In the past year, the Supreme People’s Court (SPC) has issued several policy documents that contain the same phrase: serve the nation’s major strategy (服务国家重大战略). When SPC President Zhou Qiang gave his report to the National People’s Congress (NPC) in March, 2016, one section addressed this topic.
Provided service for the country’s major strategies. Issued opinions on the people’s courts providing judicial service and protection for the construction of One Belt, One Road, the development of coordinated development of Beijing-Tianjin, and Hebei, and the development of the Yangtze River Economic Belt, appropriately tried related cases, promoted the coordinated development of geographic areas.
What, if anything, does serving the country’s major strategies mean for the Chinese courts? This blogpost briefly looks at one of the policy documents cited by President Zhou Qiang to find out.
What are the documents?
The titles of these three are similar:
Opinion of the SPC on Providing Judicial Services and Guarantees for One Belt One Road (OBOR Opinion)最高人民法院关于人民法院为“一带一路”建设提供司法服务和保障的若干意见;
Opinion of the SPC on Providing Judicial Services and Guarantees for the Development of the Yangtze River Economic Belt (最高人民法院关于为长江经济带发展提供司法服务和保障的意见)(8 March 2016 )(Yangtze River Opinion); and
Opinion of the SPC on Providing Judicial Services and Guarantees for the Coordinated Development of the Beijing-Tianjin-Hebei Region 最高人民法院关于为京津冀协同发展提供司法服务和保障的意见 (18 February 2016)(Beijing/Tianjin/Hebei Opinion) .
What are the country’s major strategies?
A Rand Corporation report set out a definition of the fundamental purposes of China’s national strategy:
the fundamental purposes of China’s national strategy (guojia zhanlue) (1) to safeguard China’s national territory and sovereignty, (2) to guide national construction and social development, (3) to strengthen national power, and (4) to ensure continued national prosperity….China’s national strategic objectives (guojia zhanlue mubiao) constitute those fundamental strategic principles, concepts, and priorities guiding not only foreign and defense policy but also critical domestic realms concerned with national construction and internal order. These objectives include the attainment of great power status in the economic, technological, social, and military realms…, and the development or maintenance of capabilities to defend against any internal or external threats to China’s political stability, social order, national sovereignty, and territorial integrity.
Beijing/Tianjin/Hebei Opinion
It was drafted to support the Beijing/Tianjin/Hebei regional integration plan because the economic integration plan will “inevitably produce a large number of legal disputes, particularly trans-regional legal disputes.” The SPC research office seems to have taken the lead on drafting it, because its head appeared at the press conference to explain it.
The Opinion stresses the following types of cases, in the following order:
Criminal law: punish crimes that may effect social stability and regional integration: intellectual property rights infringement; embezzling corporate funds, illegal fund raising; market manipulation etc. (the priority crimes);
Commercial law: priority cases include those involving company relocation; regional logistics centers; relocation of regional markets, including leases, labor disputes; reorganization or bankruptcy of companies with outdated technology; construction of industrial parks and promotion of companies with high quality technology;
Cases involving people’s livelihood, particularly those involving public services, education, medical and health; social protections; promoting entrepreneurship, equal education, etc.
Cases involving financial innovation and safety: those include private lending, internet financing, protecting the rights and interests of creditors and financial consumers;
Expanding the protection of intellectual property:
Environmental cases: focus on environmental civil/commercial and administrative cases;
Focus on administrative cases related to regional development; and
Focus on major projects and construction projects related to regional integration.
The Beijing/Tianjin/Hebei Opinion also establishes greater coordination among the three courts, including a mechanism chaired by the SPC, exchange of judges, and calls for work on centralization of certain types of cases in certain court.
The Opinion calls for the lower courts to focus on the overall regional integration plan and promote the use of “diversified dispute resolution,” and pre-filing mediation, especially in policy-oriented, sensitive cases, where the local Party Committee, government, and other departments must be relied upon to resolve issues. ( 特别是对于政策性、敏感性强的案件，要紧紧依靠当地党委、政府及有关部门依法解决).
(The phrase “policy-oriented, sensitive case” was helpfully described by another judge as it is a concept used often within the Chinese judiciary. Although it is a not a formal legal term, it refers to the following categories of cases: those that affect a larger group of people than the parties involved; involve issues of widespread concern; require the adjustment of certain long-term government policies; and have political implications. Those include cases involving a large number of people, special groups (such as migrant workers, well-known enterprises, offshore entities), ones that can cause social conflict, including bankruptcy, labor disputes caused by restructuring, employee relocation compensation cases, land acquisition and resettlement compensation. Cases involving political, ethnic and religious issues are also included.)
Policy documents serving major government strategies
As a central government institution, the Court must do its part to support national major strategies. To inform the lower courts of the priority issues, projects, and matters, the SPC issues policy documents, which are the court system’s version of policy documents issued by other Party and state organs. Each of the three national major strategies raises a set of legal issues. Some of those legal issues are relevant to the function of the courts in hearing cases, while others relate to the function of the SPC as a “quasi-legislator,” as when it issues judicial interpretations. They often relate to forthcoming initiatives or sometimes long-term issues for the SPC, as in the case of the OBOR Opinion. However, these documents also signal that some issues, projects, and matters are more important than others, and ultimately does not contribute to public trust in the judiciary.
Some thanks in order
My thanks to a Hong Kong solicitor for criticizing the Hong Kong courts for lacking the “spirit of service” during a recent symposium on the mainland (bringing this issue to my attention) and a (mainland) academic for expressing to me his doubts that the SPC’s OBOR Document had any significance whatsoever.
On 29 April 2016, Supreme People’s Court (SPC) President Zhou Qiang, Vice President He Rong, and Xu Jiaxin, head of the SPC’s political department attended a nameplate unveiling ceremony at the Supreme People’s Court (SPC)’s branch of the Communist Party’s Central Party School at the National Judges College.
For those unfamiliar with the Party school system in China, the Central Party School (with local counterparts) is both think tank and indoctrination center for Party officials, “a furnace for tempering the Party spirit” (according to the Central Party school’s website) (for more, see thesearticles). According to press reports, the SPC has had a Party school since 1993 and has trained nearly 1000 officials. Under the Chinese political system, officials slated for promotion are generally required to attend Party school. Judge Xu pointed out that “the Party school must firmly uphold the basic principle of ‘the surname of Party schools is the Party,’ and ensure the political attributes of the political-legal institutions (机关党校要坚持“党校姓党”的根本原则，把握政法机关的政治属性). This is linked to a December, 2015 Politburo documentcalling for the strengthening of ideological and political education, and it is likely that the SPC issued a document implementing the Central Committee document (a report of the Supreme People’s Procuratorate one can be found here).
Does this take away from the SPC’s judicial education plans, announced last year, and analyzed here? Not really, as those plans prioritize ideological training. As one of China’s central political legal institutions, the SPC must implement the latest Party policies. Given the increased substantive demands on judges of the court reforms, the focus in judicial training still has to be on improved skills and substantive law training, as described in the five year judicial education plan. It seems fromreports, also, that the SPC’s Party school has its practical side, with study groups sent down to the basic level to research (and eventually report) on issues in the basic level courts, the judicial counterpart of some of what occurs in the Central Party School.
For many years, one of major issues for the Chinese court system has been that enforcing a judgment is difficult (there is scholarship on whether that is in fact the case). Supreme People’s Court (SPC) Justice Liu Guixiang, however, interviewed in January, 2016, noted that the number of cases involving unsatisfied judgments rose from 3.4 million in 2013 to 4.8 million in 2015 and said “The problem of some litigants escaping enforcement by transferring or hiding properties is still serious.”
For this reason, resolving difficulties in enforcement (执行难), one of the Chinese courts’ “three difficulties,” is one of the performance targets for the SPC’s judicial reforms. The 4th Five Year Court Reform Plan calls for “establishing a legal system for credit supervision, deterrence and punishment of those not fulfilling judgments against them.” The document analyzed in this blogpost fulfils that performance target and is an important building block in the construction of China’s social credit credit system.
The document analyzed is a long memorandum of understanding (MOU) concluded by the SPC and 43 other central institutions and issued in late January, 2016. It is not the first time that Chinese government institutions have used MOUs, but it appears to be the largest one of its type. The document builds on previous work by the SPC in linking its judgment debtor database with other regulators, described in an earlier blogpost. It appears that the SPC’s Enforcement Bureau, headed by Justice Liu Guixiang, head of the #1 Circuit Court, took the lead in negotiating it. He provides more background on the SPC’s enforcement efforts in this interview.
This (much longer than usual) blogpost looks at what entities are a party to the MOU, what type of document it is, what it does, and one report on how it is being implemented and issues that it raises.
44 Institutions
The 44 cooperating institutions include government, Communist Party institutions, a public institution, and a government controlled non-profit organization, listed below in the same order as the document itself:
This document was issued in the form of a two page notice by 44 institutions to provincial governments and authorities, giving the policy basis, including a 2005 Central Political Legal Committee document linked here as well as the recent Plenums and other documents. It has four pages of chops (seals) of those institutions, attaching a ten page MOU and almost 40 page appendix (where the bulk of the content is).
It appears to be the first time (or at least one of the first times) that a large group of central Party-state institutions has concluded an MOU. It shows that despite ongoing criticism of Western rule of law concepts, the Chinese Communist Party and Chinese government finds it useful to borrow some of them for its own uses.
Like the commercial version with which many of us are more familiar, this MOU is an agreement between the SPC, SPP, and regulatory bodies–in this case government, Party, dual purpose (entities that are both Party and state) organizations, an important SOE, and several public institutions. Some questions about this practice will be discussed below.
Using MOUs to do so seems to be borrowed from the United States (other jurisdictions use them, too, but among regulators or between courts), and is being used for the same reasons that US federal government agencies do (and apparently without an explicit statutory basis). as described in excerpts from this 2012 report by the US Administrative Conference by two professors, one from Harvard Law School and Vanderbilt University Law School (follow-up recommendations found here):
A typical MOU assigns responsibility for specific tasks, establishes procedures,
and binds the agencies to fulfill mutual commitments. These
agreements resemble contracts, yet they are generally unenforceable
and unreviewable by courts…Nevertheless, there appears to be no generally applicable
statutory or executive branch policy regarding the use of MOUs, leaving
their content largely to the discretion of the agencies.
Agencies sign MOUs for a variety of purposes, including (1) delineating jurisdictional lines, (2) establishing procedures for information sharing or information production, (3) agreeing to collaborate in a common mission, (4) coordinating reviews or approvals where more than one agency has authority to act in a particular substantive area, and (5) in rarer cases (and potentially subject to additional procedures under the Administrative Procedure Act (APA)) agreeing on substantive policy. Their content varies widely. Some MOUs are quite detailed, although they tend to be short documents, often less than ten pages. MOUs may specify goals, assign responsibilities, establish metrics, commit personnel and funding, and establish responsibility for oversight. Some include deadlines for revisiting and updating the agreement. Others are more like framework documents that outline principles and leave more detailed elaboration to subsequent agreements or “implementing arrangements.”
This Chinese MOU is for reasons (1), (2), and (3). There is no dispute resolution clause (unlike most commercial MOUs) and in this case the SPC is one of the parties. Chinese public policy and legalacademic literature, with the occasional article in the official press has promoted the use of MOUs as a useful tool for coordination by government agencies (i.e., getting them on the same page). In fact, a number of them can be seen on the regional level, such as a recent one coordinating the tax authorities of Beijing, Tianjin, and Hebei.
It provides for information sharing and joint implementation of penalty measures. Regarding privacy issues, it requires record keeping of users, operators, and visitors, and the establishment of necessary technical measures to protect the data security of sensitive crucial information and prevent unauthorized operations.
Information sharing and joint implementation of penalty measures
The MOU commits all those other institutions to use their authority to implement sanctions against judgment debtors, both individuals and entities, as set out on the SPC’s lists of judgment debtors, which the SPC will update regularly. These institutions are obligated to issue provisions to implement the agreed upon measures to their bureaucratic subordinates. The measures that the institutions are implementing are not new ones, as the appendix makes clear. The NDRC commits to operating the social credit platform, Credit China, linked here. All the other government departments and entities commit to enforcing or coordinating the enforcement of the penalty measures through their regulatory systems to reporting to the NDRC and SPC quarterly through the social credit platform.
Measures
Most of the MOU sets out an outline of the measures and the entities responsible for implementing them.
It requires each entity and provincial level government to issue implementing regulations. This spring has seen some regulations issued at the provincial level to implement the MOU, but few regulations seem to have been issued on the regulatory level.
Legal analysis and reality check
A Hubei judge set out his analysis of the legality of restricting high consumption by judgment debtors and a reality check on how the system is working in an article published in late April in People’s Court Daily. He said it raises jurisprudential questions, because the Constitution protects a citizen’s personal and property rights, and those constitutional rights include consumption rights. The Legislation Law provides that limits on a citizen’s personal freedom, which restrictions on high consumption can be considered to be, can only be set out in national law and interpretations of national law by the SPC.
On the topic of the operation of the system, the judge mentions that the system is only in place for a number of economically advanced areas, but is not in place nationally, and in some areas, although the system is on place at the top-level, it is not implemented at the district level. It is in place for the banks and transportation, but not yet for other authorities such as the industrial and commercial, educational, and travel authorities. How to link local systems with the national system is a problem not yet resolved.
Some comments and questions
A few comments and questions come to mind. It seems likely that the issuance of this document was approved by the political leadership at a high level, such as the Central Leading Group for Deepening Overall Reform. This document does not appear to have sparked much public discourse in China, but that may be because many members of the legal community, many of whom are Communist Party members, may be concerned about improperly discussing Central policy ((妄议中央), as discussed in this earlier blogpost.
What is the status of this document under Chinese law? An MOU is not one of the types documents mentioned by the SPC’s regulations on documents or on judicial interpretations, unless it can be said to be covered by Article 9 of the former regulations (setting out the principal types of documents, which may imply that other ones may also be issued (人民法院公文的种类主要有). That being said, the SPC has been signing MOUs with courtsoutside of mainland China for many years, and a report of the SPC entering into an MOU can be found from 2013, also relating to enforcement of judgments, so it seems clear the SPC takes the view that it has the inherent authority to conclude them. Is it binding on the lower courts? It appears to be the case, from the reports on the document in lower court websites. Can lower courts conclude MOUs with their counterparts at the local level? It is also unclear.
What are the domestic and international implications of the SPC and 43 other government/Party institutions concluding this MOU? How is this to be understood by Chinese and foreign legal professionals, and the Chinese and foreign public? Does it have any implications for China’s obligations under the WTO, of China establishing, or designating, and maintaining tribunals, contact points and procedures for the prompt review of all administrative actions relating to the implementation of laws, regulations, judicial decisions and administrative rulings of general application…which shall be impartial and independent of the agency entrusted with administrative enforcement (emphasis added) and shall not have any substantial interest in the outcome of the matter? What implications does this document have for China’s bilateral investment treaty (BIT) negotiations with the United States and the European Union? The US model BIT (as is usual) includes an obligation of fair and equitable treatment of covered investments and EU BITs contain similar language.
Other issues that this raises include–what procedural rights will individuals or entities have to challenge their designation as judgment debtors, and the penalty measures imposed upon them? What assurance would those individuals or entities have that their challenge would be heard fairly by the courts, if the SPC is a party to these arrangements?
Quick guide to the penalty measures
What follows is a rough summary of the MOU in table form. In the MOU, in a few instances, relevant institutions undertake to forbid judgment debtors (either individuals or entities) from the activities listed below, but generally it uses other words–“restrict” (限制) (which usually means forbid), “consider seriously” (审慎性参考), and review strictly (从严审核). How are front-line staff to implement “consider seriously” and “review seriously”?
Measures
Responsible entity
1. Approval for establishing securities co., investment management co., futures co.; & registration of private investment fund—consider as factor/evidence
Restrict issuing bonds, acquiring listed co.
CSRC to implement restriction on acquiring listed co., NDRC re issuing bonds
2. Issuing securities on the interbank—review strictly
PBOC
3. Establishing a financing guarantee co.; restrict the appointment the appointment as a director, supervisor, or senior management of a financial institution
CBRC, CSRC, NDRC, CIRC, MIIT, MOF, MOC, PBOC, SAIC & other authorities with authority to approve appointments of financial institutions
4.Assist in reviewing information concerning govt. procurement & restricting participation in govt procurement
MOF
5. Restrict the establishment of insurance companies, purchase of high premium insurance products with cash value; restrict natural person & senior personnel, controller of a corporate judgment debtor from purchasing high premium insurance products
CIRC
6.Consider seriously when considering the approval of the establishment of commercial banks or branches, offices and the acquisition of partial or full shareholding of commercial banks
CBRC
7. Assist in suspending share option plans or terminate the ability of persons to exercise share options of domestic state controlled listed companies
SASAC, MOF
8. Consider seriously judgment debtor status in the approval or management of quotas for QDIIs and QFIIs
SAFE
9. When financial institutions consider financing/extending credit to a entity, consider whether it, or its legal representative, actual controller, director, supervisor, or senior management are judgment debtors, if so, approve strictly
CBRC, PBOC
10. Cooperate in restricting judgment debtors from applying for subsidy-type funds & social security funding support
NDRC, MOF, MHRSS, SASAC etc.
11. In implementing policies for favorable treatment in investment, tax, import/export, etc., review whether the institution, its legal representative, actual controller, director, supervisor, or senior management are judgment debtors; seriously consider in implementing these policies
NDRC, MOFCOM, Customs, SAT, AQSIQ
12. Focus & increase regulatory attention on judgment debtors & the legal representatives, actual controllers, directors, supervisors, senior management of judgment debtors; increase random checks; impose administrative measures according to law/administrative regulations
Market and industrial regulators
13.For individual judgment debtors, restrict them from appointment to be a wholly state owned company director, supervisor, as well as a director or supervisor, or senior manager of a state-controlled company; for those already so serving, submit an opinion that the person should not continue to serve
SASAC, MOF etc
14. For individual judgment debtors, restrict them from being registered as the legal representative of a public institution
SCOPSR
15.Through Credit China website, make company credit information accessible to the public
NDRC & SAIC
16.Publicize to the public through the principal news websites information about judgment debtors
State Information Internet Office
17.Restrict the recruitment/hiring as civil servants or public institutions staff
Central Organizational Department, MHRSS, State Civil Service Administration
18.For those state organs, companies, public institutions, social organizations or their leaders, or members that are judgment debtors, forbid designation as a civilized unit or moral model or cancel such designation
Central Propaganda Department, Central Guidance Commission on Building Spiritual Civilization
19.Restrict from taking flights, soft sleeper and certain other specified non-necessary forms of transportation
Ministry of Transportation, China Railway Corporation
20. Restrict judgment debtors & their legal representatives, principal responsible persons, those directly connected with fulfilling obligations, actual controllers from staying in 4 star hotels & above; restrict consumption at nightclubs & golf courses
National Travel Administration, MOFCOM, MPS, Ministry of Culture
21. Restrict judgment debtors & their legal representatives, principal responsible persons, those directly linked to fulfilling obligations from purchasing real estate; assist in restricting judgment debtors from engaging in transactions involving state owned company assets, state assets, etc.
MLNR, MHRUC, SASAC, other relevant authorities
22. Cooperate in providing information about 4 star & above hotels; restrict judgment creditors and their legal representatives, principal responsible persons, those directly involved in fulfilling obligations, actual controls, from participating in tour groups; restrict them from enjoying travel related services; restrict judgment debtors from consuming services in resort areas
MOFCOM, Nation Travel Administration
23. Restrict the children of judgment debtors and the legal representative, principle responsible person, and those directly involved in fulfilling obligations, actual controllers from studying at expensive private schools
SPC, MOE
24. Assist in reviewing judgment debtor’s identity, passports, vehicle registration; assist in locating judgment debtors, restrict them from exiting the country; assist in seizing and sealing vehicles
MPS
25. Restrict the use of state-owned forestry land; restrict applications for focal forestry construction projects; restrict application for focal grasslands protection projects
NDRC, State Forestry Administration, MinAg
26.Review information about Customs certificates and qualifications of judgment debtors; restrict them from being companies confirmed by Customs; for import/export goods & other Customs operations, implement strict controls;
Customs
27. Review information concerning product safety approval & licensing; restrict engaging in food, drug & other industries; restrict persons from being the responsible person, director, supervisor, or senior manager
CFDA, AQSIQ, Work Safety Administration, SAIC
28. Cooperate in reviewing registration information concerning fishing ship by judgment creditors
MinAg
29.Cooperate in reviewing information concerning judgment debt passenger & freight vehicle registration
Ministry of Transportation
30.Cooperate in reviewing information concerning whether lawyers or law firms are judgment debtors; restrict judgment debtors for a certain time from being designated as advanced or outstanding
MOJ
31.Assist in reviewing the marriage registration of judgment debtors
MCA, MFA, NHFPC
32.Assist with establishing a file to investigate, prosecute, etc. of the crime of refusing to enforce a judgment or ruling
Over one year has elapsed since the Supreme People’s Court (SPC) has implemented the judicial reforms set out in the February, 2015 4th five year plan for reforming the judiciary. While thousands of words have been written in Chinese and English, some praising, criticizing, mocking, and bemoaning the reforms, it was only in late February, 2016 that the SPC issued a comprehensive official assessment, focusing on its achievements. That official assessment takes the form of a bilingual white paper (White Paper) issued in early March (but full text released on-line only in English), plus a section of President Zhou Qiang’s work report devoted to the judicial reforms, a first for the SPC. I surmise that it was approved by the Judicial Reform Leading Group.
This blogpost looks at the vision for the Chinese judiciary that the White Paper conveys, by looking at several sections.
Chinese court system and the reform process
The description of the reform process in the first section of the White Paper tells us who/what is driving the reform process, the nature of the process, the core issues, and how the judicial reform process is being monitored.
Facts highlighted:
During 2014-2015,13 out of 19 plenary sessions held by the Central Leading Group for Deepening Overall Reform involved judicial reform, where 27 judicial reform documents were adopted.
A partial list of those 27 documents is found here.
The Social System Reform Specialized Group (the Central Leading Group for Judicial Reform) is in charge of judicial reform;
The SPC has a leading group in charge of judicial reform, replicated at the provincial level, and any judicial reform plans piloted by them need to be approved by the SPC or above (the 4th Judicial Reform Five Year Plan states this).
According to this section, the four core judicial reform measures are:
improving the classified management of judicial personnel [treating judges differently from clerks and other support personnel and civil servants0;
the judicial accountability system [the lifetime responsibility system set out in regulations issued in September, 2015, but only implemented in areas piloting judicial reform, controversial among judge and academics];
professional protection of judicial personnel ;
unified management of personnel, funds and properties of local courts below the provincial level.
These four measures will be piloted throughout the country in several rounds before they are implemented nationwide.
Comments
From the description of the reforms we can see that the specific reforms discussed in the remainder of the report have been cleared by the Party leadership. It seems reasonable to assume that each reform involved hundreds of hours of policy paper drafting by SPC staff and internal and cross-institutional discussions, and responses to comments during those discussions.
What the White Paper did not mention is that the Central Leading Group for Deepening Overall Reform and the Central Leading Group for Judicial Reform established their own inspectorate for monitoring the progress of reform,including judicial reform, (reviving a traditional institution). It is unclear which reforms will be targeted this year for inspection. The separate inspectorate seems to indicate that these Central Leading Groups want their own source of information on how reforms are being implemented.
Judicial independence (Ensuring Independent and Impartial Exercise of Judicial Power Pursuant to Law)
One of the messages conveyed in this section is that local courts do not belong to local governments but are established by the State at the local level to exercise judicial power on behalf of the State. The goal as stated in this section, is to “form an institutional environment and social atmosphere that respects [the] judiciary, supports [the] judiciary and trusts [the] judiciary.”
It lists about a dozen measures. What is new in this section:
a summary of the policy thinking on judicial appointments and funding of the local courts. On judicial appointments, judges will be selected by judicial selection committee at the provincial level in terms of professionalism, and will be appointed and removed according to common standards. This is a push in the direction of professionalism, and away from the phenomenon noted in the past few years of having chief judges who lacked a legal education. On the funding issue, the Central Government will fully guarantee the funding of the local courts. The provincial fiscal departments manage the funds of local courts below the provincial level, the local courts will submit their budgets to the provincial fiscal departments, and budget funds will be appropriated by the centralized payment system of the national treasury.
Fuller discussion of cross-administrative district courts to hear administrative cases–piloted in Beijing and Shanghai and other locations, under the umbrella of a policy document of the SPC that has not been made public. The concept is to have cases against local governments heard outside of the area in which they arose. The SPC recent policy document on the development of the greater Beijing area has further content in that area.
Improving the way the courts function ( Improving the Functional Mechanism of Adjudicative Powers)
The fourth section of the White Paper provides useful insights into how the judiciary is intended to operate post reform. It starts out with a statement that judicial power is a judging power in essence and emphasizes impartiality, neutrality and personal experience.”
The focus on this section is on reforms to the way Chinese courts operate. As I have written previously, they have operated in many of the same ways that other Party and government organs operate. This section describes pilot reforms, new policies, or regulations concerning the following (among others):
personnel reforms described above (but do not mention the pay rise that goes along with it in at least some courts);
senior judges within a court (court presidents, vice presidents, division chiefs) will no longer approve judgments, except for a small number going to the judicial committee);
senior judges will hear cases instead of concentrating solely on administrative matters;
courts will establish a specialized judges council made up of judges in specialized areas (criminal, civil, etc) to provide views to judges hearing cases on the interpretation of substantive issues, on an equal basis rather than seniority;
the SPC has abolished irrational performance indicators and forbidden senior judges from involving themselves in cases that they have not heard;
the SPC has issued policy guidance on the reform of judicial committees (not yet made public). The principles set out follow generally what was described by President Zhou Qiang earlier, but include judicial committee discussion of “major and complicated cases concerning national diplomacy, security and social stability and those required by law.” The guidance calls for more transparency (unclear whether to be within the court or greater), better record-keeping, and less involvement by judicial committees with specific cases. As discussed in an earlier blogpost, judicial committees have often been a route for transmitting the views of local officials and have been been implicated in some of the wrongful conviction cases);
regulations on the jurisdiction of different levels of courts in civil cases (described in this blogpost).
These reforms look to do a number of things that are significant within strictures of the Chinese system: distinguish judges from other Party cadres and give them better status and pay; break down or reconstitute some of the basic internal structures of the courts that have facilitated corruption, unjust cases, and discouraged talented judges; abolish performance indicators that have been poisonous for judges and litigants alike.
The vision
The vision that the SPC has for the Chinese judiciary and judges can be seen from the description of the reforms above. The SPC intends to create a more professional judiciary (with a lower headcount), that is better paid, more competent, has performance indicators that look more like other jurisdictions, with an identity and operating mechanisms separate from other Party/government organs, that will be more autonomous, no longer under the thumb of local authorities, but operates within the big tent of Party policy. To be incorporated in the judicial reforms, the implications of each measure must have been thoroughly discussed by the Party leadership and the Party leadership is using its own institutions to monitor results. Will the judicial reforms achieve their goal of making people feel justice in every case? For that, the jury (or is it the people’s assessors(also being reformed)?) is still out.
The Supreme People’s Court (SPC)’s 2015 work report has many takeaways for different audiences. The apparently formulaic report took five months to draft, involving comments and input by many within and outside of the SPC (this article describes the process, as did my earlier blogpost), most likely involving clearance by the Central Leading Group on Judicial Reform. It was drafted to show certain accomplishments, send certain signals–show that judicial reform is on the right path and is successful, particularly that the court leadership and the courts are doing their part to fulfil the tasks set for them by the Party/state leadership. This year’s report has three sections, rather than the usual two, with one section summarizing judicial reform accomplishments. This post will focus on highlights of the overview of 2015, and leave judicial reforms and tasks for this year for another day.
In a sign that the diminished attention spans have come to China, the SPC has come up with graphic and even musical versions of the report.
Statistics to convey current message
This short book, explaining how statistics are used to convey certain messages, was originally published in the 1950’s and translated into Chinese about 10 years ago (and given to me when I was 11 by my parents). It is a useful reference when puzzling out what SPC court statistics are saying and mean, because as this Wall Street Journal article noted, the categories used in the annual reports often shift from year to year, making comparisons difficult, and breakdowns of specific categories are generally missing. The reason for that is the report (including the statistics) are meant to harmonize with the latest government/Party policies and be on message. The SPC is reforming judicial statistics and seeking to make better use of big data, but the fine details are not in this report.
Takeaway #1–Caseload Up Significantly
The caseload of all levels of courts were up significantly, primarily because of the docketing reforms implemented last year (mentioned here). Civil (family, inheritance, private lending) and commercial cases account for most of the growth.
Cases heard at the Supreme People’s Court were up 42.6% compared with 2014 (accepted 15985, concluded 14,135). with most of those heard at headquarters in Beijing rather than the two circuit courts. The local people’s courts heard 19,511,000, and concluded 16.714 million cases, with large increases in the amounts in dispute, an increase of 24.7%, 21.1% and 54.5%, respectively. This seems to exclude cases heard in the military courts.
Performance target reforms mean that judges are no longer under enormous pressure to conclude cases by year end (although some local court officials may not been on message).
The bar chart below compares 2014 and 2015 numbers for criminal, civil, commercial, administrative, and enforcement cases respectively.
Criminal and Commercial cases up–Takeaway #2
Just briefly on the criminal cases, as the overview graphic of commercial cases is linked to criminal cases-criminal cases are up by 7.5%. Significantly, criminal cases involving refusal to pay wages were up 58%, with last year’s report revealing that 753 persons were convicted, which means that 2015 convictions were close to 1200. a\Analysis of the statistic of 1419 persons convicted of state security and terrorist crimes can be found here.
Commercial cases were up 20% (3,347,000, with 120,000 intellectual property cases (up from 110,000 in 2014). This is likely linked to the new intellectual property courts, but I will cede further analysis on this to my fellow blogger Mark Cohen of Chinaipr.com. Again, tiny numbers of foreign-related (6079), but up from last year (5804) and Hong Kong, Macau, and Taiwan-related cases. Cases involving subsidiaries of foreign companies are not in this category–this is a commercial case with a foreign party. The maritime courts heard 16,000 cases, the large increase apparently also attributable to the case registration system. The language in the speech (making headlines) about making China an international maritime judicial center reflects language in previous speeches Zhou Qiang gave in China (analyzed here), but unnoticed until the NPC report.
Private lending disputes up significantly
The courts heard 1,420,000 private lending disputes, up from 1,045,600 in 2014. Further background on private lending disputes can be found in my previous articles for the Diplomat. Last year the private lending disputes were categorized with the civil cases, rather than commercial cases.
SPC doing its part for greater government policy
The SPC issued policy documents on One Belt One Road (see this analysis of its implications), the Beijing/Tianjin/Hebei area, and Yangtze River Economic Belt to implement government policies. Those strategic projects are priorities for government.
Takeaway #3 Commercial disputes
In 2015, 1,053,000 financial disputes were heard and 100,000 insurance disputes, as well as 4238 securities fraud and insider trading cases, compared with 824,000 financial disputes in 2014, a number which included insurance cases. This speaks to the weakness in the Chinese economy.
The bar chart to the left illustrates percentage increases in product liability (in 2014 there was also a large increase), reputation, real estate development (see this blogpost), loans, sales contracts, labor (up 21%!), and rural residential land disputes. The report flags 1400 bankruptcy cases and highlights pilot projects.
In another indication of problems with the real estate sector, Zhou Qiang mentioned “mass real estate disputes” and the expert handling by the Jinan court (in coordination with the government) of a large villa project in Jinan that encountered financial difficulties in 2008 (see this description) and led 2000 purchasers to petition in Beijing and even surround the Jinan Party Committee, Shandong Party Committee, and the Central Inspection Group that was on site. In 2014, the Shandong government decided to use “legal thinking” to involve the Jinan intermediate court.
An area for commercial lawyers to monitor is unfair competition and anti-monopoly, where the regulators are working on a stream of regulations. Last year the Chinese courts heard 1802 cases.
Takeaway #4– Big jump in civil disputes
The pie chart on left shows the distribution of first instance civil cases–26% family (1,733,000), 1.5% inheritance, 5% ownership disputes, 17% personal rights （privacy, portrait, reputation), 22.8% private lending, 7.32% labor disputes, including 300,000 migrant worker wage arrears (and other cases related to rural residents rights (拖欠农民工工资等涉农案件 30 万件). Consumer, education, housing and employment accounted for 720,000 cases.
For environmental cases, 78,000 civil cases were concluded, along with 19,000 criminal cases.
Takeaway #5 Big jump in administrative cases
The amendment of the Administrative Litigation Law last year, the docketing reforms, and the decision to push disputes off the streets and into the courtroom has been a large increase in administrative disputes, although the baseline was very low. In 2015, 241,000 first instance administrative cases were accepted, up 59% from the year before, with 199,000 concluded. Reforms have been undertaken to move administrative cases outside of the area in which they arise, which is another reason that some persons or entities have been willing to file. The bar chart has the percentage increase in different types of administrative cases, with an 176% increase in education cases. The remaining categories (from the left are: public security, trademark, pharmaceutical, construction, transportation, energy, and the environment.
(Black & white charts from SPC work report, thanks to Josh Chin of the Wall Street Journal).
At least two recent articles in the Chinese media provide some answers to the question of why assigning responsibility (within the courts) in wrongful conviction cases (known in China as “mistaken cases”) is so difficult. ( A recent New York Times article has previously discussed the question as well and provided commentary by several well known authorities.) This brief blogpost looks at these two recent articles, which provide additional insight.
“Russian doll” system of committee decisions
The first response can be found in an article in the official Chinese press, published 20-21 February, entitled “China’s judicial reform stepping into a deep water area facing people, power, and money.” The article sets out a response to the dissatisfaction of the public (and experts), which captures, in officialese, the core of the reason–decisions in high profile court cases are made in through a “Russian doll” (Matryoshka, the Russian nested doll) set of committee decisions.
Russian nesting dolls (from Wikipedia)
“For a long time, Chinese judicial organs [referring both to courts and procuracy] have internally formed an administrative work system. For example internally, in the courts, cases are approved and checked on by division chiefs and heads of courts level by level, and it is the person with the highest administrative position who has the final say, which created the situation in which the persons hearing the case do not decide it, and those deciding the case do not hear it. This not only affects judicial efficiency and justice, it also makes it difficult to pursue responsibility for mistaken cases.”
What this means in plain English is that Chinese courts exercise an administrative system in which all cases are approved by division chiefs or higher. For major cases, as well as cases in which the death penalty is proposed to be imposed, the case is forwarded to the judicial committee of the court. As I wrote over one year ago, although this has not been mentioned, judicial committees must have approved the original decisions in a number of cases recently revealed to have mistaken, such as:
the 1996 execution of Huugjilt, in Inner Mongolia;
The 1995 conviction of Tian Weidong, Chen Jianying and others in Hangzhou, Zhejiang.
One layer of the Russian doll is the judicial committee. In that December, 2014 blogpost, I described how judicial committees operate (and some proposals for judicial committee reform). Court legislation states that these committees “practice democratic centralism” and that their task is to “sum up judicial experience and to discuss important or difficult cases or other issues relating to judicial work.”
The reason that the panel that hears the case must follow the decision of the judicial committee is that judicial committees are designated as the “highest judicial organ” within a court and implement the principle of democratic centralism. Wang Bin, a Nanjing judge whom I quoted in that blogpost, stated that judicial committee members [made up of the court leadership] have neither the opportunity nor the time and energy to learn more about the specific circumstances of each case.Members are not required to state their view and rationale before voting. Decisions are made by a simple majority. Additionally, as I implied, during judicial committee consideration, members are aware of their bureaucratic rank vis a vis the court president and vice presidents. As Professor He Xin of City University noted in his study of judicial committees, since the decision is made collectively [by the judicial committee], no single committee member is held personally responsible.”
What is implied by the administrative system described by the statement in the official media is that the local political-legal committee or other Party authorities may liaise with the court leadership concerning high profile cases. That is the next layer of the Russian doll, and may involve higher level Party authorities.
Professor He’s study found that judicial committees had in many cases succumbed to external influences, while my own (more limited sample) found that external pressure was sometimes resisted. Pressure by local political-legal committees was likely involved in some of these mistaken cases, but liability is not pursued, for a similar rationale as Professor He’s–since the decision is made collectively, no one is held personally responsible.
What effect will the 2015 regulations aimed at reducing official interference in court cases have on this practice? As noted in this earlier blogpost, one of those regulations does not require the recording of certain types of guidance–that of “Party and government organs, professional associations, social public interest organizations and public institutions with administrative functions in accordance with law retained or permitted by people’s courts to follow the working procedures to submit consultative opinions in cases of national interest or societal public interest, may be not entered into information archive on prying, but relevant materials shall stored in the case file for future reference.” But will documents issued by Political Legal Committees at various levels really be placed in case files and made accessible to lawyers?
2. Why does affixing responsibility in mistaken cases take so long?
The author of the second article, published in a popular legal Wechat public account highlighted earlier, suggests reasons that it often takes 10 or more more years for mistaken cases to be redressed, and proposes that the SPC and SPP increase their staffs to review mistaken cases:
Ten years is the time it takes for two terms of the [local] Party Committee and the heads of the court and procuracy. That means that the heads of the Party Committee and court/procuracy have changed at least once or twice… [Why won’t it take less time?] It is because when the leaders who have had the final say still have their positions,…if they reverse the mistaken case and one can well imagine that they will not want to overturn a case in which they had the final say…There is hope …only when the leaders have retired, have become old or passed away, and a new leader is in position and takes the matter seriously.
One of my favorite Wechat public accounts, the “Home of Judges” (法官之家) was closed down earlier this month. The public account had about 100,000 followers. (Wechat public accounts are explained here.) While some public accounts are used as corporate marketing platforms, “Home of Judges,” along with several other public accounts have become platforms for (primarily) young judges (and lawyers) to share their views, experiences, and analyses. The Home of Judges public account published articles by many local judges, many with their concerns and thoughts about different aspects of judicial reform, with other articles describing by current or former judges explaining why they left or were thinking of leaving the judiciary. The account holder for the public account, Li Liang, a former Guizhou Higher People’s Court judge wrote:
I had a feeling that Home of Judges would be closed down–first the News Bureau of the Supreme People’s Court contacted the news department of my court, demanding that the name of the public account be changed, but the editor did nothing, then I heard that the internal reference service of the Supreme People’s Court SPC) carried some Home of Judges articles, then recently the Beijing News Department deleted articles.
An anonymous article by the Sword of Heavenly Peace (长安剑) (according to some sources a pseudonym for the Central Political Legal Committee set out a seemingly more official explanation of why the account was closed down. The name of the public account was a problem, because the account holder had left the court. However the same name (Home of Judges) is used for the name of a hotel in Beijing, apparently the Supreme People’s Court’s guest house (see the comments to this hotel review).
Stepping into the shoes of the Supreme People’s Court leadership for a minute, it seems likely that a public account with a large number of judges criticizing the judicial reforms approved by the Party leadership would make the SPC leadership uncomfortable. Why? Because it would indicate that they were not doing a good job of “uniting thinking” (统一思想)–uniting the judges of the lower courts behind policies drafted by the SPC that had been approved by central Party authorities.
Comments by a fellow blogger
Following the closure of the “Home of Judges,” one of its fellow bloggers commented on the current environment. Zhao Jun, a judge of the Jiangsu Higher People’s Court, who has a popular (among the legal community) public account, under the pen name Gui Gongzi 桂公梓, explained why he hasn’t been writing legal articles:
Third and more importantly , with the fluttering banner of democracy and the rule of law more and more ambitious, the space for speech is obviously tightening.
Chinese social media is an invaluable way to understand what is going on in the Chinese court system and Chinese law generally, enabling you to keep up with developments wherever you are.
It is a shame if public accounts such as “Home of Judges” are seen as a threat to the government rather than a way to understand what the younger generation of judges, prosecutors and lawyers are thinking.
The older generation?
The older generation of judges and lawyers, particularly those who have lived through the Cultural Revolution, comment privately that at this time, the best approach is to say nothing.
The rush towards year end in the Supreme People’s Court (SPC), as in the business world, means a flurry of announcements of important developments, to ensure that the SPC meets its own performance targets. Among the recent announcements are:
reform of the maritime courts, to make them internationally influential (this has both political and legal implications, blogpost to come);
approval by central Party authorities of the third round of judicial reform pilots, and the holding of a large scale meeting of representatives from the Leading Group on Judicial Reform with the SPC and Supreme People’s Procuratorate (SPP), on the focus (personnel reforms) and roll out of these projects. Jiang Wei,deputy director of the Office of the Central Leading Group for Judicial Reform, spoke along with his SPC and SPP counterparts. Political legal committee secretaries from the pilot areas attended, along with court and procuratorate officials.
Reform of the family court system, announced at a conference held in Guangzhou, attended by Justice Du Wanhua, highlighting that the rush of judges to meet performance targets (closing cases) Iamong other factors) has had a negative effect on children, elderly, disabled, and women. The SPC likely published typical/model family law cases in November (discussed in this blogpost) because pulling together those cases was part of the preparations for the Guangzhou conference;
long pronouncement by Justice Shen Deyong on the “standardization” of the courts, citing the important status and important role of the judiciary in the governance of the country, but the growing contradiction between the needs of the people and judicial resources and judicial capacity, decrying the lack of “top level design,” and calling for the implementation of related reforms.
This list will be supplemented later this month, as further announcements are made.
Five model cases on interference with the judicial process are are making the headlines today on the Communist Party’s Central Political Legal Committee’s website (www.chinapeace.gov.cn) (and therefore on its press outlet, Legal Daily as well as one of the Supreme People’s Court’s websites). It is the first time the Central Political Legal Committee has done so, but is unlikely to be the last.
The practice of issuing model cases in the courts has been discussedpreviously on this blog, but these have been issued to create an example (in this case a senior judge) to scare others into compliance (“kill the chicken to show the monkeys” (杀鸡儆猴)).
The first of the five cases, and the only one from the courts, is that of Chen Hai’ou, chief judge of the #2 civil division of the Beijing Higher People’s Court (and judicial committee member). Chen seems to be well-known as a bankruptcy law specialist and was likely known to counterparts on the Supreme People’s Court.
According to the press release, Chen received an administrative penalty and has been transferred away from doing trial work because he involved himself in a case that was not within his authority In violation of March, 2015 Central Political Legal Committee regulations on judicial personnel prying into cases. Some more specific conflict of interest allegations against Chen remain posted on the Internet, although other allegations (and photos) on other sites have been taken down. It seems likely that these led to his downfall.
Implementing the judicial reforms in China requires an overhaul of China’s current basic legislation, the Judges Law (法官法）and the Organizational Law of the People’s Courts (人民法院组织法). The Supreme People’s Court (the Court) media outlets have recently reported that on 23 October the first meeting was held of the drafting group to amend the Judges Law, with Court Vice President Shen Deyong chairing the meeting, and senior Court judges in attendance. The report notes that the focus is on securing the independence of the courts (but having them remain firmly under Party control). Judge Shen mentioned that issues under consideration include: criteria for the selection of judges; protection for judges undertaking their duties; evaluation of judges, judicial assistants, salaries scales, retirement and insurance, and rewards and punishments.
Part of the preparatory work for amending the Judges Law is to include field research and surveys, particularly of front-line judges in the judicial reform pilot areas. The drafting group will designate some local courts and some universities/research institutes to assist with the drafting. The drafting of the Judges Law will need to be consistent with the principles of the amendment of the Organizational Law of the People’s Courts and the work of the Central Leading Group on Judicial Reform. This summer, the Court convened an initial meeting to discuss amending the Organizational Law of the People’s Courts. 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.
Although Chinese judicial reforms include establishing a trial-centered judicial system that provides better protection for human rights (including property rights), under Party disciplinary regulations senior Party officials (such as former Supreme People’s Court Vice President Xi Xiaoming, subject of an earlier blogpost), often have property confiscated or other property punishments imposed at the conclusion of Party disciplinary proceedings. This means that confiscation of assets occurs before an official’s case is transferred to the procuracy and heard by the courts. According to the official statement on the disposition of Judge Xi’s case:
(He) was ordered to make restitution of certain amounts that were in violation of discipline;the issues related to his suspected crimes and related amounts are transferred to the judicial organs for handing.责令退赔违纪款；将其涉嫌犯罪问题及涉款物移送司法机关依法处理.
The wording is similar to official statements issued in relation to other senior officials investigated by the CCDI and the same language is to be found in reports on the dispositions of local Communist Party disciplinary investigations.
Han Jinping, director-general of the CCDI’s case coordination department and a former judge in the #2 criminal division of the Supreme People’s Court, provided more details on the CCDI’s authority to impose property punishments in a July, 2015 interview she gave to Chinese Central Television.
(A 2014 profile of Ms. Han reveals that she was involved in guiding some of the lower courts in recent high profile corruption cases and has been involved in some of the thinking behind China’s initiatives to pursue corrupt officials abroad).
She mentioned that more than half of the assets recovered since the beginning of the anti-corruption campaign have been confiscated by the CCDI itself (RMB 20.1 billion) and handed over to the national treasury, while 18.6 billion has been recovered through the formal legal system. Ms. Han explained that according to applicable rules (set out below), CCDI is authorized to:
confiscate assets (没收);
recover assets(追缴);
order restitution (责令退赔)
relating to violations of Party and government rules and orders.
She noted the following rules guide their authority:
the Communist Party Disciplinary Rules 中国共产党纪律处分条例;
Related to the rules she cited are additional regulations issued by the General Offices of the Central Committee and the State Council on the handling of money and property management in criminal cases earlier this year, focused on coordination between departments (and less explicitly with CCDI).
Assets of officials determined by CCDI to have violated Party rules are confiscated in closed proceedings (subject to Party Committee approval at the relevant level), but the handling of the property must be in accordance with the above procedures. The official under investigation does not have access to counsel, and there does not seem to be a procedure by which a third party can oppose the property punishments imposed by CCDI. ( 2014 regulations of the Supreme People’s Court, by contrast, give third parties that right when property punishments are imposed in criminal proceedings.) For the family members, friends, and associates of an official subject to CCDI proceedings, it appears that any recourse they have is very limited. A good proportion of the assets recovered in the current anti-corruption campaign have been recovered by skirting the procedural protections of the persons involved under the Chinese Criminal Procedure Law. It appears to be a modern day version of the traditional legal system’s punishment of officials.
(Please use the comment function if there are errors in the above analysis.)
In late August, the Supreme People’s Court (Court) issued a pair of regulations, aimed at reducing the phenomenon of officials, within and outside a court, involving themselves in cases.
Translations of the regulations are available, thanks to Chinalawtranslate.com: (the Chinese originals are available on the Court’s website here and there):
Implementing Measures for People’s Courts Carrying Out the ‘Provisions on Recording, Reporting and Pursuing Responsibility of Leading Cadres Interfering with Judicial Activities or Tampering with the Handling of Specific Cases (Leading Cadres Measures); and
Implementing Measures On Pursuing Responsibility In Cases Of Internal Judicial Personnel Prying Into Cases (Judicial Prying Measures).
This blogpost takes a quick look at the first one.
What do the Leading Cadre Measures say?
The Leading Cadre Measures (which implement State Council/Central Committee (General Office) regulations issued in March are directed at officials outside the judiciary who seek to influence court decisions, and require judges (who are other subject to penalties for not doing so) to record all communications relating specific cases made by entities and individuals other than those in courts, and retain the relevant materials. These Measures implement language in the 4th Plenum Decision (Establish a system for recording, reporting, and investigating the responsibility of instances wherein leading cadres interfere in judicial activities or get involved in the handling of certain cases.) The reports are to be submitted to the local political legal committee (or next higher political legal committee, depending on the status of the offending individual) and the next highest court, generally on a quarterly basis. If the conduct is serious, and might cause unjust, false and wrongfully decided cases or other “serious consequences,” the court is directed to report immediately.
Article 7 of the Leading Cadre Measures lists some of the most frequently used techniques, many of which have a economic, rather than political motivation:
making requests for help on behalf of litigants during the trial and enforcement stages;
Requesting that people’s courts adopt, suspend or release the seizure, sealing or freezing measures against objects being secured or enforced against.
Requesting that people’s courts select certain evaluation organizations, asset evaluation agencies, auction organizations or bankruptcy management agents;
Requesting that people’s courts preferentially give case assets to certain applicants for enforcement…..
The Leading Cadre Measures place the views of certain organizations in a different category:
“Party and government organs, professional associations, social public interest organizations and public institutions with administrative functions in accordance with law retained or permitted by people’s courts to follow the working procedures to submit consultative opinions in cases of national interest or societal public interest, may be not entered into information archive on prying, but relevant materials shall stored in the case file for future reference.”
Professor He Haibo of Tsinghua University explains what this means:
the courts must accept these materials, and it gives those organizations a chance to participate and speak; placing the materials in the case file gives the other party as well as possibly the public an opportunity to understand and evaluate them. This is consistent with the requirements of due process…
Will documents issued by Political Legal Committees at various levels really be placed in case files and made accessible to lawyers?
How do officials and judges interact?
The patterns of behavior that these regulations are aimed at changing are long-standing. From Doing Business in China, a leading book for practitioners (chapter by Harry Liu, Meg Utterback, Yu Simin):
Informally, judges are occasionally given instructions by political leaders on individual cases. Intervention by Party leaders in individual cases remains acceptable…The forms of interference vary: sometimes oral instructions are given, or sometimes the instructions are incorporated into official documents, with a requirement that the judge report back on the outcome. As to the content, the instructions may (1) tell courts to emphasize a case or handle a particular case “according to law,” (2) express an opinion on certain aspects of the case, or (3), recommend certain action to the court in lieu of dictating the outcome.
Professor He Haibo of Tsinghua University School of Law, writing in the People’s Court Daily–the line between “coordination in accordance with law” and interference with judicial activities is very hard to draw (什么是“统筹协调依法处理”、什么是“干预司法活动”，界限似乎难以划得清清楚楚)。
Comments from an unscientific sampling of judges
How the regulations work out in practice will depend to a large extend on how the officials undue intervention recorded will affect their future career or have legal liability. If yes, the leaders will refrain from intervening. It will also depend on whether the judges would suffer from recording the intervention, particularly if he institutions are not administratively or financially independent from the agencies the officials represent or are able to influence. In the latter case, judges wold be reluctant to record the intervention. It is likely that court leaders will interfere less frequently and with less success.
It will be of some help, when the interference is from strangers. But if from old friends, direct leaders, those won’t be reported, because it would betray the relationship.
More autonomy under Party leadership
The Leading Cadre Measures are not a magic bullet that will change the way the Chinese courts operate. The intent is to reduce the involvement of local officials in court cases to achieve fairer outcomes, while maintaining central policy leadership (and recognizing current reality by having a framework for Party officials to provide their views “for consideration”).
How well will the Measures work during the transitional period that the local judiciary remains under the control of local authorities? And how should the line be drawn between interference, leadership, and coordination?
A model case?
In late August, the Jinhua Intermediate Court (Zhejiang province) used the March regulations to call the attention of the press (and higher authorities) to a local official who threatened a judge with physical harm, when local courts ruled against the official’s wife in a shareholding dispute, although the case led one Zhejiang University law professor to comment that it wasn’t typical of official interference. According to the latest reports, the Jinhua Intermediate Court has withdrawn the notice, and both the judge and official in question are being investigated by the relevant CCDI organization. A local Jinhua lawyer was quoted as saying that the local court staff had erred in making the matter public at this point.
The Jinhua case, while perhaps not a typical interference case, is typical of the widespread lack of civility confronting Chinese judges (and doctors), that in too many cases means a threat to their physical safety, and could indicate how difficult it will be to actually implement the Leading Cadre Measures.
This updated blogpost muses on Judge Xi Xiaoming, and:
phenomena of “assumption of guilt” and trial in the press
political factors in Chinese judicial decision-making;
judicial corruption;
implications for related parties;
investigation-centered criminal justice system
effect on lower court judges;
the intellectual legacy of Judge Xi;
effect on the credibility of the judicial system.
The comments below are made with no further information about Judge Xi’s case than what is publicly available.
The background
In the late afternoon of 12 July, Xinhua news issued a statement reporting that the Central Commission for Discipline Inspection (CCDI) announced that Supreme People’s Court (Court) Vice President Xi Xiaoming, was under investigation for violation of Party discipline and law. Judge Xi has worked in the Court for over thirty years and is well known for his expertise in civil and commercial law. The announcement caused shockwaves in the Chinese legal community. Chinese pressreports have linked the allegations to a case involving a 420 million RMB dispute over shareholding in a Shanxi coal mine, but the allegations have not been confirmed by the CCDI.
On 20 August, Meng Jianzhu, head of the Central Political Legal Committee, made the following statement about Judge Xi: “Xi Xiaoming has shamed the judiciary, as a experienced judge who has worked in the Supreme People’s Court for 33 years, who has colluded with certain illegal lawyers, judicial brokers, and lawless business people by accepting huge bribes. “作为在最高法院工作33年的老法官，奚晓明却同个别违法律师、司法掮客、不法商人相互勾结，收受巨额贿赂，这是司法界的耻辱。”
“Presumption of guilt” and trial in the press
Judge Xi is under investigation by the CCDI and it has not yet been reported that the procuracy has yet filed a case against him. It does not seem that the lawyers involved in the Shanxi case have been prosecuted or penalized for illegal activity. Meng Jianzhu’s statement evidences two phenomenon in Chinese criminal justice–the presumption of guilt and “trying” suspects in the press
As Zhu Zhengfu, the vice-chairman of the All China Lawyers Association warned earlier this year, there is a widespread and dangerous “presumption of guilt” among mainland law enforcers.” Zhu proposed a law be enacted to fully protect each citizen’s right to be presumed innocent until proven guilty.
“An arrest is made on one day, then the next day you have the suspect confessing on television, and some are forced to confess,” Zhu said.
“After the confession, [law enforcers] immediately say the case has been solved and they celebrate their achievement. So you can imagine how much pressure the court is under if it wants to pass an innocent verdict.”
As Si Wejiang of the Debund Law Firm pointed out, CCTV often declares a person guilty even before the procuracy has approved his arrest and does not give his defense lawyer a chance to speak.
Complex politics of large commercial disputes in China
In private comments, several senior Chinese lawyers and other Chinese legal experts have suggested that Judge Xi’s case is not a simple case of corruption, but is tied to more complex political factors.
As two DLA Piper lawyers commented in a Practical Law publication, “large commercial disputes between Chinese parties are usually settled with the help of political influence and/or commercial pressure, with the rule of law methods such as litigation and arbitration either not used at all or used as a bargaining tool.”
They further noted that in recent years “there has been a return to non-rule of law methods of settlement, particularly in relation to disputes involving over CNY100 million.”
The senior lawyers noted that judges hearing cases involving politically powerful litigants (called interest groups in Chinese political jargon) may be under pressure to decide the cases in particular way (as further described in the next section). As time goes on, the litigants may not be as politically powerful as before, and the judgment (and the judges who made decisions) may be called into question.
Corruption in the courts
The corruption allegations are said to be connected to the Shanxi case, reported in further detail in the Caxin report. But the corruption allegations may be more complicated than they appear. As several academic studies have noted, judicial corruption in China has several root causes related to the nature of the judicial system. In her 2014 book, The Judicial System and Reform in Post-Mao China, Li Yuwen, Professor of Chinese Law at Erasmus University stated:
First, the lack of judicial independence leaves room for corruption.In practice, when a case is brought to court or assigned to a judge, court officials or the responsible judge are often contacted by various people–the most influential ones are those with government positions….In addition, the lack of recognition of the nature of the judiciary to enforce law fairly and efficiently also results in a puzzling perception of courts and judges….
Secondly, judicial corruption cannot be divorced from its social context…It is unrealistic to expect judges to operate completely outside the social environment, especially in the absence of a workable system to reduce the incidence of judicial corruption….
Thirdly, certain shortcomings of the court system leave the door open for corruption. For instance, the flexible use of the re-trial system leads to the easy re-opening of cases if influential people wish to interfere in the case. This not only diminishes the finality of the case but also creates opportunities for using personal networking to change a court’s judgment. Furthermore, the relatively law judicial salary makes judges an easy target for corruption…In modern-day China, a profession’s income is too often linked to the profession’s social status. Judges’ low salaries are not conducive to building self-respect amongst the profession and, moreover, they constitute a major ground for fostering judicial corruption.
So returning to the social context of 2011. A number of Chinese lawyers and academics have privately noted that at the time of the case in question, it would not be unusual for supplemental payments to be made to Court judges in connection with commercial disputes involving large amounts of money, and refusing payment could also have been awkward for those involved. Whether this was in fact the case for Judge Xi is not known.
Implications for related parties
It is likely that the anti-corruption investigation into Judge Xi will touch on parties, including other judges, related to the case(s) in question. It is also likely that the full extent of the investigation will not be made public.
Investigation-centered criminal justice system
Judge Xi is now experiencing the Chinese investigation-centered criminal justice system, in which Party members are generally subject to shuanggui, where they are subject to long periods of interrogation outside the formal criminal justice system, followed by repeated interrogations if and when the case is transferred to the procuracy. His case is part of the current anti-corruption campaign.
The anti-corruption campaign is also a highly politicized process. Investigations are selective, politically motivated, and aim to achieve particular political consequences….
Xi’s campaign further shifts power from legal institutions to the Party’s disciplinary mechanism. Compared with anti-corruption work under the previous government, the current campaign more decisively bypasses legal procedures and institutions. After a brief moment in which law seemed to be able to play a central role in the anti-corruption process, legal institutions have been effectively marginalized to the role of initiating anticorruption
purges of ‘tigers’. There is no longer any meaningful discussion
on the end goals and limits of shuanggui, the Party’s power to detain its own delinquent members and little mention of the creation of a more neutral anti-corruption body.
Effect on other judges?
What will be the effect of Judge Xi’s case on judges in the lower courts, who may not want to find themselves involved in local parallels of his case? Will it lead to further departures of experienced judges?
The intellectual legacy of Judge Xi
Judge Xi has been a major force in the area of civil and commercial law, involved in many major legal developments in China over the past thirty years. He has been involved the drafting of major judicial interpretations, edited many books, and been involved in other major legal initiatives, including, most recently, the drafting of the Civil Code and the establishment of an environmental law research center affiliated with the Court. The many technical legal reforms in which he has been involved are crucial to the operation of the Chinese judicial system. The initiatives in which he has been involved are likely to go on with other talented people, but he is sure to be missed.
Effect on the credibility of the judicial system
Improving the credibility of the Chinese judicial system is said one of the goals of the Chinese judicial reforms. We will need to wait and see how Judge Xi’s case progresses, and how both official and unofficial commentators, as well as members of the Chinese public and international community view his case.
The answer to this question (in some Chinese courts, at least), is yes. A recent legal blogpost flagged a ruling in a labor case published in the Supreme People’s Court’s case database: Su Qiao v. the Taian (Shandong) Municipal Communist Party Disciplinary Inspection Commission. The author of the blog cited in support of his view Articles 48 of the 2012 Civil Procedure Law and Article 52 of the 2015 Civil Procedure Law Judicial Interpretation (concerning organizations that can be parties to civil litigation).
A subsequent (partial) database search revealed some other civil cases in which Communist Party organizations have appeared in variously as plaintiff, defendant, third party, and party against which the enforcement of an arbitral award was sought, including one decided by the Supreme People’s Court (Court):
On 12 March 2015, Zhou Qiang, president of the Supreme People’s Court (Court) delivered his work report to the NPC, putting the best face on where the Chinese courts are and where they’re going. He described court reforms as being in a “deep water area” (深水区)(a high risk area). This blogpost will highlight issues that other commentators (outside of China) have so far missed:
the mismatch between the focus of the work report and the work of the courts;
what the work report (on other than criminal cases reveals); and
the challenges to the Court leadership in the year ahead.
The primary focus of the work report (as always) is law and order, as seen from the perspective of Communist Party leadership, particularly state security related offenses (including terrorism and “splittism”) as well as ordinary crimes. A big difference in this year’s report is that President Zhou Qiang apologized for previous miscarriages of justice and highlighted efforts to prevent future ones. Other commentatorshavealreadyfocused on these both of these important developments and and other issues related to the criminal justice system.
bar chart: 2010-2014 increase in cases resolved by courts (in 10K) Pie chart: civil/commercial/IP; admin; re-trial/govt compens/enforcement/; parole; other/criminal
What the work report reveals is that most cases heard in the Chinese courts are not criminal and that the number of cases heard by the courts is rising.
What are cases are the Chinese courts hearing?
The pie chart (distributed as an attachment to President Zhou Qiang’s report at the NPC), illustrates that over 63% of the cases heard in the Chinese courts are civil cases (including commercial, family law and intellectual property cases), not criminal. Criminal cases (including parole related cases) account for something over 10% of cases (as others have discussed, many minor offenses are handled as administrative, rather than criminal offenses).
A closer look at civil cases in the Chinese courts
A bit of arithmetic reveals (unfortunately the authors of the Report did not set out a corresponding chart), that 34% of civil cases (2,782,000) in 2014 were commercial cases (up 8.5% year on year), while 66% were what classified as civil cases (in the narrow sense, described below).
Commercial cases:
(These cases are illustrated in the chart to the left that has the ¥ sign.)
1. Finance cases (824,000)(a broad category including various types of loans, credit cards, securities, futures, insurance etc.).
2. Sales contracts disputes (664,000).
3.Intellectual property (110,000, up 10% year on year)(I the detailed analysis of this can be found here, by my fellow blogger, Mark Cohen, at the ChinaIPR blog);
Foreign-related cases (5804), )these, although a focus of foreign law firms alerts and the press, are a tiny drop in the sea of Chinese civil cases. Many cases involving foreign companies actually involve their China incorporated subsidiaries.
The number of finance cases suggests a large number of disputes relating to loans by financial institutions.
Civil cases
(These cases are illustrated in the chart that has two people standing next to one another and the pie chart below.)
2014 civil cases in the Chinese courts
In 2014, 5,228,000 civil cases were heard in the Chinese courts (up almost 6% year on year):
1. Family law cases (1,619,000),(this category includes contested divorces, inheritance, support cases), accounting for about 30% of civil cases. The chart above 13% year on year increase in inheritance cases (showing an increasing number of people have assets worth fighting in court over, and perhaps also inadequate estate planning).
2. Loan cases not involving financial institutions (between individuals, company and individual, or two companies) （1,045,600), accounting for almost 20% of civil cases. (The categorization has changed, making a year on year comparison not easily possible).
3. Labor cases (374, 324), accounting for 7.16% of all civil cases. These include appeals from labor arbitration as well as cases that can be directly brought in the courts).
4. Environmental tort cases (3331) (up 51% year on year).
5. Product liability cases are up 44%, but the base or total number for 2014 is not set out.
6. Cases involving rights of rural residents (219,00)(rights to rural residential land, transfer of contracted land) migrant laborers seeking unpaid wages).
7. Construction disputes are up almost 18% (base or total number for 2014 not set out).
These numbers speak to:
1. changes to the Chinese family;
2. a large number of loans that are under the radar of the financial authorities;
3. employees who are increasingly rights conscious;
4. continued litigation risk for foreign companies doing business in China (including through subsidiaries), because as perceived “deep pockets”, Chinese litigants often target them in product liability cases.
Administrative cases
First instance administrative cases (companies or individuals suing the government) (131,000) continue to be a tiny number, although up 8.3%, and it remains to be seen whether the amended Administrative Litigation Law (Administrative Procedure Law) will lead to an increase in cases.
Enforcement cases
Enforcement cases (compulsory enforcement of court judgments or orders, arbitral awards, etc) account for 3,430,000, a 14% increase year on year. This suggests that fewer people (companies) are complying with dispute resolution voluntarily.
10% increase in cases accepted (will be a challenge to the courts if this trend continues because the intent is to cut the number of judges), amount in dispute is up 15%.
Court reforms already in a “deep water area”
Zhou Qiang highlighted that court reforms are already in a “deep water area” (high risk area) and the courts:
need to penetrate interest group barriers;
have the courage to move their own “cheese”;
need to use “the knife” against itself (presumably to cut out corrupt, poorly or non-performing judges);
deal with many deep-seated problems;
make progress on a long list of reforms:
continue and expand pilot reforms on changing the financing and personnel appointments of the local courts to all provinces/directly administered cities;
implement hearing-centered litigation reforms;
make progress on case filing reforms (to resolve the long term problem of litigants facing obstacles when they file suit);
put in place a system with dealing with assets seized and confiscated by the courts (to avoid violation of property rights and further judicial corruption in this process);
implement the prohibition against defendants wearing prisoner’s garb in court;
further implement judicial reforms related to petitioning;
promote alternative dispute resolution, such as arbitration, people’s mediation, administrative mediation etc.
continue work on pilot projects on expedited criminal procedures (for minor matters);
improve the people’s assessors system.
All of these reforms create tremendous challenges for the courts. The number of cases accepted by the courts in 2014 (15,651,000) was up about 10%. The judicial reforms to petitioning and other reforms will channel more disputes into the court system. Planned personnel reforms are leading to an exodus of young judges. Many of the planned judicial reforms are intended to the way the courts operate internally and interact with other institutions. The 4th Five Year Court Reform Plan sets out target dates for accomplishing certain major judicial reforms. The salary gap between what an experienced lawyer in private practice in a major law firm and a counterpart in the judiciary is large, leading many talented people to prefer the greater financial benefits and professional flexibility that comes with being a lawyer.
The political leadership has approved the 4th Five Year Court Reform Plan. Issuing it raises expectations among ordinary people as well as those in legal profession. The pressure is on for the Court leadership to deliver on the promised judicial reforms.
The Supreme People’s Court’s 4th Five Year Reform Plan has finally been released to the public (linked here). An English translation will be forthcoming here. Some of the issues highlighted have been discussed in earlier blogposts (as linked) and it builds on the principles released in July, 2014 and in the 4th Plenum Decision. It is critical to the development of the Chinese legal system and has its international implications as well. Some of the highlights:
Basic principles (Party leadership is a given): independence of judicial power (审判权的独立性); neutrality (中立性), procedurality 程序性)， finality(终局性) (all distinguished from “Western style” judicial independence).
Among the specific measures are:
Specific deadlines for reforms or structures for reforms to be put in place (some by end 2015, others by end 2016, 2017, 2018);
Greater transparency in a broad range of areas, ranging from the parole of prisoners, assignment of judges, to the handling of property seized or confiscated by the courts;
Measures to cut back on local protectionism, such as cross jurisdictional and circuit courts, focusing in particular on major administrative cases, environmental cases, bankruptcy cases, food safety cases and others, by changing jurisdictional provisions in administrative cases, environmental cases, and others);
Details on what the Court means about “hearing centered procedure,” and imposes a goal of end 2016 to establish a hearing centered system, as having evidence presented and reviewed at the hearing, both parties being given a chance to be heard, requiring witnesses and experts appear at hearings; assumption of innocence, exclusion of illegally obtained evidence (and establish systems for determining and excluding such evidence), all of which involves a greater role for lawyers;
In the area of criminal justice, provides better protection to defendants and their counsel, such as prohibiting criminal defendants from being forced to wear prison clothing, shackles, etc., idea that the prosecution and defense have equal status in the criminal process, better judicial review of individuals whose freedom is restricted;
In civil cases, requiring evidence to be reviewed at trial and major disputed evidence must be highlighted in the judgment or ruling and whether the court is relying upon it;
Improving the status of lawyers in both criminal and civil litigation;
Reforming jurisdiction in environmental cases;
Improving jurisdictional provisions in public interest cases (which at this time means environmental and consumer cases);
Changing the docketing process from a substantive review to a registration procedure (which in the past has meant that “inconvenient” cases were not accepted);
Reforming internal court procedures and roles, particularly that of the court president, members of the judicial committee, and heads of division, requiring documentation of communications with the judge or judges handling the cases, as well as focusing the judicial committee on legal questions (external pressure on these court leaders has been a significant factor in the miscarriages of justice now being revealed);
Distinguishes the functions of courts at first and second instance (as well as re-trial and judicial supervision) stages;
In appeal cases, the court should set out the issues in the case at first instance;
Changes the relationship between the higher and lower courts so that they operate independently;
Prevents judicial corruption in a variety of ways, such as improving the judicial auctioning process, confiscation of property, and much more transparency;
Setting up a system for preventing interference in court cases by requiring notes, etc. from leaders to be retained in the file and made available to parties and their counsel;
In the spirit of greater openness, the document states that reforms by lower courts are to be reported to the Court before being launched and major reforms need to be reported to the Party central authorities before being launched [apparently to ensure Party leadership to prevent the political authorities from being unpleasantly surprised].
The changes relating to basic court institutions will affect all types of cases, whether they are environmental, intellectual property, or foreign-related ones.
The drafting of this document required countless hours of work and negotiations. The real work is ahead, in implementing its principles, and in particular changing patterns of behavior as well as institutional and political culture formed over several decades.
Prisoner choosing commutation & parole options from corrupt jail official
Before Chinese new year, the Supreme People’s Court held a news conference to highlight its accomplishments in reforming parole procedures. The previous procedures (or lack of them) (as described below) appeared to have been a money-spinner for prison officials. The reform in parole procedures highlights the value that current Chinese legal policy places on Justice Louis D. Brandeis’s wisdom (without citing him):
“Publicity is justly commended as a remedy for social and industrial diseases. Sunlight is said to be the best of disinfectants…”
The change in parole procedures also are a good example of how results of investigations by the Central Commission for Discipline Inspection (CCDI) and Central Political and Legal Committee policy documents are eventually are translated into improvements in legal procedures.
The reforms to parole procedures include:
The Court’s August, 2014, Provisions On Commutations And Parole(最高人民法院关于减刑、假释案件审理程序的规定) (translation can be found here), requiring much more transparency;
November, 2014 procedures issued by the Court along with the Ministry of Justice, Ministry of Public Security, Supreme People’s Procuratorate, and National Health and Family Planning Commission on medical parole and related issues (暂予监外执行规定), establishing stricter guidelines.
Establishing an internet platform on the Court website to make public (provide sunlight) parole/commutation matters: acceptance of applications, notice of court hearings,and court rulings;
Establishing a filing system under which decisions relating to officials of county level (or section (处) need to filed with provincial high courts and provincial department (bureau level（局)) need to be filed with the Court;
Model cases on parole and commutation, to guide lower court judges in their work, and inform the public on these reforms.
Axe labeled “power”, “money”
The background
With flexible provisions and limited transparency on medical parole, commuting sentences, and parole procedures, in recent years apparently underpaid Chinese prison officials caught the entrepreneurial spirit and (like the Monopoly game that many of us grew up playing), sold “get out of jail cards” to those who could afford to pay. Those were generally made up the wealthy and (formerly) powerful, particularly those who had committed the following crimes:
duty crimes (including taking bribes and abusing authority);
organized crimes;
financial crimes.
An August, 2014 press report mentioned that over 700 prisoners nationwide had improperly secured early release. Other reports cited that prison officials in Guangdong were particularly entrepreneurial, arranging for the improper release of approximately 140 in Guangdong, primarily former officials, including:
Wang Ju, former vice mayor of Shenzhen;
Zhao Yuchun, former head of Shenzhen customs;
Huang Shaoxiong, former deputy head of the Guangdong United Front Work Department; and
CCDI investigations and Central Political Legal Committee policy document
It appears that these reforms can be traced back to CCDI investigations in 2013 (and possibly earlier), because in August, 2013, the CCDI website carried a summary of a speech by Xi Jinping at a CCDI conference in which he calls for reforms to parole procedures. At about the same time reports of investigations into prison officials were released by CCDI, such as one of a Hunan Province Justice Department (the Justice departments run the prison) official who was found to have almost USD 2 million (12 million RMB) in assets disproportional to his income. Manyother prison officials in other provinces have also been investigated.
In January, 2014, the Central Political Legal Committee issued a policy document outlining the policy framework for the reforms, which began with the frank admission that society was incensed by the rich and powerful who had been sentenced to prison who often served relatively short sentences because they had their sentences commuted or were given parole, directing special restrictions prisoners convicted of the above three types of crimes. (The Supreme People’s Procuratorate has issued its own regulations to implement the policy document.)
Going forward
Reducing corruption in the justice system and giving Chinese people more confidence in it is a multi-faceted process, with greater transparency needed across many areas. These reforms to parole and commutation procedures are likely to be one of the accomplishments that President Zhou Qiang will be able to point to when he gives his report to the National People’s Congress next month, particularly as the August, 2014 regulations are listed as one of one of the Court’s 10 major policy accomplishments of 2014.
Additionally, the internet platform also serves as a window into criminal activity in China, such as the recent application by a Han native of Xinjiang, convicted in Beijing of dealing in drugs, but who was permitted by the Chaoyang District Court to serve his sentence outside of jail for the next six months, because he has AIDs.
The 27 December headline story in the People’s Court Daily and the national court website is the decision by the Party Committee of the Supreme People’s Court (the Court), issued to the entire court system, to:
cancel court performance rankings;
Except for those targets for resolving cases that according to law are compulsory, the remaining targets should become reference data for analyzing judicial operations.
oppose the practice of avoiding accepting cases at year end with the excuse that it would bring down the court’s case resolution index.
This is the result of its own fieldwork, as well as criticism from the lower courts, NPC delegates, academics, and lawyers. Chinese courts avoid accepting new cases close to year end if the case will not be resolved until the next year, because these cases will pull down a court’s performance indicators, even though the rights of litigants can be sacrificed.
Chinese and foreign academics have highlighted the negative consequences of judicial performance performance targets for many years.
He Fan, a Court judge on the staff of the research office, while applauding the change, pointed out in his blog that despite the change of policy by the Court, some lower court judges remain under pressure by local court leadership to work overtime to resolve cases.
What indicators will replace them?
The reports do not link to the underlying Court document and so it remains unclear what performance indicators will replace the ones that have been abolished, or which indicators fall into the second category. The judicial reforms anticipate having a smaller number of judges handling an increasing number of cases. If judges find the new performance evaluation system unacceptable, this may lead to an even greater outflow of judges than is already occurring.
The skills of a Kremlinologist (the Supreme Court Observer first learned these skills when reading Pravda and other Communist Party of the Soviet Union publications as a Russian Studies major) are needed to unpack what a Plenum Communique and a Plenum Decision mean for the Chinese legal system. (For those who haven’t heard the term “Kremlinologist,” the Wikipedia article gives a good summary).
The Plenum Communique (now nearly forgotten) is a set of high level bullet points. The 4th PlenumDecision, released late on 28 October, is something akin to a memorandum of understanding (MOU), for those who have spent time in the world of commercial law or business. The 4th Plenum Decision cannot be implemented by itself–for many issues it requires complex bureaucratic arrangements, as well as framework legislation and detailed rules (akin to the sets of contracts that are needed for a business deal). So evaluating how the 4th Plenum Communique or Decision will affect the real world of Chinese law requires the same analytical skills as taking a deal’s high level bullet points or MOU and predicting how a business will operate.
Evaluating a Plenum decision requires analytical sifting of the standard language from the operative provisions. Those provisions are often single phrases, and have behind them years of research and policy analysis within the institutions involved, as well as Chinese universities and think tanks.
The Supreme People’s Court Observer will take this opportunity to evaluate discrete provisions in the 4th Plenum Decision in future blogposts, as time permits.
The details of how the 4th Plenum Decision is being implemented by the Supreme People’s Court are gradually being made known. This blogpost looks at one discrete (and specialized) area, relating to national defense and the military in the civilian courts.
On 31 October, the Supreme People’s Court issued its Opinion on Expanding Capacity in Safeguarding the Interests of National Defense, Guaranteeing the Rights and Interests of Military Personnel, and Military Dependents (关于进一步发挥职能作用维护国防利益和军人军属合法权益的意见)(The Opinion) (linked here, with comments by a spokesman here).
The sixteen point policy is intended as a comprehensive statement of judicial policy on these issues to be implemented by the lower courts in furtherance of the goals set by the 4th Plenum Decision.
The Opinion draws on some of the documents and addresses some of the social and regulatory issues described in earlierblogposts.
It is intended to implement the following provisions in the 4th Plenum Decision (among others):
Safeguard the interests of national defense.
Guarantee the lawful rights and interests of soldiers.
Strengthen legal services in the area of the people’s livelihood. Perfect legal aid systems, broaden the scope of aid.
Several points from the Opinion are highlighted below, as well as questions that the Opinion raises (and some of the underlying issues) .
Some Points in the Opinion
1. The Opinion directs the lower courts to improve case filing and jurisdiction in cases related to the military. The Opinon cites the three principal judicial interpretations on civil and criminal jurisdiction in military cases, and encourages lower courts to establish special case filing counters for the military.
Why special counters for the military rather than the handicapped, for example, or other disadvantaged groups?
2. The Opinion directs lower courts to provide judicial and legal assistance to military parties. The Opinion explains that Judicial assistance means exempting or reducing court fees for poor military families in civil cases known as as “involving the interests of ordinary people” (more about these in an earlier blogpost) such as:
support payments (to the elderly);
child support;
compensation payments (to the disabled or families of the deceased).
The Opinion directs lower courts to take the initiative to assist soldiers and military dependents who qualify in receiving legal aid. What this means is that courts should reach out to local justice bureaus. In some provinces, such as Zhejiang, the provincial judicial bureau has worked with the local military district to establish legal aid centers for military personnel and their dependents, under which local law firms have concluded agreements to provide legal advice (see this report).
How does the provision of legal aid to military personnel and their dependents compare to legal aid provided to other persons in poverty?
3. Do a better job of trying military cases. This refers to both criminal and civil cases.
Most of the criminal cases mentioned were detailed in this earlier blogpost.
Among the new principles to be implemented in civil cases are:
supporting core military enterprises and military industrial companies. (依法为军队核心产业、军工企业的科学发展提供司法支持).
Government policy seeks to have more private sector involvement in military and military industrial companies.
What does this mean when commercial disputes arise– how will the interests of each party be weighed?
4. Establish a “green channel” for military related cases (this was mocked earlier this year), by giving priority to military-related cases in docketing, trial and enforcement. Part of this means directing lower courts to gather evidence if military parties have difficulty obtaining evidence.
What if it is the non-military party that has that difficulty, either in a commercial or family law case?
5. The Opinion directs the lower courts to work under the united leadership and support of the Party committee and political-legal committee on these issues and to work with other related departments to deal with military related cases.
What does that mean if the approach adopted by the Party committee or political-legal committee favors one party over another?
Other points include:
Establishing mechanisms for resolving disputes involving the military.
Improving enforcement of military-related orders and decisions.
Improving judicial service related to the military
Courts should work closely with the military.
Explore capturing statistics on military related cases.
Incorporating work in military-related cases in judicial performance evaluation.
Working with the military courts on military-related cases.
Some of the underlying issues
As identified in earlier blogposts, some of the underlying problems causing an increase in military-related cases in the civilian courts appear to be :
an increase in civil unrest involving civilians and military;
unresolved civil disputes involving the military and its personnel
criminal cases involving civilians and military that have not been prosecuted because of evidentiary issues.
separate operations of the military and civilian justice systems;
difficulties in coordinating across bureaucratic systems.
performance indicators for officials within the (civilian) legal system, relating to the percentage of closed cases or other success rates.
The Opinion and the 4th Plenum
What does the Opinion mean for principles in the 4th Plenum such as:
guaranteeing judicial fairness, exercising judicial power independently according law, raising judicial credibility and striving to have the people feel that every judicial case is fair and just?
The Supreme People’s Court (SPC)’s 
Commercial cases were up 20% (3,347,000, with 120,000 intellectual property cases (up from 110,000 in 2014). This is likely linked to the new intellectual property courts, but I will cede further analysis on this to my fellow blogger Mark Cohen of 
The rush towards year end in the Supreme People’s Court (SPC), as in the business world, means a flurry of announcements of important developments, to ensure that the SPC meets its own performance targets. Among the recent announcements are:
Supreme People's Court Monitor 
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