Supreme People’s Court Establishes a Mechanism for Resolving Inconsistent Decisions

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On 11 October, the Supreme People’s Court (SPC)  issued brief guidance establishing a mechanism for resolving its inconsistent decisions, entitled “Implementing Measures on Establishing a Mechanism for Resolving Differences in the Application of Law (Implementing Measures) (关于建立法律适用分歧解决机制的实施办法).  The guidance did not appear in Chinese legal media until the end of October. The intent of the guidance is to create a mechanism to resolve the old problem of inconsistent court decisions concerning the same issue (same cases decided differently 同案不同判) made by Chinese courts and even within the SPC. Widespread use of the SPC’s judgments database has brought this phenomenon to greater public attention.  With the explosion in the number of cases in the Chinese courts and in the SPC in particular in recent years, the issue of divergent views within the SPC on the same issue is likely to be occurring even more frequently.  The concern about uniformity or consistency of judicial decisions has its roots in the traditional Chinese legal system and is an ongoing topic of discussion among Chinese judges, legal practitioners, legal academics, and law students.

For those with an interest in the details of how the SPC operates, this document does not have the status of a judicial interpretation but the SPC’s judicial committee has approved it, as is evident from the title of the document (measures/办法 and the document number 法发〔2019〕23号 (Fa Fa (2019) #23.  Judicial interpretations must have one of four titles and have a document number with  Fa Shi 法释.  The reason that the SPC judicial committee approved it is linked to Article 7 of the recently released guidance on judicial committees: “the adjudication [judicial] committee of the Supreme People’s Court is to unify law through means such as adopting and drafting judicial interpretations and normative documents (规范性文件), and publishing guiding cases.”

This mechanism has its antecedents in several previous judicial reform documents, and is one that is contained reform measure #23 of the last round of judicial reforms and reform measure #26 of the current round::

#23….Complete and improve working mechanisms for the uniform application of law.

#26 Improve mechanisms for the uniform application of law. Strengthen and regulate work on judicial interpretations, complete mechanisms for researching, initiating, drafting, debating, reviewing, publishing, cleaning up, and canceling judicial interpretations, to improve centralized management and report review mechanisms. Improve the guiding cases system, complete mechanisms for reporting, selecting, publishing, assessing, and applying cases. Establish mechanisms for high people’s courts filing for the record trial guidance documents and reference cases. Complete mechanisms for connecting the work of case discussion by presiding judges and collegial panel deliberations, the compensation commission, and the judicial committee. Improve working mechanisms for mandatory searches and reporting of analogous cases and new types of case. (完善统一法律适用机制。 加强和规范司法解释工作,健全司法解释的调研、立项、起草、论证、审核、发布、清理和废止机制,完善归口管理和报备审查机制。完善指导性案例制度,健全案例报送、筛选、发布、评估和应用机制。建立高级人民法院审判指导文件和参考性案例的备案机制。健全主审法官会议与合议庭评议、赔偿委员会、审判委员会讨论案件的工作衔接机制。完善类案和新类型案件强制检索报告工作机制)

A brief summary of the mechanism is set out, followed by my preliminary thoughts on the mechanism and related issues.

The mechanism

The Implementing Measures, which went into effect on 28 October,  provide that if certain SPC entities or lower courts discover that the SPC has issued valid judgments (判决) or rulings (裁定) (the Chinese term is “生效裁判”) which apply the law differently (存在法律适用分歧), or an ongoing case may result in the later decision applying the law differently from that in a previous SPC case, the matter should be brought to the attention of the SPC judicial committee through an application process managed by the Trial Management Office.

Article 1 of the Implementing Measures designates the SPC judicial committee (also translated as adjudication committee 审判委员会) as the institution to resolve and guide differences in the application of law.

Article 2 authorize  operational divisions of the SPC (业务部门), the higher people’s courts and specialized people’s courts to submit an application to the SPC’s Trial Management Office which may be eventually considered by the SPC’s judicial committee if either:

  1. there is a discrepancy in the application of law of judicial decisions of the SPC that are already effective (最高人民法院生效裁判之间存在法律适用分歧的);
  2. or there is a difference in the application of law between the conclusions in a case being tried and principles or standards on the application of law already determined in effective decisions of the SPC  (在审案件作出的裁判结果可能与最高人民法院生效裁判确定的法律适用原则或者标准存在分歧的).

Article 3 authorizes the China Institute of Applied Jurisprudence  (CIAJ) to submit an application to the Trial Management Office if it encounters differences in the application of law in effective judgments of the SPC that it encounters during its focused research work on like cases decided consistently (类案同判专项研究).

If the Trial Management Office determines the matter should be accepted (project initiation) (立项), that office is required to refer the matter to the CIAJ, which is required to provide an initial view to the Trial Management Office within five working days.  Presumably, they will do little additional research and will focus on reviewing the materials submitted by the entity involved.  In some situations, it appears to put CIAJ in the odd position of reviewing its own work.  The Trial Management Office forwards the initial view of the CIAJ to the SPC operational division involved for further review and response.  The operational division involved may involve experts in needed. The operational division should draft a response (复审意见) in a timely manner to the Trial Management Office, which should submit a request to an SPC leader (presumably the relevant SPC vice president) to place the matter on the judicial committee agenda.  Once the judicial committee makes a decision, the entity that applied for a determination is to be informed.  The Trial Management Office is required to provide a proposal containing the form and scope of the decision by the judicial committee for approval (提出发布形式与发布范围意见).  It can be anticipated that determinations on non-sensitive topics may be made public, while those on more sensitive topics will be distributed either solely within the court system or to a relevant category of judges. Article 11 of the Implementing Measures requires SPC operational divisions, local courts, and specialized courts to make reference and implement (参照执行) the SPC judicial committee’s decision in the course of their work. Presumably that will depend on how widely distributed the determination is.

Some preliminary thoughts

In my view, the mechanism is a microcosm of themes reflecting how the SPC operates.  As mentioned above, the SPC decides (either through judgments or rulings) large numbers of cases yearly, and the SPC responds to an unknown number of requests for instructions (请示), mostly on legal issues, which means that in practice that issues on the same body of law may be determined by different divisions of the SPC or different teams of SPC judges. So differences in legal issues may arise either through litigation or court administrative-type procedures. While SPC judges in practice (as I understand it) search for similar cases, it is inevitable that different people have different views on legal issues.  Unlike some other legal systems, the SPC has not evolved an en banc or enlarged panel of judges (this description of how France’s highest court operates provides a good example) as the final institution for resolving these issues.  Designating the SPC’s judicial committee reflects the traditional administrative way (官本位) that SPC makes major decisions concerning legal issues.  As I described in a recent blogpost, the members of the SPC’s judicial committee are its senior leaders.

I surmise that many of the differences in views will be resolved before the matters reach the judicial committee.  In comments made on the Implementing Measures, Justice He Xiaorong (head of the #2 Circuit Court) mentions that he has inaugurated a system of enlarged panels of judges that include those with a public law and private law background, and familiar with civil, criminal, and administrative law, to consider cases involving difficult issues. That system will reduce somewhat the pipeline of issues possibly entering this mechanism.  For those issues that enter the mechanism, it is possible that opposing views may be harmonized when the operational division of the SPC needs to respond to the points summarized by the CIAJ.  I predict that relatively few questions will go to the SPC judicial committee itself.  The mechanism may have been designed with that goal in mind or may have that impact.

Additionally, from my reading of the Implementing Measures, the drafting could have benefited from more input from greater input either within the SPC or without, which could have avoided some of the problems I point out below. I surmise that the drafters were so used to the terminology used within the SPC, they did not realize that lack of clarity will confuse the lower courts and the greater legal community, for whom this system may have practical implications. In particular, the Implementing Measures:

  1.  do not define what is meant by differences in the application of law (法律适用分歧).  Presumably, a major difference in the application of law is intended and the SPC judicial committee (and its gatekeeper, which appears to be the Trial Management Office) will consider carefully which inconsistencies merit a determination by the judicial committee. My understanding is that the judicial committee is reluctant to reverse its determinations on particular legal issues within a short time, as it seeks to provide legal certainty on particular issues through judicial interpretations and other documents.  As I described in my 2019 article on the SPC and FTZs, rules or policies included in SPC judicial policy documents may eventually be crystallized in SPC judicial interpretations and eventually codified in national law, but that process is slow and cannot meet the needs of the lower courts, which need to deal properly (politically and legally) with outstanding legal issues pending a more permanent stabilization.
  2. do not define the term “裁判,” which generally refers to judgments (判决) and rulings (裁定). To a casual reader, at least, it is not clear whether it is intended to include responses to requests for instructions (requests for advisory opinions, 请示).  As I wrote in a blogpost earlier this year, some responses to requests for instructions are entitled fuhan 复函 and others dafu 答复. The editors (from the SPC) of a two-volume collection of responses described them as ‘usually called quasi-judicial interpretation documents’ (往往被称为准司法解释性文件) and ‘a necessary supplement to judicial interpretations’ (它是对司法解释一种必须的补充).  It is not unusual for these responses to conflict with one another, as reasonable people can disagree and multiple institutions within the SPC issue responses on the same or related bodies of law.  I have not noticed a document (at least one that was made public–I’d be grateful to be informed otherwise) describing an existing mechanism requiring the drafters of these responses to review related responses issued by other divisions. Differences in the application of law could also arise between an existing response and later judgment, or draft judgment.
  3. do not define what is meant by “业务部门” (operational departments/divisions).  Does it include the SPC’s Research Office (which one knowledgeable person described as a comprehensive operational department (综合业务部门)), which often issues responses to requests for instructions?
  4. are very weak on specific procedures for when a question of law should be referred to this mechanism.  Consider, for example, a case that is being considered by one of the divisions of the SPC.  2017 SPC regulations on the SPC’s responsibility system mention professional  (presiding) judges meetings (as discussed in a 2017 blogpost and again several times this year.  The Implementing Measures do not specify whether the issue should be reviewed by the division’s professional judges meeting before it is submitted to the Trial Management Office. Presumably that will be the case, as the judicial committee guidance requires it. In Justice He Xiaorong, clarifies that the professional judges meeting is an important institution for resolving differences in the application of law.   As a practical matter, will this procedure suspend civil litigation procedures?  It is unclear.
  5. do not clarify what will be included in the package of documents that goes to the Trial Management Office. Will it be similar to the documents that go to the judicial committee under its new guidance on judicial committees? It appears that the Implementing Measures are not well integrated with the new guidance on judicial committees.   I surmise (please message me if I am mistaken) that the drafting of the Implementing Measures and the guidance on judicial committees was siloed, a frequent problem in the Chinese and other bureaucracies, so that the drafters of the Implementing Measures were unaware of the details of the new judicial committee guidance. As I wrote last month, those contain more specific requirements concerning the content of the report that the judges are required to prepare for the judicial committee, including arguments by both/all parties, prosecution/defense counsel and a clear listing of the issues on the application of law that require discussion and decision by the adjudication committee, the opinions of the professional (presiding) judges meeting.  The guidance also requires judges preparing these reports to search for similar or related cases. I surmise that these requirements will be consolidated in practice.
  6. give special authority to the CIAJ in the course of its research work on like cases. It is also possible that CIAJ could encounter major inconsistencies in its other work, such as compiling its Selection of People’s Court Cases (mentioned in my 2017 Tsinghua China Law Review article). Moreover, it is curious that the CIAJ is given this special authority but not an analogous institution in the National Judges College. Article 3 authorizes the CIAJ to submit an application relating to differences in the application discovered in the course of its work, while the Judicial Case Academy of the SPC (under the National Judges College) (see a list of its 2018-2019 research projects) has no such authority, giving the careful reader the impression that the CIAJ led the drafting of the Implementing Measures.  It appears to be a version of a phenomenon I described in a draft article, that because the SPC is a large organization, with many entities competing for top leadership attention, policy documents are sometimes drafted with  consideration of institutional interests, as a policy document approved by the SPC judicial committee can be seen as representing an undertaking by SPC leadership to the institutional goals of division or entity involved.

 

 

 

 

China’s new judicial reforms on case law & other guidance

Gazette of the Jiangsu Higher People’s Court

As mentioned in my earlier blogpost, the Supreme People’s Court issued the fifth judicial reform plan outline in February, of this year (2019), harmonized with the current focus on Party leadership. For people with the fortitude to decode Chinese official documents, some real content can be found in the document. One of those provisions is #26 and relates to the ongoing efforts of the SPC to implement greater uniformity and consistency in the way that the law is applied in the courts (the translation below is from Chinalawtranslate.com):

#26 Improve mechanisms for the uniform application of law. Strengthen and regulate work on judicial interpretations, complete mechanisms for researching, initiating, drafting, debating, reviewing, publishing, cleaning up, and canceling judicial interpretations, to improve centralized management and report review mechanisms. Improve the guiding cases system, complete mechanisms for reporting, selecting, publishing, assessing, and applying cases. Establish mechanisms for high people’s courts filing for the record trial guidance documents and reference cases. Complete mechanisms for connecting the work of case discussion by presiding judges and collegial panel deliberations, the compensation commission, and the judicial committee. Improve working mechanisms for mandatory searches and reporting of analogous cases and new types of case. (完善统一法律适用机制。 加强和规范司法解释工作,健全司法解释的调研、立项、起草、论证、审核、发布、清理和废止机制,完善归口管理和报备审查机制。完善指导性案例制度,健全案例报送、筛选、发布、评估和应用机制。建立高级人民法院审判指导文件和参考性案例的备案机制。健全主审法官会议与合议庭评议、赔偿委员会、审判委员会讨论案件的工作衔接机制。完善类案和新类型案件强制检索报告工作机制)

As for why the uniform application of law is an issue, the quick explanation is the drafting of Chinese legislation often leaves important issues unresolved and outsources to the SPC (and SPP for some issues) the hard job of drafting more detailed provisions. (see Chinalawtranslate.com for many examples and NPC_observer.com for insights about the legislative drafting process).  Comments about the role of case law are found below.

#26 mentions the following:

  • improving judicial interpretations;
  • improving the guiding case system;
  • establishing a system for higher people’s courts to record with the SPC their guiding-type documents and reference cases;
  • improving China’s case law system.

Judicial interpretations

The SPC regulations on judicial interpretation work date from 2007. Some later guidance on that topic was issued several years ago, but that guidance has not been made broadly available. So it appears that one signal that this provision is sending is that the 2007 regulations need to be updated. It appears likely that the SPC will harmonize the language in its rules with the 2015 Legislation Law. Other provisions are unclear. One guess (based on the SPC document on incorporating socialist core values into judicial interpretations) is that language about socialist core values will be incorporated into any amended rules on judicial interpretation work. The Supreme People’s Procuratorate (SPP) revised its rules on judicial interpretation work earlier this year, and it is possible that the SPC will harmonize some of the language in its rules with those of the SPP.

Another guess is that those rules will codify existing practices on drafting, discussions, etc.. As my blogpost (and recently published article) on the SPC’s Pilot Free Trade Zone Opinion details, the drafting process for judicial interpretations (and similar types of guidance) operates on the basis of long-standing practices. (My forthcoming article stuck in the academic publishing process has many more details on the drafting process for criminal procedure law interpretations).

This provision appears to be aimed at the SPC’s Research Office, which takes the lead in managing the judicial interpretation process and deals with ongoing criticism that the SPC allows inconsistent judicial interpretations to be issued. It is unclear whether the improvements mentioned will involve more public consultation than previously.

Guiding cases

I will leave detailed comments on how the guiding case system will be improved to others, as research by others (see Jeremy Daum’s article) tends to show that guiding cases are rarely cited. I surmise that the intent of the provision is to speed up the selection and approval process for guiding cases, as well as the use rate.

Local High Court Guidance

This language codifies the long-standing practice of local high courts issuing guiding rules applicable within their jurisdictions. As discussed in my article on judicial transparency, published earlier this year, senior legal scholar Li Buyun raised questions about the validity of local court guidance in his letter to the Legislative Affairs Commission of the National People’s Congress last year (2018). Article 104 of the Legislation Law forbids adjudication and procuratorate organs other than the
Supreme People’s Court and the Supreme People’s Procuratorate from making specific interpretations on the application of law. 2010 SPC guidance had normalized the long-term practice of higher people’s courts (and their equivalent in the specialized courts) in issuing documents, characterized as ‘”trial work documents” (审判业务文件) and issuing reference-type cases (参考性案例).

Evidence of the importance of the practice can be seen by the fact that leading law firms publish client alerts about important local court guidance. This provision calls for a filing for the record system (with the SPC) of higher court guidance and reference cases to be established. It is not clear whether this system (apparently intended to enable the SPC to monitor local guidance and reference cases better) will result in a system that provides greater transparency to these rules. I had noted varying transparency requirements for local court guidance in my article. The Gazette of the Jiangsu Higher People’s Court (pictured above) publishes its court guidance under the section “judicial documents” (司法文件). That Gazette also includes local reference cases, entitled reference cases (参考案例)。 Terminology for local reference cases is not consistent, with the Shanghai Higher People’s Court issuing cases with a referential nature (参考性案例).

Improving China’s Case Law System

I wrote about in greater length in this short academic article published in the Tsinghua China Law Review two years ago (and in this blogpost three years ago) on how non-guiding cases guide. This part of the #26 consolidates some of the provisions of previous judicial reform documents and signals that the SPC’s judicial reform office is focusing on how to provide better guidance to the lower courts on using non-guiding cases and other forms of guidance documents that are not judicial interpretations. One issue not specifically mentioned is the relative authority of guidance documents and judgments/rulings by courts. It is assumed that SPC decisions are more authoritative than lower court ones.

The first sentence addresses the use of other forms of case guidance and transforming this case guidance into written documents. The titles, authority, etc. of these guidance documents are likely to be settled over time. One type that I have observed is the specialized judges conference (专业法官会议)(mentioned in at least two 2017 SPC documents: Opinions on Putting a Judicial Responsibility System in Place and Improving Mechanisms for Trial Oversight and Management ;(Provisional) and the SPC’s Judicial Responsibility implementing opinion (最高人民法院司法责任制实施意见(试行)(Implementing Opinion), In these conferences, difficult issues are discussed and provided to the collegial panel involved, but the panel members are not bound by the views of the conferences. This academic study notes that it is a uniquely Chinese institution and has arisen because of judicial caution about deciding cases independently (可以说,专业法官会议是中国特色的法院内部向办案法官提供咨询意见的专门机构,是在走向审判独立的特殊过程中,对法官自由办案能力担心而产生的一种特殊组织), likely in the face of extensive and long term accountability for decisions.

Some portion of SPC specialized judges conference discussions has been consolidated in the form of documents, such as in the form of a conference/meeting summary (会议纪要).  The SPC’s #2 Civil Division (focusing on commercial issues) seems to be leading the way in publishing these meeting summaries–some of the summaries have been published in book form, also with updates published on the internet/Wechat–see this example.

The last sentence of #26 addresses the case law system. The increasing importance of non-guiding cases shows the strength of the case law system that the authorities rejected about 10 years ago. It is clear from Justice Hu Yunteng(currently president of the National Judicial College)’s recollections of the history of the case system with Chinese characteristics, that Judge Jiang Huiling, then his colleague at the China Institute for Applied Jurisprudence (and currently vice president of the National Judges College) had looked to jurisdictions outside of China to advocate that China establish a case law system (Justice Hu doesn’t specify whether Judge Jiang was looking to case law systems in civil or common law jurisdictions in the “West.”). Mark Jia (of Harvard Law School), in his 2016 article, cites Li Shichun of the Chinese Academy of Social Sciences to the effect that it was the NPC that opposed those seeking to establish a Chinese case law precedential system.
My understanding that the last sentence is intended requires judges handling a case to engage in similar case searches and to report on the results of those searches in certain circumstances (for example, to report on their search before the case is discussed in the specialized judges conference). My earlier blogpost discusses the 2018 document requiring prior case search.–the specific rules for prior case search are not yet in place. What should be searched is not entirely clear.  One knowledgeable person described prior case search as a tool for “catching valuable cases in the sea of cases.” My own understanding is that it will depend on the area of law.  It can be seen from the last blogpost the type of cases considered authoritive in criminal law, but the types of persuasive cases will differ in other areas of law. Prior case search is meant as a tool for the courts to apply the law more consistently (and consistent with the views of the SPC) (an ongoing goal of the SPC). It is also likely that new legal rules evolved in cases will eventually be crystalized in other forms of documentary guidance, be it local court guidance, an SPC policy document, or an SPC judicial interpretation.

On the topic of precedent, as I noted in my 2017 blogpost on the SPC’s implementing opinion on its judicial responsibility system, special approval within the SPC is required if a ruling in a case will be inconsistent with prior SPC rulings on the issue. It means that the SPC is seeking to improve the consistency of its judgments internally.

So it appears that we will be seeing further evolution over the next few years in the tools used by the Chinese courts to provide legal rules: judicial interpretations, guiding cases, local high court guidance and reference cases, other guiding documents, and prior cases, with many of these intended to strengthen the firm guiding hand of the SPC.

 

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

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

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

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

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

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

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

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

Official accounts linked to the SPC

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

 

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

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

 

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

 

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

 

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

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

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

What to Expect in the Fifth Round of Judicial Reforms

Screen Shot 2018-07-29 at 8.10.14 AM

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

 

 

China’s Evolving Case Law System In Practice

1200px-Tsinghua_University_Logo.svgI 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.

Supreme People’s Court to require prior case search

Screen Shot 2016-07-30 at 12.13.38 PMIn 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.

六、各级人民法院应当充分发挥专业法官会议、审判委员会总结审判经验、统一裁判标准的作用,在完善类案参考、裁判指引等工作机制基础上,建立类案及关联案件强制检索机制,确保类案裁判标准统一、法律适用统一。

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.

 

 

 

Veneration rights litigation in China

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tombstore states “veneration rights”

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.

Brief Comment

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.