Category Archives: Court Reform

Analysis of Supreme People’s Court’s Interim Report on the Pilot to Reorient the Four Levels of the Chinese Courts

President Zhou Qiang giving the report

On 30 August  2022,  Supreme People’s Court (SPC) President Zhou Qiang (President Zhou) delivered the SPC’s interim report to the National People’s Congress Standing Committee (NPCSC),  on the pilot to reorient the four levels of the Chinese courts (  四级法院审级职能定位改革试点情况的中期报告). The interim report is required by last year’s authorization by the NPCSC. That authorization was reported here (by the NPC Observer).  My November 2021 analysis of the background of the reform, including political leadership approval, and the impact of this reform on the SPC can be found here. At the time, I did not address the impact of the reform on the lower courts.

The NPCSC published comments by some of the members, including some former SPC judges (and justices).    A summary of the interim report along with related materials that the SPC released, which I surmise were attachments to President Zhou’s report, selected comments by NPCSC members, and my analysis follow below. I welcome any corrections or criticisms of the analysis.

Progress of the Pilot

Although the NPCSC delegated authority to the SPC for this two-year pilot program, the delegation was not a hands-off one.  President Zhou mentioned that the NPC NPC Supervisory and Judicial Affairs Committee and the NPCSC’s Legislative Affairs Commission heard numerous reports and engaged in supervision (perhaps better translated as oversight or monitoring). What that means in practice is not specified, but it is understood to be the usual practice. So perhaps the NPCSC delegation to the SPC or other entities to engage in pilot projects plus supervision can be better understood to be a “delegation plus a continuous monitoring process,” with the interim report stage a chance for the SPC to put its best face on the results so far, and a larger number of NPCSC members to provide comments.  I look forward to the NPC Observer or others looking into this aspect of the work of the NPCSC.

 Pilot Measures Issued By the SPC

The  SPC issued the above graphic to illustrate the number of documents released to implement the pilot reform.

The main ones listed are public:

  1. September 2021 regulations on readjusting jurisdiction in civil cases in the intermediate courts (excluding intellectual property, maritime, foreign-related, and Hong Kong, Macau, and Taiwan-related);;
  2. End November 2021 guiding opinion on the unified application of law;
  3. November 2021 Trial Supervision and Management Mechanism for the Four Types of Cases ;
  4. Late November 2021 SPC guidance to parties concerning applications for civil retrial cases;

Several of the more specific ones have not been made public.  As I wrote in my 2018 book chapter, there is no legal requirement for certain types of court guidance to be made public:

  1. February 2022 SPC requirements concerning cases that should be transferred to a higher level court for hearing and reporting of work in case transfer and retrial;
  2. November 2021 SPC work processes for civil and administrative retrial cases;
  3.  28 July 2022 SPC work procedures for reviewing applications for civil and administrative retrial;
  4. December 2021 requirements on statistical reporting for the pilot reforms;
  5. November 2021 work allocation for the reform.

Local courts also issued measures to implement the reforms, with the Shanghai Higher People’s Court announcing a kick-off meeting last fall. However, the measures mentioned in the kick-off meeting are not publicly available.

Impact on the SPC Itself

The impact of the reform on the SPC is more dramatic than I predicted in my November 2021 article.  A related question, not mentioned in President Zhou’s report, is the implications for the circuit courts.

Chart #1, 1 October 2020 to 30 June 2021, applications for administrative & civil retrial cases accepted by the SPC–15506 1 October 2021 to 30 May 2022 2275; Chart #2: The retrial cases accounting 63.93% of civil & administrative cases accepted by the SPC pre-reform, 19.36% afterward

The statistics released by the SPC do not reveal the relative proportion of administrative vs. civil retrial applications that the SPC received before and after the pilot reform.   According to my earlier research, the larger proportion of the retrial applications had been administrative cases,  heard primarily in the circuit courts, with many cases focusing on the amount of compensation given by local governments in real estate requisition cases.  These tend to be cases in which parties are not represented by counsel, although some circuit courts have determined that it is best to work with local justice bureaus to enable unrepresented parties (usually petitioners who go to the litigation service center) to have counsel. Most of my students who have interned in SPC circuit courts have spent time in the litigation service centers and accompanied judges who meet with petitioners.  That does not seem to be the case for students who have interned at SPC headquarters.

Among the materials released by the SPC is this flow chart illustrating the progress of an application for retrial to the SPC.  I surmise that it outlines the process in one of the internal documents mentioned above.

Flow chart for the progress of retrial application cases through the SPC

President Zhou introduced the work that the SPC had done because it was hearing far fewer retrial cases:

  1. Heard 625 retrial cases (civil and administrative);
  2. Concluded 2712 civil and administrative second instance cases;
  3. Issued 25 judicial interpretations and three batches of guiding cases;
  4. Held seven cross-disciplinary professional judges meetings, in which differences in views among different divisions in the SPC were resolved (as set out in these regulations); and
  5. Reviewed 162 local court guidance and 219 guidance cases, under the filing system mentioned here.

He did not mention the larger number of judicial policy documents that the SPC has issued, except in very general language, although it is in fact an important part of the reform.

President Zhou also did not mention the implications so far on the work of the circuit courts.  As I wrote earlier, most of the cases heard in the circuit courts have been administrative cases, with a much smaller number of appeals from the higher people’s courts.  I also mentioned then that circuit courts seek to guide and supervise the lower courts in their circuit through circuit guidance, typical cases (several volumes have been published by different circuits), and conferences.  Although the primary purpose of the circuit courts was to have been hearing cases involving cross-provincial interests, the circuit court reform has not thus far been so implemented. Judges assigned to the circuit xourts have found themselves busy with administrative retrial application case processing, feeling themselves to be “judicial migrant workers” (司法民工).

Impact on the lower courts

A relatively small number of cases had been pushed downwards to the lower courts and more cases had been raised to higher-level courts.  Among the cases that had been transferred to a higher level, “23.70% of the cases involve major national interests and social and public interests,” 33.96% of the cases are relatively new and complex within their jurisdictions, and 34.91% of the cases have guiding significance.  These cases involve issues such as the confirmation of data rights, unfair competition on the Internet, and the validity of education and training contracts under the “double reduction” policy.  The SPC has transferred some retrial cases to the higher people’s courts.

Higher people’s courts had actively sought the support of the organizational (Party organization组织) and establishment ( headcount control 编制) departments.

In the pilot areas,  higher and intermediate people’s courts have strengthened the guidance of lower-level courts through special training, typical cases, trial guidelines, etc. Basic-level people’s courts have sought to separate complex and simple cases and likely sought to promote the use of mediation to resolve cases.

President Zhou  admitted that there are issues with related policies, including:

  • unclear standards for determining “major cases;”
  • poor information sharing, coordination, harmonization of procedures between upper and lower level courts;
  • work assessment systems have not been adjusted to deal with the new caseload because of the reform;
  • filing fees have not been reformed.

Comments by NPCSC Delegates

Several of the NPCSC delegates are former SPC Justices, including Jiang Bixin and Jing Hanchao (also deputy secretary general of the Central Political Legal Committee).  Some of their comments included the following:

  • there are many judicial reforms, with some conflicts between them so research is needed to coordinate them better.  (This is a point I made when I spoke at the SPC in 2018);
  • the Civil Procedure Law and Administrative Litigation Law will need to be amended;
  • court fees need to be increased;
  • better coordination is needed to ensure sufficient headcount at the local level.

There was no transcript of the comments so we cannot know whether sharper comments were not reported.

Some thoughts about this judicial reform

This report and this reform encapsulate at least some of the complexities of reforming the courts.  Judicial reform is an enormously complicated project because the implementation of one reform and especially the partial implementation of a reform, particularly the crucial ones, have the ability to have a profound impact on linked and later reforms. The reforms relate to the state of the law as it is and to detailed measures intended to be piloted.  It is unclear whether the relatively small team of persons working at the SPC on judicial reform matters has the capacity to draft guidance in sufficient detail to ensure that the reforms implemented are those intended. It is unclear whether the team uses some of the project management and data collection tools that are often used to this end elsewhere in the world.

  1. So one aspect of the reform is the evolution of the SPC into a “supreme court with Chinese characteristics,”   the intent being for a significant part of the SPC’s work to focus on  “unifying the application of law”  through issuing judicial interpretations, quasi-binding guidance such as conference summaries (meeting minutes), judicial policy documents,  seeking to resolve differences of opinions on issues that cross divisional boundaries, etc., reviewing certain judicial review of arbitration cases, and hearing fewer, but more important cases, and fewer retrial cases.  That means that the lower courts, from the higher courts will need to be the ones to hear large numbers of cases.

2.  The second important aspect of the reform is reshaping the work of the lower courts,  to distinguish the work of different levels of the courts from one another, particularly to make appeals more important.  Many supporting measures are needed to make this a success. It appears that some supporting measures are weaker than they should be, and other infrastructure is only partially in place. This blogpost can only mention a few.  Moreover, It is unclear how much  “market input” the drafters solicited in the drafting process. As in anything, the devil is in the details.

a.  Regarding “supporting measures,” among the most crucial ones are the lower courts having sufficient personnel and financing (and preferably flexibility in adjusting both to deal with change).    One of the reforms in the 2015-19 Fourth Five-Year Judicial Reform Plan Outline was to reform the control of funding and personnel so that they would be controlled on the provincial level rather than locally.  This reform was approved by the political leadership.    Local court headcount is not controlled centrally, nor does the Ministry of Finance control court funding.   It seems for a number of complex bureaucratic reasons, discussed variously earlier on this blog, in a 2017 article by Tsinghua University Political Science Professor Yu Xiaohong, and in a 2021 article in the SPC journal People’s Justice (人民司法) on court funding by a senior SPC official, that these reforms were only partially successful. That is why pilot higher people’s courts actively sought out those in charge of headcount, to see to ensure that they could have enough judicial personnel to implement the reform properly.

Although President Zhou did not mention court financing directly, the court funding situation that was described in the 2021 article as grim (严峻) cannot have improved, with the financial crisis that local governments are facing with the drop in local government revenues and the cost of Covid-19 testing.

b. The report also shed light on the state of the legal infrastructure supporting the basic level courts. For example, judicial reforms have created the role of judges assistant, but their specific authority remains unclear and the career path to becoming a judge is unclear. As a consequence, there is a serious brain drain among experienced judicial assistants, as I wrote earlier, and as discussed in this recent article in People’s Justice.  Another issue frequently mentioned by local judges is the “one size fits all” judicial evaluation system, including performance indicators that penalize a judge whose judgments are appealed.

c.  For retrial cases, highly flexible standards in the law and judicial interpretations make it easy for a party to initiate a retrial application, but amending the Civil Procedure Law and Administrative Litigation Law are major projects, with little change expected in the very short term.

c. An additional issue mentioned by some of the judges involved in piloting this reform is problems with judicial training and legal education, although it seems unlikely that this ranks as highly as adequate funding, headcount, and evaluation. Judge Huang Xiangqing of the Shanghai Higher People’s Court commented that new joiners to the court system are unfamiliar with evidence rules, and on-the-job training is needed to get young court staff familiar with the handling of evidence. I have heard analogous comments from others in the court system.   Judicial training in the New Era further emphasizes ideological training (as I wrote earlier), but junior judges and the parties that appear before them may better benefit from consolidated instruction in evidence law and other basic judicial knowledge and skills.  More practical subjects and skills training are not favored as much at many Chinese law schools, because hiring and promotion tend to be based on publications.

I welcome further comments and corrections, especially from those in the pilot courts.

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Many thanks to an anonymous peer reviewer for providing detailed comments on several earlier drafts of this blogpost.

Rebuilding the Court Funding Mechanism After Recent Reforms

SPC list of winners of the Ram City Cup for judicial reform essays

This post is a lengthy summary/incomplete translation of an article entitled 省级统管后法院经费保障机制再造 (Reconstruction of the Court’s Funding Guarantee Mechanism after Provincial Administration)by Fan Lisi (范丽思), a judge of the Wuhou People’s Court, Chengdu, Sichuan Province. Judge Fan was one of the first prize winners in the 2020  “Ram City Cup” competition for articles on judicial reform, administered by the Supreme People’s Court (SPC)’s judicial reform office.  People’s Justice (人民司法) published her article in 2021. Many thanks to Guo Ran, a current Tufts student, and Tina Chen ( 陈雨茗), an Oxford undergraduate for assisting with the translation/summary. I have included some explanations in square brackets [].  I have omitted most of the charts/graphics.  I welcome corrections to the summary/abridged translation and comments.

Based on her review of data from multiple provinces/directly administered cities, the author shows that the reform of funding the courts at the provincial level (cited as one of the successes of the judicial reforms in several English language academic articles) has been a failure. The reforms make the local courts even more dependent on local financing. She explains why that happened. 

I surmise that 2022 will be an even more challenging year for court budgets in many areas, as provincial/local budgets are under greater stress because of testing for Covid-19, decreased income from land sales, and less tax revenue because of lockdown-related downturns in business activity. 

She looks at other court financing models abroad and discusses a topic I have rarely seen mentioned in the academic literature about the Chinese courts (certainly in English–I don’t claim to be as familiar with the Chinese academic literature)–separating the judicial and administrative functions. I have had discussions with several persons previously affiliated with the SPC on this issue.  She proposes that the SPC establish a finance committee and that local courts establish counterpart institutions. Drawing on her research on Chinese court funding and that of other jurisdictions, she proposes a new model.  I cannot claim any expertise on this and will not comment on the practicability of her proposal. 

Introduction

The role of the people’s courts in national governance has changed.  Judicial authority has transformed into a central power from a local power  [司法事权属性已由地方事权转变为中央事权]. The transformation of the courts’ functions requires a mechanism for guaranteeing funding that matches the operation of judicial power. The provincial unified administration reform in 2014 saw the beginning of the current funding guarantee mechanism reform. [This reform was part of the 4th Five-Year Judicial Reform Plan]. But after five years of pilot practice, the provincial unified administration has not achieved its established goals of “de-localization,” “de-administratization” [去行政化] and “balanced judicial supply power  (均衡司法供给力).”  It is necessary to reflect on the reasons for the failure of the provincial unified management reform, clarify the theoretical components [应然内涵] of the court funding guarantee mechanism, identify the situational variables affecting the choice of reform tools, and “reload “the reform toolbox. Based on provincial unified management, China should build a court funding guarantee mechanism that follows judicial principles [规律]  and financial management principles, so as to effectively solve the problem of financial resources for the operation of the judiciary and assist in constructing modern social governance in China based on the rule of law.

Number

Problems that the Reform aimed to resolve

Solution provided by the Reform

Underlying judicial value

1

Who is paying (the money)?

The source of funding is raised to the provincial level of administration, altering from local finance departments to provincial finance departments.

To allow the courts to gain independence economically from local governments, removing localized variants and guarantee judicial independence.

2

Who is responsible for the distribution and management of the money?

The main body of funding is raised to the provincial level. Funding used to be distributed and managed by local financial departments is now subject to provincial financial departments.

To eliminate regional differences within the same province, and to realize the standardization of judicial services through standardizing financing capacity of the courts.

3

How is the total amount of funding determined?

Fixed-base budget: The reform uses the total amount of funds before as the “base;” the base will only be raised but not reduced.

Institutionally secure the “guaranteed amount” of legal funding, overcome the problem of arbitrariness in determining the total amount of funding in the previous years, and establish a benign dynamic growth mechanism of funding

4

To whom is the power of reviewing budgets vested in:

Governmental budgeting department with limited power to review: provincial finance departments delegate the power to conduct initial review of budgets to provincial courts. They will then sum up the subordinate courts’ budgets and conduct initial review of their reasonableness and compliance. Then the provincial finance department will submit them among other departmental budgets to the provincial People’s Congress.

Develop the court’s function of funding management, make use of the higher court’s knowledge of the lower courts, and enable the higher courts to fully participate in the lower courts’ budget filing, review, and coordination processes

I.  Benchmarking review: Evaluating the practical effectiveness of provincial unified management

The provincial unified management of court funding attempts to centralize the administration of court funding at the provincial level. Cout funding was previously an obligation of local government on the same administrative level as the local court. The reform aims to break the previous local court fund management pattern, reshaping the relationship between courts, administrative agencies, and Party and government agencies, which has had an impact on the autonomy and fairness of the local courts.

To analyze the success of this reform, the author selected the 2019 and 2020 budget and final accounts data of 1,535 basic-level courts (data from 14 provincial-level jurisdictions: Tianjin, Jiangsu, Guangxi, Hunan, Jiangxi, Inner Mongolia, Guizhou, Hebei, Shaanxi, Shanghai, Guangdong, Beijing, Shanxi, Yunnan. She reviewed the following data:

  1. basic-level court department’s budget,
  2. final accounts public statement, and
  3. people’s courts’ financial statistics analysis system

and analyzed key indicators such as :

  1. source of funding,
  2. average cost of each case
  3. average public expenditure per case, and t
  4. growth rate of case-handling operational funds, etc. 

A. The reform has not eliminated local court dependence on  government at the same level

The study presented the following findings:

(1) Shifting the source of court funding has not completely freed the local courts from depending on local governments.

The current judicial reform centered on withdrawing court funding from the government-led horizontal model of bureaucracy and removing the function of allocating or transferring funds from governments on the same administrative level through institutional reforms, which in turn removes the possibility of the judiciaries colluding with governments on the same administrative level to solicit funding. After the transformation into provincial unified management, the judiciaries’ funding will mainly be composed of provincial finance; governments on the same administrative level will cease to allocate funds to the judiciary.

By examining the funding income structure of the sample courts in 2020, the study found that, out of 741 courts that have been reformed, 249 still relied on funding from governments on the same administrative level, which comprised 43.22% of the courts’ total funding.

In the case of some local courts in Shanxi and Hebei province, the percentage could even reach 87%.  Funding from government on the same administrative level compensates for the lack of funding for:

  1. labor costs;
  2. office administration;
  3. facilities procurement; and
  4. general maintenance,

Labor costs are the largest proportion, at 63.05%.

From the above data, it is clear that nearly 33.6% of local courts have not yet completely detached from local governments financially, even after the reform.

 B.  Raising the funding guarantee to the provincial level has not significantly improved unequal financial supply capacity

 Balanced judicial finance is the necessary condition for standardized judicial services. One of the objectives of the provincial unified management reform was to ensure that the public has equal access to judicial services of equivalent quality and quantity within a province, by arranging courts’ funds on a provincial level.

The equalization of financing provision capacity is a sensitive indicator. In order to obtain a concrete observation of this indicator, the author has selected “public expenditure per case” and “cost per case” to reflect, respectively, the ability to finance “administrative affairs” and “enforcement of courts’ decision”….

Suppose we reflect on the tools adopted by the provincial unified management plan. In that case, we could explore the problems in tool selection and application with the existing reform and establish useful precedents for a new funding guarantee mechanism.

C. The policy requirement of a guaranteed minimum funding does not necessarily produce a sustainable dynamic increase in the courts’ funds.

In “Framework Opinions on Several Issues of Judicial System Reform Pilot” (referred to as “Framework Opinions”)  issued by the Central Leadership in 2014, it was stated that after the implementation of the provincial unified management reform the total amount of funding must not decrease, however, this minimum requirement does not suggest a sustainable increase in funding. Among the sample courts, 711 courts experienced growth in the number of cases heard in 2018.

Through comparing and analyzing the growth rate of cases heard and the growth of overall funding in handling cases, it was found that in 66.67% of the courts the growth rate of overall case funding was lower than the growth rate of cases heard; among them, 55.13% of the courts even had a decrease in case funding when the number of cases heard had increased; the courts that been reformed had a comparative advantage in terms of the increase of funding in cases. Among the 237 courts that saw equivalent or higher growth in case funding than cases heard, there was almost a fifty-fifty division between reformed and unreformed courts. (See the figure below)

D. The power of provincial courts to manage funds continues to be marginalized.

Under the institutional framework of “One Government, One Committee and Two Courts”, [government, the supervision commission, the courts and procuratorate] judicial independence manifests in the division of labor rather than independent authority from the government.

However, a mode of leading and being led, managing and being managed is formed between the local courts and government on the same administrative level, through the mediation of the fiscal relationship. The provincial unified management reform hopes to rebalance the power constraints between the provincial court and governmental departments, through the practice of restoring an interactive relationship between the courts and government, by developing the courts’ own financial management capacity and transferring the power to manage funds from government to the courts.

But the four management models developed in the process of promoting the reform have been found to be problematic in their own respects: the direct management model (adopted by 57.15% of the reformed courts) tends to marginalize the managing power of provincial courts, and local courts will communicate directly with provincial fiscal departments; in the assisted-management model (adopted by 38.1% of the reformed courts), although the provincial courts are involved in the management process, their role is reduced to that of a megaphone, with no substantial power of their own; the model of entrusting municipal management of court funds does not achieve the reform objective of transferring the fund management power to the provincial courts; the trusteeship model, in which the provincial treasury delegates the daily management of funds to the provincial courts, is only an expedient measure to fill up the absence of the provincial government’s financial management capacity. It is also worth noting that only one province has adopted this model.

Therefore, it can be concluded that the provincial courts have not taken up the power of allocating funds as the reform expected, and have again ended up being marginalized in fund management.

II. real-world problems: dissecting the failure of provincial management reforms

Reason 1: lack of capacity to financially supply at the provincial level inhibits the local courts from becoming financially independent from local governments

The ideal plan, according to the provincial unified management reform is that the local courts should be funded only by the provincial treasury. This is a completely novel expenditure for the provincial budget and can only be financed through increased provincial revenue. However, a comparative analysis of the increase in the courts’ budget against the incremental revenue increase at the provincial level suggests that almost all provincial-level finances are unable to satisfy such a large increase in funding demand: Tianjin, Guizhou, Beijing, and 10 other regions have experienced a reduction in provincial-level revenues compared to the previous year, and it is simply impossible to spare funding for local courts when existing provincial needs remain difficult to satisfy.

Jiangxi, Yunnan, and Guangdong Province have less than 1.8 billion Yuan of increase in revenue to finance their own budgets, which is far less than the funding needs of local and provincial courts. Even in economically developed regions such as Shanghai and Beijing, budgets were further contracted compared to the previous year, with arranged courts’ budget revenue accounting for less than 2% of the provincial budget. The same lack of financial supply capacity can be observed. (See Table 2)

The lack of financial supply capacity on the provincial level has forced the courts to continue fundraising with the local governments. In the process of fundraising, the local courts will now have to communicate on the one hand with the provincial finance department for more funding, and on the other hand with the local government to compensate for the lack. Having to communicate simultaneously on two administrative levels increases the costs of fundraising for the courts. A further difficulty since the reform lies in the fact that, facing the funding applications from the local courts, the local government can decline their requests using the reform as a legitimate excuse, by saying that the courts have now “completed the provincial unified management reform”, increasing difficulties in fundraising, and potentially deepening local courts’ dependence on local governments.

Reason 2:

The reform asked for formal unified management on the provincial level, while failing to bring about substantial unity in expenses, resulting in the continued imbalance of financial supply capacity within provinces. Firstly, provincial unified management suggests standardization, however, in reality, local standard in labor and public funds still persists, while the funding for case-handling remains insufficiently supplemented. Secondly, the reform also demands unity in expenses, i.e. the amount of funding from provincial expenditure to the local courts should be standardized. But the reality is that the provincial finance department simply required local governments to report the total funding allocated to local courts before the reform, and use this figure as a criterion to budget for local courts for the year. Some provinces with limited capacity to guarantee funding even require the local finance departments to transfer this amount upward, before the provincial finance department then transfers the funding to the courts, so as to achieve formal unified management. Provincial finances in this process did not take effective means to coordinate and adjust the funding budgets to balance the substantial expenditure, and the status quo of having huge gaps in financial capacity among the courts within provinces has not been significantly improved.

Reason 3:

There is a tension between the self-expansionary nature of court funding and the principle of necessity, which prevented court funding from increasing alongside the expansion in courts’ capacity to handle cases. The idea of public finance in principal-agent theory conceptualizes the government as a “trust fund” established to serve the public interest of society, whilst recognizing that the government’s natural tendency of self-expansion may create excessive demand for financial power. Therefore, in order to curb the government’s urge to abuse public finance, budgeting should follow the principle of necessity.

The courts, however, while budgeting for their own expenditures, tend to be self-expansionary: justice is the highest normative value of judicial activities; when justice and economic efficiency are in tension, cost-effectiveness has to come second. Fair and just judicial activities must be backed up by adequate and stable financial resources. However, when reviewing court budgets, finance departments usually follow the principle of necessity and reject the demands to increase budgets alongside the expansion of judicial activities, while the courts themselves have no effective means to reject this practice.

Reason 4: The absence of legislation and policies leads to the lack of legitimacy in the expansion of courts’ power to manage funds

It was clearly stated in “Framework Opinions” that it aims at “the establishment of a provincial unified management mechanism”, i.e. the department responsible for managing courts’ funding is the provincial finance department. The revised budget law in 2018 defines the budget as “public actions involving revenue and expenditure”. The statute did not specify for the normative standard of judicial actions involving revenue and expenditure, which suggests that the state has recognized, on a legislative and policy level, the subordinate status of the court budget in relation to the total public budget. The relationship between the finance department and the courts constitutes a de facto managing-and-managed relationship. Although having provincial courts participating in the management of funds allows for the decision-makers to make informed decisions, the whole process is made difficult due to the lack of legitimacy in the expansion of power.

III. Theoretical reflection on the reform’s “toolbox”

A. The normative components and theoretical toolbox of the court funding guarantee mechanism

Before introducing a theory to transform the court funding guarantee mechanism, it is necessary to clarify its normative outlook. The author examined changes in the PRC’s court funding guarantee system since 1949 and its counterparts in Japan, the U.K., and the United States. She concluded that the court funding guarantee mechanism must determine four core issues in varying political and economic environments: the source of funding, the court funding administrator, the method of ascertaining court budgets, and the authority to review court budgets.

1. The source of funding, or who pays the money

Judicial services maintain social order and justice through the resolution of specific disputes. It is both a private product that protects the legal interests of individuals and a public product that provides legal services to the state. Therefore, when ascertaining the source of funding, there are two available sources, namely, the state and the litigating parties. In cases where the state provides court funding, two sources are available–central government finance and local government finance–depending on the financial condition of each government.

Due to the centralized nature of unitary states, central government finance tends to be the funding provider in unitary states such as Japan and the United Kingdom. On the other hand, the federal countries tend to fund the court through local government finance. For example, the U.S. state courts are financed by state funds. Some other courts are also funded by the litigating parties. The British civil courts, for example, are funded by the case acceptance fee. Although China is a unitary state, Chinese local courts have historically been funded by local government finance because of the country’s vast territory, significant regional differences, and limited central financial resources.

2. The court funding administrator, or who manages and distributes funding

Generally speaking, whoever pays for the funds naturally controls the allocation and management of the funds, so the funding provider is usually the guarantor of court funding. The central government finance is guaranteed by the central government, and the local government finance is guaranteed by local governments. This one-to-one correspondence is particularly prominent during the historical variations of China’s court funding mechanism.

To prevent undue government interference in judicial fairness, many countries have enacted laws or other institutional arrangements that grant the court funding administrator a high degree of independence from the government that provides court funding. For example, in Japan, the Supreme Court is mainly responsible for funding management; the United Kingdom and the United States have set up an independent judicial administrative department for this purpose. Depending on the funding provider and its dynamic interaction with the court, the author identified four main administrators of court funding–the central government, the local government, the Department of Judicial Administration, and the courts.

3. The method of ascertaining court budgets, or how to determine the total amount of funding

Figuring out the quantity of budgetary funds helps the judiciary to secure the resources necessary for it. To ascertain court budgets, there are three methods to choose from: “fixed amount method”, “fixed percentage method”, and “incremental budget increase method”. The four periods of China’s funding guarantee model all rely on the fixed amount method or its modifications, as it is operationally the easiest; the fixed percentage method is more often used in Latin American countries. However, it is not accepted by the mainstream because one cannot quantitatively test and justify the set percentage; the incremental budget increase method, which is the most responsive to the needs of the courts, is used in the United States and the United Kingdom.

4. The authority to review court budgets, or who has the power to review and revise the court budget during budget declaration and approval

Depending on the level of detail that the executive branch reviews court budgets, there are three types of budget review authority: “government departmental review”, “independent review”, and “government departmental review with limited power”. In the government departmental review model, the court budget is a sub-system of the government budget. The government finance department has the strongest scrutiny and involvement in the courts’ budget. In the independent review model, the courts are relatively independent, and the finance department has the weakest scrutiny of the court budgets. The court budget is filed, reviewed, and revised within the court system or by an independent judicial funding management authority. The government has no substantive right to review or revise the court budgets. In the “government departmental review with limited power” model, the court has a say and could participate in the budget review process, but the ultimate review power still lies within the finance department. The model is a compromise between the first two models, but is essentially more inclined to the government departmental review model.

Summary: By comparing the application of the four major types of guarantee tools during various reform periods and in different political entities, the author concluded that the choice of reform tools in the “toolbox” is closely related to the national financial situation, political institutions and the role and function of judicial power in society. The reform plan of court funding guarantee should fully consider the influence of situational variables including political, economic and judicial power. It should also accurately identify the role and function of courts in the national governance structure. To fill the reform “toolbox,” it should choose the appropriate combination of the above 13 tools.

B. Reflections on the problems with the existing reform

Having clarified the reform’s normative outlook and theoretical toolbox, it is necessary to reflect on the tools adopted by the provincial unified management plan. In this way, we could explore the problems in tool selection and application with the existing reform and set up useful precedents for a new funding guarantee mechanism.

1. Confusions in tool selection: the unclear boundary between judicial authority and administrative authority in the judiciary

The unclear boundary between judicial authority and administrative authority in the judiciary has led to the inappropriate mixing of reform tools for judicial funding and judicial administrative funding. Judicial authority refers to the court’s authority to try and legal supervision on behalf of the state, while the administrative authority in the judiciary refers to the power to manage personnel, property, technical equipment and other administrative affairs of the judiciary for the purpose of supporting judicial authority.

The two kinds of authority are essentially different in forms, functions, and substantive contents. The operation of judicial authority should follow the judicial principles and stress judicial independence; the administrative authority in the judiciary should follow administrative principles and stress subordination within the administrative hierarchy. However, in the provincial unified management reform, the two authorities have been confused as the same court functions. The funds for case handling and court facilities, which represent the operating costs of judicial power, and the personnel and public expenditure funds, which represent the operating costs of administrative affairs, are placed in the same guarantee model. The choice of various reform tools has failed to differentiate between the operation of the two powers.

2. Reflection on the choice of tools: the court’s role and function remain unclear, resulting in the deviation of tool choices from the reform’s values

Historical changes in the court’s funding mechanism have shown a continued evolution of the court’s functions. The court’s role in society and the state determines the Party’s policy arrangement of court funding: if the court serves to resolve specific cases and disputes within its jurisdiction, then the court exercises local affairs; as the judicial responsibility should match with the court’s power of finance, the court should be financed by local government. If the court serves to promote the rule of law in social governance at the national level, then the court should be financed by the central government.

Since the founding of the PRC, the court’s role has shifted from a means to an end to an end in itself; from “a political means to realize revolutionary goals” to “a manifestation of value in improving the political system.” The court’s function has been elevated to the level of “providing the foundation of the rule of law for national development.

Accordingly, the court should be funded by the central government. The provincial unified management plan has been aware of the public service provision function of judicial products. It has also established values  such as“de-localization” and “ameliorating the regional divergence in financial supply capability.” Nevertheless, since it still viewed the court’s main role as the settler of specific disputes, the source, and management of court funding remained on a provincial level after the reform, which partially contradicted the reform’s goal of de-localization.

3. Reflection on the application of tools: the insufficiency of financial resources hindered the intended application of tools

The foremost issue of funding reform is to figure out “where the money comes from.” As the leading reformer, the court did not control economic resources. Therefore, when faced with significant financial supply shortages on a provincial level, the reformers sought to avoid the risk of failed reforms. They came up with a compromised but effective method: the courts on each administrative level cooperated with local finances to determine a base amount of funding, which must be no less than the pre-reform amount. The local governments on the same administrative level would then transfer the funding to the provincial treasury, which would then distribute funding to local courts through transfer payments.

This process formally satisfies the requirements of provincial unified management and that the court funding remains no less that the current level. It also seems to push forward the reform. However, the local governments on the same administrative level remained deftly as the actual source of funding. The provincial courts were deprived of the possibility to coordinate the arrangement of provincial funds. The end result of the reform completely deviated from its original intention of shifting the main body of funding guarantee up to the provincial level.

4. Reflection on the implementation of tools: insufficient political resources leads to the lack of internal motivation to enact and push forward the reform tools

The court funding guarantee mechanism reform seems to be a reform within the judiciary. However, because China’s court funding system is decentralized and deeply intertwined with politics, the reform would not only involve a reconfiguration of legal institutions and their respective functions. It would also require adjustments to China’s contemporary legal principles. In practice, both the local financial departments and the provincial financial departments held a passively cooperative attitude toward the reform initiatives, resulting in the initiatives’ weak implementation nationwide compared with other reforms of the judicial system.

The court funding guarantee mechanism reform seems to be a reform within the judiciary. However, because China’s court funding system is decentralized and deeply intertwined with politics, the reform would not only involve a reconfiguration of legal institutions and their respective functions. It would also require adjustments to China’s contemporary legal principles. In practice, both the local financial departments and the provincial financial departments held a passively cooperative attitude toward the reform initiatives, resulting in the initiatives’ weak implementation nationwide compared with other reforms of the judicial system.

 IV. Tool Re-selection: the remaking of the court guarantee mechanism around “separation of the judicial and administrative authorities”

Having reflected on the reform toolbox, the author concluded that the new funding guarantee mechanism should abide by the principle of “separation of the judicial and administrative authorities.” Accordingly, it should apply different funding guarantee mechanisms for judicial and administrative fundings in the judiciary. It should also re-select the source of funding, the funding guarantee administrator, and the reviewer of judicial funding budgets. The reform should also establish a dynamic growth mechanism for court funding centered on the average cost per case.

A. A general change of plan: from single-center provincial unified management to a unified management model based on the judicial-administrative separation

Xi Jinping pointed out that “the judicial power is fundamentally a central governmental affair.” According to the principle that the administrative power should match with the financial expediture responsibility [根据事权与财政支出责任匹配的原则], the main body in charge of judicial expenditure should be the central government. The judicial funding should thus be included in the central government budget and managed by the central government management mechanism yet to be established.

On the other hand, as the judicial administration includes judicial personnel, property, legal infrastructure construction and maintenance, and party and political-administrative affairs, it manifests interactions between the local courts and governments. Compared with judicial power, judicial administrative power demonstrates a clear local feature. Therefore, it should continue with the provincial unified management model, with its funding mainly provided by provincial finance and supplemented by the transfer payment from a national and provincial level.

B. Changing the source of judicial funding: establishing a special fund for judicial activities to guarantee stable funding

The central government finance should collect the litigation fee revenue from all courts nationwide and set up a special fund for judicial expense for case-handling. It should also establish five basic rules to fully implement the “separation of revenue and expenditure” requirement – unified revenue collection and expenditure, earmarking, limitation on carryover and balance surplus, managing surplus/shortage, and auditing and supervision – which would, in principle, prohibit mixing judicial funds with administrative funds. In this way, it provides a stable source of revenue for the central finance to guarantee court case-handling expenditure:

Firstly, litigation fees are capital costs charged by the courts in providing judicial products and services to the litigating parties. Its main purpose is to compensate for the material costs of service provision. Therefore, the use of litigation fee revenue to compensate for the cost of case-handling is justified and reasonable. Secondly, the analysis of the sample courts’ financial data shows that the total litigation fee revenue in 2019 was 27,830 billion Yuan, and the total expenditure on case handling and equipment was 22.266 billion yuan. The litigation fees exceed the court’s case-handling expenditure by 0.25 times, so it is realistic to compensate the case-handling cost with the litigation fee revenue.

In addition, it is necessary to clarify that the use of litigation fee income as a source of financial guarantee for central finance does not violate the principle of “separation of revenue and expediture.” Nor does it mean a rollback to the “revenue generation era” at the cost of litigating parties.

Although the litigation fee is collected by the court, it goes directly into the central treasury. The central treasury is responsible for both the management and expediture of litigation fees after collection, not the courts themselves. This solution is thus in line with the principle of “separation of revenue and expenditure.”

Additionally, through reasonable institutional arrangements, the funding distribution is not linked to the local courts’ amounts of litigation fee revenue. The courts at all levels thus lose the original motive to increase allocated funds by generating more litigation fee revenues.

C. Reforming the court funding administrator: setting up an independent professional institution responsible for the management and allocation of funds.

The Supreme People’s Court should set up a judicial fund management committee. The committee should consist of professionals in charge of managing the judicial funds, which should include financial budget management experts, personnel assigned by the Ministry of Finance, and audit experts. 

Specifically, the committee should: communicate on behalf of the Supreme People’s Court with the central finance department and the National People’s Congress and its Standing Committee; collaborate with the Ministry of Finance to design a set of regulations on judicial fund management and budget filing; be responsible for the budget collection and review of lower courts; be responsible for the budget declaration and responding the questioning of higher administrative institutions; assume internal supervision responsibilities; establish a special inspection system that regularly monitors the exercise of judicial funding.

The provincial courts should set up funding management committees that consist of budgeting, auditing, accounting and other professionals as well as the personnel appointed from the provincial finance departments. The committee should be specifically responsible for communicating with the funding management committee of the Supreme People’s Court, managing and allocating the judicial funds below the provincial level, communicating with the provincial finances, and managing and allocating the judicial administrative funds below the provincial level.

D. Changing the method of determining judicial funding budget: establishing a dynamic budget adjustment mechanism around the average cost per case.

The early stage of the reform: the average cost per case varies from place to place; some courts’ case-handling expenses are intertwined with public expediture of varying amounts; the court financial personnel varies in their professionality; and some financial data lack credibility. To solve the problems, the total amount of funding can be temporarily determined as the sum of the previous year’s case-handling and equipment expenses. The funding can float with the growth or decline in the number of cases handled in the next years.

Trial run phase: Strictly enforce the absolute one-way barrier [单向绝对壁垒]  between judicial and administrative funding; constructing IT infrastructure [信息化建设] under the supervision of the Supreme People’s Court, so that the quality control of data information could improve.

Formal operation phase: After 3 to 5 years trial run, the judicial funding should have basically eliminated administrative funding, and the quality of data should have been effectively guaranteed. Then, the government would collect historical funding statistics and local development indicators and determine key elements such as “the average cost per case,” “the proportion of case categories,” “case growth expectation,” and “local economic development indicators.” In this way, the government could construct a system of indicators and a dynamic funding adjustment mechanism around the average cost per case.

E.  Inheriting and improving the budgetary framework [预算权归属工作]: establishing a judicial budget system led by the judicial fund management committee.

As a legal basis to modify the court budget status in the existing budgetary model is lacking, the court funding reform must be restrained by the governmental sector budget model. Both judicial and administrative funding should also follow the basic principles in the current budget law. However, the Supreme People’s Court judicial funding management committee and provincial court judicial funding management committees could participate in the design, review, and auditing of budget rules. The committees could set up institutional arrangements such as restricting the finance departments’ right to delete or edit court budgets during the review process. In this way, it could effectively exclude undue interference from the administrative branch.

Conclusion

The funding guarantee proposal based on “the separation of judicial and administrative funding” is a problem-oriented one. It also reflects the strategies adopted by the provincial unified management reform. By transferring the litigation fee to the newly established judicial funds in the central government, the proposal could provide sufficient and stable financial resources for the centralized provision of judicial funding; by decoupling judicial funding from provincial finance, the proposal could reduce the provincial financial burden and effectively alleviate funding shortages; by establishing a dynamic adjustment mechanism for judicial funding, which centers around the average cost per case, the proposal could effectively balance the judicial financial supply capacity nationwide; by establishing judicial funding management committees and other professional organizations to participate in the funding management, the proposal could provide an institutional basis for empowering the courts. The funding guarantee model attempts to solve various problems faced by the current reform from the real-world application perspective and thus has a strong practical value.

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

Four Types of Cases

By Susan Finder and Straton Papagianneas

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

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

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

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

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

1. Origin of the “Four Types” of Cases

a. The 2015 Opinion

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

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

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

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

b.  Subsequent documents 

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

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

2. New 2021 Guiding Opinion

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

Definition and scope

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

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

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

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

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

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

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

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

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

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

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

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

Identification Mechanism, Handling. and Supervision

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

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

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

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

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

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

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

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

Concluding comments

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

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

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

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

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

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

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

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

 

 

 

 

 

Why I Research China’s Supreme People’s Court

I was honored to be invited by the New York University School of Law’s U.S. Asia Law Institute to contribute a short essay to their Perspectives blog, entitled Why I Research China’s Supreme People’s Court

 Many thanks to those involved in the entire process, including those who commented on earlier drafts!

Happy Niu 🐂Year!

 

 

 

 

 

 

 

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;
  • the issuance, for the first time, of reports on the judicial review of arbitration in 2019 and judicial assistance in civil and commercial matters between the Mainland and Hong Kong.  The full text of the two reports has not yet been released to the public, so I surmise that they will be released during the NPC meeting;
  • In the area of criminal law, likely the effective use of criminal proceedings in the battle against Covid-19;
  • successes in the saohei (organized crime) campaign;
  • successes in the area of environmental law, such as the recent signing of a framework agreement between the SPC and the leading small group on the protection of the Yellow River and the June, 2020 policy document on providing judicial services and guarantees to the protection and high quality development of the Yellow River;
  • furthering of socialist core values, such as the guiding opinion issued on 18 February on integrating those values into judgments (最高人民法院印发《关于深入推进社会主义核心价值观融入裁判文书释法说理的指导意见) and
  • 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.

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The SPC New Year’s greetings are ©the SPC, found in this short video 

New Supreme People’s Court guidance on how Chinese judges consider cases

photo of professional judges’ meeting in a Qingdao area court

Among the many reforms set out in mentioned in the February, 2019  Supreme People’s Court ‘s (SPC’s) fifth judicial reform plan outline is improving the mechanism of the Professional Judges Meeting, about which I have previously written.   Earlier this month (January, 2021), the SPC issued guidance on professional/specialized judges meetings (I have also translated it previously as specialized judges meetings) , entitled Guiding Opinion on Improving the Work System of Professional Judges Meetings (Professional Judges Meetings Guiding Opinion or Guiding Opinion),  (关于完善人民法院专业法官会议工作机制的指导意见), superseding 2018 guidance on the same topic. The earlier guidance had the title of Guiding Opinions on Improving the Working Mechanism for Presiding Judges’ Meetings of People’s Court (For Trial Implementation).  The meetings are intended to give single judges or a collegial panel considering a case additional thoughts from colleagues, when a case is “complicated,” “difficult,”, or the collegial panel cannot agree among themselves.  

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. 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)

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 mentioned several 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.

Comments

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.

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Many thanks to those who participated in the survey and also to those who commented on an earlier draft of this blogpost.  

Supreme People’s Court’s new guidance on similar case search

Screenshot 2020-07-27 at 8.49.14 PMOn 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)

  1. 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;
  2. Relevant judicial principles are unclear or conflicting;
  3. A court president or division head requires it under his or her supervision authority;
  4. 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:

  1.  SPC guiding cases;
  2. SPC typical (model) cases (典型案例) and judgments or rulings of the SPC;
  3.  Reference cases issued by provincial-level higher people’s courts  and decisions by those courts;
  4.  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).

Concluding Comments

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.

 

Supreme People’s Court’s Bench Memoranda?

Screenshot 2020-07-17 at 2.05.58 PM
Trial report and criminal judgment, from a Shantou district court

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.

Concluding comments

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.

Supreme People’s Court’s New Vision for the Chinese courts

Screenshot 2020-05-02 at 6.35.07 PM
Publicity related to the document analyzed below

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.

Political correctness

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.

Party leadership

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);
  • strictly implementing 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) (mentioned here);
  • 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.

Practically oriented

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.

Judicial Reform

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.

Technology

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.

Take-aways?

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?

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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.”

Educating Chinese Judges for New Challenges in the New Era

National Judges' College
National Judges’ College

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 provincial branches 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 training plan

The training plan is linked to the 5th Five Year Judicial Reform Plan Outline, the Communist Party Central Committee’s five year training plan for national cadres, a special document for outstanding young cadres (关于适应新时代要求大力发现培养选拔优秀年轻干部的意见), the Court’s regulations on judicial training (to be amended),  as well the Court’s 2013 policy document on creating a new judicial team (队伍) in the new situation. Team (队伍 (or work team) derives from “classical” Party terminology (as Stanley Lubman highlighted in a 2014 article)).

The plan does not incorporate training for foreign judges, which the NJC delivers to judges from Belt & Road Initiative jurisdictions and other countries.

Content

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  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:

  1. 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.
  2. 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);
  3. 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.
  4.  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.
  5.  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 “Fengqiao Experience“; and sweeping black and eliminating evil cases.
  6. Discussion courses: Criminal, civil, and administrative law courses.
  7. 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.

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

 

Screenshot 2020-01-17 at 12.11.48 PM

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

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

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

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

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

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

The mechanism

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

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

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

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

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

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

Some preliminary thoughts

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

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

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

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

SPC Updates its Guidance on Judicial (Adjudication) Committees

2016 meeting of SPC judicial committee, to which NPC, CPCC representatives, and certain experts were invited

On 22 September the Supreme People’s Court (SPC) updated its guidance 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.

 

Signals in the 2019 Supreme People’s Court work report to the NPC

Screenshot 2019-04-19 at 8.49.37 AMI 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.

This report is both different from and similar to previous reports. The major difference is linked to the 2019 Central Political-Legal Work Conference (at which Xi Jinping set out in his speech (重要讲话) his view of the New Era for political-legal work(新时代政法各项工作) and the accompanying Party regulations on Political-Legal Work.  As I explain below, the report is linked to other recent Party regulations, such as the Regulations on Requesting Instructions and Reporting on Major Matters (中国共产党重大事项请示报告条例)and Regulations on the Work of Selecting and Appointing Party and Government Cadres (党政领导干部选拔任用工作条例). Although the Regulations on Party Groups were only recently issued (15 April), Zhou Qiang must have been aware of their content when drafting his report. It is also likely that he was aware of the Regulations on the Evaluation of the Work of Party and Government Leading Cadres (党政领导干部考核工作条例), issued on 21 April. As I have written before on this blog, the SPC Court President’s work report must be harmonized with the latest stance on political-legal issues.

What is different?

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 even within 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?

Screenshot 2019-04-22 at 10.48.42 AM
graphic from the SPC English language website

Shining a light on Chinese judicial transparency

photo-download
flashlight in the dark

I last wrote on judicial transparency in December (2018), giving a quick analysis of the Supreme People’s Court (SPC)’s latest transparency policy. Two quick updates on this topic:

  1. The Fifth Judicial Reform Plan Outline (Opinions on Deepening the Reform of the Judicial System with Comprehensive Integrated Reforms – Outline of the Fifth Five-Year Reform Program of the People’s Courts (2019-2023) lists as one of the overall goals improving judicial transparency:

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.

The transparency developments highlighted in the Fifth Judicial Reform Plan Outline will be guided by the policy document Supreme People’s Court’s 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)) that I wrote about in December.

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.

 

What does China’s Judges Law draft mean?

Screenshot 2019-01-25 at 11.47.56 AM
21 January China Law Society organized discussion of Judges Law draft (note disproportionately few women)

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).

Chapter I: General Provisions

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).

Chapter II: Judges’ duties, obligations and rights

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.

Chapter III: Requirements and Selection of Judges

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.

Chapter IV: Appointment and Removal of Judges

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.

Chapter V: Management of Judges

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. 

Chapter VI: Evaluation, Reward and Punishment of Judges

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.

Chapter VII: Professional assurances

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.

What does the Supreme People’s Court’s new judicial transparency policy mean?

62bc75491cff95d15b4742e0c32268d9In 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.

Why?

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.

IMG_4136  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 (research done 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:

  1. Basic information about the court
  2. Enforcement;
  3. Litigation Services;
  4. Judicial reform;
  5. Judicial administration;
  6. International judicial exchanges and cooperation; and
  7. “Team construction” (队伍建设)

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);
  • Technical standards.

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.
  1. “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.

Other issues

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.

What significance does China’s updated court law have?

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main premises of the Shenzhen intermediate court

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

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

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

General Provisions

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

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

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

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

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

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

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

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

Organization (set up and authority) of the courts

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

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

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

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

Article 18 incorporates the guiding case system into the law.

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

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

Trial Organization

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

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

Court Personnel

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

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

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

Safeguards for the courts’ exercise of authority

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

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

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

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

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

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

Drafting process

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

Judicial reform post-19th Party Congress

 

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Judge Jiang speaking at an academic conference

 

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

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

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

Background for these further reforms

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

Eleven further reforms & some comments

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

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

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

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

 

 

 

 

Supreme People’s Court gears up for 19th Party Congress

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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.

 

 

China’s draft court law

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Screenshot of trial in the Haidian district court

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

Drafting process

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

General Provisions

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

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

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

Organization of the courts

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

Article 14 incorporates the guiding case system into the draft.

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

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

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

Trial Organization

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

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

Court Personnel

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

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

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

Safeguards for the courts’ exercise of authority

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

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

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

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

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

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

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

Etc.

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