Monthly Archives: May 2019

criminal law

Practitioners’ Guide to China’s Criminal Law

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Criminal Law Treatise

This newly published volume 刑法注释书（Criminal Law Treatise), the first volume in a series of treatises for practitioners, is critical for understanding how Chinese judges and other practitioners approach China’s Criminal Law.  This reference work was edited by He Fan, head of the planning section of the Supreme People’s Court Judicial Reform Office.  He has a PhD in criminal law.  Earlier in his career was a policeman and a criminal court judge, so he has insights from the world of practice about what judges and others who need to understand the law on a particular crime correctly (正确). The idea from the volume arose from a project that he did with the Shanghai Higher People’s Court. And He Fan notes in his article introducing the book that the organizing principle for this book is influenced by a volume on Criminal Law edited by Hsu Yu-hsiu, former grand justice on Taiwan’s Constitutional Court and a handbook on search and seizure by Taiwan National University Professor Lin Yu-Hsiung. Both books draw on the approach of traditional Chinese criminal law books of setting out the statute provisions with annotations (注释).

The book assembles in a single deceptively small volume the principal sources of law and guidance that those involved in the criminal justice system in China need to access.

The organizing principle for the book is as follows:

  1. legislation–article of the law and any prior versions of the article, with any explanation (说明), including explanations of the amendment (立法-要点注释);
  2. Related legislation (相关立法);
  3. legislative interpretations (立法解释); (these are binding and have a higher status than judicial interpretations);
  4. Legislative opinions of an interpretive nature (立法解释性意见)–responses by the Legislative Affairs Commission (and its Criminal Law Office) on issues of criminal law.  These do not have a formal status under Chinese law, but are authoritative guidance. (Thank you to Changhao Wei, NPC Observer, for this comments on this) ;
  5. judicial interpretations (司法解释) (these can be by the SPC, the Supreme People’s Procuratorate (SPP), or the two together. These have a formal legal status under Chinese law and the SPC and SPP have declared that they have the status of law;
  6. judicial guiding documents (司法指导文件)–these are documents providing guidance on criminal law issues from the Central Political-Legal Commission, the SPC and its Research Office, various criminal divisions, SPP and its Policy and Research Office, and other related documents (as mentioned in the previous blogpost, these types of documents lack a formal status, but are highly authoritative);
  7. judicial interpretations–annotations司法解释-注释 and judicial guiding documents–annotations 司法指导性文件-注释–these are related “understanding and application” documents (相关文件理解与适用) authoritative explanations by the drafters of judicial interpretations and judicial guiding documents (previous blogposts have drawn on these “understanding and application documents”);
  8. If multiple judicial interpretations have been issued on an issue, annotations to each;
  9. Guiding cases–courts 指导性案例-法院 (translations available at the China Guiding Cases Project);
  10. Guiding cases–procuratorate指导性案例-检察 (translations of many available at Chinalawtranslate.com);
  11. SPC bulletin cases 法院公报案例 (I have written about the hierarchy various types of SPC approved cases in my Tsinghua China Law Review article);
  12. Court reference cases 法院参考案例 (these refer to the cases in Reference to Criminal Trial, the publication of the five criminal divisions of the SPC), also mentioned in my article and a January, 2018 blogpost;
  13. public security documents ( 公安文件)–documents of the Ministry of Public Security (MPS), the MPS legal affairs bureau, the economic crime investigation bureau and other related guidance documents).
“See inside this book”

 

Court Operations, judicial documents, judicial transparency

How the Supreme People’s Court guides the court system through judicial documents (1)

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Screenshot 2019-05-19 at 10.46.26 AM
collection of post 18th Party congress judicial policy documents, edited by the SPC’s General Office

I recently participated in an academic conference in which one speaker discussed Chinese judicial documents (other than judicial interpretations).  The speaker’s view was very critical of them, a view shared by a good number of academics in China. A recent law review article published in a US law journal mischaracterized at least some of these documents.  I have my own views and understanding of what these documents mean, based on many years reviewing these documents and long discussions with knowledgeable people “who cannot be named” and whose help can only be indirectly acknowledged. I have discussed SPC judicial documents in an earlier blogpost. I also discuss them in my book chapter on judicial transparency, and book chapter on the Supreme People’s Court’s (SPC) policy document on free trade zones, the Opinions on Providing Judicial Guarantee for the Building of Pilot Free Trade Zones (最高人民法院關于為自由貿易試驗區建設提供司法保障的意見 FTZ Opinion). This blogpost melds excerpts from those book chapters.

It is a fact that the Supreme People’s Court (SPC) issues a broad range of documents that guide the lower courts in addition to its judicial interpretations. The SPC creates and transmits to the lower courts new judicial policy in the form of an “opinion” (意见), which is also a type of Party/government document.  This same term is used for documents jointly issued by the SPC and institutions not authorized to issue judicial interpretations. This blogpost focuses solely on SPC policy documents.

The SPC classifies opinions as “judicial normative documents” (司法文件 or 司法规范性文件(the title of this Wechat public account) and sometimes judicial policy documents” (司法政策性文件).  As I’ve written before, this fuzzy use of terminology is not unusual. An (authoritative) follower has proposed using the English translation “judicial regulatory document” for 司法规范性文件.  An authoritative person (who cannot be named), concurred with the follower’s proposal. Those with views on the translation point should use the contact function or contact me by email.

These documents are issued with the identifier “法发” (fafa), indicating that they have been approved by the judicial committee of the SPC or one or more senior SPC leaders.  Transparency is better than before (and the SPC has issued documents encouraging greater transparency) but there is no strict publication requirement, unlike judicial interpretations.

 The FTZ Opinion is an example of how the SPC supports the Party and government by issuing documents to support important initiatives. This is a subject that I have written about on this blog before. These SPC policy documents signal an evolution of judicial policy, establish new legal rules and direct the lower courts. Lower courts implement these measures in various ways, including in their court judgments or rulings and to further implement SPC judicial policy documents.  Local courts may issue implementing guidance, as SPC policy is intended to be a framework under which local courts issue more specific measures to deal with specific local issues.

The FTZ Opinion signals evolving judicial policy to FTZ courts in a number of areas, including on civil and commercial law issues. For example, it states that courts should
support FTZ finance leasing companies and should respect the agreement of cross-border parties regarding jurisdiction and governing law. It states that a finance lease contract shall not be determined to be null and void because relevant procedures had not been performed.

The drafting of these judicial policy documents, such as the FTZ Opinion, follow a drafting process similar to judicial interpretations. The usual practice in drafting judicial interpretations is for the SPC to engage in extensive research and fieldwork, consult with related institutions within the SPC and external institutions when relevant (another academic article stuck in the production pipeline will describe the process in more detail).

The drafting team for the FTZ Opinion engaged in several years of field work, established an FTZ Research Base in Shanghai, held a Judicial Forum for the Pilot Free Trade Zones, solicited the views of experts and local courts, in the areas where FTZs are located. The SPC’s  #4 Civil Division, in charge of foreign and cross-border related civil and commercial cases and related issues, took primary responsibility for drafting the opinion. The reason that the #4 Civil Division took the lead was that much of the substantive parts of the FTZ Opinion relates to foreign trade, foreign investment, and cross-border arbitration issues. Earlier Shanghai local court guidance was incorporated into the FTZ Opinion. Once the draft was relatively advanced, it was circulated to other relevant areas of the SPC for comments. As the team of judges who led the drafting focus on cross-border civil and commercial issues, they sought comments on related issues from the Research Office, likely one of the criminal divisions and the administrative division. Consistent with general judicial practice (and SPC rules), the FTZ Opinion was not issued for public comment. The drafting of the FTZ Opinion is one small example of the quasi-administrative way in which the SPC operates.

Rules or policies included in SPC judicial policy documents may eventually be crystallized in SPC judicial interpretations and eventually codified in national law, but
that process is slow and cannot meet the needs of the lower courts. The lower courts need to deal properly (politically and legally) with outstanding legal issues pending a more permanent stabilization of legal rules.  This is true for judicial policy documents in all areas of the law, not only in commercial law.

Women in the judiciary

How many women judges does the Supreme People’s Court have?

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Screenshot 2019-04-16 at 10.12.57 PM.pngAs I described in a detailed blogpost last December (2018), the SPC intends to increase judicial transparency. However, that does not yet extend to the gender ratio of judges at the SPC.  In a recent academic article, I discussed transparency concerning information on the number of judges in a court, including the SPC (excerpted below).

The SPC has been relatively late in expanding transparency concerning its own judges for reasons explored below. Information concerning the number of judges on the SPC was not readily available until July, 2017, when reports on the implementation of the quota judge system in the Supreme People’s Court revealed that there had been 642 judges,with 367 judges designated as quota [员额制] judges. The SPC does not list the number of contract staff or other support staff on its website. When the circuit courts were established, the SPC began to publish basic information concerning all judges. Some commentators suggest that the sensitivity concerning releasing data about the number of SPC judges may relate in part to the connection with the death penalty, because releasing this information would give an indication of the number of judges engaged in death penalty reviews and possibly to the number of annual executions. Another concern that has been mooted was that minimising the transparency of information related to SPC judges would reduce media focus on the resignation of judges from the SPC.
As to the number of judges in lower courts, that appears to be increasingly transparent, as many courts begin to list the number of personnel on their staff. For example, the website of one of the Shenzhen district courts states: ‘The court has a total of 629 people on staff, among which 391 are permanent staff (including 282 political-legal staff, 109 ordinary staff); contract staff 238, 160 judges; 51 judges with graduate training, 104 university graduates;
98.1% of the judges are university graduates or above’. Corresponding information is not yet available on the SPC website.

As I discussed in an earlier blogpost, not all of the professional staff at the SPC is permanently employed by the SPC,  as the SPC compensates for headcount limits imposed by the Central Staffing Commission (another institution that awaits clear exposition in English) by borrowing staff from the lower courts.  Lower courts compensate for headcount limits by hiring contract support staff.  (I look forward to someone setting out in clear language (Chinese or English) the way in which Chinese courts are funded in the new era).

It could be that transparency concerning the number and identities
of judges is linked to transparency developments by the Central Staffing Commission [中央机构编制委员会办公室], a Party-State organisation that regulates staffing in Party and state entities. As suggested below, the entire regulatory structure concerning court staffing, and the control of staffing of political legal
institutions does not itself appear to be very transparent.
….In 2015, the Central Staffing Commission issued a document on
reforming the treatment of political-legal staff, including judges, but the
document itself has not been made public.

So in March (connected with a presentation I gave in Beijing at Peking University’s Yenching Academy’s conference on the role of women in China), I did an informal survey.  As you can see from the judges listed among SPC leaders, only Justice Tao Kaiyuan (pictured above) is a woman. Screenshot 2019-05-07 at 8.44.23 PM.png

There have previously been other women SPC vice presidents, including Justice He Rong, now head of the Supervision Commission and deputy Party Secretary of Shanxi Province (apparently she has been transferred to that role on the principle of cadre rotation).  Justice Huang Ermei has retired.

Some of the many reasons that the SPC has so few women in senior leadership positions is that in the first years that Chinese law schools accepted students, relatively few women studied law.  Moreover, women in China face an earlier retirement age. And then there is the issue of having the correct portfolio of leadership skills for the system.

Based on my unofficial research, the civil divisions appear to be at least 50:50.  The #4 Civil Division has a woman as head of the division (Judge Wang Shumei), who has replaced Judge Zhang Yongjian (apparently he will be retiring), with Judge Gao Xiaoli (also a woman, and featured in these blogposts) remaining as deputy head of the division.  It appears that the SPC has an increasing number of women in deputy division head roles (apart from women academics, such as Wang Xiumei,who are working at the SPC under the guazhi program. Scholars working at the SPC under that program are designated as deputy division heads). It is understood that the trial supervision division has more women, while the administrative division has more men.  The five criminal divisions are said to have more men than women.  The enforcement bureau is said to have more men than women.

One informed person suggested that at least some of the reasons relate to the need to travel when working in the criminal divisions, and women having to fulfill traditional gender roles in taking care of children and the elderly.  A more scholarly analysis of this issue is found here, for those with the tools to access academic articles behind paywalls.

As to future trends, most Chinese law schools have more women than men students, with some lower courts trending to 50:50 men/women judges. Recruiting judges from current judicial assistants likely to mean the gender balance moves increasingly towards more women, particularly as all studies I have seen, including one done in 2018, involving judges resigning indicate many more men leaving the judiciary than women.  At the lower level there is an increasing number of women court presidents. Professor Sida Liu of the University of Toronto and two collaborators published the academic study on the feminization of the Chinese judiciary cited above and summarized here.