This post that focuses on the Supreme People’s Court’s (Court) authority to interpret law. My intent is to avoid the quicksand of academic discussion on the topic, which has run for over 20 years in Chinese, English, and other languages and focus instead, on what the Court is doing. This topic also gives me an opportunity to provide a historical perspective, because I examined this topic in detail 20 years ago.
This seemingly theoretical topic is relevant to the work of a broad range of people (among others);
• Lawyers reviewing memoranda from their China-based lawyers;
• Consular officials stationed in China;
• Regulatory officials who are charged with monitoring exports from China; an
• Foreign and international judicial officials charged with international judicial assistance; and
• Arbitrators in cases involving Chinese law.
These posts will explain (with some historical perspective):
• Why Court interpretations are important;
• Important functions of Court interpretations;
• What they look like;
• The Court’s legal basis for issuing them;
• On-going issues (and suggestions for reform).
Why are they important?
Court interpretations are an important source of legal rules in China, particularly for the courts, and have been for most of the history of the PRC. The number of client alerts by major international law firms is testimony to their importance to the international commercial world, but the Court interprets on many other areas of law of critical importance to ordinary Chinese citizens and the domestic economy. In the last 6 months, Court interpretations in the following areas have achieved international prominence include:
• Labor (employment) law;
• Conflicts of law (private international law);
• Civil trademark disputes and
• Criminal bribery.
Many other interpretations have missed the glare of international scrutiny , although they are significant for the substantive or procedural area involved (as well as the persons affected).
Some important functions of Court interpretations
Among the important functions of Court interpretations are to:
• supply missing definitions;
• supply missing concepts;
• set out missing procedures;
• embody political policy as relevant to the court system;
• refine the discretion of the lower courts; and
• generally fill in the gaping holes or glitches in Chinese legislation.
The Chinese judiciary and legal system would be unable to function without them.
It is an area of Court operation where the Court has changed what it does, for the better, particularly in comparison to 20 years ago. Subsequent posts will also explain what “better” is but also point out some “areas of concern.”