In late March, the Supreme People’s Court issued its Opinion on Providing Judicial Services and Safeguards for Implementing the National Strategy for Actively Addressing Population Aging (Population Aging Opinion, 最高人民法院关于为实施积极应对人口老龄化国家战略提供司法服务和保障的意见).  The SPC issued a set of typical cases to illustrate specific issues for the lower courts and the general public, consistent with the developments discussed in my last blogpost.  The National Strategy itself is found here.  I have also found that the Asian Development Bank is providing technical support for the National Strategy, although it does not appear the technical support extends to legal aspects.  The National Strategy contains the core of some of the principal measures of the Population Aging Opinion. When I read the Population Aging National Strategy, I knew that the SPC would issue a corresponding judicial services and safeguards opinion because I noticed certain provisions related to the courts and knew (from writing an old blogpost) that the legal infrastructure related to the elderly, including the systems promoted by the courts, has lagged behind the needs of the aging population.

A brief summary of the Population Aging Opinion follows, along with a bit of background information and some very brief comments.

Background

It is one of the latest in a large number of “judicial services and safeguards” (also translated as guarantees) documents, usually issued in the form of opinions, that the SPC has issued in the Xi Jinping New Era.

Although this steadily growing group of SPC documents has not attracted much attention by either academics or practitioners, I take the view that they are worthy of further attention, as they illustrate a number of New Era themes. This blog has published a number of analyses of earlier judicial services and safeguards opinions and I have written two book chapters related to services and safeguards opinions as well. These opinions package related measures, some relating to substantive and procedural law and some related to administrative matters, as broadly understood. The SPC flags legal issues (relevant to the courts) in these opinions. What it flags imbeds the SPC’s analysis of the possible impact of the national strategy or policy on the courts and relevant measures needed to fulfill the obligations of the courts under the strategy or policy. The SPC tweaks judicial policy to respond to the implications of the national strategy or policy.  Follow-up measures implementing specific provisions are usual, as the Population Aging Opinion illustrates.

From having read the Shanghai Jingan District People’s Court 2020 White Paper on protecting the rights of the elderly,  knew that the SPC was aware that the aging of the Chinese population is having an impact on the court system, That court has had a specialized division focusing on the elderly for thirty years, although the title of the division has evolved along with related court policy I.  I recommend the White Paper to any readers who are interested in elderly-related issues in China.

Specialized focus on legal issues related to the elderly does not seem to be widespread either among practitioners or academics. From my inquiries with those teaching in Chinese law schools and in legal practice in China, elderly law is new.  The Ministry of Justice issued a notice on legal services for the elderly, but I surmise that the notice caught few persons’ attention with the nationwide concern about the spread of Omicron in China and lockdowns across many Chinese cities.

The SPC’s #1 Civil Division led the drafting of the Population Aging Opinion. That division that is in charge of “traditional” civil law matters, such as family law disputes (including inheritance, marriage, divorce, and support), as the explanatory press release was entitled as “a responsible person of the #1 Civil Division ” answers questions about the Population Aging Opinion. It is clear that the drafters also consulted with colleagues in other SPC divisions, as many provisions relate to matters outside the competence of the #1 Civil Division.  This type of package document effectively coordinates different divisions and offices of the SPC to work together toward fulfilling the SPC’s responsibilities in making the national strategy successful.

The Population Aging Opinion is relatively short, especially when compared to the Belt & Road-related Opinions.  It has three sections: the introductory one, framing the political background; the second, on maximizing adjudication functions; and the third, one on reform-related matters.

Political framing

The Population Aging Opinion is linked to last November’s National Strategy. This section is typical of the introductory section of services and safeguards opinions. It calls for courts to raise their political positions, adhere to the guidance of Xi Jinping thought,  and now that Xi Jinping legal thought has been canonized, implement those principles as relevant to the protection of the rights of the elderly.  Harmonizing with greater themes in Xi Jinping thought, the part relating to guiding ideology reiterates the importance of traditional Chinese values.   Those values are the “traditional Chinese virtues of filial piety and respecting the elderly.”  The range of disputes mentioned in the second part and the typical cases signal that traditional virtues of filial piety seem to be respected in the breach among some part of the Chinese population.

2. Maximizing adjudication functions

This section is the longest (as is typical with such documents) and a careful reader can easily see typical legal problems that appear in the Chinese courts that involve the elderly.  Typical of services and safeguards opinions, each article packages a number of sub-issues. This section includes articles on elder care, including services contracts and occupancy rights (Article 8); rights of rural elderly to land (Article 9); disputes over medical service contracts (Article 10); employment rights of the elderly (Article 11); cracking down on crimes against the elderly, including elder abuse and elder fraud (Article 12).

This analysis focuses on the following four groups of issues: 1) marriage and family cases; 2) inheritance; 3) domestic violence; and 4) guardianship issues.  Most of these issues are common to other societies around the world.

1. Article 4 relates to marriage and family cases. The first sentence,  “cases regarding disputes over the support for the elderly shall be tried in accordance with the law to guarantee the basic living needs of the elderly” signals that many disputes relating to the elderly involve the failure of grown children to provide financial support for the elderly. This is also flagged in accompanying typical case #3 and other SPC typical cases.  The Population Aging Opinion calls for using mediation to encourage sons and daughters to provide “spiritual support” (such as visitation) for the elderly, an obligation now incorporated into the Civil Code. Because it reiterates that older people enjoy freedom of marriage,  it signals what the SPC states explicitly in the typical cases, grown children are too often interfering in the divorce of their parents or the second marriage of a parent.  The Jingan Court White Paper noted a steady increase in the number of divorces among the elderly:

The steady rise in the number of divorce disputes reflects, to some extent, the changing understanding of marriage among older people, whose expectations of “old age” are not only limited to making do with what they have, but are becoming more aware of the need to truly follow their heart and actively strive for their own happiness in their old age.

The last provision in Article 4 responds to the increasing number of property disputes involving elderly people who cohabit, reminding lower court judges to consider the period of time the couple lived together, the contributions made by both parties, the interests of both parties shall also be considered, and other factors so that these disputes can be fairly decided.

Article 5 relates to inheritance and wills and signals that the wishes of the elderly should be respected. It flags the system of estate administrators, now incorporated into the Civil Code, apparently a concept adapted from Taiwan’s legal system.  This recent article published by the Shanghai Bar Association has a useful update.

Article 6 relates to elder abuse, calling for the better protection of the personal safety and the property of the elderly, calling for better coordination among related departments.  The first typical case involves elderly abuse. Article 6 calls for improving guidance on the burden of proof for elderly victims, better linkage with psychological counseling, and priority status for victims of elder abuse.  A quick search of the public health literature finds studies on elder abuse in China, particularly in rural areas and among the less educated, and that Covid-19 has had a negative impact.  One study found that much of the abuse was either neglect or financial abuse. This article, summarizing and analyzing a survey by the national and local aging authorities, found that at least 60% of respondents reported some type of abuse, either physical, mental, intimidation, or violation of their legal rights.

Article 7 concerns guardianship.  It encourages the elderly to issue an advance guardianship directive.  It reflects special concerns about abuses committed by guardians when the elderly person is in some way capacitated and those who abuse the guardianship system for their own benefit, also reflected in typical case #2.

3. Reform measures

The third section of the Population Aging Opinion concerns judicial reforms to be applied to aging issues.  Among those are:

• the Fengqiao experience (here referring to diversified dispute resolution), and integrating the resolution of elderly-related disputes in cross-institutional arrangements involving the courts at the basic level.
• integration of socialist core values into the trial of cases involving the elderly: and family trial reforms.
• The last article concerns improving case registration and other services related to elderly persons filing a case.  This article likely involved input from the SPC’s case registration division and some type of guidance, either publicly available or internal can be expected. Although the Chinese courts are promoting smart courts, this last article recognizes that many elderly either need in-person, phone, or other non-smartphone procedures, or an assistant to help them access court facilities.

Concluding comments

Many of the issues addressed in the Population Aging Opinion are not limited to China, whether it is elder abuse, abuse of guardianship, re-marriage of the elderly, employment rights of the elderly, or medical care contracts.  Elder law issues could possibly be a useful area in which the Chinese courts (perhaps in cooperation with one of the Chinese law schools), could engage with international specialists in a workshop setting and share experiences.  It is likely to be seen as an area of “foreign beneficial experience.”