On 21 January, the Supreme People’s Court (SPC) issued for public comment regulations on online hearings, applicable to civil (commercial), administrative and enforcement cases, and certain criminal cases, entitled Regulations on Some Issues Related to People’s Courts Handling Cases Online (English translation available at Chinatranslate.com) 关于人民法院在线办理案件若干问题的规定（征求意见稿). This topic is likely to be of interest to foreign and foreign-invested users of the Chinese court system (although they are a tiny minority of users). Judging by the number of articles in the English-language professional media on China’s internet and online courts, the draft may also attract comments from interested professionals outside of China. One issue I would hope is clarified is whether they apply to cross-border cases (cases involving jurisdictions outside of (mainland) China, as my quick reading is that the draft is unclear. (Corrections welcome!) .
It is likely that the SPC’s Judicial Reform Office took primary responsibility for drafting the regulations because the email and physical mail address for comments is directed to that office. The deadline for comments is 5 February. I surmise the 16 day comment period is linked to the upcoming Chinese new year’s (spring festival) holiday, rather than disinterest in receiving comments from foreign, foreign-invested, or foreign-related institutions or individuals. In the experience I have had personally or been aware of through other foreign institutions involved in commenting on draft interpretations, SPC judges have taken comments from foreign Chambers of Commerce in China, foreign-invested companies, and foreign professional bodies seriously. Some of the foreign Chambers of Commerce, for example, have legal committees, but it would take some time for them to organize a translation of the draft and assemble comments from committee members.
The SPC regulations on judicial interpretation work do not specify a minimum (or maximum) time period for soliciting opinions from the public. Reviewing the comment periods for some of the other judicial interpretations and other judicial documents for which comments were solicited in 2020, the deadlines appear to vary significantly. I surmise that the deadline is set by the team in charge of drafting the judicial interpretation (or other judicial document). In November, the SPC solicited public comments on proposed amendments to its judicial interpretations related to the taking of security for 18 days, while comment periods for other judicial interpretations and judicial documents seem to be often one month and sometimes two months.
Where comments were solicited on judicial interpretations and other judicial documents in the area of intellectual property law, the general public, including the foreign public, seems to be given more time to make comments. That may reflect the international nature of intellectual property law and long-term interactions between intellectual property specialists at the SPC and foreign intellectual property judges and other foreign experts knowledgeable about China’s intellectual property system. As Mark Cohen commented when the SPC’s Intellectual Property Court was established: [a specialist intellectual property appellate court] “has been a focus of much discussion between US and Chinese experts over 20 or more years, notably between the SPC and former CAFC [Court of Appeals for the Federal Circuit] Chief Judge Rader, former USPTO [United States Patent and Trademark Office] Director Kappos and others (including the author/owner of this blog {Mark Cohen]).”
I surmise that the persons soliciting comments would accept comments submitted after the formal deadline. That has been my own experience, but in relation to another area of law. To be safe, those planning to submit comments after the deadline are advised to contact the persons whose emails are listed in the notice, to ensure that their comments will in fact be read and considered.
photo of professional judges’ meeting in a Qingdao area court
Among the many reforms set out in mentioned in the February, 2019 Supreme People’s Court ‘s (SPC’s) fifth judicial reform plan outline is improving the mechanism of the Professional Judges Meeting, aboutwhich I havepreviouslywritten. Earlier this month (January, 2021), the SPC issued guidance on professional/specialized judges meetings (I have also translated it previously as specialized judges meetings) , entitled Guiding Opinion on Improving the Work System of Professional Judges Meetings (Professional Judges Meetings Guiding Opinion or Guiding Opinion), (关于完善人民法院专业法官会议工作机制的指导意见), superseding 2018 guidance on the same topic. The earlier guidance had the title of Guiding Opinions on Improving the Working Mechanism for Presiding Judges’ Meetings of People’s Court (For Trial Implementation). The meetings are intended to give single judges or a collegial panel considering a case additional thoughts from colleagues, when a case is “complicated,” “difficult,”, or the collegial panel cannot agree among themselves.
This blogpost will provide some background to the Guiding Opinion, a summary of the Guiding Opinions, a summary of a non-scientific survey of judges, and some initial thoughts.
Background to the Guiding Opinion
The Guiding Opinion is a type of soft law that enables the SPC to say that it has achieved on of the targets set out in the current judicial reform plan. According to a recent article by the drafters, they researched and consulted widely among courts, but that does not mean that a survey went out to all judges. It is further evidence that the SPC is operating as Justice He Xiaorong stated five years ago–” after the circuit courts are established, the center of the work of SPC headquarters will shift to supervision and guidance…”
Judicial reform and the Guiding Opinion
The Professional Judges Meeting Guiding Opinion is linked to #26 of the current judicial reform plan outline, discussed in part in this June, 2019 blogpost. I have bold-italicked the relevant phrases:
#26 Improve mechanisms for the uniform application of law. Strengthen and regulate work on judicial interpretations, complete mechanisms for researching, initiating, drafting, debating, reviewing, publishing, cleaning up, and canceling judicial interpretations, to improve centralized management and report review mechanisms. Improve the guiding cases system, complete mechanisms for reporting, selecting, publishing, assessing, and applying cases. Establish mechanisms for high people’s courts filing for the record trial guidance documents and reference cases. Completemechanisms for connecting the work of case discussion by presiding judges and collegial panel deliberations, the compensation commission, and the judicial committee. Improve working mechanisms for mandatory searches and reporting of analogous cases and new types of case. (完善统一法律适用机制。 加强和规范司法解释工作，健全司法解释的调研、立项、起草、论证、审核、发布、清理和废止机制，完善归口管理和报备审查机制。完善指导性案例制度，健全案例报送、筛选、发布、评估和应用机制。建立高级人民法院审判指导文件和参考性案例的备案机制。健全主审法官会议与合议庭评议、赔偿委员会、审判委员会讨论案件的工作衔接机制。完善类案和新类型案件强制检索报告工作机制)
Uniform Application of Law
As for why the uniform application of law is an issue, a quick explanation is the drafting of Chinese legislation often leaves important issues unresolved and leaves broad discretion to those authorities issuing more specific rules. To the casual observer, it appear that the Chinese legislature (NPC) “outsources” to the SPC (and Supreme People’s Procuratorate (SPP) for some issues) the hard job of drafting more detailed provisions. (see Chinalawtranslate.com for many examples and NPC_observer.com for insights about the legislative drafting process). Although the Communist Party’s plan for building rule of law in China calls for legislatures to be more active in legislating (see NPC Observer’s comments), in my view the SPC (and SPP) will continue to issue judicial interpretations, as the NPC and its standing committee are unlikely to be able to supply the detailed rules needed by the judiciary, procuratorate and legal community. Although the general impression both inside and outside of China is that the SPC often “legislates,” exceeding its authority as a court, as I have mentionedseveral times in recent blogposts, the SPC issues judicial interpretations after close coordination and harmonization with the NPC Standing Committee’s Legislative Affairs Commission.
Professional Judges Meeting Guiding Opinion
The Guiding Opinion is linked to the judicial responsibility system, about which my forthcoming book chapter will have more discussion. Professor He Xin addresses that system, among other topics in his recently published academic article.
The Guiding Opinion authorizes certain senior members of a court (court president, vice president, head of division, as part of their supervisory authority (under the Organic Law of the People’s Courts) to chair meetings of judges (who exactly will attend depends on the court- to discuss certain types of cases and provide advice to the single judge or three judge panel hearing a case. (In my informal inquiries, I have found that interns are sometimes permitted to attend, but sometimes not). The types of cases mentioned in Article 4 of the guiding opinions and listed below are not complete, but raise both legal and politically sensitive issues:
ones in which the panel cannot come to a consensus,
a senior judge believes approaches need to be harmonized;
involving a mass (group) dispute which could influence social stability;
difficult or complicated cases that have a major impact on society;
may involving a conflict with a judgment in a similar case decided by the same court or its superior;
certain entities or individuals have made a claim that the judges have violated hearing procedure.
Before the discussion, the judge or judges involved in the case are required to prepare a report with relevant materials, possibly including a search for similar cases, which may or may not be the same as the trial report described in my July, 2020 blogpost,
The guiding opinions sets out guidance on how the meeting is to be run and the order in which persons speak.
Depending on the type of case involved, a case may be further referred to the judicial committee or the matter may be resolved by the meeting providing their views to the collegial panel.
Article 15 of the guiding opinions provides that participating in these meetings is part of a judge’s workload. The guiding opinions provide that a judge’s expression of views at these meetings should be an important part of his or her performance appraisal, evaluation, and provision, and the materials can be edited into meeting summaries, typical cases, and other forms of guidance materials, which can be used for additional points in performance evaluation. One of the operational divisions of the SPC and at least one circuit court has published edited collections of their professional judges meetings, with identifying information about the parties removed.
Comments
From my non-scientific survey of judges at different levels of court and in different areas of law, my provisional conclusion is as follows. Judges hearing civil or commercial cases seem to hold these meetings more often, particularly at a higher level of court. Criminal division judges seem to hold such meetings less often (at least based on my small sample), but the meetings are considered to be useful.
Frequency seems to depend on the court and the division, with one judge mentioning weekly meetings, while others mentioned that they were held occasionally. Most judges that I surveyed considered the meetings useful, because they provided collective wisdom and enabled judges to consider the cases better. One judge noted that it may also result in otherwise unknown relevant facts coming to light.
I would also add my perception that it also gives the judges dealing with a “difficult or complicated case” (substantively or politically) in a particular case the reassurance that their colleagues support their approach, even if the judges involved remain responsible under the responsibility system. This is important when judges are faced with deciding cases in a dynamic area of law with few detailed rules to guide them, or where the policy has changed significantly within a brief time. My perception is that this mechanism provides a more collegial environment and better results that the old system of having heads of divisions signing off on judgments. I would welcome comments from those who have been there.
The Guiding Opinions provide yet another illustration of how Chinese courts operate as a cross between a bureaucracy and a court, from the rationale for holding the meeting to the use of meeting participation as an important part of performance evaluation.
Although the slogan (of several years ago) is that judges should be treated more like judges, the Guiding Opinion appears to treat lower court judges analogous to secondary or university students, to be given grades for their class participation.
What are the implications of this mechanism?
Litigants and their offshore counsel (Chinese counsel would know this) need to know that the result in their case in a Chinese court may be influenced by judges who are not in the courtroom when their counsel advocates orally. Written advocacy should still have an impact on professional judge committee discussions. It appears that counsel is not informed that the case has been referred to a professional judges committee for discussion and it is not possible for counsel to know who is part of the committee and apply for judges to be recused in case of a concern that there has been a conflict of interest.
Would it result in more commercial parties deciding that arbitration is a better option, as they have better control over dispute resolution in their particular case? My perception is that the decision concerning appropriate dispute resolution is based on other factors, and the existence of the professional judges meeting as a mechanism to provide views to judges hearing a case has little impact on that decision. I welcome comments on that question.
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Many thanks to those who participated in the survey and also to those who commented on an earlier draft of this blogpost.
photo of a meeting of the SPC’s judicial committee. I surmise a screen for viewing presentations is not visible.
On 30 and 31 December 2020, the Supreme People’s Court (SPC) delivered its first batches of documents designed to ensure a seamless transition to the Civil Code on 1 January 2021, about which I wrote last recently and in November, 2020. Several SPC leaders spoke at a press conference on the morning of 30 December 2020 to announce the issuance of these documents, with Justice He Rong taking the lead. Justice He Rong also gave highlights of items on the SPC’s agenda on the transition to the Civil Code for 2021, but those details will be forthcoming in a subsequent blogpost.
I correctly predicted that the SPC judicial committee would meet one or more times before year-end and we readers of SPC media will see one or more long catalogues of cancelled and amended judicial interpretations and other judicial normative documents published on or before 1 January 2021.
We can see the results of the long hours of work of unknown numbers of people, particularly within the SPC, the National People’s Congress Legislative Affairs Commission (NPC LAC), and many “relevant departments” in drafting these judicial interpretations. Justice He Rong mentioned the timely guidance of the (NPC LAC) （我们得到了全国人大常委会法工委的及时指导）, support and coordination from the Supreme People’s Procuratorate, and support and help from central state organs and academics and the public. Timely guidance from the NPC LAC signals (as mentioned previously), that SPC staff spent unknown numbers of hours ensuring that these judicial interpretations were properly harmonized.
It is unclear to me whether those of us outside the system will ever learn about the amount of work involved. I surmise the responsibility of delivering this timely and properly depended on the project management skills of the Research Office. If foreigners could give recommendations to SPC leaders concerning “models of socialist labor (动模范),” I would recommend it to all involved in the transition to the Civil Code.
Given the very general provisions of the Civil Code, these judicial interpretations (and more to come) are crucial for the operation of the Chinese legal system, despite theoretical questions about their binding nature beyond the court system.
As of 1 January 2021, the following judicial interpretations and other normative documents implementing the Civil Code have been issued (the English titles below are rough translations). I will link to English translations as they become available. Unless otherwise noted, a document is a judicial interpretation. Among the many aspects of the drafting process, per the SPC’s relevant five year plan, socialist core values have been incorporated into the judicial interpretations.
The judicial interpretations
Scattered comments are in italics. Where judicial interpretations have numbering , for example (1), it suggests that the drafters anticipate further comprehensive interpretations as the greater situation (大局) evolves:
Decision on invalidating certain judicial interpretations and judicial normative documents (关于废止部分司法解释及相关规范性文件的决定). It canceled 116 of them, some of which I recall reviewing for my 1993 article;
Regulations on timing application of the Civil Code (
关于适用《中华人民共和国民法典》时间效力的若干规定). These rules relate to application of Civil Code for disputes etc. that arose pre-Civil Code. Although the general rule is that the then current law and judicial interpretations will be applied, for some types of cases the Civil Code will be applied. (If it better protects a party’s rights and interests, upholds social and public order, and promotes socialist core values). Chart with explanation linked here.
Interpretation on the application of the marriage and family part of the Civil Code (1) (最高人民法院关于适用《中华人民共和国民法典》婚姻家庭编的解释（一）). Note article 1 links ongoing domestic violence to the term “abuse” in the Civil Code. Chart with judicial interpretation, Civil Code, and prior judicial interpretation linked here.
Interpretation on the application of law to the property （rights in rem) part of the Civil Code] (1) (最高人民法院关于适用《中华人民共和国民法典》物权编的解释（一）). Rules relate both to immovable (real) and movable property, and authority of both courts and arbitral institutions;
Interpretation on the application of law to the inheritance part of the Civil Code (1) (最高人民法院关于适用《中华人民共和国民法典》继承编的解释（一）). Chart with judicial interpretation, Civil Code, and prior judicial interpretation linked here.
Interpretation regarding the system of taking security) ( 关于适用 《中华人民共和国民法典》有关担保制度的解释). This is a comprehensive interpretation on secured interests (besides mortgages, guarantees, liens, pledges, it also has content concerning factoring, finance leasing, and retention of title, as well as the giving of security by companies. It specifies that independent (demand) guarantees continue to be governed by the 2016 judicial interpretation on that topic. Those latter regulations are crucial to BRI infrastructure projects, as mentioned in this blogpost.
Decision on amending the interpretation on the application of the Trade Union Law and 27 other civil law related judicial interpretations related to civil-related judicial work (关于修改《最高人民法院关于在民事审判工作中适用〈中华人民共和国工会法〉若干问题的解释》等二十七件民事类司法解释的决定);
Decision on amending the “SPC Provisions on some issues concerning people’s courts seizing goods being shipped by rail” and 18 other enforcement-type judicial interpretations (关于修改 《最高人民法院关于人民法院扣押铁路运输货物若干问题的规定》等十八件执行类司法解释的决定)。 Comparison chart linked here;
Notice that certain guiding cases are not to be further used for reference (最高人民法院关于部分指导性案例不再参照的通知). This is a judicial normative document, not a judicial interpretation.
SPC issues amended “regulations on civil causes of action” (最高人民法院印发修改后的《民事案件案由规定》). This is a judicial normative document, not a judicial interpretation. This link contains both the decision itself to amend the causes of action and the amended causes of action. Compensation for sexual harassment is listed (#372), but detailed provisions on the elements have not yet been issued.
Supreme People's Court Monitor 
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