Supreme People’s Court’s new policy on drugs

ceb176df44f7c0a32fc56771bb9ba2c9This short blogpost follows up on the recent report on the same topic in the  Diplomat.

In late May, the Supreme People’s Court issued a conference summary on drug crimes (全国法院毒品犯罪审判工作座谈会纪要) setting out further guidance to the lower courts on trying drug cases (for those diving deeper into the subject, a transcript of comments by an official of the #5 criminal division follows the text of the conference summary).

Conference summaries are what the Court entitles “normative documents” and often address new issues or areas of law in which the law is not settled.   “Conference summaries” are also a form of Communist Party/government document.  Conference summaries are not considered “judicial interpretations” and are not required to be made public.  The full text was not generally issued in the legal press but has appeared in social media. This blogpost will look further into the conference summary and what it implies.

The conference summary

A national drug crimes court conference was held in December, 2014, with delegates both from the military and civilian courts.   Although the actual number of drug cases heard in the military courts is unknown, they do occur, as indicated by a press report of a man sentenced in Anhui for selling drugs, who had previously been convicted by a military court in Lanzhou for selling drugs (and other offenses).

The Court organized the conference to ensure that the lower courts were trying drug crimes in line with the latest national policy on the matter and to harmonize lower court practice.  That national policy is set out in the first Central Committee/State Council policy document on drug crimes, issued in July, 2014, and the content appears to be sensitive enough that the full text has not been published. “Harmonizing court practice” means in  Chinese judicial parlance that judges are applying the law similarly. As explained earlier, judicial conferences are an important way of doing so. The conference summary, which was circulated among conference participants (and the Court leadership) sets out guidelines for judges on difficult issues, including the death penalty.

Death penalty

A good analysis of prior law on drugs and the death penalty can be found here. The conference summary provides guidance on how to apply the death penalty, and is consistent with the Court’s general principles on applying the death penalty–in a minority of cases and to the worst offenders.  The conference summary provides guidance in relation to three issues:

  • Trafficking of illegal drugs–the death penalty is most appropriately applied to the head of a drug enterprise, who organizes, ships illegal drugs with armed guards, hires others, etc, and executing 2 or more persons in the same case should be very carefully considered.
  • Illegal drugs supply chain–the death penalty should be applied to the worst offenders.
  • New types of drugs-meth, ice, ketamine–similarly, the death penalty should be applied to the worst offenders.

Who commits drug crimes?

According to a 2011 Court research report, the profile of those committing drug crimes is:

  • Unemployed (51% in 2011), with about 90% peasants and unemployed (this has implications for the government’s urbanization plans;
  • Greater proportion (11%) of women in comparison to other crimes;
  • Many recidivists;
  • Generally low level of education;
  • Involving high level of profits when trafficked away from border areas; and
  • Increasingly involving new types of drugs.

Comment

As Chinese people become wealthier (and the economy becomes more internationalized), drug use (and the illegal drug industry) is growing correspondingly.  As in legal goods, some illegal drug  manufacturing has moved to China.  Although last July’s high level document calls for a three year plan to control illegal drugs, it seems more likely that we will continue to see an increase in drug cases heard in the Chinese courts and capital punishment applied to the most major offenders.

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Supreme People’s Court releases big data on civil litigation in 2014

The Supreme People’s Court (Court) recently issued a report on civil litigation in the Chinese courts in 2014 with some big data and analysis. (The graphics in this blogpost are from the report.)  What are the trends relating to commercial disputes and what do they mean?

# of civil/commercial cases accepted (in 10,000s)

Trend #1–the number of civil and commercial cases has almost doubled in the past 10 years, despite obstacles to filing law suits, well documented elsewhere in blogposts and academic articles (and recognized as a major issue by the Court).

According to the commentary provided by Ma Jian of the Court’s research office, it reflects:

  • Dynamics and fluctuations in society and the economy;
  • Multiple effects of the government’s macro-control policies;
  • Outcomes of implementing legislation regulating the economy and society.
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55.8% contracts; 25.47% ownership etc., 18.63% family/inheritance law

Over 9 million civil/commercial cases were accepted by the Chinese courts in 2014, up 7.41% compared to 2013.  1.2 million cases were carried over to 2015, reflecting a change in performance indicators for the courts, described in this earlier blogpost.

In recent years, civil and  commercial cases have constituted 63% of all litigation in the Chinese courts.  As the Court report noted, the enormous growth in the caseload places even more pressure on the judges.  The large caseload, poor pay, lack of respect, and responsibilities unrelated to hearing cases have motivated a significant number of judges to leave (as this recent article highlights).  The personnel changes announced in the judicial reforms have exacerbated these trends (and were anticipated by the drafters).

Contract disputes

Trend #2.  In 2014, contract disputes constituted more than half of all civil/commercial disputes in the Chinese courts, far outweighing any other category.The proportion of contract disputes in proportion to other civil/commercial disputes has been rising. In 2014, the Chinese courts accepted 4.5 million contract cases, an increase of 11.36% in comparison to 2013. The top five types of contract disputes, accounting for 73% of first instance cases were:

  • loans;
  • sales;
  • labor;
  • service; and
  • real estate development & management cases.

The following types of contract disputes have increased most quickly:

  • credit card;
  • construction;
  • loans;
  • insurance.
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1st instance loan contracts (in 10,000s)

Loan disputes

Trend #3. Loan disputes have more than doubled in the past 10 years.  In 2014, they increased by almost 18% in comparison to 2013, to reach 1.7 million cases, Since 2012, loan disputes have exceeded divorce cases. Reasons for this according to the Court:

  • the government’s prudent money policy;
  • monetary/funding tightening;
  • impact of the new company law reforms [more small companies coming onto the market needing funding];
  • effects of changes to capital market system;
  • large amount of private lending [民间, generally known as shadow lending outside of China], leading to many more disputes. (I will publish an article on these disputes in the near future).

Other contract disputes

In 2014, the courts accepted almost 700,000 sales contract disputes, an increase of 12.28%. According to Court research, many of these cases involved small companies (SMEs). Many of these cases involved small family companies, with inadequate contract templates, leading to disputes.

New real estate construction cases accounted for 118,700 cases, an increase of 18.7%, while 173,000 real estate development cases were accepted by the courts, a increase of 5.53%。  The large increase in real estate construction cases is related to the tightening of funding for real estate development and the hot and cold in the real estate development market.

Other ownership disputes

New first instance ownership disputes accepted in 2014 reached 2 million cases, an increase of 3.67%.  Tort cases accounted for 1.6 million of those cases.  New shareholder disputes accounted for about 26,0000, an increase of almost 37%, with a smaller number of commercial paper disputes (48000), an increase of 15.46%.

The Court commented that SMEs have been most affected by the overall macro-economic downturn, which has indirectly led to all sorts of shareholder disputes.  The new Company Law has made it possible for funds to come in and out easily, but because many of these companies lack secure sources of operating capital and have to depend on private lending (shadow banking), if one party to these transactions has a funding problem, it causes a multi-party chain reaction and creates many complex shareholding disputes.

Mediation

Mediation/withdrawal of case rate for civil/commercial 1st instance cases

As can be seen from the above bar graph, the rate of settlement of first instance civil (and commercial) cases by mediation or other settlement is now back to 2007 levels.  The Court did not set forth reasons for the significant drop in cases resolved by mediation. In my view, two of the factors include:

1) the rate of cases resolved by year end had been an important performance indicator for the courts. Since December, it has no longer been the case; and

2) The Court has moved away from a simplistic policy of “mediation first” to a more nuanced approach to dispute resolution, as indicated by its initiative regarding diversified approaches to dispute resolution.

Comment

Chinese civil litigation reflects what is going on in the real economy and society (this will be even more the case when the effects of case filing reforms are documented) and the effects of government policies and controls on both.  Although the US and the European Union are negotiating bilateral investment treaties (BITs) with China, it appears from news reports that no one in either negotiating team has considered the impact of the current state and ongoing reforms of the Chinese judiciary on those BITs.  These issues deserve more serious attention. Foreign investors (or more often, subsidiaries of foreign investors) in China are increasingly finding themselves in Chinese courts and this trend is likely to continue.

Senior Chinese judges speak out on preventing injustices in China’s criminal justice system

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Confess quickly!

Although the Human Rights Watch report on the use of torture in the Chinese criminal justice system is capturing the attention of the media outside of China (and overshadowing a forthcoming report of an investigation done by the China University of Political Science and Law (CUPL) on the same subject), the report that may be more persuasive to the Supreme People’s Court (Court) in reducing injustices in China’s criminal justice system is one coming out of a symposium held recently in Henan Province.

The symposium on mistaken cases and “hearing centered criminal procedures”was sponsored by the Henan Higher People’s Court and CUPL,  Participants at the symposium included the president of the Henan Higher People’s Court (Zhang Liyong), the head of the #5 criminal division of the Court (Gao Guijun), several leading academics, including one from the Communist Youth League’s training school, and two from the legal press (Legal Daily and the People’s Court Daily). The detailed report from which this blogpost is taken was published in the Court’s media outlets, and a more abbreviated version on the Central Political Legal Committee’s websites).

The criminal prosecution of senior management of GlaxoSmithKline (GSK)’s Chinese subsidiary and many other lower profile cases (such as this one about a Swedish teenager) serve as a reminder that criminal justice issues are relevant to the (foreign) business as well as the human rights community.

The comments from the participants were fairly consistent.  Those from the judges who participated are particularly significant, because their remarks reflect reforms set out in the 4th Five Year Court Reform Plan that may be eventually implemented and they are the ones who can advocate directly these points in internal discussions with other participants in the criminal justice system.

Judge Zhang Liyong, President of the Henan Higher People’s Court

Judge Gao Guijun, head of the #5 Criminal Division of the Court

Comments from the judges

  • Put substance into trial procedure by requiring witnesses to appear in court and implement the exclusion of illegal evidence;
  • Improve judicial supervision of the investigation process, to ensure that the standard of the investigation process meets the standard at trial.  This comment is liked to an unnoticed phrase in the 4th Five Year Court Reform Plan Outline, which calls for “Improving judicial supervision of judicial (i.e. justice system) measures and investigative methods which limit personal freedom.”   Publications within the court system, such as this detailed study in Chongqing advocating better judicial controls over the investigatory stage) reveal that some judges are looking to Germany and Taiwan for examples in other civil law systems, in which detainees have the right to be brought before a court during the investigation process;
  • More effective curbs must be established on procuratorial authority;
  • Torture still exists to some extent, and measures must be taken to prevent it;
  • The procuratorate and defense must be on an equal footing;
  • The defendant is not a criminal until after sentencing, and he must be allowed to sit with defense counsel;
  • The presumption of innocence in doubtful cases must be implemented (疑罪从无原则).

Comments from the academics

  • The new [pre-trial] detention center law being drafted by the State Council’s Legislative Affairs Office should incorporate obligations on detention center staff to cooperate with courts in reviewing illegal evidence;
  • A system should be established to require criminal investigators to appear in court and for the investigation agencies (public security and procuracy) to provide full recordings of interrogations;
  • The hearing must become the center of proceedings, not the investigation file, and the trial (first instance hearing) is the foundation for preventing miscarriages of justice;
  • There are defects in the system of correcting miscarriages of justice–there should be a system under which a convict can apply for DNA testing, also the standard for exculpatory evidence in re-trials is too high;

Comments from the media:

  • To prevent mistaken cases, media monitoring is needed;
  • News must be made public, to satisfy the public’s right to know;
  • The justice system must be more transparent.

Comment

Implementing many of the recommendations of the participants of the symposium cannot be done solely by the Court.  They will require approval by the political leadership, acting through the Central Committee’s Central Leading Group for Judicial Reform because they relate to other criminal justice institutions.  Because many of the issues raised, such as Improving judicial supervision of the investigation process, instituting an effective system for excluding illegally obtained evidence are part of the 4th Five Year Court Reform Plan Outline, it is likely that progress will be made towards implementing these measures in the next few years, perhaps once the  reforms mandated for the public security authorities have a had measurable impact. The leadership is unlikely to be willing to implement these reforms if it perceives a negative effect on “law and order” and social stability. The rights of a large number of people can potentially be improved if they are.

Medical malpractice law–a heads up from the Supreme People’s Court

5d1f900037c306e744c72f9d2b511837Medical malpractice law is the elephant in the room for those considering investing in China’s healthcare sector. In March, the Chinese government issued a large scale plan for reforming  medical institutions. Part of those reforms include attracting private and foreign capital to invest in hospitals, clinics, and other medical institutions (as the Communist Party Central Committee highlighted in the Third Plenum Decision), but a few other phrases highlight doing a better job of resolving medical disputes.

According to the head of the #1 Civil Division of the Supreme People’s Court (Court) in 2014, the Chinese courts heard almost 20,000 medical malpractice cases, and over the last seven years, there has been 81% increase. Chinese patients (and families) are increasingly aware that litigation may result in a more favorable outcome than other methods.  In a recently issued document (still in draft, but already published on the Internet), the Supreme People’s Court has signalled that it is working on:

  • a body of medical malpractice law rules; and
  • better systems to resolve disputes involving the medical system.

Some background

In recent years, disputes between doctors, hospitals and patients in China have been in the news, in policy reports, and scholarly articles, with descriptions of  beatings, brawls, and killings occurring in Chinese hospitals.  The current problems have been highlighted (in English, at least) on this blog, in the press, in NGO reports, and analyzed in several law review articles, including a detailed study by Professor Benjamin Liebman, of Columbia Law School.

What issues is the Court looking at?

Chinese medical malpractice law (and related institutions) are inadequate for dealing with increasingly litigious Chinese patients (and their families) (as highlighted in this earlier blogpost). In the document, the Court announced:

  • it is working on new ways of trying medical malpractice cases;
  • high on its priority  is more detailed rules on the burden of proof and the standard of proof in medical malpractice cases (the new interpretation of the civil procedure law does not add significant details on this, leaving earlier rules in place);
  • the concept is to strike a balance between protecting the interests of the patients and enabling normal operation of medical institutions.

The document sets out some rules that are likely to be incorporated into a judicial interpretation:

  • a plaintiff seeking to bring a medical malpractice cases must provide evidence of the doctor-patient relationship (evidence could include registration card, medical history, hospital discharge certificate), payment receipts;
  • a medical institution has the burden of proof when asserting that it should not be liable because medical personnel had taken all reasonable medical efforts, or the state of medical development, or other such issues;
  • in a medical dispute, if a party is found to have been tampering with the medical record, as a result of which it is not possible to determine causation or the extent of damages, the party who has tampered should bear the adverse legal consequences, and the party who cannot explain internal inconsistencies and errors in the medical record should also bear the advertise legal consequences.

Concluding comments

A press report in January, 2015 mentioned that the Court has started work on drafting a judicial interpretation on medical malpractice issues.  If previous legislation is any guide, it is likely that the drafters will be looking to foreign jurisdictions with developed medical malpractice legislation when considering these issues.  The Court will consult with the relevant regulatory institutions, such as the China Food and Drug Administration and the National Health and Family Planning Commission. Will the Court solicit public opinion?

Investors considering investing in Chinese medical institutions (or doctors practicing in China), should anticipate a more robust medical malpractice system, although not immediately.

 

 

 

What lessons can China learn from the US judiciary?

法官能为法治做什么(去问号)Although Supreme People’s Court president Zhou Qiang has said that judges must “conscientiously resist the infiltration of western wrong ideas,” the May 8 edition of the People’s Court Paper (and the Court’s Wechat feed, which goes out to over 100,000 subscribers) contains a pitch for the Chinese translation of Judges on Judging: Views From the Bench, by David O’Brien, Professor of Government at the University of Virginia.  For those who do not know the book, the publisher describes it  as offering: insights into the judicial philosophies and political views of those on the bench. Broad in scope, this one-of-a-kind book features off-the-bench writings and speeches in which Supreme Court justices, as well as lower federal and state court judges, discuss the judicial process, constitutional and statutory interpretation, judicial federalism, and the role of the judiciary. The translation team for the book was five Chinese judges, including one from the Court.

What are the takeaways?

  • The book is a collection of “greatest hits”–with essays by Cardozo, Posner, Brennan, Ginsburg, Souter, and many others;
  • It provides a diversity of perspectives and insights into the operation of the US judiciary, including from the state as well as federal judiciary, and from the lower courts, including case selection, internal meetings and opposing views;
  • The book shows judgment with feeling (感性判断);
  • It echoes China’s problems.  Some of the issues it discusses are being disputed in China’s judicial reforms.Are there enough or too few federal judges?  Is having a small number of judges and many cases a real problem? What is the importance of trials (court hearings)?  Are judges resolvers of disputes or makers of policy? For those (in China) accustomed to use the US as a model, remarks the chief translator, it is interesting that as the number of cases in the federal courts have risen, the number of trials/hearings has gone down, and that lower court judges spend most of their time with case management and pre-trial negotiations;
  • Finally, (according to the chief translator) although the book has no answers for China, it provides much food for thought. With rule of law talked about by all, for Chinese judges, to be able to make a contribution to the rule of law, they need to be able to decide independently ( 真正成为独立判断), take matters on, and have sufficient job security.
  • The chief translator dedicates the book to the late Judge Zou Bihua, who has become a model judge (but whom he knew personally).

Supreme People’s Court interprets the Administrative Litigation Law

20150427113046_78973On 27 April 2015, the Supreme People’s Court issued a judicial interpretation (English translation here) (27 articles) of the Administrative Litigation (Procedure) Law) (Administrative Litigation Law JI). Judge Li Guangyu, deputy head of the Administrative Tribunal noted that it is not intended to be comprehensive but to address major practical issues the lower courts will face as the law becomes effective.

It was not issued for public comment (there is no such requirement), but comments were solicited within the court system, as well as from the procuratorate, and other authorities, such as the administrative authorities (State Council Legislative Affairs Office and its local counterparts) and the National People’s Congress Legislative Affairs Commission (and its local counterparts).

This judicial interpretation sets out specific rules concerning judicial review of administrative action, filling in some of the blank spots, adding definitions and inserting some specific legal infrastructure (such as filing deadlines) into the Administrative Litigation Law.  It is relevant to:

  • Chinese individuals, companies (domestic and foreign-invested alike), and organizations seeking to challenge a broad range of government actions and decisionmaking;
  • Foreign governments and international organizations reviewing China’s undertakings to provide impartial and independent tribunals to review administrative action (as China did in its accession to the WTO) or negotiating investment protection and other treaties with the Chinese government;
  • Foreign companies, organizations, and individuals seeking to challenge Chinese government action.

The judicial interpretation addresses 10 major areas, but this post will highlight the following:

  • case filing;
  • requirement that a “responsible person” of an administrative agency to appear in court;
  • consolidated hearing of a related civil matter;
  • consolidated review of normative documents;
  • administrative agreements
  • consolidated hearing of a related civil matter.

Case filing

Article 1 of the judicial interpretation addresses  pervasive refusal by local courts to accept cases (and related problems)(recognized by all stakeholders), by:

  • directing courts to accept cases on the spot, if it is apparent that the complaint meet statutory requirements;
  • directs courts to respond within 7 days, if further review is required;
  • if a court still is unsure after 7 days, it is directed to accept the case.

Appearance by a responsible person

Although during the passage of the Administrative Litigation Law, much was made of the requirement in Article 3 that a “responsible person” appear in court, Article 5 of the Administrative Litigation Law JI clarifies that the head or deputy head of an administrative agency may appoint a representative to appear in court.

Administrative agreements

Article 11 of the Administrative Litigation JI seeks to address, in greater detail,  several issues: the definition of an administrative agreement, and  what to do about a breach of one.  In particular, it details how courts need to hear an aggrieved private party, when a government agency improperly terminates, amends, or fails to perform either:

  • land acquisition and condemnation agreement; or
  • a concession agreement.

The first has been a widespread underlying cause of protests, while the second must be resolved if private capital is to heed the call of the Chinese government is encouraging to participate in  public-private partnerships, civil-military partnerships, and other uses of private capital to operate public services.  Article 11 of the Administrative Litigation Law permits aggrieved private parties to challenge a government failure to perform, or decision to terminate unilaterally or amend a government concession agreements, land or housing expropriation and compensation agreements. In an indication of the the problem, on 6 May the National Development and Reform Commission , which has recently issued regulations on infrastructure concessions, issued a notice to government officials with several warnings including a reminder that concession agreements in force even if a senior government leader changes.

The interpretation also clarifies that a court can hear related civil claims, such as breach of contract or tort claims.

Review of normative documents

Article 53 of the Administrative Litigation Law permits a court to review the legality of a normative document (规范性文件) (often called red titled documents (红头文件)) when reviewing the legal of an administrative act (Under the Legislation Law, these documents have an uncertain status).  The Administrative Litigation Law JI adds some further procedural detail and requires a judge that considers a document incompatible with law to set out his reasoning in his judgment and permits a judge to set out suggestions regarding the document to the issuing authority, its counterpart at the next higher level of government, as well as the people’s government at the same level).

Jurisdiction

The judicial interpretation does not address the the issue of hearing administrative cases outside the area in which the case arose.  Reform in this area is mentioned in the Administrative Litigation Law itself, and some pilot projects are now underway, (and it is one of the measures listed in the 4th Five Year Judicial Reform Plan Outline), but no consensus has yet been reached on a new approach.

Afterward

Administrative Litigation Law scholars who have spotted errors this blogpost should feel free to use the comment function!

Does money matter when determining which Chinese court will hear your dispute?

imgresFor commercial cases, the amount of dispute does matter in determining which Chinese court will hear your dispute.

On 30 April, the Supreme People’s Court adjusted the jurisdiction of higher and intermediate level courts, both the civilian and military courts in first instance civil/commercial cases in 关于调整高级人民法院和中级人民法院管辖第一审民商事案件标准的通知 (Notice on adjusting jurisdiction for higher and intermediate courts in 1st instance Civil/Commercial cases).  The rules described in the notice, which went into effect on 1 May gave Chinese commercial litigators no advance warning.  They are not applicable to the following types of cases:

  • maritime;
  • foreign, Hong Kong, Macau, and Taiwan related civil cases (there are separate rules on these); and
  • IP cases.

This means that these rules are applicable to cases brought by (or against) foreign invested enterprises (and domestic enterprises), with the above exceptions.  “For the avoidance of doubt,” the notice does not use the term “tier.”

The notice gives a rough idea of the size of business disputes in different parts of China and has special rules to deal with local protectionism, by enabling higher courts to take cases with smaller amounts in dispute if one party is registered outside of the jurisdiction (the Chinese version of diversity jurisdiction in the US federal courts).

First tier jurisdictions

The higher people’s courts of Beijing, Shanghai, Jiangsu, Zhejiang, and Guangdong will now have jurisdiction over cases with an amount in dispute of RMB 500 million or more, (300 million if one party is not registered locally) and intermediate courts, if the amount in dispute is at least RMB 100 million (50 million if one party is not registered locally).

Second tier jurisdictions

The higher people’s courts of the following jurisdictions will now have jurisdiction over cases with an amount in dispute of RMB 300 million (100 million if one party is not registered locally), and intermediate courts if the amount in dispute is at least RMB 30 million (20 million if one party is not domiciled locally):

  • Tianjin;
  • Hebei;
  • Shanxi;
  • Inner Mongolia;
  • Liaoning,
  • Anhui,
  • Fujian,
  • Shandong,
  • Henan;
  • Hubei,
  • Hunan;
  • Guangxi;
  • Sichuan;
  • Chongqing.

Third tier jurisdictions

The higher people’s courts of the following jurisdictions will now have jurisdiction over cases with an amount in dispute of RMB 200 million (50 million for non-locally domiciled parties) and intermediate courts will now have jurisdiction over cases with an amount in dispute of RMB 10 million:

  • Jilin;
  • Heilongjiang;
  • Jiangxi;
  • Yunnan;
  • Shaanxi;
  • Xinjiang and the Xinjiang Construction &Production Corp. Court {this latter court deserves a closer look).

Fourth tier jurisdictions

The higher people’s courts of the following jurisdictions will now have jurisdiction over cases with an amount in dispute of RMB 100 million (20 million for a non-locally domiciled party) and intermediate courts will now have jurisdiction over cases with an amount in dispute of RMB 5 million:

  • Guizhou;
  • Tibet;
  • Gansu;
  • Qinghai;
  • Ningxia.

Basic level courts:

Are generally to hear the following types of cases:

  • family law,
  • inheritance,
  • real estate management,
  • personal injury,
  • traffic accident,
  • labor,
  • infringement of right to one’s name and
  • group litigation.

Military courts:

  • The PLA Military Court has jurisdiction over civil cases with an amount in dispute of RMB 100 million or more; and
  • Military region military courts have jurisdiction over civil cases with an amount in dispute of RMB 20 million to 100 million.

Judgments from the military courts are not yet published on the Court’s database.  Earlier this year, (as reported here), a PLA legal academic suggested a change in that policy.

Rules to be applied flexibly

There is some flexibility in the rules for cases considered important, difficult, of a new type, or raising issues of general application, in which a higher court can decide to take the case, or alternatively a lower court can apply to hear such cases.