Can Communist Party organizations sue or be sued in Chinese court?

The answer to this question (in some Chinese courts, at least), is yes.  A recent legal blogpost flagged a ruling in a labor case published in the Supreme People’s Court’s case database: Su Qiao v. the Taian (Shandong) Municipal Communist Party Disciplinary Inspection Commission.  The author of the blog cited in support of his view Articles 48 of the 2012 Civil Procedure Law and Article 52 of the 2015 Civil Procedure Law Judicial Interpretation (concerning organizations that can be parties to civil litigation).

A subsequent (partial) database search revealed some other civil cases in which Communist Party organizations have appeared in variously as plaintiff, defendant, third party, and party against which the enforcement of an arbitral award was sought, including one decided by the Supreme People’s Court (Court):

General Office of the Jinan (Shandong) Communist Party Committee v. two individuals (leasing dispute,)(application to withdraw the lawsuit);

Three Gorges United Vocational University v.Chongqing Jianan Construction (Group) Ltd.Beibei District, Chongqing Muncipal Communist Party Committee School [Chongqing Jianan is listed as one of Chongqing’s top 100 companies in 2010],  (construction dispute)(ruling by the Court in application for re-trial);

Ms. Luo Yun vs. Jiangbei District Chongqing Municipal Party Committee Old Cadre Bureau, Taiping Property Insurance Co. Ltd, Chongqing branch (traffic accident claim);

Mr. She Xuejun vs. Sheqi County (Henan) Communist Party Committee Old Cadre Bureau (leasing dispute);

Beijing Forbidden City Film Co. Ltd. v. Jiangchuan County (Yunnan) Communist Party Committee Propaganda Bureau (enforcement of a Beijing Arbitration Commission arbitral award).

 

Secrecy and the Chinese courts

Party meeting on secrecy

Court Party meeting on secrecy

On 9 June, the Supreme People’s Court’s Party Committee held a meeting to transmit the latest Party policy on secrecy in the courts, as reported here.  It is intended to implement General Secretary Xi Jinping’s policy statement on secrecy and security, within the court system.  It appears to be linked to policy issued earlier this spring at the meeting of the National Security Commission (official report here and analyzed here).

President Zhou Qiang stressed the following issues:

  • maintaining state secrecy and advancing judicial openness, to implement “justice under sunshine” and promote justice and fairness for the people;
  • dealing with the relationship between secret and non-classified materials, so that secrecy standards are applied properly;
  • secrecy education and punishment, putting preventative training in place and strict punishment;
  • the relationship between software and hardware, stressing preventative measures as well as hardware controls.

It does not appear that new secrecy regulations are in the works.  Judicial personnel have secrecy obligations under secrecy regulations applicable to the courts (which apparently have not been made public) (but an English translation is found here), as well as set forth in the Judges Law and other sources.  Judging by the large number of articles on court websites on this topic, in the age of smartphones (whether iPhones or Xiaomis), it appears increasing difficult for those restrictions to be effectively implemented.

The Supreme People’s Court’s New Petitioning Measures

Beijing petitioners at SPC (used with permission of Natalie Behring)

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:

  1. a dispute seeking compensation for forced demolition of property on village land;
  2. 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);
  3. a Sierra Leone ship (with an Albanian captain and Syrian crew) arrested by the Xiamen Maritime Court  (see a press report here);
  4. 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;
  5. 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);
  6. a medical malpractice case; and
  7. 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.

Pentatonic themes from the Supreme People’s Court

Pentatonic themes emanate from five articles on the national court website (www.chinacourt.org), which is managed by the Supreme People’s Court (the Court).  Although these themes appear dissonant, they reflect where the Court is now and where it may be headed. The five articles (or interfaces) relate to the

  • Mass line education and practice campaign;
  • Defense of the new joint interpretation on Internet defamation;
  • Interview with Court President  Zhou Qiang ;
  • Judicial reform: should the judicial committee be abolished; and
  • The Enterprise Bankruptcy Law Interpretation (II).

The first two articles are the most political and the last is most technical.  The middle one is the most significant, although it inevitably requires some decoding, and the fourth is related to the third.

1.  The mass line education and practice campaign

The national court website includes a banner that links to further information about the mass line education and practice campaign.  There is likely an internal Party Propaganda department directive directing that this be done.  The Supreme People’s Procuratorate website has a similar banner, as do the websites of the lower court websites. Communist Party (Party) leadership of the courts means that the mass line education and practice campaign must be featured and implemented in the courts.  This section features articles on themes in the campaign stressed by the Party as well as action by the Court.

 2. Justifying the joint interpretation criminalizing the posting of internet rumors

Several articles on the national court website relate to the joint interpretation criminalizing the posting on the internet of false rumors.  Many others have examined the joint interpretation, the comments by a “responsible person,” and the related Party documents that preceded (and directed) its issuance, so I will not re-hash those issues. The articles on the national court website justify the joint interpretation (and could not do otherwise), including one stating that “freedom of speech” and criminal punishment of false rumors is not contradictory.  It would appear (from the posting of the comments of the responsible person on the judicial interpretation on the website of the Supreme People’s Procuratorate) that the Supreme People’s Court did not take the lead in drafting this interpretation that has drawn derisive comments from the legal community within China.

3.  Court reform under Party leadership: Interview with Court President Zhou Qiang published in Seeking Facts

This article, which links to an interview with Court President Zhou Qiang in the magazine Seeking Facts (the journal of the Central Committee of the Communist Party) is important because he identifies (within the constraints of his role and the audience that he is addressing) the major issues facing the court system and his vision of the development of courts, linking it, (as he must), to the Party line as set out by General Secretary Xi Jinping, including the mass line education and practice campaign.  He uses as his anchor the statement that Xi Jinping made earlier this year:

“In every single legal case in China, we should work hard to ensure that the mass of the public feel they have received fair justice.”

Among the issues that he raises in the interview, Zhou Qiang identifies the new challenges facing the courts—as he sees it, the demands of the people on the courts are continuously increasing, while the relatively retarded capabilities of the courts are unchanged, manifesting themselves in the following types of cases:

  • eminent domain,
  • environmental and
  • internet cases.

He said these types are cases that are particularly difficult to resolve, and the new media environment means that any case at any stage can become high profile—imposing particular pressure on the courts. He touches on a number of issues that relate to public perception of the courts:

  • Obstacles to litigation, such as court refusal to accept cases;
  • Legal aid for the poor;
  • Interference into court operations;
  • Localism and bureaucratic nature; and
  • Wrongful convictions.

On the latter point he says that the criminal justice system should work together to avoid them, and the victims should be compensated and those responsible punished. In a related development, the Party Central Political Legal Committee has issued guidelines on dealing with those cases, although the full text of those guidelines does not seem to have been released.

Zhou Qiang is (inevitably) less specific in suggesting specific solutions to the issues that he has raised.

4.  Judicial reform: should the judicial committee be abolished?

Related to the judicial reform issues discussed by Court president Zhou Qiang, an article on the national court website raises the issue of the role of judicial committees in the Chinese courts  (). This brief article further links to a website with a project jointly sponsored by the national court website and Qinghua University—designed to rekindle discussions on what should become of the judicial committee (see my 2010 article on judicial committees–Article on judicial committees).  Throughout the history of the PRC, court legislation has stated that judicial committees “practice democratic centralism” and that their task is to “sum up judicial experience and to discuss important or difficult cases or other issues relating to judicial work.”  Judicial committees operate according to Communist Party principles of leadership to decide cases that are too difficult or important for an individual judge or judicial panel to decide, to ensure the optimal substantive result (as seen from the institutional perspective of the courts.

The pluses and minuses of judicial committees have been debated within China and abroad for 20 or more years.

5.  Judicial Interpretation of the Bankruptcy Law (II)

This article is included because it relates to the ongoing technical role of the Court.  A second long judicial opinion (but shorter than the first) has been under consideration for some time, and according to reports a third judicial opinion is being drafted.  The Court has wisely included practicing lawyers as well as liquidators in discussions on the future draft.  A draft version of this second interpretation was released in 2012 for discussion by some lower courts as well as specialists.  Comments by the drafters to the press on the interpretation can be found here.

6.  Conclusions?

As to the pentatonic themes:

  • The courts are under the leadership of the Party and must act in accordance with its policy line;
  • The Chinese courts are facing ever more complicated social issues, requiring greater professional (and political) competence;
  • The Chinese courts are facing ever more complicated commercial issues, requiring a greater level of technical competence;
  • Court leadership is exploring more sensitive court reform issues (at a theoretical level);
  • Court leadership is taking concrete steps concerning less controversial reform issues that will benefit “the masses”, such as legal aid to the poor.