Signals from the Supreme People’s Court’s national civil/commercial trial work conference

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Justice Liu Guixiang in a photo from some years ago

During the first week of July,  the Supreme People’s Court (SPC) held its civil/commercial work conference (民商事工作会议), at which senior SPC and lower court leaders (and other leaders) gathered to hear about the latest SPC policies concerning civil and commercial cases.

As this blog has noted, most of the work of the Chinese courts involves civil and commercial disputes, not criminal cases. President Zhou Qiang gave an important speech which set the tone for the conference, but the one that the practitioners (judges and lawyers) are paying close attention is the keynote speech by Justice Liu Guixiang, full-time member of the SPC Judicial Committee and organizer of the conference. From the content of Justice Liu’s speech, it appears that the focus was domestic commercial cases.  For those who want to review the text in full, it is available here and here (the second version was published on the Wechat account Empire Lawyers (法客帝国)and includes an introduction and highlighting by the lawyer who has the account.) (The last conference was in December 2015.) This blogpost highlights some of the many issues his speech raises.

(For those not familiar with SPC work conferences, the description I provided 25 years ago remains accurate: “Another important way through which the [SPC] uses these meetings is to transmit central legal policy, unify court practices in accordance with such policy, and obtain an overview of current court practices and problems.”)

Justice Liu Guixiang is a senior member of the SPC and one of a relatively few senior judges who graduated from the University of International Business and Economics (UIBE) (formerly affiliated with the predecessor to the Ministry of Commerce (MOFCOM)) and so is familiar with cross-border issues in particular (and was earlier head of the #4 Civil Division, in charge of cross-border issues). He is well known to the international community. Justice Liu has been given responsibility for the SPC’s campaign to basically resolve enforcement difficulties within two or three years (as the former head of the Enforcement Bureau).  Because problems in the Chinese economy means that many more business deals in China are ending up as disputes in the Chinese courts, the SPC needs to signal to the lower courts how important issues should be handled and to the senior political leadership that the courts are supporting the Party and its core.

Justice Liu conveyed messages on two types of issues to two parts of the audience for his speech.  The two parts of his audience were (are) the political leadership and tens of thousands of judges involved with civil and commercial issues, as well as others in the court system.   The two types of issues are political issues and legal issues, both on substantive law and procedural law.  People outside of China might be tempted to dwell on the political messages (as this analysis does, as time doesn’t permit better analysis of the legal issues), but the messages on legal issues are those ones that will have the greatest impact on the court system and on practitioners. The speech will be reviewed, discussed, and used as the basis for further work in the court system, and attentive lawyers and in-house counsel know that the content of the speech will affect their litigation strategy and business. I’ve spotted one synopsis on the takeaways from the conference from one of Beijing’s prestigious law firms and more are following.

Political issues

The first part of his speech addressed political issues, but that part also includes some highlighting of critical legal issues. He states that politics is the most important. Justice Liu repeats some of the “innovative” language from January’s Political-Legal Work Conference that I mentioned in a blogpost earlier this year (with which his speech is harmonized).  “As a political and legal organ, the people’s court is first and foremost a political organ. It must put political construction in the first place and clearly talk politics” )人民法院作为政法机关,首先是政治机关,必须把政治建设摆在首位,旗帜鲜明讲政治 )(I was tested on the phrase “talk politics/讲政治“ recently by some persons in the system with a sense of humor).

Principle #1 (of four)–“To uphold the absolute leadership of the Party. The leadership of the Party is the fundamental requirement of socialism with Chinese characteristics, and it is the root and soul of the people’s court.”…However, “the erroneous thoughts of so-called “constitutionalism”, “separation of powers” and “judicial independence” of the West must be resolutely resisted. This is a major issue of political principle and we cannot be vaguely ambiguous.” One commentator noted that this principle is greater than any ordinary principle of law.

This language harkens back to that used by President Zhou Qiang in January 2017. Why this was included, when the audience would know these principles clearly?  Likely for senior political leadership to see that the courts are harmonized with the Center and to ensure that the Center knows that SPC leadership is doing everything to ensure court cadres (judges and other court officials) are as well.

Principle #2, serve the Party and the greater situation.

Justice Liu reminds his audience that “it is necessary to fully realize that there is no rule of law that does not have political positions or political views” (没有不具有政治立场、政治观点的法治). In civil and commercial trials, we must have a stable political stance, determine the political direction correctly, pay attention to the political effect, consider the political influence (impact), and be good at analyzing complicated issues from the perspective of politics, from the perspective of the fundamental interests of the people, and from the perspective of the overall economic and social development of the party and the country, integrate politics in civil and commercial trial work.” (在民商事审判中必须站稳政治立场,把准政治方向,注重政治效果,考虑政治影响,善于从政治角度从人民群众根本利益角度、从党和国家经济社会发展大局的角度分析处理错综复杂的民商事矛盾纠纷,把政治融入具体的民商事审判业务中.

Interestingly, he notes that the system of recording interference by senior court leaders and other Party/government leaders has not been effective, and this must be implemented as well as the judicial responsibility system (问题在于我们在审判实务中没有不折不扣地落实好,非法过问案件登记制度的功能没有得到有效发挥。必须采取有效措施把这项与司法责任制相配套的改革措施落到实处).  This appears to be a reflection of the concern of many judges that they will be held responsible for judicial decisions that they made because they were under pressure to do so from senior court officials or local officials.

American civil (and criminal) procedure law professors would be intrigued to know that “so-called long-arm jurisdiction” merited mention in Justice Liu’s speech (“Pay close attention to the United States’ all-around suppression in the fields of economy, politics, science and technology, etc. and the implementation of so-called ‘long-arm jurisdiction”‘to bring new challenges to our country’s judiciary;高度关注美国从经济、政治、科技等领域对我国进行全方位打压,实施所谓“长臂管辖”给我国司法带来的新挑战.

Justice Liu includes in this section several legal issues and highlights the way that Chinese judges should think when hearing cases:

When making judgments, we must fully consider the overall situation of economic and social development, political effects, and social effects.  When dealing with major and sensitive cases, we must pay attention [carefully listen] to the opinions of financial supervision departments, state-owned asset management departments, and social organizations such as  small and medium enterprise associations to accurately grasp the overall situation of social stability, social impact, and political impact. 我们在作出判断时,要充分考虑经济社会发展大局、政治效果、社会效果. 在处理重大敏感案件时,要注意听取金融监管部门、国有资产管理等部门以及中小企业协会等社会组织的意见,精确把握社会稳定大局、社会影响、政治影响。

Justice Liu called for more work on bankruptcy law, particularly strengthening coordination with government, resolving obstacles in bankruptcy liquidation and reorganization, and introduce judicial interpretations to deal with the legal issues. In order to prevent and resolve major risks, the people’s courts should issue judicial interpretations or judicial policies on issues such as bond defaults that directly affect financial security and social concerns, equity pledges of listed companies, and Internet lending.

He calls for deepening supply-side structural reform and promoting high-quality economic development; clearing out “zombie enterprises”; preventing financial risks, protecting the legitimate rights and interests of private enterprises, establishing a legalized business environment, and other civil and commercial matters, and mentions the “Fengqiao Experience,” but in relation to the 2018 SPC Joint Opinion with the China Securities Regulatory Commission on increasing diversified dispute resolution for securities disputes and a single dispute resolution platform linking litigation and other forms of dispute resolution.  He flags future work in using other forms of dispute resolution to resolve financial/securities disputes.

Legal issues

Substantive legal issues are the ones that have attracted the interest of judges and other legal professionals. Politics is also visible in the way that Judge Liu phrased his summary of the legal issues briefly noted below  (particularly his use of dialectical analysis, consistent with Party Center language). (This analysis will be expanded later as time permits). The issues that he is highlighting are the major ones, particularly regarding commercial issues.  He is providing the view of the SPC (likely drawing on the views of the #2 Civil Division, the division focusing on domestic commercial issues), and is signaling where Chinese courts are in disagreement and should conform.

As to why Chinese courts disagree or are unclear on these issues, and why this speech will unify courts’ approaches, it has to do with Chinese legislation and judicial interpretations. Judge Liu’s speech is a type of judicial policy document, in essence. As I mentioned in a recent blogpost, rules or policies included in SPC judicial policy documents may eventually be crystallized in SPC judicial interpretations and eventually codified in national law, but that process is slow and cannot meet the needs of the lower courts. The lower courts need to deal properly (politically and legally) with outstanding legal issues pending a more permanent stabilization of legal rules. This is true for judicial policy documents in all areas of the law, not only in commercial law.  Therefore Justice Liu used this conference to convey the SPC’s views:

  1.  He flags the issues where Chinese courts disagree: validity of external guarantees given by companies; the validity of a contract if a fake chop is used; scope of the security rights when a security contract and registrations are inconsistent; guarantee contracts linked to shareholding (让与担保); how to adjust damages, how to implement the right to terminate a contract (如公司对外担保的效力问题、盖假章合同的效力问题、合同约定与登记簿记载不一致的担保物权的范围问题、让与担保问题,甚至连违约金如何调整、解除权行使的条件等一些常见问题);
  2. Methodology–in trying difficult and new civil and commercial issues, judges should search for “similar cases” and determine whether prior cases have derived related principles.  This links with my recent blogpost flagging the SPC’s development of its case law system (with Chinese characteristics). Justice Liu does not use the word “precedent.” He directs judges to consider whether principles in prior cases are applicable, if not, reasons should be given, and if an old principle is to be reversed, reasons should be given and these should be discussed by either the specialized judges committee or judicial committee. He stresses what I had mentioned previously, that principles are needed on what the scope of “similar cases” are.
  3. On disputes involving Value Adjustment Mechanisms (VAMs), judges should seek to coordinate the conflicts of interest between investors, companies and creditors. and implement the principle of capital maintenance and the principle of protecting the legitimate rights and interests of creditors, and to balance the interests of investors, shareholders, the company, and its creditors;
  4. He repeats SPC policy on an old FAQ (frequently asked question)–what if a contract violates a local policy, normative document, or ministerial rule–should a court invalidate the contract? The answer is no, the court needs to consider whether there is a violation of public order (公共秩序), which he says is mostly seen in violations of law or State Council administrative regulations;
  5.  How to protect all types of entities equally and provide special protection to groups such as minority shareholders and financial consumers;
  6. He gives practical guidance to for judges grappling with a theoretical legal issue–how to understand the status of the relevant law when the General Principles of Civil Law (2017) is inconsistent with earlier legislation such as the 1986 General Principles of Civil Law,  the 1999 Contract Law, the Company Law (last amended in 2018). The new law supersedes inconsistent prior law, but if provisions of the 2017 law are inconsistent with the special part of the Contract Law, the Contract Law prevails (on the theory that specialized provisions prevail)
  7. Issues related to the validity of contracts, including contracts that never went into force,
  8. Corporate guarantees to third parties–an issue regarding which there has been a great deal of litigation and court rulings have varied widely,  He sets down some rules;
  9. How to correctly understand a provision of the Company Law Judicial Interpretation #2, that gives creditors the right to seek the liquidation of a company in certain circumstances;
  10. Private lending (particularly interest-related issues);
  11.  Issues related to a debtor or guarantor using company shares to secure an obligation, and the related rights of the company and its creditors, voting rights and rights to dividends in the company., and whether the creditor has a priority right. Justice Liu notes the law is silent on the validity of such agreements but the SPC takes the view that these agreements are valid, as long as no mandatory provisions of law are violated;
  12. Remedies for a third party–raising objections in enforcement proceedings, requests for retrial, and applying to proceedings.
  13. How to deal with cases with both civil and criminal aspects–if civil and criminal case involves the same facts, it should be referred for criminal investigation first, and if there is some dispute, it can be coordinated by the local political-legal committee.  The major issue in practice is how to determine whether “the same facts are involved.”  Justice Liu points his audience to several factors. This is also an old issue in the Chinese courts, but has taken on new importance now that the Chinese government is using criminal prosecution to deal with abuses in the financial system that affect the interests of consumers and investors.

Not said in Justice Liu’s speech is whether the broad substantive content will be reissued in a form more useful to frontline judges (and other members of the legal community).  If practice is any guide, that is likely we will see a conference summary (会议纪要)–the SPC issued a conference summary based on the 2015 conference 11 months after the conference itself, on one set of issues.

 

 

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

Gazette of the Jiangsu Higher People’s Court

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

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

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

#26 mentions the following:

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

Judicial interpretations

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

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

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

Guiding cases

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

Local High Court Guidance

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

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

Improving China’s Case Law System

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

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

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

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

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

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

 

Signals in the 2019 Supreme People’s Court work report to the NPC

Screenshot 2019-04-19 at 8.49.37 AMI have spent some time decoding Supreme People’s Court (SPC) President Zhou Qiang’s March 2019 report to the National People’s Congress (NPC). As I explain below, it provides signals into how the Chinese courts are changing and may change in the post 19th Party Congress New Era.

This report is both different from and similar to previous reports. The major difference is linked to the 2019 Central Political-Legal Work Conference (at which Xi Jinping set out in his speech (重要讲话) his view of the New Era for political-legal work(新时代政法各项工作) and the accompanying Party regulations on Political-Legal Work.  As I explain below, the report is linked to other recent Party regulations, such as the Regulations on Requesting Instructions and Reporting on Major Matters (中国共产党重大事项请示报告条例)and Regulations on the Work of Selecting and Appointing Party and Government Cadres (党政领导干部选拔任用工作条例). Although the Regulations on Party Groups were only recently issued (15 April), Zhou Qiang must have been aware of their content when drafting his report. It is also likely that he was aware of the Regulations on the Evaluation of the Work of Party and Government Leading Cadres (党政领导干部考核工作条例), issued on 21 April. As I have written before on this blog, the SPC Court President’s work report must be harmonized with the latest stance on political-legal issues.

What is different?

What is different is greater emphasis on political study and Party leadership, although these are themes that found in many previous SPC court president reports.  The emphasis in this year’s report on political study is on Xi Jinping Thought on Socialism with Chinese Characteristics for a New Era (习近平新时代中国特色社会主义思想) and Party leadership is on implementing the spirit of the 19th Party Congress  (党的十九大精神) and the January, 2019 Central Political-Legal Work Conference (全面贯…中央政法工作会议精神).

This emphasis shown by the first numbered section of the report.  It is entitled  “Deeply study and implement Xi Jinping Thought on Socialism with Chinese Characteristics for a New Era and Uphold the Party’s Absolute Leadership [emphasis added] Over the Work of the People’s Courts (深入学习贯彻习近平新时代中国特色社会主义思想坚持党对人民法院工作的绝对领导).”  The phrase “uphold the Party’s absolute leadership over the work of the people’s courts” has been used repeatedly since the 2019 Political-Legal Work Conference.  The Party Regulations on Political-Legal Work (mentioned above) use the phrase “Party’s absolute leadership.”  Li Ling (of the University of Vienna) sees this as indicating a complete and unambivalent severance from the judicial independence framework. The report identifies the primary political task for the courts to be studying Xi Jinping Thought and the 19th Party Congress decision (坚持把学习贯彻习近平新时代中国特色社会主义思想和党的十九大精神作为首要政治任务), and it calls for related training for all  350,000 court personnel (深入开展大学习大研讨大培训,对全国法院35万名干警进行全员轮训).

This section also calls for the strict implementation of the [Party] system of reporting and seeking approval for major matters [also known as requests for instructions](严格落实重大事项请示报告制度)(the Party regulations on reporting and seeking approval for major matters(Chinese version here). Those regulations appear to be linked to the Political-Legal Work Conference but were not publicly issued until the end of February).  As mentioned in my recently published article, 1995 regulations on trial work secrets require requests for instructions and their responses in a case to be placed in the supplementary file. These supplementary files are classified as trial work secrets.  There has been significant criticism over many years of the system of requesting instructions/reporting and seeking approval (as I wrote 26 years ago!), and proposals even within the SPC for the system to be “proceduralized” or “judicialized.” Some  academics have called for abolishing it. For those who can read Chinese, I recommend Renmin University Professor Hou Meng’s 2011 article analyzing the system of seeking instructions. The second judicial reform plan (under the late SPC President Xiao Yang), called for reform to the system of reporting and seeking approval/request for instructions system. In a quick search I did of the SPC’s judgment database for the phrase “sought instructions from the higher court (请示上级法院), I found almost 350 that mentioned the phrase (although a certain proportion related to requesting the higher court to designate jurisdiction).

Another indication of the emphasis on Party leadership is found in the section of the report that relates to the courts’ tasks for 2019.  Section #5 of the court tasks refers to improving the quality of court personnel–“speed up the creation of a revolutionized, regularized, specialized, professionalized team, forge a high quality court team that the Party Center relies upon and the masses are satisfied with.”  As explained in an earlier blogpost, “revolutionized” signals absolute Party leadership  (五是加快推进队伍革命化、正规化、专业化、职业化建设,锻造党中央放心、人民群众满意的高素质法院队伍). This language is consistent with the 2019 Political-Legal Work Conference and President Zhou Qiang’s speech to implement the spirit of that Political-Legal Work Conference (note that similar language is found in Procurator-General  Zhang Jun’s report to the NPC).

As in previous years, most of Zhou Qiang’s report was devoted to the SPC’s and lower courts’ accomplishments in various substantive areas and providing selected statistics to support the narrative. Those statistics reveal that most of the cases heard in the Chinese courts are civil and commercial, not criminal.  My incomplete research on the caseload of the SPC comes to a similar conclusion.

What needs to be observed (for those of us focusing on Chinese court developments) is how these recent Party regulations will be integrated with court-related legislation–for example, how the Judges Law will be amended to reflect the latest political developments. [The Judges Law was promulgated on 23 April, a future blogpost will analyze its significance].

Other issues to be observed include the following questions.  What does increased emphasis on Party leadership and political study mean for the operation of the Chinese courts and the increasingly professional judges working within the Chinese court system? The 19th Party Congress report calls for strengthening and improving Party leadership over bodies of state power.   A late January 2019 Central Committee document on strengthening the Party’s political construction (中共中央关于加强党的政治建设的意见) states that the basic nature of various institutions, including the courts (called adjudication /trial organs 审判机关) ) is that they are political institutions (中央和地方各级人大机关、行政机关、政协机关、监察机关、审判机关、检察机关本质上都是政治机关). What does this designation mean for the operation of the courts?

One of the post 19th Party Congress changes that Zhou Qiang mentions is implementing the system of seeking instructions from the Party organization and superior Party organizations and strengthening the leadership role of the Party group in operational (substantive) work and Party construction  (加强对本单位业务工作和党的建设的领导). So what does this mean, for example, for the China International Commercial Court and the SPC’s Intellectual Property Court (and their elite judges), as well as the other SPC judges together dealing with almost 35,000 cases, retaining and attracting high quality legal professionals, particularly at the lower court level (this year’s report recognized that the resignation rate in some local courts is “severe”)? Most of the 28 million cases heard in the Chinese courts were heard at the local level.  What does this mean for confidence in the Chinese court system, be it on the part of the Chinese public, the Hong Kong, Macau, and Taiwan public, and the international public?  President Zhou Qiang’s report reveals that most of the cases in the Chinese courts involve civil and commercial disputes that for the most part arise between individuals or corporate entities (in 2018 9,017,000 first instance cases involved people’s livelihood, including 1,111,000 first instance employment, medical, pension, and consumer cases), and the courts heard 1,814,000 marriage and family cases. Will integrating socialist core values into judicial interpretations promote the rights of women, not to mention other groups whose rights have traditionally not been fully protected?

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graphic from the SPC English language website

 

 

 

Shining a light on Chinese judicial transparency

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flashlight in the dark

I last wrote on judicial transparency in December (2018), giving a quick analysis of the Supreme People’s Court (SPC)’s latest transparency policy. Two quick updates on this topic:

  1. The Fifth Judicial Reform Plan Outline (Opinions on Deepening the Reform of the Judicial System with Comprehensive Integrated Reforms – Outline of the Fifth Five-Year Reform Program of the People’s Courts (2019-2023) lists as one of the overall goals improving judicial transparency:

further deepen judicial openness, constantly improve the openness of the trial process, openness of court proceedings, openness of judgment documents, openness of enforcement information–the four transparency platforms, comprehensively expand the breadth and depth of judicial openness, improve the form of judicial openness, smooth the parties and lawyers to obtain judicial information channels, build a more open, dynamic, transparent, convenient sunshine judicial system.

The transparency developments highlighted in the Fifth Judicial Reform Plan Outline will be guided by the policy document Supreme People’s Court’s Opinion Concerning the Further Deepening of Judicial Transparency  (Judicial Transparency Opinion 最高人民法院关于进一步深化司法公开的意见)) that I wrote about in December.

2.  The article I mentioned as being in the academic article production pipeline has finally emerged.  It can be found here. It is a chapter from the book Transparency Challenges Facing China and examines some recent developments in China’s judicial transparency. It suggests that although the scope of judicial transparency is inevitably shaped by the requirements to keep state and trial work secrets confidential, the Supreme People’s Court, within the boundaries of what is politically achievable, is taking concrete steps to expand the scope of judicial transparency.  The article focuses on information on judges and courts, statistics and big data, and judicial normative documents, digging into relevant court rules and highlighting Chinese language commentary.  The article shows that views on judicial transparency within the Chinese judiciary are not as monolithic as an outsider might have initially assumed.

 

What does China’s Judges Law draft mean?

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21 January China Law Society organized discussion of Judges Law draft (note disproportionately few women)

Although the redraft of China’s Judges Law has the potential to have an impact on many in the world outside of China, few people have taken an interest, judging by the pageviews of its translation on Chinalawtranslate.com (62). (I’m indebted to Jeremy Daum and others for translating it).  Judging by a search on Wechat, the same is true in China.  The workshop pictured above, organized by the China Law Society, appears to be one of the few in which views on the draft were aired.  There must have been strong views on the draft, but the report did not provide any details (and it is apparent no foreigners participated). The draft was released before the Communist Party (Party) Central Committee’s 2019 Political-Legal Work Conference and therefore does not reflect the most current political signals. The draft is open for public comments until 3 February and over 800 comments have been submitted as of 25 January.  An earlier draft was made available for public comment (as well as related institutions) for comment and the China Law Society organized comments on that draft as well. The current draft incorporates input from various sources.

The law, if enacted in its current form, will have short and long term implications for the Chinese judiciary.  As the Chinese judiciary seeks to be increasingly connected with the outside world, through its work in negotiating the (draft) Convention on the Recognition and Enforcement of Foreign Judgments at the Hague Conference on Private International Law, the Arrangement on Reciprocal Recognition and Enforcement of Judgments in Civil and Commercial Matters between mainland China and Hong Kong, as well as other more controversial involvement, the questions it raises for outside observers (and Chinese ones as well) is–what vision does it convey of the Chinese judge?  What rights and responsibilities does a Chinese judge have under this law? Will this law, if enacted in its current form, encourage competent people to remain in the judicial system and promising young people to enter it?  When I first flagged the redrafting of the law in 2015, I commented–“how to reorganize the Chinese judiciary and what professional status Chinese judges should have and work under will affect how judicial reforms are implemented and less directly, more fundamental issues concerning China’s economy and society.”

Some brief (not comprehensive) comments follow:

It consolidates the framework of the old law, incorporates legislative changes and many judicial reforms, leaves some flexibility for future reforms, and reflects current Communist Party (Party) policy towards political-legal institutions and their personnel as set forth in the 2019 Party regulations on political-legal work.

The Judges Law does not stand on its own. It is connected with other legislation, such as the recently amended Civil Servants Law  the amended court organizational law, and of course, relevant Party rules.   The initial drafting was led by the SPC, in particular, its Political Department (as the Party is in charge of cadres).

Chapter I: General Provisions

This section with broad statements is longer than the previous version.  Among the notable amendments.

Article 1, concerning the purpose of the law: “advance the regularization, specialization, and professionalization of judges; to strengthen the management of judges; to ensure that the people’s courts independently exercise the adjudication power; to ensure judges’ performance of their duties in accordance with law; to ensure judicial fairness; and to preserve the lawful rights and interests of judges”–sends signals concerning the professionalization of the Chinese judges, with principles of independence (better read as autonomy) and fairness not listed first. It should be noted that during the 2019 Political-Legal Work Conference, the “revolutionization” of political-legal teams was listed before regularization and professionalization (加快推进政法队伍革命化、正规化、专业化、职业化建设,忠诚履职尽责). (“Revolutionization” appears to meant to signal the absolute leadership of the Party.) SPC President Zhou Qiang gave a speech at a meeting to implement the spirit of that Political-Legal Work Conference which also listed “revolutionization” first, but he stressed the greater importance of professionalization (加快推进队伍革命化、正规化、专业化、职业化建设,把专业化建设摆到更加重要位置来抓) as the operation of and public confidence in the Chinese court system depends on retaining and attracting professionals. The establishment of the CICC, the Shanghai Financial Court and the Intellectual Property Court of the Supreme People’s Court all represent professionalization and specialization.

Article 2 mentions various types of judicial personnel, the functions some of which are defined in the court organizational law, but for others, such as division chiefs and deputy division chiefs, mentioned without definition.  A Chinese court has many administrative characteristics, but it would be helpful for the Chinese and offshore public to flag some basic principles regarding the functions of persons with these different titles, as these are found scattered in various SPC regulations.

Article 4: Judges shall treat parties and other litigation participants justly. The law is applied equally to any all individuals and organizations.  But the law treats different types of parties differently (embezzling money from a private enterprise vs. state-owned company) and other provisions of law treat cases involving senior officials differently from ordinary people (see this article on the principle of trying criminal cases involving high officials in a jurisdiction outside which the case arose).

Chapter II: Judges’ duties, obligations and rights

On Judicial duties, Articles 8 and 9, on the duties of ordinary judges and ones with a title do not clarify what participating in trials and being responsible for their cases mean (the latter is linked to the 2015 responsibility system that (as this blog has mentioned), gives judges a great deal of stress. Perhaps the German Judiciary Law could be a source of inspiration on judicial duties.

Chapter III: Requirements and Selection of Judges

This chapter incorporates a number of policy changes that have been implemented under the judicial reforms and also explains why the China International Commercial Court (CICC) will not be able to appoint foreign judges, unlike its counterparts in Singapore and Dubai.

Article 12 is a revised version of old Article 9, requiring judges to be PRC citizens, uphold the PRC constitution, and have a good political and professional character. Article 65 mentions that new judges must have passed the legal qualification examination.

This chapter mentions the establishment of Judicial Selection Committees (also a borrowing from abroad) and which must have some linkage to Party organizational departments. The chapter mentions recruiting judges from outstanding lawyers and academics (thus far, proving more difficult than anticipated), and requiring higher court judges to be recruited from those with experience in the lower courts.  I described the  “classic” appointment system in my 1993 article on the Supreme People’s Court, in which fresh graduates were assigned directly to the SPC.  As mentioned in my earlier blogpost on the court organizational law,  court presidents are required to have legal knowledge and experience.

Chapter IV: Appointment and Removal of Judges

This chapter has expanded conflict of interest rules for judges considerably. that had previously been set out in a separate chapter of the Judges Law.  Some of these had mostly been contained in subsidiary rules that the SPC has issued but are now being incorporated into the Judges Law itself.

Chapter V: Management of Judges

This chapter flags a number of issues, including the quota judge system, pre-career judicial training and the resignation of judges.

Article 24 states that a personnel ratio system is implemented for managing judges. This codifies the quota judge system, but it does not explain how it works and whether is any way to challenge the determination of the personnel ratio.

Article 30 provides that a uniform system of pre-career training is to be carried out for new judges.  This is an innovation in which the SPC has looked to what is done in Japan and Taiwan, and was flagged several years ago in this blog. As mentioned in that earlier blogpost, training is likely to include both ideological and professional aspects.

Article 34 provides that”judge’s applications to resign shall be submitted in writing by themselves, and after approval, they are to be removed from their post in accordance with the legally-prescribed procedures.”  It is unclear from this article what the procedure is for resignation and the standards for approving or rejecting a judge’s application.  But it is meant to harmonize with the Civil Servants Law,2017 regulations of the Party Organization Department and two other authorities on the resignation of civil servants, and SPC regulations implementing the latter regulations (discussed here).  From Wechat postings and other discussions in Chinese legal circles, it is not unusual for the senior management of a court to delay decisions on permitting a judge to leave for a year or more. 

Chapter VI: Evaluation, Reward and Punishment of Judges

This chapter sets out the outlines of the recent judicial reforms regarding the evaluation of and disciplining of judges.

Article 45 on punishment of judges–while many of the provisions are found in many other jurisdictions, some are unique to China and could be worrisome to judges, as they could be widely construed–such as “(5) Causing errors in rulings and serious consequences through gross negligence; (6) Delaying handling cases and putting off work.”  There is considerable concern among judges about the standard for “errors” in rulings because that standard may evolve over time (see this earlier blogpost) and the reason for delay may not be solely a legal one.

Articles 48-50–In contrast to the previous version of the Judges Law, this draft provides for disciplinary committees (rules to be drafted by the SPC) under which the judge will have the right to be represented and to provide evidence in his defense.

Chapter VII: Professional assurances

This section, on professional protections for judges, also flags the limitations on and weaknesses of those protections, with inadequate procedural protections against unfair determinations made against judges.

Article 52, providing that  “Judges may not be removed from the trial post except…”–also does not provide a mechanism for judges to challenge a decision or determination made against them.

Article 64: Where there are errors in judicial sanctions or personnel dispositions, they shall be promptly corrected; where it causes reputational harm, the reputation shall be restored, the impact eliminated, and formal apologies made; where economic harm is caused, compensation shall be made.  But there is no mention of how a judge can challenge the judicial sanctions or personnel disposition, or request that he (or more likely she) be reinstated.  Dispassionate analysis of the responsibility system by both academics and judges (previously mentioned on this blog) describes the responsibility system as a “Sword of Damocles” hanging over the heads of judges and lists some cases in which judges were prosecuted and found not guilty, with another one reported by another Wechat account.

A final word

It is unclear at this stage of the draft whether comments on the draft will have any impact on the final draft.  Presumably, some of the comments made at the workshop mentioned above will be accepted, as the participants included a group of senior experts either working within or retired from “the System” or academics whose expertise is recognized and valued.

What does the Supreme People’s Court’s new judicial transparency policy mean?

62bc75491cff95d15b4742e0c32268d9In late November (2018), the Supreme People’s Court (SPC) issued its latest transparency policy. The question is, after reading past the references to the 19th Party Congress and the ideology guiding this document, is what, if anything new does it require of the lower courts (and of itself)? And why? Decoding this document (Supreme People’s Court Opinion Concerning the Further Deepening of Judicial Transparency  (Judicial Transparency Opinion 最高人民法院关于进一步深化司法公开的意见)) requires some background.  The why is easier to answer (I have written about this in an academic article in the academic publication pipeline), but I will also explain the “what is new” and what it means.

Why?

As to the why, it appears to be linked to criticism from within the court system and by prestigious research institutes within China.  Some of the critics and their criticism:

In 2015, Justice Hu Yunteng wrote that judicial statistics needed to be made better and more transparent.  In 2016, He Fan, department head in the SPC’s judicial reform office, wrote “as long as it does not infringe the privacy of the parties, does not violate state security, the court’s data interface should be open to the community.” Local judges, too, are writing critically about judicial statistics, with at least one comparing unfavorably China’s practices with those of the US Department of Justice’s Bureau of Judicial Statistics.

IMG_4136  The team of researchers at the Institute of Law, China Academy of Social Sciences (CASS) evaluated court websites in this volume, advising the courts to “consider judicial openness from the viewpoint of public users,” and expand transparency of judicial statistics, devote manpower to updating court websites, and put some order into chaotic judicial transparency. On December 10, a team from the CASS Institute of Law announced the results of their third-party assessment of the SPC’s judicial transparency, the first time that the SPC had authorized an institution to do so, finding problems with compliance by some lower courts.

What does is the Judicial Transparency Opinion require?

The Judicial Transparency Opinion requires the courts to expand the scope of transparency while keeping secrets secret  It refers to two types of secrets, state secrets and trial secrets(审判秘密) (also called trial work secrets).

Expanding the scope of transparency while maintaining secrecy

The Judicial Transparency Opinion requires the lower courts to expanding the scope of information that they make public while keeping state and trial work secrets secret.  Although most people who a basic idea about Chinese law have heard about its broad definitions of state secrecy, that same cannot be said about the concept of “trial secrets”.  Although the general legislation on state secrecy has been updated in the past 10 years, it is unclear whether the same can be said of the specific regulations on state secrecy in the courts.  “Trial secrets” is a related concept but the relevant regulations appear to be almost 30 years old and do not define the scope of the secrets clearly. They include accounts of discussions of judicial committees, and “views from relevant units.”

What is required?

In addition to setting broad principles such as timely and substantial disclosure (research done at Tsinghua has found that some courts upload their decisions to the SPC’s judgment database months late, or not at all) and a team of leading scholars  based at several US universities that includes Columbia Law School Professor Benjamin Liebman found a “missingness problem” when looking court judgment databases), the Judicial Transparency Opinion sets out specific requirements on transparency. Those requirements are set out in seven broad areas in which the courts should voluntarily release information (except those where law, administrative regulations, judicial interpretations do not permit release information and other information that is unsuitable for being made public (其他不宜公开). The phrase “unsuitable for being made public,” is flexible enough to cover both the politically sensitive on a larger and minor scale. (For more on unsuitability, see the article that Professor Liebman and colleagues wrote).  The preliminary section also calls for the greater use of white papers and court gazettes.

The seven categories include:

  1. Basic information about the court
  2. Enforcement;
  3. Litigation Services;
  4. Judicial reform;
  5. Judicial administration;
  6. International judicial exchanges and cooperation; and
  7. “Team construction” (队伍建设)

I have selected some areas in each category where greater openness is anticipated (and included some comments in italics).

A.   Among the useful new items in “basic information”

  • institutional establishment (机构设置) (generally refers to internal structures–both the Chinese and English version of the SPC website have this);
  • Normative documents (规范性文件)–Chinese law does not require these documents, which are not legally binding to be made public, but they guide the operation of the courts–if the SPC makes more of these documents public it would be a service to all;
  • Work reports to the people’s congress at the same level (makes life easier for research seeking to access this information over time);
  • Other basic information that needs to be widely known in society (it should include information for the “litigant in person” (the person without a lawyer, but it doesn’t).

B.  On enforcement, the SPC direct the lower courts to gradually expand the scope of enforcement openness.  Matters on the 12-item list include:

  • judicial statistics (presumably to include greater consistency among jurisdictions, unclear the scope of the statistics that may be released);
  • enforcement procedures (unclear whether this is for parties only or the general public);
  • bankruptcy information (not much is being made public);
  • Annual reports on enforcement in different substantive areas;
  • Judicial big data reports.

C.  Litigation services

  • Litigation guides (see the Shenzhen intermediate court’s list–while a good start, they are not user-friendly (guide to criminal collateral appeals, for example): 
  • court notices and information about judicial auctions and other information relating to the disposal of judicial property (this could be interesting in corruption-related cases);
  • judicial services, experts, bankruptcy administrators, etc.
  • specially appointed mediators and mediation organizations; lawyers stationed at the courts, other volunteers assisting with litigation;
  • Channels for collateral appeals and petitioning;
  • other information relating to party’s rights in litigation and other information the public should know–again see the suggestion above (for Chinese litigants) and this blog has previously made for non-Chinese litigants and defendants as well (foreigners and others from outside of mainland China also need some easily understandable information about the Chinese court system).

D.  The SPC calls for greater transparency relating to Judicial reform so that the public will have greater confidence in it, including:

  • judicial reform documents (would make the life of researchers trying to assemble the judicial reform puzzle much easier);
  • Information on progress in judicial reform [unclear whether the drafters are referring to white papers]
  • Other information the public should know (that ideally should include statistics related to judicial reform, including resignations of personnel, but appears unlikely);

E. Judicial administration–The SPC calls for the courts to accept supervision by society.  The measures include:

  • Matters relating to societal interests and follow up from suggestions made by National People’s Congress/Consultative Congress members (it would be useful to know what percentage of court staff is “on the front-line” of hearing cases rather than being in an administrative role);
  • Technical standards.

F. International judicial exchanges and cooperation–increase exchanges and reference between legal cultures, create a good impression internationally of the Chinese courts, promote their international competitiveness, influence and credibility:

  • important international judicial exchanges
  • important international judicial conferences;
  • other matters that society should know about.
    No mention of lists of projects for which the Chinese courts would welcome international exchanges and interchange of legal concepts. No mention of how a foreigner would be able to attend a court hearing in China.
  1. “Team construction”–this term is a Party term (but the Party is in charge of cadres)–i.e. this section relates to judicial personnel
  • the situation relating to Party construction (listed first, understandable in the post 19th Party Congress era);
  • Personnel work (it would be useful to have a breakdown of the number of judges and other judicial support personnel as well as those in administrative roles, as well as resignations and appointments);
  • Disciplinary information (it would be useful to have full decisions published, as in other jurisdictions);
  • Training and education.

Other issues

The final paragraph of the Judicial Transparency Opinion calls for implementing measures and more detailed measures to be drafted and for measures to be put in place.  So it can be expected that specific departments of the SPC will be involved in drafting more specific guidelines (will that involve more specifics on the types of statistics on criminal convictions released)?  Once the national guidelines are in place, we can anticipate that provincial high courts (or their equivalents) will issue implementing documents.  It is only then that we will be able to comment on what the actual impact of this document is.

What significance does China’s updated court law have?

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main premises of the Shenzhen intermediate court

The National People’s Congress (NPC) Standing Committee recently revised the Organic Law of the People’s Courts (People’s Courts Law, English translation available at Chinalawtranslate.com), the framework law by which the Chinese courts operate.  The NPC took the lead in drafting it, rather than the Supreme People’s Court (SPC). It retains the framework of the old law, incorporates legislative changes and many judicial reforms, leaves some flexibility for future reforms, and updates some of the general principles in the old law that apparently are on the dust heap of history (历史的垃圾堆).  Some of the principles newly incorporated reflect the reorientation of the Chinese courts, over the past 40 years while others represent long-term goals. Some provisions originally in earlier drafts have been deleted because the NPC Constitution and Law Committee considered that the time was not ripe for incorporating them.

The law contains some oddities, such as using two terms for judges, both “审判员” (shenpanyuan) (used four times) and “法官” (faguan)(used 38 times).  None of the official commentary has explained the reason for the mixed terminology.  My own guess is that it is linked to the use of “审判员” in the Constitution, but anyone with more insights into this is welcome to provide clarity.

The People’s Courts Law does not stand on its own. It is connected with other legislation, such as the Judges’ Law (amendments under consideration, with the drafting led by the SPC (this 2017 article criticizes some of the disconnects between the two) .the three procedure laws, the Civil Servants Law, as well as with Communist Party (Party) regulations.  As the courts are led by the Party,  its regulations also affect how the amended People’s Courts Law will operate when it becomes effective on 1 January 2019.

General Provisions

Some of the principles newly incorporated into the law reflect the reorientation of the Chinese courts over the past 40 years towards more civil disputes and an increasing number of administrative disputes, while others represent long-term goals.

Article 2 has relegated some of the dated language from what was previously Article 3  to the dust heap of history–references to the “system of the dictatorship of the proletariat,” “socialist property,” and the “smooth progress of the socialist revolution”). Those have been replaced by language such as “ensuring the innocent are not prosecuted,” “protecting the lawful rights and interests of individuals and organizations,” preserving national security and social order, social fairness and justice,  and the uniformity, dignity, and authority of the state’s legal system.

The principle of “ensuring the innocent are not prosecuted” makes its first appearance in the People’s Courts Law. I recommend this new article by a member of the Beijing Procuratorate, (in part) criticizing the poisonous effect of the “declared innocent” performance indicators of procurators on Chinese criminal justice.

On protecting the “lawful interests of individuals and organizations,” rapidly changing judicial policy and inconsistencies between criminal and civil law may mean that what is recognized as valid under civil law may be considered a bribe under criminal law.  Additionally, although the People’s Courts Law deletes language that distinguishes among owners of different types of Chinese companies, Chinese criminal law still does (see this chart setting out sentencing guidelines, for example).

Article 6, on judicial fairness, contains language on respecting and protecting human rights.  Foreigners may think it is directed at them, but it is more likely aimed at Chinese citizens.

Article 7 calls for the courts to carry out judicial openness, except as otherwise provided by law.  It is generally recognized that the courts are much more transparent than before, although specialist analysis in and out of China points out that there remains much to be done.

Article 8 incorporates judicial responsibility systems into the law (a prominent feature of the recent judicial reforms), described by two judges as the “sword of Damocles hanging over judges” (( 法官办案责任追究是时刻悬挂在法官们头上的“达摩克利斯之剑”) and a topic regarding which more dispassionate analysis is making its way into print.

Article 11 has important language about the right of the masses (i.e. ordinary people, that term is alive and well) to know of (知情),  participate in (参与·), and supervise the courts (according to law). However, the devil is in the details, as procedures for exercising these rights remain limited and sometimes lacking.

Organization (set up and authority) of the courts

Article 15 mentions some of the specialized courts that have been established over the last thirty years:

  • Maritime courts, legislation found here; translation of SPC regulations on jurisdiction found here.
  • Intellectual property courts, legislation found here, a summary of SPC regulations on jurisdiction found here.
  • Financial courts, see the SPC’s regulations on the Shanghai financial court.
  • The military courts still lack their own legislation (an earlier discussion of this issue is found here).

Article 14 relates to the special Xinjiang Construction & Production Corps (Bingtuan) courts  (not a specialized court under Chinese law, rather a court with its own special jurisdiction). Those interested can look to its NPC Standing Committee legislation,  SPC more detailed regulations, and Professor Pittman Potter’s research on these courts.

Article 16 incorporates the new China International Commercial Court’s first instance cases.

Article 18 incorporates the guiding case system into the law.

Article 19 crystallizes the SPC’s circuit courts (tribunals) into law (SPC regulations on the jurisdiction of those courts found here).

Articles 26 and 27 give courts some flexibility on their internal structure (courts in remote areas with few cases need not establish divisions, while large city courts can have multiple specialized ones. (Earlier blogposts have mentioned establishing bankruptcy divisions, for example.) Article 27 also mentions establishing (or not) comprehensive divisions (the administrative departments of courts, that according to a recent academic article can constitute close to half the headcount in a court and that some court leaders value more highly than operational divisions (the divisions hearing cases).

Trial Organization

This section of the law incorporates the current judicial reforms in several ways, including:

  • In Article 30, on the operation of collegial panels and requiring the court president to be the presiding judge when s(he) participates in a collegial panel;
  • Mentioning in Article 31 that dissenting opinions are to be recorded and that members of the collegial panel (or sole judge) are the ones to sign their judgments and the court is to issue it;
  • Article 34 gives space for eliminating the role of people’s assessors to determine issues of law, linked to Article 22 of the People’s Assessors Law;
  • Articles 36-39 includes new provisions on judicial/adjudication committees.  It consolidates current reforms by crystalizing specialist judicial committees (civil/criminal). An important reform is requiring the views of the judicial committee to be disclosed in the judgment (the view is binding on the collegial panel that has submitted the case.  These articles also include related stipulations such as quorum requirements and making judicial committee members responsible for their views and votes. (See previous scholarship on this important institution).
  • Article 37 incorporates into law previous SPC regulations on judicial interpretations, specifying that they must be approved by the full (plenary) SPC judicial committee while guiding cases can be approved by a specialized committee of the SPC judicial committee.

Court Personnel

This section of the law uses the terminology :”审判员” (shenpanyuan) and “法官” (faguan).  It also incorporates the personnel reforms set out in the judicial reform documents in several ways: quota judge system; selecting higher court judges from the lower courts; the roles of judicial assistants and clerks (changed from the old model); other support personnel in the courts; a new career track for judges, including judicial selection committees; preference to hiring judges with legal qualifications;

Article 47 requires court presidents to have legal knowledge and experience.  It has long been an issue that court presidents have been appointed more for their political than legal expertise. Under the Chinese court system, an effective court president requires both sets of skills.

It appears that the reform of having judges below the provincial level appointed by the provincial level is not yet in place,

Safeguards for the courts’ exercise of authority

This section of the law links with the Judges Law and the People’s Police Law (in relation to judicial police).

Article 52 gives courts the right to refuse to engage in activities that violate their legally prescribed duties (will this end the phenomenon of judges sweeping streets?);

Article 53 relates to reforms relating to enforcement of judgments (and the social credit system);

Article 55 relates to judicial (and judicial personnel training, both theoretical/(ideological) and professional)–some earlier blogposts have shed light on this topic.

Article 56 indicates that headcount for court personnel is subject to special regulation(人民法院人员编制实行专项管理, distinct from other civil servants.

Article 58 incorporates into the law President Zhou Qiang’s focus on the informatization (including the use of the internet and big data) of the Chinese courts.

Drafting process

The drafting process (the explanation and other articles have the details) reflects the drafting of much Chinese legislation (further insights about the process from Jamie Horsley here).  The SPC Party Group designated personnel to research specific issues and engage with the drafters. The drafting involved several years of soft consultation by the drafters of relevant Party and government authorities, plus limited public consultations. Among the central Party authorities consulted were: Central Commission for Discipline Inspection, Central Organizational Department (in charge of cadres); Central Staffing Commission (in charge of headcount); Central Political-Legal Committee.  On the government side: Supreme People’s Court and Procuratorate; State Council Legislative Affairs Office; Ministry of Finance, National People’s Congress Legal Work Committee. Investigations and consultations were also done at a local level.

Bridging Chinese academia & “the system” (updated)

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President Zhou Qiang & Xu Jiaxin, former head of the SPC Political Dept, with SPC guazhi & other scholars

In a number of legal systems around the world, governments and sometimes court systems have institutions or practices in place to bring legal academics into government service and sometimes into the courts (and there are also professionals going the other way round). My former Havard Law School contracts professor, Charles Fried, illustrates that, as he served as Solicitor General and an Associate Justice of the Massachusetts Supreme Judicial Court.  Similar practices occur in civil law countries–German law professors are often appointed to either the German or European judiciary.  This type of practice has the advantage of bringing some new thinking and ideas into the bureaucracy or judiciary, and for those who return to academia from government service, it grounds their scholarship in the real world. Harold Koh, of Yale Law School, is an exemplar, having spent almost three years as the US State Department’s Legal Adviser during the Obama administration.

What about China?  Chinese academics generally go directly into teaching without any experience in practice and when they advocate certain reforms, they may not understand the institutional environment (the “system” (体制).

Several years ago a system was put in place to bridge the worlds of academia and “the system,” that took one friend teaching in a Chinese law school into a local court, and has taken several others into the Supreme People’s Court (SPC). That system is the temporary assignment/transferred duty (挂职锻炼 guazhi duanlian) system.  I’ll use the term guazhi.

“temporary assignment” (挂职)

As I wrote in my 1993 article, the courts (including the Supreme People’s Court (SPC)) have long used the guazhi system.  Back then (and now) it is used to send cadres (of which judges are one type) to the basic level or at least the lower level for some “real life” experience (while retaining their upper-level position) and often is the prelude for promotion.  The system has finally caught the attention of political scientists outside of China, as some recent academic articles attest.

Under the guazhi program that these friends participated in, academics go into the courts and procuracy for one or two years, depending on the institution.  The basis for the guazhi system between legal academia and the courts and other legal institutions was originally a 2011 joint document between the Central Political-Legal Committee and the Ministry of Education, Some Opinions on Plans for Cultivating Outstanding Legal Talent (教育部 中央政法委员会关于实施卓越法律人才教育培养计划的若干意见). This document has been updated to incorporate the latest policies on training high-quality legal professionals in the post 19th Party Congress new era.

In October 2018, the Ministry of Education and Central Political-Legal Committee issued an updated (2.0) version of this document.  The guazhi system must have been assessed as worthwhile, successful, and helpful in training legal professionals for the new era because it remains firmly in place: “select core law school legal academics to go to the operational departments of the legal system for temporary assignment” (选聘高校法学骨干教师到法治实务部门挂职锻炼).

The full text of the document (关于建立人民法院与法学院校双向交流机制的指导意见), that the SPC issued to implement the 2011 joint document appears not to have been released, and it is too soon (as of this writing) for the SPC to have updated its earlier document. The requirements for guazhi scholars are clear from the notice soliciting applications. The small number of scholars posted to the SPC must commit for a two year period, may sit as judges (they are appointed as deputy division chiefs or their equivalent and confirmed and removed by the National People’s Congress Standing Committee), must be recommended by their home institution, meet both (the standard) political and scholarly requirements, and be under the age of 55. They must work at least two days a week or at least 100 hours a year and may commit to the SPC either part or full time.

SPC guazhi scholars have included:

In the field of international/cross-border law, Liu Jingdong of the International Law Institute of the Chinese Academy of Social Sciences and Shan Wenhua of Xi’an Jiaotong University. A few searches show that Professor Liu, who was posted to the #4 Civil Division (dealing with cross-border issues) worked on some of the important issues that the division is dealing with: maritime law, arbitration, free trade zones, and Belt & Road. Professor Liu’s farewell to the SPC #4 Division gives a flavor of the issues that the division is dealing with as well as the long hours worked by its judges(and may go some way to explaining why guidelines on the operation of the China International Commercial Court have not yet been issued).

Criminal law: Lin Wei of the China Youth University of Political Studies and Lu Jianping and Liu Guangsan of Beijing Normal University. Professors Lin and Lu have both commented on death penalty-related issues.

Administrative Division: Wang Xizhuang of Peking University.

Judicial Reform and Research Office: Sun Xianzhong (Chinese Academy of Social Sciences) and Wang Haiyan (China University of Political Science and Law).

The scholars are all from leading institutions and many of them have some experience outside of China.  Several of them were asked to stay beyond the original two years, indicating that they were well-received. The vast majority have been men.

The bottom line is–does guazhi work for both the institution and the individual?  In theory, guazhi in the SPC should benefit both sides–the academics, who generally lack practical experience, the SPC, by having another pair of senior hands to work on research linked to drafting judicial interpretations and other policy documents with some fresh ideas, including ideas based on research or experience abroad.

But it likely depends on other skills of the individuals involved.  Are the scholars able to adapt to the culture of the hierarchical Chinese court system?  Do their temporary colleagues help them to adapt or do they step away? Are they able to communicate with senior court leaders in the required language?  When they discuss cases, visit local courts or train local judges, are they able to leave academic jargon behind?  One knowledgeable person suggested that the best guazhi scholars are able to influence senior leaders in a positive way, bringing new ideas into the bureaucratic court system, while another noted that unless guazhi scholars work full-time, their contribution will be limited, as they fail to harmonize with the way the system operates.

 

Socialist core values & Chinese judicial interpretations

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socialist core values poster in a Shanghai hotel

I write on socialist core values and Chinese judicial interpretations with some trepidation.  Not because I have trouble deciphering socialist core values, but because the two documents core to the analysis are available in summary form only, as at least one source has mentioned that the SPC document is classified. This blogpost is based on those summaries, primarily on the summary provided by Supreme People’s Court (SPC) Research Office (研究室) head Jiang Qibo of its five-year work plan (2018-2023) to incorporate fully socialist core values into judicial interpretations (关于在司法解释中全面贯彻社会主义核心价值观的工作规划(2018-2023).)  in 2015 the SPC had issued a general document on socialist core values.

As explained below, 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) while at the same time seeking to deal with many of the difficult legal issues that face it.

For those unfamiliar with the SPC’s Research Office, (as I am writing in yet another academic article stuck in the production pipeline),  2007 SPC regulations place it as the gatekeeper for reviewing proposals, examining and coordinating the drafting of judicial interpretations.  It also acts as the liaison when other central institutions forward their draft legislation and judicial interpretations to the SPC for comments, coordinating the SPC’s response with other divisions and offices, with a knowledgeable person noting that “the view of the Research Office prevails.”

The critical language in the Party’s plan for the SPC and its judicial interpretations appears to be: “judicial interpretations should be amended and improved in a timely manner according to the demands of socialist core values” (司法解释,要按照社会主义核心价值观的要求,及时进行修订完善).  This language appears only in the SPC’s summary of its own plan and not in the earlier reports on the original plan.

The SPC’s approach to implementing the Party’s plan was to pull together all the demands on and recommendations to it to draft judicial interpretations–some in Party documents, others in recommendations from the National People’s Congress (NPC) Standing Committee (presumably its Legislative Affairs Commission), proposals from NPC and CPPCC delegates, a collation of proposals concerning judicial interpretations from the lower courts, plus  the needs of the courts (as seen from the SPC), and the SPC’s other drafting commitments.

The areas of law that Jiang Qibo are relevant to a broad range of persons, from commercial lawyers to environmentalists, to those interested in the rights of women and the elderly. Some involve new areas for judicial interpretations while others require expanding old ones.

Jiang Qibo classified the interpretations into five broad categories:

  1. The category of patriotism, dedication, and harmony includes the following (important) judicial interpretations. It appears the #1 Civil Division will take the lead on these, and I trust will engage in public consultation:
  • Amending those on the right to reputation and the right to honor to include better protection for heroes and martyrs (as to be expected and was flagged in a recent blogpost); See some earlier translations here on the SPC’s statements on the earlier heroes and martyrs litigation;
  • amending and improving judicial interpretations related to the Marriage Law and family law, etc.  I recommend this article by Professor Yang Lixin of Renmin University (formerly an SPC judge) for his forthright analysis of the state of Chinese family law and current important issues (children born out of wedlock, same-sex marriage, wills, surrogacy, etc);
  • improving the systems for trying family-related cases (Judge Du Wanhua is overseeing the pilot projects in this area); improve the legal protection of juveniles; prevent and punish school bullying, etc. (the SPC has been doing research on improving juvenile law and preventing school bullying for several years).
  • amending/improving labor dispute judicial interpretations (these fill in the holes in labor legislation)  As has been discussed earlier on this blog, the number of labor cases in the courts has increased.

2. The category of equality, justice, democracy, and rule by law:

  • Improve protection of property, especially non-public property, in criminal law. (See last year’s blogpost on this). Recent developments in China have seen greater use of confiscation procedures, and as this blog highlighted earlier this year, property protections are inadequate.
  • Improve the rules for trying property condemnation cases, to better protect the rights of those whose property is being acquired.
  • A judicial interpretation on hearing disputes over the use of personal information is needed (project approval for this has been given). Also work will start on a judicial interpretation on the protection of wild animals and protected species (see NPC Observer’s article on a related case), and the enforcement judicial interpretation is also to be amended (because of the SPC’s campaign to improve enforcement).

3. In the category of justice, friendship, and cooperation are the following:

  • an interpretation on self-defense (recently in the news in China in several cases, such as the Yu Huan case and a case in Kunshan);
  • also improving the SPC’s2016  policy document on judicial legal assistance (legal aid as arranged by the courts).

4. On setting out further details to the broad principles in the General Part of the Civil Code (also Judge Du Wanhua continues to be involved with this):

  • amending the contract law judicial interpretations;
  • amending the judicial interpretations on the criminal punishment production and sale of fake and shoddy goods;
  • amending the judicial interpretation on food and drug safety crimes;
  • criminal punishment of fraudulent litigation (just released);
  • rules on hearing cases in which the government is a contracting party, and issuing a judicial interpretation at an appropriate time.

5. On prosperity, creativity, and greenness:

  • amending the judicial interpretation relating to villages, to provide services for rural revival;
  • amending real estate related judicial interpretations;
  • amending finance related judicial interpretations, to ensure national financial safety and prevent a financial crisis (the criminal law in this area is quite unclear);
  • amending the judicial interpretations on bankruptcy law;
  • improving judicial interpretations related to intellectual property law (IP law), see more below;
  • amend the judicial interpretations related to environmental protection;
  • amend the judicial interpretations on maritime trade and other maritime matters.

On the intellectual property front:

  • The SPC will look into punitive damages for patent, copyright, and other IP infringement so that in serious cases punitive damages can be imposed and having the infringer responsible for the costs to the rights holder of stopping the infringement;
  • in the next five years, if the legislation is not amended it will work on using market value as a basis for damages;
  • it will work to better coordinate between administrative and judicial enforcement of IP rights;
  • it will work on guidance on civil cases that arise because of monopolistic conduct;
  • protection of plant species;
  • it will look into new issues related to unfair competition cases, also in trade secret  cases, and new issues related to civil trademark disputes;
  • research evidence issues in IP cases, look into having IP technical investigators involved in litigation;
  • research jurisdiction in IP and unfair competition cases;
  • look into preliminary preservative measures in IP cases (mentioned in an earlier blogpost).

The ones listed in the plan will be prioritized in the project approval process for judicial interpretations (see two earlier blogposts on what that is and the topics on that list)

 

What to Expect in the Fifth Round of Judicial Reforms

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

 

 

What’s on the Supreme People’s Court’s judicial interpretation agenda (II)?

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SPC General office document issuing the 2018 judicial interpretation plan

The Supreme People’s Court (SPC) has a yearly plan for drafting judicial interpretations, as set out in its 2007 regulations on judicial interpretation work , analogous to the National People’s Congress (NPC) and its legislative plans. Judicial interpretations, for those new to this blog, are binding on the SPC itself and the lower courts, and fill in some of the interstices of Chinese law (further explained here).

On 10 July, the SPC’s General Office issued the document above. It sets out a list of 48 judicial interpretation projects for 2018 (with several for 2019) for which the SPC judicial committee’s had given project initiation/approval (立项) designating one or more SPC divisions/offices with primary drafting responsibility (this process to be detailed in a forthcoming article).  It appears to be the first time this type of document was publicly released (please contact me with corrections).  If so, it is a concrete step in increasing the SPC’s transparency (addressed in part in one of my forthcoming academic articles). The projects, deadlines, and some brief comments (some longer than others) follow below.

(“Project initiation”/”project approval” is a procedure well-known to those of us who have been involved in foreign investment projects in China, where it involves approval from the planning authorities, primarily for infrastructure projects, but is an initial procedure used by regulatory authorities of all types, Party and state. For the SPC, it reflects one of the planned economy aspects of the way it operates.

The document classifies the 48 projects into three categories:

  1. 2018 year-end deadline;
  2. 2019 half-year deadline;
  3. 2019 deadline.

This post will discuss the projects in the second and third categories, the ones with deadlines in 2019.

From these we can see which projects are the highest priority and where the SPC sees gaping regulatory holes need to be filled, reflecting its political-legal priorities. Often specific issues have already been on the agenda of the relevant division of the SPC for some time before they have been officially been approved by the SPC’s judicial committee.

As discussed in my previous blogpost, several of the interpretations listed for 2018 have already been issued. It is unclear which other drafts will be made public for comment, as the 2007 regulations do not require it to do so. Making this list known may put some pressure on the SPC to undertake more public consultation.  Few if any interpretations in the area of criminal or criminal procedure law have been issued for public comment.

First half of 2019 deadline

  1. Standardizing the implementation of the death penalty (规范死刑执行).  Apparently this will focus on more setting out more detailed guidelines concerning how the death penalty is implemented, linked to the Criminal Procedure Law and the SPC’s interpretations of the Criminal Procedure Law.

This article on a legal website sets out the steps in implementation and notes that parading of the persons to be executed is prohibited (although this rule seems to be ignored in too many localities).  A recent scholarly article provides some detail (in Chinese). It is possible that 2008 regulations on suspension of the death penalty will be updated. Responsibility of the #1 Criminal Division.  Given the sensitivity of issues related to the death penalty, it is significant that the SPC leadership decided to make this list public, given that this interpretation is on the list.

2. Judicial interpretation on harboring and assisting a criminal.  These provisions occur in various parts of the Criminal Law and are also mentioned in the organized crime opinion discussed in this earlier blogpost.  Drafting responsibility of the #4 Criminal Division.

3.  Interpretation relating to the protection of heroes and martyrs.  With the incorporation of the protection of heroes and martyrs in the Civil Code and the passage of the Heroes and Martyrs Protection Law earlier this year, drafting of a related judicial interpretation was expected.  Responsibility of the #1 Civil Division.

4.Interpretation on technical investigators in litigation.  Responsibility of the #3 Civil Division) (IP Division).  I look forward to Mark Cohen’s further comments on this.

5. Interpretation on the recognition and enforcement of foreign court judgments.  This blog flagged this development last year.  Judge Shen Hongyu of the # 4 Civil Division, who wrote this article on issues related to the recognition and enforcement of foreign court judgments, is likely involved in the drafting.  Drafting responsibility of the #4 Civil Division.

6. Disputes over forestry rights, apparently an area with many disputes.  The Environmental and Natural Resources Division is responsible for drafting.

7.Regulations on responsible persons of administrative authorities responding to law suits, relating to new requirements in the amended Administrative Litigation Law. and the 2018 judicial interpretation of the Administrative Litigation Law. The Administrative Division is in charge of drafting.

8.Regulations on the consolidated review of normative documents in administrative cases.  The Administrative Division is in charge of drafting this.

9. Regulations on the consolidated hearing of administrative and civil disputes, apparently related to item #22 in the previous blogpost. Responsibility of the Administrative Division.

10.  Application of the criminal law to cases involving the organization of cheating on state examinations (linked to Amendment #9 to the Criminal Law). The Research Office is responsible for drafting.

11. Application of the criminal law to crimes involving network use and aiding persons in such crimes (cyber crimes).  This article discusses some of the issues. The Research Office is responsible for drafting this.

End 2019 deadline

  1. Jointly with the Supreme People’s Procuratorate, Interpretation on Certain Issues Related to the Application of Law in Criminal Cases of Dereliction of Duty (II), likely updating interpretation (I) in light of the anti-corruption campaign and the establishment of the National Supervision Commission.
  2. Interpretation on limiting commutation during the period of the suspension of death sentences.  See related research in English and Chinese. The #5 Criminal Division is responsible for this.
  3. Interpretation on the trial of labor disputes (V), likely dealing with some of the most pressing labor law issues facing the courts that are not covered by the preceding four interpretations or relevant legislation.   The #1 Civil Division is in charge of drafting.
  4. Regulations on maritime labor service contracts, likely connected with China’s accession to the 2006 Maritime Labor Convention and a large number of disputes in the maritime courts involving maritime labor service contracts.  The #4 Civil Division is in charge of drafting.
  5. Regulations on the hearing of administrative cases, likely filling in the procedural gaps in the Administrative Litigation Law and its judicial interpretation.  The Administrative Division is responsible for drafting this.
  6.  Personal information rights disputes judicial interpretation, linked to the Civil Code being drafted.  Implications for individuals and entities, domestic and foreign. Responsibility of the Research Office.
  7.  Amending (i.e. updating) the 2001 Provisions of the Supreme People’s Court on Certain Issues Concerning Application of Urging and Supervision Procedure, relating to the enforcement of payment orders by creditors.  Responsibility of the Research Office.

 

 

 

 

What’s on the Supreme People’s Court’s judicial interpretation agenda (I)?

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SPC General office document issuing the 2018 judicial interpretation plan

The Supreme People’s Court (SPC) has a yearly plan for drafting judicial interpretations, as set out in its 2007 regulations on judicial interpretation work  (I have not been able to locate a free translation, unfortunately), analogous to the National People’s Congress (NPC) and its legislative plans.  Judicial interpretations, for those new to this blog, are binding on the SPC itself and the lower courts, and fill in some of the interstices of Chinese law (further explained here).  On 10 July, the SPC’s General Office issued the document above. It sets out a list of 48 judicial interpretation projects for 2018 (with several for 2019).  The document details the projects for which the SPC judicial committee had given project initiation/approval (立项), designating one or more SPC divisions/offices with primary drafting responsibility (this process to be detailed in a forthcoming article).  It appears to be the first time this type of document was publicly released (please contact me with corrections).  If so, it is a concrete step in increasing the SPC’s transparency (addressed in part in one of my forthcoming academic articles). The projects, deadlines, and some brief comments (some longer than others) follow below.

(“Project initiation”/”project approval” is a procedure well-known to those of us who have been involved in foreign investment projects in China, where it involves approval from the planning authorities, primarily for infrastructure projects, but is an initial procedure used by regulatory authorities of all types, Party and state. For the SPC, it reflects one of the “planned economy” aspects of the way it operates.

The document classifies the 48 projects into three categories:

  1. 2018 year-end deadline;
  2. 2019 half-year deadline;
  3. 2019 deadline.

From these we can see which projects are the highest priority and where the SPC sees gaping regulatory holes that need to be filled, reflecting its political-legal priorities. Often specific issues have already been on the agenda of the relevant division of the SPC for some time before they have been officially been approved by the SPC’s judicial committee.

Several of the listed interpretations have already been issued.  The SPC has solicited public opinion at least one of these draft interpretations, and it is unclear which other drafts will be made public for comment, as the 2007 regulations do not require it to do so. Making this list known may put some pressure on the SPC to undertake more public consultation.

This post will discuss the projects in the first category only, with a follow-up post discussing the projects in the second and third categories.

30 projects with a 2018 year-end deadline

  1. Regulations on the jurisdiction of the Shanghai Financial Court.  The NPC Standing Committee decision required the SPC to do so and included some broad brush principles on the new court’s jurisdiction.  As the SPC has announced that the court will be inaugurated at the end of August,  this is likely to be the highest priority project.  The Case Filing Division is in charge.
  2. Regulations on pre-filing property protection provisional measures (关于办理诉前财产保全案件适用法律若干问题的解释 ), a type of pre-filing injunction.  These regulations are for non-intellectual property (IP) cases, as item 18 below addresses provisional measures in IP cases (in which a great deal of interest exists in the intellectual property rights community, as these order can affect a company’s business). The Case Filing Division is in charge.  These regulations could benefit from some market input.
  3. Interpretation with the Supreme People’s Procuratorate on the Handling of Cases of Corruption and Bribery (II), likely updating the 2016 interpretation to reflect the establishment and operation of the National Supervisory Commission and addressing issues that have arisen in practice.  Issues to be covered likely include ones discussed in issued #106 of Reference to Criminal Trial (the journal of the SPC’s five criminal divisions, mentioned here) .  The #3 Criminal Division is in charge of drafting, but it is likely that the supervision commission will be/is one of the institutions providing input.  As I have mentioned earlier, the SPC generally does not solicit public opinion when drafting criminal law judicial interpretations.
  4. Judicial interpretation on the handling of criminal cases of securities and futures market manipulation.  This is linked to the government’s crackdown on abuses in the financial sector (see this report on the increase in regulatory actions) and is linked to last summer’s Financial Work Conference. The #3 Criminal Division is responsible.  It is likely the China Securities Regulatory Commission will provide input during the drafting process.
  5. Judicial interpretation on the handling of cases involving the use of non-public information for trading (Article 180 of the Criminal Law). Guiding case #61 involved  this crime.  It is likely that the principle from the guiding case will be incorporated into this judicial interpretation, as frequently occurs.  Again linked to the crackdown on the financial sector and again, it is a task for the #3 Criminal Division.
  6. Judicial interpretation on the handling of underground banking (地下钱庄) cases.  Large amounts of money are being whisked out of China unofficially.  Linked again to the crackdown on the financial sector as well efforts to slow the outflow of funds from China, and likely the People’s Bank of Chin.  Again, a task for the #3 Criminal Division.
  7. Interpretation on challenges to enforcement procedures in civil cases, related to the campaign to basically resolve enforcement difficulties within two to three years.  Drafting this is a task for the #1 Civil Division.
  8. Interpretation on evidence in civil procedure.  Important for lawyers and litigants, domestic and foreign.  Drafting this is a task for the #1 Civil Division.
  9. Interpretation on civil cases involving food safety. Food safety is an area in which public interest cases are contemplated.  These cases have been politically sensitive.  Drafting this is a task for the #1 Civil Division.
  10. Interpretation on construction contracts (II). The initial interpretation dates back to 2004. These type of disputes generally involve a chain of interlocking contracts and often regulatory and labor issues. Some of the larger cases have been heard by the SPC. Drafting this is a task for the #1 Civil Division.
  11. Interpretation on the designation of bankruptcy administrators.  Issues surrounding bankruptcy administrators have been ongoing in the bankruptcy courts, as has been discussed in earlier blogposts. Drafting this is a task for the #2 Civil Division.
  12. Regulations on the consolidating the bankruptcy of company affiliates, again an area where regulation is insufficient, posing issues for bankruptcy judges (as has been discussed in earlier blogposts). Drafting this is a task for the #2 Civil Division.
  13. Regulations on the civil and commercial cases relating to bank cards.  The drafting of this interpretation has been underway for several years, with a draft issued for public comment in June.  There have been a large number of disputes in the courts involving bank cards.  Drafting this is a task for the #2 Civil Division.
  14. Interpretation on legal provisions relating to financial asset management companies acquiring, managing, and disposing of non-performing assets.  The legal infrastructure related to non-performing assets is inadequate, as has been pointed out by all participants, including judges. The Shenzhen Intermediate Court has run several symposia bringing together leading experts from the market.  Drafting this is a task for the #2 Civil Division.
  15. Interpretation on the trial of internet finance cases (civil aspects), as existing judicial interpretations inadequately address the issues facing the lower courts. Drafting this is a task for the #2 Civil Division.
  16. Judicial interpretation on the statute of limitations in the General Provisions of the Civil Code (just issued), which was the responsibility of the #1 and #2 Civil Divisions as well as the Research Office. The General Provisions changed the length of the statute of limitations.
  17. Judicial interpretation on administrative cases involving patent authorization and confirmation. It appears to be the counterpart in the patent area of a 2017 judicial interpretation relating to trademarks.  I look forward to “brother blogger” Mark Cohen’s further comments on this. Drafting this is a task for the #3 Civil Division.
  18. As mentioned above, pre-filing injunctions in intellectual property cases (知识产权纠纷诉前行为保全案件适用法律若干问题的解释 ), a type of pre-filing injunction.  There is great deal of interest in the intellectual property rights community concerning these injunctions, as these orders can affect a company’s business. I look forward to Mark Cohen’s further comments on this. Drafting this is a task for the #3 Civil Division.
  19. Regulations on issues relating to the International Commercial Court.  Those were the responsibility of the #4 Civil Division and the interpretation was issued at the end of June.  See the previous blogpost for further comments.
  20.  Regulations on the scope of environmental and natural resources cases, with drafting responsibility placed on the Environmental and Natural Resources Division. These relate to current government efforts to improve the environment.  I would anticipate that these would include provisions on cross-regional centralized jurisdiction, so that pressure from local government will be reduced. Several provinces have already introduced such guidelines.
  21. Interpretation on compensation for harm to the environment, also with drafting responsibility placed on the Environmental and Natural Resources Division.  This is related to an end 2017 Central Committee/State Council General Office document on reforming compensation for harm to the environment. Again, Drafting responsibility with the Environmental and Natural Resources Division.
  22. Regulations on the trial of administrative agreements.  There is a tension between the administrative and civil/commercial specialists, as reflected in the area of Public Private Partnerships  (PPPs)(see this earlier blogpost).  This has practical implications for both the domestic and foreign business community, as the government is seeking to expand the use of PPPs and avoid local government abuse of them.  Drafting responsibility with the Administrative Division and the Ministry of Finance is likely to be providing input.
  23. Regulations on administrative compensation cases, drafting responsibility with the Administrative Division.
  24. Interpretation related to agency issues in retrial (再审) cases.  With the many governance problems of Chinese companies, these issues frequently arise.  Drafting responsibility with the Judicial Supervision Division.
  25. Interpretation on the enforcement of notarized debt instruments.  Lenders often use this provision to seek more efficient enforcement.  This is related to the campaign to improve enforcement as well as government policy relating to the financial sector.  This research report by one of Beijing’s intermediate court shows that asset management companies are often the creditors and the large amounts of money are involved. Drafting responsibility with the Enforcement Bureau.
  26. Interpretation relating to the enforcement of cases involving company shareholding.  Given the complexities of shareholding in China, including the frequent use of nominee arrangements, these are difficult issues for judges to deal with.  See a recent presentation by one of the circuit court judges on this issue.  Drafting responsibility with the Enforcement Bureau.
  27.  Regulations on reference pricing when disposing of property.  This too is related to the enforcement campaign as well as efforts to clean up the enforcement divisions of the local courts by requiring more transparent procedures.
  28. Interpretation on the Handling of Cases of Crimes Disturbing the Administration of Credit Cards (II), updating the SPC’s 2009 interpretation, found here. Responsibility of the Research Office, which can coordinate with criminal divisions involved as well as interested authorities such as the China Banking Regulatory Commission.
  29. Interpretation on cases involving both civil and criminal issues.  This is a longstanding issue, and with the crackdown on the private lending sector, this has come to the fore.  Among the many issues include: if the defendant is criminally prosecuted first and assets are confiscated, how can affected borrowers or other parties  be compensated.  Drafting responsibility with the research office, likely involving several civil and criminal divisions.
  30. Regulations on the implementation of the People’s Assessors Law. As the law and the follow up SPC notice are too general for courts to implement, more detailed rules are needed.  The Political Department (it handles personnel related issues) and Research Office are involved in drafting.

See the next blogpost for a discussion of interpretation in the second and third categories.

 

 

 

Signals in Supreme People’s Court President Zhou Qiang’s 2018 report to NPC (part 2)

Screen Shot 2018-05-10 at 12.54.58 PMFor those with the ability (or at least the patience) to decode Supreme People’s Court (SPC) President Zhou Qiang’s March, 2018 report to the National People’s Congress, it provides insights into the Chinese courts, economy, and society, and of course politics.  This blogpost will address selected aspects of the second and third parts of the report because of competing time demands.

Report drafting

To most of the world, President Zhou Qiang’s reports to the National People’s Congress (NPC) differ little from year to year.  However to President Zhou Qiang and the team of people tasked with preparing a draft that would not be thrown back in their faces, the challenges in 2018 were more formidable than previously.  This year’s report needed to highlight the SPC’s achievements of the last five years, signal that its work in the next year is harmonized with the post-19th Party Congress New Era, and hit the right notes with NPC delegates, who have in the past voted against court reports in significant numbers.

According to this report, the drafting group, which started work in late October (after the 19th Party Congress),  and as anyone familiar with China today would expect, communicated through Wechat. The high stakes report meant that President Zhou Qiang summoned members for drafting sessions during the Chinese new year holiday. The group submitted 37 drafts to President Zhou Qiang and other senior leaders, and as this blog reported in previous years on this blog, senior court leaders traveled the country to seek the views of NPC delegates and many others.

This means (as I have written before, and I have discussed in greater detail in a forthcoming paper) that the statistics have been specially selected.

The summary below (part 2) is not comprehensive but provides some highlights. It signals that the work of the SPC is perfectly synchronized with national policy.

Judicial protection of human rights

The second section of the speech touched on correction and prevention of “mistaken cases,” a topic mentioned in previous NPC reports, and still an ongoing issue.  Over the past five years,  6747 criminal cases have been reopened and retried. Among the measures the report mentions is:

  • policy documents on preventing mistaken cases;
  • the courts implementing principles of evidence-based judgments; (note that China does not yet have detailed criminal evidence rules, but see Judge Yu Tongzhi‘s remarks at a high profile criminal evidence conference on 19-20 May for the latest thinking of the SPC’s criminal divisions)
  • “no conviction in case of doubt;” (most useful discussions of this are behind academic publishers’ paywalls);
  • strictly implementing the death penalty; (as mentioned in earlier blogposts, there have been calls within China to be more transparent on the numbers, but this  decision likely needs top-level clearance);
  • improving legal aid in criminal cases, piloting in some provinces (including Guangdong) full coverage at all levels; [note Art. 21 of these regulations reveal concern about lawyers stirring up troubles, with language similar to Ministry of Justice regulations (不得恶意炒作案件,对案件进行歪曲、有误导性的宣传和评论);

Courts serve economic policy goals

This section highlighted the SPC’s accomplishments in supporting national economic policy goals.  The statistics are all for the past five years. Many of these topics have been previously discussed on this blog:

  1. Commercial cases:  the Chinese courts heard 16,438,000 first instance cases (in the last five years), up almost 54%;
  2. the SPC promoted bankruptcy trials, including developing a national bankruptcy information platform (limited information available–related blogpost here); issued a policy document on transferring cases from enforcement proceedings to bankruptcy; dealt with zombie enterprises by hearing and closing 12,000 bankruptcy cases (over the last five years); issued a company law judicial interpretation; heard and closed 4,106.000 sales tcontracts and 1,320,000 real estate cases.
  3. The SPC served major economic strategies, through issuing 16 measures related to Chinese companies engaging in foreign trade and investment, and the Belt & Road. It established a coordination mechanism for the Beijing, Hebei, and Tianjin courts (blogpost here).  The northeastern courts have provided judicial services to the region’s rejuvenation (see previous blogposts on some of the many legal and social issues); Guangdong, Fujian, etc. courts have provided services to Free Trade Zones;
  4. In the area of finance-related cases, the courts have prevented and resolved financial risk (a concern of the day) by:
  • issuing a policy document on financial cases (post the 2017 Financial Work Conference, on the Monitor’s to-do list),
  • trying and closing 5,030,000 finance-related cases (including insurance, securities, and financial institution loans),
  • trying and closing 7,059,000 private lending cases, 152,000 internet finance cases;
  • struck at illegal fund-raising etc.  (no statistics).  Expect to see more cases in this area in 2018.

4. SPC has improved judicial protection of entrepreneur’s property rights by issuing 17 policy documents (the number may indicate the depth of the problem) (see related blogposts).

5. SPC has supported national innovation policy through issuing an outline on judicial intellectual property (IP) protection, hearing and closing 683,000 IP cases,  working on strategies to deal with the issue for both Chinese and foreign IP holders that in China, IP infringement is low cost but protecting IP rights is high cost, trying the Jordan case and the Huawei v. IDC case.

6.  In the area of environmental protection, the SPC has issued an interpretation on public interest litigation, and concluded 487,000 environmental civil cases, with 11,000 cases of compensation for ecological environmental damages, 1,383 cases of environmental public interest litigation initiated by the procuracy (one of my students is looking into this), and 252 environmental public interest litigation cases were filed by social organizations.

7. In foreign-related cases, the Chinese courts concluded 75,000 foreign-related commercial and civil cases (note they account for a tiny proportion of cases in the Chinese courts).  Although the SPC says that more and more foreign parties have agreed to settle disputes in the Chinese courts, Professor Vivienne Bath’s research has shown that foreign parties are often dragged into the Chinese courts because of principles in Chinese law leading to parallel proceedings.   The protection of “judicial sovereignty” has multiple implications (some explained in the linked article).  This year, after several years of drafting, the SPC has issued a set of three judicial interpretations on the judicial review of arbitration. Supporting the national strategy of increasing its maritime power, the Chinese courts have heard 72,000 maritime first instance cases.  The SPC describes the maritime courts as effectively safeguarding the country’s maritime security and judicial sovereignty.

9. On foreign judicial exchanges, the SPC has handled 15,000 international judicial assistance cases (in fact both Chinese and foreign practitioners complain about how long assistance takes); and the SPC has used international conferences to promote its international role, particularly vis a vis Belt & Road countries.

Signals in Supreme People’s Court President Zhou Qiang’s 2018 report to NPC (part 1)

Screen Shot 2018-05-10 at 12.54.58 PMFor those with the ability (or at least the patience) to decode Supreme People’s Court (SPC) President Zhou Qiang’s March, 2018 report to the National People’s Congress, it provides insights into the Chinese courts, economy, and society, and of course politics.  This blogpost will address selected aspects of the first part of the report because of competing time demands.

Report drafting

To most of the world, President Zhou Qiang’s reports to the National People’s Congress (NPC) differ little from year to year.  However to President Zhou Qiang and the team of people tasked with preparing a draft that would not be thrown back in their faces, the challenges in 2018 were more formidable than previously.  This year’s report needed to highlight the SPC’s achievements of the last five years, signal that its work in the next year is harmonized with the post-19th Party Congress New Era, and hit the right notes with NPC delegates, who have in the past voted against court reports in significant numbers.

According to this report, the drafting group, which started work in late October (after the 19th Party Congress),  and as anyone familiar with China today would expect, communicated through Wechat. The high stakes report meant that President Zhou Qiang summoned members for drafting sessions during the Chinese new year holiday. The group submitted 37 drafts to President Zhou Qiang and other senior leaders, and as this blog reported in previous years on this blog, senior court leaders traveled the country to seek the views of NPC delegates and many others.

This means (as I have written before, and I have discussed in greater detail in a forthcoming paper) that the statistics have been specially selected.

The summary below (part 1) is not comprehensive but provides some highlights.

Executive summary (SPC section)

The English language Xinhua report on Zhou Qiang report drew on the introductory section, which was an executive summary of the work of the courts in the last five years, but this section will focus on the summary of SPC’s accomplishments

The SPC heard about 82,383 cases and closed about 79,692 ones, up 60.6 percent and 58.8 percent over the previous five-year period respectively. Much of this caseload is attributable to the circuit courts. For those interested, SPC court hearings (that are being heard openly) are streamed or are saved in a video library on the SPC website: (http://tingshen.court.gov.cn/). (The Supreme People’s Monitor can be seen attending a hearing here).

As mentioned previously, some SPC proceedings, including capital punishment review  and review of lower court rulings not to enforce foreign or foreign-related arbitral awards, are not considered “court hearings.”)

According to a Xinhua report on 10 May, the six circuit courts of the Supreme People’s Court (SPC) accepted 2,922 (and concluded 1909) civil, administrative and criminal cases in the first three months of 2018, accounting for 67.2 percent of the total cases of these types accepted by the SPC.  It is possible to view circuit court hearings on-line on the SPC website.

A total of 8,355 petitions were handled by the circuit courts (in the first 3 months of 2018), accounting for 78.92 percent of petitions handled by the SPC. It is clear two of the goals of establishing the circuit courts (the SPC near your home (“家门口的最高法院”) are being achieved: 1)moving the hearing of many cases to the circuit courts; 2) moving the processing of most petitions to the circuit courts.  It is not clear from these statistics how many petitioners sought to petition the circuit courts (and SPC headquarters) –there are likely many more petitioners who visited than petitions accepted.  As was discussed earlier on this blog, the SPC is seeking to involve lawyers in the criminal petitioning (collateral appeals) process.

The SPC highlighted that in the past five years it had issued 119 judicial interpretations (some of which have been discussed on this blog, many translated by Chinalawtranslate.com) and issued 80 guiding cases (link to cases and analysis) (as Jeremy Daum has written, and Mark Cohen has also noted, the statistics show they are not often used by the courts), but did not release numbers on the other types of documents it had issued (this blog has discussed some of them) or the number of model cases or other cases issued by SPC divisions (this blog has recently focused on ones issued by the criminal divisions).

1. Criminal cases

As is usual, President Zhou Qiang discussed criminal cases first, the topics reflecting their political priority. A total of 6.07 million suspects were convicted in first instance trials of 5.49 million criminal cases. (During that period the Chinese courts heard almost 89 million cases, so criminal cases are clearly a small proportion of the cases heard.)

In keeping with the current political priorities, President Zhou Qiang said the courts “resolutely protect the nation’s political security, in particular the security of the state power and the political system.” Similar to last year, no statistics were given for the number of national security cases heard. He does mention the normative document the the SPC issued jointly with other authorities on religious extremism and terrorism (discussed here).

President Zhou Qiang then discusses corruption-related offenses, mentioning the  asset recovery interpretation discussed last year on this blog.  Thereafter he focuses on property and personal safety-related crimes, mentioning this year’s organized crime normative document (this blog discussed it earlier this year), as well as (among others) its accomplishments relating drug cases and medical violence.

He then discussed cases involving violence against women and children (130,000 cases over the past 5 years, food safety (42000) and environmental protection crimes (88,000), and telecommunications crime. Local court white papers have posted detailed statistics concerning many of these crimes (see a Ningbo court white paper on sexual assault cases against minors and a Shanghai district’s court white paper on environmental protection crimes).

In the concluding paragraph, President Zhou Qiang discusses SPC participation in comprehensive security management. President Zhou Qiang mentions implementing an additional responsibility system on judges of publicizing the law (普法).  This is further to a 2017 notice of the Central Committee and State Council’s General Offices Opinion on State Organs implementing “whoever enforces the law publicizes the law” law publicity responsibility system (关于实行国家机关“谁执法谁普法”普法责任制的意见) that imposes responsibility on state organs enforcing the law (administrative and justice) to publicize the law.  Judges are to use court documents, open hearings, circuit courts, streaming of court cases, and posting legal documents on-line to promote the use of cases to explain the law. It is clear that the SPC is taking the circuit court responsibility system seriously, as the SPC’s #2 Circuit Court has been posting a series of articles on its circuit visits around the Northeast (see here).  This adds somewhat to judges’ workload, but this type of responsibility is not as great a concern as the more general responsibility system.

 

 

 

 

Supreme People’s Court & the new campaign to “sweep away black & eliminate evil”

Screen Shot 2018-01-31 at 11.21.40 AMLast week, China announced the latest campaign to “sweep away black and eliminate evil,” saohei chu’e (扫黑除恶),“Concerning the Carrying Out of a Special Action to Sweep Away Black and Eliminate Evil” (关于开展扫黑除恶专项行动的通知) (full text not yet released) with Xinhua news reporting that it reflects it reflects the leadership’s  outlook on security and people-centered governance thought.  The Supreme People’s Court (SPC) is an integral part of the campaign and was one of the institutions (along with the Supreme People’s Procuratorate, Ministry of Public Security, and Ministry of Justice) that issued a guiding opinion (办理黑恶势力犯罪案件的指导意见) on how the campaign is to be carried out (text found here). As previously discussed on this blog (and in a forthcoming article), there is no transparency requirement for guiding opinions and other “judicial normative documents” that are not judicial interpretations.  What has been made transparent (in a quick dive into the Wechatosphere) is that the SPC is both clarifying the criminal law issues to the legal community and signalling through releasing typical cases and other actions that lower authorities should not use the campaign to confiscate the property of private entrepreneurs. But will other imperatives trump that signal?

  1. Clarifying the legal issues

Although the commentators in this Voice of America program weren’t aware of it, there is a body of (confusing) legislation, partially described in this book chapter (somewhat outdated).  The authoritative (because it is published by the five criminal divisions of the SPC)  Reference to Criminal Trial (刑事审判参考), had published a special issue (issue #107) on organized crime law last summer. (For those of us who read more quickly in English, the editors have helpfully compiled an English translation of the table of contents. (see below)

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In his 29 January Wechat posting on his 说刑品案 (“Speak About Criminal Law, Evaluate Cases”) Wechat account, its editor, Judge Yu Tongzhi (于同志), a judge in the #2 Criminal Division and one of the editors of Reference to Criminal Trial, set out 20 Q & A’s with guidance on the legal issues (derived from last summer’s issue).

Judge Yu described the posting as to “coordinate” (配合) with this campaign, but is the author’s way of saying that the law on these issues is confusing and all involved, whether they are judges, prosecutors, public security or defense lawyers need an authoritative steer through the forest of law, judicial interpretations, and other guidance.   As is apparent from the photo above, the guidance includes a 2015 conference summary on organized crime, guiding cases (指导案例)(not to confused with those guiding cases (指导性案例 issued by the SPC itself), authoritative commentary on the 2015 conference summary, major cases, and discussions by judges of difficult legal issues. The guidance posted often illustrates answers with examples from the guiding cases and cautions that standards should not be improperly expanded, such as the definition of a “gang member.”  He does not include a summary of the law on property seizure, the subject of one of the articles in issue #107.

Some of the organized crime legal issues are analogous to those in other jurisdictions and last year one of the SPC websites published a long article analyzing this area of law (and its problems), suggesting that China look to US RICO legislation.

The first of the 20 questions is:

  1. What’s the connection between the 2015 and 2009  conference summaries on organized crime?

Don’t be surprised if you haven’t heard of either conference summary, as neither one seems to have been incorporated in any of the major translation databases.  As to what conference summaries are, Conference summaries are what the SPC entitles “judicial normative documents”  (there are a number of titles for these) and often address new issues or areas of law in which the law is not settled.   “Conference summaries” are also a form of Communist Party/government document.

The relationship is addressed in the article on the application of the 2015 conference summary by several heads of SPC criminal divisions in issue #107.  Their view is that the two conference summaries should be read together, which the later one taken as an elaboration of the first, with newer provisions superseding the older ones.

The campaign & private entrepreneurs

The second signal that the SPC is sending is that the “sweep away black and eliminate evil” campaign should not be used to abuse private entrepreneurs.  On 30 January, the SPC issued seven typical cases on protecting private property rights and the rights of entrepreneurs, one of which involves a case that occurred during the 2008 “strike black” campaign.  As summarized in China Daily,  the Liaoning Public Security Department arrested Liu Hua and Liu Jie in a 2008 criminal investigation and seized 20 million yuan (about 3.16 million U.S. dollars) in funds from their company, Beipeng Real Estate Development Co. Ltd. in Shenyang. In 2014, a local court in Benxi convicted the two and the company of illegal occupation of farmland but exempted them from criminal punishment. Liaoning Public Security refused to return the seized funds and related financial documents were not returned.  SPC Vice President Tao Kaiyuan SPC Vice President Tao Kaiyuan acted as the chief judge, and the SPC’s State Compensation Committee ruled the Liaoning Public Security Department should return the funds with  interest. Judge Hu Yunteng and the  #2 Circuit Court  were involved in this as well. Company counsel’s detailed account of this case (highly recommended!) found here. Judge Zhu Heqing, Deputy head of the #3 Criminal Division, discussed in the article mentioned above in #107 the problems with the law and practice of property seizures, such as the lack of a definition of “organized crime related property” (涉黑财物) and related seizure procedures, as well as the lack of procedures to require the return of property improperly seized.

Some thoughts

As the document on implementing this campaign has not been released, we cannot know whether it includes performance targets that will lead local authorities to “round the usual suspects up.” What is apparent from the Wechat posting and much more from issue #107, is that the law is this area is unclear, lacks procedures for protecting the property of the entities involved (not to mention the entrepreneurs), and can be easily abused by local authorities.  As we know from the case above and other cases, entrepreneurs will then spend years seeking the return of their property.  The SPC must coordinate with this latest campaign while protecting the rights of entrepreneurs, and avoid a new set of mistaken cases.

 

 

 

 

Supreme People’s Court & Supreme Court Justice Roberts’ 2017 year-end report

download-2Chief Justice John Roberts of the United States Supreme Court may be surprised to learn that a translated version of his 2017 year-end report on the federal courts was recently published by the People’s Court Daily, as it has been for the past twelve years. It was republished by Wechat and Weibo sites affiliated with the Supreme People’s Court (SPC) and other prominent Wechat public accounts and legal websites. What significance does the report have?

The translators that bring the year-end reports to Chinese readers are Mr. Huang Bin (formerly of the SPC’s China Institute of Applied Jurisprudence and now of the National Judicial College, a former Yale Law School visiting scholar) and Ms. Yang Yi (China Institute of Applied Jurisprudence, a former Columbia Law School visiting scholar).

Two subjects in Justice Roberts’ 2017 report are likely to resonate with Chinese readers. The first is how the federal courts dealt with national disasters in 2017 (introductory comments in some of the Wechat versions mention that China has only scattered legislative provisions related to emergency measures for the courts). The second is sexual harassment and Justice Roberts’ request to the Director of the Administrative Office of the United States Courts to organize a working group to review the code of conduct for the federal judiciary, guidance to employees on issues of confidentiality and reporting of instances of misconduct, and rules for investigating and processing misconduct complaints.

The #Metoo movement has not yet explicitly affected the Chinese courts. However, it is likely that Chief Justice Roberts’ acknowledgment that existing rules and structures for dealing with sexual harassment complaints are inadequate that resonates with Chinese women judges and judicial support staff, who make an increasingly large percentage of the Chinese judiciary. It seems likely (confirmed by discrete inquiries) that sexual harassment occurs in Chinese courts as well.

More broadly, what relevance does Justice Robert’s report and others on the US federal and state judiciary have for the Chinese judiciary after the 19th Party Congress, when in October, 2017 Communist Party Central Committee policy on the training of judges and prosecutors lists first resolutely opposing erosion by the mistaken Western rule of law viewpoint” (坚决抵制西方错误法治观点侵蚀)? To the careful observer, the publication of these reports and other articles on specific issues in SPC publications means that the senior and lower levels of the Chinese courts have an ongoing interest in what the US federal and state courts are doing and look to commonalities and takeaways (despite the vast differences in the two systems).

Another example of the Chinese courts looking to commonalities with the US courts occurred earlier this month (January) when the China Institute of Applied Jurisprudence published a Chinese summary of the National Center for State Courts’ 2017 survey on public confidence in the state courts. The article appears to be a republication of an article previously published internally and reflects the concern of the Chinese judiciary with public trust.

The takeaways, that is referring to or borrowing foreign legal concepts or models to reform China’s judicial system remains politically sensitive. In Party General Secretary and President Xi Jinping’s 19th Party Congress speech, he called for the continuation of judicial reform:

We will carry out comprehensive and integrated reform of the judicial system and enforce judicial accountability in all respects, so that the people can see in every judicial case that justice is served.

 Earlier in 2017, when visiting the China University of Political Science and Law, Xi Jinping cautioned that Chinese legal reform does not mean wholesale adoption of foreign law and institutions:

China shall actively absorb and refer to successful legal practices worldwide, but they must be filtered, they must be selectively absorbed and transformed, they may not be swallowed whole and copied (对世界上的优秀法治文明成果,要积极吸收借鉴,也要加以甄别,有选择地吸收和转化,不能囫囵吞枣、照搬照抄).

What a careful observer notices from monitoring SPC media is that those involved with reform of discrete areas of Chinese legislation and judicial practice continue (in the pre/post 19th Party Congress era) to look at US federal/state law (and other foreign law) structures and practices, including: use of mediation in federal appeals cases; bankruptcy practicereform of Chinese nuclear safety legislation to broaden the scope of information released to the public, that is in specific areas that do not involve basic principles of the Chinese courts.

 

 

 

Judicial reform post-19th Party Congress

 

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Judge Jiang speaking at an academic conference

 

Senior Judge Jiang Huiling heads the Supreme People’s Court (SPC)’s China Institute of Applied Jurisprudence (the Institute). He recently published two articles in the Chinese legal and professional press (the first of which was published in the Central Political-Legal Committee’s (authoritative) Legal Daily) signaling the phraseology and goals for judicial reform after the 19th Party Congress. As the operation of the Chinese judiciary has an important impact both domestically and internationally (as well as in greater China), post-19th Party Congress judicial reform goals are important.

For those who are not familiar with the Institute, it is the SPC’s in-house think tank. The Institute works on a broad variety of issues, particularly those linked with judicial reforms. Like think tanks elsewhere in the world, the Institute trains post-doctorate fellows and has its own staff. Judge Jiang is among a group of senior judges at the SPC who combines an international perspective (he studied at the University of Montreal, and has been a visiting scholar at Yale Law School, University of Sydney, and Academia Sinica) with profound experience in and understanding about the Chinese court system and how it can be reformed, given its complex bureaucratic nature and the environment in which it operates.

From his articles, it is clear that the new phraseology is “deepen the reform of the judicial system with comprehensive integrated reforms” (深化司法体制改革综合配套改革). The language is found deep in Xi Jinping’s 19th Communist Party Congress Report.

Background for these further reforms

Judge Jiang mentioned that during the summer of 2017, the senior political leadership approved further judicial reform measures (including written instructions from Xi Jinping to the Central Political-Legal Committee, designating Shanghai to take the lead in piloting them, initiating a series of reforms from early November. The Outline of the 4th Five Year Judicial Reform Plan required Central approval for major reforms, so this approval should not be surprising.  The beginning of this round of judicial reforms was also first piloted in Shanghai, so piloting these further reforms in Shanghai (as further described in this report) is also to be expected and it seems likely that piloting of reforms will continue in other places.

Eleven further reforms & some comments

Judge Jiang sees these further reforms as intended to implement the previous judicial reforms and classifies them into eleven broad areas.  The SPC has undertaken research (designating lower courts to do so) in many of these areas (with the results to be released to the public in some form).  It appears that those designing judicial reforms have realized that many judicial reforms are linked to deeper issues relating to the Chinese system.

I summarize Judge Jiang’s list and add some of my own comments or queries in italics (which should not be attributed to him):

  1. Optimize how judicial power is allocated within the courts, including the authority to adjudicate and to administer, splitting enforcement authority from hearing cases, allocating authority within offices/divisions of the court, and reallocate the functions of higher and lower courts.  The way that courts have been administered has for many years followed the (traditional) Party/state administrative model.  Some reforms have been implemented in recent years, but it is unclear how much will it be possible to change this, given long-standing patterns of interaction within a court and between higher and lower courts, as well as current incentives/performance indicators.  This appears to be linked to point 19, 24, and other provisions of the Outline of the 4th Five Year Judicial Reform Plan .
  2. Reform judicial administration–what should the model be–centralized administration by the SPC or local administration by each court?  Judge Jiang suggests China could consider models already in place outside of China. This is linked to point 62 of the Outline of the 4th Five Year Judicial Reform Plan. 
  3. Improve personnel administration, such as selection of judges, retirement, rotation of positions, discipline/punishment, retirement/resignation, education/training, headcount administration, internal institutions, etc.  The current model derives from the principle of “the Party manages cadres”  and is linked to basic aspects of the Chinese system such as the official ranking system (官本位) and hukou (户口).  Many of the matters mentioned (such as resignation, discipline, selection and headcount administration) are now controlled or operated by Party institutions–what flexibility will there be for the courts to innovate?  The judicial reforms do anticipate a separate career track for judges (and prosecutors), but it is apparent that the “devil is in the details.”  If there is to be cross-jurisdictional rotation of positions, what happens to the schooling of dependents and other practical matters linked with the hukou [household registration] system? An increasing number of legal professionals and judges are women. What impact would a cross-jurisdictional rotation of positions have on women judges? How can lawyers and others outside the system be fit into the official ranking system?  Under the current system, more senior judges are senior cadres, often less involved with hearing cases because of their administrative responsibilities.  Will later retirement for judges mean more judges in the courtroom?  The retirement issue has been under discussion for some years–see this 2015 blogpost for further background.
  4. Reform the system of how judges are “cultivated” (法官养成机制), in particular, look to the practice of other civil law jurisdictions (including Taiwan) in establishing a two year judicial training system, rather than the current practice of entirely selecting judges from within and having them learn on the job, and increase training for serving judges. He mentions improving the system of recruiting lawyers and law professors to the judiciary. (This is related to points 50 and 52 of the Outline of the 4th Five Year Judicial Reform Plan. The two-year training program proposal had been mentioned by Huang Yongwei, president of the National Judicial College, over two years ago.  It is linked to judicial education policy documents issued to implement the 4th Five Year Judicial Reform Outline, highlighted in this 2015 blogpost).  What might be the content of this training program?  From the previous policy documents we know it will include ideological, ethical, and professional training, but what will that mean in practice?  There have been ongoing exchanges between the Chinese judiciary and the Singapore Judicial College–  will the “beneficial experience” of Chinese judges in Singapore have any effect on the Chinese model?
  5. Improve judicial evaluation, i.e. benchmarking of how the Chinese judiciary is doing.  Judge Jiang suggests looking to domestic analytical frameworks (by the China Academy of Social Sciences and others), as well as international ones, including the Global Framework for Court Excellence and the World Justice Project,  but says there are issues with data and disconnect with Chinese judicial reality.  This relates to point 51 and others in the 4th Five Year Judicial Reform Plan. Benchmarking judicial performance remains an ongoing issue, with most Chinese courts in campaign mode to achieve high case closing rates in the run-up to the New Year.
  6. Better use of technology in the judiciary, not only big data but also use of electronic files, judicial “artificial intelligence.” For lawyers involved in cross-border cases, query when this will also imply the use of apostilles rather than the current system of notarization and consularization, as well as a more timely integration of other Chinese court procedures with those prevalent in the outside world. Pilot projects are underway in some areas regarding electronic files.
  7. Improve litigation, including “trial-centered criminal justice reforms,” pre-trial procedures, more detailed evidence rules, separating petitioning from litigation, and the use of people’s assessors. Creating a “trial-centered criminal justice system” at the same time that expedited procedures/Chinese style plea bargaining is being promoted raises many related issues as was recently discussed at a recent conference that I attended, and separating petitioning from litigation requires improvement of legal aid to the poor and better procedures for considering litigation-related petitions (see these earlier blogposts).
  8. Improve the use of diversified dispute resolution, to involve resources from other social and national resources and the market to resolve disputes, leaving only those most appropriate to be resolved by the courts. This relates to point 46 of the Outline of the 4th Five Year Judicial Reform Plan and related measures described in a 2016 SPC policy document, described here.
  9. Speed up the formation of a legal profession, including reform to legal education, examinations, etc., which Judge Jiang sees as long-term issues.  From my own observations in the courts, remarks by serving judges, practicing lawyers, and interactions with recent Chinese law school graduates, reforms to legal education are needed, as is some flexibility in the career path for Chinese legal academics, which stresses a Ph.D. and academic achievements, rather than any experience outside academia.
  10. Establish a rule of law (法治) culture and environment.  This, of course, is critical. However, the difficulty of doing so was most recently illustrated in the recent clearing of “low end population” from Beijing and related legal analysis (such as this article, originally published on a Chinese scholarly site.
  11. Improve judicial administration generally, including methods of enforcing the law, legislative drafting, etc.  Reforms of a grander scale appear to this observer to be difficult to implement, particularly at this stage.

Finally, Judge Jiang says these are the broad outlines of judicial reform, but they are subject to adjustment along the way.

 

 

 

 

Supreme People’s Court gears up for 19th Party Congress

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As the days count down to the 19th Party Congress, all Party/government institutions are preparing for it, including the Supreme People’s Court (SPC). On 19 September, the SPC issued an emergency notice (pictured above), calling on the lower courts to strengthening law enforcement work to provide a good judicial environment for the holding of the 19th Party Congress.  The SPC, as other Party/government institutions, issue emergency notices from time to time (here’s one from the Ministry of Education), generally linked to a politically significant event. The full text for the SPC notice hasn’t been released (or if it has, it has escaped me). It is meant to send signals to the SPC staff and to the lower courts.

Some of the signals:

  • improve performance indicator systems (indicating too many courts still have dysfunctional performance indicators);
  • handle more cases, handle them well, handle them quickly (多办案、办好案、快办案, language better suited to the factory floor);
  • ensure that the goal of having  difficulties in enforcement basically resolved in three years is achieved (again….);
  • clear up those unresolved cases (要抓好长期未结案件清理,确保依法妥善清理案件)–this is being taken seriously by court leaders, again judges (and their clerks, assistants and interns). The PhDs (and Master’s degree holders) praised by the SPC may feel they are somewhere between a model production worker and a real judge (or clerk.). (Of the SPC quota judges, about 1/3 have PhDs, with over half holding a master’s degree), and PhDs are not unusual in the lower courts, at least in major cities.)  An unscientific survey shows judges and their support staff doing more overtime during the pre-19th Party Congress and pre-Golden Week holiday to meet this target;
  • reminds the lower courts about the case registration reform and reminds judges that cases should be accepted, even towards year end, when courts are concerned about their case closing numbers, especially the number of cases that will be carried over to the next year, and warns them against reporting false closing statistics  (坚决杜绝人为抬高立案门槛、拖延立案、年底前提前关门不收案等突出问题), (切实防止虚假报结、强迫撤诉);
  • reminds courts about another important but controversial judicial reform, implementing the judicial responsibility system (insightful analysis and research from within the courts on this is coming out, see this recent article in the National Judicial College’s journal);
  • it reminds judges of ways to deal with the increase and cases and reduction in headcount–use diversified dispute resolution, separate simple from complicated cases, and try similar cases together.

The SPC released some year to date (end August) statistics (I’m drilling down on the state of transparency in this area)–close to 16 million newly accepted cases (15.89 million), no breakdown on how cases are categorized, closed cases up to 12.67 million (up 15.7%). This indicates continued high pressure on first instance judges and their assistants. I’m awaiting data on what the vortex of reforms means for retaining high quality judges.

 

 

Supreme People’s Court ramps up its judicial responsibility system

Screen Shot 2017-08-12 at 7.04.09 AMIn April of this year (2017), the Supreme People’s Court (SPC) issued its judicial responsibility guidelines.  At the end of July, the SPC issued a 73 article implementing opinion (最高人民法院司法责任制实施意见(试行)(Implementing Opinion), which went into effect on 1 August 2017.  There have been many summary reports in the legal press, but the full text was not found until 11 August. 2017 It has since been published by several Wechat accounts, but as of this writing, no official text has been issued.  The policy basis for the responsibility system links back to the 3rd and 4th Plenum Decisions. Senior Party leadership (the Central Leading Group for Comprehensively Deepening Reforms) approved the SPC’s responsibility system.

The document establishes operating rules for the SPC  after this latest round of court reforms, and therefore sets guidelines for the lower courts. It can be expected that the lower courts will issue corresponding documents. Through the Implementing Opinion, it is possible to see how much autonomy an individual judge/three judge panel has and what matters require approval by senior SPC leaders.

Opinions (as this blog has previously explained) are not judicial interpretations but a type of judicial normative document.   A recent Wechat post by an SPC commercial subsidiary, Faxin (法信), described them as judicial guiding documents (司法指导性文件). That is the terminology being used for them in a series of books published by the People’s Court Press. Inconsistent legal terminology is not a new phenomenon.

The basic principles of the Implementing Opinion are said to implement central authorities’ requirements, let those who hear cases bear responsibility, clarify how cases are to be dealt with and put in place the Party group’s responsibility for enforcement (the phrase “Party group” actually is mentioned three times) and case handling. It appears that some provisions memorialize current practice, while others set out new rules.

The  Implementing Opinion specifies roles of different personnel and institutions within the SPC such as the court president (and vice presidents), heads of divisions, professional judges committee, judicial committee, presiding judges, judges in charge of cases, clerks, and judicial assistants. It provides guidelines on how cases are to dealt with, from case acceptance, random case assignment, to issuing decisions.

The Implementing Opinion includes the following (selected) provisions:

  • Details on staffing for judges (one assistant and one clerk in the circuit courts, and some assistants and clerks at headquarters) (Article 3);
  • those with a leadership role (President/vice president/vice/heads of divisions) should generally be the presiding judge (Article 5), while the judges in collegial panels should change every 2-5 years;
  • leaders need to hear cases, that are difficult/important/guiding, etc., but specialists are designated to assist them (Article 7);
  • rules on who will issue judgments, mentioning that the president of the SPC signs the  order for the implementation of the death penalty (this was understood to be the case already)(Article 11);
  • court leaders may not give oral/written instructions concerning a case (except as otherwise provided (i.e. cases that are considered by the judicial committee)(Article 12);
  • responsibilities of professional judges committees (a committee put into place under the judicial reforms); judicial committee (can be split into specialist civil, criminal, enforcement subcommittees) (role said to have narrowed, but include major/difficult cases affecting national interests & social stability, but also other non-case related duties such as approving judicial interpretations/judicial normative documents, etc., the judicial committees requires  views be stated in the judgment (Articles 16-19);
  • the basic rule is random case assignment, with exceptions for major/difficult cases (Article 26-27), with electronic service of process & documents if agreed (Article 32);
  • basic rule is online broadcast of SPC court hearings, unless approved by leaders otherwise (Article 33), with requirements concerning the posting of rulings/judgments and other transparency requirements mentioned in the document;
  • circuit courts are prohibited (in general) from considering requests for instructions (the rule makes sense–it would defeat one of the purposes of having circuit courts (Article 25, this is an example);
  •  Articles 41-43 relate to precedent case review (as suggested in my recent article) and require approval by leaders if the ruling in a case will be inconsistent with prior SPC rulings on the topic (this has been criticized as being inconsistent with judicial autonomy). Approval is required in several other situations, see Article 40 (2-4));
  • Articles 46-50 set forth rules for a collegiate panel to consider a case and submit it to the division leadership/professional judges committee/judicial committee;
  • Article 51 requires the judge responsible for the case (承办法官) to draft the decision reached according to the majority view, indicating that the role of responsible judge has administrative overtones. If not so, the judgment would be drafted by one of the judges who agreed with the majority view.
  • Article 58 retains existing special procedures (including special standards for transparency) for certain criminal cases, such as death penalty cases, cases involving foreigners, overseas Chinese, Hong Kong, Macau, and Taiwanese Chinese.
  • Article 61 provides the Central Commission for Discipline Inspection (CCDI) representative stationed at the SPC can be a member of the judicial committee (this seems to be analogous to the procedure under law under which a representative from the procuratorate can take part in judicial committee meetings). Additionally, anti-corruption officials stationed in each division can participate in professional judges committee meetings and collegiate panel discussions.   Article 61 does not require their views to be adopted.  It could be that their views are considered more seriously if discussions relate to matters regarding which they are competent.
  • Article 64 requires certain types of cases to be submitted for approval to higher levels of the SPC, including cases involving mass incidents, that will have an effect on social stability; difficult and complicated cases that will have a major effect on society; cases that will conflict with prior SPC cases; those that indicate the judge violated the law; death penalty review, major criminal cases, cases involving requests for instructions involving foreigners, overseas Chinese, Hong Kong, Macau, Taiwanese Chinese.

The vision for the reformed SPC remains a court with administrative characteristics (官本位), with concepts derived from other jurisdictions (judge’s assistant would be an example), that enables Party guidance in sensitive cases and its operations to reflect changes in Party/government policy (serving the actual situation), but seeks to be a more professional and accessible institution, hearing cases in a professional manner. It can be surmised that certain provisions from the Implementing Opinion will be incorporated into the revisions of the Organizational Law of the People’s Courts currently being drafted.

 

 

Forthcoming individual bankruptcy legislation revealed in letter to President Zhou Qiang’s mailbox

Screen Shot 2017-07-27 at 12.48.54 PMMost readers of this blog are unlikely to know that the Supreme People’s Court (SPC) publishes on its website responses to selected letters to President Zhou Qiang that make suggestions and give opinions. In a July 11 response, the SPC revealed that individual bankruptcy legislation is on its agenda. As I suggest below, actual legislation is likely to come later.

The letter said:

Dear Mr. Pan Dingxin:

We received your proposal, and after consideration, we respond as follows:

establishing and implementing an individual bankruptcy system is beneficial for those individuals or households who have fallen into serious financial distress to exempt some of their debts and enable them again through their hard work to achieve normal business and living conditions. Because of this, it has an important function to protect individuals and households that have fallen into financial difficulties. However an individual bankruptcy system relates to the establishment and improvement of an individual credit system and commercialization of commercial banks or their further marketization and other factors.  At the same time, the implementation of an individual bankruptcy system requires the National People’s Congress or its Standing Committee to legislate. We believe that with development and improvement of the socialist market economic, the National People’s Congress or its Standing Committee will promulgate an individual bankruptcy law on the basis of the experience with the “PRC Enterprise Bankruptcy Law.” The Supreme People’s Court will definitely actively support the work of the relevant departments of the state, and promote the implementation of an individual bankruptcy system.

Thank you for your support of the work of the Supreme People’s Court!

Supreme People’s Court

June 15, 2017

Screen Shot 2017-07-22 at 9.37.15 PM Few are aware that Shenzhen has been working on draft individual bankruptcy legislation for several years now, looking to Hong Kong’s experience and legislation, described in a recent report as a “complete” individual bankruptcy system (“完善的个人破产制度”).  The process has been going on for so long that the team (designated by the local people’s congress and lawyers association) and headed by a Shenzhen law firm partner published a book one year ago with its proposed draft and explanations.

Although Professor Tian Feilong of Beihang University’s Law School has been recently widely quoted for his statement about Hong Kong’s legal system undergoing “nationalisation,”  this is an example, known to those closer to the the world of practice, that Hong Kong’s legal system is also seen as a source of legal concepts and systems that can possibly be borrowed.  The drafting team looked at Hong Kong (among other jurisdictions) and others in China have proposed the same as well.

Shenzhen’s municipal intermediate court has completed an (award-winning) study on judicial aspects of individual bankruptcy shared with the relevant judges at the SPC.

If recent practice is any guide, individual bankruptcy legislation will be piloted in Shenzhen and other regions before  nationwide legislation is proposed, and it will be possible to observe the possible interaction between those rules and the government’s social credit system. So national individual bankruptcy legislation appears to be some years off.

As to why the SPC has a letter to the court president function, the answer is on the SPC website: it is to further develop the mass education and practice campaign (mentioned in this blogpost four years ago) and listen to the opinions and suggestions of all parts of society (the masses).  Listening to the opinion and suggestions of society are also required of him as a senior Party leader, by recently updated regulations. The regulations are the latest expression of long-standing Party principles.

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Welcome to the “Court President’s Mailbox”