Supreme People’s Court’s 2019 judicial interpretation agenda (II)

photo from an unrelated press conference at the SPC

As discussed in two blogposts in 2018, the Supreme People’s Court (SPC) has a yearly plan for drafting judicial interpretations, as set out in its 2007 regulations on judicial interpretation work. The plan is analogous to the legislative plans of the National People’s Congress (NPC) and its Standing Committee. Judicial interpretations, for those new to this blog, are binding on the SPC itself and the lower courts, and fill in some of the interstices of Chinese law (further explained here).  On 29 April 2019, the SPC’s General Office issued a document setting out a list of 47 judicial interpretation projects, 36  with an end of 2019 deadline (see the previous blogpost), and 11 with a deadline set for the first half of 2020 (set out below).  The list details the projects for which the SPC judicial committee had given project initiation/approval (立项), designating one or more SPC divisions/offices with primary drafting responsibility (this process to be detailed in a forthcoming article).  It appears to be the second time this type of document was publicly released.  If so, it is a concrete step in increasing the SPC’s transparency. The projects, deadlines, and some brief comments (some longer than others) follow below

(“Project initiation”/”project approval” is a procedure well-known to those of us who have been involved in foreign investment projects in China, where it involves approval from the planning authorities, primarily for infrastructure projects, but is an initial procedure used by regulatory authorities of all types, Party and state. For the SPC, it reflects one of the “planned economy” aspects of the way it operates.

Deadline of the first half of 2020:

  1. Provisions on Issues Concerning the Electronic Service of Legal Instruments (关于电子送达法律文书若干问题的规定). Responsibility of the Case Filing Division. This has been flagged for some years.
  2. Amending the 2013 joint SPC and Supreme People’s Procuratorate Interpretation on Several Issues Concerning the Handling of Criminal Cases Involving  Food Safety (关于修改《关于办理危害食品安全刑事案件适用法律若干问题的解释》的决定). Responsibility of the #1 Criminal Division.
  3. Interpretation on Several Issues Concerning the Application of Laws in Handling Criminal Cases Involving the Administration of Tax Collection (关于办理危害税收征管刑事案件适用法律若干问题的解释). Responsibility of the #4 Criminal Division.
  4. Interpretation Concerning the Application of Law in Cases of Disputes over the Infringement of Trade Secrets (关于审理侵犯商业秘密纠纷案件应用法律若干问题的解释). Responsibility of the #3 Civil Division. This judicial interpretation is flagged in the recently issued (November, 2019) Party/State Council document on improving intellectual property rights protection (Explore and strengthen effective protection of trade secrets, confidential business information and its source code etc. Strengthen criminal justice protection and promote the revision and the amendment and improvement of criminal law and judicial interpretations 探索加强对商业秘密、保密商务信息及其源代码等的有效保护。加强刑事司法保护,推进刑事法律和司法解释的修订完善). (“Brother” blogger Mark Cohen’s comments on the document found here.)Given the worldwide attention to this issue, I would expect that a draft will be issued for public comment.
  5. Interpretation on Several Issues Concerning Punitive Damages for Intellectual Property Infringement (关于知识产权侵权惩罚性赔偿适用法律若干问题的解释). Responsibility of the #3 Civil Division. Although recent publicity by the Chinese government has linked implementing punitive damages to the recent Party/State Council document on protecting intellectual property rights and the draft implementing regulations for the Foreign Investment Law, the 2018 Party/State Council document on improving intellectual property litigation had already mentioned this.  Given the worldwide attention to this issue, I would expect that a draft will be issued for public comment.
  6. Provisions on Issues Concerning the Application of the Foreign Investment Law of the People’s Republic of China (I) (关于适用《中华人民共和国外商投资法》若干问题的规定(一)). Responsibility of the #4 Civil Division. Given the worldwide attention to this issue, I hope that a draft will be issued for public comment.
  7.  Provisions on Several Issues Relating to Open Court Sessions of the People’s Courts on the Internet (关于人民法院互联网公开庭审过程若干问题的规定).  Responsibility of the Trial Administration Office.  I have an unpublished article on issues involved with the streaming of court hearings, prepared for an academic conference at which I gave a presentation three years ago. The paper (drawing on research within the court system) raises problems I have not seen mentioned by anyone writing in English.
  8. Interpretation Regarding the Application of the Criminal Procedure Law of the People’s Republic of China (关于适用《中华人民共和国刑事诉讼法》的解释). Responsibility of the Research Office.  I have a forthcoming academic article on the procedure underlying the drafting of this judicial interpretation, derived from a conference presentation I made almost two years ago.  The article was finalized early this year. I’m hoping it will be published next year.  I trust it won’t be out of date…
  9. Interpretation on Several Issues Concerning the Realization of Security Interests (.关于担保物权实现程序若干问题的解释). Responsibility of the Research Office. A practical issue for financial institutions, lawyers, and others.
  10. Issues in the Handling of Judicial Technology Cases (关于办理司法技术案件若干问题的规定). Joint Responsibility of the Research Office, Trial Administration Office, and Judicial Equipment Administration Bureau.
  11. Issues Concerning the Forensic Identification and Evaluation of the People’s Courts (关于人民法院司法鉴定若干问题的规定). Joint Responsibility of the Research Office, Trial Administration Office, and Judicial Equipment Administration Bureau.

I’d welcome comments by persons with further information about any of the above draft judicial interpretations.

Supreme People’s Court’s 2019 judicial interpretation agenda (I)

photo from an unrelated press conference at the SPC

As discussed in two blogposts in 2018, the Supreme People’s Court (SPC) has a yearly plan for drafting judicial interpretations, as set out in its 2007 regulations on judicial interpretation work. The plan is analogous to the legislative plans of the National People’s Congress (NPC) and its Standing Committee. Judicial interpretations, for those new to this blog, are binding on the SPC itself and the lower courts, and fill in some of the interstices of Chinese law (further explained here).  On 29 April 2019, the SPC’s General Office issued a document with a list of 47 judicial interpretation projects, 36  with an end 2019 deadline (set out below), and 11 with a deadline set for the first half of 2020 (set out in this blogpost).  The document details the projects for which the SPC judicial committee had given project initiation/approval (立项), designating one or more SPC divisions/offices with primary drafting responsibility (this process to be detailed in a forthcoming article).  It appears to be the second time this type of document was publicly released.  If so, it is a concrete step in increasing the SPC’s transparency. The projects, deadlines, and some brief comments (some longer than others) follow below. Some of the interpretations listed below are ones that Jiang Qibo, head of the Research Office, mentioned in 2018, as being linked to socialist core values (see my 2018 blogpost), although as I commented then, many are linked to the SPC’s need to “serve the greater situation” while at the same time seeking to deal with many of the difficult legal issues that face the courts.

(“Project initiation”/”project approval” is a procedure well-known to those of us who have been involved in foreign investment projects in China, where it involves approval from the planning authorities, primarily for infrastructure projects, but is an initial procedure used by regulatory authorities of all types, Party and state. For the SPC, it reflects one of the “planned economy” aspects of the way it operates.

Close observation reveals that some interpretations were listed last year, indicating that drafts were not ready for approval last year.  Some of the reasons for slippage are likely to be:

  • the issues turn out to be more complicated (substantively or otherwise);
  • judges have less time to work on judicial interpretation drafting with an increased caseload and document study;
  • many experienced SPC judges have been dispatched to circuit courts, leaving fewer at headquarters to work on judicial interpretations; and
  • timing may also be a factor.

Deadline of end 2019

  1. Regulations on pre-filing property protection provisional measures (关于办理诉前财产保全案件适用法律若干问题的解释 ), a type of pre-filing injunction.  These regulations are for non-intellectual property (IP) cases. Responsibility of the Case Filing Division.
  2. Provisions on Several Issues Concerning Preventing and Punishing False Lawsuits, Malicious Lawsuits, and Vexatious Litigation (关于防范和惩治虚假诉讼、恶意诉讼及无理缠诉若干问题的规定). Responsibility of the Case Filing Division.
  3.  Provisions on Regulating the Execution of Death Penalties and Related Issues (关于规范死刑执行及相关问题的规定) (Responsibility of the #1 Criminal Division).  The original deadline was the first half of this year. Apparently, this will focus on more setting out more detailed guidelines concerning how the death penalty is implemented, linked to the Criminal Procedure Law and the SPC’s interpretations of the Criminal Procedure Law;
  4. Interpretation of the Supreme People’s Court and the Supreme People’s Procuratorate on Several Issues Concerning the Application of Law in the Handling of Criminal Cases Involving Corruption and Bribery (II) (最高人民法院、最高人民检察院关于办理贪污贿赂等刑事案件适用法律若干问题的解释(二). Responsibility of the #2 Criminal Division. It likely updates the 2016 interpretation to reflect the establishment and operation of the National Supervisory Commission and addressing issues that have arisen in practice.  Issues to be covered likely include ones discussed in issued #106 of Reference to Criminal Trial (刑事审判参考,the journal of the SPC’s five criminal divisions, mentioned here).  Responsibility of the #2 Criminal Division, but it is likely that the supervision commission will be/is one of the institutions providing input.
  5. Interpretation of the Supreme People’s Court and the Supreme People’s Procuratorate on Dereliction of Duty (II) (最高人民法院、最高人民检察院关于办理渎职刑事案件适用法律若干问题的解释(二)).  Was on last year’s list with an end 2019 deadline. I noted last year that it was likely updating interpretation (I) in light of the anti-corruption campaign and the establishment of the National Supervision Commission. Issues likely flagged in Reference to Criminal Trial.
  6. . Interpretation on Several Issues Concerning the Application of Law in the Trial of Criminal Cases Involving Concealing and Harboring Criminals (关于审理窝藏、包庇刑事案件适用法律若干问题的解释). These provisions occur in various parts of the Criminal Law and are also mentioned in the organized crime opinion discussed in this earlier blogpost. Drafting responsibility of the #4 Criminal Division;
  7. Interpretation on Several Issues Concerning the Application of Law in the Trial of Cases Involving Restrictions on Commutation of Suspended Death Penalties (关于审理死刑缓期执行限制减刑案件适用法律若干问题的解释), Interpretation on limiting commutation during the period of the suspension of death sentences. See related research in English and Chinese. The #5 Criminal Division is responsible for this.
  8. Interpretation on Several Issues Concerning the Application of Law in the Trial of Cases Involving Enforcement Objection Actions (关于审理执行异议之诉案件适用法律若干问题的解释). It previously had a deadline of the end of 2018, related to the campaign to basically resolve enforcement difficulties within two to three years. Drafting this is a task for the #1 Civil Division. A draft of this interpretation was issued for public comment on 30 November (the draft and details of how to submit comments found here.)
  9. Interpretation on Evidence in Civil Procedure, Responsibility of the #1 Civil Division (关于民事诉讼证据的解释).  Another interpretation deadline has slipped by one year. A draft was distributed in 2016. Many new issues have arisen because of the prevalence of electronic evidence.
  10. Interpretation on Several Issues Concerning the Application of Law in the Trial of Cases of Civil Disputes over Food Safety (关于审理食品安全民事纠纷案件适用法律若干问题的解释). Responsibility of the #1 Civil Division. The deadline has slipped by one year.  A draft was recently issued for public comment.
  11. Interpretation on Several Issues Concerning the Application of Law in the Trial of Labor Dispute Cases (V) (关于审理劳动争议案件适用法律若干问题的解释(五)).   It likely dealing with some of the most pressing labor law issues facing the courts that are not covered by the preceding four interpretations or relevant legislation. The #1 Civil Division is in charge of drafting. Judge Xiao Feng of that division posted his slides from his lecture at the National Judges College earlier this year flagging the three principal issues in that draft. His slides provide an overview of those three issues: linking of labor arbitration with litigation; substantive law issues; procedural law issues. Substantive law issues include determining whether the parties are in a labor relationship; procedural issues include the burden of proof concerning overtime.
  12. Issues Concerning Civil and Commercial Disputes over Bank Cards (关于审理银行卡民商事纠纷案件适用法律若干问题的解释), Responsibility of the #2 Civil Division. Another interpretation that previously had a 2018 year-end deadline.
  13. Interpretation on Financial Asset Management Companies’ Acquisition, Management and Disposal of Non-performing Assets (关于审理金融资产管理公司收购、管理、处置不良资产案件适用法律若干问题的解释).  The legal infrastructure related to non-performing assets is inadequate, as has been pointed out by all participants, including judges. The Shenzhen Intermediate Court has run several symposia bringing together leading experts from the market. Responsibility of the #2 Civil Division. Another interpretation that previously had a 2018 year-end deadline.
  14. Interpretation on Issues Relating to Internet Financial Disputes (civil aspects) (关于审理互联网金融纠纷案件适用法律问题的解释), as existing judicial interpretations inadequately address the issues facing the lower courts. Drafting this is a task for the #2 Civil Division. Another interpretation that previously had a 2018 year-end deadline.
  15. Company Law Interpretation (V) (关于适用《中华人民共和国公司法》若干问题的规定(五)) (Issued in late April, text found here, official commentary here).
  16. Extending the Time Limit for Trial & Postponing Hearing of Civil and Commercial Cases (关于严格规范民商事案件延长审限和延期开庭问题的规定), issued at the end of March, 2019.
  17. Interpretation of the Enterprise Bankruptcy Law (III), issued at the end of March, 2019, commentary by a leading global firm here and Chinese firm here.
  18. Intellectual Property Rights Evidence Rules (关于知识产权民事诉讼证据的若干规定).  These rules are linked to a 2018 Party/State Council policy decision on the reform of intellectual property litigation, (II (1), mentioning disclosure of evidence, burden of proof, and destruction of evidence. have been on the SPC agenda for some time. From several conferences involving leading judges (in Shanghai and Chongqing), it is possible to understand judicial thinking on these issues. Responsibility of the #3 Civil Division.
  19. Judicial interpretation on administrative cases involving patent authorization and confirmation (关于审理专利授权确权行政案件若干问题的解释). It appears to be the counterpart in the patent area of a 2017 judicial interpretation relating to trademarks. Responsibility of the #3 Civil Division. Another interpretation that previously had a 2018 year-end deadline.  A draft was issued for public comment in the summer of 2018.  Comments by US trade organizations were submitted, among others.
  20. Interpretation on the Recognition and Enforcement of Civil and Commercial Judgments by Foreign Courts (关于受理申请承认和执行外国法院民商事判决案件若干问题的解释). Original deadline of first half of 2019.  This issue has been flagged since at least 2014.
  21. Regulations on maritime labor service contracts (关于审理船员劳务合同纠纷案件适用法律若干问题的解释), likely connected with China’s accession to the 2006 Maritime Labor Convention and a large number of disputes in the maritime courts involving maritime labor service contracts. The linked report from the Ningbo Maritime Court mentions evidentiary problems and disputes involving foreign crew, among others. Responsibility of the #4 Civil Division.
  22. Scope of Acceptance of Environmental Resource Lawsuits (关于受理环境资源诉讼案件范围的规定). As is usual practice, local courts have issued guidance (link is to guidelines issued by the Chongqing Higher People’s Court) that is likely to provide information to the SPC. Responsibility of the Environmental and Natural Resources Division.
  23. Application of Law in the Trial of Cases of Compensation for Ecological Environmental Damage, issued in June, 2019. SPC press conference and model/typical cases released.
  24.  Disputes over forestry rights, apparently an area with many disputes.  Responsibility of the Environmental and Natural Resources Division. Original deadline was the first half of 2019.
  25. Provisions on Several Issues Concerning Administrative Compensation Cases (关于行政赔偿案件若干问题的规定).  I have not seen reports on a draft, but see a recent case on issues concerning the calculation of direct losses has been posted. Responsibility of the Administrative Division.
  26. Regulations on responsible persons of administrative authorities responding to lawsuits, (关于行政机关负责人出庭应诉若干问题的规定), relating to new requirements in the amended Administrative Litigation Law. and the 2018 judicial interpretation of the Administrative Litigation Law. Responsibility of the Administrative Division. Original deadline of the first half of 2019.
  27. Regulations on the consolidated review of normative documents in administrative cases (关于审理规范性文件一并审理案件若干问题的规定).  Responsibility of the Administrative Division. Original deadline of the first half of 2019.
  28. Regulations on the consolidated hearing of administrative and civil disputes (关于一并审理行政争议和民事争议若干问题的规定), apparently related to this item in a previous blogpost. Responsibility of the Administrative Division. Original deadline of the first half of 2019.
  29. Interpretation on procedures for the hearing of administrative cases (关于行政案件庭审程序若干问题的规定). Responsibility of the Administrative Division. Was mentioned in last year’s document.
  30. Interpretation related to agency issues in retrial (再审) cases.  With the many governance problems of Chinese companies, these issues frequently arise.  Drafting responsibility with the Judicial Supervision Division. Original deadline of end 2018.
  31. Interpretation relating to the enforcement of cases involving company shareholding.  Given the complexities of shareholding in China, including the frequent use of nominee arrangements, these are difficult issues for judges to deal with.  See a presentation by one of the circuit court judges on this issue.  Responsibility of the Enforcement Bureau.
  32. Interpretation on Several Issues Concerning the Application of Law in the Trial of Criminal Cases Involving Organizing Cheating in Examinations, issued in early September, jointly with the Supreme People’s Procuratorate (SPP), to ensure the two institutions have harmonized approaches.  The Research Office (which coordinates interactions with the SPP), was responsible.
  33. Interpretation on Issues Concerning the Trial of Criminal Cases Involving Crimes of Illegally Using an Information Network or Providing Aid for Criminal Activities in Relation to Information Network (link to the Chinalawtranslate.com translation), also a joint interpretation with the SPP, for which the Research Office was responsible;
  34. Personal information rights disputes judicial interpretation (审理个人信息权纠纷案件适用法律若干问题的解释), linked to the Civil Code being drafted.  Implications for individuals and entities, domestic and foreign. Responsibility of the Research Office.
  35. Amending (i.e. updating) ()the 2001 Provisions of the Supreme People’s Court on Certain Issues Concerning Application of Urging and Supervision Procedure, relating to the enforcement of payment orders by creditors.  Responsibility of the Research Office.
  36. Interpretation on cases involving both civil and criminal issues (关于办理民刑交叉案件适用法律若干问题的解释). This is a longstanding issue, and with the crackdown on the private lending sector, this has come to the fore.  Among the many issues include: if the defendant is criminally prosecuted first and assets are confiscated, how can affected borrowers or other parties be compensated.  Responsibility of the Research Office, likely involving several civil and criminal divisions. Originally with a 2018 year-end deadline.

I’d welcome comments by persons with further information about any of the above draft judicial interpretations.

Update from #1 China International Commercial Court

The Monitor at the #CICC/#1 Circuit Court, December 2018

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.

Supreme People’s Court Establishes a Mechanism for Resolving Inconsistent Decisions

©http://loopaa.ro/the-mechanism/

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 mechanism

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:

  1. 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);
  2. 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:

  1.  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.
  2. 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.
  3. 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?
  4. 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.
  5. 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.
  6. 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.

 

 

 

 

Supreme People’s Court President’s Zhou Qiang’s virtual mailbox

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 yzxx@court.gov.cn), 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:

it is to “further develop the mass education and practice campaign [mentioned in this blogpost six years ago] and to listen to the opinions and suggestions of all parts of society (the masses).

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 ownCourt 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).

Proposals

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).

Queries

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.

 

SPC Updates its Guidance on Judicial (Adjudication) Committees

2016 meeting of SPC judicial committee, to which NPC, CPCC representatives, and certain experts were invited

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.

 

Central Inspection Group inspecting the Supreme People’s Court (again)

Mobilization meeting for the #4 CIG inspection

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.