The Supreme People’s Court Observer contributed a brief blogpost to the Global Military Justice Reform blog on what the 4th Plenum Decision means for Chinese military law, linked here.The Global Military Justice Reform blog, based at Yale Law School, looks at military justice issues all over the world, including the jurisdiction of military courts, command control of military courts and other parts of the military justice system and is highly recommended!
The Supreme People’s Court (the Court) devoted its 27 February 2014 press conference to domestic violence, highlighting:
Judge Xue Shulan, Deputy Head of the #1 Criminal Division, appeared at the press conference. The Court websites have published a number of domestic violence related articles in the past 3 weeks. Some of these articles have been reprinted on the website of the Central Communist Party Political Legal Committee, indicating that the Court initiative has political backing.
This blogpost will briefly explain:
At the press conference, Sun Jungong, spokesman for the Supreme People’s Court, released some statistics about domestic violence. He said that domestic violence occurs in approximately 24.7 percent of Chinese families, and almost 10 percent of intentional homicide cases are connected with domestic violence.
One model case involved a civil protection ordered issued to protect an elderly man against his abusive child while another case involved a civil protection ordered against the uncle of the minor.
The Court is providing guidance for judges about what can be considered evidence of domestic violence. Examples of evidence of domestic violence in these cases include the statement of the victim, in writing, medical records, and the diary of a child and/or victim.In the past judges often did not consider the statement of the victim as evidence. Reaffirming the evidentiary value of medical records and contemporaneous notes is also important.
After the domestic violence judicial interpretation is issued, widespread judicial training will be needed to ensure that judges can recognize domestic violence and issue civil protection orders to protect women, children, and the elderly. Many press reports (as well as studies by the Institute of Applied Jurisprudence) indicate that part of the problem can be traced to local courts, police and other authorities, who do not take domestic violence seriously.
This training is especially needed in rural courts, where many abuse cases occur, but also in the military courts. Article 33 of the Marriage Law provides that the spouse of a soldier in active service who wants a divorce needs to obtain the soldier’s consent, unless the soldier has made “grave errors” （重大过错, which according to a 2001 interpretation of the Marriage Law, includes domestic violence. This article by a judge from a court outside of Kunming describes some of the issues.
At the latest NPC session, delegates again brought up the delay in progress on domestic violence legislation (described here). Domestic violence is an area that the scholars, NGOs, and the domestic (and international) public has been putting pressure on the courts to address for some years, and it will be significant progress if the domestic violence interpretation is issued this year.
(The case analysis was provided by a contributor who wishes to remain anonymous)
The Supreme People’s Court (the Court) devoted its 27 February 2014 press conference to domestic violence, highlighting:
Judge Xue Shulan, Deputy Head of the #1 Criminal Division, appeared at the press conference. The Court websites have published a number of domestic violence related articles in the past 3 weeks. Some of these articles have been reprinted on the website of the Central Communist Party Political Legal Committee, indicating that the Court initiative has political backing.
This blogpost will briefly explain:
At the press conference, Sun Jungong, spokesman for the Supreme People’s Court, released some statistics about domestic violence. He said that domestic violence occurs in approximately 24.7 percent of Chinese families, and almost 10 percent of intentional homicide cases are connected with domestic violence.
One model case involved a civil protection ordered issued to protect an elderly man against his abusive child while another case involved a civil protection ordered against the uncle of the minor.
The Court is providing guidance for judges about what can be considered evidence of domestic violence. Examples of evidence of domestic violence in these cases include the statement of the victim, in writing, medical records, and the diary of a child and/or victim.In the past judges often did not consider the statement of the victim as evidence. Reaffirming the evidentiary value of medical records and contemporaneous notes is also important.
After the domestic violence judicial interpretation is issued, widespread judicial training will be needed to ensure that judges can recognize domestic violence and issue civil protection orders to protect women, children, and the elderly. Many press reports (as well as studies by the Institute of Applied Jurisprudence) indicate that part of the problem can be traced to local courts, police and other authorities, who do not take domestic violence seriously.
This training is especially needed in rural courts, where many abuse cases occur, but also in the military courts. Article 33 of the Marriage Law provides that the spouse of a soldier in active service who wants a divorce needs to obtain the soldier’s consent, unless the soldier has made “grave errors” （重大过错, which according to a 2001 interpretation of the Marriage Law, includes domestic violence. This article by a judge from a court outside of Kunming describes some of the issues.
At the latest NPC session, delegates again brought up the delay in progress on domestic violence legislation (described here). Domestic violence is an area that the scholars, NGOs, and the domestic (and international) public has been putting pressure on the courts to address for some years, and it will be significant progress if the domestic violence interpretation is issued this year.
(The case analysis was provided by a contributor who wishes to remain anonymous)
On the eve of the Chinese New Year, a banner headline was posted on the Supreme People’s Court (Court) websites:
Study the Important Written Instructions of General Party Secretary Xi Jinping
A revised version of that banner has remained on those websites since (the photo above), apparently unobserved by outside commentators, who may have not realized its significance. This blogpost will look at:
”Written instructions“ (批示) means notes or comments made by a superior on a written document submitted for approval or comment. It is used in reference to Party/government documents as well as documents within the court system (see the regulations on handling each type of document). The term has been used throughout the history of the PRC as well as in Chinese history. Analysis of Chinese political documents often mentions written instructions.
According to the reports on various Court websites and in the press, Xi Jinping gave his written instructions on 28 January in response to a report submitted by the Supreme People’s Court entitled Situation Concerning the Work of the People’s Courts in 2013 and Proposals for their Work in 2014 (关于2013年人民法院工作情况和2014年工作打算的报告). The report has not been made public.
Xi Jinping wrote what to the outside observer appears to be a collection of slogans from the Third Plenum Decision. However appearances can be deceiving.
He wrote that the courts had diligently implemented the Center’s policies and implemented their responsibilities and achieved new results. He expressed his hope that the courts will make persistent efforts, implement the spirit of the 18th Party Congress, Third Plenum etc, uphold the Party’s leadership, promote judicial reform, advance the building of a judicial system that is fair, efficient, and authoritative..provide powerful judicial protection for reform, and continue to promote the building of the rule of law in China.
The significance of the written instructions is not so much in its content as the fact that Xi Jinping issued it to the Supreme People’s Court. It is unusual for a Party General Secretary to have issued them. By doing so, Xi Jinping expresses his support, praise, demands, and hopes for Zhou Qiang and the Court leadership.
The written instructions were issued on the eve of the Chinese New Year to approve what Zhou Qiang and the other Court leaders did in 2013, as well as confirm the planned policies of the Court for 2014. The written instructions were issued before the Chinese New Year to enable the Court leadership to be better equipped when dealing with issues at the National People’s Congress (NPC) meeting in early March. Court leaders are likely anticipating that local opposition to judicial reforms under consideration may be expressed at the NPC meeting.
Xi Jinping’s instructions summarize in one paragraph the Central Committee’s policy towards the courts and their role in the Third Plenum reforms as well as judicial reforms. The written instructions enable the lower courts to understand the political background against which they work and the political goals for their work in the near and longer term.
The more sophisticated lower court judges understand that the written instructions mean that the Party leadership values the work of the Court leadership, but recognize that this will not resolve their caseload.
To the outside observer:
As everyone who has spent some time paying close attention to the Chinese legal system knows, the Chinese Communist Party has a system (系统) of Political Legal Committees (政法委员会 or 政法委) that oversee, coordinate, and implement Communist Party policy in the legal institutions–public security (and state security), procuratorate, courts, and justice (公检法司). The Political-Legal Committees, that exist at every level of the Communist Party and government, have been existence for many years. This quick blogpost reports on two unnoticed phenomena:
What I mean by “Political-Legal Committees ‘coming out'” is that from the central level on down, Political Legal Committees now have their own websites that link to the institutions (with the exception of state security) at the same level of government. At the top level is Chinapeace, featuring articles related to Party policy (and other topics) in the legal institutions and linking horizontally to the websites of those institutions and vertically (downwards) to the local political legal committees. Chinapeace has links to the websites of local political-legal committees at the provincial level (or equivalent)–such as the Shanghai website.
The Communist Party must have issued a decision to permit these websites to be established. It means that the Communist Party has decided that the Political Legal Committees need to be on the Internet to promote the Party’s policies. For the veteran observers of the Chinese legal system, it is an amazing phenomenon, when for many years, these committees had been in the metaphorical closet.
The second unnoticed phenomenon is that at the end of October, the Court has posted on its website a link to the newest topic for discussion for a project it co-sponsors with Qinghua University on judicial reform–the relationship between the legal institutions and whether they should be “adjusted.”
The Constitution (Article 135) sets out the basic principle–they shall “in handling criminal cases, divide their functions, each taking responsibility for its own work, and they shall coordinate their efforts and check each other to ensure the correct and effective enforcement of law” . It is signficant that the Court has raised this, especially publicly. It is another issue for all concerned about the Chinese legal system to watch.
This post explains why:
The explanation is based on recently issued Court regulations.
The practical implications of these phenomena depend on your role. For those in policy roles, rule of law work, diplomatic or governmental role with the Chinese judiciary, or those otherwise those involved in dispute resolution strategy in China, it is critically important, because it explains why China has a system of non-public normative documents guiding judges in deciding cases. It is not a mode of operation beneficial for domestic or foreign litigants and their counsel.
Official documents—the key concept
The key to understanding how the Court treats interpretations of law is the recently issued Measures for Handling Official Documents of the People’s Courts (Court Official Documents Measures, linked here) (人民法院公文处理办法)。 They replace 1996 regulations on the same subject.
What are the Court Official Documents Measures?
The Court reissued the Official Documents Measures at the end of 2012 because the Communist Party and State Council General Offices re-issued the Regulations on the Work of Handling Official Documents of the Party and Government (Party and Government Official Documents Measures) (党政机关公文处理工作条例).[2] The Court Official Documents Measures state that they were drafted with reference to the Party and Government Official Documents Measures and a comparison of both reveals that the Court Official Documents Measures reveal are an iteration of those Official Documents Measures for the court system.
What do the Court Official Documents Measures do?
The Court Official Documents Measures define “court official documents” as “official documents of the people’s courts which are formed in the course of trials and enforcement and judicial administrative operations which have special effect and have a special form.” (This definition is close to that in the Party and Government Official Documents Measures.) The definition further states:
“court official documents are important tools in transmitting the Party line, direction, and policy, implementing state law, issuing judicial interpretations…”
What are interpretations of law?
As for interpretations of law, the Court Official Documents Measures state:
“litigation documents, judicial interpretations and others are special legal official documents of the people’s courts which should be handled according to relevant provisions of law, regulations and judicial interpretations.”
This means that the Court regards judicial interpretations as “special legal official documents” (特定法律公文) of the courts.
Although the Chinese constitution vests the power to interpret law with the Standing Committee of the National People’s Congress, a 1981 decision by that same organization delegated to the Court the authority to interpret law relating to questions involving the specific application of laws and decrees in court trials, while the Supreme People’s Procuratorate was delegated authority to interpret law relating to questions involving the specific application of laws and decrees in procuratorial work. The Organic Law of the People’s Courts re-iterates the delegation of authority to interpret law to the Court. Interpretations by both organizations are known as “judicial interpretations.” In 2007, the Supreme People’s Court issued regulations on judicial interpretations (linked here) limiting judicial interpretations to the following four types:
Those 2007 regulations also mention judicial interpretations may be jointly issued by the Court and the Supreme People’s Procuratorate and requires that judicial interpretations be made public. These regulations also provide that judges may cite judicial interpretations as the basis for a court decision or ruling.
However, a review of the Gazette of the Supreme People’s Court, the official website of the Court, and lists of superseded judicial interpretations and judicial documents reveals the following phenomena:
Some of these normative documents address new issues or phenomena where the Court is of the view that the law is not settled enough for judicial interpretations. Other normative documents have a more overtly political purpose and are more closely related to current Party policy.
However, there is no requirement in the Court Official Documents Measures that all Court normative documents be made public, although the Measures designate two forms of official documents as ones that will be released both domestically and internationally, either broadly or for limited circulation. The Measures refer to the secrecy classification and secrecy level of court official documents and how those should be handled. Moreover, an Internet search reveals that some Court official documents such as “conference summaries” which were never officially published have made their way into the public domain through unofficial sources such as law firm websites and blogs. (linked here)
What does this mean?
It means that judicial interpretations are considered by the Court to be a type of official document but that the courts often rely on official documents that are not “judicial interpretations” in deciding cases, in addition to the law and existing judicial interpretations, although (according to former judges), it will not be apparent from the face of the judgment or ruling. However, there is no requirement that these normative documents be made public.
Some of these normative documents may be ones that the Court issues with administrative organs (for example the Ministry of Public Security) (although such documents do not fit the definition of “judicial interpretation”). 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.
It means that there is no assurance for any party, domestic or foreign, corporate or individual, that the legal rules on which the court has relied in his case have been made known to him. It is not an issue in every case, of course, but is more likely in new or sensitive areas.
This is an area for the new Court president to turn his attention, and for foreign and international institutions to encourage the Court to make positive changes to implement regulations requiring the publication of all normative documents.
On April 8, 2013, the Supreme People’s Court announced that its Communist Party (Party) Committee was implementing an “educational movement to improve judicial work style” (judicial work style movement) in the second quarter of 2013. Zhou Qiang, the newly appointed president of the Supreme People’s Court, is also the head of its Party Committee.
This clunkily named announcement, written in densely packed Party jargon, is has critical implications for the Chinese court system and all those affected by it, domestic and foreign. Unpacking the announcement requires a Chinese political jargon decoder and a strong cup of coffee.
This posting will explain why the announcement is so important by highlighting:
What is an “educational movement” and “judicial work style”?
Both phrases are frequently used in Chinese political jargon.
Impetus for the movement:
At the 18th Party Congress, the Communist Party leadership identified “judicial credibility” (司法公信力) as a critical area for improvement because of its political implications, particularly the profound loss of confidence in the ability of the Chinese judiciary to provide competent and fair justice. This was symbolized by the vote by 20% of National People’s Congress deputies against the Work Report of the Supreme People’s Court.
Goals of the movement:
As announced by the Court’s Party Committee, this education movement has the following goals:
Implementing the movement
The Court has called on the lower courts to implement the movement by the following:
What does this educational movement mean?
The implementation of this “educational movement” means that Party leadership recognizes that corruption and abuses in the court system are causing dissatisfaction and resentment among a substantial number of Chinese citizens, including among the political and business elite, and the leadership has called on the new Court leadership to do something about it. The Court leadership recognizes (more than any outside observer) that the Chinese judiciary often delivers a poor quality of justice, but that the issues are different in different parts of the country and even within the same city or province.
What may result from this “educational movement”?
Supreme People's Court Monitor 
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