President Zhou Qiang’s May, 2020 report to the National People’s Congress (which I will analyze when time permits) revealed that the number of cases that the Supreme People’s Court (SPC) has increased about 10% over last year to 38,498 cases accepted. This year’s report usefully set out a bar graph with the number of cases that the SPC accepted and concluded.
These (also from the report) show that in 2019, almost 60% of the SPC’s cases were heard in the six circuit courts.
This is not accidental, but the result of intentional SPC policy. Judge He Xiaorong, current head of the #2 Circuit Court (and former head of the SPC’s judicial reform office) stated five years ago–” after the circuit courts (literally tribunals) are established, the center of the work of SPC headquarters will shift to supervision and guidance, primarily trying cases that have a major guiding function in unifying the application of law, that can become guiding cases (巡回法庭普遍设立后，最高人民法院本部应当将工作重心转移到监督指导上，主要审理一些对统一法律适用有重大指导意义、具有重大示范价值、能够作为指导性案例的案件).
There has been one academic article in English (that I am aware of) (by Professors Chen and Wang) that focuses on the circuit courts, but looking at large scale policy rather than more granular analysis of circuit court decisions, whether in the form of judgments or rulings, or how circuit courts guide the lower courts, the impact on law practice in circuit court cities, and what it means for law students. I’ll set out some quick thoughts on each topic.
Circuit Court Judgments & Rulings
According to the research of Tsinghua Professor He Haibo and colleagues, most of the SPC documents are rulings rather than judgments. According to their data relating to 2017, 91% of the documents were rulings (relating to applications for retrial or trial supervision), with judgments accounting for about 4%, which in the authors’ view, makes it difficult for the SPC to fully fulfill its function of supervising and guiding the lower courts. This statement has made me think more about what the circuit courts are doing, particularly behind the scenes, as “supervising and guiding” the lower courts has multiple meanings.
What appears not to be generally known is that a substantial proportion of the cases heard in the circuit courts are administrative cases, although Chinese law firms have done many big data reports of commercial cases heard in the circuit courts. I am not aware of a comprehensive study on the number and type of administrative cases in the circuit courts. This report on the #3 Circuit notes that approximately 70% of the cases were administrative, without breaking out annual statistics. I understand that similar statistics are true for the #1, #2, and #6 Circuit Courts. This report from a Shaanxi law firm on #6 Circuit cases (based on 2017-first half of 2019) found that practically all administrative rulings (96%) rejected the applicant’s request to retry or remand the cases (see the pie chart below).
The law firm commented that of the administrative cases that were accepted, most of them involved the taking of collective land and the condemnation of housing on state-owned land, indicating government enforcement issues (among others). The comments of the lawyers on the judgments indicated that “administration according to law” is still a long term goal, particularly in western China, as the cases revealed instances of local governments:
- condemning or taking land and housing without obtaining approval;
- taking land or housing in excess of administrative authority;
- taking land or housing first, then obtaining approval;
- failing to compensate real estate owners or land use rights holders;
- failing to follow required procedures;
- demonstrating poor awareness of law, including procedural and evidentiary requirements;
- failing to protect the rights of related persons;
- failing to comply with open government regulations.
This data is consistent with what I had understood from other sources. One informed commentator mentioned that circuit courts are reluctant to order the retrial of administrative cases. He attributed it to “holistic” thinking on the part of judges (my term–considering factors other than those relating to the case), particularly social stability, the need to uphold the prestige of government, etc.
However, in addition to judgments and rulings, circuit courts use other ways of guiding local courts, and indirectly, local governments.
How the circuit courts guide the lower courts
Doing some further digging, I found that circuit courts use their judgments and rulings in other more traditional ways to guide the lower courts. Among those are:
- Case guidance–in this earlier blogpost, I wrote above case guidance of the #2 circuit, approved in a regional conference. The #2 circuit has launched a case a week series this month, to not only guide the lower courts, but to provide some typical case guidance to legal practitioners and the general public;
- Internal conferences–these two links are two examples of the #4 and #5 circuits, but with additional digging, reports of conferences convened by other circuit courts can be found;
- bulletins for internal distribution, such as the #3 Circuit’s Reports on Administrative Trial Situation (行政审判情况通报);
- Research reports, for internal reference–this report mentions one done for the 6th Circuit;
- internal conferences serving as a platform for issuing more specific guidance to the lower courts under the circuit court’s jurisdiction, such as the First Circuit’s Conference Summary on Some Issues of the Application of Law in Administrative Cases: 最高人民法院第一巡回法庭关于行政审判法律适用若干问题的会议纪要
Circuit Courts and Elite Law Firms
Another impact of the circuit courts is to attract some of the elite Beijing or Shanghai law firms to establish branches in circuit court cities. Tian Tong Law Firm appears to be one of the first, but I’ve also noticed that some of the other big Chinese law firms have followed Tian Tong’s lead. The impact on lawyer career paths remains to be seen, but it is likely to improve the level of litigation practice in some locations.
Circuit Courts and Chinese law students
Finally, having a circuit court nearby has an unrecognized benefit for Chinese law students, many of whom are educated in a very traditional way, with little experience in thinking through legal problems in a comprehensive way or are unused to using their research skills analytically. It also enables the circuit courts to have greater intellectual support, without expanding their headcount. From my conversations with law students who have interned in circuit courts, the experience has given them the opportunity to undertake thorough analysis on new issues and to have their work reviewed carefully by highly qualified and experienced mentor judges or judge’s assistants. It has also given some law students an appreciation of the demands of working “in the system” rather than the more relaxed environment of a university, as several of my students found when they didn’t realize that they needed to inform their supervisors ahead of time about taking leave from their internships to return to school!