Integrating socialist core values into court judgments

On 18 February 2021,  the Supreme People’s Court (SPC) issued the Guiding Opinions on Deeply Promoting the Integration of  Socialist Core Values into the Analysis and Reasoning of Adjudicative Instruments (关于深入推进社会主义核心价值观融入裁判文书释法说理的指导意见 the SCV Guiding Opinion).  This Guiding Opinion is intended to guide the way SPC  and lower court judges write their court judgments and rulings (and any other judicial document issued to the public) to better incorporate the use of socialist core values and for those judgments to be better understood by the general public. 

For close observers of the SPC and the Chinese court system, the SCV Guiding Opinion came as no surprise.  That this Opinion would be issued was clear from phrases in several Party and SPC documents issued in recent years.  The SCV Guiding Opinion is important not only for what it says about the use of socialist core values in judgments and also for its guidance to judges on the analysis and reasoning in court judgments, rulings, and other documents.  

This blogpost is not intended as an extended academic analysis of socialist core values and the law, of which there are several excellent ones by Sue Trevaskes and Delia Lin.  It will address some more modest questions, such as:

  • what it says, including what it requires of SPC and lower court judges;
  • the documents linked to the SCV Guiding Opinion
  • how the SCV Guiding Opinion should be classified & whether it is binding or persuasive;
  • what a quick sampling of judgments containing socialist core values uncovers,
  • the vision of the court system portrayed by the SCV Guiding Opinion.

I have italicized my comments.

Summary of the SCV Guiding Opinion

The background for the SCV Guiding Opinion is that it is part of what is required by the Party Center to integrate socialist core values into the legal system and to promote their use in national governance.  This has been a theme in writings of Xi Jinping about the law, the Party  Plan on Building the Rule of Law in China (2020–2025), previous Party documents, and related SPC documents.  Some of those background documents are listed in a later section of this blogpost.

Article 1 provides that the underlying principles of the SCV Guiding Opinion are:

  1. a fusion of law and morality, which is linked to their fusion in traditional legal thought ( 法治与德治相结合); 
  2. people-oriented (以人民为中心), meaning that judgments should be clear to ordinary people and serve the purpose of educating them; and
  3. the organic unity of legal, political, and social effectiveness (政治效果、法律效果和社会效果有机统一 ), because by strengthening the guiding role of socialist core values it will enhance the legal, social, and rational recognition of judicial judgment.

The summary below highlights some of the principal points for Chinese judges.

Article 4 specified the types of judgments in which the use of socialist core values should be increased:

  1.  Cases involving national interests, major public interest, and widespread public concern;
  2. Cases involving epidemic prevention and control, emergency rescue and disaster relief, protection of heroes, brave actions for righteousness, legitimate defense,  and other such cases may trigger social moral evaluation;
  3. Cases involving the protection of vulnerable groups such as the elderly, women, children, and the disabled, as well as groups that have major disputes and may cause widespread concern in the society;
  4.  Cases involving public order and good customs, customs, equality of rights, ethnic religions, etc., where the parties to the litigation have major disputes and may cause widespread concern in the society;
  5. Cases involving new situations and new issues that require in-depth interpretation of legal provisions, judicial policies, etc., to guide social trends and establish value orientation;
  6. Other analogous cases.

What this means is that in cases where there is a great deal of public concern, judges should seek to use socialist core values.  Some of these, especially with national interest, major public interest, types of cases that attract Party leadership attention, or wide public concern are likely to be those in which the higher levels of the courts, or local political-legal commissions provide their views.

A significant part of the SCV Guiding Opinion contains guidance to lower court judges. I surmise that the guidance is directed towards less experienced and educated judges. My understanding is that more sophisticated judges, who are highly knowledgeable about political matters in addition to being technically highly competent, would consider the guidance unnecessary.

Articles 5-6 address judgment drafting.  These provisions relate to the  2018 SPC Guiding Opinions on Strengthening and Standardizing the Analysis and Reasoning in Adjudicative Instruments. Article 5 gives Chinese judges rules of interpretation generally in cases involving socialist core values., directing them to first look to a normative legal document (law or judicial interpretation) as the basis for judgment, the legislative intent, and supplement it with socialist core values.  Article 6 gives directions to judges in civil and commercial cases where there is no normative legal document as the direct basis for the judgment. Judges should use socialist core values ​​as the guide and custom and the most similar legal provisions as the basis for the judgment; if there is no most similar legal provision, judges should make judicial decisions in accordance with the spirit of the legislation, legislative purposes, and legal principles, and make full use of the core socialist values ​​in the judgment documents to explain the basis and reasons for the judgment.  It is this principle that has attracted dry comments from some of the legal professionals with whom I am acquainted.

Article 7 gives guidance to judges in cases involving multiple socialist core values, directing them to consider the spirit of the legislation, legal principles, provisions, and law and legal provisions to balance and select the relevant principles and values.   Article 8 directs judges to respond, if possible, orally in court, to the use of socialist core values by parties in court.

Article 13 directs judges handling cases that fall into one of the Article 4 categories, to emphasize socialist core values, in situations in which cases are discussed in professional judges committees or judicial (adjudication) committees.

Article 14 encourages socialist core values to be included in judicial training, particularly that related to the Civil Code, and Article 16 encourages competitions to find the best judgments that cite socialist core values.

Flagging the SCV Guiding Opinion

Several recent Party and SPC documents flagged the SCV Guiding Opinion.  Among them are:

  • the April 2020 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– (最高人民法院关于人民法院贯彻落实党的十九届四中全会精神推进审判体系和审判能力现代化的意见)–improve and promote the in-depth integration of socialist core values ​​into the supporting mechanisms for trial and enforcement (完善推动社会主义核心价值观深度融入审判执行工作配套机制). My blogpost on that document briefly mentioned socialist core values;
  • the 2020 Plan on Building the Rule of Law in China (2020–2025), mentioned above
  • the 2019 5th Five Year Judicial Reform Plan Outline; and
  • the 4th Plenum of the 19th Party Congress.

This Guiding Opinion can be considered the progeny of the SPC’s 2015 Opinions on Cultivating and Practising Socialist Core Values at People’s Courts. 最高人民法院关于在人民法院工作中培育和践行社会主义核心价值观的若干意见, after which the SPC issued typical cases, both discussed in Sue Trevaskes’ and Delia Lin’s academic articles linked above. Their articles also discuss other related documents. As I wrote in 2018, the SPC issued a five-year plan, never made public, to incorporate socialist core values into judicial interpretations.

How to Classify the SCV Guiding Opinion

As to which basket of SPC documents the SCV Guiding Opinion should be placed, that relates to the catalog that I set out in a November 2020 blogpost on the SPC’s soft law. I classified a number of the SPC’s documents into different categories.  According to my classification, the SCV Guiding Opinion should be classified as Opinion Type 1, although the criteria I mentioned don’t fit perfectly.

As I defined it, that type of Opinion is one issued solely by the SPC, which create and transmit to the lower courts new judicial policy, update previous judicial policy, and establish new legal guidance that may be eventually crystallized in judicial interpretations and direct the lower courts, but cannot be cited in judicial judgments or rulings. They are generally linked to an important Party or state strategy or initiative. 

The SCV Guiding  Opinion is linked to an important Party and state strategy or initiative, that of promoting socialist core values. As a “guiding opinion,” it is intended to push policy forward. Article 17 of this document directs the SPC itself and lower courts to issue occasionally socialist core value-related model cases. From a quick search of recent lower court model cases, local courts have taken account of this.

Socialist Core Values in Chinese court judgments 

Chen Liang, one of my current students, sampled cases from basic level courts in various parts of China as set out in this spreadsheet. He originally found over 6000 cases that used “socialist core values.”In his research, he found three ways that courts invoke socialist core values:

  1.  elaborating a legal standard (such as Case No. 1), a trend that I had found in my own research);

In this case, the defendant (a government branch) rejected the plaintiff’s application to recognize his father, a KMT military officer, as a martyr who died in the Anti-Japanese War, and the plaintiff sued to correct this decision. The Court invoked the SCV to emphasize the importance of the recognition of someone as a martyr, and then affirmed the defendant’s strict scrutiny of the application.

2.invoking socialist core values as a way to allocate liability (such as Case No. 9); 

The plaintiff was hit by the defendant, and was in hospital. After 15 days in hospital, the doctor recommended him to leave, but he refused by claiming he had headache. Then, the plaintiff stayed in hospital for 110 days, and sued the defendant for compensation of medical fees of 110 days. When considering the exact duration to be compensated, the Court noted that the plaintiff’s action was wasting public medical resources, which was a violation of the SCV, and then confirmed that the defendant only had to compensate for the medical fees of 15 days in hospital.

3. invoking socialist core values as a way to educate people (or to promote total social welfare) (such as Case 10).

The plaintiff and defendant agreed to jointly operate a restaurant, and they had disputes during the operation. The plaintiff sued for damage. During the trial, the parties insulted with dirty words against each other. Given that, the Court asked the parties to contemplate on their behaviors considering the whole society was promoting SCV.

This use of cases to educate the public, noted in the academic articles mentioned above, also links to a more recent line of documents about which I wrote in July 2020, relating to using cases to explain the law and the popularization of law responsibility system (普法责任制). As mentioned in that blogpost, Sue Trevaskes has also written about the history of the popularization of law (pufa).

In my view, following this document, we are likely to see many more cases mentioning socialist core values, likely falling in all three categories mentioned above.

Vision of the Chinese Court System

This Guiding Opinion can be seen as a part of the “socialist core valueization” of Chinese law and the legal system, and in particular, the judiciary. It is one important piece of how the judiciary is being further transformed in the Xi Jinping era.

Article 1 is part of official legal ideology so that the drafters of this Guiding Opinion (the  SPC’s Judicial Reform Office) must incorporate those principles. The Party Center requires this to be done.   As  Sue Trevaskes and Delia Lin mentioned in their writings, as in the traditional legal state, “morality here is treated in a particular normative sense whereby claims are made about the unified nature of socialist values held by China’s rulers and the ruled.”  This long-time observer of Chinese society would question whether the moral values across Chinese society are as unified as this ideal has it. 

An aspect the drafters of this document may not have considered is  whether this approach to law and court judgments is consistent with China’s desire to promote the use of Chinese law overseas, which the SPC has promoted in its Opinion on Further Providing Judicial Services and Guarantees by the People’s Courts for the Belt and Road Initiative (BRI Opinion #2, discussed in this blogpost).  The fusion of law and morality in cases involving multinational commercial parties seems problematic. 

These principles see the public as a body to be educated, and that judgments need to further incorporate socialist core values to be better accepted by the public.  Writing judgments in language the public can understand–plain language judgments–is a worldwide concern of domestic courts, but incorporating socialist core values may or not be the way to achieve that.

As I mentioned above, a significant part of the SCV Guiding Opinion contains guidance to lower court judges. I surmise that the Judicial Reform Office decided that this guidance was needed for less experienced and educated judges in less developed parts of China. The more experienced judges, with many years of experience and training, both substantive and ideological, are unlikely to need such guidance set out in an SPC document.

The reality of Chinese society that Chinese judges face, particularly at the local level, is not the one that matches the socialist core values ideal. That can be seen from cases discussed in the Chinese professional media (and some cases that have caught Chinese media attention) about some of the difficult issues that they face when needing to incorporate socialist core values. A few of those cases could include:

cases involving the status of children whose parents are not married under the Chinese legal definition of marriage to one another. That may be gay or lesbian couples or one in which a married man fathers a child with a woman with whom he is not married;

Cases involving disputes between a gay or lesbian couple that has split over mutually-owned property; 

Cases involving the rights of single women who wish to have children without being married.

The SCV Guiding Opinion can be seen a signal of the direction towards which the Chinese courts are being guided.  The more sophisticated judges will know how to balance the above requirements with the need to issue a judgment that parties in cases that involve fundamental personal rights find acceptable.

 

 

How the Supreme People’s Court Coordinates With Other Party & State Organs

3rd meeting of the Inter-Ministerial Conference Combatting Illegal Trade in Wild Plants and Animals

A little-discussed aspect of the work of the Supreme People’s Court (SPC) is coordinating with other Party and state organs to better serve the greater situation and resolve specific policy issues.   At some point, I will set out a fuller description of this distinctive function of the SPC and its background history, but that will need to wait until I have plumbed the SPC’s past regulatory documents and conducted a more complete survey of practices in SPC divisions.   I examined one aspect of the way that the SPC coordinates with other departments in a book chapter to be published in the fall of 2021. That chapter focuses on the drafting of criminal procedure judicial interpretations. The  “never-ending” academic article that I am writing touches upon one aspect, briefly. This blogpost highlights some formal frameworks for coordination and at least some of what is involved. 

 Coordination with other central Party and state organs regarding specific legal issues is one of the unrecognized functions of the SPC. It  is hard to assess how much coordination work is done in comparison to other functions of the SPC, such as hearing cases or drafting judicial interpretations.  Because the Collection of the Supreme People’s Court’s Judicial Rules, a handbook for judges, places the principle “establish coordination mechanisms, properly resolve administrative disputes” in the section of general principles of administrative law, I surmise that coordination is a very important function of the administrative division. From my research below and discussions with knowledgeable persons,  some judges in the civil and commercial divisions are involved in work under these frameworks, and likely also the Research Office. Some issues involve multiple divisions of the SPC.

My understanding is that coordination with other central Party and state organs is a customary function of the SPC that is being repurposed, in part, in the New Era. For that reason, I surmise that more of this will take place in SPC headquarters in the future. This is based on two factors. The first is that SPC hears most commercial and administrative cases in the circuit courts. Second, coordination with other central organs appears to be an increasingly important part of New Era governance.  That was flagged in several statements of Liu Zheng, deputy head of the SPC’s Judicial Reform Office, in a February, 2021 press conference, where the SPC released its report on online mediation. Liu Zheng stated:

promote the improvement of the social governance pattern of joint construction, co-governance and sharing…(促进完善共建共治共享的社会治理格局)

In describing the accomplishments of the SPC in promoting diversified dispute resolution, he stated:

We strengthened our communication and coordination with Central departments (ministries) and commissions, we held three coordination meetings at the ministry level, and established a joint action mechanism (加强与中央部委的沟通协调,3次召开部委层面协调交流会,建立联动机制 ).

  At the central Party level, clearly coordination occurs at the level of broad policy through the Central Political Legal Commission and the Building Ping’an (peace and safe)-China Coordination Small-Group about which Li Ling wrote last year.  Other coordination occurs through leading small group offices (工作领导小组办公室).  I describe one below.  This blogpost will focus on State Council Inter-Ministerial Joint Conferences because it is through those that much of the more specific coordination occurs.  Thankfully for the researcher, State Council transparency is quite good and I found many approval documents for Inter-Ministerial Joint Conferences. From my research thus far, the SPC participates in many Inter-Ministerial Joint Conferences established by the State Council. I note that some other jurisdictions have Inter-Ministerial Council Conferences as well, not involving the judiciary. In some instances, ministries or commissions of the State Council create coordination mechanisms with the SPC, while the SPC initiates some.  Some coordination is done more formally on an as-needed basis, as Liu Zheng mentioned and that requires separate research. It is understood that within the framework of the formal structures, interaction and coordination occur at the staff level.

Leading Small Group Coordination Offices

As mentioned above, the Party Center has established some leading small group coordination offices to coordinate specific central Party and state organs policies and measures. Because of the nature of the matter, the SPC is a member. One example is the following office.

The Pursuit of Fugitive [Officials] Pursuit of Stolen Assets Working Office of the Central Anti-Corruption Coordination Leading Small Group (中央反腐败协调小组国际追逃追赃工作办公室), established in 2015, of which the SPC is a member.  The 2017 judicial interpretation on asset recovery is likely related to the SPC’s work in this group.  The SPC is involved in the yearly Skynet operation. Through this office,  the SPC  participates in related campaigns under this mechanism, such as a 2015 one against offshore companies and underground banks.

Inter-Ministerial Joint Conferences

The State Council has established many Inter-Ministerial Joint Conferences (部际联席会议), in which other Central-level ministries take the lead (牵头) and the SPC is one of many other Party and state organs involved. For those unfamiliar with Inter-Ministerial Conferences in China, the Office of the Central Staffing Commission has an authoritative explanation (amended Google translate):

The inter-ministerial joint conference  is established to negotiate and handle matters involving the responsibilities of multiple departments of the State Council. It is established with the approval of the State Council. The member units communicate in a timely manner and coordinate differing opinions. It is a work mechanism for enabling the smooth implementation of a task (responsibility). It is the highest-level joint meeting system of administrative agencies. The establishment of inter-ministerial joint conferences should be strictly controlled. For matters that can be resolved through coordination between the sponsoring department and other departments, inter-ministerial joint conferences are generally not established. The establishment of inter-ministerial joint conferences must be submitted to the State Council for approval. The lead department shall ask for instructions, clarify the name, convener, lead unit, member unit, work tasks and rules, etc., and submit it to the State Council for approval after approval by relevant departments. After the task of the inter-ministerial joint conference is completed, the lead department shall submit an application for cancellation, stating the establishment time of the inter-ministerial joint conference and the reasons for its cancellation, etc., and submit it to the State Council for approval after the approval of the member units. The newly established inter-ministerial joint conference which is led by the leading comrades of the State Council, may be entitled ” State Council… ” , and the other joint conferences are collectively referred to as ” inter-ministerial joint conferences . ” The inter-ministerial joint conference does not engrave a seal or formally issue documents. If documents must be formally issued, the name of the leading department and the seal of the leading department may be used, or the relevant member units may jointly issue a document.

SPC and Inter-Ministerial Joint Conferences

Sometimes the SPC is a founding member of an Inter-Ministerial Joint Conference. In other situations, it is recognized that the expertise of the SPC is needed and the SPC is invited to join after the Inter-Ministerial Joint Conference has been in operation for several years. Some examples are:

  1. The Inter-Ministerial Joint Conference on the Implementation of the Intellectual Property Strategy of the State Council,  headquartered at the China National Intellectual Property Administration, of which the SPC is one of many members. It is directed towards achieving the National Intellectual Property Strategy and unusually, has its own website.  A previous version was established in 2008, but that was superseded in 2016 when the State Council revamped the Inter-Ministerial Joint Conference, likely to better achieve China’s Intellectual Property Strategy.  Justice Tao Kaiyuan is designated as a member of the Joint Conference on behalf of the SPC.  The Joint Conference meets from time to time and issues an annual plan, allocating responsibilities to members according to their authority.  Among the matters allocated to the SPC in the 2020 plan is promoting three-in-one hearing of intellectual property cases and drafting a Guiding Opinion for Three-in-one Work ( 深入推进知识产权审判“三合一”工作,制定“三合一”工作指导意见。(最高人民法院). ” (For those unfamiliar with Three-in-one hearings,” they refer to integrating jurisdiction over civil, administrative and criminal intellectual property cases. It is understood that discussions occur at staff level to coordinate and promote policies. 
  2.  The Inter-Ministerial Joint Conference on Combating Illegal Plant and Wildlife Trade (打击野生动植物非法贸易部际联席会议), established in 2016. The SPC (and the Supreme People’s Procuratorate (SPP)) was invited to join the conference in  2020., which likely means that the organizer, the State Forestry Administration, did not realize that the expertise of the SPC and SPP were necessary. The SPC is one of 27 Central-level organs. It is likely that the 2020 Guiding Opinions on Punishing the Illegal Trade of Wild Animals issued by the Supreme People’s Court, the Supreme People’s Procuratorate, the Ministry of Public Security, and the Ministry of Justice is a product of this Inter-Ministerial Mechanism.
  3. The Inter-Ministerial Conference on Money Laundering (反洗钱工作部际联席会议制度).  The State Council established it in 2004.  The People’s Bank of China takes the lead. National Money Laundering Strategies are drafted under its auspices. The role of the SPC is to supervise and guide the trial of money laundering crimes and formulate judicial interpretations in a timely manner in response to relevant legal issues encountered (督办、指导洗钱犯罪案件的审判,针对审理中遇到的有关适用法律问题,适时制定司法解释)It is understood that at a staff level, discussions take place regularly, and the SPC has issued several judicial interpretations as a result.
  4. As mentioned in a blogpost in 2020, in 2017 the State Council approved an Inter Ministerial 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.

SPC established coordination mechanisms

The SPC establishes coordination mechanisms with other government and Party departments such as:

  1. The family trial method and work joint conference mechanism (家事审判方式和工作机制改革联席会议), established in 2017 with Central Political-Legal Commission consent; and
  2. Under the framework of Inter-Ministerial Joint Conferences, specific coordination mechanisms may be established. One likely product of ongoing policy discussions under the framework of the Intellectual Property Inter-Ministerial Joint Conference discussed above was the January 2021 establishment of a mediation coordination mechanism between the SPC  and the China National Intellectual Property Administration.

Legal basis

The legal basis of coordination appears to be Article 2 of the Organic Law of the People’s Courts in which the courts are called upon to “guarantee the smooth progress of the building of socialism with Chinese characteristics.”

Comments

In the New Era, we can expect to see more and more coordination by the SPC, much of it invisible to those of us outside the system.  It appears to be a recognition of the technical competence of the SPC in resolving a broad range of technical issues required to be resolved in furtherance of the governance of the country.  The State Council and its ministries and commission need the SPC’s expertise to deal with a large variety of legal issues–criminal, civil, administrative, enforcement.  The SPC coordinates with other central Party and state organs because it needs them to resolve specific issues. Given China’s state-run governance model, establishing mechanisms to better coordinate and promote national strategies and targets, and better draft policies and measures are considered an efficient way to accomplish governance targets and serve the needs of the Party and country.