Category Archives: NPC

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

President Zhou Qiang giving the report

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

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

Progress of the Pilot

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

 Pilot Measures Issued By the SPC

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

The main ones listed are public:

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

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

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

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

Impact on the SPC Itself

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

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

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

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

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

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

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

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

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

Impact on the lower courts

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

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

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

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

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

Comments by NPCSC Delegates

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

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

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

Some thoughts about this judicial reform

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

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

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

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

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

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

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

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

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

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

“Same Life, Different Values:” An Example of How Judicial Interpretations Are Reviewed in China

Written by Dongyu Sun.  Edited by Susan Finder and Changhao Wei.

This post also appears on the NPC Observer.

On December 15, 2005, a loaded truck rolled over on a mountain road in Chongqing, crushing a trishaw carrying He Yuan and her two friends to school. All three perished in the accident. What thrust this tragedy into the national spotlight, however, was the drastically different amounts of compensation their families received. The trucker’s employer settled with the families of Yuan’s friends for over 200,000 RMB each, but was willing to pay hers only 80,000 RMB—because she, unlike her classmates, had a rural hukou (or household registration).[1] The company cited a 2003 Supreme People’s Court (SPC) interpretation on the application of law in personal injury cases (2003 Interpretation), which created two separate standards for compensating the deaths of urban and rural residents.

As a result of this effectively hukou-based rule, countless victims’ families have found themselves in the same position as Yuan’s. The Chinese public has dubbed this phenomenon “same life, different values” [同命不同价] and has persistently criticized the 2003 Interpretation. Some citizens have requested that the NPC Standing Committee (NPCSC) conduct a constitutional review of the Interpretation.

It was not until 2020 that the NPCSC’s Legislative Affairs Commission publicly addressed these requests in its annual report on “recording and review” (R&R) [备案审查]. This report’s timing and content are significant. Below, we will first take a closer look at the 2003 Interpretation and the controversy surrounding hukou-based compensation standards, before returning to the Commission’s report.

The SPC’s 2003 Interpretation

Under article 15 of the 2003 Interpretation, in a civil case where the deceased victim was an urban resident, the defendant must generally pay twenty times the previous year’s per capita disposable income of urban residents of the relevant province for the victim’s death. For a victim who was a rural resident, the previous year’s per capita disposable income of rural residents[2] is used as the base instead. The urban per capita disposable income is consistently several times higher than its rural counterpart across China. In practice, courts mainly used the victim’s hukou to determine the applicable standard. Article 12 of the 2003 Interpretation contains similar residence- (hence hukou-) based compensation standards when the victim has been permanently disabled. At the time, the standards in the 2003 Interpretation were considered appropriate for China and in line with official policy that made distinctions based on hukou.

Within a few years, the SPC publicly acknowledged that the dual standards created inequities between urban and rural victims. Then-SPC President Xiao Yang told media in 2007 that the SPC had already formed “a preliminary view” on “same life, different values,” and would issue new rules after that year’s NPC session. But in 2008, an SPC vice president disclosed that it was not possible for the SPC to reach a consensus on a replacement standard.[3] Instead, the SPC issued measures in 2006 and 2011 directing the lower courts to consider factors in addition to hukou (such as a victim’s “habitual residence”) in applying the 2003 compensation standards. Basic level courts encountered many difficulties in implementing this guidance, however, so hukou largely remained the determining factor.

The issue of the dual compensation standards arose during the drafting of China’s Tort Liability Law [侵权责任法].[4] One draft would have set a uniform national standard for death compensations, based on the average annual salaries of urban employees nationwide, while another would have provided an individual-based rule.[5] The NPCSC in the end did not adopt either provision and left the rules in the 2003 Interpretation intact. The Tort Liability Law did make one limited change in response to cases like He Yuan’s: under article 17 (now codified as article 1180 of the Civil Code [民法典]), if multiple people died because of the same tort, a court could award their families the same amount of death compensation without regard to their individual circumstances.

From these developments, it is clear that the authorities considered that the hukou-based rules fit the reality of unequal development of China’s urban and rural regions.[6] They thought that an individual-based rule would give judges too much discretion, but that uniform rules would either create too much burden for rural tortfeasors (if based on urban income level), or be unfair to urban victims (if tied to rural income level). So the 2003 Interpretation, plus the SPC’s flexible measures, were considered the least worst.

Fang Shimin’s Request for Review

Over the years, Chinese citizens have requested the NPCSC to review the validity of the 2003 Interpretation through its R&R process, explained here in more detail. In sum, that process is an oversight tool that empowers the NPCSC Legislative Affairs Commission (LAC) to reject a sub-statutory legal document if it deems the document unconstitutional, unlawful, contrary to the Communist Party’s major policies, or otherwise “clearly inappropriate.”

The Southern Metropolis in January 2021 reported on such a citizen request and the LAC’s reply. Mr. Fang Shimin, a retired manager of an Anhui mine company with an interest in the law, wrote to the LAC in mid-2018, arguing that the 2003 Interpretation’s hukou-based rules violated the guarantee in Article 33 of the Constitution that all citizens are “equal before the law.”

The LAC (specifically, its Office for Recording and Reviewing Regulations) disagreed with Mr. Fang. It responded to him in December 2018, after having consulted with the SPC and its own Office for Civil Law. The LAC explained that the differential compensations were constitutional because they did not in fact make up for the victims’ disabilities or lost lives, but were instead economic relief to the victims or their families. The LAC’s reply did also acknowledge that there were some issues with the 2003 Interpretation that need to be “studied and resolved,” including how to define the compensation more reasonably so that “most citizens would accept them.”

Recent Policy Change & Reform Pilots

The turning point for the hukou-based compensation rules came in late 2013, when the Communist Party decided to “accelerate” hukou reform. A few months later, the State Council issued a major policy document that called for abolishing the distinction between urban and rural hukou and replacing both with “resident hukou” [居民户口]. By February 2017, all mainland provinces had implemented this reform. The State Council also ordered companion reforms to other institutions (e.g., social welfare programs) consistent with the uniform “resident hukou” system, but one government researcher said at the time that there would be “a long way to go” before the urban-rural disparity in social benefits disappears.

After a few years of development, in April 2019, the Party Central Committee and the State Council issued a joint policy document to further hukou reform and to promote integrated development of urban and rural areas. The document specifically requires “reforming the personal injury compensation system and equalizing compensation standards for urban and rural residents.”

To implement this directive, the SPC soon required provincial-level courts to initiate pilot programs to equalize compensation standards. According to our research, almost all courts have decided to conduct the pilots within the whole province, while a few limited their scope to a few designated cities. The majority of provinces are experimenting with uniform compensation standards in all civil cases involving personal injury, but a few are testing them in only a subset of tort cases, for instance, those arising from traffic accidents. As for the new compensation standards, most provinces are now applying the urban standards under the 2003 Interpretation to all victims, whereas some are trying out new formulae, such as the per capita disposable income of all residents of a province.

The pilots are still underway as of this writing. The SPC has not indicated when they would end.

The LAC’s Report

It was against this backdrop that the LAC again responded to citizens’ requests to review the SPC’s 2003 Interpretation. According to its 2020 R&R report, some citizens (like Mr. Fang before them) argued that “the inequalities in judicial trial practices that have resulted from the [2003 Interpretation’s] different calculation standards were inconsistent with the relevant constitutional spirit”—namely, the equality principle.

The LAC responded:

After review, we think that as the society develops and makes progress, the State has proposed the integrated development of urban and rural areas, and the gaps between urban and rural development and the residents’ living standards will gradually narrow, so the differences between standards for calculating compensations for personal injury to urban and rural residents should accordingly be abolished.

我们审查认为,随着社会发展进步,国家提出城乡融合发展,城乡发展差距和居民生活水平差距将逐步缩小,城乡居民人身损害赔偿计算标准的差异也应当随之取消。

The LAC then mentioned the ongoing pilot programs to equalize the compensation standards as authorized by the SPC and reported that it had “advised” the SPC to “timely” amend its 2003 Interpretation after “summarizing lessons learned from the pilots.”

It thus appears that the LAC dodged the constitutional question raised by the citizens’ requests. Instead, it relied on two other grounds under the R&R’s governing rules—new state policies and changed realities—to disapprove the hukou-based rules in the 2003 Interpretation. Yet, curiously, Liang Ying, head of the LAC’s Office for Recording and Reviewing Regulations, affirmed the constitutional nature of the LAC’s review of the 2003 Interpretation in an interview with the Legal Daily. If so, then why did the LAC was not more forthcoming about its true reasoning in its official report?

It might have concerns for the ramifications of using the Constitution to invalidate the SPC’s hukou-based standards. Although the post-2014 hukou reforms have removed the urban-rural classification, they have neither ended the hukou system nor instantly improved the urban-rural inequality created by the prior classification. Most citizens continue to obtain critical social services and benefits—compulsory education, healthcare, affordable housing, unemployment benefits, pension, veterans’ benefits, among many others—from the local government at the place of their hukou. (Rural migrants may access urban benefits, but only if they meet the often-stringent residency requirements, especially in megacities.[7]) Except under a few now-integrated welfare programs, rural residents in general still receive social entitlements of inferior quality. For instance, the State Council maintains separate rules for the urban and rural subsistence allowance programs. And by end of 2020, only 7 of 31 mainland provinces had achieved (rough) parity of subsistence allowances between urban and rural residents; in all other provinces, eligible urban residents received at least 20 percent (and up to 130 percent) more allowances than rural residents.

Were the LAC to reject officially the 2003 Interpretation’s dual compensation standards on constitutional grounds, it would render other hukou-based rules—rules that disfavor rural residents—susceptible to the same constitutional challenge. By contrast, relying on policy and societal changes that are specific to personal injury compensation would give the LAC more leeway to turn away constitutional attacks on other hukou-based rules. By framing the controversy over the 2003 Interpretation as one of policy, therefore, the LAC can signal that other hukou-based rules are open to change, but also make clear that the changes will come only at the authorities’ discretion.

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SUN Dongyu graduated from the School of Transnational Law of Peking University in 2018, with a Juris Doctor degree in American law and a Juris Master degree in Chinese law. He was recently awarded a German Chancellor Fellowship by the Alexander von Humboldt Foundation in Germany for the year 2021–22. He currently works as a research assistant to Professor Susan Finder. 

Changhao Wei is a Postdoctoral Fellow at Yale Law School’s Paul Tsai China Center, where he focuses on China’s legislative process and constitutional enforcement mechanisms. He is the founder, manager, and editor of NPC Observer, a website that covers China’s national legislature, the National People’s Congress.

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[1] Rural hukou was officially “agricultural hukou” [农业户口], and urban hukou “non-agricultural hukou” [非农业户口].

[2] The Interpretation uses the term “per capita net income of rural residents” [农村居民人均纯收入], but the National Bureau of Statistics has stopped using that metric since 2016 and has replaced it with the “per capita disposable income of rural residents” [农村居民人均可支配收入].

[3] See Zhang Xudong [张旭东], The Theoretical Paths to Solving the Conundrum of “Same Life, Different Values” [破解“同命不同价” 难题的理论路径], Mod. L. Sci. [现代法学], no. 6, 2008, at 97, 98.

[4] See Zhang Xinbao [张新宝], An Interpretation of the Death Compensation System in the Tort Liability Law [《侵权责任法》死亡赔偿制度解读], China Legal Sci. [中国法学], no. 3, 2010, at 22, 23.

[5] Id.

[6] Zhang, supra note 4, at 98.

[7] See, e.g., Kam Wing Chan, China’s Hukou System at 60: Continuity and Reform, in Handbook on Urban Development in China 59, 73–74 (Ray Yep et al. eds., 2019).