On 30 August 2022, Supreme People’s Court (SPC) President Zhou Qiang (President Zhou) delivered the SPC’s interim report to the National People’s Congress Standing Committee (NPCSC), on the pilot to reorient the four levels of the Chinese courts ( 四级法院审级职能定位改革试点情况的中期报告). The interim report is required by last year’s authorization by the NPCSC. That authorization was reported here (by the NPC Observer). My November 2021 analysis of the background of the reform, including political leadership approval, and the impact of this reform on the SPC can be found here. At the time, I did not address the impact of the reform on the lower courts.
The NPCSC published comments by some of the members, including some former SPC judges (and justices). A summary of the interim report along with related materials that the SPC released, which I surmise were attachments to President Zhou’s report, selected comments by NPCSC members, and my analysis follow below. I welcome any corrections or criticisms of the analysis.
Progress of the Pilot
Although the NPCSC delegated authority to the SPC for this two-year pilot program, the delegation was not a hands-off one. President Zhou mentioned that the NPC NPC Supervisory and Judicial Affairs Committee and the NPCSC’s Legislative Affairs Commission heard numerous reports and engaged in supervision (perhaps better translated as oversight or monitoring). What that means in practice is not specified, but it is understood to be the usual practice. So perhaps the NPCSC delegation to the SPC or other entities to engage in pilot projects plus supervision can be better understood to be a “delegation plus a continuous monitoring process,” with the interim report stage a chance for the SPC to put its best face on the results so far, and a larger number of NPCSC members to provide comments. I look forward to the NPC Observer or others looking into this aspect of the work of the NPCSC.
Pilot Measures Issued By the SPC
The SPC issued the above graphic to illustrate the number of documents released to implement the pilot reform.
The main ones listed are public:
- September 2021 regulations on readjusting jurisdiction in civil cases in the intermediate courts (excluding intellectual property, maritime, foreign-related, and Hong Kong, Macau, and Taiwan-related);;
- End November 2021 guiding opinion on the unified application of law;
- November 2021 Trial Supervision and Management Mechanism for the Four Types of Cases ；
- Late November 2021 SPC guidance to parties concerning applications for civil retrial cases;
Several of the more specific ones have not been made public. As I wrote in my 2018 book chapter, there is no legal requirement for certain types of court guidance to be made public:
- February 2022 SPC requirements concerning cases that should be transferred to a higher level court for hearing and reporting of work in case transfer and retrial;
- November 2021 SPC work processes for civil and administrative retrial cases;
- 28 July 2022 SPC work procedures for reviewing applications for civil and administrative retrial;
- December 2021 requirements on statistical reporting for the pilot reforms;
- November 2021 work allocation for the reform.
Local courts also issued measures to implement the reforms, with the Shanghai Higher People’s Court announcing a kick-off meeting last fall. However, the measures mentioned in the kick-off meeting are not publicly available.
Impact on the SPC Itself
The impact of the reform on the SPC is more dramatic than I predicted in my November 2021 article. A related question, not mentioned in President Zhou’s report, is the implications for the circuit courts.
The statistics released by the SPC do not reveal the relative proportion of administrative vs. civil retrial applications that the SPC received before and after the pilot reform. According to my earlier research, the larger proportion of the retrial applications had been administrative cases, heard primarily in the circuit courts, with many cases focusing on the amount of compensation given by local governments in real estate requisition cases. These tend to be cases in which parties are not represented by counsel, although some circuit courts have determined that it is best to work with local justice bureaus to enable unrepresented parties (usually petitioners who go to the litigation service center) to have counsel. Most of my students who have interned in SPC circuit courts have spent time in the litigation service centers and accompanied judges who meet with petitioners. That does not seem to be the case for students who have interned at SPC headquarters.
Among the materials released by the SPC is this flow chart illustrating the progress of an application for retrial to the SPC. I surmise that it outlines the process in one of the internal documents mentioned above.
President Zhou introduced the work that the SPC had done because it was hearing far fewer retrial cases:
- Heard 625 retrial cases (civil and administrative);
- Concluded 2712 civil and administrative second instance cases;
- Issued 25 judicial interpretations and three batches of guiding cases;
- Held seven cross-disciplinary professional judges meetings, in which differences in views among different divisions in the SPC were resolved (as set out in these regulations); and
- Reviewed 162 local court guidance and 219 guidance cases, under the filing system mentioned here.
He did not mention the larger number of judicial policy documents that the SPC has issued, except in very general language, although it is in fact an important part of the reform.
President Zhou also did not mention the implications so far on the work of the circuit courts. As I wrote earlier, most of the cases heard in the circuit courts have been administrative cases, with a much smaller number of appeals from the higher people’s courts. I also mentioned then that circuit courts seek to guide and supervise the lower courts in their circuit through circuit guidance, typical cases (several volumes have been published by different circuits), and conferences. Although the primary purpose of the circuit courts was to have been hearing cases involving cross-provincial interests, the circuit court reform has not thus far been so implemented. Judges assigned to the circuit xourts have found themselves busy with administrative retrial application case processing, feeling themselves to be “judicial migrant workers” (司法民工).
Impact on the lower courts
A relatively small number of cases had been pushed downwards to the lower courts and more cases had been raised to higher-level courts. Among the cases that had been transferred to a higher level, “23.70% of the cases involve major national interests and social and public interests,” 33.96% of the cases are relatively new and complex within their jurisdictions, and 34.91% of the cases have guiding significance. These cases involve issues such as the confirmation of data rights, unfair competition on the Internet, and the validity of education and training contracts under the “double reduction” policy. The SPC has transferred some retrial cases to the higher people’s courts.
Higher people’s courts had actively sought the support of the organizational (Party organization组织) and establishment ( headcount control 编制) departments.
In the pilot areas, higher and intermediate people’s courts have strengthened the guidance of lower-level courts through special training, typical cases, trial guidelines, etc. Basic-level people’s courts have sought to separate complex and simple cases and likely sought to promote the use of mediation to resolve cases.
President Zhou admitted that there are issues with related policies, including:
- unclear standards for determining “major cases;”
- poor information sharing, coordination, harmonization of procedures between upper and lower level courts;
- work assessment systems have not been adjusted to deal with the new caseload because of the reform;
- filing fees have not been reformed.
Comments by NPCSC Delegates
Several of the NPCSC delegates are former SPC Justices, including Jiang Bixin and Jing Hanchao (also deputy secretary general of the Central Political Legal Committee). Some of their comments included the following:
- there are many judicial reforms, with some conflicts between them so research is needed to coordinate them better. (This is a point I made when I spoke at the SPC in 2018);
- the Civil Procedure Law and Administrative Litigation Law will need to be amended;
- court fees need to be increased;
- better coordination is needed to ensure sufficient headcount at the local level.
There was no transcript of the comments so we cannot know whether sharper comments were not reported.
Some thoughts about this judicial reform
This report and this reform encapsulate at least some of the complexities of reforming the courts. Judicial reform is an enormously complicated project because the implementation of one reform and especially the partial implementation of a reform, particularly the crucial ones, have the ability to have a profound impact on linked and later reforms. The reforms relate to the state of the law as it is and to detailed measures intended to be piloted. It is unclear whether the relatively small team of persons working at the SPC on judicial reform matters has the capacity to draft guidance in sufficient detail to ensure that the reforms implemented are those intended. It is unclear whether the team uses some of the project management and data collection tools that are often used to this end elsewhere in the world.
- So one aspect of the reform is the evolution of the SPC into a “supreme court with Chinese characteristics,” the intent being for a significant part of the SPC’s work to focus on “unifying the application of law” through issuing judicial interpretations, quasi-binding guidance such as conference summaries (meeting minutes), judicial policy documents, seeking to resolve differences of opinions on issues that cross divisional boundaries, etc., reviewing certain judicial review of arbitration cases, and hearing fewer, but more important cases, and fewer retrial cases. That means that the lower courts, from the higher courts will need to be the ones to hear large numbers of cases.
2. The second important aspect of the reform is reshaping the work of the lower courts, to distinguish the work of different levels of the courts from one another, particularly to make appeals more important. Many supporting measures are needed to make this a success. It appears that some supporting measures are weaker than they should be, and other infrastructure is only partially in place. This blogpost can only mention a few. Moreover, It is unclear how much “market input” the drafters solicited in the drafting process. As in anything, the devil is in the details.
a. Regarding “supporting measures,” among the most crucial ones are the lower courts having sufficient personnel and financing (and preferably flexibility in adjusting both to deal with change). One of the reforms in the 2015-19 Fourth Five-Year Judicial Reform Plan Outline was to reform the control of funding and personnel so that they would be controlled on the provincial level rather than locally. This reform was approved by the political leadership. Local court headcount is not controlled centrally, nor does the Ministry of Finance control court funding. It seems for a number of complex bureaucratic reasons, discussed variously earlier on this blog, in a 2017 article by Tsinghua University Political Science Professor Yu Xiaohong, and in a 2021 article in the SPC journal People’s Justice (人民司法) on court funding by a senior SPC official, that these reforms were only partially successful. That is why pilot higher people’s courts actively sought out those in charge of headcount, to see to ensure that they could have enough judicial personnel to implement the reform properly.
Although President Zhou did not mention court financing directly, the court funding situation that was described in the 2021 article as grim (严峻) cannot have improved, with the financial crisis that local governments are facing with the drop in local government revenues and the cost of Covid-19 testing.
b. The report also shed light on the state of the legal infrastructure supporting the basic level courts. For example, judicial reforms have created the role of judges assistant, but their specific authority remains unclear and the career path to becoming a judge is unclear. As a consequence, there is a serious brain drain among experienced judicial assistants, as I wrote earlier, and as discussed in this recent article in People’s Justice. Another issue frequently mentioned by local judges is the “one size fits all” judicial evaluation system, including performance indicators that penalize a judge whose judgments are appealed.
c. For retrial cases, highly flexible standards in the law and judicial interpretations make it easy for a party to initiate a retrial application, but amending the Civil Procedure Law and Administrative Litigation Law are major projects, with little change expected in the very short term.
c. An additional issue mentioned by some of the judges involved in piloting this reform is problems with judicial training and legal education, although it seems unlikely that this ranks as highly as adequate funding, headcount, and evaluation. Judge Huang Xiangqing of the Shanghai Higher People’s Court commented that new joiners to the court system are unfamiliar with evidence rules, and on-the-job training is needed to get young court staff familiar with the handling of evidence. I have heard analogous comments from others in the court system. Judicial training in the New Era further emphasizes ideological training (as I wrote earlier), but junior judges and the parties that appear before them may better benefit from consolidated instruction in evidence law and other basic judicial knowledge and skills. More practical subjects and skills training are not favored as much at many Chinese law schools, because hiring and promotion tend to be based on publications.
I welcome further comments and corrections, especially from those in the pilot courts.
Many thanks to an anonymous peer reviewer for providing detailed comments on several earlier drafts of this blogpost.