Apologies to readers for the long gap between posts–I have been focusing on yet another academic article and am finding that even so-called “short articles” take much longer than anticipated, especially when the topic reveals more and more complexities than were apparent when I submitted the abstract to the journal months ago.
So instead of any involved analysis, I’ll list some of the year-end (from December) accomplishments of the Supreme People’s Court (SPC) with some brief notes. Another aspect of the SPC being a cross between a Party-state organ and a court is that it needs to meet year-end goals and submit year-end reports. The SPC’s judicial reform leading group recently discussed and approved its year-end report (最高人民法院司法改革领导小组2021年工作总结报告). The judicial reform leading group is headed by President Zhou Qiang. Other members include Justices He Rong, Ma Shizhong (head of the Political Department), He Xiaorong, and Shen Liang. The Judicial Reform Office presumably drafted by the report. It is likely a constituent part of the SPC’s year-end report to go to the Party leadership, before the annual Central Political-Legal Work Conference.
Another aspect of the SPC being a cross between a Party-state organ and a court is that it is inspected by Party inspection groups and is a focal point of campaigns on the education and rectification of political-legal organs.
Among the SPC’s year-end accomplishments are the following. For the avoidance of doubt, judicial interpretations, judicial documents, and typical cases are all means by which the SPC guides the lower courts. I will have more to say about this topic in the unfinished academic article mentioned above.
- Online Mediation Rules of the People’s Courts (人民法院在线调解规则). Online mediation is an important focus of the SPC, as could be seen from this white paper on Diversified Dispute Resolution from early 2021 and from other efforts of the SPC to promote resolving disputes at their source, as consistent with the deployment of the Party Center (党中央关于“将非诉讼纠纷解决机制挺在前面”的重大部署要求. The responsible person of the SPC’s Case Filing Division (presumably the head) pointed out that these rules “had created an online diversified dispute resolution model with Chinese characteristics that differed from ADR or ODR” )形成了有别于ADR和ODR的中国特色在线多元纠纷解决模式). His statement appears designed to be more politically correct than accurate. It is clear that the SPC follows government policy in using “diversified dispute resolution” rather than “alternative dispute resolution,” (ADR) but the English language abbreviation”ODR,” according to my research, is intended to be a general term to capture all sorts of online dispute resolution and not meant to promote one particular model of online dispute resolution. The underlying implication is that “ODR” reflects a “Western” approach. However other (mainland) Chinese government departments use “ODR” without issue. Additionally, the Hong Kong government uses the term “ODR” to refer to its online dispute resolution platform, eBRAM.
- Interpretation of the Supreme People’s Court and the Supreme People’s Procuratorate (SPP) on Several Issues Concerning the Application of Law in Handling Criminal Cases Endangering Food Safety (最高人民法院 最高人民检察院关于办理危害食品安全刑事案件适用法律若干问题的解释). As a joint judicial interpretation, it was approved by the judicial (adjudication) committee of the SPC first and next by the Procuratorial Committee of the SPP.
- Several Provisions of the Supreme People’s Court on the Application of Prohibition Order Preservation Measures in Eco-environmental Infringement Cases(最高人民法院关于生态环境侵权案件适用禁止令保全措施的若干规定) –relating to injunctions to stop environmental pollution, either before or after a party has filed suit. We can expect more and more SPC interpretations and documents related to environmental pollution.
Relevant Provisions of the Supreme People’s Court on Issues concerning Applications for Verification of Arbitration Cases under Judicial Review 最高人民法院关于仲裁司法审查案件报核问题的有关规定. This decision by the SPC updates the 2017 provisions of the same name, adding one article and a clause in another. The new Article 3 requires higher people’s courts to submit draft rulings in judicial review of arbitration matters in domestic arbitration (non-foreign, Hong Kong, Macau or Taiwan-related) if the higher court intends to concur with a lower court ruling that the arbitral award violated social public interest. The new second clause of Article 4 requires the higher people’s court to submit the matter to the SPC within 15 days.
- Several Provisions on the Compulsory Enforcement by People’s Court of Company Shareholding (最高人民法院关于人民法院强制执行股权若干问题的规定). This appeared on the 2019 judicial interpretation agenda, so it has slipped by two years. The provisions apply to enforcing judgments or rulings against shareholder equity in either limited liability companies or companies limited by shares, but not including companies limited by shares that are listed.
Interpretation of the Supreme People’s Court on Several Issues Concerning the Application of Law in the Trial of Disputes over Compensation for Personal Injury in Railway Transport
最高人民法院关于审理铁路运输人身损害赔偿纠纷案件适用法律若干问题的解释 This interpretation concerns persons injured in railway transport accidents, excluding accidents on passenger trains.
On the “coming attractions” discussed in some earlier blogposts, the SPC’s judicial committee (adjudication committee) spent many hours on 30 December 2021 discussing the draft judicial interpretation of the General Part of the Civil Code. When I wrote last about the draft of the General Part, I noted that Judge Guo Feng, deputy head of the Research Office, mentioned that the General Part (1) interpretation is scheduled to be submitted to the SPC’s judicial (adjudication) committee before year-end. That means that Judge Guo (and likely one or more of the principal drafters) were in the room to discuss the draft article by article. The judicial committee finally decided to approve the draft “in principle.” 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. So it is likely that after the SPC amends the provisions that the judicial committee considered needed more work, a quasi-final draft will go back to the National People’s Congress Standing Committee (NPCSC LAC)’s Legislative Affairs Commission because SPC guidance provides that “liaison with the NPCSC LAC must be timely, and after major revisions to the judicial interpretation draft after consulting with the NPC LAC, the view of the NPCSC LAC should be solicited again.” I expect that the draft of the General Part judicial interpretation will be finalized before the National People’s Congress meeting, so that the report can mention this accomplishment.
As I have mentioned many times in the course of 2021, we do not know what was on the SPC’s 2021 judicial interpretation agenda. Those of us outside the System can only hope that the 2022 agenda will be released and that the judicial reform agenda will continue to be released.
Judicial documents (incomplete list)
- Provisions of the Supreme People’s Court and the Ministry of Justice on Providing Legal Aid for Defendants in Death Penalty Review Cases 最高人民法院 司法部关于为死刑复核案件被告人依法提供法律援助的规定. These are joint regulations issued by the two institutions and therefore are classified as “judicial documents,” as discussed here. These provisions establish a mechanism for the Ministry of Justice to appoint legal aid lawyers to defendants whose cases are being submitted to the SPC for death penalty review. If a defendant appoints his or her own lawyer), then the legal aid lawyer stops providing services.
- Provisions on Judges’ Disciplinary Work Procedures (for Trial Implementation)《法官惩戒工作程序规定（试行). I will follow up with analysis at some point as I published a book chapter on judicial discipline at the beginning of 2021. These provisions do not change the conclusion in my chapter.
- Opinions on Strengthening the Substantive Trial of Sentence Reduction and Parole Cases (关于加强减刑、假释案件实质化审理的意见). This is another multiple institution document, intended to tighten up procedures for sentence reduction and parole cases. They are in part a response to a 2020 tragedy in Beijing, in which a prisoner whose sentence was commuted killed one man and injured two more. The incident further revealed that the corruption discussed in this 2015 blogpost continues to exist.
- Notice of the Supreme People’s Court on Studying and Implementing the “Decision of the Standing Committee of the National People’s Congress on Amending the Civil Procedure Law of the People’s Republic of China.”最高人民法院关于认真学习贯彻《全国人民代表大会常务委员会关于修改〈中华人民共和国民事诉讼法〉的决定》的通知. This notice and the amended Civil Procedure Law are of practical importance to tens of thousands of Chinese judges and litigants in the Chinese courts, individuals and entities, domestic and foreign. The notice signals that the SPC is working on amendments to the Civil Procedure Law judicial interpretation (the previous version plus commentary was published in two volumes). This reform relates to the reorienting of four levels of the courts, will increase the number of cases heard with one judge, promotes mediation and smart courts.
- and 6. Two Judicial Services and Safeguards Opinions, one on Providing Judicial Services and Safeguards for Promoting the Development of the West in the New Era and Forming a New Pattern and Opinions on Providing Judicial Services and Safeguards for Promoting the High-quality Development of the Central Region in the New Era（最高人民法院关于为新时代推进西部大开发形成新格局提供司法服务和保障的意见（ and 关于为新时代推动中部地区高质量发展提供司法服务和保障的意见. Related to these two is a document from November 2021– Conference Summary of the Work Promotion Meeting Serving and Safeguarding Ecological Protection and High-quality Development of the Yellow River Basin.最高人民法院服务保障黄河流域生态保护和高质量发展工作推进会会议纪要. That document in turn relates to a 2020Judicial Services and Safeguards Opinion. These are part of a large number of documents providing judicial services and safeguards for Party Center strategies and initiatives, particularly related to regional integration. The article I have temporarily set aside to write this blogpost discusses the purposes and impacts of these documents. I have previously written about these documents often, such as these quick analyses of their structure and purposes. Both Opinions link to Party Center-State Council documents. More analysis to come when I am able to finish the last five pages of the “short academic article” mentioned above.
Reshaping the judiciary
In the fall of 2021, the Party Center launched the second round of the rectification and education of national political-legal organs, with a leading group leading and an office assisting in implementing the campaign. The SPC was one of the focal points (along with other central organs). Just before Christmas, the SPC held a “looking back” meeting to discuss what was revealed and progress made in response. The SPC established a leading small group and office to handle matters properly. (For those interested in further details, please see this webpage.) President Zhou Qiang noted in his work report that the SPC has effectively rectified a batch of stubborn diseases (one of the targets of this inspection) and resolutely eliminated a batch of black sheep (literally, a group of horses that harm the masses) (一批害群之马). The same phrasing is reported from the Ministry of Justice and other political-legal institutions at both the central and local levels. Related to the rectification and education campaign are several new SPC opinions. Those include one strengthening the judicial responsibility system, and creating a new court team 关于在加快推进司法责任体系改革和建设中进一步加强人民法院队伍建设的意见 and another on enforcement. The SPC has issued another related opinion found here, on the “four types of cases.” Perhaps unrelated to stubborn diseases and black sheep is decisions by some SPC judges to continue their careers elsewhere.
I wish all readers a happy and healthy new year, both “Western” and Chinese. I also hope that this year brings us, located in and out of mainland China, opportunities to gather together to discuss legal developments in China from different perspectives quietly, without rancor or blame, but with mutual respect.
I would like to express my appreciation to two anonymous peer reviewers of a previous draft of this blogpost. Special thanks to the person who caught a significant error in the draft.