Category Archives: judicial transparency

Court judgments, Court Operations, judicial interpretations, judicial transparency, Zhengfa reform

New Judicial Interpretation on Judicial Suggestions (Advice)

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New standardized format for judicial advice/suggestions

In November 2023, the Supreme People’s Court (SPC) issued a judicial interpretation intended to encourage and standardize the way that the courts issue judicial suggestions (advice) (司法建议), entitled Provisions of the SPC on Several Issues Concerning Comprehensive Judicial Advice Work (Judicial Advice Work Judicial Interpretation) (最高人民法院关于综合治理类司法建议工作若干问题的规定).   For those in jurisdictions in which the SPC’s official website is inaccessible, see this link.  When a translation becomes available, I will post it. As a judicial interpretation, its provisions are binding on the lower courts, unlike its predecessor 2012 and 2007 documents.   Judicial suggestions (advice), the subject of this recent law review article (with detailed historical background),  and promoted in these model cases about which I wrote this summer, are often issued in the context of litigation or after a court reviews a group of disputes.   As illustrated by those model cases, it is a function being reinvigorated under President Zhang Jun. It is mentioned briefly in the Civil Procedure and Administrative Litigation Laws but not in the Organic Law of the People’s Courts.   Now, as in the era of the Wang Shengjun presidency of the SPC, it is linked to active justice. It is also linked with resolving disputes at source, and the courts participating in social governance.  As previously mentioned, resolving disputes at source appears to be derived from Chinese medicine philosophy in seeking to resolve the root cause of disputes by using the data, insights, and multiple functions of the courts to that end.  For those interested in comparisons and the possible impact of President Zhang Jun’s Supreme People’s Procuratorate (SPP) experience on the SPC, the Supreme People’s Procuratorate updated its regulations on procuratorial suggestions in 2018.   It is yet another function of the Chinese courts that has its roots in the Soviet system.

This quick blogpost flags what is new, the issues to which the new judicial interpretation responds, and places the interpretation in its larger context.

What is New?

The Judicial Advice Judicial Interpretation recasts its content in the language of Xi Jinping New Era political-legal jargon, in contrast to its predecessor document, which dates from 2012 and reflects the political-legal jargon of the period.  However, in my view, that would be insufficient to merit a judicial interpretation. Given that judicial advice of a particular type has become a priority under President Zhang Jun, the judicial interpretation is intended to guide other divisions and entities within the SPC and the lower courts to provide judicial advice that better reflects SPC leadership priorities.  It therefore:

  • addresses judicial advice work on “comprehensive” matters, that is outstanding problems in the field of social governance that cause frequent conflicts and disputes and affect economic and social development and the protection of the people’s rights and interests. It should propose improvements and improvements to the relevant competent authorities or other relevant units.
  • specifies that when judicial advice is submitted to a government authority, it shall generally be submitted to the competent authority at the same level within the jurisdiction of the court, and not issued to an authority at a bureaucratic level above the court issuing the advice.  The judicial interpretation does not permit cross-jurisdictional judicial advice.  If the issues require measures to be taken by a relevant authority in another place,  the court in question must report the matter to the corresponding superior people’s court for decision. This was  stressed by several local judges whom I contacted.  I note that according to a report that the Shanghai Financial Court in the summer of 2023,  issued 35 items of judicial advice, including to certain central departments (People’s Bank of China and the State Administration of State-Owned Assets, but presumably that court coordinated with the SPC when doing so;  
  • it requires the court to contact the entity that is proposed to receive the advice, to listen to their views;
  • imposes a two-month deadline for the entity receiving the advice to respond (and the advising court to chase up the advised);
  • more strongly stresses the “principle of necessity,” i.e., is it necessary to issue this judicial advice, to avoid judicial advice being issued for its own sake (or more properly, to meet  internal performance indicators of courts);
  • requires judicial advice to be discussed and approved by a court’s judicial committee, rather than the responsible court leader, as in the 2012 document;
  • specifies when judicial advice should be copied (抄送) to superior institutions;
  • does not specifically cancel the 2012 document, but provides that the provisions in interpretation supersede ones in the earlier document if they are inconsistent. 
  • requires a court to report on its judicial suggestions as part of its report to the corresponding people’s congress; and
  • standardizes format.

There is no requirement of greater transparency but some local courts have posted some information about their judicial advice. The Shanghai Maritime Court is one court that posts judicial advice and responses, some other courts issue more limited information.

Surmising from the article published by the drafters of the interpretation recently in the SPC journal Journal of Applied Jurisprudence (the understanding and application), all of whom are affiliated with the SPC’s Research Office, that office took the lead in drafting this interpretation.  It is to be expected that the Research Office took the lead because it often deals with cross-institutional issues.

Ongoing issues

I derive the comments in this section from Ms. Dou Xiaohong’s recent article in the National Judges College academic journal Journal of Law Application (法律适用). She did a deep dive into several thousand items of judicial advice issued in province “S” over the  last several years and a more limited number from other provinces and did some cross-jurisdiction comparison.  Some of the comparisons work better than others, but it does not take away from the main focus of the article. She works in the Research Office of the Sichuan Provincial Higher People’s Court so “S” likely refers to Sichuan.  Presumably, the drafters of the judicial interpretation were aware of her article.  She characterizes judicial advice as a form of soft law governance.  She found (among other points):

  • most judicial advice related to a single case or similar cases, with comprehensive advice accounting for 14%, with most case suggestions relating to typos and omissions in documents (performative judicial advice);
  • almost half of the judicial advice “disappears” (is ignored by the recipient of the advice;
  • staff of the recipient administrative departments that the author surveyed were unaware that the recipient department was obliged to respond;
  • Under the current pressure of cases, it is difficult for judges to have “extra” time and energy to allocate to giving judicial advice.

Ms. Dou makes a number of suggestions, not all of which the drafters of the judicial interpretation incorporated:

  • incorporate better reporting to the relevant people’s congress
  • incorporate a “comply or explain” principle;
  • involve the supervision/Party disciplinary authorities if the matter involves the violation of law or discipline;
  • promote greater transparency of judicial advice by the courts and the recipients of the advice, so that there is greater awareness of judicial advice.

Greater significance

The promotion of higher quality judicial advice (suggestions) through the issuance of this judicial interpretation is another example of the development of the Chinese courts in the Xi Jinping New Era, post the 2019 Zhengfa (political-legal) reforms, stressing the role of the courts in social governance.  Unlike some of the other aspects of “active justice,” judicial advice has its roots in legislation, although it is not mentioned in the Organic Law of the People’s Courts.  This interpretation highlights a function of the Chinese courts that has existed for many years but has more recently become more important to SPC leadership.  Transparency concerning judicial advice is uneven throughout the courts, and it is unclear the extent to which the SPC itself provides judicial suggestions. Lower court practice appears to vary. It appears from Ms. Dou’s article that many lower court judges are more focused on closing cases than issuing soft law judicial advice and providing advice for the sake of meeting a performance target.  However, it may also depend on the subject of the judicial advice and whether the recipient perceives the advice provided by the courts as useful, as some local judges have mentioned to me that well-targeted judicial advice has led to inter-institutional discussions.  The requirement of  “listening to the views” of the entity that is to receive the advice (i.e. receiving their assent) is likely to result in fewer items of judicial advice issued, as courts are likely to consider the procedure too troublesome.  However, we will need to wait for the revamped performance indicators under discussion to be released to understand better what the longer-term implications of this judicial interpretation are likely to be.

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Many thanks to those who commented on an earlier draft of this blogpost.

 

 

 

Court Reform, judicial transparency, NPC

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

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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.

judicial committees, judicial interpretations, judicial transparency

Update on judicial interpretations

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One of the most important functions (职能) of the Supreme People’s Court (SPC) is issuing judicial interpretations (司法解释), which it issues for the most part unconnected with a specific “case or controversy” but rather drawing on many cases that have previously arisen in the lower courts. They are a critically important way that the SPC unifies the application of law. The extent to which SPC judicial interpretations are binding is one of several fundamental uncertainties attaching to this function, as the National People’s Congress (NPC) Standing Committee is authorized to review them and may require amendments to them or more, and it is unclear how much they bind institutions outside the court system.  But what can be said is that they are critically important to the operation of the Chinese legal system, The SPC, particularly its headquarters in Beijing,  focuses on judicial interpretation work for reasons connected with the slow pace and abstract language of Chinese legislation, although Chinese (and foreign) scholars, lawyers and other commentators sometimes criticize the SPC’s expansive reading of laws. 

About one month ago (in June 2021), the SPC updated its 2007 Judicial Interpretation Work Provisions (JI Work Provisions) in this decision  关于修改《最高人民法院关于司法解释工作的规定》的决定).  [See a refresher on the legislative basis of judicial interpretations, if needed.] The JI Work Provisions describe the types of judicial interpretations the SPC can issue, which institutions can propose drafting judicial interpretations, the drafting process, the promulgation process, the filing process, etc. The update was a minimally invasive one, adding to Article 6  a new category of documents, now classified as judicial interpretations–rules (规则). Rules are defined in a new paragraph of Article 6, as follows: “The judicial interpretations regulating the trial practices of people’s courts shall adopt the format of “Rules”–the intention being that when the SPC issues court rules, they should be in the form of 规则. That means that from now on there are five types of judicial interpretations:

The amendments underwhelm this observer, who had read many SPC documents signaling that many changes were needed. Two of those are Article 26 of the 2019 Fifth Five-Year Judicial Reform Plan Outline and Article 2 (3) of the  2020 Opinions of the Supreme People’s Court on Improving the Work Mechanism for Unifying the Standards for Application of Law (Opinion on Improving the Work Mechanism) :

#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….

Article 2 (3) of the Opinion on Improving the Work Mechanism:

Judicial interpretation is an important part of the socialist judicial system with the Chinese characteristics and an important duty of the Supreme People’s Court. For special issues of application of laws in judicial work, especially the unspecific and unclear provisions of the laws which result in difficulty in understanding and enforcement, changes in circumstances which result in different understanding of the basis for handling cases, different standards used for rulings of specific cases in same type and other relevant issues, the Supreme People ’s Court shall strengthen investigation and study and formulate judicial interpretations in a timely manner strictly in accordance with the law. In respect of the judicial interpretations involving the interests of the people or major and complicated issues, public comments shall be solicited openly. It is imperative to further standardize the procedures for formulation of judicial interpretations, improve the mechanism for research, project initiation, draft, argumentation, review, promulgation, clearing and repeal and improve centralized management and record-filing review mechanism.

The question is, why after all this language about providing more details about judicial interpretation procedures, did the SPC leave the rules unchanged, except for adding one new category of judicial interpretations? The SPC’s press conference announcing the 2020 Opinion on Improving the Work Mechanism does not shed any light on this question.   

I surmise that the SPC leadership decided that it was most prudent to leave the regulations unchanged because it is best to leave maximum flexibility in the drafting process. The language in the documents above on improving judicial interpretation procedures remains significant as reminders to the SPC Research Office and others involved in the judicial interpretation drafting process. The Research Office is the gatekeeper for reviewing proposals, as well as examining and coordinating the drafting of judicial interpretations. It also acts as the liaison when other central institutions forward their draft legislation and  draft judicial interpretations to the SPC for comments, coordinating the SPC’s response with other divisions and offices, with a knowledgeable person noting that “the view of the Research Office prevails.”

The SPC liaises with the NPC Legislative Affairs Commission during the judicial interpretation drafting process to harmonize the views of the institutions. In an article published on 21 July 2021 by China University of Political Science and Law Professor Luo Xiang on appraisals by administrative institutions in criminal cases, he compared an article in the Criminal Procedure Law judicial interpretation issued for comment with the final version, noting that “the Office for Criminal Law of the Legislative Affairs Commission of the National People’s Congress clearly held a negative attitude [to the language of the article in the original draft] “(全国人大法工委刑法室则明确持否定态度).

As I understand the language in the two documents quoted above, they serve as further reminders that the Research Office staff should review the package of documents that come before them before the documents are forwarded to the SPC Judicial Committee (Adjudication Committee) for consideration with these factors in mind (among others):

  • is it clear that the divisions (tribunals) involved have done sufficient research and investigation about the issues that arise in practice;
  • is it sufficiently comprehensive, with the right amount of discretion given to the lower courts and accommodate varying judicial competence, economic and social development; and
  • does it incorporate the views of relevant internal and external stakeholders?

On the topic of flexibility in procedures, take the example of public consultation. As I mentioned in January,  the Regulations on JI Work Provisons do not specify a minimum (or maximum) time period for soliciting opinions from the public. 

Reviewing the comment periods for some of the other judicial interpretations and other judicial documents for which comments were solicited in 2020, the deadlines appear to vary significantly.  I surmise that the deadline is set by the team in charge of drafting the judicial interpretation. In November 2020, the SPC solicited public comments on proposed amendments to its judicial interpretations related to the taking of security for 18 days, while comment periods for other judicial interpretations and judicial documents seem to be often one month and sometimes two months. 

It appears many judicial interpretations do not involve public consultation. Consulting the public is optional, unlike consulting internal and other official stakeholders. Article 17 of the JI Work Provisions requires approval by two SPC leaders–the vice president in charge of that type of issue, plus either the court president or the executive vice president (currently Justice He Rong). As I wrote in my recently published book chapter, a review of SPC judicial interpretation public consultations reveals that few, if any, have been in the area of criminal law or criminal procedure law. One experienced SPC judge gave his view of why that was so:

It’s the SPC’s bureaucratic nature! It thinks that the power to draft interpretations is with it and it is completely within its ability to draft good judicial interpretations. So therefore no democratic procedure has been formed to broadly consult different parts of society during the drafting process. The practice always has been internal consultation, generally consulting gongjianfasi [公检法司] [public security, procuratorate, courts, and administration of justice], and experts, the various divisions and offices of the SPC, and then it is submitted and approved. If timing is rushed, one or two experts will be consulted.

My book chapter, describing what I called “gated community” procedures,  explores other reasons as well.

Another topic mentioned by the documents cited above is project approval or initiation, also discussed in further detail in my book chapter. Since 2018, the SPC has provided the domestic and international professional world with more transparency about its judicial interpretation agenda by making public the document by which the SPC leadership gave project approval (立项) to proposals for drafting judicial interpretations. The SPC has a yearly plan for drafting judicial interpretations, as set out in the JI Work Provisions, analogous to the National People’s Congress (NPC)’s legislative plans. It should be noted that the JI Work Provisions do not require the project approval document to be made public. This year, the judicial interpretation agenda has not [yet] been released. It is unclear whether it is a matter that was overlooked in the flood of other documents issued or for some other reason.

 

case database, judicial transparency

Supreme People’s Court Monitor in People’s Court Daily

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Earlier this month I had the honor of receiving an invitation from He Fan (何帆), head of the planning department of the Judicial Reform Office of the Supreme People’s Court (SPC) to write a short article on the SPC case database (裁判文书网）and its impact outside of China for People’s Court Daily (人民法院报). I saw the invitation as a significant opportunity to be able to address the readers of the SPC’s media at this historical point. Fortunately, Professor He Haibo of Tsinghua University School of Law (who along with colleagues) has done extensive research on the case database), had been invited earlier. His article had already been published when I received He’s invitation, giving me an example to consider.

I drafted the article in English and was honored to be able to persuade Fu Panfeng (傅攀峰), assistant research fellow with the International Law Institute of the Chinese Academy of Social Sciences, to transform it into readable Chinese. Several readers of drafts made insightful suggestions which were incorporated into the final version.

The article was published on 11 September in the SPC’s electronic media (Wechat and Weibo)–see the screenshot below from the beginning of the Wechat version. It was published on 13 September in the People’s Court Daily (see the screenshot above). Several Wechat public accounts have republished it, including that of Hu Changming, of the Law Institute of the Chinese Academy of Social Sciences (his version has one additional sentence). The English version below is not identical with the Chinese version, because the amendments occurred in several rounds.

I am very honored to be invited to provide some thoughts about the impact of the 裁判文书网 from an international perspective. When I first started to become interested in the developments of the Chinese courts about 30 years ago, Chinese law could only be found only in books, with few published cases. I have seen the development and impact in China of the 裁判文书网 with my own eyes. Much is made of the number of judgments that have been posted, but I will bring the focus back to each individual judgment.

Outside of China, the 裁判文书网 has had a great impact on a broad range of people, because it is one of main faces of Chinese justice that the world sees. Although it may not be apparent, every judgment or ruling has many readers—the parties themselves plus many unknown readers inside and outside of China. It is from those documents that readers from far away will consider whether that court gives a fair hearing to the parties involved, regardless of the crime committed or nature of the breach. Readers will consider whether the facts presented support the legal conclusion, whether the legal conclusion is supported by logical, clear and persuasive reasoning, how was the case decided, and for criminal cases, whether the punishment appears appropriate given the facts set out. To the readers outside of China, each judgment or ruling is an original and unfiltered voice of Chinese justice and gives a view of many aspects of Chinese society and economy, historical and contemporary. We note that the legal requirement is that all judgments and rulings that can be published are published.

As to who outside of China is concerned about the judgments and rulings on裁判文书网, that includes a broad range of types of institutions and people. One type of institution is foreign governments and their departments. The foreign affairs, commercial, intellectual property authorities of foreign countries look to judgments and rulings posted on the 裁判文书网 to understand how the Chinese courts consider cases that involve its citizens, companies, and other institutions, especially if national diplomats monitor the particular cases. If cases are translated into foreign languages, foreign judges may read them to understand how Chinese judges consider similar cases.

Other frequent readers of cases in the 裁判文书网 are private lawyers, in-house counsel and executives, who may directly or indirectly oversee company-related litigation in China. It enables them to make more informed strategic decisions about many aspects of doing business in China, because they can search previous similar cases. Will a Chinese court support their claim against a party who has breached its obligation to the company, regardless of the nationality of the company? Will a Chinese court protect the intellectual property rights of the foreign company in the event of breach? In a dispute, is the opposing party’s settlement offer reasonable?

Non-profit organizations, whether religious, or secular, consult the 裁判文书网. How do Chinese courts protect the rights of the religious, or, for example, members of environmental organizations?

Foreign journalists, too, use the 裁判文书网, too, to understand from the sources what Chinese justice means in action.
Two other categories must be mentioned–academics and students abroad as well individuals. Many professors and students at foreign universities undertake big data studies involving cases in the Chinese courts, looking to the 裁判文书网.
Finally, foreign individuals who work, study, and live in China also may be readers of Chinese judgments or rulings. Will a Chinese court protect the rights of a foreign individual whose Chinese employer has failed to comply with his legal obligations?

The foreign community is aware of the requirement from this summer for judges to search for like cases. It has generally been considered to be a positive development, as on the one hand, it enables like cases to be decided similarly, and formalizes the practice of lawyers and other litigation representatives submitting cases for judges to consider.

As to suggestions from outside of China, we would suggest on the one hand, that requirements to delete sensitive personal or corporate information be strengthened, so that the 裁判文书网not be used as a way to obtain confidential corporate or sensitive personal information.

The 裁判文书网 is an important public good, and the technical aspects should be made convenient and as user-friendly as possible to all users.

judges, judicial transparency, Women in the judiciary

Comings & Goings at the Supreme People’s Court

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My brother blogger Mark Cohen’s recent post on comings and goings among intellectual property (IP) attaches attached to embassies and consulates in China has prompted me to think about how comings and goings at the Supreme People’s Court (SPC) are announced and issues related to those comings and goings.  As I have mentioned often, the institution of the SPC is stressed in preference to the role or identity of the individual judge.  As to how a person can track SPC personnel comings and goings: the National People’s Congress (NPC) Standing Committee appoints and removes judges（other than the president of the SPC).  Xinhua reports these and they are to be found on the NPC website as well (全国人民代表大会常务委员会任免名单)  The SPC reposts the information, found on its website under “important news” (要闻).  For appointments (or removals) that do not require NPC Standing Committee approval, the careful observer needs to monitor changes elsewhere on the SPC website: SPC leaders 最高人民法院领导, principal personnel in the SPC’s internal institutions 最高人民法院内设机构主要人员；circuit courts ( 巡回法庭); counterpart listings on the CICC and Supreme People’s Court Intellectual Property Court (SPCIPC).

Among the relatively recent comings and goings:  Justice He Rong has replaced Justice Jiang Bixin (born in 1956, who has retired). Justice He had previously been a vice president of the SPC but was transferred to the Shaanxi CCDI/National Security Commission.  Going from the courts to Party institutions (and back) is a career path for some judges. As discussed in this earlier blogpost (of almost 5 years ago), SPC judges are bound by official (Party/government official) retirement ages, with special permission possible for high ranking officials, including judges, such as Justice Jiang Bixin. Justice He Rong is in charge of day to day work of the SPC and has the rank of a minister.

In the most recent NPC Standing Committee notice, Judge Zhu Li (well known in the international IP community) and CICC judge, is shown to have been appointed deputy head of the SPCIPC.  Senior Judge Jiang Huiling, formerly a vice president (in charge) of the National Judges College , is shown to have left the SPC while Judge Shen Hongyu has been appointed the deputy head of the #4 Civil Division. She was previously a judge on the SPCIPC, after being a judge in the #4 Civil Division for many years. She is taking the position formerly held by Judge Gao Xiaoli. Both Judges Shen and Gao are well known to the international practitioner community because both often speak at international conferences.  Judge Shen was a visiting scholar in the fall of 2019  at Columbia Law School and spoke at Columbia, Yale (Paul Tsai China Center), Harvard, and Berkeley, among other law schools. Judge Jiang’s last official activity was to give the commencement address (virtually) at the School of Transnational Law of Peking University (where I teach).  The speech seems to have gone viral on (legal) Wechat public accounts.

Knowing where judges have moved requires additional research.  A quick check of the “principal personnel” (or Wechat reports) shows that Judge Gao Xiaoli is the new head of the International Cooperation Bureau of the SPC. This bureau was previously entitled “外事局”–“foreign affairs bureau” and was mentioned in my 1993 article.  The SPC, similar to other government organs, has a special bureau that handles incoming foreign activities and matters involving judges and court’s activities overseas.

Judge Jiang, who is in his late 50’s, is one of a number of people on the SPC who faced the SPC’s version of the “retirement trap” (analogous to the “middle-income trap”)–with a bureaucratic ranking insufficiently senior to be able to avoid retiring at age 60 or soon thereafter.  As I wrote in my 2015 blogpost, judges in many other jurisdictions are considered to be in their prime in their late 50’s and 60’s. US Supreme Court judges have lifetime appointments, while compulsory retirement ages include: Germany–68, Australia, 70, Hong Kong, 65 (with provisos). According to press reports, Jiang Huiling is now a professor at the law school of Tongji University, with some reports stating that he will become dean of its law school.  Senior academics have a later retirement age. He will be among the small number of Chinese law school deans that have a practitioner background. We hope he will use his experience to promote the reform of Chinese legal education.  As a professor, we would expect him to continue to publish insightful law journal articles and speak more to the academic world.

 

 

 

Communist Party and the Courts, Court Operations, Court Reform, judicial committees, judicial transparency

SPC Updates its Guidance on Judicial (Adjudication) Committees

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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.

 

judicial documents, judicial transparency

How the Supreme People’s Court guides the court system through its judicial documents (2)

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SPC collection of responses +explanations

 

The Supreme People’s Court (SPC) (and its constituent divisions, bureaus, and offices) guide the lower courts on substantive and procedural law in multiple ways.  It does this under its authority to supervise (监督) the lower courts under Article 10 of the Organic Law of the People’s Courts.  One of those ways is through issuing documents described in a recent blogpost as judicial normative (司法规范性文件) or regulatory documents. A recent blogpost looked at one category of them–opinions (意见).  My focus is on how these documents are used to give guidance on substantive or procedural legal issues, rather than matters of court administration. The SPC has long used these types of documents, as I discussed in my 1993 article. Observation reveals that these are sometimes issued in the name of the operational divisions and sometimes offices, rather than the SPC itself, but often with a document number indicating that it was issued by one of the operational divisions of the SPC.  

In late 2016, the SPC’s People’s Court Press published a collection of responses to requests for instructions in the book pictured above (some are entitled fuhan 复函 and others dafu 答复.  Some had been previously published (in publications edited by SPC functional divisions) and others were published for the first time, with the editors describing 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).  The editors further noted that later judicial interpretations will supersede the documents in the book.

These types of documents are used by the Communist Party and government as well. So using these forms of documents signals one of the many administrative aspects by which the SPC operates. In fact (as I have written before), the SPC has issued its own measures on official documents (人民法院公文处理办法), further implementing the Party and government’s regulations on official documents (党政机关公文处理工作条例). The SPC, like other Party and state organs, handles requests for instructions (qingshi 请示) (also translated as requests for advisory opinions). A request for instructions is a type of document submitted by a subordinate to a superior state or Party organ to request instructions or approval, and is therefore a typical Chinese administrative procedure. 

One subcategory of these responses are the ones issued by the SPC’s #4 Civil Division, the division focusing on cross-border commercial and maritime issues.  These are responses to request from instructions (请示) from provincial-level courts (including the higher courts of Beijing, Shanghai, Tianjin, and Chongqing), as required by the SPC’s Prior Reporting system for arbitration matters. 

The procedure is for the most part more regulated by custom than by written guidelines, although several SPC documents address the Prior Reporting system (see this useful article, with a description of ongoing issues and recent reforms permitting counsel to be heard).   For those unfamiliar with the SPC’s Prior Reporting system, judgments/rulings in which a lower court intends to refuse the (recognition and) enforcement of a foreign-related, foreign arbitral award or agreement (see a further explanation here) or annul foreign-related awards. The response is binding on the lower court regarding the particular case. The #4 Civil Division regularly publishes these replies (some entitled 答复 and others entitled 复函) (and the reports from the lower courts) in its periodical China Trial Guide: Guide on Foreign-Related Commercial and Maritime Trial （中国审判指导丛书：涉外商事海事审判指导) (one issue pictured below).  On the matter of terminology, two knowledgeable persons said there is no substantive difference between the two documents.  There is no transparency obligation, but knowledgeable persons say that most are published.

These responses are connected with two aspects of the last blogpost–case law and judicial interpretations.  Arbitration lawyers discuss these responses as a particular form of case law in, for example, law firm client alerts or in other publications. It is understood that most of the replies in the area of foreign-related and foreign arbitral awards are published.  Some have been translated into English. The principles in these responses may eventually find their way into judicial interpretations or other SPC policy documents (such as opinions).

Discrete inquiries reveal that these are treated as a case for workload purposes and that a collegiate panel will decide on and draft the response.

 I had mentioned in an earlier blogpost that some persons on the SPC had earlier proposed that the procedure for seeking instructions (请示) be proceduralized, while others (academics) had proposed that the procedure be entirely abolished。  However, the procedure is mentioned in the 2017 SPC responsibility implementing opinion and certainly remains in operation even after the latest round of judicial reforms.  Sometime in the future I will address how the procedure for seeking instructions operates in other divisions of the SPC.

This illustrates that the vision for the reformed SPC remains a court with administrative characteristics（官本位), in this situation dealing with Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York Convention) (and analogous) issues through a traditional administrative system.  

 

Court Operations, judicial documents, judicial transparency

How the Supreme People’s Court guides the court system through judicial documents (1)

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Screenshot 2019-05-19 at 10.46.26 AM
collection of post 18th Party congress judicial policy documents, edited by the SPC’s General Office

I recently participated in an academic conference in which one speaker discussed Chinese judicial documents (other than judicial interpretations).  The speaker’s view was very critical of them, a view shared by a good number of academics in China. A recent law review article published in a US law journal mischaracterized at least some of these documents.  I have my own views and understanding of what these documents mean, based on many years reviewing these documents and long discussions with knowledgeable people “who cannot be named” and whose help can only be indirectly acknowledged. I have discussed SPC judicial documents in an earlier blogpost. I also discuss them in my book chapter on judicial transparency, and book chapter on the Supreme People’s Court’s (SPC) policy document on free trade zones, the Opinions on Providing Judicial Guarantee for the Building of Pilot Free Trade Zones (最高人民法院關于為自由貿易試驗區建設提供司法保障的意見 FTZ Opinion). This blogpost melds excerpts from those book chapters.

It is a fact that the Supreme People’s Court (SPC) issues a broad range of documents that guide the lower courts in addition to its judicial interpretations. The SPC creates and transmits to the lower courts new judicial policy in the form of an “opinion” (意见), which is also a type of Party/government document.  This same term is used for documents jointly issued by the SPC and institutions not authorized to issue judicial interpretations. This blogpost focuses solely on SPC policy documents.

The SPC classifies opinions as “judicial normative documents” (司法文件 or 司法规范性文件(the title of this Wechat public account) and sometimes judicial policy documents” (司法政策性文件).  As I’ve written before, this fuzzy use of terminology is not unusual. An (authoritative) follower has proposed using the English translation “judicial regulatory document” for 司法规范性文件.  An authoritative person (who cannot be named), concurred with the follower’s proposal. Those with views on the translation point should use the contact function or contact me by email.

These documents are issued with the identifier “法发” (fafa), indicating that they have been approved by the judicial committee of the SPC or one or more senior SPC leaders.  Transparency is better than before (and the SPC has issued documents encouraging greater transparency) but there is no strict publication requirement, unlike judicial interpretations.

 The FTZ Opinion is an example of how the SPC supports the Party and government by issuing documents to support important initiatives. This is a subject that I have written about on this blog before. These SPC policy documents signal an evolution of judicial policy, establish new legal rules and direct the lower courts. Lower courts implement these measures in various ways, including in their court judgments or rulings and to further implement SPC judicial policy documents.  Local courts may issue implementing guidance, as SPC policy is intended to be a framework under which local courts issue more specific measures to deal with specific local issues.

The FTZ Opinion signals evolving judicial policy to FTZ courts in a number of areas, including on civil and commercial law issues. For example, it states that courts should
support FTZ finance leasing companies and should respect the agreement of cross-border parties regarding jurisdiction and governing law. It states that a finance lease contract shall not be determined to be null and void because relevant procedures had not been performed.

The drafting of these judicial policy documents, such as the FTZ Opinion, follow a drafting process similar to judicial interpretations. The usual practice in drafting judicial interpretations is for the SPC to engage in extensive research and fieldwork, consult with related institutions within the SPC and external institutions when relevant (another academic article stuck in the production pipeline will describe the process in more detail).

The drafting team for the FTZ Opinion engaged in several years of field work, established an FTZ Research Base in Shanghai, held a Judicial Forum for the Pilot Free Trade Zones, solicited the views of experts and local courts, in the areas where FTZs are located. The SPC’s  #4 Civil Division, in charge of foreign and cross-border related civil and commercial cases and related issues, took primary responsibility for drafting the opinion. The reason that the #4 Civil Division took the lead was that much of the substantive parts of the FTZ Opinion relates to foreign trade, foreign investment, and cross-border arbitration issues. Earlier Shanghai local court guidance was incorporated into the FTZ Opinion. Once the draft was relatively advanced, it was circulated to other relevant areas of the SPC for comments. As the team of judges who led the drafting focus on cross-border civil and commercial issues, they sought comments on related issues from the Research Office, likely one of the criminal divisions and the administrative division. Consistent with general judicial practice (and SPC rules), the FTZ Opinion was not issued for public comment. The drafting of the FTZ Opinion is one small example of the quasi-administrative way in which the SPC operates.

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. The lower courts need to deal properly (politically and legally) with outstanding legal issues pending a more permanent stabilization of legal rules.  This is true for judicial policy documents in all areas of the law, not only in commercial law.

Communist Party and the Courts, Court Reform, judicial transparency, State secrets

Shining a light on Chinese judicial transparency

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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.

 

Communist Party and the Courts, Court Reform, judicial transparency, State secrets

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

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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.

administrative cases, Children's rights, Communist Party and the Courts, judicial transparency

Socialist core values & Chinese judicial interpretations

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socialist core values poster in a Shanghai hotel

I write on socialist core values and Chinese judicial interpretations with some trepidation.  Not because I have trouble deciphering socialist core values, but because the two documents core to the analysis are available in summary form only, as at least one source has mentioned that the SPC document is classified. This blogpost is based on those summaries, primarily on the summary provided by Supreme People’s Court (SPC) Research Office (研究室) head Jiang Qibo of its five-year work plan (2018-2023) to incorporate fully socialist core values into judicial interpretations (关于在司法解释中全面贯彻社会主义核心价值观的工作规划（2018-2023).)  in 2015 the SPC had issued a general document on socialist core values.

As explained below, it appears that the SPC is both “serving the greater situation” by implementing in the courts the Party’s plan to integrate socialist core values in plans to legislate and amend legislation（社会主义核心价值观融入法治建设立法修法规划） while at the same time seeking to deal with many of the difficult legal issues that face it.

For those unfamiliar with the SPC’s Research Office, (as I am writing in yet another academic article stuck in the production pipeline),  2007 SPC regulations place it as the gatekeeper for reviewing proposals, examining and coordinating the drafting of judicial interpretations.  It also acts as the liaison when other central institutions forward their draft legislation and judicial interpretations to the SPC for comments, coordinating the SPC’s response with other divisions and offices, with a knowledgeable person noting that “the view of the Research Office prevails.”

The critical language in the Party’s plan for the SPC and its judicial interpretations appears to be: “judicial interpretations should be amended and improved in a timely manner according to the demands of socialist core values” (司法解释，要按照社会主义核心价值观的要求，及时进行修订完善).  This language appears only in the SPC’s summary of its own plan and not in the earlier reports on the original plan.

The SPC’s approach to implementing the Party’s plan was to pull together all the demands on and recommendations to it to draft judicial interpretations–some in Party documents, others in recommendations from the National People’s Congress (NPC) Standing Committee (presumably its Legislative Affairs Commission), proposals from NPC and CPPCC delegates, a collation of proposals concerning judicial interpretations from the lower courts, plus  the needs of the courts (as seen from the SPC), and the SPC’s other drafting commitments.

The areas of law that Jiang Qibo are relevant to a broad range of persons, from commercial lawyers to environmentalists, to those interested in the rights of women and the elderly. Some involve new areas for judicial interpretations while others require expanding old ones.

Jiang Qibo classified the interpretations into five broad categories:

  1. The category of patriotism, dedication, and harmony includes the following (important) judicial interpretations. It appears the #1 Civil Division will take the lead on these, and I trust will engage in public consultation:
  • Amending those on the right to reputation and the right to honor to include better protection for heroes and martyrs (as to be expected and was flagged in a recent blogpost); See some earlier translations here on the SPC’s statements on the earlier heroes and martyrs litigation;
  • amending and improving judicial interpretations related to the Marriage Law and family law, etc.  I recommend this article by Professor Yang Lixin of Renmin University (formerly an SPC judge) for his forthright analysis of the state of Chinese family law and current important issues (children born out of wedlock, same-sex marriage, wills, surrogacy, etc);
  • improving the systems for trying family-related cases (Judge Du Wanhua is overseeing the pilot projects in this area); improve the legal protection of juveniles; prevent and punish school bullying, etc. (the SPC has been doing research on improving juvenile law and preventing school bullying for several years).
  • amending/improving labor dispute judicial interpretations (these fill in the holes in labor legislation)  As has been discussed earlier on this blog, the number of labor cases in the courts has increased.

2. The category of equality, justice, democracy, and rule by law:

  • Improve protection of property, especially non-public property, in criminal law. (See last year’s blogpost on this). Recent developments in China have seen greater use of confiscation procedures, and as this blog highlighted earlier this year, property protections are inadequate.
  • Improve the rules for trying property condemnation cases, to better protect the rights of those whose property is being acquired.
  • A judicial interpretation on hearing disputes over the use of personal information is needed (project approval for this has been given). Also work will start on a judicial interpretation on the protection of wild animals and protected species (see NPC Observer’s article on a related case), and the enforcement judicial interpretation is also to be amended (because of the SPC’s campaign to improve enforcement).

3. In the category of justice, friendship, and cooperation are the following:

  • an interpretation on self-defense (recently in the news in China in several cases, such as the Yu Huan case and a case in Kunshan);
  • also improving the SPC’s2016  policy document on judicial legal assistance (legal aid as arranged by the courts).

4. On setting out further details to the broad principles in the General Part of the Civil Code (also Judge Du Wanhua continues to be involved with this):

  • amending the contract law judicial interpretations;
  • amending the judicial interpretations on the criminal punishment production and sale of fake and shoddy goods;
  • amending the judicial interpretation on food and drug safety crimes;
  • criminal punishment of fraudulent litigation (just released);
  • rules on hearing cases in which the government is a contracting party, and issuing a judicial interpretation at an appropriate time.

5. On prosperity, creativity, and greenness:

  • amending the judicial interpretation relating to villages, to provide services for rural revival;
  • amending real estate related judicial interpretations;
  • amending finance related judicial interpretations, to ensure national financial safety and prevent a financial crisis (the criminal law in this area is quite unclear);
  • amending the judicial interpretations on bankruptcy law;
  • improving judicial interpretations related to intellectual property law (IP law), see more below;
  • amend the judicial interpretations related to environmental protection;
  • amend the judicial interpretations on maritime trade and other maritime matters.

On the intellectual property front:

  • The SPC will look into punitive damages for patent, copyright, and other IP infringement so that in serious cases punitive damages can be imposed and having the infringer responsible for the costs to the rights holder of stopping the infringement;
  • in the next five years, if the legislation is not amended it will work on using market value as a basis for damages;
  • it will work to better coordinate between administrative and judicial enforcement of IP rights;
  • it will work on guidance on civil cases that arise because of monopolistic conduct;
  • protection of plant species;
  • it will look into new issues related to unfair competition cases, also in trade secret  cases, and new issues related to civil trademark disputes;
  • research evidence issues in IP cases, look into having IP technical investigators involved in litigation;
  • research jurisdiction in IP and unfair competition cases;
  • look into preliminary preservative measures in IP cases (mentioned in an earlier blogpost).

The ones listed in the plan will be prioritized in the project approval process for judicial interpretations (see two earlier blogposts on what that is and the topics on that list)

 

judicial transparency

The hunt for Chinese court white papers

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Winnie the Pooh & Piglet hunting for Woozles ©Ernst Shepard

In recent years, many Chinese courts have prepared and published white papers and research papers on specific topics with detailed statistics and analysis, a major step forward in transparency from the early 1990s. This blog has analyzed or mentioned several of them.  Many, on topics that include sexual assault on minors, real estate disputes, drug crimes, home renovation, and labor disputes remain to be discussed.  Releasing these reports to the general public is part of the Supreme People’s Court (SPC)’s efforts to promote greater openness. (Some research papers are for internal use only, but this post discusses only those cleared for public release). SPC President Zhou Qiang has mentioned increasing the courts’ release of white papers as one of the SPC’s many achievements in his reports to the National People’s Congress and its standing committee.  The efforts to promote the use of white papers date back to at least 2009 when the SPC issued a policy document on judicial statistics that stated:

Establish a public release system for judicial statistical data. Increase the publicity of judicial statistical information, hold a press conference to release judicial statistical information on a regular basis, actively explore the establishment of a white paper system for judicial statistics….

As those of us looking closely at the operation of the Chinese courts know,  court white papers and research reports are often based on statistical data from various internal sources and contain analysis by judges who have dealt with these cases.  Although these white papers and research reports are valuable for their statistics and related analysis, they are not always published on the internet, such as on the website of the court that issued the report. For the conscientious researcher, it is annoying  (not to mention a waste of valuable time) to find articles on court websites and local media reporting on the public release of a white paper or research report, but without a link to the full-text report.   I am facing this issue yet again in trying to do research for an essay (on a non-sensitive topic) to be included in a book edited by one of the members of the SPC’s International Commercial Expert Committee.

For example:

Tianjin high court’s 2018 Belt & Road white paper, report here 

As to why the full-text of white papers or reports are not published on the internet, reasons could include:

  1.  Anxiety on the part of the leaders of the court regarding the consequences of public distribution of these reports among the affected institutions, including companies, Party/government authorities, and higher courts (This rationale was advanced by an experienced judge whose court had not publicly released white papers until recently),
  2. Court leaders see the submission of the white paper or research report to their higher level court (or to local government) as having fulfilled their duty to have issued it and are not concerned about or aware that its public release is important.
  3. The court website infrastructure lacks sufficient capacity to host the paper.

For those courts with the infrastructure to host PDF or html versions of their white or research papers,  the Shanghai, Guangzhou, and Xiamen maritime courts provide good examples–all post white papers on the front page of their websites (or on their Wechat public accounts), making them easily accessible to the researcher.  I would expect that Zhao Hong, the president of the new Shanghai Financial Court,  formerly the president of the Shanghai Maritime Court, would carry on the practice of her former court. Both the SPC and the Shanghai higher and intermediate courts have something to learn from these maritime courts （see this white paper hidden on a Shanghai higher court webpage), not to mention many other localities.   Many of the research reports prepared by SPC divisions appear to be published in division publications, such as Reference to Criminal Trial (刑事审判参考） or Guide to Foreign-Related and Maritime Trial (涉外商事海事审判指导). The Shenzhen intermediate people’s court recently issued a bilingual white paper on bankruptcy, seemingly only available directly from the court.  Why the court leadership required a bilingual version but did not make it widely available is a mystery yet to be solved.