4th Plenum and What Ruling the Military According to Law means

rule of/by law under construction

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!

Supreme People’s Court Focuses on Domestic Violence

Domestic violence victim (photo from SPC website)

Domestic violence victim (photo from SPC website)

The Supreme People’s Court (the Court) devoted its 27 February 2014 press conference to domestic violence, highlighting:

  • the seriousness of the problem;
  • 10 model cases;
  • a forthcoming judicial interpretation on domestic violence.

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:

  • the significance of the 10 model cases
  • some issues that should be incorporated into the judicial interpretation;

Some statistics about domestic violence in China

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.

The significance of the 10 model cases

Domestic violence graphic from SPC website

Domestic violence graphic from SPC website

These model cases are intended to convey lessons to the lower courts, lawyers, and the general public on how to consider cases involving domestic violence.

Civil protection orders

China has adopted the concept of a civil protection order (commonly used in other jurisdictions) into its legal system (see an academic study on the issue).  The amended Civil Procedure Law provides a legal basis for the issuance of these orders (see a summary in the linked article).  The Court revealed at the February news conference that over 500 civil protection orders have been issued since 2008.  

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 cases convey the message that the scope of persons to be protected under domestic violence civil protection orders should be expanded to include:
  • the elderly;  and
  • minors.
These cases signal an expansion of the categories of individuals for whom orders may be issued and an expansion of the definition of relationship between victim and perpetrator. Academic studies suggest a prevalence of domestic violence against the elderly and minors in China.  Academic studies have found elder abuse occurring in approximately 35% of the populations surveyed and significant prevalence of child abuse.  
Previously, the sole guidance from the Court regarding the issuance of civil protection orders had been limited to issuing them on behalf of one spouse against the other while still married or in the process of seeking a divorce.

Evidence

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.

Types of domestic violence

In one case, the description of domestic violence was described as excessive use of house rules.  In another example, emotional harm was specifically cited as an injury caused by the violence and a fine was issued.  In another case, use of threats to control the other party was cited.
By selecting these cases, the Court is also conveying a message about the types of behavior that can be considered to be domestic violence. The Court is stressing that domestic violence is not just physical, and that it is a specific dynamic where one individual exercises power and control over the other, including using threats of violence even when there is no physical violence and considerable rule making and other methods to intimidate and emotionally and mentally harm the victim.

Consequences of domestic violence

 In one case the daughter was injured when she tried to protect the mother against her abusive father so the divorce was granted and the mother given custody.  This case conveys the message that a parent who is found to have committed domestic violence against the other parent should not have custody of the child or children who were in that household when the abuse occurred, even if the child was not directly physically targeted or harmed.  This represents a sophisticated understanding of the impact of domestic violence on children and the danger of an abusive parent.

Issues for the judicial interpretation

Judge Xue mentioned at the press conference that a draft interpretation had already been prepared, but was subject to further studies and discussions and it was hoped it would be issued in the second half of 2014.  Issues to be covered by the interpretation include:
  • defining domestic violence;
  • determining whether acts constitute domestic violence;
  • classification of different types of domestic violence;
  • more specific guidelines on criminal punishment for domestic violence;
  • evidence in domestic violence cases;
  • guidelines for imposing punishment on  victims of domestic violence who commit crimes against their abusers.
The drafting of the interpretation was preceded by several years of field studies in 73 basic level courts.  At the press conference, the head of the Court’s Institute for Applied Jurisprudence stated that the definition of domestic violence will incorporate international practice and that the courts will work with other institutions to promote a unified approach to domestic violence.   

Judicial training

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)

General Party Secretary Xi Jinping Issues Written Instructions (批示) to the Supreme People’s Court (Updated)

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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:

  • what written instructions (批示) are;
  • the significance of Xi Jinping giving written instructions;
  • what Xi Jinping’s instructions were;
  • why the instructions were issued on eve of the New Year; and
  • why Zhou Qiang, President of the Court called on the lower courts to study diligently Xi Jinping’s instructions.

What are written instructions (批示)?

”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.

What were Xi Jinping’s written instructions and what is their significance?

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.

Why were the written instructions issued on eve of the New Year?

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.

Why are the lower courts requested to study diligently Xi Jinping’s instructions?

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.

Concluding Remarks

To the outside observer:

  • it illustrates what is meant by Party leadership of the courts at the highest level;
  • in the political context of China, it is a major coup for Zhou Qiang (and colleagues) and their reform policies for Xi Jinping to have issued those written instructions; and
  • It means the political leadership is behind those reforms.
  • At the same time, it places a great deal of pressure on the Court leadership to deliver results (as seen from the political leadership) in the judicial reforms.
  • It would not be surprising to hear voices opposing some of the reforms at the NPC meeting.

Communist Party Political-Legal Committees Come out of the Closet and Onto the Web

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:

  • the Political-Legal Committees “coming out”; and
  • the Supreme People’s Court (Court) opening discussion on the relationship among the legal institutions.

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.

The Supreme People’s Court: Interpretations of Law as a form of Official Document (公文)

This post explains why:

  • the Supreme People’s Court (Court) releases normative documents  inconsistent with the law and its own definition of “judicial interpretations;”
  • the Court issues normative documents that guide the judiciary in deciding cases but that are not publicly released;
  • the Court issues normative documents with government organs that are not authorized to issue judicial interpretations.

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:

  • “interpretation” (解释); (a set of legal rules in a specific area of law, unrelated to a specific case);
  • “provision”(规定)  (often similar to court rules);
  • “reply” (批复)(a reply to a “request for instructions” from a lower court relating to a specific case); and
  • “decision”(决定) (a document abolishing or amending existing judicial interpretations).

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:

  • a category of documents labelled “judicial documents” exists (a term not defined);
  • documents that the Court issues with administrative organs, such as the Ministry of Public Security and Ministry of Justice are published under that classification and contain normative provisions;
  • documents such as “conference summaries”(纪要) and “opinions” (意见) that are classified as types of official documents are also published under that classification or elsewhere on the Court website, and seem to have normative provisions, because many of which contain language that the lower courts should “implement their provisions” or “use them as guidance.”

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.

The Supreme People’s Court: Reforming the Chinese courts the Party Way

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:

  • The meaning of an “educational movement” and “judicial work style.”
  • The impetus for the movement.
  • The goals of the movement.
  • How will it be done?
  • What are its implications?

What is an “educational movement” and  “judicial work style”?

Both phrases are frequently used in Chinese political jargon.

  • An “educational movement”  refers to a political initiative with both educational and punitive aspects, focused on correcting certain ways of thinking while “work style” means the standards of conduct of officials.
  • Work style issues cover a broad range of activity, from deciding cases to womanizing, to luxurious banquets.

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:

  • Implement the ideal that justice is for the people, so that litigants will not feel they are despised;
  • Decide cases according to law, so that litigants will feel that justice has been done;
  • Improve judicial responsibility, so that judicial laziness, delays, indifference, arbitrariness, failure to hear both sides, and gross errors are avoided.
  • Improve judicial self-discipline and establish a clean judiciary, stop cases decided by money, connections, and sympathies.

Implementing the movement

The Court has called on the lower courts to implement the movement by the following:

  • Study relevant Party and Court documents;
  • Have court leadership take responsibility for implementing the required measures;
  • Implement appropriate internal systems to avoid conflicts of interests, institute training and monitoring programs;
  • Analyze issues in each local court, taking account of the views of various parts of society, identify the weak spots in the judicial system and evolve effective means to deal with them;
  • Use good and bad examples, including instances of judicial irresponsibility and other judicial action that harms judicial prestige;
  • Stop major abuses in the courts, such as taking gifts and money, using court vehicles for private business, using judicial posts to engage in business, and lavish eating and entertainment at public expense.  Violators should be exposed, ordered to change, and if they do not, be dealt with.

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”?

  • Expect a spate of judicial scandals to hit the Chinese media and blogosphere.
  • Behind the scenes there may be a pushback from lower court judges, who feel they cannot make ends meet if they are honest.
  • Expect greater engagement between the Supreme People’s Court and the outside legal world, including greater dialogue between the courts and other parts of the legal profession in China, such as lawyers and academics in evolving reforms.  President Zhou Qiang has led the way by holding a meeting with leading academics and lawyers in late April.
  • Because this educational movement does not deal with the structural issues that have created the conditions under which judicial abuses flourish, expect incremental institutional changes to be gradually rolled out in the next few years.