Supreme People’s Court judge convicted of taking bribes

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Bottega Veneta man bag (©BV)

In a blow to the Supreme People’s Court (SPC)’s efforts to bolster its prestige and that of the Chinese judiciary, a ruling recently published on the SPC’s court database reveals that Ms. Zuo Hong, formerly a judge (with division level rank) in the SPC’s Trial Supervision Tribunal was convicted of accepting bribes.    The published ruling omits her full name and that of others involved in the case.

The initial judgment by the Beijing Eastern District People’s Court (District Court), dated 10 March 2016, from which she appealed was upheld by the #2 Beijing Intermediate People’s Court on 31 May 2016.  Because the amounts involved were small (approximately RMB 70,000, particularly in comparison to many of the other corruption cases that have come to light in the last two years), her one and a half year sentence was suspended for two years.  Although she avoided a jail term, she will be unable to draw on her state pension and cannot be involved directly in the legal profession.

The facts, according to the ruling (which summarizes Zuo’s confession and witness statements of others involved in the case):

The then Judge Zuo received as gifts US dollars (USD) and a BV bag (men’s style) from Judge Hui of the Shanghai Higher People’s Court, Trial Supervision Tribunal (USD $6000) and Mr. Yang, Deputy General Manager of Zhongxia Construction Group (Zhongxia, a Shaoxing, Zhejiang-based private company) (bag and USD $2000). (It appears that the bag was originally intended for Judge Hui.)

Judge Hui and Mr. Yang were classmates.  Judge Zuo, who was contacted by Judge Hui, involved herself in a private lending case in the Shaanxi Higher People’s Court in which a Zhongxia subsidiary was a party (the related judgments are listed in this article). The SPC had ruled on the Zhongxia subsidiary’s re-trial petition and remanded to the Shaanxi Higher People’s Court for further proceedings. During 2014, Judge Zuo traveled to Xian four times on the matter, where she met with Judge Hui and Mr. Yang. Judges Zuo and Hui met with their contacts at that court to set out Zhongxia’s position and to have those views conveyed to the judges directly involved. According to the judgment, the Shaanxi judges met with Judges Zuo and Hui because she was from the SPC and given the hierarchical relationship, it was awkward to refuse to meet.   The case was further discussed by the collegiate panel and  judicial committee and eventually remanded to the Xian Intermediate Court for retrial on the basis that the facts were unclear.

According to this article, the case came to the attention of the Supervision Bureau of the SPC in January, 2015, when its personnel were investigating other cases and her iPhone and BV bag came to their attention.  In April, 2015, the Supervision Bureau opened an investigation file for her case. Judge Zuo  cooperated with the Supervision Bureau’s investigation and handed over the money and bag to investigators.  Her case was transferred to the procuratorate on 12 June 2015, when she was taken into custody. She was arrested at the end of that month.

On 1 February 2016, the Communist Party Central Political-Legal Committee designated her case as one of seven typical cases of leadership interference in the judicial process. By that time she had been expelled from the Communist Party under its disciplinary procedures.  At the end of August 2015, Ms. Zuo was formally removed from office.

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It appears from Judge Zuo’s case that the Central Political-Legal Committee’s need to issue a set of  typical cases of leadership interference to scare judges and other members of the political-legal establishment into compliance trumped respect for the formalities of the operation of the criminal justice system. (It is unclear whether the Central Political-Legal Committee considered the impact of that lack of respect on retaining highly qualified judges (and on other legal professionals)).  (This blogpost highlighted the first set of these cases). It is likely that the Central Political-Legal Committee relied on the Party disciplinary decision in her case (see a description here) to make a determination that her case should be made public.

Senior court personnel involving themselves in cases, whether motivated by friendship or bribes, is an ongoing problem. What the two judges did is prohibited by SPC 2015 regulations and previous SPC rules. It is likely that Judge Hui has also been punished for his role in this. It seems unlikely that the Shaanxi judges were punished, as the case does not show that the internal advocacy did not affect the eventual outcome.

The case also illustrates that structural aspects of the court system have left space what is now considered “improper interference” by senior judges and were previously common practice. It also shows that internal court procedures in this case seem to have operated to blunt that interference.

The trial supervision procedure had been one of the soft spots for “improper interference,” although reforms of the trial supervision procedure under the 2015 judicial interpretation of the Civil Procedure Law (and further 2015 SPC trial supervision regulations) should diminish abuses.  Chinese law had given trial supervision judges relatively broad discretion in deciding whether to re-open a case, which is important because China has a two instance system.  (Current reforms require the application for re-trial to be sent to the opposing party and permit the reviewing judge to hear arguments from both sides). Judge Zuo is only one of many trial supervision judges who has been convicted of bribery.  (See recent cases in Liuzhou, Shanxi, and Putian.)

As Professor Li Yuwen of Erasmus University has previously written (and which I quoted in an earlier blogpost):

judicial corruption cannot be divorced from its social context…It is unrealistic to expect judges to operate completely outside the social environment, especially in the absence of a workable system to reduce the incidence of judicial corruption…certain shortcomings of the court system leave the door open for corruption. For instance, the flexible use of the re-trial system [trial supervision] leads to the easy re-opening of cases if influential people wish to interfere in a case.This not only diminishes the finality of a case but also creates opportunities for using personal networking to change a court’s judgment.

Furthermore, the relatively law judicial salary makes judges an easy target for corruption…In modern-day China, a profession’s income is too often linked to the profession’s social status. Judges’ low salaries are not conducive to building self-respect amongst the profession and, moreover, they constitute a major ground for fostering judicial corruption.

How low was Zuo Hong’s salary, that she thought it worth her while to risk her freedom and career for USD $8000?

Central Political Legal Committee issues model cases on leadership interference with the Judicial process

0d338744ebf81a4cfaf247bad42a6059242da685Five model cases on interference with the judicial process are are making the headlines today on the Communist Party’s Central Political Legal Committee’s website (www.chinapeace.gov.cn) (and therefore on its press outlet, Legal Daily as well as one of the Supreme People’s Court’s websites). It is the first time the Central Political Legal Committee has done so, but is unlikely to be the last.

The practice of issuing model cases in the courts has been discussed previously on this blog, but these have been issued to create an example (in this case a senior judge) to scare others into compliance (“kill the chicken to show the monkeys” (杀鸡儆猴)).

The first of the five cases, and the only one from the courts, is that of Chen Hai’ou, chief judge of the #2 civil division of the Beijing Higher People’s Court (and judicial committee member). Chen seems to be well-known as a bankruptcy law specialist and was likely known to counterparts on the Supreme People’s Court.

According to the press release, Chen received an administrative penalty and has been transferred away from doing trial work because he involved himself in a case that was not within his authority In violation of March, 2015 Central Political Legal Committee regulations on judicial personnel prying into cases.  Some more specific conflict of interest allegations against Chen remain posted on the Internet, although other allegations (and photos) on other sites have been taken down.  It seems likely that these led to his downfall.

Supreme People’s Court‘s sunshine cure for corruption in commutation and parole procedures

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Prisoner choosing commutation & parole options from corrupt jail official

 

Before Chinese new year, the Supreme People’s Court held a news conference  to highlight its accomplishments in reforming parole procedures. The previous procedures (or lack of them) (as described below) appeared to have been a money-spinner for prison officials. The reform in parole procedures highlights the value that current Chinese legal policy places on Justice Louis D. Brandeis’s wisdom (without citing him):

“Publicity is justly commended as a remedy for social and industrial diseases. Sunlight is said to be the best of disinfectants…”

The change in parole procedures also are a good example of how results of investigations by the Central Commission for Discipline Inspection (CCDI) and Central Political and Legal Committee policy documents are eventually are translated into improvements in legal procedures.

The reforms to parole procedures include:

  • The Court’s August, 2014, Provisions On Commutations And Parole(最高人民法院关于减刑、假释案件审理程序的规定) (translation can be found here), requiring much more transparency;
  • November, 2014 procedures issued by the Court along with the Ministry of Justice, Ministry of Public Security, Supreme People’s Procuratorate, and National Health and Family Planning Commission on medical parole and related issues (暂予监外执行规定), establishing stricter guidelines.
  • Establishing an internet platform on the Court website to make public (provide sunlight) parole/commutation matters: acceptance of applications, notice of court hearings,and court rulings;
  • Establishing a filing system under which decisions relating to officials of county level (or section (处) need to filed with provincial high courts and provincial department (bureau level(局)) need to be filed with the Court;
  • Model cases on parole and commutation, to guide lower court judges in their work, and inform the public on these reforms.

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    Axe labeled “power”, “money”

The background

With flexible provisions and limited transparency on medical parole, commuting sentences, and parole procedures, in recent years apparently underpaid Chinese prison officials caught the entrepreneurial spirit and (like the Monopoly game that many of us grew up playing), sold “get out of jail cards” to those who could afford to pay.  Those were generally made up the wealthy and (formerly) powerful, particularly those who had committed the following crimes:

  • duty crimes (including taking bribes and abusing authority);
  • organized crimes;
  • financial crimes.

An August, 2014 press report mentioned that over 700 prisoners  nationwide had improperly secured early release.  Other reports cited that prison officials in Guangdong were particularly entrepreneurial, arranging for the improper release of approximately 140 in Guangdong, primarily former officials, including:

  • Wang Ju, former vice mayor of Shenzhen;
  • Zhao Yuchun, former head of Shenzhen customs;
  • Huang Shaoxiong, former deputy head of the Guangdong United Front Work Department; and
  • Lin Chongzhong, former deputy mayor of Jiangmen.

CCDI investigations and Central Political Legal Committee policy document

It appears that these reforms can be traced back to CCDI investigations in 2013 (and possibly earlier), because in August, 2013, the CCDI website carried a summary of a speech by Xi Jinping at a CCDI conference in which he calls for reforms to parole procedures. At about the same time reports of  investigations into prison officials were released by CCDI, such as one of a Hunan Province Justice Department (the Justice departments run the prison) official who was found to have almost USD 2 million (12 million RMB) in assets disproportional to his income.  Many other prison officials in other provinces have also been investigated.

In January, 2014, the Central Political Legal Committee issued a policy document outlining the policy framework for the reforms, which began with the frank admission that society was incensed by the rich and powerful who had been sentenced to prison who often served relatively short sentences because they had their sentences commuted or were given parole, directing special restrictions prisoners convicted of the above three types of crimes. (The Supreme People’s Procuratorate has issued its own regulations to implement the policy document.)

Going forward

Reducing corruption in the justice system and giving Chinese people more confidence in it is a multi-faceted process, with greater transparency needed across many areas.  These reforms to parole and commutation procedures are likely to be one of the accomplishments that President Zhou Qiang will be able to point to when he gives his report to the National People’s Congress next month, particularly as the August, 2014 regulations are listed as one of one of the Court’s 10 major policy accomplishments of 2014.

Additionally, the internet platform also serves as a window into criminal activity in China, such as the recent application by a Han native of Xinjiang, convicted in Beijing of dealing in drugs, but who was permitted by the Chaoyang District Court to serve his sentence outside of jail for the next six months, because he has AIDs.

 

 

 

A new audience for US Supreme Court Chief Justice Roberts’ 2014 Year-end Report

imgresChief Justice John Roberts of the US Supreme Court may be surprised to learn that (an edited and translated version of ) his year-end report (linked here), is being read by tens of thousands of Chinese judges and lawyers. The reason is a translation by the Institute for Applied Legal Studies, affiliated with the Supreme People’s Court (Court), was published on the Supreme People’s Court website and distributed through its social media channels (Wechat and Weibo), as well by the social media feeds of local Chinese courts.

What relevance does Justice Robert’s report have for the Chinese judiciary?  It reflects how the Court considers foreign legal models as it seeks to reform the Chinese courts. Some of the “take-aways” are highlighted below.

Borrowing foreign legal models

Referring to or “borrowing”  foreign legal models has been a important part of China’s legal modernization, particularly in technical areas of law, but it remains politically sensitive.

The official position on borrowing/referring to foreign legal models is set out in the 4th Plenum Decision: “Draw from the quintessence of Chinese legal culture, learn from beneficial experiences in rule of
law abroad, but we can absolutely not indiscriminately copy foreign rule of law concepts and models.”

Earlier this month, an official of the Communist Party’s Central Political-Legal Committee, writing in the Communist Party’s journal Qiushi (Seeking Truth)  warned:

We want to study and borrow from the world’s best achievements of legal civilization, but studying and borrowing does not mean simply “take-ism (grab-ism)” [this phrase is the title of a 1934 essay by the famous Chinese writer Lu Xun  to mean that China should learn what it needs from Western culture through a process of selection].

 What are the takeaways for the Chinese courts?

The following excerpts from Justice Roberts’ report clearly resonated with the Supreme People’s Court leadership, as they consider court reforms that can be successfully adopted in China’s current political, legal and cultural environment:

  • The courts understandably focus on those innovations that, first and foremost, advance their primary goal of fairly and efficiently adjudicating cases through the application of law.
  • Courts are simply different in important respects when it comes to adopting technology, including information technology. While courts routinely consider evidence and issue decisions concerning the latest technological advances, they have proceeded cautiously when it comes to adopting new technologies in certain aspects of their own operations.
  • For 225 years, since the enactment of the Judiciary Act of 1789, the federal courts in each state have exercised a fair degree of operational independence to ensure that they are responsive to local challenges, capabilities,and needs. The individual courts have had considerable latitude to experiment with new technologies, which has led to some courts initiating local innovations. When the Administrative Office plans a nationwide initiative, such as Next Generation CM/ECF [electronic case filing and case management], it must devote extensive resources to conferring with judges, court executives, and lawyers across the country, examining what has worked on a local basis, and identifying features that should be adopted nationally.
  • The federal courts, however, also face obstacles that arise from their distinct responsibilities and obligations. The judiciary has a special duty to ensure, as a fundamental matter of equal access to justice, that its case filing process is readily accessible to the entire population, from the most techsavvy to the most tech-intimidated. Procedural fairness begins in the clerk’s office.

 

Supreme People’s Court’s prescription for the disease of judicial corruption

Basic level judges and flying money

Basic level judges and flying money

In a build up to the National Day holiday (and since), the Supreme People’s Court (the Court) has focused some of its attention on combating the disease of judicial corruption.  The prescription is in the form of three types of Communist Party documents. This blogpost highlights the prescription and speculates on the timing.

The herbs in this traditional prescription comes in the form of:

  •  Six model (typical) cases of violations of the Communist Party’s Eight Point Regulations by court officials ( “cadres and police”/干警)).  (An earlier blogpost analyzed seven earlier model cases that the Court issued.  The six (relatively minor) cases included:
    • a Guizhou county court spending over 500,000 RMB on a trip to Hainan at public expense, lavish banqueting, and abuse of bonuses;
    • leadership of a Shaoguan (Guangdong) court, that caused the death of their dinner guest, an official of a county court, from alcohol poisoning;
    • vice president of a Hunan county court, who used a court vehicle to take his daughter to school;
    • the head of the disciplinary department of a Hancheng (Shaanxi) court caught by a reporter playing video games during work hours;
  • Holiday rules on what not to do during the Mid-Autumn Festival and National Day holidays.  The Central Commission for Disciplinary Inspection (at various levels) issued notices distributed to the courts forbidding officials “gifting” moon cakes, shopping vouchers, “red packets”, and touring at public expense,
  • A document, linked here, providing policy guidance to the disciplinary departments of the courts in rooting corruption out of the courts. The head of these departments is Zhang Jiannan, who is the Communist Party’s Central Commission for Discipline Inspection’s  (CCDI’s) chief representative in the Supreme People’s Court, and directs the disciplinary departments of the lower courts. The document is again focused on anti-corruption efforts within the courts.  It directs the disciplinary departments to focus on discipline, report to the local Party disciplinary authorities as well as the disciplinary department of the higher courts, participate in major court internal meetings,  improve the operation of disciplinary inspectors (described below). It directs disciplinary officials to participate in important meetings, drafting of important documents, and clear personnel appointments. The disciplinary officials are directed to implement the Party Constitution as well as 2008 regulations on supervision work in the courts.

Some background

The background for these documents is the Communist Party’s Central Committee’s five year anti-corruption plan (analyzed here).  Following that:

  • the Court’s Party Committee  issued a June, 2014 document on Party discipline:
  • the Court dispatched teams of its own disciplinary inspectors(最高人民法院司法巡查组) to Henan, Ningxia, Fujian and Anhui in May and September.  These disciplinary inspectors are the Court’s counterpart to  the CCDI’s  inspection teams, which at the central level called Central Inspection Groups (中央巡视组) (“CIG”).  These CIGs  uncover corruption and other abuses, under which semi-retired high ranking officials are dispatched to provinces, ministries and SOEs for disciplinary inspection. The political background for these inspection teams is analyzed in this article. These inspection teams have operated in the courts for a number of years and operate according to these rules.
  • The Communist Party Central Committee’s Political Legal Committee issued three batches of “typical cases” of violations of law and Party discipline among the “political legal departments,” (each linked here) which included a substantial number of judges, including Liu Yong of the Supreme People’s Court, removed for suspicion of having taken about 2 million yuan in bribes (about $330,000).

 The timing

The timing for the release of these recent documents appears to be linked to the upcoming Fourth Plenum of the 18th Chinese Communist Party Central Committee, on the rule of law. Part of the agenda, according to reports, is the role of the judiciary, curbing corruption and announcing forthcoming judicial reforms.

A traditional prescription

This prescription for curing the courts of corruption uses the traditional cure of Party discipline rather than judicial ethical models more commonly used in other jurisdictions. The Chinese judiciary has looked at approaches to judicial ethics in other jurisdictions, including Germany, the US, and Hong Kong.  Elements of this prescription, such as having disciplinary officials participate in important meetings and the drafting of important documents appear to be inconsistent with some of the goals in the judicial reform plan of having the judges who heard cases decide them.

Will the prescription be effective?

The current prescription is a variation of what has been prescribed before.  The Court needs to show the political leadership that it is it doing what it can to combat corruption in the courts and is implementing anti-corruption initiatives.  The anti-corruption drive is being led by the CCDI, using Party channels and methods.

Corruption prevents or at least complicates efforts to establish and operate a court system that meets the needs of ordinary people. It appears that the Court leadership is under no illusions about what goes on in the court system.  However, the Court leadership can only work within the current system and with current personnel.  Will the broader anti-corruption campaign lead to a change in China’s social and business culture, of which the judiciary is a part?  Or do these latest initiatives not go to the core of the problem?  换汤不换药?

More on the Supreme People’s Court’s Judicial Reform Plan

On 16 July the Supreme People’s Court’s (Court’s) newspaper and social media outlets headlined two articles important for observers seeking to understand the judicial reforms:

  • a  report on statements by Meng Jianzhu, Politburo member and chair of the Central Political Legal Committee on the importance of the judicial reforms; and
  • an long explanation by HeXiaorong, the leader of the working group on judicial reform (of the Court’s judicial reform office) on the theory, logic and implementation of the judicial reforms.

    Meng Jianzhu

    Meng Jianzhu

Statement by Meng Jianzhu

The statement by Meng Jianzhu , made after he heard reports on the implementation of judicial reform pilot projects in six areas, stressed that the Central leadership considers the judicial reforms very important and has given a set of policy instructions on the implementation of the reforms. He calls on all involved in various political/legal organs at all levels to implement the reforms.

For anyone who has spent any time in a large organization, his message, although expressed in Chinese political language, will sound familiar:

  • make sure those at the local level are “on message”;
  • don’t impose the same method everywhere (不搞一刀切;
  • ensure enthusiasm about the reforms, otherwise they may fail.

The thinking behind the judicial reforms

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He Xiaorong

A long article by He Xiaorong published on 16 July in the People’s Court Newspaper and other Court media outlets summarizes the thinking behind the judicial reforms (and what must have been the hundreds of pages of policy papers that underly what has been made public).  It is an edited version of a fuller paper, that has been issued on Wechat and perhaps other outlets (and is said to express He’s own thinking).  For those seeking to understand the judicial reforms, it deserves close analysis. A flash analysis will follow when time permits.

The Supreme People’s Court Strikes Against Violence in the Medical System

Dr. using opinion as a shield

Dr. using opinion as a shield

In late April, the Supreme People’s Court, the Supreme People’s Procuratorate, and three central government agencies issued a document focusing on medical-related disputes and crimes committed within China’s medical system, along with four typical cases(典型案例).   (I flagged the importance of the issue of medical disputes and crimes in a post late last year and have discussed typical cases here.)  The document:

  • provides an recent example of the Court issuing policy documents;
  • shows how the Court implements Party/government policy relating to an important social issue;
  • illustrates the stresses in the Chinese medical system; and
  • highlights the inadequacies in medical legislation.

Why was this document issued?

The document was issued to deal with the increasing number of disputes and especially the violence in the Chinese medical system, that have been reported and explained by a variety of sources, including the Lancet, BloombergBusinessweek, and the Atlantic. The Chinese press (also academics outside of China and foreign press) has run many stories on “medical troublemakers” (医闹) –either disgruntled patients or their families or people especially hired to make trouble in a hospital to embarrass the hospital to making a large settlement. Why?  As Wan Xin, a member of the Council of the Chinese Medical Law Association is quoted in a Xinhua press release as saying: “if you make little trouble, you get little money, make big trouble, you get big money, if you don’t make trouble, you don’t get money” (小闹小给钱, 大闹给大钱, 不闹不给钱).

Heilongjiang medical workers protest

Heilongjiang medical workers protest

Protest outside one of Kunming's main hospitals

Protest outside one of Kunming’s main hospitals

The Court issues policy documents

The document, clunkily named  “Opinion on strictly punishing according to law illegal and criminal acts relating to the medical system and upholding normal medical order” (关于依法惩处涉医违法犯罪维护正常医疗秩序的意见) (the Opinion), was issued by the following government agencies in addition to the Court:

  • Supreme People’s Procuratorate;
  • Ministry of Public Security
  • Ministry of Justice;
  • State Commission on Health and Family Planning.

The Opinion is what in Chinese is called a normative document(规范性文件). As I discussed in an earlier blogpost, the Court often issues them (and has done so for many years). They contain legal rules and policy statements and have different titles from judicial interpretations, in this case “Opinion”.

This document, for example, does not fit the legal definition of a judicial interpretation because it is issued with three State Council ministries/commissions, that is three agencies not authorized to issue judicial interpretations.   The rationale for this practice is that officials of the administrative organ involved will comply only if their administrative organ jointly issues it with the Court and requires compliance of its subordinates, which in this matter includes the hospitals and other parts of the medical system, the police, and the people’s mediation committees.  Normative documents also address issues, such as this one, where the law is unsettled and are also on the political agenda.

What the Opinion says and does not say

The substance of the Opinion is in two sections.

Section 2 describes six sets of offenses commonly committed, how they should be punished and what different parts of the justice system should do.  Those offenses are:

  1.  Attacking or intentionally harming medical personnel and damaging property;
  2. In medical institutions, setting up shrines, funeral wreaths and burning paper money or placing a corpse in public spaces;
  3. Restricting the freedom of medical personnel (e.g. by preventing them from leaving their workplace)
  4. Insulting medical workers,
  5. Bringing weapons, explosives, radioactive materials etc. into medical institutions; and
  6. Instigating others (including family members) to commit crimes against medical personnel.

For each offense, a range of punishments is described, ranging from administrative penalties under the Law on Administrative Penalties for Public Security to criminal punishment.

Section 3 focuses on preventing medical related disputes and improving the way they are resolved.  In particular, the health authorities are directed to improve the quality of medical services, their own monitoring of medical institutions, the compliance of medical institutions with medical legislation and medical codes, improve the protection of patient’s right to privacy, right to know, right to choose, and other rights, and push the establishment of better channels of communication with patients. The Opinion calls for a three track system for resolving medical disputes:

  • medical institutions should establish departments to receive and deal with complaints;
  • otherwise, medical disputes should be mediated through three party mediation;
  • if mediation does not work, the courts should deal with the cases in a timely manner.

The Opinion does not call for improving legal rules dealing with medical issues.  (But see more about this below.)

The Court implementing Party/government’s policy

Disputes involving the medical system have increased in number and severity in the last few years.  Violent crimes committed by patients and/or their families have increased, capturing national attention.  In the Third Plenum Decision, the Central Committee called on the government to address the underlying issues:

Reform of the medical and health care system shall be deepened. The comprehensive reform of medical security, medical services, public health, drug supply and regulatory system shall be pushed forward in a coordinated manner…Efforts shall be made to improve the work system linking people’s mediation, administrative mediation and judicial mediation, and set up a comprehensive mechanism for mediating, handling and resolving conflicts and disputes.

Therefore improving medical security and medical dispute resolution have been high on the agenda of the Central Committee Political Legal Committee. The Opinion and related articles were published on the website of the Central Political Legal Committee and the Chairman of the Central Political Legal Committee has been involved in initiatives implementing the Opinion, particularly the mediation of medical disputes.

Protecting medical institutions from troublemakers

Protecting medical institutions from troublemakers

Inadequacies in medical legislation and dispute resolution

The Opinion does not address the inadequacies in existing medical malpractice legislation.  (This has been the topic of several law review  articles in English (also in medical academic literature) and many more articles in Chinese, including on Chinese social media. Although the Tort Liability Law contains basic principles, the law itself and its related judicial interpretation do not have sufficiently detailed rules on issues such as:

  • cause of action;
  • liability of different parties;
  • expert opinion;
  • determination of causation;
  • issues of proof; and
  • determination of damages.

Therefore, these cases drag on in the courts, and Wan Xin noted that a wait of two or three years to resolve these cases is not unusual.  A Beijing judge, writing on social media, noted that medical malpractice cases in his district are “many, difficult, and volatile” (多,难, 激).

The lower courts have to cope with the increase in medical malpractice litigation, because patients are increasingly aware that litigation may result in a more favorable settlement than mediation.  Some local courts have issued court rules to deal with some of these issues. Some of the outstanding questions are:

  • when will the Court issue a more detailed judicial interpretation on medical malpractice and how will it strike a balance between the rights of patients and the medical system?
  • Can a effective dispute resolution system be devised which can put the “medical troublemakers” out of business?
  • Do foreign medical/legal systems have expertise in medical malpractice that may be suitably transferred to the complex Chinese medical/legal system?

 

 

 

Will New Supercommittees Resolve the PLA’s Complicated Legal Problems?

Criminal Division, PLA Military Court

Criminal Division, PLA Military Court

On 8 April 2014, the Communist Party’s Central Political Legal Committee and the General Political Department of the People’s Liberation Army (PLA) (the PLA’s highest Communist Party organization) jointly issued a document on improving the protection of the rights of the military, military personnel, and military dependents (关于加强维护国防利益和军人军属合法权益工作的意见)  (PLA Legal Protection Opinion). The document itself has not been made public, but a summary has been widely distributed the press (including the People’s Court Daily website).  The PLA Legal Protection Opinion has drawn caustic comments from some in the Chinese blogosphere for its request that the political legal authorities (the courts, procuratorate etc.) create a “green channel” to resolve military related disputes, by giving those disputes priority at all stages of criminal and civil procedure (from docketing cases to enforcement), and call for “special matters to be handled specially” (特事特办). .

The PLA Protection Opinion provides another glimpse into the interactions of the Communist Party bureaucracy, Chinese military and civilian legal systems, and the social and economic changes in China affecting the PLA.  This blogpost describes:

  • what the distribution list was;
  • what the problems are;
  • what the super committees are;
  • the drafting process; and
  • why the document was issued.

The Distribution List for the PLA Protection Opinion

The distribution list for the PLA Protection Opinion was not been made public. As a jointly issued document, it presumably was issued to the relevant Communist Party organizations in both the civilian and military bureaucracies.  On the civilian side, it included the:

  • Supreme People’s Court;
  • Supreme People’s Procuratorate;
  • Ministry of Public Security;
  • Ministry of Civil Affairs;
  • Ministry of Justice;
  • Ministry of Finance;
  • Ministry of Human Resources and Social Security;
  • Ministry of Land and Natural Resources;
  • National Civil Air Defense Office;
  • National Leading Group on Double Support (see the following report, on the provincial level).

On the military side, presumably the General Political Department issued it to the military counterparts of many of the above authorities, including the PLA Military Court and PLA Military Procuratorate.

What are the Long Standing Legal Issues?

The long-standing legal issues are those involving both the civilian and military authorities, and include many of the unresolved ones listed in my previous blogpost.  They include:

  • theft and sale of military secrets;
  • destruction of military facilities;
  • mass incidents involving military interests;
  • disputes over military technology;
  • disputes over military land;
  • thefts of military supplies;
  • cases of persons passing themselves off as military personnel to engage in fraud and other criminal activity;
  •  Disputes affecting military personnel, including:

     1. divorces and other family disputes;

     2.  personal injury disputes;

             3. land condemnation;

             4.  disputes over compensation for compulsory land confiscation.

The Supercommittees and a glimpse into the document drafting process

The PLA Legal Protection Opinion calls for the establishment of a national coordination mechanism to support and protect military rights (全国涉军维权协调机制), (Supercommittees) replacing  “the leading small groups on supporting and protecting military rights” established nationwide from 2007.

The Supercommittees are led by the Central Political Legal Committee and General Political Department (the top Party committees relating to the civilian and military legal systems), and require the government authorities to whom the document was issued (and their local counterparts at each level) to send liaison personnel. The Supercommittees are to establish counterparts at the provincial, municipal, and county level.

In an article published in the People’s Court and PLA Daily, a “responsible person” of the PLA Military Court described the drafting process, which mirrors the drafting process for Chinese legislation generally.

Staff from the Central Political Legal Committee and the PLA Military Court formed a drafting group and went to Zhejiang, Fujian, Guangdong, and Shaanxi for field research, soliciting the views of local Party Secretaries, local courts, and military district officials, PLA officers and soldiers, including areas where local policies had been drafted to deal with military/civilian issues.  A consultation draft was prepared and approved by the leadership of the Central Military Commission, General Political Department, and Central Political Legal Committee  for distribution for comment to the relevant central government departments (including the Supreme People’s Court), leaders of major military institutions, and some local level military officials before being finalized.

Enforcing the PLA Legal Protection Opinion

The document seeks to ensure that it is taken seriously by calling for the following enforcement measures:

  • PLA legal protection matters should be incorporated into local development plans; and
  • they should be incorporated into performance evaluation for “comprehensive social management work” (performance in controlling social unrest).

Why was the document issued?

The document must have been issued because the previous leading small groups were not effective, and the result has been an increase in civil unrest involving civilians and military, unresolved civil disputes involving the military and its personnel as well as criminal cases involving civilians and military that have not been prosecuted.

The principal reason for these unresolved issues (in my view), is due to the separate operations of the military and civilian systems and the difficulty of coordinating across bureaucratic systems.  Moreover, a substantial number of the unresolved cases are likely tied to the performance indicators for officials within the (civilian) legal system. Performance indicators for court and other officials within the legal system are generally tied to their percentage of closed cases or other success rates. For example, a civilian court will be reluctant to accept divorce cases involving a military spouse if orders to transfer property, registered within the military system, will not be enforced and the cases cannot be closed.  Civilian public security officials, similarly, will be reluctant to take a case if some of the criminal activity has taken place on military premises, because investigating the crime and collecting evidence will be extremely difficult.  The document reveals social and economic changes affecting the military (such as a higher rate of divorce and other family disputes), disputes over land condemnation affecting military personnel, as well as increased social unrest involving the PLA (that seems to be kept out of the press). Finally, it reveals the complex interrelationship between the military and civilian legal and administrative systems, and the use of law (or at least legal policy) in making it operate more smoothly.