Brief report on mutual legal assistance developments between the mainland and Hong Kong, Macau, and Taiwan in 2013

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.

The Supreme People’s Court Encourages the Masses to Leave the Streets and Go Into the Courtroom: week ending 27 December

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;
  • alimony;
  • 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.

The Supreme People’s Court: Week Ending 21 December 2013

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.