This post explains why:

• the Supreme People’s Court (Court) releases normative documents  inconsistent with the law and its own definition of “judicial interpretations;”
• the Court issues normative documents that guide the judiciary in deciding cases but that are not publicly released;
• the Court issues normative documents with government organs that are not authorized to issue judicial interpretations.

The explanation is based on recently issued Court regulations.

The practical implications of these phenomena depend on your role.  For those in policy roles, rule of law work, diplomatic or governmental role with the Chinese judiciary, or those otherwise those involved in dispute resolution strategy in China, it is critically important, because it explains why China has a system of non-public normative documents guiding judges in deciding cases. It is not a mode of operation beneficial for domestic or foreign litigants and their counsel.

Official documents—the key concept

The key to understanding how the Court treats interpretations of law is the recently issued Measures for Handling Official Documents of the People’s Courts (Court Official Documents Measures, linked here) (人民法院公文处理办法)。 They replace 1996 regulations on the same subject.

What are the Court Official Documents Measures?

 The Court reissued the Official Documents Measures at the end of 2012  because the Communist Party and State Council General Offices re-issued the Regulations on the Work of Handling Official Documents of the Party and Government (Party and Government Official Documents Measures) (党政机关公文处理工作条例).[2]  The Court Official Documents Measures state that they were drafted with reference to the Party and Government Official Documents Measures and a comparison of both reveals that the Court Official Documents Measures reveal are an iteration of those Official Documents Measures for the court system.

What do the Court Official Documents Measures do?

The Court Official Documents Measures define “court official documents” as “official documents of the people’s courts which are formed in the course of trials and enforcement and judicial administrative operations which have special effect and have a special form.”   (This definition is close to that in the Party and Government Official Documents Measures.) The definition further states:

“court official documents are important tools in transmitting the Party line, direction, and policy, implementing state law, issuing judicial interpretations…”

What are interpretations of law?

As for interpretations of law, the Court Official Documents Measures state:

“litigation documents, judicial interpretations and others are special legal official documents of the people’s courts which should be handled according to relevant provisions of law, regulations and judicial interpretations.”

This means that the Court regards judicial interpretations as “special legal official documents” (特定法律公文) of the courts.

Although the Chinese constitution vests the power to interpret  law with the Standing Committee of the National People’s Congress, a 1981 decision by that same organization delegated to the Court the authority to interpret law relating to questions involving the specific application of laws and decrees in court trials, while the Supreme People’s Procuratorate was delegated authority to interpret law relating to questions involving the specific application of laws and decrees in procuratorial work.  The Organic Law of the People’s Courts re-iterates the delegation of authority to interpret law to the Court.  Interpretations by both organizations are known as “judicial interpretations.”  In 2007, the Supreme People’s Court issued regulations on judicial interpretations (linked here)  limiting judicial interpretations to the following four types:

• “interpretation” (解释); (a set of legal rules in a specific area of law, unrelated to a specific case);
• “provision”(规定)  (often similar to court rules);
• “reply” (批复)(a reply to a “request for instructions” from a lower court relating to a specific case); and
• “decision”(决定) (a document abolishing or amending existing judicial interpretations).

Those 2007  regulations also mention judicial interpretations may be jointly issued by the Court and the Supreme People’s Procuratorate and requires that judicial interpretations be made public. These regulations also provide that judges may cite judicial interpretations as the basis for a court decision or ruling.

However, a review of the Gazette of the Supreme People’s Court, the official website of the Court, and lists of superseded judicial interpretations and judicial documents reveals the following phenomena:

• a category of documents labelled “judicial documents” exists (a term not defined);
• documents that the Court issues with administrative organs, such as the Ministry of Public Security and Ministry of Justice are published under that classification and contain normative provisions;
• documents such as “conference summaries”(纪要) and “opinions” (意见) that are classified as types of official documents are also published under that classification or elsewhere on the Court website, and seem to have normative provisions, because many of which contain language that the lower courts should “implement their provisions” or “use them as guidance.”

Some of these normative documents address new issues or phenomena where the Court is of the view that the law is not settled enough for judicial interpretations.  Other normative documents have a more overtly political purpose and are more closely related to current Party policy.

However, there is no requirement in the Court Official Documents Measures that all Court normative documents be made public, although the Measures designate two forms of official documents as ones that will be released both domestically and internationally, either broadly or for limited circulation.  The Measures refer to the secrecy classification and secrecy level of court official documents and how those should be handled.  Moreover, an Internet search reveals that some Court official documents such as “conference summaries” which were never officially published have made their way into the public domain through unofficial sources such as law firm websites and blogs. (linked here)

What does this mean?

It means that judicial interpretations are considered by the Court to be a type of official document but that the courts often rely on official documents that are not “judicial interpretations” in deciding cases, in addition to the law and existing judicial interpretations, although (according to former judges), it will not be apparent from the face of the judgment or ruling.   However, there is no requirement that these normative documents be made public.

Some of these normative documents may be ones that the Court issues with administrative organs (for example the Ministry of Public Security) (although such documents do not fit the definition of “judicial interpretation”).  The rationale for this practice is that officials of the administrative organ involved will comply only if their administrative organ jointly issues it with the Court and requires compliance of its subordinates.

It means that there is no assurance for any party, domestic or foreign, corporate or individual, that the legal rules on which the court has relied in his case have been made known to him.   It is not an issue in every case, of course, but is more likely in new or sensitive areas.

This is an area for the new Court president to turn his attention, and for foreign and international institutions to encourage the Court to make positive changes to implement regulations requiring the publication of all normative documents.