Yearly Archives: 2015

Commercial law, Communist Party and the Courts, Court Operations, Court Reform, environment

Supreme People’s Court president says court reforms in “deep water area”

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566929On 12 March 2015, Zhou Qiang, president of the Supreme People’s Court (Court) delivered his work report to the NPC, putting the best face on where the Chinese courts are and where they’re going. He described court reforms as being in a “deep water area” (深水区)(a high risk area).  This blogpost will highlight issues that other commentators (outside of China) have so far missed:
  • the mismatch between the focus of the work report and the work of the courts;
  • what the work report (on other than criminal cases reveals); and
  • the challenges to the Court leadership in the year ahead.

What is the mismatch?

charts for SPC
© Tiantong & Partners; charts illustrating SPC report
The primary focus of the work report (as always) is law and order, as seen from the perspective of Communist Party leadership, particularly state security related offenses (including terrorism and “splittism”) as well as ordinary crimes.  A big difference in this year’s report is that President Zhou Qiang apologized for previous miscarriages of justice and highlighted efforts to prevent future ones.  Other commentators have already focused on these both of these important developments and and other issues related to the criminal justice system.
2014 cases in chinese courts
bar chart: 2010-2014 increase in cases resolved by courts (in 10K) Pie chart: civil/commercial/IP; admin; re-trial/govt compens/enforcement/; parole; other/criminal

What the work report reveals is that most cases heard in the Chinese courts are not criminal and that the number of cases heard by the courts is rising.

What are cases are the Chinese courts hearing?

The pie chart (distributed as an attachment to President Zhou Qiang’s report at the NPC), illustrates that over 63% of the cases heard in the Chinese courts are civil cases (including commercial, family law and intellectual property cases), not criminal. Criminal cases (including parole related cases) account for something over 10% of cases (as others have discussed, many minor offenses are handled as administrative, rather than criminal offenses).

A closer look at civil cases in the Chinese courts

 A bit of arithmetic reveals (unfortunately the authors of the Report did not set out a corresponding chart), that 34% of civil cases (2,782,000) in 2014 were commercial cases (up 8.5% year on year), while 66% were what classified as civil cases (in the narrow sense, described below).

Commercial cases:

(These cases are illustrated in the chart to the left that has the ¥ sign.)
1. Finance cases (824,000)(a broad category including various types of loans, credit cards, securities, futures, insurance etc.).
2.  Sales contracts disputes (664,000).
3.Intellectual property (110,000, up 10% year on year)(I  the detailed analysis of this can be found here, by my fellow blogger, Mark Cohen, at the ChinaIPR blog);
4. Corporate disputes (12,000) (shareholder, merger and acquisition, creditor initiated bankruptcy);
5. Maritime cases (12,000).
Foreign-related cases (5804), )these, although a focus of foreign law firms alerts and the press, are a tiny drop in the sea of Chinese civil cases.  Many cases involving foreign companies actually involve their China incorporated subsidiaries.
The number of finance cases suggests a large number of disputes relating to loans by financial institutions.

Civil cases

(These cases are illustrated in the chart that has two people standing next to one another and the pie chart below.)
2014 civil cases in the Chinese courts
2014 civil cases in the Chinese courts
In 2014,  5,228,000  civil cases were heard in the Chinese courts (up almost 6% year on year):
1.  Family law cases (1,619,000),(this category includes  contested divorces, inheritance, support cases), accounting for about 30% of civil cases. The chart above 13% year on year increase in inheritance cases (showing an increasing number of people have assets worth fighting in court over, and perhaps also inadequate estate planning).
2.  Loan cases not involving financial institutions (between individuals, company and individual, or two companies) （1,045,600), accounting for almost 20% of civil cases. (The categorization has changed, making a year on year comparison not easily possible).
3. Labor cases (374, 324), accounting for 7.16% of all civil cases.  These include appeals from labor arbitration as well as cases that can be directly brought in the courts).
4.  Environmental tort cases (3331) (up 51% year on year).
5. Product liability cases are up 44%, but the base or total number for 2014 is not set out.
6.  Cases involving rights of rural residents (219,00)(rights to rural residential land, transfer of contracted land) migrant laborers seeking unpaid wages).
7.  Construction disputes are up almost 18% (base or total number for 2014 not set out).
These numbers speak to:
1. changes to the Chinese family;
2. a large number of loans that are under the radar of the financial authorities;
3. employees who are increasingly rights conscious;
4. continued litigation risk for foreign companies doing business in China (including through subsidiaries), because as perceived “deep pockets”, Chinese litigants often target them in product liability cases.

Administrative cases

 First instance administrative cases (companies or individuals suing the government) (131,000) continue to be a tiny number, although up 8.3%, and it remains to be seen whether the amended Administrative Litigation Law (Administrative Procedure Law) will lead to an increase in cases.

 Enforcement cases

Enforcement cases (compulsory enforcement of court judgments or orders, arbitral awards, etc) account for 3,430,000, a 14% increase year on year.  This suggests that fewer people (companies) are complying with dispute resolution voluntarily.
10% increase in cases accepted (will be a challenge to the courts if this trend continues because the intent is to cut the number of judges), amount in dispute is up 15%.

Court reforms already in a “deep water area”

Zhou Qiang highlighted that court reforms are already in a “deep water area” (high risk area) and the courts:
  • need to penetrate interest group barriers;
  • have the courage to move their own “cheese”;
  • need to use “the knife” against itself (presumably to cut out corrupt, poorly or non-performing judges);
  • deal with many deep-seated problems;
  • make progress on a long list of reforms:
    • continue and expand pilot reforms on changing the financing and personnel appointments of the local courts to all provinces/directly administered cities;
    • implement hearing-centered litigation reforms;
    • make progress on case filing reforms (to resolve the long term problem of litigants facing obstacles when they file suit);
    • put in place a system with dealing with assets seized and confiscated by the courts (to avoid violation of property rights and further judicial corruption in this process);
    • implement the prohibition against defendants wearing prisoner’s garb in court;
    • further implement judicial reforms related to petitioning;
    • promote alternative dispute resolution, such as arbitration, people’s mediation, administrative mediation etc.
    • continue work on pilot projects on expedited criminal procedures (for minor matters);
    • improve the people’s assessors system.

All of these reforms create tremendous challenges for the courts.  The number of cases accepted by the courts in 2014 (15,651,000) was up about 10%.  The judicial reforms to petitioning and other reforms will channel more disputes into the court system. Planned personnel reforms are leading to an exodus of young judges.  Many of the planned judicial reforms are intended to the way the courts operate internally and interact with other institutions. The 4th Five Year Court Reform Plan sets out target dates for accomplishing certain major judicial reforms.  The salary gap between what an experienced lawyer in private practice in a major law firm and a counterpart in the judiciary is large, leading many talented people to prefer the greater financial benefits and professional flexibility that comes with being a lawyer.

The political leadership has approved the 4th Five Year Court Reform Plan.  Issuing it raises expectations among ordinary people as well as those in legal profession. The pressure is on for the Court leadership to deliver on the promised judicial reforms.

Domestic violence

Supreme People’s Court +3 attack domestic violence

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Unknown-2On 4 March 2015, the Supreme People’s Court hosted a press conference, attended by officials from the Supreme People’s Procuratorate, Ministry of Public Security, and Ministry of Justice, to announce their jointly drafted and long-awaited policy document (translation  here) on domestic violence, on which the Supreme People’s Court took the lead. (The Domestic Violence Law has not yet been promulgated. The intention is to create an effective anti domestic violence system, incorporating principles common to other jurisdictions as well as international domestic violence legislation. The United Nations, the American Bar Association, the Australian government, and many other international and national institutions and organizations have worked with the Supreme People’s Court and other Chinese institutions for many years on these issues, to assist the Chinese institutions to understand domestic violence law and practice elsewhere in the world.  This blog has highlighted earlier work by the Supreme People’s Court on domestic violence. Some of the highlights include:

  • Domestic violence includes violence between family members and others who live together in relationships, such as guardianship,support, foster care,  cohabitation (it intends heterosexual relationships and may (or may not include homosexual relationships).
  • The authorities need to intervene timely and efficiently, to protect the safety and privacy of victims;
  • Collect evidence of domestic violence in a timely manner, including objects on site, undertakings by the victim, witness statements, as well as from the community obtain medical records, photos, videos, and other evidence.
  • Respect the intention of the victims;
  • Provide special protection to juveniles, the elderly, the disabled, pregnant and nursing mothers, and the severely ill through legal assistance and other measures;
  • Encourage the community to report cases, including friends, neighbors, coworkers, hospitals, schools, kindergartens, and other institutions and entities;
  • The authorities (public security, procuratorate, courts) must protect the privacy of persons making accusations or reporting domestic violence who do not want their identity revealed;
  • The authorities must make arrangements to ensure the health and safety of victims;
  • If the accused aggressor is permitted to be out on bail, the aggressor can be order to stay away from the victim and juvenile children;
  • It sets out principles concerning the abused spouse/partner defense;
  • Cases must be quickly and efficiently investigated, accepted, and transferred (to avoid the “buckpassing” that occurs, to the detriment of victims);
  • In less serious cases, the authorities should make use of undertakings by aggressors not to commit the offense, apologizing to the victims, compensating the victim, and other non-criminal measure;
  • Courts should use measures to protect the safety of victims and other dependents, such as ordering the aggressor to leave the home, forbidding the aggressor from approaching the victim, and other protection orders.

The Supreme People’s Court also issued model/typical five domestic violence cases to illustrate issues such as:

  • domestic violence includes elderly violence;
  • domestic violence includes violence to children;
  • domestic violence includes violence to persons living together who are not married;
  •  domestic violence includes maltreatment to the point of causing the victim to commit suicide.

Comments

Many of the provisions of the opinion address outstanding problems that the Chinese justice system has in dealing with domestic violence–disregarding it as a “family matter,” revealing the identities of those who report it, recognizing beatings,forced  overwork, mental and physical torture as abuse.

This opinion is intended to deal with the many domestic violence issues that have arisen and which have caused a great deal of public controversy.  Implementing it will require a great deal of hard work, including a change in attitude among many in the police, prosecutors, and courts.

Communist Party and the Courts, Court Operations, Court Reform

Supreme People’s Court’s 4th Five Year Reform Plan sees the light of day

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IMG_0877
February, 2015 photograph of the SPC building

The Supreme People’s Court’s 4th Five Year Reform Plan has finally been released to the public (linked here). An English translation will be forthcoming here.  Some of the issues highlighted have been discussed in earlier blogposts (as linked) and it builds on the principles released in July, 2014 and in the 4th Plenum Decision. It is critical to the development of the Chinese legal system and has its international implications as well. Some of the highlights:

  • Basic principles (Party leadership is a given): independence of judicial power (审判权的独立性); neutrality (中立性), procedurality 程序性)， finality(终局性) (all distinguished from “Western style” judicial independence).

Among the specific measures are:

  • Specific deadlines for reforms or structures for reforms to be put in place (some by end 2015, others by end 2016, 2017, 2018);
  • Greater transparency in a broad range of areas, ranging from the parole of prisoners, assignment of judges, to the handling of property seized or confiscated by the courts;
  • Measures to cut back on local protectionism, such as cross jurisdictional and circuit courts, focusing in particular on major administrative cases, environmental cases, bankruptcy cases, food safety cases and others, by changing jurisdictional provisions in administrative cases, environmental cases, and others);
  • Details on what the Court means about “hearing centered procedure,” and imposes a goal of end 2016 to establish a hearing centered system, as having evidence presented and reviewed at the hearing, both parties being given a chance to be heard, requiring witnesses and experts appear at hearings; assumption of innocence, exclusion of illegally obtained evidence (and establish systems for determining and excluding such evidence), all of which involves a greater role for lawyers;
  • In the area of criminal justice, provides better protection to defendants and their counsel, such as prohibiting criminal defendants from being forced to wear prison clothing, shackles, etc., idea that the prosecution and defense have equal status in the criminal process, better judicial review of individuals whose freedom is restricted;
  • In civil cases, requiring evidence to be reviewed at trial and major disputed evidence must be highlighted in the judgment or ruling and whether the court is relying upon it;
  • Improving the status of lawyers in both criminal and civil litigation;
  • Reforming jurisdiction in environmental cases;
  • Improving jurisdictional provisions in public interest cases (which at this time means environmental and consumer cases);
  • Changing the docketing process from a substantive review to a registration procedure (which in the past has meant that “inconvenient” cases were not accepted);
  • Reforming internal court procedures and roles, particularly that of the court president, members of the judicial committee, and heads of division, requiring documentation of communications with the judge or judges handling the cases, as well as focusing the judicial committee on legal questions (external pressure on these court leaders has been a significant factor in the miscarriages of justice now being revealed);
  • Distinguishes the functions of courts at first and second instance (as well as re-trial and judicial supervision) stages;
  • Changes the current performance indicator system, and gets rid of league tables for courts;
  • In appeal cases, the court should set out the issues in the case at first instance;
  • Changes the relationship between the higher and lower courts so that they operate independently;
  • Prevents judicial corruption in a variety of ways, such as improving the judicial auctioning process, confiscation of property, and much more transparency;
  • Calls for establishing a system of integrating Party disciplinary systems (in anti-corruption cases) with court punishment systems;
  • Highlights providing greater openness to the press and others to attend court hearings;
  • Calls for establishing a more professional personnel system for judges and a transitional system from the current one.
  •  a judicial selection system;
  • More details on having local judges appointed at the provincial level;
  • Setting up a system for preventing interference in court cases by requiring notes, etc. from leaders to be retained in the file and made available to parties and their counsel;
  • Improving the military courts.

In the spirit of greater openness, the document states that reforms by lower courts are to be reported to the Court before being launched and major reforms need to be reported to the Party central authorities before being launched [apparently to ensure Party leadership to prevent the political authorities from being unpleasantly surprised].

The changes relating to basic court institutions will affect all types of cases, whether they are environmental, intellectual property, or foreign-related ones.

The drafting of this document required countless hours of work and negotiations.  The real work is ahead, in implementing its principles, and in particular changing patterns of behavior as well as institutional and political culture formed over several decades.

Communist Party and the Courts, Court Operations, Court Reform

Supreme People’s Court‘s sunshine cure for corruption in commutation and parole procedures

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20140221112449_2571
Prisoner choosing commutation & parole options from corrupt jail official

 

Before Chinese new year, the Supreme People’s Court held a news conference  to highlight its accomplishments in reforming parole procedures. The previous procedures (or lack of them) (as described below) appeared to have been a money-spinner for prison officials. The reform in parole procedures highlights the value that current Chinese legal policy places on Justice Louis D. Brandeis’s wisdom (without citing him):

“Publicity is justly commended as a remedy for social and industrial diseases. Sunlight is said to be the best of disinfectants…”

The change in parole procedures also are a good example of how results of investigations by the Central Commission for Discipline Inspection (CCDI) and Central Political and Legal Committee policy documents are eventually are translated into improvements in legal procedures.

The reforms to parole procedures include:

  • The Court’s August, 2014, Provisions On Commutations And Parole(最高人民法院关于减刑、假释案件审理程序的规定) (translation can be found here), requiring much more transparency;
  • November, 2014 procedures issued by the Court along with the Ministry of Justice, Ministry of Public Security, Supreme People’s Procuratorate, and National Health and Family Planning Commission on medical parole and related issues (暂予监外执行规定), establishing stricter guidelines.
  • Establishing an internet platform on the Court website to make public (provide sunlight) parole/commutation matters: acceptance of applications, notice of court hearings,and court rulings;
  • Establishing a filing system under which decisions relating to officials of county level (or section (处) need to filed with provincial high courts and provincial department (bureau level（局)) need to be filed with the Court;
  • Model cases on parole and commutation, to guide lower court judges in their work, and inform the public on these reforms.

    ________.x_large
    Axe labeled “power”, “money”

The background

With flexible provisions and limited transparency on medical parole, commuting sentences, and parole procedures, in recent years apparently underpaid Chinese prison officials caught the entrepreneurial spirit and (like the Monopoly game that many of us grew up playing), sold “get out of jail cards” to those who could afford to pay.  Those were generally made up the wealthy and (formerly) powerful, particularly those who had committed the following crimes:

  • duty crimes (including taking bribes and abusing authority);
  • organized crimes;
  • financial crimes.

An August, 2014 press report mentioned that over 700 prisoners  nationwide had improperly secured early release.  Other reports cited that prison officials in Guangdong were particularly entrepreneurial, arranging for the improper release of approximately 140 in Guangdong, primarily former officials, including:

  • Wang Ju, former vice mayor of Shenzhen;
  • Zhao Yuchun, former head of Shenzhen customs;
  • Huang Shaoxiong, former deputy head of the Guangdong United Front Work Department; and
  • Lin Chongzhong, former deputy mayor of Jiangmen.

CCDI investigations and Central Political Legal Committee policy document

It appears that these reforms can be traced back to CCDI investigations in 2013 (and possibly earlier), because in August, 2013, the CCDI website carried a summary of a speech by Xi Jinping at a CCDI conference in which he calls for reforms to parole procedures. At about the same time reports of  investigations into prison officials were released by CCDI, such as one of a Hunan Province Justice Department (the Justice departments run the prison) official who was found to have almost USD 2 million (12 million RMB) in assets disproportional to his income.  Many other prison officials in other provinces have also been investigated.

In January, 2014, the Central Political Legal Committee issued a policy document outlining the policy framework for the reforms, which began with the frank admission that society was incensed by the rich and powerful who had been sentenced to prison who often served relatively short sentences because they had their sentences commuted or were given parole, directing special restrictions prisoners convicted of the above three types of crimes. (The Supreme People’s Procuratorate has issued its own regulations to implement the policy document.)

Going forward

Reducing corruption in the justice system and giving Chinese people more confidence in it is a multi-faceted process, with greater transparency needed across many areas.  These reforms to parole and commutation procedures are likely to be one of the accomplishments that President Zhou Qiang will be able to point to when he gives his report to the National People’s Congress next month, particularly as the August, 2014 regulations are listed as one of one of the Court’s 10 major policy accomplishments of 2014.

Additionally, the internet platform also serves as a window into criminal activity in China, such as the recent application by a Han native of Xinjiang, convicted in Beijing of dealing in drugs, but who was permitted by the Chaoyang District Court to serve his sentence outside of jail for the next six months, because he has AIDs.

 

 

 

Court Operations, Court Reform

When will the Supreme People’s Court become a tourist destination?

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800px-Supreme_peoples_court_chinaI had the good fortune to have a meeting with some judges of the Supreme People’s Court last week in the main building of the Supreme People’s Court.  The rules are now such that photographs of the gate (and nameplate of the Supreme People’s Court) are forbidden, a contrast to 20+ years ago, when I was able to ride my bicycle along the road fronting the Court.  As the Supreme People’s Court guides the courts towards more transparency and public access, I look forward to the day when it can become a tourist destination and its hearings more  open to the Chinese and foreign public.

I wish all my readers all the best for the Year of the Sheep  祝大家新春快乐，身体健康，万事如意！

Court Reform, Military courts

What does the 4th Plenum mean for military legal reforms (continued)

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Criminal Division, PLA Military Court
Criminal Division, PLA Military Court

In early February, I published an article in The Diplomat, focusing on little understood post 4th Plenum developments on Chinese military law, which (to my surprise) was summarized and translated by Chinese official media.  Professor Zhang Jiantian of China University of Political Science and Law recently published an article in People’s Court Daily on issues affecting the military courts, in which gives the outside world a glimpse of the gated Chinese military legal community and sets out his recommended reforms. My article in the Global Military Justice Reform blog summarizes Professor Zhang’s views and recommendations.

Court Operations

Supreme People’s Court interprets the Civil Procedure Law

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2On 4 February the Supreme People’s Court (Court) issued a comprehensive interpretation of the 2012 Civil Procedure Law, with 552 articles, longer than the 294 articles in the law itself.  It creates a much more sophisticated body of civil procedure law.  The Court has been working on this interpretation for over two years. As is usual, the Court held a press conference to explain its significance. The text of the press conference, in which the Court spokesman and Judges Du  Wanhua and Sun Youhai spoke, is also available on the Court’s website. A few of the highlights of the interpretation:

  • More detailed section on evidence, including recordings, reflecting the longer term work underway to draft an evidence code.
  • A new section on public interest litigation, in relation to environmental, consumer cases and other such cases.  The organization must show prima facie evidence of harm to the public interest. Other organizations and administrative agencies can apply to be joint plaintiffs.
  • Much longer section on foreign related issues, including provisions concerning foreign language evidence (translations should be provided), and if the parties disagree on the translation, they should agree on a third party translation agency.
  • Permission of the court is required to tape, video, or provide live posting on social media.
  • Many provisions relating to divorce of [former] Chinese citizens who have settled outside of China.
  • Section on small claims procedure.

More analysis to follow.

Court Operations, death penalty

Supreme People’s Court: new regulations on legal representation in death penalty review cases

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dscn3764
complex where death penalty review undertaken

On 29 January, the Supreme People’s Court issued regulations on legal representation in death penalty cases, Measures for Considering the Views of Defense Lawyers in Death Penalty Review Cases (最高人民法院关于办理死刑复核案件听取辩护律师意见的办法) (translation available here).  This blog previously flagged that the Court was drafting them and that they were meant to be issued by the end of the year.  They will become effective on February 1.  They  were accompanied by a brief question and answer session with a “responsible person” from the Court’s #1 Criminal Division. presumably the head or deputy head.  These brief regulations provide important protections to those sentenced to death, and are part of the Court’s efforts to minimize mistaken cases.

The regulations permit defense lawyers to review the defendant’s file, provide additional evidence and have a hearing with the judges handling the case, although not a formal court hearing. The Court has created a room for lawyers to use to review death penalty review materials. The transcript of the hearing (as signed off by the defense lawyer) is to be included in the case file.  However, defense counsel has only two weeks to submit its additional opinion in the case.  Presumably this deadline can be extended if counsel provides justification.

The regulations set out the telephone numbers of the Court’s criminal divisions, which review death penalty cases.  This blogpost translated a chart drafted by the Chinese magazine Southern Weekend setting out jurisdiction of the various divisions.

This is an important step forward in protecting the rights of criminal defendants and is the product of many years of law reform efforts.

 

Court Reform, Environmental law

Why the Supreme People’s Court is harnessing the NGO “genie”

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Obstacles to public interest litigation-filing suit & obtaining evidence

Many China observers were surprised to learn that in early January, 2015, the Supreme People’s Court (Court) issued an interpretation on enabling civil society organizations to sue polluters on behalf of the public, when most commentators take the view that those organizations are controlled more tightly than before.  The Court issued it after years of work, analysis, and low numbers of environmental lawsuits (highlighted in my earlier blogpost), particularly public interest ones.

This blogpost explains:

  • what the Interpretation does;
  • what its background is;
  • why the Court is enabling environmental NGOs to file suit; and
  • An assessment of its implications.

This blogpost should be read with Barbara Finamore’s blogpost, How China’s Top Court is Encouraging More Lawsuits Against Polluters.

What the interpretation does

The interpretation, entitled “Interpretation on Several Issues Regarding the Application of Law in Public Interest Environmental Civil Litigation (Interpretation) (Chinese original found here and translated here). The Interpretation (like many other Court interpretations) combines court procedural rules with additional rules on liability and other legal standards to put in place a framework for Chinese environmental NGOs to file public interest environmental cases against polluters. It supplements Article 58 of the Environmental Protection Law (amended in 2014) and the 2012 Civil Procedure Law, because neither law had sufficient legal rules to guide local NGOs in bringing and local courts in accepting, hearing, and deciding these lawsuits.

A draft of the Interpretation had been issued for public comment on 1 October and the final draft reflects comments from the public.  Both domestic and international organizations commented on the draft.

The Interpretation authorizes environmental NGOs with a five year track record that are legally registered with the local NGO regulator, the Ministry of Civil Affairs or its local counterpart, to sue polluters on behalf of the public, and to seek the equivalent of a permanent injunction, compensation, orders to clean up the pollution, or an apology, among other measures. A Ministry of Civil Affairs official recently estimated that about 700 environmental groups met current qualifications.

The highlights:

  • Broad definition of environmental NGOs that can file suit. At the press conference announcing the Interpretation, the Court spokesman said that a broad definition was adopted so that it would be flexible enough to accommodate additional types of approved non-profit groups.  This may be have been done to accommodate contemplated reforms to non-profit institutions;
  • Provisions permitting an NGO to seek a court within a provincial boundary but outside the locality of the polluter to hear the case. Because local courts are locally funded, they are often reluctant to hear or decide cases that cause result in judgments against companies that are often substantial contributors to local tax bases. An NGO is also allowed to sue polluters outside of its own locality. This was also highlighted in the same press conference.
  • The Interpretation enables injured private parties to piggyback on the NGO’s case, also highlighted by the Court spokesman.
  • Several provisions to require court oversight when NGO settles the lawsuit, to guard against intimidation by the polluter, which may be allied with local government.
  • The damages the polluter pays are paid into a pool of money, which is used to compensate those harmed.
  • If the defendant polluter refuses to provide information about pollution discharge, the court can presume that the plaintiff’s assertions have been established.
  • Several provisions are designed to reduce the costs of litigation to the NGO.
  • The litigation must not be profit making for the NGO.

The Court spokesman described these cases as “a new type”, difficult to try and enforce, and ones that attract a great deal of public attention,  but given the high degree of public concern, in January, 2015, China’s People’s Court Daily identified the Court’s environmental legal policies, as being the SPC’s top judicial policy initiative in 2014.

Some background

The Interpretation reflects years of work within China by local legal experts, local environmental NGOs, as well as the technical support of international organizations such as the United Nations Development Program, the Asian Development Bank, and other China-based foreign NGOs, and universities. The structure established by the Interpretation reflects concepts adapted from US law and other foreign legal systems, but reflects Chinese legal, political and societal realities.

The Court worked with the Ministry of Civil Affairs (MCA), which regulates NGOs, and the Ministry of Environmental Protection (MEP) in establishing a policy framework for implementation, which set out in the document issued with the Interpretation, the Notice of the Supreme People’s Court, Ministry of Civil Affairs, and Ministry of Environmental Protection on Implementing the System of Environmental Public-interest Civil Litigation (Chinese original here).

The Third and Fourth Plenum decisions both highlighted establishing compensation systems for those responsible for creating ecological or environmental damage, and the Court’s policy document on environmental issues, issued in June, 2014, signaled the importance to the government of public interest environmental litigation.

Track record of Chinese courts on environmental litigation

About 170 courts have now established environmental divisions, but according to Court studies, most have heard relatively few cases. Public interest environmental litigation was piloted in provinces as diverse as economically developed Jiangsu Province and the less developed southwestern provinces of Yunnan and Guizhou.  These cases have been analyzed  both in Chinese and English.The pilot projects highlighted some of the underlying issues, which include local protectionism, lack of specific provisions on these cases, lack of training, and lack of coordination between the environmental protection authorities and the courts. An additional issue is also the performance indicators (now being reformed) of the courts, which incentivizes judges to avoid taking risks.

From 2000 to 2013, only about 50 environmental public interest lawsuits were heard in China, most of which were filed by government agencies, according to a report by the state-sponsored All-China Environmental Federation. NGOs have attempted to file environmental public interest cases for many years, but have generally been refused by the courts. For example, although the All-China Environmental Federation filed eight lawsuits in 2013, but none were accepted.

Model cases before the Interpretation was issued

In the last few months, several public interest environmental cases have received a great deal of attention, including:

  • A case decided at the end of 2014 involving by a semi-official NGO in Jiangsu Province, where the Taizhou City Environmental Protection Association (the chairman, Tian Jun, is also the head of Taizhou’s environmental protection bureau) against six chemical companies that had polluted local rivers resulting in a 16 milllion RMB compensation against the polluters.
  • A case filed in December, 2014 in a county court in Chongqing by Chongqing Green Volunteers Association against a Hubei mining company.

Rationale for harnessing the NGO “genie”

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[public interest litigation] compensate my losses!
The Chinese government recognizes that the degradation of the environment in China, along with the harm suffered by hundreds of millions of people from air, water, and soil pollution is a social and political problem, and the system, without involving NGOs, was unable to address the problem, and that it is preferable to resolve environmental problems by bringing environmental disputes into the courtroom, rather than having demonstrations against polluters.

The joint policy document issued by the Court, MCA and MEP seeks to overcome local government hostility to environmental NGOs.  Local governments had often been often unfriendly to environmental NGOs. The head of the Chongqing Green Volunteers Association was quoted in 2012 as saying “I annoyed a lot of government officials and businessmen. They hired gangsters to beat me up,” he says of the early days of his work. “After hearing this news, many of my environmental activist friends were too frightened and they left me – one after another. I was feeling very helpless.”

Implications

The predictions in the Chinese legal press are that the Interpretation will eventually lead to more litigation, despite local protectionism and the technical demands on NGOs preparing to bring these lawsuits.

  • On January 1, 2015, the day that the new Environmental Protection Law went into effect, the environmental NGOs Friends of Nature and Fujian Green Home, with the support of lawyers from the environmental law center at China University of Politics and Law, , filed an environmental public interest suit to counter damage to a woodland area by mining activities in Nanping, Fujian province; the case was subsequently officially accepted
  • On January 4, 2015 with the support of funding from the Alibaba Foundation, NRDC’s partner organization Friends of Nature officially launched an “Environmental Public Interest Litigation Support Fund.”
  • On January 13, 2015 the All-China Environmental Federation filed two lawsuits in Shandong’s Dongying Intermediate People’s Court against polluters in Zhejiang and Shandong provinces, which were accepted.
  • Based on my own contacts, other environmental NGOs are reviewing their activities to consider whether they have an appropriate case.

 

 

 

 

 

Court Operations, Court Reform

A new audience for US Supreme Court Chief Justice Roberts’ 2014 Year-end Report

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imgresChief Justice John Roberts of the US Supreme Court may be surprised to learn that (an edited and translated version of ) his year-end report (linked here), is being read by tens of thousands of Chinese judges and lawyers. The reason is a translation by the Institute for Applied Legal Studies, affiliated with the Supreme People’s Court (Court), was published on the Supreme People’s Court website and distributed through its social media channels (Wechat and Weibo), as well by the social media feeds of local Chinese courts.

What relevance does Justice Robert’s report have for the Chinese judiciary?  It reflects how the Court considers foreign legal models as it seeks to reform the Chinese courts. Some of the “take-aways” are highlighted below.

Borrowing foreign legal models

Referring to or “borrowing”  foreign legal models has been a important part of China’s legal modernization, particularly in technical areas of law, but it remains politically sensitive.

The official position on borrowing/referring to foreign legal models is set out in the 4th Plenum Decision: “Draw from the quintessence of Chinese legal culture, learn from beneficial experiences in rule of
law abroad, but we can absolutely not indiscriminately copy foreign rule of law concepts and models.”

Earlier this month, an official of the Communist Party’s Central Political-Legal Committee, writing in the Communist Party’s journal Qiushi (Seeking Truth)  warned:

We want to study and borrow from the world’s best achievements of legal civilization, but studying and borrowing does not mean simply “take-ism (grab-ism)” [this phrase is the title of a 1934 essay by the famous Chinese writer Lu Xun  to mean that China should learn what it needs from Western culture through a process of selection].

 What are the takeaways for the Chinese courts?

The following excerpts from Justice Roberts’ report clearly resonated with the Supreme People’s Court leadership, as they consider court reforms that can be successfully adopted in China’s current political, legal and cultural environment:

  • The courts understandably focus on those innovations that, first and foremost, advance their primary goal of fairly and efficiently adjudicating cases through the application of law.
  • Courts are simply different in important respects when it comes to adopting technology, including information technology. While courts routinely consider evidence and issue decisions concerning the latest technological advances, they have proceeded cautiously when it comes to adopting new technologies in certain aspects of their own operations.
  • For 225 years, since the enactment of the Judiciary Act of 1789, the federal courts in each state have exercised a fair degree of operational independence to ensure that they are responsive to local challenges, capabilities,and needs. The individual courts have had considerable latitude to experiment with new technologies, which has led to some courts initiating local innovations. When the Administrative Office plans a nationwide initiative, such as Next Generation CM/ECF [electronic case filing and case management], it must devote extensive resources to conferring with judges, court executives, and lawyers across the country, examining what has worked on a local basis, and identifying features that should be adopted nationally.
  • The federal courts, however, also face obstacles that arise from their distinct responsibilities and obligations. The judiciary has a special duty to ensure, as a fundamental matter of equal access to justice, that its case filing process is readily accessible to the entire population, from the most techsavvy to the most tech-intimidated. Procedural fairness begins in the clerk’s office.

 

Court Operations

Case law Chinese style–where is it going?

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1343124282_12_dqgeOn 6 January 2015, case law Chinese style (案例指导制度) made the headlines of the People’s Court Daily and the Supreme People’s Court’s (the Court’s) websites, because the Supreme People’s Court president, Zhou Qiang provided an introduction to a book that the Court is publishing on guiding cases. Universities such as Yale, Stanford, and the City University of Hong Kong as well as institutions such as the European Union have held training programs with Court staff on the case method. Numerous academic conferences have been held on the topic in China.  The Communist Party leadership expressed its approval for case law in the 4th Plenum Decision in the following phrase:

  • Strengthen and standardize judicial interpretation and case guidance, and unify standards of applicable law (加强和规范司法解释和案例指导，统一法律适用标准).

As discussed in this blogpost, the Court’s October, 2013 judicial reform plan flagged the importance of case law in this phrase:

  •  “Expand fully the important role of guiding cases and cases for reference”.

This blogpost will look at how the Court leadership understands Chinese “case law” and how it sees case law to be useful to the judiciary.

Waving the flag for case law

President Zhou Qiang’s introduction incorporated both guiding cases, as designated by the Supreme People’s Court under its 2010 regulations, and model/typical cases.

He highlighted the following benefits of case law as:

  • summarizing trial experience;
  • strengthening supervision and guidance [of lower courts by higher courts]
  • unifying the application of law;
  • improving the quality of adjudication,
  • helping establish a judicial system with Chinese characteristics
  • assisting  in resolving the problem of similar cases decided differently;
  • controlling judges’ discretion.

Zhou Qiang did not go into the specifics of the case law system, which Hu Yunteng, the head of the Court’s Research Office,  set out in a January, 2014 article, addressing:

  • distinction between guiding cases and other cases issued by the Court or lower courts;
  • how judges should refer to guiding cases;
  • issues facing the guiding case system.

Judge Hu Yunteng clarifies the point that many other commentators and I have made, that cases selected as guiding or model cases are not the entire judgements, but have been curated and edited.

The distinction between guiding cases and other cases

Judge Hu distinguishes guiding cases (Stanford Law School’s Guiding Case Project translates and comments on them) from model cases published in the Supreme People’s Court Gazette, by the Court itself, and individual tribunals of the Court. (Examples of model cases can be found here and here.)

Judge Hu points out that the title, document number, method of selection and approval, and most importantly, the authority of guiding cases is different.  Guiding cases, unlike model or typical cases issued by the Court or lower courts, must be referred to by all courts in similar cases, and lower courts may refer to guiding cases in the reasoning section of their judgments.

How judges should refer to guiding cases

Chinese judges must focus on the important points of guiding cases, which have been approved by the judicial committee of the Supreme People’s Court, and secures their unifying role in the Chinese court system.They must only be used in similar cases.  Judge Hu distinguishes Chinese guiding cases from Anglo-American precedent, because guiding cases can only be issued by the Supreme People’s Court.  He says that judges may refer to guiding cases in their judgments and distinguish the case before them from a relevant guiding case.

Issues facing the guiding case system

Judge Hu identifies the following issues:

  • The relationship between judicial interpretations and guiding cases, and in which cases guiding cases rather than judicial interpretation should be relied upon is unresolved.
  • Second, the issues in the guiding cases generally are not breakthrough cases and are more “damp squibs.” Judge Hu suggests that the guiding case system address more controversial cases.
  • Third, it is unclear to the lower courts when guiding cases must be used, and the consequences if a lower court fails to use a guiding case on point.
  • Fourth, he admits that too few guiding cases have been issued and suggests that the Court issue a number of guiding cases equal to judicial interpretations.

Comments from the market

An opinion piece in Caixin, reporting on a late December conference at Renmin University on case law, set out comments from some Chinese legal professionals on the case system:

Renmin University Professor Huang Jingping–“very few judges refer to guiding cases”

Peking University Professor Liang Genlin–“the position of guiding cases in the legal system and how they can be distinguished from other cases is chaotic”–clearer rules are needed.

Li Guifang, partner, Deheng Law Office–guiding cases are needed.

Closing comments

It is likely that guiding cases and model/typical cases issued by the Supreme People’s Court will continue to be used to accomplish several goals:

  • Publicize the accomplishments of the lower courts.
  • Distributed as political education or have political purposes.
  •  Convey to the lower courts, lawyers, and the general public the correct position on a substantive issue but also have a political purpose;
  • Provide guidance for judges and lawyers on substantive legal issues;
  • Provide models of correctly decided cases.

Finally, it appears likely that the issue of the authority of guiding cases vs. other types of cases will be set out in regulations at some point.

Environmental law

Supreme People’s Court’s environmental public interest litigation regulations

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543296On the afternoon of 6 January, the Supreme People’s Court (the Court) issued its first judicial interpretation of the year (法释〔2015〕1号), its long-anticipated environmental public interest litigation interpretation at a press conference, at which  officials from the Ministry of Civil Affairs and Ministry of Environmental Protection, as well as the Court’s spokesman appeared.

1. Resources

The text of the interpretation is found here, with a translation available here (many thanks to the team at Chinalawtranslate).  as well as a notice jointly issued by the Court, the Ministry of Environmental Protection, and the Ministry of Civil Affairs (the translation of the notice (now in progress, is available here).   The Court published the text of the press conference, the video of which is available on the national court website.

2.  A Head’s Up

Barbara Finamore of the Natural Resources Defense Council and I are drafting commentary on the interpretation in tandem.  My blogpost will summarize the highlights of the  interpretation, the legal and policy background, as well as my assessment of what can be expected. A draft of the interpretation was issued for public comment in October.  From the brief summary of the major differences available here, it is clear that the public comment period provided very useful input.

About Me

Monitor’s 2014 Year-end Report

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imagesIn 2014, the Supreme People’s Court Monitor had almost 17,000 page views, from 122 countries (regions), primarily from:

  • United States;
  • Hong Kong;
  • Mainland China.

with the United Kingdom, Germany, and Australia trailing closely. Visitors came from almost all of China’s neighbors, including:

Laos, Cambodia, Vietnam, Mongolia, Kazakhstan, Myanmar, Nepal, Pakistan, India, Bhutan, Russia, and Tajikistan.

Like my sister blog, China IPR, my followers include academics, journalists, government officials and attorneys (both in private practice and with NGOs).  I am honored to have my blog listed as a  Chinese law resource by Harvard and Yale Law Schools, Oxford Bodleian Library as well as many other universities.