All posts by Supreme People's Court Monitor

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.

arbitration, Arrangements

Supreme People’s Court’s 2023 Judicial Review of Arbitration Annual Report

September 10, 2024 Supreme People's Court Monitor Leave a comment

The Supreme People’s Court (SPC), along with the Ministry of Justice, held a press conference on 9 September, reported here, to announce the publication of the 2023 annual report of judicial review of commercial arbitration. It was written by the SPC’s #4 Civil Division in collaboration with the Capital University of Economics and Business. I have attached the report as a PDF to enable readers in the United States and any other jurisdictions where the SPC’s official website is unavailable to download the report. This report is Chinese only, and an English version is understood to be forthcoming. There is a great deal of interesting information for practitioners and academics, but competing obligations do not permit me to analyze the report in detail. The number of cases reported to the SPC under its prior reporting system was reduced enormously (29 in 2023, compared to 350 in 2021, related to an amendment of the 2017 judicial interpretation on reporting procedures ). See the statistics from the report:

Trends in SPC Prior Review of Arbitration, 2020-2023 (yellow)， blue columns are the total number of judicial review of arbitration cases

An infographic summarizing the results is in this report.

For anyone interested in the role of the SPC in legislation (as I wrote about in my article on how the SPC supports the development of foreign-related rule of law (long/short version), the report has a section describing in detail the SPC’s contribution to the drafting of amendments to the Civil Procedure Law, amendments to Arbitration Law, the drafting of Foreign State Immunity Law, etc.)

Answers Database, case database

Supreme People’s Court’s New Court Answers Platform

September 4, 2024 Supreme People's Court Monitor Leave a comment

By Susan Finder and Zeng Yuhang (曾宇航) , 4L student, Peking University School of Transnational Law

As mentioned in two recent blogposts, and as readers may be aware, the Supreme People’s Court (SPC) launched a new internal platform, the Court Answers Database (法答网, “Answers Database”) in July 2023 (last year’s announcement), to provide authoritative answers on legal questions to overworked lower court judges. It is one of President Zhang Jun’s case law initiatives, reflecting his work at the Supreme People’s Procuratorate (SPP). Although not widely known, the SPP launched an analogous database for procurators in 2018 entitled 检答网 (Procurator Answers Database), which appears to be operating.

As of early September 2024, the SPC has published nine groups of Answers Database questions and responses in the People’s Court Daily (about which more is said below)： first; second; third; fourth; fifth; sixth; seventh; eighth; ninth. One question and answer is translated below.

The Answers Database, together with the new SPC case database 人民法院案例库 (People’s Courts Case Database, “Case Database”), has become a key focus for the SPC under President Zhang Jun to unify how judges apply the law (known in Chinese as unified legal application 统一法律适用).

What’s new?

Slogan of the Answers Database: “If you have questions, find the Answers Database”

The Answers Database is a platform for judges in lower courts to seek guidance on legal issues by asking questions and obtaining answers from other judges. Seen another way, it is an online platform to strengthen guidance by the SPC (its firm guiding hand) in particular, but also by provincial courts, and to a lesser extent by intermediate courts.

The question-and-answer process is described in the next section. The Research Office of the SPC is responsible for overseeing the overall operation of the Answers Database. As of August 29, 2024, the Answers Database has received over 650,000 inquiries and provided more than 550,000 responses. During this year’s report to the National People’s Congress, President Zhang Jun revealed the Answers Database had received 280,000 inquiries, answering 230,000. That means the number of inquiries has more than doubled since the early spring.

As to the nature of the answers and how they are used, from the beginning, the SPC has emphasized that the answers provided are non-binding and intended for reference only. We comment more on this below.

From the publicity materials so far and the experience of one of the authors, it appears that the stress on using the Answers Database varies from judge to judge, court leader to leader, and by substantive area. At the late August 2024 Supreme People’s Court Judges’ Forum (最高人民法院法官讲坛), the head of the SPC’s Research Office describes it as a “rich or treasure mine” (宝矿，福矿) to be mined. The senior judge from the SPC’s #2 Civil Division mentioned at the Forum that they are using queries posted on the Answers Database as sources of information in drafting a new version of the judicial interpretation of the Company Law, and other reports stress the usefulness of the Answers Database in drafting or amending other judicial interpretations and other SPC documents. A vice president of the Judicial College said that they would integrate queries and responses into judicial training materials.

Another use for the Answers Database is when judges hear cases on related topics that are discussed by specialized judges committee meetings. We understand that judges may choose to include Answers Database responses to similar issues as an attachment to their trial or review report (审理报告 or 审查报告 (for retrial cases), analogous to a bench memorandum （see the linked blogpost for an explanation of these reports) at their discretion, but again, for internal discussion and reference purposes only.

At the forum mentioned above, the judges mentioned they have implemented a requirement for cases submitted for review by senior court leaders (阅核) or the specialized judges meeting (专业法官会) to include a report summarizing preliminary research conducted in both the Case Database and the Answers Database. This aligns with a related SPC policy described below. (For a review of the case discussion process, see this description by Yuan Ye, one of my former students now a PhD student at Peking University.

According to a handbook on the Answers Database published by a provincial court, some responses are designated as “premium answers” and “high-frequency answers”. As mentioned above, the SPC has published nine batches of these selected premium answers in the People’s Court Daily (although it is understood that the number of premium answers in the database is significantly higher than those published). It is understood that the Research Office is responsible for designating responses as “premium.” After initial selection, the relevant substantive SPC divisions will be asked to conduct a secondary review. They could advise the Research Office if the question has been answered improperly and suggest adjustments. Additionally, SPC divisions and departments could recommend questions and answers.

Some Answers Are More Important Than Others

The published answers carry significant weight among legal professionals, who assume that a high level of review has been conducted within the SPC of those cases. Practitioners view the published responses as likely to significantly influence court decisions in similar cases. For example, after the ninth batch of answers related to company buyback rights was published (see the translation below), many top law firms issued legal alerts outlining the potential major impacts. In an SPC publicity video, the dean of Tsinghua Law School suggested that the publicized questions and answers will be useful for legal education. Based on our observations of the Answers Database over the past year plus, the impact of the published responses is considerable. Some judges queried mentioned that responding to queries takes a significant amount of time.

How does the Answers Database operate?

As for how the Answers Database operates, based on the handbook mentioned above and the authors’ understanding, inquirers—both judges and judge assistants (responses could only be written by the judges)—to submit questions when encountering complex legal issues during a case. They should fill out the form which covers the subject matter, relevant laws, personal statements (optional–meaning how the judge thinks the question should be approached) etc.

Based on our inquiries, questions can only be submitted to the next higher court. judges are also permitted to ask questions across different departments. For instance, a judge handling civil cases can ask a question related to enforcement to a judge in the Enforcement Department.

After finishing the form, inquiring judges should obtain approval from their leadership to submit their inquiries. At this point court leaders may resolve these questions through meeting with relevant judges or their superiors. Once received by the relevant court, questions will be routed to relevant departments based on the subject matter. Division heads then assign specific judges to formulate responses, which may be discussed at a professional judges’ meeting. The response, especially at the SPC level undergoes review by senior leadership —first by the deputy division chief and finally by the division chief. SPC sources mention that such review sometimes can be quite robust – the answers should be rewritten and some complicated questions will be presented to the specialized judges committee of that division for further discussion before final approval by the division head. It is understood that courts have been given targets of a quota of questions that must be answered. That means that senior judges in higher courts are required to respond to these questions in addition to their usual work.

It appears that the SPC leadership intends the Answers Database to make an impact on the Case Database. An SPC publicity video and related article mention the concept of “database integration (库网融合),” meaning the Answers Database needs to be deeply integrated with the Case Database. For example, if the specific legal issues are covered by the frequently asked and premium questions, the Research Office spokesperson said that efforts should be made to find the relevant real cases and add them to the Case Database. As discussed in a previous blogpost, cases in the People’s Courts Case Database are highly persuasive.

Comments

The Answers Database illustrates multiple aspects of the unique operation of the SPC and Chinese court system in its current evolution.

One aspect is dynamic policies. The new importance of the Answers Database means that the forms of SPC guidance of the lower courts have further evolved in the last year. As a result, an updated version of the rules on similar case search issued in 2020 is likely to incorporate the Answers Database as well as the People’s Courts Case Database.

A second aspect is better enabling the SPC (or higher courts) to identify legal issues about which lower court judges are unclear and clarify them through responses, judicial interpretations, or other judicial documents, rather than through judgments or rulings on appeal.

Although one aspect of the Fourth Five-Year Court Reform Plan Outline stressed reducing the administrative-type operation of the courts (去行政化), times have changed. The Answers Database appears to be a “lite” version of the request for instructions system, described here, also as flagged by a senior Beijing judge in the recent SPC video mentioned earlier and related article. He commented that the Answers Database is similar to the request for instructions（请示) system but offers a more streamlined approach – unlike traditional inquiries, which may demand more time to respond, the Answers Database allows judges to quickly pose questions to higher courts and receive feedback quickly. Speed may not necessarily be positive. On requests for instructions, as I wrote previously, fifteen or more years ago, there had been proposals even within the SPC for the system to be “proceduralized” or “judicialized,” but the Answers Database illustrates the bureaucratic aspects of the Chinese court system. This development reflects the greater importance of Chinese characteristics in judicial reform, as Dean Jiang Huiling mentioned in 2022.

Although the Answers Database focuses on answering abstract legal questions rather than particular disputes, the boundary between questions related to a specific case and abstract legal questions is fuzzy. People using this database comment that many questions are presented in a way tailored to the specific facts of a case. Moreover, the research and drafting of responses are done without arguments submitted by opposing counsel and likely under great time pressure. The litigation process is likely to generate arguments or sub-issues that the judges may not have considered. From the description above, it appears that reponses (that litigants are not necessarily aware of) will have an impact on how courts decide cases. Again, it throws into question the appeal system. However, we acknowledge a viewpoint likely to be held by many Chinese judges, that, unlike requests for instruction, the Answers Database will promote the unification of the application of law because these responses are public (within the court system).

Finally, the expanding number of queries may reflect front-line judges’ anxiety about the evolving judicial responsibility/accountability system, which the most recent Party Plenum has mentioned will be further strengthened. Obtaining an authoritative response from a higher-level court reduces the possibility that a judge may make an error, as well as the possibility of reversal on appeal.

_______________________

　Batch #9, Question #2

How should the nature of the equity repurchase right and its exercise period in the “value adjustment mechanism (‘betting agreement’)” be determined?

Answer to question: Equity repurchase clauses are often stipulated in “value adjustment mechanism agreements”. For example, if the target company is not listed before X month X day of X year or the annual net profit does not reach XX million yuan, the investor has the right to require shareholders or actual controllers to repurchase the equity held by the investor at X price. In judicial practice, there is a great deal of controversy over the nature and exercise period of the above equity repurchase right. Some people believe that the investor’s request for equity repurchase is a creditor’s right and is subject to the statute of limitations. Others believe that the investor’s request for equity repurchase is a formative right and is subject to reasonable period restrictions.

We believe that the essence of this issue is how to understand the nature of the investor’s right to request the major shareholder or actual controller to repurchase the equity. Regarding the agreement in the equity valuation adjustment agreement that the investor has the right to request the major shareholder or actual controller to repurchase the equity, according to the contract interpretation rules established in Article 142, paragraph 1 of the Civil Code, in addition to understanding the words used in the agreement, the agreement should also be understood in combination with relevant clauses, the nature and purpose of the behavior, customs and the principle of good faith. From the purpose of the agreement between the two parties, in fact, when the conditions (not listed or profit not meeting the target) are met, the investor can either request the other party to repurchase and then “get rid of” the equity itself, or continue to hold the equity without requesting the other party to repurchase. Because the investor has the space to choose independently when exercising this right, it is more in line with the commercial expectations of the parties to limit it to a reasonable period. Specifically: 1. If the parties agree on the period for the investor to request the other party to repurchase, for example, the investor can decide whether to repurchase within 3 months from the date of determining that it is not listed, from the perspective of respecting the free will of the parties, the agreement should be recognized. If an investor requests the other party to repurchase beyond the three-month period, it can be regarded as giving up the right to repurchase or choosing to continue to hold the equity, and the People’s Court will not support its repurchase request. If the investor requests the other party to repurchase within the three months, the limitation period should be calculated from the day after the request. 2. If the parties have not agreed on the period within which the investor requests the other party to repurchase, then the right should be exercised within a reasonable period. In order to stabilize the business expectations of the company’s operations, it is appropriate to determine the reasonable period in the trial work not to exceed 6 months. The limitation period starts from the day after the request is made within 6 months.

Consultant : Meng Gaofei, Commercial Tribunal (Bankruptcy Tribunal) of the Shanghai High People’s Court

Q&A expert : Du Jun from the First Civil Court of the Supreme People’s Court

_______________________________________

The authors express their appreciation to an anonymous peer reviewer for his careful review of an earlier draft of this post and several other knowledgeable anonymous persons for sharing their insights.

conference summary, judicial documents, judicial interpretations

Guide to Supreme People’s Court Materials (2)–“Understanding & Application” Publications

August 11, 2024 Supreme People's Court Monitor Leave a comment

Understanding and Application Publications in several forms

Late last year, some followers asked me to describe the principal sources for Supreme People’s Court’s (SPC) research. This is the second of several posts, as few (particularly outside of China) seem to be aware of the range of publicly available publications of the SPC and its many affiliated entities. The second set of publications I’ll introduce contains the phrase “understanding and application” (理解与适用).

What are “understanding and application” publications?

The understanding and application publications explain and provide further background to the following types of SPC documents:

SPC interpretations (司法解释), either drafted only by the SPC or with the Supreme People’s Procuratorate (SPP);
SPC meeting minutes (conference summaries) (会议纪要); and
SPC (or SPC and SPP) policy documents entitled Opinion (意见).

The authors of “understanding and application” publications are principally the drafters of the documents in question. In China, the audience of these publications are judges in that substantive area, lawyers, and possibly in-house counsel. For some unknown reason, academics, including law students, are less familiar with these publications. However, these publications are relevant to researching, writing, and peer-reviewing articles or reports on topics that focus on any of these documents.

The publications are often issued as articles in one of the SPC’s online or print publications, listed below. The understanding and application of the most lengthy document are published as books, such as the two-volume books on the understanding and application of the judicial interpretation of the Civil Procedure Law (in the photo above) and separately, the Criminal Procedure Law. Books can be searched on the People’s Court Press website.

The content usually includes details on the drafting history of the document, policy background, and the meaning of the clauses. If an “understanding and application” publication is in book form, it generally provides commentary on each article. Sometimes an understanding and application publication discusses the competing views related to a particular clause in a document, such as the understanding and application publication on the 2019 Minutes of the National Court Work Conference for Civil and Commercial Trials (全国法院民商事审判工作会议纪要).

The analogous publication for the National Symposium on Foreign-Related Commercial and Maritime Trial Work incorporates some model cases and discusses relevant non-Chinese legislation and case law, in addition to relevant Chinese legislation, the views of relevant institutions, and court practice. For example, on the scope of the phrase “外国法院” (foreign court) in that book, the authors mention that when the Ministry of Foreign Affairs was consulted on the draft of that document, it took the view that “foreign” did not include courts of international organizations such as European Union’s Unified Patent Court. It mentions during the negotiation of the Hague Judgments Convention, the recognition and enforcement of the judgments of such courts was controversial so that in China, the recognition and enforcement of the judgments of such courts await further research.

Understanding and application articles are published in one of the following places:

the SPC official website (court.gov.cn), the Chinese courts website (chinacourt.org), and sometimes the China International Commercial Court website (cicc.court.gov.cn);
the SPC journal Renmin Sifa 人民司法 [People’s Justice];
the National Judges College’s academic journal Falv Shiyong 法律适用 [Application of Law]; and
journals of specialized SPC divisions (such as Reference to Criminal Trial, the journal of the five criminal divisions, 刑事审判参考, previously mentioned here).

These articles are often republished on the websites or WeChat accounts of lower courts and sometimes other institutions and can be searched on the Internet or through WeChat search.

Additional examples:

《全国法院毒品案件审判工作会议纪要》的理解与适用 (the Understanding and Application of the Meeting Minutes of the National Courts Symposium on the Trial of Drug-Related Crimes ), published in Falv Shiyong 法律适用 [Application of Law, the National Judges College’s academic journal]–explaining the 2022 Meeting Minutes of the National Courts Symposium on the Trial of Drug-Related Crimes (the Kunming Meeting) 全国法院毒品案件审判工作会议纪要. On the drafting history of the document, for example, before the conference, the article states that the drafters (from the SPC’s #5 Criminal Division) solicited comments from relevant SPC divisions/chambers, various high people’s courts, the Supreme People’s Procuratorate, the Ministry of Public Security and relevant experts and scholars. The draft was further amended based on comments at the conference, including from other institutions that attended the symposium, and subsequently comments were solicited from relevant divisions of the SPC, the SPP, the Ministry of Public Security, the General Administration of Customs, the Ministry of Agriculture and Rural Affairs, and the Legislative Affairs Commission of the Standing Committee of the National People’s Congress.

最高法解释起草者谈《关于办理组织、强迫、引诱、容留、介绍卖淫刑事案件适用法律若干问题的解释》的理解与适用 (The Understanding and Application of the [2017] “Supreme People’s Court, Supreme People’s Procuratorate Interpretation on Several Issues Concerning the Application of Law in Handling Criminal Cases of Organizing, Compelling, Enticing, Sheltering, and Brokering Prostitution,” published originally in Reference to Criminal Trial #115, but republished on a WeChat public account of a local public security bureau. The section on the interpretation’s drafting history reveals that in the course of drafting, the #4 Criminal Division held discussions with the Public Security Bureau (治安局) of the Ministry of Public Security, some provincial public security bureaus and some city and county public security organs’ public security departments many times, as well as with experts. The Legislative Affairs Commission of the National People’s Congress later held a coordination meeting (协调会) with relevant ministries and commissions, indicating that the relevant authorities had differing views on the draft’s content. When those issues were resolved, the SPP agreed to the draft and to issue the interpretation jointly, after which the judicial committee of the SPC and the procuratorial committee of the SPP approved the issuance of the interpretation.

One small example of the relevance of these articles and books to scholarship is the recent draft article, posted on SSRN: From Visibility to Shadows: The Impact of Police Discretion on Prostitution in Response to Legal Changes, which considers the impact of police discretion on prostitution regulation in China, following the issuance of the 2017 judicial interpretation discussed above. The authors describe the judicial interpretation several times as “an external policy change (a change in judicial interpretation) that was outside the police’s influence.” However, a review of the legislative history described above reveals that the drafting of the interpretation heavily involved the Ministry of Public Security and local level public security bureaus. It can be surmised that neither the authors nor the workshop commentators on the draft article were aware of the possible relevance of “understanding and application” articles. This post seeks to draw the attention of both scholars and practitioners to these publications so that advocates and authors can refer to these publications as appropriate and commentators will know of their existence.

administrative cases, alternative dispute resolution, NPC, Role of the Supreme People's Court

Promoting Legal Change Through Reports to the NPC Standing Committee–Reducing the Number of Administrative Disputes

July 17, 2024 Supreme People's Court Monitor Leave a comment

Although few (except the NPC Observer) outside the Supreme People’s Court (SPC) likely have noticed, earlier this year it was agreed between the National People’s Congress (NPC) Standing Committee and the SPC that this year’s SPC specialized report to the NPC Standing Committee will focus on administrative litigation. (For those who need a refresher on SPC specialized reports to the NPC Standing Committee, see this blogpost). This blogpost argues that the SPC is promoting ( the Chinese phrase is “倒逼 “) significant changes to resolving administrative disputes, that is disputes between individuals or enterprises and government agencies, by agreeing to report on administrative litigation. Related official press reports ground this conclusion.

As explained below, the SPC is working with the Ministry of Justice (MOJ) and coordinating with provincial-level high courts. The MOJ houses both the former State Council Legislative Affairs Office and the Office of the Party’s Commission for Comprehensive Law-based Governance (依法治国办). The goals are to improve how administrative agencies consider and deal with administrative disputes so that they “resolve disputes at their source,” slowing the flood of administrative cases that enter the court system. More specific goals are for government agencies to resolve disputes at the reconsideration stage (administrative appeal/administrative adjudication), respond to litigation when they are sued, and comply with mediation agreements and unfavorable judgments. It also means changing how local courts hear administrative cases and the SPC providing better rules on which local courts can rely.

These changes implement current SPC policies promoted by President Zhang Jun, the goals of the recently amended Administrative Reconsideration Law, and policies promoted by the Party leadership. This post provides a discrete example of judicial monitoring of government action, the unique operation of the SPC, and the skills required of its judges.

Background: The Thematic Education Campaign

As briefly mentioned in my 2023 article published in New York University’s US-Asia Law Institute’s Perspectives series, during last year’s thematic education campaign the SPC’s Administrative Division identified a large percentage of appeals and retrial applications as a long-standing issue in administrative disputes, as well as an upward trend in five types of administrative cases. The press release published in People’s Court Daily in 2023 summarizing the Administrative Division’s report diagnosed the reasons and proposed solutions. While some other jurisdictions might publish the full text of such reports, understanding SPC developments requires unpacking the report’s terse summary.

The Administrative Division pointed to a long list of problems with administrative divisions in the lower courts, such as a mechanical approach to hearing cases, badly reasoned judgments, disbanding of administrative divisions in some courts, departure of experienced administrative judges, case filing divisions that did not filter out cases that did not meet filing standards, unhelpful judicial suggestions, and higher courts that did not supervise lower courts.

The Administrative Division identified other problems with parties to administrative litigation, particularly local government. It described some administrative organs as unenthusiastic about coordinating and resolving administrative disputes, noting that administrative reconsideration was generally a failure [at the time of the report]. The report described administrative organs waiting for courts to decide cases, presumably rather than compromise with the plaintiff or change problematic procedures. Some local authorities (in a minority of cases) interfere with court review. Losing administrative organs often choose to appeal or file a retrial application rather than comply with a court judgment. Because courts can only review the legality of the administrative behavior, and cannot replace the administrative organs in exercising their powers, courts cannot resolve the substantive disputes.

Implementing the SPC’s Proposed Solutions

This year, the SPC is implementing the solutions proposed by the Administrative Division, with the cooperation of the MOJ. Those solutions involve both inter-institutional efforts and measures specific to the courts. The State Council and the Party’s Office of the Commission for Comprehensive Law-based Governance are also involved in inter-institutional efforts to promote the newly amended Administrative Reconsideration Law, for which the MOJ has issued more specific regulations and policy documents. The underlying goal is to achieve progress in resolving administrative disputes by October.

Inter-institutional measures

More specific measures involving inter-institutional cooperation involving the courts appear to have been finalized in two official meetings between SPC President Zhang Jun and Minister of Justice He Rong. It can only be imagined the hundreds of hours of staff-level meetings that must have preceded the meeting between the two senior officials, that eventuated in agreements on joint measures (not made public).

One of those measures involves joint training sessions at the national and provincial level, the first of which was held by the SPC and MOJ in November, 2023. These sessions have been replicated at the provincial level. These national and provincial sessions have multiple goals. Provincial high courts are working with the provincial departments of justice to improve administrative agency handling of administrative reconsideration cases under the amended Administrative Reconsideration Law and for those departments to better understand the standards by which courts review administrative action.

These joint training sessions and smoother cooperation between the courts, departments of justice, and Party authorities, also have other goals related to resolving administrative disputes. One of those is encouraging mediation of administrative disputes, as the amended Administrative Reconsideration Law provides. The SPC and provincial courts are involved with related measures to promote mediation, such as what is entitled “fault-tolerant ” and self-correcting” mechanisms. One example of the self-correcting mechanism is one promoted by a Guangdong court, sending a “pre-judgment mediation suggestion letter”(判前调解建议) to the defendant agency, suggesting an administrative agency self-correct, for cases where administrative agencies are likely to lose. Additionally, the courts seek to change cadre and institutional performance indicators related to administrative disputes, so that an institution and officials involved are not assessed negatively for agreeing to a mediated solution or change problematic measures. Additionally, the SPC and provincial courts want to incorporate administrative litigation-related performance indicators in governmental and cadre assessments. Those include administrative agencies’ execution of judgments, the frequency of agencies losing cases, the appearance of responsible persons in court to respond to lawsuits, feedback on judicial suggestions, a reduction in the litigation rate of administrative cases per 10,000 people, and the mediation or conciliation of administrative disputes into the government assessment systems, such as safe (Pingan) China and law-based government (法治政府).

2. Improving the administrative litigation system

The SPC’s Administrative Division is promoting several measures to promote better administrative dispute resolution. One aspect is better involving specialist administrative judges at the case filing phase to ensure that only cases that meet statutory standards are accepted. This type of measure is not unusual, as other SPC specialist divisions require the same.

Second, the SPC leadership has agreed to more guidance on administrative cases of the lower courts. They have agreed to the drafting or the amendment of current judicial interpretations on some of the most important administrative issues–the incidental review of normative documents (when a court is reviewing the legality of a specific administrative act), compensation for the expropriation of buildings on state-owned land, compensation for expropriation of collective land, and government information disclosure. Additionally, the SPC is issuing more administrative-related typical cases and appears to have encouraged local high courts to do the same, some with provincial departments of justice.

Concluding Comments

This post provides another discrete example of the unique operation of the SPC and indirectly highlights the skills required of its judges. It has illustrated another aspect of the SPC’s judicial activism, in addition to those about which I wrote in my China Law and Society Review article. Through unpacking official press reports, the careful reader can glimpse some of the understated ways that the Administrative Division of the SPC uses its specialist knowledge in administrative cases to engage in legal oversight of administrative authority outside of the courtroom. Underlying last year’s proposals and this year’s implementation are the skills of designing policies, actions, initiatives, and other decisions that hit the target of being politically correct (post-19th and 20th Party Congresses) while being “problem-oriented” (坚持问题导向) that is, addressing relevant practical issues.

Political-legal committee, Uncategorized, Zhengfa reform

Guide to Finding Supreme People’s Court Materials: Selected Journals of SPC Divisions (1)

July 1, 2024 Supreme People's Court Monitor Leave a comment

Late last year, some followers asked me to describe some of the principal sources for Supreme People’s Court’s (SPC) research. I’ll do this in several posts, as few (particularly outside of China) seem to be aware of the range of publicly available publications of the SPC and its many affiliated entities.

People’s Court Press Bookshop, Beijing, Zhengyi Lu 正义路#10

The first set of publications I’ll introduce are the journals edited and written (at least in part) by the trial divisions and other offices of the SPC. As far as I know, they are only in printed form. That means that those outside of China are not aware of their existence. The readers of these journals are specialists in the particular field. Many, but not all of them are published by the People’s Court Press (人民法院出版社), which has a retail bookshop near the SPC (see the photo above). I have a special fondness for that bookshop because I purchased judicial handbooks in its predecessor over thirty years ago, triggering my interest in the SPC. Editing these publications is one of the (unrecognized) responsibilities of SPC judges and for that reason, the publication schedule seems to vary widely,

Considering the functions of the SPC, these journals should be best classified as a form of lower court guidance. For local judges, participating in editing or having an article included in one of these journals is considered an accomplishment for performance indicator purposes.

The publications flag new issues facing the judiciary in the specialized area involved, typical cases, and sometimes analysis of foreign laws or regulations. Each journal has a slightly different format.

金融法治前沿（Frontier(s) of Financial Law)

This publication should be of interest to those who read Professor Mark Jia’s Special Courts, Global China, and are interested in researching the latest developments concerning China’s financial courts and related financial regulatory issues. The domestic readers of this journal are likely to be judges in the three financial courts or in the financial division of other courts, legal personnel in the financial regulators, interested academics, lawyers focusing on financial law and regulations, as well as in-house counsel in banks and other financial institutions.

Unlike most other journals in this group, this one is a collaboration between the courts and the regulators. The principal members of this collaboration are the SPC’s #2 Civil Division (which focuses on domestic commercial law issues), the legal department of the People’s Bank of China (人民银行条法司), the National Financial Regulatory Administration, related departments of the China Securities Regulatory Commission (CSRC), and the Shanghai, Beijing, and Chengdu-Chongqing Financial Courts. One of the related courts takes responsibility for editing each issue. When I was last in Beijing, I purchased issue #2, dated April, 2024. The court that took responsibility for editing was the Shanghai Financial Court, The content includes:

“frontier issues,” with contributions from all the regulators, on such topics as the application of Chinese financial regulations abroad: coordination between the Insurance Law and Civil Code; and internet finance disputes;
Typical cases;
Discussion of Specialized Questions
Foreign and Hong Kong [and Macau ] finance law issues. Issue #2 includes an article comparing EU and Chinese insurance company recovery and resolution issues, the author of which is an official of a provincial-level bureau of the National Financial Regulatory Administration. The author notes that “the operations of some small and medium-sized insurance are possibly facing difficulties” and the EU and British frameworks provide useful regulatory models for China to consider in designing a recovery and resolution system for insurance companies.

Guidance on the Trial of Duty-Related Crime (职务犯罪审判指导)

This publication should be of interest to those who are interested in legal issues (and the broad range of factual situations) related to bribery and corruption in China. Judging from announcements on WeChat, the readers of this journal appear to include procurators (prosecutors), criminal division judges, criminal defense lawyers, and public security officials.

Although none of the introductory essays have mentioned this, I surmise that this journal was founded because the distinctive issues relating to duty crimes “outgrew” the journal of the five SPC criminal divisions, Reference to Criminal Trial (刑事审判参考). So far, only two issues have been published, #1, published in 2022, and #2, published in the last month or two. The SPC’s #2 Criminal Division edits the journal. The content of issue #1 includes:

Analysis of the application of law (法律适用分析), providing analysis of typical issues in the determination of facts, acceptance of evidence, application of law and the determination of sentencing, providing insights into the thinking and reasoning of judges. This WeChat article provides a quick summary of many of the cases in this section in issues #1 and #2, but without the colorful detail, such as the case involving the lovers Mr. and Ms. Wang, one a deputy department head in a Central state-owned enterprise, the other the assistant to the head of a state-controlled bank in city T (presumably Tianjin).
[Professional ] judges meeting summaries. Many SPC divisions (civil or administrative) have published collections of meeting summaries, but this is the first time I have noticed them being made public on criminal law issues. The first summary involves a 2021 case in which the local Party discipline/supervision authorities investigated the personnel in the courts, prison, and procuracy for issues relating to the crime of bending the law for selfish ends or twisting the law for a favor. That involved a case in which a criminal was sentenced in 1992 to 15 years for intentional homicide, but was released in 1996, after several sentence reductions and but who committed the crime of false accusation in 2019 (no details). The disputed issue was whether the statute of limitations had lapsed.
Difficult issues in practice–two articles, including one by Judge Wang Xiaodong, the now-retired head of the #2 criminal division on issues related to anti-corruption legislation in the New Era (pointing out problems with the substantive and procedural law);
Exchange of experience–this provides a proposed outline (and explanation) for the courts to hear duty crimes in the first instance (人民法院审理职务犯罪案件刑事第一审普通程序庭审提纲（建议稿）(the link has the text of the outline). The explanation mentions it was issued to provide more consistency in the trial of these cases;
Legal regulation (the Supervision Law and Supervision Law Implementing Regulations);
Criminal policy–summary of a policy document (not full text) and press release issued by the Central Commission for Disciplinary Inspection (CCDI)/Supervision Commission, Central Organization Department, Central United Front Department, the Central Political-Legal Commission, the SPC and the Supreme People’s Procuratorate on Opinions on Further Promoting the Investigation of the Giving and Acceptance of Bribes” (the linked article provides the same content). The summary mentions the possible establishment of a joint punishment mechanism and the implementation of a “blacklist” system for bribers.
Theoretical disputes
Practical Research
Selected Typical Judgments (the last three sections had no content in issue #1.)

______________________________________

Many thanks to a knowledgeable person for his perceptive comments on an earlier draft of this blogpost.

Website

Supreme People’s Court and its English language websites

June 10, 2024 Supreme People's Court Monitor Leave a comment

How well do the official English language websites of the Supreme People’s Court (SPC) convey an understanding of the SPC and the Chinese court system? I last addressed this question in 2017, when I assessed the English-language versions of Chinese court websites. Since then, the SPC has established new institutions, with new English-language websites and has issued several policy documents calling for better foreign-language publicity about the SPC itself, the Chinese court system, and lower courts. Among those policy documents are the following:

the 2018 document, about which I wrote at the time, “Opinions of the Supreme People’s Court on Further Deepening Judicial Openness (最高人民法院关于进一步深化司法公开的意见),” which contains language on translating important white papers and improving foreign language websites:

white papers shall be solidly and effectively prepared, produced, released and publicized, and the authority, normalization and readability of white papers shall be effectively enhanced. For white papers having an important impact, publicity and promotion efforts shall be increased, and multilanguage translation work shall be advanced, so as to heighten the dissemination and influence of the white papers of people’s courts….

The construction of foreign language versions of judicial openness platforms such as the websites of the Supreme People’s Court and international commercial courts shall be strengthened, and the function of foreign publicity services shall be enhanced.

the 2020 Guiding Opinions on Services and Guarantees of the People’s Courts for Further Expanding Opening-up to the Outside World contains the following:

Strengthen external publicity on China’s judicial system, judicial culture, judicial reform, and smart court construction, tell [good] stories about the rule of law in China, and spread the voice of the rule of law in China..

The question is, how well has the spirit of these documents been implemented? The SPC is clearly concerned about its image and that of the Chinese courts outside of China because senior SPC officials regularly provide training on the Chinese judicial system for foreign judges, primarily from the Global South. Rather than focus on training, as some others have done, I will look at the three SPC official websites:

the English language version of the SPC’s official website: https://english.court.gov.cn/. Note the Chinese version (https://www.court.gov.cn/index.html) is geoblocked in some parts of the world.
the China International Commercial Court’s English language version: https://cicc.court.gov.cn/html/1/219/index.html
the SPC’s Intellectual Property Court’s English language version: https://ipc.court.gov.cn/en-us/index.html

I am drawing on a paper by the OECD (as well as other websites) that stresses that official websites should be authoritative, comprehensive, fit-for-purpose, and easily navigated. Additionally, I will make comments on translation issues.

1. SPC’s official website

As to whether this site is authoritative, comprehensive, fit-for-purpose, and easily navigated–my quick response is that “it needs improvement.” A significant proportion of the information linked to the landing page of the website is out- of-date. Below are a few of the many problems with the website.

Moving to the “About” tab, the Introduction combines an incomplete description of the SPC with an overview of the court system. The two topics should be split. Moreover, both desperately require a structure chart so that the foreign reader can visualize the internal structure of the SPC and separately, the complicated structure of the Chinese court system.
The section on Resources, which does not clearly signal what is within that tab, is mostly out-of-date. The section on white papers has not been updated in many years. The last white paper posted is the judicial reform white paper (2013-2018), but in fact a judicial reform white paper（2013-2022) was published in 2023 and other SPC white papers with English translations have been published since 2018. It is mystifying why hundreds of hours of professional time have been spent translating SPC white papers into English but they are not made easily available to the foreign audience for whom they are intended. I surmise that those operating the webpage do not coordinate with the drafters of white papers.
The section on Resources has a pull-down menu with buzzwords, but (I surmise) the foreign audience would prefer a glossary defining specialized court terms. Those are often used on the SPC website and in China Daily articles on the courts, but many are unfamiliar to the legal community outside of China.
Instead of a brief summary of the various procedural laws, it would be helpful to provide a flowchart to illustrate how a Chinese court case progresses. A lower court judge specializing in foreign-related matters (or an expert from a university with which the SPC cooperates) could narrate a video explaining court procedure.
The videos on the website now date from the Covid era.
Although the websites of most apex courts worldwide explain how it is possible to visit, the SPC site does not. The SPC might want to explain whether it is possible, with required conditions. It would be interesting for foreign visitors to the website if a video of an SPC court hearing (with English subtitles) could be posted. No English translations of SPC court decisions or rulings are posted on the website, or even guiding or typical cases. The SPC has translated and published some of its guiding and typical cases elsewhere and it could select a few examples from existing resources. By comparison, some civil law apex courts post selected translations of decisions.
The landing page lacks links to all other English-language SPC court websites.
Much of the content on the website is sourced from China Daily. However, the translations that China Daily uses for specialized court terminology are quite often different from those in SPC white papers and from the document （English that the SPC issued on the English translation of Chinese court terms.

My impression is that despite the language of the policy documents quoted above, this website is not anyone’s (or any group’s) primary responsibility. It appears no one has considered its readability. SPC should also reach out to China Daily to harmonize translations of specialized court terminology.

2. China International Commercial Court (CICC)

As to whether this website is authoritative, comprehensive, fit-for-purpose, and easily navigated, it is definitely better than the SPC site, but I am suggesting some improvements, some similar to those for the SPC site:

it would be helpful to provide a flowchart to illustrate how a CICC case progresses. I note that the website has a flowchart for the one-stop system, which could be usefully expanded to cover the entire litigation process at the CICC.
The CICC English website has notices of CICC case hearings. There is no point in publishing these notices in English if it is not possible to attend either in person or online. If the intention is to make CICC hearings open to the English-reading public, procedures should be put in place to make it possible for non-Chinese to attend hearings. Additionally, it would be interesting if videos of CICC case hearings (or even excerpts, with English subtitles) could be posted on either the SPC’s main case hearing website (China Court Trial On Line) or directly on the CICC website.
The last judgments and rulings posted on the website date from almost a year ago. It is unclear whether the CICC has issued any judgments or ruling since then.
Several pull-down menus under Resources have not been updated for extended periods of time: the typical cases have not been updated since 2017, the judicial interpretations, not since 2022, judicial documents , not since 2022, laws and regulations, not since 2023.
Under the tab “What’s New, it isn’t clear what is classified as “official release” vs. news & articles. The translated reports and white papers should have a more prominent place.

It appears that keeping this website current is not anyone’s primary responsibility.

SPC’s Intellectual Property Court

The SPC’s Intellectual Property Court English website appears to be only partially cared for.

It contains usefully presented information, such as lists of local courts with first-instance jurisdiction, but the labeling should be better.
The English website lacks links to the main SPC website and the CICC website. The SPC should be considered the three websites as a whole.
The summaries of the case digests and typical cases have not been updated.
The tab under “scheduled hearing” is empty. It should be either deleted or information provided on upcoming hearings and how an interested person could attend either online or in person.
The introductory materials should be made more readable.

It appears that keeping this website current and readable is not anyone’s primary responsibility.

Concluding Comments

The CICC website is more current than the other two websites, but even it should be kept more current if communication with the world outside of China is a priority. The three websites should be better interconnected. Someone with good English and the ability to put him or herself in the shoes of a foreign reader should take on the responsibility for the websites. Liaising with one or more foreigners to assess readability to the target audience would be useful. For the SPC and IPC, it appears no one has considered the site’s readability or resources that would interest the foreign visitor to the website. Translations of specialized court terminology should be harmonized across the three websites.

alternative dispute resolution, bankruptcy, bankruptcy law, BRI, case database, Case law, Communist Party and the Courts, foreign-related cases, NPC, Role of the Supreme People's Court

What’s New in the 2024 Supreme People’s Court report to the National People’s Congress?

May 28, 2024 Supreme People's Court Monitor Leave a comment

Susan Finder and Zhu Xinyue

I. Overview of the 2023 SPC Work Report

Supreme People’s Court (SPC) Work Reports to the National People’s Congress (NPC) appear to the casual reader as much of a muchness. Like all official work reports, it provides a perfectly positioned overview of the previous year’s accomplishments and a high-level summary of 2024 work priorities.

To the attentive reader, the March 2024 SPC Work Report to the NPC (2024 SPC Work Report or Report) signals something new and different compared to its predecessor reports. This much-delayed blogpost flags only some of what is new. I have italicized many of my comments. (Please contact me if I have not mentioned your area of interest.)

The 2024 SPC Work Report signals that since President Zhang Jun took office, he has vigorously implemented new policies and set new priorities. Accordingly, the Report highlights Zhang Jun era keywords. Conveniently for the reader, they are contained in this single report. A single phrase or sentence in this report links to one or more SPC documents, initiatives, and guiding/typical cases.

As in previous years, local court cases or innovations are considered accomplishments and heralded on local court WeChat accounts. Last year’s report, in contrast, was President Zhou Qiang’s last and served as an official summary of his accomplishments over the previous five years.

Several phrases in the first paragraph of the 2024 Work Report (bolded) signal the new themes in this report:

… by focusing on the working theme of “justice and efficiency”, insisting on active justice, deepening and realizing service for the overall situation and justice for the people, we have made solid progress in promoting the modernization of judicial work聚焦“公正与效率”工作主题，坚持能动司法，做深做实为大局服务、为人民司法，推动审判工作现代化迈出坚实步伐…

As the regular reader of this blog could predict, the word “active ( 能动)” and the watchword or keyword “active justice (能动司法) can be found throughout the report.

Some statistics

The initial section of the 2024 SPC Work Report provides overall statistics from the SPC and the entire court system. The SPC accepted 21,081 cases and concluded 17,855 cases, representing a year-on-year increase of 54.6% and 29.5%, respectively. These numbers reflect the end of the pilot project to reorient the four levels of the Chinese courts and the corresponding increase in retrial applications made to the SPC. It can be anticipated that those numbers will be even higher in the 2024 calendar year. As I have previously written, most of the civil and administrative retrial applications to the SPC are unsuccessful, but it requires SPC judicial time to review them. For Americans, a useful but not entirely appropriate analogy is the petition for certiorari to the Supreme Court.

The report states that courts at all levels accepted 45.574 million cases and concluded 45.268 million cases, with 15.6% and 13.4% yearly increases, respectively. Most cases in Chinese courts are civil/commercial (60.05%) or enforcement cases (29.34%). I would be grateful if a reader could provide comparative statistics (from other jurisdictions) on enforcement. My reaction is that the proportion of enforcement cases is relatively large. See the chart below:

These numbers likely are linked to the poor economy, which from comments by friends in the court system, means an increase in business disputes and business-related crime. These increases are evident despite policies to reduce the number of disputes entering the courts and resolve cases filed before they reach the hearing stage. Those policies include: resolving cases at their source, resolving others through mediation, (now promoted under the keyword/title of Fengqiao Experience), and promoting arbitration. Some judges have remarked privately that it also has to do with the low cost of litigation.

II. Serve the overall situation effectively and ensure high-quality development and high-level security with active justice

The title of this section combines several watchwords/keywords 提法/关键词, robustly signaling that President Zhang Jun led the drafting of this report.

The ten subsections in this section must be understood as ones that were priority areas for the Chinese courts in 2023. I have selected only a few of the subsections out of the ten:

Assisting the Strengthening of the Construction of the Financial Rule of Law

This subsection in the 2024 SPC Work Report is positioned immediately after the sections on safeguarding national security and social stability, promoting public security governance, and fighting corruption, reflecting its priorities in the SPC’s work. Although both the 2023 and 2024 SPC Work Reports address judicial support for finance, the 2024 SPC Work Report emphasizes strict regulatory enforcement in the banking and securities sectors, both subsumed under the category“financial trials.”

The Chinese courts concluded 3.032 million financial cases, an 8% year-on-year increase, and heard 861 money-laundering cases, involving 1,019 individuals, with increases of 23.5% and 22.2%, respectively. The money-laundering cases are likely linked to the ongoing multi-institutional anti-money-laundering campaign of which the SPC is a participating institution. The Report stresses the importance of “compliance in financial activities, strict punishment for senior management illegalities (高管违法要严罚), and holding intermediaries accountable for negligence.” The report illustrated the last two policies by mentioning a securities false statement case in which senior managers were found liable and an intermediary bore 20% joint and several liability. Given those signals, it will not be surprising that the Shanghai, Beijing, and Chengdu-Chongqing Financial Courts have made analogous judgments in 2023 and 2024. The allocation of liability in these cases is a current issue. The Report also mentioned two financial law-related judicial suggestions that the SPC issued, rarely, if ever mentioned in the past, linked to last year’s judicial interpretation on judicial suggestions/advice (司法建议).

Promoting the Development and Growth of the Private Economy in Accordance with Law

This subsection, new in comparison with last year’s report, links to the July 2023 Central Committee and State Council document on promoting the private economy, focusing on measures contained in a September 2023 policy document and typical cases. It includes a paragraph discussing the measures in that policy document and highlighting that the courts heard 42 cases of property rights-related wrongful convictions. The SPC issued 12 typical retrial cases (civil, criminal, and administrative) involving the rights of private enterprises and private entrepreneurs. Cases of bribery and embezzlement involving non-state employees amounted to 6,779, involving 8,124 individuals, with a year-on-year increase of 26.6%. Although the SPC intends to enhance legal certainty, boosting business confidence and stabilizing expectations, other sources report on profit-oriented law enforcement at the local level, often leading to the jailing of private entrepreneurs and the confiscation of their assets.

III Safeguarding and Enhancing People’s Livelihood through Active Justice

The section title above replaces “The Path of Judicial Services for the People With Chinese Characteristics” in the 2023 report.

New themes introduced include “Supporting Guaranteed Delivery of Commercial Housing and Stable Livelihoods,” to deal with issues related to the ongoing crisis involving real estate developers.

Safeguarding Housing Rights: The financial collapse of many real estate developers has meant disputes along the real estate development supply chain. A 2023 SPC judicial interpretation prioritizes homebuyer rights, clarifying the order of claim repayment in disputes over unsuccessful delivery of sold commercial housing.
Strengthening Housing Pre-sale Supervision: The SPC issued Judicial Suggestion No. 1 to promote contract online signing and pre-registration, enhance pre-sale funds supervision for commercial housing, strengthen pre-sale information inquiries, and warn about home buying risks. [These suggestions do not seem to have been made public.]
Restructuring the Financial Chain of Homebuying: In response to a financial chain rupture of a private real estate enterprise in Hunan Province, a court-facilitated restructuring revitalized 16.8 billion yuan, resolving housing delivery issues for 16,000 households by facilitating the merger and restructuring of 13 related companies. This type of case was mentioned in a typical case that the SPC issued last year.

IV. Promoting National and Social Governance through Active Justice Which Practically Grasps the Front End and Treats the Disease Before it’s too Late

As could be anticipated, this section emphasizes judicial suggestions, among other matters.

Deepening the Effective Use of Judicial Suggestions: The Report emphasized judicial suggestions that fill legal gaps and governance deficiencies, mentioning the regulations on comprehensive governance-oriented judicial suggestions, discussed here. This is yet another initiative emphasized by President Zhang Jun. The SPC led with Judicial Suggestions No. 1 to No. 5, and lower courts issued 9,429 suggestions.

V. Ensuring Judicial Justice through Actively Performing Duties

This section underscores Party leadership within the judicial system, with the primacy of the Party’s political construction. It promotes “strengthening Party nature, emphasizing practical work, and achieving new accomplishments” (“强党性、重实践、建新功”) through solid “learning of ideology” (扎扎实实“学思想”) and outlines the result of “deepening investigation and research and solidifying thematic education”( 大兴调查研究，让主题教育走深走实) and implementing “investigation promoting case handling, and case handling also being investigation” (“调研促进办案、办案也是调研”).

The Report indirectly addresses public concerns about the China Judgements Online database by emphasizing efforts to improve transparency in judicial proceedings (裁判文书上网) and the “People’s Court Case Database”, such as posting 2.165 million documents online in 2023, with a year-on-year increase of 111.6%, covering a wider range of trial areas and case types, with the SPC and higher courts posting 35,000 documents, a 370% increase. The 2024 Report details measures for the uniform application of legal standards, including 15 judicial interpretations, 13 guiding cases, and 610 typical cases. As discussed here, the “People’s Court Case Database” contains SPC-approved cases, and judges must search this database. “Legal Response Network (法答网)” (analysis to come) launched on July 1, 2023, facilitates communication among courts and has received 280,000 legal application inquiries, answering 230,000. Insights from this platform have led to the revision or drafting of 27 judicial interpretations and regulatory documents.

More specific selected statistics

Bankruptcy cases: 29,000 bankruptcy cases were concluded, marking a year-on-year increase of 68.8%. Additionally, 1,485 bankruptcy restructuring and settlement cases were concluded. Local court white papers on bankruptcy (link is to the Shanghai court white paper) are an undervalued source of insights on more specific bankruptcy trends, such as the type of companies going bankrupt and the length the companies have been in business. One law firm report on bankruptcy flagged missingness on the SPC’s bankruptcy platform and the rate at which local courts accepted bankruptcy cases.

Foreign-related civil and commercial cases: 24,000 foreign-related civil and commercial cases and 16,000 maritime cases were concluded, representing annual increases of 3.6% and 5.3%. The average trial time decreases by nearly 10 days. 16,000 cases of judicial review of commercial arbitration were concluded, reflecting a 5% year-on-year increase. During this period, 552 arbitration awards were revoked, remaining stable year-on-year, while 69 foreign arbitration awards were recognized and enforced, representing a 16.9% increase. This section mentions a Shanghai Financial Court case in which the court stopped payment on a demand guarantee, although in fact most of such lawsuits are unsuccessful.

Deepening the diversification of dispute resolution: Since 2013, court cases have increased by an average annual rate of 13%, doubling over 10 years. Judges handled an average of 357 cases annually in 2023, up from 187 in 2017. The courts successfully mediated 11.998 million disputes through people’s mediation, administrative mediation, and industry-specific mediation organizations/institutions, representing a 32% increase year-on-year and accounting for 40.2% of the total civil and administrative cases filed.

Fully leveraging the role of scientific evaluation as a “command baton”: The annual case closure rate was adjusted to the closure rate within the trial period, which reached 97.7% last year, a 2 percentage point increase. A special case cleanup initiative concluded 1,914 lawsuits pending for over three years and 2,455 pending cases involving 6,909 individuals, accounting for 81.3% and 86.8%, respectively, of the total cases. The title of this section is significant. Judges at all levels of courts feel that “command baton.”

VI. 2024 Work Targets

As readers of this blog could anticipate, the 2024 work arrangements of the courts are focused on the modernization of judicial work, active justice, and other 2023 top keywords. The work arrangements listed here are more general than the types of work plans mentioned in my article. They are intended to signal to the NPC and general public the overall direction of the SPC’s work in the current year. For the most part, the arrangements are expressed in phrases or single sentences.

Criminal cases: Implement the holistic national security concept, severely punish crimes threatening national security and public safety, promote the normalization of crackdowns on gangs and evil [sometimes used against local entrepreneurs], and severely crack down on telecommunications network fraud, cross-border gambling, and corruption, with harsher punishment for bribery crimes. All if not most of these crimes were flagged during January’s annual Central Political-Legal Work Conference.

Intellectual property and digital rights: Strictly protect intellectual property rights and promote their transformation and application, and serve the development of new productive forces. Justice Tao Kaiyuan published an article in People’s Daily in late March explicating the link between the development of new productive forces and the improvement of intellectual property rights protection. Strengthen personal information protection and improve digital rights protection rules. The latter two presumably imply inter-institutional cooperation.

Bankruptcy and Economic Development: Increase work on hearing bankruptcy cases and give full play to “active rescue” and “timely liquidation”. We can expect to see the courts accepting more bankruptcy cases this year. Deepen the compliance reform for companies involved in criminal cases and continue to optimize the growth of the private economy. Properly handle real estate development and affordable housing contract disputes, and actively serve the new model of real estate development (recent Party/state initiative). Strengthen hearing and enforcement work in “agriculture, rural areas and farmers” (“三农”) to support rural revitalization. The latter is consistent with previous SPC policy.

Ecological and Social Justice: Serve ecological civilization [the environment] and green and low-carbon development in accordance with the law. Strengthen the protection of the rights of women, children, the elderly, disabled people, etc. (It is unclear whether that will include a better legal infrastructure for sexual harassment cases.) Strengthen administrative trials, supervise and support administrative agencies to administer according to law and strictly enforce the law. Promote judicial advice/suggestions and national and social governance.

Court administration. Improve the quality and efficiency of court hearings and accelerate the modernization of trial work. Deepen the comprehensive supporting reform of the judicial system and formulate the “Sixth Five-Year Plan” reform outline for the people’s courts. [It is unclear when it will be issued] Comprehensively and accurately implement the judicial responsibility/accountability system (see related documents here), and further implement “supervision/”review” system (阅核制) by senior court leaders. That system is one of President Zhang Jun’s initiatives. Improve the hierarchical selection system for judges and promote the coordinated use of posts and establishments across administrative regions. This seems to be a reform to share judicial headcount. Deepen the “three-in-one” reform of criminal, civil, and administrative cases in intellectual property, environmental resources, and juvenile matters.

Foreign-related and Grassroots Courts: Enhance the foreign-related judicial hearing system (consistent with my observations about the importance of foreign-related matters) and efficiency. Do a good job of “replying to letters and visits“, and strengthen the management of the source of letters and visits.

Grassroots Courts: Practice the “Fengqiao Experience” in the new era, promote resolving cases at source (诉源治理), provide practical guidance for mediation, and vigorously create “Fengqiao Style People’s Tribunals.” The SPC has issued six groups of related typical cases and the Chinese court media has begun to report on the creation of such people’s tribunals. The Report mentions strengthening relatively weak grassroots courts (相对薄弱基层法院), another initiative by President Zhang Jun. Under this initiative (full text of measures unavailable), 106 relatively weak local courts are targeted for additional support. The SPC has set quotas for each province, as well as a goal of removal from the list within one to three years.

Supervision, Guidance and Digital Courts: Strengthen supervision and guidance (stressed by President Zhang Jun, as mentioned above), deepen trial management, use the “People’s Courts Case Database” and improve the “Legal Response Network 法答网”. [More on this in a later blogpost, but it appears to be an updated version of letters to the 人民司法 (People’s Justice) mailbox)]. Develop a nationwide court “one network” and digital courts (数字法院) to boost efficiency. Note that the term “smart courts” (智慧法院), the subject of books, articles, and PhD dissertations in Chinese and English, appears to have been dropped.

Court Supervision and Integrity: The final section for the most part repeats principles seen previously, such as improving political, professional, and professional ethical qualities. It flags improving the training of professional trial talents in foreign-related, intellectual property, and other fields and stresses the use of personnel assessment of all court staff.

Finally, I conclude with this extended quotation from the Report:

the new development of the work of the people’s courts in the new era and new journey is fundamentally due to the leadership of General Secretary Xi Jinping and the scientific guidance of Xi Jinping Thought on Socialism with Chinese Characteristics for a New Era. It has benefited from the effective supervision of the National People’s Congress and its Standing Committee, the strong support of the State Council, the democratic supervision of the National Committee of the Chinese People’s Political Consultative Conference, the supervision of the National Supervision Commission and the Supreme People’s Procuratorate, the democratic supervision and support of various democratic parties, the Federation of Industry and Commerce, people’s organizations and non-party personages, and the enthusiastic concern, support and help of local party and government organs at all levels, deputies to the National People’s Congress, members of the National Committee of the Chinese People’s Political Consultative Conference, all sectors of society and the general public.

________________________________________________________

Many thanks to an anonymous peer reviewer!

References to “I, me or mine” are to Susan Finder rather than Zhu Xinyue. Finally, I’d like to express my appreciation to followers of this blog for their patience.

case database, Case law

The Supreme People’s Court’s New Case Database

March 5, 2024 Supreme People's Court Monitor 1 Comment

Screenshot of the home page of the case database

On February 27, 2024, the Supreme People’s Court (SPC) held a press conference to announce the new SPC case database 人民法院案例库 (People’s Courts Case Database). As of this writing, fewer than 4000 cases have been incorporated. This new case database provides a collection of edited cases (案例) rather than original judgments, rulings, or other judicial documents as collected in China Judgements Online (裁判文书网). I summarize below the process by which edited cases are selected for inclusion in the People’s Courts Case Database.

The new People’s Courts Case Database is accessible from the SPC’s homepage, which is, the last time I checked, not accessible for those with a US IP address. I trust it can be accessed directly through the above link. It is intended to be accessible outside of China and appears to be hosted by the same platform as China Judgements Online. Similar to the China Judgements Online Platform, it requires the user to register and provide personal information. Even after such information is provided, the login process is not smooth, for those without a mainland China identification card.

This blogpost will address the selection process, the apparent rationale for establishing this case database, and whether it imposes new requirements on Chinese judges. It will flag matters that this case database does not yet address.

Why this New Case Database?

Press conference announcing launch of the case database, including SPC VP Yang, head & deputy head of Research Office, & head of the All China Lawyers Association

The large number of model /typical/exemplary cases that the SPC has issued in the past year makes it clear that President Zhang Jun favors those to guide the lower courts, rather than large numbers of policy documents. So the decision for the Chinese Courts Case Database to serve as a database for various types of edited and especially selected cases, such as guiding cases, typical cases, and other types of cases selected for their persuasive or exemplary value is consistent with the views of President Zhang Jun on the use of cases. It appears from the press conference announcing the Chinese Courts Case Database that launching the database timely was the primary responsibility of the Research Office, also involving other divisions and offices.

The SPC has described it as a new public legal service product (公共法律服务产品), launched before the Two Sessions. It is yet another product of last year’s thematic education campaign (主题教育). As described in my article published in US Asia Law Institute’s Perspectives, during the campaign, President Zhang required SPC divisions, offices, circuit courts, and affiliated institutions to undertake research focusing on current significant problems or issues in their area of law or responsibility and write reports proposing practical solutions. One of the problems brought to the surface during that campaign was that [edited] cases issued for guidance (案例指导) were not standardized, timely, comprehensive, or consistent. Followers of this blog would have known that.

Although the SPC describes the new database as providing more authoritative, standardized, and comprehensive guidance, with such a small number of cases in the database and such a large number of issues that face Chinese courts daily, as a practical matter it will not be a “one-stop platform” for Chinese judges or lawyers. The SPC requires judges to check it when undertaking a similar case search (see my former student’s description of the process).

Case Selection Process

The procedure by which cases are incorporated into the Chinese Courts Case Database is analogous, but not identical, to the process by which guiding cases and typical cases are selected. The details of the process for selecting typical [foreign-related] cases contained in my forthcoming article are consistent with the process described in one of the press releases accompanying the launch of the Chinese Courts Case Database. It is a bureaucratic process involving multiple levels of review.

Depending upon the entity that has submitted the case, the proposed edited cases are reviewed by members of the relevant operational division of the SPC. The entire division (sitting as the professional judges meeting) reviews and discusses a group of cases for proper application of law, reasoning, and ethical orientation (value orientation 价值导向). If the judges in the operational division consider that certain cases are suitable for inclusion in the database, they will be reported to the relevant SPC leader for approval. I surmise that an explanatory report accompanies the selected cases. The press release states that the cases are thereafter sent to the Research Office for review. During the review process, the Research Office reviews the format and substance of the selected cases, involving experts in the review. As part of the formatting process, each case is labeled with a special number (see below). I surmise the initial approval by the SPC leader is subject to final clearance by the Research Office. Otherwise, the Research Office could be in the awkward position of negating a decision by a leader. This procedure highlights the unique role of the Research Office at the SPC.

Case from Beijing Financial Court incorporated into database

This process appears to involve more reviews than typical cases, but fewer approvals than guiding cases. Therefore cases incorporated in the database should be considered highly authoritative and therefore highly persuasive. From the number of WeChat articles on local court websites announcing the good news that one or more of their cases had been incorporated into the database, it must useful for court key performance indicators (KPIs).

Unresolved Issues for the Case Database

Annually, the SPC issues many reference (typical) cases, as selected by various divisions of the SPC and in connection with a variety of events. My 2022 blogpost lists about ten different types of regularly issued typical cases. It is clear that guiding cases are the most persuasive and these People’s Court Case Database cases are highly persuasive, but that still leaves many SPC typical cases that need sorting. One friend knowledgeable about the selection process for typical (model) and guiding cases, particularly in the intellectual property (IP) field, classified SPC Gazette cases as ranking second in prestige, behind guiding cases. The friend described the top ten and the fifty typical IP cases issued annually as “the Oscars.” The friend viewed the ten top cases as “best actors and actresses,” and the fifty typical ones as the “best supporting roles.” The friend noted that the digests (要旨) issued by the SPC IP Court are not as influential as guiding cases. My understanding is that lower court IP judges would consider them when deciding cases because they are statements of the view of the SPC IP Court on that particular issue.

A second issue for all these typical cases is that there does not seem to be a mechanism for reviewing previously issued typical cases to determine whether the case is still valid. The SPC published a four-part five-volume set of typical cases（最高人民法院发布的典型案例汇编 2009-2021), pictured below. These volumes only include cases published in the SPC Gazette and the SPC’s official website, therefore not including the cases in the journals published by the operational divisions or the National Judges College. It is unclear whether the SPC plans to incorporate the journal cases into the People’s Courts Case Database. That would require a significant amount of personnel time to review those prior typical cases for timeliness and consistency.

Third, the approval process described above will take some time, which means that cutting-edge cases will be found in China Judgments Online rather than this database.

So the database has not yet resolved the problems identified last year but has provided an authoritative database to check.

_______________________________________________

Many thanks to an anonymous peer reviewer for reviewing several drafts of this blogpost.

arbitration, BRI, CICC, diversified dispute resolution, foreign courts, international commercial court, judicial interpretations

The Supreme People’s Court’s ongoing contribution to developing foreign-related rule of law (涉外法治)

February 14, 2024 Supreme People's Court Monitor 1 Comment

Press conference announcing the judicial interpretation on the application of international treaties & international practices

What is the Supreme People’s Court’s (SPC’s) contribution to developing the national strategy of “foreign-related rule of law (涉外法治)”? My forthcoming article in China Law & Society Review sets out a broad framework for understanding what it is, but inevitably, like all academic works, the specific details will be out of date as soon as it is published. It can only be current as of the last time I was able to make substantial amendments, that is, in November 2023. The slow process of finalizing the article (particularly the references) meant that I could incorporate references to the Tenth Politburo Study Session on Foreign-Related Rule of Law. Since then, the SPC has continued to contribute to the national strategy of developing foreign-related rule of law. This blogpost flags those recent developments without duplicating what others have already written. The recent developments include the SPC issuing the following since October, 2023:

judicial interpretations;
typical cases; and
other judicial normative documents.

Judicial Interpretations

A September 2023 press release issued along with the fourth group of Belt & Road typical cases (为高质量共建“一带一路”提供有力司法服务和保障——最高人民法院民四庭负责人就发布第四批涉“一带一路”建设典型案例相关问题答记者问) flagged all of these judicial interpretations,. They were described in this October 2023 blogpost as “forthcoming attractions.”

December 2023, Decision of the Supreme People’s Court to Amend the Provisions of the Supreme People’s Court on Several Issues Concerning the Establishment of International Commercial Courts(2023). This LinkedIn post explains the significance of the amendments–primarily to update China International Commercial Court rules to reflect the amended Civil Procedure Law and new provisions on the finding of foreign law in the second interpretation on the application of law to foreign-related civil relations.
December 2023, Interpretation by the Supreme People’s Court of Several Issues Concerning the Application of International
Treaties and International Practices in the Trial of Foreign-Related Civil and Commercial Cases. The SPC held a press conference (see the photo above) and also issued a related press release (translation here) as well as typical cases (see below). Justice Wang Shumei (previously the head of the #4 Civil Division) highlighted that this interpretation was needed because the previous provisions on the application of international treaties in the General Principles of Civil Law were abolished when the Civil Code was promulgated, leaving the rules for the application of international treaties unclear. This LinkedIn post summarizes its content.
November 2023 Interpretation of the Supreme People’s Court on Several Issues Concerning the Application of the Law of the
People’s Republic of China on the Application of Laws to Foreign-Related Civil Relations (II). As this LinkedIn post details, the focus of the interpretation is on the ascertainment of foreign law. How to ascertain foreign law has been an outstanding issue, as reflected in articles by SPC judges and several judicial policy documents over the past 10 years. A paper (Chinese original here) written by CICC expert Xiao Yongping for the 2022 China International Commercial Court appointment ceremony, reviewing cases involving the ascertainment of foreign law flags some of the problems: “a lack of rules over proof by professional institutions in China has spawned a range of drawbacks, including the vague criteria for determining the admissibility of the opinions of professional institutions, the omission of analysis and reasoning of proof opinions in judgments, and the unclear rules over which party should bear the fees for proof.”
The interpretation specifies that the burden is on the parties to provide the content of the chosen law if they have a choice-of-law agreement, but it falls to the court to ascertain foreign law if the parties lack a choice-of-law agreement. Other provisions are intended to change the practice of Chinese courts deciding that they cannot ascertain foreign law and it is preferable to apply Chinese law instead. Please see this Library of Congress article for further details.

typical cases

January, 2024, ten typical cases relating to the judicial review of arbitration 仲裁司法审查典型案例 These typical (model/exemplary) cases have attracted commentary from practitioners, see here (but note that the author of the article had not noticed that the end 2022 Conference Summary [also translated as “Meeting Minutes”] of the National Symposium on Foreign-Related Commercial and Maritime Trial Work (Foreign-Related Commercial & Maritime Law Conference Summary had clarified that arbitral awards made by overseas arbitration institutions arbitrations seated in Mainland China are regarded as foreign-related arbitral awards (rather than foreign awards), as had a previous typical case. As to why the SPC is issuing multiple typical cases concerning the same issue, repetition means that the issue is important. Other commentary that appeared in People’s Court Daily was republished on the China International Commercial Court website (Chinese version).
December 2023, twelve typical cases relating to foreign-related civil and commercial cases applying international treaties and international practices. According to the related press release mentioned above, we can expect more typical cases that apply international treaties and international practices, and standardize adjudication standards. Authoritative Chinese commentary on these cases can be found on the CICC website. When I can identify useful English language commentary, I will update this post.

Typical cases are a type of SPC soft law. They are a tool by which the SPC seeks to unify the judgment (adjudication) standards of the Chinese courts. They are a means by which the SPC seeks to harmonize the decisions of the Chinese courts to be consistent with SPC policy (or said another way, strengthen the firm guiding hand of the SPC). That guidance can relate to substantive or procedural issues, because the issues that come before the Chinese courts far outpace the infrastructure of existing law, including judicial interpretations. The number of typical cases relating to arbitration matters therefore also signals that China’s Arbitration Law is insufficient for the current needs of the Chinese courts. Additionally, given the role of the SPC in social governance, typical cases also enable the SPC to do its part to further the latest Party policy, in this instance, the development (construction) of foreign-related rule of law. As highlighted several times on this blog, SPC President Zhang Jun appears to favor using typical cases to guide the lower courts and I expect this website (currently down) is the one that will be repurposed to make various types of typical cases more easily available.

Concluding Comments

As flagged in several press conferences or press releases issued in recent months, the issuance of these judicial interpretations, typical cases, and other judicial normative documents is linked to the importance the Party leadership places on developing foreign-related rule of law, as illustrated by the November 2023 Politburo study session. As shown by my 1993 article on the SPC, foreign-related matters were historically at the margins of its work. One old-timer described the #4 Civil Division (the division handling foreign-related civil and commercial matters) to me as “小众“–niche–with a relatively small number of judges and responsible for a more limited range of issues, in comparison to the other SPC civil divisions.

These recent SPC documents taken together, provide insights into the important role of the SPC in developing Chinese law, in this case, foreign-related law–because many important provisions are missing from National People’s Congress (+ its Standing Committee) legislation, it falls to the SPC, through judicial interpretations, typical cases, and documents such as Meeting Minutes/Conference Summaries to fill in the gaps that enable the courts and the Chinese legal system to operate. It should be clear that the SPC is providing some of the basic building blocks for the construction (development) of foreign-related rule of law.
Happy Year of the Dragon to all readers and followers!

Communist Party and the Courts, Court Operations

Supreme People’s Court’s Top Keywords in 2023 and Their Impact in 2024

January 16, 2024 Supreme People's Court Monitor Leave a comment

In December, 2023, the Supreme People’s Court (SPC)’s glossy magazine China Trial (中国审判) featured the top 10 keywords of the people’s courts for 2023 (人民法院十大关键词). Provincial high court WeChat public accounts republished the article in a way that enabled those courts to incorporate examples from courts under their jurisdiction and to link to further commentary on the Xuexi Qiangguo (学习强国) platform. As the followers of this blog could anticipate, each keyword is illustrated with Xi Jinping quotations, important speeches by SPC President Zhang Jun, illustrations of model court practice, and commentary by leading academics. “For the avoidance of doubt,” the invited commentary by leading academics is not meant as scholarly analysis. The article itself and the invited commentary are worded in New Era official discourse. The intent is to weave these phrases into a summary of 2023 and forward-looking SPC policy. These keywords (or at least their spirit) are found in the report on the recently concluded National Conference of Higher Court Presidents. That report (2024 National Court Presidents Conference report) focuses on 2024 goals.

Who is the audience for this China Trial article? I surmise it is those in political and court leadership positions. Line judges are more pragmatic. They have learned the significance of these keywords through Party meetings but are more focused on their cases.

I. Take a Political View and Handle Matters According to the Rule of Law (从政治上看从法治上办）

The readers of this blog could anticipate a version of this phrase would rank first. Dean Xu Shenjian of the China University of Political Science and Law explained what this means. (Among Dean Xu’s many writings is a forthcoming book with one of my colleagues at the Peking University School of Transnational Law on legal ethics in Greater China.)

Dean Xu said that this phrase has become the core concept of the work of the courts. This concept not only emphasizes the unity of political responsibility and legal responsibility but also highlights the important position of judicial work within the framework of the comprehensive rule of law. This requires that the court’s work be integrated into the country’s major political principles and social governance. Court work is professional work with a strong political nature, and it is also political work with a strong professional nature. He said that courts should strive to organically unify political thinking and adhere to the rule of law in specific judicial practices.

Comment: This principle has been stressed by SPC President Zhang Jun since he assumed office and post 19th Party Congress, by former SPC President Zhou Qiang. This principle can be expected to be incorporated into the forthcoming sixth five-year court reform plan and underlies court practice at all levels. This blog has previously mentioned this (see here, here, and here, for example) and my forthcoming article in China Law & Society Review will also discuss this. It is emphasized in the 2024 National Court Presidents Conference report.

II. Active Justice (能动司法）

The second-ranking keyword is “active justice.” Professor Zhang Qi, retired Peking University law professor of legal theory, was invited to explain this phrase. He said active justice means that in the New Era, courts will implement the central government’s decision-making and deployment, based on its judicial functions, transform judicial concepts, adhere to a proactive judiciary that actively assumes its responsibilities, and provide powerful judicial services and guarantees for Chinese-style modernization.

Comment: I flagged this keyword in several blogposts in 2023 and my forthcoming article also discusses this. As Judge Liu Shude recently gave a long presentation on active justice and reasoning in judicial documents, I surmise that this phrase will be further developed during President Zhang Jun’s tenure. This principle can be expected to be incorporated into the forthcoming SPC report to the National People’s Congress and in the new judicial reform outline plan. It is mentioned several times in the 2024 National Court Presidents Conference report.

III. Grasp the Front End and Engage in Preventative Treatment (“抓前端、治未病”)

According to the explanation of this keyword, the core concept is that the rule of law must not only focus on the back end to treat existing diseases but also focus on the front end to engage in preventative treament…” To solve this problem, the people’s courts must actively integrate into national and social governance, insist on handling one case and resolving a group.

Comment: As several blogposts have identified, these principles have been stressed by SPC President Zhang Jun, particularly using typical cases to resolve multiple cases. Post-19th Party Congress, former SPC President Zhou Qiang stressed these as well, as they are part of Xi Jinping legal thought.

IV. Win-win (both parties winning), Win-win (multiple parties winning), Winning Together （双赢多赢共赢）

This blog has not used this phrase, although it has identified aspects of linked policies. Professor Wang Kai of Beihang University Law School explained this as follows. Under the unified leadership of the Party, administrative and judicial powers are designed to protect the fundamental interests of the people. Therefore, in judicial work, the judiciary must form a positive and working relationship with administrative organs, jointly promote strict law enforcement, and fair administration of justice.

Comment: Cooperation and harmonization of approaches between the judiciary and administrative authorities have been stressed since 2022, if not earlier. The fact that it is included as a top keyword signals that this will be further developed. Although I haven’t written about this yet, I have pointed this trend to those working in specific regulatory areas, such as intellectual property law (see this joint policy document issued by the SPC and the Intellectual Property Administration and the 2022 Opinions on Providing Judicial Services and Safeguards for Accelerating the Construction of a Unified National Market.

V. If I were suing (如我在诉)

The core of this phrase is to encourage judges to put themselves in the shoes of litigants. The comments of Professor Xiong Qiuhong of the China University of Political Science and Law (previously seconded to the SPC’s judicial reform office, and almost 20 years ago, a Yale Law School visiting scholar), provided further analysis that provides a glimpse into official assessments of public perceptions about the judicial system. She said that “litigants often file lawsuits out of necessity and sometimes have doubts about whether judicial officers can administer justice impartially. If judicial personnel can put themselves in others’ shoes and engage in judicial trials with the concept of “if I am suing”, listen carefully to the demands of the parties, take their views seriously, and patiently watch every word and deed of the parties so that the parties can feel the process of participating in the litigation. When they feel that they are taken seriously and that their active participation can effectively affect the outcome of litigation, they can reduce or even eliminate the doubts of the parties and build trust in judicial fairness.”

Comment: Professor Xiong’s comments provide a semi-official assessment of public perceptions of the judiciary. This phrase is mentioned in the 2024 National Court Presidents Conference report.

VI Judicial Administration （审判管理）

Professor Xiong Yuemin (熊跃敏) of Beijing Normal University’s law school focused on the revision of the judicial performance indicator system when explaining the significance of this phrase. She said that establishing an improved set of trial management indicator systems that are consistent with requirements for the people’s courts to thoroughly implement Xi Jinping’s thought on the rule of law and is important to promote the modernization of trial work through the modernization of trial management.

Comment: I had flagged this in my NYU article. When I raised this reform with a well-known scholar of China’s court system, he responded with a link to Goodhart’s Law: “when a measure becomes a target, it ceases to be a good measure.” As explained in this article: “In other words, when we use a measure to reward performance, we provide an incentive to manipulate the measure in order to receive the reward. This can sometimes result in actions that actually reduce the effectiveness of the measured system while paradoxically improving the measurement of system performance.”

This phrase is further expanded in the 2024 National Court Presidents Conference report to incorporate both political and substantive aspects.

VII. All Letters (and visits) Must Be Answered (有信必复）

Based on discussions with judges in local courts (and research), letters and visits work has become much more important in the local courts, with the stress on resolving the underlying issue (linking to the ongoing theme of “resolving disputes at source” (see keyword #3) and the greater importance of letters and visits (Xinfang) work nationally. The experience of some friends (and former students) who are working or have worked in local courts is that petitioners can be very strategic in how they petition, with keen sensibilities about extracting the maximum benefits from petitioning.

The spirit of this phrase can be found in the 2024 National Court Presidents Conference report.

VIII One Network一张网

The explanation of “one network” links to a national conference at the National Judges College, at which President Zhang Jun spoke. The intent appears to create a unified network for the courts, planned and implemented by the SPC, which will enable unified data collection. One of the provincial court presidents revealed in national court media what has been said in scholarship, that digitalization of the courts is insufficiently coordinated, leading to inconsistencies, duplication, and wasted resources.

This section mentioned that the SPC will proactively strengthen cooperation with other law enforcement and judicial agencies to open up “data islands” and achieve information sharing.

Comment: It is unclear what the single network to which President Zhang Jun referred in that speech incorporates a single network for judicial decisions much discussed in both the domestic and international press. The lack of coordination and wasted resources in the digitalization of the courts is not surprising. I would be surprised if the increased data sharing with other institutions goes smoothly, based on the SPC’s experience in linking its system with the Ministry of Justice for dealing with international judicial assistance matters.

The 2024 National Court Presidents Conference report contains a summary of the latest policy on China Judgments Online, further developed in this notice:

持续深化司法公开，加大裁判文书上网力度，妥善解决文书网使用效果不佳等问题，平衡好文书公开与当事人合法权利、隐私保护之间的关系，加强人民法院案例库建设，更优更实为司法审判优质高效服务，为社会公众学法、专家学者科研、律师办案服务。Continue to deepen judicial disclosure, increase efforts to make judgment documents online, properly solve problems such as poor usability of the Judgments website, balance the relationship between disclosing court documents and the parties’ legal rights and privacy protection, strengthen the construction of the people’s court case database, and make it better and more practical to provide high-quality and efficient services for judicial trials, as well as legal services for the public, scientific research by experts and scholars, and case handling by lawyers.

IX Line Guidance (条线指导)

The explanation of this phrase links to two of the important SPC events in 2023–the conclusion of the pilot on the reform of the four levels of the Chinese courts and a related notice specifying the types of cases that lower courts should transfer to higher-level courts and a new system of guidance by court leaders that SPC President Zhang Jun unveiled in early September 2023, entitled “review (阅核)” piloted in some courts. (For those who understand Chinese, I recommend the four-minute video of President Zhang embedded in this WeChat article, in which he explains the difference between review and approval (审批). For those who do not, a brief glimpse of the video may reveal some differences between Chinese official judgecraft and that elsewhere in the world.)

Comment: Both events are linked to evolving policies under President Zhang Jun promoting guidance by higher-level courts of lower-level courts and guidance by senior judges of ordinary judges. One of the important reforms of the 4th Five-Year Judicial Reform Plan Outline was increasing the scope of judicial autonomy, while significantly increasing judicial accountability/responsibility. The fact that a senior academic published an article in People’s Court Daily to promote the review system in late November 2023 may signal a repurposed approval system for judicial decisions, in the forthcoming Sixth Five-Year Judicial Reform Plan Outline.

Comment: Although I have not previously written about this, I have been monitoring the development of the review system since that WeChat post was made public. This phrase is developed in one sentence in the 2024 National Court Presidents Conference report and is characterized as a policy requirement of the SPC (最高法关于阅核工作的意见要求), focusing on the supervisory responsibilities of senior judges.

X. Investigation and Research 调查研究

Investigation and research is a phrase that has its roots in Mao Zedong thought, but which Xi Jinping has further developed (see this webpage with his important remarks). As explained in this section, it is not only about deeply understanding problems but rather coming up with “prescriptions” to solve them, therefore linking with keyword #3.

Comment: I have an extended discussion of this in my NYU article.

Concluding comments

These ten keywords provide signals concerning the reshaping of the Chinese judiciary under the leadership of President Zhang Jun. It can be expected that the forthcoming sixth five-year judicial reform plan will reflect these keywords and their related themes. As can be seen, for the most part, they are incorporated into the goals for 2024. From these ten keywords and the 2024 National Court Presidents Conference report, further details concerning President Zhang Jun’s policies can be seen. The repurposing of the phrase “four modernization” is highlighted in that report: “promote the formation of the “four modernizations” work layout of trial concepts, mechanisms, systems, and management (推进形成审判理念、机制、体系、管理“四个现代化”的工作布局).

From these ten keywords and the National Court President Conference report, we can see one aspect of the ongoing complex evolution of China’s judicial system. When Dean Jiang Huiling spoke to my class in 2022, he commented that “in the current arrangement–in the Zhengfa (政法) reforms, Chinese characteristics have a great deal of weight and also in the reconstruction of the legal system. Although China has learned a great deal from other countries, China has to go on its own way, since it has its own history, political situation, and historical stage and there is a change in the international situation.” We are gradually seeing where China is “going its own way” and where developments are harmonized internationally.

_____________________________________________________

Many thanks to my readers for their patience these past several months while I have focused on finalizing my “neverending article” for publication and packing up several decades of books housed in my (former) office at Hong Kong University. A special thank you is due to those at Hong Kong University Law Faculty who made that office possible.

A separate special thank you is due to the two anonymous peer reviewers of this blogpost, particularly the person who called my attention to the repurposing of “four modernizations.”

If any readers have alternative translation suggestions, please contact me through the comment function or by email.

Court judgments, Court Operations, judicial interpretations, judicial transparency, Zhengfa reform

New Judicial Interpretation on Judicial Suggestions (Advice)

November 29, 2023 Supreme People's Court Monitor Leave a comment

New standardized format for judicial advice/suggestions

In November 2023, the Supreme People’s Court (SPC) issued a judicial interpretation intended to encourage and standardize the way that the courts issue judicial suggestions (advice) (司法建议), entitled Provisions of the SPC on Several Issues Concerning Comprehensive Judicial Advice Work (Judicial Advice Work Judicial Interpretation) (最高人民法院关于综合治理类司法建议工作若干问题的规定). For those in jurisdictions in which the SPC’s official website is inaccessible, see this link. When a translation becomes available, I will post it. As a judicial interpretation, its provisions are binding on the lower courts, unlike its predecessor 2012 and 2007 documents. Judicial suggestions (advice), the subject of this recent law review article (with detailed historical background), and promoted in these model cases about which I wrote this summer, are often issued in the context of litigation or after a court reviews a group of disputes. As illustrated by those model cases, it is a function being reinvigorated under President Zhang Jun. It is mentioned briefly in the Civil Procedure and Administrative Litigation Laws but not in the Organic Law of the People’s Courts. Now, as in the era of the Wang Shengjun presidency of the SPC, it is linked to active justice. It is also linked with resolving disputes at source, and the courts participating in social governance. As previously mentioned, resolving disputes at source appears to be derived from Chinese medicine philosophy in seeking to resolve the root cause of disputes by using the data, insights, and multiple functions of the courts to that end. For those interested in comparisons and the possible impact of President Zhang Jun’s Supreme People’s Procuratorate (SPP) experience on the SPC, the Supreme People’s Procuratorate updated its regulations on procuratorial suggestions in 2018. It is yet another function of the Chinese courts that has its roots in the Soviet system.

This quick blogpost flags what is new, the issues to which the new judicial interpretation responds, and places the interpretation in its larger context.

What is New?

The Judicial Advice Judicial Interpretation recasts its content in the language of Xi Jinping New Era political-legal jargon, in contrast to its predecessor document, which dates from 2012 and reflects the political-legal jargon of the period. However, in my view, that would be insufficient to merit a judicial interpretation. Given that judicial advice of a particular type has become a priority under President Zhang Jun, the judicial interpretation is intended to guide other divisions and entities within the SPC and the lower courts to provide judicial advice that better reflects SPC leadership priorities. It therefore:

addresses judicial advice work on “comprehensive” matters, that is outstanding problems in the field of social governance that cause frequent conflicts and disputes and affect economic and social development and the protection of the people’s rights and interests. It should propose improvements and improvements to the relevant competent authorities or other relevant units.
specifies that when judicial advice is submitted to a government authority, it shall generally be submitted to the competent authority at the same level within the jurisdiction of the court, and not issued to an authority at a bureaucratic level above the court issuing the advice. The judicial interpretation does not permit cross-jurisdictional judicial advice. If the issues require measures to be taken by a relevant authority in another place, the court in question must report the matter to the corresponding superior people’s court for decision. This was stressed by several local judges whom I contacted. I note that according to a report that the Shanghai Financial Court in the summer of 2023, issued 35 items of judicial advice, including to certain central departments (People’s Bank of China and the State Administration of State-Owned Assets, but presumably that court coordinated with the SPC when doing so;
it requires the court to contact the entity that is proposed to receive the advice, to listen to their views;
imposes a two-month deadline for the entity receiving the advice to respond (and the advising court to chase up the advised);
more strongly stresses the “principle of necessity,” i.e., is it necessary to issue this judicial advice, to avoid judicial advice being issued for its own sake (or more properly, to meet internal performance indicators of courts);
requires judicial advice to be discussed and approved by a court’s judicial committee, rather than the responsible court leader, as in the 2012 document;
specifies when judicial advice should be copied (抄送) to superior institutions;
does not specifically cancel the 2012 document, but provides that the provisions in interpretation supersede ones in the earlier document if they are inconsistent.
requires a court to report on its judicial suggestions as part of its report to the corresponding people’s congress; and
standardizes format.

There is no requirement of greater transparency but some local courts have posted some information about their judicial advice. The Shanghai Maritime Court is one court that posts judicial advice and responses, some other courts issue more limited information.

Surmising from the article published by the drafters of the interpretation recently in the SPC journal Journal of Applied Jurisprudence (the understanding and application), all of whom are affiliated with the SPC’s Research Office, that office took the lead in drafting this interpretation. It is to be expected that the Research Office took the lead because it often deals with cross-institutional issues.

Ongoing issues

I derive the comments in this section from Ms. Dou Xiaohong’s recent article in the National Judges College academic journal Journal of Law Application (法律适用). She did a deep dive into several thousand items of judicial advice issued in province “S” over the last several years and a more limited number from other provinces and did some cross-jurisdiction comparison. Some of the comparisons work better than others, but it does not take away from the main focus of the article. She works in the Research Office of the Sichuan Provincial Higher People’s Court so “S” likely refers to Sichuan. Presumably, the drafters of the judicial interpretation were aware of her article. She characterizes judicial advice as a form of soft law governance. She found (among other points):

most judicial advice related to a single case or similar cases, with comprehensive advice accounting for 14%, with most case suggestions relating to typos and omissions in documents (performative judicial advice);
almost half of the judicial advice “disappears” (is ignored by the recipient of the advice;
staff of the recipient administrative departments that the author surveyed were unaware that the recipient department was obliged to respond;
Under the current pressure of cases, it is difficult for judges to have “extra” time and energy to allocate to giving judicial advice.

Ms. Dou makes a number of suggestions, not all of which the drafters of the judicial interpretation incorporated:

incorporate better reporting to the relevant people’s congress
incorporate a “comply or explain” principle;
involve the supervision/Party disciplinary authorities if the matter involves the violation of law or discipline;
promote greater transparency of judicial advice by the courts and the recipients of the advice, so that there is greater awareness of judicial advice.

Greater significance

The promotion of higher quality judicial advice (suggestions) through the issuance of this judicial interpretation is another example of the development of the Chinese courts in the Xi Jinping New Era, post the 2019 Zhengfa (political-legal) reforms, stressing the role of the courts in social governance. Unlike some of the other aspects of “active justice,” judicial advice has its roots in legislation, although it is not mentioned in the Organic Law of the People’s Courts. This interpretation highlights a function of the Chinese courts that has existed for many years but has more recently become more important to SPC leadership. Transparency concerning judicial advice is uneven throughout the courts, and it is unclear the extent to which the SPC itself provides judicial suggestions. Lower court practice appears to vary. It appears from Ms. Dou’s article that many lower court judges are more focused on closing cases than issuing soft law judicial advice and providing advice for the sake of meeting a performance target. However, it may also depend on the subject of the judicial advice and whether the recipient perceives the advice provided by the courts as useful, as some local judges have mentioned to me that well-targeted judicial advice has led to inter-institutional discussions. The requirement of “listening to the views” of the entity that is to receive the advice (i.e. receiving their assent) is likely to result in fewer items of judicial advice issued, as courts are likely to consider the procedure too troublesome. However, we will need to wait for the revamped performance indicators under discussion to be released to understand better what the longer-term implications of this judicial interpretation are likely to be.

_____________________________

Many thanks to those who commented on an earlier draft of this blogpost.

About Me, Monitor

New Directions for the Supreme People’s Court?

October 28, 2023 Supreme People's Court Monitor 1 Comment

I am honored to have contributed a short essay to the New York University School of Law’s U.S. Asia Law Institute Perspectives blog, entitled New Directions for the Supreme People’s Court? Many thanks to those who contributed to this essay in any way. Special thanks are due to the many Chinese judges (and other court staff) with whom I have had shorter or longer conversations since the border reopened earlier this year, the people who commented on earlier drafts of the essay, and Katherine Wilhelm for her skillful editing!

This is my third contribution to the Perspectives blog. In 2022, I contributed Decoding the Supreme People’s Court’s Services and Safeguards Opinions and in 2021 Why I Research China’s Supreme People’s Court.

For those who are not familiar with my long-term interest in the Supreme People’s Court, as the 2021 essay begins, “some say it is my fate in life (缘分) to research China’s Supreme People’s Court (SPC). I was set on this unlikely path in the late 1980s, when I was introduced to a series of Chinese judges who were open enough to meet with a young American and answer my many questions about the epic changes just beginning at their courts. One meeting led to another, and eventually enabled me to write my 1993 article, “The Supreme People’s Court of the People’s Republic of China,” [available here] the first systematic study of the court by a scholar from inside or outside of China.

alternative dispute resolution, arbitration, BRI, CICC, Expert Committee, foreign courts, foreign-related cases, international commercial court, judicial interpretations

New Group of Supreme People’s Court Belt & Road Typical Cases

October 9, 2023 Supreme People's Court Monitor 1 Comment

At the end of September (2023) the Supreme People’s Court (SPC) issued its fourth group of Belt & Road (BRI) Typical /Model /Exemplary ) (this post will use the translation “typical”) Cases (第四批涉“一带一路”建设典型案例) (see an alternative link in case the official website is unavailable). An English translation is available here. Along with the cases, the SPC issued a press release in the form of answers by a responsible person of the SPC’s #4 Civil Division to a reporter’s questions (为高质量共建“一带一路”提供有力司法服务和保障——最高人民法院民四庭负责人就发布第四批涉“一带一路”建设典型案例相关问题答记者问).

“For the avoidance of doubt,” the points made by these typical cases (please see last year’s blogpost for a refresher on typical cases) apply to all types of foreign-related cases, whether or not they involve the BRI in some way. Including “BRI” in the title highlights that these cases contribute to supporting the BRI (on the 10th anniversary of the strategy) and developing (“constructing” 建设) “foreign-related rule of law.” I’ll make several quick points about the cases and derive some useful information from the press release.

1. Typical cases

This group of 12 typical cases includes:

three cases relating to letters of credit and demand guarantees (#3 Jiangsu Puhua Co., Ltd. v. Bank of East Asia (China) Co., Ltd. Shanghai Branch; #4 China Power Construction Group Shandong Electric Power Construction Co., Ltd. v. GMR KAMALANGA Energy Ltd., et al (the SPC case was mentioned in this blogpost; and #5 Union of Arab and French Banks (UBAF) (Hong Kong) Ltd. [UBAF (Hong Kong) Ltd.] and Bank of China Co., Ltd. Henan Branch);
Two cases involving professional services-related issues (#6 Fusheng (Tianjin) Financial Leasing Co., Ltd. v. Grant Thornton AG (a tort case) and #8 Tianwei New Energy Holdings Co., Ltd. v. Davis Polk & Wardwell LLP (contract dispute));
Enforcement of a foreign (Singapore) court judgment (#12, enforcement application by Shuang Lin Construction Pte. Ltd. ). The SPC and the Singapore Supreme Court have a related memorandum so it is unsurprising that a case involving an application to enforce a Singapore judgment was selected. See this 2023 factsheet with a listing of the other Singapore agreements with the SPC);
Enforcement of foreign and Hong Kong arbitral awards (#10, China Small and Medium Enterprises Investment Co., Ltd. v. Russian Sakhalin Seafood Co., Ltd. & Oriental International Economic and Technical Cooperation Company, objection to enforcement case)( #11 Noble Resources International Pte. Ltd.’s application for recognition and enforcement of the Hong Kong International Arbitration Center arbitration award);
One case involving the Convention on the International Sale of Goods (CISG), #1, Exportextil Countertrade SA) and Nantong Meinite Medical Products Co., Ltd;
One case involving financial derivatives (#9, Standard Chartered Bank (China) Co., Ltd. v. Zhangjiakou United Petrochemical Co., Ltd.) ;
One equity transfer-related case (#7, a China International Commercial Court case), Zhang Moumou and Xie Moumou v. Shenzhen Aoxinlong Investment Co., Ltd;
One treaty interpretation case (#2, Nippon Property & Casualty Insurance (China) Co., Ltd. Shanghai Branch and others and Robinson Global Logistics (Dalian) Co., Ltd).

A 2022 blogpost explains the selection process. I’ll leave the discussion of the implications of these cases to the law firms, some scholars, and some other websites and focus on the takeaways from the press release. The press release updates last year’s report on the SPC’s work in foreign-related cases in support of related policies.

2. Political importance

The press release ties the work of the SPC to the January 2018 Party Central Committee and State Council General Office policy document on BRI dispute resolution (summarized here and discussed further in my “neverending article”) and flags that the SPC has conscientiously implemented the decisions and arrangements of the Party Central Committee. The one-year gap between the third and fourth groups of typical BRI cases signals that the SPC leadership considers this a priority area. The phrase at the beginning of the press release (“providing powerful judicial services and guarantees (safeguards) for high-quality joint construction of the “Belt and Road”) signals the continuing importance of providing judicial “services and safeguards” for major national strategies, including the BRI, whether in the form of a document or typical cases.

3. Takeaways From the Press Release

a. CICC and other international commercial courts

The press release mentions the China International Commercial Court (CICC), its expert committee, and the establishment of local international commercial courts. The CICC has accepted a total of 27 international commercial cases, 17 of which have been concluded. A judgment was posted in July on the Chinese version of the CICC website but has yet to be translated.

Although the CICC is often linked to the BRI, the cases that the CICC has accepted include parties from jurisdictions that are not participating in the BRI, such as the United States. Among the typical cases released this time, one is a CICC case. The press release notes that the SPC will revise the CICC-related judicial interpretations to reflect the amendments to the foreign-related section of the Civil Procedure Law.

The BRI-related services and safeguards policy documents, about which I have previously written (and about which I have more to say in the neverending article) served as the policy framework for establishing local international commercial courts. The SPC has approved twelve local courts in Suzhou, Beijing, Chengdu, Xiamen, Changchun, Quanzhou, Wuxi, Nanning, Hangzhou, Ningbo, Nanjing, and Qingdao as “international commercial courts (tribunals).” It requires some detective work to determine the jurisdiction of each international commercial court.

b. Encouraging mediation and an organic connection between litigation, arbitration and mediation

The SPC reiterates its accomplishments in establishing a “one-stop” diversified resolution mechanism for international commercial disputes to achieve an organic connection between litigation, arbitration, and mediation. As mentioned in the 2022 report, ten international commercial arbitration institutions and two international commercial mediation institutions are part of the SPC’s “one-stop” mechanism.

c. Improving rules in foreign-related commercial cases

On improving the system of applicable rules for foreign-related commercial laws and unifying judicial standards, the spokesperson flagged that the SPC issued the Conference Summary [Meeting Minutes] on Foreign-Related Commercial and Maritime Trial Work (Foreign-Related Commercial & Maritime Law Conference Summary (Chinese and bilingual versions) (see my previous blogpost on the document), setting forth the SPC’s views on 111 issues in foreign-related matters. In my “neverending article,” I describe conference summaries (会议纪要 ) as intermediate documents, issued after courts confront new issues arising from a major policy document or new situation when the approaches of the lower courts need to be harmonized but it is not yet appropriate to issue a judicial interpretation. A book recently published by the drafters of the Foreign-Related Commercial & Maritime Law Conference Summary （《全国法院涉外商事海事审判工作座谈会会议纪要》理解与适用） reveals that after the #4 Civil Division prepared an initial draft, they “broadly sought comments” from relevant SPC departments, relevant State Council ministries and commissions, and selected experts. That means that the document represents a greater consensus of the relevant institutions on the issues addressed than commentators realized.

Additionally, in the past ten years, the SPC has issued guidance on foreign-related matters to the lower courts in the form of judicial interpretations (32), policy documents (9), guiding cases (18), and almost 150 typical cases. These statistics update those set out in the 2022 report.

d. Actively participating in legislation revision

As mentioned in the 2022 report, the SPC has actively participated in the revision of foreign-related laws such as the Civil Procedure Law (to come into effect next 1 January and the Arbitration Law (amendments ongoing, see this blogpost on the SPC’s contribution). My neverending article has a more extended discussion of this.

e. “Forthcoming Attractions”

The press release flags some “forthcoming attractions” related to the SPC’s foreign-related judicial work.

The SPC is (and has been) working on several relevant judicial interpretations (as mentioned in earlier blogposts).

a. Coming soon is the Interpretation on Several Issues Concerning the Application of the “Law of the People’s Republic of China on the Law Applicable to Foreign-Related Civil Relationships” (2) (关于适用〈中华人民共和国涉外民事关系法律适用法〉若干问题的解释（二）. The spokesperson revealed that the judicial interpretation had already been approved by the SPC’s judicial committee. It incorporates provisions relating to ascertaining foreign laws.

b. As mentioned above, the SPC will revise the CICC-related judicial interpretations to reflect the amendments to the foreign-related part of the Civil Procedure Law. The press release does not mention amending the comprehensive judicial interpretation of the Civil Procedure Law to reflect those amendments, but I surmise those are also being contemplated.

c. A third judicial interpretation, the “Interpretation on Several Issues Concerning the Application of International Treaties and International Practices in the Trial of Foreign-Related Civil and Commercial Cases”（关于审理涉外民商事案件适用国际条约和国际惯例若干问题的解释） is still in draft. Because the original provisions on the application of international treaties in the General Principles of Civil Law were abolished when the Civil Code was promulgated, leaving the rules for the application of international treaties unclear, the SPC is drafting an interpretation to deal with a group of issues. Those include the application of international treaties, the relationship between party autonomy and the application of international treaties, the choice of application of international treaties that are not in force in China, the application of international practices (two typical cases discuss the application of the Uniform Customs & Practice for Documentary Credits (UCP 600) and public order treaty reservations.

2. Databases on foreign law and expertise on foreign law.

With the support of some CICC expert committee members, one of the SPC’s BRI research databases and foreign law ascertainment service agencies, a foreign (non-mainland Chinese)legal database with legislation, international law documents and other legal information on ten ASEAN countries, seven South Asian countries and the ASEAN international organization has been created. Separately another service provider has created a BRI expert legal database. The 2022 report flagged these developments.

3. Judicial materials and training on foreign-related matters

The Supreme People’s Court is compiling a “Compilation of Common Laws and Regulations in Foreign-related Civil and Commercial Matters” to assist new hires and will increase the training and guidance to improve judicial competence on the application of international treaties. Improving judicial training on foreign-related matters has been an ongoing issue. Post-Covid, a number of training programs for judges and judges assistants on foreign-related matters have been held.

The most recent one was a national program, held at the National Judges College, focused on training senior personnel in foreign-related matters, at which Justice Tao Kaiyuan spoke. Those speaking at the program (from the relevant departments) included representatives from the Central Foreign Affairs Commission, the Legislative Affairs Commission under the National People’s Congress Standing Committee, Ministry of Foreign Affairs, Ministry of Commerce, as well (presumably) senior personnel from the SPC’s #4 Civil Division and the International Cooperation Bureau (which deals with treaty negotiation and judicial assistance matters). Local courts that have run such programs include Beijing (with the assistance of the University of International Business and Economics).

4. Judicial Assistance

China has concluded 171 bilateral judicial assistance treaties with 83 countries and has acceded to nearly 30 related international conventions (no change from October, 2022). In contrast to twenty or even ten years ago, the number of judicial assistance matters dealt with by the Chinese courts has increased. The press release mentions improving the quality and efficiency of international judicial assistance such as better cooperation in the cross-border service of judicial documents, cross-border investigation and evidence collection, ascertainment of foreign law, and recognition and enforcement of foreign (extra-territorial) judgments and arbitral awards. This does not yet mean that it is possible for foreign litigators to take depositions in mainland China for foreign court proceedings. Service of process was an issue in this 2022 case in the Southern District of New York.

Communist Party and the Courts, court reforms, Judicial Reform

Update on the Supreme People’s Court’s Judicial Reform Office

September 28, 2023 Supreme People's Court Monitor Leave a comment

four judicial reform books edited by the Judicial Reform Office

Although no formal announcement has been made in the Chinese press (of which I am aware), it appears that sometime during the last six months, more likely before early June (2023), the Supreme People’s Court (SPC)’s Judicial Reform Office, or more formally the office of the SPC’s leading small group for judicial reform (最高人民法院司法改革领导小组办公室) ceased to exist as a separate entity. Its work has been assumed by the Research Office. The leading small group that the Judicial Reform Office supported appears to have been disbanded as well. This post provides some comments on the office, some fragments concerning its history, an explanation of the nature of the office and leading small groups, and evidence for reaching the conclusion that the office no longer exists.

Over the past 10 years, this blog has discussed or cited statements or documents issued, reports drafted, and books published by the Supreme People’s Court (SPC)’s Judicial Reform Office. As is visible from the photo above, I have a collection of books edited by that office, many of which I have not yet cited in this blog or my other writings. Some books contain documents, others set out authorized commentary, and others are collections of analytical essays for the most part written by lower court judges. I had intended to draw on some of these materials when writing something more detailed about the drafting of judicial reform measures, setting out my understanding of the drafting process. A number of our Peking University School of Transnational Law students have interned in the Judicial Reform Office. I will now need to wait until I am able to gather enough information about how the new system operates before writing a current and historical description.

The offices of leading small groups are not permanently established, although this one had been in existence for almost twenty years. It is not unusual for them to be abolished and their duties assumed by permanent institutions. The temporary nature of the office may explain why published structure charts of the SPC have never mentioned the Judicial Reform Office. The SPC has other such offices, but this one appears to be the most well-known. Leading small group offices exist in analogous form at the local level as well.

For those who are not aware of the system of “leading small groups,” many exist throughout the Chinese Party and government system to deal with cross-institutional matters, often involving participants from multiple Party and/or state institutions. There seems to be a growing English language scholarly literature on multi-institutional leading small groups, mostly behind publishers’ paywalls, but this detailed summary of leading small groups and affiliated offices by Alice Miller is helpful to those without university library access. The summary explains that “leading small group general offices have dedicated office space, a roster of personnel, and an operating budget for administrative expenses. Although they cannot implement anything on their own, they can levy work on other offices.” My forthcoming (“neverending”) article has a description of the SPC’s Judicial Reform Office levying work on (assigning work to) other SPC offices, divisions, and institutions.

The Judicial Reform Leading Small Group and its supporting office were established in 2006. Although I have not been able to find the document approving its establishment, I assume that it was established to draw together a team of people to focus on judicial reform matters and to coordinate matters across multiple SPC entities, with the lower courts, and with the related Party bureaucracies. The Judicial Reform Leading Small Group had a predecessor entity entitled the SPC Judicial Reform Research Leading Small Group (最高人民法院司法改革研究领导小组). The China Institute of Applied Jurisprudence provided institutional support for the predecessor entity. I assume that the establishment of the SPC’s Judicial Reform Leading Small Group and its predecessor are linked to the 2003 establishment of the Party’s Central Judicial System Reform Leading Small Group (中央司法体制改革领导小组), which has (had?) members from multiple Party and state institutions. That Leading Small Group also has (had) an affiliated office (中央司法体制改革领导小组办公室). I have not seen public mention of the Party’s Central Judicial System Reform Leading Small Group in the past year or more, so I assume it has been disbanded and its functions subsumed by some part of the Central Political-Legal Committee/Commission.

Prior to 2003, judicial reform research at the SPC was conducted and coordinated by the Research Office. That office often deals with SPC cross-institutional matters, such as the transition to the Civil Code. So this development appears to be an instance of the SPC either going back to the “good old days” or as a former SPC judge recently wrote about the end of a piloted judicial reform, “restoring the original condition (恢复原状).”

During the March 2023 meeting of the National People’s Congress, He Fan, previously mentioned on this blog, spoke to the press about judicial reform, as a responsible person of the Judicial Reform Office (最高人民法院司法改革领导小组办公室负责人). In September of this year, public statements concerning judicial reform (in this case, the termination of the piloted reform of the four levels of the courts) were issued by a responsible person of the Research Office. A related document issued in June (2023) did not mention the Judicial Reform Office or the Judicial Reform Leading Small Group. When He Fan spoke at Fudan University Law School in September, he was described as a vice director of the Research Office and the former responsible person of the Judicial Reform Office (最高人民法院研究室副主任、原司法改革办公室负责人何帆博士). So I surmise from this that sometime between March and June, the Judicial Reform Office was abolished and its responsibilities and personnel were transferred to the Research Office.

I will be monitoring this change (to the extent possible). Questions that come to mind include the following. What will being located in the Research Office mean for judicial reform matters? Will the staff take on additional tasks in addition to judicial reform matters? What will this mean for the analysis of the impact of prior judicial reforms? What will this mean for the drafting of the sixth judicial reform plan outline? Will this mean more or fewer staff resources? When the plan is issued, will we on the outside of the Chinese court system notice the impact of this bureaucratic change? And as several highly knowledgeable persons have asked me in recent weeks, how should the judicial reforms of the last ten years be objectively assessed?

_________________________________________

Many thanks to the knowledgeable persons who contributed to this blogpost. Those with additional information or corrections should contact me. My apologies to my patient followers for the long gap between blogposts. but I have spent much of the last two months revising my “endless” long article for publication, as it needed to be updated to reflect recent changes. This change requires an additional update. I plan to do several more analytical blogposts in the upcoming months, but use more of my time putting together my research, as highlighted earlier this year.

alternative dispute resolution, Communist Party and the Courts

Active Justice: Resolving Real Estate and Construction Disputes at Source

July 31, 2023 Supreme People's Court Monitor Leave a comment

6th Circuit press conference announcing the typical cases

In late May of this year (2023), the Supreme People’s Court (SPC) issued a set of typical cases on resolving real estate and construction disputes at their source provided by the SPC’s #6 Circuit Court (the circuit court covering the northwest provinces and autonomous regions), entitled “Typical Cases of Litigation Source Governance in the field of Real Estate and Construction Projects in the Circuit Courts area (巡回区房地产及建设工程领域诉源治理典型案例). These typical cases have not received their due attention outside the Chinese court system. They are helpful for understanding how the Chinese court system is evolving under the leadership of SPC President Zhang Jun. These ten typical cases are examples of court practices that the SPC has provided to lower courts for guidance. The guidance focuses on two principal areas: how to implement properly the requirements of President Zhang Jun and the SPC’s Party group to serve national and social governance by resolving disputes at their source (linking to the General Secretary’s important instructions and related documents; and second, how to use “active justice” (能动司法) to achieve these objectives.

As I flagged in May of this year, President Zhang Jun has revived the concept of “active justice.” In that same blogpost and in earlier ones, I mentioned that resolving disputes at their source has become an important task for the Chinese courts. The cases weave together these policies in one perfectly designed package.

These cases also tell a story about how active justice and resolving disputes at their source can involve the courts undertaking some functions that should be left to the lawyers.

Typical cases that are not cases

These ten cases are not accounts of specific court cases but rather are examples of exemplary practices. This is not the first time that the SPC has issued “typical cases” that are exemplary practices. Since 2017, the judicial reform leading group of the SPC has issued typical cases that illustrate judicial reform practices that provide useful reference materials for other courts.

Resolving disputes at source

Resolving disputes at source is a Party policy mentioned briefly in the 2019 fourth plenum of the 19th Party Congress decision, the SPC document implementing that Party Congress decision, and the 5th judicial reform plan document. It was further developed in subsequent documents. It links to the Party’s (and SPC’s) diversified dispute resolution policies. An academic article recently published unfortunately does an inadequate job of defining the policy and describing the policy’s development. Moreover, it incorporates some translation errors. Although both authors are affiliated with prominent academic institutions with serious scholars of the Chinese courts, it appears to this reader that they failed to seek the perspective of some persons with a greater historical perspective on SPC developments. It is another instance in which peer review did not catch inadequacies.

According to several SPC press releases and articles related to these cases, the foundational document for recent SPC and other legal institution policies is a February 2021 Central Committee document (never publicly released) entitled Opinions on Strengthening the Governance of Sources of Litigation and Promoting the Resolution of Sources of Contradictions and Disputes” (关于加强诉源治理推动矛盾纠纷源头化解的意见). I surmise that the document includes the phrase “promote basic level social governance” (促进基层社会治理) and likely “national governance.”

The SPC issued a long and detailed document implementing that Central Committee document in September 2021, entitled Implementing Opinions on Deepening the Building of the One-stop Diversified Dispute Resolution Mechanism of the People’s Courts to Promote the Resolution of Conflicts and Disputes at Their Source (Implementing Opinions on Promoting the Resolution of Disputes at Source)(最高人民法院关于深化人民法院一站式多元解纷机制建设推动矛盾纠纷源头化解的实施意见 that the authors of the above article missed in their research. One of the many objectives listed in this document is reducing the per capita rate of litigation.

Why Select Real Estate and Construction Disputes?

Judge Wu Zhaoxiang, deputy head of the #6 Circuit Court (and also deputy head of the SPC’s Research Office, whom I quoted in my book chapter on the drafting of criminal procedure judicial interpretations), explained why they focused on real estate and construction disputes. He said it is because these disputes are important.

Within the jurisdiction of the 6th Circuit, “there are tens of thousands of lawsuits flooding into the courts every year, with huge amounts of ‘real money’ worth billions at every turn. It involves the development of business of tens of thousands of enterprises and the well-being of the people, and it is related to the country’s economic development, financial security, and social stability.” Judge Wu mentioned that some small, medium-sized, and even large real estate companies have encountered difficulties such as in funding, resulting in failure to hand over buildings in time, causing home buyers to stop paying mortgages, which has attracted a great deal of public attention. Many of the construction cases involve unpaid contractors and actual constructors. [“Actual constructors” (实际施工人) refers to companies /other entities that to which contractors have improperly subcontracted, although they may not have the proper certificates, etc. to do so]. The problem of wage arrears to migrant workers has not been completely resolved, and “collective rights protection incidents of migrant workers” still occur from time to time.

Statistics provided in one report bear this out. Shaanxi courts accepted 13,900 construction dispute cases in 2020, 17,800 cases, in 2021 and 18,400 cases in 2022. The Qinghai courts heard more than 8,400 real estate-related cases and 10,300 construction disputes, the Ningxia courts accepted 36,600 cases in the fields of real estate and construction since 2020, and the courts of the Xinjiang Corps accepted 15,300 real estate and construction cases in the past three years. The same report signaled that real estate and construction disputes are on the rise nationally.

Lessons from the cases

The 6th Circuit labeled the ten typical cases with the lessons to be learned (which I have italicized), similarly to the judicial reform typical cases mentioned above. I further describe the first one, because the points in the typical cases repeat one another:

Adhere to the leadership of the Party to build a new pattern of governance of sources of litigation: The exemplary practice was the Shaanxi Party Committee’s Implementing Opinions on Strengthening the Governance of the Sources of Litigation and Promoting the Prevention and Resolution of the Sources of Conflicts and Disputes” (关于加强诉源治理推动矛盾纠纷源头预防化解的实施意见), which apparently assigned to provincial institutions responsibilities related to the goal of promoting the prevention of conflicts and disputes at the source. The SPC identified three specific examples: “optimizing top-level design” and building a pattern of “government-institution linkage” by the provincial Higher People’s Court and Housing and Construction Department jointly issuing a document aimed at promoting mediation of real estate and engineering disputes by creating a database of experts to mediate these disputes; and improving non-litigation mechanisms through a document that the provincial Higher People’s Court and Provincial Construction Cost Association jointly issued to establish a group of experts to mediate construction cost disputes; and third, the Shaanxi Higher People’s Court promoting “active justice” through reviewing typical cases and communicating with the regulators, including providing them with typical cases concerning problems discovered in the course of litigation, issuing compliance advice to large construction companies, and as well as judicial advice to administrative departments.
Track and pay attention to key projects to ensure zero disputes in construction projects;
Work together to solve the “difficulty in obtaining certificates” to solve the difficulties and worries of the masses;
Collaborative linkage revitalizes projects to achieve “three guarantees” to resolve public concerns;
Expanding the scope of notarization to participate in judicial assistance and adding “new troops” to pre-litigation mediation;
Innovate the pre-litigation identification model to promote the quality and efficiency of dispute resolution;
Judicial recommendations are implemented and effective, and targeted policies are implemented for precise governance;
Give full play to the exemplary role of judgments and rulings and promote the resolution of the source of conflicts;
Formulating and issuing compliance management suggestions to help enterprises prevent disputes; and
Do a good job of risk reminders to ensure the healthy development of enterprises.

Comments

SPC Vice President Yang Linping, the head of the #6 Circuit Court, repeatedly used the phrase “active justice (能动司法) in her speech announcing the significance of these cases, which was reprinted as an article published in People’s Justice (人民司法). By doing this she is promoting the new spirit of the SPC leadership under President Zhang Jun. Some of that new spirit is putting a new spin on earlier policies, such as resolving disputes at source by promoting mediation, thereby transmitting the Fengqiao Experience. Active justice is another old policy receiving a new spin. “Active justice” appears to be a flexible concept and since President Zhang Jun has started to mention it, those in various levels of courts and substantive areas have used it, generally without a specific definition. From these cases and other sources, it involves the use of less prominent functions of the courts (such as coordination with administrative authorities and liaison with the local Party committee to resolve the core problems of a dispute. Resolving disputes at source appears to be derived from Chinese medicine philosophy in seeking to resolve the root cause of disputes by using the data, insights, and multiple functions of the courts to that end. It also is a flexible concept.

What is little discussed in articles about “active justice” thus far is why the courts are taking on some of the roles they are. For example, one of the exemplary methods promoted in these cases and praised highly was the courts analyzing and summarizing the compliance management risks of large construction companies as derived from relevant litigation and the courts issuing suggestions for corporate compliance management as well as providing judicial suggestions to administrative agencies on how they might better exercise their regulatory authority.

It occurred to me that in many other jurisdictions (I don’t believe the civil or common law distinction makes a difference), it would be either law firms or events sponsored by bar associations (lawyer associations) that would host events aimed at real estate or construction counsel (in law firms, in-house, or with government) to convey their insights about recent litigation. My initial reaction was that the situation might be different in first-tier areas of China, given that lawyers are better educated in those areas and companies have better counsel, and so the courts might be less “active” in providing advice. I, therefore, checked my initial reaction with a highly experienced judge in a first-tier city. He said that no, courts in his municipality also issue judicial suggestions (link is to a related academic article) to enterprises and administrative agencies requiring them to improve some aspect of their operations. It is part of their work to “serve the greater situation” and courts have performance indicators concerning judicial suggestions/advice. “So we take away a lot of business from lawyers by providing free legal advice.”

Court Operations

Supreme People’s Court Updates Its Request for Instructions Procedures Concerning the Application of Law

June 17, 2023 Supreme People's Court Monitor 2 Comments

Standard Form for a Request for Instructions

Like all Chinese Party and state organs, the Supreme People’s Court (SPC) handles requests for instructions (请示), (also translated as requests for advisory opinions). A request for instructions is a type of document submitted by a subordinate to a superior state or Party organ to request instructions or approval. It is one of many discrete matters that reveals the SPC’s bureaucratic operations.

Requests for instructions are incorporated into the 2012 SPC measures on official documents of the people’s courts (人民法院公文处理办法), which implement the Party and government’s regulations on official documents (党政机关公文处理工作条例) (an English translation of the latter can be found here).

This system has existed for many years and has been controversial for at least 40 years, if not longer. When I wrote about the SPC 30 years ago, I devoted several pages to describing the practices concerning requests for instructions, including telephone requests, as they were understood at the time, and also mentioned controversies about the practice. At the time, I was not aware that old regulations concerning the practice existed.

In early June, the SPC released updated procedures on requests for instructions concerning the application of law (Provisions of the Supreme People’s Court on Responding to Requests for Instructions on the Application of Law (Provisions on Requests for Instructions) 最高人民法院关于法律适用问题请示答复的规定), to be implemented from 1 September. The Provisions on Requests for Instructions themselves further reveal some of the details of the SPC’s bureaucratic operations and relate to formal requests, not to informal versions. The Provisions on Requests for Instructions also attach form documents for the lower courts to use, to standardize formats. They are not a judicial interpretation (as can be seen by the document number–fa (法), but a judicial document (司法文件), but the lower courts will implement its provisions. This post will address what is new or different, the matters to which it applies and does not, the Monitor’s views about the reasons for issuing this guidance, and other insights the Provisions provide.

What does it say?

The Provisions on Requests for Instructions apply to requests for instructions on legal issues, not factual issues submitted to the SPC. In general, the requests must be submitted by Higher People’s Court, although for intellectual property cases, first-instance courts may directly submit them to the SPC, which I surmise intended to refer to the SPC’s Intellectual Property Court. These Provisions are related to the reform of the four levels of the Chinese courts and are part of larger reforms focusing more of the work of the SPC on questions of law rather than fact and law.

Article 2 defines the scope of cases that can be submitted:

no clear provisions in laws, regulations, judicial interpretations, normative documents, etc., and there are major disputes over the application of law;
a major dispute exists over the understanding of the specific meaning of laws, regulations, judicial interpretations, normative documents, etc.;
Significant changes have taken place in the objective circumstances concerning which judicial interpretations and normative documents were formulated, and the continued application of relevant provisions is obviously contrary to fairness and justice;
Judgment rules for similar cases are obviously not uniform;
Other major disputes over the application of law.

Formalities

The Provisions on Requests for Instructions require the judicial (adjudication) committee of the requesting court to have considered the issue and to provide relevant information about that discussion, consistent with requirements relating to retrial cases, discussed here. Additionally, the court must prepare a package of documents, including a search of prior cases, and a report on the issues and reason for the request, the views of the collegial panel that heard the case, and related reports from the lower court, if the request originated below. The standard form document provides guidance to the lower courts on format.

The SPC’s case filing division is designated as the SPC entity to receive the requests and dispatch them. They are required to review the requests within three days and inform the requesting court whether or not the request is accepted or rejected and whether additional materials are needed.

If the issue relates to a judicial interpretation or a judicial regulatory document (规范性文件) etc., the Provisions on Requests for Instructions require that the matter should be sent to the drafting department, the principal department if relevant, or otherwise the apparently relevant division or office. If the relevant division or office does not want to review it, it can negotiate with the case-filing division to take the matter back and cannot request another division or office to take on the matter without case-filing division clearance. The vice president of the SPC in charge of these matters will resolve any disputes.

The division that takes on the request is required to designate one person to be in charge of the request, which is then to be reviewed collectively, in a professional judges meeting, as provided in a 2017 SPC opinion. Several divisions or offices can handle a request together, or views from institutions or experts outside the SPC can be sought if needed. Responses should be in writing and in the name of the SPC itself, but may also be provided over the phone, with a record kept of the response. The requesting court should (must) implement its provisions but not cite the response as the basis for its decision.

The draft response needs to be reviewed by the Research Office before it is submitted to the relevant vice president in charge for approval, and if necessary, the SPC president or judicial committee may consider it. The Provisions on Requests for Instructions impose a two-month deadline on responses, which can be extended.

Transparency is permissive, and if a case is significant, the SPC can request that the case be transferred for a hearing, or otherwise the case be reworked as a guiding case or judicial opinion.

To what cases does it apply?

The procedures apply to ordinary requests for instructions concerning legal issues, but not requests for instructions that may arise when a lower court considers one of the four types of cases. Those cases are those that are politically sensitive, difficult, or involve mass cases. The objective is to protect front-line judges from deciding “Four Types of Cases” autonomously in a way that is considered wrong or inconsistent with policy and legal provisions as well as the court leaders above them. The guidance for those cases authorizes court leaders, in those cases, to seek guidance from higher-level courts on the handling of those cases.

The 2017 Opinion mentioned above also provides for other exceptions for requests for instructions in certain major criminal cases.

These Provisions do not apply to the Prior Reporting of the judicial review of arbitration cases, under a separate judicial interpretation.

Why this guidance?

On why this guidance was issued, I surmise that the SPC leadership has seen many such requests for instructions but judges have delayed responding to them, have forwarded them to other divisions for response, and different parts of the SPC have issued conflicting responses. Additionally, the SPC may have seen many requests involving determinations of facts as well as law. Therefore, I surmise, the SPC leadership charged case-filing and trial management divisions with drafting updated regulations.

Statistics on the number of requests for instructions (either formal or informal) at either the SPC or below are unavailable. A highly experienced Chinese judge commented to me that an important reason for lower court judges to request instructions is to avoid “making mistakes” that may have negative consequences on the individual judges or panel of judges involved or may lead a higher court to reverse the lower court. My own earlier research and that of Professor He Xin found other reasons as well (in the lower-level courts).

What other insights are there?

As I wrote previously, fifteen or more years ago, there had been proposals even within the SPC for the system to be “proceduralized” or “judicialized–see Dean Jiang’s 2007 article. The second judicial reform plan (see the original Chinese and an English translation) under the late SPC President Xiao Yang), called for reform to the system of reporting and seeking approval/request for instructions system. However, times have changed. The SPC leadership is required to seek instructions on certain matters.

The Provisions require a reply database to be established and higher courts to report the replies they have given on an annual basis to the SPC. Presumably, the higher courts will impose the same requirement on the intermediate courts within their jurisdiction. This is part of the SPC leadership’s push to extend its supervision of the many entities within the SPC and the lower courts. At the level of the SPC, this is one part of leadership efforts to impose more uniformity in the application of law by SPC divisions, offices, and circuit courts. It is one aspect of strengthening the firm guiding hand of the SPC.

Communist Party and the Courts, Court Reform, Recently in the Court

New Spirit at the Supreme People’s Court

May 8, 2023 Supreme People's Court Monitor 1 Comment

A fundamental principle of Chinese bureaucracy over the millennia is that a change in leadership brings a change in policy. As we know, Zhang Jun (张军) is now the president of the Supreme People’s Court (SPC), having taken over from Zhou Qiang in March.

I surmise that President Zhang Jun’s long career involving criminal law matters, starting out at the SPC and with hands-on experience working in many of the most important institutions related to the SPC has shaped his view of the role and appropriate operation of the Chinese courts. I will first add to the English language description of President Zhang’s biography before deriving from several recent articles what I view as an evolving new spirit at the SPC.

Although others have compiled his biography, with one in English and many in Chinese, I will tweak the narrative in English, based on the Chinese biographies, and on what I understand to be the importance of the institution in which (I surmise) he had formative experiences.

The Chinese version of his biography linked above states that between 1985-1995, Zhang Jun worked in the SPC’s Research Office’s General Department and Criminal Law Department as a clerk; then as a deputy judge (助理审判员) and deputy head of the Criminal Law Department; and the head of the Criminal Law Department and judge (审判员), with two years spent outside the SPC, 1990-91 at the Central Party School and in 1991-92, was seconded to the Beijing Haidian District People’s Court as the deputy head of the economic crimes group. His early career progression reflects what I wrote 30 years ago, that “graduates from law schools assigned to the Court as clerks are generally required to work for two years in a basic level and in an intermediate court to give them experience “at the grassroots level,” while their positions [at the SPC] are retained.” From 1995-98, he was promoted to be one of the deputy heads of the Research Office.

I emphasize these apparently minor details because, in my view, these were formative experiences that will have an impact on his leadership of the SPC. His early experience reflects the careers of an entire generation of senior legal specialists, most of whom have retired or have been reallocated to pre-retirement roles at the National People’s Congress (NPC) Standing Committee or the Standing Committee of the Chinese People’s Consultative Committee (CPPCC). He would have been assigned to the SPC (although it is not so stated), and the progression of his career. starting out as a clerk reflects the career path for many (back in the day), as I described in my 1993 article. The quota judge reform (discussed here), has changed the career path for young judicial personnel. The fact that President Zhang started out and spent many years at the SPC’s Research Office means that he is deeply familiar with the making and implementation of judicial policy, particularly criminal law (and procedure) policy. I mean policy broadly.

This gives me an opportunity to flag the role of the SPC’s Research Office. It is a special institution within the SPC, designated as a comprehensive operational department (综合业务部门), which one former staff member described to me as the “Brains” of the SPC. At the time that President Zhang was assigned to the office, the China Institute for Applied Jurisprudence had not yet been established, so applied research would have been done by the Research Office. As can be derived from multiple earlier blogposts, it is closely involved with the drafting of judicial policy and interpretations, as well as Hong Kong and Macau-related and juvenile-related judicial matters. The Research Office is the gatekeeper for reviewing proposals for new or amended judicial interpretations, as well as examining and coordinating the drafting of judicial interpretations. It also acts as the liaison when other central institutions forward their draft legislation and draft judicial interpretations to the SPC for comments, coordinating the SPC’s response with other divisions and offices, with a knowledgeable person noting to me earlier that “the view of the Research Office prevails.” It appears to have an analogous role in the drafting of judicial policy documents. I noted earlier that it has an important role in responding to requests for instructions from the lower courts.

A quotation of SPC Senior Judge Yu Tongzhi (previously mentioned in this blog) from his 2020 book, Ten Lessons on Criminal Practice, is relevant in understanding the thinking of Chinese judges working in the area of criminal law and procedure):

talking politics [讲政治] is a basic quality required of a criminal judge [Talking about politics, in a nutshell, means observing and dealing with problems politically. ]. In the past, we often said that criminal adjudication [trials] was a “knife handle”（刀把子）[tool of the Party], now this slogan is used less, but the function of criminal trials as a “knife handle” has never disappeared and cannot disappear. Of course there is no contradiction with strengthening the protection of human rights. Now Central leaders repeatedly say: the primary responsibility of the entire political-legal system is to safeguard political security, not only criminal adjudication and not only the adjudication work of the courts…

Judges from the SPC down to the local district courts (and the Monitor as well) are observing SPC media for signals of changes in policy. Gradually President Zhang Jun’s priorities will become clear to those of us outside the System and we will see which of Zhou Qiang’s initiatives will remain vibrant. A number of President Zhang Jun’s talks and visits have been made public–the purpose is to inform those in and outside the System of the spirit of the Chinese courts under new leadership. I’ll identify a few articles that twinkle new, amended, or repurposed policies and priorities.

The first article (and in my view, the most important) is the earliest, 抓实公正与效率 (Seize Justice and Efficiency), in which President Zhang Jun transforms General Secretary/President Xi Jinping’s series of speeches during the Two Sessions, the spirit of the annual Central Political-Legal Commission Conference, and suggestions from NPC and CPPCC deputies into more specific measures for the SPC leadership and correspondingly, the entire court system to implement. The ability to do this well is a crucial skill for any SPC President. According to a subsequent report about President Zhang Jun’s speech at the National Judges College, the themes in this article were transformed into a special training course for local senior court leaders.

Among the themes he stressed were: “serving the overall situation, serving people’s justice, and promoting the political foundation of the party’s governance”, which he characterized as the “duties and missions” of the people’s courts. He did not discuss the broader implications of “serving the overall/greater situation (大局服务).” As I have written a great deal on SPC policy documents issued in the past 10 years and I predicted in this 2022 brief article that the SPC will focus more on issuing policy documents, I will be monitoring SPC official media to see whether any change is visible in the way that judicial policy is transmitted.

President Zhang Jun stressed the themes of “fairness (justice) and efficiency (公正与效率). Promoting fairness/justice, he characterized as promoting substantive fairness, while paying attention to procedural fairness. He said “It is necessary to avoid simply [mechanically] ‘handling of cases according to law.’ It is the people who feel fairness and justice, not ourselves, we need to stress procedural justice…People come to the court to solve problems, not to ‘follow the procedure’. ” The theme of combining substantive and procedural justice is not new in China (there is a robust scholarly literature (including in English) discussing it, with a forthcoming related article by Professors Rachel Stern and Benjamin Liebman, Gao Wenwa, and Wu Xiaohan that I recommend (I was privileged to read a pre-publication draft). The fact that President Zhang Jun raised these themes so early means that they will be emphasized during his term in office.

The second theme that he stressed is improving efficiency, but without an overemphasis on efficiency, which he said would lead to more petitioning. He also encouraged judges to engage in the in-depth analysis of judicial big data, put forward judicial suggestions to relevant departments (see a recent paper on this topic), and promote the strengthening and comprehensive management of resolving disputes at source (mentioned in earlier blogposts).

He flagged ‘handling a typical case and promoting a solution for a group,’ so we can expect continued or greater use of typical (model/exemplary) cases (as discussed earlier). Unsurprisingly, President Zhang Jun reminded court leaders of their dual responsibilities (political and professional matters) and reminded them of the requirement to implement the “three regulations,” that is reporting the interference in the handling of cases, and the failure to report interference. It can be surmised that the incompletely implemented judicial reform of Chinese court finances, along with the deterioration of local public finances means that courts are under even more pressure to protect local interests. President Zhang Jun reminded judges that these are needed to promote an incorrupt judiciary and signaled that disciplinary inspection and supervision departments should strengthen supervision. I surmise that the SPC itself will be a target of heightened scrutiny by those institutions, in view of the multiple corruption cases that arose in recent years, especially given the larger number that arose compared to those at the Supreme People’s Procuratorate.

2. 国家法官学院开学第一课——能动司法 (The First Class at the National Judges College–Judicial Activism). Although President Zhang signalled how he thought criminal, civil, and administrative case hearing should be modernized in his speech to newly appointed intermediate and basic level court presidents, the most important message in the speech was about judicial activism (能动司法 but different from Marbury v. Madison–his reference). He said an “active judiciary must strictly perform its duties in accordance with the law. Political effects and social effects extend from legal effects. Sacrificing legal effects to talk about so-called political effects and social effects one-sidedly violates the comprehensive rule of law and loses the legal basis. How can it be good? ” Over 10 years ago, SPC President Wang Shenjun promoted judicial activism (there appears to be a large English-language discussion of this term, mostly behind publishers’ paywalls, but my reading is that President Zhang is repurposing the term. How he is repurposing it remains to be seen.

3. 就是头拱地也要把人民的事办好 “Even if you put your head down, you must do the people’s affairs well.” This article reports on an SPC Party Group related to the ongoing thematic education campaign (主题教育). President Zhang stressed that the courts need to do a better good job in the work of “responding to letters” (把“有信必复”工作做实做好), He said “responding to letters” is a systematic project that requires overall planning and scientific arrangements. He said “‘respond to every letter’ (“有信必复) is to let the people know that the letter has been received and who is handling it in the shortest possible time.” He noted that the petitioning related to litigation, in the final analysis, shows that the courts have not done their work well enough (涉诉信访问题说到底，是法院的工作还有不足).

He reminded his audience that leaders of courts at all levels should take the lead in handling major difficult and complicated cases reflected in letters, promote substantive resolution, and ensure the smooth and orderly development of this work. ”

I take from this that letters and visits work will become much more important in the local courts, with the stress on resolving the underlying issue (linking to the ongoing theme of “resolving disputes at source” and the greater importance of letters and visits (Xinfang) work nationally. It is not likely that court leaders will deal with petitioners in the first instance. Professors He Xin and Feng Yuxin wrote about veteran petitioners in this 2018 article (behind the paywall again). The experience of some friends who are working or have worked in local courts is that petitioners can be very strategic in the way they petition, with keen sensibilities about how to extract the maximum benefits from petitioning. Now retired Justice Hu Yunteng wrote about how to best handle administrative litigation-related petitioning at the #2 Court, explained here. From this recent article in People’s Daily, it appears that the Shenzhen Intermediate Court has led the way in litigation-related petitioning reform, investing much more staff time (I surmise including judges) and creating a platform for responding to visits, calls, and letters from the public, with a 100% rate of responses to calls.

4. 办公室不是清水衙门 “the office isn’t a clear water yamen.” This phrase is a contrast to what I wrote about the SPC 30 years ago. In my 1993 article, I quoted a graduate of a prominent Beijing law school, who told me he and his classmates were reluctant to be assigned to the SPC, and labelled it a “clear water yamen” for the low salary, meager fringe benefits, shabby housing, and rigid internal discipline.” President Zhang warned that judges and judicial personnel face the risk of being “hunted” [sought for improper benefits] in different forms. They must always “adhere to the moral integrity and self-discipline”, keep vigilant…and do not want to be corrupt. “The three regulations [mentioned above, about reporting improper interference] must be strictly enforced.” President Zhang has mentioned team rectification (队伍整顿) several times, linked to the thematic education campaign.

5. 承继人民司法优良传统以审判工作现代化服务保障中国式现代化 ‘Inheriting the fine traditions of the people’s judiciary, guaranteeing Chinese-style modernization with the modernization of trial work”-this article is an account with his meeting with the old cadres of the SPC. I derive a sense of the new spirit concerning judicial reform from this article. President Zhang said ” a full assessment of the implementation of the judicial reforms undertaken in recent years should be undertaken, the positive aspects should be summarized, and those that have encountered problems in implementation should be deeply improved” (对近些年的司法改革实施情况做一个全面的评估，好的方面要总结，落实中的问题要深化完善). From this, I surmise that we will not see major judicial reforms (see Dean Jiang Huiling’s analysis), but more limited measures to improve the implementation of previous measures and the assessment will be for internal use only, as one for external use (the judicial reform white paper) has already been issued.

This article has flagged only some of the work and priorities of the Chinese courts under President Zhang Jun, in the short time he has been in office. There are many areas of law for which I have not seen related reports. For those matters discussed above, how the work is implemented and priorities are implemented in practice over the next years as well as the impact of these priorities remain to be seen.

_________________________

Many thanks to my anonymous peer reviewers for reviewing a draft of this blogpost.

arbitration, CICC, international commercial court

Justice Tao Kaiyuan on the State of Chinese International Commercial Dispute Resolution

April 16, 2023 Supreme People's Court Monitor 2 Comments

In March of this year, Supreme People’s Court (SPC) Vice President Justice Tao Kaiyuan released, by the standards applicable to senior SPC leaders, forthright public comments about the state of Chinese international commercial dispute resolution and her proposed solutions in an article in the SPC’s glossy journal China Trial (中国审判 ). Based on the article, she appears to continue to have responsibility for the #4 Civil Division, the one focusing on cross-border commercial matters and arbitration. I summarize her comments below. My comments on her assessment are in italics.

Her overall assessment is that there is much to be done to make China a preferred destination for international commercial dispute resolution, as the political leadership would like. I agree and would add that Chinese institutions could improve their soft power in specific, discrete ways by “making reference to the beneficial experience of foreign institutions” (对世界上的优秀法治文明成果要积极吸收借鉴) or considering some new ideas. Why it is so difficult merits extended discussion (elsewhere). It appears to require some legal and institutional flexibility, openness to outsiders and outside practices, and practical thinking about how those ideas or practices could adapted to the Chinese environment. It seems these qualities are in short supply these days when the emphasis is on self-reliance and in judicial reform, “Chinese style and self-owned brand.” Justice Tao draws on the beneficial international experience of several SPC judges to make a suggestion that implies greater institutional flexibility. She does not address the possible legal obstacles, but what is important is the signal that she is considering ideas other than the tried and true.

China’s legal infrastructure lags behind the trend of international developments

Justice Tao points to what the international community has done in harmonizing international commercial legal rules through the New York Convention [Convention on the Recognition and Enforcement of Foreign Arbitral Awards], Singapore Convention on Mediation, Hague Judgments Convention, and the Mauritius Convention, as well as the related Model Laws. She notes that China has only ratified and implemented the New York Convention, while the other conventions have not been ratified or lack supporting measures. The Civil Procedure Law and Arbitration Law are being revised, and commercial mediation and investment arbitration legislation are absent.

While I will leave the analysis of the current amendments to the Civil Procedure Law to those who have greater expertise than I, I believe neither the amendments nor the latest socialist education campaign will sway litigants who have selected the New York, English, Hong Kong, or Singapore courts for dispute resolution. It is difficult to know whether issues lie in the original draft proposed by the SPC or have resulted from comments from the NPC’s Legislative Affairs Commission or other institutions involved in commenting on the draft before it was made public.

She recommends “promoting” the revision of the Arbitration Law to incorporate more elements from the Model Law, specify the seat of arbitration, and accelerate the efficiency of the enforcement of arbitral awards. It is not clear what she means by the latter and she may be just expressing a general concern with efficiency.

On the Arbitration Law, it is not apparent whether there has been any progress since I last wrote about the SPC’s contribution to the complicated amendment process in December of last year. From press reports of discussions of the draft and related training sessions, it appears that work is continuing behind the scenes until major points of disagreement are resolved. Other than the summary of the statement that Justice Tao made to the Chinese People’s Political Consultative Conference (CPPCC)’s Committee on Social and Legal Affairs last year, we do not know what views the SPC expressed and the bases for those views. That being said, this is not usual when it relates to the SPC contributing to the drafting or amendment of legislation. As I wrote then, it appears from her summary that views from several different divisions and offices of the SPC are reflected in what she said, including the #4 civil division (responsible for international arbitration matters), #3 civil division (intellectual property and anti-monopoly), and the enforcement bureau.

On the Singapore Mediation Convention and Chinese commercial mediation legislation, this is the second official signal I have seen from the SPC that such a law is needed–the one seen earlier was in the SPC’s Specialized Report on Foreign-Related adjudication work. Drafting such legislation would be within the bureaucratic authority of the Ministry of Justice. It is understood that the Ministry of Justice is communicating with the Ministry of Commerce, to draw on the technical expertise that resides with the Chinese negotiator of the Singapore Mediation Convention and the UNCITRAL Model Law on International Commercial Mediation and International Settlement Agreements Resulting from Mediation and those who worked to support the Chinese negotiator. This 2021 article by Professor Jiang Lili of the China University of Political Science and Law on mediation legislation challenges does not give positive signals about an internationalized commercial mediation law, but that may predate the ongoing communications. Justice Tao flags researching the feasibility of ratifying the Hague Judgments Convention and the “Singapore Mediation Convention”. A team at the Chinese Academy of Social Sciences has already undertaken detailed research on what would be required for China to ratify the Singapore Mediation Convention. I am not aware of serious research related to the possible ratification of the Hague Judgments Convention. Mr. Wen Xiantao of the Ministry of Commerce has recently published a comparison of the New York, Singapore Mediation Convention, and Hague Judgments Convention.

On investment arbitration legislation, Justice Tao suggests that a mechanism should be put in place to enable the recognition and enforcement of Washington Convention (ICSID) awards. She does not detail the mechanics. That means that she has recognized the issue and it may mean others are considering how it could be most easily done.

2. Chinese international commercial dispute resolution institutions lack sufficient voice and are not competitive enough

She points to international commercial courts elsewhere in the world and to international long-term contracts and high-value transactions still mainly being based on the application of Anglo-American law, the dominance of dispute resolution (China-related, presumably) still being in the hands of the United States and the West, and the competitiveness of Chinese institutions being insufficient. Involvement in litigation or arbitration she finds not conducive to the protection of China’s relevant sovereignty, security, development interests and overseas interests. I have heard and read this often and would not expect Justice Tao to state otherwise.

I do not take Justice Tao’s comments as a scientific assessment of where arbitration cases involving Chinese parties are being heard. My own unscientific sample based on inquiries with senior lawyers at major Chinese and international law firms indicates a preference for Hong Kong International Arbitration Centre (HKIAC), Singapore International Arbitration Centre, and ICC International Court of Arbitration clauses, depending on the location of the project. I see a preference in major transactions for English law rather than New York law, reflected in the involvement of the “magic circle” [English] law firms and some of the “red circle” firms representing major SOEs in major arbitration or litigation. She does not specify what she means by “international long-term contracts”–possibly the FIDIC set of construction contracts. On the competitiveness of Chinese institutions, prior to Covid, Chinese institutions were actively marketing themselves, and this practice is starting to come back this year. Chinese dispute resolution institutions might want to do a better job of listening to issues raised by users. This practice seems to be usual among the leading international arbitration institutions, but in my experience, Chinese arbitration institutions have not sufficiently borrowed this practice.

3. Improvements needed with the China International Commercial Court (CICC)

Justice Tao says that the CICC cannot play its intended role because it lacks full-time judges, full-time staff, and its own budget. (I had flagged this in 2018), but such matters are not usually made public. The fact that she mentions this signals deep frustration. The significant number of staff that the SPC borrows from the lower courts also suggests that other central institutions are benefiting from greater headcount in preference to the SPC. Justice Tao also proposes that Hong Kong and Macau part-time judges be permitted to join the CICC.

Whether such judges would meet the requirements set by the Organic Law of the People’s Courts and the Judges Law does not seem to be clear. What is important is the signal that she is considering new ideas. It appears that Justice Tao is looking to the beneficial experience of SPC judges as part-time judges with United Nations institutions.

____________________________________________

Many thanks to the highly knowledgeable peer reviewers, who commented on several earlier drafts of this article.

About Me, Monitor

Stepping Back

April 1, 2023 Supreme People's Court Monitor 4 Comments

The Supreme People’s Court Monitor will soon have its 10th birthday. It has transformed my life in many ways. But sorting through 10 years of blogposts and many other materials relating to the Supreme People’s Court (SPC) I have gathered over the past 30 years, takes time. So I plan to post only occasionally from now on and focus my efforts on putting together something on the SPC that is readable and understandable to those outside of China, and that my readers inside the System (体制) consider an accurate analysis of a dynamic, extremely complicated institution.

For those students and others who cite this blog in their writings (see Bluebook, OSCOLA, and 法学引注手册) and might be concerned that this blog is not “peer-reviewed,” please check the particular blogpost. You may find that I have thanked one or more anonymous peer reviewers (anonymous to the reader, not to me).

What’s new?

Some Answers Are More Important Than Others

How does the Answers Database operate?

What are “understanding and application” publications?

Background: The Thematic Education Campaign

Implementing the SPC’s Proposed Solutions

Inter-institutional measures

Concluding Comments

金融法治前沿（Frontier(s) of Financial Law)

Guidance on the Trial of Duty-Related Crime (职务犯罪审判指导)

1. SPC’s official website

2. China International Commercial Court (CICC)

SPC’s Intellectual Property Court

Concluding Comments

I. Overview of the 2023 SPC Work Report

Some statistics

II. Serve the overall situation effectively and ensure high-quality development and high-level security with active justice

Assisting the Strengthening of the Construction of the Financial Rule of Law

Promoting the Development and Growth of the Private Economy in Accordance with Law

III Safeguarding and Enhancing People’s Livelihood through Active Justice

IV. Promoting National and Social Governance through Active Justice Which Practically Grasps the Front End and Treats the Disease Before it’s too Late

V. Ensuring Judicial Justice through Actively Performing Duties

More specific selected statistics

VI. 2024 Work Targets

Why this New Case Database?

Case Selection Process

Unresolved Issues for the Case Database

Judicial Interpretations

typical cases

Other judicial normative documents

Concluding Comments

I. Take a Political View and Handle Matters According to the Rule of Law (从政治上看 从法治上办）

II. Active Justice (能动司法）

III. Grasp the Front End and Engage in Preventative Treatment (“抓前端、治未病”)

IV. Win-win (both parties winning), Win-win (multiple parties winning), Winning Together （双赢多赢共赢）

V. If I were suing (如我在诉)

VI Judicial Administration （审判管理）

VII. All Letters (and visits) Must Be Answered (有信必复）

VIII One Network一张网

IX Line Guidance (条线指导)

X. Investigation and Research 调查研究

Concluding comments

What is New?

Ongoing issues

Greater significance

1. Typical cases

2. Political importance

3. Takeaways From the Press Release

a. CICC and other international commercial courts

b. Encouraging mediation and an organic connection between litigation, arbitration and mediation

c. Improving rules in foreign-related commercial cases

d. Actively participating in legislation revision

e. “Forthcoming Attractions”

Typical cases that are not cases

Resolving disputes at source

Why Select Real Estate and Construction Disputes?

Lessons from the cases

Comments

What does it say?

Formalities

To what cases does it apply?

Why this guidance?

What other insights are there?

A blog discussing China's highest court

I. Take a Political View and Handle Matters According to the Rule of Law (从政治上看从法治上办）