Supreme People’s Court Monitor in People’s Court Daily

Earlier this month I had the honor of receiving an invitation from He Fan (何帆), head of the planning department of the Judicial Reform Office of the Supreme People’s Court (SPC) to write a short article on the SPC case database (裁判文书网)and its impact outside of China for People’s Court Daily (人民法院报). I saw the invitation as a significant opportunity to be able to address the readers of the SPC’s media at this historical point. Fortunately, Professor He Haibo of Tsinghua University School of Law (who along with colleagues) has done extensive research on the case database), had been invited earlier. His article had already been published when I received He’s invitation, giving me an example to consider.

I drafted the article in English and was honored to be able to persuade Fu Panfeng (傅攀峰), assistant research fellow with the International Law Institute of the Chinese Academy of Social Sciences, to transform it into readable Chinese. Several readers of drafts made insightful suggestions which were incorporated into the final version.

The article was published on 11 September in the SPC’s electronic media (Wechat and Weibo)–see the screenshot below from the beginning of the Wechat version. It was published on 13 September in the People’s Court Daily (see the screenshot above). Several Wechat public accounts have republished it, including that of Hu Changming, of the Law Institute of the Chinese Academy of Social Sciences (his version has one additional sentence). The English version below is not identical with the Chinese version, because the amendments occurred in several rounds.

I am very honored to be invited to provide some thoughts about the impact of the 裁判文书网 from an international perspective. When I first started to become interested in the developments of the Chinese courts about 30 years ago, Chinese law could only be found only in books, with few published cases. I have seen the development and impact in China of the 裁判文书网 with my own eyes. Much is made of the number of judgments that have been posted, but I will bring the focus back to each individual judgment.

Outside of China, the 裁判文书网 has had a great impact on a broad range of people, because it is one of main faces of Chinese justice that the world sees. Although it may not be apparent, every judgment or ruling has many readers—the parties themselves plus many unknown readers inside and outside of China. It is from those documents that readers from far away will consider whether that court gives a fair hearing to the parties involved, regardless of the crime committed or nature of the breach. Readers will consider whether the facts presented support the legal conclusion, whether the legal conclusion is supported by logical, clear and persuasive reasoning, how was the case decided, and for criminal cases, whether the punishment appears appropriate given the facts set out. To the readers outside of China, each judgment or ruling is an original and unfiltered voice of Chinese justice and gives a view of many aspects of Chinese society and economy, historical and contemporary. We note that the legal requirement is that all judgments and rulings that can be published are published.

As to who outside of China is concerned about the judgments and rulings on裁判文书网, that includes a broad range of types of institutions and people. One type of institution is foreign governments and their departments. The foreign affairs, commercial, intellectual property authorities of foreign countries look to judgments and rulings posted on the 裁判文书网 to understand how the Chinese courts consider cases that involve its citizens, companies, and other institutions, especially if national diplomats monitor the particular cases. If cases are translated into foreign languages, foreign judges may read them to understand how Chinese judges consider similar cases.

Other frequent readers of cases in the 裁判文书网 are private lawyers, in-house counsel and executives, who may directly or indirectly oversee company-related litigation in China. It enables them to make more informed strategic decisions about many aspects of doing business in China, because they can search previous similar cases. Will a Chinese court support their claim against a party who has breached its obligation to the company, regardless of the nationality of the company? Will a Chinese court protect the intellectual property rights of the foreign company in the event of breach? In a dispute, is the opposing party’s settlement offer reasonable?

Non-profit organizations, whether religious, or secular, consult the 裁判文书网. How do Chinese courts protect the rights of the religious, or, for example, members of environmental organizations?

Foreign journalists, too, use the 裁判文书网, too, to understand from the sources what Chinese justice means in action.
Two other categories must be mentioned–academics and students abroad as well individuals. Many professors and students at foreign universities undertake big data studies involving cases in the Chinese courts, looking to the 裁判文书网.
Finally, foreign individuals who work, study, and live in China also may be readers of Chinese judgments or rulings. Will a Chinese court protect the rights of a foreign individual whose Chinese employer has failed to comply with his legal obligations?

The foreign community is aware of the requirement from this summer for judges to search for like cases. It has generally been considered to be a positive development, as on the one hand, it enables like cases to be decided similarly, and formalizes the practice of lawyers and other litigation representatives submitting cases for judges to consider.

As to suggestions from outside of China, we would suggest on the one hand, that requirements to delete sensitive personal or corporate information be strengthened, so that the 裁判文书网not be used as a way to obtain confidential corporate or sensitive personal information.

The 裁判文书网 is an important public good, and the technical aspects should be made convenient and as user-friendly as possible to all users.

China’s Evolving Case Law System In Practice

1200px-Tsinghua_University_Logo.svgI recently published an article in the Tsinghua China Law Review on Chinese case law in practice, building on several blogposts I had previously written and articles by fellow bloggers Jeremy Daum and Mark Cohen.  Many thanks are due to the persons who shared their experience and observations with me. A special thank you is due to the persons who provided detailed comments on earlier drafts.

How China’s non-guiding cases guide

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.