How Zhejiang courts support its economy

zhejiang

My apologies to blog followers for my absence.  I will address Zhou Qiang’s comments on judicial independence in a later blogpost, for which I want to do some more detailed research than is possible at this time.

This blogpost will look at a less contentious question–what does the profile of civil and commercial disputes in Zhejiang province mean for the Zhejiang/Chinese economy and the role of the courts (in civil/commercial disputes).

Judge Zhang Hengzhu, head of the #2 civil division of the Zhejiang Higher People’s Court (High Court), spoke in early January at a conference organized by Tiantong & Partners, the boutique litigation law firm on civil and commercial disputes in his province.

What is special about Zhejiang?

The Zhejiang economy is dominated by small and medium enterprises (SMEs), many integrated with the global economy.  These companies are private, family-owned companies. Judge Zhang noted that these companies tend to have irregular corporate governance, with vague lines between property ownership by the company founder, the company, and affiliates.

Civil & commercial litigation in Zhejiang

Zhejiang (and Jiangsu) are the two most litigious provinces in China. The Zhejiang courts accepted over a million cases (1,112,900) in the first nine months of 2016, up 11% over 2015, of which over half (572,300) were civil and commercial cases, up 7% year on year.  [Comment–year-end numbers will be even higher.]

A significant proportion of those cases during that period were bad debt-related. About 17% of those cases (136,500) were private (shadow) lending disputes, involving total amounts in disputes of RMB 78.366 billion (almost USD 11.4 billion).  Private/shadow lending in Zhejiang is a supplement or replacement for bank financing. During the same period, about half as many financial disputes were accepted (85,400), up almost 20%, but the total amounts in dispute were RMB 232 billion, or USD 33.79 billion).  [Comment–year-end numbers will be even higher.]

How Zhejiang courts support SME economy

Judge Zhang commented on what the Zhejiang courts have been doing to support the province’s SME-dependent economy.  Those actions, which appear unusual those unused to the Chinese judicial system, include:

  • Taking the lead to generate judicial guidance on private (shadow) lending.  In 2009,  the High Court was the first to issue provincial level guidance. which it updated in 2013.
  • In 2013, it issued a concurrence (in the form of a meeting summary) with the provincial procuratorate and public security department on criminal law issues relating to collective fundraising.
  • The High Court is working with the provincial financial institutions on the disposal of non-performing assets.
  • It was one of the first provincial courts to take steps to generate judicial guidance on bankruptcy law and to take steps to deal with zombie enterprises (after raising it with the provincial Party secretary and government, who issued written instructions (批示)。
  • In late 2016, establishing a joint mechanism with fourteen departments of the provincial government to advance the use of bankruptcy and related issues, such as re-employment of workers, use of land formerly used by bankrupt enterprises, generating bankruptcy-favorable tax policies (document on the mechanism found here).

 

 

 

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Asset recovery, Chinese style

unnamedThe Supreme People’s Court (SPC) and Procuratorate (SPP) issued their first judicial interpretation of 2017, Provisions on Several Questions Concerning the Application of the Procedure of Confiscating Illegal Gains in Cases Where the Criminal Suspects or Defendants Absconded or Died (Asset Recovery Interpretation). It went into effect on 5 January. It is possible that the timing is related to the Central Commission for Discipline Inspection annual conference.

It is an important piece of quasi-legislation enabling the Chinese authorities to recover assets that are the proceeds of corruption and other crimes within China and internationally, where the criminal suspect or defendant has absconded, left the jurisdiction, or died.   If your jurisdiction is one that already has in place treaty arrangements with China that will enable the Chinese authorities to seek recovery of assets, the interpretation bears close review.   Canada, for example, has supplemented its criminal judicial assistance treaty with a specialized asset recovery agreement.

Background

The recovery and forfeiture of the proceeds of corruption and other crimes has become a priority issue because the anti-corruption campaign under Xi Jinping has made it so.  Although the Criminal Procedure Law was amended in 2012 to enable the authorities to confiscate assets of persons who had or were suspected of committing certain major crimes (see Articles 280-283), in the view of the SPP and SPC, the Asset Recovery Interpretation was needed because the law itself was inadequate. The drafters identified four issues:

  1. the range of crimes to which asset recovery could be applied was too narrow;
  2. major disagreements existed concerning procedures and standards of evidence;
  3. local authorities lacked experience with asset recovery;
  4. procedures and relative responsibilities of different authorities were unclear, making it difficult when negotiating with foreign governments.

The actual drafting of the Asset Recovery Interpretation began shortly after the 4th Plenum and before the Skynet operation was launched.The drafting of this interpretation was a high-profile project for the two institutions. The SPP and SPC worked with the CCDI,  the Central Political-Legal Committee, National People’s Congress Legislative Affairs Commission, Ministry of Foreign Affairs, Ministry of Public Security, Ministry of Justice, and other authorities to produce a draft a practicable system that could be used when negotiating with foreign countries, meet the policy targets of the Party, and contain legal standards specific enough for the procuratorate and courts.

The Asset Recovery Interpretation also draws on the interactions the SPP and SPC have had as part of multi-institutional dialogues on the recovery of the proceeds of corruption with a variety of multilateral institutions, such as the World Bank, Asian Development Bank, as well as bilateral interactions such as with the United States government, for example, through the US-China Joint Liaison Group on Law Enforcement Cooperation.

The drafting of the Asset Recovery Interpretation was flagged in the Fourth Plenum Decision:

Strengthen international cooperation on anti-corruption, expand strength to pursue stolen goods and fugitives overseas, as well as for repatriation and extradition.

Asset recovery through the courts was included in the SPC’s 4th Five Year Plan:

16. Standardize judicial procedures for disposing of assets involved in a case.Clarify the standards, scope, and procedures for people’s courts’ disposition of property involved in the case. Further standardize judicial procedures in criminal, civil and administrative cases for sealing, seizing, freezing and handling of assets involved in a case.

…expand the scope covered by regional and international judicial assistance. Promote the drafting of a Judicial Assistance Law in Criminal Matters.

The drafting of the interpretation was the responsibility of the #2 Criminal Division of the SPC and the Law and Policy Research Office of the SPP.

 Some important provisions

This blogpost cannot provide a comprehensive description of the interpretation which expands/further details the procedures set out in Articles 280-283 of the Criminal Procedure Law and related law, but notes the following provisions.

1. The Asset Recovery Interpretation expands the scope of the crimes to which asset recovery applies. Article 280 of the Criminal Procedure Law authorizes a people’s procuratorate to apply to a court  for confiscation of illegal gains and other property related to the case in serious crimes (重大犯罪案件) such as corruption, bribery or terrorist activities where the criminal suspects or defendants have absconded and have not been found one year after the public arrest warrants were issued, or where the criminal suspects or defendants have died.

Article 1 of the interpretation expands the term “such as” (等) by specifying that confiscation can be applied to the following crimes among others:

  1.  Corruption; embezzlement of public funds; possessing huge amounts of property from unknown sources; concealing overseas savings; privately dividing state-owned assets; privately dividing assets that had been confiscated;
  2. Bribe-taking; exploiting influence to take bribes; bribery by an individual or entity; giving bribes to persons with influence; introducing bribery;
  3. Organizing, leading, or participating in terrorist organizations; helping terrorist organizations, preparing to carry out terrorist activities; advocating terrorism or extremism, and incitement of carrying out of terrorist activities; using extremism to sabotage the enforcement of laws; forcing others to wear clothing and signs that advocate terrorism or extremism; illegally possessing articles that advocate terrorism or extremism;
  4. Endangering state security; smuggling; money laundering, financial fraud; mafia-type organizations, and drugs.
  5. Telecommunications and internet fraud.

As many others have written in other contexts, some of the crimes listed above have been over-broadly applied in China–some to persons who disagree with the government and others to private entrepreneurs.

Language in extradition treaties is flexible enough to enable foreign governments to refuse to extradite or assist in the recovery of assets from persons that the host government considers a political dissident rather than a criminal. However, those persons can anticipate that their domestic assets may be the subject of confiscation procedures.

2. The definition of assets of crime draws on relevant language in the UN Corruption Convention on proceeds of crime, and so include proceeds of crime that have been transformed or converted, in part or in full, into other property, as well of proceeds of crime have been intermingled with property acquired from legitimate sources.

3.The Asset Recovery Interpretation sets out needed details in the procedure by which assets can be confiscated, including detailing the evidence the procuratorate has to provide to a court in the application for confiscation, matters to be set out in the notice issued by a court that accepts the application; persons to whom the notice should be serviced and media outlets where the notice should be published.  (Under Article 281 of the Criminal Procedure Law, the notice concerning the application needs to be in effect for six months.)

Under Article 281, close relatives and interested parties (and their representatives) can apply to attend the court hearing at which the confiscation of assets application is reviewed, but “interested parties” had not been defined, nor had the details of how the first instance and appeal procedures were to be conducted.

4.  The Asset Recovery Interpretation details the procedures for seeking international cooperation in the recovery of assets, including the type of order the lower court should issue and documentation that the lower court must prepare.  The bundle of documentation must be reported up to the SPC and after the SPC reviews it, the SPC prepares a request letter, the contents of which are specified in the interpretation.  These request letters generally are transferred abroad via the Ministry of Justice, which is usually designated the competent national authority under treaty or convention arrangements.

Next steps

The SPC anticipates that the Asset Recovery Interpretation will lead to an increase in cases, but are aware these issues and procedures are new to the lower courts, so it is requiring lower courts to designate certain judges to hear these cases and for these judges to undergo training on the Asset Recovery Interpretation and related issues.

The SPC calls on cooperation with related departments on the recovery of proceeds of crime from abroad, saying that it cannot fight the battle alone. (不能依靠某一个部门单兵作战).

Foreign jurisdictions can anticipate an increase in requests from China and it is likely that the mainland will request that the Hong Kong authorities negotiate a related arrangement. It will raise further concerns for those former Chinese officials accused of the crimes described above living in jurisdictions with an extradition or mutual legal assistance in criminal matters treaty. For lawyers in China and abroad, it represents a new practice opportunity.

 

 

2016 Supreme People’s Court Monitor year-end report

ornate-1045572_1280In 2016, the Supreme People’s Court Monitor published 67 posts and had close to 30,000 page views, from 150 countries (regions), primarily from:

  • United States;
  • Hong Kong;
  • (mainland) China; and
  • Australia.

with the United Kingdom, Germany, and Singapore trailing. Unfortunately too many “Belt & Road” countries are at the bottom part of the list of 150 jurisdictions.

Over half of the Monitor followers use Twitter to follow the Monitor.Although Twitter is not accessible in mainland China without a VPN, 26% of the Monitor’s Twitter followers are based there.

I am often asked about the profile of my blog followers. Like my sister blog, China IPR, my followers include academics, students, journalists, government officials, judges (current or retired), staff of international organizations as well as practicing attorneys (in private practice, in-house, government service and with NGOs).  The Monitor has some email followers in (mainland) China but they generally keep a very low profile.

I am honored to have my blog listed as a Chinese law resource by law schools and other institutions around the world, including: Harvard and Yale Law Schools, and Oxford’s Bodleian Library.  Many thanks to those professors who have recommended the Monitor to students.  Thank you also to those journalists and scholars writing about the Chinese judiciary who have cited the Monitor.

Many thanks to those professors who have recommended the Monitor to students.  Thank you also to those journalists and scholars writing about the Chinese judiciary who have cited the Monitor.

I am honored to be a Distinguished Scholar in Residence at the School of Transnational Law of Peking University (in Shenzhen).  We have outstanding students and I have excellent colleagues.

I am honored to have been invited to speak at quite a few conferences in 2016:

  • one in Xiamen, organized by the Xiamen Maritime Court, sponsored by the Supreme People’s Court and Fujian Higher People’s Court, with support from the British Consulate General Guangzhou. It was not only international (with the London Maritime Arbitration Association) but included judges, in-house counsel, lawyers and academics.
  • several conferences sponsored by the University of Hong Kong; one by the City University of Hong Kong; and one by the Chinese University of Hong Kong;
  • University of Southern California’s US-China Institute’s China Card Institute (I recommend host Clay Dube’s presentation and Robert Schrum’s presentation in particular, available on the USC website and Youtube, both looking at the demonization of China and Chinese people in the US;

I was very happy to a be a guest lecturer in classes at:

  • University of Hong Kong;
  • Chinese University of Hong Kong;
  • NYU Shanghai;
  • Shanghai Jiaotong University and
  • Fordham Law School.

Also it was a special honor to engage in dialogue with Professor Jerome Cohen at NYU Law School’s US-Asia Law Institute.

Finally, a particular thank you to certain members of the Chinese legal community:

  • administrators of the Wechat public accounts that have published my articles;
  • those who have translated those articles into Chinese;
  • those Chinese judges and lawyers who shared their insights with my classes and with me; and
  • those judges who arranged for me to visit their courts.

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