What’s new in the Supreme People’s Court’s diversified dispute resolution policy?

Opening of court-annexed mediation center of Qianhai court

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 (This post has been superseded by the 31 July version.)

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 and better mediate 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 institutions and the courts, so, for example, that mediation agreements can be enforced without a re-hearing in the courts.  It stresses Party leadership while emphasizing that forces in society can do a better job of dispute resolution than official ones.  The document also cautions against borrowing institutions wholesale 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.

What does all this mean for making people “feel justice in every case”  when some persons and institutions enjoy a better quality of dispute resolution than others?

 

 

 

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Senior Chinese judges speak out on preventing injustices in China’s criminal justice system

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Confess quickly!

Although the Human Rights Watch report on the use of torture in the Chinese criminal justice system is capturing the attention of the media outside of China (and overshadowing a forthcoming report of an investigation done by the China University of Political Science and Law (CUPL) on the same subject), the report that may be more persuasive to the Supreme People’s Court (Court) in reducing injustices in China’s criminal justice system is one coming out of a symposium held recently in Henan Province.

The symposium on mistaken cases and “hearing centered criminal procedures”was sponsored by the Henan Higher People’s Court and CUPL,  Participants at the symposium included the president of the Henan Higher People’s Court (Zhang Liyong), the head of the #5 criminal division of the Court (Gao Guijun), several leading academics, including one from the Communist Youth League’s training school, and two from the legal press (Legal Daily and the People’s Court Daily). The detailed report from which this blogpost is taken was published in the Court’s media outlets, and a more abbreviated version on the Central Political Legal Committee’s websites).

The criminal prosecution of senior management of GlaxoSmithKline (GSK)’s Chinese subsidiary and many other lower profile cases (such as this one about a Swedish teenager) serve as a reminder that criminal justice issues are relevant to the (foreign) business as well as the human rights community.

The comments from the participants were fairly consistent.  Those from the judges who participated are particularly significant, because their remarks reflect reforms set out in the 4th Five Year Court Reform Plan that may be eventually implemented and they are the ones who can advocate directly these points in internal discussions with other participants in the criminal justice system.

Judge Zhang Liyong, President of the Henan Higher People’s Court

Judge Gao Guijun, head of the #5 Criminal Division of the Court

Comments from the judges

  • Put substance into trial procedure by requiring witnesses to appear in court and implement the exclusion of illegal evidence;
  • Improve judicial supervision of the investigation process, to ensure that the standard of the investigation process meets the standard at trial.  This comment is liked to an unnoticed phrase in the 4th Five Year Court Reform Plan Outline, which calls for “Improving judicial supervision of judicial (i.e. justice system) measures and investigative methods which limit personal freedom.”   Publications within the court system, such as this detailed study in Chongqing advocating better judicial controls over the investigatory stage) reveal that some judges are looking to Germany and Taiwan for examples in other civil law systems, in which detainees have the right to be brought before a court during the investigation process;
  • More effective curbs must be established on procuratorial authority;
  • Torture still exists to some extent, and measures must be taken to prevent it;
  • The procuratorate and defense must be on an equal footing;
  • The defendant is not a criminal until after sentencing, and he must be allowed to sit with defense counsel;
  • The presumption of innocence in doubtful cases must be implemented (疑罪从无原则).

Comments from the academics

  • The new [pre-trial] detention center law being drafted by the State Council’s Legislative Affairs Office should incorporate obligations on detention center staff to cooperate with courts in reviewing illegal evidence;
  • A system should be established to require criminal investigators to appear in court and for the investigation agencies (public security and procuracy) to provide full recordings of interrogations;
  • The hearing must become the center of proceedings, not the investigation file, and the trial (first instance hearing) is the foundation for preventing miscarriages of justice;
  • There are defects in the system of correcting miscarriages of justice–there should be a system under which a convict can apply for DNA testing, also the standard for exculpatory evidence in re-trials is too high;

Comments from the media:

  • To prevent mistaken cases, media monitoring is needed;
  • News must be made public, to satisfy the public’s right to know;
  • The justice system must be more transparent.

Comment

Implementing many of the recommendations of the participants of the symposium cannot be done solely by the Court.  They will require approval by the political leadership, acting through the Central Committee’s Central Leading Group for Judicial Reform because they relate to other criminal justice institutions.  Because many of the issues raised, such as Improving judicial supervision of the investigation process, instituting an effective system for excluding illegally obtained evidence are part of the 4th Five Year Court Reform Plan Outline, it is likely that progress will be made towards implementing these measures in the next few years, perhaps once the  reforms mandated for the public security authorities have a had measurable impact. The leadership is unlikely to be willing to implement these reforms if it perceives a negative effect on “law and order” and social stability. The rights of a large number of people can potentially be improved if they are.