Supreme People’s Court wields the Criminal Law “Big Stick” in the Anti-Coronavirus Battle

Screenshot 2020-02-12 at 4.28.12 PM

Press conference at the Central-Political Legal Commission announcing the Opinions

As this blog has often commented, the Supreme People’s Court (SPC) must serve the greater situation and deal with practical legal issues, so that the SPC itself and its senior leadership are correct, politically and professionally. One of those ways is by providing properly calibrated guidance to subordinates at the SPC, the lower courts and other related authorities that provide appropriate political signals.  Some guidance is politically more important than others. In recent days (early February 2020), the SPC has done so through the following documents:

This blogpost will give a quick introduction to the first document.  Its importance can be seen from the photo above, of the press conference at the Central Political-Legal Commission on 10 February, at which the Punishing Crimes and Violations of Obstruction Opinions was released and explained to select members of the press. That document was issued with the participation of the Commission on Comprehensive Governance of the Country by Law (Comprehensive Governance Commission, further explained here), Party Central Political-Legal Committee, SPC, Supreme People’s Procuratorate (SPP), Ministry of Public Security (MPS), and Ministry of Justice (MOJ). Fu Zhenghua, Minister of Justice and deputy head of the Comprehensive Governance Commission spoke first. Representatives from the other institutions also spoke.

The National Health Commission, SPC, SPP, and MPS issued the second document.

Both of them guide those in the criminal justice system to properly wield the “Big Stick” of the criminal law (and related administrative offenses) in the anti-coronavirus battle. The first document sends signals to the political leadership that the political-legal institutions are doing their part to fulfill the objectives that General Secretary Xi Jinping set in his 3 February speech

It is necessary to maintain a high-pressure situation, severely crackdown on illegal and criminal activities that disrupt social order, such as using the epidemic to drive up prices, hoarding, and looting, and severely crack down on the production and sale of counterfeit drugs, medical equipment, and medical and health materials. It is necessary to pay close attention to and resolve promptly all kinds of emerging problems, and to prevent all kinds of contradictions from overlapping and forming a chain reaction. (要保持严打高压态势,依法严厉打击利用疫情哄抬物价、囤积居奇、趁火打劫等扰乱社会秩序的违法犯罪行为,严厉打击制售假劣药品、医疗器械、医用卫生材料等违法犯罪行为。对各种苗头性问题,要密切关注、及时化解,严防各类矛盾交织叠加、形成连锁反应。)

What these documents are

The Punishing Crimes and Violations of Obstruction Opinions and the Ensuring Positive Medical Order are intended to provide guidance on certain violations of the criminal law and other related administrative offenses.  They do not create new legal rules but signal to the lower criminal justice institutions how the relevant criminal (and public security administration penalty) laws should be applied in the politically sensitive anti-coronavirus battle.  As a technical matter, both documents are classified as judicial document/judicial regulatory documents /judicial normative documents/judicial policy documents (司法文件, 司法规范性文件, 司法指导性文件, 司法正常性文件)(which I have written about previously).

As I have mentioned before, the SPC editors of a collection of those documents commented that “although judicial guidance documents are not judicial interpretations and cannot be cited in a court judgment document as the basis of a judgment, it is generally recognized that they have an important guiding impact on the trial and enforcement work of the courts at every level.” Titles included in the collection include “Opinions” (意见), “Decisions” (决定), Summaries” (纪要), “Notifications” (通知) Speeches (讲话), etc..

Some local high courts are starting to issue complimentary local guidance, with more detailed provisions, with the Jiangsu Higher People’s Court one of the early movers.

Section 1

The document is divided into several sections.  The first one, analogous to the opinion I analyzed recently, gives the political background, calling for the raising of the readers’ political stance, the strengthening of their “four consciousnesses,” the upholding of “four self-confidences,” and the implementation of the spirit of General Secretary Xi Jinping’s important instructions and Party central policies and arrangements.

Section 2

The second section of the Punishing Crimes and Violations of Obstruction Opinions (which appears to have been primarily drafted by the SPC, judging by the document reference 法发〔2020〕7号, indicating it is from the SPC), is the substantive part of the document. It is further divided into 10 subsections, nine of which describes a particular type of crime that is to be strictly punished according to law. They include:

  • crimes of resisting epidemic prevention and control measures; violence against medical personnel,
  • making or selling fake protective goods, supplies, or medicines;
  • fabricating or spreading rumors etc.

The first nine subsections describe one or more illegal acts that may occur. One example is subsection three, on the production or sale of shoddy prevention and protection goods or supplies or the production or sale of fake or shoddy medicines used in preventing the coronavirus. The Opinions state that where the requirements of the Criminal Law are met, the act should be punished as the crimes of production and sale of shoddy goods or medicines.  So it is giving prosecutors and judges a steer on how the Criminal Law should be applied but does not in itself create new law.

Subsection 10 gives guidance on how the law is to be applied. If the acts listed in subsections 1-9 do not constitute a crime (based on existing criteria), the public security authorities are to impose public security administrative punishments under the Public Security Administration Penalties Law.  The Opinions point to the following provisions:

false information disrupting public order; disrupting order at a unit or public venue; provocation; refusing to implement decisions and orders in an emergency; obstructing the performance of public affairs; breaking through police lines or instruments; striking others; intentional harm, insulting others, fraud, illegally digging or gathering gravel near railways, stealing or destroying public facilities near roads, destroying railway facilities and equipment, intentionally destroying property, looting public or property, and so forth; or the relevant departments are to give administrative punishments.

Importantly, when crimes or violations of the Public Security Administration Penalties Law occur during the period of epidemic prevention and control, it should be considered as an aggravating factor )(for punishment purposes). The stated purpose is to deter bad conduct  “to lawfully embody the requirements of the crackdown policy, to forcefully punish and deter violations and crimes, to preserve the authority of the law, to preserve social order, and to preserve the security of the people’s lives and their physical health.”

For those in the criminal justice charged with enforcing these provisions, they need to refer to relevant judicial interpretations and other guidance (or in the case of public security officials, their regulations and other relevant documents)–the Opinions do not set out the elements of the relevant crimes.

Since this document was issued, some of the professional Wechat accounts on criminal law issues have published authoritative commentary pointing out practical problems with the legislation (law and judicial interpretations). The deputy head of the SPP’s research office published this (on the crime of obstructing contagious disease efforts), while a local procurator (nationally recognized) wrote this on several of the crimes (including refusal to comply with quarantine or leaving quarantine without permission). Judges and prosecutors (procurators) are concerned about making “mistakes,” as the responsibility system imposes expansive responsibility (described by two judges as “the sword of Damocles” over judges’ heads).

Section 3

The third section relates to the relationship among the institutions involved, principles to be followed and gives apparently mixed signals which need to be understood together.

  • Promptly investigate cases;
  • Strengthen communication and coordination;
  • Safeguard procedural rights;
  • Strengthen publicity and education;
  • Emphasize safety in handling cases.

The first is directed to the public security authorities, directing them to promptly investigate cases but also be civil, while the last subsection concerns the personal safety of those in the criminal justice system. The second subsection encourages the criminal justice authorities to communicate and coordinate better but cautions the public security organs to pay attention to the comments and recommendations by the procuratorate. It requires the authorities to focus on public opinion guidance in cases that have caught the attention of the public.  Subsection three is one that contains apparently mixed signals, on the one hand emphasizing that defendants have the right to legal counsel, but at the same time,  all levels of judicial administrative organs should strengthen guidance and oversight of lawyers’ defense representation. The fourth subsection illustrates some ongoing techniques of the Chinese justice system, in using typical/model cases to educate the public and deter them from criminal or illegal behavior, and voluntarily comply with the law and the authorities. The document says explicitly: “the broader public should be guided to obey discipline and law, to not believe and spread rumors, and to lawfully support and cooperate with epidemic control work.”

How the Supreme People’s Court guides the lower courts through cases in its publications (1)

IMG_6372The Supreme People’s Court (SPC) guides the lower courts in many ways.  One way is by publishing “trial guides”(审判指导丛书) and other related specialized publications.  I have recently spoken about the cases in some of these publications.  The cases published in these trial guides are for the most part not “guiding cases” (指导性案例) and therefore may not be cited in a court judgment.  However, because they have been specially selected by the SPC, they are quite persuasive to the lower courts and therefore important to legal professionals.  The SPC sees them as a supplement to legislation, judicial interpretations, various types of judicial normative documents/judicial documents/(司法规范性文件/司法文件) and useful in providing a source for judicial interpretation drafting. I have called these cases ”stealth” guidance or “soft precedents”, as they are used without citation in judgments. This blogpost introduces cases found in several of these trial guides.

The series Reference to Criminal Trial (刑事审判参考), edited by a team from the five SPC criminal divisions is invaluable to anyone wanting a detailed understanding of the issues in the criminal justice system, as seen by insiders (and approved for general distribution).

As can be seen from the photo from a recent issue, the first section is a collection of guidance cases (指导案例). These are not guiding cases as approved by the SPC judicial committee and translated by the Stanford Project. These are cases selected by the editors. Issue #115 has a number of cases related to the crime of organizing, providing premises, and introducing prostitution. Several others discuss whether the death penalty should be applied in the circumstances described.  As the editors describe them: “these are typical cases selected for their research value in the determination of facts, adoption & application of evidence, law, and criminal punishment, to provide guidance & reference for those in criminal justice” “选择在认定事实,采行证据,法律适用和裁量刑罚…为了刑事司法工作人员处理类似案件提供具体指导和参考.”

Screenshot 2019-12-09 at 9.54.08 PMAnother specialized publication is the Guide to Foreign-Related Commercial and Maritime Trial, edited by the #4 Civil Division. As can be seen from the photos (and discussed in an earlier blogpost, some of the cases in the issue are entitled replies (some  called 答复 and others entitled 复函), while others are called cases (案例).  As mentioned in that earlier blogpost, the replies are from the SPC to a request from instructions (请示) from provincial-level courts (including the higher courts of Beijing, Shanghai, Tianjin, and Chongqing), as required by the SPC’s Prior Reporting system for cross-border arbitration matters (for example, as when a lower court intends to refuse the enforcement of a foreign arbitral award).  The #4 Civil Division publishes both the request for instructions as well as their response, while the SPC Administrative Division (in their publication Administrative Law Enforcement and Administrative Adjudication (行政执法与行政审判) (pictured below) only publishes their responses to the lower courts.

admin litigation publication

The cases published in these publications are ones that the editors consider significant. The editors of the Guide to Foreign-related Commercial and Maritime Trial describe the cases as providing powerful guidance”– “cases provide methods of thought for resolving similar issues” (具有较强的指导意义”“为了…遇到类似问题提供了解决思路”).  The editors of Administrative Law Enforcement and Administrative Adjudication describe their selected cases as being typical and guiding significance (具有典型和指导意义的审判案例. Lower court judges take the cases in these publications as providing very useful reference materials when they are presented with similar issues.  It is part of a larger effort by the SPC to use prior cases to guide the lower courts in applying their discretion.

 

 

Practitioners’ Guide to China’s Criminal Law

IMG_4884

Criminal Law Treatise

This newly published volume 刑法注释书(Criminal Law Treatise), the first volume in a series of treatises for practitioners, is critical for understanding how Chinese judges and other practitioners approach China’s Criminal Law.  This reference work was edited by He Fan, head of the planning section of the Supreme People’s Court Judicial Reform Office.  He has a PhD in criminal law.  Earlier in his career was a policeman and a criminal court judge, so he has insights from the world of practice about what judges and others who need to understand the law on a particular crime correctly (正确). The idea from the volume arose from a project that he did with the Shanghai Higher People’s Court. And He Fan notes in his article introducing the book that the organizing principle for this book is influenced by a volume on Criminal Law edited by Hsu Yu-hsiu, former grand justice on Taiwan’s Constitutional Court and a handbook on search and seizure by Taiwan National University Professor Lin Yu-Hsiung. Both books draw on the approach of traditional Chinese criminal law books of setting out the statute provisions with annotations (注释).

The book assembles in a single deceptively small volume the principal sources of law and guidance that those involved in the criminal justice system in China need to access.

The organizing principle for the book is as follows:

  1. legislation–article of the law and any prior versions of the article, with any explanation (说明), including explanations of the amendment (立法-要点注释);
  2. Related legislation (相关立法);
  3. legislative interpretations (立法解释); (these are binding and have a higher status than judicial interpretations);
  4. Legislative opinions of an interpretive nature (立法解释性意见)–responses by the Legislative Affairs Commission (and its Criminal Law Office) on issues of criminal law.  These do not have a formal status under Chinese law, but are authoritative guidance. (Thank you to Changhao Wei, NPC Observer, for this comments on this) ;
  5. judicial interpretations (司法解释) (these can be by the SPC, the Supreme People’s Procuratorate (SPP), or the two together. These have a formal legal status under Chinese law and the SPC and SPP have declared that they have the status of law;
  6. judicial guiding documents (司法指导文件)–these are documents providing guidance on criminal law issues from the Central Political-Legal Commission, the SPC and its Research Office, various criminal divisions, SPP and its Policy and Research Office, and other related documents (as mentioned in the previous blogpost, these types of documents lack a formal status, but are highly authoritative);
  7. judicial interpretations–annotations司法解释-注释 and judicial guiding documents–annotations 司法指导性文件-注释–these are related “understanding and application” documents (相关文件理解与适用) authoritative explanations by the drafters of judicial interpretations and judicial guiding documents (previous blogposts have drawn on these “understanding and application documents”);
  8. If multiple judicial interpretations have been issued on an issue, annotations to each;
  9. Guiding cases–courts 指导性案例-法院 (translations available at the China Guiding Cases Project);
  10. Guiding cases–procuratorate指导性案例-检察 (translations of many available at Chinalawtranslate.com);
  11. SPC bulletin cases 法院公报案例 (I have written about the hierarchy various types of SPC approved cases in my Tsinghua China Law Review article);
  12. Court reference cases 法院参考案例 (these refer to the cases in Reference to Criminal Trial, the publication of the five criminal divisions of the SPC), also mentioned in my article and a January, 2018 blogpost;
  13. public security documents ( 公安文件)–documents of the Ministry of Public Security (MPS), the MPS legal affairs bureau, the economic crime investigation bureau and other related guidance documents).

“See inside this book”

 

Supreme People’s Court & the new campaign to “sweep away black & eliminate evil”

Screen Shot 2018-01-31 at 11.21.40 AMLast week, China announced the latest campaign to “sweep away black and eliminate evil,” saohei chu’e (扫黑除恶),“Concerning the Carrying Out of a Special Action to Sweep Away Black and Eliminate Evil” (关于开展扫黑除恶专项行动的通知) (full text not yet released) with Xinhua news reporting that it reflects it reflects the leadership’s  outlook on security and people-centered governance thought.  The Supreme People’s Court (SPC) is an integral part of the campaign and was one of the institutions (along with the Supreme People’s Procuratorate, Ministry of Public Security, and Ministry of Justice) that issued a guiding opinion (办理黑恶势力犯罪案件的指导意见) on how the campaign is to be carried out (text found here). As previously discussed on this blog (and in a forthcoming article), there is no transparency requirement for guiding opinions and other “judicial normative documents” that are not judicial interpretations.  What has been made transparent (in a quick dive into the Wechatosphere) is that the SPC is both clarifying the criminal law issues to the legal community and signalling through releasing typical cases and other actions that lower authorities should not use the campaign to confiscate the property of private entrepreneurs. But will other imperatives trump that signal?

  1. Clarifying the legal issues

Although the commentators in this Voice of America program weren’t aware of it, there is a body of (confusing) legislation, partially described in this book chapter (somewhat outdated).  The authoritative (because it is published by the five criminal divisions of the SPC)  Reference to Criminal Trial (刑事审判参考), had published a special issue (issue #107) on organized crime law last summer. (For those of us who read more quickly in English, the editors have helpfully compiled an English translation of the table of contents. (see below)

IMG_3026

IMG_3027

In his 29 January Wechat posting on his 说刑品案 (“Speak About Criminal Law, Evaluate Cases”) Wechat account, its editor, Judge Yu Tongzhi (于同志), a judge in the #2 Criminal Division and one of the editors of Reference to Criminal Trial, set out 20 Q & A’s with guidance on the legal issues (derived from last summer’s issue).

Judge Yu described the posting as to “coordinate” (配合) with this campaign, but is the author’s way of saying that the law on these issues is confusing and all involved, whether they are judges, prosecutors, public security or defense lawyers need an authoritative steer through the forest of law, judicial interpretations, and other guidance.   As is apparent from the photo above, the guidance includes a 2015 conference summary on organized crime, guiding cases (指导案例)(not to confused with those guiding cases (指导性案例 issued by the SPC itself), authoritative commentary on the 2015 conference summary, major cases, and discussions by judges of difficult legal issues. The guidance posted often illustrates answers with examples from the guiding cases and cautions that standards should not be improperly expanded, such as the definition of a “gang member.”  He does not include a summary of the law on property seizure, the subject of one of the articles in issue #107.

Some of the organized crime legal issues are analogous to those in other jurisdictions and last year one of the SPC websites published a long article analyzing this area of law (and its problems), suggesting that China look to US RICO legislation.

The first of the 20 questions is:

  1. What’s the connection between the 2015 and 2009  conference summaries on organized crime?

Don’t be surprised if you haven’t heard of either conference summary, as neither one seems to have been incorporated in any of the major translation databases.  As to what conference summaries are, Conference summaries are what the SPC entitles “judicial normative documents”  (there are a number of titles for these) and often address new issues or areas of law in which the law is not settled.   “Conference summaries” are also a form of Communist Party/government document.

The relationship is addressed in the article on the application of the 2015 conference summary by several heads of SPC criminal divisions in issue #107.  Their view is that the two conference summaries should be read together, which the later one taken as an elaboration of the first, with newer provisions superseding the older ones.

The campaign & private entrepreneurs

The second signal that the SPC is sending is that the “sweep away black and eliminate evil” campaign should not be used to abuse private entrepreneurs.  On 30 January, the SPC issued seven typical cases on protecting private property rights and the rights of entrepreneurs, one of which involves a case that occurred during the 2008 “strike black” campaign.  As summarized in China Daily,  the Liaoning Public Security Department arrested Liu Hua and Liu Jie in a 2008 criminal investigation and seized 20 million yuan (about 3.16 million U.S. dollars) in funds from their company, Beipeng Real Estate Development Co. Ltd. in Shenyang. In 2014, a local court in Benxi convicted the two and the company of illegal occupation of farmland but exempted them from criminal punishment. Liaoning Public Security refused to return the seized funds and related financial documents were not returned.  SPC Vice President Tao Kaiyuan SPC Vice President Tao Kaiyuan acted as the chief judge, and the SPC’s State Compensation Committee ruled the Liaoning Public Security Department should return the funds with  interest. Judge Hu Yunteng and the  #2 Circuit Court  were involved in this as well. Company counsel’s detailed account of this case (highly recommended!) found here. Judge Zhu Heqing, Deputy head of the #3 Criminal Division, discussed in the article mentioned above in #107 the problems with the law and practice of property seizures, such as the lack of a definition of “organized crime related property” (涉黑财物) and related seizure procedures, as well as the lack of procedures to require the return of property improperly seized.

Some thoughts

As the document on implementing this campaign has not been released, we cannot know whether it includes performance targets that will lead local authorities to “round the usual suspects up.” What is apparent from the Wechat posting and much more from issue #107, is that the law is this area is unclear, lacks procedures for protecting the property of the entities involved (not to mention the entrepreneurs), and can be easily abused by local authorities.  As we know from the case above and other cases, entrepreneurs will then spend years seeking the return of their property.  The SPC must coordinate with this latest campaign while protecting the rights of entrepreneurs, and avoid a new set of mistaken cases.

 

 

 

 

Law-related Wechat public accounts (2017 version) (1)

logoI’ve posted several times about law-related Wechat (微信) public accounts.  They are an important resource for those trying to understand Chinese legal developments (or their absence) and their implications or impact. For the observer, it enables us to learn about new issues (or aspects of issues) that we didn’t know existed, and (depending on the topic), hear viewpoints other than the official one, or at least read hints of dissenting views. Those with the Wechat app on their smartphone can subscribe to these public accounts but it is also possible to find some these articles through an internet search.  Note that the “Mr. Yong” about whom I wrote in 2016 still lurks on Wechat, so articles published may disappear.

Below is an incomplete guide to some useful law-related Wechat public accounts–oriented to my own interests, to be followed up when time permits.  Please contact me through the comment function or by email with additional suggestions.

Official accounts

As I’ve written before Party/government authorities use Wechat public accounts to reach out to a public that is moving away from traditional media to their smartphones. SPC policy is encouraging courts to do so.  There is some but not complete overlap between articles that appear on an institution’s website and Wechat account. There is complete overlap when more political matters are involved. Even some articles published on institutional public accounts have a “netizen” tone and popular netizen slang and images, such as this one from the Qianhai Court public account.

Screen Shot 2017-07-29 at 9.13.10 AM

You’re right, today the little editor wants to tell everyone A BIG! THING! about the Qianhai Court!

Some large institutions (Supreme People’s Court (SPC) and Supreme People’s Procuratorate (SPP)), have affiliated research, publishing and educational institutions, with each having a Wechat public accounts under its auspices. There is some overlap in articles, but others are unique to the Wechat account.

The SPC has its official account: Wechat ID: ch_zgrmfy; People’s Court Daily: Wechat ID: renminfayuanbao; SPC’s research institute, The Institute for Applied Jurisprudence, Wechat ID: fayansuo; National Judicial College’s Wechat ID:falvshiyongzazhi (Wechat version of their magazine, Application of Law (法律适用) & account of its case research institute (司法案例研究院), Wechat ID: sifalyjy.  There is also an account on diversified dispute resolution, linked to the Institute for Applied Jurisprudence: 多元化纠纷解决机制 (SIFAADR). The electronic database Faxin (法信) affiliated with People’s Court Press (which itself has a Wechat account: fayuanchubanshe) also has a Wechat account, Legal_information, as do the journals 中国审判  (Id: zhongguoshenpan) and人民司法 (renminsifa). (This list is incomplete).

Officially approved accounts but not official

Some individuals affiliated with legal institutions have Wechat public accounts (presumably with the approval of their institutional leaders), among them: account of a Pudong New area judge, 法眼观察 (fygc20140416)–here is a recent article on the large number of cases in his and 19 other local courts; 法影斑斓 , account of He Fan, judge in the judicial reform office of the SPC, Wechat ID: funnylaw1978; CU检说法 (CU-JIAN), account of a local prosecutor (see an article on prosecutor’s assistants) 稻花蛙声(paddyfrog), recent article on judicial reform as seen from the bottom of the judicial food chain;法治昌明 (fazhichaming), with a recent article on the toxic system of performance appraisals.

Supervision Commission

The two must read accounts for those trying to understand what is happening with the supervision commission pilots:监察委前沿 (jianchaweiqy)and反腐先锋 (recent article on the framework for the supervision commissions published here)

Others, many previously recommended

  • Arbitration:  Wechat ID: cnarb1, account of Lin Yifei, mentioned in an earlier blogpost.  I highly recommend it to both practitioners and others interested in arbitration.
  • Labor law:Wechat ID: laodongfaku (劳动法库) (with over 200,000 followers; Wechat ID: ldfview (子非鱼说劳动法);
  • Civil law 海坛特哥 (haitanlegal), account of Chen Te, formerly of the Beijing Higher People’s Court, now a lawyer (高衫legal) [his earlier posts focused on medical law], Wechat ID: gaoshanlegal;  审判研究, Wechat ID: spyjweixin; 法客帝国, Wechat ID: Empirelawyers; 审判研究, Wechat ID: msspck.
  • Criminal law: 辩护人Defender (bianhuren_net); 辩护园地 (zrflawyer); 刑事实务, Wechat ID: xingshishiwu; 刑事审判参考 Wechat ID: criminailaw;说刑品案 (xingshishenpan)
  • International law: Wechat ID: ciil 2015 国际法促进中心
  • IP law–知产力 (zhichanli); 知识产权那点事, Wechat ID: IPR888888.
  • Aggregators–智和法律新媒体, Wechat ID: zhihedongfang; 法律博客, Wechat ID: falvboke,  法律读品, Wechat ID: lawread.

 

 

Asset recovery, Chinese style

unnamedThe Supreme People’s Court (SPC) and Procuratorate (SPP) issued their first judicial interpretation of 2017, Provisions on Several Questions Concerning the Application of the Procedure of Confiscating Illegal Gains in Cases Where the Criminal Suspects or Defendants Absconded or Died (Asset Recovery Interpretation). It went into effect on 5 January. It is possible that the timing is related to the Central Commission for Discipline Inspection annual conference.

It is an important piece of quasi-legislation enabling the Chinese authorities to recover assets that are the proceeds of corruption and other crimes within China and internationally, where the criminal suspect or defendant has absconded, left the jurisdiction, or died.   If your jurisdiction is one that already has in place treaty arrangements with China that will enable the Chinese authorities to seek recovery of assets, the interpretation bears close review.   Canada, for example, has supplemented its criminal judicial assistance treaty with a specialized asset recovery agreement.

Background

The recovery and forfeiture of the proceeds of corruption and other crimes has become a priority issue because the anti-corruption campaign under Xi Jinping has made it so.  Although the Criminal Procedure Law was amended in 2012 to enable the authorities to confiscate assets of persons who had or were suspected of committing certain major crimes (see Articles 280-283), in the view of the SPP and SPC, the Asset Recovery Interpretation was needed because the law itself was inadequate. The drafters identified four issues:

  1. the range of crimes to which asset recovery could be applied was too narrow;
  2. major disagreements existed concerning procedures and standards of evidence;
  3. local authorities lacked experience with asset recovery;
  4. procedures and relative responsibilities of different authorities were unclear, making it difficult when negotiating with foreign governments.

The actual drafting of the Asset Recovery Interpretation began shortly after the 4th Plenum and before the Skynet operation was launched.The drafting of this interpretation was a high-profile project for the two institutions. The SPP and SPC worked with the CCDI,  the Central Political-Legal Committee, National People’s Congress Legislative Affairs Commission, Ministry of Foreign Affairs, Ministry of Public Security, Ministry of Justice, and other authorities to produce a draft a practicable system that could be used when negotiating with foreign countries, meet the policy targets of the Party, and contain legal standards specific enough for the procuratorate and courts.

The Asset Recovery Interpretation also draws on the interactions the SPP and SPC have had as part of multi-institutional dialogues on the recovery of the proceeds of corruption with a variety of multilateral institutions, such as the World Bank, Asian Development Bank, as well as bilateral interactions such as with the United States government, for example, through the US-China Joint Liaison Group on Law Enforcement Cooperation.

The drafting of the Asset Recovery Interpretation was flagged in the Fourth Plenum Decision:

Strengthen international cooperation on anti-corruption, expand strength to pursue stolen goods and fugitives overseas, as well as for repatriation and extradition.

Asset recovery through the courts was included in the SPC’s 4th Five Year Plan:

16. Standardize judicial procedures for disposing of assets involved in a case.Clarify the standards, scope, and procedures for people’s courts’ disposition of property involved in the case. Further standardize judicial procedures in criminal, civil and administrative cases for sealing, seizing, freezing and handling of assets involved in a case.

…expand the scope covered by regional and international judicial assistance. Promote the drafting of a Judicial Assistance Law in Criminal Matters.

The drafting of the interpretation was the responsibility of the #2 Criminal Division of the SPC and the Law and Policy Research Office of the SPP.

 Some important provisions

This blogpost cannot provide a comprehensive description of the interpretation which expands/further details the procedures set out in Articles 280-283 of the Criminal Procedure Law and related law, but notes the following provisions.

1. The Asset Recovery Interpretation expands the scope of the crimes to which asset recovery applies. Article 280 of the Criminal Procedure Law authorizes a people’s procuratorate to apply to a court  for confiscation of illegal gains and other property related to the case in serious crimes (重大犯罪案件) such as corruption, bribery or terrorist activities where the criminal suspects or defendants have absconded and have not been found one year after the public arrest warrants were issued, or where the criminal suspects or defendants have died.

Article 1 of the interpretation expands the term “such as” (等) by specifying that confiscation can be applied to the following crimes among others:

  1.  Corruption; embezzlement of public funds; possessing huge amounts of property from unknown sources; concealing overseas savings; privately dividing state-owned assets; privately dividing assets that had been confiscated;
  2. Bribe-taking; exploiting influence to take bribes; bribery by an individual or entity; giving bribes to persons with influence; introducing bribery;
  3. Organizing, leading, or participating in terrorist organizations; helping terrorist organizations, preparing to carry out terrorist activities; advocating terrorism or extremism, and incitement of carrying out of terrorist activities; using extremism to sabotage the enforcement of laws; forcing others to wear clothing and signs that advocate terrorism or extremism; illegally possessing articles that advocate terrorism or extremism;
  4. Endangering state security; smuggling; money laundering, financial fraud; mafia-type organizations, and drugs.
  5. Telecommunications and internet fraud.

As many others have written in other contexts, some of the crimes listed above have been over-broadly applied in China–some to persons who disagree with the government and others to private entrepreneurs.

Language in extradition treaties is flexible enough to enable foreign governments to refuse to extradite or assist in the recovery of assets from persons that the host government considers a political dissident rather than a criminal. However, those persons can anticipate that their domestic assets may be the subject of confiscation procedures.

2. The definition of assets of crime draws on relevant language in the UN Corruption Convention on proceeds of crime, and so include proceeds of crime that have been transformed or converted, in part or in full, into other property, as well of proceeds of crime have been intermingled with property acquired from legitimate sources.

3.The Asset Recovery Interpretation sets out needed details in the procedure by which assets can be confiscated, including detailing the evidence the procuratorate has to provide to a court in the application for confiscation, matters to be set out in the notice issued by a court that accepts the application; persons to whom the notice should be serviced and media outlets where the notice should be published.  (Under Article 281 of the Criminal Procedure Law, the notice concerning the application needs to be in effect for six months.)

Under Article 281, close relatives and interested parties (and their representatives) can apply to attend the court hearing at which the confiscation of assets application is reviewed, but “interested parties” had not been defined, nor had the details of how the first instance and appeal procedures were to be conducted.

4.  The Asset Recovery Interpretation details the procedures for seeking international cooperation in the recovery of assets, including the type of order the lower court should issue and documentation that the lower court must prepare.  The bundle of documentation must be reported up to the SPC and after the SPC reviews it, the SPC prepares a request letter, the contents of which are specified in the interpretation.  These request letters generally are transferred abroad via the Ministry of Justice, which is usually designated the competent national authority under treaty or convention arrangements.

Next steps

The SPC anticipates that the Asset Recovery Interpretation will lead to an increase in cases, but are aware these issues and procedures are new to the lower courts, so it is requiring lower courts to designate certain judges to hear these cases and for these judges to undergo training on the Asset Recovery Interpretation and related issues.

The SPC calls on cooperation with related departments on the recovery of proceeds of crime from abroad, saying that it cannot fight the battle alone. (不能依靠某一个部门单兵作战).

Foreign jurisdictions can anticipate an increase in requests from China and it is likely that the mainland will request that the Hong Kong authorities negotiate a related arrangement. It will raise further concerns for those former Chinese officials accused of the crimes described above living in jurisdictions with an extradition or mutual legal assistance in criminal matters treaty. For lawyers in China and abroad, it represents a new practice opportunity.

 

 

Supreme People’s Court tweaks capital punishment review procedure

Screen Shot 2016-06-26 at 3.28.09 PMSeveral days ago, the Supreme People’s Court (SPC) issued the brief judicial interpretation, translated below:

Supreme People’s Court

Reply Concerning issues related to the Application of Article 225 (para 2) of the Criminal Procedure Law

Approved by the 1686th meeting of the Judicial Committee of the Supreme People’s Court, in effect from 24 June 2016

Fa Yi(2016) #13

To the Henan Higher People’s Court:

We have received your request for instructions concerning the application of Article 225(2) of the Criminal Procedure. After consideration, we respond as follows:

I.  For cases remanded to the second instance people’s court for retrial by the Supreme People’s Court, on the basis of “People’s Republic of China Criminal Procedure Law” Article 239 (2) [if the Supreme People’ s Court disapproves the capital punishment sentence, it may remand the case for retrial or revise the sentence] and Article 353 of the Interpretation of the “Supreme People’s Court on the application of the People’s Republic of China Criminal Procedure Law [where the Supreme People’s Court issues a ruling on non-approval of the death penalty sentenced under a case, it may remand the case to the people’s court of second instance or the people’s court of first instance for retrial, depending on the actual circumstances of the case…], having ruled not to approve the death penalty,and  regardless of whether the people’s court of second instance had previously sent the case back to the first instance court on the grounds that original judgment’s facts were unclear or evidence was insufficient; in principle, it must not be sent back to the original first instance court for retrial; if there are special circumstances requiring the case to be sent back to the first instance court for a retrial, it must be submitted to the Supreme Court for approval.

II. in cases where the Supreme People’s Court had ruled to disapprove the death penalty and remanded the case to the second instance people’s court for retrial, and the second instance people’s court had remanded the case to the first instance court according to special circumstance, after the first instance court has issued its judgment and the defendant has appealed or the people’s procuratorate has made a protest, the second instance people’s court should issue a judgment or ruling according to law, and must not send the case back for re-trial, according to the specifics of the case, which had sent the case to the first instance court for retrial.

So replied.

_________________________________________________________

What is this and what does this mean?

This is a judicial interpretation by the SPC in the form of a reply, as explained here.  It is a reply (批复) to a “request for instructions” from a lower court relating to an issue of general application in a specific case.  The Henan Higher People’s Court had submitted a request for instructions, likely with two or more views on the issue, but the lower court’s request is not publicly available.  It is likely that practice among provincial courts had been inconsistent, and therefore the SPC is harmonizing judicial practice through this reply.  As required by the SPC’s  regulations on judicial interpretations, it must be approved by the SPC’s judicial committee as a judicial interpretation.

This gives further details to the SPC’s capital review procedures, requiring second instance (generally provincial level courts) to hear retrials of cases remanded by the SPC and not instructing those courts not send cases back to the first instance court for retrial.  It also requires the second instance court to rule on a defendant’s appeal or procuratorate’s protest and not remand the case back to the first instance court, expediting the final consideration of these cases and limiting the number of remands of these cases.

Is this a positive development for the protection of the rights of the defendants (the defendants in the typical drugs cases announced by the SPC recently were mostly peasants), by requiring the second instance court to hear these cases, away from the public pressure where the crime occurred?  In a 2013 article, criminal defense lawyer Sun Zhongwei described the pressure on a local first and second instance court is under from the victim’s family and the local Party committee and government, and how the institutions use delay and remanding the case to the procuratorate and public security for additional investigation to avoid making difficult decisions that will alienate local authorities.What has the role of defense counsel been in these cases?  Have most defendants been advised by counsel? Was the delay in final resolution in these cases an issue discussed by the Central Political Legal Committee?

What was the rationale for issuing this interpretation at this time?  Is it a measure to promote the efficiency of the courts, by expediting finality in criminal punishment, so that the courts can announce in a timely manner their crime fighting accomplishments and typical cases?A headline on one of the SPC’s websites  reporting on 30% increase in drugs crime convictions in the provincial level courts may indicate which is valued more–“People’s courts across the country cracked down hard on drug crime.”

Or is it linked to planned reforms to the criminal justice system and improvements to the legal aid system for criminal defendants approved by Xi Jinping and other top leaders on 27 June?