Supreme People’s Court wields the Criminal Law “Big Stick” in the Anti-Coronavirus Battle

Screenshot 2020-02-12 at 4.28.12 PM

Press conference at the Central-Political Legal Commission announcing the Opinions

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:

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.

Section 1

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.

Section 2

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).

Section 3

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.”

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.