The new Chinese Civil Code will become effective on 1 January 2021, with broad impacts on Chinese law in and out of China. As mentioned by most of the better law firms commenting on the Civil Code, the Supreme People’s Court (SPC) will fill in some of the broad principles through judicial interpretations. Other regulatory ministries will do so for specific issues, such as land and property mortgages. But the Civil Code involves a great deal of work behind the scenes at the SPC, so that 1 January 2021 sees a seamless transition from the separate bodies of Contract Law, Inheritance Law, etc. to the Civil Code and inconsistent judicial interpretations are no longer in effect. A recent article in one of the SPC’s media outlets by the group in charge of the work gives more detail to the work that I flagged this in May, when I gave comments on the SPC’s major research topics on Chinalawtranslate.com::
the SPC will support the Civil Code by issuing transitional arrangements & judicial interpretations. Over the years, the SPC has been issuing judicial interpretations and other documents relating to the areas of law that will form the Civil Code, particularly in the area of personality rights (Portraiture, Personal Information, Privacy, Genetic Information rights etc.), areas where legislation has been lacking. So work will be needed to review the previous documents in a big “housecleaning exercise”. The articles [in the Civil Code] on personal information, privacy, etc. are not very detailed, although they are important to individual people. Then the question is here, what protections will be provided by forthcoming judicial interpretation(s). This will fill in some of the abstract statements in the Civil Code.
The article by the Leading Small Group Office reveals the following:
- Civil Code work is high priority as it is work that designated by the Party Center (literally, 党中央决策部署在人民法院得到不折不扣贯彻落实). General Secretary Xi Jinping has pointed out that related judicial interpretations need to be improved timely, so the Civil Code, related legal provisions and the spirit are consistent ( 要及时完善相关民事司法解释，使之同民法典及有关法律规定和精神保持一致). But the focus in this post is not on the politics, but the practicalities of implementing the Civil Code in China).
- The SPC has created a leading small group to lead an institution-wide team, entitled the Leading Small Group for Implementing Civil Code Work 民法典贯彻实施工作领导小组 (Leading Small Group). SPC President Zhou Qiang heads the Leading Small Group. I’ve not yet identified who is heading the Leading Small Group’s Office (最高人民法院民法典贯彻实施工作领导小组办公室).
- The Leading Small Group Office [presumably] assembled a Task Breakdown Table( “切实实施民法典”任务分解表”). The work involved includes: reviewing 591 related judicial interpretations and 139 guiding cases as well as SPC Gazette cases. It seems to involve significant project management skills. At the SPC level, the Leading Small Group’s Office worked with the judicial interpretation department (the Research Office, as far as I know) and assigned responsibilities by the the principle: “whoever drafted is responsible”. That means that the #1 Civil Division would have reviewed interpretations related to family law issues (marriage and inheritance law, for example), and the #2 Civil Division would have reviewed company law and other related issues for which it is responsible. According to the article, this review work was basically completed by the end of September.
- The criteria for review are as follows: if the content of an old judicial interpretation has been completely adopted by the Civil Code, then the judicial interpretation will be abolished when the Civil Code becomes effective. If a current judicial interpretation completely conflicts with the Civil Code, the current one will be scheduled to be abolished. Another scenario is that the Civil Code and the current judicial interpretation are inconsistent, but it is worth amending it. A last category is where the Civil Code has new provisions for which the SPC lacks related judicial interpretations. That goes on the SPC’s “to-do” list. For the many people interested in Chinese civil law, please be aware that the Leading Small Group Office has published a related set of books 《中华人民共和国民法典理解与适用》（全6卷11册）
- The article does not further mention the review of guiding cases and SPC Gazette cases, but presumably the same process applies to guiding cases and SPC Gazette cases. As the SPC’s Research Office is responsible for guiding cases, I expect that a careful review of existing cases was the responsibility of that office.
- The next step is to consolidate the long list of judicial interpretations that have been affected and the recommended solution in a list and accompanying report for eventual review and approval by the SPC’s judicial committee . I would expect that there is a separate list for guiding cases that need to be abolished. I would expect that the list of cases that may need to be abolished would also require an accompanying report.
- As I have written on this blog previously, local courts issue local court guidance under different titles. In a blogpost last year, I mentioned that the SPC has/will require local courts to report guiding rules applicable within their jurisdictions to the SPC. Part of the work of the SPC in preparing for the Civil Code is to guide and supervise local courts to carry out a similar exercise to the SPC and report the results to the SPC. Presumably some number of persons in the Leading Small Group Office are responsible for monitoring and coordinating with local higher people’s courts. It is likely that the local courts are also discussing issues with their counterparts at the SPC. We should expect each local high court (and intermediate courts, such as Shenzhen) that issue local court guidance to issue lists of local court guidance that will be abolished or amended as of 1 January, to ensure a uniform approach by the Chinese courts as of 1 January.
- On the agenda for 2021 is amending the approved causes of action (案由) to be consistent with Civil Code, as the Civil Code will provide for new types of civil actions. The SPC has designated persons to work on this (presumably on the “whoever is responsible principle”) and the plan is for work on drafting new causes of action to be completed by the end of 2021.
- Another issue is transitional arrangements and retroactivity, that is, what law should be applied for cases that arose before the Civil Code was effective or were already in the court system when the Civil Code becomes effective. These are “universal” issues, not confined to China ( a quick search turned up relevant articles from the United States, Germany, England and Wales, among others). The SPC undertook surveys within the court system on these issues and held three internal workshops in Guangdong to solicit views of local judges, particularly on commercial law-related issues.
- An initial draft of the first judicial interpretation of the Civil Code (part 1) is in place, with the provisional title of “Supreme People’s Court Interpretation Concerning the Some Questions on the Application of the Civil Code of the People’s Republic of China (1) 《最高人民法院关于适用〈中华人民共和国民法典〉若干问题的解释（一）] 》”. It will be sent to “relevant departments” to solicit their views. The relevant departments are not listed, but there would be many of them, including the Ministry of Land and Resources, Ministry of Housing and Urban-Rural Development, and Ministry of Civil Affairs. Soliciting the views of the general public is not mentioned.
- As for specialized judicial interpretations on critical issues such as property, contract, personality rights, family law issues, inheritance, and tort law (including sexual harassment, presumably), those are already “cooking” on the SPC’s judicial interpretation “stove.” That is, the divisions of the SPC responsible are researching and drafting related issues, so that soon after the Civil Code becomes effective, old judicial interpretations are amended and new ones are issued. The divisions are taking the following three approaches–codifying prior judicial interpretations concerning a particular issue or issues, so that there is a single relevant judicial interpretation. The lower courts and the Chinese legal profession (and foreign parties as well) would find this approach helpful, as the relevant legal principle would be clearer. A second approach would be to amend an existing judicial interpretation. The SPC plans to do this for certain interpretations, to provide timely guidance to the lower courts, to better ensure uniformity of court decisions. Third, for new areas of law, such as personality rights, relevant judicial interpretations will be issued “at an appropriate time.”
- We can expect the SPC to further guide the lower courts (and the legal profession) on personality rights issues through “typical cases” and guiding cases or guidance cases issued by divisions of the SPC, before the SPC issues a related comprehensive judicial interpretation.
- The SPC is also working on improving its punitive damages system in intellectual property rights cases and when the timing is right, will work on a judicial interpretation.
- On environmental and natural resource issues, the SPC is working on a judicial policy document, which is expected to be issued before year end. I surmise it is one of the major tasks of the SPC’s Environmental and Natural Resources Division.
- The SPC will adjust its quality assessment standards for civil cases, and is working on related measures (研究制定评估考核办法文件)，which will involve increasing use of professional judges meetings and judicial committee meetings as a way of ensuring uniformity of court decisions.
- The SPC’s guidance will promote diversified dispute resolution, (linked to the Fengqiao experience), which will have different implications in commercial areas of law than family law.
- The SPC is still working on its judicial interpretation involving civil/criminal cross-over cases and has done several rounds of consultations with the “relevant departments,” presumably including the Ministry of Public Security and Supreme People’s Procuratorate. This is a long-standing issue and difficult one. This issue has been repeatedly raised by private entrepreneurs and their lawyers, among others. This issue is also “universal,” not confined to China.
- Other matters for the SPC include ongoing and future training, publicity, research, and publication concerning the Civil Code. The training is already ongoing within the SPC and lower courts on the Civil Code. The SPC is holding a series of training sessions conducted by experts. Additionally, the SPC is also tasked with issuing Civil Code-related publicity aimed at the general public. The SPC’s professional publications will do their part and publish Civil Code related articles research and practice oriented articles. Although it isn’t specifically stated, I surmise that it is likely that next year’s SPC research agenda will include Civil Code related issues.
- I hope that the Leading Small Group Office takes heed of the recently published comments of retired SPC Judge Cai Xiaoxue: when formulating judicial interpretations, various opinions should be humbly listened to in order to avoid errors or infeasibility of rules to the greatest extent. In the implementation of judicial interpretation, only by frequent self-examination and listening to different voices can errors be discovered and corrected, and fairness and justice can be maintained to the utmost extent (“在制定司法解释时，应当虚心听取各种不同意见，才能最大限度地避免规则错误或者不可行。在司法解释施行过程中，只有常常自省，注意倾听不同声音，才能发现错误，纠正错误，才能最大限度地维护公平正义”。).
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