Another Chinese judge killed

Screen Shot 2016-02-28 at 10.57.01 AM

The Chinese legal community is mourning Judge Ma Caiyun, who served in a tribunal of the Changping District Court, in suburban Beijing, is understood to have been killed outside her home by two men, one of whom was a party to a divorce property settlement case. (They have committed suicide.)  Her husband, a court policeman, was wounded.

Details recently released indicate that the two men attacked the husbands of their former wives, killing the husband of one, before killing the judge.  This domestic violence tragedy, seen elsewhere in the world, has occurred a few days before China’s new Domestic Violence Law goes into force.

Official commentary took over 24 hours to be released, as was pointed out in these caustic remarks (“what is the wait?) by a former judge.

One announcement by the Supreme People’s Court (SPC), found here, initially stressed that she settled almost 400 cases each year and had received awards for her work, but has now been supplemented by an article linking her tragedy to earlier cases of violence against judges.

A article on the case posted on Wechat on 27 February by one of the prominent legal Wechat public accounts (CU检说法) was viewed almost half a million times in four hours before being removed and received almost 700 comments.

Today (28 February), many articles are being published on Wechat without being removed, so it appears that there has been a change in policy. Local court Wechat accounts have posted articles about the tragedy (always with one from the SPC), and many other legal public accounts have done so as well.  One of Judge He Fan’s (of the SPC) postings has received over 100,000 age views.

This tragedy is the latest in a series of violent attacks against judges, and like some of the earlier cases, was carried out by a man upset by the property settlement in his divorce case.

Donations are being collected by some former judges to give to the family of Judge Ma.

 

 

 

 

Bulking up the Chinese maritime courts

December, 2015 Maritime courts conference

December, 2015 Maritime courts conference

The South China Sea continues to be in the news. But one of the many unnoticed developments related to the Supreme People’s Court (SPC) and the Chinese seas is the recent “bulking up” of the Chinese maritime courts.

The Chinese maritime courts, established 30 years ago, are said to be the busiest in the Asia Pacific region, and hear cases arising in Chinese waters, coastal and inland. In 2015, the maritime courts heard about 31,000 cases, a 43% increase year on year, with cases involving foreign parties accounting for about 15%.

The “bulking up”  of the maritime courts has occurred through the following recent events:

  • establishment of a maritime court training campus and research base;
  • two conferences convened by the SPC in December, 2015  on reforms to the maritime courts; and
  • two February, 2016 judicial interpretations revamping the jurisdiction of the maritime courts.

These developments are responding to both international and domestic factors and link to earlier government/Party initiatives

This blogpost will highlight some of the international developments.

Party initiatives guiding the reform of the maritime courts

Reforming the maritime courts was foreshadowed in the 4th Plenum Decision, Supreme People’s Court 4th Five Year Plan for reforming the courts and more specifically in One Belt One Road Opinion:

From the 4th Plenum:

Adapt to the incessant deepening of opening up to the outside world, perfect foreign-oriented legal and regulatory systems, stimulate the construction of new structures for an open economy. Vigorously participate in the formulation of international norms, promote the handling of foreign-related economic and social affairs according to the law, strengthen our country’s discourse power and influence in international legal affairs, use legal methods to safeguard our country’s sovereignty, security and development interests.

From the court reform plan:

Reform the maritime case jurisdiction system. Further clean up the system for trial of maritime matters. Scientifically determine the scope of jurisdiction for maritime courts, establish working mechanisms better suited for maritime courts hearing of cases.

The One Belt One Road SPC Opinion highlighted some of the current reforms to the maritime courts, in some detail.

SPC new training center

December’s national maritime courts conference was held in Qingdao, where the maritime court training campus was established.  SPC President Zhou Qiang, who presided over the conference, described its purpose as:

to implement the decisions and arrangements of the CPC Central Committee, to accelerate the trial of maritime personnel training, promote maritime judicial theory and innovative practice.  It is an important measure for promoting the development of maritime trial work and advances international maritime justice.

A senior staff member of the Central Political Legal Committee and officials of Ministry of Foreign Affairs, State Ocean Administration, and other government agencies also attended the conference.

New regulations on jurisdiction of maritime courts

As mentioned above, in February, 2016, two regulations on the jurisdiction of the maritime courts were issued by the SPC.  Those regulations had been previously highlighted in several conferences and SPC documents, including the November, 2014 4th National Work Conference on Foreign-Related Commercial and Maritime Adjudication, OBOR Opinion, and December, 2015 Maritime Courts conference.  These regulations had been issued for less than two weeks in November for public comment, making it difficult if not impossible for interested foreign parties to comment.

One of the new regulations relates to the geographical jurisdiction of several maritime courts, principles for determining jurisdiction in administrative cases and objections to jurisdiction.  The other expands the scope of cases that can be heard by the maritime courts, setting out over 112 categories of cases that can be brought. In the section on ocean and sea navigable waters exploitation and environmental protection related disputes, ocean and sea navigable waters construction disputes are included, such as underwater dredging construction, land reclamation and ..artificial islands.

International maritime justice

Zhou Qiang had the following to say about the goals of reforming the maritime courts to improve their international  prestige.

  • Make the maritime courts  internationally influential.  We have already established ourselves as the Asia Pacific area maritime judicial center (确立了亚太地区海事司法中心的地位).  (A corollary to this (derived from conference presentations) appears to be a push to move the locus of maritime dispute resolution from London and other centers in Europe to China, where Chinese parties will encounter a more familiar dispute resolution system);
  • Increase China’s influence over the development of international maritime rules.  Improve China’s contribution to international maritime law, effectively safeguarding national sovereignty, security and development interests. (This is directly related to the 4th Plenum Decision.)
  • Strengthen the sense of national sovereignty (要强化国家主权意识), exercise jurisdiction over all types of maritime development and utilization of marine waters within the jurisdiction of the country.  This refers to all the marine waters China claims in the South China Sea and elsewhere, according to a Chinese maritime law expert.

Commercial issues

From comments by (foreign) maritime law practitioners, it appears that major European and American shipping companies have concerns about the Chinese maritime courts.  Concerns include:

  • Chinese courts, particularly the maritime courts, have repeatedly refused to enforce choice of court clauses when the chosen forum has no actual connection with the dispute.    Chinese maritime courts rely on the principle in Article 34 of the Civil Procedure Law that the choice of court selected by the parties must have a connection to the matter (although China’s choice of law legislation does not require a choice of law to have a connection) to disregard choice of courts clauses in bills of lading or other documentation, even if  proceedings have begun in other jurisdictions. This often occurs in cases involving bills of lading.
  • Related to this is that the Chinese maritime courts are sometimes the site of parallel proceedings, when there may be proceedings elsewhere in the world relating to the same dispute.  Some of these cases were described in a talk at the University of Hong Kong by Professor Vivienne Bath of the University of Sydney and will be incorporated into a forthcoming article.

The larger issue, of course, is that while the Chinese maritime courts now include some very highly trained and experienced judges, the emphasis on Chinese national interests and national sovereignty leads non-Chinese and private enterprise litigants to question whether their dispute will be considered fairly.

 

 

 

 

Why is assigning responsibility for wrongful convictions in China so difficult?

d397e647d9fea2da22ef78a1f4a2ecc6At least two recent articles in the Chinese media provide some answers to the question of why assigning responsibility (within the courts) in wrongful conviction cases (known in China as “mistaken cases”) is so difficult. ( A recent  New York Times article has previously discussed the question as well and provided commentary by several well known authorities.) This brief blogpost looks at these two recent articles, which provide additional insight.

  1.  “Russian doll” system of committee decisions

The first response can be found in an article in the official Chinese press, published 20-21 February,  entitled “China’s judicial reform stepping into a deep water area facing people, power, and money.” The article sets out a response to the dissatisfaction of the public (and experts), which captures, in officialese, the core of the reason–decisions in high profile court cases are made in through a “Russian doll” (Matryoshka, the Russian nested doll) set of committee decisions.

Russian nesting dolls (from Wkipedia)

Russian nesting dolls (from Wikipedia)

“For a long time, Chinese judicial organs [referring both to courts and procuracy] have internally formed an administrative work system.  For example internally, in the courts, cases are approved and checked on by division chiefs and heads of courts level by level, and it is the person with the highest administrative position who has the final say, which created the situation in which the persons hearing the case do not decide it, and those deciding the case do not hear it.  This not only affects judicial efficiency and justice, it also makes it difficult to pursue responsibility for mistaken cases.”

    长期以来,中国司法机关内部形成了一套行政化的工作机制,比如法院内部,案件由厅长、院长层层审批把关,由行政职位高的人说了算,造成审者不判、判者不审的局面,不仅影响司法效率和公正,也难以追究错案责任。

What this means in plain English is that Chinese courts exercise an administrative system in which all cases are approved by division chiefs or higher.  For major cases, as well as cases in which the death penalty is proposed to be imposed, the case is forwarded to the judicial committee of the court.  As I wrote over one year ago, although this has not been mentioned, judicial committees must have approved the original decisions in a number of cases recently revealed to have mistaken, such as:

the 1996 execution of Huugjilt, in Inner Mongolia;
The 1995 conviction of Tian Weidong, Chen Jianying and others in Hangzhou, Zhejiang.

One layer of the Russian doll is the judicial committee. In that December, 2014 blogpost, I described how judicial committees operate (and some proposals for judicial committee reform).  Court legislation states that these committees “practice democratic centralism” and that their task is to “sum up judicial experience and to discuss important or difficult cases or other issues relating to judicial work.”

The reason that the panel that hears the case must follow the decision of the judicial committee is that judicial committees are designated as the “highest judicial organ” within a court and implement the principle of democratic centralism.  Wang Bin, a Nanjing judge whom I quoted in that blogpost,  stated that judicial committee members [made up of the court leadership] have neither the opportunity nor the time and energy to learn more about the specific circumstances of each case.Members are not required to state their view and rationale before voting.  Decisions are made by a simple majority.   Additionally, as I implied, during judicial committee consideration, members are aware of their bureaucratic rank vis a vis the court president and vice presidents.  As Professor He Xin of City University noted in his study of judicial committees, since the decision is made collectively [by the judicial committee], no single committee member is held personally responsible.”

What is implied by the administrative system described by the statement in the official media is that the local political-legal committee or other Party authorities may liaise with the court leadership concerning high profile cases.  That is the next layer of the Russian doll, and may involve higher level Party authorities.

Professor He’s study found that judicial committees had in many cases succumbed to external influences, while my own (more limited sample) found that external pressure was sometimes resisted.  Pressure by local political-legal committees was likely involved in some of these mistaken cases, but liability is not pursued, for a similar rationale as Professor He’s–since the decision is made collectively, no one is held personally responsible.

What effect will the 2015 regulations aimed at reducing official interference in court cases have on this practice?  As noted in this earlier blogpost, one of those regulations does not require the recording of certain types of guidance–that of “Party and government organs, professional associations, social public interest organizations and public institutions with administrative functions in accordance with law retained or permitted by people’s courts to follow the working procedures to submit consultative opinions in cases of national interest or societal public interest, may be not entered into information archive on prying, but relevant materials shall stored in the case file for future reference.”  But will documents issued by Political Legal Committees at various levels really be placed in case files and made accessible to lawyers?

2.  Why does affixing responsibility in mistaken cases take so long?

The author of the second article,  published in a popular legal Wechat public account highlighted earlier, suggests reasons that it often takes 10 or more more years for mistaken cases to be redressed, and proposes that the SPC and SPP increase their staffs to review mistaken cases:

Ten years is the time it takes for two terms of the [local] Party Committee and the heads of the court and procuracy.  That means that the heads of the Party Committee and court/procuracy have changed at least once or twice… [Why won’t it take less time?] It is because when the leaders who have had the final say still have their positions,…if they reverse the mistaken case and one can well imagine that they will not want to overturn a case in which they had the final say…There is hope …only when the leaders have retired, have become old or passed away, and a new leader is in position and takes the matter seriously.

 

 

More on Justice Scalia and what he means to the Chinese legal profession

showimage

Judge Jiang

Followers of this blog are likely to have seen the New York Times (Chinese version) and Wall Street Journal stories on Justice Scalia and what he means to China.  At least two additional articles are worth mentioning:

Judge He Fan published an article by a former Shanghai judge and current Fulbright Scholar on her experience paying her respects to Justice Scalia lying in state at the Supreme Court, with the following comments:

While we sigh with regret with every “model laborer” or “advanced” [worker], here [in the US] the President announced to the entire people that the late judge was one of the Supreme Court’s most important judges and thinkers, and will be remembered by history.

当我们还在为每一位“劳模”或“先进”扼腕叹息时,这里的总统向全国人民宣布逝去的法官毫无疑问是最高法院最重要的法官和思想者,将被历史所铭记

Judge Jiang Qiang of the Supreme People’s Court in his Wechat account (junnylaw) desribed how American legal controversies are relevant to Chinese judges.  His Wechat post contains an excerpt from one of Justice Scalia’s lectures, included in the book Judges On Judging. (Judge He Fan translated the book, previously discussed this blogpost.)

Judge Jiang prefaces the excerpt with the following comment:

Although we here cannot use the Constitution as the basis of a judgment, American controversies concerning Constitutional interpretation can still provide a reference to us here in principles and techniques in interpreting areas of [Chinese] law.

(虽然我们这里的宪法不能作为裁判依据,但是美国关于宪法解释的争论,仍然能为我们这里关于部门法解释的原则和技术提供参考.]

Farewell to Justice Scalia from the Supreme People’s Court

MAIN201509151724000284030400616

Judge He

The US Supreme Court holds a special fascination for many members of the Chinese legal community, including some members of the Supreme People’s Court.  Judge He Fan of the judicial reform office of the Supreme People’s Court, who has translated eight or nine books on or relating to the US Supreme Court, published on the morning of 14 February a moving (and accurate) profile of Justice Scalia on his Wechat public account that (as of the evening of 14 February) had received over 60,000 page views.

Some phrases from He Fan’s profile for Chief Justice Roberts to consider when he writes his eulogy:

  • He (Justice Scalia) rode a crane to the West (他已驾鹤西去)(a phrase meaning he passed away–in traditional Chinese symbolism, a crane takes the souls of the departed to the (Western) heaven);
  • Whether you love him or hate him, everyone must admit that Antonin Scalia was the most influential contemporary American judge (无论爱他还是恨他,所有人必须承认,安东宁·斯卡利亚是对当代美国法律影响最大的大法官。
  • Farewell, Justice Scalia (别了,斯卡利亚大法官).

 

First quarter 2015 bankruptcy cases in the Chinese courts

Continuing my series on bankruptcy law, this blogpost gives a quick report on 2015 first quarter bankruptcy cases in the Chinese courts, drawn from this report (including the charts used).

Bankruptcy cases accepted, by province

Bankruptcy cases accepted, by province

During that period, the Chinese courts accepted 264 bankruptcy cases.  Jiangsu, Zhejiang, and Guangdong had the top number of cases, followed by Shanxi, Anhui, and Hunan.  The top bar is cases is the rest of the country. d5015987-bb7f-4ee4-812a-e711a3264557

The piechart sets out the percentage distribution of cases by province (the largest percentage is from the rest of the country).

A listing of the courts that have accepted the most bankruptcy cases bears out earlier analysis on this blog about the Shenzhen courts (Shenzhen is the court that has accepted the most bankruptcy cases in the country, with Zhangjiagang (Jiangsu Province) in second place.

270c4d61-bf82-43df-a982-271859fca937

As for the types of cases, the piechart below shows that most cases (about 2/3s) were bankruptcy liquidation cases, followed by reorganization (about 1/3), with very few settlement cases.  This article explains the three different types of cases.

d5015987-bb7f-4ee4-812a-e711a3264557On the geographical distribution of the liquidation cases.the piechat above shows that most arose in Jiangsu Province (about 23%), with Guangdong, Zhejiang, Shanxi, and Anhui Provinces following in descending order.  The 40% is from the rest of the country. Several cases involve multi-tiered, overlapping layers of complex entities (as elsewhere in the world), leading Chinese courts to consolidate the bankruptcy cases of several related companies (this Harvard Law School article gives a US bankruptcy perspective on consolidation).3be5b38d-70a0-4ebd-bdae-3472f9de09ae

On the geographical distribution of the reorganization cases, the piechart above shows that greatest proportion of reorganization cases were in Zhejiang (25%) (the site of at least one pilot court for bankruptcy cases), followed by Anhui, Jiangsu, Shandong/Shanxi) (the 30% is for the rest of the country).

As mentioned previously, the Supreme People’s Court expects to see an upturn in bankruptcy cases, and I would expect to see initiatives in transferring cases from enforcement to bankruptcy (an outstanding issue for the courts) and proposed solutions to achieve more reorganization and settlement cases. These are likely to happen because (as mentioned previously) the Chinese government has committed to reducing the number of zombie enterprises.  Early this spring, a conference will be held in China on the trial of bankruptcy cases, where these issues are likely to be discussed. If the organizers (and funding) permit, I will attend.