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

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. T

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.  

 

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

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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.

Shining a light on Chinese judicial transparency

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flashlight in the dark

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

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

further deepen judicial openness, constantly improve the openness of the trial process, openness of court proceedings, openness of judgment documents, openness of enforcement information–the four transparency platforms, comprehensively expand the breadth and depth of judicial openness, improve the form of judicial openness, smooth the parties and lawyers to obtain judicial information channels, build a more open, dynamic, transparent, convenient sunshine judicial system.

The transparency developments highlighted in the Fifth Judicial Reform Plan Outline will be guided by the policy document Supreme People’s Court’s Opinion Concerning the Further Deepening of Judicial Transparency  (Judicial Transparency Opinion 最高人民法院关于进一步深化司法公开的意见)) that I wrote about in December.

2.  The article I mentioned as being in the academic article production pipeline has finally emerged.  It can be found here. It is a chapter from the book Transparency Challenges Facing China and examines some recent developments in China’s judicial transparency. It suggests that although the scope of judicial transparency is inevitably shaped by the requirements to keep state and trial work secrets confidential, the Supreme People’s Court, within the boundaries of what is politically achievable, is taking concrete steps to expand the scope of judicial transparency.  The article focuses on information on judges and courts, statistics and big data, and judicial normative documents, digging into relevant court rules and highlighting Chinese language commentary.  The article shows that views on judicial transparency within the Chinese judiciary are not as monolithic as an outsider might have initially assumed.

 

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

62bc75491cff95d15b4742e0c32268d9In late November (2018), the Supreme People’s Court (SPC) issued its latest transparency policy. The question is, after reading past the references to the 19th Party Congress and the ideology guiding this document, is what, if anything new does it require of the lower courts (and of itself)? And why? Decoding this document (Supreme People’s Court Opinion Concerning the Further Deepening of Judicial Transparency  (Judicial Transparency Opinion 最高人民法院关于进一步深化司法公开的意见)) requires some background.  The why is easier to answer (I have written about this in an academic article in the academic publication pipeline), but I will also explain the “what is new” and what it means.

Why?

As to the why, it appears to be linked to criticism from within the court system and by prestigious research institutes within China.  Some of the critics and their criticism:

In 2015, Justice Hu Yunteng wrote that judicial statistics needed to be made better and more transparent.  In 2016, He Fan, department head in the SPC’s judicial reform office, wrote “as long as it does not infringe the privacy of the parties, does not violate state security, the court’s data interface should be open to the community.” Local judges, too, are writing critically about judicial statistics, with at least one comparing unfavorably China’s practices with those of the US Department of Justice’s Bureau of Judicial Statistics.

IMG_4136  The team of researchers at the Institute of Law, China Academy of Social Sciences (CASS) evaluated court websites in this volume, advising the courts to “consider judicial openness from the viewpoint of public users,” and expand transparency of judicial statistics, devote manpower to updating court websites, and put some order into chaotic judicial transparency. On December 10, a team from the CASS Institute of Law announced the results of their third-party assessment of the SPC’s judicial transparency, the first time that the SPC had authorized an institution to do so, finding problems with compliance by some lower courts.

What does is the Judicial Transparency Opinion require?

The Judicial Transparency Opinion requires the courts to expand the scope of transparency while keeping secrets secret  It refers to two types of secrets, state secrets and trial secrets(审判秘密) (also called trial work secrets).

Expanding the scope of transparency while maintaining secrecy

The Judicial Transparency Opinion requires the lower courts to expanding the scope of information that they make public while keeping state and trial work secrets secret.  Although most people who a basic idea about Chinese law have heard about its broad definitions of state secrecy, that same cannot be said about the concept of “trial secrets”.  Although the general legislation on state secrecy has been updated in the past 10 years, it is unclear whether the same can be said of the specific regulations on state secrecy in the courts.  “Trial secrets” is a related concept but the relevant regulations appear to be almost 30 years old and do not define the scope of the secrets clearly. They include accounts of discussions of judicial committees, and “views from relevant units.”

What is required?

In addition to setting broad principles such as timely and substantial disclosure (research done at Tsinghua has found that some courts upload their decisions to the SPC’s judgment database months late, or not at all) and a team of leading scholars  based at several US universities that includes Columbia Law School Professor Benjamin Liebman found a “missingness problem” when looking court judgment databases), the Judicial Transparency Opinion sets out specific requirements on transparency. Those requirements are set out in seven broad areas in which the courts should voluntarily release information (except those where law, administrative regulations, judicial interpretations do not permit release information and other information that is unsuitable for being made public (其他不宜公开). The phrase “unsuitable for being made public,” is flexible enough to cover both the politically sensitive on a larger and minor scale. (For more on unsuitability, see the article that Professor Liebman and colleagues wrote).  The preliminary section also calls for the greater use of white papers and court gazettes.

The seven categories include:

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

I have selected some areas in each category where greater openness is anticipated (and included some comments in italics).

A.   Among the useful new items in “basic information”

  • institutional establishment (机构设置) (generally refers to internal structures–both the Chinese and English version of the SPC website have this);
  • Normative documents (规范性文件)–Chinese law does not require these documents, which are not legally binding to be made public, but they guide the operation of the courts–if the SPC makes more of these documents public it would be a service to all;
  • Work reports to the people’s congress at the same level (makes life easier for research seeking to access this information over time);
  • Other basic information that needs to be widely known in society (it should include information for the “litigant in person” (the person without a lawyer, but it doesn’t).

B.  On enforcement, the SPC direct the lower courts to gradually expand the scope of enforcement openness.  Matters on the 12-item list include:

  • judicial statistics (presumably to include greater consistency among jurisdictions, unclear the scope of the statistics that may be released);
  • enforcement procedures (unclear whether this is for parties only or the general public);
  • bankruptcy information (not much is being made public);
  • Annual reports on enforcement in different substantive areas;
  • Judicial big data reports.

C.  Litigation services

  • Litigation guides (see the Shenzhen intermediate court’s list–while a good start, they are not user-friendly (guide to criminal collateral appeals, for example): 
  • court notices and information about judicial auctions and other information relating to the disposal of judicial property (this could be interesting in corruption-related cases);
  • judicial services, experts, bankruptcy administrators, etc.
  • specially appointed mediators and mediation organizations; lawyers stationed at the courts, other volunteers assisting with litigation;
  • Channels for collateral appeals and petitioning;
  • other information relating to party’s rights in litigation and other information the public should know–again see the suggestion above (for Chinese litigants) and this blog has previously made for non-Chinese litigants and defendants as well (foreigners and others from outside of mainland China also need some easily understandable information about the Chinese court system).

D.  The SPC calls for greater transparency relating to Judicial reform so that the public will have greater confidence in it, including:

  • judicial reform documents (would make the life of researchers trying to assemble the judicial reform puzzle much easier);
  • Information on progress in judicial reform [unclear whether the drafters are referring to white papers]
  • Other information the public should know (that ideally should include statistics related to judicial reform, including resignations of personnel, but appears unlikely);

E. Judicial administration–The SPC calls for the courts to accept supervision by society.  The measures include:

  • Matters relating to societal interests and follow up from suggestions made by National People’s Congress/Consultative Congress members (it would be useful to know what percentage of court staff is “on the front-line” of hearing cases rather than being in an administrative role);
  • Technical standards.

F. International judicial exchanges and cooperation–increase exchanges and reference between legal cultures, create a good impression internationally of the Chinese courts, promote their international competitiveness, influence and credibility:

  • important international judicial exchanges
  • important international judicial conferences;
  • other matters that society should know about.
    No mention of lists of projects for which the Chinese courts would welcome international exchanges and interchange of legal concepts. No mention of how a foreigner would be able to attend a court hearing in China.
  1. “Team construction”–this term is a Party term (but the Party is in charge of cadres)–i.e. this section relates to judicial personnel
  • the situation relating to Party construction (listed first, understandable in the post 19th Party Congress era);
  • Personnel work (it would be useful to have a breakdown of the number of judges and other judicial support personnel as well as those in administrative roles, as well as resignations and appointments);
  • Disciplinary information (it would be useful to have full decisions published, as in other jurisdictions);
  • Training and education.

Other issues

The final paragraph of the Judicial Transparency Opinion calls for implementing measures and more detailed measures to be drafted and for measures to be put in place.  So it can be expected that specific departments of the SPC will be involved in drafting more specific guidelines (will that involve more specifics on the types of statistics on criminal convictions released)?  Once the national guidelines are in place, we can anticipate that provincial high courts (or their equivalents) will issue implementing documents.  It is only then that we will be able to comment on what the actual impact of this document is.

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)

 

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.