What significance does China’s updated court law have?

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main premises of the Shenzhen intermediate court

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

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

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

General Provisions

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

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

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

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

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

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

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

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

Organization (set up and authority) of the courts

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

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

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

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

Article 18 incorporates the guiding case system into the law.

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

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

Trial Organization

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

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

Court Personnel

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

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

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

Safeguards for the courts’ exercise of authority

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

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

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

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

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

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

Drafting process

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

How to translate Chinese court terminology?

u=88646385,14022782&fm=27&gp=0When I write about the Supreme People’s Court (SPC), like many others writing about Chinese law in English, I face translation issues, as legal concepts are embedded in language.  The challenge is to find appropriate legal terminology in English for PRC Chinese legal concepts, an issue that “brother” blogger and creator of the Chinalawtranslate.com blog Jeremy Daum, and more broadly, anyone dealing with the Chinese legal system confronts directly.

He Fan , head of the planning department of the SPC’s judicial reform office, prolific translator of (English language) books on the US courts, particularly the US Supreme Court, has recently written about English translation of Chinese court terminology in his Wechat public account. Earlier, the Chinalaw listserv also hosted a discussion of the translation of some specific Chinese court terms.  To bridge the translation worlds, I am summarizing He Fan’s views on the translation of court terms, with my own comments in italics. He Fan’s sources are listed at the end, as are details on how to make comments or corrections.

  1. 司法机关:  literally translated as “judicial organs,” which in English generally refers to the courts only, but in Chinese sometimes means 公检法 (public security/procuratorate/courts). Foreign journalists often have difficulty understanding this term. He Fan notes that if the term is translated as the “Judicial Branch,” it appears to mean the court system [and to an English speaker implies a system with multiple branches of government];
  2. 审判机关: He Fan translates as “Adjudicative Body,” which he says is generally accepted internationally, but in my own experience “judicial organ” is used more frequently.
  3. 审判员: he considers “judge” more easily understood (my 1993 article had a discussion of this vs. 法官);
  4. The Supreme People’s Court of the People’s Republic of China”–He Fan notes that internationally, SPC is the usual abbreviation;
  5. 地方各级人民法院: local people’s courts at various levels;
  6. “基层人民法院: He Fan notes several different usages–“primary people’s court”; “grass-roots people’s court”; “basic people’s court”; “district people’s court”–he prefers primary people’s court.

He Fan’s example: 北京市海淀区人民法院:Primary People’s Court of Haidian District of Beijing Municipality of the People’s Republic of China; abbreviated as Haidian Primary People’s Court [I would personally move “Haidian District, to before “Primary/basic level people’s court]

7. 中级人民法院”–usual translation is “intermediate people’s court.”

8.  高级人民法院:,“higher people’s court;,“high people’s court,” or rarely “superior people’s court”–He Fan’s preference is “High Court;”

9. 专门法院: He Fan notes that “Special Court” is sometimes seen but “Specialized Court” is more accurate,and won’t be mistaken for special tribunal。

  • 军事法院: “Military Court”;
  • 海事法院: “Maritime Court”;
  • “知识产权法院”译为“Intellectual Property Court”;
  • “金融法院”译为“Financial Court”;
  • “互联网法院: “Internet Court,” He Fan says some translate it as “Court for Internet,” but the usual translation appears to be Internet Court.

Internal court organizations

In his first Wechat article, He Fan splits internal court institutions into those designated by law and other ones, but this blogpost will disregard that distinction.

  1. 独任庭: single judge panel
  2. 合议庭: collegial panel;
  3. 国家赔偿委员会: “the State Compensation Committee.” I have also seen “State Compensation Commission.”
  4. 审判委员会: “Judicial Committee”,or “Adjudication Committee,” He Fan prefers “Adjudication Committee,” as it is less likely to be confused with committees created by the judiciary. My view is that “judicial committee” is used more widely.
  5. 庭:He Fan mentions chamber, division, tribunal, or “adjudication tribunal,” but he himself prefers “division,” as he considers it more accepted internationally, so:
    • 立案庭: Case-filing Division;
    • 民事审判庭: Civil Division;
    • 刑事审判庭: Criminal Division;
    • 行政审判庭: Administrative Division;
    • 审判监督庭: Judicial Supervision Division;
    • 速裁庭: Summary Division;
    • 人民法庭: but long-established practice is to translate it as people’s tribunal.

The recently established specialized “tribunals” (审判法庭), such as “深圳金融法庭“ (Shenzhen Financial Tribunal) should be translated as “Shenzhen Financial Court,” so by the same reasoning “最高人民法院第一巡回法庭: The 1st Circuit Court of SPC” (personally I would move “SPC” to before 1st Circuit).

Personnel-related terms

  1. 法院干警: literally court cadres & policeman: He Fan believes the term is confusing to foreigners and suggests using “judges, court staff, and judicial personnel.” I have previously translated it as “court officials, (cadres & police)”  and discussed the issue of terminology several times. 
  2. 首席大法, 首席法官: Chief Justice” and “Chief Judge”; 中华人民共和国首席大法官: He Fan states it should be “Chief Justice of the People’s Republic of China” and not “Supreme People’s Court Chief Justice.”
  3. 高级人民法院院长: [according  to the Judges Law] s/he is a 大法官– “Justice,” but “Chief Judge” of his/her court;
  4. 副院长: the practice is to translate it as “Vice President”。“常务副院长: (the #2 in charge), generally translated as “Deputy President”,or “Executive Deputy President” (I personally have seen “Executive Vice President” more often);
  5. 庭长:  three translations are used–“Chief Judge”;“Director”;“Head of Division.” He Fan’s view is that “Chief Judge” is least desirable, because it is least understandable by the foreign audience and can easily be confused with  “court president” and prefers “Director” and for “副庭长”–Deputy Director.” My own writing is not entirely consistent–I  have used “division chief” and “chief judge of _ division.” 
  6. 审判长: the responsible judge on a three-judge collegiate panel. He Fan recommends using “Presiding Judge,” analogizing to the practice of the US federal courts.
  7. 高级法官: generally translated Senior Judge (of which there are ranks 1-4), not to be confused with the US federal courts’ “senior judges” (older judges with a reduced caseload).
  8. 书记员: He Fan advising translating as “Law Clerk” (my practice has been “clerk”); 法官助理 as “Law Assistant” (my practice has been “judge’s assistant);
  9. 司法警察: “Judicial Police;”
  10. 人民陪审员: people’s assessor;
  11. 技术调查官: “Technical Examination Officer.”

Court administrative offices/personnel

办: “Office”,

局: 用“Department” or “Bureau,” (my own practice is “Bureau.”)

“处”用“Division”.

Such as: “办公厅”“General Office”;“研究室” “Research Office”;“监察局”“Supervision Bureau”;“司法改革办公室”: “Judicial Reform Office”;“国际合作局”: “International Cooperation Bureau”;“外事办”:“International Affairs Office”;“司法行政装备管理局(处)”: “Bureau(Division) of Judicial Administration & Equipment Management” (I would personally put “Bureau or Division at the end of the phrase).

Resources

Chinalawtranslate’s glossary and links to other resources;

As cited by He Fan:

  1. translations by Chinalawinfo and WoltersKluwer;
  2. Taiwan’s Judicial Yuan’s bilingual legal glossary;
  3. a glossary of translation of government institutions issued by the Beijing government;
  4. Shanghai government’s glossary;
  5. Shenzhen government’s glossary;
  6. Analysis by foreign scholars.

Corrections?

Those who disagree, have comments or have additions to the above list, please contact me at supremepeoplescourtmonitor@gmail.com or use the blog’s comment function.

 

 

Judicial reform post-19th Party Congress

 

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Judge Jiang speaking at an academic conference

 

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

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

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

Background for these further reforms

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

Eleven further reforms & some comments

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

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

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

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

 

 

 

 

China’s draft court law

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Screenshot of trial in the Haidian district court

A draft of the first comprehensive overhaul of China’s court law since 1979 (the organic/organizational law of the people’s courts) is now open for public comment (until 4 October).  A translation of the draft is available at Chinalawtranslate.com (many thanks to those who made it possible).  A translation of the current law is here and an explanation of the amendments has also been published.  The draft is significantly longer than the earlier version of the law (66 vs. 40 articles). It retains much of the framework of the old law, incorporates legislative changes as well many of the judicial reforms, particularly since the Third and Fourth Plenums, and leaves some flexibility for future reforms. As with the current law, Communist Party regulations address (and add another layer to) some of the broad issues addressed in the draft law. Some comments:

Drafting process

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

General Provisions

Some of the dated language from the 1979 version has been deleted (references to the “system of the dictatorship of the proletariat,” “socialist property,” and the “smooth progress of the socialist revolution.” replaced by “lawful rights and interests of legal persons,” and protection of national security and social order. Although the draft court law deletes language that distinguishes among owners of different types of Chinese companies, Chinese criminal law still does (see this chart setting out sentencing guidelines, for example).

Article 10 of the draft incorporates judicial responsibility systems into the law (a prominent feature of the recent judicial reforms), but a topic regarding which dispassionate analysis is hard to find.

The draft contains clear statements about judicial openness and the right of the masses (i.e. ordinary people, that term is alive and well) to know about the work of the courts (according to law).

Organization of the courts

The draft mentions some of the specialized and special courts that have been established over the last thirty years:

Article 14 incorporates the guiding case system into the draft.

Article 15 of the draft crystallizes the SPC’s circuit courts (tribunals) into law (SPC regulations on the jurisdiction of those courts found here).

Article 24 gives space for establishing cross-administrative region courts (the time has not yet been ripe for establishing them).

Articles 26 and 27 give courts some flexibility on their internal structure (courts in remote areas with few cases need not establish divisions, while large city courts can have multiple specialized ones. (Earlier blogposts have mentioned establishing bankruptcy divisions, for example.)

Trial Organization

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

  • In Articles 30-31, on the operation of collegial panels and requiring the court president to be the presiding judge when s(he) participates in a collegial panel;
  • Mentioning in Article 32 that the members of the collegial panel are the ones to sign their judgments and dissenting opinions are to be recorded;
  • Article 34 gives space for eliminating the role of people’s assessors to determine issues of law;
  • Article 37 incorporates into law previous SPC regulations on judicial interpretations and guiding cases, specifying that they must be approved by the SPC judicial committee;
  • Article 40 contains provisions imposing liability on members of the adjudication/judicial committee for their comments and their votes. It also incorporates into the law SPC regulations on disclosing the views of the judicial committee in the final judgments, except where the law provides it would be inappropriate;
  • Article 41 also incorporates into the law the specialized committees mentioned in judicial reform documents (briefly discussed in prior blogposts).

Court Personnel

Article 42 requires court presidents to have legal knowledge and experience.  It has long been an issue that court presidents have been appointed more for their political than legal expertise.

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

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

Safeguards for the courts’ exercise of authority

Article 56 gives courts the right to refuse to engage in activities that violate their legally prescribed duties (with this end the phenomenon of judges sweeping streets?);

Article 57 relates to reforms relating to enforcement of judgments (and the social credit system);

Article 59 relates to threats to judges’ physical safety and personal dignity, that occur several times a year in China, and have been the subject of SPC regulations;

Scope for further reforms for judicial personnel management (including salary reform!) are included in this section.

Article 60 reiterates the principle that judges may only be transferred, demoted, dismissed according to procedures specified by law (Party procedures  to which most judges are subject,are governed by Party rules.)

Article 62 relates to judicial (and judicial personnel training)–some earlier blogposts have shed light on this topic.

Article 64 incorporates into the draft law President Zhou Qiang’s focus on the informatization (including use of the internet and big data) of the Chinese courts.

Etc.

My apologies to readers for the long gap between posts, but several long haul trips from Hong Kong plus teaching have left me no time to post.

Supreme People’s Court judge convicted of taking bribes

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Bottega Veneta man bag (©BV)

In a blow to the Supreme People’s Court (SPC)’s efforts to bolster its prestige and that of the Chinese judiciary, a ruling recently published on the SPC’s court database reveals that Ms. Zuo Hong, formerly a judge (with division level rank) in the SPC’s Trial Supervision Tribunal was convicted of accepting bribes.    The published ruling omits her full name and that of others involved in the case.

The initial judgment by the Beijing Eastern District People’s Court (District Court), dated 10 March 2016, from which she appealed was upheld by the #2 Beijing Intermediate People’s Court on 31 May 2016.  Because the amounts involved were small (approximately RMB 70,000, particularly in comparison to many of the other corruption cases that have come to light in the last two years), her one and a half year sentence was suspended for two years.  Although she avoided a jail term, she will be unable to draw on her state pension and cannot be involved directly in the legal profession.

The facts, according to the ruling (which summarizes Zuo’s confession and witness statements of others involved in the case):

The then Judge Zuo received as gifts US dollars (USD) and a BV bag (men’s style) from Judge Hui of the Shanghai Higher People’s Court, Trial Supervision Tribunal (USD $6000) and Mr. Yang, Deputy General Manager of Zhongxia Construction Group (Zhongxia, a Shaoxing, Zhejiang-based private company) (bag and USD $2000). (It appears that the bag was originally intended for Judge Hui.)

Judge Hui and Mr. Yang were classmates.  Judge Zuo, who was contacted by Judge Hui, involved herself in a private lending case in the Shaanxi Higher People’s Court in which a Zhongxia subsidiary was a party (the related judgments are listed in this article). The SPC had ruled on the Zhongxia subsidiary’s re-trial petition and remanded to the Shaanxi Higher People’s Court for further proceedings. During 2014, Judge Zuo traveled to Xian four times on the matter, where she met with Judge Hui and Mr. Yang. Judges Zuo and Hui met with their contacts at that court to set out Zhongxia’s position and to have those views conveyed to the judges directly involved. According to the judgment, the Shaanxi judges met with Judges Zuo and Hui because she was from the SPC and given the hierarchical relationship, it was awkward to refuse to meet.   The case was further discussed by the collegiate panel and  judicial committee and eventually remanded to the Xian Intermediate Court for retrial on the basis that the facts were unclear.

According to this article, the case came to the attention of the Supervision Bureau of the SPC in January, 2015, when its personnel were investigating other cases and her iPhone and BV bag came to their attention.  In April, 2015, the Supervision Bureau opened an investigation file for her case. Judge Zuo  cooperated with the Supervision Bureau’s investigation and handed over the money and bag to investigators.  Her case was transferred to the procuratorate on 12 June 2015, when she was taken into custody. She was arrested at the end of that month.

On 1 February 2016, the Communist Party Central Political-Legal Committee designated her case as one of seven typical cases of leadership interference in the judicial process. By that time she had been expelled from the Communist Party under its disciplinary procedures.  At the end of August 2015, Ms. Zuo was formally removed from office.

Comments

It appears from Judge Zuo’s case that the Central Political-Legal Committee’s need to issue a set of  typical cases of leadership interference to scare judges and other members of the political-legal establishment into compliance trumped respect for the formalities of the operation of the criminal justice system. (It is unclear whether the Central Political-Legal Committee considered the impact of that lack of respect on retaining highly qualified judges (and on other legal professionals)).  (This blogpost highlighted the first set of these cases). It is likely that the Central Political-Legal Committee relied on the Party disciplinary decision in her case (see a description here) to make a determination that her case should be made public.

Senior court personnel involving themselves in cases, whether motivated by friendship or bribes, is an ongoing problem. What the two judges did is prohibited by SPC 2015 regulations and previous SPC rules. It is likely that Judge Hui has also been punished for his role in this. It seems unlikely that the Shaanxi judges were punished, as the case does not show that the internal advocacy did not affect the eventual outcome.

The case also illustrates that structural aspects of the court system have left space what is now considered “improper interference” by senior judges and were previously common practice. It also shows that internal court procedures in this case seem to have operated to blunt that interference.

The trial supervision procedure had been one of the soft spots for “improper interference,” although reforms of the trial supervision procedure under the 2015 judicial interpretation of the Civil Procedure Law (and further 2015 SPC trial supervision regulations) should diminish abuses.  Chinese law had given trial supervision judges relatively broad discretion in deciding whether to re-open a case, which is important because China has a two instance system.  (Current reforms require the application for re-trial to be sent to the opposing party and permit the reviewing judge to hear arguments from both sides). Judge Zuo is only one of many trial supervision judges who has been convicted of bribery.  (See recent cases in Liuzhou, Shanxi, and Putian.)

As Professor Li Yuwen of Erasmus University has previously written (and which I quoted in an earlier blogpost):

judicial corruption cannot be divorced from its social context…It is unrealistic to expect judges to operate completely outside the social environment, especially in the absence of a workable system to reduce the incidence of judicial corruption…certain shortcomings of the court system leave the door open for corruption. For instance, the flexible use of the re-trial system [trial supervision] leads to the easy re-opening of cases if influential people wish to interfere in a case.This not only diminishes the finality of a case but also creates opportunities for using personal networking to change a court’s judgment.

Furthermore, the relatively law judicial salary makes judges an easy target for corruption…In modern-day China, a profession’s income is too often linked to the profession’s social status. Judges’ low salaries are not conducive to building self-respect amongst the profession and, moreover, they constitute a major ground for fostering judicial corruption.

How low was Zuo Hong’s salary, that she thought it worth her while to risk her freedom and career for USD $8000?

How the Supreme People’s Court serves major government strategies

serve the people

serve the people

In the past year, the Supreme People’s Court (SPC) has issued several policy documents that contain the same phrase: serve the nation’s major strategy (服务国家重大战略).  When SPC President Zhou Qiang gave his report to the National People’s Congress (NPC) in March, 2016, one section addressed this topic.

Provided service for the country’s major strategies.  Issued opinions on the people’s courts providing judicial service and protection for the construction of One Belt, One Road, the development of coordinated development of Beijing-Tianjin, and Hebei, and the development of the Yangtze River Economic Belt, appropriately tried related cases, promoted the coordinated development of geographic areas.

(服务国家重大战略实施。制定人民法院为“一带一路”建设、为京津冀协同发展、为长江经济带发展提供司法服务和保障的意见,妥善审理相关案件,推动区域协调发展)

What, if anything, does serving the country’s major strategies mean for the Chinese courts?  This blogpost briefly looks at one of the policy documents cited by President Zhou Qiang to find out.

What are the documents?

The titles of these three are similar:

  1. Opinion of the SPC on Providing Judicial Services and Guarantees for One Belt One Road (OBOR Opinion)最高人民法院关于人民法院为“一带一路”建设提供司法服务和保障的若干意见;
  2. Opinion of the SPC on Providing Judicial Services and Guarantees for the Development of the Yangtze River Economic Belt (最高人民法院关于为长江经济带发展提供司法服务和保障的意见)(8 March 2016 )(Yangtze River Opinion); and
  3. Opinion of the SPC on Providing Judicial Services and Guarantees for the Coordinated Development of the Beijing-Tianjin-Hebei Region 最高人民法院关于为京津冀协同发展提供司法服务和保障的意见 (18 February 2016)(Beijing/Tianjin/Hebei Opinion) .

What are the country’s major strategies?

A Rand Corporation report set out a definition of the fundamental purposes of China’s national strategy:

the fundamental purposes of China’s national strategy (guojia zhanlue) (1) to safeguard China’s national territory and sovereignty, (2) to guide national construction and social development, (3) to strengthen national power, and (4) to ensure continued national prosperity….China’s national strategic objectives (guojia zhanlue mubiao) constitute those fundamental strategic principles, concepts, and priorities guiding not only foreign and defense policy but also critical domestic realms concerned with national construction and internal order. These objectives include the attainment of great power status in the economic, technological, social, and military realms…, and the development or maintenance of capabilities to defend against any internal or external threats to China’s political stability, social order, national sovereignty, and territorial integrity.

Beijing/Tianjin/Hebei Opinion

It was drafted to support the Beijing/Tianjin/Hebei regional integration plan because the economic integration plan will “inevitably produce a large number of legal disputes, particularly trans-regional legal disputes.” The SPC research office seems to have taken the lead on drafting it, because its head appeared at the press conference to explain it.

The Opinion stresses the following types of cases, in the following order:

  • Criminal law: punish crimes that may effect social stability and regional integration: intellectual property rights infringement; embezzling corporate funds, illegal fund raising;  market manipulation etc. (the priority crimes);
  • Commercial law: priority cases include those involving company relocation; regional logistics centers; relocation of regional markets, including leases, labor disputes; reorganization or bankruptcy of companies with outdated technology; construction of industrial parks and promotion of companies with high quality technology;
  •  Cases involving people’s livelihood, particularly those involving public services, education, medical and health; social protections; promoting entrepreneurship, equal education, etc.
  • Cases involving financial innovation and safety: those include private lending, internet financing, protecting the rights and interests of creditors and financial consumers;
  • Expanding the protection of intellectual property:
  • Environmental cases: focus on environmental civil/commercial and administrative cases;
  • Focus on administrative cases related to regional development; and
  • Focus on major projects and construction projects related to regional integration.

The Beijing/Tianjin/Hebei Opinion also establishes greater coordination among the three courts, including a mechanism chaired by the SPC, exchange of judges, and calls for work on centralization of certain types of cases in certain court.

The Opinion calls for the lower courts to focus on the overall regional integration plan and promote the use of “diversified dispute resolution,” and pre-filing mediation, especially in policy-oriented, sensitive cases, where the local Party Committee, government, and other departments must be relied upon to resolve issues.  ( 特别是对于政策性、敏感性强的案件,要紧紧依靠当地党委、政府及有关部门依法解决).

(The phrase “policy-oriented, sensitive case” was helpfully described by another judge as it is a concept used often within the Chinese judiciary.  Although it is a not a formal legal term, it refers to the following categories of cases: those that affect a larger group of people than the parties involved; involve issues of widespread concern; require the adjustment of certain long-term government policies; and have political implications. Those include cases involving a large number of people, special groups (such as migrant workers, well-known enterprises, offshore entities), ones that can cause social conflict, including bankruptcy, labor disputes caused by restructuring, employee relocation compensation cases, land acquisition and resettlement compensation. Cases involving political, ethnic and religious issues are also included.)

Policy documents serving major government strategies

As a central government institution, the Court must do its part to support national major strategies. To inform the lower courts of the priority issues, projects, and matters, the SPC issues policy documents, which are the court system’s version of policy documents issued by other Party and state organs. Each of the three national major strategies raises a set of legal issues.  Some of those legal issues are relevant to the function of the courts in hearing cases, while others relate to the function of the SPC as a “quasi-legislator,” as when it issues judicial interpretations.  They often relate to forthcoming initiatives or sometimes long-term issues for the SPC, as in the case of the OBOR Opinion.  However, these documents also signal that some issues, projects, and matters are more important than others, and ultimately does not contribute to public trust in the judiciary.

Some thanks in order

My thanks to a Hong Kong solicitor for criticizing the Hong Kong courts for lacking the “spirit of service” during a recent symposium on the mainland (bringing this issue to my attention) and a (mainland) academic for expressing to me his doubts that the SPC’s OBOR Document had any significance whatsoever.

What China’s judicial reform white paper says about its vision for its judiciary

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Portrait of Qing dynasty inspector

Over one year has elapsed since the Supreme People’s Court (SPC) has implemented the judicial reforms set out in the February, 2015 4th five year plan for reforming the judiciary.  While thousands of words have been written in Chinese and English, some praising,  criticizing, mocking, and bemoaning the reforms, it was only in late February, 2016 that the SPC issued a comprehensive official assessment, focusing on its achievements. That official assessment takes the form of a bilingual white paper (White Paper) issued in early March (but full text released on-line only in English), plus a section of President Zhou Qiang’s work report devoted to the judicial reforms, a first for the SPC.  I surmise that it was approved by the Judicial Reform Leading Group.

This blogpost looks at the vision for the Chinese judiciary that the White Paper conveys, by looking at several sections.

 

Chinese court system and the reform process

The description of the reform process in the first section of the White Paper tells us who/what is driving the reform process, the nature of the process, the core issues, and how the judicial reform process is being monitored.

Facts highlighted:

  • During 2014-2015,13 out of 19 plenary sessions held by the Central Leading Group for Deepening Overall Reform involved judicial reform, where 27 judicial reform documents were adopted.
    • A partial list of those 27 documents is found here.
  • The Social System Reform Specialized Group (the Central Leading Group for Judicial Reform) is in charge of judicial reform;
  • The SPC has a leading group in charge of judicial reform, replicated at the provincial level, and any judicial reform plans piloted by them need to be approved by the SPC or above (the 4th Judicial Reform Five Year Plan states this).

According to this section, the four core judicial reform measures are:

  • improving the classified management of judicial personnel [treating judges differently from clerks and other support personnel and civil servants0;
  • the judicial accountability system [the lifetime responsibility system set out in regulations issued in September, 2015, but only implemented in areas piloting judicial reform, controversial among judge and academics];
  • professional protection of judicial personnel ;
  • unified management of personnel, funds and properties of local courts below the provincial level.

These four measures will be piloted throughout the country in several rounds before they are implemented nationwide.

Comments

From the description of the reforms we can see that the specific reforms discussed in the remainder of the report have been cleared by the Party leadership.  It seems reasonable to assume that each reform involved hundreds of hours of policy paper drafting by SPC staff and internal and cross-institutional discussions, and responses to comments during those discussions.

What the White Paper did not mention is that the Central Leading Group for Deepening Overall Reform and the Central Leading Group for Judicial Reform established their own inspectorate for monitoring the progress of reform,including judicial reform, (reviving a traditional institution).  It is unclear which reforms will be targeted this year for inspection. The separate inspectorate seems to indicate that these Central Leading Groups want their  own source of information on how reforms are being implemented.

 

Judicial independence (Ensuring Independent and Impartial Exercise of Judicial Power Pursuant to Law)

One of the messages conveyed in this section is that local courts do not belong to local governments but are established by the State at the local level to exercise judicial power on behalf of the State. The goal as stated in this section, is to “form an institutional environment and social atmosphere that respects [the] judiciary, supports [the] judiciary and trusts [the] judiciary.”

It  lists about a dozen measures. What is new in this section:

  • a summary of the policy thinking on judicial appointments and funding of the local courts.  On judicial appointments, judges will be selected by judicial selection committee at the provincial level in terms of professionalism, and will be appointed and removed according to common standards. This is a push in the direction of professionalism, and away from the phenomenon noted in the past few years of having chief judges who lacked a legal education.  On the funding issue, the Central Government will fully guarantee the funding of the local courts. The provincial fiscal departments manage the funds of local courts below the provincial level, the local courts will submit their budgets to the provincial fiscal departments, and  budget funds will be appropriated by the centralized payment system of the national treasury.
  • Fuller discussion of cross-administrative district courts to hear administrative cases–piloted in Beijing and Shanghai and other locations, under the umbrella of a policy document of the SPC that has not been made public. The concept is to have cases against local governments heard outside of the area in which they arose.  The SPC recent policy document on the development of the greater Beijing area has further content in that area.

This section also discusses the following reforms, previously discussed: circuit courts; cross-administrative division courts; intellectual property courts (by Mark Cohen, chinipr.com); administrative cases being centralized in one court (Shenzhen is one of the pilot project venues); maritime courts; environmental protection divisions; official interference.

Improving the way the courts function ( Improving the Functional Mechanism of Adjudicative Powers)

The fourth section of the White Paper provides useful insights into how the judiciary is intended to operate post reform.  It starts out with a statement that judicial power is a judging power in essence and emphasizes impartiality, neutrality and personal experience.”

The focus on this section is on reforms to the way Chinese courts operate. As I have written previously, they have operated in many of the same ways that other Party and government organs operate.     This section describes pilot reforms, new policies, or regulations concerning the following (among others):

  • personnel reforms described above (but do not mention the pay rise that goes along with it in at least some courts);
  • senior judges within a court (court presidents, vice presidents, division chiefs) will no longer approve judgments, except for a small number going to the judicial committee);
  • senior judges will hear cases instead of concentrating solely on administrative matters;
  • courts will establish a specialized judges council made up of judges in specialized areas (criminal, civil, etc) to provide views to judges hearing cases on the interpretation of substantive issues, on an equal basis rather than seniority;
  • the SPC has abolished irrational performance indicators and forbidden senior judges from involving themselves in cases that they have not heard;
  • the SPC has issued policy guidance on the reform of judicial committees (not yet made public).  The principles set out follow generally what was described by President Zhou Qiang earlier, but include judicial committee discussion of “major and complicated cases concerning national diplomacy, security and social stability and those required by law.”  The guidance calls for more transparency (unclear whether to be within the court or greater), better record-keeping, and less involvement by judicial committees with specific cases. As discussed in an earlier blogpost, judicial committees have often been a route for transmitting the views of local officials and have been been implicated in some of the wrongful conviction cases);

    judicial committee

    judicial committee ©SPC

  • judicial responsibility/accountability system, mentioned above;
  • regulations on the jurisdiction of different levels of courts in civil cases (described in this blogpost).

These reforms look to do a number of things that are significant within strictures of the Chinese system: distinguish judges from other Party cadres and give them better status and pay; break down or reconstitute some of the basic internal structures of the courts that have facilitated corruption, unjust cases, and discouraged talented judges; abolish performance indicators that have been poisonous for judges and litigants alike.

 The vision

The vision that the SPC  has for the Chinese judiciary and judges can be seen from the description of the reforms above.  The SPC intends to create a more professional judiciary (with a lower headcount), that is better paid, more competent, has performance indicators that look more like other jurisdictions, with an identity and operating mechanisms separate from other Party/government organs, that will be more autonomous, no longer under the thumb of local authorities, but operates within the big tent of Party policy.  To be incorporated in the judicial reforms, the implications of each measure must have been thoroughly discussed by the Party leadership and the Party leadership is using its own institutions to monitor results.  Will the judicial reforms achieve their goal of making people feel justice in every case?  For that, the jury (or is it the people’s assessors(also being reformed)?) is still out.

Takeaways from the Supreme People’s Court 2015 work report

20160313104344_51387The Supreme People’s Court (SPC)’s 2015 work report has many takeaways for different audiences.  The apparently formulaic report took five months to draft, involving comments and input by many within and outside of the SPC (this article  describes the process, as did my earlier blogpost), most likely involving clearance by the Central Leading Group on Judicial Reform.  It was drafted to show certain accomplishments, send certain signals–show that judicial reform is on the right path and is successful, particularly that the court leadership and the courts are doing their part to fulfil the tasks set for them by the Party/state leadership.  This year’s report has three sections, rather than the usual two, with one section summarizing judicial reform accomplishments. This post will focus on highlights of the overview of 2015, and leave judicial reforms and tasks for this year for another day.

In a sign that the diminished attention spans have come to China, the SPC has come up with graphic and even musical versions of the report.

Statistics to convey current message

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This short book, explaining how statistics are used to convey certain messages, was originally published in the 1950’s and translated into Chinese about 10 years ago (and given to me when I was 11 by my parents). It is a useful reference when puzzling out what SPC court statistics are saying and mean, because as this  Wall Street Journal article noted, the categories used in the annual reports often shift from year to year, making comparisons difficult, and breakdowns of specific categories are generally missing. The reason for that is the report (including the statistics) are meant to harmonize with the latest government/Party policies and be on message. The SPC is reforming judicial statistics and seeking to make better use of big data, but the fine details are not in this report.

Takeaway #1–Caseload Up Significantly

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The caseload of all levels of courts were up significantly, primarily because of the docketing reforms implemented last year (mentioned here).  Civil (family, inheritance, private lending) and commercial cases account for most of the growth.

Cases heard at the Supreme People’s Court were up 42.6% compared with 2014 (accepted 15985, concluded 14,135). with most of those heard at headquarters in Beijing rather than the two circuit courts.    The local people’s courts heard 19,511,000, and concluded 16.714 million cases, with large increases  in the amounts in dispute, an increase of 24.7%, 21.1% and 54.5%, respectively. This seems to exclude cases heard in the military courts.

Performance target reforms mean that judges are no longer under enormous pressure to conclude cases by year end (although some local court officials may not been on message).

The bar chart below compares 2014 and 2015 numbers for criminal, civil, commercial, administrative, and enforcement cases respectively.Screen Shot 2016-03-15 at 7.16.13 pm

Criminal and Commercial cases up–Takeaway #2

Just briefly on the criminal cases, as the overview graphic of commercial cases is linked to criminal cases-criminal cases are up by 7.5%. Significantly, criminal cases involving refusal to pay wages were up 58%, with last year’s report revealing that 753 persons were convicted, which means that 2015 convictions were close to 1200. a\Analysis of  the statistic of 1419 persons convicted of state security and terrorist crimes can be found here.

e8fade90gw1f1v665sc3uj209i0ugq6mCommercial cases were up 20% (3,347,000, with 120,000 intellectual property cases (up from 110,000 in 2014).  This is likely linked to the new intellectual property courts, but I will cede further analysis on this to my fellow blogger Mark Cohen of Chinaipr.com.  Again, tiny numbers of foreign-related (6079), but up from last year (5804) and Hong Kong, Macau, and Taiwan-related cases.  Cases involving subsidiaries of foreign companies are not in this category–this is a commercial case with a foreign party. The maritime courts heard 16,000 cases, the large increase apparently also attributable to the case registration system.  The language in the speech (making headlines) about making China an international maritime judicial center reflects language in previous speeches Zhou Qiang gave in China (analyzed here), but unnoticed until the NPC report.

Private lending disputes up significantly

The courts heard 1,420,000 private lending disputes, up from 1,045,600 in 2014.  Further background on private lending disputes can be found in my previous articles for the Diplomat. Last year the private lending disputes were categorized with the civil cases, rather than commercial cases.

SPC doing its part for greater government policy

The SPC issued policy documents on One Belt One Road (see this analysis of its implications), the Beijing/Tianjin/Hebei area, and Yangtze River Economic Belt to implement government policies. Those strategic projects are priorities for government.

Takeaway #3 Commercial disputes

Screen Shot 2016-03-15 at 8.33.59 pm

In 2015, 1,053,000 financial disputes were heard and 100,000 insurance disputes, as well as 4238 securities fraud and insider trading cases, compared with 824,000 financial disputes in 2014, a number which included insurance cases.  This speaks to the weakness in the Chinese economy.

The bar chart to the left illustrates percentage increases in product liability (in 2014 there was also a large increase), reputation, real estate development (see this blogpost), loans, sales contracts, labor (up 21%!), and rural residential land disputes. The report flags 1400 bankruptcy cases and highlights pilot projects.

In another indication of problems with the real estate sector, Zhou Qiang mentioned “mass real estate disputes” and the expert handling by the Jinan court (in coordination with the government) of a large villa project in Jinan that encountered financial difficulties in 2008 (see this description) and led 2000 purchasers to petition in Beijing and even surround the Jinan Party Committee, Shandong Party Committee, and the Central Inspection Group that was on site. In 2014, the Shandong government decided to use “legal thinking” to involve the Jinan intermediate court.

An area for commercial lawyers to monitor is unfair competition and anti-monopoly, where the regulators are working on a stream of regulations. Last year the Chinese courts heard 1802 cases.

Takeaway #4– Big jump in civil disputes

Screen Shot 2016-03-15 at 5.38.32 pm

 

The pie chart on left shows the distribution of first instance civil cases–26% family (1,733,000), 1.5% inheritance, 5% ownership disputes, 17% personal rights (privacy, portrait, reputation), 22.8% private lending, 7.32% labor disputes, including 300,000 migrant worker wage arrears (and other cases related to rural residents rights (拖欠农民工工资等涉农案件 30 万件).  Consumer, education, housing and employment accounted for 720,000 cases.

For environmental cases, 78,000 civil cases were concluded, along with 19,000 criminal cases.

 

Takeaway #5 Big jump in administrative cases

The amendment of the Administrative Litigation Law last year, the docketing reforms, and the decision to push disputes off the streets and into the courtroom has been a large increase in administrative disputes, although the baseline was very low.  In 2015, 241,000 first instance administrative cases were accepted, up 59% from the year before, with 199,000 concluded.  Reforms have been undertaken to move administrative cases outside of the area in which they arise, which is another reason that some persons or entities have been willing to file.  The bar chart has the percentage increase in different types of administrative cases, with an 176% increase in education cases. The remaining categories (from the left are: public security, trademark, pharmaceutical, construction, transportation, energy, and the environment.

(Black & white charts from SPC work report, thanks to Josh Chin of the Wall Street Journal).

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Chinese bankruptcy courts to become “hospitals for sick companies”

hospital-clipart-hospital3As recent blogposts  (and academic studies) have shown, Chinese bankruptcy courts have been acting as underused morgues rather than hospitals for ailing Chinese companies.  The Supreme People’s Court (SPC) anticipates major changes, because (as highlighted on this blog) the government has decided that a stake needs to be driven through the heart of zombie companies.

This blogpost will focus on the role that courts are to play in clearing up zombie enterprises.  But because the role of the courts in bankruptcy is linked to other government policies, it will also flag some significant ones that have not yet come to the attention of observers outside of China. It appears that behind the scenes, officials have been working on putting together the policy machinery to do so and that the process is ongoing.

In late February, the SPC convened a conference of bankruptcy judges and other officials on dealing with zombie enterprises in Hangzhou, Zhejiang Province, both to transmit the newest judicial policy on bankruptcy and to find out from local judges and other officials what the issues are.

Judge Du Wanhua, a senior SPC judge, has been designated to take the lead on bankruptcy law reforms. The location of the conference is intentional, because (as mentioned in an earlier blogpost), Zhejiang Province has been piloting new approaches to bankruptcy law. The Zhejiang Higher People’s Court has been working with government to promote bankruptcy related policies, but at the same time has emphasized that the courts need to hear cases independently. In 2015, the courts of that province accepted over 600 bankruptcy cases.

According to Judge Du, the “courts are to become hospitals for sick companies.” Listed below is the approach that the SPC is intending for the lower courts to take (with some of my comments).

  • The courts should promote more bankruptcy reorganization and conciliation, and diminish liquidation cases (a contrast to what has occurred in recent years).  (The SPC has promoted this approach through recent reports promoting reorganizations by the courts and is continuing to promote this in its pronouncements. Local governments are adopting policies to promote reorganization of companies.)
  • A market-oriented mechanism should be established which classifies zombie enterprises.  The mechanism should distinguish ones than can be saved through restructuring or conciliation procedures from the ones that should be liquidated.  The classification should fulfil the industrial development goals, targets, and other principles of the central government.  (But, Professor Liu Zhibiao, a leading economist suggested in a recent interview that it should the market to determine this, not government.)
  • The rights and interests of the state, workers, creditors, and investors should be protected (listed in this order).
  • A corporate restructuring bankruptcy information platform mechanism that uses modern information technology tools should be created to promote the greatest degree of success of corporate restructuring, and better use of economic resources.  (This is consistent with government (including SPC) policy promoting the use of information technology tools);
  • A unified coordination mechanism for bankrupt enterprises needs to be created under the local Party committee’s strong leadership and support of the relevant government departments to ensure cases are handled in an orderly manner. (However, in the fall of 2015, Ma Jian of the SPC’s research office pointed to local government interference in the acceptance, and trial of bankruptcy cases, as being an major issue.
    • A local court judge writing recently described a judge’s role: “bankruptcy involves the vital interests of many people, and directly affects social harmony and stability. Thus the social dimension of bankruptcy cases determines that the court can not ” go it alone” in bankruptcy cases. Some local governments do not want companies to go bankrupt for statistical , performance, maintenance of stability and other considerations.  [According to Professor Liu, it can have a negative effect on the performance evaluation of local officials.] The court should actively seek the support of the local government where the debtor is located, to provide good placement of workers of bankrupt enterprises, payment of wages, disposal of plant or other fixed assets disposal.  By communicating with relevant departments, policy support can be provided to help pay taxes , apply for transfer [of property], coordinate the interests of creditors, debtors , investors, employees and others) ;
  • Orderly mechanisms should be established to deal with wages, state tax, and the priority and realization of secured claims, unsecured claims.
  • Local courts should establish bankruptcy divisions and provide bankruptcy judges with better bankruptcy law training;
  • Procedures should be established to consolidate related bankruptcy proceedings in different courts;
  • Procedures for bankruptcy administrators should be drafted and their status should be improved;
  • Special funds should be established to pay for bankruptcies and bankruptcy administrators.

Related to this are the following government initiatives:

  • Local governments, such as Guangdong, are starting to issue policy programs on “supply-side reforms.” The Guangdong program, issued on 28 February, contains a section on bankruptcy. The policies reiterate and further detail the principles Judge Du enounced (and merit further analysis).
    • The Guangdong policies mention separate databases for bankrupt state-owned and non state owned enterprises, mentioning that special policies would be forthcoming for state owned enterprises and that courts would be given the “green light” to deal with the bankruptcy of zombie companies. Reflecting policies seen elsewhere, the Guangdong government is seeking to encourage private enterprises to assist in reorganizing state-owned zombie enterprises and is considering establishing special funds to assist companies to upgrade.
  • The central government is also looking to simplify procedures by which companies with no debts can be closed.  During 2015, the State Administration of Industry and Commerce announced that it was piloting reforms in a number of locations, first designating Shenzhen, the Pudong district of Shanghai, and several other locations, and subsequently expanded the locations.
  • Training sessions on bankruptcy law, either within the courts or with related government agencies and institutions. In late February, the Changsha (Hunan) Intermediate People’s Court held a training session with experts from the SPC (First Circuit Court) and professors of bankruptcy law from Beijing, while the local government in Quanzhou organized cross-institutional training.
  • Local courts (such as this one in Quzhou, Zhejiang Province) are providing reports to local government/Party Committees on what the courts can do.

But what are bankruptcy judges really doing?  If a recent message on Wechat is any indication, they are reaching out to their fellow judges for guidance and creating a chat group on how to deal with the many legal and social complexities that bankruptcy cases pose.

Can bankruptcy court “doctors” save zombie enterprises and their millions of employees?  It is very early days. What can safely be said is that bankruptcy and zombie enterprise related policies merit close monitoring by lawyers, the business community and others.

 

 

Another Chinese judge killed

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The Chinese legal community is mourning Judge Ma Caiyun, who served in a tribunal of the Changping District Court, in suburban Beijing, is understood to have been killed outside her home by two men, one of whom was a party to a divorce property settlement case. (They have committed suicide.)  Her husband, a court policeman, was wounded.

Details recently released indicate that the two men attacked the husbands of their former wives, killing the husband of one, before killing the judge.  This domestic violence tragedy, seen elsewhere in the world, has occurred a few days before China’s new Domestic Violence Law goes into force.

Official commentary took over 24 hours to be released, as was pointed out in these caustic remarks (“what is the wait?) by a former judge.

One announcement by the Supreme People’s Court (SPC), found here, initially stressed that she settled almost 400 cases each year and had received awards for her work, but has now been supplemented by an article linking her tragedy to earlier cases of violence against judges.

A article on the case posted on Wechat on 27 February by one of the prominent legal Wechat public accounts (CU检说法) was viewed almost half a million times in four hours before being removed and received almost 700 comments.

Today (28 February), many articles are being published on Wechat without being removed, so it appears that there has been a change in policy. Local court Wechat accounts have posted articles about the tragedy (always with one from the SPC), and many other legal public accounts have done so as well.  One of Judge He Fan’s (of the SPC) postings has received over 100,000 age views.

This tragedy is the latest in a series of violent attacks against judges, and like some of the earlier cases, was carried out by a man upset by the property settlement in his divorce case.

Donations are being collected by some former judges to give to the family of Judge Ma.

 

 

 

 

Why is assigning responsibility for wrongful convictions in China so difficult?

d397e647d9fea2da22ef78a1f4a2ecc6At least two recent articles in the Chinese media provide some answers to the question of why assigning responsibility (within the courts) in wrongful conviction cases (known in China as “mistaken cases”) is so difficult. ( A recent  New York Times article has previously discussed the question as well and provided commentary by several well known authorities.) This brief blogpost looks at these two recent articles, which provide additional insight.

  1.  “Russian doll” system of committee decisions

The first response can be found in an article in the official Chinese press, published 20-21 February,  entitled “China’s judicial reform stepping into a deep water area facing people, power, and money.” The article sets out a response to the dissatisfaction of the public (and experts), which captures, in officialese, the core of the reason–decisions in high profile court cases are made in through a “Russian doll” (Matryoshka, the Russian nested doll) set of committee decisions.

Russian nesting dolls (from Wkipedia)

Russian nesting dolls (from Wikipedia)

“For a long time, Chinese judicial organs [referring both to courts and procuracy] have internally formed an administrative work system.  For example internally, in the courts, cases are approved and checked on by division chiefs and heads of courts level by level, and it is the person with the highest administrative position who has the final say, which created the situation in which the persons hearing the case do not decide it, and those deciding the case do not hear it.  This not only affects judicial efficiency and justice, it also makes it difficult to pursue responsibility for mistaken cases.”

    长期以来,中国司法机关内部形成了一套行政化的工作机制,比如法院内部,案件由厅长、院长层层审批把关,由行政职位高的人说了算,造成审者不判、判者不审的局面,不仅影响司法效率和公正,也难以追究错案责任。

What this means in plain English is that Chinese courts exercise an administrative system in which all cases are approved by division chiefs or higher.  For major cases, as well as cases in which the death penalty is proposed to be imposed, the case is forwarded to the judicial committee of the court.  As I wrote over one year ago, although this has not been mentioned, judicial committees must have approved the original decisions in a number of cases recently revealed to have mistaken, such as:

the 1996 execution of Huugjilt, in Inner Mongolia;
The 1995 conviction of Tian Weidong, Chen Jianying and others in Hangzhou, Zhejiang.

One layer of the Russian doll is the judicial committee. In that December, 2014 blogpost, I described how judicial committees operate (and some proposals for judicial committee reform).  Court legislation states that these committees “practice democratic centralism” and that their task is to “sum up judicial experience and to discuss important or difficult cases or other issues relating to judicial work.”

The reason that the panel that hears the case must follow the decision of the judicial committee is that judicial committees are designated as the “highest judicial organ” within a court and implement the principle of democratic centralism.  Wang Bin, a Nanjing judge whom I quoted in that blogpost,  stated that judicial committee members [made up of the court leadership] have neither the opportunity nor the time and energy to learn more about the specific circumstances of each case.Members are not required to state their view and rationale before voting.  Decisions are made by a simple majority.   Additionally, as I implied, during judicial committee consideration, members are aware of their bureaucratic rank vis a vis the court president and vice presidents.  As Professor He Xin of City University noted in his study of judicial committees, since the decision is made collectively [by the judicial committee], no single committee member is held personally responsible.”

What is implied by the administrative system described by the statement in the official media is that the local political-legal committee or other Party authorities may liaise with the court leadership concerning high profile cases.  That is the next layer of the Russian doll, and may involve higher level Party authorities.

Professor He’s study found that judicial committees had in many cases succumbed to external influences, while my own (more limited sample) found that external pressure was sometimes resisted.  Pressure by local political-legal committees was likely involved in some of these mistaken cases, but liability is not pursued, for a similar rationale as Professor He’s–since the decision is made collectively, no one is held personally responsible.

What effect will the 2015 regulations aimed at reducing official interference in court cases have on this practice?  As noted in this earlier blogpost, one of those regulations does not require the recording of certain types of guidance–that of “Party and government organs, professional associations, social public interest organizations and public institutions with administrative functions in accordance with law retained or permitted by people’s courts to follow the working procedures to submit consultative opinions in cases of national interest or societal public interest, may be not entered into information archive on prying, but relevant materials shall stored in the case file for future reference.”  But will documents issued by Political Legal Committees at various levels really be placed in case files and made accessible to lawyers?

2.  Why does affixing responsibility in mistaken cases take so long?

The author of the second article,  published in a popular legal Wechat public account highlighted earlier, suggests reasons that it often takes 10 or more more years for mistaken cases to be redressed, and proposes that the SPC and SPP increase their staffs to review mistaken cases:

Ten years is the time it takes for two terms of the [local] Party Committee and the heads of the court and procuracy.  That means that the heads of the Party Committee and court/procuracy have changed at least once or twice… [Why won’t it take less time?] It is because when the leaders who have had the final say still have their positions,…if they reverse the mistaken case and one can well imagine that they will not want to overturn a case in which they had the final say…There is hope …only when the leaders have retired, have become old or passed away, and a new leader is in position and takes the matter seriously.

 

 

Supreme People’s Court upgrades its database

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This short blogpost is just to bring to the attention to the world outside of China that the Supreme People’s Court (SPC) has substantially upgraded its case database, enabling users to search by keyword, cause of action, party, court, lawyer, law firm, full text (or facts, headnotes).  The database can be accessed here.  The SPC has required higher, intermediate courts and some basic level courts to upload their judgments on its database (with certain exceptions). The military courts are an exception, although senior military legal academics are advocating greater transparency for the military courts.

Basic level courts in the more developed coastal regions have gone first, with other areas following as they have the technical ability to do so.  The higher people’s courts issue their own implementing regulations to guide their local courts (see regulations mentioned by an Inner Mongolian court). Local courts issue their own guidance in implementing the SPC system, such as this guidance from an Inner Mongolian county court, where the court leadership (court president/Party secretary and the other Party group members (the leaders of divisions of the court)  is leading  the implementation.

Although judgments in sensitive cases are often not uploaded,  for the vast majority of cases (that do not fall into that category), the SPC database remains a rich source of understanding how the Chinese court system is operating, through (for example) a focused search of a  specific type of case, from rape to breach of contract to challenge of public security penalties, to enforcement of arbitral awards.

Update on case filing reform and other challenges for Chinese courts and judges

Case filing hall in a Jingdezhen court

Case filing hall in a Jingdezhen court

In late November, the Supreme People’s Court (SPC) held a press conference on case filing (docketing) reforms to announce a 32% increase in civil and administrative case filings, year on year, putting a positive spin on what is a highly stressful situation for frontline judges, but a generally positive development for litigants and their lawyers. There are many stressful factors for Chinese judges and the Chinese courts, leading many judges to leave or contemplate suicide, and others to vote with their feet.  This blogpost will look at some of the recent developments:

  • Large number of cases;
  • Increasing fraudulent litigation;
  • Dysfunctional performance indicators that refuse to die.

The three issues are interrelated.

Case filing (docketing) reforms

On the case filing reforms, through the end of September, civil cases are up almost 23%, and administrative cases up 76%, while private prosecutions of criminal cases are up 60%,The most litigious provinces are ones with highly developed economies: Jiangsu (608,000 cases), Zhejiang, Shandong, Guangdong (558,000 cases).  The Supreme People’s Court caseload was up as well, with 6852 cases accepted through September, up 58%, estimated to reach 15,000 cases by year end.

Fraudulent litigation

Fraud of all sorts is a growth industry in China, especially with the worsening economy. Creative thinkers have come up with ways to use the court system to defeat or at least delay or avoid creditors.  In recent years, the Chinese courts have been faced with an increasing amount of fraudulent litigation, now criminalized on one of the unnoticed provisions in the 9th Amendment to the Chinese Criminal Law (new Article 307-1).  However, the law does not set out a definition, although some provincial court have issued guidance.  Usual factors include litigation based on: fabricated facts, fabricated arbitration award, or notarized documents, or collusion between the parties  or third party to use fabricated facts, false evidence, false documents, destruction of evidence, provide false documents, expert opinion and other means to avoid debt or improperly gain assets.

With the reform to the case filing system (described in this earlier blogpost), fraudulent litigation on the increase. For this reason, the SPC recently issued its first ruling on fraudulent litigation, imposing a penalty of 500,000 RMB on two Liaoning companies, to signal to lower court judges that they need to monitor case filings for indications of fraud.  Fraudulent litigation can be found in various types of cases, and in the maritime as well as local courts.

On fraudulent litigation in the maritime courts, an experienced maritime judge provided the following typical scenario: because the Chinese shipping industry is in a downturn (see these articles, for example), a ship owner who is unable to repay their debts (and finds that the size of the mortgage is more than the value of the ship) will conspire with their employees to bring a claim for unpaid wages, because under the Special Maritime Procedure Law, those claims take priority over the mortgage.  The employees and shipowner will split the proceeds from the claim, shortchanging the bank and other creditors.

According to Zhou Qiang’s report to the NPC, about 3400 cases of fraudulent litigation were discovered in 2014.  According to studies done by provincial courts in recent years,  104 cases were found in 2011-2012 in Jiangsu, and 940 in selected courts in Guangdong during 2001-2009.

With the case filing reforms and soft economy, these numbers are likely to rise. Readers (of Chinese) interested in diving further into this topic should read this article.

Dysfunctional  performance indicators

Writing in People’s Daily, Judge He Fan, head of one of the departments of the SPC’s Judicial Reform Office, highlighted that “some leading cadres” wanting to achieve year end “pretty data”  are still imposing unrealistic year end performance targets, forcing front line judges to work unreasonable hours (and also  diminishing case quality). These performance targets were abolished in 2014, as highlighted in this blog.

As for why Chinese judges are leaving in such numbers and why they are so unhappy, that will be the subject of another blogpost.

 

Educating Chinese judges for new challenges

National Judges' College

National Judges’ College

Buried in the depths of documents issued in the course of this year are the outlines of the way the Supreme People’s Court (Court) intends to create a corps of judges in which litigants, domestic and foreign, have faith will provide justice.  The many measures set out in the 4th Five Year Judicial Reform Plan raise the competency bar for judges.  A more litigious and rights conscious public, the increasingly complex economy and greater number of cross-border transactions and interaction, as well as smaller number of judges to hear more cases means that judicial training is an important part of of preparing Chinese judges for the new normal.

The broad outlines of the Court’s plans for judicial training are set out in the following documents:

  • the Court’s latest 5 Year Training Plan, for 2015-2019, issued in June, the framework document;
  • the September 17, 2015 Communist Party Central Committee/State Council document on the open economy, calling for improving foreign-related competence in the judiciary; and
  • the September 25 White House press release, in which the  United States and China commit to conduct high-level and expert discussions commencing in early 2016 to provide a forum to support and exchange views on judicial reform and identify and evaluate the challenges and strategies in implementing the rule of law.

The training plan

The training plan is linked to the 4th Plenum and 4th Five Year Judicial Reform Plan Outline, the Communist Party Central Committee’s five year training plan for Party cadres (as stated in the plan itself, which means that judges are treated as a type of Party cadre), the Court’s regulations on judicial training,  as well the Court’s 2013 policy document on creating a new judicial team (队伍) in the new situation. Team (or work team) derives from “classical” Party terminology (as Stanley Lubman highlighted in an article last year)).

The Training Plan stresses ideological, ethical, and professional training, for judges and other judicial personnel.  Ideological education is required to be a part of the required training described below, so that judges will comply with Party discipline (a modern day counterpart to Confucian cultivation of virtue) and oppose the osmosis of mistaken Western values (抵制西方错误思想观点的渗透).

Who’s being trained

The focus of the training is:

  • Court leadership, particularly at the basic level. The training plan requires senior personnel of lower level courts to participate in training organized by the the Court and higher people’s courts, with newly appointed basic level and intermediate court management to participate in training session within their first year in office, and higher people’s courts to organize training for at least 20% of lower court senior management annually;
  • Front-line judges, particularly those in the basic level courts:  continuing legal education, with a minimum of 10 days a year,  and in the 2016-2018 period, a new training program is to be implemented, including the heads of people’s tribunals (branches of basic level courts dealing with minor disputes). Training materials are to be compiled by the Court.  The second aspect of the training program is to pilot a  judicial training program (apparently drawing from the practice in Taiwan and Japan) for new judges in designated areas for judicial reforms (as highlighted in point 50 of the judicial reform plan).
  • Professionally outstanding judges: the Court is to continue its program of cooperating with certain universities and research institutes to provide master’s and doctoral training (the Chinese University of Political Science and Law seems to be one of the Court’s partners); the National Judges College is to run training programs for outstanding young/middle aged judges for a minimum of one month.  Additionally, a corps of outstanding judicial trainers at the provincial level is to be created.  The September, 2015 measures to improve foreign-related competence in the judiciary are likely linked to this, as are some of the programmatic outcomes from the US-China initiative on judicial reforms.
  • Judges bilingual in Mongolian, Tibetan, Uygur, Kazakh, Korean, Yi and Zhuang.  This target was mentioned  in the Fourth Plenum and Fourth Five Year Judicial Reform Plan, and is linked to an arrangement by the State Ethnic Affairs Commission, Organizational Department of the Communist Party Central Committee, and the Supreme People’s Court to train 1500 bilingual judges by 2020.  This will also involve more and higher quality translation of legal materials into local languages. Press reports from Uighur and Tibetan areas, for example, describe civil litigants who do not understand Mandarin and find the justice system inaccessible for resolving business disputes, as well as criminal defendants who are unable to understand criminal proceedings, such as a Tibetan who did not understand what a “suspended death sentence” was.  In Xinjiang, for example, only 40% of judges described themselves as bilingual.

How training will be implemented

Judicial training is to focus on active and practical methods, including the case method (no less than 30%), moot courts, and other interactive methods.  The intellectual influence of exchange and training programs with offshore counterparts is apparent from the more interactive methods required.  Previous training programs (often funded by foreign NGOs) have enabled judges from the Supreme People’s Court and other Chinese courts to receive training in China with noted international experts while others have received training outside of (mainland) China.  Will this continue under the new normal?

The language of architecture of the courts, mainland China and Hong Kong

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Supreme People’s Court building, Beijing

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#1 Circuit Court building, Shenzhen

jinan court

Jinan Intermediate Court building

I had the opportunity to visit the Supreme People’s Court #1 Circuit Court in Shenzhen recently (thank you to all involved for arranging the visit, about which I will discuss further in another post).  The visit, recent events in China and a recent article in Hong Kong’s South China Morning Post (by my friend and former student, Simon Ng, of the University of Hong Kong)  on the newly renovated Court of Final Appeal building in Hong Kong (over one hundred years old, and one of the first purpose-built British court buildings in Asia) got me to thinking about the language of architecture, in particular the steel gates around Chinese courts. The #1 Circuit Court, as all Chinese courts I have visited or seen, has steel gates surrounding it and police protection.

Among the reasons for the steel gates is incidents such as the one detailed in this article in the English language version of Caixin.  A factory worker in the city of Shiyan, Hubei Province attacked four judges, angry about the outcome of his case against his employer.  This case is not exceptional–in a 2010 case, reported here, three judges were killed and several others injured in Hunan province, by a man disgruntled by the property settlement in his divorce case. Professor Bi Yuqian of  the Chinese University of Political Science and Law commented on the Shiyan case: “The public authority of judges has not yet been founded in China… It is not shocking that a judge is stabbed in China.”

For that reason, the Fourth Plenum Decision sets as a goal: raise judicial credibility…strive to have the people feel fairness and justice in every judicial case.”

The architecture of modern Chinese courts borrows some elements from the traditional architecture of a yamen, while the language of the architecture of the courts of Hong Kong  is very different.yamen

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Court of Final Appeal building

Simon Ng recently published the following comments about the Hong Kong’s Court of Final Appeal Building, “It is an icon of Hong Kong’s judicial independence, which has been practised for over a century and is preserved under the solemn pledge of “one country, two systems”.

The blindfolded Themis standing right above the royal coat of arms is a visual reiteration of the centuries-old ideal of rule of law that even the sovereign must be subject to the law and reason. The administration of justice under the dome has to live up to that spirit.

Over the years, the architecture has helped to shape public understanding and expectations of the legal system. Fairness and impartiality, as symbolised by Themis, are the legal values that people treasure most.

With the reoccupation by the Court of Final Appeal, the building will continue to convey the meaning of rule of law across time through its language of architecture, the practice of judicial independence, and the upholding of justice and equality.”

The language of architecture conveys the status of the judiciary at this time and public expectations of the  legal system.  We can only hope that some day, the steel gates surrounding Chinese courts will be unneeded.

(©Court of Final Appeal building, SCMP; Jinan, Getty images; SPC, BBC)

Official interference or leadership?

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Interference in cases forbidden!(©Xu Jun, Xinhua)

In late August, the Supreme People’s Court (Court) issued a pair of regulations, aimed at reducing the phenomenon of officials, within and outside a court, involving themselves in cases.

Translations of the regulations are available, thanks to Chinalawtranslate.com: (the Chinese originals are available on the Court’s website here and there):

  • Implementing Measures for People’s Courts Carrying Out the ‘Provisions on Recording, Reporting and Pursuing Responsibility of Leading Cadres Interfering with Judicial Activities or Tampering with the Handling of Specific Cases (Leading Cadres Measures); and
  • Implementing Measures On Pursuing Responsibility In Cases Of Internal Judicial Personnel Prying Into Cases (Judicial Prying Measures).

This blogpost takes a quick look at the first one.

What do the Leading Cadre Measures say?

The Leading Cadre Measures (which implement State Council/Central Committee (General Office) regulations issued in March are directed at officials outside the judiciary who seek to influence court decisions, and require judges (who are other subject to penalties for not doing so) to  record all communications relating specific cases made by entities and individuals other than those in courts, and retain the relevant materials. These Measures implement language in the 4th Plenum Decision (Establish a system for recording, reporting, and investigating the responsibility of instances wherein leading cadres interfere in judicial activities or get involved in the handling of certain cases.)  The reports are to be submitted to the local political legal committee (or next higher political legal committee, depending on the status of the offending individual) and the next highest court, generally on a quarterly basis. If the conduct is serious, and might cause unjust, false and wrongfully decided cases or other “serious consequences,” the court is directed to report immediately.

Article 7 of the Leading Cadre Measures lists some of the most frequently used techniques, many of which have a economic, rather than political motivation:

The Leading Cadre Measures place the views of certain organizations in a different category:

“Party and government organs, professional associations, social public interest organizations and public institutions with administrative functions in accordance with law retained or permitted by people’s courts to follow the working procedures to submit consultative opinions in cases of national interest or societal public interest, may be not entered into information archive on prying, but relevant materials shall stored in the case file for future reference.”

Professor He Haibo of Tsinghua University explains what this means:

the courts must accept these materials, and it gives those organizations a chance to participate and speak; placing the materials in the case file gives the other party as well as possibly the public an opportunity to understand and evaluate them. This is consistent with the requirements of due process…

Will documents issued by Political Legal Committees at various levels really be placed in case files and made accessible to lawyers?

How do officials and judges interact?

The patterns of behavior that these regulations are aimed at changing are long-standing. From Doing Business in China, a leading book for practitioners (chapter by Harry Liu, Meg Utterback, Yu Simin):

Informally, judges are occasionally given instructions by political leaders on individual cases. Intervention by Party leaders in individual cases remains acceptable…The forms of interference vary: sometimes oral instructions are given, or sometimes the instructions are incorporated into official documents, with a requirement that the judge report back on the outcome. As to the content, the instructions may (1) tell courts to emphasize a case or handle a particular case “according to law,” (2) express an opinion on certain aspects of the case, or (3), recommend certain action to the court in lieu of dictating the outcome.

Professor He Haibo of Tsinghua University School of Law, writing in the People’s Court Daily–the line between “coordination in accordance with law” and interference with judicial activities is very hard to draw (什么是“统筹协调依法处理”、什么是“干预司法活动”,界限似乎难以划得清清楚楚)。

Comments from an unscientific sampling of judges

  • How the regulations work out in practice will depend to a large extend on how the officials undue intervention recorded will affect their future career or have legal liability.  If yes, the leaders will refrain from intervening. It will also depend on whether the judges would suffer from recording the intervention, particularly if he institutions are not administratively or financially independent from the agencies the officials represent or are able to influence.  In the latter case, judges wold be reluctant to record the intervention. It is likely that court leaders will interfere less frequently and with less success.
  • It will be of some help, when the interference is from strangers. But if from old friends, direct leaders, those won’t be reported, because it would betray the relationship.

More autonomy under Party leadership

The Leading Cadre Measures are not a magic bullet that will change the way the Chinese courts operate. The intent is to reduce the involvement of local officials in court cases to achieve fairer outcomes, while maintaining central policy leadership (and recognizing current reality by having a framework for Party officials to provide their views “for consideration”).

How well will the Measures work during the transitional period that the local judiciary remains under the control of local authorities? And how should the line be drawn between interference, leadership, and coordination?

A model case?

In late August, the Jinhua Intermediate Court (Zhejiang province) used the March regulations to call the attention of the press (and higher authorities) to a local official who threatened a judge with physical harm, when local courts ruled against the official’s wife in a shareholding dispute, although the case led one Zhejiang University law professor to comment that it wasn’t typical of official interference. According to the latest reports, the Jinhua Intermediate Court has withdrawn the notice, and both the judge and official in question are being investigated by the relevant CCDI organization.  A local Jinhua lawyer was quoted as saying that the local court staff had erred in making the matter public at this point.

The Jinhua case, while perhaps not a typical interference case, is typical of the widespread lack of civility confronting Chinese judges (and doctors), that in too many cases means a threat to their physical safety, and could indicate how difficult it will be to actually implement the Leading Cadre Measures.

Supreme People’s Court and “One Belt One Road”

Judge Luo Dongchuan. chief judge,#4 civil division

Judge Luo Dongchuan. chief judge,#4 civil division, at the OBOR Opinion press conference

On 7 July the Supreme People’s Court (the Court) issued an opinion (意见) policy document on how the courts should provide services and protection to “One Belt One Road” (OBOR Opinion) (关于人民法院为“一带一路”建设提供司法服务和保障的若干意见). This blogpost explains why the Supreme People’s Court issued it, what the policy document provides and what it means for legal professionals. The typical (model) cases issued at the same time include the Sino-Environment case, subject of an earlier blogpost  (and deserve closer analysis).

Why was the One Belt One Road document issued?

One Belt One Road (OBOR) is a major government strategic initiative.  As a central government institution, the Court must do its part to support OBOR.  Major SOEs contemplating investing in OBOR projects or trading with companies on OBOR recognize that their interests are best protected through legal infrastructure and the Court has an important role in this. MOFCOM and other related regulatory agencies realize this as well. Local courts linked to the Belt or the Road, are dealing with new demands because of OBOR and are looking to the Court for guidance.

The OBOR Opinion was drafted with input from these regulatory agencies and certain legal experts, but was not issued for public comment.

What the OBOR Opinion covers

The OBOR Opinion covers cross-border criminal, civil and commercial, and maritime as well as free trade zone-related judicial issues.  It also deals with the judicial review of arbitration.

Criminal law issues: the lower courts are requested to improve their work in cross-border criminal cases, and the courts are to do their part in increased mutual judicial assistance in criminal matters.  The focus is on criminal punishment of  those characterized as violent terrorists, ethnic separatists, religious extremists, and secondarily on pirates, drug traffickers, smugglers money launderers, telecommunication fraudsters, internet criminals, and human traffickers. It also calls on courts to deal with criminal cases arising in trade, investment, and other cross-border business, and deal with criminal policy and distinguishing whether an act is in fact a crime, so that each case will meet the test of law and history.  The political concerns behind criminal law enforcement issues are evident in this.

Much of the focus in the OBOR Opinion is on civil and commercial issues, including the exercise of jurisdiction, mutual legal assistance, and parallel proceedings in different jurisdictions and in particular, improving the quality of the Chinese courts in dealing with cross-border legal issues. These issues are explained in more detail below

One of the underlying goals set out in the OBOR Opinion, is to improve the international standing and influence of the Chinese courts and other legal institutions.

What does it mean for legal professionals

The OBOR Opinion signals that the Court is working on a broad range of practically important cross-border legal issues.  Some of these issues involve working out arrangements with other Chinese government agencies and are likely to require several years to implement.  The OBOR Opinion mentions that the Court:

  • seeks to expand bilateral and multilateral mutual judicial assistance arrangements, for better delivery of judicial documents, obtaining evidence, recognition and enforcement of foreign court judgments.
  • supports and promotes the use of international commercial and maritime arbitration to resolve disputes arising along One Belt One Road.  China will promote the use of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York Convention) between countries on One Belt One Road and encourage countries that have not yet acceded to the Convention to do so.
  • supports and promotes the use of various types of mediation to resolve OBOR related cross-border disputes.
  • it signals that the Court will become more involved in Chinese government initiatives such as the Asian Infrastructure Investment Bank, the conference of supreme courts under the Shanghai Cooperation Organization, and other international or regional multilateral judicial cooperation organizations.
  • is signalling the lower courts that they should limit the range of cross-border contracts being declared invalid or void.
  •  sets out the new thinking on the issue of reciprocity in the enforcement of foreign judgments, in particular that Chinese courts can take the initiative in extending the reciprocity principle to parties from other jurisdictions.  This is practically significant for foreign parties and their counsel, and has been discussed repeatedly by both practitioners and academics (such as these);
  • will improve Chinese legal infrastructure on overseas evidence, overseas witnesses giving evidence, documenting the identity of overseas parties, “to better convenience Chinese and foreign parties. ”  This would involve evolving from the current system embedded in Chinese legislation of requiring notarization and legalization of many documents (because mainland China is not yet a party to the Hague Convention on the Abolishing the Requirement of Legalization of Foreign Public Documents. This is a positive sign;
  • The Court has on its agenda further legal infrastructure on the judicial review of arbitration (as signalled at the end of last year), involving foreign/Hong Kong/Macau/Taiwan parties, aimed at supporting arbitration and having a unified standard of judicial review on the following issues:
    • refusing enforcement of arbitral awards; and
    • setting aside arbitral awards.
  • has on its agenda judicial legal infrastructure for supporting the resolution of bilateral trade, investment, free trade zone and related disputes.
  • Reflecting language in the 4th Plenum, it calls for China to be more greatly involved tin the drafting of relevant international rules, to strengthen China’s voice concerning issues of international trade, investment, and financial law.
  •  mentions that an improved version of the Court’s English language website and website on foreign-related commercial and maritime issues is forthcoming.  Specific suggestions can be emailed to supremepeoplescourtmonitor@gmail.com.

The Supreme People’s Court and interpreting the law, revisited

Marriage law judicial opinion

Marriage law judicial opinion

The topic of the Supreme People’s Court and the interpretation of law is one that vexes many, legal practitioners and academics alike.  Although the Chinese constitution vests the power to interpret law with the Standing Committee of the National People’s Congress (NPC SC), the Supreme People’s Court (the Court) and the Supreme People’s Procuratorate (SPP) actively issue interpretations of law. The Court more so than the SPP, because it deals with a broader range of legal issues.  These interpretations of law are critical to the operation of the Chinese legal system because national law tends to set out broad principles that require additional legal infrastructure to be workable and the courts, in particular, need that legal infrastructure to decide cases.

A 1981 decision by the NPC SC delegated to the Court the authority to interpret law relating to questions involving the specific application of laws and decrees in court trials, while the Supreme People’s Procuratorate (SPP) was delegated authority to interpret law relating to questions involving the specific application of laws and decrees in procuratorial work.  The Organic Law of the People’s Courts re-iterates the delegation of authority to interpret law to the Court. Oddly enough, the principle is not in the Organic Law of the People’s Procuratorates. Interpretations by both the SPP and the Court are known as “judicial interpretations.”

In 2015, the Legislation Law, which had previously not addressed interpretation of law by the Court and the SPP, addressed the issue in Article 104.  This article is taken as intended to codify existing practice, because the explanation of the law recognizes the practical necessity of judicial interpretations:

  • “Interpretations on the specific application of law in adjudication or procuratorate work issued by the Supreme People’s Court or Supreme People’s Procuratorate shall primarily target specific articles of laws, and be consistent with the goals, principles and significance of legislation.”
  • It requires the Court (or SPP) in the situation described in the second paragraph of Article 45 of the Legislation Law (where the NPC SC  gives interpretations of national law), to submit a request for a legal interpretation, or a proposal to draft or amend relevant law, to the NPC SC.

(The explanation of the law  (legislative history) provides further background).

The process for drafting Court interpretations described in the 2007 regulations requires that the views of the relevant special committee or department of the NPC SC be solicited during the drafting process, and there would be pushback from the NPC SC if it was considered that the judicial interpretation had gone ‘too far.’

What types of judicial interpretations are there?

The 2007 Court regulations on judicial interpretations (linked here)  limit judicial interpretations to the following four types:

Those 2007  regulations set out various procedures for drafting and promulgating judicial interpretations, including a requirement that they be approved by the Court’s judicial committee and be made public.  As discussed in earlier blogposts, broad public consultation may be done if it affects the “vital interests of the people or major and difficult issues. These regulations also provide that judges may cite judicial interpretations as the basis for a court decision or ruling. Article 23 of the 4th Five Year Court Reform Plan mentions reform of judicial interpretations:

Improve the Supreme People’s Court’s methods of trial guidance, increase the standardization, timeliness, focus and efficacy of judicial interpretations and other measures of trial guidance. Reform and improve mechanisms for the selection, appraisal and release of guiding cases. Complete and improve working mechanisms for the uniform application of law.

As discussed in earlier blogposts, the Court also issues other documents with normative provisions that do not fit the above definition.  Those will be discussed separately.

New docketing procedures come to the Chinese courts

local court case filing office

local court case filing office

New docketing procedures (case filing) (立案) have come to the Chinese courts.  Chinese courts have a separate case filing divisions, which up until 1 May of this year acted as gatekeepers to courts.  They exercised their approval authority over cases in a non-transparent manner, which meant for litigants in Chinese courts that their cases could be and were rejected without having the opportunity to argue why they should be accepted.  Case filing divisions also were known to put troublesome filings aside, without issuing a rejection, or repeatedly asked for supplementary documents, seeking to drive away litigants by repeated formalistic demands.

More background is given in these blog posts and law review article.  It has been an ongoing problem for many years, provoking endless complaints and articles by ordinary people, lawyers, academics, and NGOs, and has been one of the issues driving petitioners to the streets.

The Supreme People’s Court (Court) leadership identified case filing as one of the needed reforms (and as one of the many contributing factors to the low prestige of the Chinese judiciary), even before the Third Plenum. Because of that, the Communist Party’s 4th Plenum Decision and the 4th Five Year Court Reform Plan flagged this as a priority.  (Unsurprisingly), the language in the two documents is almost identical:

  • Reform systems for courts’ acceptance of cases, change the case filing review system to a case filing registration system, and in cases that should be accepted by the people’s courts, ensure parties procedural rights by requiring filing when there is a case, and requiring acceptance where there is a lawsuit.
  • Change the case filing review system into a case filing registration system, making it so that for cases that should be accepted by the people’s courts, where there is a case it must be filed, and where there is a suit it must be accepted; safeguarding the parties’ procedural rights.

Litigants in line at the #1 Circuit Tribunal

In late April, the Court issued case filing regulations which address many of the longstanding problems that litigants and their lawyers faced:

Case filing divisions

  • refusing to accept complaints;
  • refusing to issue notices rejecting complaints;
  • repeatedly asking for supplementary materials.

The new rules require case filing divisions to accept filings of civil and criminal private prosecution cases (brought by the victim of a crime if the state refuses to prosecute, generally relating to minor crimes) on the spot if possible, provide templates for frequently used types of cases, and to respond within statutory deadlines.  Case filing divisions are directed to make requests for supplementary materials once. (The new administrative litigation law judicial interpretation, described in this earlier blogpost, contains similar provisions.) Litigants who encounter noncompliant behavior can file a complaint with the relevant court or the court above it.

Cases that the courts must refuse:

  1. Matters that endanger national security;

Rights activists have likely noticed that these carveouts are broad and flexible enough to keep out some cases that they might want to bring.

The take-up on the reform: some “Big Data”

According to Court statistics, in the first month since the regulations went into effect, there was a 30% jump in the number of cases accepted,(1.13 million), with most of them accepted immediately. The Jiangsu, Zhejiang, and Shandong courts accepted over 80,000 cases, with Beijing, Hebei, and other areas accepting over 40,000.

In particular:

  • the number of civil cases was up about 28%.
  • the number of administrative cases accepted was up 221% in comparison to last year (starting from a low base), with Tianjin cases up 752.40%,Shanxi, 480.85%,and Shanghai 475.86%, reflecting both the new case registration and new Administrative Litigation Law going into force.
  • Courts in Zhejiang found that fewer litigants were mediating their cases before filing suit (down 17%), and the success rate of mediation was down by 14%.  Does this mean a better outcome for litigants?  Closer analysis is needed.

Much of the press coverage has been about litigants filing cases themselves, rather than with the assistance of a lawyer or other legal personnel, but I haven’t seen statistics that address this.

Some more detailed data from Jiangsu province:

download 1

Case filings in Jiangsu Province, by city

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Civil 60791, enforcement 25438, administrative 1980, private prosecution 256, state compensation 56

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May, 2015 cases accepted, by location

An evaluation after six weeks

Some thoughts about the case filing reform

  • It will mean more cases in the courts and greater stress for fewer judges and other judicial staff, to assist the many pro se litigants.
  • It should reduce the dissatisfaction level of some proportion of litigants with the court system, such as the anonymous staff from a Guangzhou car finance company quoted in a press report.
  • Violence against court personnel (like medical personnel), is another factor driving qualified and experienced people away, as described in these recent articles.  Will the reforms reduce the level of frustration of ordinary people with the court system, and reduce physical and verbal attacks on judicial personnel?  It is early days to say.
  • It does not resolve underlying issues such as local courts not wanting to offend local government or locally state-owned enterprises.  The 4th 5 Year Court Reform Plan identifies cross-jurisdictional courts as a solution, and pilot projects have started on this in various locations, including Beijing, but a comprehensive framework is not yet in place.
  • For the numerically small number of foreign litigants in the system, it does not change all the documentary requirements needed, such as notarization and legalization of documents and powers of attorney. It should make it easier for foreign invested companies to litigate.
  • As a Court spokesman suggested,  the rejection of many cases could come later, leading to greater pressure on the courts later on, from appeals, more requests for cases to be re-tried, and not ultimately reduce the number of petitioners.
  • It will inevitably lead to abuse of process and frivolous cases, such as the over-publicized case of a Shanghai man suing because of the stare of a TV star caused him spiritual damage. The Court is working on rules to address this.

Supreme People’s Court president says court reforms in “deep water area”

566929On 12 March 2015, Zhou Qiang, president of the Supreme People’s Court (Court) delivered his work report to the NPC, putting the best face on where the Chinese courts are and where they’re going. He described court reforms as being in a “deep water area” (深水区)(a high risk area).  This blogpost will highlight issues that other commentators (outside of China) have so far missed:
  • the mismatch between the focus of the work report and the work of the courts;
  • what the work report (on other than criminal cases reveals); and
  • the challenges to the Court leadership in the year ahead.

What is the mismatch?

charts for SPC

© Tiantong & Partners; charts illustrating SPC report

The primary focus of the work report (as always) is law and order, as seen from the perspective of Communist Party leadership, particularly state security related offenses (including terrorism and “splittism”) as well as ordinary crimes.  A big difference in this year’s report is that President Zhou Qiang apologized for previous miscarriages of justice and highlighted efforts to prevent future ones.  Other commentators have already focused on these both of these important developments and and other issues related to the criminal justice system.
2014 cases in chinese courts

bar chart: 2010-2014 increase in cases resolved by courts (in 10K) Pie chart: civil/commercial/IP; admin; re-trial/govt compens/enforcement/; parole; other/criminal

What the work report reveals is that most cases heard in the Chinese courts are not criminal and that the number of cases heard by the courts is rising.

What are cases are the Chinese courts hearing?

The pie chart (distributed as an attachment to President Zhou Qiang’s report at the NPC), illustrates that over 63% of the cases heard in the Chinese courts are civil cases (including commercial, family law and intellectual property cases), not criminal. Criminal cases (including parole related cases) account for something over 10% of cases (as others have discussed, many minor offenses are handled as administrative, rather than criminal offenses).

A closer look at civil cases in the Chinese courts

 A bit of arithmetic reveals (unfortunately the authors of the Report did not set out a corresponding chart), that 34% of civil cases (2,782,000) in 2014 were commercial cases (up 8.5% year on year), while 66% were what classified as civil cases (in the narrow sense, described below).

Commercial cases:

(These cases are illustrated in the chart to the left that has the ¥ sign.)
1. Finance cases (824,000)(a broad category including various types of loans, credit cards, securities, futures, insurance etc.).
2.  Sales contracts disputes (664,000).
3.Intellectual property (110,000, up 10% year on year)(I  the detailed analysis of this can be found here, by my fellow blogger, Mark Cohen, at the ChinaIPR blog);
4. Corporate disputes (12,000) (shareholder, merger and acquisition, creditor initiated bankruptcy);
5. Maritime cases (12,000).
Foreign-related cases (5804), )these, although a focus of foreign law firms alerts and the press, are a tiny drop in the sea of Chinese civil cases.  Many cases involving foreign companies actually involve their China incorporated subsidiaries.
The number of finance cases suggests a large number of disputes relating to loans by financial institutions.

Civil cases

(These cases are illustrated in the chart that has two people standing next to one another and the pie chart below.)
2014 civil cases in the Chinese courts

2014 civil cases in the Chinese courts

In 2014,  5,228,000  civil cases were heard in the Chinese courts (up almost 6% year on year):
1.  Family law cases (1,619,000),(this category includes  contested divorces, inheritance, support cases), accounting for about 30% of civil cases. The chart above 13% year on year increase in inheritance cases (showing an increasing number of people have assets worth fighting in court over, and perhaps also inadequate estate planning).
2.  Loan cases not involving financial institutions (between individuals, company and individual, or two companies) (1,045,600), accounting for almost 20% of civil cases. (The categorization has changed, making a year on year comparison not easily possible).
3. Labor cases (374, 324), accounting for 7.16% of all civil cases.  These include appeals from labor arbitration as well as cases that can be directly brought in the courts).
4.  Environmental tort cases (3331) (up 51% year on year).
5. Product liability cases are up 44%, but the base or total number for 2014 is not set out.
6.  Cases involving rights of rural residents (219,00)(rights to rural residential land, transfer of contracted land) migrant laborers seeking unpaid wages).
7.  Construction disputes are up almost 18% (base or total number for 2014 not set out).
These numbers speak to:
1. changes to the Chinese family;
2. a large number of loans that are under the radar of the financial authorities;
3. employees who are increasingly rights conscious;
4. continued litigation risk for foreign companies doing business in China (including through subsidiaries), because as perceived “deep pockets”, Chinese litigants often target them in product liability cases.

Administrative cases

 First instance administrative cases (companies or individuals suing the government) (131,000) continue to be a tiny number, although up 8.3%, and it remains to be seen whether the amended Administrative Litigation Law (Administrative Procedure Law) will lead to an increase in cases.

 Enforcement cases

Enforcement cases (compulsory enforcement of court judgments or orders, arbitral awards, etc) account for 3,430,000, a 14% increase year on year.  This suggests that fewer people (companies) are complying with dispute resolution voluntarily.
10% increase in cases accepted (will be a challenge to the courts if this trend continues because the intent is to cut the number of judges), amount in dispute is up 15%.

Court reforms already in a “deep water area”

Zhou Qiang highlighted that court reforms are already in a “deep water area” (high risk area) and the courts:
  • need to penetrate interest group barriers;
  • have the courage to move their own “cheese”;
  • need to use “the knife” against itself (presumably to cut out corrupt, poorly or non-performing judges);
  • deal with many deep-seated problems;
  • make progress on a long list of reforms:
    • continue and expand pilot reforms on changing the financing and personnel appointments of the local courts to all provinces/directly administered cities;
    • implement hearing-centered litigation reforms;
    • make progress on case filing reforms (to resolve the long term problem of litigants facing obstacles when they file suit);
    • put in place a system with dealing with assets seized and confiscated by the courts (to avoid violation of property rights and further judicial corruption in this process);
    • implement the prohibition against defendants wearing prisoner’s garb in court;
    • further implement judicial reforms related to petitioning;
    • promote alternative dispute resolution, such as arbitration, people’s mediation, administrative mediation etc.
    • continue work on pilot projects on expedited criminal procedures (for minor matters);
    • improve the people’s assessors system.

All of these reforms create tremendous challenges for the courts.  The number of cases accepted by the courts in 2014 (15,651,000) was up about 10%.  The judicial reforms to petitioning and other reforms will channel more disputes into the court system. Planned personnel reforms are leading to an exodus of young judges.  Many of the planned judicial reforms are intended to the way the courts operate internally and interact with other institutions. The 4th Five Year Court Reform Plan sets out target dates for accomplishing certain major judicial reforms.  The salary gap between what an experienced lawyer in private practice in a major law firm and a counterpart in the judiciary is large, leading many talented people to prefer the greater financial benefits and professional flexibility that comes with being a lawyer.

The political leadership has approved the 4th Five Year Court Reform Plan.  Issuing it raises expectations among ordinary people as well as those in legal profession. The pressure is on for the Court leadership to deliver on the promised judicial reforms.