Supreme People’s Court ramps up its judicial responsibility system

Screen Shot 2017-08-12 at 7.04.09 AMIn April of this year (2017), the Supreme People’s Court (SPC) issued its judicial responsibility guidelines.  At the end of July, the SPC issued a 73 article implementing opinion (最高人民法院司法责任制实施意见(试行)(Implementing Opinion), which went into effect on 1 August.  There have been many summary reports in the legal press, but the full text was not found until 11 August. It has since been published by several Wechat accounts, but as of this writing, no official text has been issued.  The policy basis for the responsibility system links back to the 3rd and 4th Plenum Decisions. Senior Party leadership (the Central Leading Group for Comprehensively Deepening Reforms) approved the SPC’s responsibility system.

The document establishes operating rules for the SPC  after this latest round of court reforms, and therefore sets guidelines for the lower courts. It can be expected that the lower courts will issue corresponding documents. Through the Implementing Opinion, it is possible to see how much autonomy an individual judge/three judge panel has and what matters require approval by senior SPC leaders.

Opinions (as this blog has previously explained) are not judicial interpretations but a type of judicial normative document.   A recent Wechat post by an SPC commercial subsidiary, Faxin (法信), described them as judicial guiding documents (司法指导性文件). That is the terminology being used for them in a series of books published by the People’s Court Press. Inconsistent legal terminology is not a new phenomenon.

The basic principles of the Implementing Opinion are said to implement central authorities’ requirements, let those who hear cases bear responsibility, clarify how cases are to be dealt with and put in place the Party group’s responsibility for enforcement (the phrase “Party group” actually is mentioned three times) and case handling. It appears that some provisions memorialize current practice, while others set out new rules.

The  Implementing Opinion specifies roles of different personnel and institutions within the SPC such as the court president (and vice presidents), heads of divisions, professional judges committee, judicial committee, presiding judges, judges in charge of cases, clerks, and judicial assistants. It provides guidelines on how cases are to dealt with, from case acceptance, random case assignment, to issuing decisions.

The Implementing Opinion includes the following (selected) provisions:

  • Details on staffing for judges (one assistant and one clerk in the circuit courts, and some assistants and clerks at headquarters) (Article 3);
  • those with a leadership role (President/vice president/vice/heads of divisions) should generally be the presiding judge (Article 5), while the judges in collegial panels should change every 2-5 years;
  • leaders need to hear cases, that are difficult/important/guiding, etc., but specialists are designated to assist them (Article 7);
  • rules on who will issue judgments, mentioning that the president of the SPC signs the  order for the implementation of the death penalty (this was understood to be the case already)(Article 11);
  • court leaders may not give oral/written instructions concerning a case (except as otherwise provided (i.e. cases that are considered by the judicial committee)(Article 12);
  • responsibilities of professional judges committees (a committee put into place under the judicial reforms); judicial committee (can be split into specialist civil, criminal, enforcement subcommittees) (role said to have narrowed, but include major/difficult cases affecting national interests & social stability, but also other non-case related duties such as approving judicial interpretations/judicial normative documents, etc., the judicial committees requires  views be stated in the judgment (Articles 16-19);
  • the basic rule is random case assignment, with exceptions for major/difficult cases (Article 26-27), with electronic service of process & documents if agreed (Article 32);
  • basic rule is online broadcast of SPC court hearings, unless approved by leaders otherwise (Article 33), with requirements concerning the posting of rulings/judgments and other transparency requirements mentioned in the document;
  • circuit courts are prohibited (in general) from considering requests for instructions (the rule makes sense–it would defeat one of the purposes of having circuit courts (Article 25, this is an example);
  •  Articles 41-43 relate to precedent case review (as suggested in my recent article) and require approval by leaders if the ruling in a case will be inconsistent with prior SPC rulings on the topic (this has been criticized as being inconsistent with judicial autonomy). Approval is required in several other situations, see Article 40 (2-4));
  • Articles 46-50 set forth rules for a collegiate panel to consider a case and submit it to the division leadership/professional judges committee/judicial committee;
  • Article 51 requires the judge responsible for the case (承办法官) to draft the decision reached according to the majority view, indicating that the role of responsible judge has administrative overtones. If not so, the judgment would be drafted by one of the judges who agreed with the majority view.
  • Article 58 retains existing special procedures (including special standards for transparency) for certain criminal cases, such as death penalty cases, cases involving foreigners, overseas Chinese, Hong Kong, Macau, and Taiwanese Chinese.
  • Article 61 provides the Central Commission for Discipline Inspection (CCDI) representative stationed at the SPC can be a member of the judicial committee (this seems to be analogous to the procedure under law under which a representative from the procuratorate can take part in judicial committee meetings). Additionally, anti-corruption officials stationed in each division can participate in professional judges committee meetings and collegiate panel discussions.   Article 61 does not require their views to be adopted.  It could be that their views are considered more seriously if discussions relate to matters regarding which they are competent.
  • Article 64 requires certain types of cases to be submitted for approval to higher levels of the SPC, including cases involving mass incidents, that will have an effect on social stability; difficult and complicated cases that will have a major effect on society; cases that will conflict with prior SPC cases; those that indicate the judge violated the law; death penalty review, major criminal cases, cases involving requests for instructions involving foreigners, overseas Chinese, Hong Kong, Macau, Taiwanese Chinese.

The vision for the reformed SPC remains a court with administrative characteristics (官本位), with concepts derived from other jurisdictions (judge’s assistant would be an example), that enables Party guidance in sensitive cases and its operations to reflect changes in Party/government policy (serving the actual situation), but seeks to be a more professional and accessible institution, hearing cases in a professional manner. It can be surmised that certain provisions from the Implementing Opinion will be incorporated into the revisions of the Organizational Law of the People’s Courts currently being drafted.

 

 

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Law-related Wechat public accounts (2017 version) (1)

logoI’ve posted several times about law-related Wechat (微信) public accounts.  They are an important resource for those trying to understand Chinese legal developments (or their absence) and their implications or impact. For the observer, it enables us to learn about new issues (or aspects of issues) that we didn’t know existed, and (depending on the topic), hear viewpoints other than the official one, or at least read hints of dissenting views. Those with the Wechat app on their smartphone can subscribe to these public accounts but it is also possible to find some these articles through an internet search.  Note that the “Mr. Yong” about whom I wrote in 2016 still lurks on Wechat, so articles published may disappear.

Below is an incomplete guide to some useful law-related Wechat public accounts–oriented to my own interests, to be followed up when time permits.  Please contact me through the comment function or by email with additional suggestions.

Official accounts

As I’ve written before Party/government authorities use Wechat public accounts to reach out to a public that is moving away from traditional media to their smartphones. SPC policy is encouraging courts to do so.  There is some but not complete overlap between articles that appear on an institution’s website and Wechat account. There is complete overlap when more political matters are involved. Even some articles published on institutional public accounts have a “netizen” tone and popular netizen slang and images, such as this one from the Qianhai Court public account.

Screen Shot 2017-07-29 at 9.13.10 AM

You’re right, today the little editor wants to tell everyone A BIG! THING! about the Qianhai Court!

Some large institutions (Supreme People’s Court (SPC) and Supreme People’s Procuratorate (SPP)), have affiliated research, publishing and educational institutions, with each having a Wechat public accounts under its auspices. There is some overlap in articles, but others are unique to the Wechat account.

The SPC has its official account: Wechat ID: ch_zgrmfy; People’s Court Daily: Wechat ID: renminfayuanbao; SPC’s research institute, The Institute for Applied Jurisprudence, Wechat ID: fayansuo; National Judicial College’s Wechat ID:falvshiyongzazhi (Wechat version of their magazine, Application of Law (法律适用) & account of its case research institute (司法案例研究院), Wechat ID: sifalyjy.  There is also an account on diversified dispute resolution, linked to the Institute for Applied Jurisprudence: 多元化纠纷解决机制 (SIFAADR). The electronic database Faxin (法信) affiliated with People’s Court Press (which itself has a Wechat account: fayuanchubanshe) also has a Wechat account, Legal_information, as do the journals 中国审判  (Id: zhongguoshenpan) and人民司法 (renminsifa). (This list is incomplete).

Officially approved accounts but not official

Some individuals affiliated with legal institutions have Wechat public accounts (presumably with the approval of their institutional leaders), among them: account of a Pudong New area judge, 法眼观察 (fygc20140416)–here is a recent article on the large number of cases in his and 19 other local courts; 法影斑斓 , account of He Fan, judge in the judicial reform office of the SPC, Wechat ID: funnylaw1978; CU检说法 (CU-JIAN), account of a local prosecutor (see an article on prosecutor’s assistants) 稻花蛙声(paddyfrog), recent article on judicial reform as seen from the bottom of the judicial food chain;法治昌明 (fazhichaming), with a recent article on the toxic system of performance appraisals.

Supervision Commission

The two must read accounts for those trying to understand what is happening with the supervision commission pilots:监察委前沿 (jianchaweiqy)and反腐先锋 (recent article on the framework for the supervision commissions published here)

Others, many previously recommended

  • Arbitration:  Wechat ID: cnarb1, account of Lin Yifei, mentioned in an earlier blogpost.  I highly recommend it to both practitioners and others interested in arbitration.
  • Labor law:Wechat ID: laodongfaku (劳动法库) (with over 200,000 followers; Wechat ID: ldfview (子非鱼说劳动法);
  • Civil law 海坛特哥 (haitanlegal), account of Chen Te, formerly of the Beijing Higher People’s Court, now a lawyer (高衫legal) [his earlier posts focused on medical law], Wechat ID: gaoshanlegal;  审判研究, Wechat ID: spyjweixin; 法客帝国, Wechat ID: Empirelawyers; 审判研究, Wechat ID: msspck.
  • Criminal law: 辩护人Defender (bianhuren_net); 辩护园地 (zrflawyer); 刑事实务, Wechat ID: xingshishiwu; 刑事审判参考 Wechat ID: criminailaw;说刑品案 (xingshishenpan)
  • International law: Wechat ID: ciil 2015 国际法促进中心
  • IP law–知产力 (zhichanli); 知识产权那点事, Wechat ID: IPR888888.
  • Aggregators–智和法律新媒体, Wechat ID: zhihedongfang; 法律博客, Wechat ID: falvboke,  法律读品, Wechat ID: lawread.