On 30 and 31 December 2020, the Supreme People’s Court (SPC) delivered its first batches of documents designed to ensure a seamless transition to the Civil Code on 1 January 2021, about which I wrote last recently and in November, 2020. Several SPC leaders spoke at a press conference on the morning of 30 December 2020 to announce the issuance of these documents, with Justice He Rong taking the lead. Justice He Rong also gave highlights of items on the SPC’s agenda on the transition to the Civil Code for 2021, but those details will be forthcoming in a subsequent blogpost.
I correctly predicted that the SPC judicial committee would meet one or more times before year-end and we readers of SPC media will see one or more long catalogues of cancelled and amended judicial interpretations and other judicial normative documents published on or before 1 January 2021.
We can see the results of the long hours of work of unknown numbers of people, particularly within the SPC, the National People’s Congress Legislative Affairs Commission (NPC LAC), and many “relevant departments” in drafting these judicial interpretations. Justice He Rong mentioned the timely guidance of the (NPC LAC) （我们得到了全国人大常委会法工委的及时指导）, support and coordination from the Supreme People’s Procuratorate, and support and help from central state organs and academics and the public. Timely guidance from the NPC LAC signals (as mentioned previously), that SPC staff spent unknown numbers of hours ensuring that these judicial interpretations were properly harmonized.
It is unclear to me whether those of us outside the system will ever learn about the amount of work involved. I surmise the responsibility of delivering this timely and properly depended on the project management skills of the Research Office. If foreigners could give recommendations to SPC leaders concerning “models of socialist labor (动模范),” I would recommend it to all involved in the transition to the Civil Code.
Given the very general provisions of the Civil Code, these judicial interpretations (and more to come) are crucial for the operation of the Chinese legal system, despite theoretical questions about their binding nature beyond the court system.
As of 1 January 2021, the following judicial interpretations and other normative documents implementing the Civil Code have been issued (the English titles below are rough translations). I will link to English translations as they become available. Unless otherwise noted, a document is a judicial interpretation. Among the many aspects of the drafting process, per the SPC’s relevant five year plan, socialist core values have been incorporated into the judicial interpretations.
The judicial interpretations
Scattered comments are in italics. Where judicial interpretations have numbering , for example (1), it suggests that the drafters anticipate further comprehensive interpretations as the greater situation (大局) evolves:
- Decision on invalidating certain judicial interpretations and judicial normative documents (关于废止部分司法解释及相关规范性文件的决定). It canceled 116 of them, some of which I recall reviewing for my 1993 article;
- Regulations on timing application of the Civil Code (
关于适用《中华人民共和国民法典》时间效力的若干规定). These rules relate to application of Civil Code for disputes etc. that arose pre-Civil Code. Although the general rule is that the then current law and judicial interpretations will be applied, for some types of cases the Civil Code will be applied. (If it better protects a party’s rights and interests, upholds social and public order, and promotes socialist core values). Chart with explanation linked here.
- Interpretation on the application of the marriage and family part of the Civil Code (1) (最高人民法院关于适用《中华人民共和国民法典》婚姻家庭编的解释（一）). Note article 1 links ongoing domestic violence to the term “abuse” in the Civil Code. Chart with judicial interpretation, Civil Code, and prior judicial interpretation linked here.
Interpretation on the application of law to labor disputes (1) 最高人民法院关于审理劳动争议案件适用法律问题的解释（一).
- Interpretation on the application of law to construction contracts (1)(最高人民法院关于审理建设工程施工合同纠纷案件适用法律问题的解释（一）);
- Interpretation on the application of law to the property （rights in rem) part of the Civil Code] (1) (最高人民法院关于适用《中华人民共和国民法典》物权编的解释（一）). Rules relate both to immovable (real) and movable property, and authority of both courts and arbitral institutions;
- Interpretation on the application of law to the inheritance part of the Civil Code (1) (最高人民法院关于适用《中华人民共和国民法典》继承编的解释（一）). Chart with judicial interpretation, Civil Code, and prior judicial interpretation linked here.
- Interpretation regarding the system of taking security) ( 关于适用
《中华人民共和国民法典》有关担保制度的解释). This is a comprehensive interpretation on secured interests (besides mortgages, guarantees, liens, pledges, it also has content concerning factoring, finance leasing, and retention of title, as well as the giving of security by companies. It specifies that independent (demand) guarantees continue to be governed by the 2016 judicial interpretation on that topic. Those latter regulations are crucial to BRI infrastructure projects, as mentioned in this blogpost.
- Decision on amending the interpretation on the application of the Trade Union Law and 27 other civil law related judicial interpretations related to civil-related judicial work (关于修改《最高人民法院关于在民事审判工作中适用〈中华人民共和国工会法〉若干问题的解释》等二十七件民事类司法解释的决定);
- Decision on amending the judicial interpretation on the hearing of patent tort disputes and 18 other intellectual property-related judicial interpretations (关于修改《最高人民法院关于审理侵犯专利权纠纷案件应用法律若干问题的解释（二）》等十八件知识产权类司法解释的决定）；
- Decision on amending the “SPC Provisions on some issues concerning people’s courts seizing goods being shipped by rail” and 18 other enforcement-type judicial interpretations (关于修改
《最高人民法院关于人民法院扣押铁路运输货物若干问题的规定》等十八件执行类司法解释的决定)。 Comparison chart linked here;
- Decision on amending the “Official Reply of the Supreme People’s Court on Whether the Right to Use of Allotted State-Owned Land of a Bankrupt Enterprise Shall Be Classified as Insolvent Property” and 29 other commercial-type judicial interpretations (最高人民法院关于修改《最高人民法院关于破产企业国有划拨土地使用权应否列入破产财产等问题的批复》等二十九件商事类司法解释的决定)
- Decision on amending the “Provisions of the Supreme People’s Court about Several Issues Concerning the Civil Mediation Work of the People’s Courts” and 19 other civil procedure-related judicial interpretations (最高人民法院关于修改《最高人民法院关于人民法院民事调解工作若干问题的规定》等十九件民事诉讼类司法解释的决定);
- Notice that certain guiding cases are not to be further used for reference (最高人民法院关于部分指导性案例不再参照的通知). This is a judicial normative document, not a judicial interpretation.
- SPC issues amended “regulations on civil causes of action” (最高人民法院印发修改后的《民事案件案由规定》). This is a judicial normative document, not a judicial interpretation. This link contains both the decision itself to amend the causes of action and the amended causes of action. Compensation for sexual harassment is listed (#372), but detailed provisions on the elements have not yet been issued.
As for the review of local level judicial guidance documents for consistency with the Civil Code, mentioned in the November blogpost, the Shanghai Higher People’s Court has reported that it has met its performance goal. Another blogpost will discuss new SPC guidance（that I flagged a year and a half ago, in the current judicial reform program) directed towards reining in local court guidance, or as seen another way, strengthening the SPC’s firm guiding hand!