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.
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.