Susan Finder has been observing the PRC Supreme People's Court for over 20 years, and was the first person to engage in a close analysis of its operations. She taught Chinese law and other subjects in the Law Department of the City University of Hong Kong, before putting her knowledge to work in the China practice group of Freshfields Bruckhaus Deringer, one of the first international law firms to recognize the importance of the China market.
She had the good fortune to study with three of the early pioneers of Chinese legal studies: Jerome Cohen, R. Randle Edwards, and Stanley Lubman and to have many leading practitioners and legal academics among her classmates at Harvard Law School (J.D.) and Columbia Law School (LL.M).
Susan Finder speaks and reads (Mandarin) Chinese and Russian and some German.
In a press conference on 30 April, the Supreme People’s Court (the Court) announced that it will more systematically use model (typical) cases (典型案例) to guide the lower courts. The Court is increasingly using model/typical cases. My recent blogpost explains what model cases are, which courts issue them and the authority of model cases.
One of the initiatives the Court highlighted in its October 2013 judicial reform plan is “expanding fully the important role of leading cases and cases for reference.” because its leadership considers model cases an important supplement to legislation, judicial interpretations, and “guiding cases” (a special category of cases so designated by the Court). Mark Cohen, of chinaipr.com, has blogged on the Court’s use of model cases in the area of intellectual property law.
The Court will issue at least five model/typical cases on a monthly basis, selected from cases submitted by the lower courts. The cases can be accessed through the Court’s Cases in Chinese Courts portal. The ones on the website are currently limited to those issued in 2013 and 2014. Unfortunately, a search functions appears lacking. Despite the limitations, it is a further development in the use of case law “with Chinese characteristics.”
The Supreme People’s Court Observer contributed a post to the Global Military Justice Reform blog (a fascinating new blog that highlights military justice issues worldwide). The post highlights reasons given by Chinese military law experts for having General Gu’s trial closed to the public and possible reasons that Chinese military courts have a stealth presence on the internet (although more transparent than 20 years ago).
The Supreme People’s Court Observer contributed a post to the Global Military Justice Reform blog (a fascinating new blog that highlights military justice issues worldwide). The post highlights reasons given by Chinese military law experts for having General Gu’s trial closed to the public and possible reasons that Chinese military courts have a stealth presence on the internet (although more transparent than 20 years ago).
SPC Releases 7 Typical Cases of Judicial Misbehavior
On 15 April, the Supreme People’s Court (Court) issued its latest model (or in this case, (all too typical cases): 7 typical cases of judicial misbehavior.
It is part of the name and shame campaign of the Communist Party’s Central Disciplinary Inspection Commission (CDIC), that appears to have started in September of last year, in which the CDIC releases typical cases of official corruption or other abuses, in violation of the Communist Party’s Eight Point Regulations (aimed at curbing official abuses). As reported in a recent Wall Street Journal article, the CDIC has accelerated the release of cases on its website from weekly to monthly.
Although cases previously released on the CDIC website have included some cases from the judiciary, this is the first time that the Court has released such cases.
The Court issued a document summarizing the cases to the lower courts and to the CDIC (which often takes the lead in investigating judicial misbehavior, because most judicial officials are Communist Party members).
The Seven Cases
Touring at public expense
Touring at public expense (a group from Kunming (Yunnan Province)’s Panlong District Court used RMB 88,000 in public funds to visit the beach resort of Sanya after participating in a training course in Haikou);
Using public funds for gifts (a Shandong district court court president arranged for the purchase of RMB 23,000 in gift cards at a local supermarket and obtained reimbursement as “offiice supplies.”)
Obtaining reimbursement for foot massages (two Hubei Province Intermediate Court Division heads submitted RMB 2500 in foot massage receipts; they and the Deputy Court President who approved the reimbursement were punished).
Wasteful procurement of office equipment (a Shanxi District Court spent over RMB 200,000 on office equipment ).
Using government vehicles for private use (a Shaanxi Province local Deputy Court President and two judicial policemen toured a scenic spot on the way back from an enforcement action);
Large scale wedding banquets (a Heilongjiang county judge held large wedding banquets for his daughter and accepted RMB 27500 in monetary gifts);
Office misbehavior (a Zhanjiang (Guangdong Province) )District Court division head held a meeting with a litigant wearing slippers and was found to be playing a game on his office computer).
using government vehicles for private purposes
These cases are typical
According to an analysis done by the People’s Daily Overseas Edition, these cases are typical of the cases released by the CDIC. Some of the highlights:
Almost 40% of the CDIC cases released involved improper use of public funds or government vehicles;
Of those, almost 25% involved touring at public expense;
A significant number involved improper reimbursement;
Some other “typical cases” involved officials playing computer games in the office (although there were local variations in this category);
About 12% involved “over-the-top” purchases of office equipment or building construction;
the infractions were relatively minor; and
The cases involved local court judges rather than those in provincial level higher people’s courts or the Court itself.
Why were these cases released?
It appears likely that the Court released these cases because the CDIC issued a document requiring all government departments and SOEs to provide typical cases (although the document does not appear to have been released publicly) and the Court need to show that it was complying with this document.
Other likely reasons would be similar to those for other government officials: scare judicial personnel, especially those in leadership positions, into complying with Party restrictions. As the above graphic shows, it is meant as a bullhorn to those in leadership position in lower courts. The Court leadership realizes that the widespread public impression that judicial officials fiddle the system and do not take their work seriously is a threat to the court system. The typical cases are intended to provide evidence to ordinary people that the government is serious about corruption in the judiciary, and also to encourage people to report abuses. Why these particular seven cases were selected for release is not known.
The cases were released for the political reasons, not the substantive reasons discussed in my recent blogpost.
On 8 April 2014, the Communist Party’s Central Political Legal Committee and the General Political Department of the People’s Liberation Army (PLA) (the PLA’s highest Communist Party organization) jointly issued a document on improving the protection of the rights of the military, military personnel, and military dependents (关于加强维护国防利益和军人军属合法权益工作的意见) (PLA Legal Protection Opinion). The document itself has not been made public, but a summary has been widely distributed the press (including the People’s Court Daily website). The PLA Legal Protection Opinion has drawn caustic comments from some in the Chinese blogosphere for its request that the political legal authorities (the courts, procuratorate etc.) create a “green channel” to resolve military related disputes, by giving those disputes priority at all stages of criminal and civil procedure (from docketing cases to enforcement), and call for “special matters to be handled specially” (特事特办). .
The PLA Protection Opinion provides another glimpse into the interactions of the Communist Party bureaucracy, Chinese military and civilian legal systems, and the social and economic changes in China affecting the PLA. This blogpost describes:
what the distribution list was;
what the problems are;
what the super committees are;
the drafting process; and
why the document was issued.
The Distribution List for the PLA Protection Opinion
The distribution list for the PLA Protection Opinion was not been made public. As a jointly issued document, it presumably was issued to the relevant Communist Party organizations in both the civilian and military bureaucracies. On the civilian side, it included the:
Supreme People’s Court;
Supreme People’s Procuratorate;
Ministry of Public Security;
Ministry of Civil Affairs;
Ministry of Justice;
Ministry of Finance;
Ministry of Human Resources and Social Security;
Ministry of Land and Natural Resources;
National Civil Air Defense Office;
National Leading Group on Double Support (see the following report, on the provincial level).
On the military side, presumably the General Political Department issued it to the military counterparts of many of the above authorities, including the PLA Military Court and PLA Military Procuratorate.
What are the Long Standing Legal Issues?
The long-standing legal issues are those involving both the civilian and military authorities, and include many of the unresolved ones listed in my previous blogpost. They include:
theft and sale of military secrets;
destruction of military facilities;
mass incidents involving military interests;
disputes over military technology;
disputes over military land;
thefts of military supplies;
cases of persons passing themselves off as military personnel to engage in fraud and other criminal activity;
Disputes affecting military personnel, including:
1. divorces and other family disputes;
2. personal injury disputes;
3. land condemnation;
4. disputes over compensation for compulsory land confiscation.
The Supercommittees and a glimpse into the document drafting process
The PLA Legal Protection Opinion calls for the establishment of a national coordination mechanism to support and protect military rights (全国涉军维权协调机制), (Supercommittees) replacing “the leading small groups on supporting and protecting military rights” established nationwide from 2007.
The Supercommittees are led by the Central Political Legal Committee and General Political Department (the top Party committees relating to the civilian and military legal systems), and require the government authorities to whom the document was issued (and their local counterparts at each level) to send liaison personnel. The Supercommittees are to establish counterparts at the provincial, municipal, and county level.
In an article published in the People’s Court and PLA Daily, a “responsible person” of the PLA Military Court described the drafting process, which mirrors the drafting process for Chinese legislation generally.
Staff from the Central Political Legal Committee and the PLA Military Court formed a drafting group and went to Zhejiang, Fujian, Guangdong, and Shaanxi for field research, soliciting the views of local Party Secretaries, local courts, and military district officials, PLA officers and soldiers, including areas where local policies had been drafted to deal with military/civilian issues. A consultation draft was prepared and approved by the leadership of the Central Military Commission, General Political Department, and Central Political Legal Committee for distribution for comment to the relevant central government departments (including the Supreme People’s Court), leaders of major military institutions, and some local level military officials before being finalized.
Enforcing the PLA Legal Protection Opinion
The document seeks to ensure that it is taken seriously by calling for the following enforcement measures:
PLA legal protection matters should be incorporated into local development plans; and
they should be incorporated into performance evaluation for “comprehensive social management work” (performance in controlling social unrest).
Why was the document issued?
The document must have been issued because the previous leading small groups were not effective, and the result has been an increase in civil unrest involving civilians and military, unresolved civil disputes involving the military and its personnel as well as criminal cases involving civilians and military that have not been prosecuted.
The principal reason for these unresolved issues (in my view), is due to the separate operations of the military and civilian systems and the difficulty of coordinating across bureaucratic systems. Moreover, a substantial number of the unresolved cases are likely tied to the performance indicators for officials within the (civilian) legal system. Performance indicators for court and other officials within the legal system are generally tied to their percentage of closed cases or other success rates. For example, a civilian court will be reluctant to accept divorce cases involving a military spouse if orders to transfer property, registered within the military system, will not be enforced and the cases cannot be closed. Civilian public security officials, similarly, will be reluctant to take a case if some of the criminal activity has taken place on military premises, because investigating the crime and collecting evidence will be extremely difficult. The document reveals social and economic changes affecting the military (such as a higher rate of divorce and other family disputes), disputes over land condemnation affecting military personnel, as well as increased social unrest involving the PLA (that seems to be kept out of the press). Finally, it reveals the complex interrelationship between the military and civilian legal and administrative systems, and the use of law (or at least legal policy) in making it operate more smoothly.
The Supreme People’s Court Observer published (by invitation) Using Model Cases to Guide the Chinese Courts on the blog of the China Policy Institute of the University of Nottingham. The post discusses:
what model cases are;
which courts issue them;
the authority of model cases;
recent model cases the Court;
why the Court (and the lower courts) are using them; and
Protect yourself from domestic violence with a civil protection order
Luohu District Court
The Luohu District Court (the Luohu court), which hears cases arising from the primarily urban Luohu administrative district in Shenzhen, in late March posted on its website (and Wechat account) an overview of the 24 domestic violence cases that it has heard in the last 3 years. The court identified four trends and “take-aways”:
there has been a trend towards an increase in the average age of abusers, from 31-45, to over 60;
the educational level and professional background of abusers has shifted to university educated, working in government agencies or foreign invested enterprises;
the type of domestic violence has shifted from simple physical violence to emotional and economic abuse, creating more evidentiary difficulties and analytical issues for the courts; and
the victims have become more aware of their legal rights. Victims are moving away from traditional attitudes of accepting domestic violence as part of family life to using the law to protect themselves, and are calling the police when domestic violence occurs and applying for civil protection orders.
The Luohu court saw the following take-aways:
more psychological support should be provided locally, in residential areas, to prevent domestic violence from occurring;
local institutions for resolving domestic disputes should be strengthened; and
more should be done to make the public aware of domestic violence legislation.
This report from one district court reflects many of the messages about domestic violence being conveyed by the Supreme People’s Court. Further reports on the drafting of the domestic violence interpretation are awaited, to see whether it will involve the procuratorate, public security, and other authorities.
The Supreme People’s Court (the Court) devoted its 27 February 2014 press conference to domestic violence, highlighting:
the seriousness of the problem;
10 model cases;
a forthcoming judicial interpretation on domestic violence.
Judge Xue Shulan, Deputy Head of the #1 Criminal Division, appeared at the press conference. The Court websites have published a number of domestic violence related articles in the past 3 weeks. Some of these articles have been reprinted on the website of the Central Communist Party Political Legal Committee, indicating that the Court initiative has political backing.
This blogpost will briefly explain:
the significance of the 10 model cases
some issues that should be incorporated into the judicial interpretation;
Some statistics about domestic violence in China
At the press conference, Sun Jungong, spokesman for the Supreme People’s Court, released some statistics about domestic violence. He said that domestic violence occurs in approximately 24.7 percent of Chinese families, and almost 10 percent of intentional homicide cases are connected with domestic violence.
The significance of the 10 model cases
Domestic violence graphic from SPC website
These model cases are intended to convey lessons to the lower courts, lawyers, and the general public on how to consider cases involving domestic violence.
Civil protection orders
China has adopted the concept of a civil protection order (commonly used in other jurisdictions) into its legal system (see an academic study on the issue). The amended Civil Procedure Law provides a legal basis for the issuance of these orders (see a summary in the linked article). The Court revealed at the February news conference that over 500 civil protection orders have been issued since 2008.
One model case involved a civil protection ordered issued to protect an elderly man against his abusive child while another case involved a civil protection ordered against the uncle of the minor.
The cases convey the message that the scope of persons to be protected under domestic violence civil protection orders should be expanded to include:
the elderly; and
minors.
These cases signal an expansion of the categories of individuals for whom orders may be issued and an expansion of the definition of relationship between victim and perpetrator. Academic studies suggest a prevalence of domestic violence against the elderly and minors in China. Academic studies have found elder abuse occurring in approximately 35% of the populations surveyed and significant prevalence of child abuse.
Previously, the sole guidance from the Court regarding the issuance of civil protection orders had been limited to issuing them on behalf of one spouse against the other while still married or in the process of seeking a divorce.
Evidence
The Court is providing guidance for judges about what can be considered evidence of domestic violence. Examples of evidence of domestic violence in these cases include the statement of the victim, in writing, medical records, and the diary of a child and/or victim.In the past judges often did not consider the statement of the victim as evidence. Reaffirming the evidentiary value of medical records and contemporaneous notes is also important.
Types of domestic violence
In one case, the description of domestic violence was described as excessive use of house rules. In another example, emotional harm was specifically cited as an injury caused by the violence and a fine was issued. In another case, use of threats to control the other party was cited.
By selecting these cases, the Court is also conveying a message about the types of behavior that can be considered to be domestic violence. The Court is stressing that domestic violence is not just physical, and that it is a specific dynamic where one individual exercises power and control over the other, including using threats of violence even when there is no physical violence and considerable rule making and other methods to intimidate and emotionally and mentally harm the victim.
Consequences of domestic violence
In one case the daughter was injured when she tried to protect the mother against her abusive father so the divorce was granted and the mother given custody. This case conveys the message that a parent who is found to have committed domestic violence against the other parent should not have custody of the child or children who were in that household when the abuse occurred, even if the child was not directly physically targeted or harmed. This represents a sophisticated understanding of the impact of domestic violence on children and the danger of an abusive parent.
Issues for the judicial interpretation
Judge Xue mentioned at the press conference that a draft interpretation had already been prepared, but was subject to further studies and discussions and it was hoped it would be issued in the second half of 2014. Issues to be covered by the interpretation include:
classification of different types of domestic violence;
more specific guidelines on criminal punishment for domestic violence;
evidence in domestic violence cases;
guidelines for imposing punishment on victims of domestic violence who commit crimes against their abusers.
The drafting of the interpretation was preceded by several years of field studies in 73 basic level courts. At the press conference, the head of the Court’s Institute for Applied Jurisprudence stated that the definition of domestic violence will incorporate international practice and that the courts will work with other institutions to promote a unified approach to domestic violence.
Judicial training
After the domestic violence judicial interpretation is issued, widespread judicial training will be needed to ensure that judges can recognize domestic violence and issue civil protection orders to protect women, children, and the elderly. Many press reports (as well as studies by the Institute of Applied Jurisprudence) indicate that part of the problem can be traced to local courts, police and other authorities, who do not take domestic violence seriously.
This training is especially needed in rural courts, where many abuse cases occur, but also in the military courts. Article 33 of the Marriage Law provides that the spouse of a soldier in active service who wants a divorce needs to obtain the soldier’s consent, unless the soldier has made “grave errors” （重大过错, which according to a 2001 interpretation of the Marriage Law, includes domestic violence. This article by a judge from a court outside of Kunming describes some of the issues.
At the latest NPC session, delegates again brought up the delay in progress on domestic violence legislation (described here). Domestic violence is an area that the scholars, NGOs, and the domestic (and international) public has been putting pressure on the courts to address for some years, and it will be significant progress if the domestic violence interpretation is issued this year.
(The case analysis was provided by a contributor who wishes to remain anonymous)
The Supreme People’s Court (the Court) devoted its 27 February 2014 press conference to domestic violence, highlighting:
the seriousness of the problem;
10 model cases;
a forthcoming judicial interpretation on domestic violence.
Judge Xue Shulan, Deputy Head of the #1 Criminal Division, appeared at the press conference. The Court websites have published a number of domestic violence related articles in the past 3 weeks. Some of these articles have been reprinted on the website of the Central Communist Party Political Legal Committee, indicating that the Court initiative has political backing.
This blogpost will briefly explain:
the significance of the 10 model cases
some issues that should be incorporated into the judicial interpretation;
Some statistics about domestic violence in China
At the press conference, Sun Jungong, spokesman for the Supreme People’s Court, released some statistics about domestic violence. He said that domestic violence occurs in approximately 24.7 percent of Chinese families, and almost 10 percent of intentional homicide cases are connected with domestic violence.
The significance of the 10 model cases
Domestic violence graphic from SPC website
These model cases are intended to convey lessons to the lower courts, lawyers, and the general public on how to consider cases involving domestic violence.
Civil protection orders
China has adopted the concept of a civil protection order (commonly used in other jurisdictions) into its legal system (see an academic study on the issue). The amended Civil Procedure Law provides a legal basis for the issuance of these orders (see a summary in the linked article). The Court revealed at the February news conference that over 500 civil protection orders have been issued since 2008.
One model case involved a civil protection ordered issued to protect an elderly man against his abusive child while another case involved a civil protection ordered against the uncle of the minor.
The cases convey the message that the scope of persons to be protected under domestic violence civil protection orders should be expanded to include:
the elderly; and
minors.
These cases signal an expansion of the categories of individuals for whom orders may be issued and an expansion of the definition of relationship between victim and perpetrator. Academic studies suggest a prevalence of domestic violence against the elderly and minors in China. Academic studies have found elder abuse occurring in approximately 35% of the populations surveyed and significant prevalence of child abuse.
Previously, the sole guidance from the Court regarding the issuance of civil protection orders had been limited to issuing them on behalf of one spouse against the other while still married or in the process of seeking a divorce.
Evidence
The Court is providing guidance for judges about what can be considered evidence of domestic violence. Examples of evidence of domestic violence in these cases include the statement of the victim, in writing, medical records, and the diary of a child and/or victim.In the past judges often did not consider the statement of the victim as evidence. Reaffirming the evidentiary value of medical records and contemporaneous notes is also important.
Types of domestic violence
In one case, the description of domestic violence was described as excessive use of house rules. In another example, emotional harm was specifically cited as an injury caused by the violence and a fine was issued. In another case, use of threats to control the other party was cited.
By selecting these cases, the Court is also conveying a message about the types of behavior that can be considered to be domestic violence. The Court is stressing that domestic violence is not just physical, and that it is a specific dynamic where one individual exercises power and control over the other, including using threats of violence even when there is no physical violence and considerable rule making and other methods to intimidate and emotionally and mentally harm the victim.
Consequences of domestic violence
In one case the daughter was injured when she tried to protect the mother against her abusive father so the divorce was granted and the mother given custody. This case conveys the message that a parent who is found to have committed domestic violence against the other parent should not have custody of the child or children who were in that household when the abuse occurred, even if the child was not directly physically targeted or harmed. This represents a sophisticated understanding of the impact of domestic violence on children and the danger of an abusive parent.
Issues for the judicial interpretation
Judge Xue mentioned at the press conference that a draft interpretation had already been prepared, but was subject to further studies and discussions and it was hoped it would be issued in the second half of 2014. Issues to be covered by the interpretation include:
classification of different types of domestic violence;
more specific guidelines on criminal punishment for domestic violence;
evidence in domestic violence cases;
guidelines for imposing punishment on victims of domestic violence who commit crimes against their abusers.
The drafting of the interpretation was preceded by several years of field studies in 73 basic level courts. At the press conference, the head of the Court’s Institute for Applied Jurisprudence stated that the definition of domestic violence will incorporate international practice and that the courts will work with other institutions to promote a unified approach to domestic violence.
Judicial training
After the domestic violence judicial interpretation is issued, widespread judicial training will be needed to ensure that judges can recognize domestic violence and issue civil protection orders to protect women, children, and the elderly. Many press reports (as well as studies by the Institute of Applied Jurisprudence) indicate that part of the problem can be traced to local courts, police and other authorities, who do not take domestic violence seriously.
This training is especially needed in rural courts, where many abuse cases occur, but also in the military courts. Article 33 of the Marriage Law provides that the spouse of a soldier in active service who wants a divorce needs to obtain the soldier’s consent, unless the soldier has made “grave errors” （重大过错, which according to a 2001 interpretation of the Marriage Law, includes domestic violence. This article by a judge from a court outside of Kunming describes some of the issues.
At the latest NPC session, delegates again brought up the delay in progress on domestic violence legislation (described here). Domestic violence is an area that the scholars, NGOs, and the domestic (and international) public has been putting pressure on the courts to address for some years, and it will be significant progress if the domestic violence interpretation is issued this year.
(The case analysis was provided by a contributor who wishes to remain anonymous)
A short notice on the Supreme People’s Court’s websites and Wechat on 2 March (linked here) announced the launch of an 8 month campaign in the military courts to clear out a backlog of major civil disputes. The announcement (and related information) gives the outside world a peek behind the curtain of the almost 100 military courts. Any lawyer involved in due diligence projects in China in the last 15 or more years will have encountered issues related to Chinese military law, particularly land issues, but the issues targeted in the campaign are much broader.
This blogpost will look at:
the military court system;
transparency of the military courts;
judicial reforms in the military courts;
civil jurisdiction of the military courts; and
the clearup campaign.
Military Court System
The Chinese military court system, a system to itself within the Chinese court system, apparently has attracted little attention outside of China (or at least in open sources). The military court system is headed by the PLA Military Court, which is under the Political Department of the Central Military Commission, and under the Supreme People’s Court. Below the PLA Military Court there are courts in the military regions as well as the military services–Navy, Air Force, Armed Police and below those courts, basic level courts within each of these regions, military services, and other units (see this description.
Transparency
Although several articles in the Chinese press suggest that the military courts are more transparent than before, national security concerns apparently mean that the transparency measures being pushed by the Court leadership have not yet extended to the military courts. For example, the judgment debtor database established in the fall of 2013 includes all the courts but the military ones (although some military-linked companies can be found in the database). The Court’s websites link to websites of the provincial-level local courts, but not that of the military courts. However, internet searches (as well as searches of legal databases) will turn up many reports of cases involving both the civilian and military court systems.
Judicial reforms in the military courts
The Third Plenum Decision called for improvement in military legislation, and it is understood to include judicial reforms in the military courts. The head of the PLA Military Court stated that judicial reforms included improving the quality of military justice, including the quality of cases handled. What that involves has not been revealed in the open press, although presumably these are issues for the leadership of the PLA military court. It is likely that increased training of military judicial personnel will be part of the solution,both within the military system and outside it.
Civil jurisdiction of the military courts
Civil, rather than criminal cases, are the focus of the clear up campaign. The military courts have heard over 2500 civil cases, most of which have been settled. The Chinese military courts have civil jurisdiction, most recently under a judicial interpretation in the form of regulations issued by the Supreme People’s Court in 2012, “Provisions on Several Issues Concerning the Jurisdiction of Military Courts in Civil Cases” （Civil Cases Jurisdiction Provisions, linked here) and a previous 2010 notice. The rationale for giving military courts civil jurisdiction is to enable certain types of civil disputes to be resolved more effective, because the local court have encountered difficulties in dealing with them. Difficulties cited range from serving military personnel or military entities, freezing military assets, obtaining evidence held by military entities, having military personnel attend hearings in the civilian courts, and enforcing judgments against military entities.
The Civil Cases Jurisdiction Provisions deserve more discussion than this quick blogpost can provide, and stipulate:
certain civil cases must be exclusively heard in the military courts (including cases in which both parties are military personnel or military entities):
parties have the choice whether or not to file a civil suit in the military courts under certain circumstances:
tort cases in which military personnel or entities are tortfeasors;
family disputes in which one party is in the military;
tort cases that occurred within a military facility; or
military real property disputes with a military individual or entity as party.
civil cases can be transferred to and from the military and local courts, respectively.
Head of Lanzhou Military District Court visiting local intermediate court
The PLA Military Court has issued regulations further specifying the jurisdiction of various levels of military courts, that have been summarized in the press but not made public.
The clear up campaign
The campaign, undertaken with the concurrence of the Political Department of the Central Military Commission, focuses on the following types of cases:
construction of military installations;
ownership of military land;
defense technology (and presumably other intellectual property-related cases);
family law cases involving military personnel;
torts;
condemnation of property; and
labor.
Although reports have not given further details on specific cases, the following is generally known or presumed:
In many cities, PLA entities hold real estate in prime areas and the ownership disputes may involve significant sums of money;
it is likely that military families have not escaped greater social trends of increased rates of divorce, particularly in the major cities, and some of those divorces are likely to involve disputes over valuable real property;
there are likely are disputes over the intellectual property rights held by military personnel and military entities (one reported case involved infringement of copyright (by civilian publishers) of writings by military personnel);
military entities have contract disputes involving construction of military installation as well as military goods and services procured.
Greater engagement with the outside world?
It is unclear whether military exchanges with foreign armed forces have included the military courts, or whether the PLA Military Court (or the Central Military Commission) would welcome further engagement with the outside world. Presumably efforts aimed at increasing the role of law within the military and strengthening the military courts would benefit all.
Beijing petitioners at SPC (used with permission of Natalie Behring)
In the past two weeks, the Supreme People’s Court (the Court) has taken new measures to resolve the problem of petitioning (ordinary people petitioning higher authorities concerning their grievances). Court petitioners generally have grievances related to judgments (or the enforcement of judgments) in the lower courts. Petitioning affects the Court itself. The current measures are tied with the document released on 27 February 2014 by the General Offices of the Communist Party Central Committee and the State Council on petitioning reform (the Petitioning Reform Document, linked here) and briefly reported here. More measures from the Court are anticipated this year.
Approximately 60,000-70,000 petitioners approach the Court each year, many repeat petitioners. In the Court Reform Decision of November, 2013 and other statements in 2013, Court leadership identified resolving the issues underlying petitioning as a target for action (see previous blogposts in January, 2014, October, 2013, and September, 2013). It is likely that its current and future initiatives related to petitioning will be mentioned in the Court’s Work Report to the National People’s Congress.
Link to the Petitioning Reform Document
The Petitioning Reform Document is intended for distribution to the court system, as a Party document distributed to “all departments.” It pinpoints measures for the court system to take, some highlighted below.
Several points of the Petitioning Reform Document relate to the new measures taken by the Court. Point 5 of the document relates calls for pathways for petitioning issues to be heard, including on-line petitioning platforms. Point 9 of the document calls for greater legalization of petitioning, such as:
separating litigation from petitioning;
taking petitioning into the courtoom;
improving various types of appeal procedures (litigation/arbitration/administrative reconsideration)
improving systems within the courts/procuracy/public security/judicial administration to deal with the underlying issues causing petitioning.
The last sentence in Point 9 calls on the strengthening of the capacity of the judicial system, to satisfy the ever increasing demands on the judicial system of the masses (ordinary people), and to make the masses feel that they have received fair justice.
Phrases in the last sentences are frequently used by the Court leadership. The latter phrase is part of a statement made by Xi Jinping in early 2013 is often used by the Supreme People’s Court leadership (discussed here).
Internet petitioning platform
To implement the Petitioning Reform Document, on 28 February, the Court established an electronic platform for petitioners, linked here. The internet platform can be accessed from the Court’s official website:
网上办事
The platform includes a short video explaining how to use the on-line system, as well as its benefits, linked here. It is likely intended as a model for the lower courts.
Time will tell how the Court (and the lower courts) will promote the electronic system and resolve the underlying issues. A related issue is whether the Party anticipates a greater scope for NGOs in dealing with court-related issues.
For example, will a team of Court staff be dispatched to the street with tablet computers to register petitioners’ cases? Will this mean that NGO representatives will assist petitioners to register their issues with the courts（although this report from Guangzhou anticipates official channels only)? Most importantly, what will the Court do to resolve the underlying issues? Will this initiative be successful and result in few petitioner visits to the Court and the lower courts?
7 Model Cases
On 17 February 2014, the Supreme Court (Court) issued 7 model cases (典型案例) on protecting the livelihood of ordinary people. “Protecting the livelihood of ordinary people” is a political rather than legal term, and is described in court press releases as cases affecting the lives and livelihood of ordinary people (for more details, see here).
These model cases (linked here) and explained below, are not precedents but intended to be instructional. The legal reasoning in the cases is not important. The release of these cases sends several messages.
It shows the political leadership that the Court has taken the initiative to deal with petitioning related cases.
The Court is showing ordinary people that it is implementing Party policy by taking measures to improve how the court system deals with the underlying issues causing petitioning.
It is sending a signal to the lower courts that these cases are a political priority.
These cases include:
a dispute seeking compensation for forced demolition of property on village land;
a copyright infringement case in which Yang Jiang, widow of the writer Qian Zhongshu sought an injunction to prevent an auction house from auctioning some of his letters (see a discussion here);
a Sierra Leone ship (with an Albanian captain and Syrian crew) arrested by the Xiamen Maritime Court (see a press report here);
a judicial review of an administrative decision in an environmental case in which a farmer’s complaint made to the local environmental protection bureau concerning water pollution was ignored;
a celebrated case in which two men sought compensation for wrongfully being incarcerated for 10 years for a crime they did not commit (see a press report here);
a medical malpractice case; and
an unenforced judgment (despite multiple efforts by the court) in a forced demolition of property case brought by a trade union against a real estate development company (the defendant was one of the companies on the first list of judgment debtors issued by the Court).
Cases #2, #3, and #5 were well known either nationally or locally, and case #7 may have come to the Court’s attention when the defendant was named on the judgment debtor’s blacklist, but it is unclear how the rest came to attention of Court officials (possibly when they met with provincial court officials).
Although the Court is promoting the use of cases to guide the lower courts, including its announcement in the October, 2013 the Court Reform Decision, that it would ” fully expand the important role of leading cases and cases for reference.”
充分发挥指导性案例和参考案例的重要作用
these cases are meant as political rather than legal guidance. The subject matter of these is typical of many “people’s livelihood” cases.
In a November, 2013 blogpost, Mark Cohen (of Chinaipr.com) gave a good overview of model cases, contrasting them with guiding cases. The case descriptions of the model cases do not contain the original judgments but rather a brief summary of the facts, judgment, and (critically) the importance of the case. These model cases are not an indication that the Chinese judiciary is borrowing case law from common law system.
It is likely that 2014 will see more initiatives by the Court to deal with some of the issues underlying petitioning, including working with the NPC Legal Work Commission on expanding the jurisdiction of the courts under the Administrative Litigation Law. The Petitioning Reform Document calls for:
the establishment and improvement of systems imposing liability for mistaken verdicts and
lifetime responsibility (liability) for the quality of cases handled.
The Court is likely to focus on these as well as other issues related to the judiciary raised in the Petitioning Reform Document.
Beijing petitioners at SPC (used with permission of Natalie Behring)
In the past two weeks, the Supreme People’s Court (the Court) has taken new measures to resolve the problem of petitioning (ordinary people petitioning higher authorities concerning their grievances). Court petitioners generally have grievances related to judgments (or the enforcement of judgments) in the lower courts. Petitioning affects the Court itself. The current measures are tied with the document released on 27 February 2014 by the General Offices of the Communist Party Central Committee and the State Council on petitioning reform (the Petitioning Reform Document, linked here) and briefly reported here. More measures from the Court are anticipated this year.
Approximately 60,000-70,000 petitioners approach the Court each year, many repeat petitioners. In the Court Reform Decision of November, 2013 and other statements in 2013, Court leadership identified resolving the issues underlying petitioning as a target for action (see previous blogposts in January, 2014, October, 2013, and September, 2013). It is likely that its current and future initiatives related to petitioning will be mentioned in the Court’s Work Report to the National People’s Congress.
Link to the Petitioning Reform Document
The Petitioning Reform Document is intended for distribution to the court system, as a Party document distributed to “all departments.” It pinpoints measures for the court system to take, some highlighted below.
Several points of the Petitioning Reform Document relate to the new measures taken by the Court. Point 5 of the document relates calls for pathways for petitioning issues to be heard, including on-line petitioning platforms. Point 9 of the document calls for greater legalization of petitioning, such as:
separating litigation from petitioning;
taking petitioning into the courtoom;
improving various types of appeal procedures (litigation/arbitration/administrative reconsideration)
improving systems within the courts/procuracy/public security/judicial administration to deal with the underlying issues causing petitioning.
The last sentence in Point 9 calls on the strengthening of the capacity of the judicial system, to satisfy the ever-increasing demands on the judicial system of the masses (ordinary people), and to make the masses feel that they have received fair justice.
Phrases in the last sentences are frequently used by the Court leadership. The latter phrase is part of a statement made by Xi Jinping in early 2013 and is often used by the Supreme People’s Court leadership (discussed here).
Internet petitioning platform
To implement the Petitioning Reform Document, on 28 February, the Court established an electronic platform for petitioners, linked here. The internet platform can be accessed from the Court’s official website:
网上办事
The platform includes a short video explaining how to use the on-line system, as well as its benefits, linked here. It is likely intended as a model for the lower courts.
Time will tell how the Court (and the lower courts) will promote the electronic system and resolve the underlying issues. A related issue is whether the Party anticipates a greater scope for NGOs in dealing with court-related issues.
For example, will a team of Court staff be dispatched to the street with tablet computers to register petitioners’ cases? Will this mean that NGO representatives will assist petitioners to register their issues with the courts（although this report from Guangzhou anticipates official channels only)? Most importantly, what will the Court do to resolve the underlying issues? Will this initiative be successful and result in few petitioner visits to the Court and the lower courts?
7 Model Cases
On 17 February 2014, the Supreme Court (Court) issued 7 model cases (典型案例) on protecting the livelihood of ordinary people. “Protecting the livelihood of ordinary people” is a political rather than legal term, and is described in court press releases as cases affecting the lives and livelihood of ordinary people (for more details, see here).
These model cases (linked here) and explained below, are not precedents but intended to be instructional. The legal reasoning in the cases is not important. The release of these cases sends several messages.
It shows the political leadership that the Court has taken the initiative to deal with petitioning related cases.
The Court is showing ordinary people that it is implementing Party policy by taking measures to improve how the court system deals with the underlying issues causing petitioning.
It is sending a signal to the lower courts that these cases are a political priority.
These cases include:
a dispute seeking compensation for forced demolition of property on village land;
a copyright infringement case in which Yang Jiang, widow of the writer Qian Zhongshu sought an injunction to prevent an auction house from auctioning some of his letters (see a discussion here);
a Sierra Leone ship (with an Albanian captain and Syrian crew) arrested by the Xiamen Maritime Court (see a press report here);
a judicial review of an administrative decision in an environmental case in which a farmer’s complaint made to the local environmental protection bureau concerning water pollution was ignored;
a celebrated case in which two men sought compensation for wrongfully being incarcerated for 10 years for a crime they did not commit (see a press report here);
a medical malpractice case; and
an unenforced judgment (despite multiple efforts by the court) in a forced demolition of property case brought by a trade union against a real estate development company (the defendant was one of the companies on the first list of judgment debtors issued by the Court).
Cases #2, #3, and #5 were well known either nationally or locally, and case #7 may have come to the Court’s attention when the defendant was named on the judgment debtor’s blacklist, but it is unclear how the rest came to attention of Court officials (possibly when they met with provincial court officials).
Although the Court is promoting the use of cases to guide the lower courts, including its announcement in the October, 2013 the Court Reform Decision, that it would ” fully expand the important role of leading cases and cases for reference.”
充分发挥指导性案例和参考案例的重要作用
these cases are meant as political rather than legal guidance. The subject matter of these is typical of many “people’s livelihood” cases.
In a November, 2013 blogpost, Mark Cohen (of Chinaipr.com) gave a good overview of model cases, contrasting them with guiding cases. The case descriptions of the model cases do not contain the original judgments but rather a brief summary of the facts, judgment, and (critically) the importance of the case. These model cases are not an indication that the Chinese judiciary is borrowing case law from common law system.
It is likely that 2014 will see more initiatives by the Court to deal with some of the issues underlying petitioning, including working with the NPC Legal Work Commission on expanding the jurisdiction of the courts under the Administrative Litigation Law. The Petitioning Reform Document calls for:
the establishment and improvement of systems imposing liability for mistaken verdicts and
lifetime responsibility (liability) for the quality of cases handled.
The Court is likely to focus on these as well as other issues related to the judiciary raised in the Petitioning Reform Document.
Since the end of Third Plenum in November, senior Supreme People’s Court (Court) officials have been racking up airmiles, traveling all over China to meet with National People’s Congress (NPC) and Chinese People’s Political Consultative Conference (CPPCC) representatives. Over forty meetings have been held over the past year. Although Court officials had met with NPC and CPPCC delegates in previous years, it is apparent that these meetings are taking on special significance this year. This blogpost will explain what occurs at these meetings and the rationale for having them. It also illustrates one of the skills that an effective court president needs in China.
In recent months, senior Court officials, primarily the Court vice presidents, have traveled to the four corners of China, from Gansu to Guangxi and from Jilin to Yunnan. Zhou Qiang has also met with Beijing based delegates.
The stated purpose of these meetings is to “listen” (听取) (and respond) to the views and suggestions of NPC and CCPCC delegates. Court officials have either released to NPC and CPCC delegates a copy of the Court draft work report or summarized the developments in the courts in 2013 and plans for 2014. Some meetings apparently involved more substance than others. The meeting with Shanghai delegates, which included a leading law firm partner as well as the general manager of Shanghai Electric (listed on the Hong Kong Stock Exchange) raised the issues of:
quality of judicial personnel;
increasing judicial independence;
resolving local protectionism;
having more witnesses appear in court; and
cross-examination.
It is apparent from the extensive reports on these meetings that Zhou Qiang is taking a tactical approach to these meetings. As the former governor of Hunan, former Party Secretary of Hunan and director of the Standing Committee of the Hunan People’s Congress, he has extensive experience in dealing with people’s congress and consultative congress deputies.
It appears that the rationale Zhou Qiang (and colleagues) have for these meetings is two-fold. First, it is to diffuse criticism of the Court (and the work of the lower courts) at the upcoming NPC session and incorporate frequently issues into either the final version of the Court Work Report or the 2014 Court agenda. The large number of votes against the 2013 Court Work Report was seen as a loss of face and it is likely that Court leadership wants to avoid that.
The second reason Zhou Qiang has for closely liaising with NPC delegates is to lay the groundwork for implementing court reforms. If the Court is able to obtain support for overhauling the structure for the funding of courts and appointment of judges at the local level (as foreseen by the Third Plenum Decision) this reform will require that the NPC amend the basic statute for the court system, the Organizational Law of the People’s Courts (人民法院组织法) and will require NPC delegates support the reforms in large numbers.
Zhou Qiang listening to Hunan provincial people’s congress delegates, 2011
On the eve of the Chinese New Year, a banner headline was posted on the Supreme People’s Court (Court) websites:
Study the Important Written Instructions of General Party Secretary Xi Jinping
A revised version of that banner has remained on those websites since (the photo above), apparently unobserved by outside commentators, who may have not realized its significance. This blogpost will look at:
what written instructions (批示) are;
the significance of Xi Jinping giving written instructions;
what Xi Jinping’s instructions were;
why the instructions were issued on eve of the New Year; and
why Zhou Qiang, President of the Court called on the lower courts to study diligently Xi Jinping’s instructions.
What are written instructions (批示)?
”Written instructions“ (批示) means notes or comments made by a superior on a written document submitted for approval or comment. It is used in reference to Party/government documents as well as documents within the court system (see the regulations on handling each type of document). The term has been used throughout the history of the PRC as well as in Chinese history. Analysis of Chinese political documents often mentions written instructions.
According to the reports on various Court websites and in the press, Xi Jinping gave his written instructions on 28 January in response to a report submitted by the Supreme People’s Court entitled Situation Concerning the Work of the People’s Courts in 2013 and Proposals for their Work in 2014 (关于2013年人民法院工作情况和2014年工作打算的报告). The report has not been made public.
What were Xi Jinping’s written instructions and what is their significance?
Xi Jinping wrote what to the outside observer appears to be a collection of slogans from the Third Plenum Decision. However appearances can be deceiving.
He wrote that the courts had diligently implemented the Center’s policies and implemented their responsibilities and achieved new results. He expressed his hope that the courts will make persistent efforts, implement the spirit of the 18th Party Congress, Third Plenum etc, uphold the Party’s leadership, promote judicial reform, advance the building of a judicial system that is fair, efficient, and authoritative..provide powerful judicial protection for reform, and continue to promote the building of the rule of law in China.
The significance of the written instructions is not so much in its content as the fact that Xi Jinping issued it to the Supreme People’s Court. It is unusual for a Party General Secretary to have issued them. By doing so, Xi Jinping expresses his support, praise, demands, and hopes for Zhou Qiang and the Court leadership.
Why were the written instructions issued on eve of the New Year?
The written instructions were issued on the eve of the Chinese New Year to approve what Zhou Qiang and the other Court leaders did in 2013, as well as confirm the planned policies of the Court for 2014. The written instructions were issued before the Chinese New Year to enable the Court leadership to be better equipped when dealing with issues at the National People’s Congress (NPC) meeting in early March. Court leaders are likely anticipating that local opposition to judicial reforms under consideration may be expressed at the NPC meeting.
Why are the lower courts requested to study diligently Xi Jinping’s instructions?
Xi Jinping’s instructions summarize in one paragraph the Central Committee’s policy towards the courts and their role in the Third Plenum reforms as well as judicial reforms. The written instructions enable the lower courts to understand the political background against which they work and the political goals for their work in the near and longer term.
The more sophisticated lower court judges understand that the written instructions mean that the Party leadership values the work of the Court leadership, but recognize that this will not resolve their caseload.
Concluding Remarks
To the outside observer:
it illustrates what is meant by Party leadership of the courts at the highest level;
in the political context of China, it is a major coup for Zhou Qiang (and colleagues) and their reform policies for Xi Jinping to have issued those written instructions; and
It means the political leadership is behind those reforms.
At the same time, it places a great deal of pressure on the Court leadership to deliver results (as seen from the political leadership) in the judicial reforms.
It would not be surprising to hear voices opposing some of the reforms at the NPC meeting.
In early September, 2013, the Supreme People’s Court (the Court) issuedthe Notice on Certain Issues Relating to Correct Handling of Judicial Review of Arbitration Matters (最高人民法院关于正确审理仲裁司法审查案件有关问题的通知)(Fa [2013] No. 194) (the Judicial Review Notice). This clunky sounding notice relates to the split between CIETAC and its former sub-commissions, the Shanghai International Economic and Trade Arbitration Commission (the Shanghai International Arbitration Center) and the Shenzhen International Economic and Trade Arbitration Commission (the Shenzhen Court of International Arbitration). It is therefore relevant to the thousands of companies (and their lawyers) that have CIETAC Shanghai or CIETAC Shenzhen/South China arbitration clauses in their contracts.
The Judicial Review Notice dispute was not published on the Court’s official website or the website of the national court system (which it also operates) but the text was distributed by local lawyers associations (one is linked here) and was published by Peking University’s Chinalawinfo service. It became the subject of law firm alerts and other publications in Chinese and English (some English alerts are linkedhere and Chinese alerts are linked here).
The Judicial Review Notice is not a judicial interpretation and is not required to be made public. It is a Court normative document (discussed in an earlier blogpost). Court normative documents address new issues or phenomena where the Court is of the view that the law is not settled enough for judicial interpretations. The Judicial Review Notice, which (as described in the above client alerts) requires certain lower court rulings related to the CIETAC split to be considered by lower court judicial committees and reported up level by level to the Court. On the topic of judicial committee, see my earlier article on the subject–Article on judicial committees and as mentioned in an earlier blogpost, the Court is reconsidering) These new procedures affect the rights of litigants in these cases as well as parties (or potential parties) to arbitration proceedings in the Shanghai International Arbitration Center and Shenzhen Court of International Arbitration. However, relevant regulations do not require that all Court normative documents be made public.
The Court leadership is requiring more transparency of the lower courts. They need also to turn their attention to their own documents and consider where the Court can be more transparent, because that will also be a step forward in (as the Court’s slogan has it) “Vigorously Strengthening a Fair Judiciary and Continuously Increasing Judicial Credibility”.
On 13 January the People’s Court Daily published a report, linked here (and also issued on Wechat), with statistics and summaries of legal developments in 2013 concerning mutual legal assistance between mainland China and Hong Kong, Macau, and Taiwan. These developments, which also have practical implications for lawyers and the judiciary in all four jurisdictions are highlighted below.
There were almost 11,000 cases involving delivery of judicial documents, taking of evidence, and other mutual legal assistance, with a significant increase since the conclusion in June, 2009 of a judicial assistance agreement between the mainland and Taiwan.
In 2013, the Supreme People’s Court (SPC) began work on a judicial interpretation concerning the recognition of Taiwan court rulings and judgments, which the report says would be more comprehensive and expand the scope of judgments that can be recognized. The SPC also began work on a judicial interpretation for the transfer of mainland prisoners from Taiwan back to the mainland to serve out their sentences.
The SPC and the Hong Kong authorities [presumably the Department of Justice] have undertaken fruitful discussions on the recognition and enforcement of civil and commercial judgments that lack jurisdiction agreements (相互认可与执行非协议管辖民商事判决) as well as an arrangement concerning criminal cases in which the mainland and Hong Kong have concurrent jurisdiction.
The arrangements with Hong Kong have significant implications for the business and legal community in Hong Kong. The Supreme People’s Court Monitor looks forward to more information from the Hong Kong government on both issues.
In the last full week of the year, the Court called on the masses to “believe in law, not petitioning” (信法不信访). To that end, the Court leadership publicized on Wechat (and through the press and the national court website) two initiatives:
Focusing on enforcement of 10 types of disputes affecting the livelihood of ordinary people (涉民生案件) that it identifies as most likely to cause social disturbances;
Its views on the draft Administrative Litigation Law (行政诉讼法), shortly before the National People’s Congress issued its draft for public consultation.
In a five month initiative launched by telephone conference (a form of communication often used by the Communist Party), the Court is focusing on the enforcement of judgments in the following areas:
unpaid wages（particularly owed to migrant workers);
support payments (to the elderly);
child support;
alimony;
compensation payments (to the disabled or families of the deceased)
medical malpractice compensation;
traffic accident compensation; and
industrial accidents.
The Court has called on the lower courts to:
select cases for enforcement;
devote resources to the campaign;
use its database of judgment debtors and work with the People’s Bank of China Credit Reference Center to identify assets, so outstanding judgments can be enforced.
The Court has issued similar notices in previous years prior to Chinese New Year. Judgments in these types of cases are often difficult to enforce for a number of reasons:
with China’s legal aid system inadequate for societal needs, migrant workers and other ordinary people have problems navigating the court system;
the enforcement system, in particular, is difficult for individuals to navigate;
although work has been done by both the court system and the State Administration of Industry and Commerce, the smaller companies that are the judgment debtors in many of these cases are skillful at disappearing without a trace and disguising their assets;
these cases are generally not priority cases for the enforcement divisions of local courts.
The intention is to avoid the yearly phenomenon of migrant workers demonstrating in the run up to Chinese New Year because their company bosses have disappeared and absconded with their unpaid wages.
Provincial high courts are tweaking the focus of the enforcement campaign to suit their local circumstances. The Gansu Province Higher People’s Court, for example, is focusing on 1300 cases that date as far back as 2011 and is working with the provincial Political Legal Committee and Finance Department to allocate more funds for those in particular difficulty. The persons affected are fortunate if their case makes it onto the list, because for migrant workers, traffic accident victims, disabled workers, and others affected, justice delayed is justice denied.
Court officials may also have some self-interest in having these cases resolved locally, because some, when talking privately, mentioned that petitioners frequently surround the front gate of the Court.
The other initiative publicized by the Court to encourage the masses to avoid social disturbances is several of its proposed amendments to the Administrative Litigation Law. Admitting that administrative cases are difficult from beginning to end, the Court i to focus on several major issues related to the refusal of courts to take administrative cases:
expanding the type of cases that the courts may accept (including government agencies infringing on private rights to land and other natural resources);
permitting parties to file cases orally;
implementing stricter procedures for case acceptance;
imposing more liability on courts that refuse to take cases.
In its statement, the Court mentioned that many cases involving government action as ones that should be resolved through the courts rather than through public protests. Because of the structure of the local courts, in particular local courts being funded by local governments, it is not in the interest of the local courts that these cases receive a hearing. The court reforms announced late last year may eventually improve matters.
1. The Chinese government cracks down on medical institution crime. On 21 December, 11 government and Party bodies, including the:
National Health and Family Planning Commission;
Supreme People’s Court;
Ministry of Public Security;
Ministry of Justice; and
Supreme People’s Procuratorate,
initiated 1 year movement to crack down on crime relating to medical institutions. The plan, reported here and linked here , calls for the punishment of offenses related to medical institutions. It also announces the framework for related reforms:
restructuring state-owned medical institutions;
resolving medical disputes with mediation;
improving rural health; and
improving security in medical institutions.
Although the Supreme People’s Court co-issued this document, it is not a judicial opinion. It is a policy document.
2. The Court posted structural reform issues for on-line discussion, although it is unclear what the response has been. On 18 December, the Court posted two court structural reform issues raised by the Third Plenum Decision on the “Everyone Discuss Judicial Reform” Website (linked here) and asked for comments:
local courts and procuratorates–promote uniform administration of personnel, finance, and property at provincial level and below;
the four levels of the courts–clarify their role and position.
Questions raised by the Court concerning the “uniform administration of the local courts”:
what does this mean;
what are its implications,
will it mean further bureaucratization of the courts and procuracy,
what flexibility should there be,
what will it mean for local protectionism.
Questions raised by the Court concerning “clarify the role and position of the functions of the four levels of the courts” concern the implications for:
judicial interpretations,
appeals systems;
internal organization of the courts.
The “Everybody Discuss Judicial Reform” website is a joint project of the national court website, justice website (Supreme People’s Procuratorate), and the China Law Society. It is a forum for eliciting discussion on important issues for which the institutions must already have framework plans.
On 6 December the Supreme People’s Court (the Court) issued for a nine day comment period for public consultation their draft “regulations concerning some issues related to the trial of disputes involving independent guarantees” (draft demand guarantee interpretation). The Court missed an opportunity for real public consultation on a judicial interpretation with significant domestic and international commercial implications.
Why was it a missed opportunity?
In the best of worlds, what could have happened?
The Court could have used the draft to showcase the Court’s new openness and transparency (which had begun even before the Third Plenum of the 18th Central Committee of the Communist Party (Third Plenum)).
The Court could have set a public consultation period long enough for interested parties (domestic and foreign) to provide meaningful input on the draft. Interested parties could have had a chance review and consider the draft in light of issues that often arise in transactions when demand guarantees are issued by Chinese institutions, and compare it to the “international standard” on the subject,the International Chamber of Commerce’s Uniform Rules for Demand Guarantees (URDG).
The reasons why are the Court did so are explained below.
The demand guarantee regulations are classified as a type of judicial interpretation, which, as explained in a prior blogpost, are an important source of legal rules in China.
Why is the draft demand guarantee interpretation important? Chinese banks often issue demand guarantees to foreign companies on behalf of Chinese contractors, exporters, and investors. When projects go wrong, Chinese companies often go to Chinese court to try to stop payment on their guarantees.
This blogpost describes:
What a demand guarantee is;
Why the Court drafted this interpretation;
What issues the interpretation raises;
How the Court handled public participation and possible reasons for doing so; and
Avenues for advocating a greater role for public consultation.
What is a demand guarantee?
A demand guarantee (most often called an independent guarantee in Chinese (独立保函)), is often used in construction, engineering and other projects, when the owner of the project requires a contractor to guarantee his performance, often with a guarantee issued by a bank, so that if the contractor fails to meet his obligations, the project owner can be easily compensated.
2. Why the Court drafted this interpretation
The Court drafted the demand guarantee interpretation because the lower courts are faced with the situation of trying an increasing number of cases involving demand guarantees, with inadequate legislation.
These cases arise because Chinese construction and engineering companies, taking an increasing share of the contracting market outside of China, seek to avoid paying on the demand guarantee to the foreign project owner. Large construction or engineering contracts are usually secured by a demand guarantee. The Chinese construction and engineering companies usually obtain these demand guarantees from Chinese banks. When foreign project owners make demands under the demand guarantees, because the construction project does not meet specified standards, Chinese contractors often apply to the Chinese courts to withhold payment to the foreign project owner. A recent article by a Dacheng Law Firm partner described his experience acting for a Pakistani project owner.
3. What issues does the interpretation raise?
The issues below concern banks and project owners, Chinese and foreign:
Whether demand guarantees should be applicable to domestic transactions;
The Security Law takes a negative view but see further discussion on this issue here;
Whether the court should be able to review the underlying transaction when reviewing demand guarantee disputes;
(Article 27 of the draft states yes, that in relation to fraud (as characterized by Article 18), the court should be able to engage in limited review of the underlying transaction)
Governing law of and applicability of Chinese mandatory regulations to demand guarantees; and
(the law agreed by the parties, and if the guarantee is silent, the law of the habitual residence of the guarantor; the mandatory provisions of security given to foreign parties are applicable);
Procedures for proceedings to withhold payment under a demand guarantee.
4. How the Court handled public consultation and why
The Court handled the public consultation quickly and quietly. The possible reasons are described below. The Court did not publicize the draft on its Weibo or Wechat accounts, nor did the Court’s newspaper, the People’s Court Paper, feature an article calling attention to the draft interpretation. The nine day public consultation did not violate the Court’s own rules, which do not set out consultation periods or methods of consultation.
Why the brief consultation period?
Court officials may have felt that they had solicited enough expertise to issue the draft.
The No. 4 civil division, in charge of foreign-related cases and arbitration, had been working on this judicial interpretation for over two years and had organized several invitation-only conferences in 2012 and 2013 to discuss the draft. This is standard practice in Chinese legislative drafting (as discussed in a this blogpost) and this article. Participant experts at these conferences included:
the Ministry of Commerce;
CIETAC;
the Beijing Arbitration Commission;
leading Chinese lawyers.
and likely representatives from the principal Chinese banks and major state-owned companies.
Personnel changes slowed the issuance of the interpretation. During 2013, the Court leadership nominated a new head of the No. 4 civil division, but his appointment was subject to National People’s Congress Standing Committee confirmation, delaying action on this and other matters.
There may be a push to issue the interpretation before year-end, so that the lower courts can rely on it to resolve cases, a performance indicator for the lower courts.
5. Can the Bilateral Investment Treaty Negotiations Push for a More Public Consultation of Judicial Interpretations?
The Chinese government is negotiating Bilateral Investment Treaties (BITs) separately with the United States and the European Union. The 2012 U.S. Model Bilateral Investment Treaty contains a framework for including this type of judicial interpretation in BIT transparency obligations. Those obligations require (to the extent possible) giving interested parties the chance to comment on “proposed regulations of general application of its central level of government.” The WTO has jurisprudence on what this means.
If the language ultimately agreed between the United States and China is broad enough to encompass judicial interpretations related to investment, this will ultimately trigger an amendment to transparency requirements for judicial interpretations.
Chinese and foreign individuals and businesses would benefit from greater transparency in judicial interpretations.
As everyone who has spent some time paying close attention to the Chinese legal system knows, the Chinese Communist Party has a system (系统) of Political Legal Committees (政法委员会 or 政法委) that oversee, coordinate, and implement Communist Party policy in the legal institutions–public security (and state security), procuratorate, courts, and justice (公检法司). The Political-Legal Committees, that exist at every level of the Communist Party and government, have been existence for many years. This quick blogpost reports on two unnoticed phenomena:
the Political-Legal Committees “coming out”; and
the Supreme People’s Court (Court) opening discussion on the relationship among the legal institutions.
What I mean by “Political-Legal Committees ‘coming out'” is that from the central level on down, Political Legal Committees now have their own websites that link to the institutions (with the exception of state security) at the same level of government. At the top level is Chinapeace, featuring articles related to Party policy (and other topics) in the legal institutions and linking horizontally to the websites of those institutions and vertically (downwards) to the local political legal committees. Chinapeace has links to the websites of local political-legal committees at the provincial level (or equivalent)–such as the Guangdong Political-Legal Committee.
The Communist Party must have issued a decision to permit these websites to be established. It means that the Communist Party has decided that the Political Legal Committees need to be on the Internet to promote the Party’s policies. For the veteran observers of the Chinese legal system, it is an amazing phenomenon, when for many years, these committees had been in the metaphorical closet.
The second unnoticed phenomenon is that at the end of October, the Court has posted on its website a link to the newest topic for discussion for a project it co-sponsors with Tsinghua University on judicial reform–the relationship between the legal institutions and whether they should be “adjusted.”
The Constitution (Article 135) sets out the basic principle–they shall “in handling criminal cases, divide their functions, each taking responsibility for its own work, and they shall coordinate their efforts and check each other to ensure the correct and effective enforcement of law” . It is significant that the Court has raised this, especially publicly. It is another issue for all concerned about the Chinese legal system to watch.
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