Using cases to explain the law in the New Era

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News conference to announce the issuance of 10 exemplary cases promoting socialist core values

As readers of this blog know, I have a special interest in the use of cases in the Chinese court system. I wrote most recently on the SPC’s use of cases in December, 2019, when I wrote How the Supreme People’s Court guides the lower courts through cases in its publications (1). In this blogpost, I am taking another look at two aspects of this topic in the post 4th Plenum of the 19th Party Congress New Era. A consolidated version will need to wait for an opportunity to write on this at greater length.

The SPC uses case law in two broad ways.  The first is to guide the lower courts, as previously mentioned in several previous blogposts and my 2017 academic article. Those developments are continuing. I’ll discuss one new example.  What I have not previously discussed very much, and will be the focus of this blogpost is how the SPC uses case law to popularize law (普法).

Guiding the Lower Courts

One example that I have not previously discussed, but is relevant to many practitioners, is the case law of the SPC’s Intellectual Property Court (SPCIPC, literally the SPC’s Intellectual Property Tribunal). A measure of the importance that the SPCIPC attaches to its cases in that the following paragraph was the first substantive section of its 2019 annual report [scroll to the bottom of the link for English]:

Ⅰ. Focus on the function of trial [court hearings] to strengthen typical exemplary effect of model cases and further unify the standards for adjudicating technology-related IP cases
Unifying the standards for adjudicating patent and other technology-related IP cases is the primary goal of the IP Court. In 2019, the IP Court focused on the function of trial and concluded a number of closely technology-related IP cases justly and efficiently in accordance with the law. A number of model judgments that have typical exemplary effect were made, and the “systematization project to unify judicial standards” has been implemented, further promoting the unification of judicial standards for technology-related IP cases. ( 一、立足审判职能,加强典型示范,进一步统一技术类知识产权案件裁判尺度
统一专利等技术类知识产权案件裁判标准,是法庭设立的重要目标。2019年,法庭立足司法审判职能,依法公正高效审结了一批专业技术性较强的知识产权案件,形成了一批具有典型示范作用的标杆性判决,建设实施“统一裁判标准系统工程”,进一步推动了技术类知识产权案件裁判尺度的统一。

In 2020, we can expect the SPCIPC to continue to use case law to unify judicial standards in technology-related IP cases.  This is one small example of the SPC’s work in this area.  The report speaks of its contribution of Chinese wisdom to the development of international IP law, but a person taking a closer look at some of the SPCIPC decisions will see that research of foreign law by SPC IP judges and interaction with persons with foreign law expertise has contributed to the development of Chinese wisdom.

Popularizing law (普法)

The second development is the popularization of law, an old development repurposed in the post 4th Plenum of the 19th Party Congress New Era. The close observer of these documents, implementation, and related activities can detect a repurposing of popularization for specialist purposes.

Popularizing law is mentioned in the policy document Opinions of the Supreme People’s Court on Thoroughly Implementing the Spirit of the Fourth Plenum of the 19th Party Congress to Advance the Modernization of the Judicial System and Judicial Capacity (Implementing the 4th Plenum of 19th Party Congress Opinions), the subject of my May, 2020 blogpost. The last sentence in section 5 of the opinion, on improving the implementation of socialist core values and the ideological responsibility system stated:

Conscientiously implement the responsibility system for publicizing knowledge about law (普法) of “whoever enforces the law, explains the law”; strengthen public opinion guidance, perfect the mechanism for issuing typical cases; establish rules of conduct through fair decisions [judgments and rulings], promote [positive] social customs, and create a good environment for the rule of law.”认真落实“谁执法谁普法”普法责任制,加强新闻舆论工作,健全完善典型案例发布机制,以公正裁判树立行为规则、弘扬社会风尚,营造良好法治环境.

The responsibility system for publicizing knowledge about law (普法) of “whoever enforces the law, explains the law” relates to pufajiaoyu (普法教育) (educating the public about law).(For those with access to an academic library I recommend Susan Trevaskes’ related book chapter) on how pufajiaoyu has developed over time).

Background to this system

This pufajiaoyu responsibility system is mentioned in section V of the 4th Plenum Decision of the 18th Party Congress and is one of many different types of responsibility systems mentioned in that Decision. This responsibility system for publicizing knowledge about law is linked to broader Xi Jinping era Party initiatives to expand the responsibility of Party and government cadres.   In this context the SPC appears to be treated as any other state or Party organ.

The phrase in the 4th Plenum Decision has been built into a responsibility system for the courts through two documents and a joint ministerial system. The framework was set out in a joint Party-State Council document in 2017  “General Offices of the Party Central Committee and State Council Opinions on a Popularization of Law Responsibility System of State Organs Regarding “whoever enforces that law, explains the law.” (中共中央办厅 国务院办公厅印发《关于实行国家机关“谁执法谁普法”普法责任制的意见》Section 6 calls for judge, procurators, administrative enforcement personnel, and lawyers to establish a “using cases to explain the law” system (建立法官、检察官、行政执法人员、律师等以案释法制度). The document calls on judges, etc. to collect, sort, research and issue cases and establish a database, using exemplary/model/typical cases to guide, standardize, and as prevention  and for education.  典型案例的收集、整理、研究和发布工作,建立以案释法资源库,充分发挥典型案例的引导、规范、预防与教育功能。So from this one line in document it is possible to see popularization used for specialist purposes (standardization).

Later in 2017, the State Council approved the establishment of an interministerial joint conference on the popularization of law, with Zhang Jun, then head of the Ministry of Justice, as head and the SPC as one of the parties. At the end of 2017, the SPC issued its own document to implement the Party-State Council document, 人民法院贯彻落实〈中共中央办公厅 国务院办公厅关于实行国家机关“谁执法谁普法”普法责任制的意见〉的实施意见》(SPC Explaining the Law Opinions).   This document is the one guiding the work of the SPC most closely.

Section 9 of the Explaining the Law Opinions focuses on the use of cases for both popularization and specialist purposes.  It calls for establishing a system for judges to explain the law in the cases they hear (as a form of popularization). On the specialist side, it calls for judges to upload cases to the SPC case database according to regulations and increase the reasoning (说理) in their judgments. The latter can have both specialist and popularization and “rule of law” impacts.  If parties or the general public are convinced by the reasoning in a judgment, they are more likely to accept it as fair. However many factors (to be explored in a later blogpost and my students’ forthcoming articles) lead to judgments with thin reasoning. This document also calls for collecting, sorting, researching and issuing exemplary cases and organizing news conferences if useful. These exemplary/model/typical cases can have both specialist and popularization impacts.  One example, that I would recommend is a recent article by an SPC judge who studied at the University of Vermont, who published an article in the Vermont Journal of Environmental Law article on a case that was designated one of the ten top mining rights typical cases.

So it seems that the Implementing the 4th Plenum of 19th Party Congress Opinions will be further implementing the provisions in the responsibility system for publicizing knowledge about law (普法) of “whoever enforces the law, explains the law” for both specialist and popularization purposes. In a later blogpost, I’ll explore the provisions in the pufajiaoyu 普法教育 responsibility system relating to judicial interpretations and judicial transparency.