Supreme People’s Court Focuses on Domestic Violence

Domestic violence victim (photo from SPC website)

Domestic violence victim (photo from SPC website)

The Supreme People’s Court (the Court) devoted its 27 February 2014 press conference to domestic violence, highlighting:

  • the seriousness of the problem;
  • 10 model cases;
  • a forthcoming judicial interpretation on domestic violence.

Judge Xue Shulan, Deputy Head of the #1 Criminal Division, appeared at the press conference.  The Court websites have published a number of domestic violence related articles in the past 3 weeks.  Some of these articles have been reprinted on the website of the Central Communist Party Political Legal Committee, indicating that the Court initiative has political backing.

This blogpost will briefly explain:

  • the significance of the 10 model cases
  • some issues that should be incorporated into the judicial interpretation;

Some statistics about domestic violence in China

At the press conference, Sun Jungong, spokesman for the Supreme People’s Court, released some statistics about domestic violence.  He said that domestic violence occurs in approximately 24.7 percent of Chinese families, and almost 10 percent of intentional homicide cases are connected with domestic violence.

The significance of the 10 model cases

Domestic violence graphic from SPC website

Domestic violence graphic from SPC website

These model cases are intended to convey lessons to the lower courts, lawyers, and the general public on how to consider cases involving domestic violence.

Civil protection orders

China has adopted the concept of a civil protection order (commonly used in other jurisdictions) into its legal system (see an academic study on the issue).  The amended Civil Procedure Law provides a legal basis for the issuance of these orders (see a summary in the linked article).  The Court revealed at the February news conference that over 500 civil protection orders have been issued since 2008.  

One model case involved a civil protection ordered issued to protect  an elderly man against his abusive child while another case involved a civil protection ordered against the uncle of the minor.

The cases convey the message that the scope of persons to be protected under domestic violence civil protection orders should be expanded to include:
  • the elderly;  and
  • minors.
These cases signal an expansion of the categories of individuals for whom orders may be issued and an expansion of the definition of relationship between victim and perpetrator. Academic studies suggest a prevalence of domestic violence against the elderly and minors in China.  Academic studies have found elder abuse occurring in approximately 35% of the populations surveyed and significant prevalence of child abuse.  
Previously, the sole guidance from the Court regarding the issuance of civil protection orders had been limited to issuing them on behalf of one spouse against the other while still married or in the process of seeking a divorce.

Evidence

The Court is providing guidance for judges about what can be considered evidence of domestic violence.  Examples of evidence of domestic violence in these cases include the statement of the victim, in writing, medical records, and the diary of a child and/or victim.In the past judges often did not consider the statement of the victim as evidence.  Reaffirming the evidentiary value of medical records and contemporaneous notes is also important.

Types of domestic violence

In one case, the description of domestic violence was described as excessive use of house rules.  In another example, emotional harm was specifically cited as an injury caused by the violence and a fine was issued.  In another case, use of threats to control the other party was cited.
By selecting these cases, the Court is also conveying a message about the types of behavior that can be considered to be domestic violence. The Court is stressing that domestic violence is not just physical, and that it is a specific dynamic where one individual exercises power and control over the other, including using threats of violence even when there is no physical violence and considerable rule making and other methods to intimidate and emotionally and mentally harm the victim.

Consequences of domestic violence

 In one case the daughter was injured when she tried to protect the mother against her abusive father so the divorce was granted and the mother given custody.  This case conveys the message that a parent who is found to have committed domestic violence against the other parent should not have custody of the child or children who were in that household when the abuse occurred, even if the child was not directly physically targeted or harmed.  This represents a sophisticated understanding of the impact of domestic violence on children and the danger of an abusive parent.

Issues for the judicial interpretation

Judge Xue mentioned at the press conference that a draft interpretation had already been prepared, but was subject to further studies and discussions and it was hoped it would be issued in the second half of 2014.  Issues to be covered by the interpretation include:
  • defining domestic violence;
  • determining whether acts constitute domestic violence;
  • classification of different types of domestic violence;
  • more specific guidelines on criminal punishment for domestic violence;
  • evidence in domestic violence cases;
  • guidelines for imposing punishment on  victims of domestic violence who commit crimes against their abusers.
The drafting of the interpretation was preceded by several years of field studies in 73 basic level courts.  At the press conference, the head of the Court’s Institute for Applied Jurisprudence stated that the definition of domestic violence will incorporate international practice and that the courts will work with other institutions to promote a unified approach to domestic violence.   

Judicial training

After the domestic violence judicial interpretation is issued, widespread judicial training will be needed to ensure that judges can recognize domestic violence and issue civil protection orders to protect women, children, and the elderly.  Many press reports (as well as studies by the Institute of Applied Jurisprudence) indicate that part of the problem can be traced to local courts, police and other authorities, who do not take domestic violence seriously.

This training is especially needed in rural courts, where many abuse cases occur, but also in the military courts.   Article 33 of the Marriage Law provides that the spouse of a soldier in active service who wants a divorce needs to obtain the soldier’s consent, unless the soldier has made “grave errors” (重大过错, which according to a 2001 interpretation of the Marriage Law, includes domestic violence.  This article by a judge from a court outside of Kunming describes some of the issues.

At the latest NPC session, delegates again brought up the delay in progress on domestic violence legislation (described here).  Domestic violence is an area that the scholars, NGOs, and the domestic (and international) public has been putting pressure on the courts to address for some years, and it will be significant progress if the domestic violence interpretation is issued this year.

(The case analysis was provided by a contributor who wishes to remain anonymous)

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Clearing the Backlog of Civil Disputes in the Chinese Military Courts

Zhou Qiang visiting PLA Military Court, 2013

Zhou Qiang visiting PLA Military Court, 2013


A short notice on the Supreme People’s Court’s websites and Wechat on 2 March (linked here) announced the launch of an 8 month campaign in the military courts to clear out a backlog of major civil disputes.  The announcement (and related information) gives the outside world a peek behind the curtain of the almost 100 military courts.  Any lawyer involved in due diligence projects in China in the last 15 or more years will have encountered issues related to Chinese military law, particularly land issues, but the issues targeted in the campaign are much broader.

This blogpost will look at:

  • the military court system;
  • transparency of the military courts;
  • judicial reforms in the military courts;
  • civil jurisdiction of the military courts; and
  • the clearup campaign.

Military Court System

The Chinese military court system, a system to itself within the Chinese court system, apparently has attracted little attention outside of China (or at least in open sources).  The military court system is headed by the PLA Military Court, which is under the Political Department of the Central Military Commission, and under the Supreme People’s Court.  Below the PLA Military Court there are courts in the military regions as well as the military services–Navy, Air Force, Armed Police and below those courts, basic level courts within each of these regions, military services, and other units  (see this description.

Transparency

Although several articles in the Chinese press suggest that the military courts are more transparent than before, national security concerns apparently mean that the transparency measures being pushed by the Court leadership have not yet extended to the military courts.  For example, the judgment debtor database established in the fall of 2013 includes all the courts but the military ones (although some military-linked companies can be found in the database). The Court’s websites link to websites of the provincial-level local courts, but not that of the military courts. However, internet searches (as well as searches of legal databases) will turn up many reports of cases involving both the civilian and military court systems.

Judicial reforms in the military courts

The Third Plenum Decision called for improvement in military legislation, and it is understood to include judicial reforms in the military courts.  The head of the PLA Military Court stated that judicial reforms included improving the quality of military justice, including the quality of cases handled. What that involves has not been revealed in the open press, although presumably these are issues for the leadership of the PLA military court.  It is likely that increased training of military judicial personnel will be part of the solution,both within the military system and outside it.

Civil jurisdiction of the military courts

Civil, rather than criminal cases, are the focus of the clear up campaign.  The military courts have heard over 2500 civil cases, most of which have been settled.  The Chinese military courts have civil jurisdiction, most recently under a judicial interpretation in the form of regulations issued by the Supreme People’s Court in 2012, “Provisions on Several Issues Concerning the Jurisdiction of Military Courts in Civil Cases” (Civil Cases Jurisdiction Provisions, linked here) and a previous 2010 notice.  The rationale for giving military courts civil jurisdiction is to enable certain types of civil disputes to be resolved more effective, because the local court have encountered difficulties in dealing with them.  Difficulties cited range from serving military personnel or military entities, freezing military assets, obtaining evidence held by military entities, having military personnel attend hearings in the civilian courts, and enforcing judgments against military entities.

The Civil Cases Jurisdiction Provisions deserve more discussion than this quick blogpost can provide, and stipulate:

  • certain civil cases must be exclusively heard in the military courts (including cases in which both parties are military personnel or military entities):
  • parties have the choice whether or not to file a civil suit in the military courts under certain circumstances:
  1. tort cases in which military personnel or entities are tortfeasors;
  2. family disputes in which one party is in the military;
  3. tort cases that occurred within a military facility; or
  4. military real property disputes with a military individual or entity as party.
  • civil cases can be transferred to and from the military and local courts, respectively.

    Head of Lanzhou Military District Court visiting local intermediate court

    Head of Lanzhou Military District Court visiting local intermediate court

The PLA Military Court has issued regulations further specifying the jurisdiction of various levels of military courts, that have been summarized in the press but not made public.

The clear up campaign

The campaign, undertaken with the concurrence of the Political Department of the  Central Military Commission, focuses on the following types of cases:

  • construction of military installations;
  • ownership of military land;
  • defense technology (and presumably other intellectual property-related cases);
  • family law cases involving military personnel;
  • torts;
  • condemnation of property; and
  • labor.

Although reports have not given further details on specific cases, the following is generally known or presumed:

  • In many cities, PLA entities hold real estate in prime areas and the ownership disputes may involve significant sums of money;
  • it is likely that military families have not escaped greater social trends of increased rates of divorce, particularly in the major cities, and some of those divorces are likely to involve disputes over valuable real property;
  • there are likely are disputes over the intellectual property rights held by military personnel and military entities (one reported case involved infringement of copyright (by civilian publishers) of writings by military personnel);
  • military entities have contract disputes involving construction of military installation as well as military goods and services procured.

Greater engagement with the outside world?

It is unclear whether military exchanges with foreign armed forces have included the military courts, or whether the PLA Military Court (or the Central Military Commission) would welcome further engagement with the outside world.  Presumably efforts aimed at increasing the role of law within the military and strengthening the military courts would benefit all.

The Supreme People’s Court’s New Petitioning Measures

Beijing petitioners at SPC (used with permission of Natalie Behring)

Beijing petitioners at SPC (used with permission of Natalie Behring)

In the past two weeks, the Supreme People’s Court (the Court) has taken new measures to resolve the problem of petitioning (ordinary people petitioning higher authorities concerning their grievances).  Court petitioners generally have grievances related to judgments (or the enforcement of judgments) in the lower courts.  Petitioning affects the Court itself.  The current measures are tied with the document released on 27 February 2014 by the General Offices of the Communist Party Central Committee and the State Council on petitioning reform (the Petitioning Reform Document, linked here) and briefly reported here. More measures from the Court are anticipated this year.

Approximately 60,000-70,000 petitioners approach the Court each year, many repeat petitioners. In the Court Reform Decision of November, 2013 and other statements in 2013, Court leadership identified resolving the issues underlying petitioning as a target for action (see previous blogposts in January, 2014, October, 2013, and September, 2013).  It is likely that its current and future initiatives related to petitioning will be mentioned in the Court’s Work Report to the National People’s Congress.

Link to the Petitioning Reform Document

The Petitioning Reform Document is intended for distribution to the court system, as a Party document distributed to “all departments.” It pinpoints measures for the court system to take, some highlighted below.

Several points of the Petitioning Reform Document relate to the new measures taken by the Court.  Point 5 of the document relates calls for pathways for petitioning issues to be heard, including on-line petitioning platforms.  Point 9 of the document calls for greater legalization of petitioning, such as:

  • separating litigation from petitioning;
  • taking petitioning into the courtoom;
  • improving various types of appeal procedures (litigation/arbitration/administrative reconsideration)
  • improving systems within the courts/procuracy/public security/judicial administration to deal with the underlying issues causing petitioning.

The last sentence in Point 9 calls on the strengthening of the capacity of the judicial system, to satisfy the ever increasing demands on the judicial system of the masses (ordinary people), and to make the masses feel that they have received fair justice.

Phrases in the last sentences are frequently used by the Court leadership. The latter phrase is part of a statement made by Xi Jinping in early 2013 is often used by the Supreme People’s Court leadership (discussed here).

Internet petitioning platform

To implement the Petitioning Reform Document, on 28 February, the Court established an electronic platform for petitioners, linked here.  The internet platform can be accessed from the Court’s official website:

网上办事

The platform includes a short video explaining how to use the on-line system, as well as its benefits, linked here.  It is likely intended as a model for the lower courts.

Time will tell how the Court (and the lower courts) will promote the electronic system and resolve the underlying issues.  A related issue is whether the Party anticipates a greater scope for NGOs in dealing with court-related issues.

For example, will a team of Court staff be dispatched to the street with tablet computers to register petitioners’ cases?  Will this mean that NGO representatives will assist petitioners to register their issues with the courts(although this report from Guangzhou anticipates official channels only)?  Most importantly, what will the Court do to resolve the underlying issues?  Will this initiative be successful and result in few petitioner visits to the Court and the lower courts?

7 Model Cases

On 17 February 2014, the Supreme Court (Court) issued 7 model cases (典型案例) on protecting the livelihood of ordinary people. “Protecting the livelihood of ordinary people” is a political rather than legal term, and is described in court press releases as cases affecting the lives and livelihood of ordinary people (for more details, see here).

These model cases (linked here) and explained below, are not precedents but intended to be instructional. The legal reasoning in the cases is not important. The release of these cases sends several messages.

  • It shows the political leadership that the Court has taken the initiative to deal with petitioning related cases.
  • The Court is showing ordinary people that it is implementing Party policy by taking measures to improve how the court system deals with the underlying issues causing petitioning.
  • It is sending a signal to the lower courts that these cases are a political priority.

These cases include:

  1. a dispute seeking compensation for forced demolition of property on village land;
  2. a copyright infringement case in which Yang Jiang, widow of the writer Qian Zhongshu sought an injunction to prevent an auction house from auctioning some of his letters (see a discussion here);
  3. a Sierra Leone ship (with an Albanian captain and Syrian crew) arrested by the Xiamen Maritime Court  (see a press report here);
  4. a judicial review of an administrative decision in an environmental case in which a farmer’s complaint made to the local environmental protection bureau concerning water pollution was ignored;
  5. a celebrated case in which two men sought compensation for wrongfully being incarcerated for 10 years for a crime they did not commit (see a press report here);
  6. a medical malpractice case; and
  7. an unenforced judgment (despite multiple efforts by the court) in a forced demolition of property case brought by a trade union against a real estate development company (the defendant was one of the companies on the first list of judgment debtors issued by the Court).

Cases #2, #3, and #5 were well known either nationally or locally, and case #7 may have come to the Court’s attention when the defendant was named on the judgment debtor’s blacklist, but it is unclear how the rest came to attention of Court officials (possibly when they met with provincial court officials).

Although the Court is promoting the use of cases to guide the lower courts, including its announcement in the October, 2013 the Court Reform Decision, that it would ” fully expand the important role of leading cases and cases for reference.”

充分发挥指导性案例和参考案例的重要作用

these cases are meant as political rather than legal guidance.  The subject matter of these is typical of many “people’s livelihood” cases.

In a November, 2013 blogpost, Mark Cohen (of Chinaipr.com) gave a good overview of model cases, contrasting them with guiding cases.  The case descriptions of the model cases do not contain the original judgments but rather a brief summary of the facts, judgment, and (critically) the importance of the case.  These model cases are not an indication that the Chinese judiciary is borrowing case law from common law system.

It is likely that 2014 will see more initiatives by the Court to deal with some of the issues underlying petitioning, including working with the NPC Legal Work Commission on expanding the jurisdiction of the courts under the Administrative Litigation Law. The Petitioning Reform Document calls for:

  • the establishment and improvement of systems imposing liability for mistaken verdicts and
  • lifetime responsibility (liability) for the quality of cases handled.

The Court is likely to focus on these as well as other issues related to the judiciary raised in the Petitioning Reform Document.