Supreme People’s Court’s new guidance on similar case search

Screenshot 2020-07-27 at 8.49.14 PMOn 27 July 2020,  the Supreme People’s Court (SPC)  issued Guiding Opinions Concerning Strengthening Search for Similar Cases to Unify the Application of Law (Guiding Opinions) (关于统一法律适用加强类案检索的指导意见(试行)),  effective on 31 July.  It is not a judicial interpretation, rather it is guidance intended to make judicial decisions more consistent, an ongoing issue in the Chinese court system.  The SPC is approving the practice of judges using principles derived from prior cases to fill in the gaps in legislation and judicial interpretations.  The Guiding Opinions codifies many of the practices of the Chinese courts and imposes some new requirements. It does not mean that China has become a common law legal system.  As explained further below, although the Guiding Opinions do not address this question, comments by an SPC judge suggest that the special status of cases selected by the SPC by its operational divisions remains in place.

It also illustrates two larger points–that discrete judicial reforms aimed at more consistent judgments continue to be implemented even as the role of Party leadership and oversight continues to be stressed. It is also an illustration of how long it can take judicial reforms to be implemented. in my view, this discrete, technical reform has implications greater than the drafters of the Guiding Opinions realized, including a possible impact on Chinese legal education. It has the potential to make litigation a more predictable process for parties.

Case Search Requirements

What are similar cases?

Article 1 defines that–the cases that are already effective and are similar in their basic facts, disputed points, issues of law, etc. (指与待决案件在基本事实、争议焦点、法律适用问题等方面具有相似性,且已经人民法院裁判生效的案件).

When is similar case search required? (Articles 2 and 7)

  1. When a case is proposed to be submitted to a professional or specialized  (presiding) judges meeting (generally all the judges in a division) or the judicial/adjudication committee for discussion;
  2. Relevant judicial principles are unclear or conflicting;
  3. A court president or division head requires it under his or her supervision authority;
  4. Other relevant situations.

That is, similar case search is not required in all cases, only when the relevant “law” is unclear.

Similar case search should be set out in the trial report for the case or in a separate precedent (similar case) report (类案检索报告) and included in the case file. As noted in my earlier blogpost, trial reports are confidential and not accessible to parties or their lawyers. Article 8 requires that the search report must include details on the platform, means of search, etc. and how the search was used.

Who searches and how?

The judge in charge of the case (承办法官) is in charge of undertaking the search and is responsible for doing it accurately and properly, using either the SPC’s database or other case databases, focusing on cases from the last three years, except for guiding cases.

Judges can use methods such as keyword search, legal provision (article of the relevant law), or related case search.

What must be searched?

These rules (in Article 4) are in line with what I have previously written:

  1.  SPC guiding cases;
  2. SPC typical (model) cases (典型案例) and judgments or rulings of the SPC;
  3.  Reference cases issued by provincial-level higher people’s courts  and decisions by those courts;
  4.  Higher-level courts in the jurisdiction in question and judgments of that court.

Except for the guiding cases, priority is given to the search of cases or cases in the past three years; if a similar case has been searched in the previous order, no search is required. Article 5 provides that judges can use methods such as keyword, legal article-linked, and case-based searches.

My understanding is that these are general principles, but the specific scope of cases that need to be searched will depend on the specifics. As I have previously written, the SPC Circuit Courts have issued cases that guide the lower courts in their circuits.  The special authority of those cases remains in place. Judges reviewing issues related to the enforcement of foreign arbitral awards in China will need to look to a special set of cases (described here), for example.

I had previously written about cases selected by the operational divisions of the SPC providing guidance to the lower courts.  Those retain their special authority, as indicated by comments by Senior Judge Yu Tongzhi, an editor of Reference to Criminal Trial (the joint publication of the SPC’s five criminal divisions). He noted in an article published on 31 July, that as far as criminal justice is concerned, without a doubt, the first choice for searching similar cases is to search the guidance cases contained in their publication, setting indices to the guidance cases for the convenience of readers.

Are precedents binding?

Precedents are not binding, but guiding cases should be 参照 “referred to” (the link is to SPC Research Office Deputy Director  Judge Guo Feng’s authoritative explanation) unless the case conflicts with subsequently issued law or judicial interpretations. Other types of cases are not binding, but for judges to consider(参考).

How judges must respond

Article 10 imposes a new requirement on courts, if procurators, parties, their representatives (their lawyers) submit guiding cases or other cases in support of their legal position (as I had previously written had been the practice).  For guiding cases, courts are required to state in the reasoning section of their judgments whether or not the guiding case was referred to and why.

For all other types of cases, the court can use its power of clarification/explanation and other means (释明等方式) to respond.  It is understood that this is meant to give judges flexibility in responding to (non-guiding) judgments provided by parties–so the court may respond in its court’s judgment or in other ways. Those other ways may include:  responding to the cases submitted pre-hearing, during a hearing, after a hearing, as the court considers most appropriate.  We will need to observe what is done in practice, for example, whether courts respond primarily in their judgments or orally.  This will be the way that a party can monitor whether the search accurately reflects prior cases, as neither a party or its counsel has access to the trial report. Other unknowns are how this system will influence administrative proceedings such as those at the Trademark Review and Adjudication Board.

Link to Inconsistent Decision Mechanism

Article 11 contains a link to the inconsistent decision mechanism discussed here, which I described as a microcosm of themes reflecting how the SPC operates, given its high bureaucratic nature.

Why case law reform?

As this blog has discussed, in the New Era, the role of Party leadership and oversight continues to be stressed (see this blogpost, for example).  This discrete judicial reform is aimed at more consistent judgments. It is a critical tool that judges are already using because Chinese legislation lags behind the needs of the courts, and judicial interpretations are insufficient as well. Party policy would have an indirect impact on those cases, as would foreign law principles (mentioned here).

“Slow-cooking” judicial reform

The issuance of these rules shows the strength of the case law system and how long it can take a single judicial reform to be implemented. As mentioned in the June, 2019 blogpost, when Professor Hu Yunteng(until recently Justice Hu Yunteng, formerly a full-time member of the SPC’s judicial committee, now retired) recollected the history of the case system with Chinese characteristics, he mentioned that Jiang Huiling, then his colleague at the China Institute for Applied Jurisprudence (now Dean of the Tongji University School of Law) had looked to jurisdictions outside of China to advocate that China establish a case law system. Professor Hu Yunteng doesn’t specify whether Dean Jiang Huiling was looking to case law systems in civil or common law jurisdictions in the “West.”).  In his 2016 Harvard Law Review student note, Mark Jia (now clerking on the Supreme Court), cited Li Shichun of the China Law Society to the effect that it was the National People’s Congress that opposed those seeking to establish a Chinese case law precedential system. That opposition has been overcome by widespread professional usage (as described in my 2017 Tsinghua Law Review article). It is unusual in that the practice came first and was not a top-down reform (顶级设计).

Concluding Comments

This discrete, technical reform is an important one for the rules relating to judicial decision-making better harmonized with judicial practice.  There are a number of unknowns.  One is whether it will result in judges feeling more comfortable in setting out their reasoning,  knowing that other judges may look to it.  An important question is how the practice of responding to cases will evolve–will judges tend to respond in their judgments, or as I suspect, do it orally. (As to why I think that–it is related to the desire of Chinese judges to reduce their risk under the judicial responsibility system).

In my view, this reform has the potential to make Chinese litigation a more predictable process. It is a bit of evidence of the gradual harmonization of the operations of the Chinese courts with the rest of the world,  as current circumstances permit.

 

Judicial services & guarantees to aid China’s economy

Justice He Xiaorong at the press conference

I am going to experiment with a shorter format, starting with this blogpost.

On 22 July, the Supreme People’s Court (SPC) held a news conference with the National Development and Reform Commission (NDRC) to announce their latest policy document providing judicial services and guarantees to accelerate the socialist market system in the New Era (为加快完善社会主义市场经济体制提供司法保障).  Justice He Xiaorong appears to be the SPC senior official in charge of the #1 Civil Division. From his appearance at the press conference, Zheng Xuelin, the head of the #1 Civil Division, must have taken the lead in drafting this document, but the subject matter reflects input from many divisions of the SPC, although none of them are mentioned. Wang Renfei, head of the NDRC’s Division of Economic Reform, also appeared at the press conference.  It is linked to a May, 2020 document of the Central Committee and State Council on improving the market economy in the New Era.

These policy documents that provide judicial services and guarantees are one of the hallmarks of the SPC in the New Era, as General Secretary Xi Jinping has called on the SPC to provide judicial services and guarantees to the important policy initiatives and strategies of the Party and state. Since Xi Jinping became General Secretary, at the annual Central Political-Legal Work Conference, he has given instructions to the political-legal institutions that the judicial organs provide “judicial services and guarantees” for major Party and government policies. For that reason, the SPC has increased the number of policy documents in which it has provided services and guarantees to the work of the Party and state. Consistent with Xi Jinping’s instructions, Party leadership, in the most recent inspection of the SPC, requested that the SPC strengthen its “services and guarantees” to the work of the Party and state.   This latest policy document has 29 articles, covering the topics of:

  • judicial protection of market entities, especially small entities;
  • judicial protection of property rights;
  • establishing a fair, just, and orderly competitive market system;
  • a legalized business environment suitable for high-quality economic development;
  • judicial protection of people’s livelihood;
  • improve foreign-related guarantees; and
  • one-stop diversified dispute resolution with Chinese characteristics.

There are a few new provisions, but most of the provisions are a repackaging of current or previous issues, many of which had been mentioned in a recent SPC New Era policy document and discussed on this blog. Some, while not new, send welcome signals.  The careful reader can pull out of the bureaucratic language of this document ongoing issues facing the Chinese courts and even some initiatives not previously mentioned.  An unscientific selection below follows:

  1. Judicial protection of market entities

This section repeats principles or raises issues such as:

  • parties being treated equally; protecting the individual and property rights of entrepreneurs (an ongoing issue–see this 2016 blogpost);
  • Absorb and transform beneficial international/foreign experience –this document uses the language “beneficial experience from legal systems with mature market entities” (吸收借鉴国际成熟市场主体法律制度的有益经验). This phrase is repeated elsewhere in the document. As I wrote in 2017–“a careful review of official statements, publications, and actions by the SPC and its affiliated institutions, as well as research by individual SPC judges [and teams of SPC judges] shows an intense interest in how the rest of the world deals with some of the challenges facing the Chinese judiciary coupled with a recognition that any possible foreign model or provision will need to fit the political, cultural, economic, and institutional reality of China, and that certain poisonous ideas must not be transplanted.”  This continues to be true (given the gaping holes in Chinese legislation, as seen from the perspective of Chinese judges), including a careful review of relevant US law.
  • Abuses by senior leaders in SOEs, causing loss of state assets (and likely benefiting private pockets), as seen in this phrase: “further clarify the relationship between state-owned property owners and agents, properly handle cases of loss of state-owned assets due to insider control, related transactions, and illegal guarantees by legal representatives, and pursue directors in accordance with the law. Supervisors and senior managers violate their legal responsibilities and obligations of loyalty and diligence. Promote state-owned enterprises to improve their internal supervision systems and internal control mechanisms, standardize  the positioning of powers and responsibilities and exercise methods, and improve the modern corporate system with Chinese characteristics.”
  • Improve the protection for small investors (relates to ongoing initiatives by the Shanghai Financial Court) and is connected with the most recent conference summary on bond disputes (全国法院审理债券纠纷案件座谈会纪要).  It mentions a forthcoming judicial interpretation on group securities litigation, apparently mentioned for the first time (及时出台证券纠纷代表人诉讼司法解释).  The Shanghai Financial Court has issued pilot regulations that will be considered by the SPC.
  • Exiting the market, the goal to be applicable to all sorts of legal and natural persons (signaling further developments relating to individual bankruptcy), establishing a better cooperative mechanism with government on bankruptcy (not new).

2. Judicial protection of property rights

Many of these have been discussed on this blog previously:

Better protection for property rights of private enterprises (discussed two years ago at the beginning of the anti-organized crime campaign).  It again mentions prevent the abuse of public power to infringe private property rights such as illegally sealing up, seizing, and freezing property rights of private enterprises;

Improving the hearing of cases involving land and real property condemnation (as this blogpost discussed, an underlying problem is the failure of related government departments to comply with legal requirements);

One article (#11) is devoted to improving intellectual property rights protection, but it does not flag anything not previously mentioned.

3.  Establishing a competitive market system

Article 12 re-emphasizes a concept basic to a market (oriented) economy–respect for the voluntariness and spirit of contract (尊重合同自愿和契约精神).

One provision in this section has attracted the greatest amount of attention–reducing the allowable interest rate for private lending, signaling a reversal of the provisions in the 2015 interpretation on private lending, which the document states will be amended soon.  The other provision that is repeated here (first mentioned three years ago), is stopping SOEs from using their easy access to bank capital to on-lend funds on the private market, for greater profit than their core businesses 规范、遏制国有企业贷款通道业务,引导其回归实体经济).

This section signals that the SPC will be working on more detailed provisions on taking security as a result of the Civil Code (进一步研究细化让与担保的制度规则和裁判标准).

4. legalized business environment suitable for high-quality economic development

Among the provisions mentioned here is better coordination between the financial regulators and the courts  (and legal oversight by the courts) (主动加强与金融监管机构的沟通协调,支持、促进金融监管机构依法履职,加强金融风险行政处置与司法审判的衔接,协助做好金融风险预警预防和化解工作).

5. judicial protection of people’s livelihood

This section mentions improving judicial protection for the consumer, better personal data protection, and improving protections for workers in new types of enterprises (i.e., working under algorithms).

6. Foreign-related commercial issues

Two new bits of information in this section are: the mention of exploring the establishment of a judicial review system for international investment arbitration (探索建立健全国际投资仲裁领域的司法审查机制 and issuing guidance on the recognition and enforcement of foreign commercial arbitration awards (适时出台涉外国民商事判决承认与执行的规范指引). This may evidence an expected increase in foreign arbitral awards sought to be enforced in China, in light of the (expected) increased number of Belt and Road Initiative related disputes.

7. One-stop diversified dispute resolution

This section repeats many of the current buzzwords (as discussed in my May blogpost), such as “resolving disputes from the source,” the “Fengqiao Experience,” giving mediation priority, and linking litigation with mediation.  However, as mentioned in earlier blogposts, some aspects of better mediation of disputes requires deeper reforms, such as changing incentives or evaluation of SOE executives.

Supreme People’s Court’s Bench Memoranda?

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Trial report and criminal judgment, from a Shantou district court

Justice Ginsburg’s article “Workways of the United States Supreme Court” and recent correspondence with brother blogger Mark Cohen has led me to reflect on what is known (and what I know) about how cases progress through the Supreme People’s Court (SPC). It is from the small details that it is possible to obtain greater insights about a judicial system.

In discussing the sources of law (meant broadly) to which SPC judges look when considering cases,  some knowledgeable persons reminded me of the existence of something called a “trial report (审理报告 or 审查报告 (for retrial cases)).  I analogize these to bench memoranda (as used in United States appellate courts),  although the analogy is imperfect. It seems also somewhat analogous to the Votum of the German Constitutional Court, although the analogy is imperfect. Perhaps a search through Soviet (or Russian) civil procedure legislation will reveal a better counterpart.

As to what a trial report is, it is a memorandum prepared by the judge in charge of the case ( 承办人), prepared for internal discussion within the court. That internal discussion is in the first instance by the collegial panel that heard the case.  If the collegial panel feels they need greater guidance (or other related factors are relevant, such as the case being “difficult” or “important”), the trial report may be used in discussion by the specialized judges meeting or if necessary, among the documents included in the package of documents submitted to the judicial (adjudication) committee (or specialized judicial (adjudication) committee).

A search of the Chinalawinfo (北大法宝) database revealed that the same term is used for internal memoranda prepared in the course of administrative penalty proceedings and Party disciplinary and other analogous proceedings.

The outside observer is handicapped in analyzing trial reports in great detail because few examples are available to those outside the system, as explained further, with a few found in specific databases. As for the reason for the handicap, that relates to a number of regulations that keep trial memoranda confidential, some mentioned in my article on judicial transparency.  Those include:

  • 2013 joint regulations by the SPC and the National Archives Administration (State Secrecy Bureau) requiring such memoranda to be placed in the supplemental file (副卷). Items in the supplemental file are confidential, as discussed in that article.  The article also discusses proposals within the Chinese court system for public access to the supplemental file;
  • regulations on work secrets, also discussed in my article.

Trial reports are mentioned in a number of SPC regulations and in documents issued by the SPC’s Judicial Reform Office. It is clearly one of the many discrete matters about which reform is being considered.

The trial report is a memorandum in which the judge in charge of the case sets out the facts of the case, evidence provided and facts determined; prior rulings or decisions in the case; issues in dispute; background information; proposed resolution of the case and rationale. The judge is not bound by the restrictions in the sources of law that may be cited, with some judges stating that the results of discussions with experts or foreign principles of law or cases are sometimes included.

Some reports I have seen have a section on “issues to explain” (需要说明的问题)–that raises non-legal factors, such as the impact of enforcement of an international arbitral award on the local economy. The rationale in the report may be more detailed than that in the judgment or ruling that is issued to the parties. As has been mentioned in earlier blogposts, only certain sources of law may be cited as the basis of a judicial ruling or judgment. The trial report apparently can take a broader approach to legal sources, which would be in keeping with the holistic approach that Chinese judges take to deciding cases. The trial report, unlike the judgment or ruling, is confidential. The SPC has issued forms of trial reports, such as this one for administrative retrials; others for first-instance administrative cases; second instance administrative cases; state compensation cases.

SPC rules of operation call for a judge‘s assistant to be responsible for preparing a draft of a trial report, with the judge in charge of the case responsible for it.  Interns may be involved in preparing a preliminary draft for the judge’s assistant to whom they are attached (as I know from my own students who have interned at the SPC). The judge’s assistant will review the intern’s draft thoroughly. There are proposals to require search of relevant prior cases, but this is something that likely is general practice at the SPC (see my article on case law).

A recent article by an experienced Chinese judge (at the local level) points out problems with the trial report system (at the local level). In his experience, since the last round of judicial reforms, most judges do not care much about drafting a trial report, in their rush to process cases on time. They, therefore, fail to provide a holistic report on the case. That complicates matters for the second instance judge reviewing the case file. Because the trial report does not describe fully the scope of factors that entered into judicial thinking, the second instance judge lacks a full understanding of the case. He says that for a Chinese judge, in addition to the facts and law, among the other factors to consider include:  judicial policy; petitioning and stability maintenance; the impact of media; the impact of the decision; interference and inquiries from either inside or outside the court; value judgments of individual judges.  In his experience, at least, the responsible second instance judge will meet face to face with the lower court judge to seek to understand the whole picture, rather than solely relying on the case file.  He points out that this practice has its drawbacks.   The author suggests using a system that he entitles “explanation of the situation regarding the decision” (裁判情况说明) rather than a trial report.

Concluding comments

The fact that little is known about trial reports speaks to how little scholars (in China or elsewhere) focus on the details of how the Chinese legal system operates.

As to whether judges would favor making trial reports public–an unscientific sample says no. One suggestion that I have heard was that a broader approach should be taken to sources that could be cited in a judgment, so that a judge could cite to persuasive scholarly works. But what if it is revealed that judicial thinking on a particular issue has been influenced by foreign theories?  The thoughtful Chinese judge wants to be both politically and legally correct.

Comings & Goings at the Supreme People’s Court

My brother blogger Mark Cohen’s recent post on comings and goings among intellectual property (IP) attaches attached to embassies and consulates in China has prompted me to think about how comings and goings at the Supreme People’s Court (SPC) are announced and issues related to those comings and goings.  As I have mentioned often, the institution of the SPC is stressed in preference to the role or identity of the individual judge.  As to how a person can track SPC personnel comings and goings: the National People’s Congress (NPC) Standing Committee appoints and removes judges(other than the president of the SPC).  Xinhua reports these and they are to be found on the NPC website as well (全国人民代表大会常务委员会任免名单)  The SPC reposts the information, found on its website under “important news” (要闻).  For appointments (or removals) that do not require NPC Standing Committee approval, the careful observer needs to monitor changes elsewhere on the SPC website: SPC leaders 最高人民法院领导, principal personnel in the SPC’s internal institutions 最高人民法院内设机构主要人员;circuit courts ( 巡回法庭); counterpart listings on the CICC and Supreme People’s Court Intellectual Property Court (SPCIPC).

Among the relatively recent comings and goings:  Justice He Rong has replaced Justice Jiang Bixin (born in 1956, who has retired). Justice He had previously been a vice president of the SPC but was transferred to the Shaanxi CCDI/National Security Commission.  Going from the courts to Party institutions (and back) is a career path for some judges. As discussed in this earlier blogpost (of almost 5 years ago), SPC judges are bound by official (Party/government official) retirement ages, with special permission possible for high ranking officials, including judges, such as Justice Jiang Bixin. Justice He Rong is in charge of day to day work of the SPC and has the rank of a minister.

In the most recent NPC Standing Committee notice, Judge Zhu Li (well known in the international IP community) and CICC judge, is shown to have been appointed deputy head of the SPCIPC.  Senior Judge Jiang Huiling, formerly a vice president (in charge) of the National Judges College , is shown to have left the SPC while Judge Shen Hongyu has been appointed the deputy head of the #4 Civil Division. She was previously a judge on the SPCIPC, after being a judge in the #4 Civil Division for many years. She is taking the position formerly held by Judge Gao Xiaoli. Both Judges Shen and Gao are well known to the international practitioner community because both often speak at international conferences.  Judge Shen was a visiting scholar in the fall of 2019  at Columbia Law School and spoke at Columbia, Yale (Paul Tsai China Center), Harvard, and Berkeley, among other law schools. Judge Jiang’s last official activity was to give the commencement address (virtually) at the School of Transnational Law of Peking University (where I teach).  The speech seems to have gone viral on (legal) Wechat public accounts.

Knowing where judges have moved requires additional research.  A quick check of the “principal personnel” (or Wechat reports) shows that Judge Gao Xiaoli is the new head of the International Cooperation Bureau of the SPC. This bureau was previously entitled “外事局”–“foreign affairs bureau” and was mentioned in my 1993 article.  The SPC, similar to other government organs, has a special bureau that handles incoming foreign activities and matters involving judges and court’s activities overseas.

Judge Jiang, who is in his late 50’s, is one of a number of people on the SPC who faced the SPC’s version of the “retirement trap” (analogous to the “middle-income trap”)–with a bureaucratic ranking insufficiently senior to be able to avoid retiring at age 60 or soon thereafter.  As I wrote in my 2015 blogpost, judges in many other jurisdictions are considered to be in their prime in their late 50’s and 60’s. US Supreme Court judges have lifetime appointments, while compulsory retirement ages include: Germany–68, Australia, 70, Hong Kong, 65 (with provisos). According to press reports, Jiang Huiling is now a professor at the law school of Tongji University, with some reports stating that he will become dean of its law school.  Senior academics have a later retirement age. He will be among the small number of Chinese law school deans that have a practitioner background. We hope he will use his experience to promote the reform of Chinese legal education.  As a professor, we would expect him to continue to publish insightful law journal articles and speak more to the academic world.

 

 

 

Using cases to explain the law in the New Era

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News conference to announce the issuance of 10 exemplary cases promoting socialist core values

As readers of this blog know, I have a special interest in the use of cases in the Chinese court system. I wrote most recently on the SPC’s use of cases in December, 2019, when I wrote How the Supreme People’s Court guides the lower courts through cases in its publications (1). In this blogpost, I am taking another look at two aspects of this topic in the post 4th Plenum of the 19th Party Congress New Era. A consolidated version will need to wait for an opportunity to write on this at greater length.

The SPC uses case law in two broad ways.  The first is to guide the lower courts, as previously mentioned in several previous blogposts and my 2017 academic article. Those developments are continuing. I’ll discuss one new example.  What I have not previously discussed very much, and will be the focus of this blogpost is how the SPC uses case law to popularize law (普法).

Guiding the Lower Courts

One example that I have not previously discussed, but is relevant to many practitioners, is the case law of the SPC’s Intellectual Property Court (SPCIPC, literally the SPC’s Intellectual Property Tribunal). A measure of the importance that the SPCIPC attaches to its cases in that the following paragraph was the first substantive section of its 2019 annual report [scroll to the bottom of the link for English]:

Ⅰ. Focus on the function of trial [court hearings] to strengthen typical exemplary effect of model cases and further unify the standards for adjudicating technology-related IP cases
Unifying the standards for adjudicating patent and other technology-related IP cases is the primary goal of the IP Court. In 2019, the IP Court focused on the function of trial and concluded a number of closely technology-related IP cases justly and efficiently in accordance with the law. A number of model judgments that have typical exemplary effect were made, and the “systematization project to unify judicial standards” has been implemented, further promoting the unification of judicial standards for technology-related IP cases. ( 一、立足审判职能,加强典型示范,进一步统一技术类知识产权案件裁判尺度
统一专利等技术类知识产权案件裁判标准,是法庭设立的重要目标。2019年,法庭立足司法审判职能,依法公正高效审结了一批专业技术性较强的知识产权案件,形成了一批具有典型示范作用的标杆性判决,建设实施“统一裁判标准系统工程”,进一步推动了技术类知识产权案件裁判尺度的统一。

In 2020, we can expect the SPCIPC to continue to use case law to unify judicial standards in technology-related IP cases.  This is one small example of the SPC’s work in this area.  The report speaks of its contribution of Chinese wisdom to the development of international IP law, but a person taking a closer look at some of the SPCIPC decisions will see that research of foreign law by SPC IP judges and interaction with persons with foreign law expertise has contributed to the development of Chinese wisdom.

Popularizing law (普法)

The second development is the popularization of law, an old development repurposed in the post 4th Plenum of the 19th Party Congress New Era. The close observer of these documents, implementation, and related activities can detect a repurposing of popularization for specialist purposes.

Popularizing law is mentioned in the policy document 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 (Implementing the 4th Plenum of 19th Party Congress Opinions), the subject of my May, 2020 blogpost. The last sentence in section 5 of the opinion, on improving the implementation of socialist core values and the ideological responsibility system stated:

Conscientiously implement the responsibility system for publicizing knowledge about law (普法) of “whoever enforces the law, explains the law”; strengthen public opinion guidance, perfect the mechanism for issuing typical cases; establish rules of conduct through fair decisions [judgments and rulings], promote [positive] social customs, and create a good environment for the rule of law.”认真落实“谁执法谁普法”普法责任制,加强新闻舆论工作,健全完善典型案例发布机制,以公正裁判树立行为规则、弘扬社会风尚,营造良好法治环境.

The responsibility system for publicizing knowledge about law (普法) of “whoever enforces the law, explains the law” relates to pufajiaoyu (普法教育) (educating the public about law).(For those with access to an academic library I recommend Susan Trevaskes’ related book chapter) on how pufajiaoyu has developed over time).

Background to this system

This pufajiaoyu responsibility system is mentioned in section V of the 4th Plenum Decision of the 18th Party Congress and is one of many different types of responsibility systems mentioned in that Decision. This responsibility system for publicizing knowledge about law is linked to broader Xi Jinping era Party initiatives to expand the responsibility of Party and government cadres.   In this context the SPC appears to be treated as any other state or Party organ.

The phrase in the 4th Plenum Decision has been built into a responsibility system for the courts through two documents and a joint ministerial system. The framework was set out in a joint Party-State Council document in 2017  “General Offices of the Party Central Committee and State Council Opinions on a Popularization of Law Responsibility System of State Organs Regarding “whoever enforces that law, explains the law.” (中共中央办厅 国务院办公厅印发《关于实行国家机关“谁执法谁普法”普法责任制的意见》Section 6 calls for judge, procurators, administrative enforcement personnel, and lawyers to establish a “using cases to explain the law” system (建立法官、检察官、行政执法人员、律师等以案释法制度). The document calls on judges, etc. to collect, sort, research and issue cases and establish a database, using exemplary/model/typical cases to guide, standardize, and as prevention  and for education.  典型案例的收集、整理、研究和发布工作,建立以案释法资源库,充分发挥典型案例的引导、规范、预防与教育功能。So from this one line in document it is possible to see popularization used for specialist purposes (standardization).

Later in 2017, the State Council approved the establishment of an interministerial joint conference on the popularization of law, with Zhang Jun, then head of the Ministry of Justice, as head and the SPC as one of the parties. At the end of 2017, the SPC issued its own document to implement the Party-State Council document, 人民法院贯彻落实〈中共中央办公厅 国务院办公厅关于实行国家机关“谁执法谁普法”普法责任制的意见〉的实施意见》(SPC Explaining the Law Opinions).   This document is the one guiding the work of the SPC most closely.

Section 9 of the Explaining the Law Opinions focuses on the use of cases for both popularization and specialist purposes.  It calls for establishing a system for judges to explain the law in the cases they hear (as a form of popularization). On the specialist side, it calls for judges to upload cases to the SPC case database according to regulations and increase the reasoning (说理) in their judgments. The latter can have both specialist and popularization and “rule of law” impacts.  If parties or the general public are convinced by the reasoning in a judgment, they are more likely to accept it as fair. However many factors (to be explored in a later blogpost and my students’ forthcoming articles) lead to judgments with thin reasoning. This document also calls for collecting, sorting, researching and issuing exemplary cases and organizing news conferences if useful. These exemplary/model/typical cases can have both specialist and popularization impacts.  One example, that I would recommend is a recent article by an SPC judge who studied at the University of Vermont, who published an article in the Vermont Journal of Environmental Law article on a case that was designated one of the ten top mining rights typical cases.

So it seems that the Implementing the 4th Plenum of 19th Party Congress Opinions will be further implementing the provisions in the responsibility system for publicizing knowledge about law (普法) of “whoever enforces the law, explains the law” for both specialist and popularization purposes. In a later blogpost, I’ll explore the provisions in the pufajiaoyu 普法教育 responsibility system relating to judicial interpretations and judicial transparency.