I am very honored to have been the first keynote speaker of the webinar “Deals and Disputes: China, Hong Kong, and Commercial Law” held on May 18-21 (2021). The webinar was organized by the University of Pittsburgh, with its School of Law’s Center for International Legal Education working together with its Asian Studies Center. Many thanks to Professors Ronald Brand and James Cook for the kind invitation. For those who missed it, the recording of my presentation is now available on the Youtube channel of the Center for International Legal Education.
I spoke on the Supreme People’s Court (SPC) and the Development of Chinese International Commercial Law (as I defined it). My presentation synthesizes many points that I have made separately on this blog and should be useful to students or others seeking to understand several aspects of the work of the SPC. Many thanks to Professor Pamela Bookman and Mary Buck Young for taking the time to make insightful comments on earlier drafts of my Powerpoint slides. Special thanks to (one of) my research assistants, Yuan Ye, for his work in transforming SPC statistics into a more understandable form and translating them into English.
On 13 November, the TianTong Law Firm published a bilingual version of the article below in their TianTong Litigation Circle Wechat public account. (Follow the article link to read the Chinese version.) The Tian Tong Litigation’s public account has half a million subscribers. I am very appreciative of TianTong litigation partner David Gu’s (顾嘉) kind invitation and the careful editing of his colleagues. The Chinese title of the article is: 最高人民法院对“软法”的适用：外国观察者的视角 | 跨境顾释 (with the English title of “A foreign observer comments on the ‘soft law’ of the Supreme People’s Court”). The hard work of my research assistant Sun Dongyu, one of our Peking University School of Transnational Law graduates, and Fu Panfeng, assistant research fellow of the Institute of International Law of the Chinese Academy of Social Sciences transformed my English article into readable Chinese.
Much of the substantive content of the article has previously appeared in this blog, but with a different perspective and conclusion.
I am very honored to have this opportunity to publish some of my observations about the developments of the Supreme People’s Court (SPC) with TianTong Litigation Circle. I have been observing developments of the SPC for almost 30 years, and am honored to have been included in the first batch of members of the international expert committee of the China International Commercial Court. The views expressed in this article are my own and should not be attributed to the committee, the China International Commercial Court, or the SPC. One of the many special features of the SPC, as an important supreme court in the world, that it allocates a great deal of effort to different types of “soft law.” Soft law is a concept that the late Professor Luo Haocai, formerly vice president of the SPC, introduced and developed in China, so discussing the “soft law” of SPC is particularly appropriate. For those who are not aware of this academic concept, it means norms that affect the behavior of related stakeholders, even though the norms do not have the status of formal law. This article gives my thoughts on two aspects of SPC soft law—its judicial policy documents and cases that it has specially selected.
I. Judicial documents
I have a special interest in judicial documents, because they drew me into researching the SPC in the early 1990s. The seven categories of documents below are classified as judicial documents or “judicial normative documents” (“司法文件” or “司法规范性文件”) and sometimes judicial policy documents” (“司法政策性文件”). The SPC’s website lists some of them. An attentive reader can discover from reviewing the documents on the website that my description is not comprehensive. The SPC issues many other documents as well, covering personnel and administrative matters, but this article focuses on those with normative provisions. SPC judicial documents are partially governed by 2012 regulations on the handling of SPC official documents (“人民法院公文处理办法”), which leave much unsaid and unexplained. It seems likely that additional guidance exists, whether in the form of bureaucratic custom or internal guidelines. Many, but not all, are the SPC’s special versions of Party/government documents.
1. Categories of judicial documents
1) Opinions (“意见”). According to my observations, the SPC issues several types of Opinions. I have not yet done detailed research into these different types of documents and have not seen detailed analysis in Chinese (or English). What I’m setting forth below is my tentative analysis.
i. Opinion Type 1
An Opinion issued solely by the SPC, that addresses a range of matters. The Services and Guarantees Opinions appear to fall into this category. These documents create and transmit to the lower courts new judicial policy, update previous judicial policy, establish new legal guidance that may be eventually crystallized in judicial interpretations and direct the lower courts, but cannot be cited in judicial judgments or rulings. They are generally linked to an important Party or state strategy or initiative. The ones labeled “Guiding Opinions” are intended to push policy forward, but others may do as well. Sometimes the SPC issues illustrative “model/exemplary/typical cases to clarify certain points to the lower courts (and the legal community), such as the Opinion providing Services and Guarantees [Safeguards] to the Yellow River Basin, for which the SPC issued illustrative cases.
ii. Opinion Type 2
An Opinion issued solely by the SPC, that consolidates rules or guidance found in disparate documents and adds some new rules, focuses on one particular topic, relating to litigants. The April, 2020 Opinions on Promoting Lawful and Efficient Trials of Bankruptcy Cases is a good example. It incorporates a provision from the Minutes of the National Court Work Conference on Bankruptcy Trials, for example, regarding consolidating bankruptcy cases of affiliated enterprises.
iii. Opinion Type 3
An Opinion also issued solely by the SPC, that sets out in normative form Party policy/judicial reforms, that may be the framework for further normative opinions, and eventually crystalized in law. An example is the 2015 Opinions on Improving the Judicial Responsibility System of the People’s Courts . The first line clearly links the document to Party decisions–“for the purpose of implementing the general deployment of the Party Center on deepening the reform of the judicial system….(“为贯彻中央关于深化司法体制改革的总体部署”). It is linked to several normative Opinions and the judicial responsibility system has been incorporated into the People’s Court Law.
iv. Opinion Type 4
An Opinion in which the SPC is one of several issuing institutions, that does not create new legal rules but harmonizes legal positions among institutions and for the courts, and clarifies how the law should be applied. This type of Opinion also cannot be cited as the basis for a judgment or ruling. This type of Opinion is particularly common in the area of criminal law, and is often related to the latest campaign or focus of the authorities. The 2019 Opinions on Several Issues Regarding the Handling of Criminal Cases of Illegal Lending , (“最高人民法院、最高人民检察院 公安部 司法部印发《关于办理非法放贷刑事案件若干问题的意见》的通知” ) part of the Special Campaign to Crack Down on Underworld Forces (“扫黑除恶专项斗争”) is a good example. One aspect of the ongoing campaign, which began in early 2018, is to use the criminal justice and regulatory authorities to crack down on “routing loans” (“套路贷”), an offense not defined by the Criminal Law. This 2019 Opinion harmonizes the understanding among the criminal justice authorities to punish those providing “routing loans.” Article 1 describes certain types of lending activity that can be punished under the crime of illegal business operations (Criminal Law article 225(4)).
2) Conference summary/meeting minutes (“会议纪要”). A conference summary arises from an SPC specialized court conference. A conference summary is used to transmit central legal policy, unify or harmonize court practices in accordance with that policy. Although conference summaries do not have the status of a judicial interpretation, the lower courts will generally decide cases according to its provisions. My understanding of the term “harmonizing court practice” means in Chinese judicial parlance that judges are applying the law similarly. A recent example is the 9th National Courts’ Civil and Commercial Trial Work Conference Summary. The document itself has a very useful explanation: “the Conference Minutes [Summary], which are not judicial interpretations, cannot be cited as a basis for adjudication. For first instance and second instance pending cases after the Conference Minutes have been issued, people’s courts may reason according to the relevant provisions of the Conference Minutes when specifically analyzing the reasons for the application of law in the “The court is of the view” section of adjudicative instruments.”
3) Professional judges meeting summary (“法官会议纪要”). I have not yet written in detail about these, but in my observation, they are a product of the judicial reforms. The SPC circuit courts appear to have led the way on publishing these as a way of “unifying judicial practice” but the #2 Civil Division (focusing on commercial issues) has published a collection as well.
4) Response or reply (“复函” or “答复”). These are responses or replies to requests for instructions or approvals. The SPC, like other Party and state organs, handles requests for instructions (“请示”). Although proposals have been published either to incorporate the practice into procedural law or abolish it, the practice lives on at all court levels, including the SPC. If the issue raised is considered important enough, the reply will be approved as a judicial interpretation. There are apparently fewer requests for instructions than ten or twenty years ago. I surmise more are submitted on the criminal issues than civil. One subcategory of these responses are the ones issued by the SPC’s #4 Civil Division, the division focusing on cross-border commercial and maritime issues. These are responses to request from instructions (“请示”) from provincial-level courts (including the higher courts of Beijing, Shanghai, Tianjin, and Chongqing), as required by the SPC’s Prior Reporting system for arbitration matters.
6) Rules (“规则” and “条例”). One recent example of the use of rules (“规则” is the CICC’s Procedural Rules for the China International Commercial Court of the Supreme People’s Court (“最高人民法院办公厅关于印发《最高人民法院国际商事法庭程序规则（试行）》的通知” ), issued by the SPC’s General Office. The rules were discussed by the SPC judicial committee but not issued as a judicial interpretation. I have observed that “规则” is used for court rules–as the same term is used for the Working Rules of the SPC’s Compensation Committee (最高人民法院赔偿委员会工作规则) . The term “条例” is used to regulate internal court system matters, such as rules (using the term “条例”) on judicial training(“法官教育培训工作条例” ) and 2012 rules on especially appointed inspectors (最高人民法院特约监督员工作条例).
7) Memorandum of Understanding (MOU). The most well-known example is the 2016 Memorandum of Understanding on Taking Joint Disciplinary Actions against Dishonest Persons Subject to Enforcement (“《对失信被执行人实施联合惩戒的合作备忘录》”). It appears to be the first time (or at least one of the first times) that a large group of central Party-state institutions has concluded an MOU. The SPC concludes many, only some of which have been made public. The lower courts do so as well. It shows that some “Western” legal concepts are useful in the Chinese context.
According to the SPC’s rules on judicial interpretation work , judicial interpretations must be published. The SPC Gazette and People’s Court Daily are required to publish the interpretations, but for the other documents published, it is hit or miss. As for the judicial documents listed above , not all are published, as there is no requirement to do so. As I have observed previously, the SPC is generally publishing more judicial documents than before. The contrast is clear, when compared to the early 1990’s, when I started to research the SPC. One positive and important example is the approved judicial interpretation agenda, issued in the form of a notice from the General Office of the SPC . The SPC’s official website publishes some, but not all of the judicial documents that can be found in some other sources. A problem for those puzzling out these documents is that unfortunately the staff of the SPC’s website does not take the due care they should to ensure that documents are published in the correct classification, so the careful observer will find that misclassifications occur from time to time. Sources other than the SPC’s website may have more of these judicial documents. Some of these judicial documents, such as replies or responses by the #4 Civil Division under the Prior Reporting system for arbitration matters, are published in the division’s own publication, as discussed further below. There are two additional comments on judicial documents worth mentioning, i.e. data (or lack thereof) and persuasiveness to the lower courts. It is difficult to determine how the number of judicial documents/judicial regulatory documents that the SPC issues compares to the number of judicial interpretations, as it is clear that it is inconvenient for some judicial documents to be made public (and some appear to be classified). A second comment is on the persuasiveness of these judicial documents to the lower courts. I surmise that some of them are more important to local court leaders than to ordinary judges, but it depends on the nature of the judicial document. It is my understanding that judicial documents with normative provisions (conference summaries or Opinions with normative content) are cited in trial reports (“审理报告” or “审查报告”), but not in judgments or rulings.
II. SPC Selected cases and decisions
A second important area of SPC soft law is SPC selected cases and decisions, which are increasingly important as a form of guidance to lower court judges, especially with the formal implementation of the similar case guidance system . Since 2016, I have been writing about the development of case law with Chinese characteristics, because in my view, it is a very important development.
1. Guiding Opinions
The 27 July 2020 Guiding Opinions Concerning Strengthening Search for Similar Cases to Unify the Application of Law (“Guiding Opinions”) (“《关于统一法律适用加强类案检索的指导意见（试行)》”) , is significant because it will make judicial decisions more consistent, an ongoing issue in the Chinese court system. The SPC is approving the practice of judges using principles derived from prior cases to fill in the gaps in legislation and judicial interpretations. The Guiding Opinions codifies many of the practices of the Chinese courts and imposes some new requirements. I have written before that it does not mean that China has become a common law legal system. Although the Guiding Opinions do not address this question, comments by an SPC judge suggest that the special status of cases selected by the SPC by its operational divisions remains in place. It is cases with a special status that I will discuss further below, because it is something most readers in and out of China do not focus on. The rules on case law in Article 4 of the Guiding Opinions are in line with what I have previously written: 1) SPC guiding cases; 2) SPC typical (model) cases (“典型案例”) and judgments or rulings of the SPC; 3) Reference cases issued by provincial-level higher people’s courts and decisions by those courts; 4) Higher-level courts in the jurisdiction in question and judgments of that court.
2. Specific types of SPC cases
My understanding is that these are general principles, but the specific scope of cases that need to be searched will depend on the specifics. Among the specific types of SPC cases not mentioned in the Guiding Opinions are the following:
1) The cases issued by the SPC Circuit Courts
The SPC Circuit Courts issue cases under different names that are intended to guide the lower courts within their circuits and also indirectly guide legal practitioners in that circuit. In 2016, for example, the #2 Circuit Court issued a set 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. It appears that all six Circuit courts issue reference or typical cases. Earlier this year, the #2 Circuit Court launched a “case a week” (每周一案) series. The Sixth Circuit issues cases entitled Sixth Circuit Case Guidance (“六巡案例参考”) , while the Third Circuit issues typical cases .
2) Cases selected by the operational divisions of the SPC
The SPC provides guidance to the lower courts in the form of cases published in “trial guides”(“审判指导丛书”) and other related specialized publications. The cases published in these trial guides, which have various titles, are for the most part not “guiding cases”(“指导性案例”) and therefore may not be cited in a court judgment. However, because they have been specially selected by the SPC, they are quite persuasive to the lower courts and therefore important to legal professionals. The SPC sees them as a supplement to legislation, judicial interpretations, various types of judicial normative documents/judicial documents/(“司法规范性文件”/ “司法文件”) and useful in providing a source for judicial interpretation drafting. I call these cases “stealth” guidance or “soft precedents”, as they are used without citation in judgments. Examples of these trial guides include: Reference to Criminal Trial (“刑事审判参考”), edited by a team from the five SPC criminal divisions, the #4 Civil Division’s Guide to Foreign-related Commercial and Maritime Trial; and the Administrative Division’s Administrative Law Enforcement and Administrative Adjudication (“行政执法与行政审判”). The editors of these publications select cases they consider significant. The editors describe them as “selected to provide specific guidance and reference for criminal justice officials in finding facts, admitting evidence, applying the law and determining sentences when handling similar cases.”(“选择在认定事实，采行证据，法律适用和裁量刑罚…为了刑事司法工作人员处理类似案件提供具体指导和参考”) The editors of the Guide to Foreign-related Commercial and Maritime Trial describe the cases as providing powerful guidance (“具有较强的指导意义”“为了…遇到类似问题提供了解决思路”). They describe their selected cases as being typical and of guiding significance (“具有典型和指导意义的审判案例”). Some of the cases in these trial guides are entitled replies (some called “答复” and others entitled “复函”), as discussed above. One very important type is required by the SPC’s Prior Reporting system for cross-border arbitration matters (for example, as when a lower court intends to refuse the enforcement of a foreign arbitral award). The #4 Civil Division publishes both the request for instructions as well as their response, while the SPC Administrative Division in their publication Administrative Law Enforcement and Administrative Adjudication (“行政执法与行政审判”) only publishes their responses to the lower courts.
These cases retain their special authority even after the Guiding Opinion was issued, as indicated by comments by Senior Judge Yu Tongzhi , an editor of Reference to Criminal Trial. He noted in an article published on 31 July that for criminal cases, the best source to search similar cases is the guidance cases published in Reference to Criminal Trial.”(“就刑事司法而言，可供检索的“类案”，首选无疑是最高人民法院五个刑事审判庭唯一、共同主办的《刑事审判参考》刊载的“指导案例”)。 In my view, this discrete, technical reform of the Guiding Opinion, including the SPC selected cases described above (a form of soft law), has implications greater than the drafters of the Guiding Opinions may have realized, including a possible impact on Chinese legal education. It has the potential to make litigation and assessment of a party’s legal position in non-contentious matters more predictable for parties.
Some final thoughts about why the SPC often uses “soft law” to guide the lower courts. In my understanding. SPC judicial interpretations (司法解释) are SPC “quasi-hard law”, as rules on judicial interpretation work state that they have the force of law. That means that they are intended to be in place for an extended period of time and as a consequence, the drafting process tends to be long and involved. Chinese courts, in my understanding, must serve the greater situation (服务大局). The greater situation is dynamic. Soft law enables the SPC to guide the lower courts timely in applying the law and judicial interpretations in specific cases, harmonized with current policy. In this way, the courts perform their important role in governance.
In sum, whether it is SPC policy documents or different types of case guidance or case decisions, SPC soft law is intended to strengthen the firm guiding hand of the SPC, as part of its authority to guide the lower courts.
I have replaced footnotes in the article with links.
On 27 July 2020, the Supreme People’s Court (SPC) issued Guiding Opinions Concerning Strengthening Search for Similar Cases to Unify the Application of Law (Guiding Opinions) (关于统一法律适用加强类案检索的指导意见（试行)), effective on 31 July. It is not a judicial interpretation, rather it is guidance intended to make judicial decisions more consistent, an ongoing issue in the Chinese court system. The SPC is approving the practice of judges using principles derived from prior cases to fill in the gaps in legislation and judicial interpretations. The Guiding Opinions codifies many of the practices of the Chinese courts and imposes some new requirements. It does not mean that China has become a common law legal system. As explained further below, although the Guiding Opinions do not address this question, comments by an SPC judge suggest that the special status of cases selected by the SPC by its operational divisions remains in place.
It also illustrates two larger points–that discrete judicial reforms aimed at more consistent judgments continue to be implemented even as the role of Party leadership and oversight continues to be stressed. It is also an illustration of how long it can take judicial reforms to be implemented. in my view, this discrete, technical reform has implications greater than the drafters of the Guiding Opinions realized, including a possible impact on Chinese legal education. It has the potential to make litigation a more predictable process for parties.
Case Search Requirements
What are similar cases?
Article 1 defines that–the cases that are already effective and are similar in their basic facts, disputed points, issues of law, etc. (指与待决案件在基本事实、争议焦点、法律适用问题等方面具有相似性，且已经人民法院裁判生效的案件).
When is similar case search required? (Articles 2 and 7)
When a case is proposed to be submitted to a professional or specialized (presiding) judges meeting (generally all the judges in a division) or the judicial/adjudication committee for discussion;
Relevant judicial principles are unclear or conflicting;
A court president or division head requires it under his or her supervision authority;
Other relevant situations.
That is, similar case search is not required in all cases, only when the relevant “law” is unclear.
Similar case search should be set out in the trial report for the case or in a separate precedent (similar case) report (类案检索报告) and included in the case file. As noted in my earlier blogpost, trial reports are confidential and not accessible to parties or their lawyers. Article 8 requires that the search report must include details on the platform, means of search, etc. and how the search was used.
Who searches and how?
The judge in charge of the case (承办法官) is in charge of undertaking the search and is responsible for doing it accurately and properly, using either the SPC’s database or other case databases, focusing on cases from the last three years, except for guiding cases.
Judges can use methods such as keyword search, legal provision (article of the relevant law), or related case search.
What must be searched?
These rules (in Article 4) are in line with what I have previously written:
SPC guiding cases;
SPC typical (model) cases (典型案例) and judgments or rulings of the SPC;
Reference cases issued by provincial-level higher people’s courts and decisions by those courts;
Higher-level courts in the jurisdiction in question and judgments of that court.
Except for the guiding cases, priority is given to the search of cases or cases in the past three years; if a similar case has been searched in the previous order, no search is required. Article 5 provides that judges can use methods such as keyword, legal article-linked, and case-based searches.
My understanding is that these are general principles, but the specific scope of cases that need to be searched will depend on the specifics. As I have previously written, the SPC Circuit Courts have issued cases that guide the lower courts in their circuits. The special authority of those cases remains in place. Judges reviewing issues related to the enforcement of foreign arbitral awards in China will need to look to a special set of cases (described here), for example.
I had previously written about cases selected by the operational divisions of the SPC providing guidance to the lower courts. Those retain their special authority, as indicated by comments by Senior Judge Yu Tongzhi, an editor of Reference to Criminal Trial (the joint publication of the SPC’s five criminal divisions). He noted in an article published on 31 July, that as far as criminal justice is concerned, without a doubt, the first choice for searching similar cases is to search the guidance cases contained in their publication, setting indices to the guidance cases for the convenience of readers.
Are precedents binding?
Precedents are not binding, but guiding cases should be 参照 “referred to” (the link is to SPC Research Office Deputy Director Judge Guo Feng’s authoritative explanation) unless the case conflicts with subsequently issued law or judicial interpretations. Other types of cases are not binding, but for judges to consider（参考).
How judges must respond
Article 10 imposes a new requirement on courts, if procurators, parties, their representatives (their lawyers) submit guiding cases or other cases in support of their legal position (as I had previously written had been the practice). For guiding cases, courts are required to state in the reasoning section of their judgments whether or not the guiding case was referred to and why.
For all other types of cases, the court can use its power of clarification/explanation and other means (释明等方式) to respond. It is understood that this is meant to give judges flexibility in responding to (non-guiding) judgments provided by parties–so the court may respond in its court’s judgment or in other ways. Those other ways may include: responding to the cases submitted pre-hearing, during a hearing, after a hearing, as the court considers most appropriate. We will need to observe what is done in practice, for example, whether courts respond primarily in their judgments or orally. This will be the way that a party can monitor whether the search accurately reflects prior cases, as neither a party or its counsel has access to the trial report. Other unknowns are how this system will influence administrative proceedings such as those at the Trademark Review and Adjudication Board.
Link to Inconsistent Decision Mechanism
Article 11 contains a link to the inconsistent decision mechanism discussed here, which I described as a microcosm of themes reflecting how the SPC operates, given its high bureaucratic nature.
Why case law reform?
As this blog has discussed, in the New Era, the role of Party leadership and oversight continues to be stressed (see this blogpost, for example). This discrete judicial reform is aimed at more consistent judgments. It is a critical tool that judges are already using because Chinese legislation lags behind the needs of the courts, and judicial interpretations are insufficient as well. Party policy would have an indirect impact on those cases, as would foreign law principles (mentioned here).
“Slow-cooking” judicial reform
The issuance of these rules shows the strength of the case law system and how long it can take a single judicial reform to be implemented. As mentioned in the June, 2019 blogpost, when Professor Hu Yunteng（until recently Justice Hu Yunteng, formerly a full-time member of the SPC’s judicial committee, now retired) recollected the history of the case system with Chinese characteristics, he mentioned that Jiang Huiling, then his colleague at the China Institute for Applied Jurisprudence (now Dean of the Tongji University School of Law) had looked to jurisdictions outside of China to advocate that China establish a case law system. Professor Hu Yunteng doesn’t specify whether Dean Jiang Huiling was looking to case law systems in civil or common law jurisdictions in the “West.”). In his 2016 Harvard Law Review student note, Mark Jia (now clerking on the Supreme Court), cited Li Shichun of the China Law Society to the effect that it was the National People’s Congress that opposed those seeking to establish a Chinese case law precedential system. That opposition has been overcome by widespread professional usage (as described in my 2017 Tsinghua Law Review article). It is unusual in that the practice came first and was not a top-down reform (顶级设计).
This discrete, technical reform is an important one for the rules relating to judicial decision-making better harmonized with judicial practice. There are a number of unknowns. One is whether it will result in judges feeling more comfortable in setting out their reasoning, knowing that other judges may look to it. An important question is how the practice of responding to cases will evolve–will judges tend to respond in their judgments, or as I suspect, do it orally. (As to why I think that–it is related to the desire of Chinese judges to reduce their risk under the judicial responsibility system).
In my view, this reform has the potential to make Chinese litigation a more predictable process. It is a bit of evidence of the gradual harmonization of the operations of the Chinese courts with the rest of the world, as current circumstances permit.
As readers of this blog know, I have a special interest in the use of cases in the Chinese court system. I wrote most recently on the SPC’s use of cases in December, 2019, when I wrote How the Supreme People’s Court guides the lower courts through cases in its publications (1). In this blogpost, I am taking another look at two aspects of this topic in the post 4th Plenum of the 19th Party Congress New Era. A consolidated version will need to wait for an opportunity to write on this at greater length.
The SPC uses case law in two broad ways. The first is to guide the lower courts, as previously mentioned in severalpreviousblogposts and my 2017 academic article. Those developments are continuing. I’ll discuss one new example. What I have not previously discussed very much, and will be the focus of this blogpost is how the SPC uses case law to popularize law (普法).
One example that I have not previously discussed, but is relevant to many practitioners, is the case law of the SPC’s Intellectual Property Court (SPCIPC, literally the SPC’s Intellectual Property Tribunal). A measure of the importance that the SPCIPC attaches to its cases in that the following paragraph was the first substantive section of its 2019 annual report [scroll to the bottom of the link for English]:
Ⅰ. Focus on the function of trial [court hearings] to strengthen typical exemplary effect of model cases and further unify the standards for adjudicating technology-related IP cases
Unifying the standards for adjudicating patent and other technology-related IP cases is the primary goal of the IP Court. In 2019, the IP Court focused on the function of trial and concluded a number of closely technology-related IP cases justly and efficiently in accordance with the law. A number of model judgments that have typical exemplary effect were made, and the “systematization project to unify judicial standards” has been implemented, further promoting the unification of judicial standards for technology-related IP cases. ( 一、立足审判职能，加强典型示范，进一步统一技术类知识产权案件裁判尺度
In 2020, we can expect the SPCIPC to continue to use case law to unify judicial standards in technology-related IP cases. This is one small example of the SPC’s work in this area. The report speaks of its contribution of Chinese wisdom to the development of international IP law, but a person taking a closer look at some of the SPCIPC decisions will see that research of foreign law by SPC IP judges and interaction with persons with foreign law expertise has contributed to the development of Chinese wisdom.
Popularizing law (普法)
The second development is the popularization of law, an old development repurposed in the post 4th Plenum of the 19th Party Congress New Era. The close observer of these documents, implementation, and related activities can detect a repurposing of popularization for specialist purposes.
Conscientiously implement the responsibility system for publicizing knowledge about law (普法) of “whoever enforces the law, explains the law”; strengthen public opinion guidance, perfect the mechanism for issuing typical cases; establish rules of conduct through fair decisions [judgments and rulings], promote [positive] social customs, and create a good environment for the rule of law.”认真落实“谁执法谁普法”普法责任制，加强新闻舆论工作，健全完善典型案例发布机制，以公正裁判树立行为规则、弘扬社会风尚，营造良好法治环境.
The responsibility system for publicizing knowledge about law (普法) of “whoever enforces the law, explains the law” relates to pufajiaoyu (普法教育) (educating the public about law).(For those with access to an academic library I recommend Susan Trevaskes’ related book chapter) on how pufajiaoyu has developed over time).
Background to this system
This pufajiaoyu responsibility system is mentioned in section V of the 4th Plenum Decision of the 18th Party Congress and is one of many different types of responsibility systems mentioned in that Decision. This responsibility system for publicizing knowledge about law is linked to broader Xi Jinping era Party initiatives to expand the responsibility of Party and government cadres. In this context the SPC appears to be treated as any other state or Party organ.
The phrase in the 4th Plenum Decision has been built into a responsibility system for the courts through two documents and a joint ministerial system. The framework was set out in a joint Party-State Council document in 2017 “General Offices of the Party Central Committee and State Council Opinions on a Popularization of Law Responsibility System of State Organs Regarding “whoever enforces that law, explains the law.” (中共中央办厅 国务院办公厅印发《关于实行国家机关“谁执法谁普法”普法责任制的意见》Section 6 calls for judge, procurators, administrative enforcement personnel, and lawyers to establish a “using cases to explain the law” system (建立法官、检察官、行政执法人员、律师等以案释法制度). The document calls on judges, etc. to collect, sort, research and issue cases and establish a database, using exemplary/model/typical cases to guide, standardize, and as prevention and for education. 典型案例的收集、整理、研究和发布工作，建立以案释法资源库，充分发挥典型案例的引导、规范、预防与教育功能。So from this one line in document it is possible to see popularization used for specialist purposes (standardization).
Section 9 of the Explaining the Law Opinions focuses on the use of cases for both popularization and specialist purposes. It calls for establishing a system for judges to explain the law in the cases they hear (as a form of popularization). On the specialist side, it calls for judges to upload cases to the SPC case database according to regulations and increase the reasoning (说理) in their judgments. The latter can have both specialist and popularization and “rule of law” impacts. If parties or the general public are convinced by the reasoning in a judgment, they are more likely to accept it as fair. However many factors (to be explored in a later blogpost and my students’ forthcoming articles) lead to judgments with thin reasoning. This document also calls for collecting, sorting, researching and issuing exemplary cases and organizing news conferences if useful. These exemplary/model/typical cases can have both specialist and popularization impacts. One example, that I would recommend is a recent article by an SPC judge who studied at the University of Vermont, who published an article in the Vermont Journal of Environmental Law article on a case that was designated one of the ten top mining rights typical cases.
So it seems that the Implementing the 4th Plenum of 19th Party Congress Opinions will be further implementing the provisions in the responsibility system for publicizing knowledge about law (普法) of “whoever enforces the law, explains the law” for both specialist and popularization purposes. In a later blogpost, I’ll explore the provisions in the pufajiaoyu 普法教育 responsibility system relating to judicial interpretations and judicial transparency.
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 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:
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);
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:
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.
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.
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? Research into another issue has led to an authoritative answer to this question. The knowledgeable person was citing “chapter and verse” from a 1995 SPC reply:”研究室是一个综合性的审判业务部门 ” (see Reply of the Supreme People’s Court as to Whether the Research Office is an Operational Department (最高人民法院关于人民法院研究室是否属审判业务部门的复函).
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 severaltimesthis 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.
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.
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.
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.
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.
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.
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.
Official view of SPC; also republishes Xinhua articles
People’s Court Daily
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)
Had previously carried accounts of conferences and academic talks, translations of foreign materials; other articles
China Applied Jurisprudence (academic journal)(from Sept., 2018)
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
Publishes excerpts from journal articles, some by judges, others by academics
Alternative Dispute Resolution Reform in China
Articles on alternative dispute resolution in China and foreign experience
Database Faxin (affiliated with the People’s Court Press)
Case analysis, analysis of cases on specific issues
China Trial (journal)
Excerpts from articles in the journal
Excerpts from articles in the journal
Case Research Institute of National Judges College
Case analysis, excerpts from its academic journal (Journal of Law Application (Cases))
SPC Information Center
Reports on informatization of courts
Administrative enforcement and administrative trial
Articles related to administrative litigation & enforcement
National Judges College
Official account; articles reporting on the National Judges College & its local branches
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
He Fan (何帆), head of the planning department of the SPC’s Judicial Reform Office
Yu Tongzhi (于同志), judge of SPC #2 Criminal Division, editor of 刑事审判参考
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
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.
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:
Secretary of the Central Political Legal Committee, Guo Shengkun (Guo);
President of the Supreme People’s Court (SPC), Zhou Qiang;
Chief Procurator General Zhang Jun;
Central Military Commission Political Legal Committee Party Secretary;
Minister of Public Security;
Minister of State Security;
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?
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)?
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.
I recently published an article in the Tsinghua China Law Review on Chinese case law in practice, building on severalblogposts 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.
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;
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 blogpostssummarized 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.
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 Tsinghua 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.
Approximately 63% of the cases are civil, with 20% criminal, enforcement 15%, and administrative cases less than 4%.
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.
Chinese courts are paying more attention to the use of precedent in considering how to decide cases. (Two of my fellow bloggers, Mark Cohen and Jeremy Daum, have recently published on this issue, as have I.) One of the many issues remaining to be settled as China constructs its own case law system is a hierarchy of precedent, so that the Chinese legal community, in particular its overworked judges, have clear rules on this issue. (This is one of the questions subsumed under #23 of the Fourth Five Year Court Reform Plan).
We know that the hierarchy of precedent is not settled because two recent authoritative Chinese publications take a similar but not identical approach:
The first, as cited in an article by Judges Jiang Huiling and Yang Yi of the Supreme People’s Court Center for Applied Jurisprudence, highlight the list set out in “The Beijing IP Court Guiding Case Work Implementation Methods (Draft)” (summarized in Jeremy Daum’s article); and
The second, an article by Judge Wang Jing, a senior Nanjing Intermediate People’s Court judge, published (and re-published) in a number of prestigious Wechat public accounts, including the account of the Shandong Higher People’s Court. (Wang Jing has frequently published in SPC publications and she published her views on the judicial quota system (on Judge He Fan’s public account).
(As helpfully translated in Jeremy Daum’s article, the Beijing IP court draft regulations list, from most to least persuasive:
SPC guiding cases
SPC annual cases
other SPC cases
High People’s Court model cases
High People’s Court reference cases
Other prior cases from High People’s Courts
Intermediate People’s Court precedent,
Basic-level Court precedent,
Foreign (non-mainland) case precedent.
I’ll focus on Judge Wang Jing’s analysis.
Judge Wang Jing
1.SPC guiding cases
2.Cases published in the monthly SPC Gazette. Those are of two types: selected judgments (裁判文书选登) and cases (案例), generally totalling 20-30. The first type are cases decided by various trial divisions of the SPC and reflect their views on certain issues, while the second model cases submitted by the local courts (through the provincial high courts), which have been reviewed by the various trial divisions of the SPC.
3.Other cases published by journals of the SPC such as Selection of People’s Court Cases(人民法院案例选), (a quarterly publication of the SPC Center for Applied Jurisprudence), China Case Trial Highlights (中国审判案例要览) (an annual publication of the National Judicial College and the Law School of People’s University)、and People’s Justice–Cases (People’s Justice is a biweekly publication,but the Cases section is published monthly). She notes that these cases reflect issues considered difficult and disputed in practice.
4. Trial Guides edited and written by the trial divisions of the SPC (最高法院各审判业务庭编写的审判指导丛书). The People’s Court Press publishes a series entitled China Trial Guide (审判指导丛书), with separate publications by various trial divisions of the SPC, including the case filing, civil, administrative, #2 civil and #4 civil divisions. These publications often contain cases from the lower courts, or in the case of the #4 civil division, cases that have been reported to that division for review under the Prior Reporting system.
5. Case publications by various higher people’s courts (各地高级法院等编辑的案例刊物).
She notes that many provincial higher people’s courts (and some intermediate courts) publish cases, with cases published by the ones that have been in operation the longest and are more influential considered the more persuasive. She mentions the Jiangsu Higher People’s Court Gazette as an example, which has cases decided by that court and model/typical cases from the lower courts. (These are similar to categories 4-6 above).
Although her list does not specifically mention non-guiding (and non-model or typical cases) in her list of authoritative sources, she addresses them in her advice for lawyers providing precedent cases in litigation, with three common sense items of advice: when you provide a case, it should be according to the court hierarchy, and date issued, provide the source, and use cases to provide a mind map for the judge to follow. (A prestigious intermediate people’s court (the Shenzhen Intermediate People’s Court) recently also mentioned litigants (positively) using cases from the SPC’s case database, China Judgements Online, as a reference to judges.)
This is another area in which Chinese law appears to lack firm guidelines about order and terminology (as I wrote about this theme in a series of articles for Practical Law China, ( note that they are behind the company paywall).The SPC and its divisions (and even one of its Circuit Courts) issue collections of model/typical cases (and summaries of such cases) under a variety of titles. Terminology (aside from the guiding cases) is not entirely consistent. The SPC issues notices and replies (generally of divisions of the SPC), acknowledged by Vice President Shen Deyong as a source of law, in an introduction to the book Collection of the Supreme People’s Court’s Judicial Rules (2nd edition)–how do these relate as sources of law vis a vis various types of cases or case summaries? The legal community (domestic and foreign) awaits greater guidance.
What few recognize is that the millions of non-guiding cases on the Supreme People’s Court’s China Judgments Online website (and its commercial counterparts, such as 无讼(and any internal version that there may be)) are guiding the development of Chinese law, including what arguments lawyers make and how judges decide cases. I note that this coming week’s U.S.-China Judicial Dialogue: In Support of Economic Growth and Reform includes the role of precedent as one of the topics of discussion, and I hope this brief blogpost (to be expanded later) can indirectly contribute to the discussion.
The conventional wisdom among both foreigners and Chinese writing about China and case law is that with the exception of a small number of guiding cases approved by the SPC, previous cases do not make law.
Those closer to the world of practice in China know that previous cases, or some portion of them, are indirectly shaping the development of Chinese law. From a Chinese perspective these cases are not directly guiding, or binding, but provide cases that lawyers and judges use as reference (参考), to persuade a judge or other decision-maker that a previous case has decided the same or similar issues. This phenomenon relates to cases in a broad range of issues and occurs in several ways:
A significant number of Chinese judges and lawyers follow Wechat legal public accounts. One type of article that frequently appears is one focusing on a specific legal issue and uses the case database to generate relevant cases. A typical example is this article published on 29 July, analyzing six cases relating to changing the name of a child. This type of article affects arguments lawyers make and the judges consider.
A second way is judges themselves will 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. Lawyers perform similar analysis when preparing to argue a case.
Additionally, lawyers sometimes submit a relevant court decision when making a submission in an administrative proceeding, such as to the Trademark Review and Adjudication Board and more often, when making submissions to court. Lawyers will evaluate, however, whether the judges hearing the case will take the submission positively or will consider it an indirect criticism of their professional competency. Lawyers will submit cases from courts higher than the court that they are litigating–so that a lawyer litigating in a Beijing district court may attach a relevant case decided by the Beijing Higher People’s Court, for example.
Among the many sources of information SPC judges use when drafting judicial interpretations is searches of previous judgments relevant to the issues under consideration, because those will indicate which questions are unclear for the lower courts.
Legal services companies, such as Itslaw, are training young lawyers in case searching and retrieval (guiding and non-guiding cases), using keywords analogous to Westlaw’s and LexisNexis’ products. They are doing this training because prior cases are being used in advocacy in China.
How are cases from China Judgments Online being used in China in practice? This is where we can see how case law, Chinese style, is developing. The SPC has been focusing its efforts on its guiding cases and it is unclear whether they have noticed this.