Monthly Archives: December 2020

Civil Code, Commercial law, intellectual property, judicial interpretations

Civil Code & Supreme People’s Court update

1 Comment

Merry Christmas to all blog readers who celebrate!

The Supreme People’s Court media outlets posted a brief article on 23 December updating the court system and legal professionals on progress towards seamless transition to the Civil Code on 1 January, about which I wrote last month, by reporting on a . From that notice, it appears that the staff of the SPC’s Research Office (which coordinates judicial interpretations and is in charge of guiding cases) and other staff members of the SPC’s Leading Small Group for Implementing Civil Code Work 民法典贯彻实施工作领导小组 (Leading Small Group) will have long nights of work until the end of the year.

The notice reported on a recent meeting chaired by Justice He Rong. She is the executive vice president (and deputy Party Secretary of the SPC) and led a meeting of the entire Leading Small Group and the SPC’s judicial committee to review the work of the committee.The decision was to “approve in principle” decisions concerning canceling and amending 591 judicial interpretations and related judicial normative documents (judicial documents) and 139 guiding cases. “Approval in principle” (原则通过), as discussed here, is not mentioned by the SPC’s 2007 regulations on judicial interpretations but is one of the SPC’s long-established practices. It means that the judicial committee has approved it, subject to some “minor” amendments. Minor amendments are more than typographical errors and relate to specific substantive matters.

Justice He reminded meeting participants that the smooth transition to the Civil Code was highly valued by General Secretary Xi Jinping, so that it was part of the SPC’s political responsibility to complete the work properly and timely.   But the focus of this blogpost is again on the practicalities, rather than the political aspects of this project.

Although it was said to be Justice He’s guidance, I surmise that it was the drafters’ thinking to  take this comprehensive cleanup as an opportunity to focus on making the Civil Code easy for users to apply, and strive to build a clear, concise, and highly targeted judicial interpretation system. I read from the language of this notice that the drafters plan to issue more comprehensive judicial interpretations on broad areas of law (such as the one on taking security that is has been issued for comment) rather than ones relating to specific questions of law. 

The judicial committee decided to cancel 116 judicial interpretations and other judicial documents, and approved in principle amendments to 14 other general judicial interpretations and other judicial documents, and another 111 judicial interpretations and judicial documents in the areas of:

  1. civil law (27),
  2. commercial law (29);
  3. intellectual property law (18);
  4. civil procedure law (19); and 
  5. enforcement procedures (18).

So it seems likely the SPC judicial committee will meet one or more times before year end and we readers of SPC media will see one or more long catalogue of cancelled and amended judicial interpretations and other judicial normative documents published on or before 1 January 2021. I hope the hard work of the team involved over many months is properly acknowledged.

Hong Kong, judicial interpretations

Arrangements and the Supreme People’s Court

5 Comments
SPC Press conference following the Supplemental Arrangement signing, Judge Si 2nd from left

On 27 November, the Supreme People’s Court and the Hong Kong SAR Government held a ceremony in Shenzhen at which the two sides signed the Supplemental Arrangement Concerning Mutual Enforcement of Arbitral Awards between the Mainland and the Hong Kong Special Administrative Region” (the Supplemental Arrangement (关于内地与香港特别行政区相互执行仲裁裁决的补充安排). It supplements the original Arrangement Concerning Mutual Enforcement of Arbitral Awards between the Mainland and the HKSAR which was signed on 21 June 1999 and came into effect on 1 February 2000 (1999 Arrangement). The SPC also issued 10 related typical cases (典型案例) in both Chinese and English versions, the first time the SPC has done so for an arrangement.

SPC arrangements with the Hong Kong SAR are considered  judicial assistance documents.  As Hong Kong is part of China (one country-two systems),  the view is that judicial assistance between the Mainland and Hong Kong can be broader and closer (and so differs from international judicial assistance).

After the Supplemental Arrangement becomes fully effective, it will ease the implementation of a number of arbitration-related matters between the Hong Kong SAR and the (mainland) Chinese courts.  Herbert Smith Freehills and other law firms and barristers’ chambers) have published insightful summaries of the Supplemental Arrangement. 

This blogpost discusses some issues related to SPC arrangements (with the Hong Kong and Macao SARs), drawing on the remarks made by Judge Si Yanli, one of the deputy heads of the SPC’s Research Office at the press conference following the ceremony.  The Research Office is a unique institution of the SPC.  It does not directly hear cases, but is often involved in a broad range of issues.  A 1995 SPC document describes it as a  “comprehensive operational department.”

Judge Si is responsible for handling Hong Kong and Macau related matters , who would have headed the team negotiating with the HKSAR Department of Justice on these arrangement Judge Si is well-known to the Hong Kong international arbitration community.  She has spoken at Hong Kong Arbitration Week events in recent years, impressing all who have heard her speak with her insightful presentations.

Legal Framework for Arrangements

The legal framework for this arrangement, and the other previous ones concluded between the two jurisdictions is Article 95 of the Hong Kong Basic Law:

Article 95
The Hong Kong Special Administrative Region may, through consultations and in accordance with law, maintain juridical relations with the judicial organs of other parts of the country, and they may render assistance to each other.

Fitting Arrangements into the Chinese legal landscape

A single sentence in Judge Si’s press conference called attention to a procedure that is rarely discussed, at least in English–fitting arrangements into the Chinese legal landscape.  Judge Si mentioned that for the Supplementary Arrangement to be effectively implemented on the mainland, it must be transformed into a judicial interpretation. Although Judge Si did not set out the reasons that the SPC does so, it is understood that if implemented in this way,  judges in local Chinese courts who need to implement an arrangement can issue rulings or judgments  that cite the relevant provisions of an arrangement that have been transformed into a judicial interpretation.  

The effective implementation of the Supplementary Arrangement in the Mainland needs to be transformed into judicial interpretation, and for its effective implementation in Hong Kong, it needs to be transformed into local legislation. In the Mainland, on November 9, the 1815th meeting of the judicial committee of the SPC passed the “Supplementary Arrangement” and agreed to transform it into a judicial interpretation;补充安排》在内地的生效实施需要转化为司法解释，在香港的生效实施需要转化为本地立法。在内地，11月9日，最高人民法院审判委员第1815次会议已审议通过《补充安排》，并同意将其转化为司法解释；

Drafting 

The drafting of the Supplemental Arrangement involved input from relevant authorities, among them the Legislative Affairs Commission (LAC) of the National People’s Congress.  That is clear from this statement in Judge Si’s press conference. 

The successful signing of the “Supplementary Arrangement” is due to  the strong guidance of the Legislative Affairs Commission, of the Standing Committee of the National People’s Congress, the Hong Kong Basic Law Committee, the Hong Kong and Macao Affairs Office of the State Council and other relevant central authorities, as well as the strong support of the judicial and legal circles in the two places.《补充安排》的成功签署离不开全国人大常委会法制工作委员会、香港基本法委员会，国务院港澳事务办公室等中央有关部门的大力指导以及两地司法法律界的有力支持.

Soliciting views from relevant authorities is usual practice when the SPC drafts judicial interpretations. In this way the judicial interpretation that the SPC issues draws on specialist knowledge in the relevant authorities and enables the judicial interpretation to reflect a harmonized approach.  As to the importance of the SPC consulting the LAC of the National People’s Congress, that institution will review the final version of a judicial interpretation after the judicial committee of the SPC approves it and files it with the Standing Committee of the National People’s Congress. Again, it enables the judicial interpretation to reflect an approach harmonized between the SPC and the LAC.

Further thoughts

As the Chinese court system evolves to become increasingly integrated with international treaties and conventions, we are likely to see aspects of international conventions or bilateral judicial cooperation documents converted into or implemented through judicial interpretations, and the strong guidance of the LAC, the Ministry of Foreign Affairs, and other relevant central authorities making it possible.