Open government information litigation in China–an oxymoron?

Individual suing government to release information

Individual suing government to release information

To show that open government information litigation in China is not an oxymoron, and send messages to the lower courts, government, and public,  the Supreme People’s Court (Court)  in a  press conference on 12 September, released statistics and typical open government information cases brought under China’s version of the US’s Freedom of Information Act (and its counterparts elsewhere in world). For the first time, the Court issued 10 typical (model) open government information cases, although it had issued a guiding case earlier.  (The cartoons hint at the difficulties). The underlying issues are relevant to many, including foreign investors and their lawyers.

As others have described, China’s 2007  Open Government Information Regulations give individuals and groups the right to request government information and to challenge the failure to provide it in court. In comparison to the prevalent refusal of government departments to release government information, a small but increasing number of people have dared to take government to court.  In particular (as highlighted by a variety of publications, NGOs, scholars and foundations), China’s environmentalists and environmental groups have been very active in using the regulations and litigating the failure of local government to release environmental impact statements.

(artist Wang Weibin, published here)

Individual suing xxx department for information

 

What are the  “take-aways” from the press conference?

  • Statistics on open government information cases;
  • The rationale for issuing typical/model cases;
  • 10 typical/model cases;
  • Possible rationale for releasing the cases now.

Statistics on open government information cases

The Court revealed that the number of open government information cases are increasing, although the numbers are small in comparison to commercial cases. In 2013, the Chinese courts dealt with almost 5000 open information cases (despite the difficulties of suing government to release information highlighted by the cartoons). These cases account for the greatest proportion of administrative cases. Li Guangyu, deputy head of the Court’s administrative division said that the courts have helped protect the individual’s “right to know.”  In understanding the demands of the Chinese public for more government information (and the frequent refusal of government to provide it and comply with legal requirements when doing), these cases represent the tip of the iceberg. Most people will accept, rather than challenge a government refusal.

Why did the Court issue these cases?

The Court issued these ten government information cases for several reasons:

  • In May, 2014, the Court formally announced it would issue model cases monthly (see the earlier blogpost on the subject).  It has decided that issuing typical/model cases helps to guide the lower courts before judicial practice has settled enough and Court manpower permits issuing a judicial interpretation.
  • The single Guiding Case that the Court issued early addressed a narrow set of issues, and issuing these cases provides guidance on a wider range of issues.
  • The Court is sending a message to government departments, including central government ministries to comply with obligations under the Open Government Information Regulations to set out the legal basis for the decisions and their rationale, or risk having leading officials sitting in the defendant’s  seat in a courtroom.
  • The Court is signaling government to increase government transparency (within the many limitations imposed) and improve their open government information procedures or risk losing court cases. The behavior of government departments, including on the central level, in dealing with open government information requests seen in the cases indicates that educating government officials on compliance with the legislation is needed.
  • The cases are needed guidance to the lower courts.  Because the Open Government Information Regulations are not specific enough, they create difficulties for the lower courts trying to apply them to a large range of cases raising many different legal issues.  The 2011 judicial interpretation does not deal with the principal recurring issues. These cases help unify judicial standards on a range of issues.
  • The cases send a message to the general public that the courts are protecting the interests of the individual against government action (or inaction) and that these disputes can be resolved through litigation rather than petitioning.
  • The cases provide a heads up to companies and their lawyers that members of the public (or competitors) may attempt to access their information submitted to or relating to their transactions with government.

What are the 10 cases?

Li Guangyu, the deputy head of the administrative division of the Court, who was involved in drafting the 2011 judicial interpretation on open government information, highlighted the cases and the issues raised.  As discussed in earlier blogposts,the typical/model cases are not full decisions by the lower courts, but brief summaries.  The important part is the section labeled “significance of the case.” Brief highlights include:

  1. Case one (relates to the release of an environmental impact statement. According to earlier reports, many open government information cases have involved citizen demands for the release of this information.
  2. Case two, Xi Mingqiang v. the Ministry of Public Security. As could be expected, the information requested was classified, and the court refused release.  It is unclear whether the court considered whether the information had been properly classified.
  3. Case three, Wang Zongli v. the Tianjin Heping District Real Estate Administration Bureau (Tianjin Bureau), relating to a major social issue, the expropriation of real property and compensation of owners. The plaintiff demanded the release of the contract signed by the developer with a center under the Bureau for payment of government fees for expropriation (which would reveal the gap between the compensation to owners and the amount paid to government (issues discussed here).  The court determined that the Tianjin Bureau had failed to address whether the information requested by the plaintiff was considered a commercial secret.
  4. Case four,  Wang Zhengquan v. Hecheng [Shandong] Real Estate Administration Bureau, (relates to another major social issue, the allocation of low cost rental housing), involving the conflict between personal privacy (of the persons allocated housing) and the individual’s right to know;
  5. Case five, relates to issues in case three, the expropriation of rural land and the compensation of farmers, and the refusal of local government to release documents related to expropriation of land.  These issues already account for many  “mass incidents” and are likely to becoming even more important with the government’s planned urbanization of the countryside.
  6. Case six: Zhang Hongjun v. Rugao Municipal Price Bureau, in which the plaintiff challenged fees imposed by a township government, raising issues of access to government internal information.
  7. Case eight, a case against a Zhejiang Township government, in which the plaintiff sought details about land use and expropriation of property, raising issues of access to information created before the Government Open Information Regulations became effective.
  8. Case nine, Zhang Liang v. the Shanghai Urban Planning and Land and Natural Resources Bureaus, in which the plaintiff sought access to payment concerning 116 parcels of land granted by the government. It is yet another case relating to access to information about urban land use, and the government refusal to understand and reply flexibly to a request for information by an ordinary citizen.
  9. Case ten: If You Like Marriage Company Ltd. v. the Ministry of Civil Affairs, requesting information concerning the registration of the China Society for the Research of Marriage and Family (under the All Women’s Federation).  It is yet another case in which a government department (this time a central government department), failed to set out the legal basis and rationale for refusing to release government information.

Why now?

The Court may have several reasons for publicizing these cases now.

  • They are related to the ongoing drafting of the overhaul of the Administrative Litigation Law.
  • They are related to greater transparency requirements (affecting business) being rolled out under the Company Law Reforms and set as goals in the Third Plenum Decision
  • Government control of information, the individual’s right to know in the Internet age, and the role of the courts vis a vis government are major issues that may be addressed in the upcoming Fourth Plenum of the 18th Central Committee of the Chinese Communist Party.  That these issues are on the Party agenda is indicated by the fact that a Central Party School official published on these issues earlier this year.

If others would like to contribute further analysis of these cases or further information about any of them, please use the comment function.

The Supreme People’s Court on domestic violence legislation

copyright Shenzhen

(originally published here)

In its 29 August Wechat feed (which reproduced an article  published in the People’s Court Newspaper), the Court issued an update on domestic violence legislation, focusing on Shenzhen’s draft Anti-Domestic Violence Regulations (Domestic Violence Regulations).  The Domestic Violence Regulations have been incorporated into Shenzhen’s legislation plan and is intended to be adopted by year’s end.

The update highlights a conference earlier in August in Shenzhen that attracted over 160 experts from all over China to discuss an initial draft of the legislation.  Mark Obama also spoke at the conference.

It is likely that members of the group responsible for drafting the Court’s judicial interpretation on domestic violence participated in the conference.  As is often the case (and was noted in the update), Shenzhen is taking the lead in issuing promulgating legislation, serving as a pilot project for national legislation. Twenty nine localities have adopted domestic violence-related policies or local legislation.

Shenzhen domestic violence conference

Shenzhen domestic violence conference

This brief blogpost will highlight the following issues raised by the report:

  • Disturbing domestic violence statistics;
  • Details on the draft legislation; and
  • Status of the Court’s domestic violence judicial interpretation.

Domestic violence statistics

The above article and other articles reporting on the Shenzhen conference have provided disturbing statistics on domestic violence.

  • Domestic violence occurs in about 25% of Chinese families;
  • About 10% of juvenile offenders were raised in abusive families (statistics on this issue seem to vary widely);
  • 30% of victims of domestic violence in China (women, children, and elderly) are afraid to speak out against their abusers;
  • The Shenzhen Women’s Federation provided statistics on local (Shenzhen) domestic violence:
    • it occurs in 55 percent of Shenzhen homes among people aged 28-50;
    • 85.8 percent of violent incidents occur between married couples;
    •  93.9 percent of these are cases of husbands being violent towards their wives.
  • A examination of 300 cases reviewed by the NGO Beijing Children’s Legal Aid & Research Center revealed that:
    • 65% of children had been subject to corporal punishment;
    • of 32 cases of child sex abuse, 75% were committed by guardians, with about half committed by fathers.

 Draft legislation issues

Reports on the draft Shenzhen legislation have highlighted the following issues among others:

  • Scope of the persons protected by the legislation–whether persons living together, intimate partners, former spouses or partners should be covered–the initial draft of the Shenzhen Women’s Federation excluded these relationships.  Xu Ruishan, of the Shenzhen Municipal Procuratorate recommended that the legislation protect persons living together and former spouses from domestic violence, because of the prevalence of couples living together without marriage, while Professor Tao Lin, Secretary General of the Shenzhen Family Planning Association, recommended protecting intimate partners, because of the frequent violence in those relationships.
  • The type of domestic violence to be covered by the legislation, whether it should include economic, emotional, and sexual violence, as well as physical.

Status of the domestic violence judicial interpretation

Although the status of the Court’s judicial interpretation (discussed in an earlier blogpost) was not specifically addressed, in the article, Zhou Feng, the head of the #1 Criminal Division of the Court revealed his views that:

  • domestic violence offenses should be able to be either publicly or privately prosecuted;
  • a mandatory and voluntary reporting system should be instituted for entities and individuals who become aware of domestic violence (this is generally seen in domestic violence legislation internationally).

It may be that the timing of the issuance of the domestic violence judicial interpretation is related to the timing of the promulgation of national domestic violence legislation, but Court spokesmen have not been forthcoming on this issue.

Further details on the Shenzhen draft legislation

If anyone reading this blogpost has a copy of the draft Shenzhen legislation, attended the Shenzhen conference, or has further information on the status of the domestic violence judicial interpretation and is willing to share details about them, please use the comment function. Thank you!

And finally, the Supreme People’s Court Monitor thanks followers for their patience during the blog’s downtime. Future posts will address some of the many recent developments.

More on the Supreme People’s Court’s Judicial Reform Plan

On 16 July the Supreme People’s Court’s (Court’s) newspaper and social media outlets headlined two articles important for observers seeking to understand the judicial reforms:

  • a  report on statements by Meng Jianzhu, Politburo member and chair of the Central Political Legal Committee on the importance of the judicial reforms; and
  • an long explanation by HeXiaorong, the leader of the working group on judicial reform (of the Court’s judicial reform office) on the theory, logic and implementation of the judicial reforms.

    Meng Jianzhu

    Meng Jianzhu

Statement by Meng Jianzhu

The statement by Meng Jianzhu , made after he heard reports on the implementation of judicial reform pilot projects in six areas, stressed that the Central leadership considers the judicial reforms very important and has given a set of policy instructions on the implementation of the reforms. He calls on all involved in various political/legal organs at all levels to implement the reforms.

For anyone who has spent any time in a large organization, his message, although expressed in Chinese political language, will sound familiar:

  • make sure those at the local level are “on message”;
  • don’t impose the same method everywhere (不搞一刀切;
  • ensure enthusiasm about the reforms, otherwise they may fail.

The thinking behind the judicial reforms

015149e9c9534961384733a6061d96b3

He Xiaorong

A long article by He Xiaorong published on 16 July in the People’s Court Newspaper and other Court media outlets summarizes the thinking behind the judicial reforms (and what must have been the hundreds of pages of policy papers that underly what has been made public).  It is an edited version of a fuller paper, that has been issued on Wechat and perhaps other outlets (and is said to express He’s own thinking).  For those seeking to understand the judicial reforms, it deserves close analysis. A flash analysis will follow when time permits.

More on lifting the cloak of invisibility over the Chinese military courts

The Supreme People’s Court Observer contributed another post to the Global Military Justice Reform blog. It commented on an article in the July 9, 2014 edition of the South China Morning Post.  The newspaper article quoted several retired PLA officers on the subject of greater transparency for the Chinese military courts, advocating General Xu Caihou (see this earlier post) be tried publicly. The blogpost expressed the view of the Supreme People’s Court Observer that bringing transparency to the Chinese military courts will be a long-term enterprise, and something unlikely to happen in the short term.  The analysis in the post listed several possibly relevant factors.

The Supreme People’s Court Issues its Newest Five Year Reform Plan for the Courts

On 9 July, the Supreme People’s Court issued its fourth five year reform plan for the courts, approved by the Party leadership, which sets out 4 broad areas of reform, relating to 8 general areas. An overview has been released on Wechat and other Chinese social media and can be expected to be published very soon in more traditional media. An clear info graphic was published on the Court website and other official media, translated here.

The Court described it as taking first steps towards establishing a judicial system with Chinese characteristics and is intended to roll out reforms announced in the 3rd Plenum decision and the judicial reform decision announced earlier this spring and some of its themes were highlighted in press releases published just after Chinese new year.  Many of these issues are ones that have been discussed within the Chinese legal community for many years and draw on international expertise as well. The summary below highlights five of the eight broad areas.

  • Personnel reforms
  • Separate administrative and judicial jurisdiction
  • Improve the operation of the judicial function
  • Improve the protection of human rights
  • Increase judicial transparency
  • Clarify the roles of the four levels of the courts
  • Improve judicial administration
  • Promote reforms relating to petitioning

Personnel reforms

The intention of the personnel reforms are to split the treatment of judges from other civil servants, to step away from the traditional model of judges as cadres. This will involve pushing forward the initial reforms being tested to change the personnel management of local courts, and transfer that to the provincial level. This will include:

  • the establishment of provincial level selection committees, will involve clearance by Party disciplinary and other functions, and retain appointment by the people’s congress.
  • Personnel reforms will also involve splitting the management of judges from other judicial personnel, such as judicial police and clerks.
  • Additionally, reforms are intended to the use of judicial headcount, to focus that by increasing the number of judges.
  • Two other reforms involve establishing new systems for judicial promotions and establishing differing criteria for the recruitment of different types of judges.

Separate administrative and judicial jurisdiction

Reforms in this area include:

  • taking steps to take certain cases, such as some environmental and commercial cases out the local administrative jurisdictions, so that they can be heard fairly.
  • Reform some of the lesser known courts, such as the forestry courts, to bring them into the ordinary court system.
  • Establish a system for circuit tribunals at provincial level to hear difficult cases, and focus on environmental cases.
  • In areas where  there are more intellectual property cases, promote the establishment of intellectual property courts.

Improve the operation of the judicial function

The summary concerning this section admits that having the person who heard the case decide it remains difficult to implement within the Chinese jidicial system, and that despite initial attempts, internal multi-level approvals for deciding cases remains the norm.  The intended reforms in this area include:

  • improving the system of responsibility of the primarily responsible judge and the panel that heard the case.
  • Changing the system of signing judicial decisions.
  • Improving the monitoring of judicial performance.
  • Improving judicial disciplinary procedures.

Importantly, reforms look to change the current relationship between the judge responsible, the tribunal, and others in a position of leadership within the courts, such as the head of the division and court president. There has been a great deal of academic writing about this, in both English and Chinese, as well as articles written by judges serving at various levels.  A great deal of thought has gone into this section and implementing these reforms will involve changing long-term patterns of interaction.

Improve the protection of human rights

Reforms in this area are intended to improve the protection of human and property rights, particularly by improving judicial review of the investigation and prosecution stages:

  1. Eliminate the use of illegally obtained evidence.
  2. Improve the role of the defense lawyer and the statement by the advocate for the defendant.
  3. Improve systems for pursuing judicial negligence.
  4. Improve the protection of assets relating to [criminal cases].
  5. Improve reforms in the area of minor crimes, so that those cases are heard more quickly (pilot projects are underway in some areas).

These reforms represent the result of years of discussions within the judiciary, with lawyers, academics, and interactions with members of foreign courts, research into foreign legal systems, and others.

Increase judicial transparency

Reforms in this area build on the initial steps taken late last year and include:

  1. Make the hearing stage more open, by improving the system of announcements and permitting spectators to attend court hearings, increase real time broadcasts of hearings.
  2. Improve the handling of judicial information, so that litigants can determine the status of their case on-line.
  3. Improve the judicial decision database, Judicial Decisions of China.

All of these reforms are good practical proposals. Foreign observers of the Chinese courts would welcome easier access to Chinese court hearings.

A quick comment

Drafting this reform plan has been a tremendous undertaking and its implementation promises to be even more challenging.  Some of the reforms discussed above are the subject of pilot projects in various parts of the country, ranging from Guangdong and Shanghai, where the courts have heavy caseloads and face cutting edge cases, to less prosperous inland provinces. Reforms are likely to start with what is most easily implemented and where results can most easily be achieved.  What this means for some of the specialized courts, such as the military and maritime courts, will be clarified in time. The extent to which these reforms can change patterns of interaction within the judiciary and between the judiciary and government/Communist Party of many decades standing remains to be seen.  It is hoped that the pressure of greater professionalism within the judiciary, and other social and economic forces will eventually result in a judiciary that better serves the needs of all.

 

A model copyright infringement case–“A Bite of China”

A Bite of China (rts CCTV International)

A Bite of China (© CCTV International)

The blogpost below was kindly provided by a former Chinese judge, Jianwei “Jerry” Fang, who practices with a New York-based law firm in Hong Kong.

The Bite of China case

As announced in a press conference on 30 April 2014, the Supreme People’s Court (the Court) has started to issue model cases(典型案例) on a monthly basis to guide the lower courts. On June 23, 2014, the Court issued five model cases decided by lower courts, which included one criminal, two civil and two administrative cases. Among those, the civil case concerning copyright infringement, CCTV International vs. Shanghai TuDou Network Technology Co., Ltd. (news report linked here and case description here), has been closely watched by and is of particular interest to practitioners, especially  intellectual property lawyers.

Facts:

A Bite of China (舌尖上的中国) is a documentary series on Chinese food produced by China Central Television Station (“CCTV”) that is very famous in China. The series was first broadcast in May 2012 and became a very popular and well-known show in China. CCTV granted the copyright of the documentary series to CCTV International Network Co. Ltd. (“CCTV International”). However, it was found that within a week of the original broadcasting, the show had appeared on the website of TuDou.com, the famous video portal operated by Shanghai TuDou Network Technology Co., Ltd. (“TuDou Network”). After securing the evidence with help from the notary office, CCTV International sued TuDou Network for damages and reasonable costs of RMB 850,000.

Issues:

Is TuDou Network liable for providing storage of the copyrighted video on its site, and if so, how should damages be determined?

Courts:

First instance case heard by Shanghai Minhang District People’s Court; Appeal case heard by Shanghai First Intermediate People’s Court.

Ruling:

The defendant is liable and ordered to pay damages of RMB 240,000 and reasonable costs of RMB 8,000.

Reasoning:

The documentary series is in the category of cinematographic works and works created by a process analogous to cinematography, and is therefore protected by the PRC Copyright Law. The defendant provided an online on-demand link to the show without proper authorization from the copyright owner, which is a typical infringement of copyright though internet broadcasting and therefore he bears liability for infringement. While the defendant argued that the video was uploaded by an internet user, the courts found that the defendant failed to provide evidence to support its argument. The courts reasoned that because that the portal is required to control and manage the information and identity of the uploader, the website has the burden of proof. Since the defendant had deleted the original uploading information on its own, it should bear the adverse legal consequences.

Of note:

This case is a typical copyright infringement through internet sharing. In assessing the damages, the courts considered the copyright type, social recognition of the video, the nature of the infringement action, as well as the internet portal’s operational size, business model and influences, among other factors. The damages of RMB 240,000 can help to compensate the copyright owner, and force internet video portal operators to discipline themselves and manage their business. This case shows the trends of increased protection of intellectual properties, and serves as a warning to other internet video copyright infringers.

Comments:

As the Supreme People’s Court Observer has noted in earlier blogposts, the Court has recently started to publish more systematically model cases as an important supplement to legislation, judicial interpretations and guiding cases (指导案例, but long before this, had been publishing model cases in the Gazette of the Supreme People’s Court (最高人民法院公报).

While model cases are not binding on judges deciding subsequent cases, they will likely influence the decision of judges considering cases of similar type and with similar facts. Most Chinese judges I know would agree with this view. Back in 2006 when I was a junior judge at a trial court in Zhejiang, I wrote an article discussing the possibility of judicial precedent in China in the Chinese academic journal Public Administration & Law (2006-1). In my view, since I left the court to study and to work in private practice, the Chinese judiciary has made a lot of improvement and progress, which I applaud.

Supreme People’s Court update on the last 5 years of cross-straits judicial assistance (with 15 model cases)

2009-2014 cross-straits judicial assistance (from chinacourt.org website)

2009-2014 cross-straits judicial assistance (from chinacourt.org website)

On 20 June, the Supreme People’s Court  issued a report on the past 5 years of judicial assistance with Taiwan, featuring three bar charts, a table and 15 model cases, linked here.  Judicial assistance between the mainland and Taiwan in 2013 was the subject of a blogpost earlier this year.  The execution of two brothers in Taiwan, on the basis of testimony from witnesses on the mainland who were not made available for cross-examination, illustrate vividly some of the Issues related to judicial assistance, as further described here.

Most of the judicial assistance has been in the form of requests for delivery on the mainland of judicial documents from Taiwan (almost 30,000 in the past 5 years), but has also included recognition and enforcement of Taiwan court judgments (270 in the past 5 years), requests for obtaining evidence on the mainland (610).

The model cases summarize the requests made and the assistance provided, rather than the original judgments or rulings in these cases.  (Prior blogposts on the topic of model cases are linked here and Mark Cohen’s analysis is found here).

The statistics reflect the closer interactions between the two sides of the Taiwan straits, including the flood of Taiwan investment into the mainland, and cross-straits personal interactions (including cross-straits marriages and crimes committed by Taiwanese on the mainland). I look forward to comments and further analysis from Taiwan lawyers, scholars and others on the significance of these statistics and other related issues.