Central Inspection Group gives feedback to the Supreme People’s Court (2020 edition)

Photo of CIG feedback meeting

In September, 2019, this blog reported that Central Inspection Group (CIG) #4 would inspect the work of the Supreme People’s Court (SPC) Party Group for approximately two months.  On 10 January 2020, Chinese media reported on CIG #4’s feedback to the SPC’s Party group. The summary and brief analysis below is based on the press release published in state media, rather than the full report given to the SPC.  Palpably better judicial transparency does not include Party documents of this nature. This process signals to the world outside of China that the SPC has a different role in the Chinese political system from the supreme courts of other major jurisdictions.

Chen Xi, Politburo Member, head of the Organization Department, and deputy head of the Leading Small Group on Central Inspections chaired the meeting. In the audience was: the head of the CIG #4 Group and its leader; members of the supervision office ( 监督检查室) of the CCDI/National Supervision Commission, leaders from relevant bureaus of the Party Organizational Department, leaders from the CCDI/Supervision Commission office stationed at the SPC, leaders of the SPC, and other responsible persons from the SPC. The results and the recommendations of what needs to be improved, as in 2017, were conveyed to the Standing Committee of the Politburo. The inspection group found that:

the study and implementation of Xi Jinping’s new era of socialist thinking with Chinese characteristics are not deep enough, the implementation of the Party’s line, direction, and policies and the Party’s central decision-making and deployment were not satisfactory.  There is insufficient focus on Party political construction;  the strengthening of political ideology and professional ethics of the cadre team (加强干部队伍思想政治和职业道德建设还不够到位) is not satisfactory; it insufficiently fulfills the duties and mission of the state’s highest judicial organ (履行国家最高审判机关职责使命还不够). The requirements of “justice for the people and fair justice” have not fully penetrated the entire court work process.   In every aspect, the trial management system and the supervision mechanism for the operation of judicial power are incomplete (各方面,审判管理体制和审判权力运行监督机制还不够健全完善). The strict implementation of the Party’s main responsibilities has not been put in place in a comprehensive manner, and minor problems are ignored; there are still problems with violations of the spirit of the Central Eight Point Regulations. There are still gaps in implementing the Party’s organizational policies for the New Era; leadership building and cadre construction are not in place. Party-building work of the institution and at the basic level is weak. Issues identified in the last inspection have not been corrected and corrective mechanisms are not in place.

In 2017, the CIG found: “four consciousnesses” need to be further strengthened; political discipline and political rules are not implemented strictly enough; the leadership role of the Party group is insufficiently developed;  there are some gaps in the coordination of the advancement of the system of judicial system reform; the implementation of responsibility system for ideological attitude (意识形态责任制落实不够有力); there are weak links in Party construction; organizational construction is not systematic enough; internal Party political life is not strict enough; relevance of ideological-political work is not strong; some Party leading cadres’ Party thinking is diluted (有的党员领导干部党的观念淡漠); the role of the basic level Party organization as a fighting fortress is insufficient; comprehensive strict governance of the Party is not strong, the implementation of the central eight-point regulations is not strict enough; formalism and bureaucratic issues still exist; tourism using public funds, abuse of allowances and subsidies still occurs; personnel selection is not standardized; cadre management is not strict enough; there are some areas of clean government risk.

This report revealed that some information involving leaders had been referred to the CCDI/National Supervision Commission, Party’s Organization Department, and other departments for further handling. The 2017 report contained similar language as well.

Chen Xi made demands of Zhou Qiang and other members of the SPC Party leadership. Among those is to implement the Party’s absolute leadership over the work of the courts, strengthen its “service and guarantees” to the work of the Party and state (see my 2019 article on one aspect), and implement judicial reforms. One of the demands he made with significant practical significance (flagged by a Wechat account popular among judges) is for measures for SPC judges (and likely lower court judges as well) that further restrict the employment of judges who have resigned and stricter conflict of interest rules for relatives of judges who are lawyers. [It is unclear whether these future measures will slow the resignation of SPC (or lower court) judges.]

He called upon the Party Group to raise their political position (提高政治站位) and arm their brains with Xi Jinping New Era Socialism with Chinese Characteristics thinking (用习近平新时代中国特色社会主义思想武装头脑–a current slogan, for those not aware of recent developments).

Comments

For the outside observer, handicapped by a limited ability to decode Party jargon, the summary of the feedback raises many questions but also provides insights.

Although the feedback appears to be devastating criticism of the SPC, a quick comparison to CIG feedback to the Supreme People’s Procuratorate and the Ministry of Justice indicates that the language (at least in the press reports) is standard for CIG feedback to Party and state institutions. It thus provides insights into the thinking of the political leadership about how it views the law and legal institutions, including the courts.  It appears to treat the SPC as just another Party/state institution to be inspected.

Part of current Party policy seeks to bolster domestic and international confidence in the SPC and the lower courts.  At the same time, this press release describes the SPC as insufficiently fulfilling the duties and mission of the state’s highest judicial organ, and that some of its operations are inadequate.  No specific examples are provided. What are the qualifications of the CIG members to make this decision and what type of evaluation mechanism have they used?  What will be the impact of this feedback within the institution, within the Chinese legal community, and on the views of people in and outside of China towards the SPC?

The feedback also reveals continuing concern about Party building, political ideology, the Party thinking of senior SPC personnel, and implementation of Party policy.  It can be seen from my recent blogpost that SPC leaders seek to craft their policies, actions, initiatives, and other decisions to hit the target of being politically correct (post 19th Party Congress and post 4th Plenum) while being “problem-oriented” (坚持问题导向) that is, addressing relevant practical issues facing the court system.  The practical issues facing the court system are primarily civil disputes. We do not have overall statistics for the number of cases in the Chinese courts in 2019, but if the Shenzhen courts are any indication, the number of cases they accepted increased by 24%, with most of the cases being civil or commercial disputes. That means a substantial part of the work of the SPC must be directed towards creating a framework for dispute resolution in which domestic (and international) civil and commercial litigants can have greater trust.

 

The China International Commercial Court & the development of case law with Chinese characteristics

Screen Shot 2019-12-31 at 11.06.28 AM

Article in 30 December edition of People’s Court Daily

On 30 December 2019, I was quoted in an article that appeared in Supreme People’s Court (SPC) media (see the screenshot above).

“中国国际商事法庭的运作时间不长,但从迄今为止的运作中可以清楚看到,其受理案件非常慎重,会选择对中国相关法律发展产生影响的案件。”最高人民法院国际商事专家委员、北京大学国际法学院常驻知名学者Susan Finder表示,从首批案件的裁判文书可以明显看出,中国国际商事法庭的判决和裁定对于下级法院的法官和法律界人士来说,可能是重要的“软先例”,即权威性的裁判。

The CICC has been in operation a short time…What is clear from its operations so far is that it is carefully choosing its cases, only selecting cases that will have an impact on the development of relevant Chinese law. What seems evident from the initial rulings, at least, is that the judgments and rulings of the CICC are likely to be significant for lower court judges and members of the legal community as “soft precedents,” authoritative decisions….

It is an excerpt from a brief article that I am setting out below as I wrote it in English (I have added (Chinalawtranslate.com’s) translation of excerpts from certain documents) and Chinese translation (many thanks to a knowledgeable person who took a break from year-end case closing to do this elegant translation).

I am honored to have this opportunity to comment on some of the first rulings and judgments of the China International Commercial Court (CICC). This brief commentary will address the significance of CICC judgments and rulings and the CICC arbitration-related rulings.

The CICC has been in operation a short time and it is early days to provide a more detailed analysis of its operations. What is clear from its operations so far is that it is carefully choosing its cases, only selecting cases that will have an impact on the development of relevant Chinese law. What seems evident from the initial rulings, at least, is that the judgments and rulings of the CICC are likely to be significant for lower court judges and members of the legal community as “soft precedents,”  authoritative decisions that are highly persuasive although not binding on the lower courts. Authoritative commentators in China and abroad have noted that the arbitration rulings fill a gap in Chinese arbitration law. The rulings are also consistent with the position taken by courts in some major jurisdictions that also find that the parties expressed their intent to arbitrate any dispute although their contract was never finalized. In the view of this commentator, they are part of China developing its own case guidance system, highlighted in item #26 of the 5th Judicial Reform Outline, in particular the phrase “Improve working mechanisms for mandatory searches and reporting of analogous cases and new types of cases” “完善类案和新类型案件强制检索报告工作机制” . It was previously mentioned in Opinions on Putting a Judicial Responsibility System in Place and Improving Mechanisms for Trial Oversight and Management (Provisional) –“on the foundation of improving working mechanisms such as consulting similar cases and judgment guidance a mechanism is to be established requiring the search of similar cases and relevant cases, to ensure a uniform judgment standard for similar cases, and the uniform application of law “最高人民法院关于落实司法责任制完善审判监督管理机制的意见(试行), (六) 在完善类案参考、裁判指引等工作机制基础上,建立类案及关联案件强制检索机制,确保类案裁判标准统一、法律适用统一 .

Moreover, thus far, five judges formed the members of the collegial panel, all of whom are the Chinese court’s most outstanding specialists on cross-border issues, including the judicial review of arbitration. This indicates the importance to which the Supreme People’s Court attaches to CICC cases.

In this commentator’s view, addition to CICC cases, other cases decided by or selected by the Supreme People’s Court would be classified as such. For example, cases decided by the Supreme People’s Court Intellectual Property Rights Court 最高人民法院知识产权法庭 would also be allocated to the category that I call “Supreme People’s Court soft precedents.” Other Supreme People’s Court soft precedents would include cases in the Supreme People’s Court Gazette 最高人民法院公报案件,  cases in the trial guides published by the various operational divisions 各个业务庭发表的审判业务指导丛书选的案件,and cases of the specialized judges committees of the SPC operational divisions 和各个业务庭专业法官会议案件。

In my view, cases decided by the collegial panels of the Supreme People’s Court are also persuasive, but not as persuasive as Supreme People’s Court cases in the categories described above. Supreme People’s Court circuit court cases are very persuasive to the courts within their jurisdiction. This case law is needed to supplement law and judicial interpretations and guide the lower courts correctly, as many new issues come before the courts before the legislative organs have time to amend legislation. I see China evolving its own case law, looking to traditional law and foreign jurisdictions for reference, but settling upon rules that fit China’s special situation, that may include some of the points I mention above. CICC decisions, whether rulings or judgments, will send important signals to the market, and are likely to be significant worldwide, as there is a documented increase in international arbitration cases where either the contract in dispute is governed by Chinese law or Chinese law is relevant in various ways.

The Chinese version:

中国国际商事法庭与有中国特色判例法的发展

我很荣幸有这个机会就中国国际商事法院(CICC)的首批裁定和判决发表意见。本短评将侧重中国国际商事法庭的判决和裁定以及仲裁司法审查裁定的重要性。

中国国际商事法庭的运作时间不长,对其运作进行更详细的分析还为时过早。 但从其迄今为止的运作中可以清楚看到的是,中国国际商事法庭选择其受理的案件非常慎重,只选择会对中国相关法律发展产生影响的案件。 至少从首批裁定可以明显看出,中国国际商事法庭的判决和裁定对于下级法院的法官和法律界人士来说,可能是重要的“软先例”,即权威性的裁判,虽然对下级法院没有约束力,但具有很强的说服力。 国内外权威专家均指出,这批裁定填补了中国仲裁法的一项空白。 这些裁定也与一些主要法域法院的立场保持了一致,也即尽管双方当事人的合同并未最后敲定,但双方都表示有意将争议提交仲裁。 在本文作者看来,这些裁判构成中国发展自己的案例指导制度的一部分,正如第五个司法改革纲要第26项所强调的,特别是“完善类案和新类型案件强制检索报告工作机制” 。 此前,最高人民法院关于落实司法责任制完善审判监督管理机制的意见(试行)曾提及“(六) 在完善类案参考、裁判指引等工作机制基础上,建立类案及关联案件强制检索机制,确保类案裁判标准统一、法律适用统一 。”

此外,到目前为止,合议庭均由五名法官组成,全部都是中国法院在跨境问题(包括仲裁司法审查)方面最杰出的专家。 由此可见最高人民法院对国际商事法庭案件的重视程度。

本文作者认为,除国际商事法庭案件外,最高人民法院审理或选取的其他案件也将被归入此类案例。例如,最高人民法院知识产权法庭判决的案件,也可归为所说的“最高人民法院软判例”,最高人民法院其他软判例还包括最高人民法院公报案例、各个业务庭发表的审判业务指导丛书选的案例和各个业务庭专业法官会议案例。我认为,最高人民法院合议庭判决的案件也具有说服力,但是没有上述几类案例的说服力强。 最高人民法院巡回法庭案例对其辖区内的法院具有很强的说服力。 由于立法机关往往来不及修改立法,许多新问题就摆在了法院面前,因此需要以判例来补充法律和司法解释以正确指导下级法院。 我看到中国正在发展自己的判例法,参考传统法律和外国司法管辖区的做法,但最终确定适合中国特殊国情的规则,这可能包括上文提到的一些要点。 国际商事法庭的裁判,无论是裁定还是判决,都将向市场发出重要信号,而且很可能在全球范围内产生重大影响,因为已有相关文件显示,争议合同适用中国法,或者中国法在不同方面予以适用的国际仲裁案件不断在增加。

Happy New Year!

Challenges for Supreme People’s Court leaders in the new era

Screenshot 2019-12-21 at 2.07.48 PMOne of the little-discussed aspects of being in a leadership role in the Supreme People’s Court (SPC) in the New Era is ensuring that policies, actions, initiatives, and other decisions hit the target of being politically correct (post 19th Party Congress and post 4th Plenum) while being “problem-oriented” (坚持问题导向) that is, addressing relevant practical issues facing the court system.  This is true for President Zhou Qiang as well as the vice presidents (each of whom is responsible for several divisions (主管), according to bureaucratic principles), the division heads, deputy heads, and equivalents in the affiliated institutions of the SPC, whether they be the circuit courts, National Judges College, or the China Institute of Applied Jurisprudence (CIAJ).

After the recent Central Economic Work Conference, Party Secretary and President Zhou Qiang convened a meeting of the SPC’s Party Committee, to discuss the implications for the courts, all of which appear to be the major initiatives of the SPC.  I have added numbers and deleted some provisions (translation thanks to Google translate). He said:

We must:

  1. deepen the comprehensive supporting reforms of the judicial system;
  2. vigorously promote the construction of smart courts;
  3. continuously improve the quality and efficiency of court work, and create a stable, fair, transparent, and predictable business environment for the rule of law.
  4. continue to strengthen judicial protection of intellectual property rights and intellectual property rights;
  5. improve the rule of law environment that supports the development of private economy, implement comprehensive, legal, and equal protection of property rights, protect the legitimate rights and interests of private enterprises and entrepreneurs in accordance with the law, and allow entrepreneurs to concentrate on starting a business..and operating with peace of mind.
  6. It is necessary to increase the judicial protection of intellectual property rights and provide strong judicial services and guarantees for the implementation of the innovation-driven development strategy. It is necessary to serve to ensure the healthy and rapid development of the digital economy, handle the relationship between the protection of digital rights and the development of the digital economy, protect personal information in accordance with the law, properly handle legal issues related to the digital economy platform, and better serve and guarantee the development of the digital economy.
  7. …Strengthen research on new situations and issues in the economic and financial field; do a good job in financial and bankruptcy trials; and effectively improve capacity of the people’s courts in risk prevention and resolution.
  8.  …It is necessary to serve a high level of opening up to the outside world, strengthen foreign-related commercial and maritime trials, protect the legitimate rights and interests of Chinese and foreign parties on an equal basis in accordance with the law, and provide powerful judicial services and guarantees for a wider, wider, and deeper opening.
  9. It is necessary to severely punish crimes in accordance with the law, actively participate in the special struggle to combat crime and eliminate evil, resolutely safeguard national security and social stability….

So what more specific measures hit the target? They include the following:

  • In November, Vice President Luo Dongchuan, when he made comments at the SPC Intellectual Property Court (Tribunal) on establishing a diversified technical fact investigation mechanism–see the language  in the Chinese version of the article (“raise political stance, fully recognize the importance of establishing and perfecting a technical fact investigation mechanism 罗东川强调,要提高政治站位,充分认识建立健全多元化技术事实查明机制的重要意义);
  • In December, Vice President Jiang Bixin, said such measures included improving environmental protection of the Yellow River Basin and high-quality development;
  • In December, head of the administrative division, Judge Huang Yongwei (mentioned on this blog when he was president of the National Judges College), said it included the judicial interpretation on administrative agreements, which he characterized as “having a positive effect on effectively protecting the legitimate rights and interests of the people in administrative agreements, advancing the government of the rule of law, building a credible government, optimizing the rule of law to do business, improving the ability of government administration, and advancing administrative trials in the people’s courts.”
  • For Yang Yongqing, deputy head of the #2 Civil Division, and one of the drafters of the recently promulgated 9th Civil and Commercial Trial Work Conference Summary (draft discussed here, the Conference Summary to be discussed in a future blogpost) (and Cao Shibin, head of the CIAJ, it meant going to one of the provincial courts to give lectures on civil and commercial issues.  Judge Yang explained what the conference summary means for trying cases involving a company that has provided security to a third party, as well as cases involving applications for relief by third parties.  Cao spoke on “Ethics and Judgment -Application of Judicial Reasoning in Civil and Commercial Trial Work”, starting from the challenges and difficulties facing the profession of judges.
  • Jiang Huiling, vice president of the National Judges College (NJC), in charge since Judge Hu Yunteng has retired: in November he addressed what implementing the 4th Plenum decision means for the NJC: “continuously promoting the modernization of education and training systems and education and training capabilities. The NJC should effectively translate its efforts into practical actions to promote development, gather the wisdom of all faculty and staff, study and judge the situation, … study in-depth the implications of constructing an “international first-class judicial institution (建设‘国际一流司法学府’)” [the goal that President Zhou Qiang has set for the National Judges College in its new five-year plan).”

This critic will “stay out of the region of immediate practice” (quote of Matthew Arnold, see a screenshot of a caricature that was one of my (late) father’s favorites).

 

Screenshot 2019-12-21 at 4.00.11 PM

Singapore Mediation Convention & China (2)

IMG_1871_Original

photo of the workshop in session

I was very honored to be able to participate in a workshop held on 4 December by the International Law Institute of the Chinese Academy of Social Sciences (CASS)  to discuss some of the complex issues involved in implementing the United Nations (UN) Convention on International Settlement Agreements Resulting from Mediation (Singapore Mediation Convention or Convention) in China.  It was linked to the previous workshop held in March, described in this earlier blogpost.  This time the workshop included participants from the Supreme People’s Court (SPC),  National People’s Congress (NPC), China Council for the Promotion of Foreign Trade (CCPIT), as well as some other academics and professionals.  The workshop could not have taken place if not for the efficient work of Professor Liu Jingdong and assistant research fellow Sun Nanxiang. As I mentioned in the previous blogpost, I had gotten to know Mr. Wen Xiantao, of the Department of Treaties and Law of the Ministry of Commerce (MOFCOM) and official Chinese negotiator of the Convention. Several others who had participated in the earlier workshop, such as Sun Wei, Zhong Lun partner and participant in the Convention negotiations as part of Beijing Arbitration Commission’s delegation to the negotiations as with observer status, had previous engagements and were unable to attend. The closed-door and invitation-only format of the workshop enabled a positive and interactive discussion among all participants.

Part of the purpose of the workshop was to discuss a research report  (not publicly available) that Professor Liu and his team had prepared for MOFCOM, discussing a number of issues related to implementing the Convention in China. Additionally, from the brief remarks each participant made, it was possible to obtain a greater understanding of the more specific implications and issues involved that otherwise would be impossible for a person outside that system to recognize. For example, Judge Guo Zaiyu of the SPC #4 Civil Division (and CICC) spoke about certain court-related issues.  I drew on my August blogpost and my discussions earlier that day with a prominent lawyer to discuss state-owned enterprise-related issues.

Among the many issues discussed were the implications for the courts, preventing the enforcement of fraudulent mediation settlements, promoting the growth of commercial mediation and legislative issues.

It was also an opportunity to gain a bit more understanding, as a participant and observer, about the complex process of implementing an international convention in China.

IMG_1869_Original

Group photo of the workshop participants

 

 

How the Supreme People’s Court guides the lower courts through cases in its publications (1)

IMG_6372The Supreme People’s Court (SPC) guides the lower courts in many ways.  One way is by publishing “trial guides”(审判指导丛书) and other related specialized publications.  I have recently spoken about the cases in some of these publications.  The cases published in these trial guides are for the most part not “guiding cases” (指导性案例) and therefore may not be cited in a court judgment.  However, because they have been specially selected by the SPC, they are quite persuasive to the lower courts and therefore important to legal professionals.  The SPC sees them as a supplement to legislation, judicial interpretations, various types of judicial normative documents/judicial documents/(司法规范性文件/司法文件) and useful in providing a source for judicial interpretation drafting. I have called these cases ”stealth” guidance or “soft precedents”, as they are used without citation in judgments. This blogpost introduces cases found in several of these trial guides.

The series Reference to Criminal Trial (刑事审判参考), edited by a team from the five SPC criminal divisions is invaluable to anyone wanting a detailed understanding of the issues in the criminal justice system, as seen by insiders (and approved for general distribution).

As can be seen from the photo from a recent issue, the first section is a collection of guidance cases (指导案例). These are not guiding cases as approved by the SPC judicial committee and translated by the Stanford Project. These are cases selected by the editors. Issue #115 has a number of cases related to the crime of organizing, providing premises, and introducing prostitution. Several others discuss whether the death penalty should be applied in the circumstances described.  As the editors describe them: “these are typical cases selected for their research value in the determination of facts, adoption & application of evidence, law, and criminal punishment, to provide guidance & reference for those in criminal justice” “选择在认定事实,采行证据,法律适用和裁量刑罚…为了刑事司法工作人员处理类似案件提供具体指导和参考.”

Screenshot 2019-12-09 at 9.54.08 PMAnother specialized publication is the Guide to Foreign-Related Commercial and Maritime Trial, edited by the #4 Civil Division. As can be seen from the photos (and discussed in an earlier blogpost, some of the cases in the issue are entitled replies (some  called 答复 and others entitled 复函), while others are called cases (案例).  As mentioned in that earlier blogpost, the replies are from the SPC to a request from instructions (请示) from provincial-level courts (including the higher courts of Beijing, Shanghai, Tianjin, and Chongqing), as required by the SPC’s Prior Reporting system for cross-border arbitration matters (for example, as when a lower court intends to refuse the enforcement of a foreign arbitral award).  The #4 Civil Division publishes both the request for instructions as well as their response, while the SPC Administrative Division (in their publication Administrative Law Enforcement and Administrative Adjudication (行政执法与行政审判) (pictured below) only publishes their responses to the lower courts.

admin litigation publication

The cases published in these publications are ones that the editors consider significant. The editors of the Guide to Foreign-related Commercial and Maritime Trial describe the cases as providing powerful guidance”– “cases provide methods of thought for resolving similar issues” (具有较强的指导意义”“为了…遇到类似问题提供了解决思路”).  The editors of Administrative Law Enforcement and Administrative Adjudication describe their selected cases as being typical and guiding significance (具有典型和指导意义的审判案例. Lower court judges take the cases in these publications as providing very useful reference materials when they are presented with similar issues.  It is part of a larger effort by the SPC to use prior cases to guide the lower courts in applying their discretion.

 

 

Supreme People’s Court’s 2019 judicial interpretation agenda (II)

photo from an unrelated press conference at the SPC

As discussed in two blogposts in 2018, the Supreme People’s Court (SPC) has a yearly plan for drafting judicial interpretations, as set out in its 2007 regulations on judicial interpretation work. The plan is analogous to the legislative plans of the National People’s Congress (NPC) and its Standing Committee. Judicial interpretations, for those new to this blog, are binding on the SPC itself and the lower courts, and fill in some of the interstices of Chinese law (further explained here).  On 29 April 2019, the SPC’s General Office issued a document setting out a list of 47 judicial interpretation projects, 36  with an end of 2019 deadline (see the previous blogpost), and 11 with a deadline set for the first half of 2020 (set out below).  The list details the projects for which the SPC judicial committee had given project initiation/approval (立项), designating one or more SPC divisions/offices with primary drafting responsibility (this process to be detailed in a forthcoming article).  It appears to be the second time this type of document was publicly released.  If so, it is a concrete step in increasing the SPC’s transparency. The projects, deadlines, and some brief comments (some longer than others) follow below

(“Project initiation”/”project approval” is a procedure well-known to those of us who have been involved in foreign investment projects in China, where it involves approval from the planning authorities, primarily for infrastructure projects, but is an initial procedure used by regulatory authorities of all types, Party and state. For the SPC, it reflects one of the “planned economy” aspects of the way it operates.

Deadline of the first half of 2020:

  1. Provisions on Issues Concerning the Electronic Service of Legal Instruments (关于电子送达法律文书若干问题的规定). Responsibility of the Case Filing Division. This has been flagged for some years.
  2. Amending the 2013 joint SPC and Supreme People’s Procuratorate Interpretation on Several Issues Concerning the Handling of Criminal Cases Involving  Food Safety (关于修改《关于办理危害食品安全刑事案件适用法律若干问题的解释》的决定). Responsibility of the #1 Criminal Division.
  3. Interpretation on Several Issues Concerning the Application of Laws in Handling Criminal Cases Involving the Administration of Tax Collection (关于办理危害税收征管刑事案件适用法律若干问题的解释). Responsibility of the #4 Criminal Division.
  4. Interpretation Concerning the Application of Law in Cases of Disputes over the Infringement of Trade Secrets (关于审理侵犯商业秘密纠纷案件应用法律若干问题的解释). Responsibility of the #3 Civil Division. This judicial interpretation is flagged in the recently issued (November, 2019) Party/State Council document on improving intellectual property rights protection (Explore and strengthen effective protection of trade secrets, confidential business information and its source code etc. Strengthen criminal justice protection and promote the revision and the amendment and improvement of criminal law and judicial interpretations 探索加强对商业秘密、保密商务信息及其源代码等的有效保护。加强刑事司法保护,推进刑事法律和司法解释的修订完善). (“Brother” blogger Mark Cohen’s comments on the document found here.)Given the worldwide attention to this issue, I would expect that a draft will be issued for public comment.
  5. Interpretation on Several Issues Concerning Punitive Damages for Intellectual Property Infringement (关于知识产权侵权惩罚性赔偿适用法律若干问题的解释). Responsibility of the #3 Civil Division. Although recent publicity by the Chinese government has linked implementing punitive damages to the recent Party/State Council document on protecting intellectual property rights and the draft implementing regulations for the Foreign Investment Law, the 2018 Party/State Council document on improving intellectual property litigation had already mentioned this.  Given the worldwide attention to this issue, I would expect that a draft will be issued for public comment.
  6. Provisions on Issues Concerning the Application of the Foreign Investment Law of the People’s Republic of China (I) (关于适用《中华人民共和国外商投资法》若干问题的规定(一)). Responsibility of the #4 Civil Division. Given the worldwide attention to this issue, I hope that a draft will be issued for public comment.
  7.  Provisions on Several Issues Relating to Open Court Sessions of the People’s Courts on the Internet (关于人民法院互联网公开庭审过程若干问题的规定).  Responsibility of the Trial Administration Office.  I have an unpublished article on issues involved with the streaming of court hearings, prepared for an academic conference at which I gave a presentation three years ago. The paper (drawing on research within the court system) raises problems I have not seen mentioned by anyone writing in English.
  8. Interpretation Regarding the Application of the Criminal Procedure Law of the People’s Republic of China (关于适用《中华人民共和国刑事诉讼法》的解释). Responsibility of the Research Office.  I have a forthcoming academic article on the procedure underlying the drafting of this judicial interpretation, derived from a conference presentation I made almost two years ago.  The article was finalized early this year. I’m hoping it will be published next year.  I trust it won’t be out of date…
  9. Interpretation on Several Issues Concerning the Realization of Security Interests (.关于担保物权实现程序若干问题的解释). Responsibility of the Research Office. A practical issue for financial institutions, lawyers, and others.
  10. Issues in the Handling of Judicial Technology Cases (关于办理司法技术案件若干问题的规定). Joint Responsibility of the Research Office, Trial Administration Office, and Judicial Equipment Administration Bureau.
  11. Issues Concerning the Forensic Identification and Evaluation of the People’s Courts (关于人民法院司法鉴定若干问题的规定). Joint Responsibility of the Research Office, Trial Administration Office, and Judicial Equipment Administration Bureau.

I’d welcome comments by persons with further information about any of the above draft judicial interpretations.

Supreme People’s Court’s 2019 judicial interpretation agenda (I)

photo from an unrelated press conference at the SPC

As discussed in two blogposts in 2018, the Supreme People’s Court (SPC) has a yearly plan for drafting judicial interpretations, as set out in its 2007 regulations on judicial interpretation work. The plan is analogous to the legislative plans of the National People’s Congress (NPC) and its Standing Committee. Judicial interpretations, for those new to this blog, are binding on the SPC itself and the lower courts, and fill in some of the interstices of Chinese law (further explained here).  On 29 April 2019, the SPC’s General Office issued a document with a list of 47 judicial interpretation projects, 36  with an end 2019 deadline (set out below), and 11 with a deadline set for the first half of 2020 (set out in this blogpost).  The document details the projects for which the SPC judicial committee had given project initiation/approval (立项), designating one or more SPC divisions/offices with primary drafting responsibility (this process to be detailed in a forthcoming article).  It appears to be the second time this type of document was publicly released.  If so, it is a concrete step in increasing the SPC’s transparency. The projects, deadlines, and some brief comments (some longer than others) follow below. Some of the interpretations listed below are ones that Jiang Qibo, head of the Research Office, mentioned in 2018, as being linked to socialist core values (see my 2018 blogpost), although as I commented then, many are linked to the SPC’s need to “serve the greater situation” while at the same time seeking to deal with many of the difficult legal issues that face the courts.

(“Project initiation”/”project approval” is a procedure well-known to those of us who have been involved in foreign investment projects in China, where it involves approval from the planning authorities, primarily for infrastructure projects, but is an initial procedure used by regulatory authorities of all types, Party and state. For the SPC, it reflects one of the “planned economy” aspects of the way it operates.

Close observation reveals that some interpretations were listed last year, indicating that drafts were not ready for approval last year.  Some of the reasons for slippage are likely to be:

  • the issues turn out to be more complicated (substantively or otherwise);
  • judges have less time to work on judicial interpretation drafting with an increased caseload and document study;
  • many experienced SPC judges have been dispatched to circuit courts, leaving fewer at headquarters to work on judicial interpretations; and
  • timing may also be a factor.

Deadline of end 2019

  1. Regulations on pre-filing property protection provisional measures (关于办理诉前财产保全案件适用法律若干问题的解释 ), a type of pre-filing injunction.  These regulations are for non-intellectual property (IP) cases. Responsibility of the Case Filing Division.
  2. Provisions on Several Issues Concerning Preventing and Punishing False Lawsuits, Malicious Lawsuits, and Vexatious Litigation (关于防范和惩治虚假诉讼、恶意诉讼及无理缠诉若干问题的规定). Responsibility of the Case Filing Division.
  3.  Provisions on Regulating the Execution of Death Penalties and Related Issues (关于规范死刑执行及相关问题的规定) (Responsibility of the #1 Criminal Division).  The original deadline was the first half of this year. Apparently, this will focus on more setting out more detailed guidelines concerning how the death penalty is implemented, linked to the Criminal Procedure Law and the SPC’s interpretations of the Criminal Procedure Law;
  4. Interpretation of the Supreme People’s Court and the Supreme People’s Procuratorate on Several Issues Concerning the Application of Law in the Handling of Criminal Cases Involving Corruption and Bribery (II) (最高人民法院、最高人民检察院关于办理贪污贿赂等刑事案件适用法律若干问题的解释(二). Responsibility of the #2 Criminal Division. It likely updates the 2016 interpretation to reflect the establishment and operation of the National Supervisory Commission and addressing issues that have arisen in practice.  Issues to be covered likely include ones discussed in issued #106 of Reference to Criminal Trial (刑事审判参考,the journal of the SPC’s five criminal divisions, mentioned here).  Responsibility of the #2 Criminal Division, but it is likely that the supervision commission will be/is one of the institutions providing input.
  5. Interpretation of the Supreme People’s Court and the Supreme People’s Procuratorate on Dereliction of Duty (II) (最高人民法院、最高人民检察院关于办理渎职刑事案件适用法律若干问题的解释(二)).  Was on last year’s list with an end 2019 deadline. I noted last year that it was likely updating interpretation (I) in light of the anti-corruption campaign and the establishment of the National Supervision Commission. Issues likely flagged in Reference to Criminal Trial.
  6. . Interpretation on Several Issues Concerning the Application of Law in the Trial of Criminal Cases Involving Concealing and Harboring Criminals (关于审理窝藏、包庇刑事案件适用法律若干问题的解释). These provisions occur in various parts of the Criminal Law and are also mentioned in the organized crime opinion discussed in this earlier blogpost. Drafting responsibility of the #4 Criminal Division;
  7. Interpretation on Several Issues Concerning the Application of Law in the Trial of Cases Involving Restrictions on Commutation of Suspended Death Penalties (关于审理死刑缓期执行限制减刑案件适用法律若干问题的解释), Interpretation on limiting commutation during the period of the suspension of death sentences. See related research in English and Chinese. The #5 Criminal Division is responsible for this.
  8. Interpretation on Several Issues Concerning the Application of Law in the Trial of Cases Involving Enforcement Objection Actions (关于审理执行异议之诉案件适用法律若干问题的解释). It previously had a deadline of the end of 2018, related to the campaign to basically resolve enforcement difficulties within two to three years. Drafting this is a task for the #1 Civil Division. A draft of this interpretation was issued for public comment on 30 November (the draft and details of how to submit comments found here.)
  9. Interpretation on Evidence in Civil Procedure, Responsibility of the #1 Civil Division (关于民事诉讼证据的解释).  Another interpretation deadline has slipped by one year. A draft was distributed in 2016. Many new issues have arisen because of the prevalence of electronic evidence.
  10. Interpretation on Several Issues Concerning the Application of Law in the Trial of Cases of Civil Disputes over Food Safety (关于审理食品安全民事纠纷案件适用法律若干问题的解释). Responsibility of the #1 Civil Division. The deadline has slipped by one year.  A draft was recently issued for public comment.
  11. Interpretation on Several Issues Concerning the Application of Law in the Trial of Labor Dispute Cases (V) (关于审理劳动争议案件适用法律若干问题的解释(五)).   It likely dealing with some of the most pressing labor law issues facing the courts that are not covered by the preceding four interpretations or relevant legislation. The #1 Civil Division is in charge of drafting. Judge Xiao Feng of that division posted his slides from his lecture at the National Judges College earlier this year flagging the three principal issues in that draft. His slides provide an overview of those three issues: linking of labor arbitration with litigation; substantive law issues; procedural law issues. Substantive law issues include determining whether the parties are in a labor relationship; procedural issues include the burden of proof concerning overtime.
  12. Issues Concerning Civil and Commercial Disputes over Bank Cards (关于审理银行卡民商事纠纷案件适用法律若干问题的解释), Responsibility of the #2 Civil Division. Another interpretation that previously had a 2018 year-end deadline.
  13. Interpretation on Financial Asset Management Companies’ Acquisition, Management and Disposal of Non-performing Assets (关于审理金融资产管理公司收购、管理、处置不良资产案件适用法律若干问题的解释).  The legal infrastructure related to non-performing assets is inadequate, as has been pointed out by all participants, including judges. The Shenzhen Intermediate Court has run several symposia bringing together leading experts from the market. Responsibility of the #2 Civil Division. Another interpretation that previously had a 2018 year-end deadline.
  14. Interpretation on Issues Relating to Internet Financial Disputes (civil aspects) (关于审理互联网金融纠纷案件适用法律问题的解释), as existing judicial interpretations inadequately address the issues facing the lower courts. Drafting this is a task for the #2 Civil Division. Another interpretation that previously had a 2018 year-end deadline.
  15. Company Law Interpretation (V) (关于适用《中华人民共和国公司法》若干问题的规定(五)) (Issued in late April, text found here, official commentary here).
  16. Extending the Time Limit for Trial & Postponing Hearing of Civil and Commercial Cases (关于严格规范民商事案件延长审限和延期开庭问题的规定), issued at the end of March, 2019.
  17. Interpretation of the Enterprise Bankruptcy Law (III), issued at the end of March, 2019, commentary by a leading global firm here and Chinese firm here.
  18. Intellectual Property Rights Evidence Rules (关于知识产权民事诉讼证据的若干规定).  These rules are linked to a 2018 Party/State Council policy decision on the reform of intellectual property litigation, (II (1), mentioning disclosure of evidence, burden of proof, and destruction of evidence. have been on the SPC agenda for some time. From several conferences involving leading judges (in Shanghai and Chongqing), it is possible to understand judicial thinking on these issues. Responsibility of the #3 Civil Division.
  19. Judicial interpretation on administrative cases involving patent authorization and confirmation (关于审理专利授权确权行政案件若干问题的解释). It appears to be the counterpart in the patent area of a 2017 judicial interpretation relating to trademarks. Responsibility of the #3 Civil Division. Another interpretation that previously had a 2018 year-end deadline.  A draft was issued for public comment in the summer of 2018.  Comments by US trade organizations were submitted, among others.
  20. Interpretation on the Recognition and Enforcement of Civil and Commercial Judgments by Foreign Courts (关于受理申请承认和执行外国法院民商事判决案件若干问题的解释). Original deadline of first half of 2019.  This issue has been flagged since at least 2014.
  21. Regulations on maritime labor service contracts (关于审理船员劳务合同纠纷案件适用法律若干问题的解释), likely connected with China’s accession to the 2006 Maritime Labor Convention and a large number of disputes in the maritime courts involving maritime labor service contracts. The linked report from the Ningbo Maritime Court mentions evidentiary problems and disputes involving foreign crew, among others. Responsibility of the #4 Civil Division.
  22. Scope of Acceptance of Environmental Resource Lawsuits (关于受理环境资源诉讼案件范围的规定). As is usual practice, local courts have issued guidance (link is to guidelines issued by the Chongqing Higher People’s Court) that is likely to provide information to the SPC. Responsibility of the Environmental and Natural Resources Division.
  23. Application of Law in the Trial of Cases of Compensation for Ecological Environmental Damage, issued in June, 2019. SPC press conference and model/typical cases released.
  24.  Disputes over forestry rights, apparently an area with many disputes.  Responsibility of the Environmental and Natural Resources Division. Original deadline was the first half of 2019.
  25. Provisions on Several Issues Concerning Administrative Compensation Cases (关于行政赔偿案件若干问题的规定).  I have not seen reports on a draft, but see a recent case on issues concerning the calculation of direct losses has been posted. Responsibility of the Administrative Division.
  26. Regulations on responsible persons of administrative authorities responding to lawsuits, (关于行政机关负责人出庭应诉若干问题的规定), relating to new requirements in the amended Administrative Litigation Law. and the 2018 judicial interpretation of the Administrative Litigation Law. Responsibility of the Administrative Division. Original deadline of the first half of 2019.
  27. Regulations on the consolidated review of normative documents in administrative cases (关于审理规范性文件一并审理案件若干问题的规定).  Responsibility of the Administrative Division. Original deadline of the first half of 2019.
  28. Regulations on the consolidated hearing of administrative and civil disputes (关于一并审理行政争议和民事争议若干问题的规定), apparently related to this item in a previous blogpost. Responsibility of the Administrative Division. Original deadline of the first half of 2019.
  29. Interpretation on procedures for the hearing of administrative cases (关于行政案件庭审程序若干问题的规定). Responsibility of the Administrative Division. Was mentioned in last year’s document.
  30. Interpretation related to agency issues in retrial (再审) cases.  With the many governance problems of Chinese companies, these issues frequently arise.  Drafting responsibility with the Judicial Supervision Division. Original deadline of end 2018.
  31. Interpretation relating to the enforcement of cases involving company shareholding.  Given the complexities of shareholding in China, including the frequent use of nominee arrangements, these are difficult issues for judges to deal with.  See a presentation by one of the circuit court judges on this issue.  Responsibility of the Enforcement Bureau.
  32. Interpretation on Several Issues Concerning the Application of Law in the Trial of Criminal Cases Involving Organizing Cheating in Examinations, issued in early September, jointly with the Supreme People’s Procuratorate (SPP), to ensure the two institutions have harmonized approaches.  The Research Office (which coordinates interactions with the SPP), was responsible.
  33. Interpretation on Issues Concerning the Trial of Criminal Cases Involving Crimes of Illegally Using an Information Network or Providing Aid for Criminal Activities in Relation to Information Network (link to the Chinalawtranslate.com translation), also a joint interpretation with the SPP, for which the Research Office was responsible;
  34. Personal information rights disputes judicial interpretation (审理个人信息权纠纷案件适用法律若干问题的解释), linked to the Civil Code being drafted.  Implications for individuals and entities, domestic and foreign. Responsibility of the Research Office.
  35. Amending (i.e. updating) ()the 2001 Provisions of the Supreme People’s Court on Certain Issues Concerning Application of Urging and Supervision Procedure, relating to the enforcement of payment orders by creditors.  Responsibility of the Research Office.
  36. Interpretation on cases involving both civil and criminal issues (关于办理民刑交叉案件适用法律若干问题的解释). This is a longstanding issue, and with the crackdown on the private lending sector, this has come to the fore.  Among the many issues include: if the defendant is criminally prosecuted first and assets are confiscated, how can affected borrowers or other parties be compensated.  Responsibility of the Research Office, likely involving several civil and criminal divisions. Originally with a 2018 year-end deadline.

I’d welcome comments by persons with further information about any of the above draft judicial interpretations.