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Communist Party and the Courts, Court judgments, Court Operations, Court Reform, judicial committees, Judicial Reform

Guidance on the Special Handling of Four Types of Cases & Its Implications

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Four Types of Cases

By Susan Finder and Straton Papagianneas

In early November 2021, the Supreme People’s Court (SPC) issued a new Guiding Opinion regarding Further Improving the Trial Supervision and Management Mechanism for the Four Types of Cases (关于进一步完善“四类案件”监督管理工作机制的指导意见translation here) (“Four Types of Cases Guiding Opinion” or “Guiding Opinion”).  Official commentary by the drafters is found here.  The “Four Types of Cases” refer to certain types of cases, all politically or socially sensitive, that require special handling within the court system and involvement by the relevant court leadership. The term “Four Types of Cases” originates with the 2015 SPC document “Several Opinions on Improving the Judicial Responsibility System of the People’s Courts,”  (2015 Opinion) although special treatment within the Chinese court system for special types of cases is not new, as I described in my (the Monitor’s) 1993 article.  This Guiding Opinion illustrates themes newly stressed in General Secretary Xi Jinping’s 15 February 2022 article on the socialist rule of law.  

While the “Four Types of Cases” are a little-known concept outside of China, they are well known within the Chinese court system and are embedded in other court guidance.  The Four Types of Cases Guiding Opinion draws together threads of related policy to provide standardized principles on:

  1. Redefined  “Four Types of Cases;”
  2. Mechanisms for flagging cases as one of the “Four Types of Cases” at each stage of the court process;
  3. Mechanisms for special treatment of these cases; and
  4. A range of mechanisms for involving more senior judges in the handling of these cases while monitoring their involvement.

The Four Types of Cases Guiding Opinion provides insights into the operation of the Chinese judicial system, particularly after the 19th Party Congress and the ongoing transformation of the judicial system and legal system.

This blogpost gives a summary of the background to this Guiding Opinions before examing its details and providing some comments linking to larger themes.

1. Origin of the “Four Types” of Cases

a. The 2015 Opinion

The 2015 Opinion implements the broad principles in the 4th Plenum of the 18th Party Congress decision and 4th Judicial Reform Plan Outline by setting out guidelines for greater autonomy and greater responsibility for judges, known as the “judicial responsibility system.” It contrasts to the pre 4th five-year judicial reform plan period when all court decisions needed to be approved by a person (or committee) in a leadership role in a court.  It also requires the preferential use of a random allocation of cases system,  while pre-reform, court leaders at various levels designated judges hearing cases.

At the same time, the 2015 Opinion also imposed more responsibility or accountability on frontline judges, while reducing (or eliminating) the involvement of court leaders not involved in the hearing. It gives court leaders (a court president, vice president, and division head) supervisory and management authority. Other guidance prohibits court leaders from involving themselves in cases handled by other judges, with certain exceptions. An exception was made for “major, difficult, and complicated cases” when court leaders could designate collegiate panels to conduct hearings (Article 7). These cases are called the “Four Types of Cases” (四类案件).  They refer to the following cases:

  1. Group disputes that may affect social stability;
  2. Ones that are difficult, complex, and have a significant impact on society;
  3. They might conflict with the judgment of the court or a higher-level court; and
  4. Relevant units or individuals report that the judge has violated the law  (Article 24).

The 2015 Opinion did not provide any further details about these Four Types. Lower courts issued guidance detailing the meaning and scope of these cases, while the SPC incorporated measures relating to “Four Types of Cases” in documents relating to the judicial responsibility system listed below.

b.  Subsequent documents 

 Pre and particularly post 19th Party Congress, the SPC issued a number of documents related to the judicial responsibility system and the special responsibility of court leaders.  At the same time, Party authorities issued documents imposing greater responsibility on Party members in leadership positions.  Many of these are collected in a 2021 book edited by the office of the SPC leading small group on the judicial responsibility system and the SPC Political Department. These documents include:

  1.  April, 2017 Opinions on Implementing the Judicial Responsibility System and Improving the Trial Supervision & Management Mechanism (for Trial Implementation);
  2. July, 2017 Opinions of the Supreme People’s Court on the Implementation of the Judicial Accountability System (for Trial Implementation (最高人民法院司法责任制实施意见（试行)), the subject of this blogpost; 
  3. December, 2018 SPC Opinions on the Further and Full Implementation of Judicial Responsibility Systems.  
  4. January, 2019, Regulations of the Communist Party of China on Political-Legal Work (with a section on the Party Group of political-legal institutions);
  5. February, 2019  Fifth Five-Year Judicial Reform Plan (5th Judicial Reform Plan): it emphasizes the full implementation of the judicial responsibility system. That system in turn is linked to broader Party initiatives to expand the responsibility of leading  Party and government cadres as well as court leaders to cooperate better with Party inspections of various types.
  6. March, 2020 Opinions on Deepening the Comprehensive Reform Supporting the Judicial Accountability System issued by the General Office of the CPC Central Committee (关于深化司法责任制综合配套改革的意见 full text not available)；
  7. 2020 SPC  Opinions on Deepening the Comprehensive Reform Supporting the Judicial Accountability System. This document sets out the principles to be incorporated in the Four Types of Cases Guiding Opinions.
  8. January, 2021 Guiding Opinion on Improving the Work System of Professional Judges Meetings, which supersedes 2018 guidance, Guiding Opinions on Improving the Working Mechanism for Presiding Judges’ Meetings of People’s Court (For Trial Implementation). See my 2021 blogpost.
  9. It also links to the political-legal education rectification campaign. 

2. New 2021 Guiding Opinion

Four Types of Cases cases are deemed too complex, sensitive, or important to be handled by a frontline judge or panel of judges alone.  The new Four Types of Cases Guiding Opinion embeds multiple levels and a range of guidance and supervision as well as penalty provisions for court personnel. The guidance and supervision are aimed at personnel at various levels and roles within a court.  It is intended as a practical set of basic principles that consolidates and develops measures that appeared in the guidance listed above. It anticipates local courts issuing more detailed rules to implement it.  A 2022 media report by the Shanghai Higher People’s Court on its judicial reform program for 2022 highlights the issuing of detailed rules on the Four Types of Cases as a priority matter.  A summary of the definition and scope; identification mechanism, handling and supervision; and liability provisions follows.

Definition and scope

The 2021 Guiding Opinion redefines the Four Types of Cases and their scope, sets out the responsibilities of various persons within a court at different stages of a case, both front line and in a leadership role (court president and division chiefs) According to Article 14, those in a leadership role include the court president, vice presidents, full-time members of the judicial committee, division heads and deputy heads, and others in a supervision and management role. The guidance promotes using a multi-stage mechanism for identifying these cases and flagging them for special handling. Article 2 to 6 go into detail concerning the meaning and scope of “Four Types of Cases”, with changes from the 2015 Opinion. The new “Four Types of Cases” encompass the following types of cases:

  1. They are major, difficult, complex, or sensitive;

  2. They involve mass disputes or cause widespread societal concern, which might affect social stability;

  3. They might conflict with the judgments and rulings of the court or a higher level people’s court in similar cases;

  4.  Relevant units or individuals reported that a judge has violated the law in the trial.

The comments below address points 1-3. The first type significantly expands the scope from the original “group disputes that may affect social stability”. The drafters explain this change: “the difficulty and complexity of cases are not necessarily proportional to their social impact”. For example, a divorce case can be complicated and sensitive, yet their impact on regional or national society might be minimal.  “Major, difficult, complex, or sensitive” could cover a case in any area of law, in theory. 

The second type also changes the definition in the 2015 Opinion significantly, now referring to cases that involve large groups, or cases that cause widespread social concern. Most importantly is that these cases may affect social stability. For example, some types of cases may involve a large number of litigants, such as traffic accidents, but carry little risk of causing further mass incidents or intensifying social conflicts. These cases should not be considered one of the Four Types of Cases.

However, cases that may trigger mass incidents (e.g., labor protests after failure of litigation), risk intensifying social conflicts, or the case may have a “demonstration”, i.e., precedent-setting, effect (e.g., land-taking compensation cases), and may trigger more litigation. This may impact the development of specific industries, or the interest of specific groups, and are all cases that do need careful supervision and management.

Additionally, the SPC is of the view that cases that cause widespread concern and may affect social stability are not limited to group disputes. For example, murder cases are known to stir up public outcries. Additionally, cases involving rape claims have recently also garnered a lot of public attention. 

For the third type, the Opinion broadened the scope. First, it changed the wording from “judgment” (判决) to “decision” (裁判). This can be translated as “judgment and rulings.” Second, in addition to a  final judgment by a court, it includes other rulings or decisions regarding inadmissibility, objections, suspension or termination of litigation. This suits the more comprehensive process-based type of supervision that is intended and is further discussed below.   The conflict with current or prior judgments and rulings is specified to be with decisions of that court or higher courts within the past three years, or are currently being heard, and where it is necessary to unify the application of law.

While the Opinion further details the meaning and scope of the Four Types, the drafters explain that they insist on maintaining a healthy balance between broadness and specificity, so as to allow local courts leeway in determining how to identify a case as one of the Four Types. This recognizes that courts in different regions have different considerations, and that, based on local conditions, different kinds of specific cases require supervision and management.

Article 7 contains additional measures to widen the scope of “Four Types of Cases.” It provides that the oversight and management measures for Four Types of Cases can be applied to other types of cases: effective decisions that are in error and require retrial; cases in which the procuratorate has filed a protest; whether a death sentence (including suspended ones) is intended to be imposed; the amount in dispute is very large; or where a court plans to pronounce a defendant not guilty. This Article is consistent with recent policy to expand the scope of supervision of the exercise of judicial power, most recently emphasized in Xi’s February, 2022 article.

Identification Mechanism, Handling. and Supervision

Article 8 requires local courts to establish mechanisms to cover the entire court process to identify, label, and give a warning concerning Four Types of Cases. This article additionally requires local courts to set rules on the responsibility of internal entities to flag cases and report them, as well as responsibility for the failure to do so. The rest of the article sketches the SPC’s concept of how the Four Types of Cases are to be flagged through the entire court process and who decides any dispute over classification. 

Article 9 and 10 address  the adjustments and measures that senior court members may make regarding the case, depending upon when the case is flagged as one of “Four Types of Cases.” Regardless of whether a case is designated at the filing stage or not until it has been transferred to a case hearing division, the Opinion requires the case must be heard by a collegial panel rather than a single judge, and a member of the court leadership could serve the presiding judge.  The recent Civil Procedure Law reforms mentioned in this earlier blogpost expand the scope of cases that a single judge can hear, but this Guiding Opinion makes clear that a collegial panel must take on responsibility for hearing one of “Four Types of Cases.” These provisions links to previous SPC guidance to senior court leaders on the role they need to fulfill since the judicial reforms. The court leadership can also change the presiding judge and the size and composition of the panel. 

Article 10 lists the oversight and management measures that court leaders may take within their authority, such as: requesting reports on the progress of the case, reviewing the case files and trial report, attending trial hearings, submitting the case to a professional judges meeting, to the judicial committee, or even reporting to the court at one level above for guidance.  The measures taken are likely to depend on how sensitive, difficult, or otherwise troublesome the case is.  I surmise that this system will lead to more such cases discussed by a professional judges meeting or judicial (adjudication) committee meeting so that the decision is made on a collective basis.

Article 10  importantly clarifies the exact measures that constitute permissible supervision and management under the new responsibility system. These measures need to be incorporated into the list of powers and responsibilities based on the court member’s position.  All actions and measures need to be in accordance with local procedures and within the scope of authority of the judge exercising supervisory authority. The Opinion specifies that any action that falls within this scope does not constitute undue interference in cases and does not violate provisions about internal interference with judicial processes.

In contrast to previous practice, in which court leader guidance in these types of cases was not generally recorded, Article 11 requires that court leader oversight and management of “Four Types of Cases ” must be recorded in the case file and on the case-handling platform. Note that the recording would not be accessible to lawyers reviewing a court file. The views of court leadership about the case must be announced at a professional judges meeting or judicial committee meeting,  Court leaders can request that a collegial panel reconsider their proposed decision, but cannot directly change the panel’s decision without going through permitted procedures.  These measures seem to be aimed at preventing improper practices that enable corruption.  Those improper practices must have regularly occurred in the handling of “Four Types of Cases.” Article 14 specifies that supervision and administration of “Four Types of Cases” are considered part of the scope of a court leader’s work and therefore will be incorporated into the person’s performance evaluation.

Article 12 contains penalty provisions for both the frontline judges handling the case and the court leadership. Acts that can trigger liability for frontline judges include concealing that a case is a “Four Types of Case” case, failure to obey supervision and management, or causing a serious error in a decision through that conduct with serious consequences.

Court leaders who neglect or improperly perform their oversight and management of a “Four Type of Case” case intentionally or through gross negligence causing errors in decisions and serious consequences bear liability with reference to the provisions and procedures for the management of cadres. 

Article 13 addresses using the smart courts mechanism to identify “Four Types of Cases,” remind front-line judges to report the case, and prompt court leaders to supervise and manage the cases.

Concluding comments

In one short document, the Guiding Opinion on the Four Types of Cases captures many themes in internal court administration regulation and in the operation of the Chinese judicial system after the 19th Party Congress as well as the ongoing transformation of the judicial system and legal system.

The Guiding Opinion seeks to protect front-line judges from deciding “Four Types of Cases” autonomously in a way that is considered wrong or inconsistent with policy and legal provisions (non-unified).  Consistency of judicial decision-making is a high priority of the SPC recently, consistent with Xi’s article mentioned above: “maintaining the unity of the country’s rule of law is a serious political issue 维护国家法治统一是严肃的政治问题. ” This links to the role of court leaders as well.

The Guiding Opinion consolidates guidance for court leaders, who under the Chinese bureaucratic court system, have special responsibilities under the SPC guidance listed above, as well as more general Party regulations applicable to “#1” leaders, and Party group members in the Zhengfa 政法 (political-legal) system.  It imposes greater pressure on court leaders to hear cases, as required by earlier guidance.  As discussed earlier, judges in a leadership position spend substantial time on administrative, coordination, and Party matters rather than hearing cases.  Guiding the proper handling of one of the Four Types of Cases is also a way for a court leader to display leadership qualities while mishandling it will trigger criticism in an internal judicial or Party inspection (see my chapter on judicial discipline for a discussion of the principal types of inspections.) On incorporating work on “Four Types of Cases” into leaders’ performance evaluation, although the Chinese court slogan (of several years ago) is that judges should be treated more like judges, the Guiding Opinion appears to treat lower court judges analogously to secondary or university students, to be given grades for their class participation. 

The Opinion embeds supervision of the activity of court leaders, particularly by the use of the digital（smart courts) case-handling platform. By now, the majority of Chinese courts have a fully online and digital case-handling platform, many of which automatically record these types of supervisory and managerial measures. However, it is unclear how this has changed judicial practice regarding sensitive cases, and whether new informal practices to circumvent this digital system have emerged. 

This Guiding Opinion is an important document in understanding the Party leadership’s and the SPC’s vision of the Chinese courts in the New Era. It illustrates themes in what Xi calls in the February, 2022 article “comprehensively deepening reforms in the area of rule of law 全面深化法治领域改革,” therefore a vision of reshaping Chinese law and legal institutions generally. It links to the Party leadership’s vision of whole process supervision (全过程监督), mentioned in Xi’s most recent article, which to this observer has its roots in traditional Chinese concepts of supervision of the bureaucracy.  It uses its cutting-edge smart court system towards this end. That would be consistent with themes mentioned recently in an earlier blogpost, that Chinese characteristics have a great deal of weight in the reshaping of the Chinese legal system.  It is also consistent with an important statement in Xi Jinping’s February, 2022 article: “the socialist rule of law system with Chinese characteristics that we want to build must be a rule of law system that is rooted in Chinese culture, based on Chinese conditions and solving Chinese problems, and cannot be misled by Western misconceptions (我们要建设的中国特色社会主义法治体系，必须是扎根中国文化、立足中国国情、解决中国问题的法治体系，不能被西方错误思潮所误导).”  

The definition and scope of the “Four Types of Cases” are flexible, so as to accommodate a system in which judges bear lifetime responsibility for their decisions and court leadership bears responsibility for the decisions of their judges, and multiple types of inspections, both Party and court, monitor implementation of campaigns (such as those for the Sao Hei campaign), as well as more general policies.  The accountability (responsibility or liability) provisions are broad and linked with the Party’s system for cadres, rather than professional rules.  That too is consistent with traditional Chinese law.

The vision of the approach to handling”Four Types of Cases” in the Opinion is holistic, in line with the principles mentioned in the 2021 Opinion on integrating socialist core values into judgment instruments— the organic unity of political, legal, and social effectiveness (政治效果、法律效果和社会效果有机统一 ), because through this process, a judicial decision that best meets that target is likely to be achieved.  And this has implications for litigants.

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Many thanks to Straton Papagianneas for translating the “Four Types of Cases Guiding Opinion” and drafting an initial version of this blogpost (and responding to several rounds of comments). Many thanks also to an anonymous peer reviewer for perceptive comments on a later draft of this blogpost.

 

 

 

 

 

CICC, Court judgments, judicial documents

Partial guide to Supreme People’s Court documents

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The Supreme People’s Court (SPC) issues a range of documents as part of its authority to supervise the lower courts. The significance and authority of these documents is confusing to many, both in and out of China, in the world of practice, in academia, and in government, and of course among Chinese law students and graduates.

They are an illustration of how documents continue to be an important tool for Chinese governance, a fact it appears is often forgotten outside of China. “In current Chinese political life, governing the country by documents objectively exists” ( “在现实中国政治生活中，文件治国是一种客观存在”), from this 2017 article by Zhang Xuebo of the Central Party School’s Politics and Law Department.

This blogpost provides an updated consolidated (partial) guide through the forest of SPC judicial documents, drawing on my past research and analysis, not including judicial interpretations (司法解释). I will return to this topic in the future and will discuss judicial interpretations in a separate blogpost.  I have a special interest in judicial documents, because they drew me into researching the SPC in the early 1990s.

The seven categories of documents below are classified as judicial documents  or “judicial normative documents” (司法文件 or 司法规范性文件 and sometimes judicial policy documents” (司法政策性文件). The SPC’s website lists some of them. As I’ve written before, this fuzzy use of terminology is not unusual. An (authoritative) follower has proposed using the English translation “judicial regulatory document” for 司法规范性文件.  An attentive reader can discover from reviewing the documents on the website that this blogpost is not comprehensive.I will have more to say about all of these documents in the fullness of time, when I have an opportunity to explore the forest. The SPC issues many other documents as well, covering personnel and administrative matters, but this blogpost focuses on those with normative provisions.

SPC judicial documents are partially governed by 2012 regulations on the handling of SPC official documents (人民法院公文处理办法), which leave much unsaid and unexplained. It seems likely that additional guidance exists, whether in the form of bureaucratic custom or internal guidelines. Many, but not all, are the SPC’s special versions of Party/government documents.

It is one of the special features of the SPC that so much time and effort is allocated to different types of “soft law,” likely linked to other features of the Chinese legal system.

Partial catalogue of SPC judicial documents

1.Opinions (意见)–In my view, the SPC issues several types of Opinions. I have not yet done detailed research into these different types of documents and have not seen detailed analysis in Chinese (or English).  What I’m setting forth below is my tentative analysis. I’m likely to discover more categories of Opinions as I do further research.

Opinion Type 1:  An Opinion issued solely by the SPC, that addresses a range of matters. The Services and Guarantees Opinions appear to fall into this category. These documents create and transmit to the lower courts new judicial policy, update previous judicial policy, establish new legal guidance that may be eventually crystallized in judicial interpretations and direct the lower courts, but cannot be cited in judicial judgments or rulings. They are generally linked to an important Party or state strategy or initiative. This post has a summary of what opinions are, while another one focuses on how they are structured.  I have often written about this type of Opinion. The ones labeled “Guiding Opinions” are intended to push policy forward, but others may do as well.  Sometimes the SPC issues illustrative “model/exemplary/typical cases to clarify certain points to the lower courts (and the legal community) , such as the Opinion providing Services and Guarantees [Safeguards] to the Yellow River Basin, for which the SPC issued illustrative cases.

Opinion Type 2: An Opinion issued solely by the SPC, that consolidates rules or guidance found in disparate documents and adds some new rules, focused on one particular topic, relating to litigants. The April, 2020,  Opinions on Promoting Lawful and Efficient Trials of Bankruptcy Cases is a good example.It incorporates a provision from the Minutes of the National Court Work Conference on Bankruptcy Trials, for example, regarding consolidating bankruptcy cases of affiliated enterprises.

Opinion Type 3: An Opinion also issued solely by the SPC, that sets out in normative form Party policy/judicial reforms, may be the framework for further normative opinions, and eventually crystalized in law.  An example is the 2015 Opinions on Improving the Judicial Responsibility System of People’s Courts.  The first line clearly links the document to Party decisions–“for the purpose of implementing the general deployment of the Party Center on deepening the reform of the judicial system….(为贯彻中央关于深化司法体制改革的总体部署). It is linked to several normative Opinions and the judicial responsibility system has been incorporated into the People’s Court Law.

Opinion Type 4: the SPC is one of several issuing institutions. They do not create new legal rules but harmonize legal positions among institutions and for the courts, and clarify how the law should be applied. They also cannot be cited as the basis for a judgment or ruling. These are particularly common in the area of criminal law, and are often related to the latest campaign or focus of the authorities. The 2019 Opinions on Several Issues Regarding the Handling of Criminal Cases of Illegal Lending, (最高人民法院 最高人民检察院 公安部 司法部印发《关于办理非法放贷刑事案件若干问题的意见》的通知) part of the  Special Campaign to Crack Down on Underworld Forces (扫黑除恶专项斗争) is a good example.  One aspect of the ongoing campaign, which began in early 2018, is to use the criminal justice and regulatory authorities to crack down on “routing loans” (套路贷), an offense not defined by the criminal law.  This 2019 Opinion harmonizes the understanding among the criminal justice authorities to punish those providing “routing loans.” Article 1 describes certain types of lending activity that can be punished under the crime of illegal business operations (Criminal Law article 225(4)). (See more here).

2.  Conference summary/meeting minutes（会议纪要): the SPC uses specialized court conferences as a way of transmitting central legal policy, unifying or harmonizing court practices in accordance with that policy, and obtaining an overview of court practices and problems. Although conference summaries do not have the status of a judicial interpretation, the lower courts will generally decide cases according to its provisions. “Harmonizing court practice” means in Chinese judicial parlance that judges are applying the law similarly.” A recent example is the 9th National Courts’ Civil and Commercial Trial Work Conference Summary.  The document itself has a very useful explanation: “the Conference Minutes [Summary], which are not judicial interpretations, cannot be cited as a basis for adjudication. For first instance and second instance pending cases after the Conference Minutes have been issued, people’s courts may reason according to the relevant provisions of the Conference Minutes when specifically analyzing the reasons for the application of law in the “The court is of the view” section of adjudicative instruments.” This post has a summary of what conference summaries are.

3. Professional judges meeting summary (法官会议纪要):  I have not yet written a blogpost focused on these. although I have mentioned them from time to time. I have several published collections of these in my library.  The SPC circuit courts appear to have led the way on publishing these as a way of “unifying judicial practice” but the #2 Civil Division (focusing on commercial issues) has published a collection as well.

4. Response or reply (复函 or 答复） These are responses or replies to requests for instructions or approvals. SPC, like other Party and state organs, handles requests for instructions (qingshi 请示). Although proposals have been published to either incorporate the practice into procedural law or abolish it, the practice lives on at all court levels, including the SPC.  If the issue raised is considered important enough, the reply will be approved as a judicial interpretation. There are apparently fewer requests for instructions than ten or twenty years ago. I surmise more are submitted on the criminal issues than civil.  One subcategory of these responses are the ones issued by the SPC’s #4 Civil Division, the division focusing on cross-border commercial and maritime issues. These are responses to request from instructions (请示) from provincial-level courts (including the higher courts of Beijing, Shanghai, Tianjin, and Chongqing), as required by the SPC’s Prior Reporting system for arbitration matters. See more here.

5. Notice (通知).  Documents transmitting one of the above types of judicial documents are often called notices, but this is meant to call attention to a document entitled “notice” (通知), such as the Notice concerning some questions regarding the centralized handling of judicial review of arbitration cases (关于仲裁司法审件归口办理有关问题的通知), discussed here.

6. Rules (规则)and (条例 ) One recent example of the use of rules (规则 is the CICC’s Procedural Rules for the China International Commercial Court of the Supreme People’s Court (最高人民法院办公厅关于印发《最高人民法院国际商事法庭程序规则（试行）》的通知), issued by the SPC’s General Office.  The rules were discussed by the SPC judicial committee but not issued as a judicial interpretation. I have observed that 规则 is used for court rules–as the same term is used for the Working Rules of the SPC’s Compensation Committee  . The term  条例 is used to regulate internal court system matters, such as rules (using  the term 条例) on judicial training(法官教育培训工作条例) and 2012 rules on especially appointed inspectors.

7. Memorandum of Understanding (MOU)  The most well-known example is the 2016 Memorandum of Understanding on Taking Joint Disciplinary Actions against Dishonest Persons Subject to Enforcement (对失信被执行人实施联合惩戒的合作备忘录).  It appears to be the first time (or at least one of the first times) that a large group of central Party-state institutions has concluded an MOU. The SPC concludes many, only some of which have been made public. The lower courts do so as well.  It shows that despite ongoing criticism of “Western” law and legal concepts, the Chinese Communist Party and Chinese government finds it useful to borrow some of them for its own uses. (See more here.)

Transparency

According to the SPC’s rules on judicial interpretation work, judicial interpretations must be published.  As for the judicial documents listed above, not all are published, as there is no requirement to do so.  (I have more on this subject in an academic article on judicial transparency). As I have observed on this blog and in the article, the SPC is generally publishing more judicial documents than before. The contrast is clear, when compared to the early 1990’s, when I started to research the SPC.  One positive and important example is the the approved judicial interpretation agenda, issued in the form of a notice from the General Office of the SPC. The SPC Gazette and People’s Court Daily are required to publish the interpretations, but for the other documents published, it is hit or miss.  The SPC’s official website publishes some, but not all of the ones that can be found in some other sources  A problem for those puzzling out these documents is that unfortunately the staff of the SPC’s website does not take the due care they should to ensure that documents are published in the correct classification, so the careful observer will find that misclassifications occur from time to time. Sources other than the SPC’s website may have more of these judicial documents.  Some of these judicial documents, such as replies or responses by the #4 Civil Division under the Prior Reporting system for arbitration matters, are published in the division’s own publication, as discussed here.

Other comments

Two additional comments on data (or lack thereof) and persuasiveness to the lower courts.  It is difficult to determine how the  number of judicial documents/judicial regulatory documents that the SPC issues compares to the number of judicial interpretations, as it is clear that it is inconvenient for some judicial documents to be made public (and some appear to be classified).

A second comment is on the persuasiveness of these judicial documents to the lower courts.  I surmise that some of them are more important to local court leaders than to ordinary judges, but it depends on the nature of the judicial document. It is my understanding that judicial documents with normative provisions (conference summaries or Opinions with normative content) are cited in trial reports (审理报告 or 审查报告), but not in judgments or rulings.Finally, I surmise that SPC decisions are or will become increasingly important as a form of guidance to lower court judges, especially with the formal implementation of the similar case guidance system.

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Those with corrections or comments or additions, please use the comment function or email me at supremepeoplescourtmonitor@gmail.com.  Many thanks to certain knowledgeable persons for spending some of their valuable free time commenting on earlier drafts of this blogpost.

 

administrative cases, big data, circuit courts, Court judgments

What Is the Impact of the SPC’s Circuit Courts?

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President Zhou Qiang’s May, 2020  report to the National People’s Congress (which I will analyze when time permits) revealed that the number of cases that the Supreme People’s Court (SPC) has increased about 10% over last year to 38,498 cases accepted. This year’s report usefully set out a bar graph with the number of cases that the SPC accepted and concluded.

 

These (also from the report) show that in 2019, almost 60% of the SPC’s cases were heard in the six circuit courts.

This is not accidental, but the result of intentional SPC policy. Judge He Xiaorong, current head of the #2 Circuit Court (and former head of the SPC’s judicial reform office) stated five years ago–” after the circuit courts (literally tribunals) are established, the center of the work of SPC headquarters will shift to supervision and guidance, primarily trying cases that have a major guiding function in unifying the application of law, that can become guiding cases  (巡回法庭普遍设立后，最高人民法院本部应当将工作重心转移到监督指导上，主要审理一些对统一法律适用有重大指导意义、具有重大示范价值、能够作为指导性案例的案件).

There has been one academic article in English (that I am aware of) (by Professors Chen and Wang) that focuses on the circuit courts, but looking at large scale policy rather than more granular analysis of circuit court decisions, whether in the form of judgments or rulings, or how circuit courts guide the lower courts, the impact on law practice in circuit court cities, and what it means for law students.  I’ll set out some quick thoughts on each topic.

Circuit Court Judgments & Rulings

According to the research of Tsinghua Professor He Haibo and colleagues, most of the SPC documents are rulings rather than judgments.  According to their data relating to 2017, 91% of the documents were rulings (relating to applications for retrial or trial supervision), with judgments accounting for about 4%, which in the authors’ view, makes it difficult for the SPC to fully fulfill its function of supervising and guiding the lower courts. This statement has made me think more about what the circuit courts are doing, particularly behind the scenes, as “supervising and guiding” the lower courts has multiple meanings.

What appears not to be generally known is that a substantial proportion of the cases heard in the circuit courts are administrative cases, although Chinese law firms have done many big data reports of commercial cases heard in the circuit courts. I am not aware of a comprehensive study on the number and type of administrative cases in the circuit courts.  This report on the #3 Circuit notes that approximately 70% of the cases were administrative, without breaking out annual statistics. I understand that similar statistics are true for the #1, #2, and #6 Circuit Courts. This report from a Shaanxi law firm on #6 Circuit cases (based on 2017-first half of 2019) found that practically all administrative rulings (96%) rejected the applicant’s request to retry or remand the cases (see the pie chart below).
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The law firm commented that of the administrative cases that were accepted, most of them involved the taking of collective land and the condemnation of housing on state-owned land, indicating government enforcement issues (among others). The comments of the lawyers on the judgments indicated that “administration according to law” is still a long term goal, particularly in western China, as the cases revealed instances of local governments:

  1. condemning or taking land and housing without obtaining approval;
  2. taking land or housing in excess of administrative authority;
  3. taking land or housing first, then obtaining approval;
  4. failing to compensate real estate owners or land use rights holders;
  5. failing to follow required procedures;
  6. demonstrating poor awareness of law, including procedural and evidentiary requirements;
  7. failing to protect the rights of related persons;
  8. failing to comply with open government regulations.

This data is consistent with what I had understood from other sources. One informed commentator mentioned that circuit courts are reluctant to order the retrial of administrative cases. He attributed it to “holistic” thinking on the part of judges (my term–considering factors other than those relating to the case), particularly social stability, the need to uphold the prestige of government, etc.

However, in addition to judgments and rulings, circuit courts use other ways of guiding local courts, and indirectly, local governments.

 How the circuit courts guide the lower courts

Doing some further digging, I found that circuit courts use their judgments and rulings in other more traditional ways to guide the lower courts.  Among those are:

Circuit Courts and Elite Law Firms

Another impact of the circuit courts is to attract some of the elite Beijing or Shanghai law firms to establish branches in circuit court cities.  Tian Tong Law Firm appears to be one of the first, but I’ve also noticed that some of the other big Chinese law firms have followed Tian Tong’s lead. The impact on lawyer career paths remains to be seen, but it is likely to improve the level of litigation practice in some locations.

Circuit Courts and Chinese law students

Finally, having a circuit court nearby has an unrecognized benefit for Chinese law students, many of whom are educated in a very traditional way, with little experience in thinking through legal problems in a comprehensive way or are unused to using their research skills analytically.  It also enables the circuit courts to have greater intellectual support, without expanding their headcount.  From my conversations with law students who have interned in circuit courts, the experience has given them the opportunity to undertake thorough analysis on new issues and to have their work reviewed carefully by highly qualified and experienced mentor judges or judge’s assistants.  It has also given some law students an appreciation of the demands of working “in the system” rather than the more relaxed environment of a university, as several of my students found when they didn’t realize that they needed to inform their supervisors ahead of time about taking leave from their internships to return to school!

 

Case law, Court judgments, Court Operations, Court Reform, Structure of the Court

Supreme People’s Court Establishes a Mechanism for Resolving Inconsistent Decisions

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Screenshot 2020-01-17 at 12.11.48 PM

On 11 October, the Supreme People’s Court (SPC)  issued brief guidance establishing a mechanism for resolving its inconsistent decisions, entitled “Implementing Measures on Establishing a Mechanism for Resolving Differences in the Application of Law (Implementing Measures) (关于建立法律适用分歧解决机制的实施办法).  The guidance did not appear in Chinese legal media until the end of October. The intent of the guidance is to create a mechanism to resolve the old problem of inconsistent court decisions concerning the same issue (same cases decided differently 同案不同判) made by Chinese courts and even within the SPC. Widespread use of the SPC’s judgments database has brought this phenomenon to greater public attention.  With the explosion in the number of cases in the Chinese courts and in the SPC in particular in recent years, the issue of divergent views within the SPC on the same issue is likely to be occurring even more frequently.  The concern about uniformity or consistency of judicial decisions has its roots in the traditional Chinese legal system and is an ongoing topic of discussion among Chinese judges, legal practitioners, legal academics, and law students.

For those with an interest in the details of how the SPC operates, this document does not have the status of a judicial interpretation but the SPC’s judicial committee has approved it, as is evident from the title of the document (measures/办法 and the document number 法发〔2019〕23号 (Fa Fa (2019) #23.  Judicial interpretations must have one of four titles and have a document number with  Fa Shi 法释.  The reason that the SPC judicial committee approved it is linked to Article 7 of the recently released guidance on judicial committees: “the adjudication [judicial] committee of the Supreme People’s Court is to unify law through means such as adopting and drafting judicial interpretations and normative documents (规范性文件), and publishing guiding cases.”

This mechanism has its antecedents in several previous judicial reform documents, and is one that is contained reform measure #23 of the last round of judicial reforms and reform measure #26 of the current round::

#23….Complete and improve working mechanisms for the uniform application of law.

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

A brief summary of the mechanism is set out, followed by my preliminary thoughts on the mechanism and related issues.

The mechanism

The Implementing Measures, which went into effect on 28 October,  provide that if certain SPC entities or lower courts discover that the SPC has issued valid judgments (判决) or rulings (裁定) (the Chinese term is “生效裁判”) which apply the law differently (存在法律适用分歧), or an ongoing case may result in the later decision applying the law differently from that in a previous SPC case, the matter should be brought to the attention of the SPC judicial committee through an application process managed by the Trial Management Office.

Article 1 of the Implementing Measures designates the SPC judicial committee (also translated as adjudication committee 审判委员会) as the institution to resolve and guide differences in the application of law.

Article 2 authorize  operational divisions of the SPC (业务部门), the higher people’s courts and specialized people’s courts to submit an application to the SPC’s Trial Management Office which may be eventually considered by the SPC’s judicial committee if either:

  1. there is a discrepancy in the application of law of judicial decisions of the SPC that are already effective (最高人民法院生效裁判之间存在法律适用分歧的);
  2. or there is a difference in the application of law between the conclusions in a case being tried and principles or standards on the application of law already determined in effective decisions of the SPC  (在审案件作出的裁判结果可能与最高人民法院生效裁判确定的法律适用原则或者标准存在分歧的).

Article 3 authorizes the China Institute of Applied Jurisprudence  (CIAJ) to submit an application to the Trial Management Office if it encounters differences in the application of law in effective judgments of the SPC that it encounters during its focused research work on like cases decided consistently (类案同判专项研究).

If the Trial Management Office determines the matter should be accepted (project initiation) (立项), that office is required to refer the matter to the CIAJ, which is required to provide an initial view to the Trial Management Office within five working days.  Presumably, they will do little additional research and will focus on reviewing the materials submitted by the entity involved.  In some situations, it appears to put CIAJ in the odd position of reviewing its own work.  The Trial Management Office forwards the initial view of the CIAJ to the SPC operational division involved for further review and response.  The operational division involved may involve experts in needed. The operational division should draft a response (复审意见) in a timely manner to the Trial Management Office, which should submit a request to an SPC leader (presumably the relevant SPC vice president) to place the matter on the judicial committee agenda.  Once the judicial committee makes a decision, the entity that applied for a determination is to be informed.  The Trial Management Office is required to provide a proposal containing the form and scope of the decision by the judicial committee for approval (提出发布形式与发布范围意见).  It can be anticipated that determinations on non-sensitive topics may be made public, while those on more sensitive topics will be distributed either solely within the court system or to a relevant category of judges. Article 11 of the Implementing Measures requires SPC operational divisions, local courts, and specialized courts to make reference and implement (参照执行) the SPC judicial committee’s decision in the course of their work. Presumably that will depend on how widely distributed the determination is.

Some preliminary thoughts

In my view, the mechanism is a microcosm of themes reflecting how the SPC operates.  As mentioned above, the SPC decides (either through judgments or rulings) large numbers of cases yearly, and the SPC responds to an unknown number of requests for instructions (请示), mostly on legal issues, which means that in practice that issues on the same body of law may be determined by different divisions of the SPC or different teams of SPC judges. So differences in legal issues may arise either through litigation or court administrative-type procedures. While SPC judges in practice (as I understand it) search for similar cases, it is inevitable that different people have different views on legal issues.  Unlike some other legal systems, the SPC has not evolved an en banc or enlarged panel of judges (this description of how France’s highest court operates provides a good example) as the final institution for resolving these issues.  Designating the SPC’s judicial committee reflects the traditional administrative way (官本位) that SPC makes major decisions concerning legal issues.  As I described in a recent blogpost, the members of the SPC’s judicial committee are its senior leaders.

I surmise that many of the differences in views will be resolved before the matters reach the judicial committee.  In comments made on the Implementing Measures, Justice He Xiaorong (head of the #2 Circuit Court) mentions that he has inaugurated a system of enlarged panels of judges that include those with a public law and private law background, and familiar with civil, criminal, and administrative law, to consider cases involving difficult issues. That system will reduce somewhat the pipeline of issues possibly entering this mechanism.  For those issues that enter the mechanism, it is possible that opposing views may be harmonized when the operational division of the SPC needs to respond to the points summarized by the CIAJ.  I predict that relatively few questions will go to the SPC judicial committee itself.  The mechanism may have been designed with that goal in mind or may have that impact.

Additionally, from my reading of the Implementing Measures, the drafting could have benefited from more input from greater input either within the SPC or without, which could have avoided some of the problems I point out below. I surmise that the drafters were so used to the terminology used within the SPC, they did not realize that lack of clarity will confuse the lower courts and the greater legal community, for whom this system may have practical implications. In particular, the Implementing Measures:

  1.  do not define what is meant by differences in the application of law (法律适用分歧).  Presumably, a major difference in the application of law is intended and the SPC judicial committee (and its gatekeeper, which appears to be the Trial Management Office) will consider carefully which inconsistencies merit a determination by the judicial committee. My understanding is that the judicial committee is reluctant to reverse its determinations on particular legal issues within a short time, as it seeks to provide legal certainty on particular issues through judicial interpretations and other documents.  As I described in my 2019 article on the SPC and FTZs, rules or policies included in SPC judicial policy documents may eventually be crystallized in SPC judicial interpretations and eventually codified in national law, but that process is slow and cannot meet the needs of the lower courts, which need to deal properly (politically and legally) with outstanding legal issues pending a more permanent stabilization.
  2. do not define the term “裁判,” which generally refers to judgments (判决) and rulings (裁定). To a casual reader, at least, it is not clear whether it is intended to include responses to requests for instructions (requests for advisory opinions, 请示).  As I wrote in a blogpost earlier this year, some responses to requests for instructions are entitled fuhan 复函 and others dafu 答复. The editors (from the SPC) of a two-volume collection of responses described them as ‘usually called quasi-judicial interpretation documents’ (往往被称为准司法解释性文件) and ‘a necessary supplement to judicial interpretations’ (它是对司法解释一种必须的补充).  It is not unusual for these responses to conflict with one another, as reasonable people can disagree and multiple institutions within the SPC issue responses on the same or related bodies of law.  I have not noticed a document (at least one that was made public–I’d be grateful to be informed otherwise) describing an existing mechanism requiring the drafters of these responses to review related responses issued by other divisions. Differences in the application of law could also arise between an existing response and later judgment, or draft judgment.
  3. do not define what is meant by “业务部门” (operational departments/divisions).  Does it include the SPC’s Research Office (which one knowledgeable person described as a comprehensive operational department (综合业务部门)), which often issues responses to requests for instructions?  Research into another issue has led to an authoritative answer to this question.  The knowledgeable person was citing “chapter and verse” from a 1995 SPC reply:”研究室是一个综合性的审判业务部门 ” (see Reply of the Supreme People’s Court as to Whether the Research Office is an Operational Department (最高人民法院关于人民法院研究室是否属审判业务部门的复函).
  4. are very weak on specific procedures for when a question of law should be referred to this mechanism.  Consider, for example, a case that is being considered by one of the divisions of the SPC.  2017 SPC regulations on the SPC’s responsibility system mention professional  (presiding) judges meetings (as discussed in a 2017 blogpost and again several times this year.  The Implementing Measures do not specify whether the issue should be reviewed by the division’s professional judges meeting before it is submitted to the Trial Management Office. Presumably that will be the case, as the judicial committee guidance requires it. In Justice He Xiaorong, clarifies that the professional judges meeting is an important institution for resolving differences in the application of law.   As a practical matter, will this procedure suspend civil litigation procedures?  It is unclear.
  5. do not clarify what will be included in the package of documents that goes to the Trial Management Office. Will it be similar to the documents that go to the judicial committee under its new guidance on judicial committees? It appears that the Implementing Measures are not well integrated with the new guidance on judicial committees.   I surmise (please message me if I am mistaken) that the drafting of the Implementing Measures and the guidance on judicial committees was siloed, a frequent problem in the Chinese and other bureaucracies, so that the drafters of the Implementing Measures were unaware of the details of the new judicial committee guidance. As I wrote last month, those contain more specific requirements concerning the content of the report that the judges are required to prepare for the judicial committee, including arguments by both/all parties, prosecution/defense counsel and a clear listing of the issues on the application of law that require discussion and decision by the adjudication committee, the opinions of the professional (presiding) judges meeting.  The guidance also requires judges preparing these reports to search for similar or related cases. I surmise that these requirements will be consolidated in practice.
  6. give special authority to the CIAJ in the course of its research work on like cases. It is also possible that CIAJ could encounter major inconsistencies in its other work, such as compiling its Selection of People’s Court Cases (mentioned in my 2017 Tsinghua China Law Review article). Moreover, it is curious that the CIAJ is given this special authority but not an analogous institution in the National Judges College. Article 3 authorizes the CIAJ to submit an application relating to differences in the application discovered in the course of its work, while the Judicial Case Academy of the SPC (under the National Judges College) (see a list of its 2018-2019 research projects) has no such authority, giving the careful reader the impression that the CIAJ led the drafting of the Implementing Measures.  It appears to be a version of a phenomenon I described in a draft article, that because the SPC is a large organization, with many entities competing for top leadership attention, policy documents are sometimes drafted with  consideration of institutional interests, as a policy document approved by the SPC judicial committee can be seen as representing an undertaking by SPC leadership to the institutional goals of division or entity involved.