At the end of March, the Supreme People’s Court (SPC) issued procedures to implement China’s Foreign State Immunity Law (the Law) in the form of a “Notice on Procedural Matters in Civil Cases Involving Foreign State Immunity” (Notice) 关于涉外国国家豁免民事案件相关程序事项的通知. That law has been in force since the beginning of 2024. Consistent with its practice, the SPC published a press release along with the text of the notice. The press release, in the form of the head of the SPC’s #4 Civil Division’s answers to reporters’ questions, provides useful background. I surmise that the press release is an edited version of materials submitted to SPC leadership for approval (as described in my 2024 article). I had anticipated that the SPC would do so, after additional research and soliciting comments from both inside and outside the court system but had guessed that a notice would be issued in 2024. Although the notice does not so state, I surmise that foreign state immunity cases will be considered “important and difficult” and therefore subject to special internal procedures. See Professor William Dodge’s article for comparisons to US law and comments on the Law. Professor Huo Zhengxin provides another perspective. This post summarizes the major points of the notice, with my comments.
The general rule is that foreign governments and their property have immunity, with exceptions as set out in the Foreign State Immunity Law. The press release usefully makes clear that Article 1 of the Notice requires that a plaintiff filing a civil lawsuits against a foreign state as a defendant or third party, must list in the complaint the specific provisions of the Law the lawsuit is based on, and explain which exception it falls into for the court to review. The court also has the responsibility to clarify (释明) the complaint in the process of receiving the complaint. “Clarify/clarification” here is a term in Chinese Civil Procedure Law, analogous to a judge’s right in other civil legal systems–the “right to ask, suggest to or require the parties to clarify or supplement their ambiguous, insufficient or improper claims, submissions or evidence.” If the plaintiff still fails to set out the legal basis after the court’s clarifications, the plaintiff should be deemed to not have met the court’s requirements, and the court should reject the case.
For those first instance civil cases that fall into the exceptions to the Foreign State Immunity Law, certain intermediate courts in provincial capitals (or their equivalent in directly administered cities, etc) have jurisdiction, as well as financial and intellectual property courts. The notice limits the number of courts that can hear foreign state immunity cases (as I had surmised), through centralizing jurisdiction (集中管辖), but permits financial courts and intellectual courts to hear them and requires other courts to transfer cases that they have accepted to ones with jurisdiction.
Article 3 concerns service of process, which must be according to relevant treaties or conventions, or other means not prohibited by the law of the foreign country, or alternatively by diplomatic note (via the Ministry of Foreign Affairs) (Article 17 of the Law). Service by announcement is prohibited.
The court must serve the complaint and other documents with a translation accompanying the original Chinese. The foreign government has three months to file a defense. The court has the discretion to permit an extension of time.
If the foreign state objects to the jurisdiction of the Chinese court, the court shall engage in a comprehensive review ex officio and may hear the views of the parties. Participation in an objection procedure is not deemed acceptance of Chinese jurisdiction (also Article 6 of the Law). If the foreign state does not respond or participate in the Chinese proceedings, the Chinese court must proactively review whether the foreign state has immunity and can hear the views of the parties. (Article 18 of the Law). The press release provides guidance to lower courts on the review: first, the people’s court should examine whether the reasons put forward by the foreign country for enjoying jurisdictional immunity are valid; second, if the reasons put forward by the foreign country are not valid, the people’s court should also conduct a comprehensive review on its own initiative, that is, in addition to the reasons, examine whether the foreign country really enjoys jurisdictional immunity and does not fall into the exception to jurisdictional immunity.
If a court requires a certificate on factual issues of state behavior from the Ministry of Foreign Affairs (further to Article 19 of the Law), it shall report to the Supreme People’s Court level by level （逐级报) to consult and request (商请) the Ministry of Foreign Affairs to issue a certificate. This one sentence conveys the bureaucratic operation of the Chinese court system and the nuances of inter-bureaucracy relations.
An attachment to the notice lists the authorized courts. The SPC has approved some of these courts to establish international commercial tribunals (courts). It is likely that those tribunals will hear sovereign immunity cases:
Beijing Fourth Intermediate People’s Court (with an international commercial tribunal)
Tianjin No.3 Intermediate People’s Court
Shijiazhuang Intermediate People’s Court of Hebei Province
Taiyuan Intermediate People’s Court of Shanxi Province
Hohhot Intermediate People’s Court of Inner Mongolia Autonomous Region
Shenyang Intermediate People’s Court, Liaoning Province
Changchun Intermediate People’s Court of Jilin Province
Harbin Intermediate People’s Court of Heilongjiang Province
Shanghai No.1 Intermediate People’s Court (with an international commercial tribunal)
Nanjing Intermediate People’s Court of Jiangsu Province (with an international commercial tribunal)
Hangzhou Intermediate People’s Court, Zhejiang Province (with an international commercial tribunal)
Hefei Intermediate People’s Court, Anhui Province
Fuzhou Intermediate People’s Court of Fujian Province
Nanchang Intermediate People’s Court of Jiangxi Province
Jinan Intermediate People’s Court, Shandong Province
Zhengzhou Intermediate People’s Court of Henan Province
Wuhan Intermediate People’s Court, Hubei Province
Changsha Intermediate People’s Court of Hunan Province
Guangzhou Intermediate People’s Court, Guangdong Province
Guangxi Zhuang Autonomous Region Nanning Intermediate People’s Court
Hainan Provincial First Intermediate People’s Court
Chongqing First Intermediate People’s Court
Chengdu Intermediate People’s Court of Sichuan Province
Guiyang Intermediate People’s Court, Guizhou Province
Kunming Intermediate People’s Court, Yunnan Province
Lhasa Intermediate People’s Court of Tibet Autonomous Region
Xi’an Intermediate People’s Court of Shaanxi Province
Lanzhou Intermediate People’s Court of Gansu Province
Xining Intermediate People’s Court of Qinghai Province
Yinchuan Intermediate People’s Court of Ningxia Hui Autonomous Region
Urumqi Intermediate People’s Court, Xinjiang Uygur Autonomous Region
In early November 2021, the Supreme People’s Court (SPC) issued a new Guiding Opinion regarding Further Improving the Trial Supervision and Management Mechanism for the Four Types of Cases (关于进一步完善“四类案件”监督管理工作机制的指导意见translationhere) (“Four Types of Cases Guiding Opinion” or “Guiding Opinion”). Official commentary by the drafters is found here. The “Four Types of Cases” refer to certain types of cases, all politically or socially sensitive, that require special handling within the court system and involvement by the relevant court leadership. The term “Four Types of Cases” originates with the 2015 SPC document “Several Opinions on Improving the Judicial Responsibility System of the People’s Courts,” (2015 Opinion) although special treatment within the Chinese court system for special types of cases is not new, as I described in my (the Monitor’s) 1993 article. This Guiding Opinion illustrates themes newly stressed in General Secretary Xi Jinping’s 15 February 2022 article on the socialist rule of law.
While the “Four Types of Cases” are a little-known concept outside of China, they are well known within the Chinese court system and are embedded in other court guidance. The Four Types of Cases Guiding Opinion draws together threads of related policy to provide standardized principles on:
Redefined “Four Types of Cases;”
Mechanisms for flagging cases as one of the “Four Types of Cases” at each stage of the court process;
Mechanisms for special treatment of these cases; and
A range of mechanisms for involving more senior judges in the handling of these cases while monitoring their involvement.
The Four Types of Cases Guiding Opinion provides insights into the operation of the Chinese judicial system, particularly after the 19th Party Congress and the ongoing transformation of the judicial system and legal system.
This blogpost gives a summary of the background to this Guiding Opinions before examing its details and providing some comments linking to larger themes.
1. Origin of the “Four Types” of Cases
a. The 2015 Opinion
The 2015 Opinion implements the broad principles in the 4th Plenum of the 18th Party Congress decision and 4th Judicial Reform Plan Outline by setting out guidelines for greater autonomy and greater responsibility for judges, known as the “judicial responsibility system.” It contrasts to the pre 4th five-year judicial reform plan period when all court decisions needed to be approved by a person (or committee) in a leadership role in a court. It also requires the preferential use of a random allocation of cases system, while pre-reform, court leaders at various levels designated judges hearing cases.
At the same time, the 2015 Opinion also imposed more responsibility or accountability on frontline judges, while reducing (or eliminating) the involvement of court leaders not involved in the hearing. It gives court leaders (a court president, vice president, and division head) supervisory and management authority. Other guidance prohibits court leaders from involving themselves in cases handled by other judges, with certain exceptions. An exception was made for “major, difficult, and complicated cases” when court leaders could designate collegiate panels to conduct hearings (Article 7). These cases are called the “Four Types of Cases” (四类案件). They refer to the following cases:
Group disputes that may affect social stability;
Ones that are difficult, complex, and have a significant impact on society;
They might conflict with the judgment of the court or a higher-level court; and
Relevant units or individuals report that the judge has violated the law (Article 24).
The 2015 Opinion did not provide any further details about these Four Types. Lower courts issued guidance detailing the meaning and scope of these cases, while the SPC incorporated measures relating to “Four Types of Cases” in documents relating to the judicial responsibility system listed below.
b. Subsequent documents
Pre and particularly post 19th Party Congress, the SPC issued a number of documents related to the judicial responsibility system and the special responsibility of court leaders. At the same time, Party authorities issued documents imposing greater responsibility on Party members in leadership positions. Many of these are collected in a 2021 book edited by the office of the SPC leading small group on the judicial responsibility system and the SPC Political Department. These documents include:
February, 2019 Fifth Five-Year Judicial Reform Plan (5th Judicial Reform Plan): it emphasizes the full implementation of the judicial responsibility system. That system in turn is linked to broader Party initiatives to expand the responsibility of leading Party and government cadres as well as court leaders to cooperate better with Party inspections of various types.
March, 2020 Opinions on Deepening the Comprehensive Reform Supporting the Judicial Accountability System issued by the General Office of the CPC Central Committee (关于深化司法责任制综合配套改革的意见 full text not available)；
Four Types of Cases cases are deemed too complex, sensitive, or important to be handled by a frontline judge or panel of judges alone. The new Four Types of Cases Guiding Opinion embeds multiple levels and a range of guidance and supervision as well as penalty provisions for court personnel. The guidance and supervision are aimed at personnel at various levels and roles within a court. It is intended as a practical set of basic principles that consolidates and develops measures that appeared in the guidance listed above. It anticipates local courts issuing more detailed rules to implement it. A 2022 media report by the Shanghai Higher People’s Court on its judicial reform program for 2022 highlights the issuing of detailed rules on the Four Types of Cases as a priority matter. A summary of the definition and scope; identification mechanism, handling and supervision; and liability provisions follows.
Definition and scope
The 2021 Guiding Opinion redefines the Four Types of Cases and their scope, sets out the responsibilities of various persons within a court at different stages of a case, both front line and in a leadership role (court president and division chiefs) According to Article 14, those in a leadership role include the court president, vice presidents, full-time members of the judicial committee, division heads and deputy heads, and others in a supervision and management role. The guidance promotes using a multi-stage mechanism for identifying these cases and flagging them for special handling. Article 2 to 6 go into detail concerning the meaning and scope of “Four Types of Cases”, with changes from the 2015 Opinion. The new “Four Types of Cases” encompass the following types of cases:
They are major, difficult, complex, or sensitive;
They involve mass disputes or cause widespread societal concern, which might affect social stability;
They might conflict with the judgments and rulings of the court or a higher level people’s court in similar cases;
Relevant units or individuals reported that a judge has violated the law in the trial.
The comments below address points 1-3. The first type significantly expands the scope from the original “group disputes that may affect social stability”. The drafters explain this change: “the difficulty and complexity of cases are not necessarily proportional to their social impact”. For example, a divorce case can be complicated and sensitive, yet their impact on regional or national society might be minimal. “Major, difficult, complex, or sensitive” could cover a case in any area of law, in theory.
The second type also changes the definition in the 2015 Opinion significantly, now referring to cases that involve large groups, or cases that cause widespread social concern. Most importantly is that these cases may affect social stability. For example, some types of cases may involve a large number of litigants, such as traffic accidents, but carry little risk of causing further mass incidents or intensifying social conflicts. These cases should not be considered one of the Four Types of Cases.
However, cases that may trigger mass incidents (e.g., labor protests after failure of litigation), risk intensifying social conflicts, or the case may have a “demonstration”, i.e., precedent-setting, effect (e.g., land-taking compensation cases), and may trigger more litigation. This may impact the development of specific industries, or the interest of specific groups, and are all cases that do need careful supervision and management.
Additionally, the SPC is of the view that cases that cause widespread concern and may affect social stability are not limited to group disputes. For example, murder cases are known to stir up public outcries. Additionally, cases involving rape claims have recently also garnered a lot of public attention.
For the third type, the Opinion broadened the scope. First, it changed the wording from “judgment” (判决) to “decision” (裁判). This can be translated as “judgment and rulings.” Second, in addition to a final judgment by a court, it includes other rulings or decisions regarding inadmissibility, objections, suspension or termination of litigation. This suits the more comprehensive process-based type of supervision that is intended and is further discussed below. The conflict with current or prior judgments and rulings is specified to be with decisions of that court or higher courts within the past three years, or are currently being heard, and where it is necessary to unify the application of law.
While the Opinion further details the meaning and scope of the Four Types, the drafters explain that they insist on maintaining a healthy balance between broadness and specificity, so as to allow local courts leeway in determining how to identify a case as one of the Four Types. This recognizes that courts in different regions have different considerations, and that, based on local conditions, different kinds of specific cases require supervision and management.
Article 7 contains additional measures to widen the scope of “Four Types of Cases.” It provides that the oversight and management measures for Four Types of Cases can be applied to other types of cases: effective decisions that are in error and require retrial; cases in which the procuratorate has filed a protest; whether a death sentence (including suspended ones) is intended to be imposed; the amount in dispute is very large; or where a court plans to pronounce a defendant not guilty. This Article is consistent with recent policy to expand the scope of supervision of the exercise of judicial power, most recently emphasized in Xi’s February, 2022 article.
Identification Mechanism, Handling. and Supervision
Article 8 requires local courts to establish mechanisms to cover the entire court process to identify, label, and give a warning concerning Four Types of Cases. This article additionally requires local courts to set rules on the responsibility of internal entities to flag cases and report them, as well as responsibility for the failure to do so. The rest of the article sketches the SPC’s concept of how the Four Types of Cases are to be flagged through the entire court process and who decides any dispute over classification.
Article 9 and 10 address the adjustments and measures that senior court members may make regarding the case, depending upon when the case is flagged as one of “Four Types of Cases.” Regardless of whether a case is designated at the filing stage or not until it has been transferred to a case hearing division, the Opinion requires the case must be heard by a collegial panel rather than a single judge, and a member of the court leadership could serve the presiding judge. The recent Civil Procedure Law reforms mentioned in this earlier blogpost expand the scope of cases that a single judge can hear, but this Guiding Opinion makes clear that a collegial panel must take on responsibility for hearing one of “Four Types of Cases.” These provisions links to previous SPC guidance to senior court leaders on the role they need to fulfill since the judicial reforms. The court leadership can also change the presiding judge and the size and composition of the panel.
Article 10 lists the oversight and management measures that court leaders may take within their authority, such as: requesting reports on the progress of the case, reviewing the case files and trial report, attending trial hearings, submitting the case to a professional judges meeting, to the judicial committee, or even reporting to the court at one level above for guidance. The measures taken are likely to depend on how sensitive, difficult, or otherwise troublesome the case is. I surmise that this system will lead to more such cases discussed by a professional judges meeting or judicial (adjudication) committee meeting so that the decision is made on a collective basis.
Article 10 importantly clarifies the exact measures that constitute permissible supervision and management under the new responsibility system. These measures need to be incorporated into the list of powers and responsibilities based on the court member’s position. All actions and measures need to be in accordance with local procedures and within the scope of authority of the judge exercising supervisory authority. The Opinion specifies that any action that falls within this scope does not constitute undue interference in cases and does not violate provisions about internal interference with judicial processes.
In contrast to previous practice, in which court leader guidance in these types of cases was not generally recorded, Article 11 requires that court leader oversight and management of “Four Types of Cases ” must be recorded in the case file and on the case-handling platform. Note that the recording would not be accessible to lawyers reviewing a court file. The views of court leadership about the case must be announced at a professional judges meeting or judicial committee meeting, Court leaders can request that a collegial panel reconsider their proposed decision, but cannot directly change the panel’s decision without going through permitted procedures. These measures seem to be aimed at preventing improper practices that enable corruption. Those improper practices must have regularly occurred in the handling of “Four Types of Cases.” Article 14 specifies that supervision and administration of “Four Types of Cases” are considered part of the scope of a court leader’s work and therefore will be incorporated into the person’s performance evaluation.
Article 12 contains penalty provisions for both the frontline judges handling the case and the court leadership. Acts that can trigger liability for frontline judges include concealing that a case is a “Four Types of Case” case, failure to obey supervision and management, or causing a serious error in a decision through that conduct with serious consequences.
Court leaders who neglect or improperly perform their oversight and management of a “Four Type of Case” case intentionally or through gross negligence causing errors in decisions and serious consequences bear liability with reference to the provisions and procedures for the management of cadres.
Article 13 addresses using the smart courts mechanism to identify “Four Types of Cases,” remind front-line judges to report the case, and prompt court leaders to supervise and manage the cases.
Concluding comments
In one short document, the Guiding Opinion on the Four Types of Cases captures many themes in internal court administration regulation and in the operation of the Chinese judicial system after the 19th Party Congress as well as the ongoing transformation of the judicial system and legal system.
The Guiding Opinion seeks to protect front-line judges from deciding “Four Types of Cases” autonomously in a way that is considered wrong or inconsistent with policy and legal provisions (non-unified). Consistency of judicial decision-making is a high priority of the SPC recently, consistent with Xi’s article mentioned above: “maintaining the unity of the country’s rule of law is a serious political issue 维护国家法治统一是严肃的政治问题. ” This links to the role of court leaders as well.
The Guiding Opinion consolidates guidance for court leaders, who under the Chinese bureaucratic court system, have special responsibilities under the SPC guidance listed above, as well as more general Party regulations applicable to “#1” leaders, and Party group members in the Zhengfa 政法 (political-legal) system. It imposes greater pressure on court leaders to hear cases, as required by earlier guidance. As discussed earlier, judges in a leadership position spend substantial time on administrative, coordination, and Party matters rather than hearing cases. Guiding the proper handling of one of the Four Types of Cases is also a way for a court leader to display leadership qualities while mishandling it will trigger criticism in an internal judicial or Party inspection (see my chapter on judicial discipline for a discussion of the principal types of inspections.) On incorporating work on “Four Types of Cases” into leaders’ performance evaluation, although the Chinese court slogan (of several years ago) is that judges should be treated more like judges, the Guiding Opinion appears to treat lower court judges analogously to secondary or university students, to be given grades for their class participation.
The Opinion embeds supervision of the activity of court leaders, particularly by the use of the digital（smart courts) case-handling platform. By now, the majority of Chinese courts have a fully online and digital case-handling platform, many of which automatically record these types of supervisory and managerial measures. However, it is unclear how this has changed judicial practice regarding sensitive cases, and whether new informal practices to circumvent this digital system have emerged.
This Guiding Opinion is an important document in understanding the Party leadership’s and the SPC’s vision of the Chinese courts in the New Era. It illustrates themes in what Xi calls in the February, 2022 article “comprehensively deepening reforms in the area of rule of law 全面深化法治领域改革,” therefore a vision of reshaping Chinese law and legal institutions generally. It links to the Party leadership’s vision of whole process supervision (全过程监督), mentioned in Xi’s most recent article, which to this observer has its roots in traditional Chinese concepts of supervision of the bureaucracy. It uses its cutting-edge smart court system towards this end. That would be consistent with themes mentioned recently in an earlier blogpost, that Chinese characteristics have a great deal of weight in the reshaping of the Chinese legal system. It is also consistent with an important statement in Xi Jinping’s February, 2022 article: “the socialist rule of law system with Chinese characteristics that we want to build must be a rule of law system that is rooted in Chinese culture, based on Chinese conditions and solving Chinese problems, and cannot be misled by Western misconceptions (我们要建设的中国特色社会主义法治体系，必须是扎根中国文化、立足中国国情、解决中国问题的法治体系，不能被西方错误思潮所误导).”
The definition and scope of the “Four Types of Cases” are flexible, so as to accommodate a system in which judges bear lifetime responsibility for their decisions and court leadership bears responsibility for the decisions of their judges, and multiple types of inspections, both Party and court, monitor implementation of campaigns (such as those for the Sao Hei campaign), as well as more general policies. The accountability (responsibility or liability) provisions are broad and linked with the Party’s system for cadres, rather than professional rules. That too is consistent with traditional Chinese law.
The vision of the approach to handling”Four Types of Cases” in the Opinion is holistic, in line with the principles mentioned in the 2021 Opinion on integrating socialist core values into judgment instruments— the organic unity of political, legal, and social effectiveness (政治效果、法律效果和社会效果有机统一 ), because through this process, a judicial decision that best meets that target is likely to be achieved. And this has implications for litigants.
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Many thanks to Straton Papagianneas for translating the “Four Types of Cases Guiding Opinion” and drafting an initial version of this blogpost (and responding to several rounds of comments). Many thanks also to an anonymous peer reviewer for perceptive comments on a later draft of this blogpost.
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