According to the Wechat postings of one of its members, the judicial reform office of the Supreme People’s Court has been working overtime for months to prepare for the 4th Plenum. It appears, at least from the initial 4th Plenum communiqué, that the hard work has paid off. We will know more about the leadership’s plans for legal reforms when the full decision is released. Four quick questions about the communique are set out below (to be supplemented as time permits).
Some questions for the Supreme People’s Court and the judiciary:
1.The communique stressed the need for improving the quality of legislation, including incorporating more public consultation and experts. Will this reduce the need for judicial interpretations? What will this mean for the drafting of judicial interpretations? Will the Supreme People’s Court require public consultation for its own judicial interpretations? The release this month of drafts for public comment of the environmental public interest litigation regulations and the trademark validity administrative case rules are a step in the right direction.
2. The communique called for greater judicial transparency, as was highlighted in the Court’s 4th Five Year Reform Plan. In its press releases to the domestic audience, the Supreme People’s Court has mentioned the visits it has hosted of the foreign press, foreign diplomats, and ordinary citizens, and of analogous events at the local level. When can we look forward to easier access by all (foreign or domestic) to proceedings in the Chinese courts (at least in non-sensitive cases)?
3. The communique indicated approval by the leadership of the establishment of circuit courts that cross administrative lines, a concept mentioned in the 4th Five Year Reform Plan (see this earlier blogpost). It also reflects the use in China of foreign legal concepts or frameworks (as is frequently stressed, a reference and not as a transplant).
4. It also called for an end to “interference” by leading cadres in specific court cases. How will this long-standing practice will be curbed? In recent weeks, articles have appeared in the legal press on changes to the Party Political Legal Committees. Will those changes imply less involvement in actual cases? And what is the distinction between “interference” and “leadership”?
In a build up to the National Day holiday (and since), the Supreme People’s Court (the Court) has focused some of its attention on combating the disease of judicial corruption. The prescription is in the form of three types of Communist Party documents. This blogpost highlights the prescription and speculates on the timing.
The herbs in this traditional prescription comes in the form of:
Six model (typical) cases of violations of the Communist Party’s Eight Point Regulations by court officials ( “cadres and police”/干警)). (An earlier blogpost analyzed seven earlier model cases that the Court issued. The six (relatively minor) cases included:
a Guizhou county court spending over 500,000 RMB on a trip to Hainan at public expense, lavish banqueting, and abuse of bonuses;
leadership of a Shaoguan (Guangdong) court, that caused the death of their dinner guest, an official of a county court, from alcohol poisoning;
vice president of a Hunan county court, who used a court vehicle to take his daughter to school;
the head of the disciplinary department of a Hancheng (Shaanxi) court caught by a reporter playing video games during work hours;
Holiday rules on what not to do during the Mid-Autumn Festival and National Day holidays. The Central Commission for Disciplinary Inspection (at various levels) issued notices distributed to the courts forbidding officials “gifting” moon cakes, shopping vouchers, “red packets”, and touring at public expense,
A document, linked here, providing policy guidance to the disciplinary departments of the courts in rooting corruption out of the courts. The head of these departments is Zhang Jiannan, who is the Communist Party’s Central Commission for Discipline Inspection’s (CCDI’s) chief representative in the Supreme People’s Court, and directs the disciplinary departments of the lower courts. The document is again focused on anti-corruption efforts within the courts. It directs the disciplinary departments to focus on discipline, report to the local Party disciplinary authorities as well as the disciplinary department of the higher courts, participate in major court internal meetings, improve the operation of disciplinary inspectors (described below). It directs disciplinary officials to participate in important meetings, drafting of important documents, and clear personnel appointments. The disciplinary officials are directed to implement the Party Constitution as well as 2008 regulations on supervision work in the courts.
Some background
The background for these documents is the Communist Party’s Central Committee’s five year anti-corruption plan (analyzed here). Following that:
the Court’s Party Committee issued a June, 2014 document on Party discipline:
the Court dispatched teams of its own disciplinary inspectors（最高人民法院司法巡查组) to Henan, Ningxia, Fujian and Anhui in May and September. These disciplinary inspectors are the Court’s counterpart to the CCDI’s inspection teams, which at the central level called Central Inspection Groups (中央巡视组) (“CIG”). These CIGs uncover corruption and other abuses, under which semi-retired high ranking officials are dispatched to provinces, ministries and SOEs for disciplinary inspection. The political background for these inspection teams is analyzed in this article. These inspection teams have operated in the courts for a number of years and operate according to these rules.
The Communist Party Central Committee’s Political Legal Committee issued three batches of “typical cases” of violations of law and Party discipline among the “political legal departments,” (each linkedhere) which included a substantial number of judges, including Liu Yong of the Supreme People’s Court, removed for suspicion of having taken about 2 million yuan in bribes (about $330,000).
The timing
The timing for the release of these recent documents appears to be linked to the upcoming Fourth Plenum of the 18th Chinese Communist Party Central Committee, on the rule of law. Part of the agenda, according toreports, is the role of the judiciary, curbing corruption and announcing forthcoming judicial reforms.
A traditional prescription
This prescription for curing the courts of corruption uses the traditional cure of Party discipline rather than judicial ethical models more commonly used in other jurisdictions. The Chinese judiciary has looked at approaches to judicial ethics in other jurisdictions, including Germany, the US, and Hong Kong. Elements of this prescription, such as having disciplinary officials participate in important meetings and the drafting of important documents appear to be inconsistent with some of the goals in the judicial reform plan of having the judges who heard cases decide them.
Will the prescription be effective?
The current prescription is a variation of what has been prescribed before. The Court needs to show the political leadership that it is it doing what it can to combat corruption in the courts and is implementing anti-corruption initiatives. The anti-corruption drive is being led by the CCDI, using Party channels and methods.
Corruption prevents or at least complicates efforts to establish and operate a court system that meets the needs of ordinary people. It appears that the Court leadership is under no illusions about what goes on in the court system. However, the Court leadership can only work within the current system and with current personnel. Will the broader anti-corruption campaign lead to a change in China’s social and business culture, of which the judiciary is a part? Or do these latest initiatives not go to the core of the problem? 换汤不换药?
An article on the judicial reforms in the 25 September edition of Southern Weekend (南方周末) is now making its way across Chinese social media, featuring an interview with Peking University Law professor Fu Yulin and Tsinghua University law professor He Haibo. The article addresses some of the questions many inside and outside of China have been asking:
What is the status of the judicial reform pilot projects outside of Shanghai?
What is the status of some of the issues mentioned in the judicial reform documents?
Why haven’t China’s judicial reform documents been made public?
Some background
The two principal judicial reform documents approved by the highest political authorities are:
the Fourth Five Year Plan Judicial Reform Outline, a summary of which was issued on 9 July (blogpost analysis here and here).
the Shanghai Judicial Reform Pilot Project Work Plan（上海市司法改革试点工作方案). A detailed description of how the Shanghai authorities will implement this (上海市司法改革试点工作方案>实施意见) has been released by both the Shanghai and national press (an English translation available here).
The published reports on the Fourth Five Year Plan Judicial Reform Outline have mentioned that pilot projects would be implemented in Guangdong, Hubei, Jilin, Qinghai and Hainan, but no outlines of those pilot projects have surfaced.
What is the status of those judicial reform plans?
According to Southern Weekend, drafts for judicial reform plans for Guangdong, Hubei, Jilin, Qinghai, and Hainan are basically finished and have been submitted to the Central Political Legal Committee. They are awaiting approval.
What is the status of some of the issues mentioned in the judicial reform outlines?
Judicial selection committees
According to Southern Weekend, it is unresolved under the judicial reforms, who will select judges and how they will be selected. Plans for all five pilot plans designate the the head of the provincial political legal committee as the head of judicial selection committee, with the judicial selection committee to be based at the provincial political legal committee. The reforms in Shanghai are the exception, where the judicial selection committee will be based in the Shanghai Higher People’s Court. The two law professors interviewed suggest that the provincial people’s congress would have been more appropriate (for the other five pilot plans), but they state that the people’s congresses in these locations did not want to take on that role. (And one comment on the article was that the Party, after all, selects people’s congress members.)
The law professors stressed the need for legal professionals to be members of judicial selection committees. One noted that in China, the principle of “the Party manages cadres” (党管干部) cannot be avoided and suggested that judicial selection committee and Party organization department clearance could run parallel.
It seems that the tension between Party involvement and professionalism in judicial selection remains an issue.
Quota system for judges
The quota system for judges refers to establishing quotas on the numbers of judges in relation to other personnel within the judicial system. As described in thesearticles, the plan in Shanghai is to limit judges to 33%, with administrative and support staff constituting 55% and 15% respectively. The framework in Shanghai has been widely discussed and criticized in the Chinese legal press and on social media, particularly for its impact on younger judges, who note that they would not fit the judicial criteria and would be made “obsolete.”
Professor Fu echos criticism made by judges and others in the press that imposing a rigid quota system for the number of judges was inappropriate. She pointed out that at the basic level, having a system with fewer than 40% judges was unworkable, given that the Chinese courts at the basic level had to deal with large number of minor offenses. The reason was that China had not yet established separate courts to deal with minor offences [the Supreme Court Monitor notes that pilot projects for these courts are underway in some areas]. Another issue is the many responsibilities that Chinese judges have in addition to hearing cases and how a smaller number of judges will be able to hear cases as well as carry out their other responsibilities (research, compiling judicial statistics, promoting the courts).
Why haven’t the current judicial reform documents been made public?
The professors note that they themselves have not seen the judicial reform documents either. They suggest that policies for many issues have not been worked out, but that the uncertainty about the direction and content of the reform policies has a negative effect.
The upcoming plenum
It seems likely that the upcoming fourth plenary session of the Chinese Communist Party’s 18th Central Committee, on rule of law, in October will give us more certainty about the direction and content of the judicial reform policies. In the meantime, the issues and their implications give us all much to think about.
On 16 July the Supreme People’s Court’s (Court’s) newspaper and social media outlets headlined two articles important for observers seeking to understand the judicial reforms:
a report on statements by Meng Jianzhu, Politburo member and chair of the Central Political Legal Committee on the importance of the judicial reforms; and
an long explanation by HeXiaorong, the leader of the working group on judicial reform (of the Court’s judicial reform office) on the theory, logic and implementation of the judicial reforms.
Meng Jianzhu
Statement by Meng Jianzhu
The statement by Meng Jianzhu , made after he heard reports on the implementation of judicial reform pilot projects in six areas, stressed that the Central leadership considers the judicial reforms very important and has given a set of policy instructions on the implementation of the reforms. He calls on all involved in various political/legal organs at all levels to implement the reforms.
For anyone who has spent any time in a large organization, his message, although expressed in Chinese political language, will sound familiar:
make sure those at the local level are “on message”;
don’t impose the same method everywhere (不搞一刀切;
ensure enthusiasm about the reforms, otherwise they may fail.
The thinking behind the judicial reforms
He Xiaorong
A long article by He Xiaorong published on 16 July in the People’s Court Newspaper and other Court media outlets summarizes the thinking behind the judicial reforms (and what must have been the hundreds of pages of policy papers that underly what has been made public). It is an edited version of a fuller paper, that has been issued on Wechat and perhaps other outlets (and is said to express He’s own thinking). For those seeking to understand the judicial reforms, it deserves close analysis. A flash analysis will follow when time permits.
On 9 July, the Supreme People’s Court issued its fourth five year reform plan for the courts, approved by the Party leadership, which sets out 4 broad areas of reform, relating to 8 general areas. An overview has been released on Wechat and other Chinese social media and can be expected to be published very soon in more traditional media. An clear info graphic was published on the Court website and other official media, translated here.
The Court described it as taking first steps towards establishing a judicial system with Chinese characteristics and is intended to roll out reforms announced in the 3rd Plenum decision and the judicial reform decision announced earlier this spring and some of its themes were highlighted in press releases published just after Chinese new year. Many of these issues are ones that have been discussed within the Chinese legal community for many years and draw on international expertise as well. The summary below highlights five of the eight broad areas.
Personnel reforms
Separate administrative and judicial jurisdiction
Improve the operation of the judicial function
Improve the protection of human rights
Increase judicial transparency
Clarify the roles of the four levels of the courts
Improve judicial administration
Promote reforms relating to petitioning
Personnel reforms
The intention of the personnel reforms are to split the treatment of judges from other civil servants, to step away from the traditional model of judges as cadres. This will involve pushing forward the initial reforms being tested to change the personnel management of local courts, and transfer that to the provincial level. This will include:
the establishment of provincial level selection committees, will involve clearance by Party disciplinary and other functions, and retain appointment by the people’s congress.
Personnel reforms will also involve splitting the management of judges from other judicial personnel, such as judicial police and clerks.
Additionally, reforms are intended to the use of judicial headcount, to focus that by increasing the number of judges.
Two other reforms involve establishing new systems for judicial promotions and establishing differing criteria for the recruitment of different types of judges.
Separate administrative and judicial jurisdiction
Reforms in this area include:
taking steps to take certain cases, such as some environmental and commercial cases out the local administrative jurisdictions, so that they can be heard fairly.
Reform some of the lesser known courts, such as the forestry courts, to bring them into the ordinary court system.
Establish a system for circuit tribunals at provincial level to hear difficult cases, and focus on environmental cases.
In areas where there are more intellectual property cases, promote the establishment of intellectual property courts.
Improve the operation of the judicial function
The summary concerning this section admits that having the person who heard the case decide it remains difficult to implement within the Chinese jidicial system, and that despite initial attempts, internal multi-level approvals for deciding cases remains the norm. The intended reforms in this area include:
improving the system of responsibility of the primarily responsible judge and the panel that heard the case.
Changing the system of signing judicial decisions.
Improving the monitoring of judicial performance.
Improving judicial disciplinary procedures.
Importantly, reforms look to change the current relationship between the judge responsible, the tribunal, and others in a position of leadership within the courts, such as the head of the division and court president. There has been a great deal of academic writing about this, in both English and Chinese, as well as articles written by judges serving at various levels. A great deal of thought has gone into this section and implementing these reforms will involve changing long-term patterns of interaction.
Improve the protection of human rights
Reforms in this area are intended to improve the protection of human and property rights, particularly by improving judicial review of the investigation and prosecution stages:
Eliminate the use of illegally obtained evidence.
Improve the role of the defense lawyer and the statement by the advocate for the defendant.
Improve systems for pursuing judicial negligence.
Improve the protection of assets relating to [criminal cases].
Improve reforms in the area of minor crimes, so that those cases are heard more quickly (pilot projects are underway in some areas).
These reforms represent the result of years of discussions within the judiciary, with lawyers, academics, and interactions with members of foreign courts, research into foreign legal systems, and others.
Increase judicial transparency
Reforms in this area build on the initial steps taken late last year and include:
Make the hearing stage more open, by improving the system of announcements and permitting spectators to attend court hearings, increase real time broadcasts of hearings.
Improve the handling of judicial information, so that litigants can determine the status of their case on-line.
Improve the judicial decision database, Judicial Decisions of China.
All of these reforms are good practical proposals. Foreign observers of the Chinese courts would welcome easier access to Chinese court hearings.
A quick comment
Drafting this reform plan has been a tremendous undertaking and its implementation promises to be even more challenging. Some of the reforms discussed above are the subject of pilot projects in various parts of the country, ranging from Guangdong and Shanghai, where the courts have heavy caseloads and face cutting edge cases, to less prosperous inland provinces. Reforms are likely to start with what is most easily implemented and where results can most easily be achieved. What this means for some of the specialized courts, such as the military and maritime courts, will be clarified in time. The extent to which these reforms can change patterns of interaction within the judiciary and between the judiciary and government/Communist Party of many decades standing remains to be seen. It is hoped that the pressure of greater professionalism within the judiciary, and other social and economic forces will eventually result in a judiciary that better serves the needs of all.
On 9 June, the Supreme People’s Court’s Party Committee held a meeting to transmit the latest Party policy on secrecy in the courts, as reported here. It is intended to implement General Secretary Xi Jinping’s policy statement on secrecy and security, within the court system. It appears to be linked to policy issued earlier this spring at the meeting of the National Security Commission (official report here and analyzed here).
President Zhou Qiang stressed the following issues:
maintaining state secrecy and advancing judicial openness, to implement “justice under sunshine” and promote justice and fairness for the people;
dealing with the relationship between secret and non-classified materials, so that secrecy standards are applied properly;
secrecy education and punishment, putting preventative training in place and strict punishment;
the relationship between software and hardware, stressing preventative measures as well as hardware controls.
It does not appear that new secrecy regulations are in the works. Judicial personnel have secrecy obligations under secrecy regulations applicable to the courts (which apparently have not been made public) (but an English translation is found here), as well as set forth in the Judges Law and other sources. Judging by the large number of articles on court websites on this topic, in the age of smartphones (whether iPhones or Xiaomis), it appears increasing difficult for those restrictions to be effectively implemented.
In late April, the Supreme People’s Court, the Supreme People’s Procuratorate, and three central government agencies issued a document focusing on medical-related disputes and crimes committed within China’s medical system, along with four typical cases(典型案例). (I flagged the importance of the issue of medical disputes and crimes in a post late last year and have discussed typical cases here.) The document：
provides an recent example of the Court issuing policy documents;
shows how the Court implements Party/government policy relating to an important social issue;
illustrates the stresses in the Chinese medical system; and
highlights the inadequacies in medical legislation.
Why was this document issued?
The document was issued to deal with the increasing number of disputes and especially the violence in the Chinese medical system, that have been reported and explained by a variety of sources, including the Lancet, BloombergBusinessweek, and the Atlantic. The Chinese press (also academics outside of China and foreign press) has run many stories on “medical troublemakers” (医闹) –either disgruntled patients or their families or people especially hired to make trouble in a hospital to embarrass the hospital to making a large settlement. Why? As Wan Xin, a member of the Council of the Chinese Medical Law Association is quoted in a Xinhua press release as saying: “if you make little trouble, you get little money, make big trouble, you get big money, if you don’t make trouble, you don’t get money” (小闹小给钱， 大闹给大钱， 不闹不给钱).
Heilongjiang medical workers protestProtest outside one of Kunming’s main hospitals
The Court issues policy documents
The document, clunkily named “Opinion on strictly punishing according to law illegal and criminal acts relating to the medical system and upholding normal medical order” (关于依法惩处涉医违法犯罪维护正常医疗秩序的意见) (the Opinion), was issued by the following government agencies in addition to the Court:
Supreme People’s Procuratorate;
Ministry of Public Security
Ministry of Justice;
State Commission on Health and Family Planning.
The Opinion is what in Chinese is called a normative document（规范性文件). As I discussed in an earlier blogpost, the Court often issues them (and has done so for many years). They contain legal rules and policy statements and have different titles from judicial interpretations, in this case “Opinion”.
This document, for example, does not fit the legal definition of a judicial interpretation because it is issued with three State Council ministries/commissions, that is three agencies not authorized to issue judicial interpretations. The rationale for this practice is that officials of the administrative organ involved will comply only if their administrative organ jointly issues it with the Court and requires compliance of its subordinates, which in this matter includes the hospitals and other parts of the medical system, the police, and the people’s mediation committees. Normative documents also address issues, such as this one, where the law is unsettled and are also on the political agenda.
What the Opinion says and does not say
The substance of the Opinion is in two sections.
Section 2 describes six sets of offenses commonly committed, how they should be punished and what different parts of the justice system should do. Those offenses are:
Attacking or intentionally harming medical personnel and damaging property;
In medical institutions, setting up shrines, funeral wreaths and burning paper money or placing a corpse in public spaces;
Restricting the freedom of medical personnel (e.g. by preventing them from leaving their workplace)
Insulting medical workers,
Bringing weapons, explosives, radioactive materials etc. into medical institutions; and
Instigating others (including family members) to commit crimes against medical personnel.
Section 3 focuses on preventing medical related disputes and improving the way they are resolved. In particular, the health authorities are directed to improve the quality of medical services, their own monitoring of medical institutions, the compliance of medical institutions with medical legislation and medical codes, improve the protection of patient’s right to privacy, right to know, right to choose, and other rights, and push the establishment of better channels of communication with patients. The Opinion calls for a three track system for resolving medical disputes:
medical institutions should establish departments to receive and deal with complaints;
otherwise, medical disputes should be mediated through three party mediation;
if mediation does not work, the courts should deal with the cases in a timely manner.
The Opinion does not call for improving legal rules dealing with medical issues. (But see more about this below.)
The Court implementing Party/government’s policy
Disputes involving the medical system have increased in number and severity in the last few years. Violent crimes committed by patients and/or their families have increased, capturing national attention. In the Third Plenum Decision, the Central Committee called on the government to address the underlying issues:
Reform of the medical and health care system shall be deepened. The comprehensive reform of medical security, medical services, public health, drug supply and regulatory system shall be pushed forward in a coordinated manner…Efforts shall be made to improve the work system linking people’s mediation, administrative mediation and judicial mediation, and set up a comprehensive mechanism for mediating, handling and resolving conflicts and disputes.
Therefore improving medical security and medical dispute resolution have been high on the agenda of the Central Committee Political Legal Committee. The Opinion and related articles were published on the website of the Central Political Legal Committee and the Chairman of the Central Political Legal Committee has been involved in initiatives implementing the Opinion, particularly the mediation of medical disputes.
Protecting medical institutions from troublemakers
Inadequacies in medical legislation and dispute resolution
The Opinion does not address the inadequacies in existing medical malpractice legislation. (This has been the topic of several law review articles in English (also in medical academic literature) and many more articles in Chinese, including on Chinese social media. Although the Tort Liability Law contains basic principles, the law itself and its related judicial interpretation do not have sufficiently detailed rules on issues such as:
cause of action;
liability of different parties;
expert opinion;
determination of causation;
issues of proof; and
determination of damages.
Therefore, these cases drag on in the courts, and Wan Xin noted that a wait of two or three years to resolve these cases is not unusual. A Beijing judge, writing on social media, noted that medical malpractice cases in his district are “many, difficult, and volatile” (多，难， 激).
The lower courts have to cope with the increase in medical malpractice litigation, because patients are increasingly aware that litigation may result in a more favorable settlement than mediation. Some local courts have issued court rules to deal with some of these issues. Some of the outstanding questions are:
when will the Court issue a more detailed judicial interpretation on medical malpractice and how will it strike a balance between the rights of patients and the medical system?
Can a effective dispute resolution system be devised which can put the “medical troublemakers” out of business?
Do foreign medical/legal systems have expertise in medical malpractice that may be suitably transferred to the complex Chinese medical/legal system?
On 8 April 2014, the Communist Party’s Central Political Legal Committee and the General Political Department of the People’s Liberation Army (PLA) (the PLA’s highest Communist Party organization) jointly issued a document on improving the protection of the rights of the military, military personnel, and military dependents (关于加强维护国防利益和军人军属合法权益工作的意见) (PLA Legal Protection Opinion). The document itself has not been made public, but a summary has been widely distributed the press (including the People’s Court Daily website). The PLA Legal Protection Opinion has drawn caustic comments from some in the Chinese blogosphere for its request that the political legal authorities (the courts, procuratorate etc.) create a “green channel” to resolve military related disputes, by giving those disputes priority at all stages of criminal and civil procedure (from docketing cases to enforcement), and call for “special matters to be handled specially” (特事特办). .
The PLA Protection Opinion provides another glimpse into the interactions of the Communist Party bureaucracy, Chinese military and civilian legal systems, and the social and economic changes in China affecting the PLA. This blogpost describes:
what the distribution list was;
what the problems are;
what the super committees are;
the drafting process; and
why the document was issued.
The Distribution List for the PLA Protection Opinion
The distribution list for the PLA Protection Opinion was not been made public. As a jointly issued document, it presumably was issued to the relevant Communist Party organizations in both the civilian and military bureaucracies. On the civilian side, it included the:
Supreme People’s Court;
Supreme People’s Procuratorate;
Ministry of Public Security;
Ministry of Civil Affairs;
Ministry of Justice;
Ministry of Finance;
Ministry of Human Resources and Social Security;
Ministry of Land and Natural Resources;
National Civil Air Defense Office;
National Leading Group on Double Support (see the following report, on the provincial level).
On the military side, presumably the General Political Department issued it to the military counterparts of many of the above authorities, including the PLA Military Court and PLA Military Procuratorate.
What are the Long Standing Legal Issues?
The long-standing legal issues are those involving both the civilian and military authorities, and include many of the unresolved ones listed in my previous blogpost. They include:
theft and sale of military secrets;
destruction of military facilities;
mass incidents involving military interests;
disputes over military technology;
disputes over military land;
thefts of military supplies;
cases of persons passing themselves off as military personnel to engage in fraud and other criminal activity;
Disputes affecting military personnel, including:
1. divorces and other family disputes;
2. personal injury disputes;
3. land condemnation;
4. disputes over compensation for compulsory land confiscation.
The Supercommittees and a glimpse into the document drafting process
The PLA Legal Protection Opinion calls for the establishment of a national coordination mechanism to support and protect military rights (全国涉军维权协调机制), (Supercommittees) replacing “the leading small groups on supporting and protecting military rights” established nationwide from 2007.
The Supercommittees are led by the Central Political Legal Committee and General Political Department (the top Party committees relating to the civilian and military legal systems), and require the government authorities to whom the document was issued (and their local counterparts at each level) to send liaison personnel. The Supercommittees are to establish counterparts at the provincial, municipal, and county level.
In an article published in the People’s Court and PLA Daily, a “responsible person” of the PLA Military Court described the drafting process, which mirrors the drafting process for Chinese legislation generally.
Staff from the Central Political Legal Committee and the PLA Military Court formed a drafting group and went to Zhejiang, Fujian, Guangdong, and Shaanxi for field research, soliciting the views of local Party Secretaries, local courts, and military district officials, PLA officers and soldiers, including areas where local policies had been drafted to deal with military/civilian issues. A consultation draft was prepared and approved by the leadership of the Central Military Commission, General Political Department, and Central Political Legal Committee for distribution for comment to the relevant central government departments (including the Supreme People’s Court), leaders of major military institutions, and some local level military officials before being finalized.
Enforcing the PLA Legal Protection Opinion
The document seeks to ensure that it is taken seriously by calling for the following enforcement measures:
PLA legal protection matters should be incorporated into local development plans; and
they should be incorporated into performance evaluation for “comprehensive social management work” (performance in controlling social unrest).
Why was the document issued?
The document must have been issued because the previous leading small groups were not effective, and the result has been an increase in civil unrest involving civilians and military, unresolved civil disputes involving the military and its personnel as well as criminal cases involving civilians and military that have not been prosecuted.
The principal reason for these unresolved issues (in my view), is due to the separate operations of the military and civilian systems and the difficulty of coordinating across bureaucratic systems. Moreover, a substantial number of the unresolved cases are likely tied to the performance indicators for officials within the (civilian) legal system. Performance indicators for court and other officials within the legal system are generally tied to their percentage of closed cases or other success rates. For example, a civilian court will be reluctant to accept divorce cases involving a military spouse if orders to transfer property, registered within the military system, will not be enforced and the cases cannot be closed. Civilian public security officials, similarly, will be reluctant to take a case if some of the criminal activity has taken place on military premises, because investigating the crime and collecting evidence will be extremely difficult. The document reveals social and economic changes affecting the military (such as a higher rate of divorce and other family disputes), disputes over land condemnation affecting military personnel, as well as increased social unrest involving the PLA (that seems to be kept out of the press). Finally, it reveals the complex interrelationship between the military and civilian legal and administrative systems, and the use of law (or at least legal policy) in making it operate more smoothly.
The Supreme People’s Court (the Court) devoted its 27 February 2014 press conference to domestic violence, highlighting:
the seriousness of the problem;
10 model cases;
a forthcoming judicial interpretation on domestic violence.
Judge Xue Shulan, Deputy Head of the #1 Criminal Division, appeared at the press conference. The Court websites have published a number of domestic violence related articles in the past 3 weeks. Some of these articles have been reprinted on the website of the Central Communist Party Political Legal Committee, indicating that the Court initiative has political backing.
This blogpost will briefly explain:
the significance of the 10 model cases
some issues that should be incorporated into the judicial interpretation;
Some statistics about domestic violence in China
At the press conference, Sun Jungong, spokesman for the Supreme People’s Court, released some statistics about domestic violence. He said that domestic violence occurs in approximately 24.7 percent of Chinese families, and almost 10 percent of intentional homicide cases are connected with domestic violence.
The significance of the 10 model cases
Domestic violence graphic from SPC website
These model cases are intended to convey lessons to the lower courts, lawyers, and the general public on how to consider cases involving domestic violence.
Civil protection orders
China has adopted the concept of a civil protection order (commonly used in other jurisdictions) into its legal system (see an academic study on the issue). The amended Civil Procedure Law provides a legal basis for the issuance of these orders (see a summary in the linked article). The Court revealed at the February news conference that over 500 civil protection orders have been issued since 2008.
One model case involved a civil protection ordered issued to protect an elderly man against his abusive child while another case involved a civil protection ordered against the uncle of the minor.
The cases convey the message that the scope of persons to be protected under domestic violence civil protection orders should be expanded to include:
the elderly; and
minors.
These cases signal an expansion of the categories of individuals for whom orders may be issued and an expansion of the definition of relationship between victim and perpetrator. Academic studies suggest a prevalence of domestic violence against the elderly and minors in China. Academic studies have found elder abuse occurring in approximately 35% of the populations surveyed and significant prevalence of child abuse.
Previously, the sole guidance from the Court regarding the issuance of civil protection orders had been limited to issuing them on behalf of one spouse against the other while still married or in the process of seeking a divorce.
Evidence
The Court is providing guidance for judges about what can be considered evidence of domestic violence. Examples of evidence of domestic violence in these cases include the statement of the victim, in writing, medical records, and the diary of a child and/or victim.In the past judges often did not consider the statement of the victim as evidence. Reaffirming the evidentiary value of medical records and contemporaneous notes is also important.
Types of domestic violence
In one case, the description of domestic violence was described as excessive use of house rules. In another example, emotional harm was specifically cited as an injury caused by the violence and a fine was issued. In another case, use of threats to control the other party was cited.
By selecting these cases, the Court is also conveying a message about the types of behavior that can be considered to be domestic violence. The Court is stressing that domestic violence is not just physical, and that it is a specific dynamic where one individual exercises power and control over the other, including using threats of violence even when there is no physical violence and considerable rule making and other methods to intimidate and emotionally and mentally harm the victim.
Consequences of domestic violence
In one case the daughter was injured when she tried to protect the mother against her abusive father so the divorce was granted and the mother given custody. This case conveys the message that a parent who is found to have committed domestic violence against the other parent should not have custody of the child or children who were in that household when the abuse occurred, even if the child was not directly physically targeted or harmed. This represents a sophisticated understanding of the impact of domestic violence on children and the danger of an abusive parent.
Issues for the judicial interpretation
Judge Xue mentioned at the press conference that a draft interpretation had already been prepared, but was subject to further studies and discussions and it was hoped it would be issued in the second half of 2014. Issues to be covered by the interpretation include:
classification of different types of domestic violence;
more specific guidelines on criminal punishment for domestic violence;
evidence in domestic violence cases;
guidelines for imposing punishment on victims of domestic violence who commit crimes against their abusers.
The drafting of the interpretation was preceded by several years of field studies in 73 basic level courts. At the press conference, the head of the Court’s Institute for Applied Jurisprudence stated that the definition of domestic violence will incorporate international practice and that the courts will work with other institutions to promote a unified approach to domestic violence.
Judicial training
After the domestic violence judicial interpretation is issued, widespread judicial training will be needed to ensure that judges can recognize domestic violence and issue civil protection orders to protect women, children, and the elderly. Many press reports (as well as studies by the Institute of Applied Jurisprudence) indicate that part of the problem can be traced to local courts, police and other authorities, who do not take domestic violence seriously.
This training is especially needed in rural courts, where many abuse cases occur, but also in the military courts. Article 33 of the Marriage Law provides that the spouse of a soldier in active service who wants a divorce needs to obtain the soldier’s consent, unless the soldier has made “grave errors” （重大过错, which according to a 2001 interpretation of the Marriage Law, includes domestic violence. This article by a judge from a court outside of Kunming describes some of the issues.
At the latest NPC session, delegates again brought up the delay in progress on domestic violence legislation (described here). Domestic violence is an area that the scholars, NGOs, and the domestic (and international) public has been putting pressure on the courts to address for some years, and it will be significant progress if the domestic violence interpretation is issued this year.
(The case analysis was provided by a contributor who wishes to remain anonymous)
The Supreme People’s Court (the Court) devoted its 27 February 2014 press conference to domestic violence, highlighting:
the seriousness of the problem;
10 model cases;
a forthcoming judicial interpretation on domestic violence.
Judge Xue Shulan, Deputy Head of the #1 Criminal Division, appeared at the press conference. The Court websites have published a number of domestic violence related articles in the past 3 weeks. Some of these articles have been reprinted on the website of the Central Communist Party Political Legal Committee, indicating that the Court initiative has political backing.
This blogpost will briefly explain:
the significance of the 10 model cases
some issues that should be incorporated into the judicial interpretation;
Some statistics about domestic violence in China
At the press conference, Sun Jungong, spokesman for the Supreme People’s Court, released some statistics about domestic violence. He said that domestic violence occurs in approximately 24.7 percent of Chinese families, and almost 10 percent of intentional homicide cases are connected with domestic violence.
The significance of the 10 model cases
Domestic violence graphic from SPC website
These model cases are intended to convey lessons to the lower courts, lawyers, and the general public on how to consider cases involving domestic violence.
Civil protection orders
China has adopted the concept of a civil protection order (commonly used in other jurisdictions) into its legal system (see an academic study on the issue). The amended Civil Procedure Law provides a legal basis for the issuance of these orders (see a summary in the linked article). The Court revealed at the February news conference that over 500 civil protection orders have been issued since 2008.
One model case involved a civil protection ordered issued to protect an elderly man against his abusive child while another case involved a civil protection ordered against the uncle of the minor.
The cases convey the message that the scope of persons to be protected under domestic violence civil protection orders should be expanded to include:
the elderly; and
minors.
These cases signal an expansion of the categories of individuals for whom orders may be issued and an expansion of the definition of relationship between victim and perpetrator. Academic studies suggest a prevalence of domestic violence against the elderly and minors in China. Academic studies have found elder abuse occurring in approximately 35% of the populations surveyed and significant prevalence of child abuse.
Previously, the sole guidance from the Court regarding the issuance of civil protection orders had been limited to issuing them on behalf of one spouse against the other while still married or in the process of seeking a divorce.
Evidence
The Court is providing guidance for judges about what can be considered evidence of domestic violence. Examples of evidence of domestic violence in these cases include the statement of the victim, in writing, medical records, and the diary of a child and/or victim.In the past judges often did not consider the statement of the victim as evidence. Reaffirming the evidentiary value of medical records and contemporaneous notes is also important.
Types of domestic violence
In one case, the description of domestic violence was described as excessive use of house rules. In another example, emotional harm was specifically cited as an injury caused by the violence and a fine was issued. In another case, use of threats to control the other party was cited.
By selecting these cases, the Court is also conveying a message about the types of behavior that can be considered to be domestic violence. The Court is stressing that domestic violence is not just physical, and that it is a specific dynamic where one individual exercises power and control over the other, including using threats of violence even when there is no physical violence and considerable rule making and other methods to intimidate and emotionally and mentally harm the victim.
Consequences of domestic violence
In one case the daughter was injured when she tried to protect the mother against her abusive father so the divorce was granted and the mother given custody. This case conveys the message that a parent who is found to have committed domestic violence against the other parent should not have custody of the child or children who were in that household when the abuse occurred, even if the child was not directly physically targeted or harmed. This represents a sophisticated understanding of the impact of domestic violence on children and the danger of an abusive parent.
Issues for the judicial interpretation
Judge Xue mentioned at the press conference that a draft interpretation had already been prepared, but was subject to further studies and discussions and it was hoped it would be issued in the second half of 2014. Issues to be covered by the interpretation include:
classification of different types of domestic violence;
more specific guidelines on criminal punishment for domestic violence;
evidence in domestic violence cases;
guidelines for imposing punishment on victims of domestic violence who commit crimes against their abusers.
The drafting of the interpretation was preceded by several years of field studies in 73 basic level courts. At the press conference, the head of the Court’s Institute for Applied Jurisprudence stated that the definition of domestic violence will incorporate international practice and that the courts will work with other institutions to promote a unified approach to domestic violence.
Judicial training
After the domestic violence judicial interpretation is issued, widespread judicial training will be needed to ensure that judges can recognize domestic violence and issue civil protection orders to protect women, children, and the elderly. Many press reports (as well as studies by the Institute of Applied Jurisprudence) indicate that part of the problem can be traced to local courts, police and other authorities, who do not take domestic violence seriously.
This training is especially needed in rural courts, where many abuse cases occur, but also in the military courts. Article 33 of the Marriage Law provides that the spouse of a soldier in active service who wants a divorce needs to obtain the soldier’s consent, unless the soldier has made “grave errors” （重大过错, which according to a 2001 interpretation of the Marriage Law, includes domestic violence. This article by a judge from a court outside of Kunming describes some of the issues.
At the latest NPC session, delegates again brought up the delay in progress on domestic violence legislation (described here). Domestic violence is an area that the scholars, NGOs, and the domestic (and international) public has been putting pressure on the courts to address for some years, and it will be significant progress if the domestic violence interpretation is issued this year.
(The case analysis was provided by a contributor who wishes to remain anonymous)
Beijing petitioners at SPC (used with permission of Natalie Behring)
In the past two weeks, the Supreme People’s Court (the Court) has taken new measures to resolve the problem of petitioning (ordinary people petitioning higher authorities concerning their grievances). Court petitioners generally have grievances related to judgments (or the enforcement of judgments) in the lower courts. Petitioning affects the Court itself. The current measures are tied with the document released on 27 February 2014 by the General Offices of the Communist Party Central Committee and the State Council on petitioning reform (the Petitioning Reform Document, linked here) and briefly reported here. More measures from the Court are anticipated this year.
Approximately 60,000-70,000 petitioners approach the Court each year, many repeat petitioners. In the Court Reform Decision of November, 2013 and other statements in 2013, Court leadership identified resolving the issues underlying petitioning as a target for action (see previous blogposts in January, 2014, October, 2013, and September, 2013). It is likely that its current and future initiatives related to petitioning will be mentioned in the Court’s Work Report to the National People’s Congress.
Link to the Petitioning Reform Document
The Petitioning Reform Document is intended for distribution to the court system, as a Party document distributed to “all departments.” It pinpoints measures for the court system to take, some highlighted below.
Several points of the Petitioning Reform Document relate to the new measures taken by the Court. Point 5 of the document relates calls for pathways for petitioning issues to be heard, including on-line petitioning platforms. Point 9 of the document calls for greater legalization of petitioning, such as:
separating litigation from petitioning;
taking petitioning into the courtoom;
improving various types of appeal procedures (litigation/arbitration/administrative reconsideration)
improving systems within the courts/procuracy/public security/judicial administration to deal with the underlying issues causing petitioning.
The last sentence in Point 9 calls on the strengthening of the capacity of the judicial system, to satisfy the ever-increasing demands on the judicial system of the masses (ordinary people), and to make the masses feel that they have received fair justice.
Phrases in the last sentences are frequently used by the Court leadership. The latter phrase is part of a statement made by Xi Jinping in early 2013 and is often used by the Supreme People’s Court leadership (discussed here).
Internet petitioning platform
To implement the Petitioning Reform Document, on 28 February, the Court established an electronic platform for petitioners, linked here. The internet platform can be accessed from the Court’s official website:
网上办事
The platform includes a short video explaining how to use the on-line system, as well as its benefits, linked here. It is likely intended as a model for the lower courts.
Time will tell how the Court (and the lower courts) will promote the electronic system and resolve the underlying issues. A related issue is whether the Party anticipates a greater scope for NGOs in dealing with court-related issues.
For example, will a team of Court staff be dispatched to the street with tablet computers to register petitioners’ cases? Will this mean that NGO representatives will assist petitioners to register their issues with the courts（although this report from Guangzhou anticipates official channels only)? Most importantly, what will the Court do to resolve the underlying issues? Will this initiative be successful and result in few petitioner visits to the Court and the lower courts?
7 Model Cases
On 17 February 2014, the Supreme Court (Court) issued 7 model cases (典型案例) on protecting the livelihood of ordinary people. “Protecting the livelihood of ordinary people” is a political rather than legal term, and is described in court press releases as cases affecting the lives and livelihood of ordinary people (for more details, see here).
These model cases (linked here) and explained below, are not precedents but intended to be instructional. The legal reasoning in the cases is not important. The release of these cases sends several messages.
It shows the political leadership that the Court has taken the initiative to deal with petitioning related cases.
The Court is showing ordinary people that it is implementing Party policy by taking measures to improve how the court system deals with the underlying issues causing petitioning.
It is sending a signal to the lower courts that these cases are a political priority.
These cases include:
a dispute seeking compensation for forced demolition of property on village land;
a copyright infringement case in which Yang Jiang, widow of the writer Qian Zhongshu sought an injunction to prevent an auction house from auctioning some of his letters (see a discussion here);
a Sierra Leone ship (with an Albanian captain and Syrian crew) arrested by the Xiamen Maritime Court (see a press report here);
a judicial review of an administrative decision in an environmental case in which a farmer’s complaint made to the local environmental protection bureau concerning water pollution was ignored;
a celebrated case in which two men sought compensation for wrongfully being incarcerated for 10 years for a crime they did not commit (see a press report here);
a medical malpractice case; and
an unenforced judgment (despite multiple efforts by the court) in a forced demolition of property case brought by a trade union against a real estate development company (the defendant was one of the companies on the first list of judgment debtors issued by the Court).
Cases #2, #3, and #5 were well known either nationally or locally, and case #7 may have come to the Court’s attention when the defendant was named on the judgment debtor’s blacklist, but it is unclear how the rest came to attention of Court officials (possibly when they met with provincial court officials).
Although the Court is promoting the use of cases to guide the lower courts, including its announcement in the October, 2013 the Court Reform Decision, that it would ” fully expand the important role of leading cases and cases for reference.”
充分发挥指导性案例和参考案例的重要作用
these cases are meant as political rather than legal guidance. The subject matter of these is typical of many “people’s livelihood” cases.
In a November, 2013 blogpost, Mark Cohen (of Chinaipr.com) gave a good overview of model cases, contrasting them with guiding cases. The case descriptions of the model cases do not contain the original judgments but rather a brief summary of the facts, judgment, and (critically) the importance of the case. These model cases are not an indication that the Chinese judiciary is borrowing case law from common law system.
It is likely that 2014 will see more initiatives by the Court to deal with some of the issues underlying petitioning, including working with the NPC Legal Work Commission on expanding the jurisdiction of the courts under the Administrative Litigation Law. The Petitioning Reform Document calls for:
the establishment and improvement of systems imposing liability for mistaken verdicts and
lifetime responsibility (liability) for the quality of cases handled.
The Court is likely to focus on these as well as other issues related to the judiciary raised in the Petitioning Reform Document.
Beijing petitioners at SPC (used with permission of Natalie Behring)
In the past two weeks, the Supreme People’s Court (the Court) has taken new measures to resolve the problem of petitioning (ordinary people petitioning higher authorities concerning their grievances). Court petitioners generally have grievances related to judgments (or the enforcement of judgments) in the lower courts. Petitioning affects the Court itself. The current measures are tied with the document released on 27 February 2014 by the General Offices of the Communist Party Central Committee and the State Council on petitioning reform (the Petitioning Reform Document, linked here) and briefly reported here. More measures from the Court are anticipated this year.
Approximately 60,000-70,000 petitioners approach the Court each year, many repeat petitioners. In the Court Reform Decision of November, 2013 and other statements in 2013, Court leadership identified resolving the issues underlying petitioning as a target for action (see previous blogposts in January, 2014, October, 2013, and September, 2013). It is likely that its current and future initiatives related to petitioning will be mentioned in the Court’s Work Report to the National People’s Congress.
Link to the Petitioning Reform Document
The Petitioning Reform Document is intended for distribution to the court system, as a Party document distributed to “all departments.” It pinpoints measures for the court system to take, some highlighted below.
Several points of the Petitioning Reform Document relate to the new measures taken by the Court. Point 5 of the document relates calls for pathways for petitioning issues to be heard, including on-line petitioning platforms. Point 9 of the document calls for greater legalization of petitioning, such as:
separating litigation from petitioning;
taking petitioning into the courtoom;
improving various types of appeal procedures (litigation/arbitration/administrative reconsideration)
improving systems within the courts/procuracy/public security/judicial administration to deal with the underlying issues causing petitioning.
The last sentence in Point 9 calls on the strengthening of the capacity of the judicial system, to satisfy the ever increasing demands on the judicial system of the masses (ordinary people), and to make the masses feel that they have received fair justice.
Phrases in the last sentences are frequently used by the Court leadership. The latter phrase is part of a statement made by Xi Jinping in early 2013 is often used by the Supreme People’s Court leadership (discussed here).
Internet petitioning platform
To implement the Petitioning Reform Document, on 28 February, the Court established an electronic platform for petitioners, linked here. The internet platform can be accessed from the Court’s official website:
网上办事
The platform includes a short video explaining how to use the on-line system, as well as its benefits, linked here. It is likely intended as a model for the lower courts.
Time will tell how the Court (and the lower courts) will promote the electronic system and resolve the underlying issues. A related issue is whether the Party anticipates a greater scope for NGOs in dealing with court-related issues.
For example, will a team of Court staff be dispatched to the street with tablet computers to register petitioners’ cases? Will this mean that NGO representatives will assist petitioners to register their issues with the courts（although this report from Guangzhou anticipates official channels only)? Most importantly, what will the Court do to resolve the underlying issues? Will this initiative be successful and result in few petitioner visits to the Court and the lower courts?
7 Model Cases
On 17 February 2014, the Supreme Court (Court) issued 7 model cases (典型案例) on protecting the livelihood of ordinary people. “Protecting the livelihood of ordinary people” is a political rather than legal term, and is described in court press releases as cases affecting the lives and livelihood of ordinary people (for more details, see here).
These model cases (linked here) and explained below, are not precedents but intended to be instructional. The legal reasoning in the cases is not important. The release of these cases sends several messages.
It shows the political leadership that the Court has taken the initiative to deal with petitioning related cases.
The Court is showing ordinary people that it is implementing Party policy by taking measures to improve how the court system deals with the underlying issues causing petitioning.
It is sending a signal to the lower courts that these cases are a political priority.
These cases include:
a dispute seeking compensation for forced demolition of property on village land;
a copyright infringement case in which Yang Jiang, widow of the writer Qian Zhongshu sought an injunction to prevent an auction house from auctioning some of his letters (see a discussion here);
a Sierra Leone ship (with an Albanian captain and Syrian crew) arrested by the Xiamen Maritime Court (see a press report here);
a judicial review of an administrative decision in an environmental case in which a farmer’s complaint made to the local environmental protection bureau concerning water pollution was ignored;
a celebrated case in which two men sought compensation for wrongfully being incarcerated for 10 years for a crime they did not commit (see a press report here);
a medical malpractice case; and
an unenforced judgment (despite multiple efforts by the court) in a forced demolition of property case brought by a trade union against a real estate development company (the defendant was one of the companies on the first list of judgment debtors issued by the Court).
Cases #2, #3, and #5 were well known either nationally or locally, and case #7 may have come to the Court’s attention when the defendant was named on the judgment debtor’s blacklist, but it is unclear how the rest came to attention of Court officials (possibly when they met with provincial court officials).
Although the Court is promoting the use of cases to guide the lower courts, including its announcement in the October, 2013 the Court Reform Decision, that it would ” fully expand the important role of leading cases and cases for reference.”
充分发挥指导性案例和参考案例的重要作用
these cases are meant as political rather than legal guidance. The subject matter of these is typical of many “people’s livelihood” cases.
In a November, 2013 blogpost, Mark Cohen (of Chinaipr.com) gave a good overview of model cases, contrasting them with guiding cases. The case descriptions of the model cases do not contain the original judgments but rather a brief summary of the facts, judgment, and (critically) the importance of the case. These model cases are not an indication that the Chinese judiciary is borrowing case law from common law system.
It is likely that 2014 will see more initiatives by the Court to deal with some of the issues underlying petitioning, including working with the NPC Legal Work Commission on expanding the jurisdiction of the courts under the Administrative Litigation Law. The Petitioning Reform Document calls for:
the establishment and improvement of systems imposing liability for mistaken verdicts and
lifetime responsibility (liability) for the quality of cases handled.
The Court is likely to focus on these as well as other issues related to the judiciary raised in the Petitioning Reform Document.
On the eve of the Chinese New Year, a banner headline was posted on the Supreme People’s Court (Court) websites:
Study the Important Written Instructions of General Party Secretary Xi Jinping
A revised version of that banner has remained on those websites since (the photo above), apparently unobserved by outside commentators, who may have not realized its significance. This blogpost will look at:
what written instructions (批示) are;
the significance of Xi Jinping giving written instructions;
what Xi Jinping’s instructions were;
why the instructions were issued on eve of the New Year; and
why Zhou Qiang, President of the Court called on the lower courts to study diligently Xi Jinping’s instructions.
What are written instructions (批示)?
”Written instructions“ (批示) means notes or comments made by a superior on a written document submitted for approval or comment. It is used in reference to Party/government documents as well as documents within the court system (see the regulations on handling each type of document). The term has been used throughout the history of the PRC as well as in Chinese history. Analysis of Chinese political documents often mentions written instructions.
According to the reports on various Court websites and in the press, Xi Jinping gave his written instructions on 28 January in response to a report submitted by the Supreme People’s Court entitled Situation Concerning the Work of the People’s Courts in 2013 and Proposals for their Work in 2014 (关于2013年人民法院工作情况和2014年工作打算的报告). The report has not been made public.
What were Xi Jinping’s written instructions and what is their significance?
Xi Jinping wrote what to the outside observer appears to be a collection of slogans from the Third Plenum Decision. However appearances can be deceiving.
He wrote that the courts had diligently implemented the Center’s policies and implemented their responsibilities and achieved new results. He expressed his hope that the courts will make persistent efforts, implement the spirit of the 18th Party Congress, Third Plenum etc, uphold the Party’s leadership, promote judicial reform, advance the building of a judicial system that is fair, efficient, and authoritative..provide powerful judicial protection for reform, and continue to promote the building of the rule of law in China.
The significance of the written instructions is not so much in its content as the fact that Xi Jinping issued it to the Supreme People’s Court. It is unusual for a Party General Secretary to have issued them. By doing so, Xi Jinping expresses his support, praise, demands, and hopes for Zhou Qiang and the Court leadership.
Why were the written instructions issued on eve of the New Year?
The written instructions were issued on the eve of the Chinese New Year to approve what Zhou Qiang and the other Court leaders did in 2013, as well as confirm the planned policies of the Court for 2014. The written instructions were issued before the Chinese New Year to enable the Court leadership to be better equipped when dealing with issues at the National People’s Congress (NPC) meeting in early March. Court leaders are likely anticipating that local opposition to judicial reforms under consideration may be expressed at the NPC meeting.
Why are the lower courts requested to study diligently Xi Jinping’s instructions?
Xi Jinping’s instructions summarize in one paragraph the Central Committee’s policy towards the courts and their role in the Third Plenum reforms as well as judicial reforms. The written instructions enable the lower courts to understand the political background against which they work and the political goals for their work in the near and longer term.
The more sophisticated lower court judges understand that the written instructions mean that the Party leadership values the work of the Court leadership, but recognize that this will not resolve their caseload.
Concluding Remarks
To the outside observer:
it illustrates what is meant by Party leadership of the courts at the highest level;
in the political context of China, it is a major coup for Zhou Qiang (and colleagues) and their reform policies for Xi Jinping to have issued those written instructions; and
It means the political leadership is behind those reforms.
At the same time, it places a great deal of pressure on the Court leadership to deliver results (as seen from the political leadership) in the judicial reforms.
It would not be surprising to hear voices opposing some of the reforms at the NPC meeting.
As everyone who has spent some time paying close attention to the Chinese legal system knows, the Chinese Communist Party has a system (系统) of Political Legal Committees (政法委员会 or 政法委) that oversee, coordinate, and implement Communist Party policy in the legal institutions–public security (and state security), procuratorate, courts, and justice (公检法司). The Political-Legal Committees, that exist at every level of the Communist Party and government, have been existence for many years. This quick blogpost reports on two unnoticed phenomena:
the Political-Legal Committees “coming out”; and
the Supreme People’s Court (Court) opening discussion on the relationship among the legal institutions.
What I mean by “Political-Legal Committees ‘coming out'” is that from the central level on down, Political Legal Committees now have their own websites that link to the institutions (with the exception of state security) at the same level of government. At the top level is Chinapeace, featuring articles related to Party policy (and other topics) in the legal institutions and linking horizontally to the websites of those institutions and vertically (downwards) to the local political legal committees. Chinapeace has links to the websites of local political-legal committees at the provincial level (or equivalent)–such as the Guangdong Political-Legal Committee.
The Communist Party must have issued a decision to permit these websites to be established. It means that the Communist Party has decided that the Political Legal Committees need to be on the Internet to promote the Party’s policies. For the veteran observers of the Chinese legal system, it is an amazing phenomenon, when for many years, these committees had been in the metaphorical closet.
The second unnoticed phenomenon is that at the end of October, the Court has posted on its website a link to the newest topic for discussion for a project it co-sponsors with Tsinghua University on judicial reform–the relationship between the legal institutions and whether they should be “adjusted.”
The Constitution (Article 135) sets out the basic principle–they shall “in handling criminal cases, divide their functions, each taking responsibility for its own work, and they shall coordinate their efforts and check each other to ensure the correct and effective enforcement of law” . It is significant that the Court has raised this, especially publicly. It is another issue for all concerned about the Chinese legal system to watch.
On April 8, 2013, the Supreme People’s Court announced that its Communist Party (Party) Committee was implementing an “educational movement to improve judicial work style” (judicial work style movement) in the second quarter of 2013. Zhou Qiang, the newly appointed president of the Supreme People’s Court, is also the head of its Party Committee.
This clunkily named announcement, written in densely packed Party jargon, is has critical implications for the Chinese court system and all those affected by it, domestic and foreign. Unpacking the announcement requires a Chinese political jargon decoder and a strong cup of coffee.
This posting will explain why the announcement is so important by highlighting:
The meaning of an “educational movement” and “judicial work style.”
The impetus for the movement.
The goals of the movement.
How will it be done?
What are its implications?
What is an “educational movement” and “judicial work style”?
Both phrases are frequently used in Chinese political jargon.
An “educational movement” refers to a political initiative with both educational and punitive aspects, focused on correcting certain ways of thinking while “work style” means the standards of conduct of officials.
Work style issues cover a broad range of activity, from deciding cases to womanizing, to luxurious banquets.
Impetus for the movement:
At the 18th Party Congress, the Communist Party leadership identified “judicial credibility” (司法公信力) as a critical area for improvement because of its political implications, particularly the profound loss of confidence in the ability of the Chinese judiciary to provide competent and fair justice. This was symbolized by the vote by 20% of National People’s Congress deputies against the Work Report of the Supreme People’s Court.
Goals of the movement:
As announced by the Court’s Party Committee, this education movement has the following goals:
Implement the ideal that justice is for the people, so that litigants will not feel they are despised;
Decide cases according to law, so that litigants will feel that justice has been done;
Improve judicial responsibility, so that judicial laziness, delays, indifference, arbitrariness, failure to hear both sides, and gross errors are avoided.
Improve judicial self-discipline and establish a clean judiciary, stop cases decided by money, connections, and sympathies.
Implementing the movement
The Court has called on the lower courts to implement the movement by the following:
Study relevant Party and Court documents;
Have court leadership take responsibility for implementing the required measures;
Implement appropriate internal systems to avoid conflicts of interests, institute training and monitoring programs;
Analyze issues in each local court, taking account of the views of various parts of society, identify the weak spots in the judicial system and evolve effective means to deal with them;
Use good and bad examples, including instances of judicial irresponsibility and other judicial action that harms judicial prestige;
Stop major abuses in the courts, such as taking gifts and money, using court vehicles for private business, using judicial posts to engage in business, and lavish eating and entertainment at public expense. Violators should be exposed, ordered to change, and if they do not, be dealt with.
What does this educational movement mean?
The implementation of this “educational movement” means that Party leadership recognizes that corruption and abuses in the court system are causing dissatisfaction and resentment among a substantial number of Chinese citizens, including among the political and business elite, and the leadership has called on the new Court leadership to do something about it. The Court leadership recognizes (more than any outside observer) that the Chinese judiciary often delivers a poor quality of justice, but that the issues are different in different parts of the country and even within the same city or province.
What may result from this “educational movement”?
Expect a spate of judicial scandals to hit the Chinese media and blogosphere.
Behind the scenes there may be a pushback from lower court judges, who feel they cannot make ends meet if they are honest.
Expect greater engagement between the Supreme People’s Court and the outside legal world, including greater dialogue between the courts and other parts of the legal profession in China, such as lawyers and academics in evolving reforms. President Zhou Qiang has led the way by holding a meeting with leading academics and lawyers in late April.
Because this educational movement does not deal with the structural issues that have created the conditions under which judicial abuses flourish, expect incremental institutional changes to be gradually rolled out in the next few years.
Supreme People's Court Monitor 
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