One of the most important functions (职能) of the Supreme People’s Court (SPC) is issuing judicial interpretations (司法解释), which it issues for the most part unconnected with a specific “case or controversy” but rather drawing on many cases that have previously arisen in the lower courts. They are a critically important way that the SPC unifies the application of law. The extent to which SPC judicial interpretations are binding is one of several fundamental uncertainties attaching to this function, as the National People’s Congress (NPC) Standing Committee is authorized to review them and may require amendments to them or more, and it is unclear how much they bind institutions outside the court system. But what can be said is that they are critically important to the operation of the Chinese legal system, The SPC, particularly its headquarters in Beijing, focuses on judicial interpretation work for reasons connected with the slow pace and abstract language of Chinese legislation, although Chinese (and foreign) scholars, lawyers and other commentators sometimes criticize the SPC’s expansive reading of laws.
About one month ago (in June 2021), the SPC updated its 2007 Judicial Interpretation Work Provisions (JI Work Provisions) in this decision 关于修改《最高人民法院关于司法解释工作的规定》的决定). [See a refresher on the legislative basis of judicial interpretations, if needed.] The JI Work Provisions describe the types of judicial interpretations the SPC can issue, which institutions can propose drafting judicial interpretations, the drafting process, the promulgation process, the filing process, etc. The update was a minimally invasive one, adding to Article 6 a new category of documents, now classified as judicial interpretations–rules (规则). Rules are defined in a new paragraph of Article 6, as follows: “The judicial interpretations regulating the trial practices of people’s courts shall adopt the format of “Rules”–the intention being that when the SPC issues court rules, they should be in the form of 规则. That means that from now on there are five types of judicial interpretations:
- “interpretation” (解释); (a set of legal rules in a specific area of law, unrelated to a specific case). Examples include the 2015 interpretation on environmental public interest litigation, the 2015 interpretation of the Civil Procedure Law, discussed here, and the 2012 judicial interpretation of the Foreign-Related Civil Relations Law, and the 2013 joint SPC and SPP interpretation on internet speech crimes.
- “provision”(规定). Examples include: The 2015 case filing regulations, discussed here, the 2014 regulations on the jurisdiction of the Beijing, Shanghai, and Guangzhou intellectual property courts, 2014 Provisions on Administrative Cases Involving Work-related Injury Insurance (discussed here), and the 2015 provisions on the Court’s circuit tribunals;
- “reply” (批复)(a reply to a “request for instructions” from a lower court relating to an issue of general application in a specific case); One example is: Official Reply of the Supreme People’s Court on the Starting Date of the Statute of Limitations in Which the Insurer of a Marine Insurance Contract Exercises the Right of Subrogation to Claim for Compensation (response to the Shanghai Higher People’s Court);
- “decision”(决定) (a document abolishing or amending existing judicial interpretations). Examples include: the 2020 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) and Decision on amending the judicial interpretation on the hearing of patent tort disputes and 18 other intellectual property-related judicial interpretations (关于修改《最高人民法院关于审理侵犯专利权纠纷案件应用法律若干问题的解释（二）》等十八件知识产权类司法解释的决定; and
- “rules” (规则). Rules are defined in a new paragraph of Article 6 of the JI Work Provisions, as follows: “The judicial interpretations regulating the trial practices of people’s courts shall adopt the format of “Rules”. An example is Online Litigation Rules for People’s Courts (人民法院在线诉讼规则).
The amendments underwhelm this observer, who had read many SPC documents signaling that many changes were needed. Two of those are Article 26 of the 2019 Fifth Five-Year Judicial Reform Plan Outline and Article 2 (3) of the 2020 Opinions of the Supreme People’s Court on Improving the Work Mechanism for Unifying the Standards for Application of Law (Opinion on Improving the Work Mechanism) :
#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….
Article 2 (3) of the Opinion on Improving the Work Mechanism:
Judicial interpretation is an important part of the socialist judicial system with the Chinese characteristics and an important duty of the Supreme People’s Court. For special issues of application of laws in judicial work, especially the unspecific and unclear provisions of the laws which result in difficulty in understanding and enforcement, changes in circumstances which result in different understanding of the basis for handling cases, different standards used for rulings of specific cases in same type and other relevant issues, the Supreme People ’s Court shall strengthen investigation and study and formulate judicial interpretations in a timely manner strictly in accordance with the law. In respect of the judicial interpretations involving the interests of the people or major and complicated issues, public comments shall be solicited openly. It is imperative to further standardize the procedures for formulation of judicial interpretations, improve the mechanism for research, project initiation, draft, argumentation, review, promulgation, clearing and repeal and improve centralized management and record-filing review mechanism.
The question is, why after all this language about providing more details about judicial interpretation procedures, did the SPC leave the rules unchanged, except for adding one new category of judicial interpretations? The SPC’s press conference announcing the 2020 Opinion on Improving the Work Mechanism does not shed any light on this question.
I surmise that the SPC leadership decided that it was most prudent to leave the regulations unchanged because it is best to leave maximum flexibility in the drafting process. The language in the documents above on improving judicial interpretation procedures remains significant as reminders to the SPC Research Office and others involved in the judicial interpretation drafting process. The Research Office is the gatekeeper for reviewing proposals, as well as examining and coordinating the drafting of judicial interpretations. It also acts as the liaison when other central institutions forward their draft legislation and draft judicial interpretations to the SPC for comments, coordinating the SPC’s response with other divisions and offices, with a knowledgeable person noting that “the view of the Research Office prevails.”
The SPC liaises with the NPC Legislative Affairs Commission during the judicial interpretation drafting process to harmonize the views of the institutions. In an article published on 21 July 2021 by China University of Political Science and Law Professor Luo Xiang on appraisals by administrative institutions in criminal cases, he compared an article in the Criminal Procedure Law judicial interpretation issued for comment with the final version, noting that “the Office for Criminal Law of the Legislative Affairs Commission of the National People’s Congress clearly held a negative attitude [to the language of the article in the original draft] “(全国人大法工委刑法室则明确持否定态度).
As I understand the language in the two documents quoted above, they serve as further reminders that the Research Office staff should review the package of documents that come before them before the documents are forwarded to the SPC Judicial Committee (Adjudication Committee) for consideration with these factors in mind (among others):
- is it clear that the divisions (tribunals) involved have done sufficient research and investigation about the issues that arise in practice;
- is it sufficiently comprehensive, with the right amount of discretion given to the lower courts and accommodate varying judicial competence, economic and social development; and
- does it incorporate the views of relevant internal and external stakeholders?
On the topic of flexibility in procedures, take the example of public consultation. As I mentioned in January, the Regulations on JI Work Provisons 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. In November 2020, 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.
It appears many judicial interpretations do not involve public consultation. Consulting the public is optional, unlike consulting internal and other official stakeholders. Article 17 of the JI Work Provisions requires approval by two SPC leaders–the vice president in charge of that type of issue, plus either the court president or the executive vice president (currently Justice He Rong). As I wrote in my recently published book chapter, a review of SPC judicial interpretation public consultations reveals that few, if any, have been in the area of criminal law or criminal procedure law. One experienced SPC judge gave his view of why that was so:
It’s the SPC’s bureaucratic nature! It thinks that the power to draft interpretations is with it and it is completely within its ability to draft good judicial interpretations. So therefore no democratic procedure has been formed to broadly consult different parts of society during the drafting process. The practice always has been internal consultation, generally consulting gongjianfasi [公检法司] [public security, procuratorate, courts, and administration of justice], and experts, the various divisions and offices of the SPC, and then it is submitted and approved. If timing is rushed, one or two experts will be consulted.
My book chapter, describing what I called “gated community” procedures, explores other reasons as well.
Another topic mentioned by the documents cited above is project approval or initiation, also discussed in further detail in my book chapter. Since 2018, the SPC has provided the domestic and international professional world with more transparency about its judicial interpretation agenda by making public the document by which the SPC leadership gave project approval (立项) to proposals for drafting judicial interpretations. The SPC has a yearly plan for drafting judicial interpretations, as set out in the JI Work Provisions, analogous to the National People’s Congress (NPC)’s legislative plans. It should be noted that the JI Work Provisions do not require the project approval document to be made public. This year, the judicial interpretation agenda has not [yet] been released. It is unclear whether it is a matter that was overlooked in the flood of other documents issued or for some other reason.