On 13 November, the TianTong Law Firm published a bilingual version of the article below in their TianTong Litigation Circle Wechat public account. (Follow the article link to read the Chinese version.) The Tian Tong Litigation’s public account has half a million subscribers. I am very appreciative of TianTong litigation partner David Gu’s (顾嘉) kind invitation and the careful editing of his colleagues. The Chinese title of the article is: 最高人民法院对“软法”的适用：外国观察者的视角 | 跨境顾释 (with the English title of “A foreign observer comments on the ‘soft law’ of the Supreme People’s Court”). The hard work of my research assistant Sun Dongyu, one of our Peking University School of Transnational Law graduates, and Fu Panfeng, assistant research fellow of the Institute of International Law of the Chinese Academy of Social Sciences transformed my English article into readable Chinese.
Much of the substantive content of the article has previously appeared in this blog, but with a different perspective and conclusion.
I am very honored to have this opportunity to publish some of my observations about the developments of the Supreme People’s Court (SPC) with TianTong Litigation Circle. I have been observing developments of the SPC for almost 30 years, and am honored to have been included in the first batch of members of the international expert committee of the China International Commercial Court. The views expressed in this article are my own and should not be attributed to the committee, the China International Commercial Court, or the SPC.
One of the many special features of the SPC, as an important supreme court in the world, that it allocates a great deal of effort to different types of “soft law.” Soft law is a concept that the late Professor Luo Haocai, formerly vice president of the SPC, introduced and developed in China, so discussing the “soft law” of SPC is particularly appropriate. For those who are not aware of this academic concept, it means norms that affect the behavior of related stakeholders, even though the norms do not have the status of formal law.
This article gives my thoughts on two aspects of SPC soft law—its judicial policy documents and cases that it has specially selected.
I. Judicial documents
I have a special interest in judicial documents, because they drew me into researching the SPC in the early 1990s.
The seven categories of documents below are classified as judicial documents or “judicial normative documents” (“司法文件” or “司法规范性文件”) and sometimes judicial policy documents” (“司法政策性文件”). The SPC’s website lists some of them. An attentive reader can discover from reviewing the documents on the website that my description is not comprehensive. The SPC issues many other documents as well, covering personnel and administrative matters, but this article focuses on those with normative provisions.
SPC judicial documents are partially governed by 2012 regulations on the handling of SPC official documents (“人民法院公文处理办法”), which leave much unsaid and unexplained. It seems likely that additional guidance exists, whether in the form of bureaucratic custom or internal guidelines. Many, but not all, are the SPC’s special versions of Party/government documents.
1. Categories of judicial documents
1) Opinions (“意见”). According to my observations, the SPC issues several types of Opinions. I have not yet done detailed research into these different types of documents and have not seen detailed analysis in Chinese (or English). What I’m setting forth below is my tentative analysis.
i. Opinion Type 1
An Opinion issued solely by the SPC, that addresses a range of matters. The Services and Guarantees Opinions appear to fall into this category. These documents create and transmit to the lower courts new judicial policy, update previous judicial policy, establish new legal guidance that may be eventually crystallized in judicial interpretations and direct the lower courts, but cannot be cited in judicial judgments or rulings. They are generally linked to an important Party or state strategy or initiative. The ones labeled “Guiding Opinions” are intended to push policy forward, but others may do as well. Sometimes the SPC issues illustrative “model/exemplary/typical cases to clarify certain points to the lower courts (and the legal community), such as the Opinion providing Services and Guarantees [Safeguards] to the Yellow River Basin, for which the SPC issued illustrative cases.
ii. Opinion Type 2
An Opinion issued solely by the SPC, that consolidates rules or guidance found in disparate documents and adds some new rules, focuses on one particular topic, relating to litigants. The April, 2020 Opinions on Promoting Lawful and Efficient Trials of Bankruptcy Cases is a good example. It incorporates a provision from the Minutes of the National Court Work Conference on Bankruptcy Trials, for example, regarding consolidating bankruptcy cases of affiliated enterprises.
iii. Opinion Type 3
An Opinion also issued solely by the SPC, that sets out in normative form Party policy/judicial reforms, that may be the framework for further normative opinions, and eventually crystalized in law. An example is the 2015 Opinions on Improving the Judicial Responsibility System of the People’s Courts . The first line clearly links the document to Party decisions–“for the purpose of implementing the general deployment of the Party Center on deepening the reform of the judicial system….(“为贯彻中央关于深化司法体制改革的总体部署”). It is linked to several normative Opinions and the judicial responsibility system has been incorporated into the People’s Court Law.
iv. Opinion Type 4
An Opinion in which the SPC is one of several issuing institutions, that does not create new legal rules but harmonizes legal positions among institutions and for the courts, and clarifies how the law should be applied. This type of Opinion also cannot be cited as the basis for a judgment or ruling. This type of Opinion is particularly common in the area of criminal law, and is often related to the latest campaign or focus of the authorities. The 2019 Opinions on Several Issues Regarding the Handling of Criminal Cases of Illegal Lending , (“最高人民法院、最高人民检察院 公安部 司法部印发《关于办理非法放贷刑事案件若干问题的意见》的通知” ) part of the Special Campaign to Crack Down on Underworld Forces (“扫黑除恶专项斗争”) is a good example. One aspect of the ongoing campaign, which began in early 2018, is to use the criminal justice and regulatory authorities to crack down on “routing loans” (“套路贷”), an offense not defined by the Criminal Law. This 2019 Opinion harmonizes the understanding among the criminal justice authorities to punish those providing “routing loans.” Article 1 describes certain types of lending activity that can be punished under the crime of illegal business operations (Criminal Law article 225(4)).
2) Conference summary/meeting minutes (“会议纪要”). A conference summary arises from an SPC specialized court conference. A conference summary is used to transmit central legal policy, unify or harmonize court practices in accordance with that policy. Although conference summaries do not have the status of a judicial interpretation, the lower courts will generally decide cases according to its provisions. My understanding of the term “harmonizing court practice” means in Chinese judicial parlance that judges are applying the law similarly. A recent example is the 9th National Courts’ Civil and Commercial Trial Work Conference Summary. The document itself has a very useful explanation: “the Conference Minutes [Summary], which are not judicial interpretations, cannot be cited as a basis for adjudication. For first instance and second instance pending cases after the Conference Minutes have been issued, people’s courts may reason according to the relevant provisions of the Conference Minutes when specifically analyzing the reasons for the application of law in the “The court is of the view” section of adjudicative instruments.”
3) Professional judges meeting summary (“法官会议纪要”). I have not yet written in detail about these, but in my observation, they are a product of the judicial reforms. The SPC circuit courts appear to have led the way on publishing these as a way of “unifying judicial practice” but the #2 Civil Division (focusing on commercial issues) has published a collection as well.
4) Response or reply (“复函” or “答复”). These are responses or replies to requests for instructions or approvals. The SPC, like other Party and state organs, handles requests for instructions (“请示”). Although proposals have been published either to incorporate the practice into procedural law or abolish it, the practice lives on at all court levels, including the SPC. If the issue raised is considered important enough, the reply will be approved as a judicial interpretation. There are apparently fewer requests for instructions than ten or twenty years ago. I surmise more are submitted on the criminal issues than civil. One subcategory of these responses are the ones issued by the SPC’s #4 Civil Division, the division focusing on cross-border commercial and maritime issues. These are responses to request from instructions (“请示”) from provincial-level courts (including the higher courts of Beijing, Shanghai, Tianjin, and Chongqing), as required by the SPC’s Prior Reporting system for arbitration matters.
5) Notice (通知). Documents transmitting one of the above types of judicial documents are often called notices, but this is meant to call attention to a document entitled “notice” (“通知”), such as the Notice concerning some questions regarding the centralized handling of judicial review of arbitration cases (“关于仲裁司法审件归口办理有关问题的通知”) .
6) Rules (“规则” and “条例”). One recent example of the use of rules (“规则” is the CICC’s Procedural Rules for the China International Commercial Court of the Supreme People’s Court (“最高人民法院办公厅关于印发《最高人民法院国际商事法庭程序规则（试行）》的通知” ), issued by the SPC’s General Office. The rules were discussed by the SPC judicial committee but not issued as a judicial interpretation. I have observed that “规则” is used for court rules–as the same term is used for the Working Rules of the SPC’s Compensation Committee (最高人民法院赔偿委员会工作规则) . The term “条例” is used to regulate internal court system matters, such as rules (using the term “条例”) on judicial training(“法官教育培训工作条例” ) and 2012 rules on especially appointed inspectors (最高人民法院特约监督员工作条例).
7) Memorandum of Understanding (MOU). The most well-known example is the 2016 Memorandum of Understanding on Taking Joint Disciplinary Actions against Dishonest Persons Subject to Enforcement (“《对失信被执行人实施联合惩戒的合作备忘录》”). It appears to be the first time (or at least one of the first times) that a large group of central Party-state institutions has concluded an MOU. The SPC concludes many, only some of which have been made public. The lower courts do so as well. It shows that some “Western” legal concepts are useful in the Chinese context.
According to the SPC’s rules on judicial interpretation work , judicial interpretations must be published. The SPC Gazette and People’s Court Daily are required to publish the interpretations, but for the other documents published, it is hit or miss. As for the judicial documents listed above , not all are published, as there is no requirement to do so. As I have observed previously, the SPC is generally publishing more judicial documents than before. The contrast is clear, when compared to the early 1990’s, when I started to research the SPC. One positive and important example is the approved judicial interpretation agenda, issued in the form of a notice from the General Office of the SPC .
The SPC’s official website publishes some, but not all of the judicial documents that can be found in some other sources. A problem for those puzzling out these documents is that unfortunately the staff of the SPC’s website does not take the due care they should to ensure that documents are published in the correct classification, so the careful observer will find that misclassifications occur from time to time. Sources other than the SPC’s website may have more of these judicial documents. Some of these judicial documents, such as replies or responses by the #4 Civil Division under the Prior Reporting system for arbitration matters, are published in the division’s own publication, as discussed further below.
There are two additional comments on judicial documents worth mentioning, i.e. data (or lack thereof) and persuasiveness to the lower courts. It is difficult to determine how the number of judicial documents/judicial regulatory documents that the SPC issues compares to the number of judicial interpretations, as it is clear that it is inconvenient for some judicial documents to be made public (and some appear to be classified).
A second comment is on the persuasiveness of these judicial documents to the lower courts. I surmise that some of them are more important to local court leaders than to ordinary judges, but it depends on the nature of the judicial document. It is my understanding that judicial documents with normative provisions (conference summaries or Opinions with normative content) are cited in trial reports (“审理报告” or “审查报告”), but not in judgments or rulings.
II. SPC Selected cases and decisions
A second important area of SPC soft law is SPC selected cases and decisions, which are increasingly important as a form of guidance to lower court judges, especially with the formal implementation of the similar case guidance system . Since 2016, I have been writing about the development of case law with Chinese characteristics, because in my view, it is a very important development.
1. Guiding Opinions
The 27 July 2020 Guiding Opinions Concerning Strengthening Search for Similar Cases to Unify the Application of Law (“Guiding Opinions”) (“《关于统一法律适用加强类案检索的指导意见（试行)》”) , is significant because it will make judicial decisions more consistent, an ongoing issue in the Chinese court system. The SPC is approving the practice of judges using principles derived from prior cases to fill in the gaps in legislation and judicial interpretations.
The Guiding Opinions codifies many of the practices of the Chinese courts and imposes some new requirements. I have written before that it does not mean that China has become a common law legal system. Although the Guiding Opinions do not address this question, comments by an SPC judge suggest that the special status of cases selected by the SPC by its operational divisions remains in place. It is cases with a special status that I will discuss further below, because it is something most readers in and out of China do not focus on.
The rules on case law in Article 4 of the Guiding Opinions are in line with what I have previously written:
1) SPC guiding cases;
2) SPC typical (model) cases (“典型案例”) and judgments or rulings of the SPC;
3) Reference cases issued by provincial-level higher people’s courts and decisions by those courts;
4) Higher-level courts in the jurisdiction in question and judgments of that court.
2. Specific types of SPC cases
My understanding is that these are general principles, but the specific scope of cases that need to be searched will depend on the specifics. Among the specific types of SPC cases not mentioned in the Guiding Opinions are the following:
1) The cases issued by the SPC Circuit Courts
The SPC Circuit Courts issue cases under different names that are intended to guide the lower courts within their circuits and also indirectly guide legal practitioners in that circuit. In 2016, for example, the #2 Circuit Court issued a set of 30 case summaries (literally important points, 案例要旨) on administrative cases, selected from the many administrative cases heard in the first year and a half of operation. It appears that all six Circuit courts issue reference or typical cases. Earlier this year, the #2 Circuit Court launched a “case a week” (每周一案) series. The Sixth Circuit issues cases entitled Sixth Circuit Case Guidance (“六巡案例参考”) , while the Third Circuit issues typical cases .
2) Cases selected by the operational divisions of the SPC
The SPC provides guidance to the lower courts in the form of cases published in “trial guides”(“审判指导丛书”) and other related specialized publications. The cases published in these trial guides, which have various titles, are for the most part not “guiding cases”(“指导性案例”) and therefore may not be cited in a court judgment. However, because they have been specially selected by the SPC, they are quite persuasive to the lower courts and therefore important to legal professionals. The SPC sees them as a supplement to legislation, judicial interpretations, various types of judicial normative documents/judicial documents/(“司法规范性文件”/ “司法文件”) and useful in providing a source for judicial interpretation drafting. I call these cases “stealth” guidance or “soft precedents”, as they are used without citation in judgments.
Examples of these trial guides include: Reference to Criminal Trial (“刑事审判参考”), edited by a team from the five SPC criminal divisions, the #4 Civil Division’s Guide to Foreign-related Commercial and Maritime Trial; and the Administrative Division’s Administrative Law Enforcement and Administrative Adjudication (“行政执法与行政审判”).
The editors of these publications select cases they consider significant. The editors describe them as “selected to provide specific guidance and reference for criminal justice officials in finding facts, admitting evidence, applying the law and determining sentences when handling similar cases.”(“选择在认定事实，采行证据，法律适用和裁量刑罚…为了刑事司法工作人员处理类似案件提供具体指导和参考”) The editors of the Guide to Foreign-related Commercial and Maritime Trial describe the cases as providing powerful guidance (“具有较强的指导意义”“为了…遇到类似问题提供了解决思路”). They describe their selected cases as being typical and of guiding significance (“具有典型和指导意义的审判案例”). Some of the cases in these trial guides are entitled replies (some called “答复” and others entitled “复函”), as discussed above. One very important type is required by the SPC’s Prior Reporting system for cross-border arbitration matters (for example, as when a lower court intends to refuse the enforcement of a foreign arbitral award). The #4 Civil Division publishes both the request for instructions as well as their response, while the SPC Administrative Division in their publication Administrative Law Enforcement and Administrative Adjudication (“行政执法与行政审判”) only publishes their responses to the lower courts.
These cases retain their special authority even after the Guiding Opinion was issued, as indicated by comments by Senior Judge Yu Tongzhi , an editor of Reference to Criminal Trial. He noted in an article published on 31 July that for criminal cases, the best source to search similar cases is the guidance cases published in Reference to Criminal Trial.”(“就刑事司法而言，可供检索的“类案”，首选无疑是最高人民法院五个刑事审判庭唯一、共同主办的《刑事审判参考》刊载的“指导案例”)。
In my view, this discrete, technical reform of the Guiding Opinion, including the SPC selected cases described above (a form of soft law), has implications greater than the drafters of the Guiding Opinions may have realized, including a possible impact on Chinese legal education. It has the potential to make litigation and assessment of a party’s legal position in non-contentious matters more predictable for parties.
Some final thoughts about why the SPC often uses “soft law” to guide the lower courts. In my understanding. SPC judicial interpretations (司法解释) are SPC “quasi-hard law”, as rules on judicial interpretation work state that they have the force of law. That means that they are intended to be in place for an extended period of time and as a consequence, the drafting process tends to be long and involved. Chinese courts, in my understanding, must serve the greater situation (服务大局). The greater situation is dynamic. Soft law enables the SPC to guide the lower courts timely in applying the law and judicial interpretations in specific cases, harmonized with current policy. In this way, the courts perform their important role in governance.
In sum, whether it is SPC policy documents or different types of case guidance or case decisions, SPC soft law is intended to strengthen the firm guiding hand of the SPC, as part of its authority to guide the lower courts.
I have replaced footnotes in the article with links.