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The “Soft Law” of the Supreme People’s Court

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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. 

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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.

2. Comments

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.

III. Conclusion

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.

Partial guide to Supreme People’s Court documents

The Supreme People’s Court (SPC) issues a range of documents as part of its authority to supervise the lower courts. The significance and authority of these documents is confusing to many, both in and out of China, in the world of practice, in academia, and in government, and of course among Chinese law students and graduates.

They are an illustration of how documents continue to be an important tool for Chinese governance, a fact it appears is often forgotten outside of China. “In current Chinese political life, governing the country by documents objectively exists” ( “在现实中国政治生活中,文件治国是一种客观存在”), from this 2017 article by Zhang Xuebo of the Central Party School’s Politics and Law Department.

This blogpost provides an updated consolidated (partial) guide through the forest of SPC judicial documents, drawing on my past research and analysis, not including judicial interpretations (司法解释). I will return to this topic in the future and will discuss judicial interpretations in a separate blogpost.  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. 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 attentive reader can discover from reviewing the documents on the website that this blogpost is not comprehensive.I will have more to say about all of these documents in the fullness of time, when I have an opportunity to explore the forest. The SPC issues many other documents as well, covering personnel and administrative matters, but this blogpost 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.

It is one of the special features of the SPC that so much time and effort is allocated to different types of “soft law,” likely linked to other features of the Chinese legal system.

Partial catalogue of SPC judicial documents

1.Opinions (意见)–In my view, 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’m likely to discover more categories of Opinions as I do further research.

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. This post has a summary of what opinions are, while another one focuses on how they are structured.  I have often written about this type of Opinion. 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.

Opinion Type 2: An Opinion issued solely by the SPC, that consolidates rules or guidance found in disparate documents and adds some new rules, focused 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.

Opinion Type 3: An Opinion also issued solely by the SPC, that sets out in normative form Party policy/judicial reforms, 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 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.

Opinion Type 4: the SPC is one of several issuing institutions. They do not create new legal rules but harmonize legal positions among institutions and for the courts, and clarify how the law should be applied. They also cannot be cited as the basis for a judgment or ruling. These are particularly common in the area of criminal law, and are 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)). (See more here).

2.  Conference summary/meeting minutes(会议纪要): the SPC uses specialized court conferences as a way of transmitting central legal policy, unifying or harmonizing court practices in accordance with that policy, and obtaining an overview of court practices and problems. Although conference summaries do not have the status of a judicial interpretation, the lower courts will generally decide cases according to its provisions. “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.” This post has a summary of what conference summaries are.

3. Professional judges meeting summary (法官会议纪要):  I have not yet written a blogpost focused on these. although I have mentioned them from time to time. I have several published collections of these in my library.  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. SPC, like other Party and state organs, handles requests for instructions (qingshi 请示). Although proposals have been published to either 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. See more here.

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), discussed here.

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  . 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.

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 despite ongoing criticism of “Western” law and legal concepts, the Chinese Communist Party and Chinese government finds it useful to borrow some of them for its own uses. (See more here.)

Transparency

According to the SPC’s rules on judicial interpretation work, judicial interpretations must be published.  As for the judicial documents listed above, not all are published, as there is no requirement to do so.  (I have more on this subject in an academic article on judicial transparency). As I have observed on this blog and in the article, 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 the approved judicial interpretation agenda, issued in the form of a notice from the General Office of the SPC. 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.  The SPC’s official website publishes some, but not all of the ones 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 here.

Other comments

Two additional comments on 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.Finally, I surmise that SPC decisions are or will become increasingly important as a form of guidance to lower court judges, especially with the formal implementation of the similar case guidance system.

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Those with corrections or comments or additions, please use the comment function or email me at supremepeoplescourtmonitor@gmail.com.  Many thanks to certain knowledgeable persons for spending some of their valuable free time commenting on earlier drafts of this blogpost.

 

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.