I recently published an article in The Diplomat entitled “China’s Maritime Courts: Defenders of ‘Judicial Sovereignty,” focusing on what Supreme People’s Court President Zhou Qiang meant when he mentioned that China would establish an international maritime judicial center (国际海事司法中心). Many thanks to Professor Vivienne Bath for her research on parallel proceedings and choice of court issues involving China, as well as several others who provided their insights.
In late December, the Supreme People’s Court (SPC) held its 8th conference for civil and commercial judges, gathering together senior court leaders from around the country and from both civilian and military courts responsible for a broad range of civil and commercial issues. Speeches of two senior SPC judges responsible for civil and commercial matters, as well as a draft conference summary have been circulating among Chinese legal professionals. What is the relevance of all of this to the world outside of the Chinese courts, particularly to the world outside of China?
It is relevant for several reasons:
- The court conference illustrates the role of the SPC in the Chinese political legal system and its relationship with other institutions;
- As in other legal systems, the Chinese courts are an individual or company’s last resort for resolving disputes;
- Those disputes highlight major issues in the Chinese economy and society. The slowdown in the Chinese economy is already affecting the rest of the world, and the difficult issues for the courts signal where economic problems are. Social issues have a more indirect impact on the outside world, but still affect foreign businesses and institutions.
The phenomenon of the court conference (and conference summary)
As this blog has highlighted earlier, the Chinese government regularly organizes conferences to ensure that subordinate entities are implementing the latest central policy on the matter as well as to harmonize local practice. This is true of the courts as well as the food safety authorities.
Because the SPC is one of several central political legal institutions, the speakers included Meng Jianzhu, head of the Central Political Legal Committee, and participants included representatives from the Central Political Legal Committee, the Legal Work Commission of the National People’s Congress, the Legislative Affairs Office of the State Council, and other central legal institutions.
The conference summary, now circulating in draft form, is a type of SPC official document (see the SPC’s regulations on the subject), classified as a “normative document” and often address new issues or areas of law in which the law is not settled. Under SPC rules, it can not be cited as the basis of a court judgment but guides how lower courts consider the issue.
As to why the SPC organized the conference, the vast majority of Chinese court cases are civil and commercial. At the conference it was revealed that 80% of cases resolved by the Chinese courts since 2008 are civil and commercial cases. For that reason, if the goal of the SPC is to make every person feel fairness and justice in every case (under Party leadership), the focus must be on doing a good job in hearing civil disputes.
What are the issues facing the Chinese courts?
Judge Cheng Xinwen, the head of the #1 Civil Division spoke about the issues civil court judges need to monitor in 2016 (some of which have been mentioned in earlier blogposts) and the current official thinking on them (set out in the conference summary):
- Real estate, property and construction;
- Consumer protection;
- Challenges to enforcement action;
- Private lending.
This blogpost looks at some of the issues relating to real estate, property, and construction cases.
Real estate, property and construction cases
Real estate cases account for a substantial part of the caseload of the Chinese courts. Trying them properly, according to the SPC leadership, is linked to implementing the government’s macro-economic policies. Cases are on the increase, particularly in third and four tier cities. The market has switched from a seller’s to a buyer’s market in some second and third tier cities: Some of the problems include:
- developers suing to invalidate grant contracts (under which they purchase land for development) and seek the return of the land grant fees (upon which local governments depend);
- Developers who are short of funds and are unable to hand over properties on time;
- Declines in property prices causing “mass incidents.” Local courts are directed to liaise with local Party and government authorities, and take steps to prevent chain reactions. This 2014 article mentions incidents in Taizhou, Zhejiang province, a province where many cities have seen a deflating property market;
- Many cases involve both real property and private lending, and include developers illegally fundraising, mortgaging or selling the same property several times;
- Property registration, ownership in common, and bona fide purchases, are difficult issues for the courts, and the SPC will issue further guidance in the form of a judicial opinion on these soon.
Construction cases account for a relatively small number of cases (about 100,000 annually), but they tend to be complex and involve large amounts of money. Issues with construction cases indicate big problems in the industry because of funding problems, causing quality problems in construction, many unpaid migrant construction workers and an increasing number of disputes. Among the problems:
- construction contracts that should have been let out for bidding that weren’t;
- construction contracts illegally subcontracted;
- construction contracts illegally subdivided;
- contracts in which a contract party should have had a construction qualification or planning permit.
- Contract parties to these invalid contracts that seek to minimize their payouts under these contracts and seek to avoid the payment clauses (but the SPC states that those should be respected);
- Unless a subcontractor’s migrant construction workers remain unpaid, courts shouldn’t disturb liquidated damage clauses to expand a project owner’s liability. With unpaid laborers, the project owner’s lability could be expanded to cover the amounts owed to the actual unpaid workers.
Courts are directed to balance individual and societal interests, to uphold social public interests and an orderly construction market.
At the conference, the SPC leadership promoted six slogans (i.e.principles) of:
- protection of property rights;
- respect for freedom of contract;
- upholding equal protection;
- upholding the unity of rights and duties;
- maintaining honesty and keeping promises;
- promoting procedural and substantive justice;
Litigants of all types, domestic and foreign, corporate and individual will be able to come to their own conclusions about how well the Chinese court system delivers on these broad principles.
On 27 April 2015, the Supreme People’s Court issued a judicial interpretation (English translation here) (27 articles) of the Administrative Litigation (Procedure) Law) (Administrative Litigation Law JI). Judge Li Guangyu, deputy head of the Administrative Tribunal noted that it is not intended to be comprehensive but to address major practical issues the lower courts will face as the law becomes effective.
It was not issued for public comment (there is no such requirement), but comments were solicited within the court system, as well as from the procuratorate, and other authorities, such as the administrative authorities (State Council Legislative Affairs Office and its local counterparts) and the National People’s Congress Legislative Affairs Commission (and its local counterparts).
This judicial interpretation sets out specific rules concerning judicial review of administrative action, filling in some of the blank spots, adding definitions and inserting some specific legal infrastructure (such as filing deadlines) into the Administrative Litigation Law. It is relevant to:
- Chinese individuals, companies (domestic and foreign-invested alike), and organizations seeking to challenge a broad range of government actions and decisionmaking;
- Foreign governments and international organizations reviewing China’s undertakings to provide impartial and independent tribunals to review administrative action (as China did in its accession to the WTO) or negotiating investment protection and other treaties with the Chinese government;
- Foreign companies, organizations, and individuals seeking to challenge Chinese government action.
The judicial interpretation addresses 10 major areas, but this post will highlight the following:
- case filing;
- requirement that a “responsible person” of an administrative agency to appear in court;
- consolidated hearing of a related civil matter;
- consolidated review of normative documents;
- administrative agreements
- consolidated hearing of a related civil matter.
Article 1 of the judicial interpretation addresses pervasive refusal by local courts to accept cases (and related problems)(recognized by all stakeholders), by:
- directing courts to accept cases on the spot, if it is apparent that the complaint meet statutory requirements;
- directs courts to respond within 7 days, if further review is required;
- if a court still is unsure after 7 days, it is directed to accept the case.
Appearance by a responsible person
Although during the passage of the Administrative Litigation Law, much was made of the requirement in Article 3 that a “responsible person” appear in court, Article 5 of the Administrative Litigation Law JI clarifies that the head or deputy head of an administrative agency may appoint a representative to appear in court.
Article 11 of the Administrative Litigation JI seeks to address, in greater detail, several issues: the definition of an administrative agreement, and what to do about a breach of one. In particular, it details how courts need to hear an aggrieved private party, when a government agency improperly terminates, amends, or fails to perform either:
- land acquisition and condemnation agreement; or
- a concession agreement.
The first has been a widespread underlying cause of protests, while the second must be resolved if private capital is to heed the call of the Chinese government is encouraging to participate in public-private partnerships, civil-military partnerships, and other uses of private capital to operate public services. Article 11 of the Administrative Litigation Law permits aggrieved private parties to challenge a government failure to perform, or decision to terminate unilaterally or amend a government concession agreements, land or housing expropriation and compensation agreements. In an indication of the the problem, on 6 May the National Development and Reform Commission , which has recently issued regulations on infrastructure concessions, issued a notice to government officials with several warnings including a reminder that concession agreements in force even if a senior government leader changes.
The interpretation also clarifies that a court can hear related civil claims, such as breach of contract or tort claims.
Review of normative documents
Article 53 of the Administrative Litigation Law permits a court to review the legality of a normative document （规范性文件） (often called red titled documents (红头文件)) when reviewing the legal of an administrative act (Under the Legislation Law, these documents have an uncertain status). The Administrative Litigation Law JI adds some further procedural detail and requires a judge that considers a document incompatible with law to set out his reasoning in his judgment and permits a judge to set out suggestions regarding the document to the issuing authority, its counterpart at the next higher level of government, as well as the people’s government at the same level).
The judicial interpretation does not address the the issue of hearing administrative cases outside the area in which the case arose. Reform in this area is mentioned in the Administrative Litigation Law itself, and some pilot projects are now underway, (and it is one of the measures listed in the 4th Five Year Judicial Reform Plan Outline), but no consensus has yet been reached on a new approach.
Administrative Litigation Law scholars who have spotted errors this blogpost should feel free to use the comment function!
Judicial (also called adjudication) committees are the unseen force behind the panel of three judges hearing a case in a Chinese court. The decision a judicial committee makes binds the panel that heard the case. Although this has not been mentioned, judicial committees must have approved the original decisions in a number of cases recently revealed to have mistaken, such as:
- the 1996 execution of Huugjilt, in Inner Mongolia;
- The 1995 conviction of Tian Weidong, Chen Jianying and others in Hangzhou, Zhejiang.
For this reason, judicial committees are important to anyone involved with or concerned with the Chinese courts, whether as a lawyer, litigant, or representative of a foreign or international organization, NGO, or government.
The Third and Fourth Plenum Decisions both mentioned judicial committee reform but without any details. The Court has revealed the direction of its thinking on this topic in two recent articles published this month (December, 2014) on the national court website.
What are judicial committees?
Throughout the history of the PRC, court legislation has stated that these committees “practice democratic centralism” and that their task is to “sum up judicial experience and to discuss important or difficult cases or other issues relating to judicial work.”
The reason that the panel that hears the case must follow the decision of the judicial committee is that judicial committees are designated as the “highest judicial organ” within a court and implement the principle of democratic centralism. 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. Judicial committees have long been criticized by the academic community both inside and outside of China, and some judges have written about their drawbacks as well.
Judicial committees operate under 2010 regulations that I analyzed in an earlier article (Reforming judicial committees). (According to those rules, major cases such as death sentences must be approved by a court’s judicial committee, so judicial committees must have been involved in the mistaken cases mentioned above). (For those interested learning more about the operations of the judicial committee of a local court, I highly recommend the study linked here).
The state of judicial committee reform policy
For over a year, the Supreme People’s Court (which itself has a judicial committee) has apparently been exploring where it wants to go with its policies towards judicial committees. Both the Third and Fourth Plenum Decisions signalled that some reform of the judicial committee system was on the agenda:
- Reform the trial committee system, perfect case handling responsibility systems for presiding judges and collegiate benches, let those hearing the case judge, and those judging the case be responsible.
- Clarify the duties of all levels within judicial organs and complete internal mechanisms for supervision and check. Internal personnel of judicial organs must not violate provisions to interfere with other personnel’s handling of cases, establish recording and accountability systems for internal personnel looking into cases. Improve case handling responsibility systems for presiding judges, collegial panels, … to implement a system where the person handling the cases bears responsibility.
Issues with judicial committees
Wang Bin, a judge on the Nanjing Intermediate Court commented on some of the issues she has observed with judicial committees in an article published in early December in the People’s Court Daily:
1. The judicial committee inserts a “subjective filter” between the judges who try cases and the judicial committee that decides the case, “making it difficult to guarantee the objectivity and accuracy of the results of the judgment.”
2.Judicial committees decide cases in conference, which involves a wide range and large number of cases. Although the 2010 regulations require the judges that heard the case to prepare a written report, Judge Wang notes that judicial committee members have neither the opportunity nor the time and energy to learn more about the specific circumstances of each case. The committee has a large number of members (court president, vice presidents,division heads and some specialist committee members, and the local procurator), which means each case receives limited discussion time and and the views of defense counsel are not properly considered.
3. The members of the judicial committee include heads of the criminal, civil, and administrative divisions of a court, but with the greater complexity of Chinese legislation and the cases coming before the courts, and the fact that each member of the committee receives one vote, it is difficult to ensure that the resulting decision will be fair and appropriate.
Judicial committee reform
The solutions that she suggests are in line with (and more pointed than) those suggested by President Zhou Qiang, whose remarks need to be appropriate for the wide range of Chinese courts.
1. Judicial committees should provide a macro-level guidance to judges. Given the increase in a broad range of litigation, judicial committees should use their authority to select typical cases, summarize best practices, and issue normative documents.
2. Judicial committees should reduce the number of actual cases that they decide. Judge Wang suggests (as have others), that the standard under which cases are submitted to the judicial committee are too vague, and more specific guidance should be drafted. Cases in which evidence is disputed should not be submitted to a judicial committee.
3. Judge Wang recommends that criminal cases that judicial committees discuss should be limited to ones in which the evidence is clear, and most cases should be decided by the panel that has heard the case. In death penalty cases, a vote of 2/3 of judicial committee members should be required (rather than a simple majority), because this is more consistent with national death penalty policy.
4. The members of the judicial committee should be selected for their professional competence rather than their administrative rank.
5. Judge Wang suggests the decision making process should be changed, so that members are required to state their view and rationale before voting.
6. Judge Wang advocates that the procurator not be a member of the judicial committee. In her view, this violates the principle of independence of the judiciary and interferes with justice.
President Zhou Qiang links judicial committee reforms to principles of judicial responsibility, suggesting that judicial committee meetings be recorded and judicial committee members assume responsibility for their decisions.
We can expect these judicial committee reforms to take firmer shape in the medium term. While President Zhou Qiang mentioned that the Court will take the lead in implementing some of these judicial committee reforms, according to recent press reports, these will also be incorporated into some of the local pilot projects.
In a press report in Southern Weekend last month (summarized in this report), the Supreme People’s Court (the Court) revealed that an important legal reform related to death penalty reviews is forthcoming–institutionalizing legal representation in death penalty reviews. This development, and others still in the works, are likely linked to the following provisions in the 4th Plenum Decision:
- For appeals from dissatisfaction with effective judgments or decisions of judicial organs, gradually implement a system of lawyer representation. Bring appellants unable to hire a lawyer within the scope of legal aid.
- Advance systemic reform in litigation with trial at the center;
- complete effective guards against unjust, false and wrongfully decided cases.
- bring about a system of lifetime responsibility for case quality and wrongful cases accountability system.
The Southern Weekend report has now been more fully summarized by the Duihua Foundation.
(This reform caught my attention because because I raised this issue when conducting an interview at the Supreme People’s Court in the early 1990’s, when researching my 1993 Supreme People’s Court article in the Journal of Chinese Law.)
Some background on death penalty review in the Court
As many others have described, death penalty review is carried out solely within the Court (in contrast to the period that I wrote my article) in an administrative procedure (my article describes the procedure at the time, and other articles describe the current process). The Southern Weekend article describes it as taking place in an unmarked office building away from Court headquarters, guarded by a member of the Armed Police.
The Court has increased the number of criminal tribunals from two (when I wrote about this procedure 20 years ago in my article) to five tribunals, but the Court has not issued regulations setting out their jurisdiction. According to the Southern Weekend reporters, four of the tribunals, which review cases based on geography and subject matter, have about 70 staff (both judges and support staff), while one has about 50 staff and reviews cases only on a subject matter basis. According to Southern Weekend, there is some flexibility in the jurisdiction of the criminal tribunals.(See this report for a translation of Southern Weekend’s chart.)
Institutionalizing legal representation in death penalty reviews
The Southern Weekend article reported that a senior member of the one of the criminal tribunals had revealed that the Court has drafted regulations on institutionalizing legal representation in death penalty review and it is hoped that they will be issued before year end. According to the article, the draft regulations are entitled:
死刑复核案件听取辩护律师意见的若干规定 (Regulations on Considering the Views of Defense Lawyers in Death Penalty Review Cases).
This reform was flagged in Article 240 of the 2012 Criminal Procedure Law:
When the Supreme People’s Court reviews a death case, it should examine the defendant; if the defense attorney requests, it should hear the opinion of the defense attorney.
Article 42 of the 2012 Supreme People’s Court interpretation of the Criminal Procedure Law provides:
When the SPC performs final review of a death penalty case and the defendant has not retained a defender, the legal aid organization shall be notified to appoint a lawyer to provide him a defense.
A statement of principle in an a Court interpretation does not translate immediately into systemic reform. It is apparent from the Southern Weekend article, a 2013 article on the Court’s website, and other sources that the mechanism for doing so is being considered within the Court and that local justice bureaus are implementing regulatory changes.
In the Southern Weekend article, a Court judge pointed out what the academics and defense lawyers have been saying, that many persons sentenced to death are from the bottom of society and do not have a lawyer defending them. （It appears from this interview with the President of the Zhejiang Higher People’s Court that Zhejiang has been taking the lead in working with the justice authorities to have legal aid provided to criminal defendants.)
In an article earlier this year in the Legal Daily (organ of the Communist Party Central Political Legal Committee), Professor Liu Wenren of the Law Institute, China Academy of Social Sciences emphasized the necessity of involving lawyers in the death penalty review process. A Chinese lawyer has established a website for death penalty review lawyers, highlighting cases where legal representation has been effective. Jiangsu province justice department has implemented regulations on giving defense lawyers rights in death penalty review cases.
It is unclear what provisions will be contained in these regulations, but it is hoped that they include a provision for legal aid as well as rights for lawyers to review the case file.
Changing the form of death penalty review: when will the time come for this reform?
It appears that the Court is considering changing the form of death penalty review to a hearing-centered procedure. (Dean Zhao Bingzhi of Beijing Normal University, College of Criminal Law Science, Professor Liu Wenren, and others have been advocating this for some years (see this in this 2012 interview with Professor Zhao in Legal Daily).) Movement on this issue can be seen from the following:
- In June, 2013, the Court held its first hearing in a death penalty review case, reported here. In July, 2013, Legal Daily published a follow-up article in which it was suggested that more hearings will take place.
- In 2013, the Court website published an article (written by a Jiangxi judge) on deficiencies in the death penalty review procedure, suggesting that a hearing procedure be adopted.
- In July, 2014, the China Law Society held a training session for defense lawyers in death penalty cases, at which four of the five criminal tribunal heads spoke.
The Supreme People’s Court Observer understands these developments to be linked to the goal in the 4th Plenum Decision of bringing about a system of lifetime responsibility for case quality and a wrongful cases accountability system. Going to a hearing procedure for death penalty review cases in which defendants have legal representation would go far to “complete effective guards against unjust, false and wrongfully decided cases” and at the same time would better protect the hundreds of Court judges who will bear lifetime responsibility for their decisions in death penalty cases.
If there are errors in the above analysis, please use the comment function.
Those further interested in this important topic can refer to one or more of the many articles, books, and reports in English (and Chinese). In contrast to the early 90’s, death penalty review in China has now attracted the attention of major scholars and international organizations.
If you want to review and comment on China’s model for environmental public interest litigation, now you have your chance. On 1 October the Supreme People’s Court (Court) issued its regulations on environmental public interest litigation for public comment. The Court had highlighted the importance of these regulations in its July, 2014 policy document on environmental and natural resource tribunals. The Environmental Protection Law, amended earlier this year, gives the legislative framework for the regulations (a quick summary of the amendments can be found here).
The comment period is 1 month. The draft was published on the Court’s official website and is linked here. The notice requests that comments be accompanied by an explanation, and be submitted either on paper or electronically. The mailing address in Chinese is: 北京市东城区东交民巷27号，最高人民法院环境资源审判庭，邮编100745. The English address is: Environmental and Natural Resources Division, The Supreme People’s Court, No. 27, Dong Jiao Min Xiang, Dongcheng District, Beijing 100745. The email address for comments is: email@example.com.
To show that open government information litigation in China is not an oxymoron, and send messages to the lower courts, government, and public, the Supreme People’s Court (Court) in a press conference on 12 September, released statistics and typical open government information cases brought under China’s version of the US’s Freedom of Information Act (and its counterparts elsewhere in world). For the first time, the Court issued 10 typical (model) open government information cases, although it had issued a guiding case earlier. (The cartoons hint at the difficulties). The underlying issues are relevant to many, including foreign investors and their lawyers.
As others have described, China’s 2007 Open Government Information Regulations give individuals and groups the right to request government information and to challenge the failure to provide it in court. In comparison to the prevalent refusal of government departments to release government information, a small but increasing number of people have dared to take government to court. In particular (as highlighted by a variety of publications, NGOs, scholars and foundations), China’s environmentalists and environmental groups have been very active in using the regulations and litigating the failure of local government to release environmental impact statements.
What are the “take-aways” from the press conference?
- Statistics on open government information cases;
- The rationale for issuing typical/model cases;
- 10 typical/model cases;
- Possible rationale for releasing the cases now.
Statistics on open government information cases
The Court revealed that the number of open government information cases are increasing, although the numbers are small in comparison to commercial cases. In 2013, the Chinese courts dealt with almost 5000 open information cases (despite the difficulties of suing government to release information highlighted by the cartoons). These cases account for the greatest proportion of administrative cases. Li Guangyu, deputy head of the Court’s administrative division said that the courts have helped protect the individual’s “right to know.” In understanding the demands of the Chinese public for more government information (and the frequent refusal of government to provide it and comply with legal requirements when doing), these cases represent the tip of the iceberg. Most people will accept, rather than challenge a government refusal.
Why did the Court issue these cases?
The Court issued these ten government information cases for several reasons:
- In May, 2014, the Court formally announced it would issue model cases monthly (see the earlier blogpost on the subject). It has decided that issuing typical/model cases helps to guide the lower courts before judicial practice has settled enough and Court manpower permits issuing a judicial interpretation.
- The single Guiding Case that the Court issued early addressed a narrow set of issues, and issuing these cases provides guidance on a wider range of issues.
- The Court is sending a message to government departments, including central government ministries to comply with obligations under the Open Government Information Regulations to set out the legal basis for the decisions and their rationale, or risk having leading officials sitting in the defendant’s seat in a courtroom.
- The Court is signaling government to increase government transparency (within the many limitations imposed) and improve their open government information procedures or risk losing court cases. The behavior of government departments, including on the central level, in dealing with open government information requests seen in the cases indicates that educating government officials on compliance with the legislation is needed.
- The cases are needed guidance to the lower courts. Because the Open Government Information Regulations are not specific enough, they create difficulties for the lower courts trying to apply them to a large range of cases raising many different legal issues. The 2011 judicial interpretation does not deal with the principal recurring issues. These cases help unify judicial standards on a range of issues.
- The cases send a message to the general public that the courts are protecting the interests of the individual against government action (or inaction) and that these disputes can be resolved through litigation rather than petitioning.
- The cases provide a heads up to companies and their lawyers that members of the public (or competitors) may attempt to access their information submitted to or relating to their transactions with government.
What are the 10 cases?
Li Guangyu, the deputy head of the administrative division of the Court, who was involved in drafting the 2011 judicial interpretation on open government information, highlighted the cases and the issues raised. As discussed in earlier blogposts,the typical/model cases are not full decisions by the lower courts, but brief summaries. The important part is the section labeled “significance of the case.” Brief highlights include:
- Case one (relates to the release of an environmental impact statement. According to earlier reports, many open government information cases have involved citizen demands for the release of this information.
- Case two, Xi Mingqiang v. the Ministry of Public Security. As could be expected, the information requested was classified, and the court refused release. It is unclear whether the court considered whether the information had been properly classified.
- Case three, Wang Zongli v. the Tianjin Heping District Real Estate Administration Bureau (Tianjin Bureau), relating to a major social issue, the expropriation of real property and compensation of owners. The plaintiff demanded the release of the contract signed by the developer with a center under the Bureau for payment of government fees for expropriation (which would reveal the gap between the compensation to owners and the amount paid to government (issues discussed here). The court determined that the Tianjin Bureau had failed to address whether the information requested by the plaintiff was considered a commercial secret.
- Case four, Wang Zhengquan v. Hecheng [Shandong] Real Estate Administration Bureau, (relates to another major social issue, the allocation of low cost rental housing), involving the conflict between personal privacy (of the persons allocated housing) and the individual’s right to know;
- Case five, relates to issues in case three, the expropriation of rural land and the compensation of farmers, and the refusal of local government to release documents related to expropriation of land. These issues already account for many “mass incidents” and are likely to becoming even more important with the government’s planned urbanization of the countryside.
- Case six: Zhang Hongjun v. Rugao Municipal Price Bureau, in which the plaintiff challenged fees imposed by a township government, raising issues of access to government internal information.
- Case eight, a case against a Zhejiang Township government, in which the plaintiff sought details about land use and expropriation of property, raising issues of access to information created before the Government Open Information Regulations became effective.
- Case nine, Zhang Liang v. the Shanghai Urban Planning and Land and Natural Resources Bureaus, in which the plaintiff sought access to payment concerning 116 parcels of land granted by the government. It is yet another case relating to access to information about urban land use, and the government refusal to understand and reply flexibly to a request for information by an ordinary citizen.
- Case ten: If You Like Marriage Company Ltd. v. the Ministry of Civil Affairs, requesting information concerning the registration of the China Society for the Research of Marriage and Family (under the All Women’s Federation). It is yet another case in which a government department (this time a central government department), failed to set out the legal basis and rationale for refusing to release government information.
The Court may have several reasons for publicizing these cases now.
- They are related to the ongoing drafting of the overhaul of the Administrative Litigation Law.
- They are related to greater transparency requirements (affecting business) being rolled out under the Company Law Reforms and set as goals in the Third Plenum Decision
- Government control of information, the individual’s right to know in the Internet age, and the role of the courts vis a vis government are major issues that may be addressed in the upcoming Fourth Plenum of the 18th Central Committee of the Chinese Communist Party. That these issues are on the Party agenda is indicated by the fact that a Central Party School official published on these issues earlier this year.
If others would like to contribute further analysis of these cases or further information about any of them, please use the comment function.
On 13 January the People’s Court Daily published a report, linked here (and also issued on Wechat), with statistics and summaries of legal developments in 2013 concerning mutual legal assistance between mainland China and Hong Kong, Macau, and Taiwan. These developments, which also have practical implications for lawyers and the judiciary in all four jurisdictions are highlighted below.
- There were almost 11,000 cases involving delivery of judicial documents, taking of evidence, and other mutual legal assistance, with a significant increase since the conclusion in June, 2009 of a judicial assistance agreement between the mainland and Taiwan.
- In 2013, the Supreme People’s Court (SPC) began work on a judicial interpretation concerning the recognition of Taiwan court rulings and judgments, which the report says would be more comprehensive and expand the scope of judgments that can be recognized. The SPC also began work on a judicial interpretation for the transfer of mainland prisoners from Taiwan back to the mainland to serve out their sentences.
- The SPC and the Hong Kong authorities [presumably the Department of Justice] have undertaken fruitful discussions on the recognition and enforcement of civil and commercial judgments that lack jurisdiction agreements (相互认可与执行非协议管辖民商事判决) as well as an arrangement concerning criminal cases in which the mainland and Hong Kong have concurrent jurisdiction.
The arrangements with Hong Kong have significant implications for the business and legal community in Hong Kong. The Supreme People’s Court Monitor looks forward to more information from the Hong Kong government on both issues.
In the last full week of the year, the Court called on the masses to “believe in law, not petitioning” (信法不信访). To that end, the Court leadership publicized on Wechat (and through the press and the national court website) two initiatives:
- Focusing on enforcement of 10 types of disputes affecting the livelihood of ordinary people (涉民生案件) that it identifies as most likely to cause social disturbances;
- Its views on the draft Administrative Litigation Law (行政诉讼法), shortly before the National People’s Congress issued its draft for public consultation.
In a five month initiative launched by telephone conference (a form of communication often used by the Communist Party), the Court is focusing on the enforcement of judgments in the following areas:
- unpaid wages（particularly owed to migrant workers);
- support payments (to the elderly);
- child support;
- compensation payments (to the disabled or families of the deceased)
- medical malpractice compensation;
- traffic accident compensation; and
- industrial accidents.
The Court has called on the lower courts to:
- select cases for enforcement;
- devote resources to the campaign;
- use its database of judgment debtors and work with the People’s Bank of China Credit Reference Center to identify assets, so outstanding judgments can be enforced.
The Court has issued similar notices in previous years prior to Chinese New Year. Judgments in these types of cases are often difficult to enforce for a number of reasons:
- with China’s legal aid system inadequate for societal needs, migrant workers and other ordinary people have problems navigating the court system;
- the enforcement system, in particular, is difficult for individuals to navigate;
- although work has been done by both the court system and the State Administration of Industry and Commerce, the smaller companies that are the judgment debtors in many of these cases are skillful at disappearing without a trace and disguising their assets;
- these cases are generally not priority cases for the enforcement divisions of local courts.
The intention is to avoid the yearly phenomenon of migrant workers demonstrating in the run up to Chinese New Year because their company bosses have disappeared and absconded with their unpaid wages.
Provincial high courts are tweaking the focus of the enforcement campaign to suit their local circumstances. The Gansu Province Higher People’s Court, for example, is focusing on 1300 cases that date as far back as 2011 and is working with the provincial Political Legal Committee and Finance Department to allocate more funds for those in particular difficulty. The persons affected are fortunate if their case makes it onto the list, because for migrant workers, traffic accident victims, disabled workers, and others affected, justice delayed is justice denied.
Court officials may also have some self-interest in having these cases resolved locally, because some, when talking privately, mentioned that petitioners frequently surround the front gate of the Court.
The other initiative publicized by the Court to encourage the masses to avoid social disturbances is several of its proposed amendments to the Administrative Litigation Law. Admitting that administrative cases are difficult from beginning to end, the Court i to focus on several major issues related to the refusal of courts to take administrative cases:
- expanding the type of cases that the courts may accept (including government agencies infringing on private rights to land and other natural resources);
- permitting parties to file cases orally;
- implementing stricter procedures for case acceptance;
- imposing more liability on courts that refuse to take cases.
In its statement, the Court mentioned that many cases involving government action as ones that should be resolved through the courts rather than through public protests. Because of the structure of the local courts, in particular local courts being funded by local governments, it is not in the interest of the local courts that these cases receive a hearing. The court reforms announced late last year may eventually improve matters.
1. The Chinese government cracks down on medical institution crime. On 21 December, 11 government and Party bodies, including the:
- National Health and Family Planning Commission;
- Supreme People’s Court;
- Ministry of Public Security;
- Ministry of Justice; and
- Supreme People’s Procuratorate,
initiated 1 year movement to crack down on crime relating to medical institutions. The plan, reported here and linked here , calls for the punishment of offenses related to medical institutions. It also announces the framework for related reforms:
- restructuring state-owned medical institutions;
- resolving medical disputes with mediation;
- improving rural health; and
- improving security in medical institutions.
Although the Supreme People’s Court co-issued this document, it is not a judicial opinion. It is a policy document.
2. The Court posted structural reform issues for on-line discussion, although it is unclear what the response has been. On 18 December, the Court posted two court structural reform issues raised by the Third Plenum Decision on the “Everyone Discuss Judicial Reform” Website (linked here) and asked for comments:
- local courts and procuratorates–promote uniform administration of personnel, finance, and property at provincial level and below;
- the four levels of the courts–clarify their role and position.
Questions raised by the Court concerning the “uniform administration of the local courts”:
- what does this mean;
- what are its implications,
- will it mean further bureaucratization of the courts and procuracy,
- what flexibility should there be,
- what will it mean for local protectionism.
Questions raised by the Court concerning “clarify the role and position of the functions of the four levels of the courts” concern the implications for:
- judicial interpretations,
- appeals systems;
- internal organization of the courts.
The “Everybody Discuss Judicial Reform” website is a joint project of the national court website, justice website (Supreme People’s Procuratorate), and the China Law Society. It is a forum for eliciting discussion on important issues for which the institutions must already have framework plans.