I summarize her comments below. My comments on her assessment are in italics.
Her overall assessment is that there is much to be done to make China a preferred destination for international commercial dispute resolution, as the political leadership would like. I agree and would add that Chinese institutions could improve their soft power in specific, discrete ways by “making reference to the beneficial experience of foreign institutions” (对世界上的优秀法治文明成果要积极吸收借鉴) or considering some new ideas. Why it is so difficult merits extended discussion (elsewhere). It appears to require some legal and institutional flexibility, openness to outsiders and outside practices, and practical thinking about how those ideas or practices could adapted to the Chinese environment. It seems these qualities are in short supply these days when the emphasis is on self-reliance and in judicial reform, “Chinese style and self-owned brand.” Justice Tao draws on the beneficial international experience of several SPC judges to make a suggestion that implies greater institutional flexibility. She does not address the possible legal obstacles, but what is important is the signal that she is considering ideas other than the tried and true.
Justice Tao points to what the international community has done in harmonizing international commercial legal rules through the New York Convention [Convention on the Recognition and Enforcement of Foreign Arbitral Awards], Singapore Convention on Mediation, Hague Judgments Convention, and the Mauritius Convention, as well as the related Model Laws. She notes that China has only ratified and implemented the New York Convention, while the other conventions have not been ratified or lack supporting measures. The Civil Procedure Law and Arbitration Law are being revised, and commercial mediation and investment arbitration legislation are absent.
While I will leave the analysis of the current amendments to the Civil Procedure Law to those who have greater expertise than I, I believe neither the amendments nor the latest socialist education campaign will sway litigants who have selected the New York, English, Hong Kong, or Singapore courts for dispute resolution. It is difficult to know whether issues lie in the original draft proposed by the SPC or have resulted from comments from the NPC’s Legislative Affairs Commission or other institutions involved in commenting on the draft before it was made public.
She recommends “promoting” the revision of the Arbitration Law to incorporate more elements from the Model Law, specify the seat of arbitration, and accelerate the efficiency of the enforcement of arbitral awards. It is not clear what she means by the latter and she may be just expressing a general concern with efficiency.
On the Arbitration Law, it is not apparent whether there has been any progress since I last wrote about the SPC’s contribution to the complicated amendment process in December of last year. From press reports of discussions of the draft and related training sessions, it appears that work is continuing behind the scenes until major points of disagreement are resolved. Other than the summary of the statement that Justice Tao made to the Chinese People’s Political Consultative Conference (CPPCC)’s Committee on Social and Legal Affairs last year, we do not know what views the SPC expressed and the bases for those views. That being said, this is not usual when it relates to the SPC contributing to the drafting or amendment of legislation. As I wrote then, it appears from her summary that views from several different divisions and offices of the SPC are reflected in what she said, including the #4 civil division (responsible for international arbitration matters), #3 civil division (intellectual property and anti-monopoly), and the enforcement bureau.
On the Singapore Mediation Convention and Chinese commercial mediation legislation, this is the second official signal I have seen from the SPC that such a law is needed–the one seen earlier was in the SPC’s Specialized Report on Foreign-Related adjudication work. Drafting such legislation would be within the bureaucratic authority of the Ministry of Justice. It is understood that the Ministry of Justice is communicating with the Ministry of Commerce, to draw on the technical expertise that resides with the Chinese negotiator of the Singapore Mediation Convention and the UNCITRAL Model Law on International Commercial Mediation and International Settlement Agreements Resulting from Mediation and those who worked to support the Chinese negotiator. This 2021 article by Professor Jiang Lili of the China University of Political Science and Law on mediation legislation challenges does not give positive signals about an internationalized commercial mediation law, but that may predate the ongoing communications. Justice Tao flags researching the feasibility of ratifying the Hague Judgments Convention and the “Singapore Mediation Convention”. A team at the Chinese Academy of Social Sciences has already undertaken detailed research on what would be required for China to ratify the Singapore Mediation Convention. I am not aware of serious research related to the possible ratification of the Hague Judgments Convention. Mr. Wen Xiantao of the Ministry of Commerce has recently published a comparison of the New York, Singapore Mediation Convention, and Hague Judgments Convention.
On investment arbitration legislation, Justice Tao suggests that a mechanism should be put in place to enable the recognition and enforcement of Washington Convention (ICSID) awards. She does not detail the mechanics. That means that she has recognized the issue and it may mean others are considering how it could be most easily done.
2. Chinese international commercial dispute resolution institutions lack sufficient voice and are not competitive enough
She points to international commercial courts elsewhere in the world and to international long-term contracts and high-value transactions still mainly being based on the application of Anglo-American law, the dominance of dispute resolution (China-related, presumably) still being in the hands of the United States and the West, and the competitiveness of Chinese institutions being insufficient. Involvement in litigation or arbitration she finds not conducive to the protection of China’s relevant sovereignty, security, development interests and overseas interests. I have heard and read this often and would not expect Justice Tao to state otherwise.
I do not take Justice Tao’s comments as a scientific assessment of where arbitration cases involving Chinese parties are being heard. My own unscientific sample based on inquiries with senior lawyers at major Chinese and international law firms indicates a preference for Hong Kong International Arbitration Centre (HKIAC), Singapore International Arbitration Centre, and ICC International Court of Arbitration clauses, depending on the location of the project. I see a preference in major transactions for English law rather than New York law, reflected in the involvement of the “magic circle” [English] law firms and some of the “red circle” firms representing major SOEs in major arbitration or litigation. She does not specify what she means by “international long-term contracts”–possibly the FIDIC set of construction contracts. On the competitiveness of Chinese institutions, prior to Covid, Chinese institutions were actively marketing themselves, and this practice is starting to come back this year. Chinese dispute resolution institutions might want to do a better job of listening to issues raised by users. This practice seems to be usual among the leading international arbitration institutions, but in my experience, Chinese arbitration institutions have not sufficiently borrowed this practice.
3. Improvements needed with the China International Commercial Court (CICC)
Justice Tao says that the CICC cannot play its intended role because it lacks full-time judges, full-time staff, and its own budget. (I had flagged this in 2018), but such matters are not usually made public. The fact that she mentions this signals deep frustration. The significant number of staff that the SPC borrows from the lower courts also suggests that other central institutions are benefiting from greater headcount in preference to the SPC. Justice Tao also proposes that Hong Kong and Macau part-time judges be permitted to join the CICC.
Whether such judges would meet the requirements set by the Organic Law of the People’s Courts and the Judges Law does not seem to be clear. What is important is the signal that she is considering new ideas. It appears that Justice Tao is looking to the beneficial experience of SPC judges as part-time judges with United Nations institutions.
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Many thanks to the highly knowledgeable peer reviewers, who commented on several earlier drafts of this article.
The Supreme People’s Court Monitor will soon have its 10th birthday. It has transformed my life in many ways. But sorting through 10 years of blogposts and many other materials relating to the Supreme People’s Court (SPC) I have gathered over the past 30 years, takes time. So I plan to post only occasionally from now on and focus my efforts on putting together something on the SPC that is readable and understandable to those outside of China, and that my readers inside the System (体制) consider an accurate analysis of a dynamic, extremely complicated institution.
For those students and others who cite this blog in their writings (see Bluebook, OSCOLA, and 法学引注手册) and might be concerned that this blog is not “peer-reviewed,” please check the particular blogpost. You may find that I have thanked one or more anonymous peer reviewers (anonymous to the reader, not to me).
As the readers of this blog know, Tongji University Law School Dean Jiang Huiling worked at the Supreme People’s Court for over 30 years, and for over 25 of those years, he was involved in judicial reform. He has the most comprehensive and deep understanding of the importance, challenges, and multiple implications of reforming China’s court system.
On 11 January 2023, Dean Jiang spoke on the last 10 years of judicial reform to my judicial reform class at the School of Transnational Law, colleagues and students from Tongji University, and some other visitors. This very delayed blogpost summarizes his presentation and responses to questions from the audience. The references to “we” in the summary are his, as are the unattributed quotations.
A. Roadmap of [the last ]10 Years of Judicial Reform
B. Four Fundamental Reforms
C. Judicial Organizations Reform
D. Procedural Justice Reform
E. Diversified Dispute Resolution
F. Judicial Democracy
G. Other Reforms
H. General Observations
The focus of his presentation was the last ten years of judicial reform (2013-2023), which included two five-year judicial reform plans. He first provided some historical background to the most recent two judicial reform plans, speaking about earlier judicial reform plans from a participant’s perspective.
Many Chinese scholars and some foreign scholars consider that those earlier ones were working method reforms, focusing on efficiency and other matters-they say is it not real judicial reform. He disagrees but says that it was only with the reforms of the last 10 years that structural (radical) reforms were made.
“It’s a new time….”
Dean Jiang focused on four fundamental reforms, giving a quick summary and some comments. I will supplement with scattered comments, some links to some English-language academic articles, and some of my own blogposts.
This is one of the most important reforms. Although the Central Government had sought to improve the quality of judicial personnel (judges and prosecutors) for a long time, they had been treated as ordinary civil servants with ranking. Now they are managed as professional civil servants. He noted that when he was in Taiwan in 2011, Taiwan had done something similar. (The reform is not complete, and the SPC’s website and casual conversation among judges and legal professionals reflect this).
(For those interested in the quota judge system, please see this article by Hong Kong University Faculty of Law Dean Fu Hualing and Zhongshan University Professor Sun Ying. )
He quoted President Xi Jinping’s description of it as “牛鼻子工程”–the nose of the cow project–crucially important. He noted that it is right to punish ethical violations and intentionally wrong judgments. Although this reform provides for more· internal Independence, it comes with strict restrictions and supervision. Jurists, prosecutors legal scholars, and others disagree with this approach. They argue that the reason for continued corruption, miscarriages of justice, and unfairness lies in the lack of reform elsewhere, The focus on judicial responsibility is a politician’s wisdom. Under that system, supervision is more important, and that is the reason for defining “four types of cases.”
See my earlier blogpost on the “four types of cases” and Straton Papagianneas’s article on the use of automated methods of supervision.
He spoke only briefly on this, saying these were needed so that judges were treated as judges.
Delocalizing the Chinese judiciary–local protectionism was criticized by legal scholars and those within the judiciary [not to mention litigants and their lawyers] for many years. Judicial protectionism was terrible for fairness. Officials now characterize judicial power as a central power.
Chinese and foreign scholars consider the first and fourth most important.
See this earlier blogpost on problems with the court funding reform.
These reforms are more technical and less fundamental.
Six Branches in the country. The country is large but only one Supreme Court in Beijing exists. They were established to deal with trans-provincial cases, so that cases involving parties from different provinces, especially when the local government or its entities are a defendant, are heard fairly. He favored the scholars’ proposal of making the circuit courts into a separate tier (or quasi-tier), but that idea was not accepted.
Note my earlier research on the caseload of the SPC Circuit Courts, which found that most cases that these courts considered were applications for retrial, most in administrative cases. This has now changed with the reform to the four levels of the Chinese courts, as discussed here. See this article by the deputy chief of the SPC administrative division and two colleagues.
IPR Courts
Financial Courts
Internet Courts……
He noted that the Internet Court is not officially recognized as a specialized court by the Organic Law of the People’s Courts, but is an innovative action by the Chinese government.
See also Georgetown Law Professor Mark Jia’s article on China’s specialized courts.
“It’s another interesting invention in China.” Virtually all courts in China are based on the corresponding administrative area, so a county court will be established in a county, emphasizing the localized nature of the courts. So in 2015, the Central Government established the following two courts:
Under the situation that judicial appointments and budgets have been transferred to the provincial level, this reform may not be so useful. It is his suggestion that China establishes transregional courts beyond the provincial level. This overlaps with the circuit courts. It is a scholar’s view.
This one has many Chinese characteristics.
This involves the five-eight-ten test. If you have under 50 personnel in your court, you can establish up to give internal organs in your court. If you have between 50-150 personnel, you can establish eight internal organs, and if more than that, you can establish 10 internal organs. This means that it is possible to save some quota (headcount) for personnel [linked to the headcount system of the organizational departments–see here]. But it also pushes local courts in the direction of professional, rather than bureaucratic management.
This is considered a “technical” reform but touches upon fairness, and what President Xi Jinping says about making each person feel fairness in every case.
Both inquisitorial and adversarial systems have the same standards of procedural justice. But in China, traditionally 公检法都是一条龙, the public security, procuratorate, and courts are a production line. “We have a long history in China with this.” They consult with one another and sometimes other bodies coordinate them. Which is the center? In this round of reforms, the Central Government pointed out that the trial, the hearing should be the center in criminal justice. It’s very difficult and the reform is not finished. But we are moving in the right direction.
Case filing reforms, making it easier for a party to file a case.
For judicial efficiency, enabling more cases to be closed in a short period of time, the following reforms were made:
“An old item of reform but a new action taken in recent years.”
“Cylinder or Cone”?
Traditionally the Supreme People’s Court could hear a case within the jurisdiction of a local court. But this is not good for professionalism. So now, the reform is to have the higher courts focus on legal issues and more important issues, that is for the court system to be shaped more like a cone.
See my two blogposts on this reform.
ADR–in China called Diversified Dispute Resolution. This is an efficiency issue. It is also important for Chinese state governance. The courts are a beneficiary of these developments because they resolve more cases.
1. One-stop Litigation Service
2. One-stop Dispute Resolution Service
3. Judicial Platform and Governmental Platform
4. Judicial Confirmation of Mediation Settlements
–we learned from the United States and other countries in designing this. In the US, courts approve a settlement, while in China, we have a confirmation of mediation settlement procedure.
5. Arbitration–In China, we have over 260 arbitration commissions, almost one for each city, with CIETAC, Beijing Arbitration Commission, Shanghai International Arbitration Center, and the Shenzhen Court of International Arbitration being the most prominent. We have learned from overseas in arbitration.
This sometimes makes courts anxious. The president of a court does an annual report and the people’s congress votes on it. If it does not pass by much or does not pass, the court president and the court feel embarrassed. It has happened. What happens if the report does not pass? After two or three months, the court president has an opportunity to report again. It is a type of facilitation.
See my recent blogpost related to people’s congress supervision.
–although the terminology in Chinese is similar to a jury, it is actually more similar to the lay judge system in Europe. It has a long history in China (not as long as Europe), and changed in the last 20 years. Now the people’s congress appoints them on the recommendation of the people’s court.
Very different from people’s congress supervision and he spoke about the rise of commentary on the courts through social media platforms.
The Chinese courts do not do that, it is a function of the National People’s Congress. They have established a committee. This is a big progress, although some scholars think this should be given to a constitutional commission or court, or to the courts. He is not sure which is better. The NPC Standing Committee has recently published its annual report on this. These contain legal judgments. But how should these legal judgments be made? Should they follow some procedures? The legislature is trying to reflect people’s views. The standard between the courts (black-letter rules) and people’s views is different. He hopes there will be some improvement.
The SPC and Supreme People’s Procuratorate both have interpretative power within their area of competence. This is always criticized by NPC deputies, the staff of the NPC, and some scholars because the content is abstract and looks similar to legislation, but it plays an important role in unifying the application of law in the whole country. The judges love it. Without interpretations of law, given the brief provisions of law, it gives judges great discretion, so there is a risk of inconsistent application of law. He is sure judicial interpretations will be there for another decade.
Justice Xiao Yang found another way of interpreting the law-through cases.
The procuratorate disappeared in the former Soviet Union but in China, it is still here. It has found a new way of life with public interest litigation, supervising administrative, civil, and criminal litigation, enabling them to oversee the executive.
The State Council’s Legal Affairs Office has been merged into the Ministry of Justice. And everyone knows that President Xi chairs the Rule of Law Commission and that secretariat is located in the Ministry of Justice.
The Central Government just issued a reform plan.
It is another technical but important reform for the future of the legal profession. We followed the civil law countries in planning pre-career training. I hope we can insist on two years of legal training.
1. The first 5 years vs. the second 5 years–very different. The first five years of reforms are structural or system reform, like the identity of the judges or prosecutors, delocalization…But the second five-year reforms–comprehensive, supplementary reforms–the four fundamental reforms have finished, and we go on to the next. But those reforms and others are not finalized–it is not possible within four or five years to fundamentally change a judicial system. This reform plan is continuing the former plan, plus supplementary reforms. Unfortunately, the Central Government has invested less. This is linked to Covid-19, the unsatisfactory international environment, and the economy—many negative factors.
2. From judicial reform to “Political and legal (政法) reform”–from judicial (司法) to political-legal reform, including reforms to the people’s congress system. The comprehensive, supplementary reforms must fit into the political-legal reforms
3. Step-by-step reform: Waiting for or creating satisfactory conditions for some reforms–only a few provinces have finished the financial reforms, less than half. Reasons– now few meetings to coordinate with other branches on this.
4. How to deal with the halfway reforms and progressing with the Comprehensive supplementary reforms–there should be some evaluation–but there are no formal critical objective evaluations published. How to deal with the halfway reforms.
5. Yes and no to Politics-Driven Reform–the nationwide judicial reforms must be driven by political power. No comprehensive effect is possible without the use of political power. There should be more legal elements in this process.
6. On the Track of Rule of law–how to keep judicial reform on the track of the rule of law.–#5 of Xi Jinping rule of law thought is putting state governance on the track of the rule of law. That will take all legal professionals, foreign scholars, the international community, and internal incentives. This is what is needed to keep judicial reforms on the track of the rule of law.
In the next five or ten years, the judicial reforms will not stop. The pace might be slower. The country has so many difficulties. We hope that the rule of law will help the development of this great country.
He concluded the main part of his presentation by cautioning that these are his views, as a scholar.
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In response to the question concerning which reform is the most important and what obstacles it faces, Dean Jiang said that two are the most important–the centralization of judicial power and the professionalization of judges, so that judges are sufficiently qualified to exercise greater judicial power. Time is a challenge.
A question from one of my students–what about using contract judges to supplement the shortage of judges? A: In UK, they are called part-time judges. But in China, Chinese judges must have 政法专项编制 (political-legal specialized headcount)–in China we have not changed our minds on this–we are concerned about corruption. Perhaps in the next 10 years, we will have part-time judges, more likely borrowed from the executive. Professional ethics is very important.
A second question from one of my students, concerning the constitutionality of the quota judge reform–removing the title of judge from 70,000-80,000 personnel. Dean Jiang said it was a good question and would have been challenging if done in Europe. The Central Government leadership decided, saying that many people were not doing judicial work, but were in the General Office, Research Department, etc. People thought about the legality or constitutionality of this. We didn’t use the word “removal,” but “suspension,” you keep the title of “judge,” but no longer do judicial work. Dean Jiang himself was affected by this reform. He was appointed as a senior judge by the NPC Standing Committee but was working in the Judicial Reform Office. Approximately 360 judges were appointed as quota judges by the SPC. He was not one of them, not a 员额制法官, but still enjoyed the title of “senior judge,” (of the bureau-chief ranking 正局级). If all those judges had continued to be judges, it would have been a disaster for judicial reform, it would have slowed things down. It was a balancing, at the edge of legality/constitutionality. The second question that the student asked was about the accountability of judicial assistants under the judicial responsibility system. Dean Jiang said the reason is that they are involved in judicial work and are future judges.
Another question from the audience related to reforms such as abolishing the Procuratorate and moving the prosecution function to the Ministry of Justice (like many other jurisdictions)–unlikely and why the enforcement bureau remains in the courts, when the enforcement function is elsewhere in many jurisdictions. Dean Jiang said many court presidents would welcome that, and the proposal has been made, but during the 16th Party Congress, it was decided that it was not appropriate to do so. A question was raised about military courts–he noted that they are considered specialized courts, and under the reforms moved from being under the General Political Department to being directly under the Central Military Commission (through its Political-Legal Commission).
By Susan Finder with initial research assistance by Zhu Xinyue
The Supreme People’s Court’s (SPC) October 2022 specialized report on foreign-related adjudication work (最高人民法院关于人民法院涉外审判工作情况的报告) provides an overview of the SPC’s and the lower courts’ work related to foreign-related matters over the past 10 years. This blogpost uses the term “adjudication work” to encompass the multiple functions of the SPC (see my U.S.-Asia Law Institute article for a refresher) as well as the lower courts. (My previous blogpost gives a detailed explanation of the significance of specialized reports of the SPC and other institutions to the NPC Standing Committee). The report is intended to showcase the SPC’s work in supporting Xi Jinping era fundamental changes in foreign policy, or as the concluding section words it, “vigorously serving the greater situation of the Party and State’s external policy work” (积极服务党和国家对外工作大局). An analysis of the content of this specialized report provides insights into the role of the SPC and its relationships with other Central institutions as well as the current and evolving concept of “foreign-related rule of law” (涉外法治). Concerning the link between “foreign-related rule of law” and the foreign-related adjudication work of the people’s courts, as President Zhou Qiang said: “the foreign-related adjudication work of the people’s courts is an important part of foreign-related rule of law work (人民法院涉外审判工作是涉外法治工作的重要组成部分).”
I surmise that the NPC Standing Committee requested the SPC submit a specialized report on the SPC’s foreign-related work because the political leadership is prioritizing developing China’s foreign-related body of law and takes the view that SPC expertise is needed to that end. As in any legal system, issues that come before the Chinese courts highlight the gaps in current legislation (broadly defined).
The report covers all areas of SPC work–criminal, civil and commercial, maritime, intellectual property, administrative, and other areas, as well as the recognition and enforcement of foreign judgments, recognition and enforcement of foreign arbitral awards, and other forms of international judicial assistance. Because cases involving Hong Kong, Macau, and Taiwan are considered by reference to the principles for foreign-related cases, the report provides highlights of those developments as well.
Following some background material, this blogpost follows the structure of the report and therefore the blogpost is much longer than usual. A more comprehensive analysis of many aspects is found in my “never-ending article,” currently on its meandering way to publication.
Because most of the cases involving foreign-related matters tend to be in the commercial area generally (incorporating maritime, recognition and enforcement of foreign judgments and arbitral awards), it is likely that the #4 Civil Division took the lead in drafting the report, worked closely with the International Cooperation Bureau, and involved other divisions and offices of the SPC as needed, including those working on criminal law issues. Although this report appears to be just another anodyne official report, what underlies it is likely to be hundreds of hours of drafting, soliciting data and comments from related offices, including the Research Office (with a department in charge of Hong Kong and Macau issues), comments from the vice president in charge of the #4 Division (it now appears to be Justice Tao Kaiyuan), President Zhou Qiang’s office, and the NPC Standing Committee itself. It is unclear whether the Ministry of Foreign Affairs and the Ministry of Comments also provided input. It incorporated the SPC’s response to a research report on foreign-related adjudication work prepared by the NPC Standing Committee’s Supervisory and Judicial Affairs Committee (mentioned in the previous blogpost).
The report highlights the SPC’s work in foreign-related cases in support of related policies. The structure of the report is the usual one for such reports–a long list of accomplishments, followed by a summary of outstanding challenges and suggestions to the NPC Standing Committee for future work. It reveals some previously unknown developments and clearly sets out the official conceptual structure underpinning the SPC’s foreign-related adjudication work and therefore China’s “foreign-related rule of law.” The report takes an inclusive view of accomplishments: judicial interpretations, policy documents, typical and guiding cases, as well as correctly deciding important cases. This blogpost decodes the details in the report, with brief comments and links to some of my earlier blogposts.
The report provides selected statistics. As I have said when I have spoken on the Belt & Road and the SPC, the number of foreign-related cases heard in the Chinese courts has increased substantially over the past ten years, but even now they constitute a tiny percentage of cases heard in the Chinese courts. The report reveals some of the challenges, as seen officially.
From 2013 to June 2022, Chinese courts heard a total of 384,000 foreign-related (including Hong Kong, Macau, and Taiwan-related) cases. These numbers are tiny compared to the large number of cases accepted by the Chinese courts annually. For example, in 2021, that number reached over 33 million cases. The number of first-instance foreign-related civil and commercial cases nationwide increased from 14,800 in 2013 to 27,300 in 2021. The SPC has not released more detailed statistics about the types of civil and commercial cases or foreign-related cases in other areas of law, such as criminal cases.
As is usual with SPC official reports and documents, matters relating to national security and sovereignty take a prominent place. The SPC reiterates that its foreign-related adjudication work serves the domestic and external greater situations. This section highlights two areas of service in protection of national security and sovereignty:
The crimes mentioned are harmonized with the priorities seen in other official reports and documents, so that national security, particularly political security is listed first. The crimes are similar to those listed in the 2020 Guiding Opinions on Services and Safeguards of the People’s Courts on Further Expanding Opening-Up to the World (Open Policy Guiding Opinion 最高人民法院关于人民法院服务保障进一步扩大对外开放的指导意见). Accomplishments listed include the 2017 Provisions on Several Questions Concerning the Application of the Procedure of Confiscating Illegal Gains in Cases Where the Criminal Suspects or Defendants Absconded or Died and the 2021 comprehensive judicial interpretation of the Criminal Procedure Law (my book chapter concerns its drafting), which contains basic principles relating to foreign-related cases.
This section is relatively long and highlights much of the SPC’s foreign-related adjudication work in the past 10 years. The focus is on international commercial dispute resolution rather than intellectual property disputes.
i. Foreign investment: The courts have supported the revised Foreign Investment Law and Implementing Regulations with two interpretations (including one on the application of the Foreign Investment Law, mentioned here), as well as a policy of centralizing the hearing of such cases, seeking to ensure greater competency.
ii. Pilot free trade zones and ports: The courts have supported these policies through several services and safeguards opinions (one general one, discussed in my book chapter, as well as ones on Lingang, Hainan, and new zones in Beijing). The SPC also issued related typical cases and encouraged local courts to establish additional measures to support national free trade zone policy.
iii. The courts have supported national policies supporting a competitive market order, and to that end have issued regulations on bankruptcy, normative documents on improving the business environment (including services and safeguards opinions and a conference summary), and established financial courts (see Mark Jia’s related article).
iv. Supported national policy concerning economic development and COVID-19 pandemic control (I have a related article that will be published in Italian). The SPC promulgated four guiding opinions (policy documents) on the trial of civil cases related to the Covid-19 pandemic, one of which focused on foreign-related commercial and maritime cases. This document was included in UNCITRAL’s CLOUT database.
v. Respecting international conventions and international practices (customs or usage, by which is meant trade/commercial practices or usages). As mentioned here, the SPC is drafting a judicial interpretation on the application of international conventions and treaties and international practices and has issued related typical cases.
vi. Application of (foreign (non-mainland) governing law. Since 2013, the courts have applied foreign law in 542 cases. My draft article discusses related issues briefly.
vii. Cross-border recognition and enforcement of judgments: Since 2013, the courts nationwide have considered 7,313 cases of applications for recognition and enforcement of civil and commercial judgments from foreign courts. My draft article discusses the evolution of this policy. The report mentions the enforcement of Chinese judgments abroad.
The report underlines that the SPC’s maritime adjudication work directly serves foreign trade shipping and marine development to maintain national [judicial] sovereignty and related national interests. The report mentions that the SPC issued judicial interpretations on maritime litigation jurisdiction, and issued judicial interpretations for hearing cases of compensation for damage to marine natural resources and ecological environment. The SPC and the Supreme People’s Procuratorate issued regulations on handling public interest litigation cases on marine natural resources and ecological environment, and released related typical cases.
The report mentions China’s work on becoming an international maritime justice center (See my article in the Diplomat). Related accomplishments include the SPC expanding the network of maritime courts and their dispatched tribunals and the report highlights that more parties without a jurisdictional link with China have chosen the jurisdiction of the Chinese maritime courts (for a different view from the official one, see Professor Vivienne Bath’s research on parallel litigation involving the Chinese maritime courts).
According to the report, the SPC is implementing the deployment of the political leadership in this area. Those include:
the CICC and related developments, including: the CICC’s bilingual website, the CICC’s expert committee; two BRI Services and Safeguards Opinions, and typical BRI cases, as well as establishing local international commercial courts. (This blog has discussed these developments in some detail, with more contained in my draft article).
i. The SPC reports that it established a “one-stop” diversified international commercial dispute resolution mechanism, which integrates litigation, arbitration, and mediation. The report mentions the accomplishments of several local courts and the incorporation of arbitration and mediation institutions into the SPC’s (CICC’s (Chinese version)) one-stop platform.
ii. Arbitration: The SPC issued judicial interpretations on judicial review of arbitration cases and enforcement of arbitral awards, and introduced a mechanism and reporting system for judicial review of arbitration cases; since 2013, Chinese courts have heard over 110,000 judicial review cases (presumably the vast majority domestic).
iii. Mediation: The report describes local developments and accomplishments related to the mediation platform of the people’s courts (see the related white paper).
On the details of SPC and Greater Bay Area policy, please see my earlier blogpost and presentation at a November, 2022 conference held at the Law Faculty of the University of Hong Kong.
This blogpost summarized earlier developments related to Taiwan. The SPC issued judicial interpretations on the recognition and enforcement of Taiwan civil judgments and arbitration awards.
The SPC mentioned that the courts have supported national policy on integrating Hong Kong and Macao into Greater Bay Area policy by supporting [Ministry of Justice led policy] to permit lawyers from Hong Kong and Macao to practice in the Greater Bay Area (note, such lawyers must be Chinese citizens). The courts are also supporting the initiatives related to integrating Hong Kong, Macau, and Taiwan legal professionals (again, foreign professionals registered in these jurisdictions are not included).
i. Jurisdiction: the report mentions a notice on jurisdiction on foreign-related cases (flagged in this blogpost) and centralized jurisdiction.
ii. Service of process: The SPC amended the judicial interpretation of the Civil Procedure Law to enable more flexible service of process abroad and established a platform with the Ministry of Justice (discussed in this blogpost) to enable more efficient handling of service of process requests from abroad. (There is no mention of greater flexibility in foreign service of process into mainland China.)
iii. Determination of foreign law: the SPC established a unified platform for the determination of foreign law (accessible through the CICC website, see the links above), which links to SPC-authorized institutions providing such services. My draft article provides additional details.
iv. Improving cross-border litigation services. This integrates with the SPC’s smart courts policy. One of the major accomplishments mentioned in the SPC’s judicial interpretation on cross-border online litigation.
iv. Training foreign-related adjudication talents (涉外审判人才. See my earlier blogpost.
Matters so classified include: vigorously supporting the development of foreign-related legislation (mentioned in this blogpost); application of foreign-related law; and undertaking related research. The foreign-related legislation that the report mentions (Civil Procedure Law and several maritime-related laws), is actually only one small part of what the SPC has done. The application of foreign-related legislation gives the SPC an opportunity to reiterate its accomplishments in issuing judicial interpretations; policy documents; conference summaries; and typical cases. The SPC also mentions its BRI research center and establishing research centers at 15 universities and research institutions.
The SPC includes in this category the following: judicial exchanges in the form of memoranda of understanding and large-scale conferences; international judicial assistance in both civil and criminal matters; participation in the formulation of international rules (negotiating international conventions and bilateral treaties, as mentioned here, as well as providing support to China’s initiatives in various matters, including railway bills of lading (see my student Zhang Huiyu’s article); and “telling China’s rule of law story well.” The latter category includes certain conferences and meetings with foreign judiciaries. I have either been a participant or an observer in some of those “telling China’s rule of law story well” events, such as the CICC international conferences and the 2019 third meeting of the UK-China Joint Judicial Expert Working Group on Commercial Dispute Resolution.
The report listed the following challenges:
a. Limited ability of some courts to engage in foreign-related adjudication work, as evidenced by the lack of experience of some courts in foreign-related work. When I spoke at a Hong Kong International Arbitration Centre event in October, 2022, my co-panelist Arthur Dong illustrated that with his accounts of how several local courts handled applications for interim measures.
b. Ongoing difficult issues: difficulties in service of process, extraterritorial investigation and evidence collection; determining foreign (non-mainland Chinese) law; shortening the trial period for hearing foreign-related cases (also note that at least one CICC case has been outstanding for over two years).
c. The “one-stop” diversified international commercial dispute resolution mechanism needs improving and China needs to accelerate the drafting of a commercial mediation law. The need for a commercial mediation law has been discussed within central institutions since at least 2019 (as I have observed). So it seems that the SPC is in line with the view of the Ministry of Commerce that such a law is needed to promote more professional mediation.
d. A significant shortage in the number of judicial personnel with foreign-related expertise (discussed here).
The report emphasized adhering to the leadership of the Party to ensure foreign-related adjudication is politically correct and in line with the deployment of the political leadership.
The practical measures (directed towards the NPC Standing Committee) included:
As this report has illustrated, the SPC (and the court system) are taking an active part in the evolving project of creating a foreign-related legal system that better reflects both the demands of the political leadership and the practical needs of the users of the Chinese legal system. It should be clear from this analysis that China’s foreign-related rule of law is a work in progress involving a multitude of issues, and that the SPC has a multifaceted and crucial role in its creation.
By Susan Finder, drawing on research by Sun Dongyu (Christopher)
In October 2022, Supreme People’s Court (SPC) President Zhou Qiang delivered a report to the National People’s Congress (NPC) Standing Committee on foreign-related adjudication work since the 18th Party Congress (党的十八大以来人民法院涉外审判工作情况) (Foreign-Related Adjudication Work Report). Under NPC legislation, this type of report is classified as a specialized report (专项报告). In the New Era, the SPC delivers such reports to the NPC Standing Committee annually. Han Xiaowu, the deputy head of the Supervisory and Judicial Affairs Committee of the NPC, in an article reviewing the supervisory powers of the NPC Standing Committee, described listening to and reviewing specialized reports as a significant means by which the NPC Standing Committee exercises its supervision authority over other institutions. The SPC has published a collection of these reports issued since the 18th Party Congress, pictured above.
This blogpost provides a dive into the law and practice of these specialized reports, focusing on reports prepared by the SPC. A subsequent post will focus on the content of the Foreign-Related Adjudication Work Report.
Most people with basic knowledge about the operation of the Chinese legal system know that the SPC president delivers a report to the NPC annually, every spring. Less known is that the SPC president also gives specialized reports to the NPC Standing Committee, under the Law on Oversight by Standing Committees of People’s Congresses at Various Levels (People’s Congresses Oversight Law). According to the NPC Observer, that law is scheduled to be updated. The details of NPC Standing Committee supervision of the SPC through specialized reports provide one discrete example of how Party leadership of legal institutions is implemented in practice and the interrelationship among state legal institutions.
The People’s Congresses Oversight Law authorizes the NPC Standing Committee to supervise the SPC, Supreme People’s Procuratorate (SPP), and the government in several ways, one of which is requiring these institutions to provide specialized reports, as set out in the NPC Standing Committee’s annual plan. Han Xiaowu described them as drawn up according to the work deployment of the Party Center ( 中央的工作部署). Articles 8 and 9 of the People’s Congresses’ Oversight Law provide some basic principles concerning the topics of those specialized reports. It is understood that early in the year, the NPC’s Supervisory and Judicial Affairs Committee communicates with the SPC (and analogously with the other institutions that the NPC Standing Committee supervises), to set the topic and timing of the specialized report. It is likely that the SPC’s General Office, which is responsible for inter-institutional liaison, is the entity within the SPC that works out the details with the NPC Standing Committee.
A quick search on Wechat reveals that foreign-related adjudication work was part of the overall supervision plan of the NPC Standing Committee in 2022. It meant that the NPC Standing Committee allocated significant time to investigating how Chinese courts hear foreign-related cases. Official reports on Wechat flag that senior NPC Standing leaders went to certain provinces to investigate how local courts heard foreign-related cases as well as understand local developments relating to juvenile procuratorial work. In the summer of 2022. Cao Jianming, vice chair of the NPC Standing Committee (and former senior SPC leader and procurator-general) visited Jiangsu and Guangdong in the summer of 2022, while Hao Mingjin visited Fujian. In each case, according to bureaucratic protocol, senior leaders of the SPC and SPP accompanied the NPC Standing Committee leaders, who in turn had senior NPC Standing Committee staff in attendance.
These visits (described as research/调研) were consolidated into a report provided to the SPC (non-public), as revealed by the Foreign-Related Adjudication Work Report. It also enabled the NPC Standing Committee leaders to monitor how well the SPC and SPP respectively supervise and guide the lower courts and procuratorates in their work, politically and substantively, monitor local developments and the interaction among local institutions. Cao Jianming told senior leaders in Jiangsu that they must adhere to the guidance of Xi Jinping Thought on Socialism with Chinese Characteristics for a New Era, resolutely implement the decision-making and deployment of the Party Central Committee, the work deployment of the SPC and the requirements of the provincial party committee. Cao reiterated principles for which local court leaders need no reminders–that they must thoroughly study and implement Xi Jinping’s thoughts on the rule of law, deeply understand the significance of foreign-related rule of law work, focus on researching new situations and new problems, improve systems and mechanisms, and continuously improve the level of foreign-related adjudication work.
The People’s Congresses Oversight Law provides further details concerning specialized reports. It requires the NPC Standing Committee to gather some questions to send to the SPC (or other institution providing a report), presumably intended to highlight issues that the NPC Standing Committee requires to be incorporated in the report. The procedure requires the SPC to send its draft report to the relevant specialized NPC committee 20 days before the formal report is delivered. Presumably, Han Xiaowu was involved in the review of the Foreign-Related Adjudication Work Report. If the SPC amends the draft report, it must be submitted to the NPC Standing Committee at least 10 days before that date, so the revised report can be distributed to the members. The head of the institution must deliver the report, which is discussed by members. The results of the discussions of the reports are forwarded to the SPC (or other reporting institutions), which must respond to them. The issues that the NPC Standing Committee raises with the institution providing the specialized report are made public in summary form. What is occasionally made public is the SPC (or other institution’s) response to the comments of NPC Standing Committee members. As I have not seen the SPC’s response to comments on last October’s report, I presume that the SPC has not yet finalized a response to the comments. Presumably, the #4 Civil Division would take the lead in drafting the response, which would be reviewed by the vice president in charge of that division, and likely by the SPC president. The NPC Observer discusses responses to reports in this blogpost.
Those who have been involved with the specialized report process explain that both institutions see benefits in the NPC Standing Committee requiring specialized reports of the SPC. The NPC Standing Committee sees it as an effective way of exercising its supervision (oversight) authority over the SPC, while the SPC sees it as an effective way to display its competence while providing a forum to raise issues that require the involvement of the NPC Standing Committee. It can also be said to be another way in which Party leadership of the courts (and other institutions) is indirectly implemented.
The specialized report procedure is a less understood way in which the NPC and its Standing Committee supervise (监督 oversees) the SPC and implement Party leadership, and provides an example of how the SPC is institutionally both more and less powerful than other apex courts.
Happy Year of the Rabbit to all followers and readers of this blog! As a few followers know, I moved recently. The disruption is the reason I haven’t posted in such a long time. Because of the move, some of my archives from my many years of researching the Supreme People’s Court (SPC), like Rip Van Winkle, have emerged from hibernation. They include:
The Supreme People’s Court Monitor published 21 posts in 2022 (including this one), with close to 40,000 page views. The most number of views came from the United States, with three jurisdictions having almost the same number of views:
The United Kingdom, Germany, and Canada trailed the others by a significant margin. I wish I knew the distribution of my readers in mainland China–from my discussions with Chinese judges this year, it seems I have a significant number of readers in the System (体制), seemingly more than among Chinese academics, with several important exceptions.
Why did I do less blogging in 2022? It can be attributed to focusing on longer academic articles and writing several short ones (one still to be published), as well as preparing for several challenging presentations. The presentation at the China International Commercial Court meeting in August was among those. It was a great pleasure to participate in an in-person event at the University of Hong Kong Faculty of Law this fall. I look forward to doing the same starting in January. I am very pleased that New York University School of Law’s U.S.-Asia Law Institute published my article on decoding the Supreme People’s Court’s Services and Safeguards Opinions and appreciate Katherine Wilhelm’s skillful editing.
Comments and discussions with several good friends, including in and out of the System, have helped me to gain additional insights, restructure and finish writing what I have called the “neverending article.” It will certainly need revising, as I will need to incorporate references to the latest batch of guiding cases and several items of legislation that the National People’s Congress (NPC) Standing Committee is considering. A second draft article will need to be restructured when the NPC Standing Committee promulgates some of that legislation.
Since the blog was founded almost ten years ago:
Page views: approximately 280,000
Jurisdictions: 200?
Posts: 341
A special thank you to my anonymous “peer reviewers”, who have always given forthright, insightful, and helpful comments on draft blogposts.
Among the many issues that I am discussing in my “neverending article” is the role of the Supreme People’s Court (SPC) in the complicated process of drafting new legislation and amending existing legislation, as is sometimes revealed in the “Services and Safeguards Opinions” about which I write often. The role of the SPC is for the most part unseen and unnoticed. Because the Arbitration Law is so critically important to dispute resolution between Chinese and non-Chinese parties, this blogpost highlights the SPC’s role in the unfinished process of revising the Arbitration Law and includes some of my own comments on the positions taken by the SPC. I flag one particular issue that in my view would benefit from discussion and analysis by those with international arbitration law expertise.
Justice Tao Kaiyuan participated in a meeting of the Chinese People’s Political Consultative Conference (CPPCC)’s Committee on Social and Legal Affairs on 30 May on the Arbitration Law draft revision (link is to the Chinese original) and provided a summary of some of the work of the SPC and lower courts in “pushing forward the progress of amending the Arbitration Law. ” (Mao Xiaofei of the Chinese Academy of Social Sciences, International Law Institute has kindly shared her translation into English of the Arbitration Law revision, which includes a comparison with the current text.)
The 2020 document Guiding Opinions of the Supreme People’s Court on the People’s Courts Serving and Guaranteeing the Further Opening Up to the Outside World (最高人民法院关于人民法院服务保障进一步扩大对外开放的指导意见) about which I previously wrote, contains the phrase “push forward the progress of amending the Arbitration Law (and several other laws) (推动仲裁法、海商法、海事诉讼特别程序法等国内商事海事法律的修法进程). Additionally, the Annual Report on Judicial Review of Commercial Arbitration (2019), edited by the SPC’s #4 Civil Division (I had a cameo role in improving the English version) also mentions the SPC will support the amendment of the Arbitration Law. Persons whose eyes glaze over when reading official documents would miss this curious phrase. Few persons outside of China have access to the Annual Report.
Xu Liquan, one of the deputy heads of the CPPCC, also spoke at the 30 May meeting discussing the Arbitration Law draft and revealed arbitration statistics I had not previously seen–that Chinese foreign-related enterprises have a dispute rate of up to 10% ( 涉外企业纠纷发生率高达10%) in cross-border transactions, over 90% select arbitration as the dispute resolution method, but a large majority select arbitration outside of China. Mr. Xu did not mention the source of these statistics, but I understand them to be derived from a report by the China Arbitration Institute of the China University of Political Science and Law (CUPL). The report summarizes the China Arbitration Institute’s survey of more than 100 foreign-related enterprises recommended by the State-Owned Assets Supervision and Administration Commission (SASAC). The full report has not yet been made public.
From these statistics, it can be seen that if China wants to be considered a more attractive destination for commercial dispute resolution, improving the Arbitration Law is crucial.
A translation (amended machine translation) of Justice Tao’s remarks (I surmise they are a summary) follows below, along with some of my own comments in italics.
Some background on her remarks, for those who need it: The Ministry of Justice, as the regulator of arbitration institutions, is the institution charged with providing draft amendments to the Arbitration Law to be forwarded to the National People’s Congress Standing Committee. (I myself had the good fortune to be involved in a cameo role in this process as a consultant to the Great Britain China Centre (GBCC) before and during the pandemic. )
The Supreme People’s Court has been actively participating in this work, and supports the revision of an arbitration law that is based on China’s national conditions, draws on international practices, and takes into account the development stage of our country’s arbitration industry.
Justice Tao signals the SPC’s very active involvement in providing input to the Ministry of Justice. It appears from her summary that views from several different divisions and offices of the SPC are reflected in what she said, including the #4 civil division (responsible for international arbitration matters), #3 civil division (intellectual property and anti-monopoly), and the enforcement bureau. I surmise that it will actively involve itself in commenting on the draft of the Arbitration Law when it is considered by the National People’s Congress Standing Committee.
“Drawing on international practices” is a broad term, including the UNCITRAL Model Law and “international practices” of leading courts on arbitration-related issues. On China’s national conditions, although most foreign practitioners are aware of the top 3-5 Chinese arbitration institutions, the vast majority are funded by local governments. The local arbitration institutions have appointed arbitrators sometimes more for their official position than their knowledge of arbitration, and have management and staff with varying levels of competency. Local lawyers prefer the courts, where an appeal is possible if the initial decision is unfavorable.
Regarding further opening up of the domestic arbitration market and allowing overseas arbitration institutions to conduct business in the Mainland. In recent years, the Supreme People’s Court has successively issued a number of judicial documents to support the introduction of foreign arbitration institutions to set up branches to carry out arbitration business in the construction of Lingang New Area of China (Shanghai) Pilot Free Trade Zone, Hainan Free Trade Port and Beijing “two zones” [pilot free trade zone and service trade zone]. In the next step, we will support the opening of the arbitration market in other pilot free trade zones.
I wrote a report on this almost two years ago. There are many practical issues to be ironed out, and Zero Covid plus the unamended Arbitration Law makes it even less likely that a major foreign arbitration institution will agree to commit to opening an office in China that handles cases.
Regarding the reasonable expansion of the scope of arbitration cases. We agree with the suggestion that intellectual property, sports, and anti-monopoly disputes be included in the scope of arbitration, but it depends on the type [of dispute], and only civil and commercial disputes should be submitted to arbitration.
There has been a great deal of discussion in China about the arbitrability of intellectual property, sports, and anti-monopoly disputes, with cases having been heard in the courts. See this detailed discussion of the sports law issues here in an earlier volume of the Beijing Arbitration Commission’s annual volume Commercial Dispute Resolution In China: An Annual Review And Preview by Guo Cai and Jeffrey Benz. On intellectual property issues, a search in Chinese or English will turn up many articles–this one by Baker & McKenzie and this one by the intellectual property firm SIPS are two of many. The arbitrability of antimonopoly disputes in China has been discussed by both practitioners and academics. Another highly disputed issue is the scope of the disputes that are arbitrable, linked to the definition of “civil and commercial” disputes in the areas of intellectual property and anti-monopoly law.
However, we suggest further research on whether the international investment arbitration between the host country and the investor should be regulated by the Arbitration Law. First, international investment arbitration is different from commercial arbitration, and it is suggested to retain the provision that commercial arbitration applies to civil and commercial disputes between equal parties. Second, the investment protection agreement signed by my country provides different solutions to international investment disputes. According to the commercial reservation statement made when our country joined the “Convention on the Recognition and Enforcement of Foreign Arbitral Awards”, the recognition and enforcement of arbitration awards disputed between the host country and investors, the Convention does not apply.
Some of the Belt & Road “Services and Safeguards Opinions” have flagged investment arbitration as an issue of concern. Enabling investment arbitration in China involves a number of interlinked issues. I recommend Professor Chi Manjiao’s recent article on the many complicated issues related to improving Chinese law on investment arbitration.
Regarding the boundary between confidentiality and disclosure of information in the process of judicial review of arbitration. We agree with the suggestion that the advantage of arbitration confidentiality should be maintained in arbitration judicial review cases. It is difficult to make specific provisions in the Arbitration Law drawing the line between confidentiality and transparency, and it is suggested that it can be resolved through judicial interpretation. In judicial practice, judges do not involve facts irrelevant to arbitration judicial review when writing documents. The parties may also request the people’s court not to disclose the judgment documents on the grounds that the case involves personal privacy and commercial secrets. In the future, it may be considered to establish clearer rules to further balance the relationship between arbitration confidentiality and judicial openness.
Drawing the line between confidentiality and transparency is an issue worldwide, so it makes sense to leave this matter to the SPC to provide more detailed rules through a judicial interpretation.
On the protection of the rights and interests of third parties (案外人). The Arbitration Law should protect the legitimate rights and interests of third parties, but the current draft amendment to the Arbitration Law [Article 84] stipulates that the prerequisite for a third party to challenge the subject matter of enforcement is that the enforcement has not yet been completed, and even if the grounds are valid and the People’s Court decides to terminate the enforcement, it still cannot negate the validity of the arbitral award that has harmed his or her legitimate rights and interests, and this situation is particularly prominent when the parties to an arbitration case apply for arbitration in bad faith or sham arbitration. Therefore, it is necessary to introduce a system of application for setting aside an arbitral award by a third party, so as to fundamentally solve the problem that the current system of remedies for third parties in the draft amendment is insufficient to adequately protect their lawful rights and interests.
This is the section that I hope will attract discussion by those highly knowledgeable about arbitration law. Article 84 of the consultation draft of the Arbitration Law gives third parties in [domestic] arbitration enforcement proceedings the right to challenge the subject matter of the enforcement. Justice Tao is taking the view that the remedies for third parties in the draft are insufficient, and third parties should have the right to apply to a court to set aside the arbitral award at the enforcement stage. It appears that Justice Tao was persuaded by the views of the SPC’s Enforcement Bureau, as set forth in an article published a year ago by Judge Shao Changmao, head of one of its offices. Silence by other divisions does not necessarily signal agreement.
In my view, incorporating such a provision in the Arbitration Law could lead to even more challenges to arbitral awards and appears to signal a return to earlier law, in which courts could set aside domestic arbitral awards. It likely reflects the SPC’s concern with stopping sham dispute resolution, whether it is sham litigation (subject to criminal penalties) sham mediation (about which I have written earlier), or sham arbitration. However, it could lead to the “cure being worse than the disease.” The Chinese arbitration community is likely to take the view that this will not be helpful in making China become a more attractive destination for cross-border arbitration.
I surmise that incorporating this provision would make major international arbitration institutions more reluctant to establish case management offices in China. It would mean that Chinese courts could set aside their awards, which they could not do if the award was considered to have been made outside the mainland. I look forward to further discussion by the international arbitration community on the appropriateness of incorporating such a provision in the Arbitration Law.
Finally, amending the Arbitration Law, from my own brief involvement in the process and discussions with persons involved, is more complex that it appears but is a crucially important matter for the future of Chinese and China-related dispute resolution. Once the law is finalized, the process deserves a study of its own. The final version of the amended Arbitration Law will be an indication of the balance between internationalization (harmonization with international practice) and Chinese characteristics.
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Many thanks to three anonymous peer reviewers for their comments on earlier drafts of this blogpost.
My apologies to the patient followers of this blog for the long gap between blogposts.
I recently published a short article on the Perspectives blog of the New York University School of Law U.S. -Asia Law Institute, with the same name as this post, linked here. The Perspectives blog has posted a PDF version, and I am reposting it here for the convenience of some blog readers. I have finished a long version of the article which I am now amending. The research on which this article is based draws on discussions with many persons who cannot be thanked by name and others who will be whenever the longer version is published. I particularly appreciate those knowledgeable persons who have shared their insights with me over the many years it has taken to write the longer version.
About a year ago, I published an article on the same blog, entitled Why I Research China’s Supreme People’s Court. The PDF version is available here.
Many thanks to Katherine Wilhelm, Executive Director of the U.S. -Asia Law Institute, for her skillful editing of both articles.
Supreme People's Court Monitor 
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