How the Supreme People’s Court guides the court system through judicial documents (1)

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collection of post 18th Party congress judicial policy documents, edited by the SPC’s General Office

I recently participated in an academic conference in which one speaker discussed Chinese judicial documents (other than judicial interpretations).  The speaker’s view was very critical of them, a view shared by a good number of academics in China. A recent law review article published in a US law journal mischaracterized at least some of these documents.  I have my own views and understanding of what these documents mean, based on many years reviewing these documents and long discussions with knowledgeable people “who cannot be named” and whose help can only be indirectly acknowledged. I have discussed SPC judicial documents in an earlier blogpost. I also discuss them in my book chapter on judicial transparency, and book chapter on the Supreme People’s Court’s (SPC) policy document on free trade zones, the Opinions on Providing Judicial Guarantee for the Building of Pilot Free Trade Zones (最高人民法院關于為自由貿易試驗區建設提供司法保障的意見 FTZ Opinion). This blogpost melds excerpts from those book chapters.

It is a fact that the Supreme People’s Court (SPC) issues a broad range of documents that guide the lower courts in addition to its judicial interpretations. The SPC creates and transmits to the lower courts new judicial policy in the form of an “opinion” (意见), which is also a type of Party/government document.  This same term is used for documents jointly issued by the SPC and institutions not authorized to issue judicial interpretations. This blogpost focuses solely on SPC policy documents.

The SPC classifies opinions as “judicial normative documents” (司法文件 or 司法规范性文件(the title of this Wechat public account) and sometimes judicial policy documents” (司法政策性文件).  As I’ve written before, this fuzzy use of terminology is not unusual. An (authoritative) follower has proposed using the English translation “judicial regulatory document” for 司法规范性文件.  An authoritative person (who cannot be named), concurred with the follower’s proposal. Those with views on the translation point should use the contact function or contact me by email.

These documents are issued with the identifier “法发” (fafa), indicating that they have been approved by the judicial committee of the SPC or one or more senior SPC leaders.  Transparency is better than before (and the SPC has issued documents encouraging greater transparency) but there is no strict publication requirement, unlike judicial interpretations.

 The FTZ Opinion is an example of how the SPC supports the Party and government by issuing documents to support important initiatives. This is a subject that I have written about on this blog before. These SPC policy documents signal an evolution of judicial policy, establish new legal rules and direct the lower courts. Lower courts implement these measures in various ways, including in their court judgments or rulings and to further implement SPC judicial policy documents.  Local courts may issue implementing guidance, as SPC policy is intended to be a framework under which local courts issue more specific measures to deal with specific local issues.

The FTZ Opinion signals evolving judicial policy to FTZ courts in a number of areas, including on civil and commercial law issues. For example, it states that courts should
support FTZ finance leasing companies and should respect the agreement of cross-border parties regarding jurisdiction and governing law. It states that a finance lease contract shall not be determined to be null and void because relevant procedures had not been performed.

The drafting of these judicial policy documents, such as the FTZ Opinion, follow a drafting process similar to judicial interpretations. The usual practice in drafting judicial interpretations is for the SPC to engage in extensive research and fieldwork, consult with related institutions within the SPC and external institutions when relevant (another academic article stuck in the production pipeline will describe the process in more detail).

The drafting team for the FTZ Opinion engaged in several years of field work, established an FTZ Research Base in Shanghai, held a Judicial Forum for the Pilot Free Trade Zones, solicited the views of experts and local courts, in the areas where FTZs are located. The SPC’s  #4 Civil Division, in charge of foreign and cross-border related civil and commercial cases and related issues, took primary responsibility for drafting the opinion. The reason that the #4 Civil Division took the lead was that much of the substantive parts of the FTZ Opinion relates to foreign trade, foreign investment, and cross-border arbitration issues. Earlier Shanghai local court guidance was incorporated into the FTZ Opinion. Once the draft was relatively advanced, it was circulated to other relevant areas of the SPC for comments. As the team of judges who led the drafting focus on cross-border civil and commercial issues, they sought comments on related issues from the Research Office, likely one of the criminal divisions and the administrative division. Consistent with general judicial practice (and SPC rules), the FTZ Opinion was not issued for public comment. The drafting of the FTZ Opinion is one small example of the quasi-administrative way in which the SPC operates.

Rules or policies included in SPC judicial policy documents may eventually be crystallized in SPC judicial interpretations and eventually codified in national law, but
that process is slow and cannot meet the needs of the lower courts. The lower courts need to deal properly (politically and legally) with outstanding legal issues pending a more permanent stabilization of legal rules.  This is true for judicial policy documents in all areas of the law, not only in commercial law.

Supreme People’s Court and its normative documents

Court reply

Court reply

This blogpost discusses some of the documents that the Supreme People’s Court (Court) issues and what they mean, particularly to foreign legal professionals who may encounter them in practice. They reflect the bureaucratic way the Court operate (about which I (and others) have written). It is not a complete list, but a description of some of the ones I’ve written about on this blog.

The 4th Five Year Plan anticipates some reform in this area: “improve the Supreme People’s Court’s methods of trial guidance, increase the standardization, timeliness, focus and efficacy of judicial interpretations and other measures of trial guidance.”

Terminology–Some of these are described on the Court website as judicial documents (司法文件) or judicial normative documents (司法规范性文件).  They are not cited in judgments or rulings (unlike judicial interpretations), but judgments or rulings should be consistent with them. There do not seem to be clear rules on which of these documents should be made public.  Some of those documents include:

  1. Opinions (意见), issued by the Court and other institutions not authorized to issue judicial interpretations.

 Example:  Opinion on Handling Criminal Cases of Domestic Violence in Accordance with Law (Supreme People’s Court,(Law Release (2015) No. 4), The Supreme People’s Procuratorate, The Ministry of Public Security, and Ministry of Justice), discussed here, with normative provisions (instructions to the lower courts–“please implement conscientiously”).

2.  Opinions (意见), issued by the Court, but setting out judicial policy.

Opinions of the Supreme People’s Court on Fully Strengthening Environmental Resources Trial Work to Provide Powerful Judicial Safeguards for Promoting Eco-civilization Construction (最高人民法院关于全面加强环境资源审判工作 为推进生态文明建设提供有力司法保障的意见) and Opinions on Providing Judicial Services and Safeguards for the Building of One Belt One Road by People’s Courts” (关于人民法院为“一带一路”建设提供司法服务和保障的若干意见) (Instructions to the lower courts– “the following guiding opinion is set out”).

These may require further implementing regulations but judgments should be consistent with these opinions.

3. Conference summaries often address new issues or areas of law in which the law is not settled.  Conference summaries are not required to be made public, although with the internet and social media, they are now more widely available than in the early 1990’s, when I first wrote about them.

Example–the 2015  one on drugs (全国法院毒品犯罪审判工作座谈会纪要). (instructions to the lower courts-please implement this as reference, combined with the actual situation of trial work, if in implementation problems are encountered, please report in a timely manner to this Court) 请结合审判工作实际参照执行。执行中遇到问题,请及时报告我院)

4. Replies (请示复函).  Arbitration lawyers see these in published replies to the lower courts, such as those done under the Court’s reporting system relating to judgments/rulings concerning foreign-related and foreign arbitral awards.The response is binding on the lower court regarding the particular case.  The Court publishes these replies (and the report from the lower courts) in its periodical China Trial Guide: Guide on Foreign-Related Commercial and Maritime Trial, from which the following example is taken:

Example: This 2012 response to a report from the Hubei Higher People’s Court: SPC reply to Hubei High Court.

In the area of arbitration practice, the principles set out in these responses are persuasive, but not binding in later cases, and arbitration lawyers discuss these responses as a particular form of case law, such as this law firm client alert.

Replies (批复).  These are seen in requests for lower courts for approval of certain matters, such as having basic level courts hear foreign-related cases, based on relevant law and judicial interpretations.

Example, a 2013 reply by the Court to a request from the Anhui Higher People’s Court.  These are binding on the lower courts.

5. Decision (决定).  These are seen when the Court issues documents setting out an administrative approval.

Example: a 2015 decision designating certain courts as model courts for diversified approaches to dispute resolution, mentioned here.