Cameras in the Chinese courts

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Fraudulent fund-raising criminal trial

One of the less recognized aspects of China’s judicial reforms is the live streaming (and video archiving) of Chinese court hearings. other than the coverage of the Bo Xilai case.  (I put myself in the category of the persons who were formerly unaware of this development). This blogpost looks (briefly) at SPC policies, current developments, and some very thoughtful analysis of the issues by members of the Chinese judiciary. It follows from my previous blogpost  on online broadcasts of Supreme People’s Court (SPC) public hearings.

Several times this month (July, 2016), President Zhou Qiang has highlighted live streaming (and video libraries) of court hearings, most recently on 18 July, when he spoke about China’s “Smart Courts” and the SPC’s 3.0 Initiative, and reflects the information technology orientation of the Chinese courts (see this brief article on the topic).

In streaming court cases, the SPC and local judiciary are part of a worldwide trend. Even the US federal courts are experimenting with them, with the Court of Appeals for the 9th Circuit taking the lead.  The courts of Queensland (Australia) have recently issued a paper, looking at the issues from an Australian law perspective and very usefully providing a survey of the law worldwide on  major issues.

What are the Chinese courts doing?

The Chinese courts are implementing live broadcasting and video libraries of a selected, but increasing number of cases, with courts in more prosperous areas taking the lead. The Guangzhou courts were among the courts to broadcast court proceedings first. A minority of those cases are found on the SPC’s Court Tv website and most are found on local court websites, often on that of provincial high courts.  The cases tend to be primarily civil cases, with some criminal and a few administrative cases.

On the website of the Beijing courts for example, there are total of approximately 500 cases, of which 364 are civil cases, including an unfair dismissal case brought against Carrefour, 106 criminal cases, including one with an unrepresented defendant, and quite a few cases involving methamphetamine trafficking. The most popular one is a 2014 corruption case. There are 12 administrative cases, including a case against challenging a housing demolition decision by the Fangshan government.

The Zhejiang High Court seems to have video libraries of hearings in two places: this one has links to hearings for sentence commutation, such as this one, while another website has a broad range of cases, including this recent one from the Wenzhou courts, in which the defendant is being prosecuted for trafficking women into prostitution.

SPC’s 2015 report Judicial Transparency of Chinese Courts highlighted the broadcasting of Chinese court trials, noting that by the end of 2014, there were 519 live broadcasting of court trials through the SPC’s China Court’s Live Trial website (http://ts.chinacourt.org/). and that the local courts had streamed over 80,000 court trials. The numbers are much higher than that (close to 5000 on the SPC’s website) and certainly many more on local court websites.

Legal and Policy background

Streaming of Chinese court hearings is based on 2010 SPC regulations (Provisions on the Live Broadcasting and Rebroadcasting of Court Trials by the People’s Courts) and is linked to the 4th Five Year Court Reform Plan:

15. Establish mechanisms for audio and video recording the entire course of hearings.Strengthen the establishment of technical courtrooms, promoting the full audio-video recording of trial proceedings.

Streaming is also linked to the SPC’s five year plans related to information technology:including  a 2013-17 plan on the Informatization of the courts (人民法院信息化建设五年发展规划(2013-2017)) and two ongoing ones, the Five Year Plan on the Informatization of the People’s Courts, 2016-20(人民法院信息化建设五年发展规划(2016-2020)  and the SPC’s Five Year Informatization Plan (最高人民法院信息化建设五年发展规划(2016-2020)).

The 2010 Regulations do not provide specific protection for the rights of individuals, but focus on the type of cases to broadcast and approval procedures for broadcasts.

Article 2 The people’s court may choose the openly tried cases of higher public attention, greater social impact, and of legal publicity and education significance to make live broadcasts of and rebroadcast court trials. The live broadcasting and rebroadcasting of court trials are prohibited for the following cases:

(1) cases that are not openly tried in accordance with the law since any national secret, trade secret, individual privacy, or juvenile delinquency, among others, is involved;

(2) criminal cases on which procuratorial organs clearly require the non-live broadcasting and rebroadcasting of court trials for justifiable reasons;

(3) civil and administrative cases on which the parties clearly require the non-live broadcasting and rebroadcasting of court trials for justifiable reasons; and

(4) other cases of which the live broadcasting and rebroadcasting are inappropriate.[Translation from Chinalawinfo].

Comments from some local judges 

While the SPC leadership is highlighting the virtues of the streaming of trials, some local judges, likely writing from their personal experience, and comparing Chinese rules with counterparts worldwide, are more critical.

These judges from the  Guangzhou courts (judges with several years of experience with trial streaming) raised issues concerning privacy rights, the right to a fair trial, and the public’s right to know.

  • The privacy of litigants is not respected sufficiently; they are concerned that their private matters will be released online;
  • Open justice is necessary to consider the relationship between state power and individual private rights, but also the public’s right to know and the right to privacy of the parties must be balanced.
  • For criminal cases, for the defendant, the trial webcast is equivalent to a disguised form of a public rally– it could mean that the person has the label of  “criminal” for life .
  • In civil disputes, some statements in court may involve aspects of the private life that the parties or other related persons do not want publicized. Meanwhile, network videos and enormous destructive power of “human flesh searches” combined with public opinion on the parties and their families will have a significant impact, which are likely to lead to their privacy being violated.
  • Not all the information and all the facts of the case should be disclosed online. Some information  can be shielded, such as date of birth, place of work, home address, ID card number, bank account information, and the personal information of related parties, such as close relatives, witnesses and other participants.
  • Parties should have a veto over the trial webcast, and in criminal cases, the victim and his or her family should be consulted as well.  They also suggest shielding some information from broadcast.

As a staff member of theChengdu  courts noted, similar issues are raised by the database of court decisions, such as a case in which the plaintiff’s claim for damages from a traffic accident (including the loss of the ability to procreate) made him the laughingstock of his workplace.

Other local judges have commented that the cases selected for broadcast are not representative, too simple, and that they are sometimes selected for political reasons.

The underlying problem both for online streaming of cases and the court database is that there is not enough Chinese privacy law to protect individuals. Whether the SPC will issue more detailed regulations on privacy in internet broadcasts of court proceedings is unclear.

It does seem clear, that an important rationale for streaming cases is to educate the masses–杀鸡敬猴。Politically sensitive cases are not generally streamed.

For the observer of the Chinese courts, it is a fascinating resource in many ways, whether it is noting the number of cases with people’s assessors, women prosecutors, judges, demeanor of the legal professionals, parties, and bailiffs.

 

 

 

Supreme People’s Court starring on Court TV

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Nestle v. TRAB hearing in SPC

From 1 July 2016, the Supreme People’s Court (SPC) is (in principle) broadcasting live all its public trials (public hearings) (better understood by those from a common law jurisdiction as an appellate court hearings) on its own Court TV website.

SPC broadcasts also include hearings by the #2 Circuit Court (in Shenyang) and #1 Circuit Court in Shenzhen.   The technical platform is provided through Sina.com and a private company.  The SPC describes its online broadcasts as its fourth transparency platform.

Some of the cases that the SPC considers do not have public hearing procedures, such as its capital punishment review and judicial review of decisions concerning foreign and foreign-related arbitral awards.

As of 14 July, there almost 30 cases for which the videos are available, many of which involve lending, either bank or private lending and real estate-related disputes, and are primarily civil cases.  Some of the cases include:

It provides a window into the world of Chinese commercial disputes.

Rationale

SPC Vice President Jing Hanchao, who was apparently tasked with implementing this development, is quoted by the official press as saying:

the live webcasts will be significant progress for judicial openness. With full transparency of trials online, the public can better play their supervisory role.

Live broadcasts will also drive judges to strengthen their capabilities, thus improving the judicial system…

..live webcasts will create a large amount of data that will help jurists study China’s legal system.

Having their advocacy broadcast on line may also drive lawyers to strengthen their advocacy skills as well.

For persons interested in the Chinese judiciary, it provides easy access to SPC court hearings, without the hassle of special permission, letters of introduction, and trips to Beijing.

Lawyers in Beijing do not seem to be aware of this development, at least judging by the lawyer acting for TRAB, who arrived in the courtroom after the hearing began.

Some outstanding questions

This decision by the SPC raises a number of questions.

  • Were the parties asked whether they consented to having their case broadcast on line? It is not apparent from the recordings that I have seen.
  • Individual parties read out their personal identification numbers on the recordings.  Could this be an invasion of their privacy?
  • The recently promulgated People’s Court Courtroom Rules (translation here (thank you Chinalawtranslate.com) and original here) lacks any type of balancing test:
  • Article 11: In any of the following situations, for trial activities that are conducted openly in accordance with law, the people’s courts may use television, the internet or other public media to broadcast or record images, audio or videos.
  • The 2010 regulations on the broadcast of cases (关于人民法院直播录播庭审活动的规定)  lack specific procedures enabling individuals to protect their rights. Do judicial reforms contemplate more specific procedures enabling litigants (or defendants) to refuse to have their case broadcast online?

 

Note:

Mac users may find that the platform works better through the Safari browser than Google Chrome.

Supreme People’s Court judge convicted of taking bribes

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Bottega Veneta man bag (©BV)

In a blow to the Supreme People’s Court (SPC)’s efforts to bolster its prestige and that of the Chinese judiciary, a ruling recently published on the SPC’s court database reveals that Ms. Zuo Hong, formerly a judge (with division level rank) in the SPC’s Trial Supervision Tribunal was convicted of accepting bribes.    The published ruling omits her full name and that of others involved in the case.

The initial judgment by the Beijing Eastern District People’s Court (District Court), dated 10 March 2016, from which she appealed was upheld by the #2 Beijing Intermediate People’s Court on 31 May 2016.  Because the amounts involved were relatively small (approximately RMB 70,000), her one and a half year sentence was suspended for two years.  The facts, according to the ruling (which summarizes Zuo’s confession and witness statements of others involved in the case):

The then Judge Zuo received as gifts US dollars (USD) and a BV bag (men’s style) from Judge Hui of the Shanghai Higher People’s Court, Trial Supervision Tribunal (USD $6000) and Mr. Yang, Deputy General Manager of Zhongxia Construction Group (Zhongxia, a Shaoxing, Zhejiang-based private company) (bag and USD $2000). (It appears that the bag was originally intended for Judge Hui.)

Judge Hui and Mr. Yang were classmates.  Judge Zuo, who was contacted by Judge Hui, involved herself in a private lending case in the Shaanxi Higher People’s Court in which a Zhongxia subsidiary was a party (the related judgments are listed in this article). The SPC had ruled on the Zhongxia subsidiary’s re-trial petition and remanded to the Shaanxi Higher People’s Court for further proceedings. During 2014, Judge Zuo traveled to Xian four times on the matter, where she met with Judge Hui and Mr. Yang. Judges Zuo and Hui met with their contacts at that court to set out Zhongxia’s position and to have those views conveyed to the judges directly involved. According to the judgment, the Shaanxi judges met with Judges Zuo and Hui because she was from the SPC and given the hierarchical relationship, it was awkward to refuse to meet.   The case was further discussed by the collegiate panel and  judicial committee and eventually remanded to the Xian Intermediate Court for retrial on the basis that the facts were unclear.

According to this article, the case came to the attention of the Supervision Bureau of the SPC in January, 2015, when its personnel were investigating other cases and her iPhone and BV bag came to their attention.  In April, 2015, the Supervision Bureau opened an investigation file for her case. Judge Zuo  cooperated with the Supervision Bureau’s investigation and handed over the money and bag to investigators.  Her case was transferred to the procuratorate on 12 June 2015, when she was taken into custody. She was arrested at the end of that month.

On 1 February 2016, the Communist Party Central Political-Legal Committee designated her case as one of seven typical cases of leadership interference in the judicial process. By that time she had been expelled from the Communist Party under its disciplinary procedures.  At the end of August 2015, Ms. Zuo was formally removed from office.

Comments

It appears from Judge Zuo’s case that the Central Political-Legal Committee’s need to issue a set of  typical cases of leadership interference to scare judges and other members of the political-legal establishment into compliance trumped respect for the formalities of the operation of the criminal justice system. (It is unclear whether the Central Political-Legal Committee considered the impact of that lack of respect on retaining highly qualified judges (and on other legal professionals)).  (This blogpost highlighted the first set of these cases). It is likely that the Central Political-Legal Committee relied on the Party disciplinary decision in her case (see a description here) to make a determination that her case should be made public.

Senior court personnel involving themselves in cases, whether motivated by friendship or bribes, is an ongoing problem. What the two judges did is prohibited by SPC 2015 regulations and previous SPC rules. It is likely that Judge Hui has also been punished for his role in this. It seems unlikely that the Shaanxi judges were punished, as the case does not show that the internal advocacy did not affect the eventual outcome.

The case also illustrates that structural aspects of the court system have left space for improper interference by senior judges and also fosters corruption. It also illustrates that internal court procedures in this case seem to have operated to blunt that interference.

The trial supervision procedure had been one of the soft spots for “improper interference,” although reforms of the trial supervision procedure under the 2015 judicial interpretation of the Civil Procedure Law (and further 2015 SPC trial supervision regulations) should diminish abuses.  Chinese law had given trial supervision judges relatively broad discretion in deciding whether to re-open a case, which is important because China has a two instance system.  (Current reforms require the application for re-trial to be sent to the opposing party and permit the reviewing judge to hear arguments from both sides). Judge Zuo is only one of many trial supervision judges who has been convicted of bribery.  (See recent cases in Liuzhou, Shanxi, and Putian.)

As Professor Li Yuwen of Erasmus University has previously written (and which I quoted in an earlier blogpost):

judicial corruption cannot be divorced from its social context…It is unrealistic to expect judges to operate completely outside the social environment, especially in the absence of a workable system to reduce the incidence of judicial corruption…certain shortcomings of the court system leave the door open for corruption. For instance, the flexible use of the re-trial system [trial supervision] leads to the easy re-opening of cases if influential people wish to interfere in a case.This not only diminishes the finality of a case but also creates opportunities for using personal networking to change a court’s judgment.

Furthermore, the relatively law judicial salary makes judges an easy target for corruption…In modern-day China, a profession’s income is too often linked to the profession’s social status. Judges’ low salaries are not conducive to building self-respect amongst the profession and, moreover, they constitute a major ground for fostering judicial corruption.

 

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What’s new in the Supreme People’s Court’s diversified dispute resolution policy?

Opening of court-annexed mediation center of Qianhai court

Opening of court-annexed mediation center of Qianhai court

On 29 June 2016, the Supreme People’s Court (SPC) issued a policy document on diversified dispute resolution (Opinion on the people’s courts more deeply reforming the diversified dispute resolution mechanism) (Diversified Dispute Resolution Opinion)(关于人民法院进一步深化多元化纠纷解决机制改革的意见). The document uses the term “diversified dispute resolution” (consistent with Chinese practice) rather than “alternative dispute resolution” (more often used outside of China) to reflect the central place of mediation, arbitration, and conciliation in Chinese dispute resolution.

It was accompanied by regulations on court-appointed mediators.  For those interested in the way the SPC works, it is another example of an SPC policy document in the form of an “opinion” (discussed here) accompanied by regulations  (a type of judicial interpretation, discussed here).

The policy document sets out in a consolidated form the SPC’s latest policies on mediation, arbitration, and its relationship with litigation.  It provides a framework for further reforms. It is intended to inform the lower courts as well as related Party/government agencies of forthcoming reforms.  It signals to the central leadership that the SPC is on course to achieve one of the reform targets set out in the 4th Court Reform Plan. The current head of the SPC’s judicial reform office, Judge Hu Shihao, spoke at the press conference announcing the Diversified Dispute Resolution Opinion, indicating that the office took the lead in drafting it.

A summary follows below, highlighting, based on a quick reading, focusing on its:

  • objectives and origin;
  • signals and practical implications.

A very useful academic article on diversified dispute resolution, with survey data and more on the political background, can be found (behind a paywall) here. (To the many academics and practitioners who have written on this topic, please feel free to use the comment function or email to expand/contradict, or correct this).

Objectives & origin

The SPC issued the Diversified Dispute Resolution Opinion as a way to implement one of the targets in the 4th Judicial Reform Plan:

46. Complete diversified dispute resolutions mechanisms.Continue to promote mediation, arbitration, administrative rulings, administrative reconsideration or other dispute settlement mechanisms with an organic link to litigation, mutually coordinate and guide parties to choose an appropriate dispute resolution. Promote the establishment of dispute mechanisms that are industry-specific and specialized in the areas of land requisition and property condemnation, environmental protection, labor protection, health care, traffic accidents, property management, insurance and other areas of dispute, dispute resolution professional organizations, promote the improvement of the arbitration systems and administrative ruling systems. Establish an operating system that links people’s mediation, administrative mediation, industry mediation, commercial mediation, and judicial mediation. Promote the legislative process of a diversified dispute settlement mechanism, establish a system for a systematic and scientific diversified dispute settlement system.

The Diversified Dispute Resolution Opinion is a product of the 4th Plenum decision. Its underlying approach was approved by Xi Jinping and other top leaders.  Judge Hu, who mentioned  at the press conference that at a 2015 meeting, the Leading Small Group on Comprehensive Reform approved a framework policy document (not publicly available) on improving the diversified resolution of disputes (关于完善矛盾纠纷多元化解机制的意见) and the General Offices of the State Council and Central Committee followed with an implementing document.  The principal reason that this topic merited top leadership time and involvement is because of its direct links to maintaining social stability and reducing social disputes.

Similar to other SPC policy documents discussed on this blog, comments on the draft were sought from the central authorities, lower courts, relevant State Council ministries and commissions, industry association, arbitration organizations, scholars, and the Legislative Affairs Commission of the National People’s Congress Standing Committee. The Diversified Dispute Resolution Opinion was approved by the SPC judicial committee.

Signals

The objective of the document is to promote a more sophisticated, efficient, and effective approach to dispute resolution that will reduce social tensions.  Part of the objective is to reduce the number of cases filed, heard, and tried by courts. For commercial disputes, it is intended to push disputes to institutions that can more competently, efficiently and timely mediate cases and better mediate cases within the courts by involving court-annexed mediators, before or after the person or entity files suit.  The implications of this document for the reform of labor and rural land contract dispute resolution remain to be seen.

The Diversified Dispute Resolution Opinion requires better linkages between other institutions and the courts, so, for example, that mediation agreements can be enforced without a re-hearing in the courts.  It stresses Party leadership while emphasizing that forces in society can do a better job of dispute resolution than official ones.  The document also cautions against borrowing institutions wholesale from abroad.

Practical implications to expect in the medium to long term

  • For the foreign investment community (and their lawyers), a signal that the SPC is working on a judicial interpretation concerning the judicial review of foreign and foreign-related arbitral awards (“standardize judicial review procedures for foreign-related and foreign commercial arbitration awards”) (规范涉外和外国商事仲裁裁决司法审查程序).  As this blog has reported earlier, this was signaled at the November 2014 National Conference on Foreign-related Commercial and Maritime Adjudication and last year’s One Belt One Road Opinion.  It is unclear whether the future interpretation will change the prior reporting procedure, for example, to give parties a chance to submit arguments orally or in writing, or whether it is intended to consolidate the principles the SPC sets out in its responses to lower courts (released to the public in one of the SPC’s publications), summarized in comprehensive overviews of Chinese arbitration law, such as this one.
  • Changes to labor dispute resolution, as highlighted by the 2015 Central Committee/State Council document mentioned earlier. This is important in light of the uncertain economy and increasing number of workers being made redundant. in recent years, judges in different areas of China have published devastating criticism of the current labor arbitration system and labor dispute resolution generally.  The judges pointed out the current labor arbitration system is not independent of the government, fails to protect labor interests equally, and .  The judges also criticize the brief statute of limitations in labor disputes and lack of a specialized labor tribunal.  It appears from reports that Zhejiang Province is taking the lead in providing greater choices and professionalism in labor dispute resolution, but it unclear how far those reforms go.
  • Further attention to rural land arbitration.The Diversified Dispute Resolution Opinion mentions better linkages between the courts and rural land arbitration. This area is important, as the government seeks to encourage farmers to expand their landholdings and mortgage their land, but the merits of the system are not the SPC’s issue.  A 2014 report highlights the lack of independence of these arbitration commissions, lack of arbitrators, and absence of qualified arbitrators. A 2016 paper by several China Banking Regulatory Commission staff on the mortgage of rural land notes that those arbitration commissions need improving.
  • Local courts to establish “court-annexed mediation centers” to encourage and give parties “one stop shopping” for choices in mediating some of the cases most often seen in the courts–family, conflicts between neighbors, consumer, small claims, consumer, traffic accident, medical disputes;
  • “Improving” criminal conciliation and mediation procedures.  Reforms in this area bear close monitoring because, as discussed in earlier blogposts, criminal conciliation and mediation procedures are often used to avoid embarrassing more powerful institutions (such as schools) and people especially in cases involving claims of rape, sexual assault, and child molestation;
  • recognizing the results of and encouraging litigants to use neutral valuation organizations, for civil and commercial disputes such as medical, real estate, construction, intellectual property, and environmental protection, the results of which could be used as the basis of mediation;
  • More small claims and expedited procedures for minor civil disputes;
  • more lawyers to be appointed as court-appointed mediators;
  • Improvements to administrative dispute resolution procedures.

What does all this mean for making people “feel justice in every case”  when some persons and institutions enjoy a better quality of dispute resolution than others?

 

 

 

Chinese courts recruiting more bankruptcy forces

imgres-1The Supreme People’s Court (SPC) recently issued a notice  (notice concerning the plan for establishing liquidation and bankruptcy trial divisions in intermediate courts)(bankruptcy division notice) (关于在中级人民法院设立清算与破产审判庭的工作方案) aimed at establishing liquidation and bankruptcy trial divisions in China’s intermediate courts and increasing the number of judges and support staff focusing on liquidation (winding up companies not in bankruptcy) and bankruptcy-related issues, to implement the central leadership decision to use bankruptcy law to reduce the number of zombie enterprises.

SPC Judge Du Wanhua had foreshadowed this development in many previous statements. The SPC required the concurrence of the Central Staffing Commission, a Party-State organization that regulates staffing in Party and state entities. A summary of the bankruptcy division notice follows below:

  • Establish bankruptcy divisions in intermediate courts, with some courts taking the lead;

In the directly administered cities, at least one intermediate court should establish a bankruptcy division, intermediate courts in provincial capitals and cities of deputy provincial level also. At lower levels, it will depend on economic development, local need, and professional infrastructure, with provincial courts to make arrangements with staffing authorities.

The following locations will take the lead in establishing bankruptcy divisions: Beijing, Shanghai, Tianjin, Chongqing; and the provincial capitals (and cities of deputy provincial level) of Jilin, Jiangsu, Zhejiang, Anhui, Shandong, Henan, Hubei, Hunan, Guangdong, and Sichuan. These arrangements are to be put in place by the end of July, with the other areas to follow by year end. This blog has reported on previous bankruptcy developments in Jiangsu,  Zhejiang, Anhui, Shandong, and Guangdong.

  • Sets out the work of  bankruptcy divisions;

Try compulsory liquidation and bankruptcy cases, guide lower courts trying these types of cases; coordinate with other courts on these issues; manage and train bankruptcy administrators.

  • Describes the jurisdiction of the bankruptcy divisions;

Intermediate courts should be responsible for the compulsory liquidation and bankruptcy of companies registered at the business registration authorities (administration of industry and commerce) of its own level and below, with variations possible if the provincial high court approves.

  • Staffing principles

Staffing should be according to judicial reform principles and linked to the caseload–the judges should be those familiar with liquidation and bankruptcy from the same or lower courts and they should have a clerk and judicial assistance on a 1:1:1 principle.

  • Measures needed

Improved measures are needed to supervise and evaluate liquidation and bankruptcy work; expedited liquidation and bankruptcy procedures need to be explored; promote reforms in trying liquidation and bankruptcy cases; put in place judicial responsibility (this relates to the judicial lifetime responsibility system announced in September, 2015) to ensure an honest judiciary.

  • Coordinate better with local Party/state authorities

Liquidation and bankruptcy divisions should report regularly to the local Party committee/government to seek their support and major issues should be reported to the SPC.

Some thoughts

This is a positive step although it cannot deal with the underlying political issues related to implementing bankruptcy law in China, particularly local government interference in bankruptcy cases.  Putting in place more qualified judges and support staff is a critical part of making bankruptcy law work.  The political support of the local authorities remains critical and the local judiciary provides a training and liaison function. The bureaucratic level of a troubled company (state owned enterprise) affects the ability of a court to deal its issues.

Academics reaching out beyond the universities and social media is playing a positive role in creating a corp of more competent bankruptcy specialists in the judiciary.  The Bankruptcy Law and Restructuring Research Center of the China University of Political Science and Law, directed by Professor Li Shuguang  has established a Wechat public account, which provides bankruptcy and liquidated news to the profession, including judges, as well chat groups in which Chinese bankruptcy professionals can share their experiences and tap into the experience and knowledge of others.

 

 

Supreme People’s Court tweaks capital punishment review procedure

Screen Shot 2016-06-26 at 3.28.09 PMSeveral days ago, the Supreme People’s Court (SPC) issued the brief judicial interpretation, translated below:

Supreme People’s Court

Reply Concerning issues related to the Application of Article 225 (para 2) of the Criminal Procedure Law

Approved by the 1686th meeting of the Judicial Committee of the Supreme People’s Court, in effect from 24 June 2016

Fa Yi(2016) #13

To the Henan Higher People’s Court:

We have received your request for instructions concerning the application of Article 225(2) of the Criminal Procedure. After consideration, we respond as follows:

I.  For cases remanded to the second instance people’s court for retrial by the Supreme People’s Court, on the basis of “People’s Republic of China Criminal Procedure Law” Article 239 (2) [if the Supreme People’ s Court disapproves the capital punishment sentence, it may remand the case for retrial or revise the sentence] and Article 353 of the Interpretation of the “Supreme People’s Court on the application of the People’s Republic of China Criminal Procedure Law [where the Supreme People’s Court issues a ruling on non-approval of the death penalty sentenced under a case, it may remand the case to the people’s court of second instance or the people’s court of first instance for retrial, depending on the actual circumstances of the case…], having ruled not to approve the death penalty,and  regardless of whether the people’s court of second instance had previously sent the case back to the first instance court on the grounds that original judgment’s facts were unclear or evidence was insufficient; in principle, it must not be sent back to the original first instance court for retrial; if there are special circumstances requiring the case to be sent back to the first instance court for a retrial, it must be submitted to the Supreme Court for approval.

II. in cases where the Supreme People’s Court had ruled to disapprove the death penalty and remanded the case to the second instance people’s court for retrial, and the second instance people’s court had remanded the case to the first instance court according to special circumstance, after the first instance court has issued its judgment and the defendant has appealed or the people’s procuratorate has made a protest, the second instance people’s court should issue a judgment or ruling according to law, and must not send the case back for re-trial, according to the specifics of the case, which had sent the case to the first instance court for retrial.

So replied.

_________________________________________________________

What is this and what does this mean?

This is a judicial interpretation by the SPC in the form of a reply, as explained here.  It is a reply (批复) to a “request for instructions” from a lower court relating to an issue of general application in a specific case.  The Henan Higher People’s Court had submitted a request for instructions, likely with two or more views on the issue, but the lower court’s request is not publicly available.  It is likely that practice among provincial courts had been inconsistent, and therefore the SPC is harmonizing judicial practice through this reply.  As required by the SPC’s  regulations on judicial interpretations, it must be approved by the SPC’s judicial committee as a judicial interpretation.

This gives further details to the SPC’s capital review procedures, requiring second instance (generally provincial level courts) to hear retrials of cases remanded by the SPC and not instructing those courts not send cases back to the first instance court for retrial.  It also requires the second instance court to rule on a defendant’s appeal or procuratorate’s protest and not remand the case back to the first instance court, expediting the final consideration of these cases and limiting the number of remands of these cases.

Is this a positive development for the protection of the rights of the defendants (the defendants in the typical drugs cases announced by the SPC recently were mostly peasants), by requiring the second instance court to hear these cases, away from the public pressure where the crime occurred?  In a 2013 article, criminal defense lawyer Sun Zhongwei described the pressure on a local first and second instance court is under from the victim’s family and the local Party committee and government, and how the institutions use delay and remanding the case to the procuratorate and public security for additional investigation to avoid making difficult decisions that will alienate local authorities.What has the role of defense counsel been in these cases?  Have most defendants been advised by counsel? Was the delay in final resolution in these cases an issue discussed by the Central Political Legal Committee?

What was the rationale for issuing this interpretation at this time?  Is it a measure to promote the efficiency of the courts, by expediting finality in criminal punishment, so that the courts can announce in a timely manner their crime fighting accomplishments and typical cases?A headline on one of the SPC’s websites  reporting on 30% increase in drugs crime convictions in the provincial level courts may indicate which is valued more–“People’s courts across the country cracked down hard on drug crime.”

Or is it linked to planned reforms to the criminal justice system and improvements to the legal aid system for criminal defendants approved by Xi Jinping and other top leaders on 27 June?