The month of April saw the Supreme People’s Court (SPC) issue many judicial policy documents, consistent with the commitment made in January 2020 to Party leadership to better serve the Party and state.
To the outside observer, a document issued on 1 April appears to signal the way that the Chinese judicial system will develop in the post-19th Chinese Communist Party (Party) Congress Fourth Plenum New Era. The document is entitled Opinions of the Supreme People’s Court on Thoroughly Implementing the Spirit of the Fourth Plenum of the 19th Party Congress to Advance the Modernization of the Judicial System and Judicial Capacity (最高人民法院关于人民法院贯彻落实党的十九届四中全会精神推进审判体系和审判能力现代化的意见) (Implementing the 4th Plenum of 19th Party Congress Opinions). It implements the “Implementing Opinions on Comprehensively Deepening Reform in the Political-Legal Field” (the text of this January 2019 document 关于政法领域全面深化改革的实施意见 has not been issued publicly) and “The Fifth Five-Year Reform Outline of the People’s Court (2019-2023) and obviously, the Decision of the 4th Plenum of the 19th Party Congress (4th Plenum Decision). The fact that the first document has not been issued publicly means that outside observers can identify its implications only through summaries in the press and implementing documents. The Party’s regulations on transparency (explained here) do not cover documents of this sort.
The Implementing the 4th Plenum of the 19th Party Congress Opinion is a framework document in which the Supreme People’s Court (SPC) identifies principles and goals for the Chinese judicial system and judicial capacity after the 4th Plenum of the 19th Party Congress. This blogpost will identify some of them and their link to the 4th Plenum, with related comments in italics. I expect that the SPC will issue specific judicial policy documents and judicial interpretations, as appropriate, to implement specific measures.
New Era Governance
The document needs to be seen as part of the larger picture for China’s governance set out in the 4th Plenum Decision. Section 1 states that “modernization of the judicial system and judicial capacity is an important part of the modernization of the national governance system and governance capability” and is needed, among other matters, to provide judicial services and guarantees for societal and economic development. One aspect of the importance of its judicial services is the fact that there were 28 million cases in the Chinese courts in 2018, most of them civil and commercial.
Several sections relate to political correctness. This is linked to the clear requirement in the 4th Plenum Decision, under the topic “perfecting the comprehensive leadership of the Party (健全党的全面领导制度.)” The 4th Plenum Decision also requires implementing the ideological responsibility system integrating socialist core values into law and social governance. This document, therefore, contains corresponding provisions.
Consistent with last year’s National People’s Congress report and other documents, this document states that the most important goal is to uphold and implement the Party’s absolute leadership of the courts and persist in putting the Party’s political construction first. It restates tasks for the courts, some of which were earlier flagged on this blog:
- effectively implementing the Party’s leadership in all areas and aspects of the work of the people’s courts and ensuring the independent and fair exercise of judicial power under the leadership of the Party. Related language is found in the 4th Plenum Decision. This requirement is found in the latest judicial reform plan and elsewhere, including judicial training (as discussed here);
- Improve the system for implementing major decisions of the Party Center (完善党中央重大决策落实机制) (found in the 4th Plenum Decision and documents thereafter);
- strictly implementing the [Party] system of reporting and seeking approval for major matters [also known as requests for instructions](严格落实重大事项请示报告制度)(the Party regulations on reporting and seeking approval for major matters) (mentioned here);
- strengthening improvements from political inspection (see my blogpost on the inspection of the SPC) and judicial inspection (强化政治巡视和司法巡查整改) (discussed in my forthcoming article) (related content found in the 4th Plenum Decision. Judicial inspection is an old institution repurposed in the new era);
- implementing the Party’s reporting and inspection system (督察落实情况报告制度, mentioned in the 4th Plenum report and thereafter).
As mentioned in a recent blogpost, this means implementing Party principles concerning the appointment of personnel, particularly those in a leadership position. These trends are linked to broader policies related to civil servants (this recent academic paper by Holly Snape has good insights).
Socialist Core Values and the Ideological Responsibility System
Section 5 focuses on socialist core values and the ideological responsibility system, both of which the 4th Plenum Decision stressed.
- On the ideological responsibility system, this (authoritative) article (the author was then at the Party’s Central Compilation and Translation Bureau), unfortunately behind the publisher’s high paywall, sets forth an authoritative explanation of this concept in Xi Jinping New Era Governance that some of us need. The author defines the ideological responsibility system as follows: it “is part of the political reforms and aimed at maintaining and improving the loyalty of the Bureaucracy, as well as maintaining their ideological unification…Under the current Xi administration, the CCP wants its cadres to be politically reliable, professional and competent, morally self-regulated, and preferably trusted by the people…“
- Resolutely prevent and oppose the eroding influence of Western mistaken thinking (坚决防范抵制西方错误思潮侵蚀影响). This phrase has evolved from the one used several years ago and mentioned on this blog: “resolutely opposing erosion by the mistaken Western rule of law viewpoint” (坚决抵制西方错误法治观点侵蚀). Related language appears in the 4th Plenum Decision: have a clear-cut stand opposing various types of erroneous views (旗帜鲜明反对和抵制各种错误观点 ). This observer surmises that this phrase appeared in the 2019 Party document mentioned above. This does not create obstacles to Chinese judges continuing to consider useful “Western” legal concepts and mechanisms and the SPC continuing to have exchanges and cooperation projects with major “Western” jurisdictions.
- Implement socialist core values in the work of the courts. This has multiple aspects and continues an ongoing theme, including in judicial interpretations–see my 2018 blogpost). Some high-level conferences organized by the Case Research Institute of the National Judicial College have been on the subject of promoting socialist core values through cases.
The more practically oriented sections (4, 6-8) reveal priority areas of SPC leadership concern. Those particularly relate to economic development, social stability, judicial reform, and technological upgrading, all topics found in the 4th Plenum Decision., while the section on public health emergency management relates to Party decisions and Xi Jinping speeches during the Covid pandemic.
These sections mention short, medium, and long-term areas of concern and development.
Section 4 of the document lists some of the priority matters relating to economic development facing the SPC and the lower courts, many of them mentioned in this year’s judicial interpretation list or recently announced judicial reforms. A curated version (translation is modified Google translate):
- Improve risk monitoring and the early warning mechanism in financial trials, properly hearing financial disputes, and actively preventing and resolving financial risks (therefore we have seen the establishment of the Shanghai Financial Court and specialized financial tribunals in certain major cities. More detailed observations on this will come in the future);
- fully implement the environmental public interest litigation system, improve the environmental remediation system, improve the environmental protection injunction system, improve the jurisdiction provisions in environmental cases. (The 4th Plenum Decision had a section on environmental protection and a July 2019 press conference linked to the fifth anniversary of SPC’s Environmental and Natural Resources Division mentioned these measures.)
- Use evaluation indicators such as “enforcing contracts” and “handling bankruptcy”, to improve trial management, mechanism, quality, and efficiency to create a stable, fair, transparent, and predictable legal business environment. (This is linked again to the 4th Plenum Decision and China’s ranking on the World Bank’s Ease of Doing Business scorecard).
- Intensify the review of the legality of administrative actions, strengthen the substantive resolution of administrative disputes (also linked to the strengthening of administration by law in the 4th Plenum Decision, therefore also on the 2020 judicial interpretation agenda).
- Strengthen the judicial protection of property rights. See earlier blogposts on this.
- Formulate judicial interpretations for cases of infringement of trade secrets, and continuously improve the level of judicial protection of intellectual property rights (IPR). (Improving trade secrets protection is mentioned in the 4th Plenum Decision. Also see Mark Cohen’s recent blogpost on this).
- Formulate judicial interpretations of punitive damages for intellectual property rights, promote the establishment of a tort damages compensation system that reflects the market value of IPR (IPR is stressed in the 4th Plenum Decision and punitive damages in IPR cases is mentioned. Also see Mark Cohen’s blog on this. This also relates to evidentiary issues in IPR cases).
- Mediation and diversified dispute resolution (including giving non-litigation methods of dispute resolution priority, improving the separation of disputes and the creation of one-stop dispute resolution and litigation service that is efficient and low cost) is mentioned in this document as well. It is unclear what this means for the development of a commercial mediation system in China. Local courts have been working on better cooperation with institutions that can mediate specialized disputes, such as the Shanghai Financial Court’s arrangements with the Shanghai Stock Exchange and other institutions. The provisions here derive from language in the 4th Plenum Decision on improving an effective system in the new situation for the correct handling of internal contradictions among the people (完善正确处理新形势下人民内部矛盾有效机制) as well as the Fengqiao Experience. Xi Jinping has mentioned the Fengqiao Experience since 2013, if not earlier. The phrase about internal contradictions appears to derive from the 1959 Mao essay, On the Correct Handling of Contradictions Among the People.
- Promote capacity building for foreign-related commercial and maritime trials, equally protect the legitimate rights and interests of Chinese and foreign parties in accordance with law, improve the diversified dispute resolution mechanism for international commercial disputes, serve the joint construction of the “Belt and Road” and the construction of free trade pilot zones and free trade ports ( The 4th Plenum Decision promotes a high-quality Belt & Road Initiative, so these measures implement the 4th Plenum Decision. Also, see my earlier blogpost on this. To better improve diversified dispute resolution in cross-border cases, China needs to work on institutional arrangements enabling it to ratify the Singapore Mediation Convention. Those are many and complex, as I had a chance to learn in December, 2019. One matter that would assist foreign parties litigating in the Chinese courts (and Chinese parties litigating outside of China) would be for China to accede to the Hague Convention Abolishing the Requirement of Legalisation for Foreign Public Documents. The SPC’s new evidence rules reduce the scope of documents that a foreign litigant (or domestic litigant providing foreign evidence) must notarize and legalize, but it is a troublesome and expensive process.
- Improve the adjudication mechanism involving Hong Kong, Macao and Taiwan, build a centralized and professional trial system, explore and improve the diversified settlement mechanism for [civil/commercial] disputes involving Hong Kong, Macao and Taiwan. (The centralized system seems to be analogous to foreign-related cases. The intent is to have more competent judges consider these. Another issue is parallel proceedings in these cross-border cases. These issues deserve further analysis.)
- Deepen the international judicial exchange and cooperation mechanism, participate in the reform of the global governance system and formulate rules of international law, and contribute more Chinese wisdom to the maintenance of the multilateral trading system and the international rule of law. (See my earlier blogpost on this).
Public health emergency management
Section 6 relates to the role of the courts in the public health emergency management system, in the short and long terms. It mentions the courts providing judicial services to the joint prevention and control system, preventing mass events, and group prevention and control (群防群治工作机制, an old system to which Xi Jinping has given new meaning during the pandemic. That section mentions shorter-term issues, such as punishing the manufacturing and sale of fakes during the pandemic and longer-term issues, such as the courts being involved in improving the legal system in the area of public health.
Section 7 highlights some of the tasks in the current judicial reform plan. Those include:
- Deepening the judicial responsibility system, for judges hearing cases solely or in a collegial panel, the members of a judicial committee, and the supervision of judicial power. As mentioned on this blog several times, judges are concerned about the scope of the judicial responsibility system, and recent cases that have appeared in the Chinese press would only amplify those concerns. I have more on this in a forthcoming book chapter.
- Improving the disciplinary mechanism for judges. The forthcoming book chapter is on this. The SPC is working on related regulations.
- Promoting the improvement of the policies relating to the selection of judges level by level. The controls on the number of “quota judges,” judges with the title of “judge,” in many courts, means that some number of qualified personnel have become judges assistants. It has created a fair amount of frustration. Another issue is that the new policies mean it takes longer for judges to be promoted, but at the moment, most judges need to retire at 60, so that the pool of judges eligible to be promoted eventually to the SPC will shrink. We can expect related policies issued in the medium term.
- Improving the working mechanism of the circuit courts and promote the Supreme People’s Court’s Intellectual Property Court (SPCIPC) and the China International Commercial Court (CICC). Promote the strengthening of the organization system of intellectual property courts, and improve the specialized trial system so that it complies with the principles for the judicial protection of IPR. (It is understood that the circuit courts are hearing most SPC cases. But it still leaves unanswered what the role of the SPC in hearing cases is. Should it best focus on considering a smaller number of cases more thoroughly, as other supreme courts do? The SPCIPC and CICC both have captured SPC leadership attention (and the attention of the outside world). It is clear that the SPC has provided much more support to the SPCIPC than the CICC (most obviously the SPCIPC operates full time, while the CICC does not). China’s IPR enforcement system is a topic of worldwide concern (the Phase 1 Trade Agreement and the United States Trade Representative Office’s recent 301 Report both evidence this), so it is likely that this means the SPC leadership will focus more on intellectual property issues.
- Deeply promote the reform of the trial-centered criminal justice system (this is a continuation of reforms initiated in the previous round of judicial reforms). This topic requires a separate analysis, to consider the impact of the National Supervision Commission, among other issues.
- Improve and deepen the judicial transparency mechanism including promoting the transparency of judgment documents, court hearings, trial process information, and execution information. See my earlier blogpost and Mark Cohen’s more recent one on his concerns in the area of intellectual property law. Professor He Haibo has done important empirical work on judicial transparency.
Section 8 relates to technology and implementing the courts’ five-year plan on informatization (人民法院信息化建设五年发展规划). It mentions promoting AI, big data, cloud computing, blockchain, and 5G. Litigants should know that the SPC is promoting online case filing, litigation, mediation, judicial blockchain, and the mobile micro-court. A reality check is needed for China’s online litigation publicity. One is provided by a popular Wechat article published last month “A month of online court hearings, judges and lawyers have all gone crazy” 云庭审上线一个月，法官律师都疯了” Technology is an important area of SPC leadership concern, as it sees it as an area in which China can take the lead.
What is the impact of this vision and program for the Chinese courts, for litigants (in China or elsewhere), and for others, including judiciaries in other countries and jurisdictions. Is this a “China model” for courts, as raised by some? It does not appear to be so, but rather an outline for the courts to be conveyed within China, rooted in the Chinese political, cultural, and social environment of 2020, which will change along with Party priorities and events. Some aspects described above are common to judiciaries around the world, such as the trend towards greater online justice. Will it deliver the results it promises?
Many thanks to certain anonymous readers for their insightful comments on earlier versions of this blogpost. They are not responsible for any errors or “erroneous views.”