Judge Guo Feng, deputy head of the Supreme People’s Court (SPC)’s Research Office, with the ranking of first level inspector (a senior non-leadership position ( 一级巡视员 ) spoke in late October at the annual meeting of the China Law Society’s Civil Law Research Group, at which he revealed further information about the SPC’s timetable on issuing further interpretations of the Civil Code, as well as senior SPC leadership’s thinking about judicial interpretations. Please see this recent blogpost if a refresher about judicial interpretations would be helpful. I have italicized my brief comments.
In his remarks, he revealed the methodological thinking behind the drafting of the Civil Code judicial interpretations. He expresses a principle that I have heard from others at the SPC–that there is a palpable line between the SPC’s power of judicial interpretation and the NPC’s legislative power and power of legislative interpretation. For many in the legal world outside of China (and some inside China based on this and several other recent academic articles), it appears to be an invisible red line. As for what should be the focus of judicial interpretations, I believe that internally they will be able to have a sense, from discussions with colleagues in other divisions, lower court judges and from lawyers, if comments are sought from them:
The first is how to grasp the degree, that is, how to achieve an appropriate degree in the design and expression of the specific content, specific system, and specific clauses of judicial interpretation. The core of moderation is how the judiciary can perform its duties and responsibilities in accurately applying the law, and cannot overstep and covet the legislative authority’s legislation and the power of legislative interpretation.
The second is how to achieve a balance of quantity, that is, in the face of the 1,260 legal provisions in the seven parts of the Civil Code, which ones should be judicially interpreted? What should not be judicially interpreted? Which Parts and which chapters should be the focus for some judicial interpretations? Furthermore, in each separate judicial interpretation, how much content and complexity should be in each provision?
Interpretation Agenda & Timetable
Judge Guo mentioned that the Civil Code judicial interpretations on the judicial interpretation agenda include one on the General Part and the Contract Parts of the Civil Code. The General Part Judicial Interpretation (1) draft (最高人民法院关于适用<中华人民共和国民法典>总则编的解释（一）》was discussed this spring. The Contract Part interpretation has been discussed at several other academic conferences in Beijing besides the one described in the earlier blogpost.
Judge Guo mentioned that the General Part (1) interpretation is scheduled to be submitted to the SPC’s judicial (adjudication) committee before year-end and the Contract Part Judicial interpretation is scheduled to be submitted to the judicial (adjudication) committee by the end of the first quarter of 2022. I surmise that Court President Zhou Qiang wants to include the promulgation (or the upcoming promulgation) of the Contract Part of the Civil Code as one of the SPC’s accomplishments in 2021. So I have my doubts that public comments will be sought on the draft. The Tort and Personality Rights judicial interpretation drafts are still at the research stage. He also mentioned that they do not plan to issue a comprehensive draft of the Personality Rights Part, but instead be guided by practice, and focus on issuing an interpretation on Article 997 (relating to the right of a party to seek an injunction to stop violations of the person’s personality rights). On the Contract Part judicial interpretation, I had previously said “as to whether this judicial interpretation will be issued by the end of this year, I personally have my doubts. “
Issues Going Forward
Judge Guo mentioned that they are facing issues concerning overlapping provisions in different parts of the judicial interpretations of the Civil Code, such as the provisions in judicial interpretation of the General Part of the Civil Code overlapping with provisions in the judicial interpretation of Contract Part, and overlapping provisions between the Personality Rights Part and the Tort Part. He says that these issues regarding the planning of the interpretations need to be solved by the academic community and the SPC together. I have my doubts, however, that those in the academic community, unless they have spent time at the SPC, will be able to provide useful advice to the drafters on how to harmonize the different provisions in the judicial interpretations of the Civil Code in a user-friendly way, that enables an overworked basic level court judge (or her judge’s assistant or intern) to quickly and easily find the correct rule.
Finally, Judge Guo mentioned that the SPC’s judicial committee decided that in the future, it will no longer engage in large and comprehensive judicial interpretations, and will no longer engage in excessively lengthy judicial interpretations, and encourage focused judicial interpretations. My guess is some persons in the political leadership commented on the long judicial interpretations, of which the SPC has issued quite a few in the past few years. I imagine that this will be the case until the amended Arbitration and Bankruptcy Laws are promulgated. Then there will be a demand from the lower courts and the Chinese legal community for comprehensive judicial interpretations that consolidate previous interpretations, to the extent relevant, discard irrelevant provisions, and provide further detail to new provisions.
Many thanks to certain anonymous readers of an earlier draft of this blogpost. They are not responsible for any errors or “erroneous views.”