How the Supreme People’s Court borrows helping hands

Screenshot 2019-04-05 at 11.52.51 AM

Book cover of the English children’s book The Borrowers, translated into Chinese as 地板下的小人

I recently visited the Supreme People’s Court’s (SPC’s) new intellectual property court (SPCIPC) (intellectual property tribunal), currently sharing a building with the Beijing Internet Court, in the Fengtai district of Beijing.  But I will leave comments on the court’s operations to Mark Cohen and other intellectual property lawyers.   From the list of SPCIPC judges in Mark’s recent blogpost, it is clear that many of them have been borrowed from the lower courts.  The blogpost includes the line “..due to the rapid establishment and staffing of this new Court, many of the judges are likely on detail from their prior jobs to the new Court, pending permanent transfer.” It is unclear whether these judges will in fact be permanently transferred to the SPC, or in fact would prefer to do so. This blogpost will shed a bit of light on the phenomenon of the SPC borrowing/temporarily detailing 借调(jiediao)  staff from the lower courts.

As with the guazhi system in the SPC described in one of last year’s blogpost, it is one of the many aspects of the personnel system of the Chinese Party/state system that shapes how the Chinese courts operate.  Under this system, a person from a lower level institution is “borrowed” to assist with work at a higher level institution.  The borrowed person’s employment relationship remains with the lower level institution.  It appears to be a practical solution to the restrictions on SPC permanent headcount imposed by the Central Staff Commission, while being able to field sufficient personnel for the new institutions such as the Intellectual Property Tribunal and Circuit Courts.  Senior judges, such as division heads and vice presidents, have many administrative obligations and less time to hear cases. It is unclear how many borrowed staff the SPC has. Some knowledgeable persons suggest that they can be found in almost every operational department of the SPC.

In my experience, the circuit courts have borrowed judges from the lower courts to serve as judge’s assistants (法官助理).  While it is an imposition for judges to be away from their homes and family, it also an opportunity for them to make themselves known to SPC judges, a connection that may be useful in their later careers, whether or not they remain in the judiciary.

He Fan, head of the planning section of  the SPC’s judicial reform office, wrote about borrowed staff in a 2015 article on his Wechat account:

For lower court judges, being seconded to the higher court to help out is a mixed event. It means that you reach a higher level of experience, broaden your horizons, increase your knowledge, and your chances of being selected by a higher court will increase.  On the other hand, it means being away from loved ones, living for others, … sometimes the opportunity for the promotion in the original court is delayed, the superior court  may not extend an olive branch, and finally only it is only in exchange for a letter of praise from the higher court.

Generally speaking, the lower-level judges are seconded to the higher courts for three reasons. First, as an assistant judge, they are incorporated into the collegial panel to handle cases; second, as a judge’s assistant, assisting the judges of the higher courts in handling the case, such as the assistants of judges in the first and second Circuit Courts of the Supreme People’s Court, who are mostly excellent candidates from the lower courts. The third is to work in the “comprehensive” (supporting) departments, to work in the higher court’s research office, the audit office, the judicial reform and other departments engaged in judicial policy research, drafting judicial rules, etc.

Singapore Mediation Convention and China

AB0B9A04-E291-42AD-8A5F-B5C99404623E.JPG

The author chairing a session of a workshop on the Singapore Mediation Convention at the International Law Institute of the Chinese Academy of Social Sciences

I was very honored (and gratified) that the workshop pictured above was able to take place on 18 March at the International Law Institute of the Chinese Academy of Social Sciences (CASS).  Unbeknownst to most of the attendees, who included persons from the Ministry of Foreign Affairs, Supreme People’s Court, and National People’s Congress, I was one of the organizers.  Other participants came from the Foreign Affairs College and Shanghai office of the Singapore International Arbitration Centre. The workshop could not have taken place if not for the efficient work of Professor Liu Jingdong and assistant research fellow Sun Nanxiang. I had previously gotten to know Mr. Wen Xiantao, of the Department of Treaties and Law of the Ministry of Commerce (MOFCOM) and official Chinese negotiator of the United Nations (UN) Convention on International Settlement Agreements Resulting from Mediation (Singapore Mediation Convention or Convention) and Sun Wei, Zhong Lun partner and participant in the Convention negotiations as part of Beijing Arbitration Commission’s delegation to the negotiations as with observer status.

The Singapore Mediation Convention is intended to complement the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the New York Convention, and when it goes into force, will enable international commercial settlement agreements that result from (third party) mediation to be enforced.  A summary of the Convention can be found here, and the United States negotiator, Timothy Schnabel, who proposed the Convention, wrote (in his own capacity) a definitive overview of its text, structure, history, and purpose.  As Mr. Schnabel’s article explains, the Convention is intended to promote the use of mediation in resolving cross-border commercial disputes, because it is more likely to work faster, cost less, and preserve the business relationship. From Mr. Schnabel’s article, it is clear that Mr. Wen ”vigorously participated in the formulation of international norms,” and his views had a positive impact on the eventual text of the Convention, supporting the drafting of a convention rather than only a model law and enabling enforcement of settlements that include both pecuniary and non-pecuniary elements.

From reading Sun Wei’s blogpost on the Kluwer Mediation Blog (part 2 found here)  it was clear that multiple institutions need to come to an agreement that signing and ratifying the Singapore Mediation Convention would be beneficial for China.  I noted many misconceptions about the Convention flying around the Wechatosphere.  Messrs Wen and Sun (and I)  realized that representatives from the institutions involved needed to be in the same room to be able to hear more about the Convention, ask questions and discuss concerns in a congenial environment. As a former practitioner, I thought it would be useful to have Adrian Hughes, QC and Helen Tang (Shanghai-based disputes partner of Herbert Smith Freehills) in the room to be able to speak first hand about the process of and advantages of commercial mediation in international commercial dispute resolution, as well as the enforcement process in the courts of England and Wales.

Wen Xiantao and Sun Wei took the lead in discussing the provisions of the Convention and related issues, Adrian Hughes spoke as a highly experienced international commercial mediator and litigator, and Helen Tang contributed comments from her experience representing Chinese parties in international commercial disputes.  The closed-door and invitation-only format enabled an interactive discussion among all participants. Among the many issues discussed were the implications for the courts, preventing the enforcement of fraudulent mediation settlements, and the lack of a law relating to commercial mediation.

The official report on the workshop is found here.

IMG_0840.JPG

Shining a light on Chinese judicial transparency

photo-download

flashlight in the dark

I last wrote on judicial transparency in December (2018), giving a quick analysis of the Supreme People’s Court (SPC)’s latest transparency policy. Two quick updates on this topic:

  1. The Fifth Judicial Reform Plan Outline (Opinions on Deepening the Reform of the Judicial System with Comprehensive Integrated Reforms – Outline of the Fifth Five-Year Reform Program of the People’s Courts (2019-2023) lists as one of the overall goals improving judicial transparency:

further deepen judicial openness, constantly improve the openness of the trial process, openness of court proceedings, openness of judgment documents, openness of enforcement information–the four transparency platforms, comprehensively expand the breadth and depth of judicial openness, improve the form of judicial openness, smooth the parties and lawyers to obtain judicial information channels, build a more open, dynamic, transparent, convenient sunshine judicial system.

The transparency developments highlighted in the Fifth Judicial Reform Plan Outline will be guided by the policy document Supreme People’s Court’s Opinion Concerning the Further Deepening of Judicial Transparency  (Judicial Transparency Opinion 最高人民法院关于进一步深化司法公开的意见)) that I wrote about in December.

2.  The article I mentioned as being in the academic article production pipeline has finally emerged.  It can be found here. It is a chapter from the book Transparency Challenges Facing China and examines some recent developments in China’s judicial transparency. It suggests that although the scope of judicial transparency is inevitably shaped by the requirements to keep state and trial work secrets confidential, the Supreme People’s Court, within the boundaries of what is politically achievable, is taking concrete steps to expand the scope of judicial transparency.  The article focuses on information on judges and courts, statistics and big data, and judicial normative documents, digging into relevant court rules and highlighting Chinese language commentary.  The article shows that views on judicial transparency within the Chinese judiciary are not as monolithic as an outsider might have initially assumed.

 

Financial disputes in the Chinese courts

The details on the total number of financial disputes in the Chinese courts in 2018 are unknown (perhaps to be revealed in Supreme People’s Court President Zhou Qiang’s upcoming report to the National People’s Congress), but several recent white papers by Shanghai courts provide a glimpse into some of the issues in 2017 and 2018 (and in Pudong, with further historical data).  Local Shanghai judges comment that the caseload is likely to increase in in 2019.  Those white papers are a bilingual white paper on financial dispute resolution, published by the Shanghai Higher People’s Court late in 2018, and two white papers by the Pudong District Court, one on consumer financial cases and the other surveying the past 10 years of financial cases (full text of this report has escaped me, per my earlier blogpost).

Some of the facts and figures from Shanghai are:

Screenshot 2019-02-15 at 7.24.28 PM

Screenshot 2019-03-03 at 6.11.26 PM

Financial cases accepted & closed, Pudong New Area Court, 20008-2018

Screenshot 2019-02-17 at 9.22.24 AM.png

financial consumer protection cases in Pudong, 2014-2017 (accepted & closed)

There were many fewer second instance (appeal) cases. One of the many reasons is that court performance indicators discourage appeals.

Screenshot 2019-02-16 at 7.01.12 PM

According to the Shanghai Higher People’s Court, the largest proportion of cases were credit card disputes (149,609) year-on-year growth of 52% (83% of financial disputes); 16,528 financial loan contract disputes, (9.2%) up 14.5% year-on-year;4,319 financial lease  disputes (1.6%), with the year-on-year growth of 45.17%; 2,927 insurance disputes, up by 30.6%;and 1,246 securities and futures disputes.  Credit card cases are not under the jurisdiction of the new financial court and the judges attributed the increase in disputes in the large increase in the number of credit cards issued.

On P2P cases, those rose from 315 in 2015 to 663 in 2016 and 1508 in 2017.  I surmise that those numbers are likely to have gone up in 2018.

The Shanghai Financial Court reported that they accepted 1897 cases during calendar year 2018.

In their report, the higher people’s court judges noted that in 2017, a total of 49 bond defaults occurred, of which 29 were public bonds and 20 were private bonds, of which 11 ended up in litigation, all of which were actions brought by institutional investors against bond issuers. Some bondholders sued the issuers for anticipatory repudiation and required the issuers to pay principal and interest, raising new issues for the courts. The judges noted that with the economic “deleveraging” policy, market liquidity will tighten further,  which they predicted will further trigger bond default disputes.

Tao Xiuming, a law firm partner and member of ICC China, who contributed to a 2016 study that the ICC issued on financial institutions and international arbitration. wrote (with several colleagues) a chapter on financial dispute resolution in the Beijing Arbitration Commission’s Commercial Dispute Resolution in China: An Annual Review and Preview (2018) (2018)  (for some reason the book does not seem to be on the publisher’s website).  He commented that not only was 2017 the starting year for tighter financial risk control, it also coincided with a marked increase in the number of defaults and bankruptcies, leading to many disputes and that the government’s change in national macroeconomic policy has an impact on the adjudication of financial disputes.
Tao noted that to facilitate the Central Government’s macro policy on tighter control on financial risks, the Supreme People’s Court issued Several Opinions on Further Strengthening Financial Trials and that “the Chinese courts can and will adapt to the ever-changing macroeconomic policies to align to the activities of modern commerce.” He does not mention the reason is that the courts must serve the greater situation (服务大局), as emphasized by the latest judicial reform plan.

Some comments on the China International Commercial Court rules

Screenshot 2019-02-10 at 9.10.31 PM

from the CICC website

The Supreme People’s Court (SPC) is gradually building the infrastructure for the China International Commercial Court (CICC).  An important part of it was put into place in December 2018, when the SPC issued the Procedural Rules for the China International Commercial Court of the Supreme People’s Court (For Trial Implementation) (CICC Procedural Rules). Other rules are yet to be issued. From the Chinese original of the CICC Procedural Rules, they were issued by the SPC’s General Office 最高人民法院办公厅关于印发《最高人民法院国际商事法庭程序规则(试行)》的通知 (document number (法办发〔2018〕13号).  The SPC’s judicial committee discussed the draft CICC Procedural Rules in late October, indicating the importance that the SPC leadership attaches to the CICC.  However, the SPC did not issue the CICC Procedural Rules as a judicial interpretation.

As to why they were issued with the indication “For Trial Implementation” and by the SPC’s General Office rather than as a judicial interpretation, the Monitor has her theories (readers are welcome to propose alternative explanations). As for why “For Trial Implementation,” it is likely that the SPC intends to further amend the CICC Procedural Rules once it has greater experience using the rules and has more reaction from counsel that has litigated before the CICC and the market generally.  As to why the SPC issued the CICC Procedural Rules as a General Office normative document rather than a judicial interpretation, it may be surmised that it is linked to the SPC practice of issuing judicial interpretations when judicial policy has stabilized (this practice is discussed in another article in the academic article production pipeline), and the judicial interpretation can be in place for a relatively long period.  Additionally, issuing the CICC Procedural Rules as a judicial interpretation would involve more formalities and scrutiny under the 2007 SPC rules on judicial interpretation work.

As this blog (and other commentators have mentioned), the drafters of the China International Commercial Court rules had to draft carefully to remain within the constraints of existing law and judicial interpretations,  as judicial normative documents (司法规范性文件) of which this is an example, may not conflict with either source of law. The CICC Procedural Rules reflect a number of themes seen in SPC cross-border matters:

As noted here also, The CICC Procedural Rules are not long (40 articles), with one-quarter of its provisions devoted to mediation.  In comparison, the DIFC court rules. Singapore International Commercial Court (SICC) Practice Directions,  and Netherlands Commercial Court Rules of Procedure are much longer. But the length of the CICC Procedural Rules is consistent with the length of other SPC rules.

A few specific comments and general comments follow below.

Specific comments

Case Acceptance

Article 8 lists the documents that a plaintiff needs to provide when filing suit, highlighting the new and old in Chinese cross-border dispute resolution.  The old is the documentary requirements that a foreign (offshore) plaintiff and his/her foreign agent must provide.   Because China has not yet acceded to the Hague Convention Abolishing the Requirement of Legalisation for Foreign Public Documents, an offshore plaintiff must provide notarized/certified and legalized versions of corporate or individual identification documents,

As to what is new, requiring a plaintiff to submit a Pretrial Diversionary Procedures Questionnaire (in addition to a statement of claim and other such documents) is a type of document that is often required by courts in other jurisdictions and reflects background research that the drafters had done on other jurisdictions.

Pre-trial Mediation

The CICC emphasizes the importance of mediation and promotes the concept of a one-stop integrated model through integration with the leading foreign-related mediation organizations within China. The three international commercial court rules mentioned above also encourage the use of mediation but do not limit the mediation institution used to domestic ones.

Article 17 and 18, Pre-trial Mediation:   Article 17 relates to a case management conference called by the Case Management Office of the relevant CICC rather than the judge assigned to the case, as set out the SICC Practice Directions (and other international commercial courts). The institution of a case management conference appears to be a concept borrowed from outside of China. It is to be convened within seven working days from the date of the service of the plaintiff’s documents on the defendant.  In other jurisdictions, however, case management conferences are generally scheduled after the defendant has served his documents on the plaintiff.  Query whether an exchange of documents would be more conducive to effective mediation.

Article 17 mentions that the time limit for mediation should generally not exceed twenty working days. This deadline puts pressure on the mediators and parties to come to an agreement quickly.  It appears “generally should not exceed” language contains flexibility so that if parties are in negotiations, the deadline could be extended. As to what occurs in practice, Danny McFadden, Managing Director of the Centre for Effective Dispute Resolution (CEDR) Asia Pacific, well-known as a mediator (and trainer in mediation) )and former interim UN Director of Mediation) commented that in his experience: “When parties are keen to hold a mediation it can be administered and take place within a matter of days. However on average, from when CEDR is initially contacted by the parties/lawyers, the mediator and date of the mediation is agreed, mediation documents are exchanged  and to the end of the actual mediation, it takes 5 to 6 weeks.”。

Under the CICC Procedural Rules, mediation will be conducted by one or more members of the CICC Expert Committee or one of the Chinese mediation institutions designated by the CICC. The case management conference is to be held online (assuming the videolink from the CICC will be good enough).  The resulting memorandum is then issued by the Case Management Office. Under the SICC Practice Directions (and rules of some of the other international commercial courts), the case memorandum is prepared by the parties. It is not mentioned in the CICC Procedural Rules whether the parties will have an opportunity to comment on the memorandum.

Trial procedures

The section on trial procedures primarily focuses on the pre-trial conference.  Article 27 contains a long list of items that should be included in the pre-trial conference (indicating the drafters of the CICC Procedural Rules made reference to the practices of other international commercial courts.) Either the entire collegial panel or a single judge may convene the pre-trial conference, which may be held either online or in person.

Article 31 sets out the procedure under which the collegial panel can request one or more member of the International Commercial Expert Committee (Expert Committee) provide an expert opinion on international treaties, international commercial rules, or foreign law.

Trial procedures, therefore, will follow those set out in the Civil Procedure Law.

A few (and not comprehensive) general comments follow below.

Challenges for the CICC

There are no small matters in foreign affairs (外事无小事)Zhou Enlai’s saying) –both domestically and internationally, foreign-related matters, because they involve relations with other countries and the prestige of the Chinese state, are sensitive.  For the CICC judges, particularly the leaders, this imposes particular pressure to handle these disputes in a way that is acceptable to SPC leadership and to the outside world.

CICC judges have many other cases to deal with–As may be apparent from the previous blogpost on the CICC, the CICC is not a full-time job for any of the judges involved.  That means that judges need to deal with possibly complex international commercial cases on a part-time basis.

Limitations of Chinese substantive law–To the extent that the CICC needs to apply Chinese substantive law, that also presents a challenge.  As CICC Judge (and deputy head of the #1 Circuit Court) Zhang Yongjian mentioned almost three years ago: “there are numerous types of foreign-related cases, with many difficult cases. On the one hand, there are many legislative “blank spaces.”  涉外案件类型多样化,疑难案件层出不穷.一方面,会出现更多的立法空白.”  Chinese contract law (even with related judicial interpretations) is considered by Chinese legal professionals to lack insufficient detail(see comments here, for example。

To the extent that a CICC judgment needs to be enforced outside of China, it will involve enforcement issues (previously discussed on this blog).outside of China. One important development since the blogpost is the conclusion of the Reciprocal Recognition and Enforcement of Judgments in Civil and Commercial Matters by the Courts of the Mainland and of the Hong Kong Special Administrative Region.  Implementing legislation has not yet been promulgated in Hong Kong.

Opportunities for the CICC

Piloting new rules and procedures–The CICC also presents the SPC with opportunities to pilot new rules and procedures in cross-border cases and to make appropriate reference to foreign beneficial experience.  (For the avoidance of doubt, the Monitor is not advocating that the SPC import foreign law wholesale (照搬外国法).)  This earlier blogpost mentions my encounter several years ago with a senior Beijing academic who made this accusation against some SPC personnel).

One important area that would be beneficial for the CICC to focus on is discovery procedures.  CICC judges are aware of US lawyers and overly broad requests for documents in discovery, but they should be able to find an appropriate solution that fits Chinese reality, perhaps using the pre-trial case management conference as a forum to require parties to provide documents and other evidence to opposing counsel.  Without some sort of discovery, foreign plaintiffs may be reluctant to use the CICC as a forum.

I plan to come back to the topic of the CICC from time to time, as more information about CICC cases becomes available (and as I have my own personal experience with CICC operations),

______________________________________

The author is a member of the CICC’s Expert Committee but her views do not represent the committee, the CICC, or the SPC.

 

New Year’s Wishes from the Supreme People’s Court Monitor 最高人民法院观察给您拜年!

Screen Shot 2019-02-05 at 9.45.19 PM

Walk with determination, live with fulfillment

Screen Shot 2019-02-05 at 3.29.59 PM

Striver of the new era

As part of the “system” (体制), Chinese courts have their own ways of celebrating Spring Festival (Chinese New Year/ 春节).  A new development is New Year mobile phone emoticons (two examples pictured above),  created by the Supreme People’s Court (SPC) media group , a combination of new and old, (revolutionary) red and traditional.

A long-standing tradition is for the current court leaders to visit the retired leaders and bring them up to date on developments. This year SPC media reported that President Zhou Qiang (accompanied by Justice Jiang Bixin) visited retired Presidents Wang Shengjun and Ren Jianxin.  President Zhou Qiang deputized a senior provincial judge to visit retired President Xiao Yang, who wasn’t in Beijing.

Another court tradition is the work unit Chinese new year’s party, where employees often have to embarrass themselves performing before their colleagues,  to which old comrades are invited–some photos from the National Judicial College website seen below.

A fourth, more recent tradition is the New Year’s video–see some links below to some local court videos:

Some of us remember when Chinese new year meant issuing bags of high-quality rice and other normally unavailable items to court employees, but those days are long gone.

Finally, the Supreme People’s Court Monitor wishes readers, wherever they may be, a very happy, healthy, peaceful,  and successful Year of the Pig.

Screen Shot 2019-02-07 at 8.38.51 AM

What does China’s Judges Law draft mean?

Screenshot 2019-01-25 at 11.47.56 AM

21 January China Law Society organized discussion of Judges Law draft (note disproportionately few women)

Although the redraft of China’s Judges Law has the potential to have an impact on many in the world outside of China, few people have taken an interest, judging by the pageviews of its translation on Chinalawtranslate.com (62). (I’m indebted to Jeremy Daum and others for translating it).  Judging by a search on Wechat, the same is true in China.  The workshop pictured above, organized by the China Law Society, appears to be one of the few in which views on the draft were aired.  There must have been strong views on the draft, but the report did not provide any details (and it is apparent no foreigners participated). The draft was released before the Communist Party (Party) Central Committee’s 2019 Political-Legal Work Conference and therefore does not reflect the most current political signals. The draft is open for public comments until 3 February and over 800 comments have been submitted as of 25 January.  An earlier draft was made available for public comment (as well as related institutions) for comment and the China Law Society organized comments on that draft as well. The current draft incorporates input from various sources.

The law, if enacted in its current form, will have short and long term implications for the Chinese judiciary.  As the Chinese judiciary seeks to be increasingly connected with the outside world, through its work in negotiating the (draft) Convention on the Recognition and Enforcement of Foreign Judgments at the Hague Conference on Private International Law, the Arrangement on Reciprocal Recognition and Enforcement of Judgments in Civil and Commercial Matters between mainland China and Hong Kong, as well as other more controversial involvement, the questions it raises for outside observers (and Chinese ones as well) is–what vision does it convey of the Chinese judge?  What rights and responsibilities does a Chinese judge have under this law? Will this law, if enacted in its current form, encourage competent people to remain in the judicial system and promising young people to enter it?  When I first flagged the redrafting of the law in 2015, I commented–“how to reorganize the Chinese judiciary and what professional status Chinese judges should have and work under will affect how judicial reforms are implemented and less directly, more fundamental issues concerning China’s economy and society.”

Some brief (not comprehensive) comments follow:

It consolidates the framework of the old law, incorporates legislative changes and many judicial reforms, leaves some flexibility for future reforms, and reflects current Communist Party (Party) policy towards political-legal institutions and their personnel as set forth in the 2019 Party regulations on political-legal work.

The Judges Law does not stand on its own. It is connected with other legislation, such as the recently amended Civil Servants Law  the amended court organizational law, and of course, relevant Party rules.   The initial drafting was led by the SPC, in particular, its Political Department (as the Party is in charge of cadres).

Chapter I: General Provisions

This section with broad statements is longer than the previous version.  Among the notable amendments.

Article 1, concerning the purpose of the law: “advance the regularization, specialization, and professionalization of judges; to strengthen the management of judges; to ensure that the people’s courts independently exercise the adjudication power; to ensure judges’ performance of their duties in accordance with law; to ensure judicial fairness; and to preserve the lawful rights and interests of judges”–sends signals concerning the professionalization of the Chinese judges, with principles of independence (better read as autonomy) and fairness not listed first. It should be noted that during the 2019 Political-Legal Work Conference, the “revolutionization” of political-legal teams was listed before regularization and professionalization (加快推进政法队伍革命化、正规化、专业化、职业化建设,忠诚履职尽责). (“Revolutionization” appears to meant to signal the absolute leadership of the Party.) SPC President Zhou Qiang gave a speech at a meeting to implement the spirit of that Political-Legal Work Conference which also listed “revolutionization” first, but he stressed the greater importance of professionalization (加快推进队伍革命化、正规化、专业化、职业化建设,把专业化建设摆到更加重要位置来抓) as the operation of and public confidence in the Chinese court system depends on retaining and attracting professionals. The establishment of the CICC, the Shanghai Financial Court and the Intellectual Property Court of the Supreme People’s Court all represent professionalization and specialization.

Article 2 mentions various types of judicial personnel, the functions some of which are defined in the court organizational law, but for others, such as division chiefs and deputy division chiefs, mentioned without definition.  A Chinese court has many administrative characteristics, but it would be helpful for the Chinese and offshore public to flag some basic principles regarding the functions of persons with these different titles, as these are found scattered in various SPC regulations.

Article 4: Judges shall treat parties and other litigation participants justly. The law is applied equally to any all individuals and organizations.  But the law treats different types of parties differently (embezzling money from a private enterprise vs. state-owned company) and other provisions of law treat cases involving senior officials differently from ordinary people (see this article on the principle of trying criminal cases involving high officials in a jurisdiction outside which the case arose).

Chapter II: Judges’ duties, obligations and rights

On Judicial duties, Articles 8 and 9, on the duties of ordinary judges and ones with a title do not clarify what participating in trials and being responsible for their cases mean (the latter is linked to the 2015 responsibility system that (as this blog has mentioned), gives judges a great deal of stress. Perhaps the German Judiciary Law could be a source of inspiration on judicial duties.

Chapter III: Requirements and Selection of Judges

This chapter incorporates a number of policy changes that have been implemented under the judicial reforms and also explains why the China International Commercial Court (CICC) will not be able to appoint foreign judges, unlike its counterparts in Singapore and Dubai.

Article 12 is a revised version of old Article 9, requiring judges to be PRC citizens, uphold the PRC constitution, and have a good political and professional character. Article 65 mentions that new judges must have passed the legal qualification examination.

This chapter mentions the establishment of Judicial Selection Committees (also a borrowing from abroad) and which must have some linkage to Party organizational departments. The chapter mentions recruiting judges from outstanding lawyers and academics (thus far, proving more difficult than anticipated), and requiring higher court judges to be recruited from those with experience in the lower courts.  I described the  “classic” appointment system in my 1993 article on the Supreme People’s Court, in which fresh graduates were assigned directly to the SPC.  As mentioned in my earlier blogpost on the court organizational law,  court presidents are required to have legal knowledge and experience.

Chapter IV: Appointment and Removal of Judges

This chapter has expanded conflict of interest rules for judges considerably. that had previously been set out in a separate chapter of the Judges Law.  Some of these had mostly been contained in subsidiary rules that the SPC has issued but are now being incorporated into the Judges Law itself.

Chapter V: Management of Judges

This chapter flags a number of issues, including the quota judge system, pre-career judicial training and the resignation of judges.

Article 24 states that a personnel ratio system is implemented for managing judges. This codifies the quota judge system, but it does not explain how it works and whether is any way to challenge the determination of the personnel ratio.

Article 30 provides that a uniform system of pre-career training is to be carried out for new judges.  This is an innovation in which the SPC has looked to what is done in Japan and Taiwan, and was flagged several years ago in this blog. As mentioned in that earlier blogpost, training is likely to include both ideological and professional aspects.

Article 34 provides that”judge’s applications to resign shall be submitted in writing by themselves, and after approval, they are to be removed from their post in accordance with the legally-prescribed procedures.”  It is unclear from this article what the procedure is for resignation and the standards for approving or rejecting a judge’s application.  But it is meant to harmonize with the Civil Servants Law,2017 regulations of the Party Organization Department and two other authorities on the resignation of civil servants, and SPC regulations implementing the latter regulations (discussed here).  From Wechat postings and other discussions in Chinese legal circles, it is not unusual for the senior management of a court to delay decisions on permitting a judge to leave for a year or more. 

Chapter VI: Evaluation, Reward and Punishment of Judges

This chapter sets out the outlines of the recent judicial reforms regarding the evaluation of and disciplining of judges.

Article 45 on punishment of judges–while many of the provisions are found in many other jurisdictions, some are unique to China and could be worrisome to judges, as they could be widely construed–such as “(5) Causing errors in rulings and serious consequences through gross negligence; (6) Delaying handling cases and putting off work.”  There is considerable concern among judges about the standard for “errors” in rulings because that standard may evolve over time (see this earlier blogpost) and the reason for delay may not be solely a legal one.

Articles 48-50–In contrast to the previous version of the Judges Law, this draft provides for disciplinary committees (rules to be drafted by the SPC) under which the judge will have the right to be represented and to provide evidence in his defense.

Chapter VII: Professional assurances

This section, on professional protections for judges, also flags the limitations on and weaknesses of those protections, with inadequate procedural protections against unfair determinations made against judges.

Article 52, providing that  “Judges may not be removed from the trial post except…”–also does not provide a mechanism for judges to challenge a decision or determination made against them.

Article 64: Where there are errors in judicial sanctions or personnel dispositions, they shall be promptly corrected; where it causes reputational harm, the reputation shall be restored, the impact eliminated, and formal apologies made; where economic harm is caused, compensation shall be made.  But there is no mention of how a judge can challenge the judicial sanctions or personnel disposition, or request that he (or more likely she) be reinstated.  Dispassionate analysis of the responsibility system by both academics and judges (previously mentioned on this blog) describes the responsibility system as a “Sword of Damocles” hanging over the heads of judges and lists some cases in which judges were prosecuted and found not guilty, with another one reported by another Wechat account.

A final word

It is unclear at this stage of the draft whether comments on the draft will have any impact on the final draft.  Presumably, some of the comments made at the workshop mentioned above will be accepted, as the participants included a group of senior experts either working within or retired from “the System” or academics whose expertise is recognized and valued.

Pushing women’s issues at the Supreme People’s Court

20181223214429_44006.jpg

Outside observers reading Chinese official media, including reports on the Supreme People’s Court’s website, need special skills to identify significant developments.   One of those small but significant developments is found in a 23 December 2018 report on the visit of Shen Yueyue, the head of the All-China Women’s Federation (Women’s Federation) to the Supreme People’s Court, pictured above. The women’s rights and interests department of the Women’s Federation must have prepared the list of issues that she raised.  The crucial paragraph reported:

…the Women’s Federation hopes to further strengthen exchanges and cooperation with the Supreme People’s Court. The first is to strengthen protection from the source [deal with the source of the problem], fully consider the special interests and potential impacts on women in the process of judicial interpretation, and jointly promote the establishment of a gender equality assessment mechanism. The second is to follow the legislative process, strengthen cooperation in the preparation of the Civil Code, and jointly propose legislative proposals to protect rural women’s land rights, prevent and stop gender discrimination in employment, and promote the improvement of the legal system for women’s rights and interests. The third is to focus on key areas, strengthen cooperation in the reform of the family trial system, improve the diversified solution mechanism of contradictions and disputes, and play the role of the people’s mediation committee, and promote the prevention and resolution of marriage and family disputes. Fourth,  jointly promote the resolution of prominent problems in judicial protection of women’s rights and interests, and effectively resolve prominent problems which women are concerned. [沈跃跃表示,全国妇联希望与最高人民法院进一步加强交流合作。一是加强源头保障,在司法解释制定过程中充分考虑女性的特殊利益和潜在影响,共同推动建立性别平等评估机制。二是紧跟立法进程,加强在民法典分编制定中的合作,共同向立法机关提出保障农村妇女土地权益、预防和制止就业性别歧视等立法建议,推动完善妇女权益保障法律体系。三是关注重点领域,在推进家事审判制度改革、完善矛盾纠纷多元化解机制、发挥人民调解委员会作用等方面加强合作,推动婚姻家庭矛盾的预防和化解。四是坚持问题导向,共同促进妇女权益司法保护突出问题和妇女关心关切现实问题的有效解决.]

Some brief comments below on some of the many issues:

  1.  Special interests of women in drafting judicial interpretations

This may be linked to the five-year plan to implement socialist core values into judicial interpretations discussed in this earlier blogpost. The report did not mention the official reaction to having a gender equality assessment mechanism incorporated into the SPC’s judicial interpretation drafting process or other improving the consideration of women’s interests.

As mentioned in the blogpost, the plan includes amending and improving judicial interpretations related to the Marriage Law and family law, etc.  As Professor Yang Lixin of Renmin University (formerly an SPC judge) assesses the state of the law and related issues in this forthright analysis.  He comments on  the state of Chinese family law: …”the legal concepts of the Marriage Law and the Inheritance Law are relatively backward, which is the main problem of current family law.” Professor Yang goes on to discuss a number of family law issues that Chinese law fails to deal with, but affect Chinese women (and other women living in China).

Professor Yang had this to say about de facto marriage (what we Americans sometimes call “common law” marriage) (or what my (late) father called “living in sin.”)  “The concept of de facto marriage is completely abolished in the field of civil law. However, it is particularly contradictory that in criminal law, it is recognized that defacto marriage is a marriage relationship…When sanctions are imposed on the parties, the factual marriage relationship is recognized. When the rights are recognized, the de facto marriage relationship is not recognized. This is a completely contradictory application of law.

He had this to say about another issue for many Chinese women–children born out of wedlock (The Economist, among other major media, have written on this):

China’s current Marriage Law does not provide for claims by children born out of wedlock and does not stipulate that children born within a marriage can be denied status as children of the marriage.  Children born out of wedlock are born from extramarital sex, that is, children are born out of wedlock, and the child or the mother must have the father to claim the child as a child…For example, a child born out of wedlock needs to be raised, and the mother is unable fully to support the child. She has reason to seek to confirm that the father of the child is the father, and then ask him to support the child. This kind of thing does occur, but our marriage and family law has not had such a rule until now. It is because we have socialist marriage values, we can’t engage in extramarital affairs, we can’t have children born out of wedlock, and the establishment of such a system is tantamount to acknowledging the legitimacy of such behavior.

Among the many concerns is that forthcoming judicial interpretations of the Marriage Law, designed to incorporate socialist core values to protect the stability of the family unit in Chinese society, could disadvantage women.

2.  Strengthen cooperation in the preparation of the Civil Code and promote the legalization of women’s rights protection

As fellow blogger Mark Cohen and I have reported earlier,  the SPC set up a civil law codification team, with Justice Du Wanhua taking the lead.  It appears that Professors Xia Yinlan of the China University of Political Science and Law and Li Mingshun of China Women’s University (among others) are working with the Women’s Federation and other scholars to seek to ensure that women’s rights are protected, as socialist ore values will also be integrated into the drafting of the Civil Code.

3. Legislative proposals to protect rural women’s land rights;

How to ensure that the rights of rural women to land are protected is a major problem, particularly now that the Chinese government is focusing on policies that marketize rural land interests.  Professor Li Huiying of the Communist Party’s Central Party School has been a major force in pushing national attention to this issue.  She wrote:

some people are farmers, but have no rights to get the contracted lands due to their “gender” or the identity “additional population”….

Firstly, 18 percent of married rural women do not have their names mentioned on either their parent’s families or their husband’s families land contracts.

Nearly 53 percent of married rural women’s land contracts were canceled by their home villages, according to an investigation among 1,126 such women in 21 provinces and municipalities nationwide, as conducted by the Center for Women’s Studies at Party School of the Central Committee of the CPC in 2014.

The National People’s Congress Standing Committee adopted an amendment to the Rural Land Contracting Law last December, mandating that rural women’s names be included in their families’ certificates of land contracting and management rights, so it is likely that Ms. Shen had other legislation and enforcement of this newly amended provision in mind.

4. Prevent and stop gender discrimination in employment

This is a long-term problem, reported not only the media, academia, but also by the business community.  The SPC  recently amended the civil causes of action to enable discrimination claims, but the substantive standards for discrimination are still lacking. It seems likely that multi-year discussions with the SPC headed by Ms. Gao Shawei, head of the Women’s Rights and Interests Department of the Women’s Federation were behind the inclusion of discrimination claims in the list of civil causes of action. She was quoted in this 2016 article in People’s Court Daily making that suggestion.  As mentioned in an earlier blogpost, the SPC is drafting a judicial interpretation of the Labor Contract Law, and it is conceivable that standards would be incorporated into that draft.

5. strengthen cooperation in the reform of the family court system; improving the systems for trying family-related cases and mediation

The SPC has been working on reforms to the family court system for some time, as previously reported and improving the use of mediation, but the obstacles are immense, as this interview with a local family court judge describes.  The court where she works is actually among the courts piloting family court reforms, as further described by the head of her court.  He provides a chart with statistics, not labeled as being from his court, but clearly from there (the blue column is the number of family disputes; the red, the number of divorce cases; the green, the number of divorce cases settled by mediation; and the purple column the number of cases in which the couple dropped their suit after a mediated settlement):Screenshot 2019-01-23 at 12.27.08 PM

 

 

 

China International Commercial Court starts operating

IMG_4147

The author in front of CICC #1,  December 2018

In the last few months of 2018,  the Supreme People’s Court (SPC) and China International Commercial Court (CICC) took measures to enable the CICC to start operating, although the CICC was established earlier in 2018.  As SPC President Zhou Qiang reported to the National People’s Congress (NPC)  in March 2018 that the CICC would be established, I expect that he will report to the NPC in March of this year that the SPC established the CICC and it has successfully begun operating. (It is likely that the National Appellate IP Court will merit a place in Zhou Qiang’s report as one of the SPC’s 2018 accomplishments, but see fellow blogger Mark Cohen (and co-authors)’s post on that development). This blogpost will summarize (and provide some commentary on) some of the recent CICC developments.

Those developments included:

  • issuing rules on the international commercial expert committee;
  • personnel measures–designating the heads of the of the #1 and #2 CICCs and the heads of the case management offices in the two offices and appointing seven additional judges;
  • designating several (mainland) Chinese arbitration and mediation institutions to be part of its integrated one-stop dispute resolution;
  • accepting several cases;
  • issuing rules on CICC operations (to be discussed in a following blogpost).

Rules on the international expert committee

On December 5 the SPC General Office issued the working rules of the international commercial expert committee (expert committee) (approved by the SPC judicial committee in late October) (最高人民法院国际商事专家委员会工作规则). The date of the notice of the General Office is 21 November.  It answers some frequently asked questions about the expert committee. My comments are in italics.

What do members of the expert committee do?

1) preside over mediations (Article 3 (1): This was clear from the CICC Provisions.  It remains to be seen how many expert committee members will feel comfortable mediating disputes. It could be that some of the Chinese members will feel more comfortable mediating disputes than the foreign or Hong Kong-based members, as some of those members have long experience as arbitrators in China, where combining mediation and arbitration (med-arb) is usual. A significant number of expert committee members are from jurisdictions where being a mediator and mediating us regarded as separate profession and skill from arbitration and adjudicating.  Articles 9-13 describe the mechanics for doing so.

(2) provide an advisory opinion on specialized legal issues such as those relating to international treaties, international commercial rules, finding and applying foreign law [foreign and greater China jurisdictions] relating cases heard by the CICC and the People’s Courts at all levels (Article 3 (2): This contains a surprising expansion of the role of the experts on the committee by authorizing Chinese courts at various levels to request an expert committee member to provide an advisory opinion on international legal, international commercial and foreign law issues. A note on terminology–the English version on the CICC website uses “foreign law” while the Chinese original uses the term  “域外 ” (extraterritorial), intended to include the jurisdictions of Hong Kong, Macau, and Taiwan as well as the law of foreign jurisdictions.  This blogpost will use the term “foreign law” as meaning “域外 ” extraterritorial law.

The fact that expert committee members have been so authorized indicates that ascertaining (determining) foreign law is a significant practical problem for Chinese judges.  I previously mentioned in this 2017 blogpost that Judge Zhang Yongjian listed ascertaining foreign law(he uses the term 外国法·) as one of many problems confronting Chinese judges hearing cross-border issues. Several articles on the Chinese version of the CICC website (plus one on the English version (by CICC Judge Gao Xiaoli) discuss this problem.  Judge Gao gently pokes fun at some Chinese scholars who fail to understand relevant judicial interpretations on ascertaining foreign law. The CICC website lists the methods available to a Chinese court in ascertaining foreign law. Among the alternatives include designating one of four authorized centers to provide an expert opinion on foreign law.  Articles 14-15 describe some of the mechanics by which one or more expert committee experts can provide an advisory opinion.

Under Article 15, a litigant may request through the CICC’s Expert Office that the expert appear in court to explain his or her opinion.  It is up to the expert to decide whether to appear. Presumably, expenses involved, including travel and translation, would be the responsibility of the requesting party.

The rules do not clarify a number of practical questions related to this. Could a court request an advisory opinion from an expert and from a designated discernment center, and if so, what relative weight will be attached to each?  Presumably, a court would give it greater weight than an opinion from an expert provided by a party.  It is unclear whether experts can charge for these services. Another concern for experts could be liability, and the standard for an opinion found to be negligently made.  Additionally, for the many foreign experts on the committee who do not know Chinese, it is unclear who will be responsible for translation.  Presumably, the court that requested the opinion or the International Expert Committee office (see 6 (2), which states that the office provides services to experts. Perhaps the forthcoming Code of Ethics of the Expert Members will address these questions.

(3) provide advice and suggestions on the development of the International Commercial Court; (4) provide advice and suggestions on the formulation of judicial interpretations and judicial policies of the Supreme People’s Court; (5) Other matters entrusted by the International Commercial Court; The first two provisions set out a formal structure for foreigners to provide advice, suggestions, and comments on judicial interpretations, judicial policy and other developments to the SPC, a first. Article 18 anticipates that the Expert Office will direct requests for comments or advice on specific draft judicial interpretations, policies, etc. to one or more experts, as the CICC considers useful rather than expert committee members being informed about ongoing developments.  However, it does enable expert committee members to make suggestions or proposals on their own initiative.  

Personnel developments

The last few months have seen a number of CICC personnel developments, including the appointment of seven additional judges. In early November, Judge Zhang Yongjian, deputy head of the #1 Circuit Court and head of the #4 Civil Division, was appointed as head of the #1 CICC and Judge Zhang Ming, deputy head of the #6 Circuit Court, was appointed head of the #2 CICC.

Judges Xi Xiangyang and Ding Guangyu, presiding judges on the #1 and #6 Circuit Courts respectively, and CICC judges, were at the same time appointed heads of the case management offices of the two courts.

Judge Song Jianli has been appointed the head of the CICC Expert Office.

The additional seven judges are:

  1. Wang Shumei (deputy head of the SPC’s #4 Civil Division, specializing in maritime law);
  2. Wei Wenchao, who has had a number of roles at the SPC, most recently as deputy head of the #5 Circuit Court. He had previously served as deputy head of the Environmental and Natural Resources Division;
  3. Song Jianli, head of the Experts Office, who studied at Southampton Institute (now Solent University) (in addition to his studies in China), and was a visiting scholar at Cambridge, the University of Pennsylvania, and the Max Planck Institute of Comparative and International Law, and has primarily worked in the SPC’s #4 Civil Division;
  4. Zhang Xuemei, of the SPC #2 Civil Division (domestic commercial issues);
  5. Yu Xiaohan, also of the #4 Civil Division, and like Wang Shumei, a maritime law specialist;
  6. Ding Guangyu, who studied at the University of Manchester and has had a number of roles at the SPC, including at the China Institute of Applied Jurisprudence, and in the #4 Civil Division;
  7. Guo Zaiyu, who spent many years at the Hubei Higher People’s Court before transferring to the SPC’s #4 Civil Division.

It is clear from these announcements that at this time, the CICC is a part-time responsibility for the judges involved, who have their ongoing responsibilities at the SPC, either at one of the Circuit Courts, the new Intellectual Property Court, or SPC headquarters.  And some senior people, such as Judge Zhang Yongjian, have triple administrative roles.

One-stop diversified dispute resolution mechanism

As an earlier blogpost flagged, the institutions clearly intended to be part of the one-stop diversified dispute resolution mechanism were the leading Chinese arbitration and mediation institutions handling foreign-related matters.  Most of these institutions sent senior representatives to attend the first meeting of the experts committee, so I was not surprised to see the following institutions listed:

  1. China International Economic and Trade Arbitration Commission (CIETAC);
  2. Shanghai International Economic and Trade Arbitration Commission;
  3. the Shenzhen Court of International Arbitration (SCIA);
  4. Beijing Arbitration Commission;
  5. China Maritime Arbitration Commission;
  6. the Mediation Center of China Council for the Promotion of International Trade (CCPIT); and
  7. Shanghai Commercial Mediation Center.

SCIA has an arrangement with the Hong Kong Mediation Centre since 2014 by which Mediation Centre settlements may be enforced in mainland China through a consent award issued by SCIA.

First cases

At the end of December 2018, the CICC accepted several cases, all of which can be categorized as general international commercial disputes, with none specifically related to Belt & Road projects.  The disputes include: an unjust enrichment dispute involving Fujifilm and several Chinese companies, a product liability dispute involving Italian pharmaceutical company called Bruschettini (which sells its products through Sinco Pharmaceuticals Ltd., a Hong Kong-listed company), several disputes related to Thailand’s Red Bull (from this report, I surmise that the case was referred by the Beijing Higher People’s Court), and several disputes involving the validity of arbitration clauses, including one involving China Travel Service (Hong Kong) and one of its hotels.   ____________________________

The author is a member of the international commercial expert committee but her views do not represent the committee, the CICC, or the SPC.

 

Supreme People’s Court Monitor 2018 Year-end Report

Screenshot 2018-12-07 at 5.48.29 PM

The Monitor as “Fargo North” Decoder

In 2018, the Supreme People’s Court Monitor published 25 posts and had almost 39,009 page views, from 146 jurisdictions, primarily from:

  • United States;
  • (mainland) China;
  • Hong Kong;
  • United Kingdom.

with Germany, Australia and Singapore trailing. Mainland China is in second place for the first time.

Why did I do less blogging when compared to 2017, when I published 41 posts?  Perhaps it can be attributed to competing professional obligations–including writing several academic-style articles (all in the production pipeline), and the significant effort required to unpack SPC documents and initiatives in under 1500 words.  Perhaps also attributable to failing to realize that the “perfect is the enemy of the good.” The many developments in 2018 have left me with a large backlog of documents and issues to discuss.

In 2018, the work of the Monitor resulted in several official and semi-official honors (listed in chronological order):

  1. in June, the honor (and the challenge) of giving lecture #19 (in Chinese) as part of the lecture series (大讲堂) sponsored by the Supreme People’s Court (SPC)’s China Institute of Applied Jurisprudence, as reported in this earlier blogpost. It was the last lecture that Judge Jiang Huiling chaired before he was transferred from the Institute to the National Judicial College and I’m not aware that another lecture has been held since he was transferred.  I am very grateful to Judge Jiang (for his invitation and comments) and the two commentators, Professor Hou Meng, now of Renmin University Law School, and Huang Bin, senior editor of Journal of Law Application, for their thoughtful comments;
  2. In August, the honor of being selected to the China International Commercial Court’s International Expert Committee (Expert Committee), and the challenge of giving an eight-minute speech with substantive content that struck the right tone at the first meeting of the Expert Committee.  As reported in this earlier blogpost, the attendees at that first meeting included senior officials from within the SPC and related institutions, including the Ministry of Foreign Affairs and the Ministry of Commerce.
  3. In November, speaking at the third annual UK-China Rule of Law Roundtable, sponsored by the Great Britain China Centre (GBCC) (an introduction to GBCC is found here) and the China Law Society (CLS). The Roundtable focused on international commercial dispute resolution (CDR) Fortunately, GBCC takes an inclusive approach to its high-powered and congenial delegations. The delegation included a number of us with other than UK passports.

Since the blog was founded almost six years ago:

Page views: 108,990
Jurisdictions: 183
Posts: 212

Most followers use Twitter to follow the Monitor. Although Twitter is not accessible in mainland China without a VPN, 21% of the Monitor’s Twitter followers are based there.

Thank you to:

  • the many judges and other staff members currently or formerly affiliated with the SPC (and its institutions) and local courts, who helped me understand how the SPC and lower courts operate and nuances of life in the Chinese court system in countless ways;
  • my colleagues and students at the School of Transnational Law, Peking University (Shenzhen);
  • my fellow bloggers Jeremy Daum (Chinalawtranslate.com), Wei Changhao (npcobserver.com, Mark Cohen (Chinaipr.com), and Eugene Fidell (globalmjreform.blogspot.com);
  • the law schools and other institutions around the world, that have listed my blog as a Chinese law resource;
  • law and political science professors who have recommended the Monitor to students and many others in other institutions who have provided support in various ways;
  • journalists and scholars writing about the Chinese judiciary who have cited the Monitor;
  • organizers of conferences and other events in Beijing, Changsha, Shanghai, Washington, DC and New York.

A special thank you to those who had the fortitude to read drafts of articles and blogposts and give frank comments.

 

What does the Supreme People’s Court’s new judicial transparency policy mean?

62bc75491cff95d15b4742e0c32268d9In late November (2018), the Supreme People’s Court (SPC) issued its latest transparency policy. The question is, after reading past the references to the 19th Party Congress and the ideology guiding this document, is what, if anything new does it require of the lower courts (and of itself)? And why? Decoding this document (Supreme People’s Court Opinion Concerning the Further Deepening of Judicial Transparency  (Judicial Transparency Opinion 最高人民法院关于进一步深化司法公开的意见)) requires some background.  The why is easier to answer (I have written about this in an academic article in the academic publication pipeline), but I will also explain the “what is new” and what it means.

Why?

As to the why, it appears to be linked to criticism from within the court system and by prestigious research institutes within China.  Some of the critics and their criticism:

In 2015, Justice Hu Yunteng wrote that judicial statistics needed to be made better and more transparent.  In 2016, He Fan, department head in the SPC’s judicial reform office, wrote “as long as it does not infringe the privacy of the parties, does not violate state security, the court’s data interface should be open to the community.” Local judges, too, are writing critically about judicial statistics, with at least one comparing unfavorably China’s practices with those of the US Department of Justice’s Bureau of Judicial Statistics.

IMG_4136  The team of researchers at the Institute of Law, China Academy of Social Sciences (CASS) evaluated court websites in this volume, advising the courts to “consider judicial openness from the viewpoint of public users,” and expand transparency of judicial statistics, devote manpower to updating court websites, and put some order into chaotic judicial transparency. On December 10, a team from the CASS Institute of Law announced the results of their third-party assessment of the SPC’s judicial transparency, the first time that the SPC had authorized an institution to do so, finding problems with compliance by some lower courts.

What does is the Judicial Transparency Opinion require?

The Judicial Transparency Opinion requires the courts to expand the scope of transparency while keeping secrets secret  It refers to two types of secrets, state secrets and trial secrets(审判秘密) (also called trial work secrets).

Expanding the scope of transparency while maintaining secrecy

The Judicial Transparency Opinion requires the lower courts to expanding the scope of information that they make public while keeping state and trial work secrets secret.  Although most people who a basic idea about Chinese law have heard about its broad definitions of state secrecy, that same cannot be said about the concept of “trial secrets”.  Although the general legislation on state secrecy has been updated in the past 10 years, it is unclear whether the same can be said of the specific regulations on state secrecy in the courts.  “Trial secrets” is a related concept but the relevant regulations appear to be almost 30 years old and do not define the scope of the secrets clearly. They include accounts of discussions of judicial committees, and “views from relevant units.”

What is required?

In addition to setting broad principles such as timely and substantial disclosure (research done at Tsinghua has found that some courts upload their decisions to the SPC’s judgment database months late, or not at all) and a team of leading scholars  based at several US universities that includes Columbia Law School Professor Benjamin Liebman found a “missingness problem” when looking court judgment databases), the Judicial Transparency Opinion sets out specific requirements on transparency. Those requirements are set out in seven broad areas in which the courts should voluntarily release information (except those where law, administrative regulations, judicial interpretations do not permit release information and other information that is unsuitable for being made public (其他不宜公开). The phrase “unsuitable for being made public,” is flexible enough to cover both the politically sensitive on a larger and minor scale. (For more on unsuitability, see the article that Professor Liebman and colleagues wrote).  The preliminary section also calls for the greater use of white papers and court gazettes.

The seven categories include:

  1. Basic information about the court
  2. Enforcement;
  3. Litigation Services;
  4. Judicial reform;
  5. Judicial administration;
  6. International judicial exchanges and cooperation; and
  7. “Team construction” (队伍建设)

I have selected some areas in each category where greater openness is anticipated (and included some comments in italics).

A.   Among the useful new items in “basic information”

  • institutional establishment (机构设置) (generally refers to internal structures–both the Chinese and English version of the SPC website have this);
  • Normative documents (规范性文件)–Chinese law does not require these documents, which are not legally binding to be made public, but they guide the operation of the courts–if the SPC makes more of these documents public it would be a service to all;
  • Work reports to the people’s congress at the same level (makes life easier for research seeking to access this information over time);
  • Other basic information that needs to be widely known in society (it should include information for the “litigant in person” (the person without a lawyer, but it doesn’t).

B.  On enforcement, the SPC direct the lower courts to gradually expand the scope of enforcement openness.  Matters on the 12-item list include:

  • judicial statistics (presumably to include greater consistency among jurisdictions, unclear the scope of the statistics that may be released);
  • enforcement procedures (unclear whether this is for parties only or the general public);
  • bankruptcy information (not much is being made public);
  • Annual reports on enforcement in different substantive areas;
  • Judicial big data reports.

C.  Litigation services

  • Litigation guides (see the Shenzhen intermediate court’s list–while a good start, they are not user-friendly (guide to criminal collateral appeals, for example): 
  • court notices and information about judicial auctions and other information relating to the disposal of judicial property (this could be interesting in corruption-related cases);
  • judicial services, experts, bankruptcy administrators, etc.
  • specially appointed mediators and mediation organizations; lawyers stationed at the courts, other volunteers assisting with litigation;
  • Channels for collateral appeals and petitioning;
  • other information relating to party’s rights in litigation and other information the public should know–again see the suggestion above (for Chinese litigants) and this blog has previously made for non-Chinese litigants and defendants as well (foreigners and others from outside of mainland China also need some easily understandable information about the Chinese court system).

D.  The SPC calls for greater transparency relating to Judicial reform so that the public will have greater confidence in it, including:

  • judicial reform documents (would make the life of researchers trying to assemble the judicial reform puzzle much easier);
  • Information on progress in judicial reform [unclear whether the drafters are referring to white papers]
  • Other information the public should know (that ideally should include statistics related to judicial reform, including resignations of personnel, but appears unlikely);

E. Judicial administration–The SPC calls for the courts to accept supervision by society.  The measures include:

  • Matters relating to societal interests and follow up from suggestions made by National People’s Congress/Consultative Congress members (it would be useful to know what percentage of court staff is “on the front-line” of hearing cases rather than being in an administrative role);
  • Technical standards.

F. International judicial exchanges and cooperation–increase exchanges and reference between legal cultures, create a good impression internationally of the Chinese courts, promote their international competitiveness, influence and credibility:

  • important international judicial exchanges
  • important international judicial conferences;
  • other matters that society should know about.
    No mention of lists of projects for which the Chinese courts would welcome international exchanges and interchange of legal concepts. No mention of how a foreigner would be able to attend a court hearing in China.
  1. “Team construction”–this term is a Party term (but the Party is in charge of cadres)–i.e. this section relates to judicial personnel
  • the situation relating to Party construction (listed first, understandable in the post 19th Party Congress era);
  • Personnel work (it would be useful to have a breakdown of the number of judges and other judicial support personnel as well as those in administrative roles, as well as resignations and appointments);
  • Disciplinary information (it would be useful to have full decisions published, as in other jurisdictions);
  • Training and education.

Other issues

The final paragraph of the Judicial Transparency Opinion calls for implementing measures and more detailed measures to be drafted and for measures to be put in place.  So it can be expected that specific departments of the SPC will be involved in drafting more specific guidelines (will that involve more specifics on the types of statistics on criminal convictions released)?  Once the national guidelines are in place, we can anticipate that provincial high courts (or their equivalents) will issue implementing documents.  It is only then that we will be able to comment on what the actual impact of this document is.

Law-related Wechat public accounts, 2018 update (1)

Screen Shot 2018-02-03 at 10.13.48 AM Wechat, as most people with an interest in China know, has become the preferred form of social media in China.  The legal community in China has taken to it too.

For the observer, it enables us to learn about new issues (or aspects of issues) that we didn’t know existed, and (depending on the topic), hear viewpoints other than the official one, or at least read hints of dissenting views. Those with the Wechat app on their smartphone can subscribe to these public accounts but it is also possible to find some these articles through an internet search. Note that the “Mr. Yong” about whom I wrote in 2016 lurks on Wechat, so articles published may disappear, although they often reappear elsewhere.

Some are official accounts of government entities, including the courts and others are public accounts (公众账号) established by companies, law firms, universities, societies, other organizations, or individuals. In November, 2018 the Cyberspace Administration of China said that tightened management of internet content producers would be a “new norm,: and Tencent reduced the number of permitted corporate public accounts from five to two and individual accounts from two to one.  More information on this development elsewhere.

Below is the first part of a guide to some useful law-related Wechat public accounts focusing on accounts related to the Supreme People’s Court (SPC) Please contact me through the comment function or email with additional suggestions.

The official Party and government accounts enable the user to keep current on the issues and latest Party and government position in that area of law–new policy, new legislation, and new reforms, or the official response to a current hot topic.  The Central Political-Legal Commission has one, the Central Supervision Commission, as do both the SPC and Supreme People’s Procuratorate, as well as their local counterparts. Academic journals have a different audience that requires more nuance.

As I’ve written before, Party/government authorities use Wechat public accounts to reach out to a public that is moving away from traditional media to smartphones. Party/government policy is encouraging courts to do so.  There is some but not complete overlap between articles that appear on an institution’s website and Wechat account. There is complete overlap when more political matters are involved, such as the latest important speech of a leader. Even some articles published in institutional public accounts may have a “netizen” tone and use netizen slang and images.

Institution Account name
National Supervision Commission 中央纪委监委网站
Central Political-Legal Commission 中央政法长安剑 (recently renamed, read here

Official accounts linked to the SPC

 linked to SPC and its affiliated institutions
Institution Account name Content
Supreme People’s Court 最高人民法院 Official view of SPC; also republishes Xinhua articles
People’s Court Daily 人民法院报 Official view of SPC; also republishes Xinhua articles
Institute for Applied Jurisprudence

 

(since July, 2018, under the new institute director, the account has published  fewer articles than previously)

中国应用法学研究所 Had previously carried accounts of conferences and academic talks, translations of foreign materials; other articles
China Applied Jurisprudence (academic journal)(from Sept., 2018) 中国应用法学 Publishes excerpts from journal articles (recent article included: article on people’s assessors pilot project; also republishes other articles of interest to editor; translations of foreign materials, including an excerpt from “Building a Diverse Bench” (NYU Brennan Center publication)
Journal of Law Application (academic journal affiliated with National Judges College 法律适用 Publishes excerpts from journal articles, some by judges, others by academics
Alternative Dispute Resolution Reform in China 多元化纠纷解决机制 Articles on alternative dispute resolution in China and foreign experience
Database Faxin (affiliated with the People’s Court Press) 法信 Case analysis, analysis of cases on specific issues
China Trial (journal) 中国审判 Excerpts from articles in the journal
People’s Judicature 人民司法 Excerpts from articles in the journal
Case Research Institute of National Judges College 司法案例研究院 Case analysis, excerpts from its academic journal (Journal of Law Application (Cases))
SPC Information Center 智慧法院进行时 Reports on informatization of courts
Administrative enforcement and administrative trial

 

行政执法与行政审判 Articles related to administrative litigation & enforcement

 

National Judges College 国家法官学院 Official account; articles reporting on the National Judges College &    its local branches
People’s Assessors 人民陪审 Articles related to the people’s assessor system & its reforms

Several SPC judges and SPC officials have Wechat public accounts.  They have obtained approval to have them.  Among them are:

Individual affiliated with SPC Account name Content
He Fan (何帆), head of the planning department of the SPC’s Judicial Reform Office 法影斑斓 Judicial reform
Yu Tongzhi (于同志), judge of SPC #2 Criminal Division, editor of 刑事审判参考 说刑品案 Excerpts from the journal, articles on criminal law and criminal procedure issues (some republished), including original articles by Judge Yu himself, generally on broader criminal law issues.
Wang Dongmin (王东敏), judge of the SPC #2 Civil Division 法律之树 Issues of civil and civil procedure law

As a general (but not directed comment), if judges on the SPC express views on issues that may come before them, it would appear to raise issues similar to those that arise in the rest of the world–the propriety of extrajudicial writing–a sample of writings on this issue from other jurisdictions found here. Persons who can provide relevant information concerning relevant SPC ethics provisions, and restrictions in civil law rather than common law jurisdictions, please contact me.

What significance does China’s updated court law have?

szzy

main premises of the Shenzhen intermediate court

The National People’s Congress (NPC) Standing Committee recently revised the Organic Law of the People’s Courts (People’s Courts Law, English translation available at Chinalawtranslate.com), the framework law by which the Chinese courts operate.  The NPC took the lead in drafting it, rather than the Supreme People’s Court (SPC). It retains the framework of the old law, incorporates legislative changes and many judicial reforms, leaves some flexibility for future reforms, and updates some of the general principles in the old law that apparently are on the dust heap of history (历史的垃圾堆).  Some of the principles newly incorporated reflect the reorientation of the Chinese courts, over the past 40 years while others represent long-term goals. Some provisions originally in earlier drafts have been deleted because the NPC Constitution and Law Committee considered that the time was not ripe for incorporating them.

The law contains some oddities, such as using two terms for judges, both “审判员” (shenpanyuan) (used four times) and “法官” (faguan)(used 38 times).  None of the official commentary has explained the reason for the mixed terminology.  My own guess is that it is linked to the use of “审判员” in the Constitution, but anyone with more insights into this is welcome to provide clarity.

The People’s Courts Law does not stand on its own. It is connected with other legislation, such as the Judges’ Law (amendments under consideration, with the drafting led by the SPC (this 2017 article criticizes some of the disconnects between the two) .the three procedure laws, the Civil Servants Law, as well as with Communist Party (Party) regulations.  As the courts are led by the Party,  its regulations also affect how the amended People’s Courts Law will operate when it becomes effective on 1 January 2019.

General Provisions

Some of the principles newly incorporated into the law reflect the reorientation of the Chinese courts over the past 40 years towards more civil disputes and an increasing number of administrative disputes, while others represent long-term goals.

Article 2 has relegated some of the dated language from what was previously Article 3  to the dust heap of history–references to the “system of the dictatorship of the proletariat,” “socialist property,” and the “smooth progress of the socialist revolution”). Those have been replaced by language such as “ensuring the innocent are not prosecuted,” “protecting the lawful rights and interests of individuals and organizations,” preserving national security and social order, social fairness and justice,  and the uniformity, dignity, and authority of the state’s legal system.

The principle of “ensuring the innocent are not prosecuted” makes its first appearance in the People’s Courts Law. I recommend this new article by a member of the Beijing Procuratorate, (in part) criticizing the poisonous effect of the “declared innocent” performance indicators of procurators on Chinese criminal justice.

On protecting the “lawful interests of individuals and organizations,” rapidly changing judicial policy and inconsistencies between criminal and civil law may mean that what is recognized as valid under civil law may be considered a bribe under criminal law.  Additionally, although the People’s Courts Law deletes language that distinguishes among owners of different types of Chinese companies, Chinese criminal law still does (see this chart setting out sentencing guidelines, for example).

Article 6, on judicial fairness, contains language on respecting and protecting human rights.  Foreigners may think it is directed at them, but it is more likely aimed at Chinese citizens.

Article 7 calls for the courts to carry out judicial openness, except as otherwise provided by law.  It is generally recognized that the courts are much more transparent than before, although specialist analysis in and out of China points out that there remains much to be done.

Article 8 incorporates judicial responsibility systems into the law (a prominent feature of the recent judicial reforms), described by two judges as the “sword of Damocles hanging over judges” (( 法官办案责任追究是时刻悬挂在法官们头上的“达摩克利斯之剑”) and a topic regarding which more dispassionate analysis is making its way into print.

Article 11 has important language about the right of the masses (i.e. ordinary people, that term is alive and well) to know of (知情),  participate in (参与·), and supervise the courts (according to law). However, the devil is in the details, as procedures for exercising these rights remain limited and sometimes lacking.

Organization (set up and authority) of the courts

Article 15 mentions some of the specialized courts that have been established over the last thirty years:

  • Maritime courts, legislation found here; translation of SPC regulations on jurisdiction found here.
  • Intellectual property courts, legislation found here, a summary of SPC regulations on jurisdiction found here.
  • Financial courts, see the SPC’s regulations on the Shanghai financial court.
  • The military courts still lack their own legislation (an earlier discussion of this issue is found here).

Article 14 relates to the special Xinjiang Construction & Production Corps (Bingtuan) courts  (not a specialized court under Chinese law, rather a court with its own special jurisdiction). Those interested can look to its NPC Standing Committee legislation,  SPC more detailed regulations, and Professor Pittman Potter’s research on these courts.

Article 16 incorporates the new China International Commercial Court’s first instance cases.

Article 18 incorporates the guiding case system into the law.

Article 19 crystallizes the SPC’s circuit courts (tribunals) into law (SPC regulations on the jurisdiction of those courts found here).

Articles 26 and 27 give courts some flexibility on their internal structure (courts in remote areas with few cases need not establish divisions, while large city courts can have multiple specialized ones. (Earlier blogposts have mentioned establishing bankruptcy divisions, for example.) Article 27 also mentions establishing (or not) comprehensive divisions (the administrative departments of courts, that according to a recent academic article can constitute close to half the headcount in a court and that some court leaders value more highly than operational divisions (the divisions hearing cases).

Trial Organization

This section of the law incorporates the current judicial reforms in several ways, including:

  • In Article 30, on the operation of collegial panels and requiring the court president to be the presiding judge when s(he) participates in a collegial panel;
  • Mentioning in Article 31 that dissenting opinions are to be recorded and that members of the collegial panel (or sole judge) are the ones to sign their judgments and the court is to issue it;
  • Article 34 gives space for eliminating the role of people’s assessors to determine issues of law, linked to Article 22 of the People’s Assessors Law;
  • Articles 36-39 includes new provisions on judicial/adjudication committees.  It consolidates current reforms by crystalizing specialist judicial committees (civil/criminal). An important reform is requiring the views of the judicial committee to be disclosed in the judgment (the view is binding on the collegial panel that has submitted the case.  These articles also include related stipulations such as quorum requirements and making judicial committee members responsible for their views and votes. (See previous scholarship on this important institution).
  • Article 37 incorporates into law previous SPC regulations on judicial interpretations, specifying that they must be approved by the full (plenary) SPC judicial committee while guiding cases can be approved by a specialized committee of the SPC judicial committee.

Court Personnel

This section of the law uses the terminology :”审判员” (shenpanyuan) and “法官” (faguan).  It also incorporates the personnel reforms set out in the judicial reform documents in several ways: quota judge system; selecting higher court judges from the lower courts; the roles of judicial assistants and clerks (changed from the old model); other support personnel in the courts; a new career track for judges, including judicial selection committees; preference to hiring judges with legal qualifications;

Article 47 requires court presidents to have legal knowledge and experience.  It has long been an issue that court presidents have been appointed more for their political than legal expertise. Under the Chinese court system, an effective court president requires both sets of skills.

It appears that the reform of having judges below the provincial level appointed by the provincial level is not yet in place,

Safeguards for the courts’ exercise of authority

This section of the law links with the Judges Law and the People’s Police Law (in relation to judicial police).

Article 52 gives courts the right to refuse to engage in activities that violate their legally prescribed duties (will this end the phenomenon of judges sweeping streets?);

Article 53 relates to reforms relating to enforcement of judgments (and the social credit system);

Article 55 relates to judicial (and judicial personnel training, both theoretical/(ideological) and professional)–some earlier blogposts have shed light on this topic.

Article 56 indicates that headcount for court personnel is subject to special regulation(人民法院人员编制实行专项管理, distinct from other civil servants.

Article 58 incorporates into the law President Zhou Qiang’s focus on the informatization (including the use of the internet and big data) of the Chinese courts.

Drafting process

The drafting process (the explanation and other articles have the details) reflects the drafting of much Chinese legislation (further insights about the process from Jamie Horsley here).  The SPC Party Group designated personnel to research specific issues and engage with the drafters. The drafting involved several years of soft consultation by the drafters of relevant Party and government authorities, plus limited public consultations. Among the central Party authorities consulted were: Central Commission for Discipline Inspection, Central Organizational Department (in charge of cadres); Central Staffing Commission (in charge of headcount); Central Political-Legal Committee.  On the government side: Supreme People’s Court and Procuratorate; State Council Legislative Affairs Office; Ministry of Finance, National People’s Congress Legal Work Committee. Investigations and consultations were also done at a local level.

Bridging Chinese academia & “the system” (updated)

Screen Shot 2018-10-06 at 7.27.00 PM

President Zhou Qiang & Xu Jiaxin, former head of the SPC Political Dept, with SPC guazhi & other scholars

In a number of legal systems around the world, governments and sometimes court systems have institutions or practices in place to bring legal academics into government service and sometimes into the courts (and there are also professionals going the other way round). My former Havard Law School contracts professor, Charles Fried, illustrates that, as he served as Solicitor General and an Associate Justice of the Massachusetts Supreme Judicial Court.  Similar practices occur in civil law countries–German law professors are often appointed to either the German or European judiciary.  This type of practice has the advantage of bringing some new thinking and ideas into the bureaucracy or judiciary, and for those who return to academia from government service, it grounds their scholarship in the real world. Harold Koh, of Yale Law School, is an exemplar, having spent almost three years as the US State Department’s Legal Adviser during the Obama administration.

What about China?  Chinese academics generally go directly into teaching without any experience in practice and when they advocate certain reforms, they may not understand the institutional environment (the “system” (体制).

Several years ago a system was put in place to bridge the worlds of academia and “the system,” that took one friend teaching in a Chinese law school into a local court, and has taken several others into the Supreme People’s Court (SPC). That system is the temporary assignment/transferred duty (挂职锻炼 guazhi duanlian) system.  I’ll use the term guazhi.

“temporary assignment” (挂职)

As I wrote in my 1993 article, the courts (including the Supreme People’s Court (SPC)) have long used the guazhi system.  Back then (and now) it is used to send cadres (of which judges are one type) to the basic level or at least the lower level for some “real life” experience (while retaining their upper-level position) and often is the prelude for promotion.  The system has finally caught the attention of political scientists outside of China, as some recent academic articles attest.

Under the guazhi program that these friends participated in, academics go into the courts and procuracy for one or two years, depending on the institution.  The basis for the guazhi system between legal academia and the courts and other legal institutions was originally a 2011 joint document between the Central Political-Legal Committee and the Ministry of Education, Some Opinions on Plans for Cultivating Outstanding Legal Talent (教育部 中央政法委员会关于实施卓越法律人才教育培养计划的若干意见). This document has been updated to incorporate the latest policies on training high-quality legal professionals in the post 19th Party Congress new era.

In October 2018, the Ministry of Education and Central Political-Legal Committee issued an updated (2.0) version of this document.  The guazhi system must have been assessed as worthwhile, successful, and helpful in training legal professionals for the new era because it remains firmly in place: “select core law school legal academics to go to the operational departments of the legal system for temporary assignment” (选聘高校法学骨干教师到法治实务部门挂职锻炼).

The full text of the document (关于建立人民法院与法学院校双向交流机制的指导意见), that the SPC issued to implement the 2011 joint document appears not to have been released, and it is too soon (as of this writing) for the SPC to have updated its earlier document. The requirements for guazhi scholars are clear from the notice soliciting applications. The small number of scholars posted to the SPC must commit for a two year period, may sit as judges (they are appointed as deputy division chiefs or their equivalent and confirmed and removed by the National People’s Congress Standing Committee), must be recommended by their home institution, meet both (the standard) political and scholarly requirements, and be under the age of 55. They must work at least two days a week or at least 100 hours a year and may commit to the SPC either part or full time.

SPC guazhi scholars have included:

In the field of international/cross-border law, Liu Jingdong of the International Law Institute of the Chinese Academy of Social Sciences and Shan Wenhua of Xi’an Jiaotong University. A few searches show that Professor Liu, who was posted to the #4 Civil Division (dealing with cross-border issues) worked on some of the important issues that the division is dealing with: maritime law, arbitration, free trade zones, and Belt & Road. Professor Liu’s farewell to the SPC #4 Division gives a flavor of the issues that the division is dealing with as well as the long hours worked by its judges(and may go some way to explaining why guidelines on the operation of the China International Commercial Court have not yet been issued).

Criminal law: Lin Wei of the China Youth University of Political Studies and Lu Jianping and Liu Guangsan of Beijing Normal University. Professors Lin and Lu have both commented on death penalty-related issues.

Administrative Division: Wang Xizhuang of Peking University.

Judicial Reform and Research Office: Sun Xianzhong (Chinese Academy of Social Sciences) and Wang Haiyan (China University of Political Science and Law).

The scholars are all from leading institutions and many of them have some experience outside of China.  Several of them were asked to stay beyond the original two years, indicating that they were well-received. The vast majority have been men.

The bottom line is–does guazhi work for both the institution and the individual?  In theory, guazhi in the SPC should benefit both sides–the academics, who generally lack practical experience, the SPC, by having another pair of senior hands to work on research linked to drafting judicial interpretations and other policy documents with some fresh ideas, including ideas based on research or experience abroad.

But it likely depends on other skills of the individuals involved.  Are the scholars able to adapt to the culture of the hierarchical Chinese court system?  Do their temporary colleagues help them to adapt or do they step away? Are they able to communicate with senior court leaders in the required language?  When they discuss cases, visit local courts or train local judges, are they able to leave academic jargon behind?  One knowledgeable person suggested that the best guazhi scholars are able to influence senior leaders in a positive way, bringing new ideas into the bureaucratic court system, while another noted that unless guazhi scholars work full-time, their contribution will be limited, as they fail to harmonize with the way the system operates.

 

Socialist core values & Chinese judicial interpretations

20180307_082132

socialist core values poster in a Shanghai hotel

I write on socialist core values and Chinese judicial interpretations with some trepidation.  Not because I have trouble deciphering socialist core values, but because the two documents core to the analysis are available in summary form only, as at least one source has mentioned that the SPC document is classified. This blogpost is based on those summaries, primarily on the summary provided by Supreme People’s Court (SPC) Research Office (研究室) head Jiang Qibo of its five-year work plan (2018-2023) to incorporate fully socialist core values into judicial interpretations (关于在司法解释中全面贯彻社会主义核心价值观的工作规划(2018-2023).)  in 2015 the SPC had issued a general document on socialist core values.

As explained below, it appears that the SPC is both “serving the greater situation” by implementing in the courts the Party’s plan to integrate socialist core values in plans to legislate and amend legislation(社会主义核心价值观融入法治建设立法修法规划) while at the same time seeking to deal with many of the difficult legal issues that face it.

For those unfamiliar with the SPC’s Research Office, (as I am writing in yet another academic article stuck in the production pipeline),  2007 SPC regulations place it as the gatekeeper for reviewing proposals, examining and coordinating the drafting of judicial interpretations.  It also acts as the liaison when other central institutions forward their draft legislation and 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 critical language in the Party’s plan for the SPC and its judicial interpretations appears to be: “judicial interpretations should be amended and improved in a timely manner according to the demands of socialist core values” (司法解释,要按照社会主义核心价值观的要求,及时进行修订完善).  This language appears only in the SPC’s summary of its own plan and not in the earlier reports on the original plan.

The SPC’s approach to implementing the Party’s plan was to pull together all the demands on and recommendations to it to draft judicial interpretations–some in Party documents, others in recommendations from the National People’s Congress (NPC) Standing Committee (presumably its Legislative Affairs Commission), proposals from NPC and CPPCC delegates, a collation of proposals concerning judicial interpretations from the lower courts, plus  the needs of the courts (as seen from the SPC), and the SPC’s other drafting commitments.

The areas of law that Jiang Qibo are relevant to a broad range of persons, from commercial lawyers to environmentalists, to those interested in the rights of women and the elderly. Some involve new areas for judicial interpretations while others require expanding old ones.

Jiang Qibo classified the interpretations into five broad categories:

  1. The category of patriotism, dedication, and harmony includes the following (important) judicial interpretations. It appears the #1 Civil Division will take the lead on these, and I trust will engage in public consultation:
  • Amending those on the right to reputation and the right to honor to include better protection for heroes and martyrs (as to be expected and was flagged in a recent blogpost); See some earlier translations here on the SPC’s statements on the earlier heroes and martyrs litigation;
  • amending and improving judicial interpretations related to the Marriage Law and family law, etc.  I recommend this article by Professor Yang Lixin of Renmin University (formerly an SPC judge) for his forthright analysis of the state of Chinese family law and current important issues (children born out of wedlock, same-sex marriage, wills, surrogacy, etc);
  • improving the systems for trying family-related cases (Judge Du Wanhua is overseeing the pilot projects in this area); improve the legal protection of juveniles; prevent and punish school bullying, etc. (the SPC has been doing research on improving juvenile law and preventing school bullying for several years).
  • amending/improving labor dispute judicial interpretations (these fill in the holes in labor legislation)  As has been discussed earlier on this blog, the number of labor cases in the courts has increased.

2. The category of equality, justice, democracy, and rule by law:

  • Improve protection of property, especially non-public property, in criminal law. (See last year’s blogpost on this). Recent developments in China have seen greater use of confiscation procedures, and as this blog highlighted earlier this year, property protections are inadequate.
  • Improve the rules for trying property condemnation cases, to better protect the rights of those whose property is being acquired.
  • A judicial interpretation on hearing disputes over the use of personal information is needed (project approval for this has been given). Also work will start on a judicial interpretation on the protection of wild animals and protected species (see NPC Observer’s article on a related case), and the enforcement judicial interpretation is also to be amended (because of the SPC’s campaign to improve enforcement).

3. In the category of justice, friendship, and cooperation are the following:

  • an interpretation on self-defense (recently in the news in China in several cases, such as the Yu Huan case and a case in Kunshan);
  • also improving the SPC’s2016  policy document on judicial legal assistance (legal aid as arranged by the courts).

4. On setting out further details to the broad principles in the General Part of the Civil Code (also Judge Du Wanhua continues to be involved with this):

  • amending the contract law judicial interpretations;
  • amending the judicial interpretations on the criminal punishment production and sale of fake and shoddy goods;
  • amending the judicial interpretation on food and drug safety crimes;
  • criminal punishment of fraudulent litigation (just released);
  • rules on hearing cases in which the government is a contracting party, and issuing a judicial interpretation at an appropriate time.

5. On prosperity, creativity, and greenness:

  • amending the judicial interpretation relating to villages, to provide services for rural revival;
  • amending real estate related judicial interpretations;
  • amending finance related judicial interpretations, to ensure national financial safety and prevent a financial crisis (the criminal law in this area is quite unclear);
  • amending the judicial interpretations on bankruptcy law;
  • improving judicial interpretations related to intellectual property law (IP law), see more below;
  • amend the judicial interpretations related to environmental protection;
  • amend the judicial interpretations on maritime trade and other maritime matters.

On the intellectual property front:

  • The SPC will look into punitive damages for patent, copyright, and other IP infringement so that in serious cases punitive damages can be imposed and having the infringer responsible for the costs to the rights holder of stopping the infringement;
  • in the next five years, if the legislation is not amended it will work on using market value as a basis for damages;
  • it will work to better coordinate between administrative and judicial enforcement of IP rights;
  • it will work on guidance on civil cases that arise because of monopolistic conduct;
  • protection of plant species;
  • it will look into new issues related to unfair competition cases, also in trade secret  cases, and new issues related to civil trademark disputes;
  • research evidence issues in IP cases, look into having IP technical investigators involved in litigation;
  • research jurisdiction in IP and unfair competition cases;
  • look into preliminary preservative measures in IP cases (mentioned in an earlier blogpost).

The ones listed in the plan will be prioritized in the project approval process for judicial interpretations (see two earlier blogposts on what that is and the topics on that list)

 

The hunt for Chinese court white papers

Screen Shot 2018-09-13 at 8.07.01 AM

Winnie the Pooh & Piglet hunting for Woozles ©Ernst Shepard

In recent years, many Chinese courts have prepared and published white papers and research papers on specific topics with detailed statistics and analysis, a major step forward in transparency from the early 1990s. This blog has analyzed or mentioned several of them.  Many, on topics that include sexual assault on minors, real estate disputes, drug crimes, home renovation, and labor disputes remain to be discussed.  Releasing these reports to the general public is part of the Supreme People’s Court (SPC)’s efforts to promote greater openness. (Some research papers are for internal use only, but this post discusses only those cleared for public release). SPC President Zhou Qiang has mentioned increasing the courts’ release of white papers as one of the SPC’s many achievements in his reports to the National People’s Congress and its standing committee.  The efforts to promote the use of white papers date back to at least 2009 when the SPC issued a policy document on judicial statistics that stated:

Establish a public release system for judicial statistical data. Increase the publicity of judicial statistical information, hold a press conference to release judicial statistical information on a regular basis, actively explore the establishment of a white paper system for judicial statistics….

As those of us looking closely at the operation of the Chinese courts know,  court white papers and research reports are often based on statistical data from various internal sources and contain analysis by judges who have dealt with these cases.  Although these white papers and research reports are valuable for their statistics and related analysis, they are not always published on the internet, such as on the website of the court that issued the report. For the conscientious researcher, it is annoying  (not to mention a waste of valuable time) to find articles on court websites and local media reporting on the public release of a white paper or research report, but without a link to the full-text report.   I am facing this issue yet again in trying to do research for an essay (on a non-sensitive topic) to be included in a book edited by one of the members of the SPC’s International Commercial Expert Committee.

For example:

Tianjin high court’s 2018 Belt & Road white paper, report here 

As to why the full-text of white papers or reports are not published on the internet, reasons could include:

  1.  Anxiety on the part of the leaders of the court regarding the consequences of public distribution of these reports among the affected institutions, including companies, Party/government authorities, and higher courts (This rationale was advanced by an experienced judge whose court had not publicly released white papers until recently),
  2. Court leaders see the submission of the white paper or research report to their higher level court (or to local government) as having fulfilled their duty to have issued it and are not concerned about or aware that its public release is important.
  3. The court website infrastructure lacks sufficient capacity to host the paper.

For those courts with the infrastructure to host PDF or html versions of their white or research papers,  the Shanghai, Guangzhou, and Xiamen maritime courts provide good examples–all post white papers on the front page of their websites (or on their Wechat public accounts), making them easily accessible to the researcher.  I would expect that Zhao Hong, the president of the new Shanghai Financial Court,  formerly the president of the Shanghai Maritime Court, would carry on the practice of her former court. Both the SPC and the Shanghai higher and intermediate courts have something to learn from these maritime courts (see this white paper hidden on a Shanghai higher court webpage), not to mention many other localities.   Many of the research reports prepared by SPC divisions appear to be published in division publications, such as Reference to Criminal Trial (刑事审判参考) or Guide to Foreign-Related and Maritime Trial (涉外商事海事审判指导). The Shenzhen intermediate people’s court recently issued a bilingual white paper on bankruptcy, seemingly only available directly from the court.  Why the court leadership required a bilingual version but did not make it widely available is a mystery yet to be solved.

 

China International Commercial Court & the Supreme People’s Court Monitor

IMG_3582I am prefacing this blogpost with a statement that nothing in it (or future blogposts, for that matter) represents the Supreme People’s Court (SPC), the China International Commercial Court (CICC), or its newly established International Commercial Expert Committee (Expert Committee).

As can be seen from the above photo taken in the SPC, with President Zhou Qiang, Vice President Luo Dongchuan and others, I was among the first group of experts appointed to the CICC’s International Commercial Expert Committee. Former World Trade Organization Appellate Judge Zhang Yuejiao and I were the only two women who attended the initial meeting on 26 August.  I’ll set out some comments on the Expert Committee and the initial meeting.

The Expert Committee is the first official SPC committee that includes foreigners and others from outside of mainland China, and it may be the first of its nature within the Chinese justice (司法) system.  The Expert Committee was established as a way to involve foreigners in the CICC.  As I wrote earlier this year, unlike Singapore or Dubai, because of the restrictions of Chinese law, the CICC could not invite foreign judges to serve on the court.  Among the 32 experts appointed to the Expert Committee include many leading specialists in international arbitration and dispute resolution, including judges, arbitrators, scholars and practitioners from inside and outside China.  The detailed rules on how the CICC and the Expert Committee will operate (and interact) are still being drafted.  The provisions on the establishment of the CICC anticipate that the experts on the Expert Committee will be able to mediate disputes and provide opinions on foreign law, among other functions.

The initial meeting was held on a Sunday morning, likely to accommodate President Zhou Qiang’s schedule or that of the other senior officials who attended the meeting.  SPC  newly appointed Vice President Luo Dongchuan chaired the proceedings.  Future events will reveal his relationship, if any with the CICC.  He had previously headed the SPC’s #4 Civil Division and was most recently the head of Xinjiang’s Supervision Commission. The senior officials who attended from outside the SPC included Mr. Xu Hong, head of the Department of Treaties and Law of the Ministry of Foreign Affairs (MFA), several officials from the Department of Treaties and Law of the Ministry of Commerce (MOFCOM), as well as representatives from China’s major arbitration institutions.  A large group of officials from the SPC also attended, seated in the row behind the experts.  The CICC judges sat separately.  President Zhou Qiang presented all the experts present with their letters of appointment, followed by speeches by officials from MFA and MOFCOM, and several of the most prominent experts on the Expert Committee, including Huang Jin, President of the China University of Political Science and Law, Sir William Blair, former High Court judge and judge in charge of the Commercial  Court in London, and Rimsky Yuen, former Hong Kong Secretary for Justice.

The remaining two hours of the meeting consisted of brief presentations by some of the SPC judges involved and several experts, while other experts provided comments.  Both Judge Zhang Yuejiao and I spoke.  My brief presentation was on “the CICC: An Important Step in the Internationalization of the Chinese Courts.”  I raised a few of the legal issues that I had raised in earlier blogposts.  I concluded by reminding the attendees that the CICC could be a great opportunity to train a new generation of Chinese international judicial personnel, and that I was looking forward to the CICC giving a chance to some of my students at the Peking University School of Transnational Law to intern there!

 

What to Expect in the Fifth Round of Judicial Reforms

Screen Shot 2018-07-29 at 8.10.14 AM

On July 24, the Chinese authorities held the first post-19th Party Congress national conference  on judicial reform in Shenzhen, entitled “Promoting Comprehensive Deepening of Judicial Reform.”  Holding the conference in Shenzhen is significant, because it is considered synonymous with reform and openness. The leaders on the podium in the photo above (members of the Leading Small Group on Judicial Reform) (all men), include:

  1. Secretary of the Central Political Legal Committee, Guo Shengkun (Guo);
  2. President of the Supreme People’s Court (SPC), Zhou Qiang;
  3. Chief Procurator General Zhang Jun;
  4. Central Military Commission Political Legal Committee Party Secretary;
  5. Minister of Public Security;
  6. Minister of State Security;
  7. Commander of the People’s Armed Police.

Attendees of the conference included the Party Secretaries of the Political Legal Committees of all provinces/autonomous regions/cities, and likely senior leaders from all of the systems.

Readers of this blog will not be surprised that comprehensive deepening of judicial reform was the subject of the conference as a December, 2017, blogpost flagged that the new phraseology is “deepen the reform of the judicial system with comprehensive integrated reforms” (深化司法体制改革综合配套改革) (and there is a significant overlap with some of the issues Judge Jiang mentioned). The language is found deep in Xi Jinping’s 19th Communist Party Congress Report.

The quick (and incomplete) summary below is of some of the court-related issues from the report of Guo’s speech at the conference that He Fan (head of the planning section of the SPC’s judicial reform office) posted on his Wechat public account.  He was one of the many attendees.   None of the analysis below (in italics) should be attributed to him.

It can be expected that the court-related issues will be incorporated into the next judicial reform plan outline. What is on the court-related reform list?  What issues remain unresolved?

  1. Strengthen and optimize Communist Party leadership, Scientifically position the responsibilities and boundaries of the Party Committee, Political and Legal Committee, strengthen functions such as overall coordination, planning and deployment, supervision and implementation.   This of course listed first.What does this mean in practice for judicial system and particularly the operation of the criminal justice system, such as the ongoing campaign against organized crime (see this earlier blogpost)? 
  2.  Clarify the functions of the four-level courts,–improve the SPC circuit courts’ working mechanism; establish the Shanghai Financial Court, steadily expand the Internet Court pilots; explore the deepening of the reform of cross-administrative district courts and procuratorates, and explore the establishment of a national-level intellectual property appeal hearing mechanism.

Developments have occurred on some of these. The Shanghai Circuit Court will start operations soon, with regulations on its jurisdiction just issued and well-regarded judges appointed to senior positions.  The mention of an intellectual property appeals court is significant, as that has been mentioned in earlier government documents and it is on the wish list of the intellectual property law community.  The cross-administrative district courts are mentioned in the previous court reform plan, with some pilot projects. On SPC’s circuit courts are taking on a greater percentage of the SPC’s cases, (as mentioned earlier on this blog) SPC judges work in the circuit courts while their families remain in Beijing, so at some personal cost to judges involved.

3.  Improve institutional management, promote a combination of flat management and professionalization, adhere to the simultaneous transformation of comprehensive and operational entities, and promote the return of judicial personnel to the front line.  As this blog has repeatedly mentioned (and He Xin/Kwai Hang Ng have detailed in their new book, Embedded Courts), Chinese courts (as courts and political/legal institutions) have large “comprehensive offices” (engaging in functions not directly related to judicial work).  A recent study of several courts in Zhejiang province published in an academic journal affiliated with the China Institute of Applied Jurisprudence detailed the percentages. With the reduction in the number of judges and the explosion in the number of cases, there is a great amount of pressure to allocate more judges to the “front line” of handling cases.  Judges with some measure of seniority inevitably have both administrative and judicial responsibilities.

4.  Improve the supervision management mechanism of the president and division chiefs, and standardize the functions of the judicial committee, the committee of court leaders, which has a number of functions, often serving to diffuse responsibility for difficult cases  (Embedded Courts has more insights on this, and this blog has an earlier post on proposed reforms and related problems). Improve the professional judges meeting (mentioned in last year’s SPC regulations, I hope to have something more to say on this in a later blogpost). Improve the disciplinary mechanism of judges. (It would be an improvement to have greater transparency on the results.) Accelerate the construction of an electronic file with the simultaneous generation of the case and the entire process online case handling system.  This has been an ongoing proposal.  Shenzhen is taking the lead with this. Also it would be an improvement to have greater transparency on cases filed.

6. On judicial “standardization” –improve reference to similar cases, case guidelines, the guiding case mechanisms, implement mandatory search system for similar cases and related cases. We will carry out an in-depth national judicial standardization inspections.  This is sending two signals–greater implementation of China’s case law system (as I have written about earlier), and the continued use of government/Party inspection campaigns (reflecting the administrative aspects of the Chinese courts).

7. Improve the  performance appraisal system. Scientifically set the performance appraisal indicator system for handling cases, and guide judicial personnel to handle more cases, handle cases quickly, and handle cases well. Use big data technology to accurately measure the quality of the case and strive for convincing results. The assessment results are used as an important basis for the level of salary, job promotion…This is an important and unresolved issue for the Chinese courts–how to appraise judges.  Outside of China, many scholars have written about this, including Carl Minzner, William Hurst & Jonathan Kinkel. A good deal of research has been done within the Chinese court system concerning this (see this summary of a report published earlier this year by a team of Guangdong Higher People’s Court judges–discussing how the “civil servant/administrative model” predominates and suggesting that China should be looking to other jurisdictions for models, as judicial evaluation is a worldwide issue.  Case closing percentages continues to be very important for Chinese judges.  Is big data technology the answer?  Is this consistent with encouraging judges to write more reasoned decisions?  This appears to signal  a continuation of the judge as factory worker system described in this blogpost

8. In the area of criminal law, and criminal procedure, there are mixed developments.  On the one hand, greater encouragement for using the plea bargaining with Chinese characteristics (please see Jeremy Daum’s deep dive into the pilots). The merging of the arrest and prosecution stages is also mentioned.  Guo also mentioned  measures to enable appointing defense counsel in death penalty cases, having full coverage of defense counsel in criminal cases (Jeremy Daum has comments also on the system of stationing lawyers in detention houses), requiring lawyers to represent petitioners in criminal collateral appeals cases, as well as greater use of live witnesses at trial。  The National Judges College academic journal Journal of Law Application just published an article by a Beijing Higher Court judge, reviewing the duty lawyer scheme, with analogous findings to Jeremy’s.

9.  For those interested in how the supervision commission is/will affect criminal cases, Guo mentions establishing a system for linking the supervision’s investigatory system with the criminal procedure system (said to improve the battle against corruption, the question is the extent to which individual rights are protected).

10.  On foreign related matters, Guo mentions innovating foreign-related work, and improving cooperation on international enforcement and judicial cooperation.  These continue to be difficult issues, with no likely resolution in sight, particularly criminal and also civil.  As I have mentioned before China is participating in the drafting of the Hague Convention on the Recognition and Enforcement of Foreign Judgment, but there are major inconsistencies between the provisions of the draft convention, and the Choice of Court Convention which China signed last September.

Guo highlights improving an initial appointment system for judges and procurators, expanding open recruitment so that talented people will be attracted to becoming and remain judges.  He calls for better coordination between the law schools and professional training, systems for provincial level appointment of judges (and procurators), with better policies on temporary appointment (挂职) (a system used for academics to work in the system for a period of one or two years, and judges/procurators from higher levels to work at the basic level or in a poorer area), exchanges, promotions, and resignation.

In his recommendations, Guo tips his hat to judicial (and procurator) dissatisfaction with status and pay with his statement “uphold resolving a combination of ideological and practical issues, motivate cadres and police to the greatest extent possible.” 坚持解决思想问题和解决实际问题相结合,最大限度调动政法干警积极性”-as this blog has reported, a combination of those issues, excessive work, and significant amounts of time allocated to “studying documents” has led younger experienced judges (and procurators) to decide to resign.

 

 

 

What’s on the Supreme People’s Court’s judicial interpretation agenda (II)?

Screen Shot 2018-07-18 at 8.34.32 AM

SPC General office document issuing the 2018 judicial interpretation plan

The Supreme People’s Court (SPC) has a yearly plan for drafting judicial interpretations, as set out in its 2007 regulations on judicial interpretation work , analogous to the National People’s Congress (NPC) and its legislative plans. Judicial interpretations, for those new to this blog, are binding on the SPC itself and the lower courts, and fill in some of the interstices of Chinese law (further explained here).

On 10 July, the SPC’s General Office issued the document above. It sets out a list of 48 judicial interpretation projects for 2018 (with several for 2019) for which the SPC judicial committee’s had given project initiation/approval (立项) designating one or more SPC divisions/offices with primary drafting responsibility (this process to be detailed in a forthcoming article).  It appears to be the first time this type of document was publicly released (please contact me with corrections).  If so, it is a concrete step in increasing the SPC’s transparency (addressed in part in one of my forthcoming academic articles). The projects, deadlines, and some brief comments (some longer than others) follow below.

(“Project initiation”/”project approval” is a procedure well-known to those of us who have been involved in foreign investment projects in China, where it involves approval from the planning authorities, primarily for infrastructure projects, but is an initial procedure used by regulatory authorities of all types, Party and state. For the SPC, it reflects one of the planned economy aspects of the way it operates.

The document classifies the 48 projects into three categories:

  1. 2018 year-end deadline;
  2. 2019 half-year deadline;
  3. 2019 deadline.

This post will discuss the projects in the second and third categories, the ones with deadlines in 2019.

From these we can see which projects are the highest priority and where the SPC sees gaping regulatory holes need to be filled, reflecting its political-legal priorities. Often specific issues have already been on the agenda of the relevant division of the SPC for some time before they have been officially been approved by the SPC’s judicial committee.

As discussed in my previous blogpost, several of the interpretations listed for 2018 have already been issued. It is unclear which other drafts will be made public for comment, as the 2007 regulations do not require it to do so. Making this list known may put some pressure on the SPC to undertake more public consultation.  Few if any interpretations in the area of criminal or criminal procedure law have been issued for public comment.

First half of 2019 deadline

  1. Standardizing the implementation of the death penalty (规范死刑执行).  Apparently this will focus on more setting out more detailed guidelines concerning how the death penalty is implemented, linked to the Criminal Procedure Law and the SPC’s interpretations of the Criminal Procedure Law.

This article on a legal website sets out the steps in implementation and notes that parading of the persons to be executed is prohibited (although this rule seems to be ignored in too many localities).  A recent scholarly article provides some detail (in Chinese). It is possible that 2008 regulations on suspension of the death penalty will be updated. Responsibility of the #1 Criminal Division.  Given the sensitivity of issues related to the death penalty, it is significant that the SPC leadership decided to make this list public, given that this interpretation is on the list.

2. Judicial interpretation on harboring and assisting a criminal.  These provisions occur in various parts of the Criminal Law and are also mentioned in the organized crime opinion discussed in this earlier blogpost.  Drafting responsibility of the #4 Criminal Division.

3.  Interpretation relating to the protection of heroes and martyrs.  With the incorporation of the protection of heroes and martyrs in the Civil Code and the passage of the Heroes and Martyrs Protection Law earlier this year, drafting of a related judicial interpretation was expected.  Responsibility of the #1 Civil Division.

4.Interpretation on technical investigators in litigation.  Responsibility of the #3 Civil Division) (IP Division).  I look forward to Mark Cohen’s further comments on this.

5. Interpretation on the recognition and enforcement of foreign court judgments.  This blog flagged this development last year.  Judge Shen Hongyu of the # 4 Civil Division, who wrote this article on issues related to the recognition and enforcement of foreign court judgments, is likely involved in the drafting.  Drafting responsibility of the #4 Civil Division.

6. Disputes over forestry rights, apparently an area with many disputes.  The Environmental and Natural Resources Division is responsible for drafting.

7.Regulations on responsible persons of administrative authorities responding to law suits, relating to new requirements in the amended Administrative Litigation Law. and the 2018 judicial interpretation of the Administrative Litigation Law. The Administrative Division is in charge of drafting.

8.Regulations on the consolidated review of normative documents in administrative cases.  The Administrative Division is in charge of drafting this.

9. Regulations on the consolidated hearing of administrative and civil disputes, apparently related to item #22 in the previous blogpost. Responsibility of the Administrative Division.

10.  Application of the criminal law to cases involving the organization of cheating on state examinations (linked to Amendment #9 to the Criminal Law). The Research Office is responsible for drafting.

11. Application of the criminal law to crimes involving network use and aiding persons in such crimes (cyber crimes).  This article discusses some of the issues. The Research Office is responsible for drafting this.

End 2019 deadline

  1. Jointly with the Supreme People’s Procuratorate, Interpretation on Certain Issues Related to the Application of Law in Criminal Cases of Dereliction of Duty (II), likely updating interpretation (I) in light of the anti-corruption campaign and the establishment of the National Supervision Commission.
  2. Interpretation on limiting commutation during the period of the suspension of death sentences.  See related research in English and Chinese. The #5 Criminal Division is responsible for this.
  3. Interpretation on the trial of labor disputes (V), likely dealing with some of the most pressing labor law issues facing the courts that are not covered by the preceding four interpretations or relevant legislation.   The #1 Civil Division is in charge of drafting.
  4. Regulations on maritime labor service contracts, likely connected with China’s accession to the 2006 Maritime Labor Convention and a large number of disputes in the maritime courts involving maritime labor service contracts.  The #4 Civil Division is in charge of drafting.
  5. Regulations on the hearing of administrative cases, likely filling in the procedural gaps in the Administrative Litigation Law and its judicial interpretation.  The Administrative Division is responsible for drafting this.
  6.  Personal information rights disputes judicial interpretation, linked to the Civil Code being drafted.  Implications for individuals and entities, domestic and foreign. Responsibility of the Research Office.
  7.  Amending (i.e. updating) the 2001 Provisions of the Supreme People’s Court on Certain Issues Concerning Application of Urging and Supervision Procedure, relating to the enforcement of payment orders by creditors.  Responsibility of the Research Office.

 

 

 

 

What’s on the Supreme People’s Court’s judicial interpretation agenda (I)?

Screen Shot 2018-07-18 at 8.34.32 AM

SPC General office document issuing the 2018 judicial interpretation plan

The Supreme People’s Court (SPC) has a yearly plan for drafting judicial interpretations, as set out in its 2007 regulations on judicial interpretation work  (I have not been able to locate a free translation, unfortunately), analogous to the National People’s Congress (NPC) and its legislative plans.  Judicial interpretations, for those new to this blog, are binding on the SPC itself and the lower courts, and fill in some of the interstices of Chinese law (further explained here).  On 10 July, the SPC’s General Office issued the document above. It sets out a list of 48 judicial interpretation projects for 2018 (with several for 2019).  The document details the projects for which the SPC judicial committee had given project initiation/approval (立项), designating one or more SPC divisions/offices with primary drafting responsibility (this process to be detailed in a forthcoming article).  It appears to be the first time this type of document was publicly released (please contact me with corrections).  If so, it is a concrete step in increasing the SPC’s transparency (addressed in part in one of my forthcoming academic articles). The projects, deadlines, and some brief comments (some longer than others) follow below.

(“Project initiation”/”project approval” is a procedure well-known to those of us who have been involved in foreign investment projects in China, where it involves approval from the planning authorities, primarily for infrastructure projects, but is an initial procedure used by regulatory authorities of all types, Party and state. For the SPC, it reflects one of the “planned economy” aspects of the way it operates.

The document classifies the 48 projects into three categories:

  1. 2018 year-end deadline;
  2. 2019 half-year deadline;
  3. 2019 deadline.

From these we can see which projects are the highest priority and where the SPC sees gaping regulatory holes that need to be filled, reflecting its political-legal priorities. Often specific issues have already been on the agenda of the relevant division of the SPC for some time before they have been officially been approved by the SPC’s judicial committee.

Several of the listed interpretations have already been issued.  The SPC has solicited public opinion at least one of these draft interpretations, and it is unclear which other drafts will be made public for comment, as the 2007 regulations do not require it to do so. Making this list known may put some pressure on the SPC to undertake more public consultation.

This post will discuss the projects in the first category only, with a follow-up post discussing the projects in the second and third categories.

30 projects with a 2018 year-end deadline

  1. Regulations on the jurisdiction of the Shanghai Financial Court.  The NPC Standing Committee decision required the SPC to do so and included some broad brush principles on the new court’s jurisdiction.  As the SPC has announced that the court will be inaugurated at the end of August,  this is likely to be the highest priority project.  The Case Filing Division is in charge.
  2. Regulations on pre-filing property protection provisional measures (关于办理诉前财产保全案件适用法律若干问题的解释 ), a type of pre-filing injunction.  These regulations are for non-intellectual property (IP) cases, as item 18 below addresses provisional measures in IP cases (in which a great deal of interest exists in the intellectual property rights community, as these order can affect a company’s business). The Case Filing Division is in charge.  These regulations could benefit from some market input.
  3. Interpretation with the Supreme People’s Procuratorate on the Handling of Cases of Corruption and Bribery (II), likely updating the 2016 interpretation to reflect the establishment and operation of the National Supervisory Commission and addressing issues that have arisen in practice.  Issues to be covered likely include ones discussed in issued #106 of Reference to Criminal Trial (the journal of the SPC’s five criminal divisions, mentioned here) .  The #3 Criminal Division is in charge of drafting, but it is likely that the supervision commission will be/is one of the institutions providing input.  As I have mentioned earlier, the SPC generally does not solicit public opinion when drafting criminal law judicial interpretations.
  4. Judicial interpretation on the handling of criminal cases of securities and futures market manipulation.  This is linked to the government’s crackdown on abuses in the financial sector (see this report on the increase in regulatory actions) and is linked to last summer’s Financial Work Conference. The #3 Criminal Division is responsible.  It is likely the China Securities Regulatory Commission will provide input during the drafting process.
  5. Judicial interpretation on the handling of cases involving the use of non-public information for trading (Article 180 of the Criminal Law). Guiding case #61 involved  this crime.  It is likely that the principle from the guiding case will be incorporated into this judicial interpretation, as frequently occurs.  Again linked to the crackdown on the financial sector and again, it is a task for the #3 Criminal Division.
  6. Judicial interpretation on the handling of underground banking (地下钱庄) cases.  Large amounts of money are being whisked out of China unofficially.  Linked again to the crackdown on the financial sector as well efforts to slow the outflow of funds from China, and likely the People’s Bank of Chin.  Again, a task for the #3 Criminal Division.
  7. Interpretation on challenges to enforcement procedures in civil cases, related to the campaign to basically resolve enforcement difficulties within two to three years.  Drafting this is a task for the #1 Civil Division.
  8. Interpretation on evidence in civil procedure.  Important for lawyers and litigants, domestic and foreign.  Drafting this is a task for the #1 Civil Division.
  9. Interpretation on civil cases involving food safety. Food safety is an area in which public interest cases are contemplated.  These cases have been politically sensitive.  Drafting this is a task for the #1 Civil Division.
  10. Interpretation on construction contracts (II). The initial interpretation dates back to 2004. These type of disputes generally involve a chain of interlocking contracts and often regulatory and labor issues. Some of the larger cases have been heard by the SPC. Drafting this is a task for the #1 Civil Division.
  11. Interpretation on the designation of bankruptcy administrators.  Issues surrounding bankruptcy administrators have been ongoing in the bankruptcy courts, as has been discussed in earlier blogposts. Drafting this is a task for the #2 Civil Division.
  12. Regulations on the consolidating the bankruptcy of company affiliates, again an area where regulation is insufficient, posing issues for bankruptcy judges (as has been discussed in earlier blogposts). Drafting this is a task for the #2 Civil Division.
  13. Regulations on the civil and commercial cases relating to bank cards.  The drafting of this interpretation has been underway for several years, with a draft issued for public comment in June.  There have been a large number of disputes in the courts involving bank cards.  Drafting this is a task for the #2 Civil Division.
  14. Interpretation on legal provisions relating to financial asset management companies acquiring, managing, and disposing of non-performing assets.  The legal infrastructure related to non-performing assets is inadequate, as has been pointed out by all participants, including judges. The Shenzhen Intermediate Court has run several symposia bringing together leading experts from the market.  Drafting this is a task for the #2 Civil Division.
  15. Interpretation on the trial of internet finance cases (civil aspects), as existing judicial interpretations inadequately address the issues facing the lower courts. Drafting this is a task for the #2 Civil Division.
  16. Judicial interpretation on the statute of limitations in the General Provisions of the Civil Code (just issued), which was the responsibility of the #1 and #2 Civil Divisions as well as the Research Office. The General Provisions changed the length of the statute of limitations.
  17. Judicial interpretation on administrative cases involving patent authorization and confirmation. It appears to be the counterpart in the patent area of a 2017 judicial interpretation relating to trademarks.  I look forward to “brother blogger” Mark Cohen’s further comments on this. Drafting this is a task for the #3 Civil Division.
  18. As mentioned above, pre-filing injunctions in intellectual property cases (知识产权纠纷诉前行为保全案件适用法律若干问题的解释 ), a type of pre-filing injunction.  There is great deal of interest in the intellectual property rights community concerning these injunctions, as these orders can affect a company’s business. I look forward to Mark Cohen’s further comments on this. Drafting this is a task for the #3 Civil Division.
  19. Regulations on issues relating to the International Commercial Court.  Those were the responsibility of the #4 Civil Division and the interpretation was issued at the end of June.  See the previous blogpost for further comments.
  20.  Regulations on the scope of environmental and natural resources cases, with drafting responsibility placed on the Environmental and Natural Resources Division. These relate to current government efforts to improve the environment.  I would anticipate that these would include provisions on cross-regional centralized jurisdiction, so that pressure from local government will be reduced. Several provinces have already introduced such guidelines.
  21. Interpretation on compensation for harm to the environment, also with drafting responsibility placed on the Environmental and Natural Resources Division.  This is related to an end 2017 Central Committee/State Council General Office document on reforming compensation for harm to the environment. Again, Drafting responsibility with the Environmental and Natural Resources Division.
  22. Regulations on the trial of administrative agreements.  There is a tension between the administrative and civil/commercial specialists, as reflected in the area of Public Private Partnerships  (PPPs)(see this earlier blogpost).  This has practical implications for both the domestic and foreign business community, as the government is seeking to expand the use of PPPs and avoid local government abuse of them.  Drafting responsibility with the Administrative Division and the Ministry of Finance is likely to be providing input.
  23. Regulations on administrative compensation cases, drafting responsibility with the Administrative Division.
  24. Interpretation related to agency issues in retrial (再审) cases.  With the many governance problems of Chinese companies, these issues frequently arise.  Drafting responsibility with the Judicial Supervision Division.
  25. Interpretation on the enforcement of notarized debt instruments.  Lenders often use this provision to seek more efficient enforcement.  This is related to the campaign to improve enforcement as well as government policy relating to the financial sector.  This research report by one of Beijing’s intermediate court shows that asset management companies are often the creditors and the large amounts of money are involved. Drafting responsibility with the Enforcement Bureau.
  26. Interpretation relating to the enforcement of cases involving company shareholding.  Given the complexities of shareholding in China, including the frequent use of nominee arrangements, these are difficult issues for judges to deal with.  See a recent presentation by one of the circuit court judges on this issue.  Drafting responsibility with the Enforcement Bureau.
  27.  Regulations on reference pricing when disposing of property.  This too is related to the enforcement campaign as well as efforts to clean up the enforcement divisions of the local courts by requiring more transparent procedures.
  28. Interpretation on the Handling of Cases of Crimes Disturbing the Administration of Credit Cards (II), updating the SPC’s 2009 interpretation, found here. Responsibility of the Research Office, which can coordinate with criminal divisions involved as well as interested authorities such as the China Banking Regulatory Commission.
  29. Interpretation on cases involving both civil and criminal issues.  This is a longstanding issue, and with the crackdown on the private lending sector, this has come to the fore.  Among the many issues include: if the defendant is criminally prosecuted first and assets are confiscated, how can affected borrowers or other parties  be compensated.  Drafting responsibility with the research office, likely involving several civil and criminal divisions.
  30. Regulations on the implementation of the People’s Assessors Law. As the law and the follow up SPC notice are too general for courts to implement, more detailed rules are needed.  The Political Department (it handles personnel related issues) and Research Office are involved in drafting.

See the next blogpost for a discussion of interpretation in the second and third categories.