On 29 January, the Supreme People’s Court issued regulations on legal representation in death penalty cases, Measures for Considering the Views of Defense Lawyers in Death Penalty Review Cases (最高人民法院关于办理死刑复核案件听取辩护律师意见的办法) (translation available here). This blog previously flagged that the Court was drafting them and that they were meant to be issued by the end of the year. They will become effective on February 1. They were accompanied by a brief question and answer session with a “responsible person” from the Court’s #1 Criminal Division. presumably the head or deputy head. These brief regulations provide important protections to those sentenced to death, and are part of the Court’s efforts to minimize mistaken cases.
The regulations permit defense lawyers to review the defendant’s file, provide additional evidence and have a hearing with the judges handling the case, although not a formal court hearing. The Court has created a room for lawyers to use to review death penalty review materials. The transcript of the hearing (as signed off by the defense lawyer) is to be included in the case file. However, defense counsel has only two weeks to submit its additional opinion in the case. Presumably this deadline can be extended if counsel provides justification.
The regulations set out the telephone numbers of the Court’s criminal divisions, which review death penalty cases. This blogpost translated a chart drafted by the Chinese magazine Southern Weekend setting out jurisdiction of the various divisions.
This is an important step forward in protecting the rights of criminal defendants and is the product of many years of law reform efforts.
Many China observers were surprised to learn that in early January, 2015, the Supreme People’s Court (Court) issued an interpretation on enabling civil society organizations to sue polluters on behalf of the public, when most commentators take the view that those organizations are controlled more tightly than before. The Court issued it after years of work, analysis, and low numbers of environmental lawsuits (highlighted in my earlier blogpost), particularly public interest ones.
This blogpost explains:
what the Interpretation does;
what its background is;
why the Court is enabling environmental NGOs to file suit; and
An assessment of its implications.
This blogpost should be read with Barbara Finamore’s blogpost, How China’s Top Court is Encouraging More Lawsuits Against Polluters.
What the interpretation does
The interpretation, entitled “Interpretation on Several Issues Regarding the Application of Law in Public Interest Environmental Civil Litigation (Interpretation) (Chinese original found here and translated here). The Interpretation (like many other Court interpretations) combines court procedural rules with additional rules on liability and other legal standards to put in place a framework for Chinese environmental NGOs to file public interest environmental cases against polluters. It supplements Article 58 of the Environmental Protection Law (amended in 2014) and the 2012 Civil Procedure Law, because neither law had sufficient legal rules to guide local NGOs in bringing and local courts in accepting, hearing, and deciding these lawsuits.
A draft of the Interpretation had been issued for public comment on 1 October and the final draft reflects comments from the public. Both domestic and international organizations commented on the draft.
The Interpretation authorizes environmental NGOs with a five year track record that are legally registered with the local NGO regulator, the Ministry of Civil Affairs or its local counterpart, to sue polluters on behalf of the public, and to seek the equivalent of a permanent injunction, compensation, orders to clean up the pollution, or an apology, among other measures. A Ministry of Civil Affairs official recently estimated that about 700 environmental groups met current qualifications.
Broad definition of environmental NGOs that can file suit. At the press conference announcing the Interpretation, the Court spokesman said that a broad definition was adopted so that it would be flexible enough to accommodate additional types of approved non-profit groups. This may be have been done to accommodate contemplated reforms to non-profit institutions;
Provisions permitting an NGO to seek a court within a provincial boundary but outside the locality of the polluter to hear the case. Because local courts are locally funded, they are often reluctant to hear or decide cases that cause result in judgments against companies that are often substantial contributors to local tax bases. An NGO is also allowed to sue polluters outside of its own locality. This was also highlighted in the same press conference.
The Interpretation enables injured private parties to piggyback on the NGO’s case, also highlighted by the Court spokesman.
Several provisions to require court oversight when NGO settles the lawsuit, to guard against intimidation by the polluter, which may be allied with local government.
The damages the polluter pays are paid into a pool of money, which is used to compensate those harmed.
If the defendant polluter refuses to provide information about pollution discharge, the court can presume that the plaintiff’s assertions have been established.
Several provisions are designed to reduce the costs of litigation to the NGO.
The litigation must not be profit making for the NGO.
The Court spokesman described these cases as “a new type”, difficult to try and enforce, and ones that attract a great deal of public attention, but given the high degree of public concern, in January, 2015, China’s People’s Court Daily identified the Court’s environmental legal policies, as being the SPC’s top judicial policy initiative in 2014.
The Interpretation reflects years of work within China by local legal experts, local environmental NGOs, as well as the technical support of international organizations such as the United Nations Development Program, the Asian Development Bank, and other China-based foreign NGOs, and universities. The structure established by the Interpretation reflects concepts adapted from US law and other foreign legal systems, but reflects Chinese legal, political and societal realities.
The Third and Fourth Plenum decisions both highlighted establishing compensation systems for those responsible for creating ecological or environmental damage, and the Court’s policy document on environmental issues, issued in June, 2014, signaled the importance to the government of public interest environmental litigation.
Track record of Chinese courts on environmental litigation
About 170 courts have now established environmental divisions, but according toCourt studies, most have heard relatively few cases. Public interest environmental litigation was piloted in provinces as diverse as economically developed Jiangsu Province and the less developed southwestern provinces of Yunnan and Guizhou. These cases have been analyzed both in Chinese and English.The pilot projects highlighted some of the underlying issues, which include local protectionism, lack of specific provisions on these cases, lack of training, and lack of coordination between the environmental protection authorities and the courts. An additional issue is also the performance indicators (now being reformed) of the courts, which incentivizes judges to avoid taking risks.
From 2000 to 2013, only about 50 environmental public interest lawsuits were heard in China, most of which were filed by government agencies, according to a report by the state-sponsored All-China Environmental Federation. NGOs have attempted to file environmental public interest cases for many years, but have generally been refused by the courts. For example, although the All-China Environmental Federation filed eight lawsuits in 2013, but none were accepted.
Model cases before the Interpretation was issued
In the last few months, several public interest environmental cases have received a great deal of attention, including:
A case decided at the end of 2014 involving by a semi-official NGO in Jiangsu Province, where the Taizhou City Environmental Protection Association (the chairman, Tian Jun, is also the head of Taizhou’s environmental protection bureau) against six chemical companies that had polluted local rivers resulting in a 16 milllion RMB compensation against the polluters.
The Chinese government recognizes that the degradation of the environment in China, along with the harm suffered by hundreds of millions of people from air, water, and soil pollution is a social and political problem, and the system, without involving NGOs, was unable to address the problem, and that it is preferable to resolve environmental problems by bringing environmental disputes into the courtroom, rather than having demonstrations against polluters.
The joint policy document issued by the Court, MCA and MEP seeks to overcome local government hostility to environmental NGOs. Local governments had often been often unfriendly to environmental NGOs. The head of the Chongqing Green Volunteers Association was quoted in 2012 as saying “I annoyed a lot of government officials and businessmen. They hired gangsters to beat me up,” he says of the early days of his work. “After hearing this news, many of my environmental activist friends were too frightened and they left me – one after another. I was feeling very helpless.”
The predictions in the Chinese legal press are that the Interpretation will eventually lead to more litigation, despite local protectionism and the technical demands on NGOs preparing to bring these lawsuits.
On January 1, 2015, the day that the new Environmental Protection Law went into effect, the environmental NGOs Friends of Nature and Fujian Green Home, with the support of lawyers from the environmental law center at China University of Politics and Law, , filed an environmental public interest suit to counter damage to a woodland area by mining activities in Nanping, Fujian province; the case was subsequently officially accepted
On January 4, 2015 with the support of funding from the Alibaba Foundation, NRDC’s partner organization Friends of Nature officially launched an “Environmental Public Interest Litigation Support Fund.”
On January 13, 2015 the All-China Environmental Federation filed two lawsuits in Shandong’s Dongying Intermediate People’s Court against polluters in Zhejiang and Shandong provinces, which were accepted.
Based on my own contacts, other environmental NGOs are reviewing their activities to consider whether they have an appropriate case.
Chief Justice John Roberts of the US Supreme Court may be surprised to learn that (an edited and translated version of ) his year-end report (linked here), is being read by tens of thousands of Chinese judges and lawyers. The reason is a translation by the Institute for Applied Legal Studies, affiliated with the Supreme People’s Court (Court), was published on the Supreme People’s Court website and distributed through its social media channels (Wechat and Weibo), as well by the social media feeds of local Chinese courts.
What relevance does Justice Robert’s report have for the Chinese judiciary? It reflects how the Court considers foreign legal models as it seeks to reform the Chinese courts. Some of the “take-aways” are highlighted below.
Borrowing foreign legal models
Referring to or “borrowing” foreign legal models has been a important part of China’s legal modernization, particularly in technical areas of law, but it remains politically sensitive.
The official position on borrowing/referring to foreign legal models is set out in the 4th Plenum Decision: “Draw from the quintessence of Chinese legal culture, learn from beneficial experiences in rule of
law abroad, but we can absolutely not indiscriminately copy foreign rule of law concepts and models.”
Earlier this month, an official of the Communist Party’s Central Political-Legal Committee, writing in the Communist Party’s journal Qiushi (Seeking Truth) warned:
We want to study and borrow from the world’s best achievements of legal civilization, but studying and borrowing does not mean simply “take-ism (grab-ism)” [this phrase is the title of a 1934 essay by the famous Chinese writer Lu Xun to mean that China should learn what it needs from Western culture through a process of selection].
What are the takeaways for the Chinese courts?
The following excerpts from Justice Roberts’ report clearly resonated with the Supreme People’s Court leadership, as they consider court reforms that can be successfully adopted in China’s current political, legal and cultural environment:
The courts understandably focus on those innovations that, first and foremost, advance their primary goal of fairly and efficiently adjudicating cases through the application of law.
Courts are simply different in important respects when it comes to adopting technology, including information technology. While courts routinely consider evidence and issue decisions concerning the latest technological advances, they have proceeded cautiously when it comes to adopting new technologies in certain aspects of their own operations.
For 225 years, since the enactment of the Judiciary Act of 1789, the federal courts in each state have exercised a fair degree of operational independence to ensure that they are responsive to local challenges, capabilities,and needs. The individual courts have had considerable latitude to experiment with new technologies, which has led to some courts initiating local innovations. When the Administrative Office plans a nationwide initiative, such as Next Generation CM/ECF [electronic case filing and case management], it must devote extensive resources to conferring with judges, court executives, and lawyers across the country, examining what has worked on a local basis, and identifying features that should be adopted nationally.
The federal courts, however, also face obstacles that arise from their distinct responsibilities and obligations. The judiciary has a special duty to ensure, as a fundamental matter of equal access to justice, that its case filing process is readily accessible to the entire population, from the most techsavvy to the most tech-intimidated. Procedural fairness begins in the clerk’s office.
On 6 January 2015, case law Chinese style (案例指导制度) made the headlines of the People’s Court Daily and the Supreme People’s Court’s (the Court’s) websites, because the Supreme People’s Court president, Zhou Qiang provided an introduction to a book that the Court is publishing on guiding cases. Universities such as Yale, Stanford, and the City University of Hong Kong as well as institutions such as the European Union have held training programs with Court staff on the case method. Numerous academic conferences have been held on the topic in China. The Communist Party leadership expressed its approval for case law in the 4th Plenum Decision in the following phrase:
Strengthen and standardize judicial interpretation and case guidance, and unify standards of applicable law (加强和规范司法解释和案例指导，统一法律适用标准).
As discussed in this blogpost, the Court’s October, 2013 judicial reform plan flagged the importance of case law in this phrase:
“Expand fully the important role of guiding cases and cases for reference”.
This blogpost will look at how the Court leadership understands Chinese “case law” and how it sees case law to be useful to the judiciary.
Waving the flag for case law
President Zhou Qiang’s introduction incorporated both guiding cases, as designated by the Supreme People’s Court under its 2010 regulations, and model/typical cases.
He highlighted the following benefits of case law as:
summarizing trial experience;
strengthening supervision and guidance [of lower courts by higher courts]
unifying the application of law;
improving the quality of adjudication,
helping establish a judicial system with Chinese characteristics
assisting in resolving the problem of similar cases decided differently;
controlling judges’ discretion.
Zhou Qiang did not go into the specifics of the case law system, which Hu Yunteng, the head of the Court’s Research Office, set out in a January, 2014 article, addressing:
distinction between guiding cases and other cases issued by the Court or lower courts;
how judges should refer to guiding cases;
issues facing the guiding case system.
Judge Hu Yunteng clarifies the point that many othercommentators and I have made, that cases selected as guiding or model cases are not the entire judgements, but have been curated and edited.
The distinction between guiding cases and other cases
Judge Hu distinguishes guiding cases (Stanford Law School’s Guiding Case Project translates and comments on them) from model cases published in the Supreme People’s Court Gazette, by the Court itself, and individual tribunals of the Court. (Examples of model cases can be found here and here.)
Judge Hu points out that the title, document number, method of selection and approval, and most importantly, the authority of guiding cases is different. Guiding cases, unlike model or typical cases issued by the Court or lower courts, must be referred to by all courts in similar cases, and lower courts may refer to guiding cases in the reasoning section of their judgments.
How judges should refer to guiding cases
Chinese judges must focus on the important points of guiding cases, which have been approved by the judicial committee of the Supreme People’s Court, and secures their unifying role in the Chinese court system.They must only be used in similar cases. Judge Hu distinguishes Chinese guiding cases from Anglo-American precedent, because guiding cases can only be issued by the Supreme People’s Court. He says that judges may refer to guiding cases in their judgments and distinguish the case before them from a relevant guiding case.
Issues facing the guiding case system
Judge Hu identifies the following issues:
The relationship between judicial interpretations and guiding cases, and in which cases guiding cases rather than judicial interpretation should be relied upon is unresolved.
Second, the issues in the guiding cases generally are not breakthrough cases and are more “damp squibs.” Judge Hu suggests that the guiding case system address more controversial cases.
Third, it is unclear to the lower courts when guiding cases must be used, and the consequences if a lower court fails to use a guiding case on point.
Fourth, he admits that too few guiding cases have been issued and suggests that the Court issue a number of guiding cases equal to judicial interpretations.
Comments from the market
An opinion piece in Caixin, reporting on a late December conference at Renmin University on case law, set out comments from some Chinese legal professionals on the case system:
Renmin University Professor Huang Jingping–“very few judges refer to guiding cases”
Peking University Professor Liang Genlin–“the position of guiding cases in the legal system and how they can be distinguished from other cases is chaotic”–clearer rules are needed.
Li Guifang, partner, Deheng Law Office–guiding cases are needed.
It is likely that guiding cases and model/typical cases issued by the Supreme People’s Court will continue to be used to accomplish several goals:
Publicize the accomplishments of the lower courts.
Distributed as political education or have political purposes.
Convey to the lower courts, lawyers, and the general public the correct position on a substantive issue but also have a political purpose;
Provide guidance for judges and lawyers on substantive legal issues;
Provide models of correctly decided cases.
Finally, it appears likely that the issue of the authority of guiding cases vs. other types of cases will be set out in regulations at some point.
On the afternoon of 6 January, the Supreme People’s Court (the Court) issued its first judicial interpretation of the year (法释〔2015〕1号), its long-anticipated environmental public interest litigation interpretation at a press conference, at which officials from the Ministry of Civil Affairs and Ministry of Environmental Protection, as well as the Court’s spokesman appeared.
The text of the interpretation is found here, with a translation available here (many thanks to the team at Chinalawtranslate). as well as a notice jointly issued by the Court, the Ministry of Environmental Protection, and the Ministry of Civil Affairs (the translation of the notice (now in progress, is available here). The Court published the text of the press conference, the video of which is available on the national court website.
2. A Head’s Up
Barbara Finamore of the Natural Resources Defense Council and I are drafting commentary on the interpretation in tandem. My blogpost will summarize the highlights of the interpretation, the legal and policy background, as well as my assessment of what can be expected. A draft of the interpretation was issued for public comment in October. From the brief summary of the major differences available here, it is clear that the public comment period provided very useful input.
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