As this blog has often commented, the Supreme People’s Court (SPC) must serve the greater situation and deal with practical legal issues, so that the SPC itself and its senior leadership are correct, politically and professionally. One of those ways is by providing properly calibrated guidance to subordinates at the SPC, the lower courts and other related authorities that provide appropriate political signals. Some guidance is politically more important than others. In recent days (early February 2020), the SPC has done so through the following documents:
- Opinions on Strictly Punishing Violations and Crimes that Obstruct the Prevention and Control of the Novel Coronavirus Pneumonia Epidemic in Accordance with Law (Punishing Crimes and Violations of Obstruction Opinions); and
- Notification on Ensuring the Safety of Medical Personnel and Preserving a Positive Medical Order During the Period of Epidemic Prevention and Control (Ensuring Positive Medical Order Notification)
This blogpost will give a quick introduction to the first document. Its importance can be seen from the photo above, of the press conference at the Central Political-Legal Commission on 10 February, at which the Punishing Crimes and Violations of Obstruction Opinions was released and explained to select members of the press. That document was issued with the participation of the Commission on Comprehensive Governance of the Country by Law (Comprehensive Governance Commission, further explained here), Party Central Political-Legal Committee, SPC, Supreme People’s Procuratorate (SPP), Ministry of Public Security (MPS), and Ministry of Justice (MOJ). Fu Zhenghua, Minister of Justice and deputy head of the Comprehensive Governance Commission spoke first. Representatives from the other institutions also spoke.
The National Health Commission, SPC, SPP, and MPS issued the second document.
Both of them guide those in the criminal justice system to properly wield the “Big Stick” of the criminal law (and related administrative offenses) in the anti-coronavirus battle. The first document sends signals to the political leadership that the political-legal institutions are doing their part to fulfill the objectives that General Secretary Xi Jinping set in his 3 February speech
It is necessary to maintain a high-pressure situation, severely crackdown on illegal and criminal activities that disrupt social order, such as using the epidemic to drive up prices, hoarding, and looting, and severely crack down on the production and sale of counterfeit drugs, medical equipment, and medical and health materials. It is necessary to pay close attention to and resolve promptly all kinds of emerging problems, and to prevent all kinds of contradictions from overlapping and forming a chain reaction. (要保持严打高压态势，依法严厉打击利用疫情哄抬物价、囤积居奇、趁火打劫等扰乱社会秩序的违法犯罪行为，严厉打击制售假劣药品、医疗器械、医用卫生材料等违法犯罪行为。对各种苗头性问题，要密切关注、及时化解，严防各类矛盾交织叠加、形成连锁反应。)
What these documents are
The Punishing Crimes and Violations of Obstruction Opinions and the Ensuring Positive Medical Order are intended to provide guidance on certain violations of the criminal law and other related administrative offenses. They do not create new legal rules but signal to the lower criminal justice institutions how the relevant criminal (and public security administration penalty) laws should be applied in the politically sensitive anti-coronavirus battle. As a technical matter, both documents are classified as judicial document/judicial regulatory documents /judicial normative documents/judicial policy documents (司法文件, 司法规范性文件, 司法指导性文件, 司法正常性文件)(which I have written about previously).
As I have mentioned before, the SPC editors of a collection of those documents commented that “although judicial guidance documents are not judicial interpretations and cannot be cited in a court judgment document as the basis of a judgment, it is generally recognized that they have an important guiding impact on the trial and enforcement work of the courts at every level.” Titles included in the collection include “Opinions” (意见), “Decisions” （决定), Summaries” （纪要), “Notifications” （通知) Speeches （讲话), etc..
Some local high courts are starting to issue complimentary local guidance, with more detailed provisions, with the Jiangsu Higher People’s Court one of the early movers.
The document is divided into several sections. The first one, analogous to the opinion I analyzed recently, gives the political background, calling for the raising of the readers’ political stance, the strengthening of their “four consciousnesses,” the upholding of “four self-confidences,” and the implementation of the spirit of General Secretary Xi Jinping’s important instructions and Party central policies and arrangements.
The second section of the Punishing Crimes and Violations of Obstruction Opinions (which appears to have been primarily drafted by the SPC, judging by the document reference 法发〔2020〕7号, indicating it is from the SPC), is the substantive part of the document. It is further divided into 10 subsections, nine of which describes a particular type of crime that is to be strictly punished according to law. They include:
- crimes of resisting epidemic prevention and control measures; violence against medical personnel,
- making or selling fake protective goods, supplies, or medicines;
- fabricating or spreading rumors etc.
The first nine subsections describe one or more illegal acts that may occur. One example is subsection three, on the production or sale of shoddy prevention and protection goods or supplies or the production or sale of fake or shoddy medicines used in preventing the coronavirus. The Opinions state that where the requirements of the Criminal Law are met, the act should be punished as the crimes of production and sale of shoddy goods or medicines. So it is giving prosecutors and judges a steer on how the Criminal Law should be applied but does not in itself create new law.
Subsection 10 gives guidance on how the law is to be applied. If the acts listed in subsections 1-9 do not constitute a crime (based on existing criteria), the public security authorities are to impose public security administrative punishments under the Public Security Administration Penalties Law. The Opinions point to the following provisions:
false information disrupting public order; disrupting order at a unit or public venue; provocation; refusing to implement decisions and orders in an emergency; obstructing the performance of public affairs; breaking through police lines or instruments; striking others; intentional harm, insulting others, fraud, illegally digging or gathering gravel near railways, stealing or destroying public facilities near roads, destroying railway facilities and equipment, intentionally destroying property, looting public or property, and so forth; or the relevant departments are to give administrative punishments.
Importantly, when crimes or violations of the Public Security Administration Penalties Law occur during the period of epidemic prevention and control, it should be considered as an aggravating factor )(for punishment purposes). The stated purpose is to deter bad conduct “to lawfully embody the requirements of the crackdown policy, to forcefully punish and deter violations and crimes, to preserve the authority of the law, to preserve social order, and to preserve the security of the people’s lives and their physical health.”
For those in the criminal justice charged with enforcing these provisions, they need to refer to relevant judicial interpretations and other guidance (or in the case of public security officials, their regulations and other relevant documents)–the Opinions do not set out the elements of the relevant crimes.
Since this document was issued, some of the professional Wechat accounts on criminal law issues have published authoritative commentary pointing out practical problems with the legislation (law and judicial interpretations). The deputy head of the SPP’s research office published this (on the crime of obstructing contagious disease efforts), while a local procurator (nationally recognized) wrote this on several of the crimes (including refusal to comply with quarantine or leaving quarantine without permission). Judges and prosecutors (procurators) are concerned about making “mistakes,” as the responsibility system imposes expansive responsibility (described by two judges as “the sword of Damocles” over judges’ heads).
The third section relates to the relationship among the institutions involved, principles to be followed and gives apparently mixed signals which need to be understood together.
- Promptly investigate cases;
- Strengthen communication and coordination;
- Safeguard procedural rights;
- Strengthen publicity and education;
- Emphasize safety in handling cases.
The first is directed to the public security authorities, directing them to promptly investigate cases but also be civil, while the last subsection concerns the personal safety of those in the criminal justice system. The second subsection encourages the criminal justice authorities to communicate and coordinate better but cautions the public security organs to pay attention to the comments and recommendations by the procuratorate. It requires the authorities to focus on public opinion guidance in cases that have caught the attention of the public. Subsection three is one that contains apparently mixed signals, on the one hand emphasizing that defendants have the right to legal counsel, but at the same time, all levels of judicial administrative organs should strengthen guidance and oversight of lawyers’ defense representation. The fourth subsection illustrates some ongoing techniques of the Chinese justice system, in using typical/model cases to educate the public and deter them from criminal or illegal behavior, and voluntarily comply with the law and the authorities. The document says explicitly: “the broader public should be guided to obey discipline and law, to not believe and spread rumors, and to lawfully support and cooperate with epidemic control work.”