I recently published an article in the Tsinghua China Law Review on Chinese case law in practice, building on several blogposts I had previously written and articles by fellow bloggers Jeremy Daum and Mark Cohen. Many thanks are due to the persons who shared their experience and observations with me. A special thank you is due to the persons who provided detailed comments on earlier drafts.
In August, 2016, I wrote about how non-guiding Chinese cases are guiding the development of Chinese law. I described what I saw as a prevalent practice in the Chinese judiciary that judges search a particular issue to see how other courts have decided a particular issue or the elements to which they have looked when deciding a particular issue. In that blogpost, I questioned whether the Supreme People’s Court (SPC) had noticed this practice. Under a recent SPC policy document that will become effective on 1 May, this prevalent practice will become a required practice. The SPC’s Opinions on Putting a Judicial Responsibility System in Place and Improving Mechanisms for Trial Oversight and Management (Provisional) contains the following phrase:
6. All levels of people’s courts shall give full play to the professional judges’ conferences and adjudication committee’s roles in summarizing trial experience unifying judgment standards; and on the foundation of improving working mechanisms such as consulting similar cases and judgment guidance; a mechanism is to be established requiring the search of similar cases and relevant cases, to ensure a uniform judgment standard for similar cases, and the uniform application of law.
This requires judges to do what many of them have been already doing –searching the case databases for prior cases that raise the same or similar issues and other issues related to the principal one(s). This principle will be applicable to judges hearing all sorts of cases–civil, criminal, administrative, enforcement, and intellectual property. It will not be evident to the reader of a Chinese judgment or ruling that searches have been done because non-guiding cases may not be cited.
Requiring a search of prior and related cases is an important step in the evolution of the Chinese case law system. That system (as I wrote recently), supplements and informs judicial interpretations. Judicial interpretations often take years to be finalized. National legislation (by the National People’s Congress and its Standing Committee) is hopelessly inadequate for the needs of the court system. Case law is needed to fill in the gaps. Judges, who are assuming greater individual responsibility for their decisions, need case law for more specific guidance.
In her remarks in November, 2016 focused on intellectual property, Justice Tao Kaiyuan revealed the thinking of the SPC leadership:
The construction of the case guidance system [Chinese case law] is not to create a new legal source, but to…uncover the broader consensus of the industry, to further refine legal rules and to provide better law for society. It is also expected to lay the foundation for the drafting of judicial interpretations…The function of the intellectual property case guidance system is to enhance the predictability of the judiciary by establishing an intellectual property case guidance system to promote the unity of judicial standards.
In honor of the Qingming Festival, one of the Supreme People’s Court’s (SPC) media outlets, Faxin, published a set of cases on veneration rights (祭奠权). The cases were previously published in Selection of People’s Court Cases (人民法院案例选, edited by the China Institute of Applied Jurisprudence (Applied Jurisprudence Institute) (one of the research institutes affiliated with the SPC). This publication is one of the authoritative case collections of the SPC. Litigation related to the honoring of deceased relatives has been on the increase in recent years, a sign of fundamental changes in Chinese society. Among the cases in this category are:
- rights to be informed about the death of a relative or friend and the location of burial;
- rights related to burial or storage of ashes; and
- rights relating to tombstones, with a number of cases involving a sibling omitting the names of others on a parent’s tombstones.
This is one of the many areas where there is a blank space in Chinese law, but where litigation is on the rise. The principal case highlighted was a 2007 case tried in Beijing’s Fengtai District People’s Court, published in a 2009 collection:
Cui Yan v. Cui Shufang. Cui Yan was the granddaughter of a deceased couple, Cui Jinshu and Li Runhua. She sued her aunt, Cui Shufang, for failing to inform her about the death of her grandmother (the grandfather passed away many years before). The court ruled that the aunt did not have a legal obligation to inform the granddaughter, although informing her would be in accordance with good morality, but Cui Yan did not visit or care for her grandparents during their lifetime and that was more significant than saying farewell to the departed. The facts of the case are familiar to people around the world–the grandmother left her apartment to her daughter in her will, excluding her other children. The aunt, in defense of what she had done, alleged that Cui Yan’s parents had abused the couple.
Huang Bin, researcher of the Applied Jurisprudence Institute, who edited the case, noted that the case raised three questions: whether Chinese law protects the right to venerate ancestors; if it constitutes a right, then what constitutes a violation of that right; and conversely, what circumstances do not violate that right.
Huang noted that Chinese law does not protect that right, currently, but in his view, it should, looking to legal theory to support his argument and analogizing it to the right of privacy. A breach should be covered by the elements of tort law: infringement of rights protected by law; fault; damage to the infringed party; an causation. Although these cases occur frequently, the editor remarked that few people research this. It raises issues such as: who should enjoy this right, what type of notice should be required, how to calculate damages, and exemptions. The editor suggests looking at resources outside the court, such moral reasoning, administrative assistance, mediation and so on, in order to save court resources.
Although statistics on the number of cases are not available, a quick search of one of the judgment databases revealed about 100, arising primarily in Beijing, Shanghai, and Zhejiang. According to a recent press report, a Beijing court recognized veneration rights of a bereaved father. The father had sued his son in law for damages in the amount of 100,000 RMB for removing his daughter’s ashes without informing him and seeking the right to determine where the ashes should be stored. The court ordered the son in law to pay 20,000 RMB damages to his father in law for inflicting mental distress, compensate him for the cost of a portrait of his daughter, but said the widower had the right to determine where the ashes should be stored.
The drafting of China’s Civil Code is underway and unbeknownst to the world outside of China, whether the Civil Code should recognize veneration rights is part of the discussion. The fact that these cases are on the increase is significant for what is means for changes in Chinese society, how ordinary Chinese people are using the courts, and the place of traditional customs and morality. These cases are one of many in which Chinese judges find themselves having to deal with claims to individual rights in the absence of clear law.
In August, 2016, the Supreme People’s Court (SPC) #2 Circuit Court issued a sset of 30 case summaries (literally important points, 案例要旨）on administrative cases, selected from the many administrative cases heard in the first year and a half of operation. The #2 Circuit Court hailed it as a new type of case guidance (审判新指南) in March, 2017. This type of case guidance is mentioned in my forthcoming article in the Tsinghua China Law Review. Although this document does not have any formal status (at least yet) in the universe of SPC case guidance, it has been approved at a conference of administrative judges in Liaoning, Heilongjiang, and Jilin, and the rules it sets out should be considered highly persuasive to courts in those three provinces.
It is likely that these cases will provide background material for a more comprehensive judicial interpretation of the Administrative Procedure (Litigation) Law than the one issued shortly after the amended law was promulgated. Some of these cases have also been incorporated into the SPC’s 10 model #2 Circuit Court cross-administrative region commercial and administrative cases. The document does not include a summary of the underlying facts, but some of the full case reports are found elsewhere. Each case (most relate to land disputes) provides a glimpse into the behavior of local government vis a vis ordinary Chinese citizens and companies, the (limited) scope for review of administrative action under Chinese law, and the unusual legal issues in the review of administrative action. Brief commentary follows each case summary restatement. on 1 April, Wang Cailiang, the deputy chair of the All China Lawyers Association, published Wechat commentary on administrative litigation and judicial reform. Highlights of some of his comments follows the case summaries.
#5. Fan Chunsheng v. Heping District, Shenyang Government: issue–compulsory administrative act and administrative compensation case:
If the administrative organ illegally demolishes the plaintiff ‘s house, the compensation standard must not be lower than the compensation standard that the plaintiff may obtain according to the administrative compensation scheme. The plaintiff’s request for compensation must be upheld by the people’s court in accordance with the amount that can be obtained through the compensation scheme.
[The full text of the case is found here. It involved a man whose home was demolished. The court determined that the parties had not come to an agreement about compensation and the District Government had not gone through proper procedures to expropriate Mr. Fan’s property. The facts are similar to some of the model demolition cases released by the SPC several years ago.]
#16 Siping Haifeng Garden Real Estate Development Co. v, Siping (Jilin) People’s Government: issue–are government meeting summaries actionable?
A government meeting summary that is considered to be an internal government document setting out possible approaches in dealing with certain problems, but without a real impact on the rights and obligations of the parties, will be considered an administrative act that is not actionable. However, if the government uses the form of a meeting summary to make an administrative decision with legal effect, it is considered an actionable administrative action. The “externalization” of the meeting summary is necessary for the meeting summary to be actionable. Even if the contents of a meeting summary has been notified or delivered to the relevant parties, but if it remains a description of possible approaches, rather than an effective administrative decision, it will be considered a non-actionable administrative act with no real effect on the parties’ rights.
[The rule here indicates that is how the document is being used, rather than the form of document that determines whether a court can review it.]
#19, Zhang Qinghai v. Benxi Municipal Government–issue: is a decision by a provincial level government to expropriate land actionable
According the provisions of Article 30 (2) of the Administrative Reconsideration Law and Reply of the SPC to a question concerning Article 30(2) of the Administrative Reconsideration Law, a decision by the State Council or provincial level governments concerning the expropriation of land and a related administrative reconsideration decision is considered acts of final decision and is not within the scope of cases than can be accepted under the Administrative Litigation Law.
[A brief search of some other jurisdictions reveals that this type of decision can be challenged under the law of some other jurisdictions: United States federal and state law and German law, for example].
#23, Han Yawen v. Zhaoyuan County, Heilongjiang People’s Government–issue: is an agreement not to petition (息诉罢访协议) actionable
An agreement not to petition between an administrative agency and a petitioner is an agreement with rights and duties under administrative law between an administrative agency with a petitioner to maintain social order and stability, in the public interest and in furtherance of administrative functions, according to the localism principle, the relevant government provides money or other benefits and should be considered a type of administrative agreement. When a people’s court accepts this type of case, it should review the legality of the content of the agreement according to law.
[Further background on the case found here. the SPC rejected Han’s application for retrial because the statute of limitations had lapsed). (A form of agreement found here. This 2011 book chapter mentions that these agreements could be challenged in theory, but the inclusion of this principle shows that petitioners often seek to challenge them, at least in the northeastern provinces.]
A summary of remarks by Wang Cailiang, on whether the amended Administrative Litigation Law, in effect for almost two years, will be able to make progress:
- On government interference: “I can responsibly say that most grass-roots courts consciously or unconsciously play the role of a subordinate department of the local government…. in recent years when local governments promote the redevelopment of shantytowns, major projects, development zones, with which the local court also either actively or passively cooperates, there exists a conflict between the citizens right to administrative review (reconsideration) and litigation. Moreover, the Government on the one hand needs the court to give support in implementing the project; the other hand, the government wants to spend less money. It creates an enormous obstacle to hearing administrative cases fairly and equitably.
- More hard work needed to resolving social conflicts (contradictions): in 2016, there were high numbers of administrative litigation and petitioning, with old and new issues, caused by housing condemnation, land expropriation, administrative enforcement…Affected parties sought to protect their rights through the courts, and 225,000 administrative cases were accepted by the courts, with a clear increase of cases against county governments accepted by intermediate courts, and even the SPC had accepted over 2000 by the end of September. This has to do with the amended Administrative Litigation Law and clarity that county governments are the parties to expropriate land [under the relevant legislation], which means that the rate at which government is losing cases is rising, although the SPC hasn’t released 2016 data. In July-August, 2016, documents issued by the State Council General Office and the SPC on administrative agencies responding to law suits has improved matters. Also, under the new law, the reconsideration organ is the joint defendant with the original authority, so this changes the venue for these law suits, giving affected parties more hope…In 2016 there were major issues with demolition disputes after courts determine that administrative action by the court is illegal, some local governments reject the decisions and refused to take the initiative to correct the error, failure to make timely compensation to the plaintiff is very common…Even in cases where people should be prosecuted for criminal violations, not one has…
- There are too many wrongly decided cases–reasons–besides interference, professional competence of judges, traditional way of thinking of courts…
- Few administrative cases are resolved on time (he can tell this although the SPC has not released statistics),
- Some problems remain with the case registration system.
- He suggests proceeding on the rule of law route–promoting judicial reform and cross-administrative region courts; open up public opinion, so administrative litigation proceeds in the sunshine; having the SPC curb its tendency to issue judicial interpretations [this is entirely impractical, in my view]; and send the judges out of the case registration division and back to the trial divisions.
- He summarizes, but does not comment on remarks made by Meng Jianzhu (Meng), head of the Communist Party’s Central Political Legal Committee at a meeting on 29 March of the Leading Small Group on Judicial Reform with senior members of the political legal leadership (head of the Ministry of Public Security, presidents of the Supreme People’s Court and Procuratorate, Minister of Justice, etc.) that the targets of judicial reform (he means the political legal institutions, not just the judiciary) need to be achieved before the 19th Party Congress and admitting there have been difficulties in implementing some judicial reforms. Meng directed the authorities to research the problem and come up with practical solutions.
- Wang concludes by saying that the specific goals in this round of judicial reforms have never been made public–how far it is to go, so the public does s not understand them, so it lacks societal supervision, understanding and support–the effectiveness of a reform that lacks public participation naturally will be reduced, and we must be concerned about this. (然而，这一轮司法改革的具体的目标在开始至今并没有公开，以致要走到哪一步社会不了解，从而缺少社会公众的监督与理解、支持。一个缺少公众参与的改革，效果必然大打折扣，这是我们不能不担心的.)
Judging from a limited sample (such as the report done by the #2 Circuit Court), at least some of the research and analysis that is being done within the political legal institutions is insightful and practical. But as President Trump has said about health care, “It’s an unbelievably complex subject, nobody knew that health care could be so complicated.” The same can be said about reforming the Chinese judiciary.
As my fellow blogger, Jeremy Daum and I have written, China’s guiding case system has captured the attention of the world outside of China, likely due to a combination of the special status accorded guiding cases by the Supreme People’s Court (SPC) and the impressive efforts of Stanford Law School’s China Guiding Cases Project. One of the ways that the SPC supervises and guides the lower courts is by publishing handbooks to aid the lower courts in quickly determining the applicable legal rules in a system in which a comprehensive legal code is the ideal but not the reality. One of those handbooks is the set of books pictured above, the Collection of the Supreme People’s Court’s Judicial Rules (Collection of Judicial Rules) (最高人民法院司法观点集成), published by the People’s Court Press, now in its 2nd edition. A closer look at the Collection of Judicial Rules provides insights into sources of law used by the SPC, and China’s evolving case law system, including the place of guiding cases
As described by Judge Liu Dequan, the general editor, the sources include;
- Judicial interpretations;
- the spirit of judicial policy (from the speeches of the SPC president and vice presidents responsible for the substantive area);
- responses (答复) issued by the various divisions of the SPC;
- opinions (意见), answers, (解答)，trial case handling guidance (审判办案指南) research opinions of the research office (研究意见) and other guidance issued by the various divisions of the SPC and speeches given by the heads of those divisions at national court conferences (these blogposts summarized the takeaways from some court conferences);
- guiding cases, SPC cases, SPC bulletin cases.
- Supplemented by the principal views of SPC judges and writings of SPC judges.
Below are samples from one of the volumes on administrative law:
A party that disputes compulsory measures imposed by the family planing authorities to freeze property, limit personal freedom etc. can file administrative litigation (#22)
The response cites a 1996 judicial interpretation, supplemented by a selection from a book by Judge Jiang Bixin and Liang Fengyun, that confirms that the courts may accept such cases.
The act of issuing a transcript and diploma by a higher education institution is within the scope of administrative litigation (#42)
The editors cite the 2014 administrative litigation trial case handling guidance and several SPC bulletin cases. The case guidance provides that when higher education institutions issue transcripts, diplomas, and expel students, they are acting under authority delegated by law, and so those are administrative acts which a party may challenge under administrative litigation law.
The editors then set out the bright line rule (要旨) set out in several SPC Bulletin cases: Tian Yong v. Beijing Science & Technology University (1999) (re-issued as guiding case #38) and Yang Baoxi v. Tianjin Clothing Technical School (2005);
Then they cite several administrative trial guiding cases, including Wu Huayu v. Central China Agricultural University.
If there is a conflict between laws, the hearing of the case must be suspended while a response to request for instructions is received from the SPC (#351)
The editors set out a 1996 response of the SPC (made after consultation with the State Council Legislative Affairs Office) to the Fujian Higher People’s Court concerning the exploitation of geothermal water resources.
The editors then set out a SPC Bulletin case, Fujian Hydropower Design Institute disputes an administrative penalty decision by the Provincial Land & Mining Department, summarizing the bright line rule (as above). The editors then supplement the cases with an excerpt from the publication by Judges Jiang Bixin and Liang Fengyun mentioned above.
The sources used by the SPC judges in compiling the handbook may (or may not) be surprising to a foreign observer–such as the speeches by court leaders and various types of responses by SPC divisions that have no publication requirement. These sources appear to reflect SPC practice and do not seem to be consolidated into some type of legal rules. While the SPC’s transparency is far greater than before (especially for a person with historical perspective), there are still significant gaps that face lawyers, litigants, not to mention researchers.
The SPC sees its case law system (still evolving) as a supplement to judicial interpretations. The drafting process for judicial interpretations is a slow one (take the example of the demand guarantee judicial interpretation). It can easily take several years for an interpretation to be finalized, particularly in the area of civil and commercial law, because SPC judges working on these interpretations must take into account comments from a large variety of interested parties. The rules set out in judicial interpretations must be able to stand the test of time and adjustments to government policies. Case law is seen as filling in the gaps. But as can be seen from the excerpt from the handbook above, and recent comments by SPC Vice President Tao Kaiyuan, the 77 guiding cases, while having an anointed place in that case law system, are one part. Justice Tao Kaiyuan’s comments also reveal that case law, including guiding cases, is seen as being useful for the drafting of judicial interpretations:
The construction of the case guidance system [Chinese case law] is not to create a new legal source, but to…uncover the broader consensus of the industry, to further refine legal rules and to provide better law for society. It is also expected to lay the foundation for the drafting of judicial interpretations.
Tao Kaiyuan pointed out that the Supreme People’s Court Intellectual Property Case Guidance Research (Beijing) base is creating a guidance system for intellectual property cases with SPC Guiding Cases, cases published in the SPC Bulletin and cases published by the SPC’s Case Research Institute [under the auspices of the National Judicial College], and issued model (typical) cases, are an interactive mutually complimentary whole (是相辅相成、互为补充、互联互动的整体). The function of the intellectual property case guidance system is to enhance the predictability of the judiciary by establishing an intellectual property case guidance system to promote the unity of judicial standards.
Year end 2016 judicial statistics that will be issued in President Zhou Qiang’s report to the National People’s Congress will document that the number of cases, particularly civil and commercial cases, in the Chinese courts continues to rise at a rate that far exceeds China’s GDP. Case law, including guiding cases, is one source of legal rules that Chinese judges consider when dealing with those cases, whether deciding whether a case should be accepted, seeking to mediate a case, deciding a case, or enforcing a court judgment or ruling.
Recently the Supreme People’s Court (SPC) took another step in making its Gazette accessible to a mass audience, by establishing an electronic platform accessible from the Supreme People’s Court website: www.gongbao.court.gov.cn.
What benefits does the Gazette webpage have for the user? They include easy:
- Access to the cases published in the Gazette. As this blog has highlighted earlier. cases published in the Gazette, both selected judgments (裁判文书选登), cases decided by various trial divisions of the SPC and reflect their views on certain issues, and cases (案例), model cases submitted by the local courts (through the provincial high courts), which have been reviewed by the various trial divisions of the SPC, are considered quite persuasive, although not as authoritative as guiding cases. Those can be accessed through a full text search of the term being researched.
- Checking of which lawyers frequently practice at the SPC, through searching “selected judgments.”
- Following the careers of SPC judges. Below is a search for Huang Songyou, the disgraced SPC vice president:
- Searching prior SPC reports to the NPC for key words, such as ”judicial reform“ or “state security.”
- Searching historical judicial statistics, for certain terms–second instances returned results, while “death penalty review” did not.
- Searching of judicial interpretations and judicial documents (policy and other SPC documents not considered to be judicial interpreations.)
The Supreme People’s Court (SPC) database, China Judgments Online, receives good marks from most commentators inside and outside of China and it is one of the successes of the judicial reforms that President Zhou Qiang often discusses with visiting foreign guests as well as domestic officials. Only now has a team of researchers from Peking University drilled down on the case database (but only through 2014, because the data was not complete for 2015) (short version found here and full version here). They found that there is room for improvement.
The researchers found that only about 50% of number of cases resolved in the Chinese courts (about 30.5 million during 2014-2015) have been uploaded to the case database (14.5 million).
Level and type of case
Almost 80% of the cases uploaded are from the basic level courts, with intermediate level courts accounting from almost 19%, and fewer than 1% from the SPC.
Are courts uploading cases to the database consistently?
The map above is based on an analysis of 2014 data. Shaanxi, Zhejiang, Shandong, Anhui, and Hebei provinces were the best performers, particularly Shaanxi; Henan, Fujian, Hunan, Hubei, Guangxi, and Ningxia were in the second tier, uploading at least half. The less transparent courts include Tibet, Xinjiang, and Guizhou.
[I personally expected that Shanghai, Jiangsu, and Guangdong would be more transparent.]
Are cases uploaded consistently throughout the year?
At least in 2014, there was a half year and year end rush to upload cases. It appears that the uploading of cases is one of the items for judges performance appraisal.
- More than half of judicial documents have not been uploaded to the database, including judgments in some of the more controversial cases.
- Technical issues complicate the uploading process. Because the courts are administered locally, the IT systems are local as well.
- The regulations set out vague standards for taking down a judgment/ruling. When objections are made, the cases are taken down with little review. [As I have commented in relation to streaming of court cases, the absence of privacy legislation is an issue, because judges lack specific guidance on what information is regarded as private.]
- Large gaps exist between the coastal and inland provinces in uploading judgments, with long delays an issue as well, although the regulations require judgments to be uploaded 7 business days after they take effect (this provision is unchanged from the 2013 version).
- Monitoring of the database is an issue. The SPC has been stressing the quantity of judgments uploaded, while insufficient attention is paid to quality. [This may have something to do with tendency of some Chinese academics to focus on theory or comparisons among jurisdictions, rather than engage in a more focused study on what their own court system is actually doing.]
The Chinese government has allocated USD $40 billion to the Silk Road Fund associated with the One Belt One Road strategic initiative, to improve infrastructure overseas. China’s judiciary, an important part of the nation’s legal infrastructure, requires better funding as well. Even a tiny percentage of that $40 billion would go far to contribute to improve courts’ IT infrastructure, not to mention improved salaries, and the retention of the research departments of local courts.
Investment in the courts is needed to bolster the Chinese (not to mention foreign) public’s confidence in the Chinese courts’ ability to provide a better quality of justice.
As my law school classmate, Justice John Roberts, said several years ago, when confronted by budget cuts to the US federal judiciary:
At the top of my list is a year-end report that must once again dwell on the need to
provide adequate funding for the Judiciary.I would like to choose a fresher topic, but duty calls. The budget remains the single most important issue facing the courts….
The Judiciary continues to depend on the vision and statesmanship of our colleagues in the Executive and Legislative Departments. It takes no imagination to see that
failing to meet the Judiciary’s essential requirements undermines the
public’s confidence in all three branches of government. Both A Christmas
Carol and It’s a Wonderful Life have happy endings. We are encouraged
that the story of funding for the Federal Judiciary—though perhaps not as
gripping a tale—will too.