Communist Party and the Courts, Court Reform

“Improper discussions” of Chinese judicial reform are forbidden

December 19, 2015 Supreme People's Court Monitor Leave a comment

a29fc3aa1b904dbe8b6345d0ec3cd234 — Home of Judges

One of my favorite Wechat public accounts, the “Home of Judges” (法官之家) was closed down earlier this month. The public account had about 100,000 followers. (Wechat public accounts are explained here.) While some public accounts are used as corporate marketing platforms, “Home of Judges,” along with several other public accounts have become platforms for (primarily) young judges (and lawyers) to share their views, experiences, and analyses. The Home of Judges public account published articles by many local judges, many with their concerns and thoughts about different aspects of judicial reform, with other articles describing by current or former judges explaining why they left or were thinking of leaving the judiciary. The account holder for the public account, Li Liang, a former Guizhou Higher People’s Court judge wrote:

I had a feeling that Home of Judges would be closed down–first the News Bureau of the Supreme People’s Court contacted the news department of my court, demanding that the name of the public account be changed, but the editor did nothing, then I heard that the internal reference service of the Supreme People’s Court SPC) carried some Home of Judges articles, then recently the Beijing News Department deleted articles.

法官之家被禁封了，其实最近即有预感，先是最高法院新闻局找到我院新闻处长，要求将公号改名，小编未置可否，后来听说最高法院内参连续刊载法官之家文章，最近北京新闻处长多次联系删稿，

An anonymous article by the Sword of Heavenly Peace (长安剑) (according to some sources a pseudonym for the Central Political Legal Committee set out a seemingly more official explanation of why the account was closed down. The name of the public account was a problem, because the account holder had left the court. However the same name (Home of Judges) is used for the name of a hotel in Beijing, apparently the Supreme People’s Court’s guest house (see the comments to this hotel review).

Others (including some other legal bloggers) have said that it was because the Home of Judges was “improperly discussing” judicial reforms (妄议司改), a variation of “improperly discussing Central policy (妄议中央)”, a violation of the Chinese Communist Party Standards on Integrity and Self Restraint.

Stepping into the shoes of the Supreme People’s Court leadership for a minute, it seems likely that a public account with a large number of judges criticizing the judicial reforms approved by the Party leadership would make the SPC leadership uncomfortable. Why? Because it would indicate that they were not doing a good job of “uniting thinking” (统一思想)–uniting the judges of the lower courts behind policies drafted by the SPC that had been approved by central Party authorities.

Comments by a fellow blogger

Following the closure of the “Home of Judges,” one of its fellow bloggers commented on the current environment. Zhao Jun, a judge of the Jiangsu Higher People’s Court, who has a popular (among the legal community) public account, under the pen name Gui Gongzi 桂公梓, explained why he hasn’t been writing legal articles:

Third and more importantly , with the fluttering banner of democracy and the rule of law more and more ambitious, the space for speech is obviously tightening.

三也是更重要的是，随着民主和法治的旗帜招展得越来越宏大，言论的尺度却显而易见地越来越收紧了也是更重要的是，随着民主和法治的旗帜招展得越来越宏大，言论的尺度却显而易见地越来越收紧了

Comments from the outside

Chinese social media is an invaluable way to understand what is going on in the Chinese court system and Chinese law generally, enabling you to keep up with developments wherever you are.

It is a shame if public accounts such as “Home of Judges” are seen as a threat to the government rather than a way to understand what the younger generation of judges, prosecutors and lawyers are thinking.

The older generation?

The older generation of judges and lawyers, particularly those who have lived through the Cultural Revolution, comment privately that at this time, the best approach is to say nothing.

Commercial law, Domestic violence

Year end bonus from the Supreme People’s Court

December 13, 2015 Supreme People's Court Monitor Leave a comment

As highlighted in the last blogpost, the Supreme People’s Court (SPC) is issuing all sorts of documents in the rush towards year end, far outpacing the time available to the Supreme People’s Court Monitor to analyze them. Some of the recent developments that merit closer scrutiny:

more model/typical family law cases (incorporating the ones highlighted in an earlier blogpost) and with many more involving domestic violence and cohabitation issues;
19 model/typical contract cases, including several private lending cases, real property cases, etc.
14 model/typical food and drug crime cases, including one involving a supermarket (I had written this on food safety raids earlier this year;
Five model/typical cases of refusing to implement court judgments/rulings;
Two model/typical cases on non-payment of wages (this is an issue of high priority for the government;
Ten model/typical fraud cases;
Updated sentencing guidelines for a broad range of criminal cases, including rape, picking quarrels, and fraud;
Guidance from the head of the #2 criminal division on principles for applying the sections of the recent amendment to the Criminal Law on bribery and corruption (in which is likely to be incorporated into a future judicial interpretation);
An authoritative article by the SPC’s research office on the new terrorism crimes set out in the recent amendment to the Criminal Law;
approval by the SPC judicial committee (in principle) of the first judicial interpretation of the Property Law, which means most provisions are finalized, but the final draft is not set. A recent draft discussed by the Civil Law Society was published recently. Several provisions address the issue of a “bonafide purchaser.”

Communist Party and the Courts, Court Reform, Elderly law, Family Law

Supreme People’s Court rushes to achieve year end targets

December 9, 2015 Supreme People's Court Monitor Leave a comment

The rush towards year end in the Supreme People’s Court (SPC), as in the business world, means a flurry of announcements of important developments, to ensure that the SPC meets its own performance targets. Among the recent announcements are:

reform of the maritime courts, to make them internationally influential (this has both political and legal implications, blogpost to come);
approval by central Party authorities of the third round of judicial reform pilots, and the holding of a large scale meeting of representatives from the Leading Group on Judicial Reform with the SPC and Supreme People’s Procuratorate (SPP), on the focus (personnel reforms) and roll out of these projects. Jiang Wei,deputy director of the Office of the Central Leading Group for Judicial Reform, spoke along with his SPC and SPP counterparts. Political legal committee secretaries from the pilot areas attended, along with court and procuratorate officials.
Reform of the family court system, announced at a conference held in Guangzhou, attended by Justice Du Wanhua, highlighting that the rush of judges to meet performance targets (closing cases) Iamong other factors) has had a negative effect on children, elderly, disabled, and women. The SPC likely published typical/model family law cases in November (discussed in this blogpost) because pulling together those cases was part of the preparations for the Guangzhou conference;
progress report and further plans on improving judicial assistance (separate but related to legal assistance), with the release of the2014 multi-agency document (Central Political Legal Committee, SPC, SPP, Ministry of Finance, Ministry of Public Security, Ministry of Justice), stating that the central government had allocated 700 million RMB for judicial assistance and local governments 1.7 billion RMB, targeted at financial assistance for victims of crimes and others, with funds allocated to about 80,000 in 2014, (certainly a fraction of what is needed)
long pronouncement by Justice Shen Deyong on the “standardization” of the courts, citing the important status and important role of the judiciary in the governance of the country, but the growing contradiction between the needs of the people and judicial resources and judicial capacity, decrying the lack of “top level design,” and calling for the implementation of related reforms.

This list will be supplemented later this month, as further announcements are made.

Commercial law, Court Operations, Court Reform

Update on case filing reform and other challenges for Chinese courts and judges

December 3, 2015 Supreme People's Court Monitor Leave a comment

In late November, the Supreme People’s Court (SPC) held a press conference on case filing (docketing) reforms to announce a 32% increase in civil and administrative case filings, year on year, putting a positive spin on what is a highly stressful situation for frontline judges, but a generally positive development for litigants and their lawyers. There are many stressful factors for Chinese judges and the Chinese courts, leading many judges to leave or contemplate suicide, and others to vote with their feet. This blogpost will look at some of the recent developments:

Large number of cases;
Increasing fraudulent litigation;
Dysfunctional performance indicators that refuse to die.

The three issues are interrelated.

Case filing (docketing) reforms

On the case filing reforms, through the end of September, civil cases are up almost 23%, and administrative cases up 76%, while private prosecutions of criminal cases are up 60%，The most litigious provinces are ones with highly developed economies: Jiangsu (608,000 cases), Zhejiang, Shandong, Guangdong (558,000 cases). The Supreme People’s Court caseload was up as well, with 6852 cases accepted through September, up 58%, estimated to reach 15,000 cases by year end.

Fraudulent litigation

Fraud of all sorts is a growth industry in China, especially with the worsening economy. Creative thinkers have come up with ways to use the court system to defeat or at least delay or avoid creditors. In recent years, the Chinese courts have been faced with an increasing amount of fraudulent litigation, now criminalized on one of the unnoticed provisions in the 9th Amendment to the Chinese Criminal Law (new Article 307-1). However, the law does not set out a definition, although some provincial court have issued guidance. Usual factors include litigation based on: fabricated facts, fabricated arbitration award, or notarized documents, or collusion between the parties or third party to use fabricated facts, false evidence, false documents, destruction of evidence, provide false documents, expert opinion and other means to avoid debt or improperly gain assets.

With the reform to the case filing system (described in this earlier blogpost), fraudulent litigation on the increase. For this reason, the SPC recently issued its first ruling on fraudulent litigation, imposing a penalty of 500,000 RMB on two Liaoning companies, to signal to lower court judges that they need to monitor case filings for indications of fraud. Fraudulent litigation can be found in various types of cases, and in the maritime as well as local courts.

On fraudulent litigation in the maritime courts, an experienced maritime judge provided the following typical scenario: because the Chinese shipping industry is in a downturn (see these articles, for example), a ship owner who is unable to repay their debts (and finds that the size of the mortgage is more than the value of the ship) will conspire with their employees to bring a claim for unpaid wages, because under the Special Maritime Procedure Law, those claims take priority over the mortgage. The employees and shipowner will split the proceeds from the claim, shortchanging the bank and other creditors.

According to Zhou Qiang’s report to the NPC, about 3400 cases of fraudulent litigation were discovered in 2014. According to studies done by provincial courts in recent years, 104 cases were found in 2011-2012 in Jiangsu, and 940 in selected courts in Guangdong during 2001-2009.

With the case filing reforms and soft economy, these numbers are likely to rise. Readers (of Chinese) interested in diving further into this topic should read this article.

Dysfunctional performance indicators

Writing in People’s Daily, Judge He Fan, head of one of the departments of the SPC’s Judicial Reform Office, highlighted that “some leading cadres” wanting to achieve year end “pretty data” are still imposing unrealistic year end performance targets, forcing front line judges to work unreasonable hours (and also diminishing case quality). These performance targets were abolished in 2014, as highlighted in this blog.

As for why Chinese judges are leaving in such numbers and why they are so unhappy, that will be the subject of another blogpost.

Supreme People's Court Monitor

Monthly Archives: December 2015