Update on case filing reform and other challenges for Chinese courts and judges

Case filing hall in a Jingdezhen court

Case filing hall in a Jingdezhen court

In late November, the Supreme People’s Court (SPC) held a press conference on case filing (docketing) reforms to announce a 32% increase in civil and administrative case filings, year on year, putting a positive spin on what is a highly stressful situation for frontline judges, but a generally positive development for litigants and their lawyers. There are many stressful factors for Chinese judges and the Chinese courts, leading many judges to leave or contemplate suicide, and others to vote with their feet.  This blogpost will look at some of the recent developments:

  • Large number of cases;
  • Increasing fraudulent litigation;
  • Dysfunctional performance indicators that refuse to die.

The three issues are interrelated.

Case filing (docketing) reforms

On the case filing reforms, through the end of September, civil cases are up almost 23%, and administrative cases up 76%, while private prosecutions of criminal cases are up 60%,The most litigious provinces are ones with highly developed economies: Jiangsu (608,000 cases), Zhejiang, Shandong, Guangdong (558,000 cases).  The Supreme People’s Court caseload was up as well, with 6852 cases accepted through September, up 58%, estimated to reach 15,000 cases by year end.

Fraudulent litigation

Fraud of all sorts is a growth industry in China, especially with the worsening economy. Creative thinkers have come up with ways to use the court system to defeat or at least delay or avoid creditors.  In recent years, the Chinese courts have been faced with an increasing amount of fraudulent litigation, now criminalized on one of the unnoticed provisions in the 9th Amendment to the Chinese Criminal Law (new Article 307-1).  However, the law does not set out a definition, although some provincial court have issued guidance.  Usual factors include litigation based on: fabricated facts, fabricated arbitration award, or notarized documents, or collusion between the parties  or third party to use fabricated facts, false evidence, false documents, destruction of evidence, provide false documents, expert opinion and other means to avoid debt or improperly gain assets.

With the reform to the case filing system (described in this earlier blogpost), fraudulent litigation on the increase. For this reason, the SPC recently issued its first ruling on fraudulent litigation, imposing a penalty of 500,000 RMB on two Liaoning companies, to signal to lower court judges that they need to monitor case filings for indications of fraud.  Fraudulent litigation can be found in various types of cases, and in the maritime as well as local courts.

On fraudulent litigation in the maritime courts, an experienced maritime judge provided the following typical scenario: because the Chinese shipping industry is in a downturn (see these articles, for example), a ship owner who is unable to repay their debts (and finds that the size of the mortgage is more than the value of the ship) will conspire with their employees to bring a claim for unpaid wages, because under the Special Maritime Procedure Law, those claims take priority over the mortgage.  The employees and shipowner will split the proceeds from the claim, shortchanging the bank and other creditors.

According to Zhou Qiang’s report to the NPC, about 3400 cases of fraudulent litigation were discovered in 2014.  According to studies done by provincial courts in recent years,  104 cases were found in 2011-2012 in Jiangsu, and 940 in selected courts in Guangdong during 2001-2009.

With the case filing reforms and soft economy, these numbers are likely to rise. Readers (of Chinese) interested in diving further into this topic should read this article.

Dysfunctional  performance indicators

Writing in People’s Daily, Judge He Fan, head of one of the departments of the SPC’s Judicial Reform Office, highlighted that “some leading cadres” wanting to achieve year end “pretty data”  are still imposing unrealistic year end performance targets, forcing front line judges to work unreasonable hours (and also  diminishing case quality). These performance targets were abolished in 2014, as highlighted in this blog.

As for why Chinese judges are leaving in such numbers and why they are so unhappy, that will be the subject of another blogpost.

 

New docketing procedures come to the Chinese courts

local court case filing office

local court case filing office

New docketing procedures (case filing) (立案) have come to the Chinese courts.  Chinese courts have a separate case filing divisions, which up until 1 May of this year acted as gatekeepers to courts.  They exercised their approval authority over cases in a non-transparent manner, which meant for litigants in Chinese courts that their cases could be and were rejected without having the opportunity to argue why they should be accepted.  Case filing divisions also were known to put troublesome filings aside, without issuing a rejection, or repeatedly asked for supplementary documents, seeking to drive away litigants by repeated formalistic demands.

More background is given in these blog posts and law review article.  It has been an ongoing problem for many years, provoking endless complaints and articles by ordinary people, lawyers, academics, and NGOs, and has been one of the issues driving petitioners to the streets.

The Supreme People’s Court (Court) leadership identified case filing as one of the needed reforms (and as one of the many contributing factors to the low prestige of the Chinese judiciary), even before the Third Plenum. Because of that, the Communist Party’s 4th Plenum Decision and the 4th Five Year Court Reform Plan flagged this as a priority.  (Unsurprisingly), the language in the two documents is almost identical:

  • Reform systems for courts’ acceptance of cases, change the case filing review system to a case filing registration system, and in cases that should be accepted by the people’s courts, ensure parties procedural rights by requiring filing when there is a case, and requiring acceptance where there is a lawsuit.
  • Change the case filing review system into a case filing registration system, making it so that for cases that should be accepted by the people’s courts, where there is a case it must be filed, and where there is a suit it must be accepted; safeguarding the parties’ procedural rights.

Litigants in line at the #1 Circuit Tribunal

In late April, the Court issued case filing regulations which address many of the longstanding problems that litigants and their lawyers faced:

Case filing divisions

  • refusing to accept complaints;
  • refusing to issue notices rejecting complaints;
  • repeatedly asking for supplementary materials.

The new rules require case filing divisions to accept filings of civil and criminal private prosecution cases (brought by the victim of a crime if the state refuses to prosecute, generally relating to minor crimes) on the spot if possible, provide templates for frequently used types of cases, and to respond within statutory deadlines.  Case filing divisions are directed to make requests for supplementary materials once. (The new administrative litigation law judicial interpretation, described in this earlier blogpost, contains similar provisions.) Litigants who encounter noncompliant behavior can file a complaint with the relevant court or the court above it.

Cases that the courts must refuse:

  1. Matters that endanger national security;

Rights activists have likely noticed that these carveouts are broad and flexible enough to keep out some cases that they might want to bring.

The take-up on the reform: some “Big Data”

According to Court statistics, in the first month since the regulations went into effect, there was a 30% jump in the number of cases accepted,(1.13 million), with most of them accepted immediately. The Jiangsu, Zhejiang, and Shandong courts accepted over 80,000 cases, with Beijing, Hebei, and other areas accepting over 40,000.

In particular:

  • the number of civil cases was up about 28%.
  • the number of administrative cases accepted was up 221% in comparison to last year (starting from a low base), with Tianjin cases up 752.40%,Shanxi, 480.85%,and Shanghai 475.86%, reflecting both the new case registration and new Administrative Litigation Law going into force.
  • Courts in Zhejiang found that fewer litigants were mediating their cases before filing suit (down 17%), and the success rate of mediation was down by 14%.  Does this mean a better outcome for litigants?  Closer analysis is needed.

Much of the press coverage has been about litigants filing cases themselves, rather than with the assistance of a lawyer or other legal personnel, but I haven’t seen statistics that address this.

Some more detailed data from Jiangsu province:

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Case filings in Jiangsu Province, by city

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Civil 60791, enforcement 25438, administrative 1980, private prosecution 256, state compensation 56

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May, 2015 cases accepted, by location

An evaluation after six weeks

Some thoughts about the case filing reform

  • It will mean more cases in the courts and greater stress for fewer judges and other judicial staff, to assist the many pro se litigants.
  • It should reduce the dissatisfaction level of some proportion of litigants with the court system, such as the anonymous staff from a Guangzhou car finance company quoted in a press report.
  • Violence against court personnel (like medical personnel), is another factor driving qualified and experienced people away, as described in these recent articles.  Will the reforms reduce the level of frustration of ordinary people with the court system, and reduce physical and verbal attacks on judicial personnel?  It is early days to say.
  • It does not resolve underlying issues such as local courts not wanting to offend local government or locally state-owned enterprises.  The 4th 5 Year Court Reform Plan identifies cross-jurisdictional courts as a solution, and pilot projects have started on this in various locations, including Beijing, but a comprehensive framework is not yet in place.
  • For the numerically small number of foreign litigants in the system, it does not change all the documentary requirements needed, such as notarization and legalization of documents and powers of attorney. It should make it easier for foreign invested companies to litigate.
  • As a Court spokesman suggested,  the rejection of many cases could come later, leading to greater pressure on the courts later on, from appeals, more requests for cases to be re-tried, and not ultimately reduce the number of petitioners.
  • It will inevitably lead to abuse of process and frivolous cases, such as the over-publicized case of a Shanghai man suing because of the stare of a TV star caused him spiritual damage. The Court is working on rules to address this.