Supreme People’s Court’s 2020 judicial interpretation agenda

Screenshot 2020-04-02 at 2.21.48 PM

On 17 March 2020, the Supreme People’s Court (SPC)’s General Office issued a document (English translation here) setting out a list of 49 judicial interpretation projects for which the SPC judicial  committee gave project approval.  This document sets out the responsibilities of various divisions and offices of the Supreme People’s Court (SPC) in undertaking an important part of the SPC’s work, promulgating judicial interpretations for 2020. As discussed in two blogposts in 2018 and two blogposts in 2019, the SPC has a yearly plan for drafting judicial interpretations, as set out in its 2007 regulations on judicial interpretation work. The plan is analogous to the legislative plans of the National People’s Congress (NPC) and its Standing Committee.

Judicial interpretations are binding on the SPC itself and the lower courts, and fill in some of the interstices of Chinese law (further explained here).  One of my articles in the production pipeline provides more details about the drafting process in one area of law.  It is one of the more controversial powers of the SPC, where the gap between the views of the academics, lawyers and those inside the system is particularly large.  I have my views on it as well, but that is a topic for another day and perhaps another article.

“Project approval” is an initial procedure used by regulatory authorities of all types, Party and state, to approve projects. For the SPC, it reflects one of the “planned economy” aspects of the way it operates. This is the third year that the SPC has made this list public, and it is a concrete step forward in increasing the SPC’s transparency. I’m grateful to Chinalawtranslate.com for translating the list so quickly. Of those projects, 38  with an end of 2020 deadline and 11 have a deadline set for the first half of 2021.   Some brief comments (some longer than others) follow below. Please see my previous blogposts commenting on the 2018 and 2019 agendas. Mark Cohen of Berkeley Law School (and Chinaipr.com) has already commented on the projects in the area of intellectual property law, so for those I will link to his comments.

As I commented previously, close observation reveals that some interpretations were listed previously, indicating that drafts were not ready for approval last year. Some of the reasons for slippage are likely to be:

  • the issues turn out to be more complicated than anticipated (substantively, procedurally or institutionally);
  • judges have less time to work on judicial interpretation drafting, with an increased caseload and document study;
  • many experienced SPC judges have been dispatched to circuit courts, leaving fewer at headquarters to work on judicial interpretations; and
  • timing may also be a factor. The SPC wants judicial interpretations to be in place for some time, and if the greater environment is not conducive for issuing the interpretation, or additional issues are seen, it will be postponed.

If an SPC division or office is listed as responsible, it means it is on its work agenda for that year.  (I surmise) the head (or heads) of the related responsible divisions or offices need to provide an explanation for slippage.

The 2007 SPC regulations on judicial interpretation work do not require drafts to be made public, but comments may be solicited from society if related to the interests of the general public (masses) or if it is a major difficult issue,  as decided by the executive vice president or president of the SPC, after an initial review by the SPC vice president in charge of that particular area of law (涉及人民群众切身利益或者重大疑难问题的司法解释,经分管院领导审批后报常务副院长或者院长决定,可以向社会公开征求意见). This procedure provides yet another glimpse into the bureaucratic nature (官本位) of the SPC.

Type 1 (to be completed before the end of 2020)

1. Interpretation of Several Issues on the Application of Law in Cases of Pre-trial Preservation of Assets. Responsibility: Case Filing Division. The deadline for this has been postponed for several years in a row. It was included in the 2019 and 2018 lists. This interpretation will provide more detailed rules for pre-filing injunctions, for non-intellectual property (IP) cases.

2. Provisions on Several Issues Relating to Preventing and Punishing Fake, Malicious, and Frivolous Litigation (关于防范和惩治虚假诉讼、恶意诉讼及无理缠诉若干问题的规定).  Responsibility of the Case Filing Division, Research Office. Again, it previously had a deadline of 2019. The Research Office has been added as a responsible party.  The Research Office is a unique institution at the SPC–further comments on that at some later date.

3. Decision on Revising the “SPC and SPP Interpretation on the Application of Law in Handling Cases of Criminal Endangerment of Food Safety,” Responsibility of the 1st Criminal Division, and similarly previously had a 2018 and 2019 deadline.

4. SPC, SPP Interpretation on Several Issues on the Application of Law in Handling Cases of Criminal Corruption (2). Responsibility of the #2 Criminal Division

5. SPC and SPP Interpretation on Several Issues on the Application of Law in Handling Cases of Criminal Dereliction of Duty (2) Responsibility of the #2 Criminal Division.  Previously with an end of 2019 deadline.  For those wishing to understand some of the issues delaying this interpretation, see this recent article (in Chinese) by Professor He Jiahong of Renmin University Law School.

6. Decision on Revising the “SPC Interpretation on the Specific Application of Law in Criminal Cases of Money Laundering” (New Item) Responsibility of the #3 Criminal Division. I surmise that this is directly linked to the Financial Action Task Force (FATF) mutual evaluation report of China, issued in 2019.

7. Interpretation on Specific Issues on the Application of Law in Handling Criminal Cases of Loan Fraud (New Item). Responsibility: #3 Criminal Division.  This means that lower court judges frequently encounter issues with this.

8. Interpretation on Several Issues Regarding the Application of Law in Handling Criminal Cases of Endangering Tax Collection and Management: Responsibility: #4 Criminal Division

9. Interpretation of Several Issues on the Application of Law in Cases of Administrative Crimes (New Item)

To be handled by: 4th Criminal Division

10. Interpretation of Several Issues on the Application of Law for Restricting Commutation during the Reprieve Period for a Suspended Death Sentence. Responsibility: #5 Criminal Division

11. Interpretation of Several Issues on the Application of Law in Hearing Cases of Objections to Enforcement: Responsibility: #1 Civil Division.

12. Decision to Revise the “SPC Provisions on Several Issues on the Application of Law in Hearing Civil Cases of Private Lending (New Item) Responsibility: 1st Civil Division. Likely this needs to be amended to incorporate new policies regarding “professional” lenders(see the related SPC policy document Opinions on Several Issues Regarding the Handling of Criminal Cases of Illegal Lending translated here on Chinalawtranslate.com).

13. Interpretation on Several Issues on the Application of Law in Handling Cases of the Acquisition, Management and Disposition of Non-performing Assets by Financial Asset Management Companies

To be handled by: 2nd Civil Division

14. Provisions on Transformation of Preservation Measures for Debtors’ Assets after Acceptance of Bankruptcy Applications (New Item) Responsibility: 2nd Civil Division. Likely linked to the policy of encouraging certain enforcement cases to be transferred to the bankruptcy division before all assets are dissipated, mentioned in this blogpost.

15. Interpretation on Several Issues of Applicable Law in Hearing Cases of Disputes Over Security (New Item) Responsibility: 2nd Civil Division. This refers to disputes over guarantees, pledges, mortgages, and other types of security over assets, likely incorporating new principles (this article discusses the draft) set out in the SPC’s 2019 Conference Summary on Civil and Commercial Work.

16. Provisions on Evidence in Intellectual Property Rights Proceedings Responsibility: #3rd Civil Division, #1 Civil Division, Research Office, Intellectual Property Court.  Mark Cohen’s comments seen here.

17. Interpretation of Several Issues on the Application of Law in Patent Authorization Confirmation Cases Responsibility: 3rd Civil Division, Intellectual Property Court. Mark Cohen’s comments seen here.

18. Interpretation of Several Questions on the Application of Law in Hearing Cases of Disputes regarding Infringement of Trade Secrets: #3 Civil Division, #1 Criminal Division, Intellectual Property Court. Mark Cohen’s comments seen here.

19. Provisions on Several Issues on the Application of Law in Cases of Disputes over Pharmaceutical Patent Linkage(New Item) be handled by: 3rd Civil Division, Case Filing Division, Intellectual Property Court. Mark Cohen’s comments seen here.

20. Interpretation on Several Issues Regarding the Application of Law in Hearing Disputes over Ship Crews’ Labor Service Contracts Responsibility: #4 Civil Division

21. Interpretation on Several Issues Regarding the Application of Law in Hearing Cases of Disputes over Forestry Rights. Responsibility: Environmental Division

22. Interpretation on Several Issues Regarding the Application of Law in Hearing Environmental Tort Disputes (2)(New Item)  Responsibility: Environmental Division

23. Provisions on Several Issues Regarding the Application of Law in Hearing Administrative Cases of Compensation for Rural Collective Land Expropriation (New Item) Responsibility: Administrative Division.  There are many cases on this.

24. Provisions on Several Issues Regarding the Application of Law in Hearing Cases of Administrative Compensation. Responsibility: Administrative Division

25. Provisions on Several Issues on the Application of Law in Cases of Hearing Civil Controversies during Administrative Litigation.Responsibility: Administrative Division

26. Interpretation on Several Issues Regarding the Application of Law in Hearing Retrials of Cases Involving Disputes over Apparent Agency. Responsibility: Trial Supervision Division

27. Interpretation on Several Issues Concerning the Application of Law in Handling Cases of Share Equity Enforcement. Responsibility: Enforcement Bureau

28. Decision on Amending the “Supreme People’s Court’s Several Provisions on Publishing the List of Information on Judgment Defaulters”(New Item) Responsibility: Enforcement Bureau.  I surmise that some of the issues published in responses to Zhou Qiang’s mailbox will be incorporated.  Jeremy Daum is likely to have further comments on this draft interpretation.

29. Decision on Amending the “SPC’s Several Provisions on Restricting High Consumption and Related Consumption of Persons Subject to Enforcement”(New Item) Responsibility: Enforcement Bureau. Jeremy Daum is likely to have further comments on this draft interpretation.

30. Interpretation of Several Issues on the Application of Law in Handling Cases Connecting Civil and Criminal Matters

To be handled by: Research Office

31. Interpretation of Several Issues Related to the Application of the “P.R.C. Civil Code” (1) (New Item) Responsibility: Research Office. I surmise this will be a major project of the SPC.

32. Interpretation on the Application of the “P.R.C. Criminal Procedure Law”. Responsibility of the Research Office. Subject of my forthcoming article.

33. Decision Regarding Several Issues on Judicial Technology Work. Responsibility: Research Office, Trial Management Office, Judicial Equipment Administration Bureau

34. Provisions on Several Issues Regarding the People’s Courts’ Forensic Evaluations. Responsibility: Research Office, Trial Management Office, Judicial Equipment Administration Bureau

35. Interpretation on Several Issues Regarding the Application of Law in Labor Dispute Cases Involving Hong Kong, Macao and Taiwan Compatriots (New Item) Responsibility: Research Office. The Research Office has departments focusing on Hong Kong and Macao and Taiwan related issues. I surmise the #1 Civil Division will also be involved, as one of their responsibilities is labor issues.

36. Provisions on Several Issues Concerning the People’s Court’s Disclosure of Trial Processes Online。 Responsibility: Trial Management Office

37. Provisions on the Application of Law in Hearing Cases of Civil Disputes Arising from Monopolistic Conduct (2)(New Item)

To be handled by: Intellectual Property Court, #3 Civil Division

38. Work on Cleaning up Judicial Interpretations Related to Civil Code Responsibility: Research Office and Relevant Divisions. Likely to be a big task, determining which existing judicial interpretations having provisions inconsistent with the Civil Code (and the principles in the forthcoming judicial interpretation).

Type 2 (To be completed in the first half of 2021)

1. Provisions on Several Issues Regarding the Specific Application of Law in Hearing Cases of National Defense Patent Disputes (New Item) Responsibility: #3 Civil Division, Intellectual Property Court.  Likely to be because of the policies related to Civil and Military Integration (Chinese article here), English analysis of related issues, seen here. I surmise the Legal Department of the Central Military Commission

2. Interpretation of Several Issues Regarding the Application of Law on Punitive Damages for Intellectual Property Infringements: Responsibility: 3# Civil Division, Intellectual Property Court.

3. Interpretation of Several Issues Regarding the Application of Law in Hearing Civil Cases of Unfair Competition(New Item)

To be handled by: 3rd Civil Division, Intellectual Property Court. Mark Cohen’s comments seen here.

4. Provisions Regarding Several Issues in the Trial Procedures for Administrative Cases. Responsibility: Administrative Division

5. Provisions on Several Issues Regarding the Review of Normative Documents below the Rules Level as Part of Administrative Litigation. Responsibility: Administrative Division.

6. Provisions on Several Issues Regarding the Application of Law in Hearing Administrative Cases Involving Higher Education(New Item) Responsibility: Administrative Division.  There are many cases in this area.

7. Provisions on Standards for Changing Judgments in Retrial of Criminal Cases(New Item) Responsibility: Trial Supervision Division. Related research has been undertaken for some time, as described in my forthcoming article.

8. Interpretation on How to Determine “Heinous Circumstances” as Used in the First Paragraph of Article 50 of the Criminal Law [Involving limits on commutation of suspended death sentences](New Item).Responsibility: Trial Supervision Division

9. Provisions on Several Issues Regarding the Application of Law in Hearing Cases of Third Party Opposition. Responsibility: Research Office

10. Interpretation on Several Issues Regarding the Application of Law in Hearing Disputes over Personal Information Rights. Responsibility: Research Office

11. Provisions on Issues of the Specific Application of Law in Hearing Cases of Disputes over the Rights in New Varieties of Plants(New Item) To be handled by: Intellectual Property Court, 3rd Civil Division. Mark Cohen’s comments seen here.

 

 

 

 

 

Leave a Reply

Please log in using one of these methods to post your comment:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s