US federal courts

US Federal Judiciary Strategic Plan Attracts Thousands of Chinese Readers

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Cover of Strategic Plan for the Federal Judiciary

In September 2015, the Judicial Conference of the United States issued its updated strategic plan.  Likely much to Justice Roberts’ surprise, (but not Justice Alito, who met that month with Supreme People’s Court (SPC) President Zhou Qiang), the plan (or at least the translation of selected sections) is attracting thousands of new readers in China. (likely more than it did in the US)  The translation was set out in two 3/4 page articles published in People’s Court Daily in late September.  As the translators, headed by Judge He Fan of the SPC, said, “for Chinese judicial reforms, there is no lack of things we can draw on.” They translated all of the major issues set out below (taken directly from the strategic plan) and selected strategies and goals related those issues that resonate with the Chinese judiciary.

As the US transitions to a new president who not only will appoint a Supreme Court justice, but also fill 105 vacancies in the federal courts, the strategic plan provides food for thought for all concerned about if and how justice is delivered around the world.

Preamble

The federal judiciary is respected throughout America and the world for its excellence, for the independence of its judges, and for its delivery of equal justice under the law.Through this plan, the judiciary identifies a set of strategies that will enable it to continue as a model in providing fair and impartial justice.

Mission

The United States Courts are an independent, national judiciary providing fair and impartial justice within the jurisdiction conferred by the Constitution and Congress. As an equal branch of government, the federal judiciary preserves and enhances its core values as the courts meet changing national and local needs.

Core Values

Equal Justice: fairness and impartiality in the administration of justice; accessibility of court processes; treatment of all with dignity and respect

Judicial Independence: the ability to render justice without fear that decisions may threaten tenure, compensation, or security; sufficient structural autonomy for the judiciary as an equal branch of government in matters of internal governance and management

Accountability: stringent standards of conduct; self-enforcement of legal and ethical rules; good stewardship of public funds and property; effective and efficient use of resources

Excellence: adherence to the highest jurisprudential and administrative standards; effective recruitment, development, and retention of highly competent and diverse judges and staff; commitment to innovative management and administration; availability of sufficient financial and other resources

Service: commitment to the faithful discharge of official duties; allegiance to the Constitution and laws of the United States; dedication to meeting the needs of jurors, court users, and the public in a timely and effective manner.

Issue 1. Providing Justice

How can the judiciary provide justice in a more effective manner and meet new and increasing demands, while adhering to its core values?

Issue 2. The Effective and Efficient Management of Public Resources

How can the judiciary provide justice consistent with its core values while managing limited resources and programs in a manner that reflects workload variances and funding realities?

Issue 3. The Judiciary Workforce for the Future

How can the judiciary continue to attract, develop, and retain a highly competent and diverse complement of judges and staff, while meeting future workforce requirements and accommodating changes in career expectations?

Issue 4. Harnessing Technology’s Potential

How can the judiciary develop national technology systems while fostering the development of creative approaches and solutions at the local level?

Issue 5. Enhancing Access to the Judicial Process

How can courts remain comprehensible, accessible, and affordable for people who participate in the judicial process while responding to demographic and socioeconomic changes?

Issue 6. The Judiciary’s Relationships with the Other Branches of Government

How can the judiciary develop and sustain effective relationships with Congress and the executive branch, yet preserve appropriate autonomy in judiciary governance, management and decisionmaking?

Issue 7. Enhancing Public Understanding, Trust, and Confidence

How should the judiciary promote public trust and confidence in the federal courts in a manner consistent with its role within the federal government?

 

About Me

Chinese law “elephant”

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story25i1Thank you very much to all of my followers for following me.  I plan to tweak the type of content that I am providing, providing fewer long analytical blogposts, because I want to concentrate on writing a book on Supreme People’s Court (SPC) in the era of reform, in the style of this blog and in my free time work on income-generating projects.

The blog will continue to highlight SPC developments (& cases), but more briefly (with the exception of several articles still in draft). As before, I will speak at conferences and appear on panels, or as a guest speaker in classes touching on the Chinese court system.

It is my hope that some followers with the financial wherewithal to do so will consider supporting (in some fashion) the blogs that are enabling the English speaking and reading public to perceive (through translation or bite-sized analysis) the “elephant” that is the Chinese legal system.

Through my “brother” blog Chinalawtranslate.com, the non-Chinese reading world is able to access translations of many of the most important legal documents issued by the Chinese government (and Communist Party) institutions, with some analytical blogposts and charts or other graphics. Many of those translations are of documents that are not translated by the commercial translation services. The translations are accessed and cited by a broad range of government and academic institutions (worldwide) as well as the media, NGOs, students, and individuals.

My own blog, contrary to what a Times of India article recently wrote, is not a “state-owned publication linked to the Supreme People’s Court.”  For that, the Times of India should be looking to the Supreme People’s Court’s (SPC’s) own English language site. The link between the SPC and this blog is only in the form of careful observation on my side and recognition of the existence of a focused foreign observer on the other.  I have also been shown personal kindness by a certain number of SPC judges (as well as some of their counterparts in the lower courts). An earlier blogpost gives further background on why I am publishing this.

As before, I will be available for consultation on law/court reform topics, as well as areas in which big data (and the profile) of litigation in the Chinese courts sheds light on the Chinese economy, society, etc. Chinese law firms who recognize that their English language publications need an overhaul should also contact me.

Anyone with comments or questions should feel free to contact me at: supremepeoplescourtmonitor@gmail.com.

 

 

foreign-related cases

Why the Supreme People’s Court’s new demand guarantee interpretation is important

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On 18 November, the Supreme People’s Court (SPC)  issued the Regulations on Some Issues Concerning the Trial of Independent Guarantee Disputes  (Independent Guarantees Interpretation) (审理独立保函纠纷案件若干问题的规定). It was publicly released at a 22 November press conference.  This document is a judicial interpretation (see this explanation) that becomes effective on 1 December. The Independent Guarantees Interpretation is important because:

  • it relates to guarantees issued by the four main Chinese banks (total amount of USD 353 billion in 2015), so the amounts will be far greater when the other banks are included);
  • large numbers of commercial transactions by Chinese companies outside of mainland China.

Along with the enormous increase in Chinese companies investing and undertaking projects abroad and being required to provide a demand guarantee when doing so has been an explosion of litigation in China [to be updated with data when available] by companies seeking to prevent the bank that has issued the demand (independent) guarantee from doing so when the foreign party to which the guarantee has been issued seeks to be paid out under the guarantee because the performance by the Chinese company fails to comply with contractual requirements.  It has also led to litigation outside of China, such as in the English courts.

As Professor Vivienne Bath has explained in a recent article:

in a number of cases, Chinese courts have attempted to reinforce their own jurisdiction in multinational disputes by issuing stop orders to Chinese parties directing them not to make payment on negotiable instruments or guarantees issued in support of a principal contract which is the subject of litigation. In the case of a Chinese bank with international interests and assets and an international reputation,this puts the bank in a very difficult situation.

It is for that reason that Judge Zhang Yongjian, head of the #4 Civil Division of the SPC (responsible for foreign-related commercial/maritime issues) revealed (at the press conference at which the interpretation was released) that the China Banking Regulatory Commission (CBRC) and the China Banking Association have been lobbying the SPC to issue this interpretation quickly. (The drafting began in early 2013 and informal work began in 2012), while discussions about the issue date back to 2007 (if not before). A drafting group within the #4 civil division was responsible for drafting it).

For those with no background about what these are, a demand/independent guarantee (called an independent guarantee in Chinese (独立保函), is often used in construction, engineering and many other types of infrastructure projects (and trade, such has shipbuilding and turbines), when the owner of the project requires the performing party to guarantee his performance with a guarantee issued by a bank. It means that if the contractor fails to meet his obligations, the project owner can be easily compensated. The bank guarantee generally needs to be backed by company funds. These are extremely important with so many Chinese companies focusing on infrastructure projects overseas, under the Chinese government’s One Belt, One Road and Go Global strategies and Chinese companies seeking to produce goods with greater added value, as Judge Zhang noted.

The International Chamber of Commerce’s (ICC’s) Uniform Rules for Demand Guarantees (URDG 758) are the internationally agreed international standard on demand guarantees, having been officially endorsed by the UN Commission on International Trade Law (UNCITRAL) at its 44th annual session in June-July, 2011.  The Independent Guarantees Interpretation sets out the applicability of URDG 758 in Chinese disputes, governing law, jurisdiction, and other issues and draws on it, the United Nations Convention on Independent Guarantees and Standby Letters of Credit, and other international rules.  (Judge Zhang used the phrase “充分借鉴吸收” (fully considered and absorbed).

Maneuvering around existing domestic legislation

The language of the interpretation maneuvers around Article 5 of China’s Security (Guarantee Law) and Article 172 of the Property Law and their restrictions on independent guarantees in domestic transactions, because independent guarantees have grown to be a big business among domestic financial institutions (according to Judge Zhang) (The interpretation allows parties to agree that the provisions of URDG 758 will be applicable.).

The Security Law states:

A guarantee contract is an ancillary contract of the principal contract. If the principal contract is nullified, the guarantee contract shall be null and void accordingly. Where it is otherwise agreed in the guarantee contract, such agreement shall prevail.

Similarly, the Property Law states that “for the creation of a security right, a guarantee contract shall be concluded in accordance with the provisions of the law and other relevant laws. A guarantee contract is an ancillary contract of the principal contract. When the principal contract is nullified, the guarantee contract shall be null and void accordingly, unless otherwise stipulated by law.

Tightening the fraud exception

The interpretation tightens the fraud exception from the requirement to make immediate payment and specifies the conditions under which courts can issue stop orders. The SPC looked to the international agreements mentioned above, foreign legislation, and foreign cases when drafting its own provision (Article 12).  Judge Zhang admits that the misuse of this exception by local courts has led to foreign banks being reluctant to negotiate letters of credit issued by Chinese banks. (This observer suggests that one reason could be that large local companies may pressure local courts to so rule).

Consultation process in drafting

Judge Zhang noted that the drafting process was one of the highlights of the interpretation.  In my earlier blogpost on the draft interpretation, I noted that the SPC consulted with (formally or informally):

  • the Ministry of Commerce;
  • leading Chinese lawyers;
  • some of the leading arbitration commissions;
  • representatives from the principal Chinese banks and major state-owned companies.

Judge Zhang noted that they consulted with:

  • the lower courts;
  • National People’s Congress’ Legislative Affairs Commission;
  • State Council’s Legislative Affairs Office;
  • People’s Bank of China;
  • CBRC;
  • State Administration of Industry & Commerce;
  • China Banking Association;
  • China International Contractors Association; and
  • ICC China Committee.

According to an “authoritative person,” the above list is not exhaustive.

From my own contacts, and from reports of at least one conference on trade finance in Beijing attended by representatives from the ICC and the SPC, there were discussions with the ICC.

SPC judges organized research and met with financial institutions.  But Judge Zhang also said that they sought public opinion through the SPC’s website. What he did not say was that the consultation period was for nine days (as I noted in my blogpost of almost three years ago).

As I said then (and have said numerous times on this blog and to individual SPC judges), my view that it is best for the SPC to solicit public comments on important civil/commercial issues such as this one and give persons a reasonable comment period, and for bilateral investment treaties to incorporate a requirement to require this.

For anyone involved in any aspect of a project in which a Chinese contractor provides a demand/independent guarantee, reviewing this judicial interpretation is crucial. I expect the commercial translation services will translate it (and law firms, Chinese and international, will issue alerts parsing its provisions).

 

Communist Party and the Courts

Inspectors stationed at the Supreme People’s Court & Procuratorate

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CIG mobilization meeting at the SPC

Close followers of the Supreme People’s Court (SPC) media outlets will have noticed a 15 November report of a mobilization meeting of the Central Inspection Group (CIG) #2 inspecting the SPC’s Communist Party group.  A brief report on CCTV is found here. Further digging reveals that news of the inspection was released on the Central Commission for Discipline Inspection (CCDI) website in early November, and that the inspection is part of the current round of CIG inspections of 27 Party, government, and other entities.  Other legal institutions being inspected in this round include the Supreme People’s Procuratorate (SPP) and the China Law Society (a mass (government organized non-government organization)).  The Ministry of Public Security was inspected earlier this year in an earlier round,  along with the State Council’s Legislative Affairs Office, the National People’s Congress (including its Legislative Affairs Commission), the State Intellectual Property Office, and many others.

A report on CIG #7’s mobilization meeting at the SPP was released at the same as the SPC’s, and is worded similarly to the SPC report.These institutions are being inspected for approximately a two month period, from 11 November (14 November for the SPP) to 10 January 2017.

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CIG mobilization meeting at SPP

Background on CIGs and how they operate can be found in a recent New York Times article (focusing on the Ministry of Public Security’s inspection) and this scholarly article by Professor Fu Hualing of the University of Hong Kong’s law faculty.

According to these  notices, the focus is on the Party leadership of these institutions, at the highest and next highest level, and compliance with political and Party discipline.

Some comments

Matters that require the attention of the SPC’s  senior leadership (and similarly the SPP’s), of which there are many (one small example is considering whether a draft judicial interpretation is ready for passage) , are likely to find a much slower response time, as persons in the most senior positions, and those senior personnel with whom they work most closely, will most likely be preoccupied with responding to the requests of the inspectors. (This insight is derived from my personal experience (with school inspectors), my many discussions with in-house counsel facing government inspectors, and the rich professional/scholarly commentary on government inspections/audits).

I can only hope (as a long-time foreign observer of the SPC (and less so of the SPP), that the leaders of these institutions have done a good job in personal compliance, as well as signalling to their institutions the importance of complying with various types of political and Party discipline, because a well-functioning Chinese judicial system (and a prosecutorial system) is important not only for China, but the rest of the world.

One small example of the work facing the SPC that is relevant to the rest of the world is one of the Chinese government’s commitments at the Hangzhou G20 meeting, which requires the SPC to take on a major role in improving the operation of China’s bankruptcy system:

China and the United States recognize the importance of the establishment and improvement of impartial bankruptcy systems and mechanisms. China attaches great importance to resolving excess capacity through the systems and mechanisms relating to mergers and acquisitions; restructuring; and bankruptcy reorganization, bankruptcy settlement, and bankruptcy liquidation, according to its laws. In the process of addressing excess capacity, China is to implement bankruptcy laws by continuing to establish special bankruptcy tribunals, further improving the bankruptcy administrator systems and using modern information tools. China and the United States commit to, starting as early as 2016, conduct regular and ad hoc communication and exchanges regarding the implementation of our respective bankruptcy laws through forums or mutual visits.

 

Donald Trump, intellectual property

First US President (-elect) to litigate in Chinese court

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Donald Trump vs. PRC Trademark Review & Adjudication Board

President-elect Donald Trump is a person of many firsts. It is well known that he is litigious (involved in at least 3500 lawsuits in the US federal and state courts).  What is not known outside of China is that he is the first person to be elected president of the United States who has sued in the Chinese courts (and lost).  The image above is of the judgment of the Beijing Higher People’s Court (the official version in SPC case database linked here, but also available here), upholding a decision by the Beijing Intermediate People’s Court (up to 52,000+ pageviews). The Beijing Intermediate People’s Court reviewed Trump’s challenge of a ruling of the PRC Trademark Review & Adjudication Board (TRAB) on the use of the TRUMP trademark. He is one of many in the foreign business community who have been losers in China’s first to file trademark system (summarized here).

Before getting to the legal issues, a note about Trump’s name. In this case his name is translated as唐纳 川普 (his last name is the contraction for Sichuan Putonghua).  It is the translation used colloquially in China, but the official media translates his name as 唐纳德·特朗普.

Trump’s 2006 Chinese trademark application was made to the Trademark Bureau on 7 December 2006 in class 37 (Building construction; repair; installation services), while individual Dong Wei applied for the TRUMP trademark on 24 November 2006 in a subclass of class 37, for building construction supervision.

On 30 November 2009, the Trademark Bureau rejected Trump’s trademark application as it related to hotel, residential, and commercial real estate construction information.  Trump sought reconsideration of the Trademark Bureau’s decision by TRAB. TRAB upheld the Trademark Bureau’s ruling in its 2014 decision (商评字（2014）第2758号)

Will this case mean that the new administration is more or less interested in continuing judicial exchanges with the Supreme People’s Court, such as the U.S.-China Judicial Dialogue in Support of Reform and Economic Growth ?

 

big data, Case law, Uncategorized

Big data on China’s case database

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Screen Shot 2016-07-30 at 12.13.38 PMThe Supreme People’s Court (SPC) database, China Judgments Online, receives good marks from most commentators inside and outside of China and it is one of the successes of the judicial reforms that President Zhou Qiang often discusses with visiting foreign guests as well as domestic officials.  Only now has a team of researchers from Tsinghua University drilled down on the case database (but only through 2014, because the data was not complete for 2015) (short version found here and full version here). They found that there is room for improvement.

The researchers found that only about 50% of number of cases resolved in the Chinese courts (about 30.5 million during 2014-2015) have been uploaded to the case database (14.5 million).

Level and type of case

Almost 80% of the cases uploaded are from the basic level courts, with intermediate level courts accounting from almost 19%, and fewer than 1% from the SPC.

Approximately 63% of the cases are civil, with 20% criminal, enforcement 15%, and administrative cases less than 4%. 

Are courts uploading cases to the database consistently?

 

 

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Geographic distribution of uploaded judgments

 

The map above is based on an analysis of 2014 data.  Shaanxi, Zhejiang, Shandong, Anhui, and Hebei provinces were the best performers, particularly Shaanxi; Henan, Fujian, Hunan, Hubei, Guangxi, and Ningxia were in the second tier, uploading at least half.  The less transparent courts include Tibet, Xinjiang, and Guizhou.

[I personally expected that Shanghai, Jiangsu, and Guangdong would be more transparent.]

Are cases uploaded consistently throughout the year?

At least in 2014, there was a half year and year end rush to upload cases.  It appears that the uploading of cases is one of the items for judges performance appraisal.

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Issues cited

  • More than half of judicial documents have not been uploaded to the database, including judgments in some of the more controversial cases.
  • Technical issues complicate the uploading process.  Because the courts are administered locally, the IT systems are local as well.
  • The regulations set out vague standards for taking down a judgment/ruling. When objections are made, the cases are taken down with little review. [As I have commented in relation to streaming of court cases, the absence of privacy legislation is an issue, because judges lack specific guidance on what information is regarded as private.]
  • Large gaps exist between the coastal and inland provinces in uploading judgments, with long delays an issue as well, although the regulations require judgments to be uploaded 7 business days after they take effect (this provision is unchanged from the 2013 version).
  • Monitoring of the database is an issue.  The SPC has been stressing the quantity of judgments uploaded, while insufficient attention is paid to quality.  [This may have something to do with tendency of some Chinese academics to focus on theory or comparisons among jurisdictions, rather than engage in a more focused study on what their own court system is actually doing.]

Comment

The Chinese government has allocated  USD $40 billion to the Silk Road Fund associated with the One Belt One Road strategic initiative, to improve infrastructure overseas.  China’s judiciary, an important part of the nation’s legal infrastructure, requires better funding as well.  Even a tiny percentage of that $40 billion would go far to contribute to improve courts’ IT infrastructure, not to mention improved salaries, and the retention of the research departments of local courts.

Investment in the courts is needed to bolster the Chinese (not to mention foreign) public’s confidence in the Chinese courts’ ability to provide a better quality of justice.

As my law school classmate, Justice John Roberts, said several years ago, when confronted by budget cuts to the US federal judiciary:

At the top of my list is a year-end report that must once again dwell on the need to
provide adequate funding for the Judiciary.I would like to choose a fresher topic, but duty calls. The budget remains the single most important issue facing the courts….

The Judiciary continues to depend on the vision and statesmanship of our colleagues in the Executive and Legislative Departments. It takes no imagination to see that
failing to meet the Judiciary’s essential requirements undermines the
public’s confidence in all three branches of government. Both A Christmas
Carol and It’s a Wonderful Life have happy endings. We are encouraged
that the story of funding for the Federal Judiciary—though perhaps not as
gripping a tale—will too.

 

 

 

blacklists, Development banks, Uncategorized

Chinese companies on World Bank’s name & shame list

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screen-shot-2016-11-03-at-5-27-48-pmThe Supreme People’s Court and other Chinese government institutions have been making increasing use of name & shame lists to call attention to illegal behavior by institutions and individuals and to prevent them from benefiting from their illegal behavior (as I discussed in this blogpost). International institutions, such as the World Bank, Asian Development Bank, African Development Bank, Inter-American Development Bank and the European Bank for Reconstruction and Development, name and shame as well.  They list firms and individuals that have been disbarred (by their own or counterpart institution) from being awarded a multilateral development bank contract because they have been sanctioned for fraud or corruption violations (the World Bank list is here and a comprehensive introduction is found here). The World Bank cooperates with other international and national regulatory and enforcement organizations, such as the European Anti-Fraud Office and the UK’s Serious Fraud Office.

I recently published a brief blogpost on the website of the Wong MNC Center, calling attention to the significant number of Chinese companies, particularly state-owned companies, that are on the World Bank (and other multilateral development banks) blacklists. I noted that there do not seem to be clear repercussions for those companies and queried whether China’s Asian Infrastructure Investment Bank (AIIB) will follow the practice of the other multilateral development banks.AIIB has recently appointed Mr. Hamid Sharif, formerly of the Asian Development Bank, to be Director General of the AIIB’s Compliance, Effectiveness and Integrity Unit, and Gerard Sanders to be its general counsel. Sanders worked for many years in the legal department of the European Bank for Reconstruction and Development. Both men would take the disbarment system as an accepted part of the international development bank regulatory system.  Some issues I didn’t have a chance to raise:

  • A significant number of Chinese companies did not participate in the sanctioning proceedings or make use of the appeal procedures. This attitude is analogous to the way some  Chinese companies view foreign arbitration and other foreign dispute resolution (the three nos–see my earlier blogpost on this).An experienced Chinese consultant that I contacted privately remarked that Chinese firms take the “Four No” approach—do not recognize, do not accept, do not commit themselves, and there are no consequences in China;
  • Some of the Chinese companies that have been or are currently being disbarred are party to major contracts (or memoranda of understanding) under various Chinese government initiatives.  According to a recent report in the Philippine press, China Road & Bridge and affiliated companies (blacklisted by the World Bank until 2017) are among the major beneficiaries of President Duterte’s recent trip to China.  Other blacklisted companies are doing projects in Africa and Central America.
  • Officials of the Supreme People’s Procuratorate, as seen in this 2014 article, are advocating better international cooperation with anticorruption efforts in the business sector and mention the international development bank blacklists as a given part of the international anticorruption landscape.  They reveal that there are major compliance issues among Chinese SOEs operating abroad, with bribery as one of many problems and a generally prevailing indifferent attitude towards legal compliance.
  • It appears there will eventually be a better integration of the multilateral development bank blacklists with the Chinese system, but this will take time and many hours of quiet advocacy to put in place. It would be unfortunate if these efforts are accelerated because disbarment of Chinese companies under the World Bank system results in further investigations or sanctions in Europe, United Kingdom, or elsewhere in the world.

 

Commercial law, Company Law, intellectual property, Uncategorized

Supreme People’s Court’s new document protecting private enterprise

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The Supreme People’s Court (SPC) recently published a policy document on protecting private (民间) enterprise, although the document itself was approved almost two months previously.  It is linked to State Council and Central Leading Group for Deepening Overall Reform policy documents of earlier this year.  The State Council policy document admitted that private companies have trouble receiving “national treatment (“难以享受同等“国民待遇”). The SPC policy document further relates to a 2014 SPC policy document on private (non-public (非公有制) enterprise.  It conveys the following messages:

  • Too many lower courts are invalidating contracts because contracts have not received government approval, instead of applying the Contract Law on this point properly;
  • Too many lower courts are causing private investors to lose ownership of their companies, particularly those that are affiliated (挂靠) with government (the affiliation system was a way for entrepreneurs to avoid restrictions on private business by affiliating their operations with government).
  • Courts are preventing private investors from transferring their shareholding;
  • Courts are not sufficiently protecting the rights of private investors  who take a minority stake with other investors (especially state-owned ones). As this blogpost pointed out, it is not unusual for majority/controlling investors to engage in illegal, unfair, and abusive acts, such as abusive related company translations, creating fraudulent or defective board resolutions, failing to distribute profits, failing to keep other shareholders informed (the SPC’s judicial interpretation on this issue has not yet been issued);
  • Courts are failing to distinguish between corporate and personal/family assets, requiring private investors to repay corporate debts with their personal assets;
  • Courts are failing to uphold lending contracts between companies, although a 2015 SPC judicial interpretation confirmed their validity (under certain conditions);
  •  Courts are failing to protect the ownership rights, intellectual property rights, and operational rights of private companies, and prevent the “illegal seizure” of private property.
  • Courts are failing to uphold the rights of private enterprises to invest abroad.
  • On labor issues, courts should seek to balance the interests of the workers with the continued survival of companies, and seek to reduce labor costs.  Especially for small and medium enterprises (this earlier blogpost highlighted how often private companies are sued in Guangdong in labor cases), courts should seek to resolve disputes through conciliation. For companies in trouble, courts should use measures such as taking security to prevent employers from maliciously harming worker’s interests.

Commentary in People’s Court Daily had this to say:

Private entrepreneurs face hidden obstacles and difficulties, both from the legal system and in practice.  There are hidden inequalities in their legal status, particularly when they are facing monopoly [duopoly] state owned enterprises (SOEs), given huge power of the SOEs. Second, the investment environment for private companies is unstable. Government policies and measures often change, such as when government signs basic infrastructure contracts with private companies, but then government changes the related urban plan.  Third, private entrepreneurs in the past have failed to receive equal legal protection, because of judicial local protectionism and inconsistencies in judicial decision-making.

A prominent legal blogger suggested that local courts frequently abuse their authority to seal up or freeze business assets of private companies, causing significant losses.

Comments

The Chinese government is promoting public private partnerships (PPP) but has not been able to attract substantial interest in the projects for a number of reasons, including regulatory risk. Private investors are also concerned that the local courts will not protect their rights in the event of a dispute.

Statistics released by the Chinese government earlier this fall reveal that overseas investment by Chinese private enterprise in 2015 surpassed investment by state-owned enterprises, accounting for 65% of outbound investment, with observers disagreeing on the extent to which it represents capital flight. The failure of private investors “to feel justice in every case” (linked to the lack of autonomy of Chinese courts hearing cases involving the rights of private entrepreneurs) will lead them to invest less in the Chinese economy, and diversify even more assets to jurisdictions more protective of private property interests.  Those other jurisdictions will benefit from an inflow of capital and entrepreneurial spirit.

On labor issues, the SPC has indicated what current government policy is and what the courts need to do to implement it. It is unclear whether these policies will be effective in reducing labor unrest.

 

 

 

 

Communist Party and the Courts, Uncategorized

Update on Judge Xi Xiaoming

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Judge Xi Xiaoming

In the run up to the Sixth Plenum of the Central Committee of the Communist Party, which will focus on “intra-Party political life in the new situation,” the Supreme People’s Procuratorate (SPP) released further information concerning former Supreme People’s Court (SPC) Vice President Xi Xiaoming.  As this blog noted over one year ago, his case was transferred from the Party disciplinary authorities to the SPP for further investigation.  According to a recent report, The SPP has finished its investigation and has transferred Judge Xi’s case to the Second Branch Procuratorate of the Tianjin People’s Procuratorate.  The procuratorate has filed its case in the #2 Tianjin Intermediate People’s Court. The authorities apparently considered these institutions reliable,  because they had dealt with other sensitive cases earlier this year. 

The charges against Xi include:  using his office and position to obtain benefits for others or using his authority and position to provide conditions [for obtaining benefits], and obtaining improper benefits through the acts of other state staff in the course of their work, illegally accepting huge amounts of money and assets.  The judgment to which the charges relate has been published.

The report repeated statements made about Judge Xi earlier by Meng Jianzhu, head of the Central Political Legal Committee, and SPC President Zhou Qiang.  In August, 2015, Meng said: “Xi Xiaoming has shamed the judiciary, as an experienced judge who has worked in the Supreme People’s Court for 33 years, who has colluded with certain  illegal lawyers, judicial brokers, and lawless business people by accepting huge bribes.” During his report to the NPC in March, 2016, Zhou Qiang said: “especially the effect of Xi Xiaoming’s case of violating law and discipline is terrible, has deep lessons” (尤其是奚晓明违纪违法案件影响恶劣、教训深刻). The report also mentioned that Judge Xi’s case has been used as a typical case by the Central Commission for Discipline Inspection.

Although the SPC and several other central criminal justice institutions have recently issued a policy document on making the criminal procedure system trial-centered, the first principle of which is “no person may be found guilty except by the lawful judgment of a people’s court,” Judge Xi’s case seems to be yet another instance in which the exigencies of the political system trump respect for the formalities of the operation of the criminal justice system.

 

 

Uncategorized

China’s #2 circuit court investigates petitioning about administrative cases

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Annually thousands of petitioners visit China’s courts, particularly the Supreme People’s Court (SPC) and its two circuit courts, to seek relief from injustices in the lower courts (and sometimes other injustices).

The #2 Circuit Court, located in Shenyang, Liaoning Province, has as one of its goals improving the way the courts in China’s northeast deal with cases in which ordinary people challenge government action, under the Administrative Litigation Law.  (Additionally, it hears a range of civil cases, as well.) The court is doing that through issuing a set of documents (to be analyzed in a future blogpost) and a research report.  (For those not familiar with what the SPC does, when the SPC looks into an issue, it often designates a research team to visit lower courts and review some of their files.) The chief judge of the #2 Circuit Court, Judge Hu Yunteng, and two colleagues looked into the question of why so many petitioners in Shenyang have grievances about administrative litigation in the lower courts.

According to the study, one-quarter of the 5000 petitioners whose visit was registered by the court in the first 11 months of 2015 complained about injustice in administrative cases, while those cases constituted only 2% of the overall caseload of the three northeastern provinces. According the study, most of the petitioners who visited the court were not registered.  From other statistics, a total of 33.000 visitors petitioned the court. In 2015, the #2 Circuit Court heard almost 200 administrative cases (accepted 193, closed 189, while in 2016, it accepted 691 administrative cases and closed 687). Who are these petitioners in these cases, why are they petitioning, and what should be done about it?

Who are the petitioners?

  • The petitioners are mostly older, uneducated men from Liaoning Province. The demographics:
  • 47%  are over 60, with 33% between the ages of 50 and 60;
  • 64% are men, 80% from Liaoning, with the remaining 20% from Jilin and Heilongjiang;
  • Most are from the countryside or unemployed, with very few represented by lawyers.

They often come repeatedly and in groups. They come in groups because of a group grievance, often relating back years and sometimes several decades. Why Liaoning? The court’s location in Shenyang means that it is more accessible to them, the province is more populous and has historically had more administrative cases. The peak of petitioning was in March, 2015 and is now has stabilized at a lower number.

Their grievances

The grievances are what the SPC (and the Communist Party) entitle “people’s livelihood,”–cases challenging government land requisition and compensation demolition of real property; administrative inaction, and release government information. Of those, 66% are related to land requisition, generally when the government requisitions land in old city and shantytowns.  The core reason, according to the judges’ analysis, is local government failure to comply with the law in the process, causing all sorts of administrative litigation and large numbers of petitioners.

Another reason for petitioning is that the rationale in court decisions in these administrative cases is inadequate or totally unclear, with overly simple descriptions of the facts.  The decisions often do not make sense; the result is sometimes correct but the reasoning entirely  wrong.

If court decisions do not make sense, naturally it will lead to the  litigant reasonably  suspecting their legality. In some cases the courts failed to review the legality of the administrative action, failing to mention obvious illegalities, simply saying the defendant had not infringed the litigant’s rights. .

Why administrative cases?

Judge Hu and colleagues identified a number of factors causing the ongoing large number of petitioners aggrieved by administrative cases, both external and internal to the courts. The report often refers to “some courts” acting in a certain way, without quantifying the percentage–leading the careful reader to wonder whether it really means “most,” but the judges are reluctant to say so. Their analysis is summarized below.

  1.  Status of the courts

The basic reason is that the constitutional status of the court has not been implemented. “Big government, small court” (大政府，小法院) is an undeniable fact. A court has the status of a department at the same level of government, so under this structure, it cannot be a countervailing force vis a vis the same level of government. When a court is hearing a case, the defendant county head, as deputy Party secretary  calls the court president in “for a chat.” If the status of the court in the political system is not changed, it cannot decide cases independently and the rate of petitioning about administrative cases will not go down.

2.  Structure of administrative trial divisions

Local courts have jurisdiction over most local administrative cases, but they are under the control of local government, which interferes in every aspect of the case.  The local courts make decisions that violate the law, ordinary people’s faith in the justice system declines, so many petitioning cases.

3.  Court problems

The ideal of justice for the people not implemented, because some courts, in the name of  “serving the greater situation,” stress protecting local stability but fail to protect people’s rights, issuing illegal decisions, harming the prestige of the judiciary, causing disputes between officials and ordinary people that could have been resolved through legal means to be pushed into petitioning.

Cases are bounced back and forth between courts, with no court undertaking a serious review of the case. Courts are seeking to close cases without resolving the underlying issues. With the courts as the place for resolving social disputes and amendment of the Administrative Litigation Law (expanding its jurisdiction), aggrieved litigants, holding sheafs of court decisions are petitioning higher courts, particularly the #2 Circuit Court. If the reasoning is not clear or transparent, ordinary people will just think it is “officials all protecting one another” and petition.

Compounding the problem is weakness in the administrative divisions in the courts and the reception office of the courts. The administrative divisions do not have many cases, so outstanding judges are reassigned, and the team of judges in these divisions is unstable.   In the reception office of the lower courts, staff often fails to explain the law to litigants, and are high-handed.

Litigants

Litigants often not educated, do not understand the law, and insist on their view, thinking that if they make a fuss, the issue will be solved.(My former student wrote an account of her experience dealing with petitioners in the #1 Circuit Court, linked here, while the issue of litigation-related petitioners (涉诉信访) receives attention in this long academic article.)

What to do?

The issues with the status of the courts in the political structure a are beyond the authority of the #2 Circuit Court,  so what Judge Hu had within his authority to do included:

  • doing a better job dealing with petitioners at the court;
  •  training lower courts to better handle administrative cases;
  • better communicating with Party/government, including arranging training for the courts and Party/government, so that officials better understand their obligations under the law;
  • doing a better job of public education (宣传教育) through publicizing cases.

Comments

The authors do not venture comments on whether the situation that they describe is typical for other areas of the country, but a quick search reveals courts in other areas of the country raising many of the same issues.

Will the current judicial reforms be able to deal with some of the issues raised by the authors of this study?  Only partially, it seems.  The future change in appointment and funding, better training for and treatment of local judges should be helpful. The 2015 regulations forbidding leading official interference in court cases should, in theory, reduce local government official interference in the local courts, but more needs to happen to educate local officials to comply with the law.  Regulations issued earlier this year mandating legal counsel for Party and state organs may be helpful in the long term. It may be helpful for the #2 Circuit Court to reach out to local lawyers to advise petitioners, as the #1 Circuit Court has done, but whether local lawyers are willing to do so (on a pro-bono basis, as is true in Shenzhen), or possibly that they are concerned that they may be accused of trouble-making under new Ministry of Justice regulations remains to be seen. It is clear from the report that deep-seated attitudes towards law and ordinary people held by government officials are changing only very slowly.

 

 

Procuratorate

Why are Chinese prosecutors resigning?

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Chinese prosecutors (procurators, this blogpost will use the terms interchangeably, although the functions of the procuratorate are broader than public prosecution) do not receive the international attention that Chinese judges attract. There is no Supreme People’s Procuratorate Monitor to review its reforms, structural and legal issues.

Chinese prosecutors, like judges, are leaving the procuratorate in significant numbers, although recent statistics do not appear to be easily available，According to statistics for 2011-2013, over 6000 prosecutors were resigning annually. Li Bin, a former senior prosecutor who in 2016 worked for the legal media company Itslaw (无讼),（she has since changed companies), published the results of her survey of over 4000 members of her cohort this spring.  The study gives important insights.

Who is leaving?

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Prosecutors resigning, by sex

The two surveys that she did revealed that men were resigning in greater numbers than women, with 70%/30% ratio in the survey done this (2016) spring. This may explain why many of the criminal cases streamed by the courts have an all women team of prosecutors.

Age and education

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Age of resigning prosecutors

Like the judges who are resigning, most are in the 31-40 age bracket, with 45% between the ages of 31-35 and 36% between the ages of 36-40.  About 10% are under 30, 6% between 41-45, and no one over 46 responded to the survey. 59f43639-99a0-47ad-b1d9-a9961f257d37-1

Most (80%) resigning prosecutors have at least 5 years experience, with about 40% with over 10 years experience, and 1/3 with 6-9 years experience.

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Educational background

Most prosecutors who resigned had at least a master’s degree.

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Almost half (45%) the resigning prosecutors had worked at the basic level, with another 20% leaving provincial level procuratorates, and another 20+% leaving municipal level procuratorates.

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Most (70%) had done public prosecution, with about 20% having worked in investigation.

Most (67%) of those who responded had resigned within the past  year, with the remainder having resigned within the past three  years.

Destination

Over 40% of those prosecutors who reisgned became lawyers, while 44% became in-house counsel.  Very few went into teaching or other non-profit professions.

Reasons for leaving

Three-quarters of the resigning prosecutors identified poor benefits (and other treatment) as their reason for leaving. Other  reasons identified by over half the respondents included: insufficient opportunity for promotion, no feeling of accomplishment in their work; overly bureaucratic management, insufficient professional respect, inability to travel abroad.  [One local prosecutor has commented that  junior prosecutors (in his locality, at least) are to travel, although the high ranking ones are more restricted.] Other reasons such as too much work pressure or risk were identified by less than 30%.  Others mentioned chaotic management, lack of opportunity to learn anything.

Procuracy reforms

Prosecutors who had resigned were generally pessimistic about judicial (i.e. including the procuracy) reforms.About half said “it was hard to say anything about the future of the reforms,” while about 1/3 thought that there was no hope, with about 19% having some hope.

Almost 90% of resigning prosecutors thought that raising the salary was the most urgent need, with three-quarters believing that it needed to be doubled or tripled to retain prosecutors, with 70% agreeing that the administrative burden should be reduced, almost 60% agreeing that bureaucratic management should be reduced, and 47% agreeing that prosecutors should have more autonomy concerning their cases.

Social media

Finally, the reasons for resigning identified by the editor of Empire Lawyers (mentioned in my earlier blogpost on judges) likely apply to prosecutors. Social media, particularly Wechat,is likely important to prosecutors too, for the same reasons.  It has given them a new universe of social connections outside the procuratorate. It also gives them easy access to information about the life of former prosecutors similar to themselves. Moreover, through Wechat they can create a circle of friends and connections who can provide moral support when they have made the decision to resign.

Money is a big factor, particularly in major cities with high costs of living. The fact remains that middle-class life in China’s major cities, particularly for couples with a child, is expensive and salaries, tied to civil service rank, are inadequate.

At least judging from this survey, prosecutors are concerned that the judicial reforms will not result in a better quality of work for them personally.

As with judges, there is also the rigidity of the Party/state cadre management system. While law firm partner classmates are posting photos of themselves at Yosemite or in the Grand Tetons on Wechat, prosecutors must obtain permission to leave the country.

Communist Party and the Courts, Uncategorized

Further violence against Chinese judges

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screen-shot-2016-09-18-at-1-09-54-pmDuring the Mid-Autumn festival, several of the major legal Wechat accounts carried articles deploring the latest report of violence against judges in a Shandong bank (which occurred on 8 September) (and making caustic comments about the local authorities), attracting hundreds of thousands of page views.  An official statement about the incident has now been issued by the central authorities decrying “no matter what the reason, violent resistance to law in any country is very serious legal event, it has touched the base line of the rule of law, respect of the dignity of the individual, it is about the authority of the law, if even in a judge’s personal safety can not be guaranteed in the society, what is the rule of law?”

A video of the incident (from which the above photo was taken) has been circulating of the incident, which originally had been deleted from Tencent video but now has been restored.The video shows two judges from the enforcement division of a county court at a local bank being attacked by personnel from the defendant company. The video states that the judges were taken to “headquarters,” with one kept as a captive and the other taken back to the bank.  A subsequent local government statement said that the investigations were continuing and the two judges were safely escorted from the county.

The official statement, made first by the Supreme People’s Court on its Weibo account , was subsequently reprinted in other official media, including on the front page of the People’s Court Daily and the website of the Central Political Legal Commission.

Presumably social media was flooded with thousands of messages from local judges on the lack of respect for the judiciary by the public and officials.

Comments on public accounts include:

 Wang Dong, prosecutor, author of CU检说法: Today enforcement division judges were beat up, maybe tomorrow it will be the criminal, civil court, and administrative division judges.

Today  Shandong judges were beaten, maybe tomorrow it will be Anhui, Henan, or Zhejiang judges.

Today those who were beaten were judges executing their public duties, maybe tomorrow it will be public prosecutors (procurators), police, or lawyers.

Everyone will not always be just a spectator.

If we say that the safety of judges, prosecutors, and police officers in the execution of public duties is not guaranteed, how can we expect them to protect the safety of social justice yet.

And a last sentence to say: If the judge can not feel justice when he encounters violent resistance to law, how can he make people feel justice in every case?

From a retired intermediate court judge, published on Legal Readings (法律读品):

If there is no limit on public power, judicial power loses its authority (公权无抑遏，司法失权威).

Case law, Uncategorized

Which Chinese cases are most persuasive?

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23885878-1_x_2Chinese courts are paying more attention to the use of precedent in considering how to decide cases.  (Two of my fellow bloggers, Mark Cohen and Jeremy Daum, have recently published on this issue, as have I.)  One of the many issues remaining to be settled as China constructs its own case law system is a hierarchy of precedent, so that the Chinese legal community, in particular its overworked judges, have clear rules on this issue.  (This is one of the questions subsumed under #23 of the Fourth Five Year Court Reform Plan).

We know that the hierarchy of precedent is not settled because two recent authoritative Chinese publications take a similar but not identical approach:

  •   The first, as cited in an article by Judges Jiang Huiling and Yang Yi of the Supreme People’s Court Center for Applied Jurisprudence, highlight the list set out in “The Beijing IP Court Guiding Case Work Implementation Methods (Draft)” (summarized in Jeremy Daum’s article); and
  • The second, an article by Judge Wang Jing, a senior Nanjing Intermediate People’s Court judge, published (and re-published) in a number of prestigious Wechat public accounts, including the account of the Shandong Higher People’s Court.  (Wang Jing has frequently published in SPC publications and she published her views on the judicial quota system (on Judge He Fan’s public account).

(As helpfully translated in Jeremy Daum’s article, the Beijing IP court draft regulations list, from most to least persuasive:

  1. SPC guiding cases
  2. SPC annual cases
  3. other SPC cases
  4. High People’s Court model cases
  5. High People’s Court reference cases
  6. Other prior cases from High People’s Courts
  7. Intermediate People’s Court precedent,
  8. Basic-level Court precedent,
  9. Foreign (non-mainland) case precedent.

I’ll focus on Judge Wang Jing’s analysis.

Judge Wang Jing

1.SPC guiding cases

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2.Cases published in the monthly SPC Gazette.  Those are of two types: selected judgments (裁判文书选登) and cases  (案例), generally totalling 20-30.  The first type are cases decided by various trial divisions of the SPC and reflect their views on certain issues, while the second model cases submitted by the local courts (through the provincial high courts), which have been reviewed by the various trial divisions of the SPC.

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3.Other cases published by journals of the SPC such as Selection of People’s Court Cases(人民法院案例选),  (a quarterly publication of the SPC Center for Applied Jurisprudence), China Case Trial Highlights (中国审判案例要览) (an annual publication of the National Judicial College and the Law School of People’s University)、and People’s Justice–Cases (People’s Justice is a biweekly publication,but the Cases section is published monthly). She notes that these cases reflect issues considered difficult and disputed in practice.z4573143

 

4. Trial Guides edited and written by the trial divisions of the SPC (最高法院各审判业务庭编写的审判指导丛书).  The People’s Court Press publishes a series entitled China Trial Guide (审判指导丛书), with separate publications by various trial divisions of the SPC, including the case filing, civil, administrative, #2 civil and #4 civil divisions. These publications often contain cases from the lower courts, or in the case of the #4 civil division, cases that have been reported to that division for review under the Prior Reporting system.

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5. Case publications by various higher people’s courts (各地高级法院等编辑的案例刊物).

She notes that many provincial higher people’s courts (and some intermediate courts) publish cases, with cases published by the ones that have been in operation the longest and are more influential considered the more persuasive.  She mentions the Jiangsu Higher People’s Court Gazette as an example, which has cases decided by that court and model/typical cases from the lower courts.  (These are similar to categories 4-6 above).

Although her list does not specifically mention non-guiding (and non-model or typical cases) in her list of authoritative sources, she addresses them in her advice for lawyers providing precedent cases in litigation, with three common sense items of advice: when  you provide a case, it should be according to the court hierarchy, and date issued, provide the source, and use cases to provide a mind map for the judge to follow.  (A prestigious intermediate people’s court (the Shenzhen Intermediate People’s Court) recently also mentioned litigants (positively) using cases from the SPC’s case database, China Judgements Online, as a reference to judges.)

Some comments

This is another area in which Chinese law appears to lack firm guidelines about order and terminology (as I wrote about this theme in a series of articles for Practical Law China, ( note that they are behind the company paywall).The SPC and its divisions (and even one of its Circuit Courts) issue collections of model/typical cases (and summaries of such cases) under a variety of titles.  Terminology (aside from the guiding cases) is not entirely consistent.   The SPC issues notices and replies (generally of divisions of the SPC), acknowledged by Vice President Shen Deyong as a source of law, in an introduction to the book Collection of the Supreme People’s Court’s Judicial Rules (2nd edition)–how do these relate as sources of law vis a vis various types of cases or case summaries?  The legal community (domestic and foreign) awaits greater guidance.

 

 

 

circuit courts, Uncategorized

SPC Judge Zhou Fan–another fallen tiger?

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A report in Caixin on 8 September revealed that Judge Zhou Fan, vice president of the Supreme People’s Court (SPC)’s First Circuit Court in Shenzhen (and member of its Party committee) has been cooperating with Central Commission for Discipline Inspection (CCDI) investigators (i.e. taken into custody (according to Caixin’s English version)) for at least two mo10a1b5488422ac8b06c1c2cd0177d54cnths. [The original Caixin report has been taken down, but has been republished by Hong Kong’s Economic Journal.]  Judge Zhou has worked in the SPC for over 20 years, focusing on commercial matters, both domestic and cross-border, and would have been considered to be technically outstanding to be selected to be a senior judge for the First Circuit Court.

According to the Caixin report, he is one of the judges linked with former Vice President of the SPC, Xi Xiaoming (earlier posts on Xi found here and here).

The Caixin report mentions other allegations against Judge Zhou, such as cooperating with litigation brokers and interfering in major commercial disputes.The dates of the alleged conduct are not specified.

Over a year ago, this blog had the following comments on Xi Xiaoming’s case:

it is likely that the anti-corruption investigation into Judge Xi will touch on parties, including other judges, related to the case(s) in question.  It is also likely that the full extent of the investigation will not be made public.

So returning to the social context of 2011. A number of Chinese lawyers and academics have privately noted that at the time of the case in question, it would not be unusual for supplemental payments to be made to Court judges in connection with commercial disputes involving large amounts of money, and refusing payment could also have been awkward for those involved.

Although Judge Zhou’s photo remains on the First Circuit Court website, the publication of this report and allegations do not augur well for his tenure there.

 

 

Court Reform

Why are Chinese judges resigning?

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Much has been written on why Chinese judges are resigning (but not enough about Chinese prosecutors–to be the subject of a later blogpost), but this blogpost (written on the road) adds some more detail and analysis. Comments (and criticism) are welcomed.

In May (2016), Chen Haiguang, the head of the judicial management department of the Supreme People’s Court (SPC) revealed that over 1000 judges had left, which he described as about 1% of the judiciary. The number appears to be an underestimate.  The legal Wechatosphere often mentions that a Wechat chat group of former Beijing-based (including the SPC) judges has reached its maximum of 500 members.

More data and analysis comes from two sources: a survey conducted in the fall of 2015 and published by Wusong (a big thank you to another “authoritative person” for bringing this to my attention) and a recent article by one of the more popular Wechat public accounts, Empire Lawyers ( 法客帝国).

Respondees to survey

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Six hundred former judges responded to the survey, conducted through social media, of which 72% had left within the past year, while almost 19% had left within the past 2-3 years.

Who is leaving

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Judges resigning, by sex (82.2% men, 19.67% women

It is mostly men leaving the judiciary, out of proportion  with the ratio of men:women in the judiciary (2:1). (This confirms what I have been saying when I have spoken on this issue). The survey gives the rationale that men are more interested in a challenging career than women, and are able to deal with a more pressured life.

Judges are resigning in their 30’s, for the most part (see below), and my own analysis is that the reason women are staying in the judiciary is that (married) women at that age also have responsibilities to children and elderly parents. Women are prepared to deal with the stresses of working in the judiciary because the work is more “stable,” and does not involve marketing work after business hours.

Age and education

Over half (55%) of the judges resigning are in their 30’s. Most (70%) have been in the judiciary for at least 6 years, with practically all (91%) with at least 4 years of experience, over 99% with an undergraduate degree and 37% with a master’s degree.

Type of court and area of work

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Most judges who have resigned recently  are from the basic level (78%) and intermediate level courts (18%).

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Many (almost 80%) of the judges who had resigned were in the civil/commercial divisions, with division chiefs and deputy division chiefs accounting for 14% and 19% respectively.

Reasons for leaving:

  • benefits insufficient (66% selected this as primary reason);
  • too much pressure and too much work (60%);
  • not enough opportunity for promotion (34%);
  • professional risk and lack of professional respect (31%).

Those that have resigned are generally pessimistic about judicial reform (47%) or can’t say for certain whether it will be successful (32%). Their “judges’ dream” is to be able to try cases independently, without reporting their case up to the leadership, worrying about parties to the case petitioning because they are unhappy with the outcome, etc.

Another analyst (the editor of the Wechat account Empire Lawyers) gave three reasons for the wave of judges submitting their resignations.

  • Wechat;
  • Judicial reform;
  • Other factors (especially money).

Why Wechat?  Because it has given them a new universe of social connections outside the judiciary. It also gives them easy access to information about the life of former judges similar to themselves. Moreover, through Wechat they can create a circle of friends and connections who can provide moral support when they have made the decision to resign. According to the editor, Wechat is often a vehicle for judges preparing to resign. Some judges establish their own Wechat public accounts while still in the judiciary, publishing articles that bring much more attention from legal professionals to their expertise than their judgments ever do.

The increased stresses of judicial reform are another set of factors–the lifetime responsibility system,  case registration system, and particularly, the bright line quota on the number of judges (no more than 39%) means that promotions will come more slowly than previously and others will not even be eligible to participate in the examinations for qualifying as a judge.

Other factors?  The editor cited money, particularly judges in major cities with high costs of living.  The fact remains that middle-class life in China’s major cities, particularly for couples with a child, is expensive and judicial salaries, tied to civil service rank, are inadequate.   As the editor mentioned, some judges supplement their wages with (legal) inome from writing or lecturing. (It seems likely in the current atmosphere, fewer judges are willing to risk soliciting illegal income.)

There is also the rigidity of the Party/state cadre management system. While law firm partner classmates are posting photos of themselves at Yosemite or in the Grand Tetons on Wechat, judges must obtain permission to leave the country

Finally, this couplet is popular on legal oriented Wechat:

网上流行一个段子：

Q: Do you regret resigning from the court?

问：从法院辞职，你后悔吗？

A: Regret.

答：后悔。

Q: Why do you regret it?

问：为什么后悔？

A: I regret that I left too late.

答：后悔出来晚了。

bankruptcy law

Supreme People’s Court’s new bankruptcy information platform

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Screen Shot 2016-08-06 at 12.12.56 PMOn 1 August, President Zhou Qiang of the Supreme People’s Court (SPC) inaugurated the SPC’s new enterprise bankruptcy and reorganization electronic information platform, linked here and accessible through the Supreme People’s Court’s website (www.court.gov.cn).  The English title and slogans could have benefited from a 5-minute consultation with a native speaker, but more importantly, some of the functions still appear to be in Beta mode.  The platform has three parts.

It provides information for the public on:

  • Debtors (债务人信息). :

 This function seems to be in Beta mode because when you click further for more details,Screen Shot 2016-08-07 at 9.03.31 AMno further information is available.  This section is intended to provide the most recent annual report, related litigation, and information on assets of the company from the industrial and commercial authorities’ database and enable “one-stop shopping” for distressed assets.

Bankruptcy notices, such as this one with a plan on the distribution of the assets of a Xinjiang tomato processing company;

  • Bankruptcy rulings made by the local courts, such as this one by the Qidong (Jiangsu) court on accepting the bankruptcy case of a Nantong marine engineering company;
  • Laws and regulations (primarily SPC regulations related to bankruptcy);
  • Bankruptcy related news, primarily reports on new regulations issued and bankruptcy-related initiatives or conferences, such as this one in Zhejiang, on the crisis in Zhejiang’s ship-building industry);
  • Typical (model) bankruptcy and liquidation cases (see an explanation of typical/mode cases here), so far just a re-publication of the typical cases that the SPC issued in June.

Second, bankruptcy administrators are required by these regulations to upload information to issue to parties to the bankruptcy.

Third, judges are required to upload their bankruptcy/liquidation rulings to this platform.

For parties, the platform enables them to have current information on the status of their cases and upload documents to submit to the court or bankruptcy administrator.

The SPC issued regulations on the operation of the platform in late July, available here. It seems likely that the SPC considered the bankruptcy platform of other major jurisdictions in the process.  This platform is part of the SPC’s Internet Plus/smart courts policy to provide greater transparency, easier access to information, and “greater informatization,” for some of the reasons described in this short article–particularly having tangible results and promoting the use of information technology.

For anyone seeking to drill down into the details of how bankruptcy and liquidation law is being implemented in China’s political and economic environment, and particularly for lawyers and others doing due diligence and distressed asset investors (domestic or foreign), the platform is unquestionably very useful.

 

 

 

 

Case law

How China’s non-guiding cases guide

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Screen Shot 2016-07-30 at 12.13.38 PM  What few recognize is that the millions of non-guiding cases on the Supreme People’s Court’s China Judgments Online website (and its commercial counterparts, such as 无讼(and any internal version that there may be)) are guiding the development of Chinese law, including what arguments lawyers make and how judges decide cases.  I note that this coming week’s U.S.-China Judicial Dialogue: In Support of Economic Growth and Reform includes the role of precedent as one of the topics of discussion, and I hope this brief blogpost (to be expanded later) can indirectly contribute to the discussion.

The conventional wisdom among both foreigners and Chinese writing about China and case law is that with the exception of a small number of guiding cases approved by the SPC, previous cases do not make law.

Those closer to the world of practice in China know that previous cases, or some portion of them, are indirectly shaping the development of Chinese law. From a Chinese perspective these cases are not directly guiding, or binding, but provide cases that lawyers and judges use as reference (参考), to persuade a judge or other decision-maker that a previous case has decided the same or similar issues. This phenomenon relates to cases in a broad range of issues and occurs in several ways:

  • A significant number of Chinese judges and lawyers follow Wechat legal public accounts. One type of article that frequently appears is one focusing on a specific legal issue and uses the case database to generate relevant cases.  A typical example is this article published on 29 July, analyzing six cases relating to changing the name of a child.  This type of article affects arguments lawyers make and the judges consider.
  • A second way is judges themselves will search a particular issue to see how other courts have decided a particular issue or the elements to which they have looked when deciding a particular issue. Lawyers perform similar analysis when preparing to argue a case.
  • Additionally, lawyers sometimes submit a relevant court decision when making a submission in an administrative proceeding, such as to the Trademark Review and Adjudication Board and more often, when making submissions to court.  Lawyers will evaluate, however, whether the judges hearing the case will take the submission positively or will consider it an indirect criticism of their professional competency. Lawyers will submit cases from courts higher than the court that they are litigating–so that a lawyer litigating in a Beijing district court may attach a relevant case decided by the Beijing Higher People’s Court, for example.
  • Among the many sources of information SPC judges use when drafting judicial interpretations is searches of previous judgments relevant to the issues under consideration, because those will indicate which questions are unclear for the lower courts.
  • Legal services companies, such as Itslaw, are training young lawyers in case searching and retrieval (guiding and non-guiding cases), using keywords analogous to Westlaw’s and LexisNexis’ products. They are doing this training because prior cases are being used in advocacy in China.

How are cases from China Judgments Online being used in China in practice? This is where we can see how case law, Chinese style, is developing. The SPC has been focusing its efforts on its guiding cases and it is unclear whether they have noticed this.

 

 

 

 

 

 

 

alternative dispute resolution, Commercial law, Uncategorized

Supreme People’s Court diversified dispute resolution policy (updated)

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Opening of court-annexed mediation center of Qianhai court

On 29 June 2016, the Supreme People’s Court (SPC) issued a policy document on diversified dispute resolution (Opinion on the people’s courts more deeply reforming the diversified dispute resolution mechanism) (Diversified Dispute Resolution Opinion)(关于人民法院进一步深化多元化纠纷解决机制改革的意见). The document uses the term “diversified dispute resolution” (consistent with Chinese practice) rather than “alternative dispute resolution” (more often used outside of China) to reflect the central place of mediation, arbitration, and conciliation in Chinese dispute resolution. (This updated version reflects comments by an authoritative person (and a very careful reader).

It was accompanied by regulations on court-appointed mediators.  For those interested in the way the SPC works, it is another example of an SPC policy document in the form of an “opinion” (discussed here) accompanied by regulations  (a type of judicial interpretation, discussed here).

The policy document sets out in a consolidated form the SPC’s latest policies on mediation, arbitration, and its relationship with litigation.  It provides a framework for further reforms. It is intended to inform the lower courts as well as related Party/government agencies of forthcoming reforms.  It signals to the central leadership that the SPC is on course to achieve one of the reform targets set out in the 4th Court Reform Plan. The current head of the SPC’s judicial reform office, Judge Hu Shihao, spoke at the press conference announcing the Diversified Dispute Resolution Opinion, indicating that the office took the lead in drafting it.

A summary follows below, highlighting, based on a quick reading, focusing on its:

  • objectives and origin;
  • signals and practical implications.

A very useful academic article on diversified dispute resolution, with survey data and more on the political background, can be found (behind a paywall) here. (To the many academics and practitioners who have written on this topic, please feel free to use the comment function or email to expand/contradict, or correct this).

Objectives & origin

The SPC issued the Diversified Dispute Resolution Opinion as a way to implement one of the targets in the 4th Judicial Reform Plan:

46. Complete diversified dispute resolutions mechanisms.Continue to promote mediation, arbitration, administrative rulings, administrative reconsideration or other dispute settlement mechanisms with an organic link to litigation, mutually coordinate and guide parties to choose an appropriate dispute resolution. Promote the establishment of dispute mechanisms that are industry-specific and specialized in the areas of land requisition and property condemnation, environmental protection, labor protection, health care, traffic accidents, property management, insurance and other areas of dispute, dispute resolution professional organizations, promote the improvement of the arbitration systems and administrative ruling systems. Establish an operating system that links people’s mediation, administrative mediation, industry mediation, commercial mediation, and judicial mediation. Promote the legislative process of a diversified dispute settlement mechanism, establish a system for a systematic and scientific diversified dispute settlement system.

The Diversified Dispute Resolution Opinion is a product of the 4th Plenum decision. Its underlying approach was approved by Xi Jinping and other top leaders. Judge Hu, who mentioned at the press conference that at a 2015 meeting, the Leading Small Group on Comprehensive Reform approved a framework policy document (not publicly available) on improving the diversified resolution of disputes (关于完善矛盾纠纷多元化解机制的意见) and the General Offices of the State Council and Central Committee followed with an implementing document. The principal reason that this topic merited top leadership time and involvement is because of its direct links to maintaining social stability and reducing social disputes.

Similar to other SPC policy documents discussed on this blog, comments on the draft were sought from the central authorities, lower courts, relevant State Council ministries and commissions, industry association, arbitration organizations, scholars, and the Legislative Affairs Commission of the National People’s Congress Standing Committee. The Diversified Dispute Resolution Opinion was approved by the SPC judicial committee.

Signals

The objective of the document is to promote a more sophisticated, efficient, and effective approach to dispute resolution that will reduce social tensions. Part of the objective is to reduce the number of cases filed, heard, and tried by courts. For commercial disputes, it is intended to push disputes to institutions that can more competently, efficiently and timely mediate cases.  These institutions include those affiliated with industry associations, arbitration commissions, or specialized mediation associations.  The Diversified Dispute Resolution Opinion also calls for better mediation of cases within the courts by involving court-annexed mediators, before or after the person or entity files suit. The implications of this document for the reform of labor and rural land contract dispute resolution remain to be seen.

The Diversified Dispute Resolution Opinion requires better linkages between other diversified dispute resolution institutions and the courts and particularly stresses the role of mediation.  Depending on the type of mediation, it may be done by mediation commissions affiliated with government, people’s mediation committees, arbitration commissions, or other institutions (further information here).  One particular issue that is addressed is easing procedures for enforcing mediation agreements  by courts.  (Because a mediation agreement is a type of contract, it cannot be enforced directly without further procedures, such as being notarized, issued as an arbitration award, or recognized by the courts (through a special procedure under civil procedure law). It emphasizes that the courts can leverage forces outside the judiciary to resolve disputes. The document calls for reasonable borrowing of dispute resolution concepts from abroad.

Practical implications to expect in the medium to long term

  • For the foreign investment community (and their lawyers), a signal that the SPC is working on a judicial interpretation concerning the judicial review of foreign and foreign-related arbitral awards (“standardize judicial review procedures for foreign-related and foreign commercial arbitration awards”) (规范涉外和外国商事仲裁裁决司法审查程序). As this blog has reported earlier, this was signaled at the November 2014 National Conference on Foreign-related Commercial and Maritime Adjudication and last year’s One Belt One Road Opinion. It is unclear whether the future interpretation will change the prior reporting procedure, for example, to give parties a chance to submit arguments orally or in writing, or whether it is intended to consolidate the principles the SPC sets out in its responses to lower courts (released to the public in one of the SPC’s publications), summarized in comprehensive overviews of Chinese arbitration law, such as this one.
  • Changes to labor dispute resolution, as highlighted by the 2015 Central Committee/State Council document mentioned earlier. This is important in light of the uncertain economy and increasing number of workers being made redundant. in recent years, judges in different areas of China have published devastating criticism of the current labor arbitration system and labor dispute resolution generally. The judges pointed out the current labor arbitration system is not independent of the government, fails to protect labor interests equally, and . The judges also criticize the brief statute of limitations in labor disputes and lack of a specialized labor tribunal. It appears from reports that Zhejiang Province is taking the lead in providing greater choices and professionalism in labor dispute resolution, but it unclear how far those reforms go.
  • Further attention to rural land arbitration.The Diversified Dispute Resolution Opinion mentions better linkages between the courts and rural land arbitration. This area is important, as the government seeks to encourage farmers to expand their landholdings and mortgage their land, but the merits of the system are not the SPC’s issue. A 2014 report highlights the lack of independence of these arbitration commissions, lack of arbitrators, and absence of qualified arbitrators. A 2016 paper by several China Banking Regulatory Commission staff on the mortgage of rural land notes that those arbitration commissions need improving.
  • Local courts to establish “court-annexed mediation centers” to encourage and give parties “one stop shopping” for choices in mediating some of the cases most often seen in the courts–family, conflicts between neighbors, consumer, small claims, consumer, traffic accident, medical disputes;
  • “Improving” criminal conciliation and mediation procedures. Reforms in this area bear close monitoring because, as discussed in earlier blogposts, criminal conciliation and mediation procedures are often used to avoid embarrassing more powerful institutions (such as schools) and people especially in cases involving claims of rape, sexual assault, and child molestation;
  • Recognizing the results of and encouraging litigants to use neutral valuation organizations, for civil and commercial disputes such as medical, real estate, construction, intellectual property, and environmental protection, the results of which could be used as the basis of mediation；
  • More small claims and expedited procedures for minor civil disputes;
  • more lawyers to be appointed as court-appointed mediators；
  • Improvements to administrative dispute resolution procedures.

 

Uncategorized

Cameras in the Chinese courts

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Screen Shot 2016-07-20 at 9.33.43 PM
Fraudulent fund-raising criminal trial

One of the less recognized aspects of China’s judicial reforms is the live streaming (and video archiving) of Chinese court hearings. other than the coverage of the Bo Xilai case.  (I put myself in the category of the persons who were formerly unaware of this development). This blogpost looks (briefly) at SPC policies, current developments, and some very thoughtful analysis of the issues by members of the Chinese judiciary. It follows from my previous blogpost  on online broadcasts of Supreme People’s Court (SPC) public hearings.

Several times this month (July, 2016), President Zhou Qiang has highlighted live streaming (and video libraries) of court hearings, most recently on 18 July, when he spoke about China’s “Smart Courts” and the SPC’s 3.0 Initiative, and reflects the information technology orientation of the Chinese courts (see this brief article on the topic).

In streaming court cases, the SPC and local judiciary are part of a worldwide trend. Even the US federal courts are experimenting with them, with the Court of Appeals for the 9th Circuit taking the lead.  The courts of Queensland (Australia) have recently issued a paper, looking at the issues from an Australian law perspective and very usefully providing a survey of the law worldwide on  major issues.

What are the Chinese courts doing?

The Chinese courts are implementing live broadcasting and video libraries of a selected, but increasing number of cases, with courts in more prosperous areas taking the lead. The Guangzhou courts were among the courts to broadcast court proceedings first. A minority of those cases are found on the SPC’s Court Tv website and most are found on local court websites, often on that of provincial high courts.  The cases tend to be primarily civil cases, with some criminal and a few administrative cases.

On the website of the Beijing courts for example, there are total of approximately 500 cases, of which 364 are civil cases, including an unfair dismissal case brought against Carrefour, 106 criminal cases, including one with an unrepresented defendant, and quite a few cases involving methamphetamine trafficking. The most popular one is a 2014 corruption case. There are 12 administrative cases, including a case against challenging a housing demolition decision by the Fangshan government.

The Zhejiang High Court seems to have video libraries of hearings in two places: this one has links to hearings for sentence commutation, such as this one, while another website has a broad range of cases, including this recent one from the Wenzhou courts, in which the defendant is being prosecuted for trafficking women into prostitution.

SPC’s 2015 report Judicial Transparency of Chinese Courts highlighted the broadcasting of Chinese court trials, noting that by the end of 2014, there were 519 live broadcasting of court trials through the SPC’s China Court’s Live Trial website (http://ts.chinacourt.org/). and that the local courts had streamed over 80,000 court trials. The numbers are much higher than that (close to 5000 on the SPC’s website) and certainly many more on local court websites.

Legal and Policy background

Streaming of Chinese court hearings is based on 2010 SPC regulations (Provisions on the Live Broadcasting and Rebroadcasting of Court Trials by the People’s Courts) and is linked to the 4th Five Year Court Reform Plan:

15. Establish mechanisms for audio and video recording the entire course of hearings.Strengthen the establishment of technical courtrooms, promoting the full audio-video recording of trial proceedings.

Streaming is also linked to the SPC’s five year plans related to information technology:including  a 2013-17 plan on the Informatization of the courts (人民法院信息化建设五年发展规划（2013-2017）) and two ongoing ones, the Five Year Plan on the Informatization of the People’s Courts, 2016-20(人民法院信息化建设五年发展规划（2016-2020)  and the SPC’s Five Year Informatization Plan (最高人民法院信息化建设五年发展规划（2016-2020)).

The 2010 Regulations do not provide specific protection for the rights of individuals, but focus on the type of cases to broadcast and approval procedures for broadcasts.

Article 2 The people’s court may choose the openly tried cases of higher public attention, greater social impact, and of legal publicity and education significance to make live broadcasts of and rebroadcast court trials. The live broadcasting and rebroadcasting of court trials are prohibited for the following cases:

(1) cases that are not openly tried in accordance with the law since any national secret, trade secret, individual privacy, or juvenile delinquency, among others, is involved;

(2) criminal cases on which procuratorial organs clearly require the non-live broadcasting and rebroadcasting of court trials for justifiable reasons;

(3) civil and administrative cases on which the parties clearly require the non-live broadcasting and rebroadcasting of court trials for justifiable reasons; and

(4) other cases of which the live broadcasting and rebroadcasting are inappropriate.[Translation from Chinalawinfo].

Comments from some local judges 

While the SPC leadership is highlighting the virtues of the streaming of trials, some local judges, likely writing from their personal experience, and comparing Chinese rules with counterparts worldwide, are more critical.

These judges from the  Guangzhou courts (judges with several years of experience with trial streaming) raised issues concerning privacy rights, the right to a fair trial, and the public’s right to know.

  • The privacy of litigants is not respected sufficiently; they are concerned that their private matters will be released online;
  • Open justice is necessary to consider the relationship between state power and individual private rights, but also the public’s right to know and the right to privacy of the parties must be balanced.
  • For criminal cases, for the defendant, the trial webcast is equivalent to a disguised form of a public rally– it could mean that the person has the label of  “criminal” for life .
  • In civil disputes, some statements in court may involve aspects of the private life that the parties or other related persons do not want publicized. Meanwhile, network videos and enormous destructive power of “human flesh searches” combined with public opinion on the parties and their families will have a significant impact, which are likely to lead to their privacy being violated.
  • Not all the information and all the facts of the case should be disclosed online. Some information  can be shielded, such as date of birth, place of work, home address, ID card number, bank account information, and the personal information of related parties, such as close relatives, witnesses and other participants.
  • Parties should have a veto over the trial webcast, and in criminal cases, the victim and his or her family should be consulted as well.  They also suggest shielding some information from broadcast.

As a staff member of theChengdu  courts noted, similar issues are raised by the database of court decisions, such as a case in which the plaintiff’s claim for damages from a traffic accident (including the loss of the ability to procreate) made him the laughingstock of his workplace.

Other local judges have commented that the cases selected for broadcast are not representative, too simple, and that they are sometimes selected for political reasons.

The underlying problem both for online streaming of cases and the court database is that there is not enough Chinese privacy law to protect individuals. Whether the SPC will issue more detailed regulations on privacy in internet broadcasts of court proceedings is unclear.

It does seem clear, that an important rationale for streaming cases is to educate the masses–杀鸡敬猴。Politically sensitive cases are not generally streamed.

For the observer of the Chinese courts, it is a fascinating resource in many ways, whether it is noting the number of cases with people’s assessors, women prosecutors, judges, demeanor of the legal professionals, parties, and bailiffs.

 

 

 

Commercial law, Court Reform

Supreme People’s Court starring on Court TV

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Screen Shot 2016-07-14 at 2.13.22 PM
Nestle v. TRAB hearing in SPC

From 1 July 2016, the Supreme People’s Court (SPC) is (in principle) broadcasting live all its public trials (public hearings) (better understood by those from a common law jurisdiction as an appellate court hearings) on its own Court TV website.

SPC broadcasts also include hearings by the #2 Circuit Court (in Shenyang) and #1 Circuit Court in Shenzhen.   The technical platform is provided through Sina.com and a private company.  The SPC describes its online broadcasts as its fourth transparency platform.

Some of the cases that the SPC considers do not have public hearing procedures, such as its capital punishment review and judicial review of decisions concerning foreign and foreign-related arbitral awards.

As of 14 July, there almost 30 cases for which the videos are available, many of which involve lending, either bank or private lending and real estate-related disputes, and are primarily civil cases.  Some of the cases include:

It provides a window into the world of Chinese commercial disputes.

Rationale

SPC Vice President Jing Hanchao, who was apparently tasked with implementing this development, is quoted by the official press as saying:

the live webcasts will be significant progress for judicial openness. With full transparency of trials online, the public can better play their supervisory role.

Live broadcasts will also drive judges to strengthen their capabilities, thus improving the judicial system…

..live webcasts will create a large amount of data that will help jurists study China’s legal system.

Having their advocacy broadcast on line may also drive lawyers to strengthen their advocacy skills as well.

For persons interested in the Chinese judiciary, it provides easy access to SPC court hearings, without the hassle of special permission, letters of introduction, and trips to Beijing.

Lawyers in Beijing do not seem to be aware of this development, at least judging by the lawyer acting for TRAB, who arrived in the courtroom after the hearing began.

Some outstanding questions

This decision by the SPC raises a number of questions.

  • Were the parties asked whether they consented to having their case broadcast on line? It is not apparent from the recordings that I have seen.
  • Individual parties read out their personal identification numbers on the recordings.  Could this be an invasion of their privacy?
  • The recently promulgated People’s Court Courtroom Rules (translation here (thank you Chinalawtranslate.com) and original here) lacks any type of balancing test:
  • Article 11: In any of the following situations, for trial activities that are conducted openly in accordance with law, the people’s courts may use television, the internet or other public media to broadcast or record images, audio or videos.
  • The 2010 regulations on the broadcast of cases (关于人民法院直播录播庭审活动的规定)  lack specific procedures enabling individuals to protect their rights. Do judicial reforms contemplate more specific procedures enabling litigants (or defendants) to refuse to have their case broadcast online?

 

Note:

Mac users may find that the platform works better through the Safari browser than Google Chrome.

A blog discussing China's highest court