The topic of the Supreme People’s Court and the interpretation of law is one that vexes many, legal practitioners and academics alike. Although the Chinese constitution vests the power to interpret law with the Standing Committee of the National People’s Congress (NPC SC), the Supreme People’s Court (the Court) and the Supreme People’s Procuratorate (SPP) actively issue interpretations of law. The Court more so than the SPP, because it deals with a broader range of legal issues. These interpretations of law are critical to the operation of the Chinese legal system because national law tends to set out broad principles that require additional legal infrastructure to be workable and the courts, in particular, need that legal infrastructure to decide cases.
A 1981 decision by the NPC SC 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 (SPP) 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. Oddly enough, the principle is not in the Organic Law of the People’s Procuratorates. Interpretations by both the SPP and the Court are known as “judicial interpretations.”
In 2015, the Legislation Law, which had previously not addressed interpretation of law by the Court and the SPP, addressed the issue in Article 104. This article is taken as intended to codify existing practice, because the explanation of the law recognizes the practical necessity of judicial interpretations:
- “Interpretations on the specific application of law in adjudication or procuratorate work issued by the Supreme People’s Court or Supreme People’s Procuratorate shall primarily target specific articles of laws, and be consistent with the goals, principles and significance of legislation.”
- It requires the Court (or SPP) in the situation described in the second paragraph of Article 45 of the Legislation Law (where the NPC SC gives interpretations of national law), to submit a request for a legal interpretation, or a proposal to draft or amend relevant law, to the NPC SC.
(The explanation of the law (legislative history) provides further background).
The process for drafting Court interpretations described in the 2007 regulations requires that the views of the relevant special committee or department of the NPC SC be solicited during the drafting process, and there would be pushback from the NPC SC if it was considered that the judicial interpretation had gone ‘too far.’
What types of judicial interpretations are there?
The 2007 Court regulations on judicial interpretations (linked here) limit 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). Examples include:the 2015 interpretation on environmental public interest litigation, the 2015 interpretation of the Civil Procedure Law, discussed here, and the 2012 judicial interpretation of the Foreign-Related Civil Relations Law, and the 2013 joint Court and SPP interpretation on internet speech crimes.
- “provision”(规定) (often similar to court rules). Examples include: The 2015 case filing regulations, discussed here, the 2014 regulations on the jurisdiction of the Beijing, Shanghai, and Guangzhou intellectual property courts, 2014 Provisions on Administrative Cases Involving Work-related Injury Insurance (discussed here), and the 2015 regulations on the Court’s circuit tribunals;
- “reply” (批复)(a reply to a “request for instructions” from a lower court relating to an issue of general application in a specific case); One example is: Official Reply of the Supreme People’s Court on the Starting Date of the Statute of Limitations in Which the Insurer of a Marine Insurance Contract Exercises the Right of Subrogation to Claim for Compensation (response to the Shanghai Higher People’s Court) and
- “decision”(决定) (a document abolishing or amending existing judicial interpretations).
Those 2007 regulations set out various procedures for drafting and promulgating judicial interpretations, including a requirement that they be approved by the Court’s judicial committee and be made public. As discussed in earlier blogposts, broad public consultation may be done if it affects the “vital interests of the people or major and difficult issues. These regulations also provide that judges may cite judicial interpretations as the basis for a court decision or ruling. Article 23 of the 4th Five Year Court Reform Plan mentions reform of judicial interpretations:
Improve the Supreme People’s Court’s methods of trial guidance, increase the standardization, timeliness, focus and efficacy of judicial interpretations and other measures of trial guidance. Reform and improve mechanisms for the selection, appraisal and release of guiding cases. Complete and improve working mechanisms for the uniform application of law.