Law-related Wechat public accounts, 2018 update (1)

Screen Shot 2018-02-03 at 10.13.48 AM Wechat, as most people with an interest in China know, has become the preferred form of social media in China.  The legal community in China has taken to it too.

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 lurks on Wechat, so articles published may disappear, although they often reappear elsewhere.

Some are official accounts of government entities, including the courts and others are public accounts (公众账号) established by companies, law firms, universities, societies, other organizations, or individuals. In November, 2018 the Cyberspace Administration of China said that tightened management of internet content producers would be a “new norm,: and Tencent reduced the number of permitted corporate public accounts from five to two and individual accounts from two to one.  More information on this development elsewhere.

Below is the first part of a guide to some useful law-related Wechat public accounts focusing on accounts related to the Supreme People’s Court (SPC) Please contact me through the comment function or email with additional suggestions.

The official Party and government accounts enable the user to keep current on the issues and latest Party and government position in that area of law–new policy, new legislation, and new reforms, or the official response to a current hot topic.  The Central Political-Legal Commission has one, the Central Supervision Commission, as do both the SPC and Supreme People’s Procuratorate, as well as their local counterparts. Academic journals have a different audience that requires more nuance.

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 smartphones. Party/government 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, such as the latest important speech of a leader. Even some articles published in institutional public accounts may have a “netizen” tone and use netizen slang and images.

Institution Account name
National Supervision Commission 中央纪委监委网站
Central Political-Legal Commission 中央政法长安剑 (recently renamed, read here

Official accounts linked to the SPC

 linked to SPC and its affiliated institutions
Institution Account name Content
Supreme People’s Court 最高人民法院 Official view of SPC; also republishes Xinhua articles
People’s Court Daily 人民法院报 Official view of SPC; also republishes Xinhua articles
Institute for Applied Jurisprudence

 

(since July, 2018, under the new institute director, the account has published  fewer articles than previously)

中国应用法学研究所 Had previously carried accounts of conferences and academic talks, translations of foreign materials; other articles
China Applied Jurisprudence (academic journal)(from Sept., 2018) 中国应用法学 Publishes excerpts from journal articles (recent article included: article on people’s assessors pilot project; also republishes other articles of interest to editor; translations of foreign materials, including an excerpt from “Building a Diverse Bench” (NYU Brennan Center publication)
Journal of Law Application (academic journal affiliated with National Judges College 法律适用 Publishes excerpts from journal articles, some by judges, others by academics
Alternative Dispute Resolution Reform in China 多元化纠纷解决机制 Articles on alternative dispute resolution in China and foreign experience
Database Faxin (affiliated with the People’s Court Press) 法信 Case analysis, analysis of cases on specific issues
China Trial (journal) 中国审判 Excerpts from articles in the journal
People’s Judicature 人民司法 Excerpts from articles in the journal
Case Research Institute of National Judges College 司法案例研究院 Case analysis, excerpts from its academic journal (Journal of Law Application (Cases))
SPC Information Center 智慧法院进行时 Reports on informatization of courts
Administrative enforcement and administrative trial

 

行政执法与行政审判 Articles related to administrative litigation & enforcement

 

National Judges College 国家法官学院 Official account; articles reporting on the National Judges College &    its local branches
People’s Assessors 人民陪审 Articles related to the people’s assessor system & its reforms

Several SPC judges and SPC officials have Wechat public accounts.  They have obtained approval to have them.  Among them are:

Individual affiliated with SPC Account name Content
He Fan (何帆), head of the planning department of the SPC’s Judicial Reform Office 法影斑斓 Judicial reform
Yu Tongzhi (于同志), judge of SPC #2 Criminal Division, editor of 刑事审判参考 说刑品案 Excerpts from the journal, articles on criminal law and criminal procedure issues (some republished), including original articles by Judge Yu himself, generally on broader criminal law issues.
Wang Dongmin (王东敏), judge of the SPC #2 Civil Division 法律之树 Issues of civil and civil procedure law

As a general (but not directed comment), if judges on the SPC express views on issues that may come before them, it would appear to raise issues similar to those that arise in the rest of the world–the propriety of extrajudicial writing–a sample of writings on this issue from other jurisdictions found here. Persons who can provide relevant information concerning relevant SPC ethics provisions, and restrictions in civil law rather than common law jurisdictions, please contact me.

What significance does China’s updated court law have?

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main premises of the Shenzhen intermediate court

The National People’s Congress (NPC) Standing Committee recently revised the Organic Law of the People’s Courts (People’s Courts Law, English translation available at Chinalawtranslate.com), the framework law by which the Chinese courts operate.  The NPC took the lead in drafting it, rather than the Supreme People’s Court (SPC). It retains the framework of the old law, incorporates legislative changes and many judicial reforms, leaves some flexibility for future reforms, and updates some of the general principles in the old law that apparently are on the dust heap of history (历史的垃圾堆).  Some of the principles newly incorporated reflect the reorientation of the Chinese courts, over the past 40 years while others represent long-term goals. Some provisions originally in earlier drafts have been deleted because the NPC Constitution and Law Committee considered that the time was not ripe for incorporating them.

The law contains some oddities, such as using two terms for judges, both “审判员” (shenpanyuan) (used four times) and “法官” (faguan)(used 38 times).  None of the official commentary has explained the reason for the mixed terminology.  My own guess is that it is linked to the use of “审判员” in the Constitution, but anyone with more insights into this is welcome to provide clarity.

The People’s Courts Law does not stand on its own. It is connected with other legislation, such as the Judges’ Law (amendments under consideration, with the drafting led by the SPC (this 2017 article criticizes some of the disconnects between the two) .the three procedure laws, the Civil Servants Law, as well as with Communist Party (Party) regulations.  As the courts are led by the Party,  its regulations also affect how the amended People’s Courts Law will operate when it becomes effective on 1 January 2019.

General Provisions

Some of the principles newly incorporated into the law reflect the reorientation of the Chinese courts over the past 40 years towards more civil disputes and an increasing number of administrative disputes, while others represent long-term goals.

Article 2 has relegated some of the dated language from what was previously Article 3  to the dust heap of history–references to the “system of the dictatorship of the proletariat,” “socialist property,” and the “smooth progress of the socialist revolution”). Those have been replaced by language such as “ensuring the innocent are not prosecuted,” “protecting the lawful rights and interests of individuals and organizations,” preserving national security and social order, social fairness and justice,  and the uniformity, dignity, and authority of the state’s legal system.

The principle of “ensuring the innocent are not prosecuted” makes its first appearance in the People’s Courts Law. I recommend this new article by a member of the Beijing Procuratorate, (in part) criticizing the poisonous effect of the “declared innocent” performance indicators of procurators on Chinese criminal justice.

On protecting the “lawful interests of individuals and organizations,” rapidly changing judicial policy and inconsistencies between criminal and civil law may mean that what is recognized as valid under civil law may be considered a bribe under criminal law.  Additionally, although the People’s Courts Law deletes language that distinguishes among owners of different types of Chinese companies, Chinese criminal law still does (see this chart setting out sentencing guidelines, for example).

Article 6, on judicial fairness, contains language on respecting and protecting human rights.  Foreigners may think it is directed at them, but it is more likely aimed at Chinese citizens.

Article 7 calls for the courts to carry out judicial openness, except as otherwise provided by law.  It is generally recognized that the courts are much more transparent than before, although specialist analysis in and out of China points out that there remains much to be done.

Article 8 incorporates judicial responsibility systems into the law (a prominent feature of the recent judicial reforms), described by two judges as the “sword of Damocles hanging over judges” (( 法官办案责任追究是时刻悬挂在法官们头上的“达摩克利斯之剑”) and a topic regarding which more dispassionate analysis is making its way into print.

Article 11 has important language about the right of the masses (i.e. ordinary people, that term is alive and well) to know of (知情),  participate in (参与·), and supervise the courts (according to law). However, the devil is in the details, as procedures for exercising these rights remain limited and sometimes lacking.

Organization (set up and authority) of the courts

Article 15 mentions some of the specialized courts that have been established over the last thirty years:

  • Maritime courts, legislation found here; translation of SPC regulations on jurisdiction found here.
  • Intellectual property courts, legislation found here, a summary of SPC regulations on jurisdiction found here.
  • Financial courts, see the SPC’s regulations on the Shanghai financial court.
  • The military courts still lack their own legislation (an earlier discussion of this issue is found here).

Article 14 relates to the special Xinjiang Construction & Production Corps (Bingtuan) courts  (not a specialized court under Chinese law, rather a court with its own special jurisdiction). Those interested can look to its NPC Standing Committee legislation,  SPC more detailed regulations, and Professor Pittman Potter’s research on these courts.

Article 16 incorporates the new China International Commercial Court’s first instance cases.

Article 18 incorporates the guiding case system into the law.

Article 19 crystallizes the SPC’s circuit courts (tribunals) into law (SPC regulations on the jurisdiction of those courts found here).

Articles 26 and 27 give courts some flexibility on their internal structure (courts in remote areas with few cases need not establish divisions, while large city courts can have multiple specialized ones. (Earlier blogposts have mentioned establishing bankruptcy divisions, for example.) Article 27 also mentions establishing (or not) comprehensive divisions (the administrative departments of courts, that according to a recent academic article can constitute close to half the headcount in a court and that some court leaders value more highly than operational divisions (the divisions hearing cases).

Trial Organization

This section of the law incorporates the current judicial reforms in several ways, including:

  • In Article 30, on the operation of collegial panels and requiring the court president to be the presiding judge when s(he) participates in a collegial panel;
  • Mentioning in Article 31 that dissenting opinions are to be recorded and that members of the collegial panel (or sole judge) are the ones to sign their judgments and the court is to issue it;
  • Article 34 gives space for eliminating the role of people’s assessors to determine issues of law, linked to Article 22 of the People’s Assessors Law;
  • Articles 36-39 includes new provisions on judicial/adjudication committees.  It consolidates current reforms by crystalizing specialist judicial committees (civil/criminal). An important reform is requiring the views of the judicial committee to be disclosed in the judgment (the view is binding on the collegial panel that has submitted the case.  These articles also include related stipulations such as quorum requirements and making judicial committee members responsible for their views and votes. (See previous scholarship on this important institution).
  • Article 37 incorporates into law previous SPC regulations on judicial interpretations, specifying that they must be approved by the full (plenary) SPC judicial committee while guiding cases can be approved by a specialized committee of the SPC judicial committee.

Court Personnel

This section of the law uses the terminology :”审判员” (shenpanyuan) and “法官” (faguan).  It also incorporates the personnel reforms set out in the judicial reform documents in several ways: quota judge system; selecting higher court judges from the lower courts; the roles of judicial assistants and clerks (changed from the old model); other support personnel in the courts; a new career track for judges, including judicial selection committees; preference to hiring judges with legal qualifications;

Article 47 requires court presidents to have legal knowledge and experience.  It has long been an issue that court presidents have been appointed more for their political than legal expertise. Under the Chinese court system, an effective court president requires both sets of skills.

It appears that the reform of having judges below the provincial level appointed by the provincial level is not yet in place,

Safeguards for the courts’ exercise of authority

This section of the law links with the Judges Law and the People’s Police Law (in relation to judicial police).

Article 52 gives courts the right to refuse to engage in activities that violate their legally prescribed duties (will this end the phenomenon of judges sweeping streets?);

Article 53 relates to reforms relating to enforcement of judgments (and the social credit system);

Article 55 relates to judicial (and judicial personnel training, both theoretical/(ideological) and professional)–some earlier blogposts have shed light on this topic.

Article 56 indicates that headcount for court personnel is subject to special regulation(人民法院人员编制实行专项管理, distinct from other civil servants.

Article 58 incorporates into the law President Zhou Qiang’s focus on the informatization (including the use of the internet and big data) of the Chinese courts.

Drafting process

The drafting process (the explanation and other articles have the details) reflects the drafting of much Chinese legislation (further insights about the process from Jamie Horsley here).  The SPC Party Group designated personnel to research specific issues and engage with the drafters. The drafting involved several years of soft consultation by the drafters of relevant Party and government authorities, plus limited public consultations. Among the central Party authorities consulted were: Central Commission for Discipline Inspection, Central Organizational Department (in charge of cadres); Central Staffing Commission (in charge of headcount); Central Political-Legal Committee.  On the government side: Supreme People’s Court and Procuratorate; State Council Legislative Affairs Office; Ministry of Finance, National People’s Congress Legal Work Committee. Investigations and consultations were also done at a local level.