In recent days, I had the opportunity to meet with Zhang Yongjian, chief of the #1 China International Commercial Court (CICC) who provided some updates about the cases accepted by that court. In addition to the three rulings (posted on the CICC website) that the #1 CICC had issued, he mentioned that a ruling in one of the cases was forthcoming, as was a judgment in another. He mentioned that in considering some of the cases, certain members of the expert committee have provided expert opinions, as is authorized by the CICC rules. Additionally, the #1 CICC has accepted a sixth case, filed directly with the court. Zhang Yongjian mentioned the issues in that case relate to entrusted/nominee shareholding. The other cases accepted thus far are ones that had been referred by lower courts.
On 11 October, the Supreme People’s Court (SPC) issued brief guidance establishing a mechanism for resolving its inconsistent decisions, entitled “Implementing Measures on Establishing a Mechanism for Resolving Differences in the Application of Law (Implementing Measures) (关于建立法律适用分歧解决机制的实施办法). The guidance did not appear in Chinese legal media until the end of October. The intent of the guidance is to create a mechanism to resolve the old problem of inconsistent court decisions concerning the same issue (same cases decided differently 同案不同判) made by Chinese courts and even within the SPC. Widespread use of the SPC’s judgments database has brought this phenomenon to greater public attention. With the explosion in the number of cases in the Chinese courts and in the SPC in particular in recent years, the issue of divergent views within the SPC on the same issue is likely to be occurring even more frequently. The concern about uniformity or consistency of judicial decisions has its roots in the traditional Chinese legal system and is an ongoing topic of discussion among Chinese judges, legal practitioners, legal academics, and law students.
For those with an interest in the details of how the SPC operates, this document does not have the status of a judicial interpretation but the SPC’s judicial committee has approved it, as is evident from the title of the document (measures/办法 and the document number 法发〔2019〕23号 (Fa Fa (2019) #23. Judicial interpretations must have one of four titles and have a document number with Fa Shi 法释. The reason that the SPC judicial committee approved it is linked to Article 7 of the recently released guidance on judicial committees: “the adjudication [judicial] committee of the Supreme People’s Court is to unify law through means such as adopting and drafting judicial interpretations and normative documents (规范性文件), and publishing guiding cases.”
This mechanism has its antecedents in several previous judicial reform documents, and is one that is contained reform measure #23 of the last round of judicial reforms and reform measure #26 of the current round::
#23….Complete and improve working mechanisms for the uniform application of law.
#26 Improve mechanisms for the uniform application of law. Strengthen and regulate work on judicial interpretations, complete mechanisms for researching, initiating, drafting, debating, reviewing, publishing, cleaning up, and canceling judicial interpretations, to improve centralized management and report review mechanisms. Improve the guiding cases system, complete mechanisms for reporting, selecting, publishing, assessing, and applying cases. Establish mechanisms for high people’s courts filing for the record trial guidance documents and reference cases. Complete mechanisms for connecting the work of case discussion by presiding judges and collegial panel deliberations, the compensation commission, and the judicial committee. Improve working mechanisms for mandatory searches and reporting of analogous cases and new types of case. (完善统一法律适用机制。 加强和规范司法解释工作，健全司法解释的调研、立项、起草、论证、审核、发布、清理和废止机制，完善归口管理和报备审查机制。完善指导性案例制度，健全案例报送、筛选、发布、评估和应用机制。建立高级人民法院审判指导文件和参考性案例的备案机制。健全主审法官会议与合议庭评议、赔偿委员会、审判委员会讨论案件的工作衔接机制。完善类案和新类型案件强制检索报告工作机制)
A brief summary of the mechanism is set out, followed by my preliminary thoughts on the mechanism and related issues.
The Implementing Measures, which went into effect on 28 October, provide that if certain SPC entities or lower courts discover that the SPC has issued valid judgments (判决) or rulings (裁定) (the Chinese term is “生效裁判”) which apply the law differently (存在法律适用分歧), or an ongoing case may result in the later decision applying the law differently from that in a previous SPC case, the matter should be brought to the attention of the SPC judicial committee through an application process managed by the Trial Management Office.
Article 1 of the Implementing Measures designates the SPC judicial committee (also translated as adjudication committee 审判委员会) as the institution to resolve and guide differences in the application of law.
Article 2 authorize operational divisions of the SPC (业务部门), the higher people’s courts and specialized people’s courts to submit an application to the SPC’s Trial Management Office which may be eventually considered by the SPC’s judicial committee if either:
- there is a discrepancy in the application of law of judicial decisions of the SPC that are already effective (最高人民法院生效裁判之间存在法律适用分歧的);
- or there is a difference in the application of law between the conclusions in a case being tried and principles or standards on the application of law already determined in effective decisions of the SPC (在审案件作出的裁判结果可能与最高人民法院生效裁判确定的法律适用原则或者标准存在分歧的).
Article 3 authorizes the China Institute of Applied Jurisprudence (CIAJ) to submit an application to the Trial Management Office if it encounters differences in the application of law in effective judgments of the SPC that it encounters during its focused research work on like cases decided consistently (类案同判专项研究).
If the Trial Management Office determines the matter should be accepted (project initiation) (立项), that office is required to refer the matter to the CIAJ, which is required to provide an initial view to the Trial Management Office within five working days. Presumably, they will do little additional research and will focus on reviewing the materials submitted by the entity involved. In some situations, it appears to put CIAJ in the odd position of reviewing its own work. The Trial Management Office forwards the initial view of the CIAJ to the SPC operational division involved for further review and response. The operational division involved may involve experts in needed. The operational division should draft a response (复审意见) in a timely manner to the Trial Management Office, which should submit a request to an SPC leader (presumably the relevant SPC vice president) to place the matter on the judicial committee agenda. Once the judicial committee makes a decision, the entity that applied for a determination is to be informed. The Trial Management Office is required to provide a proposal containing the form and scope of the decision by the judicial committee for approval (提出发布形式与发布范围意见). It can be anticipated that determinations on non-sensitive topics may be made public, while those on more sensitive topics will be distributed either solely within the court system or to a relevant category of judges. Article 11 of the Implementing Measures requires SPC operational divisions, local courts, and specialized courts to make reference and implement (参照执行) the SPC judicial committee’s decision in the course of their work. Presumably that will depend on how widely distributed the determination is.
Some preliminary thoughts
In my view, the mechanism is a microcosm of themes reflecting how the SPC operates. As mentioned above, the SPC decides (either through judgments or rulings) large numbers of cases yearly, and the SPC responds to an unknown number of requests for instructions (请示), mostly on legal issues, which means that in practice that issues on the same body of law may be determined by different divisions of the SPC or different teams of SPC judges. So differences in legal issues may arise either through litigation or court administrative-type procedures. While SPC judges in practice (as I understand it) search for similar cases, it is inevitable that different people have different views on legal issues. Unlike some other legal systems, the SPC has not evolved an en banc or enlarged panel of judges (this description of how France’s highest court operates provides a good example) as the final institution for resolving these issues. Designating the SPC’s judicial committee reflects the traditional administrative way (官本位) that SPC makes major decisions concerning legal issues. As I described in a recent blogpost, the members of the SPC’s judicial committee are its senior leaders.
I surmise that many of the differences in views will be resolved before the matters reach the judicial committee. In comments made on the Implementing Measures, Justice He Xiaorong (head of the #2 Circuit Court) mentions that he has inaugurated a system of enlarged panels of judges that include those with a public law and private law background, and familiar with civil, criminal, and administrative law, to consider cases involving difficult issues. That system will reduce somewhat the pipeline of issues possibly entering this mechanism. For those issues that enter the mechanism, it is possible that opposing views may be harmonized when the operational division of the SPC needs to respond to the points summarized by the CIAJ. I predict that relatively few questions will go to the SPC judicial committee itself. The mechanism may have been designed with that goal in mind or may have that impact.
Additionally, from my reading of the Implementing Measures, the drafting could have benefited from more input from greater input either within the SPC or without, which could have avoided some of the problems I point out below. I surmise that the drafters were so used to the terminology used within the SPC, they did not realize that lack of clarity will confuse the lower courts and the greater legal community, for whom this system may have practical implications. In particular, the Implementing Measures:
- do not define what is meant by differences in the application of law (法律适用分歧). Presumably, a major difference in the application of law is intended and the SPC judicial committee (and its gatekeeper, which appears to be the Trial Management Office) will consider carefully which inconsistencies merit a determination by the judicial committee. My understanding is that the judicial committee is reluctant to reverse its determinations on particular legal issues within a short time, as it seeks to provide legal certainty on particular issues through judicial interpretations and other documents. As I described in my 2019 article on the SPC and FTZs, rules or policies included in SPC judicial policy documents may eventually be crystallized in SPC judicial interpretations and eventually codified in national law, but that process is slow and cannot meet the needs of the lower courts, which need to deal properly (politically and legally) with outstanding legal issues pending a more permanent stabilization.
- do not define the term “裁判,” which generally refers to judgments (判决) and rulings (裁定). To a casual reader, at least, it is not clear whether it is intended to include responses to requests for instructions (requests for advisory opinions, 请示). As I wrote in a blogpost earlier this year, some responses to requests for instructions are entitled fuhan 复函 and others dafu 答复. The editors (from the SPC) of a two-volume collection of responses described them as ‘usually called quasi-judicial interpretation documents’ (往往被称为准司法解释性文件) and ‘a necessary supplement to judicial interpretations’ (它是对司法解释一种必须的补充). It is not unusual for these responses to conflict with one another, as reasonable people can disagree and multiple institutions within the SPC issue responses on the same or related bodies of law. I have not noticed a document (at least one that was made public–I’d be grateful to be informed otherwise) describing an existing mechanism requiring the drafters of these responses to review related responses issued by other divisions. Differences in the application of law could also arise between an existing response and later judgment, or draft judgment.
- do not define what is meant by “业务部门” (operational departments/divisions). Does it include the SPC’s Research Office (which one knowledgeable person described as a comprehensive operational department (综合业务部门)), which often issues responses to requests for instructions?
- are very weak on specific procedures for when a question of law should be referred to this mechanism. Consider, for example, a case that is being considered by one of the divisions of the SPC. 2017 SPC regulations on the SPC’s responsibility system mention professional (presiding) judges meetings (as discussed in a 2017 blogpost and again several times this year. The Implementing Measures do not specify whether the issue should be reviewed by the division’s professional judges meeting before it is submitted to the Trial Management Office. Presumably that will be the case, as the judicial committee guidance requires it. In Justice He Xiaorong, clarifies that the professional judges meeting is an important institution for resolving differences in the application of law. As a practical matter, will this procedure suspend civil litigation procedures? It is unclear.
- do not clarify what will be included in the package of documents that goes to the Trial Management Office. Will it be similar to the documents that go to the judicial committee under its new guidance on judicial committees? It appears that the Implementing Measures are not well integrated with the new guidance on judicial committees. I surmise (please message me if I am mistaken) that the drafting of the Implementing Measures and the guidance on judicial committees was siloed, a frequent problem in the Chinese and other bureaucracies, so that the drafters of the Implementing Measures were unaware of the details of the new judicial committee guidance. As I wrote last month, those contain more specific requirements concerning the content of the report that the judges are required to prepare for the judicial committee, including arguments by both/all parties, prosecution/defense counsel and a clear listing of the issues on the application of law that require discussion and decision by the adjudication committee, the opinions of the professional (presiding) judges meeting. The guidance also requires judges preparing these reports to search for similar or related cases. I surmise that these requirements will be consolidated in practice.
- give special authority to the CIAJ in the course of its research work on like cases. It is also possible that CIAJ could encounter major inconsistencies in its other work, such as compiling its Selection of People’s Court Cases (mentioned in my 2017 Tsinghua China Law Review article). Moreover, it is curious that the CIAJ is given this special authority but not an analogous institution in the National Judges College. Article 3 authorizes the CIAJ to submit an application relating to differences in the application discovered in the course of its work, while the Judicial Case Academy of the SPC (under the National Judges College) (see a list of its 2018-2019 research projects) has no such authority, giving the careful reader the impression that the CIAJ led the drafting of the Implementing Measures. It appears to be a version of a phenomenon I described in a draft article, that because the SPC is a large organization, with many entities competing for top leadership attention, policy documents are sometimes drafted with consideration of institutional interests, as a policy document approved by the SPC judicial committee can be seen as representing an undertaking by SPC leadership to the institutional goals of division or entity involved.
One of the more unusual features of the Supreme People’s Court (SPC)’s website is the “Court President’s mailbox,” by which individuals can send an email to SPC President Zhou Qiang (to email@example.com), and where selected responses are published. President Zhou Qiang established it in 2013, almost exactly six years ago. As to why the SPC has a letter to the court president function, the answer is on the SPC website and the article announcing the launching of the mailbox:
Listening to the opinions and suggestions of society is also required of Zhou Qiang as a senior Party leader. It was part of the mass education and practice campaign and continues to be a fundamental principle in the current “Don’t forget the Party’s original aspirations and firmly remember your mission” campaign.
President Zhou Qiang listed establishing the Court President mailbox as an accomplishment in his 2018 report to the National People’s Congress.
Local courts have followed the SPC’s model by establishing their own “Court President’s mailboxes.” From my own experience, not all [non-spam] emails either to President Zhou Qiang’s or a local court president’s email box are considered to merit a response.
The language of the responses is surprising for the reader used to the very formal language of SPC documents. (One follower of this blog was so surprised that he ask.ed me about this). Many of them start with
Hello! We received your proposal (or query), and after consideration, we respond as follows:您好！《关于…..》收悉。……经研究，答复如下:
And end with this language:
Thank you for your support of the work of the Supreme People’s Court! 感谢您对人民法院执行工作的关心和支持！
A quick but unscientific survey of recently published responses follows. As to why people write, judging from my own experience and the content of published responses, it appears that it is one of the few ways to bring a problem (unrelated to a dispute) to the attention of the court authorities. I have no way of determining whether the responses are representative of the letters submitted, but I surmise that the letters are typical (典型).
Some responses relate to specific proposals. Among recent proposals include anonymizing references to HIV infected persons, stipulating the ceiling interest rate in private lending disputes, and uniforms for judges and judges assistants (specific recommendation not described).
Some responses relate to queries on specific practical issues for litigants, such as whether a plaintiff must provide the defendant’s identity card number when filing a lawsuit, and the deadline for an administrative agency to enforce an administrative penalty or fine.
Issues with the social credit system
Responses to persons seeking to lift restrictions against them imposed by the judgment debtors part of the social credit system seem to constitute a substantial number of responses. In 2019, those included letters published on 8 October. 28 June, 12 June, 17 April, 31 January, among others. If affected persons need to write to Zhou Qiang to resolve their problem, it means that the mechanism in the social credit system for lifting restrictions on judgment debtors once they have complied does not work as well in practice as advertised, to the disadvantage of affected persons.
Issues with the operation of the SPC’s case database (裁判文书网)
Letters raising problems with the operation of the SPC’s case database (China Judgments Online) include letters published on 20 August, 16 July, 28 February. Users complain about problems with the search function, slow loading of pages, and other technical problems. In one response the SPC complains about the database being used by companies using webcrawler or web scraping software, and their efforts to combat this by installing software to prevent it. The SPC does not explain why this should be an issue.
(Complaints about the operation of the SPC’s case database are heard worldwide, judging by comments made at a recent international academic conference on Chinese law at 40 years and other academic conferences.) As a consequence many researchers use alternative providers that offer better search functions and loading times. I understand that the SPC has met with some of these alternative providers, but frustrations with the official database continue.
Who writes the responses?
Most responses lack a specific author. Occasionally a response is published in the name of the SPC’s Research Office or Data Center. The careful reader detects inconsistencies in the way that letters are answered, with some persons addressed as Comrade, others by name, while others by Mr./Ms.
A natural question for legal professionals to ask is about the legal authority of these responses, as some of these responses are republished on Wechat public accounts focusing on law or legal information websites. The answer seems to be “it depends”. One recent response to a question concerned the time limit for an administrative agency to apply to a court to enforce an administrative penalty or fine was given by the SPC’s Research Office. The Research Office is the SPC’s “gatekeeper” for judicial interpretations and is involved in drafting or coordinating the drafting (depending on the topic) of judicial interpretations (an academic article stuck in the production pipeline will provide more details). Although the response is not legally binding (unlike a judicial interpretation), a Research Office response is likely to be highly persuasive guidance. It is one of many tools in the the SPC’s guidance toolbox.
On 22 September the Supreme People’s Court (SPC) updated its guidance to the lower courts on judicial committees (关于健全完善人民法院审判委员会工作机制的意见). (also translated as “adjudication committees”) (审判委员会). For those new to this blog, these committees are made up of certain senior members of a court, and they have special decision-making authority, as detailed below. They decide cases that are too difficult or important for an individual judge or judicial panel to decide, to ensure the optimal substantive result (as seen from the institutional perspective of the courts).
The document is a policy document (explained here), as indicated by its document number 法发〔2019〕20号). Lower courts (and the specialized courts) can issue further detailed guidance, have in the past and will do so. In 2010 the SPC issued guidance on judicial committees (2010 guidance), which I analyzed in this article, Reforming-judicial-committees. The article includes some insights from a number of judges with whom I spoke at the time. Reforming judicial committees has been on the SPC’s agenda since the prior round of judicial reforms, as my 2014 blogpost discusses. I predicted that reform would occur “in the medium term.” There are is a great deal of writing about judicial committees in English and especially in Chinese. My 2014 blogpost links to some of the English language research, and other insights about how judicial committees work can be found in Embedded Courts, the prize-winning book by NG Kwai Hang and He Xin.
The broad consensus on judicial committee reform can be seen in Articles 36-39 of the Organic Law of the People’s Courts, as amended in 2018 (2018 People’s Courts Law), but the 2019 guidance sets out more detailed rules.
This blogpost will highlight some of the issues that come to mind in a quick review.
A quick list of what is new follows:
- There are some changes in the format of SPC Opinions (意见) so that it is usual for them to begin with a list of basic principles.
- As to be expected, Party leadership and related principles are listed at the top of both the 2019 and 2010 guidance. Both stress upholding Party leadership of the work of the people’s courts, with the 2019 guidance referring to “upholding the Party’s absolute leadership over the work of the people’s courts.” This should not at all be surprising, as the phrase has been used repeatedly since the 2019 Political-Legal Work Conference. The Party Regulations on Political-Legal Work use the phrase “Party’s absolute leadership.” As I mentioned earlier this year, Li Ling (of the University of Vienna) sees this as indicating a complete and unambivalent severance from the judicial independence framework.
- On membership of judicial committees, The 2018 People’s Courts Law and the new guidance retain the old system of having the court president and vice-presidents, but no longer requires division heads (庭长) to be members, but refers to “experienced”(资深) judges and to the possibility of having full-time members. The SPC already does this. Justices Hu Yunteng, Liu Guixiang, Pei Xianding, and He Xiaorong are full-time members of the judicial committee, which gives them a bureaucratic rank equivalent to being an SPC vice president, with attendant privileges. It is likely that the Central Staffing Commission regulates the number of persons who can be SPC vice presidents. Judging by the SPC website, some SPC judicial committee members are not SPC Party Group members, although of course there is some overlap.
- Another innovation in the 2018 People’s Courts Law, repeated in the 2019 guidance, is having specialized judicial committees, to focus on more specialized issues, and to deal with the problem of having non-specialist judges making decisions on issues regarding which they are not familiar. This provision consolidates ongoing practice in both the SPC and lower courts My understanding is that the Shenzhen Intermediate Court was one of the earlier courts to establish specialist judicial committees. The roots of this innovation lie in the 2004-2008 Second Judicial Reform Five Year Plan Outline. (This also illustrates the time it takes for some judicial reforms to be adopted.)
- On the functions of judicial committees, new language mentions “sensitive, major, and difficult cases such as those involving national security, diplomacy, or social stability.” That language is new as compared to the 2010 guidance. It is not new to the SPC, as it appears in the SPC’s 2017 judicial responsibility regulations, about which I wrote. I surmise that this is just spelling out what had been the general practice. Most of the other functions are consistent with previous guidance.
- The operational language is more detailed than before and gives a glimpse into the bureaucratic nature of the Chinese court system ( a collegial panel or single judge who thinks a case should go to the judicial committee “submit an application and report it up to the court president for approval level by level; and where an application is not submitted, but the court president finds it necessary, they may request that the adjudication committee deliberate and make a decision. The language enabling a court president to designate a case for judicial committee discussion likely represents a consolidation of practice, rather than something new.
- Other procedures in the operational section are new, reflecting the new institution of the professional judges committee and much more specific requirements concerning the content of the report that the judges are required to prepare for the judicial committee, including arguments by both/all parties, prosecution/defense counsel and a clear listing of the issues on the application of law that require discussion and decision by the adjudication committee, the opinions of the professional (presiding) judges meeting. In a clear signal about how the SPC sees the importance of case research, it also requires judges preparing these reports to search for similar or related cases.
- The 2019 guidance requires judicial committee members with a conflict to recuse themselves (the language is unclear about whether a party can apply to do that). This is new, and reflects many years of criticism of the failure to have a recusal mechanism.
- The 2019 guidance also imposes a quorum requirement on judicial committee meetings, both the plenary and specialized committee meetings. Certain outsiders (people’s congress delegates, scholars, etc) may attend, as well as the chief procurator at the same level or his delegate (this latter provision is not new).
- Decisions are made by at least half of the members attending and dissenting opinions must be recorded in the case file. It does not mention that dissenting opinions will be mentioned in the judgment issued to the parties and the public. As before, the decision of the judicial committee is binding on the judge or judges who heard the case (principle of democratic centralism).
- The 2018 People’s Court Law and new guidance require the decision and reasoning in cases discussed by the adjudication committee to be disclosed in the judgment documents unless the law provides otherwise, so a significant step forward in judicial committee transparency. The lack of judicial committee transparency had been criticized for many years.
- Judicial committees at all levels of the courts are now required to create an audio or visual recording of the entire process of judicial committee meetings and keep them confidential. Judicial committee proceedings are required to be incorporated in a court’s caseflow management system. It is not clear from the guidance who or which entity would have access.
- Those not involved in judicial committee proceedings (outside leaders, senior judges not involved) are forbidden from involving themselves in judicial committee proceedings. If this didn’t happen in practice, it wouldn’t have been included in this guidance.
- Similarly, the language in the 2019 rules on judicial committee members and other maintaining confidentiality and work discipline, and not leaking trial work secrets (I discuss this in my article published earlier this year. If this didn’t happen in practice, it wouldn’t have been included in this guidance.
Although for many years proposals have been made to abolish the judicial committee, I have rarely heard anyone who has worked in the Chinese judicial system agree with that proposal. It seems more likely that the SPC thinking is maintaining the judicial committee system is appropriate for China at this time, given the level of professionalism nationwide, the need to share/avoid responsibility for making difficult decisions, and the greater political environment. This guidance appears to be designed to deal with some of the abuses of the judicial committee system, have greater (but not complete) transparency, incorporate new court institutions, and generally improve how the committees operate.
This week the Supreme People’s Court’s (SPC’s ) media outlets are carrying this 10 September report of the Central Inspection Group (CIG) #4’s mobilization meeting to inspect the SPC’s Communist Party group. The same group is also inspecting the Supreme People’s Procuratorate (SPP). Senior leaders (that with a bureaucratic rank of deputy bureau chief and above 副局级以上干部) of the SPC and its institutions attended in person (as well as related personnel). Those in the SPC’s six circuit courts (巡回法庭) attended by videolink. Zhao Fengtong is heading (this English biography is outdated) the inspection group. He gave a speech at the mobilization meeting. President Zhou Qiang, who chaired the meeting, spoke as well. A search of Caixin’s website reveals that Zhao Fengtong has headed many such inspection groups. News of the inspection was announced on the Central Commission for Discipline Inspection (CCDI) website last week and other media outlets. The inspection is part of the current round of CIG inspections, which total 37 Party, government, and other entities. A CIG group last inspected the SPC almost three years ago. The previous mobilization meeting and inspector results were previously mentioned on this blog.
The China Law Society (a mass (government-organized non-government organization)) and the Ministry of Justice are being inspected in this round of inspections. Each has held its own mobilization meeting.
The inspection appears to be one example of the strengthening of Party leadership in the SPC. The inspection appears to be linked to language in earlier documents to strengthen the leadership of the Communist Party (加强党的领导) and to strengthen Party political construction (党的政治建设). The Party Center issued a document on political construction earlier this year.
The remarks that Zhao Fengtong made are consistent with the document on political construction. Some of the points that Zhao Fengtong and Zhou Qiang made are highlighted below (along with my brief comments in italics):
- the SPC, as a central organ, assumes a major political responsibility and glorious historical mission (重大政治责任和历史使命). This phrase is to be found in SPC policy documents supporting important government initiatives;
- Inspections are political supervision and a comprehensive political examination of the implementation by the Party Group of a Central and national organ of its political responsibility and duties (巡视是政治监督，是对中央和国家机关党组织履行政治责任和职责使命情况的全面政治体检). The term “political inspection” appears to be used frequently since earlier this year–the report on the previous mobilization meeting did not use this term.
- The focus is on inspecting how the SPC is implementing the Party line, direction and policies and the major decisions that the Party Center has announced (重点监督检查落实党的路线方针政策和党中央重大决策部署情况);
- The inspection will search out political deviance (深入查找政治偏差). This phrase is found in the document on political construction–“put efforts into discovering and correcting political deviation” (着力发现和纠正政治偏差).
President Zhou Qiang stated that the Party group fully supports the work of the inspection group, will correct the problems found, will not delay or blame. He mentioned that the institution will combine support for the work of the inspection group with current work (要把配合做好巡视工作与抓好当前工作结合起来). The SPC is a court, to whom the public looks for justice. Informal inquiries indicate that the SPC has an even larger civil and commercial caseload this year. Although earlier this year it raised the minimum amount in dispute for cases that it will take, the current state of the economy means that the SPC is facing a large increase in civil/commercial disputes. Domestic cases have a six-month deadline for resolution, placing a great deal of pressure on judges to resolve them timely, either by encouraging settlement or issuing judgments (or rulings).
As in the previous round, the CIG is inspecting the SPC for approximately two months. The inspection group has provided an email and telephone number for those wishing to provide further information.
Background on CIGs and how they operate can be found in a 2016 New York Times article (focusing on the Ministry of Public Security’s inspection) and this scholarly article by Professor Fu Hualing of the University of Hong Kong’s law faculty.
The signing of the UN Convention on Enforcement of Mediated Settlement Agreements (Singapore Mediation Convention) in early August by the United States, China, and 44 other countries is one of the significant events for international commercial lawyers, although it has been lost in the roar of more major geopolitical events. Signing the convention appears to have been a last-minute decision by the government of the People’s Republic of China, as this post by Zhong Lun partner Sun Wei in the third week of July does not give a clear signal as to whether China would sign. In several events at which I spoke or attended this month, the topic of the Singapore Mediation Convention came up. So I’d like to draw on the wisdom of others (and add some of my own thoughts) to talk about the challenges to be faced in rooting the Singapore Convention in [mainland] Chinese soil.
I’ll note that Professors Peter Corne and Matthew Erie have written about the same topic recently for the well-regarded blog Opinio Juris about the background and some of the challenges that China faces in implementing the Singapore Mediation Convention. I appreciate their link to my March, 2019 blogpost on the closed-door workshop held at the International Law Institute of the Chinese Academy of Social Sciences on the Singapore Convention. They have written in detail about the lack of commercial mediation legislation, inconsistencies between the Convention and domestic PRC law, and the lack of private-sector or other robust mediation centers. I’ll add to the analysis several (generally unrecognized) factors:
- taking a more flexible approach to mediation legislation;
- changing state-owned enterprise (SOE) and SOE senior manager metrics and performance indicators to facilitate mediated settlements;
- convincing senior SPC personnel that settlement agreements (as defined by the Singapore Mediation Convention) are more likely to lessen rather than increase the workload of the courts (this has been flagged by Sun Wei in one of his posts);
- having persons committed to making change within bureaucratic institutions.
Flexible approach to mediation legislation
A number of people have written (and even more have spoken) about the obstacles posed by the lack of a Chinese commercial mediation law or general mediation law. But perhaps it is best to follow the usual Chinese legislative approach, and test what is needed through [possibly temporary] [State Council] regulations. Once the outlines of what needs to go into a law are clear, drafters can look to China’s own experience, the 2018 UNCITRAL Model Law on International Commercial Mediation and International Settlement Agreements Resulting from Mediation and experience abroad (characterized as beneficial foreign experience).
Implications for SOEs
On changing SOE (and manager) metrics and performance indicators, Professors Jack Coe, Jr. (Pepperdine University School of Law) and Lucy Reed (National University of Singapore(NUS)) made the comments below on investor-state mediation earlier this year in a conference in Hong Kong on investor-state dispute settlement (ISDS). Although they were not speaking specifically of China, in my view, the principles are also applicable to China and also apply to settlement agreements of SOEs with commercial entities in other jurisdictions:
Relatedly, governments ought to more fully embrace principles of resource management and prudent stewardship in considering how in a given case mediation might bring an end to a risk-laden dispute, allowing the government officials legitimately to declare victory, and then return to the State’s other business. Additionally, we need to study domestic corruption laws and other municipal disincentives to government settlements with foreign investors. State officials [and senior SOE managers] ought to be free to end disputes without fear of corruption charges later being brought against them, in turn putting the settlement itself at risk.
Professor Lucy Reed discussed a 2016 survey that NUS’ Centre for Investment Law (which she headed) conducted on obstacles to settlement in ISDS (for those who aren’t familiar with her, she is one of the leading international commercial and investment arbitrators):
the top obstacle to settlement in ISDS, by far, is the State’s desire to avoid responsibility for a settlement and to defer decision making to third-party arbitrators. The second greatest obstacle is the political risk involved. The third one is the difficulty of getting budget approval when there is a voluntary settlement instead of an arbitral award. Fourth is,as Jack Coe mentioned, a fear of public criticism, media criticism,
and even allegations of corruption in taking a bribe in order to settle a case with a potentially hated investor. Fifth was the fear of setting a precedent, meaning opening the floodgates to being sued again and again because you make a settlement. Then there are structural inefficiencies; because there are so many agencies involved, it is just hard to get approval.
The survey also looked at what might incentivize governments to invite a mediator to participate. Professor Reed said:
By far the most important factor was the desire to save time and money, so, please remember this one. Second, obviously, is when the case is known to be weak and might be lost. Third is appreciating the certainty of a settlement, over which they have some control, as compared to the uncertainty of an arbitration decision, which you might win but you also mightlose and lose big. And the fourth factor actually was the desire to preserve a long-term relationship, if the relations are not already fractured as they often are in big investments.
All of these obstacles and incentives have their Chinese characteristics. One incentive, a variation of the fourth factor that Professor Reed identified, is that it enables a Chinese contractor that has a dispute with a host country (or state-owned company) to resolve a dispute (to its satisfaction) without losing its eligibility for future work in that market. This is a real concern for Chinese contractors, who are major players in the international construction/contracting market.
Resolving issues for SOEs is likely to require a commitment by multiple institutions involved in administering SOEs and its managers (State-owned Assets Supervision and Administration Commission (SASAC), the Communist Party’s Organization Department (组织部), and the Ministry of Finance among others. In a mock mediation session (based on an actual case) that was part of a Great Britain China Centre event that I attended this spring, the benefits of mediated settlements in achieving the goals of all parties involved in a BRI project was brought home. Convincing the SOEs and their regulators will be an important part of making the Singapore Mediation Convention work in China.
Implications of the Singapore Convention for the Chinese courts
As Sun Wei wrote earlier, the Chinese courts are concerned that overworked [I would add, and very studious] Chinese judges will need to deal with a flood of enforcement cases when China ratifies the Convention. He cited data to show that generally parties comply with a mediated settlement and rarely seek compulsory enforcement proceedings. Another major concern of the Chinese courts is that Chinese judges will need to review claims of fraudulent cross-border mediation as well as fraudulent litigation and mediation. But the evidence so far would indicate that the Singapore Mediation Convention would reduce rather increase the workload of the Chinese courts. But the deeper question is the reliability of that data and relevance to China’s legal environment and the legal environment outside of China in which Chinese companies operate. There are more minor issues, such as an additional cause of action (if I understand Chinese civil procedure law correctly), but those aren’t the principal concerns.
Who is committed?
Planting the Singapore Convention in Chinese soil requires work by many related government institutions. The hard work in determining what needs to be done cannot be done one person (or even a team of people) in one institution, but requires persuasion and appeals to institutional self-interest of multiple institutions, and persons committed to making the Singapore Convention work in their regulatory area.
Many thanks to a knowledgeable person for his thoughtful comments on an earlier draft of this blogpost.
I am prefacing this blogpost with a statement that nothing in it (or future blogposts, for that matter) represents the Supreme People’s Court (SPC), the China International Commercial Court (CICC), or the International Commercial Expert Committee (Expert Committee).
On the afternoon of 21 August, Professor Liu Jingdong of the International Law Institute of the Chinese Academy of Sciences (pictured below) and I spoke at the SPC, invited by the #4 Civil Division. Ms. Long Fei, Deputy Director (Person in Charge) of the CICC Coordination and Guidance Office. chaired the proceedings and Judge Wang Shumei, head of the #4 Civil Division, gave concluding remarks. Professor Liu had previously been a guazhi scholar (seconded/temporarily assigned) in the #4 Civil Division (appointed as a deputy division chief, as is the practice). He felt the event was a reunion with his former colleagues. This was the first event to involve lectures by CICC Expert Committee members to judges and other staff at the SPC, including several members of the CICC. I trust that other Expert Committee members will have the same opportunity in the future. I am grateful to all those involved in making all the arrangements needed for the event to take place and to all of those who took time away from dealing with difficult cases and other work to listen to and interact with Professor Liu and me.
The audience of about 40 people (pictured below) included Hu Shihao, head of the Judicial Reform Office, Li Xiao, deputy director of the Research Office, Judge Guo Zaiyu (of the CICC), and many others, including a group of students interning in the #4 Civil Division (seated in the back row). After the formal part of the lecture (and a question and answer session), I was very happy to be able to take a few minutes to share with the students some of my thoughts about takeaways from their internships.
I spoke about the impact of the Belt and Road on the Chinese courts (about which I have previously spoken), market reaction outside of China to the CICC, and some modest suggestions relating to the Expert Committee. I gave my presentation in Chinese, as I knew some in the audience would have difficulty understanding English, although my “foreigner’s Chinese” (洋式中文) may have been a challenge to understand. Professor Liu spoke on the “legalization” of the Belt & Road” (the subject of his 2017 article in 政法论坛). One of my suggestions was that this not be a one-off event. The official report on the event (in People’s Court Daily), is also on the Chinese version of the CICC website.
In early August, the Supreme People’s Court (SPC) issued the National Civil Commercial Trial Work Conference Conference Summary (Draft of the SPC #2 Civil Division for the Solicitation of Opinions from the Public) 全国法院民商事审判工作会议纪要 (最高人民法院民二庭向社会公开征求意见稿. The draft, which sets a comment deadline of 25 August and includes a brief (but useful) introduction, provides a summary of current critical legal issues in domestic commercial law. As explained below, this document provides an excellent example of one of the ways that the SPC guides the lower courts through issuing judicial normative documents 司法文件 or 司法规范性文件 (also called judicial regulatory documents and judicial guidance documents (司法指导性文件) and uses national court conferences to derive a consensus on critical legal issues. The 123-article draft document relates to legal issues, rather than the political issues discussed at length in Justice Liu Guixiang’s speech (as described in a recent blogpost). The fact that this draft was issued for public comment and so quickly shows that guidance from the SPC to the lower courts is needed quickly at a time where the domestic Chinese economy is facing downward economic pressure. I explain what this document is, why it was issued for public comment, and its implications. The planned summary of the issues will need to wait until time permits (perfect is the enemy of the good).
It is a fact that the Supreme People’s Court (SPC) issues a broad range of documents that guide the lower courts in addition to its judicial interpretations. Several recent posts on this blog (and two of my recent book chapters) have focused on several of those documents. One of the documents that the SPC issues is entitled “conference summary/meeting minutes” (会议纪要), which is also a type of Party/government document (as mentioned in earlier blogposts).
As I explained “earlier” (25 years ago) in my 1993 article, the SPC uses specialized court conferences as a way of transmitting central legal policy, unify or harmonize court practices in accordance with that policy, and obtain an overview of court practices and problems. Although conference summaries do not have the status of a judicial interpretation, the lower courts will generally decide cases according to its provisions. “Harmonizing court practice” means in Chinese judicial parlance that judges are applying the law similarly.
The SPC entitles conference summaries “judicial normative documents”（司法文件) judicial guidance documents (司法指导性文件) and sometimes judicial policy documents” (司法政策性文件). As I’ve written before, this fuzzy use of terminology is not unusual. An (authoritative) follower has proposed using the English translation “judicial regulatory document” for 司法规范性文件. An authoritative person (who cannot be named), concurred with the follower’s proposal. The book pictured above, edited by a group from the People’s Court Press (affiliated with the SPC), includes a number of conference summaries (some with commentary by drafters). The editors commented that “although judicial guidance documents are not judicial interpretations and cannot be cited in a court judgment document as the basis of a judgment, it is generally recognized that they have an important guiding impact on the trial and enforcement work of the courts at every level.”
This conference summary appears to be one of the few that has been issued for public consultation (the previous civil/commercial conference summary was also issued for public comment (see here). My understanding is that the usual practice has been to solicit the views of certain experts outside the court system in the drafting process (as well of many in the court system). As to why this draft has been issued for public comment, a knowledgeable person said it was to “hear views from all parts of society (听取社会各界的意见). I surmise that the #2 Civil Division (the division that took the lead in drafting the conference summary) took the view that it was useful to understand the views and comments that “the market” (the legal professional community) has relating the rules in the conference summary before finalizing it. This way the conference summary can be amended before it is finalized to account for any useful comments and the #2 Civil Division can anticipate issues that may arise when the conference summary becomes effective.
Purpose, Implications and Drafting Procedures
In the introduction to the draft, the SPC described its purpose in issuing this conference summary. “The main purpose is in relation to various problems encountered in the process of trial practice, to provide some resolution methods that judges can use as a reference when discussing reasoning in the application of specific laws, to unify judicial thinking, and limit judicial discretion, work hard to have the masses feel justice in every case” (主要目的是就审判实践中遇到的一些问题，提出解决方案，作为法官在具体法律适用、进行说理论证时的参考，统一全国法院的裁判思路，约束法官自由裁量空间，提高司法公信力，稳定当事人、法律工作者及社会的预期，努力让人民群众在每一个司法案件中感受到公平正义). The conference summary has implications for the legal professional community as a whole (particularly lawyers and in-house counsel) because it signals what approach the lower courts are likely to take to current controversial issues.
According to the notice, the drafters of the conference summary combined the legal issues set out in Justice Liu’s report with issues raised by delegates at the conference and issues derived during the process of preparing for the conference. As described in the book chapters mentioned above (and in great detail in a book chapter stuck in the production pipeline), this is representative of judicial interpretation and judicial document drafting.
From the number of articles relating to specific issues, it is possible to see where the inadequacies in current legislation exist and where the courts lack consensus on important commercial law issues. Since the draft was issued, Chinese law firms have published articles focusing on specific issues. Time does not permit me to explain its provisions now.
- Issues related to the application of the General Principles of Civil Law and its relationship with other legislation (5 articles)(《民法总则》适用的法律衔接问题（5条）)
- Trial of company disputes (22 articles) (关于公司纠纷案件的审理（22条）)
- Trial of contract disputes (26 articles) (关于合同纠纷案件的审理（26条)
- Trial of security disputes (18 articles)(关于担保纠纷案件的审理（18条)
- Financial consumer rights protection disputes (6 articles)(关于金融消费者权益保护纠纷案件的审理（6条)
- Trial of securities disputes (11 articles)关于证券纠纷案件的审理（11条）
- Trial of business trust dispute cases (7 articles)(关于营业信托纠纷案件的审理（7条）)
- Property insurance disputes (6 articles)(关于金融消费者权益保护纠纷案件的审理（6条）)
- Trial of commercial paper disputes (4 articles)(关于票据纠纷案件的审理（4条)
- Bankruptcy cases (13 articles) (关于破产纠纷案件的审理（13条）
- Trial of cases involving third party objection to enforcement and withdrawal of a case (5 articles) (关于案外人执行异议之诉和第三人撤销之诉纠纷案件的审理（5）
- Cases with both civil and criminal aspects (2 articles) 关于民刑交叉纠纷的处理（2条）
- Etc. (1 article)
A brief notice appeared on the China International Commercial Court (CICC)’s websites on 9 August, announcing that the Office of the International Commercial Expert Committee (Expert Committee) of the Supreme People’s Court (SPC) (国际商事专家委员会办公室) had been renamed the Coordination and Guidance Office (协调指导办公室) for the CICC from 21st June 2019. The main duties of the Office are described as directing and coordinating construction, adjudication management and external exchange (负责指导协调国际商事法庭建设、审判管理、对外交流; 负责国际商事专家委员日常工作等) of the CICC, and also in charge of the routine work of members of the Expert Committee. I surmise that these functions are meant to convey that the office will not only support activities related to the Expert Committee but also be responsible for a variety of matters, such as coordinating the drafting of rules and the wide variety of administrative matters that go along with any administrative entity in China, particularly one that deals with foreigners. The notice also announced that from 23rd July 2019, Ms. Long Fei, who has a Ph.D. from China University of Political Science and Law, has been appointed as the Deputy Director (Person in Charge) of the Coordination and Guidance Office. She had formerly been the Director of Department of Guidance Service, Judicial Reform Office of the SPC. She brings to the new role many years of work on diversified dispute resolution related issues.
During the first week of July, the Supreme People’s Court (SPC) held its civil/commercial work conference (民商事工作会议), at which senior SPC and lower court leaders (and other leaders) gathered to hear about the latest SPC policies concerning civil and commercial cases.
As this blog has noted, most of the work of the Chinese courts involves civil and commercial disputes, not criminal cases. President Zhou Qiang gave an important speech which set the tone for the conference, but the one that the practitioners (judges and lawyers) are paying close attention is the keynote speech by Justice Liu Guixiang, full-time member of the SPC Judicial Committee and organizer of the conference. From the content of Justice Liu’s speech, it appears that the focus was domestic commercial cases. For those who want to review the text in full, it is available here and here (the second version was published on the Wechat account Empire Lawyers (法客帝国)and includes an introduction and highlighting by the lawyer who has the account.) (The last conference was in December 2015.) This blogpost highlights some of the many issues his speech raises.
(For those not familiar with SPC work conferences, the description I provided 25 years ago remains accurate: “Another important way through which the [SPC] uses these meetings is to transmit central legal policy, unify court practices in accordance with such policy, and obtain an overview of current court practices and problems.”)
Justice Liu Guixiang is a senior member of the SPC and one of a relatively few senior judges who graduated from the University of International Business and Economics (UIBE) (formerly affiliated with the predecessor to the Ministry of Commerce (MOFCOM)) and so is familiar with cross-border issues in particular (and was earlier head of the #4 Civil Division, in charge of cross-border issues). He is well known to the international community. Justice Liu has been given responsibility for the SPC’s campaign to basically resolve enforcement difficulties within two or three years (as the former head of the Enforcement Bureau). Because problems in the Chinese economy means that many more business deals in China are ending up as disputes in the Chinese courts, the SPC needs to signal to the lower courts how important issues should be handled and to the senior political leadership that the courts are supporting the Party and its core.
Justice Liu conveyed messages on two types of issues to two parts of the audience for his speech. The two parts of his audience were (are) the political leadership and tens of thousands of judges involved with civil and commercial issues, as well as others in the court system. The two types of issues are political issues and legal issues, both on substantive law and procedural law. People outside of China might be tempted to dwell on the political messages (as this analysis does, as time doesn’t permit better analysis of the legal issues), but the messages on legal issues are those ones that will have the greatest impact on the court system and on practitioners. The speech will be reviewed, discussed, and used as the basis for further work in the court system, and attentive lawyers and in-house counsel know that the content of the speech will affect their litigation strategy and business. I’ve spotted one synopsis on the takeaways from the conference from one of Beijing’s prestigious law firms and more are following.
The first part of his speech addressed political issues, but that part also includes some highlighting of critical legal issues. He states that politics is the most important. Justice Liu repeats some of the “innovative” language from January’s Political-Legal Work Conference that I mentioned in a blogpost earlier this year (with which his speech is harmonized). “As a political and legal organ, the people’s court is first and foremost a political organ. It must put political construction in the first place and clearly talk politics” )人民法院作为政法机关，首先是政治机关，必须把政治建设摆在首位，旗帜鲜明讲政治 )(I was tested on the phrase “talk politics/讲政治“ recently by some persons in the system with a sense of humor).
Principle #1 (of four)–“To uphold the absolute leadership of the Party. The leadership of the Party is the fundamental requirement of socialism with Chinese characteristics, and it is the root and soul of the people’s court.”…However, “the erroneous thoughts of so-called “constitutionalism”, “separation of powers” and “judicial independence” of the West must be resolutely resisted. This is a major issue of political principle and we cannot be vaguely ambiguous.” One commentator noted that this principle is greater than any ordinary principle of law.
This language harkens back to that used by President Zhou Qiang in January 2017. Why this was included, when the audience would know these principles clearly? Likely for senior political leadership to see that the courts are harmonized with the Center and to ensure that the Center knows that SPC leadership is doing everything to ensure court cadres (judges and other court officials) are as well.
Principle #2, serve the Party and the greater situation.
Justice Liu reminds his audience that “it is necessary to fully realize that there is no rule of law that does not have political positions or political views” (没有不具有政治立场、政治观点的法治). In civil and commercial trials, we must have a stable political stance, determine the political direction correctly, pay attention to the political effect, consider the political influence (impact), and be good at analyzing complicated issues from the perspective of politics, from the perspective of the fundamental interests of the people, and from the perspective of the overall economic and social development of the party and the country, integrate politics in civil and commercial trial work.” （在民商事审判中必须站稳政治立场，把准政治方向，注重政治效果，考虑政治影响，善于从政治角度从人民群众根本利益角度、从党和国家经济社会发展大局的角度分析处理错综复杂的民商事矛盾纠纷，把政治融入具体的民商事审判业务中.
Interestingly, he notes that the system of recording interference by senior court leaders and other Party/government leaders has not been effective, and this must be implemented as well as the judicial responsibility system (问题在于我们在审判实务中没有不折不扣地落实好，非法过问案件登记制度的功能没有得到有效发挥。必须采取有效措施把这项与司法责任制相配套的改革措施落到实处). This appears to be a reflection of the concern of many judges that they will be held responsible for judicial decisions that they made because they were under pressure to do so from senior court officials or local officials.
American civil (and criminal) procedure law professors would be intrigued to know that “so-called long-arm jurisdiction” merited mention in Justice Liu’s speech (“Pay close attention to the United States’ all-around suppression in the fields of economy, politics, science and technology, etc. and the implementation of so-called ‘long-arm jurisdiction”‘to bring new challenges to our country’s judiciary;高度关注美国从经济、政治、科技等领域对我国进行全方位打压，实施所谓“长臂管辖”给我国司法带来的新挑战.
Justice Liu includes in this section several legal issues and highlights the way that Chinese judges should think when hearing cases:
When making judgments, we must fully consider the overall situation of economic and social development, political effects, and social effects. When dealing with major and sensitive cases, we must pay attention [carefully listen] to the opinions of financial supervision departments, state-owned asset management departments, and social organizations such as small and medium enterprise associations to accurately grasp the overall situation of social stability, social impact, and political impact. 我们在作出判断时，要充分考虑经济社会发展大局、政治效果、社会效果. 在处理重大敏感案件时，要注意听取金融监管部门、国有资产管理等部门以及中小企业协会等社会组织的意见，精确把握社会稳定大局、社会影响、政治影响。
Justice Liu called for more work on bankruptcy law, particularly strengthening coordination with government, resolving obstacles in bankruptcy liquidation and reorganization, and introduce judicial interpretations to deal with the legal issues. In order to prevent and resolve major risks, the people’s courts should issue judicial interpretations or judicial policies on issues such as bond defaults that directly affect financial security and social concerns, equity pledges of listed companies, and Internet lending.
He calls for deepening supply-side structural reform and promoting high-quality economic development; clearing out “zombie enterprises”; preventing financial risks, protecting the legitimate rights and interests of private enterprises, establishing a legalized business environment, and other civil and commercial matters, and mentions the “Fengqiao Experience,” but in relation to the 2018 SPC Joint Opinion with the China Securities Regulatory Commission on increasing diversified dispute resolution for securities disputes and a single dispute resolution platform linking litigation and other forms of dispute resolution. He flags future work in using other forms of dispute resolution to resolve financial/securities disputes.
Substantive legal issues are the ones that have attracted the interest of judges and other legal professionals. Politics is also visible in the way that Judge Liu phrased his summary of the legal issues briefly noted below (particularly his use of dialectical analysis, consistent with Party Center language). (This analysis will be expanded later as time permits). The issues that he is highlighting are the major ones, particularly regarding commercial issues. He is providing the view of the SPC (likely drawing on the views of the #2 Civil Division, the division focusing on domestic commercial issues), and is signaling where Chinese courts are in disagreement and should conform.
As to why Chinese courts disagree or are unclear on these issues, and why this speech will unify courts’ approaches, it has to do with Chinese legislation and judicial interpretations. Judge Liu’s speech is a type of judicial policy document, in essence. As I mentioned in a recent blogpost, rules or policies included in SPC judicial policy documents may eventually be crystallized in SPC judicial interpretations and eventually codified in national law, but that process is slow and cannot meet the needs of the lower courts. The lower courts need to deal properly (politically and legally) with outstanding legal issues pending a more permanent stabilization of legal rules. This is true for judicial policy documents in all areas of the law, not only in commercial law. Therefore Justice Liu used this conference to convey the SPC’s views:
- He flags the issues where Chinese courts disagree: validity of external guarantees given by companies; the validity of a contract if a fake chop is used; scope of the security rights when a security contract and registrations are inconsistent; guarantee contracts linked to shareholding (让与担保）; how to adjust damages, how to implement the right to terminate a contract (如公司对外担保的效力问题、盖假章合同的效力问题、合同约定与登记簿记载不一致的担保物权的范围问题、让与担保问题，甚至连违约金如何调整、解除权行使的条件等一些常见问题);
- Methodology–in trying difficult and new civil and commercial issues, judges should search for “similar cases” and determine whether prior cases have derived related principles. This links with my recent blogpost flagging the SPC’s development of its case law system (with Chinese characteristics). Justice Liu does not use the word “precedent.” He directs judges to consider whether principles in prior cases are applicable, if not, reasons should be given, and if an old principle is to be reversed, reasons should be given and these should be discussed by either the specialized judges committee or judicial committee. He stresses what I had mentioned previously, that principles are needed on what the scope of “similar cases” are.
- On disputes involving Value Adjustment Mechanisms (VAMs), judges should seek to coordinate the conflicts of interest between investors, companies and creditors. and implement the principle of capital maintenance and the principle of protecting the legitimate rights and interests of creditors, and to balance the interests of investors, shareholders, the company, and its creditors;
- He repeats SPC policy on an old FAQ (frequently asked question)–what if a contract violates a local policy, normative document, or ministerial rule–should a court invalidate the contract? The answer is no, the court needs to consider whether there is a violation of public order (公共秩序), which he says is mostly seen in violations of law or State Council administrative regulations;
- How to protect all types of entities equally and provide special protection to groups such as minority shareholders and financial consumers;
- He gives practical guidance to for judges grappling with a theoretical legal issue–how to understand the status of the relevant law when the General Principles of Civil Law (2017) is inconsistent with earlier legislation such as the 1986 General Principles of Civil Law, the 1999 Contract Law, the Company Law (last amended in 2018). The new law supersedes inconsistent prior law, but if provisions of the 2017 law are inconsistent with the special part of the Contract Law, the Contract Law prevails (on the theory that specialized provisions prevail)
- Issues related to the validity of contracts, including contracts that never went into force,
- Corporate guarantees to third parties–an issue regarding which there has been a great deal of litigation and court rulings have varied widely, He sets down some rules;
- How to correctly understand a provision of the Company Law Judicial Interpretation #2, that gives creditors the right to seek the liquidation of a company in certain circumstances;
- Private lending (particularly interest-related issues);
- Issues related to a debtor or guarantor using company shares to secure an obligation, and the related rights of the company and its creditors, voting rights and rights to dividends in the company., and whether the creditor has a priority right. Justice Liu notes the law is silent on the validity of such agreements but the SPC takes the view that these agreements are valid, as long as no mandatory provisions of law are violated;
- Remedies for a third party–raising objections in enforcement proceedings, requests for retrial, and applying to proceedings.
- How to deal with cases with both civil and criminal aspects–if civil and criminal case involves the same facts, it should be referred for criminal investigation first, and if there is some dispute, it can be coordinated by the local political-legal committee. The major issue in practice is how to determine whether “the same facts are involved.” Justice Liu points his audience to several factors. This is also an old issue in the Chinese courts, but has taken on new importance now that the Chinese government is using criminal prosecution to deal with abuses in the financial system that affect the interests of consumers and investors.
Not said in Justice Liu’s speech is whether the broad substantive content will be reissued in a form more useful to frontline judges (and other members of the legal community). If practice is any guide, that is likely we will see a conference summary (会议纪要)–the SPC issued a conference summary based on the 2015 conference 11 months after the conference itself, on one set of issues.
The Supreme People’s Court (SPC) (and its constituent divisions, bureaus, and offices) guide the lower courts on substantive and procedural law in multiple ways. It does this under its authority to supervise (监督) the lower courts under Article 10 of the Organic Law of the People’s Courts. One of those ways is through issuing documents described in a recent blogpost as judicial normative (司法规范性文件) or regulatory documents. A recent blogpost looked at one category of them–opinions (意见). My focus is on how these documents are used to give guidance on substantive or procedural legal issues, rather than matters of court administration. The SPC has long used these types of documents, as I discussed in my 1993 article. Observation reveals that these are sometimes issued in the name of the operational divisions and sometimes offices, rather than the SPC itself, but often with a document number indicating that it was issued by one of the operational divisions of the SPC.
In late 2016, the SPC’s People’s Court Press published a collection of responses to requests for instructions in the book pictured above (some are entitled fuhan 复函 and others dafu 答复. Some had been previously published (in publications edited by SPC functional divisions) and others were published for the first time, with the editors describing them as ‘usually called quasi-judicial interpretation documents’ (往往被称为准司法解释性文件) and ‘a necessary supplement to judicial interpretations’ (它是对司法解释一种必须的补充). The editors further noted that later judicial interpretations will supersede the documents in the book.
These types of documents are used by the Communist Party and government as well. So using these forms of documents signals one of the many administrative aspects by which the SPC operates. In fact (as I have written before), the SPC has issued its own measures on official documents (人民法院公文处理办法), further implementing the Party and government’s regulations on official documents (党政机关公文处理工作条例). The SPC, like other Party and state organs, handles requests for instructions (qingshi 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, and is therefore a typical Chinese administrative procedure.
One subcategory of these responses are the ones issued by the SPC’s #4 Civil Division, the division focusing on cross-border commercial and maritime issues. These are responses to request from instructions (请示) from provincial-level courts (including the higher courts of Beijing, Shanghai, Tianjin, and Chongqing), as required by the SPC’s Prior Reporting system for arbitration matters. T
The procedure is for the most part more regulated by custom than by written guidelines, although several SPC documents address the Prior Reporting system (see this useful article, with a description of ongoing issues and recent reforms permitting counsel to be heard). For those unfamiliar with the SPC’s Prior Reporting system, judgments/rulings in which a lower court intends to refuse the (recognition and) enforcement of a foreign-related, foreign arbitral award or agreement (see a further explanation here) or annul foreign-related awards. The response is binding on the lower court regarding the particular case. The #4 Civil Division regularly publishes these replies (some entitled 答复 and others entitled 复函) (and the reports from the lower courts) in its periodical China Trial Guide: Guide on Foreign-Related Commercial and Maritime Trial （中国审判指导丛书：涉外商事海事审判指导) (one issue pictured below). On the matter of terminology, two knowledgeable persons said there is no substantive difference between the two documents. There is no transparency obligation, but knowledgeable persons say that most are published.
These responses are connected with two aspects of the last blogpost–case law and judicial interpretations. Arbitration lawyers discuss these responses as a particular form of case law in, for example, law firm client alerts or in other publications. It is understood that most of the replies in the area of foreign-related and foreign arbitral awards are published. Some have been translated into English. The principles in these responses may eventually find their way into judicial interpretations or other SPC policy documents (such as opinions).
I had mentioned in an earlier blogpost that some persons on the SPC had earlier proposed that the procedure for seeking instructions (请示) be proceduralized, while others (academics) had proposed that the procedure be entirely abolished。 However, the procedure is mentioned in the 2017 SPC responsibility implementing opinion and certainly remains in operation even after the latest round of judicial reforms. Sometime in the future I will address how the procedure for seeking instructions operates in other divisions of the SPC.
This illustrates that the vision for the reformed SPC remains a court with administrative characteristics（官本位), in this situation dealing with Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York Convention) (and analogous) issues through a traditional administrative system.
As mentioned in my earlier blogpost, the Supreme People’s Court issued the fifth judicial reform plan outline in February, of this year (2019), harmonized with the current focus on Party leadership. For people with the fortitude to decode Chinese official documents, some real content can be found in the document. One of those provisions is #26 and relates to the ongoing efforts of the SPC to implement greater uniformity and consistency in the way that the law is applied in the courts (the translation below is from Chinalawtranslate.com):
#26 Improve mechanisms for the uniform application of law. Strengthen and regulate work on judicial interpretations, complete mechanisms for researching, initiating, drafting, debating, reviewing, publishing, cleaning up, and canceling judicial interpretations, to improve centralized management and report review mechanisms. Improve the guiding cases system, complete mechanisms for reporting, selecting, publishing, assessing, and applying cases. Establish mechanisms for high people’s courts filing for the record trial guidance documents and reference cases. Complete mechanisms for connecting the work of case discussion by presiding judges and collegial panel deliberations, the compensation commission, and the judicial committee. Improve working mechanisms for mandatory searches and reporting of analogous cases and new types of case. (完善统一法律适用机制。 加强和规范司法解释工作，健全司法解释的调研、立项、起草、论证、审核、发布、清理和废止机制，完善归口管理和报备审查机制。完善指导性案例制度，健全案例报送、筛选、发布、评估和应用机制。建立高级人民法院审判指导文件和参考性案例的备案机制。健全主审法官会议与合议庭评议、赔偿委员会、审判委员会讨论案件的工作衔接机制。完善类案和新类型案件强制检索报告工作机制)
As for why the uniform application of law is an issue, the quick explanation is the drafting of Chinese legislation often leaves important issues unresolved and outsources to the SPC (and SPP for some issues) the hard job of drafting more detailed provisions. (see Chinalawtranslate.com for many examples and NPC_observer.com for insights about the legislative drafting process). Comments about the role of case law are found below.
#26 mentions the following:
- improving judicial interpretations;
- improving the guiding case system;
- establishing a system for higher people’s courts to record with the SPC their guiding-type documents and reference cases;
- improving China’s case law system.
The SPC regulations on judicial interpretation work date from 2007. Some later guidance on that topic was issued several years ago, but that guidance has not been made broadly available. So it appears that one signal that this provision is sending is that the 2007 regulations need to be updated. It appears likely that the SPC will harmonize the language in its rules with the 2015 Legislation Law. Other provisions are unclear. One guess (based on the SPC document on incorporating socialist core values into judicial interpretations) is that language about socialist core values will be incorporated into any amended rules on judicial interpretation work. The Supreme People’s Procuratorate (SPP) revised its rules on judicial interpretation work earlier this year, and it is possible that the SPC will harmonize some of the language in its rules with those of the SPP.
Another guess is that those rules will codify existing practices on drafting, discussions, etc.. As my blogpost (and recently published article) on the SPC’s Pilot Free Trade Zone Opinion details, the drafting process for judicial interpretations (and similar types of guidance) operates on the basis of long-standing practices. (My forthcoming article stuck in the academic publishing process has many more details on the drafting process for criminal procedure law interpretations).
This provision appears to be aimed at the SPC’s Research Office, which takes the lead in managing the judicial interpretation process and deals with ongoing criticism that the SPC allows inconsistent judicial interpretations to be issued. It is unclear whether the improvements mentioned will involve more public consultation than previously.
I will leave detailed comments on how the guiding case system will be improved to others, as research by others (see Jeremy Daum’s article) tends to show that guiding cases are rarely cited. I surmise that the intent of the provision is to speed up the selection and approval process for guiding cases, as well as the use rate.
Local High Court Guidance
This language codifies the long-standing practice of local high courts issuing guiding rules applicable within their jurisdictions. As discussed in my article on judicial transparency, published earlier this year, senior legal scholar Li Buyun raised questions about the validity of local court guidance in his letter to the Legislative Affairs Commission of the National People’s Congress last year (2018). Article 104 of the Legislation Law forbids adjudication and procuratorate organs other than the
Supreme People’s Court and the Supreme People’s Procuratorate from making specific interpretations on the application of law. 2010 SPC guidance had normalized the long-term practice of higher people’s courts (and their equivalent in the specialized courts) in issuing documents, characterized as ‘”trial work documents” （审判业务文件) and issuing reference-type cases (参考性案例).
Evidence of the importance of the practice can be seen by the fact that leading law firms publish client alerts about important local court guidance. This provision calls for a filing for the record system (with the SPC) of higher court guidance and reference cases to be established. It is not clear whether this system (apparently intended to enable the SPC to monitor local guidance and reference cases better) will result in a system that provides greater transparency to these rules. I had noted varying transparency requirements for local court guidance in my article. The Gazette of the Jiangsu Higher People’s Court (pictured above) publishes its court guidance under the section “judicial documents” (司法文件). That Gazette also includes local reference cases, entitled reference cases (参考案例)。 Terminology for local reference cases is not consistent, with the Shanghai Higher People’s Court issuing cases with a referential nature (参考性案例).
Improving China’s Case Law System
I wrote about in greater length in this short academic article published in the Tsinghua China Law Review two years ago (and in this blogpost three years ago) on how non-guiding cases guide. This part of the #26 consolidates some of the provisions of previous judicial reform documents and signals that the SPC’s judicial reform office is focusing on how to provide better guidance to the lower courts on using non-guiding cases and other forms of guidance documents that are not judicial interpretations. One issue not specifically mentioned is the relative authority of guidance documents and judgments/rulings by courts. It is assumed that SPC decisions are more authoritative than lower court ones.
The first sentence addresses the use of other forms of case guidance and transforming this case guidance into written documents. The titles, authority, etc. of these guidance documents are likely to be settled over time. One type that I have observed is the specialized judges conference (专业法官会议)(mentioned in at least two 2017 SPC documents: Opinions on Putting a Judicial Responsibility System in Place and Improving Mechanisms for Trial Oversight and Management ;(Provisional) and the SPC’s Judicial Responsibility implementing opinion (最高人民法院司法责任制实施意见（试行）(Implementing Opinion), In these conferences, difficult issues are discussed and provided to the collegial panel involved, but the panel members are not bound by the views of the conferences. This academic study notes that it is a uniquely Chinese institution and has arisen because of judicial caution about deciding cases independently (可以说，专业法官会议是中国特色的法院内部向办案法官提供咨询意见的专门机构，是在走向审判独立的特殊过程中，对法官自由办案能力担心而产生的一种特殊组织), likely in the face of extensive and long term accountability for decisions.
Some portion of SPC specialized judges conference discussions has been consolidated in the form of documents, such as in the form of a conference/meeting summary (会议纪要). The SPC’s #2 Civil Division (focusing on commercial issues) seems to be leading the way in publishing these meeting summaries–some of the summaries have been published in book form, also with updates published on the internet/Wechat–see this example.
The last sentence of #26 addresses the case law system. The increasing importance of non-guiding cases shows the strength of the case law system that the authorities rejected about 10 years ago. It is clear from Justice Hu Yunteng（currently president of the National Judicial College)’s recollections of the history of the case system with Chinese characteristics, that Judge Jiang Huiling, then his colleague at the China Institute for Applied Jurisprudence (and currently vice president of the National Judges College) had looked to jurisdictions outside of China to advocate that China establish a case law system (Justice Hu doesn’t specify whether Judge Jiang was looking to case law systems in civil or common law jurisdictions in the “West.”). Mark Jia (of Harvard Law School), in his 2016 article, cites Li Shichun of the Chinese Academy of Social Sciences to the effect that it was the NPC that opposed those seeking to establish a Chinese case law precedential system.
My understanding that the last sentence is intended requires judges handling a case to engage in similar case searches and to report on the results of those searches in certain circumstances (for example, to report on their search before the case is discussed in the specialized judges conference). My earlier blogpost discusses the 2018 document requiring prior case search.–the specific rules for prior case search are not yet in place. What should be searched is not entirely clear. One knowledgeable person described prior case search as a tool for “catching valuable cases in the sea of cases.” My own understanding is that it will depend on the area of law. It can be seen from the last blogpost the type of cases considered authoritive in criminal law, but the types of persuasive cases will differ in other areas of law. Prior case search is meant as a tool for the courts to apply the law more consistently (and consistent with the views of the SPC) (an ongoing goal of the SPC). It is also likely that new legal rules evolved in cases will eventually be crystalized in other forms of documentary guidance, be it local court guidance, an SPC policy document, or an SPC judicial interpretation.
On the topic of precedent, as I noted in my 2017 blogpost on the SPC’s implementing opinion on its judicial responsibility system, special approval within the SPC is required if a ruling in a case will be inconsistent with prior SPC rulings on the issue. It means that the SPC is seeking to improve the consistency of its judgments internally.
So it appears that we will be seeing further evolution over the next few years in the tools used by the Chinese courts to provide legal rules: judicial interpretations, guiding cases, local high court guidance and reference cases, other guiding documents, and prior cases, with many of these intended to strengthen the firm guiding hand of the SPC.
This newly published volume 刑法注释书（Criminal Law Treatise), the first volume in a series of treatises for practitioners, is critical for understanding how Chinese judges and other practitioners approach China’s Criminal Law. This reference work was edited by He Fan, head of the planning section of the Supreme People’s Court Judicial Reform Office. He has a PhD in criminal law. Earlier in his career was a policeman and a criminal court judge, so he has insights from the world of practice about what judges and others who need to understand the law on a particular crime correctly (正确). The idea from the volume arose from a project that he did with the Shanghai Higher People’s Court. And He Fan notes in his article introducing the book that the organizing principle for this book is influenced by a volume on Criminal Law edited by Hsu Yu-hsiu, former grand justice on Taiwan’s Constitutional Court and a handbook on search and seizure by Taiwan National University Professor Lin Yu-Hsiung. Both books draw on the approach of traditional Chinese criminal law books of setting out the statute provisions with annotations (注释).
The book assembles in a single deceptively small volume the principal sources of law and guidance that those involved in the criminal justice system in China need to access.
The organizing principle for the book is as follows:
- legislation–article of the law and any prior versions of the article, with any explanation (说明), including explanations of the amendment (立法-要点注释);
- Related legislation (相关立法);
- legislative interpretations (立法解释); (these are binding and have a higher status than judicial interpretations);
- Legislative opinions of an interpretive nature (立法解释性意见)–responses by the Legislative Affairs Commission (and its Criminal Law Office) on issues of criminal law. These do not have a formal status under Chinese law, but are authoritative guidance. (Thank you to Changhao Wei, NPC Observer, for this comments on this) ;
- judicial interpretations (司法解释) (these can be by the SPC, the Supreme People’s Procuratorate (SPP), or the two together. These have a formal legal status under Chinese law and the SPC and SPP have declared that they have the status of law;
- judicial guiding documents (司法指导文件)–these are documents providing guidance on criminal law issues from the Central Political-Legal Commission, the SPC and its Research Office, various criminal divisions, SPP and its Policy and Research Office, and other related documents (as mentioned in the previous blogpost, these types of documents lack a formal status, but are highly authoritative);
- judicial interpretations–annotations司法解释-注释 and judicial guiding documents–annotations 司法指导性文件-注释–these are related “understanding and application” documents (相关文件理解与适用) authoritative explanations by the drafters of judicial interpretations and judicial guiding documents (previous blogposts have drawn on these “understanding and application documents”);
- If multiple judicial interpretations have been issued on an issue, annotations to each;
- Guiding cases–courts 指导性案例-法院 (translations available at the China Guiding Cases Project);
- Guiding cases–procuratorate指导性案例-检察 (translations of many available at Chinalawtranslate.com);
- SPC bulletin cases 法院公报案例 (I have written about the hierarchy various types of SPC approved cases in my Tsinghua China Law Review article);
- Court reference cases 法院参考案例 (these refer to the cases in Reference to Criminal Trial, the publication of the five criminal divisions of the SPC), also mentioned in my article and a January, 2018 blogpost;
- public security documents ( 公安文件)–documents of the Ministry of Public Security (MPS), the MPS legal affairs bureau, the economic crime investigation bureau and other related guidance documents).
I recently participated in an academic conference in which one speaker discussed Chinese judicial documents (other than judicial interpretations). The speaker’s view was very critical of them, a view shared by a good number of academics in China. A recent law review article published in a US law journal mischaracterized at least some of these documents. I have my own views and understanding of what these documents mean, based on many years reviewing these documents and long discussions with knowledgeable people “who cannot be named” and whose help can only be indirectly acknowledged. I have discussed SPC judicial documents in an earlier blogpost. I also discuss them in my book chapter on judicial transparency, and book chapter on the Supreme People’s Court’s (SPC) policy document on free trade zones, the Opinions on Providing Judicial Guarantee for the Building of Pilot Free Trade Zones (最高人民法院關于為自由貿易試驗區建設提供司法保障的意見 FTZ Opinion). This blogpost melds excerpts from those book chapters.
It is a fact that the Supreme People’s Court (SPC) issues a broad range of documents that guide the lower courts in addition to its judicial interpretations. The SPC creates and transmits to the lower courts new judicial policy in the form of an “opinion” (意见), which is also a type of Party/government document. This same term is used for documents jointly issued by the SPC and institutions not authorized to issue judicial interpretations. This blogpost focuses solely on SPC policy documents.
The SPC classifies opinions as “judicial normative documents” (司法文件 or 司法规范性文件(the title of this Wechat public account) and sometimes judicial policy documents” (司法政策性文件). As I’ve written before, this fuzzy use of terminology is not unusual. An (authoritative) follower has proposed using the English translation “judicial regulatory document” for 司法规范性文件. An authoritative person (who cannot be named), concurred with the follower’s proposal. Those with views on the translation point should use the contact function or contact me by email.
These documents are issued with the identifier “法发” (fafa), indicating that they have been approved by the judicial committee of the SPC or one or more senior SPC leaders. Transparency is better than before (and the SPC has issued documents encouraging greater transparency) but there is no strict publication requirement, unlike judicial interpretations.
The FTZ Opinion is an example of how the SPC supports the Party and government by issuing documents to support important initiatives. This is a subject that I have written about on this blog before. These SPC policy documents signal an evolution of judicial policy, establish new legal rules and direct the lower courts. Lower courts implement these measures in various ways, including in their court judgments or rulings and to further implement SPC judicial policy documents. Local courts may issue implementing guidance, as SPC policy is intended to be a framework under which local courts issue more specific measures to deal with specific local issues.
The FTZ Opinion signals evolving judicial policy to FTZ courts in a number of areas, including on civil and commercial law issues. For example, it states that courts should
support FTZ finance leasing companies and should respect the agreement of cross-border parties regarding jurisdiction and governing law. It states that a finance lease contract shall not be determined to be null and void because relevant procedures had not been performed.
The drafting of these judicial policy documents, such as the FTZ Opinion, follow a drafting process similar to judicial interpretations. The usual practice in drafting judicial interpretations is for the SPC to engage in extensive research and fieldwork, consult with related institutions within the SPC and external institutions when relevant (another academic article stuck in the production pipeline will describe the process in more detail).
The drafting team for the FTZ Opinion engaged in several years of field work, established an FTZ Research Base in Shanghai, held a Judicial Forum for the Pilot Free Trade Zones, solicited the views of experts and local courts, in the areas where FTZs are located. The SPC’s #4 Civil Division, in charge of foreign and cross-border related civil and commercial cases and related issues, took primary responsibility for drafting the opinion. The reason that the #4 Civil Division took the lead was that much of the substantive parts of the FTZ Opinion relates to foreign trade, foreign investment, and cross-border arbitration issues. Earlier Shanghai local court guidance was incorporated into the FTZ Opinion. Once the draft was relatively advanced, it was circulated to other relevant areas of the SPC for comments. As the team of judges who led the drafting focus on cross-border civil and commercial issues, they sought comments on related issues from the Research Office, likely one of the criminal divisions and the administrative division. Consistent with general judicial practice (and SPC rules), the FTZ Opinion was not issued for public comment. The drafting of the FTZ Opinion is one small example of the quasi-administrative way in which the SPC operates.
Rules or policies included in SPC judicial policy documents may eventually be crystallized in SPC judicial interpretations and eventually codified in national law, but
that process is slow and cannot meet the needs of the lower courts. The lower courts need to deal properly (politically and legally) with outstanding legal issues pending a more permanent stabilization of legal rules. This is true for judicial policy documents in all areas of the law, not only in commercial law.
As I described in a detailed blogpost last December (2018), the SPC intends to increase judicial transparency. However, that does not yet extend to the gender ratio of judges at the SPC. In a recent academic article, I discussed transparency concerning information on the number of judges in a court, including the SPC (excerpted below).
The SPC has been relatively late in expanding transparency concerning its own judges for reasons explored below. Information concerning the number of judges on the SPC was not readily available until July, 2017, when reports on the implementation of the quota judge system in the Supreme People’s Court revealed that there had been 642 judges,with 367 judges designated as quota [员额制] judges. The SPC does not list the number of contract staff or other support staff on its website. When the circuit courts were established, the SPC began to publish basic information concerning all judges. Some commentators suggest that the sensitivity concerning releasing data about the number of SPC judges may relate in part to the connection with the death penalty, because releasing this information would give an indication of the number of judges engaged in death penalty reviews and possibly to the number of annual executions. Another concern that has been mooted was that minimising the transparency of information related to SPC judges would reduce media focus on the resignation of judges from the SPC.
As to the number of judges in lower courts, that appears to be increasingly transparent, as many courts begin to list the number of personnel on their staff. For example, the website of one of the Shenzhen district courts states: ‘The court has a total of 629 people on staff, among which 391 are permanent staff (including 282 political-legal staff, 109 ordinary staff); contract staff 238, 160 judges; 51 judges with graduate training, 104 university graduates;
98.1% of the judges are university graduates or above’. Corresponding information is not yet available on the SPC website.
As I discussed in an earlier blogpost, not all of the professional staff at the SPC is permanently employed by the SPC, as the SPC compensates for headcount limits imposed by the Central Staffing Commission (another institution that awaits clear exposition in English) by borrowing staff from the lower courts. Lower courts compensate for headcount limits by hiring contract support staff. (I look forward to someone setting out in clear language (Chinese or English) the way in which Chinese courts are funded in the new era).
It could be that transparency concerning the number and identities
of judges is linked to transparency developments by the Central Staffing Commission [中央机构编制委员会办公室], a Party-State organisation that regulates staffing in Party and state entities. As suggested below, the entire regulatory structure concerning court staffing, and the control of staffing of political legal
institutions does not itself appear to be very transparent.
….In 2015, the Central Staffing Commission issued a document on
reforming the treatment of political-legal staff, including judges, but the
document itself has not been made public.
So in March (connected with a presentation I gave in Beijing at Peking University’s Yenching Academy’s conference on the role of women in China), I did an informal survey. As you can see from the judges listed among SPC leaders, only Justice Tao Kaiyuan (pictured above) is a woman.
There have previously been other women SPC vice presidents, including Justice He Rong, now head of the Supervision Commission and deputy Party Secretary of Shanxi Province (apparently she has been transferred to that role on the principle of cadre rotation). Justice Huang Ermei has retired.
Some of the many reasons that the SPC has so few women in senior leadership positions is that in the first years that Chinese law schools accepted students, relatively few women studied law. Moreover, women in China face an earlier retirement age. And then there is the issue of having the correct portfolio of leadership skills for the system.
Based on my unofficial research, the civil divisions appear to be at least 50:50. The #4 Civil Division has a woman as head of the division (Judge Wang Shumei), who has replaced Judge Zhang Yongjian (apparently he will be retiring), with Judge Gao Xiaoli (also a woman, and featured in these blogposts) remaining as deputy head of the division. It appears that the SPC has an increasing number of women in deputy division head roles (apart from women academics, such as Wang Xiumei,who are working at the SPC under the guazhi program. Scholars working at the SPC under that program are designated as deputy division heads). It is understood that the trial supervision division has more women, while the administrative division has more men. The five criminal divisions are said to have more men than women. The enforcement bureau is said to have more men than women.
One informed person suggested that at least some of the reasons relate to the need to travel when working in the criminal divisions, and women having to fulfill traditional gender roles in taking care of children and the elderly. A more scholarly analysis of this issue is found here, for those with the tools to access academic articles behind paywalls.
As to future trends, most Chinese law schools have more women than men students, with some lower courts trending to 50:50 men/women judges. Recruiting judges from current judicial assistants likely to mean the gender balance moves increasingly towards more women, particularly as all studies I have seen, including one done in 2018, involving judges resigning indicate many more men leaving the judiciary than women. At the lower level there is an increasing number of women court presidents. Professor Sida Liu of the University of Toronto and two collaborators published the academic study on the feminization of the Chinese judiciary cited above and summarized here.
Former President of the Supreme People’s Court (SPC) (and former Minister of Justice) Xiao Yang passed away on 19 April 2019). His funeral was held on 22 Apri. State leaders, including Xi Jinping attended. From the photos and reports I have seen, large numbers of legal professionals attended (one report was of over 1000 attendees), including several hundred from the SPC.
I’ve seen tributes to him in articles published in Chinese social media, personal tributes by many who worked at the SPC during his term in office and a poem composed in his honor. I list below some of the articles in Chinese social media:
- 肖扬：人大法律人的家国情怀 (In this article, Xiao recalls that because his primary school teacher was hatted as a rightist, he was under suspicion and unable to join the Party until several years after graduating from Renmin University)
- 缅怀 · 致敬：政法战线的杰出领导人肖扬
- 缅怀| 肖扬谈法院、法官与司法改革
- 肖扬同志遗体在京火化 习近平李克强栗战书汪洋王沪宁赵乐际韩正王岐山等到八宝山革命公墓送别
I’d like to focus one small aspect of his work that likely won’t be considered important enough to be included in his obituaries in either the Chinese or foreign media–his vision, as SPC president, that internationalizing the education of Chinese judges would be beneficial to China. It was done because he was able to take the view at that time that learning about foreign law was beneficial:
In rule of law construction, it is not possible to close the door; copying and blindly transferring [what is done abroad] is not possible: therefore, as for foreign legal civilization, we must creatively absorb the content that conforms to the general principles of the rule of law according to our situation. In fact, a considerable part of our rule of law construction achievements in the past 40 years have been achieved on the basis of absorbing foreign advanced experience. When we formulated the General Principles of Civil Law, the Contract Law, the Property Law, and even the General Principles of Civil Law, we absorbed a lot of advanced concepts and systems from the civil law system and even the Anglo-American legal system. The principle of crime established in the Criminal Law of 1997 is also modern, contains commonalities with the modern rule of law.搞法治建设，关起门来不行，照搬照抄也不行；因此，对外国法律文明，我们要根据自身情况创造性地吸收借鉴那些符合法治一般规律的内容。事实上，四十年来我们的法治建设成就，有相当一部分是在吸收借鉴外国先进经验的基础上取得的。我们制定民法通则、合同法、物权法乃至民法总则时，就大量吸收了大陆法系甚至是英美法系的先进理念和制度；我们在1997年《刑法》中确立的罪刑法定原则，也正是现代法治中共通性的内容。[please feel free to make corrections to this translation]
He considered sending judges abroad an accomplishment that should be included in reports to the NPC:
- More than 200 outstanding young and middle-aged judges have been selected from the national courts to study abroad and in the Hong Kong Special Administrative Region. More than 100 people have returned from their studies and become the backbone of foreign-related trial operations. (从全国法院选送200多名优秀中青年法官到国外和香港特别行政区进修深造，目前已有百余人学成归来，并成为涉外审判业务骨干.)（2002）
- Continue to organize judges to study and exchange in the Hong Kong Special Administrative Region, the Macao Special Administrative Region, and abroad.(继续组织法官到香港特别行政区、澳门特别行政区以及国外学习交流。)
It is hard to calculate the number of judges at either the SPC or from the lower courts who studied abroad in degree or long-term training programs when Xiao Yang was SPC president. They do include the CICC judges:
- Gao Xiaoli:
- Xi Xiangyang;
- Song Jianli;
- Ding Guangyu;
- Shen Hongyu.
But the number of SPC judges who studied abroad during the Xiao Yang era is not limited to that handful and all who remain at the SPC are considered “backbone cadres” (骨干) (core staff).
Another group of now senior SPC and lower court judges are graduates of LLM programs that are cooperative arrangements between Chinese and foreign universities, such as that between Temple University and Tsinghua. On the Temple University program, in 2002 former Dean Reinstein testified:
We were originally approached in 1995 by the Ministry of Justice and a
national law school, the China University of Political Science
and Law. They wanted us to consider starting a Masters of Law
Program in Beijing for Chinese lawyers to learn about American
and international law along the lines of a program that we had
already developed in Japan. They said they needed this because
with the development of a market economy in China, they
understood the need to develop a legal system. The route they
wanted to take in developing a legal system was to educate a
core of very highly trained lawyers and government officials
who would learn about the American legal system and
international law and other Western legal systems and adopt
what they thought was appropriate, from that education, and use
that to develop their legal system.
When we started to develop the program, we began to receive
requests from the Supreme People’s Court, and a number of
government ministries to send students. We did start our first
class in 1999 with 35 students, that class included 8 judges
who had been sent by the Supreme Judicial Court, they had
actually nominated 18, we only had scholarship funding for 8.
Many of the ongoing exchange or training programs involving the Chinese judiciary and educational institutions abroad date from the Xiao Yang era, such as the degree programs between the National Judges College and the City University of Hong Kong and the National Judges College and the University of Montreal and it is understood that few students in the Tsinghua/Temple University program are now from the judiciary.
I have spent some time decoding Supreme People’s Court (SPC) President Zhou Qiang’s March 2019 report to the National People’s Congress (NPC). As I explain below, it provides signals into how the Chinese courts are changing and may change in the post 19th Party Congress New Era.
This report is both different from and similar to previous reports. The major difference is linked to the 2019 Central Political-Legal Work Conference (at which Xi Jinping set out in his speech (重要讲话) his view of the New Era for political-legal work（新时代政法各项工作) and the accompanying Party regulations on Political-Legal Work. As I explain below, the report is linked to other recent Party regulations, such as the Regulations on Requesting Instructions and Reporting on Major Matters （中国共产党重大事项请示报告条例）and Regulations on the Work of Selecting and Appointing Party and Government Cadres (党政领导干部选拔任用工作条例). Although the Regulations on Party Groups were only recently issued (15 April), Zhou Qiang must have been aware of their content when drafting his report. It is also likely that he was aware of the Regulations on the Evaluation of the Work of Party and Government Leading Cadres (党政领导干部考核工作条例), issued on 21 April. As I have written before on this blog, the SPC Court President’s work report must be harmonized with the latest stance on political-legal issues.
What is different?
What is different is greater emphasis on political study and Party leadership, although these are themes that found in many previous SPC court president reports. The emphasis in this year’s report on political study is on Xi Jinping Thought on Socialism with Chinese Characteristics for a New Era (习近平新时代中国特色社会主义思想) and Party leadership is on implementing the spirit of the 19th Party Congress (党的十九大精神) and the January, 2019 Central Political-Legal Work Conference (全面贯…中央政法工作会议精神).
This emphasis shown by the first numbered section of the report. It is entitled “Deeply study and implement Xi Jinping Thought on Socialism with Chinese Characteristics for a New Era and Uphold the Party’s Absolute Leadership [emphasis added] Over the Work of the People’s Courts (深入学习贯彻习近平新时代中国特色社会主义思想坚持党对人民法院工作的绝对领导).” The phrase “uphold the Party’s absolute leadership over the work of the people’s courts” has been used repeatedly since the 2019 Political-Legal Work Conference. The Party Regulations on Political-Legal Work (mentioned above) use the phrase “Party’s absolute leadership.” Li Ling (of the University of Vienna) sees this as indicating a complete and unambivalent severance from the judicial independence framework. The report identifies the primary political task for the courts to be studying Xi Jinping Thought and the 19th Party Congress decision (坚持把学习贯彻习近平新时代中国特色社会主义思想和党的十九大精神作为首要政治任务), and it calls for related training for all 350,000 court personnel (深入开展大学习大研讨大培训，对全国法院35万名干警进行全员轮训).
This section also calls for the strict implementation of the [Party] system of reporting and seeking approval for major matters [also known as requests for instructions](严格落实重大事项请示报告制度)(the Party regulations on reporting and seeking approval for major matters（Chinese version here). Those regulations appear to be linked to the Political-Legal Work Conference but were not publicly issued until the end of February). As mentioned in my recently published article, 1995 regulations on trial work secrets require requests for instructions and their responses in a case to be placed in the supplementary file. These supplementary files are classified as trial work secrets. There has been significant criticism over many years of the system of requesting instructions/reporting and seeking approval (as I wrote 26 years ago!), and proposals even within the SPC for the system to be “proceduralized” or “judicialized.” Some academics have called for abolishing it. For those who can read Chinese, I recommend Renmin University Professor Hou Meng’s 2011 article analyzing the system of seeking instructions. The second judicial reform plan (under the late SPC President Xiao Yang), called for reform to the system of reporting and seeking approval/request for instructions system. In a quick search I did of the SPC’s judgment database for the phrase “sought instructions from the higher court (请示上级法院), I found almost 350 that mentioned the phrase (although a certain proportion related to requesting the higher court to designate jurisdiction).
Another indication of the emphasis on Party leadership is found in the section of the report that relates to the courts’ tasks for 2019. Section #5 of the court tasks refers to improving the quality of court personnel–“speed up the creation of a revolutionized, regularized, specialized, professionalized team, forge a high quality court team that the Party Center relies upon and the masses are satisfied with.” As explained in an earlier blogpost, “revolutionized” signals absolute Party leadership (五是加快推进队伍革命化、正规化、专业化、职业化建设，锻造党中央放心、人民群众满意的高素质法院队伍). This language is consistent with the 2019 Political-Legal Work Conference and President Zhou Qiang’s speech to implement the spirit of that Political-Legal Work Conference (note that similar language is found in Procurator-General Zhang Jun’s report to the NPC).
As in previous years, most of Zhou Qiang’s report was devoted to the SPC’s and lower courts’ accomplishments in various substantive areas and providing selected statistics to support the narrative. Those statistics reveal that most of the cases heard in the Chinese courts are civil and commercial, not criminal. My incomplete research on the caseload of the SPC comes to a similar conclusion.
What needs to be observed (for those of us focusing on Chinese court developments) is how these recent Party regulations will be integrated with court-related legislation–for example, how the Judges Law will be amended to reflect the latest political developments. [The Judges Law was promulgated on 23 April, a future blogpost will analyze its significance].
Other issues to be observed include the following questions. What does increased emphasis on Party leadership and political study mean for the operation of the Chinese courts and the increasingly professional judges working within the Chinese court system? The 19th Party Congress report calls for strengthening and improving Party leadership over bodies of state power. A late January 2019 Central Committee document on strengthening the Party’s political construction (中共中央关于加强党的政治建设的意见) states that the basic nature of various institutions, including the courts (called adjudication /trial organs 审判机关) ) is that they are political institutions (中央和地方各级人大机关、行政机关、政协机关、监察机关、审判机关、检察机关本质上都是政治机关). What does this designation mean for the operation of the courts?
One of the post 19th Party Congress changes that Zhou Qiang mentions is implementing the system of seeking instructions from the Party organization and superior Party organizations and strengthening the leadership role of the Party group in operational (substantive) work and Party construction (加强对本单位业务工作和党的建设的领导). So what does this mean, for example, for the China International Commercial Court and the SPC’s Intellectual Property Court (and their elite judges), as well as the other SPC judges together dealing with almost 35,000 cases, retaining and attracting high quality legal professionals, particularly at the lower court level (this year’s report recognized that the resignation rate in some local courts is “severe”)? Most of the 28 million cases heard in the Chinese courts were heard at the local level. What does this mean for confidence in the Chinese court system, be it on the part of the Chinese public, the Hong Kong, Macau, and Taiwan public, and the international public? President Zhou Qiang’s report reveals that most of the cases in the Chinese courts involve civil and commercial disputes that for the most part arise between individuals or corporate entities (in 2018 9,017,000 first instance cases involved people’s livelihood, including 1,111,000 first instance employment, medical, pension, and consumer cases), and the courts heard 1,814,000 marriage and family cases. Will integrating socialist core values into judicial interpretations promote the rights of women, not to mention other groups whose rights have traditionally not been fully protected?
I recently visited the Supreme People’s Court’s (SPC’s) new intellectual property court (SPCIPC) (intellectual property tribunal), currently sharing a building with the Beijing Internet Court, in the Fengtai district of Beijing. But I will leave comments on the court’s operations to Mark Cohen and other intellectual property lawyers. From the list of SPCIPC judges in Mark’s recent blogpost, it is clear that many of them have been borrowed from the lower courts. The blogpost includes the line “..due to the rapid establishment and staffing of this new Court, many of the judges are likely on detail from their prior jobs to the new Court, pending permanent transfer.” It is unclear whether these judges will in fact be permanently transferred to the SPC, or in fact would prefer to do so. This blogpost will shed a bit of light on the phenomenon of the SPC borrowing/temporarily detailing 借调（jiediao) staff from the lower courts.
As with the guazhi system in the SPC described in one of last year’s blogpost, it is one of the many aspects of the personnel system of the Chinese Party/state system that shapes how the Chinese courts operate. Under this system, a person from a lower level institution is “borrowed” to assist with work at a higher level institution. The borrowed person’s employment relationship remains with the lower level institution. It appears to be a practical solution to the restrictions on SPC permanent headcount imposed by the Central Staff Commission, while being able to field sufficient personnel for the new institutions such as the Intellectual Property Tribunal and Circuit Courts. Senior judges, such as division heads and vice presidents, have many administrative obligations and less time to hear cases. It is unclear how many borrowed staff the SPC has. Some knowledgeable persons suggest that they can be found in almost every operational department of the SPC.
In my experience, the circuit courts have borrowed judges from the lower courts to serve as judge’s assistants (法官助理). While it is an imposition for judges to be away from their homes and family, it also an opportunity for them to make themselves known to SPC judges, a connection that may be useful in their later careers, whether or not they remain in the judiciary.
For lower court judges, being seconded to the higher court to help out is a mixed event. It means that you reach a higher level of experience, broaden your horizons, increase your knowledge, and your chances of being selected by a higher court will increase. On the other hand, it means being away from loved ones, living for others, … sometimes the opportunity for the promotion in the original court is delayed, the superior court may not extend an olive branch, and finally only it is only in exchange for a letter of praise from the higher court.
Generally speaking, the lower-level judges are seconded to the higher courts for three reasons. First, as an assistant judge, they are incorporated into the collegial panel to handle cases; second, as a judge’s assistant, assisting the judges of the higher courts in handling the case, such as the assistants of judges in the first and second Circuit Courts of the Supreme People’s Court, who are mostly excellent candidates from the lower courts. The third is to work in the “comprehensive” (supporting) departments, to work in the higher court’s research office, the audit office, the judicial reform and other departments engaged in judicial policy research, drafting judicial rules, etc.
I was very honored (and gratified) that the workshop pictured above was able to take place on 18 March at the International Law Institute of the Chinese Academy of Social Sciences (CASS). Unbeknownst to most of the attendees, who included persons from the Ministry of Foreign Affairs, Supreme People’s Court, and National People’s Congress, I was one of the organizers. Other participants came from the Foreign Affairs College and Shanghai office of the Singapore International Arbitration Centre. The workshop could not have taken place if not for the efficient work of Professor Liu Jingdong and assistant research fellow Sun Nanxiang. I had previously gotten to know Mr. Wen Xiantao, of the Department of Treaties and Law of the Ministry of Commerce (MOFCOM) and official Chinese negotiator of the United Nations (UN) Convention on International Settlement Agreements Resulting from Mediation (Singapore Mediation Convention or Convention) and Sun Wei, Zhong Lun partner and participant in the Convention negotiations as part of Beijing Arbitration Commission’s delegation to the negotiations as with observer status.
The Singapore Mediation Convention is intended to complement the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the New York Convention, and when it goes into force, will enable international commercial settlement agreements that result from (third party) mediation to be enforced. A summary of the Convention can be found here, and the United States negotiator, Timothy Schnabel, who proposed the Convention, wrote (in his own capacity) a definitive overview of its text, structure, history, and purpose. As Mr. Schnabel’s article explains, the Convention is intended to promote the use of mediation in resolving cross-border commercial disputes, because it is more likely to work faster, cost less, and preserve the business relationship. From Mr. Schnabel’s article, it is clear that Mr. Wen ”vigorously participated in the formulation of international norms,” and his views had a positive impact on the eventual text of the Convention, supporting the drafting of a convention rather than only a model law and enabling enforcement of settlements that include both pecuniary and non-pecuniary elements.
From reading Sun Wei’s blogpost on the Kluwer Mediation Blog (part 2 found here) it was clear that multiple institutions need to come to an agreement that signing and ratifying the Singapore Mediation Convention would be beneficial for China. I noted many misconceptions about the Convention flying around the Wechatosphere. Messrs Wen and Sun (and I) realized that representatives from the institutions involved needed to be in the same room to be able to hear more about the Convention, ask questions and discuss concerns in a congenial environment. As a former practitioner, I thought it would be useful to have Adrian Hughes, QC and Helen Tang (Shanghai-based disputes partner of Herbert Smith Freehills) in the room to be able to speak first hand about the process of and advantages of commercial mediation in international commercial dispute resolution, as well as the enforcement process in the courts of England and Wales.
Wen Xiantao and Sun Wei took the lead in discussing the provisions of the Convention and related issues, Adrian Hughes spoke as a highly experienced international commercial mediator and litigator, and Helen Tang contributed comments from her experience representing Chinese parties in international commercial disputes. The closed-door and invitation-only format enabled an interactive discussion among all participants. Among the many issues discussed were the implications for the courts, preventing the enforcement of fraudulent mediation settlements, and the lack of a law relating to commercial mediation.
The official report on the workshop is found here.
I last wrote on judicial transparency in December (2018), giving a quick analysis of the Supreme People’s Court (SPC)’s latest transparency policy. Two quick updates on this topic:
- The Fifth Judicial Reform Plan Outline (Opinions on Deepening the Reform of the Judicial System with Comprehensive Integrated Reforms – Outline of the Fifth Five-Year Reform Program of the People’s Courts (2019-2023) lists as one of the overall goals improving judicial transparency:
further deepen judicial openness, constantly improve the openness of the trial process, openness of court proceedings, openness of judgment documents, openness of enforcement information–the four transparency platforms, comprehensively expand the breadth and depth of judicial openness, improve the form of judicial openness, smooth the parties and lawyers to obtain judicial information channels, build a more open, dynamic, transparent, convenient sunshine judicial system.
The transparency developments highlighted in the Fifth Judicial Reform Plan Outline will be guided by the policy document Supreme People’s Court’s Opinion Concerning the Further Deepening of Judicial Transparency (Judicial Transparency Opinion 最高人民法院关于进一步深化司法公开的意见)) that I wrote about in December.
2. The article I mentioned as being in the academic article production pipeline has finally emerged. It can be found here. It is a chapter from the book Transparency Challenges Facing China and examines some recent developments in China’s judicial transparency. It suggests that although the scope of judicial transparency is inevitably shaped by the requirements to keep state and trial work secrets confidential, the Supreme People’s Court, within the boundaries of what is politically achievable, is taking concrete steps to expand the scope of judicial transparency. The article focuses on information on judges and courts, statistics and big data, and judicial normative documents, digging into relevant court rules and highlighting Chinese language commentary. The article shows that views on judicial transparency within the Chinese judiciary are not as monolithic as an outsider might have initially assumed.