From time to time, I write on Chinese military legal developments, an outgrowth of my interest in one of the few Chinese courts without a internet presence, the military courts. I recently published an article on the military legal reform document published earlier this year (full text not available), looking at some of the related academic discussions and relating it back to the 4th Plenum Decision and the 4th Five Year Judicial Reform Plan. I would welcome any comments or corrections any readers might have.
The details of how the 4th Plenum Decision is being implemented by the Supreme People’s Court are gradually being made known. This blogpost looks at one discrete (and specialized) area, relating to national defense and the military in the civilian courts.
On 31 October, the Supreme People’s Court issued its Opinion on Expanding Capacity in Safeguarding the Interests of National Defense, Guaranteeing the Rights and Interests of Military Personnel, and Military Dependents (关于进一步发挥职能作用维护国防利益和军人军属合法权益的意见)(The Opinion) (linked here, with comments by a spokesman here).
The sixteen point policy is intended as a comprehensive statement of judicial policy on these issues to be implemented by the lower courts in furtherance of the goals set by the 4th Plenum Decision.
It is intended to implement the following provisions in the 4th Plenum Decision (among others):
- Safeguard the interests of national defense.
- Guarantee the lawful rights and interests of soldiers.
- Strengthen legal services in the area of the people’s livelihood. Perfect legal aid systems, broaden the scope of aid.
Several points from the Opinion are highlighted below, as well as questions that the Opinion raises (and some of the underlying issues) .
Some Points in the Opinion
1. The Opinion directs the lower courts to improve case filing and jurisdiction in cases related to the military. The Opinon cites the three principal judicial interpretations on civil and criminal jurisdiction in military cases, and encourages lower courts to establish special case filing counters for the military.
Why special counters for the military rather than the handicapped, for example, or other disadvantaged groups?
2. The Opinion directs lower courts to provide judicial and legal assistance to military parties. The Opinion explains that Judicial assistance means exempting or reducing court fees for poor military families in civil cases known as as “involving the interests of ordinary people” (more about these in an earlier blogpost) such as:
- support payments (to the elderly);
- child support;
- compensation payments (to the disabled or families of the deceased).
The Opinion directs lower courts to take the initiative to assist soldiers and military dependents who qualify in receiving legal aid. What this means is that courts should reach out to local justice bureaus. In some provinces, such as Zhejiang, the provincial judicial bureau has worked with the local military district to establish legal aid centers for military personnel and their dependents, under which local law firms have concluded agreements to provide legal advice (see this report).
How does the provision of legal aid to military personnel and their dependents compare to legal aid provided to other persons in poverty?
3. Do a better job of trying military cases. This refers to both criminal and civil cases.
Most of the criminal cases mentioned were detailed in this earlier blogpost.
Among the new principles to be implemented in civil cases are:
- supporting core military enterprises and military industrial companies. (依法为军队核心产业、军工企业的科学发展提供司法支持).
Government policy seeks to have more private sector involvement in military and military industrial companies.
What does this mean when commercial disputes arise– how will the interests of each party be weighed?
4. Establish a “green channel” for military related cases (this was mocked earlier this year), by giving priority to military-related cases in docketing, trial and enforcement. Part of this means directing lower courts to gather evidence if military parties have difficulty obtaining evidence.
What if it is the non-military party that has that difficulty, either in a commercial or family law case?
5. The Opinion directs the lower courts to work under the united leadership and support of the Party committee and political-legal committee on these issues and to work with other related departments to deal with military related cases.
What does that mean if the approach adopted by the Party committee or political-legal committee favors one party over another?
Other points include:
- Establishing mechanisms for resolving disputes involving the military.
- Improving enforcement of military-related orders and decisions.
- Improving judicial service related to the military
- Courts should work closely with the military.
- Explore capturing statistics on military related cases.
- Incorporating work in military-related cases in judicial performance evaluation.
- Working with the military courts on military-related cases.
Some of the underlying issues
As identified in earlier blogposts, some of the underlying problems causing an increase in military-related cases in the civilian courts appear to be :
- an increase in civil unrest involving civilians and military;
- unresolved civil disputes involving the military and its personnel
- criminal cases involving civilians and military that have not been prosecuted because of evidentiary issues.
- separate operations of the military and civilian justice systems;
- difficulties in coordinating across bureaucratic systems.
- performance indicators for officials within the (civilian) legal system, relating to the percentage of closed cases or other success rates.
The Opinion and the 4th Plenum
What does the Opinion mean for principles in the 4th Plenum such as:
guaranteeing judicial fairness, exercising judicial power independently according law, raising judicial credibility and striving to have the people feel that every judicial case is fair and just?
The Supreme People’s Court Observer contributed a brief blogpost to the Global Military Justice Reform blog on what the 4th Plenum Decision means for Chinese military law, linked here.The Global Military Justice Reform blog, based at Yale Law School, looks at military justice issues all over the world, including the jurisdiction of military courts, command control of military courts and other parts of the military justice system and is highly recommended!
The Supreme People’s Court Observer contributed a post to the Global Military Justice Reform blog, linked here, entitled “Does law have a place in China’s military and national defense reform?” The post commented on two recent articles, one by a researcher at China’s Academy of Military Sciences and the other by the Legislative Affairs Bureau of the Central Military Commission (中央军委法制局). The blogpost concludes with the prediction of the Supreme People’s Court Observer that when the Chinese leadership meets in October for the Fourth Plenum of the 18th Chinese Communist Party Central Committee to focus on the rule of law, some broad principles for military legal reform will be laid down, but notes that this prediction with be (dis)proved by events.
The Supreme People’s Court Observer contributed a post to the Global Military Justice Reform blog. It looks at the improvements that Chinese military experts see as necessary to improve military law as a part of the government’s plans for reforming and modernizing China’s national defense establishment and People’s Liberation Army. The post sets out the issues involved.