How the Supreme People’s Court uses case law & other sources when it guides the lower courts

As my fellow blogger, Jeremy Daum and I have written, China’s guiding case system has captured the attention of the world outside of China, likely due to a combination of the special status accorded guiding cases by the Supreme People’s Court (SPC) and the impressive efforts of Stanford Law School’s China Guiding Cases Project.  One of the ways that the SPC supervises and guides the lower courts is by publishing handbooks to aid the lower courts in quickly determining the applicable legal rules in a system in which a comprehensive legal code is the ideal but not the reality. One of those handbooks is the set of books pictured above, the Collection of the Supreme People’s Court’s Judicial Rules  (Collection of Judicial Rules) (最高人民法院司法观点集成), published by the People’s Court Press, now in its 2nd edition. A closer look at the Collection of Judicial Rules provides insights into sources of law used by the SPC, and China’s evolving case law system, including the place of guiding cases

As described by Judge Liu Dequan, the general editor, the sources include;

  1. Judicial interpretations;
  2. the spirit of judicial policy (from the speeches of the SPC president and vice presidents responsible for the substantive area);
  3. responses (答复) issued by the various divisions of the SPC;
  4. opinions (意见), answers, (解答),trial case handling guidance (审判办案指南) research opinions of the research office (研究意见) and other guidance issued by the various divisions of the SPC and speeches given by the heads of those divisions at national court conferences (these blogposts summarized the takeaways from some court conferences);
  5. guiding cases, SPC cases, SPC bulletin cases.
  6. Supplemented by the principal views of SPC judges and writings of SPC judges.

Below are samples from one of the volumes on administrative law:

A party that disputes compulsory measures imposed by the family planing authorities to freeze property, limit personal freedom etc. can file administrative litigation (#22)

The response cites a 1996 judicial interpretation, supplemented by a selection from a book by Judge Jiang Bixin and Liang Fengyun,  that confirms that the courts may accept such cases.

The act of issuing a transcript and diploma by a higher education institution is within the scope of administrative litigation (#42)

The editors cite the 2014 administrative litigation trial case handling guidance and several SPC bulletin cases. The case guidance provides that when higher education institutions issue transcripts, diplomas, and expel students, they are acting under authority delegated by law, and so those are administrative acts which a party may challenge under administrative litigation law.

The editors then set out the bright line rule (要旨) set out in several SPC Bulletin cases: Tian Yong v. Beijing Science & Technology University (1999) (re-issued as guiding case #38) and Yang Baoxi v. Tianjin Clothing Technical School (2005);

Then they cite several administrative trial guiding cases, including Wu Huayu v. Central China Agricultural University.

If there is a conflict between laws, the hearing of the case must be suspended while a response to request for instructions is received from the SPC (#351)

The editors set out a 1996 response of the SPC (made after consultation with the State Council Legislative Affairs Office) to the Fujian Higher People’s Court concerning the exploitation of geothermal water resources.

The editors then set out a SPC Bulletin case, Fujian Hydropower Design Institute disputes an administrative penalty decision by the Provincial Land & Mining Department, summarizing the bright line rule (as above). The editors then supplement the cases with an excerpt from the publication by Judges Jiang Bixin and Liang Fengyun mentioned above.

Comments

The sources used by the SPC judges in compiling the handbook may (or may not) be surprising to a foreign observer–such as the speeches by court leaders and various types of responses by SPC divisions that have no publication requirement. These sources appear to reflect SPC practice and do not seem to be consolidated into some type of legal rules.  While the SPC’s transparency is far greater than before (especially for a person with historical perspective), there are still significant gaps that face lawyers, litigants, not to mention researchers.

The SPC sees its case law system (still evolving) as a supplement to judicial interpretations.  The drafting process for judicial interpretations is a slow one (take the example of the demand guarantee judicial interpretation).  It can easily take several years for an interpretation to be finalized, particularly in the area of civil and commercial law, because SPC judges working on these interpretations must take into account comments from a large variety of interested parties. The rules set out in judicial interpretations must be able to stand the test of time and adjustments to government policies.  Case law is seen as filling in the gaps.  But as can be seen from the excerpt from the handbook above, and recent comments by SPC Vice President Tao Kaiyuan, the 77 guiding cases, while having an anointed place in that case law system, are one part.  Justice Tao Kaiyuan’s comments also reveal that case law, including guiding cases, is seen as being useful for the drafting of judicial interpretations:

The construction of the case guidance system [Chinese case law] is not to create a new legal source, but to…uncover the broader consensus of the industry, to further refine legal rules and to provide better law for society. It is also expected to lay the foundation for the drafting of judicial interpretations.

Tao Kaiyuan pointed out that the Supreme People’s Court Intellectual Property Case Guidance Research (Beijing) base is creating a guidance system for intellectual property cases with SPC Guiding Cases, cases published in the SPC Bulletin and cases published by the SPC’s Case Research Institute [under the auspices of the National Judicial College], and issued model (typical) cases, are an interactive mutually complimentary whole (是相辅相成、互为补充、互联互动的整体). The function of the intellectual property case guidance system is to enhance the predictability of the judiciary by establishing an intellectual property case guidance system to promote the unity of judicial standards.

Year end 2016 judicial statistics that will be issued in President Zhou Qiang’s report to the National People’s Congress will document that the number of cases, particularly civil and commercial cases, in the Chinese courts continues to rise at a rate that far exceeds China’s GDP.  Case law, including guiding cases, is one source of legal rules that Chinese judges consider when dealing with those cases, whether deciding whether a case should be accepted, seeking to mediate a case, deciding a case, or enforcing a court judgment or ruling.

 

 

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.

4th Plenum and the Supreme People’s Court

4th plenum voting

4th plenum voting

According to the Wechat postings of one of its members, the judicial reform office of the Supreme People’s Court has been working overtime for months to prepare for the 4th Plenum.  It appears, at least from the initial 4th Plenum communiqué, that the hard work has paid off.  We will know more about the leadership’s plans for legal reforms when the full decision is released.  Four quick questions about the communique are set out below (to be supplemented as time permits).

Some questions for the Supreme People’s Court and the judiciary:

1.The communique stressed the need for improving the quality of legislation, including incorporating more public consultation and experts.  Will this reduce the need for judicial interpretations? What will this mean for the drafting of judicial interpretations?  Will the Supreme People’s Court require public consultation for its own judicial interpretations?  The release this month of drafts for public comment of the environmental public interest litigation regulations and the trademark validity administrative case rules are a step in the right direction.

2. The communique called for greater judicial transparency, as was highlighted in the Court’s 4th Five Year Reform Plan.  In its press releases to the domestic audience, the Supreme People’s Court has mentioned the visits it has hosted of the foreign press, foreign diplomats, and ordinary citizens, and of analogous events at the local level.  When can we look forward to easier access by all (foreign or domestic) to proceedings in the Chinese courts (at least in non-sensitive cases)?

3.  The communique indicated approval by the leadership of the establishment of circuit courts that cross administrative lines, a concept mentioned in the 4th Five Year Reform Plan (see this earlier blogpost).  It also reflects the use in China of foreign legal concepts or frameworks (as is frequently stressed, a reference and not as a transplant).

4.  It also called for an end to “interference” by leading cadres in specific court cases.  How will this long-standing practice will be curbed?  In recent weeks, articles have appeared in the legal press on changes to the Party Political Legal Committees. Will those changes imply less involvement in actual cases? And what is the distinction between “interference” and “leadership”?