Lawsuits against foreign countries in the Chinese courts

In March 2020, three Chinese lawyers filed civil lawsuits against (variously) the United States (US) government, President Trump, and other US government departments, attracting a great deal of attention on Chinese social media. The case that has attracted the most attention is the one in Wuhan, but according to Wechat articles, two different Beijing lawyers have also filed cases. Reports of these lawsuits are now making their way into English language media.

These lawsuits involve the issue of sovereign or state immunity of foreign governments, foreign embassies/consulates in China and their diplomatic staff, international institutions, and certain other persons and entities.  China’s position is absolute sovereign or state immunity– which means that states, diplomatic institutions and staff, as well as international institutions) are immune from suit and enforcement (unless they waive immunity). These issues have been discussed by practitioners and academics for quite a few years. (There have been academic discussions about China changing its position on state immunity and China has signed, but not ratified the United Nations Convention on Jurisdictional Immunities of States and Their Property, which adopts qualified immunity (not yet in force). I will not further discuss this issue as the law is quite clear.

What this blogpost will discuss is what others have not: the procedure (and the document in which the procedure is set out) by which a Chinese court decides whether to accept these cases.   This bureaucratic procedure gives greater insights into how the Chinese courts operate.

The procedure is set out in the 2007 Notice of the Supreme People’s Court on the Relevant Issues concerning the People’s Courts Acceptance of Civil Cases Involving Privileges and Immunities (the Notice) (最高人民法院关于人民法院受理涉及特权与豁免的民事案件有关问题的通知). The SPC issued the notice to the lower courts, including the military courts.

The Notice is intended to provide a clear standard to the lower courts when they encounter a case involving issues of state immunity. The system described below is one of the exceptions to the registration case filing system.

The notice itself (as I have written before about other types of judicial guidance documents) has an uncertain formal status under Chinese law, although as a practical matter it is binding on the lower courts. The core part of the notice follows:

To strictly enforce the provisions of the Civil Procedure Law of the People’s Republic of China and the relevant international conventions that China has acceded to and ensure the correct acceptance of civil cases involving privileges and immunities, this court has decided to establish a reporting system for cases involving privilege and immunity accepted by the people’s courts, and a notice is hereby issued as follows:

For a civil case filed with the people’s court where the defendant or third party is any of the following subjects that enjoys privilege or immunity in China, before deciding to accept it, the people’s court shall submit it to the higher people’s court with jurisdiction for examination; the higher people’s court agreeing on the acceptance shall submit its examination opinions to the Supreme People’s Court. Before the Supreme People’s Court makes a reply, no acceptance shall be made.) 保障正确受理涉及特权与豁免的民事案件,我院决定对人民法院受理的涉及特权与豁免的案件建立报告制度,特做如下通知:人民法院应在决定受理之前,报请本辖区高级人民法院审查;高级人民法院同意受理的,应当将其审查意见报最高人民法院。在最高人民法院答复前,一律暂不受理。

The entities listed include:

  • foreign countries;
  • foreign embassies and consulates in China and their staffs;
  • offices of the United Nations (constituent organizations) in China and their staff;
  • analogous organizations.

Judging by the number of page views (12,500) of the Notice in a recent Wechat article, many legal professionals (likely including judges) were unaware that the Notice existed.

The number of cases filed in China against foreign countries, diplomatic entities or persons is unknown.  One database I checked contained a case (with an English translation, that will be discussed below), and a case database has a case involving the International Red Cross, but a more litigious Chinese public means that cases likely have been filed, but I am unable to determine how many.

Explanation:

  1.  Under the Notice, the Supreme People’s Court (SPC) (most certainly with the concurrence of the Ministry of Foreign Affairs (MFA), although it is not so stated), has established an approval system for accepting civil cases involving the privileges and immunities of foreign governments, international organizations, etc.  This is one of several types of cases (of which I am aware) for which the SPC has an approval system.  Other types include cases involving the refusal to enforce foreign (foreign-related, and Hong Kong, Taiwan, Macau) arbitration awards (and related issues) and death penalty cases (the 死刑复核 system, although the nature of the review and approval are different in those cases).
  2. The court having jurisdiction over the case (generally an intermediate court), reports the case under consideration to its superior higher people’s court for review (request for instructions 请示).  If the higher people’s court concurs with the lower court’s decision to accept the case, it must report the matter to the SPC for review, and the lower court must not accept the case before the SPC has replied. According to other SPC guidance, the judicial committee of the higher court must discuss the issue before it is reported to the SPC.  This is illustrated in a reply by the SPC’s reply in a 2009 case, the Reply of the Supreme People’s Court to the Request for Instructions on Issues concerning Immunities in the Case of Disputes over a House Lease Contract between Li Xiaobo and the Regional Delegation for East Asia of the International Committee of the Red Cross.
  3.  The matter would be processed by the SPC’s Case Filing Division and then forwarded to the #4 Civil Division (the one considering cross-border civil and commercial cases). From the 2009 case, it is clear that the #4 Civil Division is the SPC division that replies to these requests for instructions. I would further surmise that in certain difficult cases, the SPC would consult with the MFA.
  4. I would surmise that in practice, the courts that may see these cases (Beijing’s Chaoyang District and one or more of the Shanghai courts) are familiar with these issues and reject them without seeking instructions.

What does this show about the Chinese courts?

First, the Chinese courts understand there to be a single correct view on certain issues.  This is seen more widely, with references in many documents to unifying judicial approaches to issues.

More importantly, it is one small illustration of the bureaucratic, hierarchical nature and operation (官本位) of the Chinese court system.  For important issues, such as those involving the death penalty, compliance with the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York Convention), and issues involving state immunity and the immunity of international organizations, the SPC’s view is that a high degree of control is needed. It is clear that the SPC’s understanding is that lower court judges are unlikely to be familiar with this technical but important issue.

Why is this issue important? As I wrote last year (about the China International Commercial Court), there are no small matters in foreign affairs (外事无小事)( Zhou Enlai’s saying). Both domestically and internationally, foreign-related matters, because they involve relations with other countries and the prestige of the Chinese state, are sensitive and important.

 

Controlling Judicial Headcount in the New Era

Screenshot 2020-03-19 at 4.32.02 PMIn the middle of March 2020, the Supreme People’s Court (SPC) Party Group convened a meeting (pictured above) to discuss the topic of “strengthen the awareness of the system, maintain the authority of the system, make stricter the management of the system, build a tougher court team, and work hard to build a model organization on which the Party Center can rely and that satisfies the masses (强化制度意识,维护制度权威,严格制度管理,打造过硬法院队伍,努力建设让党中央放心、让人民群众满意的模范机关).  Part of this phrase appeared in several of my blogposts in the past year (not surprisingly), and also can be seen across used by other Party and state institutions in 2019 (not surprisingly).  Although the discussion at the meeting centered around two topics–judicial headcount (bianzhi 编制) and selecting leaders (领导干部选拔任用, nomenklatura)–this short blogpost will focus on judicial headcount (bianzhi).

Chinese law, unlike legislation in many countries (see German legislation, for example), does not state clearly how many judges are on its highest court. It is also unclear how many persons work in the operational divisions of the SPC (the ones that decide cases) vs. the administrative (general, 综合部门) of the SPC.  As I wrote in an earlier blogpost, it is unclear how many judges in the SPC have been “borrowed” from the lower courts.  And as I wrote earlier about the SPC judicial committee, it appears that likely that the Central Staffing Commission regulates the number of persons who can be SPC vice presidents. I surmised that Justices Hu Yunteng, Liu Guixiang, Pei Xianding, and He Xiaorong were given the title of  “专委“ (full-time members of the judicial committee) to give them a bureaucratic rank equivalent to being an SPC vice president, with attendant privileges. The bianzhi system supplies the reason.

The bianzhi system provides insights into the thinking of the Chinese political leadership about how it views legal institutions, including the courts. It appears to treat the SPC as just another Party/state institution whose functions, internal institutions, and personnel the Party must set (the jargon in Chinese is the “three sets”(“三定”)(职能配置、内设机构和人员编制). It also shows the bureaucratic nature (官本位) of the SPC.  The bianzhi system illustrates that the SPC has a different role in the Chinese political system from the supreme courts of other major jurisdictions. This discussion and other ongoing discussions within the SPC on its “three sets” plan illustrates how the Party is reshaping legal institutions in the New Era. The Supreme People’s Procuratorate (SPP) has already been reshaped. This is part of the post-18th Party Congress (and 19th Party Congress) reshaping of Party and state institutions, to ensure the correct implementation of Party leadership.

The bianzhi system

The bianzhi system is a system for creating and eliminating Party/government/state-owned enterprise/institutional posts by identifying the necessary functions the system needs to fulfill. Those in the SPC are part of the government (政务) civil service/Party/government) system.  The bianzhi system is administered by the Central Staffing Commission. The Central Staffing Commission has an office (常设办事机构) that administers staffing matters, and it, in turn, is administered by the Party’s Organization Department.  Those whose posts are within the bianzhi system have civil service benefits and are said to “eat imperial grain.” (More scholarship on the bianzhi system can be found here and here). I should mention, however, that since 1982 the bianzhi system has given those in the political-legal institutions special status and special (专项) bianzhi. In 2015, the Central Staffing Commission issued a document on reforming the treatment of political-legal staff, including judges, which I mentioned in my 2019 article on transparency.

As to why the SPC Party Group discussed bianzhi in March, 2020, it is linked to new regulations on bianzhi work issued by the political leadership in August, 2019 (中国共产党机构编制工作条例) and apparently ongoing work on reshaping the internal institutions of the SPC, linked to those new regulations. (For those interested in cross-straits comparisons, please see analogous legislation from Taiwan.

In 2018, the SPC and the Central Staffing Commission issued regulations on the bianzhi of the lower courts, and some of the same principles in those regulations can be expected to applied when the SPC draws up its own “three-set” plan.  Those regulations were intended to control the number of internal institutions within a court, allocate more personnel to operational divisions, and standardize the functions and titles of internal institutions across provinces and nationally.  From my informal discussions with leaders in some busy local courts, they say that relying on bianzhi staff does not give them enough personnel to run their court, and contract staff are needed.

The principles for bianzhi work, as highlighted in the 2019 regulations are: 1) Upholding Party leadership over bianzhi work, the Party shall exercise centralized and unified leadership over bianzhi work, upholding and protecting General Secretary Xi Jinping as the core…( 坚持党管机构编制。坚持党对机构编制工作的集中统一领导,坚决维护习近平总书记党中央的核心); high quality in coordination with efficiency; the binding nature (like steel) of bianzhi (坚持机构编制刚性约束); and bianzhi must be slim and healthy.

The press report only vaguely hints on what the reshaping of the SPC will look like. President Zhou Qiang mentions a “trial centered” internal institutional model and personnel model, strengthening internal responsibility and operational matters, to ensure that the people’s courts can fulfill the demands of their responsibilities according to law.  Whether this means that more headcount will be allocated to the operational divisions of the SPC rather than the General Office and other administrative offices is unclear.  Whether it means that some of the smaller divisions of the SPC will shrink further is unclear. And whether it means that fewer people will be “borrowed,” I have my grave doubts.

Another unknown is whether the SPC’s “three sets” plan will be made available to the general public.  My guess is no (some approved plans are posted on the Central Staffing Commission’s website), but we are likely to see President Zhou Qiang issue a press release or discuss it at a news conference, as Chief Procurator Zhang Jun did last year, but not for some time.

A fundamental question not raised by the reports, but perhaps was in the minds of the participants in the meeting, is whether the bianzhi system, implementing the above principles, is consistent with some of the  SPC’s policy goals. One that comes to mind is being able to accommodate changes in where personnel is needed–a policy of rigidly enforcing bianzhi restrictions would be unhelpful.  After all, SPC leaders need to be “problem-oriented” (坚持问题导向), that is address relevant practical issues facing the court system as well as being politically correct, so that may mean that headcount needs to shift among divisions from time to time.