Happy Niu 🐂Year to all blog followers and readers! Best wishes to all for good health, success in work and study, and all else!
In recent weeks I have been focusing on several longer pieces of writing and am still in “focus mode.”
While most of the Supreme People’s Court (SPC) has been taking a break, based on previous year’s reports, it is likely that the team of people working on drafting President Zhou Qiang’s speech to the National People’s Congress (NPC) are hard at work. I surmise that they will draw on January’s Central Political-Legal annual work conference, where responsibilities for implementing this year’s major tasks were allocated, and guidance from President Xi was transmitted. At that time, the Party leadership heard work reports from the SPC’s (and Supreme People’s Procuratorate’s) Party Group, so it seems likely that the report to the NPC will draw on that report as well.
Among the content that I expect to be included in the report is:
successful transition to the Civil Code, including review of old judicial interpretations (and other judicial normative documents), canceling and amending old ones;
successes in meeting the challenges that Covid-19 meant for the courts, including the increased use of online proceedings;
smart courts and informatization;
accomplishments of the Supreme People’s Court’s Intellectual Property Court, including its first anti-suit injunction;
judicial reforms such as the recently approved establishment of the Beijing Financial Court (the Shanghai Financial Court has been very busy since it was established) and the piloting of reforms to separate simple and complicated cases (the SPC recently submitted a midterm report to the NPC Standing Committee on the pilots).
We’ll see next month how accurate the above guesses are. In the meantime, additions or corrections are welcome.
This blogpost will provide some background to the Guiding Opinion, a summary of the Guiding Opinions, a summary of a non-scientific survey of judges, and some initial thoughts.
Background to the Guiding Opinion
The Guiding Opinion is a type of soft law that enables the SPC to say that it has achieved on of the targets set out in the current judicial reform plan. According to a recent article by the drafters, they researched and consulted widely among courts, but that does not mean that a survey went out to all judges. It is further evidence that the SPC is operating as Justice He Xiaorong stated five years ago–” after the circuit courts are established, the center of the work of SPC headquarters will shift to supervision and guidance…”
Judicial reform and the Guiding Opinion
The Professional Judges Meeting Guiding Opinion is linked to #26 of the current judicial reform plan outline, discussed in part in this June, 2019 blogpost. I have bold-italicked the relevant phrases:
#26 Improve mechanisms for the uniform application of law. Strengthen and regulate work on judicial interpretations, complete mechanisms for researching, initiating, drafting, debating, reviewing, publishing, cleaning up, and canceling judicial interpretations, to improve centralized management and report review mechanisms. Improve the guiding cases system, complete mechanisms for reporting, selecting, publishing, assessing, and applying cases. Establish mechanisms for high people’s courts filing for the record trial guidance documents and reference cases. Completemechanisms for connecting the work of case discussion by presiding judges and collegial panel deliberations, the compensation commission, and the judicial committee. Improve working mechanisms for mandatory searches and reporting of analogous cases and new types of case. (完善统一法律适用机制。 加强和规范司法解释工作，健全司法解释的调研、立项、起草、论证、审核、发布、清理和废止机制，完善归口管理和报备审查机制。完善指导性案例制度，健全案例报送、筛选、发布、评估和应用机制。建立高级人民法院审判指导文件和参考性案例的备案机制。健全主审法官会议与合议庭评议、赔偿委员会、审判委员会讨论案件的工作衔接机制。完善类案和新类型案件强制检索报告工作机制)
Uniform Application of Law
As for why the uniform application of law is an issue, a quick explanation is the drafting of Chinese legislation often leaves important issues unresolved and leaves broad discretion to those authorities issuing more specific rules. To the casual observer, it appear that the Chinese legislature (NPC) “outsources” to the SPC (and Supreme People’s Procuratorate (SPP) for some issues) the hard job of drafting more detailed provisions. (see Chinalawtranslate.com for many examples and NPC_observer.com for insights about the legislative drafting process). Although the Communist Party’s plan for building rule of law in China calls for legislatures to be more active in legislating (see NPC Observer’s comments), in my view the SPC (and SPP) will continue to issue judicial interpretations, as the NPC and its standing committee are unlikely to be able to supply the detailed rules needed by the judiciary, procuratorate and legal community. Although the general impression both inside and outside of China is that the SPC often “legislates,” exceeding its authority as a court, as I have mentionedseveral times in recent blogposts, the SPC issues judicial interpretations after close coordination and harmonization with the NPC Standing Committee’s Legislative Affairs Commission.
Professional Judges Meeting Guiding Opinion
The Guiding Opinion is linked to the judicial responsibility system, about which my forthcoming book chapter will have more discussion. Professor He Xin addresses that system, among other topics in his recently published academic article.
The Guiding Opinion authorizes certain senior members of a court (court president, vice president, head of division, as part of their supervisory authority (under the Organic Law of the People’s Courts) to chair meetings of judges (who exactly will attend depends on the court- to discuss certain types of cases and provide advice to the single judge or three judge panel hearing a case. (In my informal inquiries, I have found that interns are sometimes permitted to attend, but sometimes not). The types of cases mentioned in Article 4 of the guiding opinions and listed below are not complete, but raise both legal and politically sensitive issues:
ones in which the panel cannot come to a consensus,
a senior judge believes approaches need to be harmonized;
involving a mass (group) dispute which could influence social stability;
difficult or complicated cases that have a major impact on society;
may involving a conflict with a judgment in a similar case decided by the same court or its superior;
certain entities or individuals have made a claim that the judges have violated hearing procedure.
Before the discussion, the judge or judges involved in the case are required to prepare a report with relevant materials, possibly including a search for similar cases, which may or may not be the same as the trial report described in my July, 2020 blogpost,
The guiding opinions sets out guidance on how the meeting is to be run and the order in which persons speak.
Depending on the type of case involved, a case may be further referred to the judicial committee or the matter may be resolved by the meeting providing their views to the collegial panel.
Article 15 of the guiding opinions provides that participating in these meetings is part of a judge’s workload. The guiding opinions provide that a judge’s expression of views at these meetings should be an important part of his or her performance appraisal, evaluation, and provision, and the materials can be edited into meeting summaries, typical cases, and other forms of guidance materials, which can be used for additional points in performance evaluation. One of the operational divisions of the SPC and at least one circuit court has published edited collections of their professional judges meetings, with identifying information about the parties removed.
From my non-scientific survey of judges at different levels of court and in different areas of law, my provisional conclusion is as follows. Judges hearing civil or commercial cases seem to hold these meetings more often, particularly at a higher level of court. Criminal division judges seem to hold such meetings less often (at least based on my small sample), but the meetings are considered to be useful.
Frequency seems to depend on the court and the division, with one judge mentioning weekly meetings, while others mentioned that they were held occasionally. Most judges that I surveyed considered the meetings useful, because they provided collective wisdom and enabled judges to consider the cases better. One judge noted that it may also result in otherwise unknown relevant facts coming to light.
I would also add my perception that it also gives the judges dealing with a “difficult or complicated case” (substantively or politically) in a particular case the reassurance that their colleagues support their approach, even if the judges involved remain responsible under the responsibility system. This is important when judges are faced with deciding cases in a dynamic area of law with few detailed rules to guide them, or where the policy has changed significantly within a brief time. My perception is that this mechanism provides a more collegial environment and better results that the old system of having heads of divisions signing off on judgments. I would welcome comments from those who have been there.
The Guiding Opinions provide yet another illustration of how Chinese courts operate as a cross between a bureaucracy and a court, from the rationale for holding the meeting to the use of meeting participation as an important part of performance evaluation.
Although the slogan (of several years ago) is that judges should be treated more like judges, the Guiding Opinion appears to treat lower court judges analogous to secondary or university students, to be given grades for their class participation.
What are the implications of this mechanism?
Litigants and their offshore counsel (Chinese counsel would know this) need to know that the result in their case in a Chinese court may be influenced by judges who are not in the courtroom when their counsel advocates orally. Written advocacy should still have an impact on professional judge committee discussions. It appears that counsel is not informed that the case has been referred to a professional judges committee for discussion and it is not possible for counsel to know who is part of the committee and apply for judges to be recused in case of a concern that there has been a conflict of interest.
Would it result in more commercial parties deciding that arbitration is a better option, as they have better control over dispute resolution in their particular case? My perception is that the decision concerning appropriate dispute resolution is based on other factors, and the existence of the professional judges meeting as a mechanism to provide views to judges hearing a case has little impact on that decision. I welcome comments on that question.
Many thanks to those who participated in the survey and also to those who commented on an earlier draft of this blogpost.
On 27 July 2020, the Supreme People’s Court (SPC) issued Guiding Opinions Concerning Strengthening Search for Similar Cases to Unify the Application of Law (Guiding Opinions) (关于统一法律适用加强类案检索的指导意见（试行)), effective on 31 July. It is not a judicial interpretation, rather it is guidance intended to make judicial decisions more consistent, an ongoing issue in the Chinese court system. The SPC is approving the practice of judges using principles derived from prior cases to fill in the gaps in legislation and judicial interpretations. The Guiding Opinions codifies many of the practices of the Chinese courts and imposes some new requirements. It does not mean that China has become a common law legal system. As explained further below, although the Guiding Opinions do not address this question, comments by an SPC judge suggest that the special status of cases selected by the SPC by its operational divisions remains in place.
It also illustrates two larger points–that discrete judicial reforms aimed at more consistent judgments continue to be implemented even as the role of Party leadership and oversight continues to be stressed. It is also an illustration of how long it can take judicial reforms to be implemented. in my view, this discrete, technical reform has implications greater than the drafters of the Guiding Opinions realized, including a possible impact on Chinese legal education. It has the potential to make litigation a more predictable process for parties.
Case Search Requirements
What are similar cases?
Article 1 defines that–the cases that are already effective and are similar in their basic facts, disputed points, issues of law, etc. (指与待决案件在基本事实、争议焦点、法律适用问题等方面具有相似性，且已经人民法院裁判生效的案件).
When is similar case search required? (Articles 2 and 7)
When a case is proposed to be submitted to a professional or specialized (presiding) judges meeting (generally all the judges in a division) or the judicial/adjudication committee for discussion;
Relevant judicial principles are unclear or conflicting;
A court president or division head requires it under his or her supervision authority;
Other relevant situations.
That is, similar case search is not required in all cases, only when the relevant “law” is unclear.
Similar case search should be set out in the trial report for the case or in a separate precedent (similar case) report (类案检索报告) and included in the case file. As noted in my earlier blogpost, trial reports are confidential and not accessible to parties or their lawyers. Article 8 requires that the search report must include details on the platform, means of search, etc. and how the search was used.
Who searches and how?
The judge in charge of the case (承办法官) is in charge of undertaking the search and is responsible for doing it accurately and properly, using either the SPC’s database or other case databases, focusing on cases from the last three years, except for guiding cases.
Judges can use methods such as keyword search, legal provision (article of the relevant law), or related case search.
What must be searched?
These rules (in Article 4) are in line with what I have previously written:
SPC guiding cases;
SPC typical (model) cases (典型案例) and judgments or rulings of the SPC;
Reference cases issued by provincial-level higher people’s courts and decisions by those courts;
Higher-level courts in the jurisdiction in question and judgments of that court.
Except for the guiding cases, priority is given to the search of cases or cases in the past three years; if a similar case has been searched in the previous order, no search is required. Article 5 provides that judges can use methods such as keyword, legal article-linked, and case-based searches.
My understanding is that these are general principles, but the specific scope of cases that need to be searched will depend on the specifics. As I have previously written, the SPC Circuit Courts have issued cases that guide the lower courts in their circuits. The special authority of those cases remains in place. Judges reviewing issues related to the enforcement of foreign arbitral awards in China will need to look to a special set of cases (described here), for example.
I had previously written about cases selected by the operational divisions of the SPC providing guidance to the lower courts. Those retain their special authority, as indicated by comments by Senior Judge Yu Tongzhi, an editor of Reference to Criminal Trial (the joint publication of the SPC’s five criminal divisions). He noted in an article published on 31 July, that as far as criminal justice is concerned, without a doubt, the first choice for searching similar cases is to search the guidance cases contained in their publication, setting indices to the guidance cases for the convenience of readers.
Are precedents binding?
Precedents are not binding, but guiding cases should be 参照 “referred to” (the link is to SPC Research Office Deputy Director Judge Guo Feng’s authoritative explanation) unless the case conflicts with subsequently issued law or judicial interpretations. Other types of cases are not binding, but for judges to consider（参考).
How judges must respond
Article 10 imposes a new requirement on courts, if procurators, parties, their representatives (their lawyers) submit guiding cases or other cases in support of their legal position (as I had previously written had been the practice). For guiding cases, courts are required to state in the reasoning section of their judgments whether or not the guiding case was referred to and why.
For all other types of cases, the court can use its power of clarification/explanation and other means (释明等方式) to respond. It is understood that this is meant to give judges flexibility in responding to (non-guiding) judgments provided by parties–so the court may respond in its court’s judgment or in other ways. Those other ways may include: responding to the cases submitted pre-hearing, during a hearing, after a hearing, as the court considers most appropriate. We will need to observe what is done in practice, for example, whether courts respond primarily in their judgments or orally. This will be the way that a party can monitor whether the search accurately reflects prior cases, as neither a party or its counsel has access to the trial report. Other unknowns are how this system will influence administrative proceedings such as those at the Trademark Review and Adjudication Board.
Link to Inconsistent Decision Mechanism
Article 11 contains a link to the inconsistent decision mechanism discussed here, which I described as a microcosm of themes reflecting how the SPC operates, given its high bureaucratic nature.
Why case law reform?
As this blog has discussed, in the New Era, the role of Party leadership and oversight continues to be stressed (see this blogpost, for example). This discrete judicial reform is aimed at more consistent judgments. It is a critical tool that judges are already using because Chinese legislation lags behind the needs of the courts, and judicial interpretations are insufficient as well. Party policy would have an indirect impact on those cases, as would foreign law principles (mentioned here).
“Slow-cooking” judicial reform
The issuance of these rules shows the strength of the case law system and how long it can take a single judicial reform to be implemented. As mentioned in the June, 2019 blogpost, when Professor Hu Yunteng（until recently Justice Hu Yunteng, formerly a full-time member of the SPC’s judicial committee, now retired) recollected the history of the case system with Chinese characteristics, he mentioned that Jiang Huiling, then his colleague at the China Institute for Applied Jurisprudence (now Dean of the Tongji University School of Law) had looked to jurisdictions outside of China to advocate that China establish a case law system. Professor Hu Yunteng doesn’t specify whether Dean Jiang Huiling was looking to case law systems in civil or common law jurisdictions in the “West.”). In his 2016 Harvard Law Review student note, Mark Jia (now clerking on the Supreme Court), cited Li Shichun of the China Law Society to the effect that it was the National People’s Congress that opposed those seeking to establish a Chinese case law precedential system. That opposition has been overcome by widespread professional usage (as described in my 2017 Tsinghua Law Review article). It is unusual in that the practice came first and was not a top-down reform (顶级设计).
This discrete, technical reform is an important one for the rules relating to judicial decision-making better harmonized with judicial practice. There are a number of unknowns. One is whether it will result in judges feeling more comfortable in setting out their reasoning, knowing that other judges may look to it. An important question is how the practice of responding to cases will evolve–will judges tend to respond in their judgments, or as I suspect, do it orally. (As to why I think that–it is related to the desire of Chinese judges to reduce their risk under the judicial responsibility system).
In my view, this reform has the potential to make Chinese litigation a more predictable process. It is a bit of evidence of the gradual harmonization of the operations of the Chinese courts with the rest of the world, as current circumstances permit.
Justice Ginsburg’s article “Workways of the United States Supreme Court” and recent correspondence with brother blogger Mark Cohen has led me to reflect on what is known (and what I know) about how cases progress through the Supreme People’s Court (SPC). It is from the small details that it is possible to obtain greater insights about a judicial system.
In discussing the sources of law (meant broadly) to which SPC judges look when considering cases, some knowledgeable persons reminded me of the existence of something called a “trial report (审理报告 or 审查报告 (for retrial cases)). I analogize these to bench memoranda (as used in United States appellate courts), although the analogy is imperfect. It seems also somewhat analogous to the Votum of the German Constitutional Court, although the analogy is imperfect. Perhaps a search through Soviet (or Russian) civil procedure legislation will reveal a better counterpart.
As to what a trial report is, it is a memorandum prepared by the judge in charge of the case ( 承办人), prepared for internal discussion within the court. That internal discussion is in the first instance by the collegial panel that heard the case. If the collegial panel feels they need greater guidance (or other related factors are relevant, such as the case being “difficult” or “important”), the trial report may be used in discussion by the specialized judges meeting or if necessary, among the documents included in the package of documents submitted to the judicial (adjudication) committee (or specialized judicial (adjudication) committee).
A search of the Chinalawinfo (北大法宝) database revealed that the same term is used for internal memoranda prepared in the course of administrative penalty proceedings and Party disciplinary and other analogous proceedings.
The outside observer is handicapped in analyzing trial reports in great detail because few examples are available to those outside the system, as explained further, with a few found in specific databases. As for the reason for the handicap, that relates to a number of regulations that keep trial memoranda confidential, some mentioned in my article on judicial transparency. Those include:
2013 joint regulations by the SPC and the National Archives Administration (State Secrecy Bureau) requiring such memoranda to be placed in the supplemental file (副卷). Items in the supplemental file are confidential, as discussed in that article. The article also discusses proposals within the Chinese court system for public access to the supplemental file;
regulations on work secrets, also discussed in my article.
Trial reports are mentioned in a number of SPC regulations and in documents issued by the SPC’s Judicial Reform Office. It is clearly one of the many discrete matters about which reform is being considered.
The trial report is a memorandum in which the judge in charge of the case sets out the facts of the case, evidence provided and facts determined; prior rulings or decisions in the case; issues in dispute; background information; proposed resolution of the case and rationale. The judge is not bound by the restrictions in the sources of law that may be cited, with some judges stating that the results of discussions with experts or foreign principles of law or cases are sometimes included.
Some reports I have seen have a section on “issues to explain” (需要说明的问题)–that raises non-legal factors, such as the impact of enforcement of an international arbitral award on the local economy. The rationale in the report may be more detailed than that in the judgment or ruling that is issued to the parties. As has been mentioned in earlier blogposts, only certain sources of law may be cited as the basis of a judicial ruling or judgment. The trial report apparently can take a broader approach to legal sources, which would be in keeping with the holistic approach that Chinese judges take to deciding cases. The trial report, unlike the judgment or ruling, is confidential. The SPC has issued forms of trial reports, such as this one for administrative retrials; others for first-instance administrative cases; second instance administrative cases; state compensation cases.
SPC rules of operation call for a judge‘s assistant to be responsible for preparing a draft of a trial report, with the judge in charge of the case responsible for it. Interns may be involved in preparing a preliminary draft for the judge’s assistant to whom they are attached (as I know from my own students who have interned at the SPC). The judge’s assistant will review the intern’s draft thoroughly. There are proposals to require search of relevant prior cases, but this is something that likely is general practice at the SPC (see my article on case law).
A recent article by an experienced Chinese judge (at the local level) points out problems with the trial report system (at the local level). In his experience, since the last round of judicial reforms, most judges do not care much about drafting a trial report, in their rush to process cases on time. They, therefore, fail to provide a holistic report on the case. That complicates matters for the second instance judge reviewing the case file. Because the trial report does not describe fully the scope of factors that entered into judicial thinking, the second instance judge lacks a full understanding of the case. He says that for a Chinese judge, in addition to the facts and law, among the other factors to consider include: judicial policy; petitioning and stability maintenance; the impact of media; the impact of the decision; interference and inquiries from either inside or outside the court; value judgments of individual judges. In his experience, at least, the responsible second instance judge will meet face to face with the lower court judge to seek to understand the whole picture, rather than solely relying on the case file. He points out that this practice has its drawbacks. The author suggests using a system that he entitles “explanation of the situation regarding the decision” (裁判情况说明) rather than a trial report.
The fact that little is known about trial reports speaks to how little scholars (in China or elsewhere) focus on the details of how the Chinese legal system operates.
As to whether judges would favor making trial reports public–an unscientific sample says no. One suggestion that I have heard was that a broader approach should be taken to sources that could be cited in a judgment, so that a judge could cite to persuasive scholarly works. But what if it is revealed that judicial thinking on a particular issue has been influenced by foreign theories? The thoughtful Chinese judge wants to be both politically and legally correct.
The month of April saw the Supreme People’s Court (SPC) issue many judicial policy documents, consistent with the commitment made in January 2020 to Party leadership to better serve the Party and state.
To the outside observer, a document issued on 1 April appears to signal the way that the Chinese judicial system will develop in the post-19th Chinese Communist Party (Party) Congress Fourth Plenum New Era. The document is entitled Opinions of the Supreme People’s Court on Thoroughly Implementing the Spirit of the Fourth Plenum of the 19th Party Congress to Advance the Modernization of the Judicial System and Judicial Capacity (最高人民法院关于人民法院贯彻落实党的十九届四中全会精神推进审判体系和审判能力现代化的意见) (Implementing the 4th Plenum of 19th Party Congress Opinions). It implements “Implementing Opinions on Comprehensively Deepening Reform in the Political-Legal Field” (the text of this January 2019 document 关于政法领域全面深化改革的实施意见 has not been issued publicly) and “The Fifth Five-Year Reform Outline of the People’s Court (2019-2023) and obviously, the Decision of the 4th Plenum of the 19th Party Congress (4th Plenum Decision). The fact that the first document has not been issued publicly means that outside observers can identify its implications only through summaries in the press and implementing documents. The Party’s regulations on transparency (explained here) do not cover documents of this sort.
The Implementing the 4th Plenum of the 19th Party Congress Opinion is a framework document in which the Supreme People’s Court (SPC) identifies principles and goals for the Chinese judicial system and judicial capacity after the 4th Plenum of the 19th Party Congress. This blogpost will identify some of them and their link to the 4th Plenum, with related comments in italics. I expect that the SPC will issue specific judicial policy documents and judicial interpretations, as appropriate, to implement specific measures.
New Era Governance
The document needs to be seen as part of the larger picture for China’s governance set out in the 4th Plenum Decision. Section 1 states that “modernization of the judicial system and judicial capacity is an important part of the modernization of the national governance system and governance capability” and is needed, among other matters, to provide judicial services and guarantees for societal and economic development. One aspect of the importance of its judicial services is the fact that there were 28 million cases in the Chinese courts in 2018, most of them civil and commercial.
Several sections relate to political correctness. This is linked to the clear requirement in the 4th Plenum Decision, under the topic “perfecting the comprehensive leadership of the Party (健全党的全面领导制度.)” The 4th Plenum Decision also requires implementing the ideological responsibility system integrating socialist core values into law and social governance. This document, therefore, contains corresponding provisions.
Consistent with last year’s National People’s Congress report and other documents, this document states that the most important goal is to uphold and implement the Party’s absolute leadership of the courts and persist in putting the Party’s political construction first. It restates tasks for the courts, some of which were earlier flagged on this blog:
effectively implementing the Party’s leadership in all areas and aspects of the work of the people’s courts and ensuring the independent and fair exercise of judicial power under the leadership of the Party. Related language is found in the 4th Plenum Decision. This requirement is found in the latest judicial reform plan and elsewhere, including judicial training (as discussed here);
Improve the system for implementing major decisions of the Party Center (完善党中央重大决策落实机制) (found in the 4th Plenum Decision and documents thereafter);
strengthening improvements from political inspection (see my blogpost on the inspection of the SPC) and judicial inspection (强化政治巡视和司法巡查整改) (discussed in my forthcoming article) (related content found in the 4th Plenum Decision. Judicial inspection is an old institution repurposed in the new era);
implementing the Party’s reporting and inspection system (督察落实情况报告制度, mentioned in the 4th Plenum report and thereafter).
As mentioned in a recent blogpost, this means implementing Party principles concerning the appointment of personnel, particularly those in a leadership position. These trends are linked to broader policies related to civil servants (this recent academic paper by Holly Snape has good insights).
Socialist Core Values and the Ideological Responsibility System
Section 5 focuses on socialist core values and the ideological responsibility system, both of which the 4th Plenum Decision stressed.
On the ideological responsibility system, this(authoritative) article (the author was then at the Party’s Central Compilation and Translation Bureau), unfortunately behind the publisher’s high paywall), sets forth an authoritative explanation of this concept in Xi Jinping New Era Governance that some of us need. The author defines the ideological responsibility system as follows: it “is part of the political reforms and aimed at maintaining and improving the loyalty of the Bureaucracy, as well as maintaining their ideological unification…Under the current Xi administration, the CCP wants its cadres to be politically reliable, professional and competent, morally self-regulated, and preferably trusted by the people…“
Resolutely prevent and oppose the eroding influence of Western mistaken thinking (坚决防范抵制西方错误思潮侵蚀影响). This phrase has evolved from the one used several years ago and mentioned on this blog: “resolutely opposing erosion by the mistaken Western rule of law viewpoint” (坚决抵制西方错误法治观点侵蚀). Related language appears in the 4th Plenum Decision: have a clear-cut stand opposing various types of erroneous views (旗帜鲜明反对和抵制各种错误观点 ). This observer surmises that this phrase appeared in the 2019 Party document mentioned above. This does not create obstacles to Chinese judges continuing to consider useful “Western” legal concepts and mechanisms and the SPC continuing to have exchanges and cooperation projects with major “Western” jurisdictions.
Implement socialist core values in the work of the courts. This has multiple aspects and continues an ongoing theme, including in judicial interpretations–see my 2018 blogpost). Some high-level conferences organized by the Case Research Institute of the National Judicial College have been on the subject of promoting socialist core values through cases.
The more practically oriented sections (4, 6-8) reveal priority areas of SPC leadership concern. Those particularly relate to economic development, social stability, judicial reform, and technological upgrading, all topics found in the 4th Plenum Decision., while the section on public health emergency management relates to Party decisions and Xi Jinping speeches during the Covid pandemic.
These sections mention short, medium, and long-term areas of concern and development.
Section 4 of the document lists some of the priority matters relating to economic development facing the SPC and the lower courts, many of them mentioned in this year’s judicial interpretation list or recently announced judicial reforms. A curated version (translation is modified Google translate):
Improve risk monitoring and the early warning mechanism in financial trials, properly hearing financial disputes, and actively preventing and resolving financial risks (therefore we have seen the establishment of the Shanghai Financial Court and specialized financial tribunals in certain major cities. More detailed observations on this will come in the future);
fully implement the environmental public interest litigation system, improve the environmental remediation system, improve the environmental protection injunction system, improve the jurisdiction provisions in environmental cases. (The 4th Plenum Decision had a section on environmental protection and a July 2019 press conference linked to the fifth anniversary of SPC’s Environmental and Natural Resources Division mentioned these measures.)
Use evaluation indicators such as “enforcing contracts” and “handling bankruptcy”, to improve trial management, mechanism, quality, and efficiency to create a stable, fair, transparent, and predictable legal business environment. (This is linked again to the 4th Plenum Decision and China’s ranking on the World Bank’s Ease of Doing Business scorecard).
Intensify the review of the legality of administrative actions, strengthen the substantive resolution of administrative disputes (also linked to the strengthening of administration by law in the 4th Plenum Decision, therefore also on the 2020 judicial interpretation agenda).
Strengthen the judicial protection of property rights. See earlier blogposts on this.
Formulate judicial interpretations for cases of infringement of trade secrets, and continuously improve the level of judicial protection of intellectual property rights (IPR). (Improving trade secrets protection is mentioned in the 4th Plenum Decision. Also see Mark Cohen’s recent blogpost on this).
Formulate judicial interpretations of punitive damages for intellectual property rights, promote the establishment of a tort damages compensation system that reflects the market value of IPR (IPR is stressed in the 4th Plenum Decision and punitive damages in IPR cases is mentioned. Also see Mark Cohen’s blog on this. This also relates to evidentiary issues in IPR cases).
Mediation and diversified dispute resolution (including giving non-litigation methods of dispute resolution priority, improving the separation of disputes and the creation of one-stop dispute resolution and litigation service that is efficient and low cost) is mentioned in this document as well. It is unclear what this means for the development of a commercial mediation system in China. Local courts have been working on better cooperation with institutions that can mediate specialized disputes, such as the Shanghai Financial Court’s arrangements with the Shanghai Stock Exchange and other institutions. The provisions here derive from language in the 4th Plenum Decision on improving an effective system in the new situation for the correct handling of internal contradictions among the people (完善正确处理新形势下人民内部矛盾有效机制) as well as the Fengqiao Experience. Xi Jinping has mentioned the Fengqiao Experience since 2013, if not earlier. The phrase about internal contradictions appears to derive from the 1959 Mao essay, On the Correct Handling of Contradictions Among the People.
Promote capacity building for foreign-related commercial and maritime trials, equally protect the legitimate rights and interests of Chinese and foreign parties in accordance with law, improve the diversified dispute resolution mechanism for international commercial disputes, serve the joint construction of the “Belt and Road” and the construction of free trade pilot zones and free trade ports ( The 4th Plenum Decision promotes a high-quality Belt & Road Initiative, so these measures implement the 4th Plenum Decision. Also, see my earlier blogpost on this. To better improve diversified dispute resolution in cross-border cases, China needs to work on institutional arrangements enabling it to ratify the Singapore Mediation Convention. Those are many and complex, as I had a chance to learn in December, 2019. One matter that would assist foreign parties litigating in the Chinese courts (and Chinese parties litigating outside of China) would be for China to accede to the Hague Convention Abolishing the Requirement of Legalisation for Foreign Public Documents. The SPC’s new evidence rules reduce the scope of documents that a foreign litigant (or domestic litigant providing foreign evidence) must notarize and legalize, but it is a troublesome and expensive process.
Improve the adjudication mechanism involving Hong Kong, Macao and Taiwan, build a centralized and professional trial system, explore and improve the diversified settlement mechanism for [civil/commercial] disputes involving Hong Kong, Macao and Taiwan. (The centralized system seems to be analogous to foreign-related cases. The intent is to have more competent judges consider these. Another issue is parallel proceedings in these cross-border cases. These issues deserve further analysis.)
Deepen the international judicial exchange and cooperation mechanism, participate in the reform of the global governance system and formulate rules of international law, and contribute more Chinese wisdom to the maintenance of the multilateral trading system and the international rule of law. (See my earlier blogpost on this).
Public health emergency management
Section 6 relates to the role of the courts in the public health emergency management system, in the short and long terms. It mentions the courts providing judicial services to the joint prevention and control system, preventing mass events, and group prevention and control (群防群治工作机制, an old system to which Xi Jinping has given new meaning during the pandemic. That section mentions shorter-term issues, such as punishing the manufacturing and sale of fakes during the pandemic and longer-term issues, such as the courts being involved in improving the legal system in the area of public health.
Section 7 highlights some of the tasks in the current judicial reform plan. Those include:
Deepening the judicial responsibility system, for judges hearing cases solely or in a collegial panel, the members of a judicial committee, and the supervision of judicial power. As mentioned on this blog several times, judges are concerned about the scope of the judicial responsibility system, and recent cases that have appeared in the Chinese press would only amplify those concerns. I have more on this in a forthcoming book chapter.
Improving the disciplinary mechanism for judges. The forthcoming book chapter is on this. The SPC is working on related regulations.
Promoting the improvement of the policies relating to the selection of judges level by level. The controls on the number of “quota judges,” judges with the title of “judge,” in many courts, means that some number of qualified personnel have become judges assistants. It has created a fair amount of frustration. Another issue is that the new policies mean it takes longer for judges to be promoted, but at the moment, most judges need to retire at 60, so that the pool of judges eligible to be promoted eventually to the SPC will shrink. We can expect related policies issued in the medium term.
Improving the working mechanism of the circuit courts and promote the Supreme People’s Court’s Intellectual Property Court (SPCIPC) and the China International Commercial Court (CICC). Promote the strengthening of the organization system of intellectual property courts, and improve the specialized trial system so that it complies with the principles for the judicial protection of IPR. (It is understood that the circuit courts are hearing most SPC cases. But it still leaves unanswered what the role of the SPC in hearing cases is. Should it best focus on considering a smaller number of cases more thoroughly, as other supreme courts do? The SPCIPC and CICC both have captured SPC leadership attention (and the attention of the outside world). It is clear that the SPC has provided much more support to the SPCIPC than the CICC (most obviously the SPCIPC operates full time, while the CICC does not). China’s IPR enforcement system is a topic of worldwide concern (the Phase 1 Trade Agreement and the United States Trade Representative Office’s recent 301 Report both evidence this), so it is likely that this means the SPC leadership will focus more on intellectual property issues.
Deeply promote the reform of the trial-centered criminal justice system (this is a continuation of reforms initiated in the previous round of judicial reforms). This topic requires a separate analysis, to consider the impact of the National Supervision Commission, among other issues.
Improve and deepen the judicial transparency mechanism including promoting the transparency of judgment documents, court hearings, trial process information, and execution information. See my earlier blogpost and Mark Cohen’s more recent one on his concerns in the area of intellectual property law. Professor He Haibo has done important empirical work on judicial transparency.
Section 8 relates to technology and implementing the courts’ five-year plan on informatization (人民法院信息化建设五年发展规划). It mentions promoting AI, big data, cloud computing, blockchain, and 5G. Litigants should know that the SPC is promoting online case filing, litigation, mediation, judicial blockchain, and the mobile micro-court. A reality check is needed for China’s online litigation publicity. One is provided by a popular Wechat article published last month “A month of online court hearings, judges and lawyers have all gone crazy” 云庭审上线一个月，法官律师都疯了” Technology is an important area of SPC leadership concern, as it sees it as an area in which China can take the lead.
What is the impact of this vision and program for the Chinese courts, for litigants (in China or elsewhere), and for others, including judiciaries in other countries and jurisdictions. Is this a “China model” for courts, as raised by some? It does not appear to be so, but rather an outline for the courts to be conveyed within China, rooted in the Chinese political, cultural, and social environment of 2020, which will change along with Party priorities and events. Some aspects described above are common to judiciaries around the world, such as the trend towards greater online justice. Will it deliver the results it promises?
Many thanks to certain anonymous readers for their insightful comments on earlier versions of this blogpost. They are not responsible for any errors or “erroneous views.”
One of the many documents issued late last year in the rush for year-end accomplishments (成就）is the Supreme People’s Court’s (SPC’s) latest Five Year Court Training Plan Outline for 2019-2023 (New Training Plan Outline) (2019—2023年全国法院教育培训规划). The question this blogpost will explore is what is new and what has changed in the post-19th Party Congress New Era. As shown below, it is one small example of the impact of the 19th Party Congress on China’s legal and governance system. Competing obligations mean that this blogpost can only provide a few highlights and will focus on training for judges rather than support personnel, although the New Training Plan Outline covers all types of court personnel.
Other objective factors that have changed in the New Era are the number of cases in the courts (the majority of which are civil and commercial cases) and the average number of cases assigned to judges. The numbers released to the public can only provide a general indication, as senior judges in a court (court presidents, vice presidents, and heads of divisions) are required to handle a small number of cases, which means in actual fact a greater burden on front-line judges, who constitute the majority of judges. The provinces and areas with the most developed economies tend to have the most number of cases.
This blog discussed the earlier plan almost five years ago. The outside observer is handicapped by limited transparency about what the National Judicial College (NJC) actually does, although insights into the forthcoming curriculum can be found. Previous versions of the NJC website had some course outlines, but those vanished in one of the website upgrades. In comparison, for example, the Australian National Judicial College publishes the National Judicial Curriculum and the German Judges Academy also has quite detailed information (to the extent this observer can understand it using a combination of high school German + Google translate).
The NJC, for those who aren’t familiar with it, is a separate institutional entity (事业法人) under the SPC, in charge of court training, primarily of judges, but also for other supporting staff. It is closely linked with the SPC’s Political Department (in charge of cadres). It has also hosted some training courses jointly (this was on administrative litigation) with the National Prosecutors College. Fortunately, the NJC website has posted screenshots of lectures (many by outstanding SPC judges) in its cloud classroom, although unfortunately, the lectures themselves are inaccessible. I surmise that any teaching this spring will be at least initially online, as in other Chinese higher educational institutions. As of 30 March, this has provided to be correct, as the NJC website now features reports on training judicial trainers and provincialbranches of the NJC providing training online.
What is new?
Consistent with what I wrote in this blog about Zhou Qiang’s report to the NPC in March of last year (2019) (and other 2019 blogposts), what is different about the New Court Training Plan Outline is the greater emphasis on political issues and Party leadership, although these were evident in the previous plan. The first sentence mentions Xi Jinping Thought on Socialism with Chinese Characteristics for a New Era (习近平新时代中国特色社会主义思想) and “forging a high-quality court team (队伍) that the Party Center can rely upon and the masses are satisfied with.” It mentions creating a revolutionalized, regularized, specialized and professionalized team (革命化、正规化、专业化、职业化). As explained in an earlier blogpost, “revolutionized” signals absolute Party leadership. The top two goals for training are deepening education in Xi Jinping thought (习近平新时代中国特色社会主义思想学习教育更加深入) and further solidifying education with a Party nature (党性教育更加扎实).
What do Chinese judges need in the New Era?
The economic and social changes in China raise the competency bar for judges. A more litigious and rights conscious public, the increasingly complex economy and a greater number of cross-border transactions and interactions, (not to mention coronavirus related issues) as well as a smaller number of judges to hear more cases means that judicial training is an important part of preparing Chinese judges for the New Era. Post 19th Party Congress changes in Party policy mean that competency in Party matters is increasingly significant.
The plan does not incorporate training for foreign judges, which the NJC delivers to judges from Belt & Road Initiative jurisdictions and other countries.
The Training Plan stresses ideological, ethical, and professional training, for judges and other judicial personnel. Ideological training is listed first. Judicial training is to focus on active and practical methods, including the case method (no less than 30%), moot courts, and other interactive methods. Even in the New Era, the intellectual influence of exchange and training programs with offshore counterparts (many of those in the NJC leadership had studied abroad) is apparent from the more interactive methods required.
Who’s being trained
The training requirements depend on the seniority of the judicial personnel
Court leadership: the focus is on their political education, as well as administration. The SPC will run a special training session on the Xi Jinping New Era thought for a large group of court leaders, with newly appointed ones required to participate in training within a year of appointment. In the next five years, they must participate in a certain minimum number of hours of Party school, cadre education, or judicial training.
The plan also calls for providing different types of training depending on court needs–off-site vs. on-site training, web-based training, circuit teaching (some of the younger SPC judges are sent to courts in western provinces to deliver training).
Special training program for new judges: the judicial training program (apparently drawing from the practice in Taiwan and Japan) for new judges highlighted almost five years ago still has not been put in place. The new plan calls for research into implementing measures for training for newly appointed judges and organizing training for a group that qualifies to take part in unified pre-service training) (研究制定法官职前培训实施办法, 组织符合条件的人员参加统一职前培训).
How will the Plan be implemented?
As I wrote in December, one of the little-discussed aspects of being in a leadership role in the SPC in the New Era ensuring that policies, actions, initiatives, and other decisions hit the target of being politically correct (post 19th Party Congress and post 19th Party Congress 4th Plenum) while being “problem-oriented” (坚持问题导向) that is, addressing relevant practical issues facing the court system. As mentioned then, it is true for the leadership of the NJC as well as other SPC divisions and institutions, as can be seen from one document.
The NJC very usefully (for the outside observer, at least) posted a notice soliciting proposals (from qualified individuals and institutions) for judicial training in 2020 under the new plan. The guide to the proposals sets out the desired content, which must not only be politically correct (a given), but also creative (new training methods or viewpoints), and relevant–focusing on the new and difficult issues facing the courts. The solicitation lists 66 topics in seven categories:
Ideological related training is listed first, of course, with six subtopics which include: Xi Jinping new ideology and strategy for ruling the country by law (listed first); enhancing socialist core values in judgments (see my earlier blogpost on a related topic); political discipline rules as derived from the Party charter, regulations, and discipline.
Professionalism: (four subtopics)–professional ethics and judicial values; judicial work-style and the standardization of judicial acts; anti-corruption issues and countermeasures; outstanding Chinese traditional legal culture and socialist justice (unclear whether this is meant to solicit critical views of Chinese traditional legal culture);
Judicial capacity: this one has twenty-three subtopics, with a good portion also to be found in other jurisdictions: civil, commercial, administrative and criminal justice values and judgment formation; judgment writing and courtroom control; difficult financial cases; while other reflect Chinese characteristics: what to consider when hearing difficult and complicated cases involving the public (涉众型) (these are either criminal or civil cases); protecting property rights and preventing mistaken cases; intellectual property trials and serving the innovative strategy; dealing with zombie enterprises.
General courses: (eight subtopics)—again, a mixture of courses seen elsewhere, and ones with Chinese characteristics: guiding the media; mediation techniques; blockchain, AI and the courts.
Case study courses: (13 subtopics)-–most of the topics are ones found elsewhere in judicial academies, such as financial crimes, juvenile justice, and corporate disputes, but others reflect the New Era, such Xi Jinping New Era thought cases and case pedagogy, cases promoting and applying the “FengqiaoExperience“; and sweeping black and eliminating evil cases.
Discussion courses: Criminal, civil, and administrative law courses.
Judicial reform: only six topics here, including implementing the judicial responsibility system; establishing intelligent courts; separating simple from complicated cases; administrative litigation reform, and promoting a trial based criminal justice system.
On 11 October, the Supreme People’s Court (SPC) issued brief guidance establishing a mechanism for resolving its inconsistent decisions, entitled “Implementing Measures on Establishing a Mechanism for Resolving Differences in the Application of Law (Implementing Measures) (关于建立法律适用分歧解决机制的实施办法). The guidance did not appear in Chinese legal media until the end of October. The intent of the guidance is to create a mechanism to resolve the old problem of inconsistent court decisions concerning the same issue (same cases decided differently 同案不同判) made by Chinese courts and even within the SPC. Widespread use of the SPC’s judgments database has brought this phenomenon to greater public attention. With the explosion in the number of cases in the Chinese courts and in the SPC in particular in recent years, the issue of divergent views within the SPC on the same issue is likely to be occurring even more frequently. The concern about uniformity or consistency of judicial decisions has its roots in the traditional Chinese legal system and is an ongoing topic of discussion among Chinese judges, legal practitioners, legal academics, and law students.
For those with an interest in the details of how the SPC operates, this document does not have the status of a judicial interpretation but the SPC’s judicial committee has approved it, as is evident from the title of the document (measures/办法 and the document number 法发〔2019〕23号 (Fa Fa (2019) #23. Judicial interpretations must have one of four titles and have a document number with Fa Shi 法释. The reason that the SPC judicial committee approved it is linked to Article 7 of the recently released guidance on judicial committees: “the adjudication [judicial] committee of the Supreme People’s Court is to unify law through means such as adopting and drafting judicial interpretations and normative documents (规范性文件), and publishing guiding cases.”
This mechanism has its antecedents in several previous judicial reform documents, and is one that is contained reform measure #23 of the last round of judicial reforms and reform measure #26 of the current round::
#23….Complete and improve working mechanisms for the uniform application of law.
#26 Improve mechanisms for the uniform application of law. Strengthen and regulate work on judicial interpretations, complete mechanisms for researching, initiating, drafting, debating, reviewing, publishing, cleaning up, and canceling judicial interpretations, to improve centralized management and report review mechanisms. Improve the guiding cases system, complete mechanisms for reporting, selecting, publishing, assessing, and applying cases. Establish mechanisms for high people’s courts filing for the record trial guidance documents and reference cases. Complete mechanisms for connecting the work of case discussion by presiding judges and collegial panel deliberations, the compensation commission, and the judicial committee. Improve working mechanisms for mandatory searches and reporting of analogous cases and new types of case. (完善统一法律适用机制。 加强和规范司法解释工作，健全司法解释的调研、立项、起草、论证、审核、发布、清理和废止机制，完善归口管理和报备审查机制。完善指导性案例制度，健全案例报送、筛选、发布、评估和应用机制。建立高级人民法院审判指导文件和参考性案例的备案机制。健全主审法官会议与合议庭评议、赔偿委员会、审判委员会讨论案件的工作衔接机制。完善类案和新类型案件强制检索报告工作机制)
A brief summary of the mechanism is set out, followed by my preliminary thoughts on the mechanism and related issues.
The Implementing Measures, which went into effect on 28 October, provide that if certain SPC entities or lower courts discover that the SPC has issued valid judgments (判决) or rulings (裁定) (the Chinese term is “生效裁判”) which apply the law differently (存在法律适用分歧), or an ongoing case may result in the later decision applying the law differently from that in a previous SPC case, the matter should be brought to the attention of the SPC judicial committee through an application process managed by the Trial Management Office.
Article 1 of the Implementing Measures designates the SPC judicial committee (also translated as adjudication committee 审判委员会) as the institution to resolve and guide differences in the application of law.
Article 2 authorize operational divisions of the SPC (业务部门), the higher people’s courts and specialized people’s courts to submit an application to the SPC’s Trial Management Office which may be eventually considered by the SPC’s judicial committee if either:
there is a discrepancy in the application of law of judicial decisions of the SPC that are already effective (最高人民法院生效裁判之间存在法律适用分歧的);
or there is a difference in the application of law between the conclusions in a case being tried and principles or standards on the application of law already determined in effective decisions of the SPC (在审案件作出的裁判结果可能与最高人民法院生效裁判确定的法律适用原则或者标准存在分歧的).
Article 3 authorizes the China Institute of Applied Jurisprudence (CIAJ) to submit an application to the Trial Management Office if it encounters differences in the application of law in effective judgments of the SPC that it encounters during its focused research work on like cases decided consistently (类案同判专项研究).
If the Trial Management Office determines the matter should be accepted (project initiation) (立项), that office is required to refer the matter to the CIAJ, which is required to provide an initial view to the Trial Management Office within five working days. Presumably, they will do little additional research and will focus on reviewing the materials submitted by the entity involved. In some situations, it appears to put CIAJ in the odd position of reviewing its own work. The Trial Management Office forwards the initial view of the CIAJ to the SPC operational division involved for further review and response. The operational division involved may involve experts in needed. The operational division should draft a response (复审意见) in a timely manner to the Trial Management Office, which should submit a request to an SPC leader (presumably the relevant SPC vice president) to place the matter on the judicial committee agenda. Once the judicial committee makes a decision, the entity that applied for a determination is to be informed. The Trial Management Office is required to provide a proposal containing the form and scope of the decision by the judicial committee for approval (提出发布形式与发布范围意见). It can be anticipated that determinations on non-sensitive topics may be made public, while those on more sensitive topics will be distributed either solely within the court system or to a relevant category of judges. Article 11 of the Implementing Measures requires SPC operational divisions, local courts, and specialized courts to make reference and implement (参照执行) the SPC judicial committee’s decision in the course of their work. Presumably that will depend on how widely distributed the determination is.
Some preliminary thoughts
In my view, the mechanism is a microcosm of themes reflecting how the SPC operates. As mentioned above, the SPC decides (either through judgments or rulings) large numbers of cases yearly, and the SPC responds to an unknown number of requests for instructions (请示), mostly on legal issues, which means that in practice that issues on the same body of law may be determined by different divisions of the SPC or different teams of SPC judges. So differences in legal issues may arise either through litigation or court administrative-type procedures. While SPC judges in practice (as I understand it) search for similar cases, it is inevitable that different people have different views on legal issues. Unlike some other legal systems, the SPC has not evolved an en banc or enlarged panel of judges (this description of how France’s highest court operates provides a good example) as the final institution for resolving these issues. Designating the SPC’s judicial committee reflects the traditional administrative way (官本位) that SPC makes major decisions concerning legal issues. As I described in a recent blogpost, the members of the SPC’s judicial committee are its senior leaders.
I surmise that many of the differences in views will be resolved before the matters reach the judicial committee. In comments made on the Implementing Measures, Justice He Xiaorong (head of the #2 Circuit Court) mentions that he has inaugurated a system of enlarged panels of judges that include those with a public law and private law background, and familiar with civil, criminal, and administrative law, to consider cases involving difficult issues. That system will reduce somewhat the pipeline of issues possibly entering this mechanism. For those issues that enter the mechanism, it is possible that opposing views may be harmonized when the operational division of the SPC needs to respond to the points summarized by the CIAJ. I predict that relatively few questions will go to the SPC judicial committee itself. The mechanism may have been designed with that goal in mind or may have that impact.
Additionally, from my reading of the Implementing Measures, the drafting could have benefited from more input from greater input either within the SPC or without, which could have avoided some of the problems I point out below. I surmise that the drafters were so used to the terminology used within the SPC, they did not realize that lack of clarity will confuse the lower courts and the greater legal community, for whom this system may have practical implications. In particular, the Implementing Measures:
do not define what is meant by differences in the application of law (法律适用分歧). Presumably, a major difference in the application of law is intended and the SPC judicial committee (and its gatekeeper, which appears to be the Trial Management Office) will consider carefully which inconsistencies merit a determination by the judicial committee. My understanding is that the judicial committee is reluctant to reverse its determinations on particular legal issues within a short time, as it seeks to provide legal certainty on particular issues through judicial interpretations and other documents. As I described in my 2019 article on the SPC and FTZs, rules or policies included in SPC judicial policy documents may eventually be crystallized in SPC judicial interpretations and eventually codified in national law, but that process is slow and cannot meet the needs of the lower courts, which need to deal properly (politically and legally) with outstanding legal issues pending a more permanent stabilization.
do not define the term “裁判,” which generally refers to judgments (判决) and rulings (裁定). To a casual reader, at least, it is not clear whether it is intended to include responses to requests for instructions (requests for advisory opinions, 请示). As I wrote in a blogpost earlier this year, some responses to requests for instructions are entitled fuhan 复函 and others dafu 答复. The editors (from the SPC) of a two-volume collection of responses described them as ‘usually called quasi-judicial interpretation documents’ (往往被称为准司法解释性文件) and ‘a necessary supplement to judicial interpretations’ (它是对司法解释一种必须的补充). It is not unusual for these responses to conflict with one another, as reasonable people can disagree and multiple institutions within the SPC issue responses on the same or related bodies of law. I have not noticed a document (at least one that was made public–I’d be grateful to be informed otherwise) describing an existing mechanism requiring the drafters of these responses to review related responses issued by other divisions. Differences in the application of law could also arise between an existing response and later judgment, or draft judgment.
do not define what is meant by “业务部门” (operational departments/divisions). Does it include the SPC’s Research Office (which one knowledgeable person described as a comprehensive operational department (综合业务部门)), which often issues responses to requests for instructions? Research into another issue has led to an authoritative answer to this question. The knowledgeable person was citing “chapter and verse” from a 1995 SPC reply:”研究室是一个综合性的审判业务部门 ” (see Reply of the Supreme People’s Court as to Whether the Research Office is an Operational Department (最高人民法院关于人民法院研究室是否属审判业务部门的复函).
are very weak on specific procedures for when a question of law should be referred to this mechanism. Consider, for example, a case that is being considered by one of the divisions of the SPC. 2017 SPC regulations on the SPC’s responsibility system mention professional (presiding) judges meetings (as discussed in a 2017 blogpost and again severaltimesthis year. The Implementing Measures do not specify whether the issue should be reviewed by the division’s professional judges meeting before it is submitted to the Trial Management Office. Presumably that will be the case, as the judicial committee guidance requires it. In Justice He Xiaorong, clarifies that the professional judges meeting is an important institution for resolving differences in the application of law. As a practical matter, will this procedure suspend civil litigation procedures? It is unclear.
do not clarify what will be included in the package of documents that goes to the Trial Management Office. Will it be similar to the documents that go to the judicial committee under its new guidance on judicial committees? It appears that the Implementing Measures are not well integrated with the new guidance on judicial committees. I surmise (please message me if I am mistaken) that the drafting of the Implementing Measures and the guidance on judicial committees was siloed, a frequent problem in the Chinese and other bureaucracies, so that the drafters of the Implementing Measures were unaware of the details of the new judicial committee guidance. As I wrote last month, those contain more specific requirements concerning the content of the report that the judges are required to prepare for the judicial committee, including arguments by both/all parties, prosecution/defense counsel and a clear listing of the issues on the application of law that require discussion and decision by the adjudication committee, the opinions of the professional (presiding) judges meeting. The guidance also requires judges preparing these reports to search for similar or related cases. I surmise that these requirements will be consolidated in practice.
give special authority to the CIAJ in the course of its research work on like cases. It is also possible that CIAJ could encounter major inconsistencies in its other work, such as compiling its Selection of People’s Court Cases (mentioned in my 2017 Tsinghua China Law Review article). Moreover, it is curious that the CIAJ is given this special authority but not an analogous institution in the National Judges College. Article 3 authorizes the CIAJ to submit an application relating to differences in the application discovered in the course of its work, while the Judicial Case Academy of the SPC (under the National Judges College) (see a list of its 2018-2019 research projects) has no such authority, giving the careful reader the impression that the CIAJ led the drafting of the Implementing Measures. It appears to be a version of a phenomenon I described in a draft article, that because the SPC is a large organization, with many entities competing for top leadership attention, policy documents are sometimes drafted with consideration of institutional interests, as a policy document approved by the SPC judicial committee can be seen as representing an undertaking by SPC leadership to the institutional goals of division or entity involved.
On 22 September the Supreme People’s Court (SPC) updated itsguidance to the lower courts on judicial committees (关于健全完善人民法院审判委员会工作机制的意见). (also translated as “adjudication committees”) (审判委员会). For those new to this blog, these committees are made up of certain senior members of a court, and they have special decision-making authority, as detailed below. They decide cases that are too difficult or important for an individual judge or judicial panel to decide, to ensure the optimal substantive result (as seen from the institutional perspective of the courts).
The document is a policy document (explained here), as indicated by its document number 法发〔2019〕20号). Lower courts (and the specialized courts) can issue further detailed guidance, have in the past and will do so. In 2010 the SPC issued guidance on judicial committees (2010 guidance), which I analyzed in this article, Reforming-judicial-committees. The article includes some insights from a number of judges with whom I spoke at the time. Reforming judicial committees has been on the SPC’s agenda since the prior round of judicial reforms, as my 2014 blogpost discusses. I predicted that reform would occur “in the medium term.” There are is a great deal of writing about judicial committees in English and especially in Chinese. My 2014 blogpost links to some of the English language research, and other insights about how judicial committees work can be found in Embedded Courts, the prize-winning book by NG Kwai Hang and He Xin.
The broad consensus on judicial committee reform can be seen in Articles 36-39 of the Organic Law of the People’s Courts, as amended in 2018 (2018 People’s Courts Law), but the 2019 guidance sets out more detailed rules.
This blogpost will highlight some of the issues that come to mind in a quick review.
A quick list of what is new follows:
There are some changes in the format of SPC Opinions (意见) so that it is usual for them to begin with a list of basic principles.
As to be expected, Party leadership and related principles are listed at the top of both the 2019 and 2010 guidance. Both stress upholding Party leadership of the work of the people’s courts, with the 2019 guidance referring to “upholding the Party’s absolute leadership over the work of the people’s courts.” This should not at all be surprising, as the phrase has been used repeatedly since the 2019 Political-Legal Work Conference. The Party Regulations on Political-Legal Work use the phrase “Party’s absolute leadership.” As I mentioned earlier this year, Li Ling (of the University of Vienna) sees this as indicating a complete and unambivalent severance from the judicial independence framework.
On membership of judicial committees, The 2018 People’s Courts Law and the new guidance retain the old system of having the court president and vice-presidents, but no longer requires division heads (庭长) to be members, but refers to “experienced”(资深) judges and to the possibility of having full-time members. The SPC already does this. Justices Hu Yunteng, Liu Guixiang, Pei Xianding, and He Xiaorong are full-time members of the judicial committee, which gives them a bureaucratic rank equivalent to being an SPC vice president, with attendant privileges. It is likely that the Central Staffing Commission regulates the number of persons who can be SPC vice presidents. Judging by the SPC website, some SPC judicial committee members are not SPC Party Group members, although of course there is some overlap.
Another innovation in the 2018 People’s Courts Law, repeated in the 2019 guidance, is having specialized judicial committees, to focus on more specialized issues, and to deal with the problem of having non-specialist judges making decisions on issues regarding which they are not familiar. This provision consolidates ongoing practice in both the SPC and lower courts My understanding is that the Shenzhen Intermediate Court was one of the earlier courts to establish specialist judicial committees. The roots of this innovation lie in the 2004-2008 Second Judicial Reform Five Year Plan Outline. (This also illustrates the time it takes for some judicial reforms to be adopted.)
On the functions of judicial committees, new language mentions “sensitive, major, and difficult cases such as those involving national security, diplomacy, or social stability.” That language is new as compared to the 2010 guidance. It is not new to the SPC, as it appears in the SPC’s 2017 judicial responsibility regulations, about which I wrote. I surmise that this is just spelling out what had been the general practice. Most of the other functions are consistent with previous guidance.
The operational language is more detailed than before and gives a glimpse into the bureaucratic nature of the Chinese court system ( a collegial panel or single judge who thinks a case should go to the judicial committee “submit an application and report it up to the court president for approval level by level; and where an application is not submitted, but the court president finds it necessary, they may request that the adjudication committee deliberate and make a decision. The language enabling a court president to designate a case for judicial committee discussion likely represents a consolidation of practice, rather than something new.
Other procedures in the operational section are new, reflecting the new institution of the professional judges committee and much more specific requirements concerning the content of the report that the judges are required to prepare for the judicial committee, including arguments by both/all parties, prosecution/defense counsel and a clear listing of the issues on the application of law that require discussion and decision by the adjudication committee, the opinions of the professional (presiding) judges meeting. In a clear signal about how the SPC sees the importance of case research, it also requires judges preparing these reports to search for similar or related cases.
The 2019 guidance requires judicial committee members with a conflict to recuse themselves (the language is unclear about whether a party can apply to do that). This is new, and reflects many years of criticism of the failure to have a recusal mechanism.
The 2019 guidance also imposes a quorum requirement on judicial committee meetings, both the plenary and specialized committee meetings. Certain outsiders (people’s congress delegates, scholars, etc) may attend, as well as the chief procurator at the same level or his delegate (this latter provision is not new).
Decisions are made by at least half of the members attending and dissenting opinions must be recorded in the case file. It does not mention that dissenting opinions will be mentioned in the judgment issued to the parties and the public. As before, the decision of the judicial committee is binding on the judge or judges who heard the case (principle of democratic centralism).
The 2018 People’s Court Law and new guidance require the decision and reasoning in cases discussed by the adjudication committee to be disclosed in the judgment documents unless the law provides otherwise, so a significant step forward in judicial committee transparency. The lack of judicial committee transparency had been criticized for many years.
Judicial committees at all levels of the courts are now required to create an audio or visual recording of the entire process of judicial committee meetings and keep them confidential. Judicial committee proceedings are required to be incorporated in a court’s caseflow management system. It is not clear from the guidance who or which entity would have access.
Those not involved in judicial committee proceedings (outside leaders, senior judges not involved) are forbidden from involving themselves in judicial committee proceedings. If this didn’t happen in practice, it wouldn’t have been included in this guidance.
Similarly, the language in the 2019 rules on judicial committee members and other maintaining confidentiality and work discipline, and not leaking trial work secrets (I discuss this in my article published earlier this year. If this didn’t happen in practice, it wouldn’t have been included in this guidance.
Although for many years proposals have been made to abolish the judicial committee, I have rarely heard anyone who has worked in the Chinese judicial system agree with that proposal. It seems more likely that the SPC thinking is maintaining the judicial committee system is appropriate for China at this time, given the level of professionalism nationwide, the need to share/avoid responsibility for making difficult decisions, and the greater political environment. This guidance appears to be designed to deal with some of the abuses of the judicial committee system, have greater (but not complete) transparency, incorporate new court institutions, and generally improve how the committees operate.
I have spent some time decoding Supreme People’s Court (SPC) President Zhou Qiang’s March 2019 report to the National People’s Congress (NPC). As I explain below, it provides signals into how the Chinese courts are changing and may change in the post 19th Party Congress New Era.
What is different is greater emphasis on political study and Party leadership, although these are themes that found in many previous SPC court president reports. The emphasis in this year’s report on political study is on Xi Jinping Thought on Socialism with Chinese Characteristics for a New Era (习近平新时代中国特色社会主义思想) and Party leadership is on implementing the spirit of the 19th Party Congress (党的十九大精神) and the January, 2019 Central Political-Legal Work Conference (全面贯…中央政法工作会议精神).
This emphasis shown by the first numbered section of the report. It is entitled “Deeply study and implement Xi Jinping Thought on Socialism with Chinese Characteristics for a New Era and Uphold the Party’s Absolute Leadership [emphasis added] Over the Work of the People’s Courts (深入学习贯彻习近平新时代中国特色社会主义思想坚持党对人民法院工作的绝对领导).” The phrase “uphold the Party’s absolute leadership over the work of the people’s courts” has been used repeatedly since the 2019 Political-Legal Work Conference. The Party Regulations on Political-Legal Work (mentioned above) use the phrase “Party’s absolute leadership.” Li Ling (of the University of Vienna) sees this as indicating a complete and unambivalent severance from the judicial independence framework. The report identifies the primary political task for the courts to be studying Xi Jinping Thought and the 19th Party Congress decision (坚持把学习贯彻习近平新时代中国特色社会主义思想和党的十九大精神作为首要政治任务), and it calls for related training for all 350,000 court personnel (深入开展大学习大研讨大培训，对全国法院35万名干警进行全员轮训).
This section also calls for the strict implementation of the [Party] system of reporting and seeking approval for major matters [also known as requests for instructions](严格落实重大事项请示报告制度)(the Party regulations on reporting and seeking approval for major matters（Chinese version here). Those regulations appear to be linked to the Political-Legal Work Conference but were not publicly issued until the end of February). As mentioned in my recently published article, 1995 regulations on trial work secrets require requests for instructions and their responses in a case to be placed in the supplementary file. These supplementary files are classified as trial work secrets. There has been significant criticism over many years of the system of requesting instructions/reporting and seeking approval (as I wrote 26 years ago!), and proposals evenwithin the SPC for the system to be “proceduralized” or “judicialized.” Some academics have called for abolishing it. For those who can read Chinese, I recommend Renmin University Professor Hou Meng’s 2011 article analyzing the system of seeking instructions. The second judicial reform plan (under the late SPC President Xiao Yang), called for reform to the system of reporting and seeking approval/request for instructions system. In a quick search I did of the SPC’s judgment database for the phrase “sought instructions from the higher court (请示上级法院), I found almost 350 that mentioned the phrase (although a certain proportion related to requesting the higher court to designate jurisdiction).
Another indication of the emphasis on Party leadership is found in the section of the report that relates to the courts’ tasks for 2019. Section #5 of the court tasks refers to improving the quality of court personnel–“speed up the creation of a revolutionized, regularized, specialized, professionalized team, forge a high quality court team that the Party Center relies upon and the masses are satisfied with.” As explained in an earlier blogpost, “revolutionized” signals absolute Party leadership (五是加快推进队伍革命化、正规化、专业化、职业化建设，锻造党中央放心、人民群众满意的高素质法院队伍). This language is consistent with the 2019 Political-Legal Work Conference and President Zhou Qiang’s speech to implement the spirit of that Political-Legal Work Conference (note that similar language is found in Procurator-General Zhang Jun’s report to the NPC).
As in previous years, most of Zhou Qiang’s report was devoted to the SPC’s and lower courts’ accomplishments in various substantive areas and providing selected statistics to support the narrative. Those statistics reveal that most of the cases heard in the Chinese courts are civil and commercial, not criminal. My incomplete research on the caseload of the SPC comes to a similar conclusion.
What needs to be observed (for those of us focusing on Chinese court developments) is how these recent Party regulations will be integrated with court-related legislation–for example, how the Judges Law will be amended to reflect the latest political developments. [The Judges Law was promulgated on 23 April, a future blogpost will analyze its significance].
Other issues to be observed include the following questions. What does increased emphasis on Party leadership and political study mean for the operation of the Chinese courts and the increasingly professional judges working within the Chinese court system? The 19th Party Congress report calls for strengthening and improving Party leadership over bodies of state power. A late January 2019 Central Committee document on strengthening the Party’s political construction (中共中央关于加强党的政治建设的意见) states that the basic nature of various institutions, including the courts (called adjudication /trial organs 审判机关) ) is that they are political institutions (中央和地方各级人大机关、行政机关、政协机关、监察机关、审判机关、检察机关本质上都是政治机关). What does this designation mean for the operation of the courts?
One of the post 19th Party Congress changes that Zhou Qiang mentions is implementing the system of seeking instructions from the Party organization and superior Party organizations and strengthening the leadership role of the Party group in operational (substantive) work and Party construction (加强对本单位业务工作和党的建设的领导). So what does this mean, for example, for the China International Commercial Court and the SPC’s Intellectual Property Court (and their elite judges), as well as the other SPC judges together dealing with almost 35,000 cases, retaining and attracting high quality legal professionals, particularly at the lower court level (this year’s report recognized that the resignation rate in some local courts is “severe”)? Most of the 28 million cases heard in the Chinese courts were heard at the local level. What does this mean for confidence in the Chinese court system, be it on the part of the Chinese public, the Hong Kong, Macau, and Taiwan public, and the international public? President Zhou Qiang’s report reveals that most of the cases in the Chinese courts involve civil and commercial disputes that for the most part arise between individuals or corporate entities (in 2018 9,017,000 first instance cases involved people’s livelihood, including 1,111,000 first instance employment, medical, pension, and consumer cases), and the courts heard 1,814,000 marriage and family cases. Will integrating socialist core values into judicial interpretations promote the rights of women, not to mention other groups whose rights have traditionally not been fully protected?
further deepen judicial openness, constantly improve the openness of the trial process, openness of court proceedings, openness of judgment documents, openness of enforcement information–the four transparency platforms, comprehensively expand the breadth and depth of judicial openness, improve the form of judicial openness, smooth the parties and lawyers to obtain judicial information channels, build a more open, dynamic, transparent, convenient sunshine judicial system.
2. The article I mentioned as being in the academic article production pipeline has finally emerged. It can be found here. It is a chapter from the book Transparency Challenges Facing China and examines some recent developments in China’s judicial transparency. It suggests that although the scope of judicial transparency is inevitably shaped by the requirements to keep state and trial work secrets confidential, the Supreme People’s Court, within the boundaries of what is politically achievable, is taking concrete steps to expand the scope of judicial transparency. The article focuses on information on judges and courts, statistics and big data, and judicial normative documents, digging into relevant court rules and highlighting Chinese language commentary. The article shows that views on judicial transparency within the Chinese judiciary are not as monolithic as an outsider might have initially assumed.
Although the redraft of China’s Judges Law has the potential to have an impact on many in the world outside of China, few people have taken an interest, judging by the pageviews of its translation on Chinalawtranslate.com (62). (I’m indebted to Jeremy Daum and others for translating it). Judging by a search on Wechat, the same is true in China. The workshop pictured above, organized by the China Law Society, appears to be one of the few in which views on the draft were aired. There must have been strong views on the draft, but the report did not provide any details (and it is apparent no foreigners participated). The draft was released before the Communist Party (Party) Central Committee’s 2019 Political-Legal Work Conference and therefore does not reflect the most current political signals. The draft is open for public comments until 3 February and over 800 comments have been submitted as of 25 January. An earlier draft was made available for public comment (as well as related institutions) for comment and the China Law Society organized comments on that draft as well. The current draft incorporates input from various sources.
The law, if enacted in its current form, will have short and long term implications for the Chinese judiciary. As the Chinese judiciary seeks to be increasingly connected with the outside world, through its work in negotiating the (draft) Convention on the Recognition and Enforcement of Foreign Judgments at the Hague Conference on Private International Law, the Arrangement on Reciprocal Recognition and Enforcement of Judgments in Civil and Commercial Matters between mainland China and Hong Kong, as well as other more controversial involvement, the questions it raises for outside observers (and Chinese ones as well) is–what vision does it convey of the Chinese judge? What rights and responsibilities does a Chinese judge have under this law? Will this law, if enacted in its current form, encourage competent people to remain in the judicial system and promising young people to enter it? When I first flagged the redrafting of the law in 2015, I commented–“how to reorganize the Chinese judiciary and what professional status Chinese judges should have and work under will affect how judicial reforms are implemented and less directly, more fundamental issues concerning China’s economy and society.”
Some brief (not comprehensive) comments follow:
It consolidates the framework of the old law, incorporates legislative changes and many judicial reforms, leaves some flexibility for future reforms, and reflects current Communist Party (Party) policy towards political-legal institutions and their personnel as set forth in the 2019 Party regulations on political-legal work.
The Judges Law does not stand on its own. It is connected with other legislation, such as the recently amended Civil Servants Law the amended court organizational law, and of course, relevant Party rules. The initial drafting was led by the SPC, in particular, its Political Department (as the Party is in charge of cadres).
This section with broad statements is longer than the previous version. Among the notable amendments.
Article 1, concerning the purpose of the law: “advance the regularization, specialization, and professionalization of judges; to strengthen the management of judges; to ensure that the people’s courts independently exercise the adjudication power; to ensure judges’ performance of their duties in accordance with law; to ensure judicial fairness; and to preserve the lawful rights and interests of judges”–sends signals concerning the professionalization of the Chinese judges, with principles of independence (better read as autonomy) and fairness not listed first. It should be noted that during the 2019 Political-Legal Work Conference, the “revolutionization” of political-legal teams was listed before regularization and professionalization (加快推进政法队伍革命化、正规化、专业化、职业化建设，忠诚履职尽责). (“Revolutionization” appears to meant to signal the absolute leadership of the Party.) SPC President Zhou Qiang gave a speech at a meeting to implement the spirit of that Political-Legal Work Conference which also listed “revolutionization” first, but he stressed the greater importance of professionalization (加快推进队伍革命化、正规化、专业化、职业化建设，把专业化建设摆到更加重要位置来抓) as the operation of and public confidence in the Chinese court system depends on retaining and attracting professionals. The establishment of the CICC, the Shanghai Financial Court and the Intellectual Property Court of the Supreme People’s Court all represent professionalization and specialization.
Article 2 mentions various types of judicial personnel, the functions some of which are defined in the court organizational law, but for others, such as division chiefs and deputy division chiefs, mentioned without definition. A Chinese court has many administrative characteristics, but it would be helpful for the Chinese and offshore public to flag some basic principles regarding the functions of persons with these different titles, as these are found scattered in various SPC regulations.
Article 4: Judges shall treat parties and other litigation participants justly.The law is applied equally to any all individuals and organizations. But the law treats different types of parties differently (embezzling money from a private enterprise vs. state-owned company) and other provisions of law treat cases involving senior officials differently from ordinary people (see this article on the principle of trying criminal cases involving high officials in a jurisdiction outside which the case arose).
On Judicial duties, Articles 8 and 9, on the duties of ordinary judges and ones with a title do not clarify what participating in trials and being responsible for their cases mean (the latter is linked to the 2015 responsibility system that (as this blog has mentioned), gives judges a great deal of stress. Perhaps the German Judiciary Law could be a source of inspiration on judicial duties.
This chapter incorporates a number of policy changes that have been implemented under the judicial reforms and also explains why the China International Commercial Court (CICC) will not be able to appoint foreign judges, unlike its counterparts in Singapore and Dubai.
Article 12 is a revised version of old Article 9, requiring judges to be PRC citizens, uphold the PRC constitution, and have a good political and professional character. Article 65 mentions that new judges must have passed the legal qualification examination.
This chapter mentions the establishment of Judicial Selection Committees (also a borrowing from abroad) and which must have some linkage to Party organizational departments. The chapter mentions recruiting judges from outstanding lawyers and academics (thus far, proving more difficult than anticipated), and requiring higher court judges to be recruited from those with experience in the lower courts. I described the “classic” appointment system in my 1993 article on the Supreme People’s Court, in which fresh graduates were assigned directly to the SPC. As mentioned in my earlier blogpost on the court organizational law, court presidents are required to have legal knowledge and experience.
This chapter has expanded conflict of interest rules for judges considerably. that had previously been set out in a separate chapter of the Judges Law. Some of these had mostly been contained in subsidiary rules that the SPC has issued but are now being incorporated into the Judges Law itself.
This chapter flags a number of issues, including the quota judge system, pre-career judicial training and the resignation of judges.
Article 24 states that a personnel ratio system is implemented for managing judges. This codifies the quota judge system, but it does not explain how it works and whether is any way to challenge the determination of the personnel ratio.
Article 30 provides that a uniform system of pre-career training is to be carried out for new judges. This is an innovation in which the SPC has looked to what is done in Japan and Taiwan, and was flagged several years ago in this blog. As mentioned in that earlier blogpost, training is likely to include both ideological and professional aspects.
Article 34 provides that”judge’s applications to resign shall be submitted in writing by themselves, and after approval, they are to be removed from their post in accordance with the legally-prescribed procedures.” It is unclear from this article what the procedure is for resignation and the standards for approving or rejecting a judge’s application. But it is meant to harmonize with the Civil Servants Law，2017 regulations of the Party Organization Department and two other authorities on the resignation of civil servants, and SPC regulations implementing the latter regulations (discussed here). From Wechat postings and other discussions in Chinese legal circles, it is not unusual for the senior management of a court to delay decisions on permitting a judge to leave for a year or more.
This chapter sets out the outlines of the recent judicial reforms regarding the evaluation of and disciplining of judges.
Article 45 on punishment of judges–while many of the provisions are found in many other jurisdictions, some are unique to China and could be worrisome to judges, as they could be widely construed–such as “(5) Causing errors in rulings and serious consequences through gross negligence; (6) Delaying handling cases and putting off work.” There is considerable concern among judges about the standard for “errors” in rulings because that standard may evolve over time (see this earlier blogpost) and the reason for delay may not be solely a legal one.
Articles 48-50–In contrast to the previous version of the Judges Law, this draft provides for disciplinary committees (rules to be drafted by the SPC) under which the judge will have the right to be represented and to provide evidence in his defense.
This section, on professional protections for judges, also flags the limitations on and weaknesses of those protections, with inadequate procedural protections against unfair determinations made against judges.
Article 52, providing that “Judges may not be removed from the trial post except…”–also does not provide a mechanism for judges to challenge a decision or determination made against them.
Article 64: Where there are errors in judicial sanctions or personnel dispositions, they shall be promptly corrected; where it causes reputational harm, the reputation shall be restored, the impact eliminated, and formal apologies made; where economic harm is caused, compensation shall be made. But there is no mention of how a judge can challenge the judicial sanctions or personnel disposition, or request that he (or more likely she) be reinstated. Dispassionate analysis of the responsibility system by both academics and judges (previously mentioned on this blog) describes the responsibility system as a “Sword of Damocles” hanging over the heads of judges and lists some cases in which judges were prosecuted and found not guilty, with another one reported by another Wechat account.
A final word
It is unclear at this stage of the draft whether comments on the draft will have any impact on the final draft. Presumably, some of the comments made at the workshop mentioned above will be accepted, as the participants included a group of senior experts either working within or retired from “the System” or academics whose expertise is recognized and valued.
In late November (2018), the Supreme People’s Court (SPC) issued its latest transparency policy. The question is, after reading past the references to the 19th Party Congress and the ideology guiding this document, is what, if anything new does it require of the lower courts (and of itself)? And why? Decoding this document (Supreme People’s Court Opinion Concerning the Further Deepening of Judicial Transparency (Judicial Transparency Opinion 最高人民法院关于进一步深化司法公开的意见)) requires some background. The why is easier to answer (I have written about this in an academic article in the academic publication pipeline), but I will also explain the “what is new” and what it means.
As to the why, it appears to be linked to criticism from within the court system and by prestigious research institutes within China. Some of the critics and their criticism:
In 2015, Justice Hu Yunteng wrote that judicial statistics needed to be made better and more transparent. In 2016, He Fan, department head in the SPC’s judicial reform office, wrote “as long as it does not infringe the privacy of the parties, does not violate state security, the court’s data interface should be open to the community.” Local judges, too, are writing critically about judicial statistics, with at least one comparing unfavorably China’s practices with those of the US Department of Justice’s Bureau of Judicial Statistics.
The team of researchers at the Institute of Law, China Academy of Social Sciences (CASS) evaluated court websites in this volume, advising the courts to “consider judicial openness from the viewpoint of public users,” and expand transparency of judicial statistics, devote manpower to updating court websites, and put some order into chaotic judicial transparency. On December 10, a team from the CASS Institute of Law announced the results of their third-party assessment of the SPC’s judicial transparency, the first time that the SPC had authorized an institution to do so, finding problems with compliance by some lower courts.
What does is the Judicial Transparency Opinion require?
The Judicial Transparency Opinion requires the courts to expand the scope of transparency while keeping secrets secret It refers to two types of secrets, state secrets and trial secrets(审判秘密) (also called trial work secrets).
Expanding the scope of transparency while maintaining secrecy
The Judicial Transparency Opinion requires the lower courts to expanding the scope of information that they make public while keeping state and trial work secrets secret. Although most people who a basic idea about Chinese law have heard about its broad definitions of state secrecy, that same cannot be said about the concept of “trial secrets”. Although the general legislation on state secrecy has been updated in the past 10 years, it is unclear whether the same can be said of the specific regulations on state secrecy in the courts. “Trial secrets” is a related concept but the relevant regulations appear to be almost 30 years old and do not define the scope of the secrets clearly. They include accounts of discussions of judicial committees, and “views from relevant units.”
What is required?
In addition to setting broad principles such as timely and substantial disclosure (researchdone at Tsinghua has found that some courts upload their decisions to the SPC’s judgment database months late, or not at all) and a team of leading scholars based at several US universities that includes Columbia Law School Professor Benjamin Liebman found a “missingness problem” when looking court judgment databases), the Judicial Transparency Opinion sets out specific requirements on transparency. Those requirements are set out in seven broad areas in which the courts should voluntarily release information (except those where law, administrative regulations, judicial interpretations do not permit release information and other information that is unsuitable for being made public (其他不宜公开). The phrase “unsuitable for being made public,” is flexible enough to cover both the politically sensitive on a larger and minor scale. (For more on unsuitability, see the article that Professor Liebman and colleagues wrote). The preliminary section also calls for the greater use of white papers and court gazettes.
The seven categories include:
Basic information about the court
International judicial exchanges and cooperation; and
I have selected some areas in each category where greater openness is anticipated (and included some comments in italics).
A. Among the useful new items in “basic information”
institutional establishment (机构设置) (generally refers to internal structures–both the Chinese and English version of the SPC website have this);
Normative documents (规范性文件)–Chinese law does not require these documents, which are not legally binding to be made public, but they guide the operation of the courts–if the SPC makes more of these documents public it would be a service to all;
Work reports to the people’s congress at the same level (makes life easier for research seeking to access this information over time);
Other basic information that needs to be widely known in society (it should include information for the “litigant in person” (the person without a lawyer, but it doesn’t).
B. On enforcement, the SPC direct the lower courts to gradually expand the scope of enforcement openness. Matters on the 12-item list include:
judicial statistics (presumably to include greater consistency among jurisdictions, unclear the scope of the statistics that may be released);
enforcement procedures (unclear whether this is for parties only or the general public);
bankruptcy information (not much is being made public);
Annual reports on enforcement in different substantive areas;
Judicial big data reports.
C. Litigation services
Litigation guides (see the Shenzhen intermediate court’s list–while a good start, they are not user-friendly (guide to criminal collateral appeals, for example):
court notices and information about judicial auctions and other information relating to the disposal of judicial property (this could be interesting in corruption-related cases);
judicial services, experts, bankruptcy administrators, etc.
specially appointed mediators and mediation organizations; lawyers stationed at the courts, other volunteers assisting with litigation;
Channels for collateral appeals and petitioning;
other information relating to party’s rights in litigation and other information the public should know–again see the suggestion above (for Chinese litigants) and this blog has previously made for non-Chinese litigants and defendants as well (foreigners and others from outside of mainland China also need some easily understandable information about the Chinese court system).
D. The SPC calls for greater transparency relating to Judicial reform so that the public will have greater confidence in it, including:
judicial reform documents (would make the life of researchers trying to assemble the judicial reform puzzle much easier);
Information on progress in judicial reform [unclear whether the drafters are referring to white papers]
Other information the public should know (that ideally should include statistics related to judicial reform, including resignations of personnel, but appears unlikely);
E. Judicial administration–The SPC calls for the courts to accept supervision by society. The measures include:
Matters relating to societal interests and follow up from suggestions made by National People’s Congress/Consultative Congress members (it would be useful to know what percentage of court staff is “on the front-line” of hearing cases rather than being in an administrative role);
F. International judicial exchanges and cooperation–increase exchanges and reference between legal cultures, create a good impression internationally of the Chinese courts, promote their international competitiveness, influence and credibility:
important international judicial exchanges
important international judicial conferences;
other matters that society should know about. No mention of lists of projects for which the Chinese courts would welcome international exchanges and interchange of legal concepts. No mention of how a foreigner would be able to attend a court hearing in China.
“Team construction”–this term is a Party term (but the Party is in charge of cadres)–i.e. this section relates to judicial personnel
the situation relating to Party construction (listed first, understandable in the post 19th Party Congress era);
Personnel work (it would be useful to have a breakdown of the number of judges and other judicial support personnel as well as those in administrative roles, as well as resignations and appointments);
Disciplinary information (it would be useful to have full decisions published, as in other jurisdictions);
Training and education.
The final paragraph of the Judicial Transparency Opinion calls for implementing measures and more detailed measures to be drafted and for measures to be put in place. So it can be expected that specific departments of the SPC will be involved in drafting more specific guidelines (will that involve more specifics on the types of statistics on criminal convictions released)? Once the national guidelines are in place, we can anticipate that provincial high courts (or their equivalents) will issue implementing documents. It is only then that we will be able to comment on what the actual impact of this document is.
The National People’s Congress (NPC) Standing Committee recently revised theOrganic 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.
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.
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).
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;
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.
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 earlierblogposts 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.
The drafting process (the explanation and otherarticles 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.
Senior Judge Jiang Huiling heads the Supreme People’s Court (SPC)’s China Institute of Applied Jurisprudence (the Institute). He recently published twoarticles 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):
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 .
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.
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.
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?
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.
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.
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 theseearlier blogposts).
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.
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.
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.
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.
As the days count down to the 19th Party Congress, all Party/government institutions are preparing for it, including the Supreme People’s Court (SPC). On 19 September, the SPC issued an emergency notice (pictured above), calling on the lower courts to strengthening law enforcement work to provide a good judicial environment for the holding of the 19th Party Congress. The SPC, as other Party/government institutions, issue emergency notices from time to time (here’s one from the Ministry of Education), generally linked to a politically significant event. The full text for the SPC notice hasn’t been released (or if it has, it has escaped me). It is meant to send signals to the SPC staff and to the lower courts.
Some of the signals:
improve performance indicator systems (indicating too many courts still have dysfunctional performance indicators);
handle more cases, handle them well, handle them quickly (多办案、办好案、快办案, language better suited to the factory floor);
ensure that the goal of having difficulties in enforcement basically resolved in three years is achieved (again….);
clear up those unresolved cases (要抓好长期未结案件清理,确保依法妥善清理案件)–this is being taken seriously by court leaders, again judges (and their clerks, assistants and interns). The PhDs (and Master’s degree holders) praised by the SPC may feel they are somewhere between a model production worker and a real judge (or clerk.). (Of the SPC quota judges, about 1/3 have PhDs, with over half holding a master’s degree), and PhDs are not unusual in the lower courts, at least in major cities.) An unscientific survey shows judges and their support staff doing more overtime during the pre-19th Party Congress and pre-Golden Week holiday to meet this target;
reminds the lower courts about the case registration reform and reminds judges that cases should be accepted, even towards year end, when courts are concerned about their case closing numbers, especially the number of cases that will be carried over to the next year, and warns them against reporting false closing statistics (坚决杜绝人为抬高立案门槛、拖延立案、年底前提前关门不收案等突出问题), （切实防止虚假报结、强迫撤诉);
reminds courts about another important but controversial judicial reform, implementing the judicial responsibility system (insightful analysis and research from within the courts on this is coming out, see this recent article in the National Judicial College’s journal);
it reminds judges of ways to deal with the increase and cases and reduction in headcount–use diversified dispute resolution, separate simple from complicated cases, and try similar cases together.
The SPC released some year to date (end August) statistics (I’m drilling down on the state of transparency in this area)–close to 16 million newly accepted cases (15.89 million), no breakdown on how cases are categorized, closed cases up to 12.67 million (up 15.7%). This indicates continued high pressure on first instance judges and their assistants. I’m awaiting data on what the vortex of reforms means for retaining high quality judges.
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:
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.
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:
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.
The military courts still lack their own legislation (an earlier discussion of this issue is found here).
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.)
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 priorblogposts).
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 earlierblogposts 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.
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.
I recently published an article in the Tsinghua China Law Review on Chinese case law in practice, building on severalblogposts I had previously written and articles by fellow bloggers Jeremy Daum and Mark Cohen. Many thanks are due to the persons who shared their experience and observations with me. A special thank you is due to the persons who provided detailed comments on earlier drafts.
Supreme People’s Court (SPC) President Zhou Qiang has been widely quoted for saying in January of this year that Chinese courts should strengthen ideological work and show the sword to mistaken Western ideas of “constitutional democracy”, “separation of powers” and “judicial independence.” What is not widely known outside China is that the relationship between the Chinese judiciary and some of the major international judiciaries (I’ll use the term “Western”) is more nuanced than it appears. Close observation reveals the following:
high-level summits between major foreign and Chinese judiciaries;
senior Western judges speaking to or providing training to senior Chinese judges;
pilot projects in the Chinese courts involving foreign judiciaries;
SPC journals and media outlets publishing the translation of cases from and reports of major Western judiciaries; and
SPC judges reviewing legislation, institutions, and concepts from other judiciaries in judicial reform.
The official position on borrowing/referring to foreign legal models is set out in the 4th Plenum Decision (as I wrote earlier):
Draw from the quintessence of Chinese legal culture, learn from beneficial experiences in rule of law abroad, but we can absolutely not indiscriminately copy foreign rule of law concepts and models.
President Xi Jinping further elaborated this view on his visit to China University of Political Science and Law on May 3:
China shall actively absorb and refer to successful legal practices worldwide, but they must be filtered, they must be selectively absorbed and transformed, they may not be swallowed whole and copied (对世界上的优秀法治文明成果，要积极吸收借鉴，也要加以甄别，有选择地吸收和转化，不能囫囵吞枣、照搬照抄).
[The Xinhua report on Xi’s visit in English–“China should take successful legal practices worldwide as reference, but not simply copy them” omits the detail found in the Chinese reports.
Some examples of the way the SPC considers the “beneficial legal experiences in the rule of law abroad”:
High level summits (some of which were agreed to on a presidential/head of state level) on commercial legal issues, such as the August, 2016 U.S.-China (or China-U.S.) Judicial Summit
“Our three talented and experienced U.S. judges discussed with senior Chinese judges and other experts topics relevant to commercial cases, ranging from case management to evidence, expert witnesses, amicus briefs, the use of precedents and China’s system of “guiding cases.” Speakers from both sides gave presentations that explored complex questions on technical areas of law. The conversations, during the formal meetings and tea breaks, were lively, candid, direct and constructive, highlighting both the similarities in and important differences between the U.S. and Chinese legal and judicial systems. I told our Chinese hosts that the views our judges expressed would be entirely their own, reflecting our separation of powers and the independence of our judiciary. Our judges displayed that independence as they weighed in on a range of issues, such as the role of precedents in interpreting statutes and the challenge of balancing public access to information while safeguarding privacy and protecting trade secrets.
Several of the Chinese participants discussed pending cases in U.S. courts involving Chinese defendants. I [William Baer] believe it was useful for us to air our differences and for our experts to exchange views on technical and sensitive areas of law. At the meeting, it was clear that although we come from different backgrounds and will not always agree, we all recognize the importance of legal reasoning and that increased transparency is a way of earning the public’s trust in the fairness and objectivity of the judicial system.”(from the DOJ website).
2. Training of Chinese judges by foreign judges
A number of foreign judiciaries have in place long-term training programs with the Chinese judiciary, with the German judiciary among the pioneers. The National Judicial College (NJC) (affiliated with the SPC) has a long-term program in place with the Germany judiciary, involving the German Judicial Academy, the German Federal Ministry of Justice & Consumer Protection, GIZ (the German international cooperation organization) and other parties, which teaches subsumption and related techniques of applying laws to facts (further explained here). The NJC has published a setof textbooks that apply the subsumption method to Chinese law.
It is likely that close to 10,000 Chinese judges have been trained under the German program. Common sense indicates that the NJC has continued with the program because it is useful to Chinese judges.
A recent example of the German training program is illustrated by the photo above, showing Dr. Matthias Keller, presiding judge of the Aachen administrative court giving a training course on the methodology of the application of law in administrative law to 150 Chinese administrative judges, mostly from intermediate and higher people’s courts.
3. Pilot projects in the Chinese courts involving foreign judiciaries
Australian judges have worked with the Australian Human Rights Commission on a ‘Sino-Australia Anti-Domestic Violence Multi-Agency Putian Pilot Program’ in Putian, Fujian Province, involving judges from the SPC, Fujian Higher People’s Court, and Putian Intermediate Court.
4. Publishing the translation of cases and reports from foreign judiciaries.
Some examples in recent months include:
excerpts from Supreme Court decision Padilla v. Kentucky (published 7 February 2017), for those unfamiliar, it relates to plea bargaining and effective counsel);
U.S. Chief Justice Robert’s 2016 year end report on the federal judiciary;
U.S. federal judiciary’s strategic plan, for their takeaways for a Chinese audience;
Summary of a July, 2016 report on cameras in the federal courts;
Summary of the UK’s 2015 Civil Justice Council’s Online Dispute Resolution Advisory Group’s report on Online Dispute Resolution for Low Value Civil Claims.
5. Considering foreign legal concepts in judicial reform
Foreign legal concepts are considered by the SPC in a broad range of areas of legal reform, most of them unknown to foreign observers. Several of the more well known examples include: plea bargaining (see this article by an SPC judge (a comparison with the US “model” is included in Jeremy Daum’s analysis of China’s expedited criminal procedure reform). Last year’s policy document on diversified dispute resolution (previous blogpost here) specifically mentions considering concepts from abroad，On the ongoing amendments to the Judges’ Law (the draft has not yet been released), SPC Vice President Shen Deyong said in late April, “we need to learn from and refer to the successful practices of the management system of the judicial team by jurisdictions abroad, but they must be selectively filtered for Chinese use (要学习借鉴域外法官队伍管理的制度成果，甄别吸收,为我所用)。
A careful review of official statements, publications, and actions by the SPC and its affiliated institutions, as well as research by individual SPC judges shows an intense interest in how the rest of the world deals with some of the challenges facing the Chinese judiciary coupled with a recognition that any possible foreign model or provision will need to fit the political, cultural, economic, and institutional reality of China, and that certain poisonous ideas must not be transplanted. [Those particularly interested could pore through two publications of the SPC judicial reform office (Guide to the Opinions on Comprehensively Deepening Reforms of People’s Courts and the Guide to the Opinions on Judicial Accountability System of People’s Courts, in which the authors discuss relevant provisions in principal jurisdictions abroad.]
Those who either are most concerned about diluting the Chinese essence of the SPC (or jealous/emotionally bruised) seem to have saved their most poisonous criticism for off-line comments, as I am unable to locate a written version of the nasty comments that a senior Chinese academic shared with me about the over-Westernization of judicial reform or other nasty comments said to have been made about research by certain SPC judges into foreign legal systems. It is hard to know whether the persons involved are motivated by jealousy or a real belief that these measures described above will have a negative effect on the development of the Chinese judiciary. It seems safe to say that the concerns raised in the 19th century on the dilution of the essence of Chinese culture when borrowing from the West seem to be alive and well in the 21st century.
6. All levels of people’s courts shall give full play to the professional judges’ conferences and adjudication committee’s roles in summarizing trial experience unifying judgment standards; and on the foundation of improving working mechanisms such as consulting similar cases and judgment guidance; a mechanism is to be established requiring the search of similar cases and relevant cases, to ensure a uniform judgment standard for similar cases, and the uniform application of law.
This requires judges to do what many of them have been already doing –searching the case databases for prior cases that raise the same or similar issues and other issues related to the principal one(s). This principle will be applicable to judges hearing all sorts of cases–civil, criminal, administrative, enforcement, and intellectual property. It will not be evident to the reader of a Chinese judgment or ruling that searches have been done because non-guiding cases may not be cited.
Requiring a search of prior and related cases is an important step in the evolution of the Chinese case law system. That system (as I wrote recently), supplements and informs judicial interpretations. Judicial interpretations often take years to be finalized. National legislation (by the National People’s Congress and its Standing Committee) is hopelessly inadequate for the needs of the court system. Case law is needed to fill in the gaps. Judges, who are assuming greater individual responsibility for their decisions, need case law for more specific guidance.
In her remarks in November, 2016 focused on intellectual property, Justice Tao Kaiyuan revealed the thinking of the SPC leadership:
The construction of the case guidance system [Chinese case law] is not to create a new legal source, but to…uncover the broader consensus of the industry, to further refine legal rules and to provide better law for society. It is also expected to lay the foundation for the drafting of judicial interpretations…The function of the intellectual property case guidance system is to enhance the predictability of the judiciary by establishing an intellectual property case guidance system to promote the unity of judicial standards.
The nine presiding judges of the #2 Circuit Court are whom Chief Judge Hu Yunteng calls “The Nine.” It could be: 1) Judge Hu is a fan of the Jeffrey Toobin book on the (US) Supreme Court, which has a Chinese translation thanks to Judge He Fan; or 2)he wants others to know that he has some basic knowledge about the US Supreme Court. (For the avoidance of any doubt, this does not mean Judge Hu is looking to transport the US judicial system to China).
The role and utility of China’s circuit courts have moved into public focus with the establishment of four additional circuit courts (discussed earlier). Some have commented that they have been established just to divert petitioners from Beijing.An article published by a European think tank commented that the circuit courts weaken the power of local judges and courts in the provinces.
But when analyzing what Chinese courts do and how they operate, moving away from grand theory and into the specifics of what they do provides (to this foreign observer and I trust Chinese ones as well) more nuanced insights. It helps to understand better what the circuit courts are doing, how Chinese courts operate, how Chinese judges think, and what practical solutions Chinese judges evolve in the context of their political, legal and social environment. What exemplifies this is a report that the #2 Circuit Court did on petitioning appeals related to criminal cases (第二巡回法庭刑事申诉来访情况分析报告). The report concerns petitions for retrial made under the Criminal Procedure Law’s trial supervision procedure.
While the full report does not seem to be easily available, Chief Judge Hu Yunteng summarized some of what appear to be the main findings of the report in a June, 2016 interview with 中国审判 (China Trial), a SPC journal and Wechat account. The audience for China Trial is primarily his brother and sister judges, so his comments were relatively frank and the legal context about which he was speaking would be taken for granted. His comments, which I am summarizing below, reflect the insights of someone who lived through the Cultural Revolution, and has worked at the intersection of legal research and judicial practice for many years. (His Chinese profile is more complete than the English one).
He said that his remarks were drawn from his experience in hearing nearly 200 cases at the #2 Circuit Court, the majority of which were criminal petition cases (刑事申诉)(cases retried under trial supervision procedures). The cases, he said, reflect issues with criminal cases both at first instance or on appeal, as well issues all courts face coping with criminal petitions. Moreover, he said, the #2 Circuit Court (and SPC headquarters) have more and more petitioners seeking redress, plus an ever increasing backlog of cases. People have been petitioning for a little as 3-5 years, long as 10-18 years, or even 20-30 years, clocking over a hundred visits. Over 700 petitioners visited the #2 Circuit Court with grievances about the decisions of the Liaoning Higher People’s Court.
Judge Hu gave his views on why are there so many of these cases and what should be done.
Why so many cases?
(Graph tracking petitioner visits to the #2 Circuit Court (not from the interview):
A summary of Judge Hu’s analysis follows below, with some comments in brackets.
Reasons for these cases
“The reasons are complicated.” He believed that the number of mistaken/unjust cases were small in number, and 90% of the petitioning cases involved cases decided properly, with 9% with some errors, but only 1% with errors serious enough for the case to be re-tried. The reasons, he believed, lay deeper.
Defects in the criminal procedure system. It has a two instance system, with the second instance as final; time limits on hearing criminal cases; and criminal petitioning system. With societal change and ordinary people have greater legal consciousness and demands for justice. This criminal procedure system is incompatible with current societal demands (这些制度已经不能适应新时期的需要). In some areas of China, there are more petitions from second instance decisions than appeals.
Most jurisdictions, whether common law or continental (including Hong Kong and Macau) have a three-instance system, and if China does not change this and have a limited third instance system, the criminal case petitioning problem will not be solved. The strict time limits mean facts are not clarified, a good job is not done at trial, and case quality is not maintained, creating errors that causing petitioning. The lack of time limits on petitioning is a major reason that it exists. [Note: Judge Hu saying this does not mean the Chinese government will change its system immediately or in the near future. His voice is a powerful and persuasive voice identifying this as a core reason for so many petitions, but this must be understood within the context that he said it. This is his analysis, not a signal that the Chinese government will change its criminal justice system immediately.
Implementing a [limited] three-instance system is a major criminal justice policy change, with social stability, financial and personnel implications (as seen from the government’s perspective). Proposals to make such a fundamental change to criminal procedure law would come after a great deal of analysis and consultation with the authorities involved. Judge Hu does not elaborate on what he means by a limited third instance system, but research shows this concept is being explored by a variety of thinkers and scholarship on the topic dates back over 10 years. Those following Chinese criminal justice system reforms should be aware that the renown Professor Chen Guangzhong revealed (in an interview in June, 2016) that amendments to the Criminal Procedure Law are under consideration, although the details are not yet known. ]
2. Problems in judicial practice. There aren’t enough staff to hear the cases carefully, and cases are no longer limited to traditional crimes, with cases more complicated and evidence harder to assemble. More sophisticated defendants no longer passively accept the sloppy work being done by people handling these cases (办案人员)(referring to police/prosecutors/judges, as appropriate). It causes errors in: collection of evidence; forensics; determinations; incomplete compliance with legal procedures; inappropriate legal explanations; cases handled inappropriately. Moreover,the cases reflect problems in the way a significant proportion of those handling cases think about law: failure to correctly understand basic legal relationships such as fighting crime and protecting defendant’s rights; the relationship between public security, procuratorate, and courts; the relationship between handling criminal cases and resolving social conflicts, etc. All these things cause an increase in the number of petitioners. [Again, this his analysis reflecting his many years of experience and observation.]
3. Changes in the legal and social environment. These are another set of reasons for so many criminal petitioning cases.Judge Hu said, actually, the increase in criminal petitioning isn’t an entirely bad phenomenon. It is part of the process in improving the rule of law. The state respects human rights more and people are more aware of their rights and are increasingly daring to defend their rights.Moreover, societal public opinion has encouraged people after they have read in the media that mistaken/unjust cases have been corrected. Moreover, criminal punishment for the same offense has varied greatly, depending on whether it was during the “Strike Hard” or other campaigns, so when people look from today’s perspective at these cases, they feel it is unfair.
What to do about it?
Judges dealing with these cases need legal knowledge and political wisdom.
Respect petitioners. Petitioning is a basic human right. Judges should not think that petitioners are making trouble from nothing. In the #2 Circuit Court Judge Hu requires judges receiving petitioners to be patient in explaining the law. So treating petitioners’ litigation rights seriously is a way to deal with them
According to law, petitions should be submitted to the court that heard the case originally. The case filing or trial supervision departments of these courts should seriously review the cases, if there is an error, retry the case on the court’s own initiative. If the case lacks errors, the facts and law should be explained to the petitioning party. This is assuming responsibility to the facts, law, parties, and people.
The higher courts need to do a better job of supervising the lower courts. Courts need to balance respect for effective judgments with a party’s petitioning rights. Courts should determine whether the issue is procedural or substantive. Cases can’t be rushed–some can be dealt with quickly and others not. Higher courts should take on more difficult and complicated cases themselves.
Petitioning cases should be heard by three judge collegial panels, by reviewing the file and questioning persons if needed, questioning the party and if he (she) is in custody, summoning him for questioning, hearing the views of the party’s lawyer if one has been appointed and making contact with the party and his lawyer an important way to deal with these cases. Moreover, the lower courts should appoint more qualified and experienced people to handle criminal petitions, as it is often not currently the case.
As some of these cases relate to a specific time period, sometimes it is necessary to work with the higher or lower courts, or seek support from the government or Party to deal the matter. For example, some cases were correctly decided at the time, but the decision is no longer appropriate under current circumstances. Retrial is not possible but coordination is possible through the implementing authorities [presumably the jail] or procuratorate.
Connection with judicial reform
Presumably Judge Hu’s report and analysis are part of a project connected with larger judicial reform issues. See Article 36 of the 4th Five Year Court Reform Plan:
36. Reform the system for petitioning involving litigation.Improve mechanisms for the separation of petitioning and litigation work, clarifying the standards, scope and procedures for separating litigation and petitioning. Create finality mechanisms for petitioning involving litigation, standardizing the sequence for petitioning involving litigation in accordance with law. Establish mechanisms for steering and receiving petitioners at their source, and innovation networks for handling petitioning. Promote the establishment of a system for lawyer representation of in complaint appeals cases. Explore the establishment of mechanisms for lawyers to participate as third-parties, increasing the diversity of joined forces for resolving conflicts in petitioning related to litigation.
Effect of these comments
Presumably Judge Hu has sought to implement some of his own recommendations, such as requiring his own judges to do a better job receiving petitioners, and expecting the lower courts to do the same. It is likely that Judge Hu has made his views known in meetings with judges from Liaoning, Jilin, and Heilongjiang. So this appears to be one piece of evidence that the circuit courts are having an effect on the quality of justice delivered.
Since petitioners “vote with their feet,” it appears that one indicator would be a downturn in the number of petitioners with grievances about criminal cases in the Liaoning Courts. How his report and recommendations will be considered nationwide remains to be seen. As a member of the SPC’s judicial committee, his full report and more detailed recommendations are likely to have an impact on the thinking of SPC colleagues. As to the larger issues Judge Hu has raised, we are unlikely to see any immediate or short term impact because of the complex politics linked to those reforms.