I am honored to have published How China’s Supreme People’s Court Supports the Development of Foreign-Related Rule of Law in China Law & Society Review. I have also posted it on SSRN. As an alternative for those unable to download the article from the Brill website or SSRN, I have uploaded it to this website. Many thanks to the many colleagues and friends who have contributed to this article in any way. Special thanks to Sida Liu!
In December, 2023, the Supreme People’s Court (SPC)’s glossy magazine China Trial (中国审判) featured the top 10 keywords of the people’s courts for 2023 (人民法院十大关键词). Provincial high court WeChat public accounts republished the article in a way that enabled those courts to incorporate examples from courts under their jurisdiction and to link to further commentary on the Xuexi Qiangguo (学习强国) platform. As the followers of this blog could anticipate, each keyword is illustrated with Xi Jinping quotations, important speeches by SPC President Zhang Jun, illustrations of model court practice, and commentary by leading academics. “For the avoidance of doubt,” the invited commentary by leading academics is not meant as scholarly analysis. The article itself and the invited commentary are worded in New Era official discourse. The intent is to weave these phrases into a summary of 2023 and forward-looking SPC policy. These keywords (or at least their spirit) are found in the report on the recently concluded National Conference of Higher Court Presidents. That report (2024 National Court Presidents Conference report) focuses on 2024 goals.
Who is the audience for this China Trial article? I surmise it is those in political and court leadership positions. Line judges are more pragmatic. They have learned the significance of these keywords through Party meetings but are more focused on their cases.
The readers of this blog could anticipate a version of this phrase would rank first. Dean Xu Shenjian of the China University of Political Science and Law explained what this means. (Among Dean Xu’s many writings is a forthcoming book with one of my colleagues at the Peking University School of Transnational Law on legal ethics in Greater China.)
Dean Xu said that this phrase has become the core concept of the work of the courts. This concept not only emphasizes the unity of political responsibility and legal responsibility but also highlights the important position of judicial work within the framework of the comprehensive rule of law. This requires that the court’s work be integrated into the country’s major political principles and social governance. Court work is professional work with a strong political nature, and it is also political work with a strong professional nature. He said that courts should strive to organically unify political thinking and adhere to the rule of law in specific judicial practices.
Comment: This principle has been stressed by SPC President Zhang Jun since he assumed office and post 19th Party Congress, by former SPC President Zhou Qiang. This principle can be expected to be incorporated into the forthcoming sixth five-year court reform plan and underlies court practice at all levels. This blog has previously mentioned this (see here, here, and here, for example) and my forthcoming article in China Law & Society Review will also discuss this. It is emphasized in the 2024 National Court Presidents Conference report.
The second-ranking keyword is “active justice.” Professor Zhang Qi, retired Peking University law professor of legal theory, was invited to explain this phrase. He said active justice means that in the New Era, courts will implement the central government’s decision-making and deployment, based on its judicial functions, transform judicial concepts, adhere to a proactive judiciary that actively assumes its responsibilities, and provide powerful judicial services and guarantees for Chinese-style modernization.
Comment: I flagged this keyword in several blogposts in 2023 and my forthcoming article also discusses this. As Judge Liu Shude recently gave a long presentation on active justice and reasoning in judicial documents, I surmise that this phrase will be further developed during President Zhang Jun’s tenure. This principle can be expected to be incorporated into the forthcoming SPC report to the National People’s Congress and in the new judicial reform outline plan. It is mentioned several times in the 2024 National Court Presidents Conference report.
According to the explanation of this keyword, the core concept is that the rule of law must not only focus on the back end to treat existing diseases but also focus on the front end to treat future diseases…” To solve this problem, the people’s courts must actively integrate into national and social governance, insist on handling one case and resolving a group.
Comment: As several blogposts have identified, these principles have been stressed by SPC President Zhang Jun, particularly using typical cases to resolve multiple cases. Post-19th Party Congress, former SPC President Zhou Qiang stressed these as well, as they are part of Xi Jinping legal thought.
This blog has not used this phrase, although it has identified aspects of linked policies. Professor Wang Kai of Beihang University Law School explained this as follows. Under the unified leadership of the Party, administrative and judicial powers are designed to protect the fundamental interests of the people. Therefore, in judicial work, the judiciary must form a positive and working relationship with administrative organs, jointly promote strict law enforcement, and fair administration of justice.
Comment: Cooperation and harmonization of approaches between the judiciary and administrative authorities have been stressed since 2022, if not earlier. The fact that it is included as a top keyword signals that this will be further developed. Although I haven’t written about this yet, I have pointed this trend to those working in specific regulatory areas, such as intellectual property law (see this joint policy document issued by the SPC and the Intellectual Property Administration and the 2022 Opinions on Providing Judicial Services and Safeguards for Accelerating the Construction of a Unified National Market.
The core of this phrase is to encourage judges to put themselves in the shoes of litigants. The comments of Professor Xiong Qiuhong of the China University of Political Science and Law (previously seconded to the SPC’s judicial reform office, and almost 20 years ago, a Yale Law School visiting scholar), provided further analysis that provides a glimpse into official assessments of public perceptions about the judicial system. She said that “litigants often file lawsuits out of necessity and sometimes have doubts about whether judicial officers can administer justice impartially. If judicial personnel can put themselves in others’ shoes and engage in judicial trials with the concept of “if I am suing”, listen carefully to the demands of the parties, take their views seriously, and patiently watch every word and deed of the parties so that the parties can feel the process of participating in the litigation. When they feel that they are taken seriously and that their active participation can effectively affect the outcome of litigation, they can reduce or even eliminate the doubts of the parties and build trust in judicial fairness.”
Comment: Professor Xiong’s comments provide a semi-official assessment of public perceptions of the judiciary. This phrase is mentioned in the 2024 National Court Presidents Conference report.
Professor Xiong Yuemin (熊跃敏) of Beijing Normal University’s law school focused on the revision of the judicial performance indicator system when explaining the significance of this phrase. She said that establishing an improved set of trial management indicator systems that are consistent with requirements for the people’s courts to thoroughly implement Xi Jinping’s thought on the rule of law and is important to promote the modernization of trial work through the modernization of trial management.
Comment: I had flagged this in my NYU article. When I raised this reform with a well-known scholar of China’s court system, he responded with a link to Goodhart’s Law: “when a measure becomes a target, it ceases to be a good measure.” As explained in this article: “In other words, when we use a measure to reward performance, we provide an incentive to manipulate the measure in order to receive the reward. This can sometimes result in actions that actually reduce the effectiveness of the measured system while paradoxically improving the measurement of system performance.”
This phrase is further expanded in the 2024 National Court Presidents Conference report to incorporate both political and substantive aspects.
Based on discussions with judges in local courts (and research), letters and visits work has become much more important in the local courts, with the stress on resolving the underlying issue (linking to the ongoing theme of “resolving disputes at source” (see keyword #3) and the greater importance of letters and visits (Xinfang) work nationally. The experience of some friends (and former students) who are working or have worked in local courts is that petitioners can be very strategic in how they petition, with keen sensibilities about extracting the maximum benefits from petitioning.
The spirit of this phrase can be found in the 2024 National Court Presidents Conference report.
The explanation of “one network” links to a national conference at the National Judges College, at which President Zhang Jun spoke. The intent appears to create a unified network for the courts, planned and implemented by the SPC, which will enable unified data collection. One of the provincial court presidents revealed in national court media what has been said in scholarship, that digitalization of the courts is insufficiently coordinated, leading to inconsistencies, duplication, and wasted resources.
This section mentioned that the SPC will proactively strengthen cooperation with other law enforcement and judicial agencies to open up “data islands” and achieve information sharing.
Comment: It is unclear what the single network to which President Zhang Jun referred in that speech incorporates a single network for judicial decisions much discussed in both the domestic and international press. The lack of coordination and wasted resources in the digitalization of the courts is not surprising. I would be surprised if the increased data sharing with other institutions goes smoothly, based on the SPC’s experience in linking its system with the Ministry of Justice for dealing with international judicial assistance matters.
The 2024 National Court Presidents Conference report contains a summary of the latest policy on China Judgments Online, further developed in this notice:
持续深化司法公开，加大裁判文书上网力度，妥善解决文书网使用效果不佳等问题，平衡好文书公开与当事人合法权利、隐私保护之间的关系，加强人民法院案例库建设，更优更实为司法审判优质高效服务，为社会公众学法、专家学者科研、律师办案服务。Continue to deepen judicial disclosure, increase efforts to make judgment documents online, properly solve problems such as poor usability of the Judgments website, balance the relationship between disclosing court documents and the parties’ legal rights and privacy protection, strengthen the construction of the people’s court case database, and make it better and more practical to provide high-quality and efficient services for judicial trials, as well as legal services for the public, scientific research by experts and scholars, and case handling by lawyers.
The explanation of this phrase links to two of the important SPC events in 2023–the conclusion of the pilot on the reform of the four levels of the Chinese courts and a related notice specifying the types of cases that lower courts should transfer to higher-level courts and a new system of guidance by court leaders that SPC President Zhang Jun unveiled in early September 2023, entitled “review (阅核)” piloted in some courts. (For those who understand Chinese, I recommend the four-minute video of President Zhang embedded in this WeChat article, in which he explains the difference between review and approval (审批). For those who do not, a brief glimpse of the video may reveal some differences between Chinese official judgecraft and that elsewhere in the world.)
Comment: Both events are linked to evolving policies under President Zhang Jun promoting guidance by higher-level courts of lower-level courts and guidance by senior judges of ordinary judges. One of the important reforms of the 4th Five-Year Judicial Reform Plan Outline was increasing the scope of judicial autonomy, while significantly increasing judicial accountability/responsibility. The fact that a senior academic published an article in People’s Court Daily to promote the review system in late November 2023 may signal a repurposed approval system for judicial decisions, in the forthcoming Sixth Five-Year Judicial Reform Plan Outline.
Comment: Although I have not previously written about this, I have been monitoring the development of the review system since that WeChat post was made public. This phrase is developed in one sentence in the 2024 National Court Presidents Conference report and is characterized as a policy requirement of the SPC (最高法关于阅核工作的意见要求), focusing on the supervisory responsibilities of senior judges.
Investigation and research is a phrase that has its roots in Mao Zedong thought, but which Xi Jinping has further developed (see this webpage with his important remarks). As explained in this section, it is not only about deeply understanding problems but rather coming up with “prescriptions” to solve them, therefore linking with keyword #3.
Comment: I have an extended discussion of this in my NYU article.
These ten keywords provide signals concerning the reshaping of the Chinese judiciary under the leadership of President Zhang Jun. It can be expected that the forthcoming sixth five-year judicial reform plan will reflect these keywords and their related themes. As can be seen, for the most part, they are incorporated into the goals for 2024. From these ten keywords and the 2024 National Court Presidents Conference report, further details concerning President Zhang Jun’s policies can be seen. The repurposing of the phrase “four modernization” is highlighted in that report: “promote the formation of the “four modernizations” work layout of trial concepts, mechanisms, systems, and management (推进形成审判理念、机制、体系、管理“四个现代化”的工作布局).
From these ten keywords and the National Court President Conference report, we can see one aspect of the ongoing complex evolution of China’s judicial system. When Dean Jiang Huiling spoke to my class in 2022, he commented that “in the current arrangement–in the Zhengfa (政法) reforms, Chinese characteristics have a great deal of weight and also in the reconstruction of the legal system. Although China has learned a great deal from other countries, China has to go on its own way, since it has its own history, political situation, and historical stage and there is a change in the international situation.” We are gradually seeing where China is “going its own way” and where developments are harmonized internationally.
_____________________________________________________
Many thanks to my readers for their patience these past several months while I have focused on finalizing my “neverending article” for publication and packing up several decades of books housed in my (former) office at Hong Kong University. A special thank you is due to those at Hong Kong University Law Faculty who made that office possible.
A separate special thank you is due to the two anonymous peer reviewers of this blogpost, particularly the person who called my attention to the repurposing of “four modernizations.”
If any readers have alternative translation suggestions, please contact me through the comment function or by email.
Although no formal announcement has been made in the Chinese press (of which I am aware), it appears that sometime during the last six months, more likely before early June (2023), the Supreme People’s Court (SPC)’s Judicial Reform Office, or more formally the office of the SPC’s leading small group for judicial reform (最高人民法院司法改革领导小组办公室) ceased to exist as a separate entity. Its work has been assumed by the Research Office. The leading small group that the Judicial Reform Office supported appears to have been disbanded as well. This post provides some comments on the office, some fragments concerning its history, an explanation of the nature of the office and leading small groups, and evidence for reaching the conclusion that the office no longer exists.
Over the past 10 years, this blog has discussed or cited statements or documents issued, reports drafted, and books published by the Supreme People’s Court (SPC)’s Judicial Reform Office. As is visible from the photo above, I have a collection of books edited by that office, many of which I have not yet cited in this blog or my other writings. Some books contain documents, others set out authorized commentary, and others are collections of analytical essays for the most part written by lower court judges. I had intended to draw on some of these materials when writing something more detailed about the drafting of judicial reform measures, setting out my understanding of the drafting process. A number of our Peking University School of Transnational Law students have interned in the Judicial Reform Office. I will now need to wait until I am able to gather enough information about how the new system operates before writing a current and historical description.
The offices of leading small groups are not permanently established, although this one had been in existence for almost twenty years. It is not unusual for them to be abolished and their duties assumed by permanent institutions. The temporary nature of the office may explain why published structure charts of the SPC have never mentioned the Judicial Reform Office. The SPC has other such offices, but this one appears to be the most well-known. Leading small group offices exist in analogous form at the local level as well.
For those who are not aware of the system of “leading small groups,” many exist throughout the Chinese Party and government system to deal with cross-institutional matters, often involving participants from multiple Party and/or state institutions. There seems to be a growing English language scholarly literature on multi-institutional leading small groups, mostly behind publishers’ paywalls, but this detailed summary of leading small groups and affiliated offices by Alice Miller is helpful to those without university library access. The summary explains that “leading small group general offices have dedicated office space, a roster of personnel, and an operating budget for administrative expenses. Although they cannot implement anything on their own, they can levy work on other offices.” My forthcoming (“neverending”) article has a description of the SPC’s Judicial Reform Office levying work on (assigning work to) other SPC offices, divisions, and institutions.
The Judicial Reform Leading Small Group and its supporting office were established in 2006. Although I have not been able to find the document approving its establishment, I assume that it was established to draw together a team of people to focus on judicial reform matters and to coordinate matters across multiple SPC entities, with the lower courts, and with the related Party bureaucracies. The Judicial Reform Leading Small Group had a predecessor entity entitled the SPC Judicial Reform Research Leading Small Group (最高人民法院司法改革研究领导小组). The China Institute of Applied Jurisprudence provided institutional support for the predecessor entity. I assume that the establishment of the SPC’s Judicial Reform Leading Small Group and its predecessor are linked to the 2003 establishment of the Party’s Central Judicial System Reform Leading Small Group (中央司法体制改革领导小组), which has (had?) members from multiple Party and state institutions. That Leading Small Group also has (had) an affiliated office (中央司法体制改革领导小组办公室). I have not seen public mention of the Party’s Central Judicial System Reform Leading Small Group in the past year or more, so I assume it has been disbanded and its functions subsumed by some part of the Central Political-Legal Committee/Commission.
Prior to 2003, judicial reform research at the SPC was conducted and coordinated by the Research Office. That office often deals with SPC cross-institutional matters, such as the transition to the Civil Code. So this development appears to be an instance of the SPC either going back to the “good old days” or as a former SPC judge recently wrote about the end of a piloted judicial reform, “restoring the original condition (恢复原状).”
During the March 2023 meeting of the National People’s Congress, He Fan, previously mentioned on this blog, spoke to the press about judicial reform, as a responsible person of the Judicial Reform Office (最高人民法院司法改革领导小组办公室负责人). In September of this year, public statements concerning judicial reform (in this case, the termination of the piloted reform of the four levels of the courts) were issued by a responsible person of the Research Office. A related document issued in June (2023) did not mention the Judicial Reform Office or the Judicial Reform Leading Small Group. When He Fan spoke at Fudan University Law School in September, he was described as a vice director of the Research Office and the former responsible person of the Judicial Reform Office (最高人民法院研究室副主任、原司法改革办公室负责人何帆博士). So I surmise from this that sometime between March and June, the Judicial Reform Office was abolished and its responsibilities and personnel were transferred to the Research Office.
I will be monitoring this change (to the extent possible). Questions that come to mind include the following. What will being located in the Research Office mean for judicial reform matters? Will the staff take on additional tasks in addition to judicial reform matters? What will this mean for the analysis of the impact of prior judicial reforms? What will this mean for the drafting of the sixth judicial reform plan outline? Will this mean more or fewer staff resources? When the plan is issued, will we on the outside of the Chinese court system notice the impact of this bureaucratic change? And as several highly knowledgeable persons have asked me in recent weeks, how should the judicial reforms of the last ten years be objectively assessed?
_________________________________________
Many thanks to the knowledgeable persons who contributed to this blogpost. Those with additional information or corrections should contact me. My apologies to my patient followers for the long gap between blogposts. but I have spent much of the last two months revising my “endless” long article for publication, as it needed to be updated to reflect recent changes. This change requires an additional update. I plan to do several more analytical blogposts in the upcoming months, but use more of my time putting together my research, as highlighted earlier this year.
In late May of this year (2023), the Supreme People’s Court (SPC) issued a set of typical cases on resolving real estate and construction disputes at their source provided by the SPC’s #6 Circuit Court (the circuit court covering the northwest provinces and autonomous regions), entitled “Typical Cases of Litigation Source Governance in the field of Real Estate and Construction Projects in the Circuit Courts area (巡回区房地产及建设工程领域诉源治理典型案例). These typical cases have not received their due attention outside the Chinese court system. They are helpful for understanding how the Chinese court system is evolving under the leadership of SPC President Zhang Jun. These ten typical cases are examples of court practices that the SPC has provided to lower courts for guidance. The guidance focuses on two principal areas: how to implement properly the requirements of President Zhang Jun and the SPC’s Party group to serve national and social governance by resolving disputes at their source (linking to the General Secretary’s important instructions and related documents; and second, how to use “active justice” (能动司法) to achieve these objectives.
As I flagged in May of this year, President Zhang Jun has revived the concept of “active justice.” In that same blogpost and in earlier ones, I mentioned that resolving disputes at their source has become an important task for the Chinese courts. The cases weave together these policies in one perfectly designed package.
These cases also tell a story about how active justice and resolving disputes at their source can involve the courts undertaking some functions that should be left to the lawyers.
These ten cases are not accounts of specific court cases but rather are examples of exemplary practices. This is not the first time that the SPC has issued “typical cases” that are exemplary practices. Since 2017, the judicial reform leading group of the SPC has issued typical cases that illustrate judicial reform practices that provide useful reference materials for other courts.
Resolving disputes at source is a Party policy mentioned briefly in the 2019 fourth plenum of the 19th Party Congress decision, the SPC document implementing that Party Congress decision, and the 5th judicial reform plan document. It was further developed in subsequent documents. It links to the Party’s (and SPC’s) diversified dispute resolution policies. An academic article recently published unfortunately does an inadequate job of defining the policy and describing the policy’s development. Moreover, it incorporates some translation errors. Although both authors are affiliated with prominent academic institutions with serious scholars of the Chinese courts, it appears to this reader that they failed to seek the perspective of some persons with a greater historical perspective on SPC developments. It is another instance in which peer review did not catch inadequacies.
According to several SPC press releases and articles related to these cases, the foundational document for recent SPC and other legal institution policies is a February 2021 Central Committee document (never publicly released) entitled Opinions on Strengthening the Governance of Sources of Litigation and Promoting the Resolution of Sources of Contradictions and Disputes” (关于加强诉源治理推动矛盾纠纷源头化解的意见). I surmise that the document includes the phrase “promote basic level social governance” (促进基层社会治理) and likely “national governance.”
The SPC issued a long and detailed document implementing that Central Committee document in September 2021, entitled Implementing Opinions on Deepening the Building of the One-stop Diversified Dispute Resolution Mechanism of the People’s Courts to Promote the Resolution of Conflicts and Disputes at Their Source (Implementing Opinions on Promoting the Resolution of Disputes at Source)(最高人民法院关于深化人民法院一站式多元解纷机制建设推动矛盾纠 纷源头化解的实施意见 that the authors of the above article missed in their research. One of the many objectives listed in this document is reducing the per capita rate of litigation.
Judge Wu Zhaoxiang, deputy head of the #6 Circuit Court (and also deputy head of the SPC’s Research Office, whom I quoted in my book chapter on the drafting of criminal procedure judicial interpretations), explained why they focused on real estate and construction disputes. He said it is because these disputes are important.
Within the jurisdiction of the 6th Circuit, “there are tens of thousands of lawsuits flooding into the courts every year, with huge amounts of ‘real money’ worth billions at every turn. It involves the development of business of tens of thousands of enterprises and the well-being of the people, and it is related to the country’s economic development, financial security, and social stability.” Judge Wu mentioned that some small, medium-sized, and even large real estate companies have encountered difficulties such as in funding, resulting in failure to hand over buildings in time, causing home buyers to stop paying mortgages, which has attracted a great deal of public attention. Many of the construction cases involve unpaid contractors and actual constructors. [“Actual constructors” (实际施工人) refers to companies /other entities that to which contractors have improperly subcontracted, although they may not have the proper certificates, etc. to do so]. The problem of wage arrears to migrant workers has not been completely resolved, and “collective rights protection incidents of migrant workers” still occur from time to time.
Statistics provided in one report bear this out. Shaanxi courts accepted 13,900 construction dispute cases in 2020, 17,800 cases, in 2021 and 18,400 cases in 2022. The Qinghai courts heard more than 8,400 real estate-related cases and 10,300 construction disputes, the Ningxia courts accepted 36,600 cases in the fields of real estate and construction since 2020, and the courts of the Xinjiang Corps accepted 15,300 real estate and construction cases in the past three years. The same report signaled that real estate and construction disputes are on the rise nationally.
The 6th Circuit labeled the ten typical cases with the lessons to be learned (which I have italicized), similarly to the judicial reform typical cases mentioned above. I further describe the first one, because the points in the typical cases repeat one another:
SPC Vice President Yang Linping, the head of the #6 Circuit Court, repeatedly used the phrase “active justice (能动司法) in her speech announcing the significance of these cases, which was reprinted as an article published in People’s Justice (人民司法). By doing this she is promoting the new spirit of the SPC leadership under President Zhang Jun. Some of that new spirit is putting a new spin on earlier policies, such as resolving disputes at source by promoting mediation, thereby transmitting the Fengqiao Experience. Active justice is another old policy receiving a new spin. “Active justice” appears to be a flexible concept and since President Zhang Jun has started to mention it, those in various levels of courts and substantive areas have used it, generally without a specific definition. From these cases and other sources, it involves the use of less prominent functions of the courts (such as coordination with administrative authorities and liaison with the local Party committee to resolve the core problems of a dispute. Resolving disputes at source appears to be derived from Chinese medicine philosophy in seeking to resolve the root cause of disputes by using the data, insights, and multiple functions of the courts to that end. It also is a flexible concept.
What is little discussed in articles about “active justice” thus far is why the courts are taking on some of the roles they are. For example, one of the exemplary methods promoted in these cases and praised highly was the courts analyzing and summarizing the compliance management risks of large construction companies as derived from relevant litigation and the courts issuing suggestions for corporate compliance management as well as providing judicial suggestions to administrative agencies on how they might better exercise their regulatory authority.
It occurred to me that in many other jurisdictions (I don’t believe the civil or common law distinction makes a difference), it would be either law firms or events sponsored by bar associations (lawyer associations) that would host events aimed at real estate or construction counsel (in law firms, in-house, or with government) to convey their insights about recent litigation. My initial reaction was that the situation might be different in first-tier areas of China, given that lawyers are better educated in those areas and companies have better counsel, and so the courts might be less “active” in providing advice. I, therefore, checked my initial reaction with a highly experienced judge in a first-tier city. He said that no, courts in his municipality also issue judicial suggestions (link is to a related academic article) to enterprises and administrative agencies requiring them to improve some aspect of their operations. It is part of their work to “serve the greater situation” and courts have performance indicators concerning judicial suggestions/advice. “So we take away a lot of business from lawyers by providing free legal advice.”
A fundamental principle of Chinese bureaucracy over the millennia is that a change in leadership brings a change in policy. As we know, Zhang Jun (张军) is now the president of the Supreme People’s Court (SPC), having taken over from Zhou Qiang in March.
I surmise that President Zhang Jun’s long career involving criminal law matters, starting out at the SPC and with hands-on experience working in many of the most important institutions related to the SPC has shaped his view of the role and appropriate operation of the Chinese courts. I will first add to the English language description of President Zhang’s biography before deriving from several recent articles what I view as an evolving new spirit at the SPC.
Although others have compiled his biography, with one in English and many in Chinese, I will tweak the narrative in English, based on the Chinese biographies, and on what I understand to be the importance of the institution in which (I surmise) he had formative experiences.
The Chinese version of his biography linked above states that between 1985-1995, Zhang Jun worked in the SPC’s Research Office’s General Department and Criminal Law Department as a clerk; then as a deputy judge (助理审判员) and deputy head of the Criminal Law Department; and the head of the Criminal Law Department and judge (审判员), with two years spent outside the SPC, 1990-91 at the Central Party School and in 1991-92, was seconded to the Beijing Haidian District People’s Court as the deputy head of the economic crimes group. His early career progression reflects what I wrote 30 years ago, that “graduates from law schools assigned to the Court as clerks are generally required to work for two years in a basic level and in an intermediate court to give them experience “at the grassroots level,” while their positions [at the SPC] are retained.” From 1995-98, he was promoted to be one of the deputy heads of the Research Office.
I emphasize these apparently minor details because, in my view, these were formative experiences that will have an impact on his leadership of the SPC. His early experience reflects the careers of an entire generation of senior legal specialists, most of whom have retired or have been reallocated to pre-retirement roles at the National People’s Congress (NPC) Standing Committee or the Standing Committee of the Chinese People’s Consultative Committee (CPPCC). He would have been assigned to the SPC (although it is not so stated), and the progression of his career. starting out as a clerk reflects the career path for many (back in the day), as I described in my 1993 article. The quota judge reform (discussed here), has changed the career path for young judicial personnel. The fact that President Zhang started out and spent many years at the SPC’s Research Office means that he is deeply familiar with the making and implementation of judicial policy, particularly criminal law (and procedure) policy. I mean policy broadly.
This gives me an opportunity to flag the role of the SPC’s Research Office. It is a special institution within the SPC, designated as a comprehensive operational department (综合业务部门), which one former staff member described to me as the “Brains” of the SPC. At the time that President Zhang was assigned to the office, the China Institute for Applied Jurisprudence had not yet been established, so applied research would have been done by the Research Office. As can be derived from multiple earlier blogposts, it is closely involved with the drafting of judicial policy and interpretations, as well as Hong Kong and Macau-related and juvenile-related judicial matters. The Research Office is the gatekeeper for reviewing proposals for new or amended judicial interpretations, as well as examining and coordinating the drafting of judicial interpretations. It also acts as the liaison when other central institutions forward their draft legislation and draft judicial interpretations to the SPC for comments, coordinating the SPC’s response with other divisions and offices, with a knowledgeable person noting to me earlier that “the view of the Research Office prevails.” It appears to have an analogous role in the drafting of judicial policy documents. I noted earlier that it has an important role in responding to requests for instructions from the lower courts.
A quotation of SPC Senior Judge Yu Tongzhi (previously mentioned in this blog) from his 2020 book, Ten Lessons on Criminal Practice, is relevant in understanding the thinking of Chinese judges working in the area of criminal law and procedure):
talking politics [讲政治] is a basic quality required of a criminal judge [Talking about politics, in a nutshell, means observing and dealing with problems politically. ]. In the past, we often said that criminal adjudication [trials] was a “knife handle”（刀把子）[tool of the Party], now this slogan is used less, but the function of criminal trials as a “knife handle” has never disappeared and cannot disappear. Of course there is no contradiction with strengthening the protection of human rights. Now Central leaders repeatedly say: the primary responsibility of the entire political-legal system is to safeguard political security, not only criminal adjudication and not only the adjudication work of the courts…
Judges from the SPC down to the local district courts (and the Monitor as well) are observing SPC media for signals of changes in policy. Gradually President Zhang Jun’s priorities will become clear to those of us outside the System and we will see which of Zhou Qiang’s initiatives will remain vibrant. A number of President Zhang Jun’s talks and visits have been made public–the purpose is to inform those in and outside the System of the spirit of the Chinese courts under new leadership. I’ll identify a few articles that twinkle new, amended, or repurposed policies and priorities.
The first article (and in my view, the most important) is the earliest, 抓实公正与效率 (Seize Justice and Efficiency), in which President Zhang Jun transforms General Secretary/President Xi Jinping’s series of speeches during the Two Sessions, the spirit of the annual Central Political-Legal Commission Conference, and suggestions from NPC and CPPCC deputies into more specific measures for the SPC leadership and correspondingly, the entire court system to implement. The ability to do this well is a crucial skill for any SPC President. According to a subsequent report about President Zhang Jun’s speech at the National Judges College, the themes in this article were transformed into a special training course for local senior court leaders.
Among the themes he stressed were: “serving the overall situation, serving people’s justice, and promoting the political foundation of the party’s governance”, which he characterized as the “duties and missions” of the people’s courts. He did not discuss the broader implications of “serving the overall/greater situation (大局服务).” As I have written a great deal on SPC policy documents issued in the past 10 years and I predicted in this 2022 brief article that the SPC will focus more on issuing policy documents, I will be monitoring SPC official media to see whether any change is visible in the way that judicial policy is transmitted.
President Zhang Jun stressed the themes of “fairness (justice) and efficiency (公正与效率). Promoting fairness/justice, he characterized as promoting substantive fairness, while paying attention to procedural fairness. He said “It is necessary to avoid simply [mechanically] ‘handling of cases according to law.’ It is the people who feel fairness and justice, not ourselves, we need to stress procedural justice…People come to the court to solve problems, not to ‘follow the procedure’. ” The theme of combining substantive and procedural justice is not new in China (there is a robust scholarly literature (including in English) discussing it, with a forthcoming related article by Professors Rachel Stern and Benjamin Liebman, Gao Wenwa, and Wu Xiaohan that I recommend (I was privileged to read a pre-publication draft). The fact that President Zhang Jun raised these themes so early means that they will be emphasized during his term in office.
The second theme that he stressed is improving efficiency, but without an overemphasis on efficiency, which he said would lead to more petitioning. He also encouraged judges to engage in the in-depth analysis of judicial big data, put forward judicial suggestions to relevant departments (see a recent paper on this topic), and promote the strengthening and comprehensive management of resolving disputes at source (mentioned in earlier blogposts).
He flagged ‘handling a typical case and promoting a solution for a group,’ so we can expect continued or greater use of typical (model/exemplary) cases (as discussed earlier). Unsurprisingly, President Zhang Jun reminded court leaders of their dual responsibilities (political and professional matters) and reminded them of the requirement to implement the “three regulations,” that is reporting the interference in the handling of cases, and the failure to report interference. It can be surmised that the incompletely implemented judicial reform of Chinese court finances, along with the deterioration of local public finances means that courts are under even more pressure to protect local interests. President Zhang Jun reminded judges that these are needed to promote an incorrupt judiciary and signaled that disciplinary inspection and supervision departments should strengthen supervision. I surmise that the SPC itself will be a target of heightened scrutiny by those institutions, in view of the multiple corruption cases that arose in recent years, especially given the larger number that arose compared to those at the Supreme People’s Procuratorate.
2. 国家法官学院开学第一课——能动司法 (The First Class at the National Judges College–Judicial Activism). Although President Zhang signalled how he thought criminal, civil, and administrative case hearing should be modernized in his speech to newly appointed intermediate and basic level court presidents, the most important message in the speech was about judicial activism (能动司法 but different from Marbury v. Madison–his reference). He said an “active judiciary must strictly perform its duties in accordance with the law. Political effects and social effects extend from legal effects. Sacrificing legal effects to talk about so-called political effects and social effects one-sidedly violates the comprehensive rule of law and loses the legal basis. How can it be good? ” Over 10 years ago, SPC President Wang Shenjun promoted judicial activism (there appears to be a large English-language discussion of this term, mostly behind publishers’ paywalls, but my reading is that President Zhang is repurposing the term. How he is repurposing it remains to be seen.
3. 就是头拱地也要把人民的事办好 “Even if you put your head down, you must do the people’s affairs well.” This article reports on an SPC Party Group related to the ongoing thematic education campaign (主题教育). President Zhang stressed that the courts need to do a better good job in the work of “responding to letters” (把“有信必复”工作做实做好), He said “responding to letters” is a systematic project that requires overall planning and scientific arrangements. He said “‘respond to every letter’ (“有信必复) is to let the people know that the letter has been received and who is handling it in the shortest possible time.” He noted that the petitioning related to litigation, in the final analysis, shows that the courts have not done their work well enough (涉诉信访问题说到底，是法院的工作还有不足).
He reminded his audience that leaders of courts at all levels should take the lead in handling major difficult and complicated cases reflected in letters, promote substantive resolution, and ensure the smooth and orderly development of this work. ”
I take from this that letters and visits work will become much more important in the local courts, with the stress on resolving the underlying issue (linking to the ongoing theme of “resolving disputes at source” and the greater importance of letters and visits (Xinfang) work nationally. It is not likely that court leaders will deal with petitioners in the first instance. Professors He Xin and Feng Yuxin wrote about veteran petitioners in this 2018 article (behind the paywall again). The experience of some friends who are working or have worked in local courts is that petitioners can be very strategic in the way they petition, with keen sensibilities about how to extract the maximum benefits from petitioning. Now retired Justice Hu Yunteng wrote about how to best handle administrative litigation-related petitioning at the #2 Court, explained here. From this recent article in People’s Daily, it appears that the Shenzhen Intermediate Court has led the way in litigation-related petitioning reform, investing much more staff time (I surmise including judges) and creating a platform for responding to visits, calls, and letters from the public, with a 100% rate of responses to calls.
4. 办公室不是清水衙门 “the office isn’t a clear water yamen.” This phrase is a contrast to what I wrote about the SPC 30 years ago. In my 1993 article, I quoted a graduate of a prominent Beijing law school, who told me he and his classmates were reluctant to be assigned to the SPC, and labelled it a “clear water yamen” for the low salary, meager fringe benefits, shabby housing, and rigid internal discipline.” President Zhang warned that judges and judicial personnel face the risk of being “hunted” [sought for improper benefits] in different forms. They must always “adhere to the moral integrity and self-discipline”, keep vigilant…and do not want to be corrupt. “The three regulations [mentioned above, about reporting improper interference] must be strictly enforced.” President Zhang has mentioned team rectification (队伍整顿) several times, linked to the thematic education campaign.
5. 承继人民司法优良传统 以审判工作现代化服务保障中国式现代化 ‘Inheriting the fine traditions of the people’s judiciary, guaranteeing Chinese-style modernization with the modernization of trial work”-this article is an account with his meeting with the old cadres of the SPC. I derive a sense of the new spirit concerning judicial reform from this article. President Zhang said ” a full assessment of the implementation of the judicial reforms undertaken in recent years should be undertaken, the positive aspects should be summarized, and those that have encountered problems in implementation should be deeply improved” (对近些年的司法改革实施情况做一个全面的评估，好的方面要总结，落实中的问题要深化完善). From this, I surmise that we will not see major judicial reforms (see Dean Jiang Huiling’s analysis), but more limited measures to improve the implementation of previous measures and the assessment will be for internal use only, as one for external use (the judicial reform white paper) has already been issued.
This article has flagged only some of the work and priorities of the Chinese courts under President Zhang Jun, in the short time he has been in office. There are many areas of law for which I have not seen related reports. For those matters discussed above, how the work is implemented and priorities are implemented in practice over the next years as well as the impact of these priorities remain to be seen.
_________________________
Many thanks to my anonymous peer reviewers for reviewing a draft of this blogpost.
As the readers of this blog know, Tongji University Law School Dean Jiang Huiling worked at the Supreme People’s Court for over 30 years, and for over 25 of those years, he was involved in judicial reform. He has the most comprehensive and deep understanding of the importance, challenges, and multiple implications of reforming China’s court system.
On 11 January 2023, Dean Jiang spoke on the last 10 years of judicial reform to my judicial reform class at the School of Transnational Law, colleagues and students from Tongji University, and some other visitors. This very delayed blogpost summarizes his presentation and responses to questions from the audience. The references to “we” in the summary are his, as are the unattributed quotations.
A. Roadmap of [the last ]10 Years of Judicial Reform
B. Four Fundamental Reforms
C. Judicial Organizations Reform
D. Procedural Justice Reform
E. Diversified Dispute Resolution
F. Judicial Democracy
G. Other Reforms
H. General Observations
The focus of his presentation was the last ten years of judicial reform (2013-2023), which included two five-year judicial reform plans. He first provided some historical background to the most recent two judicial reform plans, speaking about earlier judicial reform plans from a participant’s perspective.
Many Chinese scholars and some foreign scholars consider that those earlier ones were working method reforms, focusing on efficiency and other matters-they say is it not real judicial reform. He disagrees but says that it was only with the reforms of the last 10 years that structural (radical) reforms were made.
“It’s a new time….”
Dean Jiang focused on four fundamental reforms, giving a quick summary and some comments. I will supplement with scattered comments, some links to some English-language academic articles, and some of my own blogposts.
This is one of the most important reforms. Although the Central Government had sought to improve the quality of judicial personnel (judges and prosecutors) for a long time, they had been treated as ordinary civil servants with ranking. Now they are managed as professional civil servants. He noted that when he was in Taiwan in 2011, Taiwan had done something similar. (The reform is not complete, and the SPC’s website and casual conversation among judges and legal professionals reflect this).
(For those interested in the quota judge system, please see this article by Hong Kong University Faculty of Law Dean Fu Hualing and Zhongshan University Professor Sun Ying. )
He quoted President Xi Jinping’s description of it as “牛鼻子工程”–the nose of the cow project–crucially important. He noted that it is right to punish ethical violations and intentionally wrong judgments. Although this reform provides for more· internal Independence, it comes with strict restrictions and supervision. Jurists, prosecutors legal scholars, and others disagree with this approach. They argue that the reason for continued corruption, miscarriages of justice, and unfairness lies in the lack of reform elsewhere, The focus on judicial responsibility is a politician’s wisdom. Under that system, supervision is more important, and that is the reason for defining “four types of cases.”
See my earlier blogpost on the “four types of cases” and Straton Papagianneas’s article on the use of automated methods of supervision.
He spoke only briefly on this, saying these were needed so that judges were treated as judges.
Delocalizing the Chinese judiciary–local protectionism was criticized by legal scholars and those within the judiciary [not to mention litigants and their lawyers] for many years. Judicial protectionism was terrible for fairness. Officials now characterize judicial power as a central power.
Chinese and foreign scholars consider the first and fourth most important.
See this earlier blogpost on problems with the court funding reform.
These reforms are more technical and less fundamental.
Six Branches in the country. The country is large but only one Supreme Court in Beijing exists. They were established to deal with trans-provincial cases, so that cases involving parties from different provinces, especially when the local government or its entities are a defendant, are heard fairly. He favored the scholars’ proposal of making the circuit courts into a separate tier (or quasi-tier), but that idea was not accepted.
Note my earlier research on the caseload of the SPC Circuit Courts, which found that most cases that these courts considered were applications for retrial, most in administrative cases. This has now changed with the reform to the four levels of the Chinese courts, as discussed here. See this article by the deputy chief of the SPC administrative division and two colleagues.
IPR Courts
Financial Courts
Internet Courts……
He noted that the Internet Court is not officially recognized as a specialized court by the Organic Law of the People’s Courts, but is an innovative action by the Chinese government.
See also Georgetown Law Professor Mark Jia’s article on China’s specialized courts.
“It’s another interesting invention in China.” Virtually all courts in China are based on the corresponding administrative area, so a county court will be established in a county, emphasizing the localized nature of the courts. So in 2015, the Central Government established the following two courts:
Under the situation that judicial appointments and budgets have been transferred to the provincial level, this reform may not be so useful. It is his suggestion that China establishes transregional courts beyond the provincial level. This overlaps with the circuit courts. It is a scholar’s view.
This one has many Chinese characteristics.
This involves the five-eight-ten test. If you have under 50 personnel in your court, you can establish up to give internal organs in your court. If you have between 50-150 personnel, you can establish eight internal organs, and if more than that, you can establish 10 internal organs. This means that it is possible to save some quota (headcount) for personnel [linked to the headcount system of the organizational departments–see here]. But it also pushes local courts in the direction of professional, rather than bureaucratic management.
This is considered a “technical” reform but touches upon fairness, and what President Xi Jinping says about making each person feel fairness in every case.
Both inquisitorial and adversarial systems have the same standards of procedural justice. But in China, traditionally 公检法都是一条龙, the public security, procuratorate, and courts are a production line. “We have a long history in China with this.” They consult with one another and sometimes other bodies coordinate them. Which is the center? In this round of reforms, the Central Government pointed out that the trial, the hearing should be the center in criminal justice. It’s very difficult and the reform is not finished. But we are moving in the right direction.
Case filing reforms, making it easier for a party to file a case.
For judicial efficiency, enabling more cases to be closed in a short period of time, the following reforms were made:
“An old item of reform but a new action taken in recent years.”
“Cylinder or Cone”?
Traditionally the Supreme People’s Court could hear a case within the jurisdiction of a local court. But this is not good for professionalism. So now, the reform is to have the higher courts focus on legal issues and more important issues, that is for the court system to be shaped more like a cone.
See my two blogposts on this reform.
ADR–in China called Diversified Dispute Resolution. This is an efficiency issue. It is also important for Chinese state governance. The courts are a beneficiary of these developments because they resolve more cases.
1. One-stop Litigation Service
2. One-stop Dispute Resolution Service
3. Judicial Platform and Governmental Platform
4. Judicial Confirmation of Mediation Settlements
–we learned from the United States and other countries in designing this. In the US, courts approve a settlement, while in China, we have a confirmation of mediation settlement procedure.
5. Arbitration–In China, we have over 260 arbitration commissions, almost one for each city, with CIETAC, Beijing Arbitration Commission, Shanghai International Arbitration Center, and the Shenzhen Court of International Arbitration being the most prominent. We have learned from overseas in arbitration.
This sometimes makes courts anxious. The president of a court does an annual report and the people’s congress votes on it. If it does not pass by much or does not pass, the court president and the court feel embarrassed. It has happened. What happens if the report does not pass? After two or three months, the court president has an opportunity to report again. It is a type of facilitation.
See my recent blogpost related to people’s congress supervision.
–although the terminology in Chinese is similar to a jury, it is actually more similar to the lay judge system in Europe. It has a long history in China (not as long as Europe), and changed in the last 20 years. Now the people’s congress appoints them on the recommendation of the people’s court.
Very different from people’s congress supervision and he spoke about the rise of commentary on the courts through social media platforms.
The Chinese courts do not do that, it is a function of the National People’s Congress. They have established a committee. This is a big progress, although some scholars think this should be given to a constitutional commission or court, or to the courts. He is not sure which is better. The NPC Standing Committee has recently published its annual report on this. These contain legal judgments. But how should these legal judgments be made? Should they follow some procedures? The legislature is trying to reflect people’s views. The standard between the courts (black-letter rules) and people’s views is different. He hopes there will be some improvement.
The SPC and Supreme People’s Procuratorate both have interpretative power within their area of competence. This is always criticized by NPC deputies, the staff of the NPC, and some scholars because the content is abstract and looks similar to legislation, but it plays an important role in unifying the application of law in the whole country. The judges love it. Without interpretations of law, given the brief provisions of law, it gives judges great discretion, so there is a risk of inconsistent application of law. He is sure judicial interpretations will be there for another decade.
Justice Xiao Yang found another way of interpreting the law-through cases.
The procuratorate disappeared in the former Soviet Union but in China, it is still here. It has found a new way of life with public interest litigation, supervising administrative, civil, and criminal litigation, enabling them to oversee the executive.
The State Council’s Legal Affairs Office has been merged into the Ministry of Justice. And everyone knows that President Xi chairs the Rule of Law Commission and that secretariat is located in the Ministry of Justice.
The Central Government just issued a reform plan.
It is another technical but important reform for the future of the legal profession. We followed the civil law countries in planning pre-career training. I hope we can insist on two years of legal training.
1. The first 5 years vs. the second 5 years–very different. The first five years of reforms are structural or system reform, like the identity of the judges or prosecutors, delocalization…But the second five-year reforms–comprehensive, supplementary reforms–the four fundamental reforms have finished, and we go on to the next. But those reforms and others are not finalized–it is not possible within four or five years to fundamentally change a judicial system. This reform plan is continuing the former plan, plus supplementary reforms. Unfortunately, the Central Government has invested less. This is linked to Covid-19, the unsatisfactory international environment, and the economy—many negative factors.
2. From judicial reform to “Political and legal (政法) reform”–from judicial (司法) to political-legal reform, including reforms to the people’s congress system. The comprehensive, supplementary reforms must fit into the political-legal reforms
3. Step-by-step reform: Waiting for or creating satisfactory conditions for some reforms–only a few provinces have finished the financial reforms, less than half. Reasons– now few meetings to coordinate with other branches on this.
4. How to deal with the halfway reforms and progressing with the Comprehensive supplementary reforms–there should be some evaluation–but there are no formal critical objective evaluations published. How to deal with the halfway reforms.
5. Yes and no to Politics-Driven Reform–the nationwide judicial reforms must be driven by political power. No comprehensive effect is possible without the use of political power. There should be more legal elements in this process.
6. On the Track of Rule of law–how to keep judicial reform on the track of the rule of law.–#5 of Xi Jinping rule of law thought is putting state governance on the track of the rule of law. That will take all legal professionals, foreign scholars, the international community, and internal incentives. This is what is needed to keep judicial reforms on the track of the rule of law.
In the next five or ten years, the judicial reforms will not stop. The pace might be slower. The country has so many difficulties. We hope that the rule of law will help the development of this great country.
He concluded the main part of his presentation by cautioning that these are his views, as a scholar.
____________________________________
In response to the question concerning which reform is the most important and what obstacles it faces, Dean Jiang said that two are the most important–the centralization of judicial power and the professionalization of judges, so that judges are sufficiently qualified to exercise greater judicial power. Time is a challenge.
A question from one of my students–what about using contract judges to supplement the shortage of judges? A: In UK, they are called part-time judges. But in China, Chinese judges must have 政法专项编制 (political-legal specialized headcount)–in China we have not changed our minds on this–we are concerned about corruption. Perhaps in the next 10 years, we will have part-time judges, more likely borrowed from the executive. Professional ethics is very important.
A second question from one of my students, concerning the constitutionality of the quota judge reform–removing the title of judge from 70,000-80,000 personnel. Dean Jiang said it was a good question and would have been challenging if done in Europe. The Central Government leadership decided, saying that many people were not doing judicial work, but were in the General Office, Research Department, etc. People thought about the legality or constitutionality of this. We didn’t use the word “removal,” but “suspension,” you keep the title of “judge,” but no longer do judicial work. Dean Jiang himself was affected by this reform. He was appointed as a senior judge by the NPC Standing Committee but was working in the Judicial Reform Office. Approximately 360 judges were appointed as quota judges by the SPC. He was not one of them, not a 员额制法官, but still enjoyed the title of “senior judge,” (of the bureau-chief ranking 正局级). If all those judges had continued to be judges, it would have been a disaster for judicial reform, it would have slowed things down. It was a balancing, at the edge of legality/constitutionality. The second question that the student asked was about the accountability of judicial assistants under the judicial responsibility system. Dean Jiang said the reason is that they are involved in judicial work and are future judges.
Another question from the audience related to reforms such as abolishing the Procuratorate and moving the prosecution function to the Ministry of Justice (like many other jurisdictions)–unlikely and why the enforcement bureau remains in the courts, when the enforcement function is elsewhere in many jurisdictions. Dean Jiang said many court presidents would welcome that, and the proposal has been made, but during the 16th Party Congress, it was decided that it was not appropriate to do so. A question was raised about military courts–he noted that they are considered specialized courts, and under the reforms moved from being under the General Political Department to being directly under the Central Military Commission (through its Political-Legal Commission).
By Susan Finder with initial research assistance by Zhu Xinyue
The Supreme People’s Court’s (SPC) October 2022 specialized report on foreign-related adjudication work (最高人民法院关于人民法院涉外审判工作情况的报告) provides an overview of the SPC’s and the lower courts’ work related to foreign-related matters over the past 10 years. This blogpost uses the term “adjudication work” to encompass the multiple functions of the SPC (see my U.S.-Asia Law Institute article for a refresher) as well as the lower courts. (My previous blogpost gives a detailed explanation of the significance of specialized reports of the SPC and other institutions to the NPC Standing Committee). The report is intended to showcase the SPC’s work in supporting Xi Jinping era fundamental changes in foreign policy, or as the concluding section words it, “vigorously serving the greater situation of the Party and State’s external policy work” (积极服务党和国家对外工作大局). An analysis of the content of this specialized report provides insights into the role of the SPC and its relationships with other Central institutions as well as the current and evolving concept of “foreign-related rule of law” (涉外法治). Concerning the link between “foreign-related rule of law” and the foreign-related adjudication work of the people’s courts, as President Zhou Qiang said: “the foreign-related adjudication work of the people’s courts is an important part of foreign-related rule of law work (人民法院涉外审判工作是涉外法治工作的重要组成部分).”
I surmise that the NPC Standing Committee requested the SPC submit a specialized report on the SPC’s foreign-related work because the political leadership is prioritizing developing China’s foreign-related body of law and takes the view that SPC expertise is needed to that end. As in any legal system, issues that come before the Chinese courts highlight the gaps in current legislation (broadly defined).
The report covers all areas of SPC work–criminal, civil and commercial, maritime, intellectual property, administrative, and other areas, as well as the recognition and enforcement of foreign judgments, recognition and enforcement of foreign arbitral awards, and other forms of international judicial assistance. Because cases involving Hong Kong, Macau, and Taiwan are considered by reference to the principles for foreign-related cases, the report provides highlights of those developments as well.
Following some background material, this blogpost follows the structure of the report and therefore the blogpost is much longer than usual. A more comprehensive analysis of many aspects is found in my “never-ending article,” currently on its meandering way to publication.
Because most of the cases involving foreign-related matters tend to be in the commercial area generally (incorporating maritime, recognition and enforcement of foreign judgments and arbitral awards), it is likely that the #4 Civil Division took the lead in drafting the report, worked closely with the International Cooperation Bureau, and involved other divisions and offices of the SPC as needed, including those working on criminal law issues. Although this report appears to be just another anodyne official report, what underlies it is likely to be hundreds of hours of drafting, soliciting data and comments from related offices, including the Research Office (with a department in charge of Hong Kong and Macau issues), comments from the vice president in charge of the #4 Division (it now appears to be Justice Tao Kaiyuan), President Zhou Qiang’s office, and the NPC Standing Committee itself. It is unclear whether the Ministry of Foreign Affairs and the Ministry of Comments also provided input. It incorporated the SPC’s response to a research report on foreign-related adjudication work prepared by the NPC Standing Committee’s Supervisory and Judicial Affairs Committee (mentioned in the previous blogpost).
The report highlights the SPC’s work in foreign-related cases in support of related policies. The structure of the report is the usual one for such reports–a long list of accomplishments, followed by a summary of outstanding challenges and suggestions to the NPC Standing Committee for future work. It reveals some previously unknown developments and clearly sets out the official conceptual structure underpinning the SPC’s foreign-related adjudication work and therefore China’s “foreign-related rule of law.” The report takes an inclusive view of accomplishments: judicial interpretations, policy documents, typical and guiding cases, as well as correctly deciding important cases. This blogpost decodes the details in the report, with brief comments and links to some of my earlier blogposts.
The report provides selected statistics. As I have said when I have spoken on the Belt & Road and the SPC, the number of foreign-related cases heard in the Chinese courts has increased substantially over the past ten years, but even now they constitute a tiny percentage of cases heard in the Chinese courts. The report reveals some of the challenges, as seen officially.
From 2013 to June 2022, Chinese courts heard a total of 384,000 foreign-related (including Hong Kong, Macau, and Taiwan-related) cases. These numbers are tiny compared to the large number of cases accepted by the Chinese courts annually. For example, in 2021, that number reached over 33 million cases. The number of first-instance foreign-related civil and commercial cases nationwide increased from 14,800 in 2013 to 27,300 in 2021. The SPC has not released more detailed statistics about the types of civil and commercial cases or foreign-related cases in other areas of law, such as criminal cases.
As is usual with SPC official reports and documents, matters relating to national security and sovereignty take a prominent place. The SPC reiterates that its foreign-related adjudication work serves the domestic and external greater situations. This section highlights two areas of service in protection of national security and sovereignty:
The crimes mentioned are harmonized with the priorities seen in other official reports and documents, so that national security, particularly political security is listed first. The crimes are similar to those listed in the 2020 Guiding Opinions on Services and Safeguards of the People’s Courts on Further Expanding Opening-Up to the World (Open Policy Guiding Opinion 最高人民法院关于人民法院服务保障进一步扩大对外开放的指导意见). Accomplishments listed include the 2017 Provisions on Several Questions Concerning the Application of the Procedure of Confiscating Illegal Gains in Cases Where the Criminal Suspects or Defendants Absconded or Died and the 2021 comprehensive judicial interpretation of the Criminal Procedure Law (my book chapter concerns its drafting), which contains basic principles relating to foreign-related cases.
This section is relatively long and highlights much of the SPC’s foreign-related adjudication work in the past 10 years. The focus is on international commercial dispute resolution rather than intellectual property disputes.
i. Foreign investment: The courts have supported the revised Foreign Investment Law and Implementing Regulations with two interpretations (including one on the application of the Foreign Investment Law, mentioned here), as well as a policy of centralizing the hearing of such cases, seeking to ensure greater competency.
ii. Pilot free trade zones and ports: The courts have supported these policies through several services and safeguards opinions (one general one, discussed in my book chapter, as well as ones on Lingang, Hainan, and new zones in Beijing). The SPC also issued related typical cases and encouraged local courts to establish additional measures to support national free trade zone policy.
iii. The courts have supported national policies supporting a competitive market order, and to that end have issued regulations on bankruptcy, normative documents on improving the business environment (including services and safeguards opinions and a conference summary), and established financial courts (see Mark Jia’s related article).
iv. Supported national policy concerning economic development and COVID-19 pandemic control (I have a related article that will be published in Italian). The SPC promulgated four guiding opinions (policy documents) on the trial of civil cases related to the Covid-19 pandemic, one of which focused on foreign-related commercial and maritime cases. This document was included in UNCITRAL’s CLOUT database.
v. Respecting international conventions and international practices (customs or usage, by which is meant trade/commercial practices or usages). As mentioned here, the SPC is drafting a judicial interpretation on the application of international conventions and treaties and international practices and has issued related typical cases.
vi. Application of (foreign (non-mainland) governing law. Since 2013, the courts have applied foreign law in 542 cases. My draft article discusses related issues briefly.
vii. Cross-border recognition and enforcement of judgments: Since 2013, the courts nationwide have considered 7,313 cases of applications for recognition and enforcement of civil and commercial judgments from foreign courts. My draft article discusses the evolution of this policy. The report mentions the enforcement of Chinese judgments abroad.
The report underlines that the SPC’s maritime adjudication work directly serves foreign trade shipping and marine development to maintain national [judicial] sovereignty and related national interests. The report mentions that the SPC issued judicial interpretations on maritime litigation jurisdiction, and issued judicial interpretations for hearing cases of compensation for damage to marine natural resources and ecological environment. The SPC and the Supreme People’s Procuratorate issued regulations on handling public interest litigation cases on marine natural resources and ecological environment, and released related typical cases.
The report mentions China’s work on becoming an international maritime justice center (See my article in the Diplomat). Related accomplishments include the SPC expanding the network of maritime courts and their dispatched tribunals and the report highlights that more parties without a jurisdictional link with China have chosen the jurisdiction of the Chinese maritime courts (for a different view from the official one, see Professor Vivienne Bath’s research on parallel litigation involving the Chinese maritime courts).
According to the report, the SPC is implementing the deployment of the political leadership in this area. Those include:
the CICC and related developments, including: the CICC’s bilingual website, the CICC’s expert committee; two BRI Services and Safeguards Opinions, and typical BRI cases, as well as establishing local international commercial courts. (This blog has discussed these developments in some detail, with more contained in my draft article).
i. The SPC reports that it established a “one-stop” diversified international commercial dispute resolution mechanism, which integrates litigation, arbitration, and mediation. The report mentions the accomplishments of several local courts and the incorporation of arbitration and mediation institutions into the SPC’s (CICC’s (Chinese version)) one-stop platform.
ii. Arbitration: The SPC issued judicial interpretations on judicial review of arbitration cases and enforcement of arbitral awards, and introduced a mechanism and reporting system for judicial review of arbitration cases; since 2013, Chinese courts have heard over 110,000 judicial review cases (presumably the vast majority domestic).
iii. Mediation: The report describes local developments and accomplishments related to the mediation platform of the people’s courts (see the related white paper).
On the details of SPC and Greater Bay Area policy, please see my earlier blogpost and presentation at a November, 2022 conference held at the Law Faculty of the University of Hong Kong.
This blogpost summarized earlier developments related to Taiwan. The SPC issued judicial interpretations on the recognition and enforcement of Taiwan civil judgments and arbitration awards.
The SPC mentioned that the courts have supported national policy on integrating Hong Kong and Macao into Greater Bay Area policy by supporting [Ministry of Justice led policy] to permit lawyers from Hong Kong and Macao to practice in the Greater Bay Area (note, such lawyers must be Chinese citizens). The courts are also supporting the initiatives related to integrating Hong Kong, Macau, and Taiwan legal professionals (again, foreign professionals registered in these jurisdictions are not included).
i. Jurisdiction: the report mentions a notice on jurisdiction on foreign-related cases (flagged in this blogpost) and centralized jurisdiction.
ii. Service of process: The SPC amended the judicial interpretation of the Civil Procedure Law to enable more flexible service of process abroad and established a platform with the Ministry of Justice (discussed in this blogpost) to enable more efficient handling of service of process requests from abroad. (There is no mention of greater flexibility in foreign service of process into mainland China.)
iii. Determination of foreign law: the SPC established a unified platform for the determination of foreign law (accessible through the CICC website, see the links above), which links to SPC-authorized institutions providing such services. My draft article provides additional details.
iv. Improving cross-border litigation services. This integrates with the SPC’s smart courts policy. One of the major accomplishments mentioned in the SPC’s judicial interpretation on cross-border online litigation.
iv. Training foreign-related adjudication talents (涉外审判人才. See my earlier blogpost.
Matters so classified include: vigorously supporting the development of foreign-related legislation (mentioned in this blogpost); application of foreign-related law; and undertaking related research. The foreign-related legislation that the report mentions (Civil Procedure Law and several maritime-related laws), is actually only one small part of what the SPC has done. The application of foreign-related legislation gives the SPC an opportunity to reiterate its accomplishments in issuing judicial interpretations; policy documents; conference summaries; and typical cases. The SPC also mentions its BRI research center and establishing research centers at 15 universities and research institutions.
The SPC includes in this category the following: judicial exchanges in the form of memoranda of understanding and large-scale conferences; international judicial assistance in both civil and criminal matters; participation in the formulation of international rules (negotiating international conventions and bilateral treaties, as mentioned here, as well as providing support to China’s initiatives in various matters, including railway bills of lading (see my student Zhang Huiyu’s article); and “telling China’s rule of law story well.” The latter category includes certain conferences and meetings with foreign judiciaries. I have either been a participant or an observer in some of those “telling China’s rule of law story well” events, such as the CICC international conferences and the 2019 third meeting of the UK-China Joint Judicial Expert Working Group on Commercial Dispute Resolution.
The report listed the following challenges:
a. Limited ability of some courts to engage in foreign-related adjudication work, as evidenced by the lack of experience of some courts in foreign-related work. When I spoke at a Hong Kong International Arbitration Centre event in October, 2022, my co-panelist Arthur Dong illustrated that with his accounts of how several local courts handled applications for interim measures.
b. Ongoing difficult issues: difficulties in service of process, extraterritorial investigation and evidence collection; determining foreign (non-mainland Chinese) law; shortening the trial period for hearing foreign-related cases (also note that at least one CICC case has been outstanding for over two years).
c. The “one-stop” diversified international commercial dispute resolution mechanism needs improving and China needs to accelerate the drafting of a commercial mediation law. The need for a commercial mediation law has been discussed within central institutions since at least 2019 (as I have observed). So it seems that the SPC is in line with the view of the Ministry of Commerce that such a law is needed to promote more professional mediation.
d. A significant shortage in the number of judicial personnel with foreign-related expertise (discussed here).
The report emphasized adhering to the leadership of the Party to ensure foreign-related adjudication is politically correct and in line with the deployment of the political leadership.
The practical measures (directed towards the NPC Standing Committee) included:
As this report has illustrated, the SPC (and the court system) are taking an active part in the evolving project of creating a foreign-related legal system that better reflects both the demands of the political leadership and the practical needs of the users of the Chinese legal system. It should be clear from this analysis that China’s foreign-related rule of law is a work in progress involving a multitude of issues, and that the SPC has a multifaceted and crucial role in its creation.
Happy Year of the Rabbit to all followers and readers of this blog! As a few followers know, I moved recently. The disruption is the reason I haven’t posted in such a long time. Because of the move, some of my archives from my many years of researching the Supreme People’s Court (SPC), like Rip Van Winkle, have emerged from hibernation. They include:
I recently published a short article on the Perspectives blog of the New York University School of Law U.S. -Asia Law Institute, with the same name as this post, linked here. The Perspectives blog has posted a PDF version, and I am reposting it here for the convenience of some blog readers. I have finished a long version of the article which I am now amending. The research on which this article is based draws on discussions with many persons who cannot be thanked by name and others who will be whenever the longer version is published. I particularly appreciate those knowledgeable persons who have shared their insights with me over the many years it has taken to write the longer version.
About a year ago, I published an article on the same blog, entitled Why I Research China’s Supreme People’s Court. The PDF version is available here.
Many thanks to Katherine Wilhelm, Executive Director of the U.S. -Asia Law Institute, for her skillful editing of both articles.
In the middle of July (2022), the Supreme People’s Court (SPC) issued another document providing “judicial services and safeguards” to another major government policy initiative, this one on the work to create a unified market, entitled Opinions on Providing Judicial Services and Safeguards for Accelerating the Construction of a Unified National Market (SPC Unified Market Opinion 最高人民法院关于为加快建设全国统一大市场提供司法服务和保障的意见). (See bilingual version here). It implements the April 2022 Communist Party Center and State Council Opinions on Accelerating the Construction of a Unified National Market. The SPC also released ten typical/model/exemplary cases. These cases provide guidance to the lower courts through specific examples phrased in current political language. The document and cases are a shining example of the long series of “judicial services and safeguards opinions” that the SPC has issued since 2015. The SPC issued the first one with that title in the Xi Jinping New Era to anticipate legal issues created by the then-new (or relatively new) Belt & Road Strategy.
The SPC Unified Market Opinion reveals a great deal about what is on the agenda of the SPC as well as deeper trends in the development of the Chinese courts in the New Era. A summary of what the SPC’s Unified Market Opinion covers and reveals follows, with some comments on what it says about larger trends.
The SPC Unified Market Opinion covers many aspects of the work of the courts. only some of which are discussed in this overly long blogpost. Therefore the SPC’s Research Office took the lead in drafting it, along with the #2 Civil Division, focusing on domestic commercial matters and the #3 Civil Division, focusing on intellectual property matters. For that reason, representatives from those offices spoke at the press conference, along with Justice Yang Wanming, who must have been the SPC leader responsible. However, it is clear from the document that many other entities within the SPC contributed to the drafting, particularly the #4 Civil Division, which focuses on cross-border commercial matters, including arbitration, maritime, trade and investment issues. The International Cooperation Bureau, which has substantive responsibilities in addition to its duties under China’s foreign affairs system clearly contributed to it as well.
It is consistent with other judicial services and safeguards opinions for the document to serve as a “package” for judicial measures, broadly understood. Many of the measures are not new to the regular reader of SPC documents, indicating that the problem is important and the related issue has not gone away.
In the SPC’s bureaucratic language contained in the SPC’s press release, the document “coordinates the precise efforts in all areas of the judiciary” (统筹司法各领域精准发力” ). In plain language, it means that measures across all relevant areas of law for which the SPC is involved are incorporated. It also means that different types of measures are included in the package, including relevant administrative matters.
The function of coordinating with Party and state institutions, about which I wrote last year is described in the press release as “coordinating all forces to implement comprehensive policies 统筹各方力量综合施策.” Oddly enough, at least one well-known Chinese scholar who has written about the Chinese courts doubted that this is a judicial function. From these points, it can be seen that this document is a multifunctional tool.
For those of us seeking to monitor what is on the SPC’s judicial interpretation agenda since the SPC stopped publishing its annual agenda, the SPC Unified Market Opinion has a great deal of useful information. The document also flags forthcoming judicial policies and related administrative matters that the SPC leadership has approved and a great deal of guidance for the lower courts. For cross-border matters, because I am more familiar with the SPC’s judicial policies, I will go into greater detail. In several other areas, I will flag forthcoming judicial interpretations and other important matters.
As relates to cross-border commercial matters, Articles 5 and 16 of the SPC Unified Market Opinions signal many matters to the careful reader.
When read together, the other provisions of the SPC Unified Market Opinion can be seen as an assessment of the state of legality and the economy after ten years of documents issued by the political leadership as well as SPC (and other institutions). The impact of multiple campaigns, regulatory and otherwise, and the grip of government on the economy is visible. Many new and forthcoming developments are visible as well, such as the implementation of Chinese government undertakings concerning climate change and the challenge of new forms of employment.
Articles 3 and 4, entitled “helping the implementation of unified market entry” and “enhancing equal protection of property rights” provide guidance to lower courts on trying cases related to abuses of administrative power that harm business, the misuse of administrative power to exclude or restrict competition. property, and the abuse of prosecutorial power that transforms a business dispute into a criminal case. The language “it is imperative to improve the mechanism for petition and retrial, etc. of enterprise-related property right cases and refine the mechanism for effective prevention and correction of wrongful convictions” signals that the many documents issued to protect the interests of private entrepreneurs have not been effective and that the campaign (now normalized) to sweep out organized crime and get rid of evil (saohei 扫黑除恶） has likely resulted in another group of persons wrongfully convicted. That section and one of the model cases also signal that the protection of private property rights in criminal cases continues to be a problem.
Article 6 focuses on bankruptcy (insolvency) law. In addition to a long list of guidance, it mentions the SPC facilitating (推动) amendments to the Bankruptcy Law and legislation on individual bankruptcy. SPC President Zhou Qiang has received delegations from the NPC working on the drafting of the Bankruptcy Law several times, and it is likely that staff-level interactions occur much more often.
Another matter to note in that article is the establishment of the normalized “government-court interaction” coordination mechanism (常态化“府院联动”协调机制). SPC judges who have spoken about this mention that the coordination mechanism faces many barriers, but it is a fact that in the Chinese context, bankruptcy cannot proceed without the assistance of local governments.
Article 7 is on enforcement, and mentions that the SPC will cooperate (presumably with the NPC Standing Committee and its Legislative Affairs Commission) on efforts relating to the Civil Compulsory Enforcement Law and amend or otherwise issue a judicial interpretation to enforce it.
Article 8 is on unifying the urban and rural land markets. In addition to a great deal of guidance, it mentions that to adapt to the adjustments of land supply policies, the standards for the hearing cases involving disputes over the assignment and transfer of the right to use state-owned land shall be unified. It does not specify the form that the unification will take.
Article 9 relates to the securities and financial markets. In addition to a great deal of guidance, it mentions that the SPC will improve rules (审 理规则) for hearing new types of cases: private equity investment, entrusted wealth management, asset securitization, and cross-border financial asset transactions, among others. It flags that the SPC will research legal issues concerning digital currency and mobile payment (I surmise possibly looking to the academic sector for initial research),
Article 10 focuses on the unification of the data and technical market, flagging that judicial safeguards will be provided for the data element market driven by data and the SPC will focus on improving judicial protection of data property rights.
Article 11 relates to energy and the environment. Those focusing on these issues would be able to write an entire article on this article–I would only mention that the SPC plans to research judicial policy support for achieving the target of carbon peaking and carbon neutrality.
Article 12 focuses on the judiciary and business environment, mentioning work on establishing an indicator system consistent with China’s national conditions and international standards; issuing judicial interpretations and judicial policies providing services and safeguards for the business environment, and cooperating with relevant functional departments (unspecified有关职能部门), in promulgating an implementation plan for building a business environment under the rule of law.
Article 13 is devoted to creating a good faith transaction environment. At least three points to be noted: the issuance of the judicial interpretation of the Contract Part of the Civil Code, work on deep integration of socialist core values with the work of the courts; and exploring paths for better integrating the social credit system with the work of the courts.
Article 14 focuses on regional market integration and Article 15 on improving the linkage of rules between the mainland, Hong Kong, Macau, (and mentioned less, Taiwan). The last blogpost explored Greater Bay Area judicial policy in depth.
Article 18 focuses on labor issues, reminding judges that employment discrimination cases should be tried properly but not mentioning the drafting of a judicial interpretation. It flags that the SPC will do research related to a judicial interpretation concerning labor disputes of employees in new business forms.
Article 20 focuses on providing better protection for the consumer. It mentions improving e rules for hearing cases involving online consumption, mechanisms for trying consumer disputes, work on establishing a collective litigation system for consumer cases plus a related public interest litigation system and cooperation mechanism with consumer protection authorities.
Article 21 is a long paragraph on anti-monopoly law, so much in this area can be anticipated. It mentions “strengthening” judicial regulation over monopoly by platform enterprises, improving rules for making judgments in competition cases and eventually issuing a judicial interpretation on anti-monopoly civil litigation. The article on intellectual property law, Article 19, appears to be a summary of current policies.
Article 22, on supervising and supporting market regulators also deserves standalone analysis. It mentions amending and improving the judicial interpretations relating to public disclosure of government information and cooperating with the procuratorate to push market regulatory departments to improve their regulatory system through administrative public interest litigation cases and judicial recommendations. The courts will communicate and cooperate more with the market regulators to unify administrative and judicial rules.
Article 23 focuses on criminal and other violations of market order. On the agenda in this area is a future judicial interpretation on hearing tax-related criminal cases. It also mentions intensifying the punishment of tax evasion by making use of dual contracts and by high-net-worth individuals in culture and entertainment fields. As could be anticipated the judiciary will collaborate with the taxation and public security authorities on tax matters.
Article 24 summarizes SPC policy in support of epidemic prevention and the economy. I have a forthcoming short article on this topic.
The concluding section (Articles 25-29) of the SPC Unified Market Opinion focuses on the courts themselves. The message from the SPC is that this document is important and that lower court leaders should regard it as an important political task. This section summarizes recent litigation-related reforms, SPC efforts to unify the application of law, smart courts, and diversified dispute resolution.
I surmise that the SPC issued this document in July so that it could be included in its forthcoming mid-term report to the NPC Standing Committee about the piloting of the reforms to the four levels of the courts. That reform means a shift in focus of the work of the SPC, especially SPC headquarters, to judicial policy, judicial interpretations, and guidance of the lower courts as well as reducing the number of cases the SPC considers. It is meant to illustrate to the members of the NPC Standing Committee the many contributions the SPC makes when focused on judicial policy, interpretations, and guidance of the lower courts. For that reason, it also appears designed “to welcome” the upcoming 20th Party Congress by showing the relevance of the SPC and the court system to promoting the development of the economy and socialist rule of law (with Chinese characteristics).
Assuming that the mid-term report is approved and the reform of the four levels of the Chinese courts continues to be implemented, we will see more of such relatively comprehensive judicial services and safeguards opinions promoting the multiple functions of the Chinese courts. These will strengthen the centralizing role of the SPC, or as I have mentioned often in this blog, strengthen the firm guiding hand of the SPC.
In the period between 1 January and today (2 March 2022), the Supreme People’s Court (SPC) issued quite a few judicial interpretations, judicial documents, and typical cases. This blogpost focuses on one judicial interpretation; several Greater Bay-related interpretations and documents; and several sets of typical cases issued since the beginning of the year. Apologies to readers that I do not have time to analyze any of this properly-I am doing the first of many major revisions of an academic article, for submission.
In late February, the SPC issued the Interpretation of the General Part of the Civil Code (最高人民法院关于适用《中华人民共和国民法典》总则编若干问题的解释). I had previously surmised that it would be finalized before the National People’s Congress (NPC) meeting in March. It went into effect on 1 March 2022. An SPC press release is found here, with background information on drafting, mentioning that the drafters had completely accepted the views of the Legislative Work Commission (LAC) in the drafting process, for reasons previously discussed. I surmise in the meeting rooms in which the draft interpretation was discussed, there was a robust exchange of views. A more recent article, published after this blogpost was originally written), that I recommend to those with an interest (Understanding and Application of the General Part), has more detailed information about the drafting.
As discussed earlier, the drafters solicited views within the court system and among some of the leading Beijing law schools. The press release highlighted the importance of integrating socialist core values into the interpretation. Commentary by a responsible person of the Research Office of the SPC here. That office led the drafting of the General Part, as flagged in this blogpost. The authoritative person (perhaps Judge Guo Feng, but unknown), mentions the integration of socialist core values into the General Part of the Civil Code, as is required by the ongoing SPC plan and a multi-institutional Party document that has not been made public. The “Understanding and Application of the General Part) was written by Judge Guo Feng, Chen Longye (mentioned here), and Liu Ting, a judge’s assistant, whom I surmise was seconded to the Research Office from the Nantong (Jiangsu) Intermediate People’s Court. Therefore I assume that the authoritative person quoted in the earlier press release was in fact Judge Guo.
The article by Judge Guo and colleagues details the many entities that saw the draft of the interpretation: relevant entities within the SPC; all the higher people’s court; as well as the Central Publicity Department (中宣部), Central Political-Legal Commission (中政委),the office of the Central Governing the Country According to Law Commission (中央依法治国办), the Supreme People’s Procuratorate (最高人民检察院), Ministry of Public Security (公安部)、Ministry of Justice (民政部)、State Administration of Market Regulation (市场监管总局), China Law Society (中国法学会), China Academy of Social Sciences (presumably the Law Institute), the All-China Federation of Industry and Commerce, and others. They twice sought comments from the LAC in writing(两次书面征求全国人大常委会法工委的意见)–this means through formal institution to institution communications.
As I wrote in an earlier blogpost, it appears that the SPC is both “serving the greater situation” by implementing in the courts the Party’s plan to integrate socialist core values in plans to legislate and amend legislation（社会主义核心价值观融入法治建设立法修法规划） [the new plan, entitled 关于建立社会主义核心价值观入法入规协调机制的意见（试行）] while at the same time seeking to deal with many of the difficult legal issues that face it.
The General Part covers the following issues: capacity for civil rights and capacity for civil conduct, guardianship, declaration of disappearance and declaration of death, civil legal acts, agency, civil liability, statute of limitations, and supplementary provisions. Professor Wang Liming’s highly authoritative commentary, posted on an SPC Wechat account, is found here. Professor Yang Lixin has also published an authoritative article. I recommend this version, with red highlighting by now-former SPC judge Xiao Feng of the important points of Professor Wang, Yang, and Shen Weixing, dean of Tsinghua University Law School and Professor Yu Fei of China University of Political Science and Law.
The SPC issued several Greater Bay related documents since 1 January, listed below, which relate to SPC policy on developing civil judicial assistance with the Hong Kong and Macau Special Administrative Regions:
1.Mutual Assistance Arrangement between the SPC & the Macau SAR in Arbitration Procedures (最高人民法院关于内地与澳门特别行政区就仲裁程序相互协助保全的安排);
Important background found in the press conference, in which Judge Si Yanli and others involved in negotiating the Arrangement spoke. My earlier blogpost explains why Arrangements are approved as judicial interpretations, although they do not fit the formal jurisdiction of one: “Judge Si mentioned that for the Supplementary Arrangement to be effectively implemented on the mainland, it must be transformed into a judicial interpretation.” Those following legal developments in the two SARs should note the following language in the press conference: “the Outline of the Greater Bay Area and the Hengqin Plan both propose to promote the convergence of rules and coordination of mechanisms in the Greater Bay Area of Guangdong, Hong Kong, and Macao. Inter-regional judicial assistance is an important way to reflect Chinese characteristics, highlight the advantages of “two systems” and achieve convergence of legal rules and mechanisms. 《大湾区纲要》《横琴方案》均提出要推进粤港澳大湾区规则衔接、机制对接。区际司法协助是体现中国特色、彰显“两制”优势，实现法律规则衔接、机制对接的重要途径”。This theme is further developed in two January, 2022 policy documents linked below.
2. Arrangement on Reciprocal Recognition and Enforcement of Civil Judgments in Matrimonial and Family Cases by the Courts of the Mainland and of the Hong Kong Special Administrative Region 最高人民法院关于内地与香港特别行政区法院相互认可和执行婚姻家庭民事案件判决的安排. The SPC and Hong Kong Department of Justice held a useful seminar to explain its provisions, at which Judge Si Yanli spoke, among others. I expect that the law firms focusing on family law matters will follow up with detailed client alerts.
3. Opinions on Supporting and Guaranteeing the Comprehensive Deepening of the Reform and Opening-up of Qianhai Shenzhen-Hong Kong Modern Service Industry Cooperation Zone 关于支持和保障全面深化前海深港现代服务业合作区改革开放的意见， linked to the Central Committee and State Council’s September, 2021 document on Qianhai/Hong Kong and Opinions on Supporting and Guaranteeing the Construction of Hengqin Guangdong-Macao Deep Cooperation Zone 关于支持和保障横琴粤澳深度合作区建设的意见, linked to the Central Committee & State Council’s September document on Hengqin/Macau. It is unclear to me whether the SPC solicited the views of the two SARs on these documents. As mentioned above, it mentions national policy to achieve convergence of legal rules and mechanisms in the Greater Bay Area and mentions several aspects of that policy that is relevant to dispute resolution. Among those are (numbers are from the points in the relevant Opinion):
4. Expanding the jurisdiction of the Qianhai court, including permitting it to take cases when the parties have agreed on the jurisdiction of the Qianhai, but there is no connection to the dispute. This appears to be another piloting (the SPC’s Lingang Opinion has a similar provision) of a possible future amendment of the Civil Procedure Law to abolish the closest connection rule for cross-border jurisdiction (see Professor Vivienne Bath’s research on this issue);
5. Work on (加强) establish an inter-regional judicial assistance system with Chinese characteristics, consider an electronic platform for civil and commercial judicial assistance in the Guangdong-Hong Kong-Macao Greater Bay Area;
8. Explore the establishment of a unified qualification recognition system for Hong Kong and Macao mediators to practice in the Guangdong-Hong Kong-Macao Greater Bay Area. The lawyer qualification system requires that the lawyer be a Chinese citizen, consistent with Chinese legislation. Query whether the same requirement will be imposed on mediators. This would be disadvantageous for Hong Kong mediators who are not Chinese citizens.
I highly recommend Judge Si Yanli’s recent academic article on Greater Bay judicial assistance issues for those with an interest in this topic.
It is my hope that someone can undertake further analysis of these documents.
Perhaps because General Secretary Xi Jinping has said “one case is better than a dozen documents (习近平总书记强调， “一个案例胜过一打文件”), in the run-up to the “Two Meetings,” the SPC has issued quite a few typical cases. Typical cases are intended to guide the courts and the general public.
By Susan Finder and Straton Papagianneas
In early November 2021, the Supreme People’s Court (SPC) issued a new Guiding Opinion regarding Further Improving the Trial Supervision and Management Mechanism for the Four Types of Cases (关于进一步完善“四类案件”监督管理工作机制的指导意见translation here) (“Four Types of Cases Guiding Opinion” or “Guiding Opinion”). Official commentary by the drafters is found here. The “Four Types of Cases” refer to certain types of cases, all politically or socially sensitive, that require special handling within the court system and involvement by the relevant court leadership. The term “Four Types of Cases” originates with the 2015 SPC document “Several Opinions on Improving the Judicial Responsibility System of the People’s Courts,” (2015 Opinion) although special treatment within the Chinese court system for special types of cases is not new, as I described in my (the Monitor’s) 1993 article. This Guiding Opinion illustrates themes newly stressed in General Secretary Xi Jinping’s 15 February 2022 article on the socialist rule of law.
While the “Four Types of Cases” are a little-known concept outside of China, they are well known within the Chinese court system and are embedded in other court guidance. The Four Types of Cases Guiding Opinion draws together threads of related policy to provide standardized principles on:
The Four Types of Cases Guiding Opinion provides insights into the operation of the Chinese judicial system, particularly after the 19th Party Congress and the ongoing transformation of the judicial system and legal system.
This blogpost gives a summary of the background to this Guiding Opinions before examing its details and providing some comments linking to larger themes.
The 2015 Opinion implements the broad principles in the 4th Plenum of the 18th Party Congress decision and 4th Judicial Reform Plan Outline by setting out guidelines for greater autonomy and greater responsibility for judges, known as the “judicial responsibility system.” It contrasts to the pre 4th five-year judicial reform plan period when all court decisions needed to be approved by a person (or committee) in a leadership role in a court. It also requires the preferential use of a random allocation of cases system, while pre-reform, court leaders at various levels designated judges hearing cases.
At the same time, the 2015 Opinion also imposed more responsibility or accountability on frontline judges, while reducing (or eliminating) the involvement of court leaders not involved in the hearing. It gives court leaders (a court president, vice president, and division head) supervisory and management authority. Other guidance prohibits court leaders from involving themselves in cases handled by other judges, with certain exceptions. An exception was made for “major, difficult, and complicated cases” when court leaders could designate collegiate panels to conduct hearings (Article 7). These cases are called the “Four Types of Cases” (四类案件). They refer to the following cases:
The 2015 Opinion did not provide any further details about these Four Types. Lower courts issued guidance detailing the meaning and scope of these cases, while the SPC incorporated measures relating to “Four Types of Cases” in documents relating to the judicial responsibility system listed below.
Pre and particularly post 19th Party Congress, the SPC issued a number of documents related to the judicial responsibility system and the special responsibility of court leaders. At the same time, Party authorities issued documents imposing greater responsibility on Party members in leadership positions. Many of these are collected in a 2021 book edited by the office of the SPC leading small group on the judicial responsibility system and the SPC Political Department. These documents include:
Four Types of Cases cases are deemed too complex, sensitive, or important to be handled by a frontline judge or panel of judges alone. The new Four Types of Cases Guiding Opinion embeds multiple levels and a range of guidance and supervision as well as penalty provisions for court personnel. The guidance and supervision are aimed at personnel at various levels and roles within a court. It is intended as a practical set of basic principles that consolidates and develops measures that appeared in the guidance listed above. It anticipates local courts issuing more detailed rules to implement it. A 2022 media report by the Shanghai Higher People’s Court on its judicial reform program for 2022 highlights the issuing of detailed rules on the Four Types of Cases as a priority matter. A summary of the definition and scope; identification mechanism, handling and supervision; and liability provisions follows.
The 2021 Guiding Opinion redefines the Four Types of Cases and their scope, sets out the responsibilities of various persons within a court at different stages of a case, both front line and in a leadership role (court president and division chiefs) According to Article 14, those in a leadership role include the court president, vice presidents, full-time members of the judicial committee, division heads and deputy heads, and others in a supervision and management role. The guidance promotes using a multi-stage mechanism for identifying these cases and flagging them for special handling. Article 2 to 6 go into detail concerning the meaning and scope of “Four Types of Cases”, with changes from the 2015 Opinion. The new “Four Types of Cases” encompass the following types of cases:
They are major, difficult, complex, or sensitive;
They involve mass disputes or cause widespread societal concern, which might affect social stability;
They might conflict with the judgments and rulings of the court or a higher level people’s court in similar cases;
Relevant units or individuals reported that a judge has violated the law in the trial.
The comments below address points 1-3. The first type significantly expands the scope from the original “group disputes that may affect social stability”. The drafters explain this change: “the difficulty and complexity of cases are not necessarily proportional to their social impact”. For example, a divorce case can be complicated and sensitive, yet their impact on regional or national society might be minimal. “Major, difficult, complex, or sensitive” could cover a case in any area of law, in theory.
The second type also changes the definition in the 2015 Opinion significantly, now referring to cases that involve large groups, or cases that cause widespread social concern. Most importantly is that these cases may affect social stability. For example, some types of cases may involve a large number of litigants, such as traffic accidents, but carry little risk of causing further mass incidents or intensifying social conflicts. These cases should not be considered one of the Four Types of Cases.
However, cases that may trigger mass incidents (e.g., labor protests after failure of litigation), risk intensifying social conflicts, or the case may have a “demonstration”, i.e., precedent-setting, effect (e.g., land-taking compensation cases), and may trigger more litigation. This may impact the development of specific industries, or the interest of specific groups, and are all cases that do need careful supervision and management.
Additionally, the SPC is of the view that cases that cause widespread concern and may affect social stability are not limited to group disputes. For example, murder cases are known to stir up public outcries. Additionally, cases involving rape claims have recently also garnered a lot of public attention.
For the third type, the Opinion broadened the scope. First, it changed the wording from “judgment” (判决) to “decision” (裁判). This can be translated as “judgment and rulings.” Second, in addition to a final judgment by a court, it includes other rulings or decisions regarding inadmissibility, objections, suspension or termination of litigation. This suits the more comprehensive process-based type of supervision that is intended and is further discussed below. The conflict with current or prior judgments and rulings is specified to be with decisions of that court or higher courts within the past three years, or are currently being heard, and where it is necessary to unify the application of law.
While the Opinion further details the meaning and scope of the Four Types, the drafters explain that they insist on maintaining a healthy balance between broadness and specificity, so as to allow local courts leeway in determining how to identify a case as one of the Four Types. This recognizes that courts in different regions have different considerations, and that, based on local conditions, different kinds of specific cases require supervision and management.
Article 7 contains additional measures to widen the scope of “Four Types of Cases.” It provides that the oversight and management measures for Four Types of Cases can be applied to other types of cases: effective decisions that are in error and require retrial; cases in which the procuratorate has filed a protest; whether a death sentence (including suspended ones) is intended to be imposed; the amount in dispute is very large; or where a court plans to pronounce a defendant not guilty. This Article is consistent with recent policy to expand the scope of supervision of the exercise of judicial power, most recently emphasized in Xi’s February, 2022 article.
Article 8 requires local courts to establish mechanisms to cover the entire court process to identify, label, and give a warning concerning Four Types of Cases. This article additionally requires local courts to set rules on the responsibility of internal entities to flag cases and report them, as well as responsibility for the failure to do so. The rest of the article sketches the SPC’s concept of how the Four Types of Cases are to be flagged through the entire court process and who decides any dispute over classification.
Article 9 and 10 address the adjustments and measures that senior court members may make regarding the case, depending upon when the case is flagged as one of “Four Types of Cases.” Regardless of whether a case is designated at the filing stage or not until it has been transferred to a case hearing division, the Opinion requires the case must be heard by a collegial panel rather than a single judge, and a member of the court leadership could serve the presiding judge. The recent Civil Procedure Law reforms mentioned in this earlier blogpost expand the scope of cases that a single judge can hear, but this Guiding Opinion makes clear that a collegial panel must take on responsibility for hearing one of “Four Types of Cases.” These provisions links to previous SPC guidance to senior court leaders on the role they need to fulfill since the judicial reforms. The court leadership can also change the presiding judge and the size and composition of the panel.
Article 10 lists the oversight and management measures that court leaders may take within their authority, such as: requesting reports on the progress of the case, reviewing the case files and trial report, attending trial hearings, submitting the case to a professional judges meeting, to the judicial committee, or even reporting to the court at one level above for guidance. The measures taken are likely to depend on how sensitive, difficult, or otherwise troublesome the case is. I surmise that this system will lead to more such cases discussed by a professional judges meeting or judicial (adjudication) committee meeting so that the decision is made on a collective basis.
Article 10 importantly clarifies the exact measures that constitute permissible supervision and management under the new responsibility system. These measures need to be incorporated into the list of powers and responsibilities based on the court member’s position. All actions and measures need to be in accordance with local procedures and within the scope of authority of the judge exercising supervisory authority. The Opinion specifies that any action that falls within this scope does not constitute undue interference in cases and does not violate provisions about internal interference with judicial processes.
In contrast to previous practice, in which court leader guidance in these types of cases was not generally recorded, Article 11 requires that court leader oversight and management of “Four Types of Cases ” must be recorded in the case file and on the case-handling platform. Note that the recording would not be accessible to lawyers reviewing a court file. The views of court leadership about the case must be announced at a professional judges meeting or judicial committee meeting, Court leaders can request that a collegial panel reconsider their proposed decision, but cannot directly change the panel’s decision without going through permitted procedures. These measures seem to be aimed at preventing improper practices that enable corruption. Those improper practices must have regularly occurred in the handling of “Four Types of Cases.” Article 14 specifies that supervision and administration of “Four Types of Cases” are considered part of the scope of a court leader’s work and therefore will be incorporated into the person’s performance evaluation.
Article 12 contains penalty provisions for both the frontline judges handling the case and the court leadership. Acts that can trigger liability for frontline judges include concealing that a case is a “Four Types of Case” case, failure to obey supervision and management, or causing a serious error in a decision through that conduct with serious consequences.
Court leaders who neglect or improperly perform their oversight and management of a “Four Type of Case” case intentionally or through gross negligence causing errors in decisions and serious consequences bear liability with reference to the provisions and procedures for the management of cadres.
Article 13 addresses using the smart courts mechanism to identify “Four Types of Cases,” remind front-line judges to report the case, and prompt court leaders to supervise and manage the cases.
In one short document, the Guiding Opinion on the Four Types of Cases captures many themes in internal court administration regulation and in the operation of the Chinese judicial system after the 19th Party Congress as well as the ongoing transformation of the judicial system and legal system.
The Guiding Opinion seeks to protect front-line judges from deciding “Four Types of Cases” autonomously in a way that is considered wrong or inconsistent with policy and legal provisions (non-unified). Consistency of judicial decision-making is a high priority of the SPC recently, consistent with Xi’s article mentioned above: “maintaining the unity of the country’s rule of law is a serious political issue 维护国家法治统一是严肃的政治问题. ” This links to the role of court leaders as well.
The Guiding Opinion consolidates guidance for court leaders, who under the Chinese bureaucratic court system, have special responsibilities under the SPC guidance listed above, as well as more general Party regulations applicable to “#1” leaders, and Party group members in the Zhengfa 政法 (political-legal) system. It imposes greater pressure on court leaders to hear cases, as required by earlier guidance. As discussed earlier, judges in a leadership position spend substantial time on administrative, coordination, and Party matters rather than hearing cases. Guiding the proper handling of one of the Four Types of Cases is also a way for a court leader to display leadership qualities while mishandling it will trigger criticism in an internal judicial or Party inspection (see my chapter on judicial discipline for a discussion of the principal types of inspections.) On incorporating work on “Four Types of Cases” into leaders’ performance evaluation, although the Chinese court slogan (of several years ago) is that judges should be treated more like judges, the Guiding Opinion appears to treat lower court judges analogously to secondary or university students, to be given grades for their class participation.
The Opinion embeds supervision of the activity of court leaders, particularly by the use of the digital（smart courts) case-handling platform. By now, the majority of Chinese courts have a fully online and digital case-handling platform, many of which automatically record these types of supervisory and managerial measures. However, it is unclear how this has changed judicial practice regarding sensitive cases, and whether new informal practices to circumvent this digital system have emerged.
This Guiding Opinion is an important document in understanding the Party leadership’s and the SPC’s vision of the Chinese courts in the New Era. It illustrates themes in what Xi calls in the February, 2022 article “comprehensively deepening reforms in the area of rule of law 全面深化法治领域改革,” therefore a vision of reshaping Chinese law and legal institutions generally. It links to the Party leadership’s vision of whole process supervision (全过程监督), mentioned in Xi’s most recent article, which to this observer has its roots in traditional Chinese concepts of supervision of the bureaucracy. It uses its cutting-edge smart court system towards this end. That would be consistent with themes mentioned recently in an earlier blogpost, that Chinese characteristics have a great deal of weight in the reshaping of the Chinese legal system. It is also consistent with an important statement in Xi Jinping’s February, 2022 article: “the socialist rule of law system with Chinese characteristics that we want to build must be a rule of law system that is rooted in Chinese culture, based on Chinese conditions and solving Chinese problems, and cannot be misled by Western misconceptions (我们要建设的中国特色社会主义法治体系，必须是扎根中国文化、立足中国国情、解决中国问题的法治体系，不能被西方错误思潮所误导).”
The definition and scope of the “Four Types of Cases” are flexible, so as to accommodate a system in which judges bear lifetime responsibility for their decisions and court leadership bears responsibility for the decisions of their judges, and multiple types of inspections, both Party and court, monitor implementation of campaigns (such as those for the Sao Hei campaign), as well as more general policies. The accountability (responsibility or liability) provisions are broad and linked with the Party’s system for cadres, rather than professional rules. That too is consistent with traditional Chinese law.
The vision of the approach to handling”Four Types of Cases” in the Opinion is holistic, in line with the principles mentioned in the 2021 Opinion on integrating socialist core values into judgment instruments— the organic unity of political, legal, and social effectiveness (政治效果、法律效果和社会效果有机统一 ), because through this process, a judicial decision that best meets that target is likely to be achieved. And this has implications for litigants.
____________________________________________
Many thanks to Straton Papagianneas for translating the “Four Types of Cases Guiding Opinion” and drafting an initial version of this blogpost (and responding to several rounds of comments). Many thanks also to an anonymous peer reviewer for perceptive comments on a later draft of this blogpost.
On 7 January 2022, Dean of Tongji University’s School of Law and Professor Jiang Huiling gave a guest lecture in my School of Transnational Law class. We were honored to hear Dean Jiang provide his unique perspective and insights on over 20 years of Chinese judicial reform and his insights on future developments. He has been involved with Chinese judicial reform starting from the first plan in 1999 (see also more about his background here). This blogpost summarizes his presentation. I have inserted my occasional comments in italics. If a point is not more fully elaborated, it means he did not do so.
He spoke on the following six topics:
1. Brief History of Chinese Judicial Reform
2. How Judicial Reform Actions Are Taken
3. From the 4th to the 5th Judicial Reform Plan
4. Strategic Move: From Judicial Reform to “Zhengfa” (政法) Reform
5. Technical Measures: Rule of Law
6. Future Direction
Dean Jiang went briskly through the history of judicial reform, commenting that in the first judicial reform plan, the focus was on raising public and professional awareness about the judiciary。 The second one, in which the Central Government greatly supported the SPC to undertake work mechanism (工作机制) reforms, not touching on structural reforms such as the status of judicial personnel. He noted that there was great progress during the second judicial reform plan. He called the third judicial reform plan a test before the New Era, and said that a decision had been taken to de-localize the judiciary and change the status of the judges and prosecutors, but at the end, there wasn’t internal confidence that the legal profession and society would accept such changes. He called the fourth judicial reform plan a structural, systematic, and radical change to the judicial system, especially the decision that judges would not be treated as ordinary civil servants. Dean Jiang characterized the fifth judicial reform plan as comprehensive and supplementary, and part of the Zhengfa reforms (as he further explained in the latter part of his presentation).
What were the lessons learned?
Dean Jiang rapidly made the following six points:
3. From the 4th to the 5th Judicial Reform Plan
Dean Jiang mentioned that the two plans are connected, but that significant differences exist in the value or orientation of the two plans. The fourth one made radical (revolutionary) changes to the judicial system. The fifth one is a new phase, and comes after the completion of the fourth one, which made the following fundamental changes:
Although these reforms are not completed, these were the focus of their work in the judicial reform office of the SPC and of the Central Government.
The 4th judicial reform plan focused on the following:
1. Separation of administrative region and judicial jurisdiction area–delocalization, as Xi Jinping said, the judicial power is a central power, uniform application of law, so that the law is not applied in favor of one locality;
2. Judiciary-centered litigation system–“in the real world in China, the judiciary does not always have the final say”–and in the past the public security and prosecutors had the final say rather than the judges. The reform to have personnel and financing of courts at the provincial level is part of this reform;
3. Optimization of internal power allocation–as a court is a bureaucracy with different entities with different functions, and the leaders have different functions from ordinary judges;
4. Operation of hearing and adjudicatory power
5. Judicial transparency;
6. Judicial personnel–this is basic but very important; and
7. Independence of the court–this is basic but very important.
The 5th judicial reform plan:
The bolding above reflects his stress on those points in his presentation.
Dean Jiang mentioned that the Central Government put the court system into a bigger picture, but that the prior reforms were needed to make the judicial system more professional. It is for this reason that the Central Government mentions the phrase “judicial reform” much less than before.
The bigger picture is involving the court system more in the development of the whole country. This reflects a change in China’s overall policy, and we Chinese legal professionals need to understand this.
Comparing the 4th and 5th Reform Plans:
He said these should be seen in the context of the national plan for achieving the rule of law, and from 2035, China will have achieved rule of law and be a modernized, democratic country–the second 15-year plan will be about rule of law. He thinks that the timing is insufficient.
1. Before 2012, judicial work mechanism reform
2. From 2013，Judicial system reform
3. From 2017，Comprehensive supplementary reform of the judicial system
4. From 2019, Promoting Comprehensive
Reform in Zhengfa Area
5. From 2020，Xi Jinping rule of law thoughts
On point 4 above, that relates to a comprehensive document adopted in 2019 [Implementing Opinion On the Comprehensive Deepening Reforms of the Political-Legal Sector 关于政法领域全面深化改革的实施意见, not publicly available but mentioned previously on this blog], of which judicial reform plays only a small part. From 2020, Xi Jinping rule of law thoughts plays an important guiding role in the role of law. He said all law students and legal professionals should read it because it will have an important impact on the building of rule of law in China.
Structure of the new arrangement:
The change of emphasis can be seen from the VIP (very important research projects of 2021), which are all more general than before:
No. 67. Practice and Experiences of the Party Comprehensively Promote Law-based governance
No. 68. Socialist Legal Theory with Chinese Characteristics
No. 69. Spirit of Socialist Rule of Law
No. 70. Constitution-centered Socialist Legal System with Chinese Characteristics
No. 71. Promoting Comprehensive
Reform in Zhengfa Area
Dean Jiang described the 2019 document mentioned above as containing the following areas of reform.
Seven Areas of Zhengfa Reform:
These are seven areas of Zhengfa reform, based on the prior judicial reforms, but now going to a new stage. Governance is a crucial word.
This is what he has devoted his life to before.
He listed 10 legal issues for consideration for reference and research, as these are the most important topics:
These are the major issues in the next five years. These technical legal issues are very interesting and need legal scholars to look at them to support the Zhengfa reforms.
Apologies to readers for the long gap between posts–I have been focusing on yet another academic article and am finding that even so-called “short articles” take much longer than anticipated, especially when the topic reveals more and more complexities than were apparent when I submitted the abstract to the journal months ago.
So instead of any involved analysis, I’ll list some of the year-end (from December) accomplishments of the Supreme People’s Court (SPC) with some brief notes. Another aspect of the SPC being a cross between a Party-state organ and a court is that it needs to meet year-end goals and submit year-end reports. The SPC’s judicial reform leading group recently discussed and approved its year-end report (最高人民法院司法改革领导小组2021年工作总结报告). The judicial reform leading group is headed by President Zhou Qiang. Other members include Justices He Rong, Ma Shizhong (head of the Political Department), He Xiaorong, and Shen Liang. The Judicial Reform Office presumably drafted by the report. It is likely a constituent part of the SPC’s year-end report to go to the Party leadership, before the annual Central Political-Legal Work Conference.
Another aspect of the SPC being a cross between a Party-state organ and a court is that it is inspected by Party inspection groups and is a focal point of campaigns on the education and rectification of political-legal organs.
Among the SPC’s year-end accomplishments are the following. For the avoidance of doubt, judicial interpretations, judicial documents, and typical cases are all means by which the SPC guides the lower courts. I will have more to say about this topic in the unfinished academic article mentioned above.
On the “coming attractions” discussed in some earlier blogposts, the SPC’s judicial committee (adjudication committee) spent many hours on 30 December 2021 discussing the draft judicial interpretation of the General Part of the Civil Code. When I wrote last about the draft of the General Part, I noted that Judge Guo Feng, deputy head of the Research Office, mentioned that the General Part (1) interpretation is scheduled to be submitted to the SPC’s judicial (adjudication) committee before year-end. That means that Judge Guo (and likely one or more of the principal drafters) were in the room to discuss the draft article by article. The judicial committee finally decided to approve the draft “in principle.” Approval in principle” (原则通过), as discussed here, is not mentioned by the SPC’s 2007 regulations on judicial interpretations but is one of the SPC’s long-established practices. It means that the judicial committee has approved it, subject to some “minor” amendments. Minor amendments are more than typographical errors and relate to specific substantive matters. So it is likely that after the SPC amends the provisions that the judicial committee considered needed more work, a quasi-final draft will go back to the National People’s Congress Standing Committee (NPCSC LAC)’s Legislative Affairs Commission because SPC guidance provides that “liaison with the NPCSC LAC must be timely, and after major revisions to the judicial interpretation draft after consulting with the NPC LAC, the view of the NPCSC LAC should be solicited again.” I expect that the draft of the General Part judicial interpretation will be finalized before the National People’s Congress meeting, so that the report can mention this accomplishment.
As I have mentioned many times in the course of 2021, we do not know what was on the SPC’s 2021 judicial interpretation agenda. Those of us outside the System can only hope that the 2022 agenda will be released and that the judicial reform agenda will continue to be released.
In the fall of 2021, the Party Center launched the second round of the rectification and education of national political-legal organs, with a leading group leading and an office assisting in implementing the campaign. The SPC was one of the focal points (along with other central organs). Just before Christmas, the SPC held a “looking back” meeting to discuss what was revealed and progress made in response. The SPC established a leading small group and office to handle matters properly. (For those interested in further details, please see this webpage.) President Zhou Qiang noted in his work report that the SPC has effectively rectified a batch of stubborn diseases (one of the targets of this inspection) and resolutely eliminated a batch of black sheep (literally, a group of horses that harm the masses) (一批害群之马). The same phrasing is reported from the Ministry of Justice and other political-legal institutions at both the central and local levels. Related to the rectification and education campaign are several new SPC opinions. Those include one strengthening the judicial responsibility system, and creating a new court team 关于在加快推进司法责任体系改革和建设中进一步加强人民法院队伍建设的意见 and another on enforcement. The SPC has issued another related opinion found here, on the “four types of cases.” Perhaps unrelated to stubborn diseases and black sheep is decisions by some SPC judges to continue their careers elsewhere.
I wish all readers a happy and healthy new year, both “Western” and Chinese. I also hope that this year brings us, located in and out of mainland China, opportunities to gather together to discuss legal developments in China from different perspectives quietly, without rancor or blame, but with mutual respect.
————————————————————————————————————
I would like to express my appreciation to two anonymous peer reviewers of a previous draft of this blogpost. Special thanks to the person who caught a significant error in the draft.
I was honored to be invited by the New York University School of Law’s U.S. Asia Law Institute to contribute a short essay to their Perspectives blog, entitled Why I Research China’s Supreme People’s Court.
Many thanks to those involved in the entire process, including those who commented on earlier drafts!
This year, the Supreme People’s Court (SPC) has not released its judicial interpretation agenda to the general public, so observers concerned about what the SPC is doing in specific areas of law must be attentive to what SPC leaders mention in either speeches in major conferences or articles in the media. Justice Liu Guixiang, a member of the judicial committee with deputy ministerial status, spoke in early September at the 4th Annual Conference on Serving Small and Medium Sized Investors . His speech was one of many leader’s speeches (visible in the link领导人讲话) delivered at this conference sponsored by the China Association for Public Companies, Securities Association of China and other securities industry associations. (For the careful listener (or reader) his speech provides insights on what can be expected from the SPC in the near future in the area of financial law. It is linked to China’s development of its securities market and dealing with the increasing number of financial fraud cases and civil disputes. Some of what he told the audience illustrate, in the area of financial and securities law, how the SPC operates in the New Era. Those include:
____________________________________________
Those with more specialized knowledge in Chinese securities law should provide corrections or comments by using the blog’s comment function.
On 26 August 2021, the Ministry of Human Resources and Social Security (MHRSS) along with the Supreme People’s Court (SPC) issued a second set of typical (典型 model/exemplary cases). As I have explained before, these are summaries or edited versions of cases, not original labor arbitration or court decisions. These are on overtime labor and personnel disputes (人力资源社会保障部、最高人民法院联合发布超时加班劳动人事争议典型案例) that I’ll call the “996 typical cases,” a central level institutional response to the widespread use of 996 overtime work in the technology sector and elsewhere. The cases themselves are entitled “the second set of typical personnel and labor disputes cases (劳动人事争议典型案例（第二批). The version that the SPC published on its two websites (court.gov.cn and chinacourt.org) lacks the document headers that accompanied the release of the cases. That version had the mutually agreed statement about the cases (joint statement) and the cases themselves. Thankfully for this analysis, the Inner Mongolian Higher People’s Court released a version that includes the headers. The comments below focus not on the rules embedded in the typical cases, but on the SPC’s use of typical (model or exemplary) cases. These cases are:
The 996 typical cases are a product of cooperation between the MHRSS and the SPC, as memorialized in the policy document “Opinions of the MHRSS and the SPC on Strengthening the Building of a Mechanism of Connection between Arbitration and Litigation of Labor and Personnel Disputes, (No. 70, MHRSS)(《关于加强劳动人事争议仲裁与诉讼衔接机制建设的意见》（人社部发〔2017〕70号). Two quick comments on the cooperation are as follows.
In recent years, the MHRSS and the SPC have actively guided the implementation of the “Opinions on Strengthening the Construction of a Cohesive Mechanism for Labor and Personnel Dispute Arbitration and Litigation” , and the cohesion mechanism for adjudication and adjudication has been realized… In the next step, the two departments will continue to jointly develop guidelines, publish cases, and strengthen information comparison, and continue to promote the convergence of adjudication procedures and the unification of the application of law, so as to better achieve an efficient and orderly connection between arbitration and justice, and realize labor disputes. The dispute resolution is an organic unity of political, legal and social effects.
2. As can be seen from the statement above, we can expect further cooperation between the MHRSS and the SPC in the form of joint guidelines, more typical cases, and information sharing. All of these are flagged in the 2017 Opinion mentioned above.
What we can see from the document numbers of the 2017 Opinion, the first set of joint typical labor cases and the 996 typical cases is that they all have an MHRSS document number. (See analysis of the first set of cases here.)That means both the Opinion and the typical cases are an initiative of the MHRSS that required concurrence by the SPC. The Opinion sets out the agreement between the two institutions:
The departments of HRSS shall positively and voluntarily strengthen communication and coordination with the people’s courts. The people’s courts shall specify that a tribunal [division] or office [庭室] is uniformly responsible.
So we can see from this language that at each level of court, a division (tribunal) or office (likely to be the Research Office) is responsible for liaising with the HRSS authorities. At the level of the SPC, it is understood to be the Civil Division #1, which is responsible for labor-related issues among many other civil law issues, and within that division, a group of people (likely judges with special competence in labor issues) was involved with liaising with the MHRSS to agree upon a draft version of the statement and the typical cases. Given the administrative nature of the SPC and previous practice, it seems likely that what was agreed upon at the staff level was reviewed by the head or deputy head of the Civil Division #1 and approved by the SPC vice president in charge of the Civil Division #1. It is likely the cases were cleared at an analogous senior level at MHRSS as well.
As to why these particular cases, it is likely that they are scenarios that regularly occur in the labor arbitration tribunals and the courts, but where decisions are inconsistent because the law is unclear.
The release of the 996 typical cases is a typical use of typical cases in the New Era. As discussed in further detail last year, this is part of popularization of law (普法教育), an old development repurposed in the post 4th Plenum of the 19th Party Congress New Era. I first wrote about typical cases in 1993:
The release of these 996 typical cases is linked to the popularization of law responsibility system set out in this document: 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.
Therefore MHRSS personnel are encouraged to use cases to explain the law, and the 2017 Opinion encourages MHRSS personnel to cooperate with the SPC in doing so. The message to the general public as set out in the joint statement is:
On the one hand, it reminds employers of the risks of illegal activities and promotes the regulation of labor according to law; on the other hand, it clarifies the expectations of workers’ rights protection and guides workers to protect their rights in a rational way.
Releasing these cases also hits another target for those involved: fulfilling their obligations under the current Party history study and education campaign: “I do real things for the masses”(“我为群众办实事,” therefore in the first sentence of the joint statement).
What the SPC’s version of the 996 typical cases omitted (likely unintentionally) is guidance from the two institutions on how the 996 typical cases are to be used: “local [labor] arbitration agencies and people’s courts, shall refer to it in handling cases.”
Last year’s guidance on case searches clarifies that the lower courts must search SPC typical cases when doing a similar case search and that these cases are not binding, but for reference, or quite persuasive. These cases will provide guidance to both labor institutions and courts, providing a more unified standard on these overtime issues. It will also indirectly pressure employers to amend their labor handbooks and change other labor practices to be consistent with these cases.
These cases are not expected to completely resolve the overwork culture in Chinese companies. They are intended to set a clearer standard for the labor arbitration commissions and courts to apply (and lawyers or other advocates to meet), as well as to reduce the number of cases in which courts overturn labor arbitration commission determinations related to overtime and overwork. They also provide societal guidance (社会导向）by providing a timely signal to companies and Chinese society on these issues. They also evidence that the SPC is “strengthening judicial safeguards of people’s livelihood” (加强民生司法保障). Most importantly it shows that the MHRSS and the SPC are doing “real things for the masses.”
_______________________________
Many thanks to those who commented on an earlier version of this blogpost.
On 18 February 2021, the Supreme People’s Court (SPC) issued the Guiding Opinions on Deeply Promoting the Integration of Socialist Core Values into the Analysis and Reasoning of Adjudicative Instruments (关于深入推进社会主义核心价值观融入裁判文书释法说理的指导意见 the SCV Guiding Opinion). This Guiding Opinion is intended to guide the way SPC and lower court judges write their court judgments and rulings (and any other judicial document issued to the public) to better incorporate the use of socialist core values and for those judgments to be better understood by the general public.
For close observers of the SPC and the Chinese court system, the SCV Guiding Opinion came as no surprise. That this Opinion would be issued was clear from phrases in several Party and SPC documents issued in recent years. The SCV Guiding Opinion is important not only for what it says about the use of socialist core values in judgments and also for its guidance to judges on the analysis and reasoning in court judgments, rulings, and other documents.
This blogpost is not intended as an extended academic analysis of socialist core values and the law, of which there are several excellent ones by Sue Trevaskes and Delia Lin. It will address some more modest questions, such as:
I have italicized my comments.
The background for the SCV Guiding Opinion is that it is part of what is required by the Party Center to integrate socialist core values into the legal system and to promote their use in national governance. This has been a theme in writings of Xi Jinping about the law, the Party Plan on Building the Rule of Law in China (2020–2025), previous Party documents, and related SPC documents. Some of those background documents are listed in a later section of this blogpost.
Article 1 provides that the underlying principles of the SCV Guiding Opinion are:
The summary below highlights some of the principal points for Chinese judges.
Article 4 specified the types of judgments in which the use of socialist core values should be increased:
What this means is that in cases where there is a great deal of public concern, judges should seek to use socialist core values. Some of these, especially with national interest, major public interest, types of cases that attract Party leadership attention, or wide public concern are likely to be those in which the higher levels of the courts, or local political-legal commissions provide their views.
A significant part of the SCV Guiding Opinion contains guidance to lower court judges. I surmise that the guidance is directed towards less experienced and educated judges. My understanding is that more sophisticated judges, who are highly knowledgeable about political matters in addition to being technically highly competent, would consider the guidance unnecessary.
Articles 5-6 address judgment drafting. These provisions relate to the 2018 SPC Guiding Opinions on Strengthening and Standardizing the Analysis and Reasoning in Adjudicative Instruments. Article 5 gives Chinese judges rules of interpretation generally in cases involving socialist core values., directing them to first look to a normative legal document (law or judicial interpretation) as the basis for judgment, the legislative intent, and supplement it with socialist core values. Article 6 gives directions to judges in civil and commercial cases where there is no normative legal document as the direct basis for the judgment. Judges should use socialist core values as the guide and custom and the most similar legal provisions as the basis for the judgment; if there is no most similar legal provision, judges should make judicial decisions in accordance with the spirit of the legislation, legislative purposes, and legal principles, and make full use of the core socialist values in the judgment documents to explain the basis and reasons for the judgment. It is this principle that has attracted dry comments from some of the legal professionals with whom I am acquainted.
Article 7 gives guidance to judges in cases involving multiple socialist core values, directing them to consider the spirit of the legislation, legal principles, provisions, and law and legal provisions to balance and select the relevant principles and values. Article 8 directs judges to respond, if possible, orally in court, to the use of socialist core values by parties in court.
Article 13 directs judges handling cases that fall into one of the Article 4 categories, to emphasize socialist core values, in situations in which cases are discussed in professional judges committees or judicial (adjudication) committees.
Article 14 encourages socialist core values to be included in judicial training, particularly that related to the Civil Code, and Article 16 encourages competitions to find the best judgments that cite socialist core values.
Several recent Party and SPC documents flagged the SCV Guiding Opinion. Among them are:
This Guiding Opinion can be considered the progeny of the SPC’s 2015 Opinions on Cultivating and Practising Socialist Core Values at People’s Courts. 最高人民法院关于在人民法院工作中培育和践行社会主义核心价值观的若干意见, after which the SPC issued typical cases, both discussed in Sue Trevaskes’ and Delia Lin’s academic articles linked above. Their articles also discuss other related documents. As I wrote in 2018, the SPC issued a five-year plan, never made public, to incorporate socialist core values into judicial interpretations.
As to which basket of SPC documents the SCV Guiding Opinion should be placed, that relates to the catalog that I set out in a November 2020 blogpost on the SPC’s soft law. I classified a number of the SPC’s documents into different categories. According to my classification, the SCV Guiding Opinion should be classified as Opinion Type 1, although the criteria I mentioned don’t fit perfectly.
As I defined it, that type of Opinion is one issued solely by the SPC, which create and transmit to the lower courts new judicial policy, update previous judicial policy, and 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 SCV Guiding Opinion is linked to an important Party and state strategy or initiative, that of promoting socialist core values. As a “guiding opinion,” it is intended to push policy forward. Article 17 of this document directs the SPC itself and lower courts to issue occasionally socialist core value-related model cases. From a quick search of recent lower court model cases, local courts have taken account of this.
Chen Liang, one of my current students, sampled cases from basic level courts in various parts of China as set out in this spreadsheet. He originally found over 6000 cases that used “socialist core values.”In his research, he found three ways that courts invoke socialist core values:
In this case, the defendant (a government branch) rejected the plaintiff’s application to recognize his father, a KMT military officer, as a martyr who died in the Anti-Japanese War, and the plaintiff sued to correct this decision. The Court invoked the SCV to emphasize the importance of the recognition of someone as a martyr, and then affirmed the defendant’s strict scrutiny of the application.
2.invoking socialist core values as a way to allocate liability (such as Case No. 9);
The plaintiff was hit by the defendant, and was in hospital. After 15 days in hospital, the doctor recommended him to leave, but he refused by claiming he had headache. Then, the plaintiff stayed in hospital for 110 days, and sued the defendant for compensation of medical fees of 110 days. When considering the exact duration to be compensated, the Court noted that the plaintiff’s action was wasting public medical resources, which was a violation of the SCV, and then confirmed that the defendant only had to compensate for the medical fees of 15 days in hospital.
3. invoking socialist core values as a way to educate people (or to promote total social welfare) (such as Case 10).
The plaintiff and defendant agreed to jointly operate a restaurant, and they had disputes during the operation. The plaintiff sued for damage. During the trial, the parties insulted with dirty words against each other. Given that, the Court asked the parties to contemplate on their behaviors considering the whole society was promoting SCV.
This use of cases to educate the public, noted in the academic articles mentioned above, also links to a more recent line of documents about which I wrote in July 2020, relating to using cases to explain the law and the popularization of law responsibility system (普法责任制). As mentioned in that blogpost, Sue Trevaskes has also written about the history of the popularization of law (pufa).
In my view, following this document, we are likely to see many more cases mentioning socialist core values, likely falling in all three categories mentioned above.
This Guiding Opinion can be seen as a part of the “socialist core valueization” of Chinese law and the legal system, and in particular, the judiciary. It is one important piece of how the judiciary is being further transformed in the Xi Jinping era.
Article 1 is part of official legal ideology so that the drafters of this Guiding Opinion (the SPC’s Judicial Reform Office) must incorporate those principles. The Party Center requires this to be done. As Sue Trevaskes and Delia Lin mentioned in their writings, as in the traditional legal state, “morality here is treated in a particular normative sense whereby claims are made about the unified nature of socialist values held by China’s rulers and the ruled.” This long-time observer of Chinese society would question whether the moral values across Chinese society are as unified as this ideal has it.
An aspect the drafters of this document may not have considered is whether this approach to law and court judgments is consistent with China’s desire to promote the use of Chinese law overseas, which the SPC has promoted in its Opinion on Further Providing Judicial Services and Guarantees by the People’s Courts for the Belt and Road Initiative (BRI Opinion #2, discussed in this blogpost). The fusion of law and morality in cases involving multinational commercial parties seems problematic.
These principles see the public as a body to be educated, and that judgments need to further incorporate socialist core values to be better accepted by the public. Writing judgments in language the public can understand–plain language judgments–is a worldwide concern of domestic courts, but incorporating socialist core values may or not be the way to achieve that.
As I mentioned above, a significant part of the SCV Guiding Opinion contains guidance to lower court judges. I surmise that the Judicial Reform Office decided that this guidance was needed for less experienced and educated judges in less developed parts of China. The more experienced judges, with many years of experience and training, both substantive and ideological, are unlikely to need such guidance set out in an SPC document.
The reality of Chinese society that Chinese judges face, particularly at the local level, is not the one that matches the socialist core values ideal. That can be seen from cases discussed in the Chinese professional media (and some cases that have caught Chinese media attention) about some of the difficult issues that they face when needing to incorporate socialist core values. A few of those cases could include:
cases involving the status of children whose parents are not married under the Chinese legal definition of marriage to one another. That may be gay or lesbian couples or one in which a married man fathers a child with a woman with whom he is not married;
Cases involving disputes between a gay or lesbian couple that has split over mutually-owned property;
Cases involving the rights of single women who wish to have children without being married.
The SCV Guiding Opinion can be seen a signal of the direction towards which the Chinese courts are being guided. The more sophisticated judges will know how to balance the above requirements with the need to issue a judgment that parties in cases that involve fundamental personal rights find acceptable.
A little-discussed aspect of the work of the Supreme People’s Court (SPC) is coordinating with other Party and state organs to better serve the greater situation and resolve specific policy issues. At some point, I will set out a fuller description of this distinctive function of the SPC and its background history, but that will need to wait until I have plumbed the SPC’s past regulatory documents and conducted a more complete survey of practices in SPC divisions. I examined one aspect of the way that the SPC coordinates with other departments in a book chapter to be published in the fall of 2021. That chapter focuses on the drafting of criminal procedure judicial interpretations. The “never-ending” academic article that I am writing touches upon one aspect, briefly. This blogpost highlights some formal frameworks for coordination and at least some of what is involved.
Coordination with other central Party and state organs regarding specific legal issues is one of the unrecognized functions of the SPC. It is hard to assess how much coordination work is done in comparison to other functions of the SPC, such as hearing cases or drafting judicial interpretations. Because the Collection of the Supreme People’s Court’s Judicial Rules, a handbook for judges, places the principle “establish coordination mechanisms, properly resolve administrative disputes” in the section of general principles of administrative law, I surmise that coordination is a very important function of the administrative division. From my research below and discussions with knowledgeable persons, some judges in the civil and commercial divisions are involved in work under these frameworks, and likely also the Research Office. Some issues involve multiple divisions of the SPC.
My understanding is that coordination with other central Party and state organs is a customary function of the SPC that is being repurposed, in part, in the New Era. For that reason, I surmise that more of this will take place in SPC headquarters in the future. This is based on two factors. The first is that SPC hears most commercial and administrative cases in the circuit courts. Second, coordination with other central organs appears to be an increasingly important part of New Era governance. That was flagged in several statements of Liu Zheng, deputy head of the SPC’s Judicial Reform Office, in a February, 2021 press conference, where the SPC released its report on online mediation. Liu Zheng stated:
promote the improvement of the social governance pattern of joint construction, co-governance and sharing…（促进完善共建共治共享的社会治理格局）
In describing the accomplishments of the SPC in promoting diversified dispute resolution, he stated:
We strengthened our communication and coordination with Central departments (ministries) and commissions, we held three coordination meetings at the ministry level, and established a joint action mechanism (加强与中央部委的沟通协调，3次召开部委层面协调交流会，建立联动机制 ).
At the central Party level, clearly coordination occurs at the level of broad policy through the Central Political Legal Commission and the Building Ping’an (peace and safe)-China Coordination Small-Group about which Li Ling wrote last year. Other coordination occurs through leading small group offices (工作领导小组办公室). I describe one below. This blogpost will focus on State Council Inter-Ministerial Joint Conferences because it is through those that much of the more specific coordination occurs. Thankfully for the researcher, State Council transparency is quite good and I found many approval documents for Inter-Ministerial Joint Conferences. From my research thus far, the SPC participates in many Inter-Ministerial Joint Conferences established by the State Council. I note that some other jurisdictions have Inter-Ministerial Council Conferences as well, not involving the judiciary. In some instances, ministries or commissions of the State Council create coordination mechanisms with the SPC, while the SPC initiates some. Some coordination is done more formally on an as-needed basis, as Liu Zheng mentioned and that requires separate research. It is understood that within the framework of the formal structures, interaction and coordination occur at the staff level.
As mentioned above, the Party Center has established some leading small group coordination offices to coordinate specific central Party and state organs policies and measures. Because of the nature of the matter, the SPC is a member. One example is the following office.
The Pursuit of Fugitive [Officials] Pursuit of Stolen Assets Working Office of the Central Anti-Corruption Coordination Leading Small Group (中央反腐败协调小组国际追逃追赃工作办公室), established in 2015, of which the SPC is a member. The 2017 judicial interpretation on asset recovery is likely related to the SPC’s work in this group. The SPC is involved in the yearly Skynet operation. Through this office, the SPC participates in related campaigns under this mechanism, such as a 2015 one against offshore companies and underground banks.
The State Council has established many Inter-Ministerial Joint Conferences (部际联席会议), in which other Central-level ministries take the lead (牵头) and the SPC is one of many other Party and state organs involved. For those unfamiliar with Inter-Ministerial Conferences in China, the Office of the Central Staffing Commission has an authoritative explanation (amended Google translate):
The inter-ministerial joint conference is established to negotiate and handle matters involving the responsibilities of multiple departments of the State Council. It is established with the approval of the State Council. The member units communicate in a timely manner and coordinate differing opinions. It is a work mechanism for enabling the smooth implementation of a task (responsibility). It is the highest-level joint meeting system of administrative agencies. The establishment of inter-ministerial joint conferences should be strictly controlled. For matters that can be resolved through coordination between the sponsoring department and other departments, inter-ministerial joint conferences are generally not established. The establishment of inter-ministerial joint conferences must be submitted to the State Council for approval. The lead department shall ask for instructions, clarify the name, convener, lead unit, member unit, work tasks and rules, etc., and submit it to the State Council for approval after approval by relevant departments. After the task of the inter-ministerial joint conference is completed, the lead department shall submit an application for cancellation, stating the establishment time of the inter-ministerial joint conference and the reasons for its cancellation, etc., and submit it to the State Council for approval after the approval of the member units. The newly established inter-ministerial joint conference which is led by the leading comrades of the State Council, may be entitled ” State Council… ” , and the other joint conferences are collectively referred to as ” inter-ministerial joint conferences . ” The inter-ministerial joint conference does not engrave a seal or formally issue documents. If documents must be formally issued, the name of the leading department and the seal of the leading department may be used, or the relevant member units may jointly issue a document.
Sometimes the SPC is a founding member of an Inter-Ministerial Joint Conference. In other situations, it is recognized that the expertise of the SPC is needed and the SPC is invited to join after the Inter-Ministerial Joint Conference has been in operation for several years. Some examples are:
The SPC establishes coordination mechanisms with other government and Party departments such as:
The legal basis of coordination appears to be Article 2 of the Organic Law of the People’s Courts in which the courts are called upon to “guarantee the smooth progress of the building of socialism with Chinese characteristics.”
In the New Era, we can expect to see more and more coordination by the SPC, much of it invisible to those of us outside the system. It appears to be a recognition of the technical competence of the SPC in resolving a broad range of technical issues required to be resolved in furtherance of the governance of the country. The State Council and its ministries and commission need the SPC’s expertise to deal with a large variety of legal issues–criminal, civil, administrative, enforcement. The SPC coordinates with other central Party and state organs because it needs them to resolve specific issues. Given China’s state-run governance model, establishing mechanisms to better coordinate and promote national strategies and targets, and better draft policies and measures are considered an efficient way to accomplish governance targets and serve the needs of the Party and country.
Happy Niu 🐂Year to all blog followers and readers! Best wishes to all for good health, success in work and study, and all else!
In recent weeks I have been focusing on several longer pieces of writing and am still in “focus mode.”
While most of the Supreme People’s Court (SPC) has been taking a break, based on previous year’s reports, it is likely that the team of people working on drafting President Zhou Qiang’s speech to the National People’s Congress (NPC) are hard at work. I surmise that they will draw on January’s Central Political-Legal annual work conference, where responsibilities for implementing this year’s major tasks were allocated, and guidance from President Xi was transmitted. At that time, the Party leadership heard work reports from the SPC’s (and Supreme People’s Procuratorate’s) Party Group, so it seems likely that the report to the NPC will draw on that report as well.
Among the content that I expect to be included in the report is:
We’ll see next month how accurate the above guesses are. In the meantime, additions or corrections are welcome.
______________________________________
The SPC New Year’s greetings are ©the SPC, found in this short video
Supreme People's Court Monitor 
You must be logged in to post a comment.