Protect yourself from domestic violence with a civil protection order
Luohu District Court
The Luohu District Court (the Luohu court), which hears cases arising from the primarily urban Luohu administrative district in Shenzhen, in late March posted on its website (and Wechat account) an overview of the 24 domestic violence cases that it has heard in the last 3 years. The court identified four trends and “take-aways”:
there has been a trend towards an increase in the average age of abusers, from 31-45, to over 60;
the educational level and professional background of abusers has shifted to university educated, working in government agencies or foreign invested enterprises;
the type of domestic violence has shifted from simple physical violence to emotional and economic abuse, creating more evidentiary difficulties and analytical issues for the courts; and
the victims have become more aware of their legal rights. Victims are moving away from traditional attitudes of accepting domestic violence as part of family life to using the law to protect themselves, and are calling the police when domestic violence occurs and applying for civil protection orders.
The Luohu court saw the following take-aways:
more psychological support should be provided locally, in residential areas, to prevent domestic violence from occurring;
local institutions for resolving domestic disputes should be strengthened; and
more should be done to make the public aware of domestic violence legislation.
This report from one district court reflects many of the messages about domestic violence being conveyed by the Supreme People’s Court. Further reports on the drafting of the domestic violence interpretation are awaited, to see whether it will involve the procuratorate, public security, and other authorities.
A short notice on the Supreme People’s Court’s websites and Wechat on 2 March (linked here) announced the launch of an 8 month campaign in the military courts to clear out a backlog of major civil disputes. The announcement (and related information) gives the outside world a peek behind the curtain of the almost 100 military courts. Any lawyer involved in due diligence projects in China in the last 15 or more years will have encountered issues related to Chinese military law, particularly land issues, but the issues targeted in the campaign are much broader.
This blogpost will look at:
the military court system;
transparency of the military courts;
judicial reforms in the military courts;
civil jurisdiction of the military courts; and
the clearup campaign.
Military Court System
The Chinese military court system, a system to itself within the Chinese court system, apparently has attracted little attention outside of China (or at least in open sources). The military court system is headed by the PLA Military Court, which is under the Political Department of the Central Military Commission, and under the Supreme People’s Court. Below the PLA Military Court there are courts in the military regions as well as the military services–Navy, Air Force, Armed Police and below those courts, basic level courts within each of these regions, military services, and other units (see this description.
Transparency
Although several articles in the Chinese press suggest that the military courts are more transparent than before, national security concerns apparently mean that the transparency measures being pushed by the Court leadership have not yet extended to the military courts. For example, the judgment debtor database established in the fall of 2013 includes all the courts but the military ones (although some military-linked companies can be found in the database). The Court’s websites link to websites of the provincial-level local courts, but not that of the military courts. However, internet searches (as well as searches of legal databases) will turn up many reports of cases involving both the civilian and military court systems.
Judicial reforms in the military courts
The Third Plenum Decision called for improvement in military legislation, and it is understood to include judicial reforms in the military courts. The head of the PLA Military Court stated that judicial reforms included improving the quality of military justice, including the quality of cases handled. What that involves has not been revealed in the open press, although presumably these are issues for the leadership of the PLA military court. It is likely that increased training of military judicial personnel will be part of the solution,both within the military system and outside it.
Civil jurisdiction of the military courts
Civil, rather than criminal cases, are the focus of the clear up campaign. The military courts have heard over 2500 civil cases, most of which have been settled. The Chinese military courts have civil jurisdiction, most recently under a judicial interpretation in the form of regulations issued by the Supreme People’s Court in 2012, “Provisions on Several Issues Concerning the Jurisdiction of Military Courts in Civil Cases” （Civil Cases Jurisdiction Provisions, linked here) and a previous 2010 notice. The rationale for giving military courts civil jurisdiction is to enable certain types of civil disputes to be resolved more effective, because the local court have encountered difficulties in dealing with them. Difficulties cited range from serving military personnel or military entities, freezing military assets, obtaining evidence held by military entities, having military personnel attend hearings in the civilian courts, and enforcing judgments against military entities.
The Civil Cases Jurisdiction Provisions deserve more discussion than this quick blogpost can provide, and stipulate:
certain civil cases must be exclusively heard in the military courts (including cases in which both parties are military personnel or military entities):
parties have the choice whether or not to file a civil suit in the military courts under certain circumstances:
tort cases in which military personnel or entities are tortfeasors;
family disputes in which one party is in the military;
tort cases that occurred within a military facility; or
military real property disputes with a military individual or entity as party.
civil cases can be transferred to and from the military and local courts, respectively.
Head of Lanzhou Military District Court visiting local intermediate court
The PLA Military Court has issued regulations further specifying the jurisdiction of various levels of military courts, that have been summarized in the press but not made public.
The clear up campaign
The campaign, undertaken with the concurrence of the Political Department of the Central Military Commission, focuses on the following types of cases:
construction of military installations;
ownership of military land;
defense technology (and presumably other intellectual property-related cases);
family law cases involving military personnel;
torts;
condemnation of property; and
labor.
Although reports have not given further details on specific cases, the following is generally known or presumed:
In many cities, PLA entities hold real estate in prime areas and the ownership disputes may involve significant sums of money;
it is likely that military families have not escaped greater social trends of increased rates of divorce, particularly in the major cities, and some of those divorces are likely to involve disputes over valuable real property;
there are likely are disputes over the intellectual property rights held by military personnel and military entities (one reported case involved infringement of copyright (by civilian publishers) of writings by military personnel);
military entities have contract disputes involving construction of military installation as well as military goods and services procured.
Greater engagement with the outside world?
It is unclear whether military exchanges with foreign armed forces have included the military courts, or whether the PLA Military Court (or the Central Military Commission) would welcome further engagement with the outside world. Presumably efforts aimed at increasing the role of law within the military and strengthening the military courts would benefit all.
Beijing petitioners at SPC (used with permission of Natalie Behring)
In the past two weeks, the Supreme People’s Court (the Court) has taken new measures to resolve the problem of petitioning (ordinary people petitioning higher authorities concerning their grievances). Court petitioners generally have grievances related to judgments (or the enforcement of judgments) in the lower courts. Petitioning affects the Court itself. The current measures are tied with the document released on 27 February 2014 by the General Offices of the Communist Party Central Committee and the State Council on petitioning reform (the Petitioning Reform Document, linked here) and briefly reported here. More measures from the Court are anticipated this year.
Approximately 60,000-70,000 petitioners approach the Court each year, many repeat petitioners. In the Court Reform Decision of November, 2013 and other statements in 2013, Court leadership identified resolving the issues underlying petitioning as a target for action (see previous blogposts in January, 2014, October, 2013, and September, 2013). It is likely that its current and future initiatives related to petitioning will be mentioned in the Court’s Work Report to the National People’s Congress.
Link to the Petitioning Reform Document
The Petitioning Reform Document is intended for distribution to the court system, as a Party document distributed to “all departments.” It pinpoints measures for the court system to take, some highlighted below.
Several points of the Petitioning Reform Document relate to the new measures taken by the Court. Point 5 of the document relates calls for pathways for petitioning issues to be heard, including on-line petitioning platforms. Point 9 of the document calls for greater legalization of petitioning, such as:
separating litigation from petitioning;
taking petitioning into the courtoom;
improving various types of appeal procedures (litigation/arbitration/administrative reconsideration)
improving systems within the courts/procuracy/public security/judicial administration to deal with the underlying issues causing petitioning.
The last sentence in Point 9 calls on the strengthening of the capacity of the judicial system, to satisfy the ever-increasing demands on the judicial system of the masses (ordinary people), and to make the masses feel that they have received fair justice.
Phrases in the last sentences are frequently used by the Court leadership. The latter phrase is part of a statement made by Xi Jinping in early 2013 and is often used by the Supreme People’s Court leadership (discussed here).
Internet petitioning platform
To implement the Petitioning Reform Document, on 28 February, the Court established an electronic platform for petitioners, linked here. The internet platform can be accessed from the Court’s official website:
网上办事
The platform includes a short video explaining how to use the on-line system, as well as its benefits, linked here. It is likely intended as a model for the lower courts.
Time will tell how the Court (and the lower courts) will promote the electronic system and resolve the underlying issues. A related issue is whether the Party anticipates a greater scope for NGOs in dealing with court-related issues.
For example, will a team of Court staff be dispatched to the street with tablet computers to register petitioners’ cases? Will this mean that NGO representatives will assist petitioners to register their issues with the courts（although this report from Guangzhou anticipates official channels only)? Most importantly, what will the Court do to resolve the underlying issues? Will this initiative be successful and result in few petitioner visits to the Court and the lower courts?
7 Model Cases
On 17 February 2014, the Supreme Court (Court) issued 7 model cases (典型案例) on protecting the livelihood of ordinary people. “Protecting the livelihood of ordinary people” is a political rather than legal term, and is described in court press releases as cases affecting the lives and livelihood of ordinary people (for more details, see here).
These model cases (linked here) and explained below, are not precedents but intended to be instructional. The legal reasoning in the cases is not important. The release of these cases sends several messages.
It shows the political leadership that the Court has taken the initiative to deal with petitioning related cases.
The Court is showing ordinary people that it is implementing Party policy by taking measures to improve how the court system deals with the underlying issues causing petitioning.
It is sending a signal to the lower courts that these cases are a political priority.
These cases include:
a dispute seeking compensation for forced demolition of property on village land;
a copyright infringement case in which Yang Jiang, widow of the writer Qian Zhongshu sought an injunction to prevent an auction house from auctioning some of his letters (see a discussion here);
a Sierra Leone ship (with an Albanian captain and Syrian crew) arrested by the Xiamen Maritime Court (see a press report here);
a judicial review of an administrative decision in an environmental case in which a farmer’s complaint made to the local environmental protection bureau concerning water pollution was ignored;
a celebrated case in which two men sought compensation for wrongfully being incarcerated for 10 years for a crime they did not commit (see a press report here);
a medical malpractice case; and
an unenforced judgment (despite multiple efforts by the court) in a forced demolition of property case brought by a trade union against a real estate development company (the defendant was one of the companies on the first list of judgment debtors issued by the Court).
Cases #2, #3, and #5 were well known either nationally or locally, and case #7 may have come to the Court’s attention when the defendant was named on the judgment debtor’s blacklist, but it is unclear how the rest came to attention of Court officials (possibly when they met with provincial court officials).
Although the Court is promoting the use of cases to guide the lower courts, including its announcement in the October, 2013 the Court Reform Decision, that it would ” fully expand the important role of leading cases and cases for reference.”
充分发挥指导性案例和参考案例的重要作用
these cases are meant as political rather than legal guidance. The subject matter of these is typical of many “people’s livelihood” cases.
In a November, 2013 blogpost, Mark Cohen (of Chinaipr.com) gave a good overview of model cases, contrasting them with guiding cases. The case descriptions of the model cases do not contain the original judgments but rather a brief summary of the facts, judgment, and (critically) the importance of the case. These model cases are not an indication that the Chinese judiciary is borrowing case law from common law system.
It is likely that 2014 will see more initiatives by the Court to deal with some of the issues underlying petitioning, including working with the NPC Legal Work Commission on expanding the jurisdiction of the courts under the Administrative Litigation Law. The Petitioning Reform Document calls for:
the establishment and improvement of systems imposing liability for mistaken verdicts and
lifetime responsibility (liability) for the quality of cases handled.
The Court is likely to focus on these as well as other issues related to the judiciary raised in the Petitioning Reform Document.
Beijing petitioners at SPC (used with permission of Natalie Behring)
In the past two weeks, the Supreme People’s Court (the Court) has taken new measures to resolve the problem of petitioning (ordinary people petitioning higher authorities concerning their grievances). Court petitioners generally have grievances related to judgments (or the enforcement of judgments) in the lower courts. Petitioning affects the Court itself. The current measures are tied with the document released on 27 February 2014 by the General Offices of the Communist Party Central Committee and the State Council on petitioning reform (the Petitioning Reform Document, linked here) and briefly reported here. More measures from the Court are anticipated this year.
Approximately 60,000-70,000 petitioners approach the Court each year, many repeat petitioners. In the Court Reform Decision of November, 2013 and other statements in 2013, Court leadership identified resolving the issues underlying petitioning as a target for action (see previous blogposts in January, 2014, October, 2013, and September, 2013). It is likely that its current and future initiatives related to petitioning will be mentioned in the Court’s Work Report to the National People’s Congress.
Link to the Petitioning Reform Document
The Petitioning Reform Document is intended for distribution to the court system, as a Party document distributed to “all departments.” It pinpoints measures for the court system to take, some highlighted below.
Several points of the Petitioning Reform Document relate to the new measures taken by the Court. Point 5 of the document relates calls for pathways for petitioning issues to be heard, including on-line petitioning platforms. Point 9 of the document calls for greater legalization of petitioning, such as:
separating litigation from petitioning;
taking petitioning into the courtoom;
improving various types of appeal procedures (litigation/arbitration/administrative reconsideration)
improving systems within the courts/procuracy/public security/judicial administration to deal with the underlying issues causing petitioning.
The last sentence in Point 9 calls on the strengthening of the capacity of the judicial system, to satisfy the ever increasing demands on the judicial system of the masses (ordinary people), and to make the masses feel that they have received fair justice.
Phrases in the last sentences are frequently used by the Court leadership. The latter phrase is part of a statement made by Xi Jinping in early 2013 is often used by the Supreme People’s Court leadership (discussed here).
Internet petitioning platform
To implement the Petitioning Reform Document, on 28 February, the Court established an electronic platform for petitioners, linked here. The internet platform can be accessed from the Court’s official website:
网上办事
The platform includes a short video explaining how to use the on-line system, as well as its benefits, linked here. It is likely intended as a model for the lower courts.
Time will tell how the Court (and the lower courts) will promote the electronic system and resolve the underlying issues. A related issue is whether the Party anticipates a greater scope for NGOs in dealing with court-related issues.
For example, will a team of Court staff be dispatched to the street with tablet computers to register petitioners’ cases? Will this mean that NGO representatives will assist petitioners to register their issues with the courts（although this report from Guangzhou anticipates official channels only)? Most importantly, what will the Court do to resolve the underlying issues? Will this initiative be successful and result in few petitioner visits to the Court and the lower courts?
7 Model Cases
On 17 February 2014, the Supreme Court (Court) issued 7 model cases (典型案例) on protecting the livelihood of ordinary people. “Protecting the livelihood of ordinary people” is a political rather than legal term, and is described in court press releases as cases affecting the lives and livelihood of ordinary people (for more details, see here).
These model cases (linked here) and explained below, are not precedents but intended to be instructional. The legal reasoning in the cases is not important. The release of these cases sends several messages.
It shows the political leadership that the Court has taken the initiative to deal with petitioning related cases.
The Court is showing ordinary people that it is implementing Party policy by taking measures to improve how the court system deals with the underlying issues causing petitioning.
It is sending a signal to the lower courts that these cases are a political priority.
These cases include:
a dispute seeking compensation for forced demolition of property on village land;
a copyright infringement case in which Yang Jiang, widow of the writer Qian Zhongshu sought an injunction to prevent an auction house from auctioning some of his letters (see a discussion here);
a Sierra Leone ship (with an Albanian captain and Syrian crew) arrested by the Xiamen Maritime Court (see a press report here);
a judicial review of an administrative decision in an environmental case in which a farmer’s complaint made to the local environmental protection bureau concerning water pollution was ignored;
a celebrated case in which two men sought compensation for wrongfully being incarcerated for 10 years for a crime they did not commit (see a press report here);
a medical malpractice case; and
an unenforced judgment (despite multiple efforts by the court) in a forced demolition of property case brought by a trade union against a real estate development company (the defendant was one of the companies on the first list of judgment debtors issued by the Court).
Cases #2, #3, and #5 were well known either nationally or locally, and case #7 may have come to the Court’s attention when the defendant was named on the judgment debtor’s blacklist, but it is unclear how the rest came to attention of Court officials (possibly when they met with provincial court officials).
Although the Court is promoting the use of cases to guide the lower courts, including its announcement in the October, 2013 the Court Reform Decision, that it would ” fully expand the important role of leading cases and cases for reference.”
充分发挥指导性案例和参考案例的重要作用
these cases are meant as political rather than legal guidance. The subject matter of these is typical of many “people’s livelihood” cases.
In a November, 2013 blogpost, Mark Cohen (of Chinaipr.com) gave a good overview of model cases, contrasting them with guiding cases. The case descriptions of the model cases do not contain the original judgments but rather a brief summary of the facts, judgment, and (critically) the importance of the case. These model cases are not an indication that the Chinese judiciary is borrowing case law from common law system.
It is likely that 2014 will see more initiatives by the Court to deal with some of the issues underlying petitioning, including working with the NPC Legal Work Commission on expanding the jurisdiction of the courts under the Administrative Litigation Law. The Petitioning Reform Document calls for:
the establishment and improvement of systems imposing liability for mistaken verdicts and
lifetime responsibility (liability) for the quality of cases handled.
The Court is likely to focus on these as well as other issues related to the judiciary raised in the Petitioning Reform Document.
On 13 January the People’s Court Daily published a report, linked here (and also issued on Wechat), with statistics and summaries of legal developments in 2013 concerning mutual legal assistance between mainland China and Hong Kong, Macau, and Taiwan. These developments, which also have practical implications for lawyers and the judiciary in all four jurisdictions are highlighted below.
There were almost 11,000 cases involving delivery of judicial documents, taking of evidence, and other mutual legal assistance, with a significant increase since the conclusion in June, 2009 of a judicial assistance agreement between the mainland and Taiwan.
In 2013, the Supreme People’s Court (SPC) began work on a judicial interpretation concerning the recognition of Taiwan court rulings and judgments, which the report says would be more comprehensive and expand the scope of judgments that can be recognized. The SPC also began work on a judicial interpretation for the transfer of mainland prisoners from Taiwan back to the mainland to serve out their sentences.
The SPC and the Hong Kong authorities [presumably the Department of Justice] have undertaken fruitful discussions on the recognition and enforcement of civil and commercial judgments that lack jurisdiction agreements (相互认可与执行非协议管辖民商事判决) as well as an arrangement concerning criminal cases in which the mainland and Hong Kong have concurrent jurisdiction.
The arrangements with Hong Kong have significant implications for the business and legal community in Hong Kong. The Supreme People’s Court Monitor looks forward to more information from the Hong Kong government on both issues.
1. The Chinese government cracks down on medical institution crime. On 21 December, 11 government and Party bodies, including the:
National Health and Family Planning Commission;
Supreme People’s Court;
Ministry of Public Security;
Ministry of Justice; and
Supreme People’s Procuratorate,
initiated 1 year movement to crack down on crime relating to medical institutions. The plan, reported here and linked here , calls for the punishment of offenses related to medical institutions. It also announces the framework for related reforms:
restructuring state-owned medical institutions;
resolving medical disputes with mediation;
improving rural health; and
improving security in medical institutions.
Although the Supreme People’s Court co-issued this document, it is not a judicial opinion. It is a policy document.
2. The Court posted structural reform issues for on-line discussion, although it is unclear what the response has been. On 18 December, the Court posted two court structural reform issues raised by the Third Plenum Decision on the “Everyone Discuss Judicial Reform” Website (linked here) and asked for comments:
local courts and procuratorates–promote uniform administration of personnel, finance, and property at provincial level and below;
the four levels of the courts–clarify their role and position.
Questions raised by the Court concerning the “uniform administration of the local courts”:
what does this mean;
what are its implications,
will it mean further bureaucratization of the courts and procuracy,
what flexibility should there be,
what will it mean for local protectionism.
Questions raised by the Court concerning “clarify the role and position of the functions of the four levels of the courts” concern the implications for:
judicial interpretations,
appeals systems;
internal organization of the courts.
The “Everybody Discuss Judicial Reform” website is a joint project of the national court website, justice website (Supreme People’s Procuratorate), and the China Law Society. It is a forum for eliciting discussion on important issues for which the institutions must already have framework plans.
This post that focuses on the Supreme People’s Court’s (Court) authority to interpret law. My intent is to avoid the quicksand of academic discussion on the topic, which has run for over 20 years in Chinese, English, and other languages and focus instead, on what the Court is doing. This topic also gives me an opportunity to provide a historical perspective, because I examined this topic in detail 20 years ago.
This seemingly theoretical topic is relevant to the work of a broad range of people (among others);
• Lawyers reviewing memoranda from their China-based lawyers;
• Journalists;
• Consular officials stationed in China;
• Regulatory officials who are charged with monitoring exports from China; an
• Foreign and international judicial officials charged with international judicial assistance; and
• Arbitrators in cases involving Chinese law.
These posts will explain (with some historical perspective):
• Why Court interpretations are important;
• Important functions of Court interpretations;
• What they look like;
• The Court’s legal basis for issuing them;
• On-going issues (and suggestions for reform).
Why are they important?
Court interpretations are an important source of legal rules in China, particularly for the courts, and have been for most of the history of the PRC. The number of client alerts by major international law firms is testimony to their importance to the international commercial world, but the Court interprets on many other areas of law of critical importance to ordinary Chinese citizens and the domestic economy. In the last 6 months, Court interpretations in the following areas have achieved international prominence include:
• Labor (employment) law;
• Conflicts of law (private international law);
• Civil trademark disputes and
• Criminal bribery.
Many other interpretations have missed the glare of international scrutiny , although they are significant for the substantive or procedural area involved (as well as the persons affected). Some important functions of Court interpretations
Among the important functions of Court interpretations are to:
• supply missing definitions;
• supply missing concepts;
• set out missing procedures;
• embody political policy as relevant to the court system;
• refine the discretion of the lower courts; and
• generally fill in the gaping holes or glitches in Chinese legislation.
The Chinese judiciary and legal system would be unable to function without them.
It is an area of Court operation where the Court has changed what it does, for the better, particularly in comparison to 20 years ago. Subsequent posts will also explain what “better” is but also point out some “areas of concern.”
Supreme People's Court Monitor 
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