Supreme People’s Court and its normative documents

Court reply

Court reply

This blogpost discusses some of the documents that the Supreme People’s Court (Court) issues and what they mean, particularly to foreign legal professionals who may encounter them in practice. They reflect the bureaucratic way the Court operate (about which I (and others) have written). It is not a complete list, but a description of some of the ones I’ve written about on this blog.

The 4th Five Year Plan anticipates some reform in this area: “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.”

Terminology–Some of these are described on the Court website as judicial documents (司法文件) or judicial normative documents (司法规范性文件).  They are not cited in judgments or rulings (unlike judicial interpretations), but judgments or rulings should be consistent with them. There do not seem to be clear rules on which of these documents should be made public.  Some of those documents include:

  1. Opinions (意见), issued by the Court and other institutions not authorized to issue judicial interpretations.

 Example:  Opinion on Handling Criminal Cases of Domestic Violence in Accordance with Law (Supreme People’s Court,(Law Release (2015) No. 4), The Supreme People’s Procuratorate, The Ministry of Public Security, and Ministry of Justice), discussed here, with normative provisions (instructions to the lower courts–“please implement conscientiously”).

2.  Opinions (意见), issued by the Court, but setting out judicial policy.

Opinions of the Supreme People’s Court on Fully Strengthening Environmental Resources Trial Work to Provide Powerful Judicial Safeguards for Promoting Eco-civilization Construction (最高人民法院关于全面加强环境资源审判工作 为推进生态文明建设提供有力司法保障的意见) and Opinions on Providing Judicial Services and Safeguards for the Building of One Belt One Road by People’s Courts” (关于人民法院为“一带一路”建设提供司法服务和保障的若干意见) (Instructions to the lower courts– “the following guiding opinion is set out”).

These may require further implementing regulations but judgments should be consistent with these opinions.

3. Conference summaries often address new issues or areas of law in which the law is not settled.  Conference summaries are not required to be made public, although with the internet and social media, they are now more widely available than in the early 1990’s, when I first wrote about them.

Example–the 2015  one on drugs (全国法院毒品犯罪审判工作座谈会纪要). (instructions to the lower courts-please implement this as reference, combined with the actual situation of trial work, if in implementation problems are encountered, please report in a timely manner to this Court) 请结合审判工作实际参照执行。执行中遇到问题,请及时报告我院)

4. Replies (请示复函).  Arbitration lawyers see these in published replies to the lower courts, such as those done under the Court’s reporting system relating to judgments/rulings concerning foreign-related and foreign arbitral awards.The response is binding on the lower court regarding the particular case.  The Court publishes these replies (and the report from the lower courts) in its periodical China Trial Guide: Guide on Foreign-Related Commercial and Maritime Trial, from which the following example is taken:

Example: This 2012 response to a report from the Hubei Higher People’s Court: SPC reply to Hubei High Court.

In the area of arbitration practice, the principles set out in these responses are persuasive, but not binding in later cases, and arbitration lawyers discuss these responses as a particular form of case law, such as this law firm client alert.

Replies (批复).  These are seen in requests for lower courts for approval of certain matters, such as having basic level courts hear foreign-related cases, based on relevant law and judicial interpretations.

Example, a 2013 reply by the Court to a request from the Anhui Higher People’s Court.  These are binding on the lower courts.

5. Decision (决定).  These are seen when the Court issues documents setting out an administrative approval.

Example: a 2015 decision designating certain courts as model courts for diversified approaches to dispute resolution, mentioned here.

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