The Supreme People’s Court (SPC) (and its constituent divisions, bureaus, and offices) guide the lower courts on substantive and procedural law in multiple ways. It does this under its authority to supervise (监督) the lower courts under Article 10 of the Organic Law of the People’s Courts. One of those ways is through issuing documents described in a recent blogpost as judicial normative (司法规范性文件) or regulatory documents. A recent blogpost looked at one category of them–opinions (意见). My focus is on how these documents are used to give guidance on substantive or procedural legal issues, rather than matters of court administration. The SPC has long used these types of documents, as I discussed in my 1993 article. Observation reveals that these are sometimes issued in the name of the operational divisions and sometimes offices, rather than the SPC itself, but often with a document number indicating that it was issued by one of the operational divisions of the SPC.
In late 2016, the SPC’s People’s Court Press published a collection of responses to requests for instructions in the book pictured above (some are entitled fuhan 复函 and others dafu 答复. Some had been previously published (in publications edited by SPC functional divisions) and others were published for the first time, with the editors describing them as ‘usually called quasi-judicial interpretation documents’ (往往被称为准司法解释性文件) and ‘a necessary supplement to judicial interpretations’ (它是对司法解释一种必须的补充). The editors further noted that later judicial interpretations will supersede the documents in the book.
These types of documents are used by the Communist Party and government as well. So using these forms of documents signals one of the many administrative aspects by which the SPC operates. In fact (as I have written before), the SPC has issued its own measures on official documents (人民法院公文处理办法), further implementing the Party and government’s regulations on official documents (党政机关公文处理工作条例). The SPC, like other Party and state organs, handles requests for instructions (qingshi 请示) (also translated as requests for advisory opinions). A request for instructions is a type of document submitted by a subordinate to a superior state or Party organ to request instructions or approval, and is therefore a typical Chinese administrative procedure.
One subcategory of these responses are the ones issued by the SPC’s #4 Civil Division, the division focusing on cross-border commercial and maritime issues. These are responses to request from instructions (请示) from provincial-level courts (including the higher courts of Beijing, Shanghai, Tianjin, and Chongqing), as required by the SPC’s Prior Reporting system for arbitration matters.
The procedure is for the most part more regulated by custom than by written guidelines, although several SPC documents address the Prior Reporting system (see this useful article, with a description of ongoing issues and recent reforms permitting counsel to be heard). For those unfamiliar with the SPC’s Prior Reporting system, judgments/rulings in which a lower court intends to refuse the (recognition and) enforcement of a foreign-related, foreign arbitral award or agreement (see a further explanation here) or annul foreign-related awards. The response is binding on the lower court regarding the particular case. The #4 Civil Division regularly publishes these replies (some entitled 答复 and others entitled 复函) (and the reports from the lower courts) in its periodical China Trial Guide: Guide on Foreign-Related Commercial and Maritime Trial （中国审判指导丛书：涉外商事海事审判指导) (one issue pictured below). On the matter of terminology, two knowledgeable persons said there is no substantive difference between the two documents. There is no transparency obligation, but knowledgeable persons say that most are published.
These responses are connected with two aspects of the last blogpost–case law and judicial interpretations. Arbitration lawyers discuss these responses as a particular form of case law in, for example, law firm client alerts or in other publications. It is understood that most of the replies in the area of foreign-related and foreign arbitral awards are published. Some have been translated into English. The principles in these responses may eventually find their way into judicial interpretations or other SPC policy documents (such as opinions).
I had mentioned in an earlier blogpost that some persons on the SPC had earlier proposed that the procedure for seeking instructions (请示) be proceduralized, while others (academics) had proposed that the procedure be entirely abolished。 However, the procedure is mentioned in the 2017 SPC responsibility implementing opinion and certainly remains in operation even after the latest round of judicial reforms. Sometime in the future I will address how the procedure for seeking instructions operates in other divisions of the SPC.
This illustrates that the vision for the reformed SPC remains a court with administrative characteristics（官本位), in this situation dealing with Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York Convention) (and analogous) issues through a traditional administrative system.