Practitioners’ Guide to China’s Criminal Law

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Criminal Law Treatise

This newly published volume 刑法注释书(Criminal Law Treatise), the first volume in a series of treatises for practitioners, is critical for understanding how Chinese judges and other practitioners approach China’s Criminal Law.  This reference work was edited by He Fan, head of the planning section of the Supreme People’s Court Judicial Reform Office.  He has a PhD in criminal law.  Earlier in his career was a policeman and a criminal court judge, so he has insights from the world of practice about what judges and others who need to understand the law on a particular crime correctly (正确). The idea from the volume arose from a project that he did with the Shanghai Higher People’s Court. And He Fan notes in his article introducing the book that the organizing principle for this book is influenced by a volume on Criminal Law edited by Hsu Yu-hsiu, former grand justice on Taiwan’s Constitutional Court and a handbook on search and seizure by Taiwan National University Professor Lin Yu-Hsiung. Both books draw on the approach of traditional Chinese criminal law books of setting out the statute provisions with annotations (注释).

The book assembles in a single deceptively small volume the principal sources of law and guidance that those involved in the criminal justice system in China need to access.

The organizing principle for the book is as follows:

  1. legislation–article of the law and any prior versions of the article, with any explanation (说明), including explanations of the amendment (立法-要点注释);
  2. Related legislation (相关立法);
  3. legislative interpretations (立法解释); (these are binding and have a higher status than judicial interpretations);
  4. Legislative opinions of an interpretive nature (立法解释性意见)–responses by the Legislative Affairs Commission (and its Criminal Law Office) on issues of criminal law.  These do not have a formal status under Chinese law, but are authoritative guidance. (Thank you to Changhao Wei, NPC Observer, for this comments on this) ;
  5. judicial interpretations (司法解释) (these can be by the SPC, the Supreme People’s Procuratorate (SPP), or the two together. These have a formal legal status under Chinese law and the SPC and SPP have declared that they have the status of law;
  6. judicial guiding documents (司法指导文件)–these are documents providing guidance on criminal law issues from the Central Political-Legal Commission, the SPC and its Research Office, various criminal divisions, SPP and its Policy and Research Office, and other related documents (as mentioned in the previous blogpost, these types of documents lack a formal status, but are highly authoritative);
  7. judicial interpretations–annotations司法解释-注释 and judicial guiding documents–annotations 司法指导性文件-注释–these are related “understanding and application” documents (相关文件理解与适用) authoritative explanations by the drafters of judicial interpretations and judicial guiding documents (previous blogposts have drawn on these “understanding and application documents”);
  8. If multiple judicial interpretations have been issued on an issue, annotations to each;
  9. Guiding cases–courts 指导性案例-法院 (translations available at the China Guiding Cases Project);
  10. Guiding cases–procuratorate指导性案例-检察 (translations of many available at Chinalawtranslate.com);
  11. SPC bulletin cases 法院公报案例 (I have written about the hierarchy various types of SPC approved cases in my Tsinghua China Law Review article);
  12. Court reference cases 法院参考案例 (these refer to the cases in Reference to Criminal Trial, the publication of the five criminal divisions of the SPC), also mentioned in my article and a January, 2018 blogpost;
  13. public security documents ( 公安文件)–documents of the Ministry of Public Security (MPS), the MPS legal affairs bureau, the economic crime investigation bureau and other related guidance documents).

“See inside this book”

 

Pushing women’s issues at the Supreme People’s Court

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Outside observers reading Chinese official media, including reports on the Supreme People’s Court’s website, need special skills to identify significant developments.   One of those small but significant developments is found in a 23 December 2018 report on the visit of Shen Yueyue, the head of the All-China Women’s Federation (Women’s Federation) to the Supreme People’s Court, pictured above. The women’s rights and interests department of the Women’s Federation must have prepared the list of issues that she raised.  The crucial paragraph reported:

…the Women’s Federation hopes to further strengthen exchanges and cooperation with the Supreme People’s Court. The first is to strengthen protection from the source [deal with the source of the problem], fully consider the special interests and potential impacts on women in the process of judicial interpretation, and jointly promote the establishment of a gender equality assessment mechanism. The second is to follow the legislative process, strengthen cooperation in the preparation of the Civil Code, and jointly propose legislative proposals to protect rural women’s land rights, prevent and stop gender discrimination in employment, and promote the improvement of the legal system for women’s rights and interests. The third is to focus on key areas, strengthen cooperation in the reform of the family trial system, improve the diversified solution mechanism of contradictions and disputes, and play the role of the people’s mediation committee, and promote the prevention and resolution of marriage and family disputes. Fourth,  jointly promote the resolution of prominent problems in judicial protection of women’s rights and interests, and effectively resolve prominent problems which women are concerned. [沈跃跃表示,全国妇联希望与最高人民法院进一步加强交流合作。一是加强源头保障,在司法解释制定过程中充分考虑女性的特殊利益和潜在影响,共同推动建立性别平等评估机制。二是紧跟立法进程,加强在民法典分编制定中的合作,共同向立法机关提出保障农村妇女土地权益、预防和制止就业性别歧视等立法建议,推动完善妇女权益保障法律体系。三是关注重点领域,在推进家事审判制度改革、完善矛盾纠纷多元化解机制、发挥人民调解委员会作用等方面加强合作,推动婚姻家庭矛盾的预防和化解。四是坚持问题导向,共同促进妇女权益司法保护突出问题和妇女关心关切现实问题的有效解决.]

Some brief comments below on some of the many issues:

  1.  Special interests of women in drafting judicial interpretations

This may be linked to the five-year plan to implement socialist core values into judicial interpretations discussed in this earlier blogpost. The report did not mention the official reaction to having a gender equality assessment mechanism incorporated into the SPC’s judicial interpretation drafting process or other improving the consideration of women’s interests.

As mentioned in the blogpost, the plan includes amending and improving judicial interpretations related to the Marriage Law and family law, etc.  As Professor Yang Lixin of Renmin University (formerly an SPC judge) assesses the state of the law and related issues in this forthright analysis.  He comments on  the state of Chinese family law: …”the legal concepts of the Marriage Law and the Inheritance Law are relatively backward, which is the main problem of current family law.” Professor Yang goes on to discuss a number of family law issues that Chinese law fails to deal with, but affect Chinese women (and other women living in China).

Professor Yang had this to say about de facto marriage (what we Americans sometimes call “common law” marriage) (or what my (late) father called “living in sin.”)  “The concept of de facto marriage is completely abolished in the field of civil law. However, it is particularly contradictory that in criminal law, it is recognized that defacto marriage is a marriage relationship…When sanctions are imposed on the parties, the factual marriage relationship is recognized. When the rights are recognized, the de facto marriage relationship is not recognized. This is a completely contradictory application of law.

He had this to say about another issue for many Chinese women–children born out of wedlock (The Economist, among other major media, have written on this):

China’s current Marriage Law does not provide for claims by children born out of wedlock and does not stipulate that children born within a marriage can be denied status as children of the marriage.  Children born out of wedlock are born from extramarital sex, that is, children are born out of wedlock, and the child or the mother must have the father to claim the child as a child…For example, a child born out of wedlock needs to be raised, and the mother is unable fully to support the child. She has reason to seek to confirm that the father of the child is the father, and then ask him to support the child. This kind of thing does occur, but our marriage and family law has not had such a rule until now. It is because we have socialist marriage values, we can’t engage in extramarital affairs, we can’t have children born out of wedlock, and the establishment of such a system is tantamount to acknowledging the legitimacy of such behavior.

Among the many concerns is that forthcoming judicial interpretations of the Marriage Law, designed to incorporate socialist core values to protect the stability of the family unit in Chinese society, could disadvantage women.

2.  Strengthen cooperation in the preparation of the Civil Code and promote the legalization of women’s rights protection

As fellow blogger Mark Cohen and I have reported earlier,  the SPC set up a civil law codification team, with Justice Du Wanhua taking the lead.  It appears that Professors Xia Yinlan of the China University of Political Science and Law and Li Mingshun of China Women’s University (among others) are working with the Women’s Federation and other scholars to seek to ensure that women’s rights are protected, as socialist ore values will also be integrated into the drafting of the Civil Code.

3. Legislative proposals to protect rural women’s land rights;

How to ensure that the rights of rural women to land are protected is a major problem, particularly now that the Chinese government is focusing on policies that marketize rural land interests.  Professor Li Huiying of the Communist Party’s Central Party School has been a major force in pushing national attention to this issue.  She wrote:

some people are farmers, but have no rights to get the contracted lands due to their “gender” or the identity “additional population”….

Firstly, 18 percent of married rural women do not have their names mentioned on either their parent’s families or their husband’s families land contracts.

Nearly 53 percent of married rural women’s land contracts were canceled by their home villages, according to an investigation among 1,126 such women in 21 provinces and municipalities nationwide, as conducted by the Center for Women’s Studies at Party School of the Central Committee of the CPC in 2014.

The National People’s Congress Standing Committee adopted an amendment to the Rural Land Contracting Law last December, mandating that rural women’s names be included in their families’ certificates of land contracting and management rights, so it is likely that Ms. Shen had other legislation and enforcement of this newly amended provision in mind.

4. Prevent and stop gender discrimination in employment

This is a long-term problem, reported not only the media, academia, but also by the business community.  The SPC  recently amended the civil causes of action to enable discrimination claims, but the substantive standards for discrimination are still lacking. It seems likely that multi-year discussions with the SPC headed by Ms. Gao Shawei, head of the Women’s Rights and Interests Department of the Women’s Federation were behind the inclusion of discrimination claims in the list of civil causes of action. She was quoted in this 2016 article in People’s Court Daily making that suggestion.  As mentioned in an earlier blogpost, the SPC is drafting a judicial interpretation of the Labor Contract Law, and it is conceivable that standards would be incorporated into that draft.

5. strengthen cooperation in the reform of the family court system; improving the systems for trying family-related cases and mediation

The SPC has been working on reforms to the family court system for some time, as previously reported and improving the use of mediation, but the obstacles are immense, as this interview with a local family court judge describes.  The court where she works is actually among the courts piloting family court reforms, as further described by the head of her court.  He provides a chart with statistics, not labeled as being from his court, but clearly from there (the blue column is the number of family disputes; the red, the number of divorce cases; the green, the number of divorce cases settled by mediation; and the purple column the number of cases in which the couple dropped their suit after a mediated settlement):Screenshot 2019-01-23 at 12.27.08 PM

 

 

 

The Supreme People’s Court and interpreting the law, revisited

Marriage law judicial opinion

Marriage law judicial opinion

The topic of the Supreme People’s Court and the interpretation of law is one that vexes many, legal practitioners and academics alike.  Although the Chinese constitution vests the power to interpret law with the Standing Committee of the National People’s Congress (NPC SC), the Supreme People’s Court (the Court) and the Supreme People’s Procuratorate (SPP) actively issue interpretations of law. The Court more so than the SPP, because it deals with a broader range of legal issues.  These interpretations of law are critical to the operation of the Chinese legal system because national law tends to set out broad principles that require additional legal infrastructure to be workable and the courts, in particular, need that legal infrastructure to decide cases.

A 1981 decision by the NPC SC delegated to the Court the authority to interpret law relating to questions involving the specific application of laws and decrees in court trials, while the Supreme People’s Procuratorate (SPP) was delegated authority to interpret law relating to questions involving the specific application of laws and decrees in procuratorial work.  The Organic Law of the People’s Courts re-iterates the delegation of authority to interpret law to the Court. Oddly enough, the principle is not in the Organic Law of the People’s Procuratorates. Interpretations by both the SPP and the Court are known as “judicial interpretations.”

In 2015, the Legislation Law, which had previously not addressed interpretation of law by the Court and the SPP, addressed the issue in Article 104.  This article is taken as intended to codify existing practice, because the explanation of the law recognizes the practical necessity of judicial interpretations:

  • “Interpretations on the specific application of law in adjudication or procuratorate work issued by the Supreme People’s Court or Supreme People’s Procuratorate shall primarily target specific articles of laws, and be consistent with the goals, principles and significance of legislation.”
  • It requires the Court (or SPP) in the situation described in the second paragraph of Article 45 of the Legislation Law (where the NPC SC  gives interpretations of national law), to submit a request for a legal interpretation, or a proposal to draft or amend relevant law, to the NPC SC.

(The explanation of the law  (legislative history) provides further background).

The process for drafting Court interpretations described in the 2007 regulations requires that the views of the relevant special committee or department of the NPC SC be solicited during the drafting process, and there would be pushback from the NPC SC if it was considered that the judicial interpretation had gone ‘too far.’

What types of judicial interpretations are there?

The 2007 Court regulations on judicial interpretations (linked here)  limit judicial interpretations to the following four types:

Those 2007  regulations set out various procedures for drafting and promulgating judicial interpretations, including a requirement that they be approved by the Court’s judicial committee and be made public.  As discussed in earlier blogposts, broad public consultation may be done if it affects the “vital interests of the people or major and difficult issues. These regulations also provide that judges may cite judicial interpretations as the basis for a court decision or ruling. Article 23 of the 4th Five Year Court Reform Plan mentions reform of judicial interpretations:

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. Reform and improve mechanisms for the selection, appraisal and release of guiding cases. Complete and improve working mechanisms for the uniform application of law.

As discussed in earlier blogposts, the Court also issues other documents with normative provisions that do not fit the above definition.  Those will be discussed separately.

Supreme People’s Court “soft consults” on company law

L0U[3WLR5~U}00CSV6VUSZLThe Supreme People’s Court often organizes experts meetings (论证会) when drafting judicial interpretations, which are analogous to what in Hong Kong is called “soft consultations” (closed door consultation with market participants).

In late March, the Shenzhen Court of International Arbitration (SCIA)  and the #2 civil division of the Supreme People’s Court held a experts meeting in Shenzhen to obtain comments from the market on a draft of the #4 interpretation on company law. It was attended by a packed roomful of SCIA arbitrators (as attested by these photos from the report on the SCIA website). Participants included lawyers from the Shenzhen Stock Exchange (SSE), chief counsel for listed companies (primarily on the SSE), law firm partners with a broad range of clients, and the author of this blog.

Judge Wang Dongmin of the #2 Civil Division chaired the half-day proceedings. Vice President of the #2 Civil Division, Yang Yongqing, and Judge Liu Min of the #1 Circuit Court [Tribunal] based in Shenzhen, and other Supreme People’s Court judges also attended.

The review of the draft proceeded in five sections, mirroring the sections of the draft:

  • when can a court declare invalid or cancel a decision of a board of directors/shareholders meeting;
  • procedures by which a shareholder’s right to know can be enforced;
  • how can a shareholder enforce his right to have profits distributed;
  • issues related to the transfer of shareholding;
  • issues related to derivative litigation.

The commentators raised some issues not previously raised in previous experts meetings, as well as a broad variety of drafting comments, and practical issues, including many relating to cross-border issues.

The judicial interpretation is being drafted to provide guidance to the lower courts (and the market) in hearing cases concerning these basic company law issues that the Company Law itself does not yet address in sufficient detail.  We look forward to a revised draft being issued for public comment, so that the drafting team can receive an even broader range of comments.

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Supreme People’s Court interprets the Civil Procedure Law

2On 4 February the Supreme People’s Court (Court) issued a comprehensive interpretation of the 2012 Civil Procedure Law, with 552 articles, longer than the 294 articles in the law itself.  It creates a much more sophisticated body of civil procedure law.  The Court has been working on this interpretation for over two years. As is usual, the Court held a press conference to explain its significance. The text of the press conference, in which the Court spokesman and Judges Du  Wanhua and Sun Youhai spoke, is also available on the Court’s website. A few of the highlights of the interpretation:

  • More detailed section on evidence, including recordings, reflecting the longer term work underway to draft an evidence code.
  • A new section on public interest litigation, in relation to environmental, consumer cases and other such cases.  The organization must show prima facie evidence of harm to the public interest. Other organizations and administrative agencies can apply to be joint plaintiffs.
  • Much longer section on foreign related issues, including provisions concerning foreign language evidence (translations should be provided), and if the parties disagree on the translation, they should agree on a third party translation agency.
  • Permission of the court is required to tape, video, or provide live posting on social media.
  • Many provisions relating to divorce of [former] Chinese citizens who have settled outside of China.
  • Section on small claims procedure.

More analysis to follow.

The Supreme People’s Court on domestic violence legislation

copyright Shenzhen

(originally published here)

In its 29 August Wechat feed (which reproduced an article  published in the People’s Court Newspaper), the Court issued an update on domestic violence legislation, focusing on Shenzhen’s draft Anti-Domestic Violence Regulations (Domestic Violence Regulations).  The Domestic Violence Regulations have been incorporated into Shenzhen’s legislation plan and is intended to be adopted by year’s end.

The update highlights a conference earlier in August in Shenzhen that attracted over 160 experts from all over China to discuss an initial draft of the legislation.  Mark Obama also spoke at the conference.

It is likely that members of the group responsible for drafting the Court’s judicial interpretation on domestic violence participated in the conference.  As is often the case (and was noted in the update), Shenzhen is taking the lead in issuing promulgating legislation, serving as a pilot project for national legislation. Twenty nine localities have adopted domestic violence-related policies or local legislation.

Shenzhen domestic violence conference

Shenzhen domestic violence conference

This brief blogpost will highlight the following issues raised by the report:

  • Disturbing domestic violence statistics;
  • Details on the draft legislation; and
  • Status of the Court’s domestic violence judicial interpretation.

Domestic violence statistics

The above article and other articles reporting on the Shenzhen conference have provided disturbing statistics on domestic violence.

  • Domestic violence occurs in about 25% of Chinese families;
  • About 10% of juvenile offenders were raised in abusive families (statistics on this issue seem to vary widely);
  • 30% of victims of domestic violence in China (women, children, and elderly) are afraid to speak out against their abusers;
  • The Shenzhen Women’s Federation provided statistics on local (Shenzhen) domestic violence:
    • it occurs in 55 percent of Shenzhen homes among people aged 28-50;
    • 85.8 percent of violent incidents occur between married couples;
    •  93.9 percent of these are cases of husbands being violent towards their wives.
  • A examination of 300 cases reviewed by the NGO Beijing Children’s Legal Aid & Research Center revealed that:
    • 65% of children had been subject to corporal punishment;
    • of 32 cases of child sex abuse, 75% were committed by guardians, with about half committed by fathers.

 Draft legislation issues

Reports on the draft Shenzhen legislation have highlighted the following issues among others:

  • Scope of the persons protected by the legislation–whether persons living together, intimate partners, former spouses or partners should be covered–the initial draft of the Shenzhen Women’s Federation excluded these relationships.  Xu Ruishan, of the Shenzhen Municipal Procuratorate recommended that the legislation protect persons living together and former spouses from domestic violence, because of the prevalence of couples living together without marriage, while Professor Tao Lin, Secretary General of the Shenzhen Family Planning Association, recommended protecting intimate partners, because of the frequent violence in those relationships.
  • The type of domestic violence to be covered by the legislation, whether it should include economic, emotional, and sexual violence, as well as physical.

Status of the domestic violence judicial interpretation

Although the status of the Court’s judicial interpretation (discussed in an earlier blogpost) was not specifically addressed, in the article, Zhou Feng, the head of the #1 Criminal Division of the Court revealed his views that:

  • domestic violence offenses should be able to be either publicly or privately prosecuted;
  • a mandatory and voluntary reporting system should be instituted for entities and individuals who become aware of domestic violence (this is generally seen in domestic violence legislation internationally).

It may be that the timing of the issuance of the domestic violence judicial interpretation is related to the timing of the promulgation of national domestic violence legislation, but Court spokesmen have not been forthcoming on this issue.

Further details on the Shenzhen draft legislation

If anyone reading this blogpost has a copy of the draft Shenzhen legislation, attended the Shenzhen conference, or has further information on the status of the domestic violence judicial interpretation and is willing to share details about them, please use the comment function. Thank you!

And finally, the Supreme People’s Court Monitor thanks followers for their patience during the blog’s downtime. Future posts will address some of the many recent developments.

Seen on the China Policy Institute Blog of the University of Nottingham

supreme_court_civil_case-400x210 The Supreme People’s Court Observer published (by invitation)  Using Model Cases to Guide the Chinese Courts on the blog of the China Policy Institute of the University of Nottingham. The post discusses:

  • what model cases are;
  • which courts issue them;
  • the authority of model cases;
  • recent model cases the Court;
  • why the Court (and the lower courts) are using them; and
  •  trends in the use of model cases.