Supreme People’s Court’s 2019 judicial interpretation agenda (II)

photo from an unrelated press conference at the SPC

As discussed in two blogposts in 2018, the Supreme People’s Court (SPC) has a yearly plan for drafting judicial interpretations, as set out in its 2007 regulations on judicial interpretation work. The plan is analogous to the legislative plans of the National People’s Congress (NPC) and its Standing Committee. Judicial interpretations, for those new to this blog, are binding on the SPC itself and the lower courts, and fill in some of the interstices of Chinese law (further explained here).  On 29 April 2019, the SPC’s General Office issued a document setting out a list of 47 judicial interpretation projects, 36  with an end of 2019 deadline (see the previous blogpost), and 11 with a deadline set for the first half of 2020 (set out below).  The list details the projects for which the SPC judicial committee had given project initiation/approval (立项), designating one or more SPC divisions/offices with primary drafting responsibility (this process to be detailed in a forthcoming article).  It appears to be the second time this type of document was publicly released.  If so, it is a concrete step in increasing the SPC’s transparency. The projects, deadlines, and some brief comments (some longer than others) follow below

(“Project initiation”/”project approval” is a procedure well-known to those of us who have been involved in foreign investment projects in China, where it involves approval from the planning authorities, primarily for infrastructure projects, but is an initial procedure used by regulatory authorities of all types, Party and state. For the SPC, it reflects one of the “planned economy” aspects of the way it operates.

Deadline of the first half of 2020:

  1. Provisions on Issues Concerning the Electronic Service of Legal Instruments (关于电子送达法律文书若干问题的规定). Responsibility of the Case Filing Division. This has been flagged for some years.
  2. Amending the 2013 joint SPC and Supreme People’s Procuratorate Interpretation on Several Issues Concerning the Handling of Criminal Cases Involving  Food Safety (关于修改《关于办理危害食品安全刑事案件适用法律若干问题的解释》的决定). Responsibility of the #1 Criminal Division.
  3. Interpretation on Several Issues Concerning the Application of Laws in Handling Criminal Cases Involving the Administration of Tax Collection (关于办理危害税收征管刑事案件适用法律若干问题的解释). Responsibility of the #4 Criminal Division.
  4. Interpretation Concerning the Application of Law in Cases of Disputes over the Infringement of Trade Secrets (关于审理侵犯商业秘密纠纷案件应用法律若干问题的解释). Responsibility of the #3 Civil Division. This judicial interpretation is flagged in the recently issued (November, 2019) Party/State Council document on improving intellectual property rights protection (Explore and strengthen effective protection of trade secrets, confidential business information and its source code etc. Strengthen criminal justice protection and promote the revision and the amendment and improvement of criminal law and judicial interpretations 探索加强对商业秘密、保密商务信息及其源代码等的有效保护。加强刑事司法保护,推进刑事法律和司法解释的修订完善). (“Brother” blogger Mark Cohen’s comments on the document found here.)Given the worldwide attention to this issue, I would expect that a draft will be issued for public comment.
  5. Interpretation on Several Issues Concerning Punitive Damages for Intellectual Property Infringement (关于知识产权侵权惩罚性赔偿适用法律若干问题的解释). Responsibility of the #3 Civil Division. Although recent publicity by the Chinese government has linked implementing punitive damages to the recent Party/State Council document on protecting intellectual property rights and the draft implementing regulations for the Foreign Investment Law, the 2018 Party/State Council document on improving intellectual property litigation had already mentioned this.  Given the worldwide attention to this issue, I would expect that a draft will be issued for public comment.
  6. Provisions on Issues Concerning the Application of the Foreign Investment Law of the People’s Republic of China (I) (关于适用《中华人民共和国外商投资法》若干问题的规定(一)). Responsibility of the #4 Civil Division. Given the worldwide attention to this issue, I hope that a draft will be issued for public comment.
  7.  Provisions on Several Issues Relating to Open Court Sessions of the People’s Courts on the Internet (关于人民法院互联网公开庭审过程若干问题的规定).  Responsibility of the Trial Administration Office.  I have an unpublished article on issues involved with the streaming of court hearings, prepared for an academic conference at which I gave a presentation three years ago. The paper (drawing on research within the court system) raises problems I have not seen mentioned by anyone writing in English.
  8. Interpretation Regarding the Application of the Criminal Procedure Law of the People’s Republic of China (关于适用《中华人民共和国刑事诉讼法》的解释). Responsibility of the Research Office.  I have a forthcoming academic article on the procedure underlying the drafting of this judicial interpretation, derived from a conference presentation I made almost two years ago.  The article was finalized early this year. I’m hoping it will be published next year.  I trust it won’t be out of date…
  9. Interpretation on Several Issues Concerning the Realization of Security Interests (.关于担保物权实现程序若干问题的解释). Responsibility of the Research Office. A practical issue for financial institutions, lawyers, and others.
  10. Issues in the Handling of Judicial Technology Cases (关于办理司法技术案件若干问题的规定). Joint Responsibility of the Research Office, Trial Administration Office, and Judicial Equipment Administration Bureau.
  11. Issues Concerning the Forensic Identification and Evaluation of the People’s Courts (关于人民法院司法鉴定若干问题的规定). Joint Responsibility of the Research Office, Trial Administration Office, and Judicial Equipment Administration Bureau.

I’d welcome comments by persons with further information about any of the above draft judicial interpretations.

Supreme People’s Court’s 2019 judicial interpretation agenda (I)

photo from an unrelated press conference at the SPC

As discussed in two blogposts in 2018, the Supreme People’s Court (SPC) has a yearly plan for drafting judicial interpretations, as set out in its 2007 regulations on judicial interpretation work. The plan is analogous to the legislative plans of the National People’s Congress (NPC) and its Standing Committee. Judicial interpretations, for those new to this blog, are binding on the SPC itself and the lower courts, and fill in some of the interstices of Chinese law (further explained here).  On 29 April 2019, the SPC’s General Office issued a document with a list of 47 judicial interpretation projects, 36  with an end 2019 deadline (set out below), and 11 with a deadline set for the first half of 2020 (set out in this blogpost).  The document details the projects for which the SPC judicial committee had given project initiation/approval (立项), designating one or more SPC divisions/offices with primary drafting responsibility (this process to be detailed in a forthcoming article).  It appears to be the second time this type of document was publicly released.  If so, it is a concrete step in increasing the SPC’s transparency. The projects, deadlines, and some brief comments (some longer than others) follow below. Some of the interpretations listed below are ones that Jiang Qibo, head of the Research Office, mentioned in 2018, as being linked to socialist core values (see my 2018 blogpost), although as I commented then, many are linked to the SPC’s need to “serve the greater situation” while at the same time seeking to deal with many of the difficult legal issues that face the courts.

(“Project initiation”/”project approval” is a procedure well-known to those of us who have been involved in foreign investment projects in China, where it involves approval from the planning authorities, primarily for infrastructure projects, but is an initial procedure used by regulatory authorities of all types, Party and state. For the SPC, it reflects one of the “planned economy” aspects of the way it operates.

Close observation reveals that some interpretations were listed last year, indicating that drafts were not ready for approval last year.  Some of the reasons for slippage are likely to be:

  • the issues turn out to be more complicated (substantively or otherwise);
  • judges have less time to work on judicial interpretation drafting with an increased caseload and document study;
  • many experienced SPC judges have been dispatched to circuit courts, leaving fewer at headquarters to work on judicial interpretations; and
  • timing may also be a factor.

Deadline of end 2019

  1. Regulations on pre-filing property protection provisional measures (关于办理诉前财产保全案件适用法律若干问题的解释 ), a type of pre-filing injunction.  These regulations are for non-intellectual property (IP) cases. Responsibility of the Case Filing Division.
  2. Provisions on Several Issues Concerning Preventing and Punishing False Lawsuits, Malicious Lawsuits, and Vexatious Litigation (关于防范和惩治虚假诉讼、恶意诉讼及无理缠诉若干问题的规定). Responsibility of the Case Filing Division.
  3.  Provisions on Regulating the Execution of Death Penalties and Related Issues (关于规范死刑执行及相关问题的规定) (Responsibility of the #1 Criminal Division).  The original deadline was the first half of this year. Apparently, this will focus on more setting out more detailed guidelines concerning how the death penalty is implemented, linked to the Criminal Procedure Law and the SPC’s interpretations of the Criminal Procedure Law;
  4. Interpretation of the Supreme People’s Court and the Supreme People’s Procuratorate on Several Issues Concerning the Application of Law in the Handling of Criminal Cases Involving Corruption and Bribery (II) (最高人民法院、最高人民检察院关于办理贪污贿赂等刑事案件适用法律若干问题的解释(二). Responsibility of the #2 Criminal Division. It likely updates the 2016 interpretation to reflect the establishment and operation of the National Supervisory Commission and addressing issues that have arisen in practice.  Issues to be covered likely include ones discussed in issued #106 of Reference to Criminal Trial (刑事审判参考,the journal of the SPC’s five criminal divisions, mentioned here).  Responsibility of the #2 Criminal Division, but it is likely that the supervision commission will be/is one of the institutions providing input.
  5. Interpretation of the Supreme People’s Court and the Supreme People’s Procuratorate on Dereliction of Duty (II) (最高人民法院、最高人民检察院关于办理渎职刑事案件适用法律若干问题的解释(二)).  Was on last year’s list with an end 2019 deadline. I noted last year that it was likely updating interpretation (I) in light of the anti-corruption campaign and the establishment of the National Supervision Commission. Issues likely flagged in Reference to Criminal Trial.
  6. . Interpretation on Several Issues Concerning the Application of Law in the Trial of Criminal Cases Involving Concealing and Harboring Criminals (关于审理窝藏、包庇刑事案件适用法律若干问题的解释). These provisions occur in various parts of the Criminal Law and are also mentioned in the organized crime opinion discussed in this earlier blogpost. Drafting responsibility of the #4 Criminal Division;
  7. Interpretation on Several Issues Concerning the Application of Law in the Trial of Cases Involving Restrictions on Commutation of Suspended Death Penalties (关于审理死刑缓期执行限制减刑案件适用法律若干问题的解释), Interpretation on limiting commutation during the period of the suspension of death sentences. See related research in English and Chinese. The #5 Criminal Division is responsible for this.
  8. Interpretation on Several Issues Concerning the Application of Law in the Trial of Cases Involving Enforcement Objection Actions (关于审理执行异议之诉案件适用法律若干问题的解释). It previously had a deadline of the end of 2018, related to the campaign to basically resolve enforcement difficulties within two to three years. Drafting this is a task for the #1 Civil Division. A draft of this interpretation was issued for public comment on 30 November (the draft and details of how to submit comments found here.)
  9. Interpretation on Evidence in Civil Procedure, Responsibility of the #1 Civil Division (关于民事诉讼证据的解释).  Another interpretation deadline has slipped by one year. A draft was distributed in 2016. Many new issues have arisen because of the prevalence of electronic evidence.
  10. Interpretation on Several Issues Concerning the Application of Law in the Trial of Cases of Civil Disputes over Food Safety (关于审理食品安全民事纠纷案件适用法律若干问题的解释). Responsibility of the #1 Civil Division. The deadline has slipped by one year.  A draft was recently issued for public comment.
  11. Interpretation on Several Issues Concerning the Application of Law in the Trial of Labor Dispute Cases (V) (关于审理劳动争议案件适用法律若干问题的解释(五)).   It likely dealing with some of the most pressing labor law issues facing the courts that are not covered by the preceding four interpretations or relevant legislation. The #1 Civil Division is in charge of drafting. Judge Xiao Feng of that division posted his slides from his lecture at the National Judges College earlier this year flagging the three principal issues in that draft. His slides provide an overview of those three issues: linking of labor arbitration with litigation; substantive law issues; procedural law issues. Substantive law issues include determining whether the parties are in a labor relationship; procedural issues include the burden of proof concerning overtime.
  12. Issues Concerning Civil and Commercial Disputes over Bank Cards (关于审理银行卡民商事纠纷案件适用法律若干问题的解释), Responsibility of the #2 Civil Division. Another interpretation that previously had a 2018 year-end deadline.
  13. Interpretation on Financial Asset Management Companies’ Acquisition, Management and Disposal of Non-performing Assets (关于审理金融资产管理公司收购、管理、处置不良资产案件适用法律若干问题的解释).  The legal infrastructure related to non-performing assets is inadequate, as has been pointed out by all participants, including judges. The Shenzhen Intermediate Court has run several symposia bringing together leading experts from the market. Responsibility of the #2 Civil Division. Another interpretation that previously had a 2018 year-end deadline.
  14. Interpretation on Issues Relating to Internet Financial Disputes (civil aspects) (关于审理互联网金融纠纷案件适用法律问题的解释), as existing judicial interpretations inadequately address the issues facing the lower courts. Drafting this is a task for the #2 Civil Division. Another interpretation that previously had a 2018 year-end deadline.
  15. Company Law Interpretation (V) (关于适用《中华人民共和国公司法》若干问题的规定(五)) (Issued in late April, text found here, official commentary here).
  16. Extending the Time Limit for Trial & Postponing Hearing of Civil and Commercial Cases (关于严格规范民商事案件延长审限和延期开庭问题的规定), issued at the end of March, 2019.
  17. Interpretation of the Enterprise Bankruptcy Law (III), issued at the end of March, 2019, commentary by a leading global firm here and Chinese firm here.
  18. Intellectual Property Rights Evidence Rules (关于知识产权民事诉讼证据的若干规定).  These rules are linked to a 2018 Party/State Council policy decision on the reform of intellectual property litigation, (II (1), mentioning disclosure of evidence, burden of proof, and destruction of evidence. have been on the SPC agenda for some time. From several conferences involving leading judges (in Shanghai and Chongqing), it is possible to understand judicial thinking on these issues. Responsibility of the #3 Civil Division.
  19. Judicial interpretation on administrative cases involving patent authorization and confirmation (关于审理专利授权确权行政案件若干问题的解释). It appears to be the counterpart in the patent area of a 2017 judicial interpretation relating to trademarks. Responsibility of the #3 Civil Division. Another interpretation that previously had a 2018 year-end deadline.  A draft was issued for public comment in the summer of 2018.  Comments by US trade organizations were submitted, among others.
  20. Interpretation on the Recognition and Enforcement of Civil and Commercial Judgments by Foreign Courts (关于受理申请承认和执行外国法院民商事判决案件若干问题的解释). Original deadline of first half of 2019.  This issue has been flagged since at least 2014.
  21. Regulations on maritime labor service contracts (关于审理船员劳务合同纠纷案件适用法律若干问题的解释), likely connected with China’s accession to the 2006 Maritime Labor Convention and a large number of disputes in the maritime courts involving maritime labor service contracts. The linked report from the Ningbo Maritime Court mentions evidentiary problems and disputes involving foreign crew, among others. Responsibility of the #4 Civil Division.
  22. Scope of Acceptance of Environmental Resource Lawsuits (关于受理环境资源诉讼案件范围的规定). As is usual practice, local courts have issued guidance (link is to guidelines issued by the Chongqing Higher People’s Court) that is likely to provide information to the SPC. Responsibility of the Environmental and Natural Resources Division.
  23. Application of Law in the Trial of Cases of Compensation for Ecological Environmental Damage, issued in June, 2019. SPC press conference and model/typical cases released.
  24.  Disputes over forestry rights, apparently an area with many disputes.  Responsibility of the Environmental and Natural Resources Division. Original deadline was the first half of 2019.
  25. Provisions on Several Issues Concerning Administrative Compensation Cases (关于行政赔偿案件若干问题的规定).  I have not seen reports on a draft, but see a recent case on issues concerning the calculation of direct losses has been posted. Responsibility of the Administrative Division.
  26. Regulations on responsible persons of administrative authorities responding to lawsuits, (关于行政机关负责人出庭应诉若干问题的规定), relating to new requirements in the amended Administrative Litigation Law. and the 2018 judicial interpretation of the Administrative Litigation Law. Responsibility of the Administrative Division. Original deadline of the first half of 2019.
  27. Regulations on the consolidated review of normative documents in administrative cases (关于审理规范性文件一并审理案件若干问题的规定).  Responsibility of the Administrative Division. Original deadline of the first half of 2019.
  28. Regulations on the consolidated hearing of administrative and civil disputes (关于一并审理行政争议和民事争议若干问题的规定), apparently related to this item in a previous blogpost. Responsibility of the Administrative Division. Original deadline of the first half of 2019.
  29. Interpretation on procedures for the hearing of administrative cases (关于行政案件庭审程序若干问题的规定). Responsibility of the Administrative Division. Was mentioned in last year’s document.
  30. Interpretation related to agency issues in retrial (再审) cases.  With the many governance problems of Chinese companies, these issues frequently arise.  Drafting responsibility with the Judicial Supervision Division. Original deadline of end 2018.
  31. Interpretation relating to the enforcement of cases involving company shareholding.  Given the complexities of shareholding in China, including the frequent use of nominee arrangements, these are difficult issues for judges to deal with.  See a presentation by one of the circuit court judges on this issue.  Responsibility of the Enforcement Bureau.
  32. Interpretation on Several Issues Concerning the Application of Law in the Trial of Criminal Cases Involving Organizing Cheating in Examinations, issued in early September, jointly with the Supreme People’s Procuratorate (SPP), to ensure the two institutions have harmonized approaches.  The Research Office (which coordinates interactions with the SPP), was responsible.
  33. Interpretation on Issues Concerning the Trial of Criminal Cases Involving Crimes of Illegally Using an Information Network or Providing Aid for Criminal Activities in Relation to Information Network (link to the Chinalawtranslate.com translation), also a joint interpretation with the SPP, for which the Research Office was responsible;
  34. Personal information rights disputes judicial interpretation (审理个人信息权纠纷案件适用法律若干问题的解释), linked to the Civil Code being drafted.  Implications for individuals and entities, domestic and foreign. Responsibility of the Research Office.
  35. Amending (i.e. updating) ()the 2001 Provisions of the Supreme People’s Court on Certain Issues Concerning Application of Urging and Supervision Procedure, relating to the enforcement of payment orders by creditors.  Responsibility of the Research Office.
  36. Interpretation on cases involving both civil and criminal issues (关于办理民刑交叉案件适用法律若干问题的解释). This is a longstanding issue, and with the crackdown on the private lending sector, this has come to the fore.  Among the many issues include: if the defendant is criminally prosecuted first and assets are confiscated, how can affected borrowers or other parties be compensated.  Responsibility of the Research Office, likely involving several civil and criminal divisions. Originally with a 2018 year-end deadline.

I’d welcome comments by persons with further information about any of the above draft judicial interpretations.

China’s new judicial reforms on case law & other guidance

Gazette of the Jiangsu Higher People’s Court

As mentioned in my earlier blogpost, the Supreme People’s Court issued the fifth judicial reform plan outline in February, of this year (2019), harmonized with the current focus on Party leadership. For people with the fortitude to decode Chinese official documents, some real content can be found in the document. One of those provisions is #26 and relates to the ongoing efforts of the SPC to implement greater uniformity and consistency in the way that the law is applied in the courts (the translation below is from Chinalawtranslate.com):

#26 Improve mechanisms for the uniform application of law. Strengthen and regulate work on judicial interpretations, complete mechanisms for researching, initiating, drafting, debating, reviewing, publishing, cleaning up, and canceling judicial interpretations, to improve centralized management and report review mechanisms. Improve the guiding cases system, complete mechanisms for reporting, selecting, publishing, assessing, and applying cases. Establish mechanisms for high people’s courts filing for the record trial guidance documents and reference cases. Complete mechanisms for connecting the work of case discussion by presiding judges and collegial panel deliberations, the compensation commission, and the judicial committee. Improve working mechanisms for mandatory searches and reporting of analogous cases and new types of case. (完善统一法律适用机制。 加强和规范司法解释工作,健全司法解释的调研、立项、起草、论证、审核、发布、清理和废止机制,完善归口管理和报备审查机制。完善指导性案例制度,健全案例报送、筛选、发布、评估和应用机制。建立高级人民法院审判指导文件和参考性案例的备案机制。健全主审法官会议与合议庭评议、赔偿委员会、审判委员会讨论案件的工作衔接机制。完善类案和新类型案件强制检索报告工作机制)

As for why the uniform application of law is an issue, the quick explanation is the drafting of Chinese legislation often leaves important issues unresolved and outsources to the SPC (and SPP for some issues) the hard job of drafting more detailed provisions. (see Chinalawtranslate.com for many examples and NPC_observer.com for insights about the legislative drafting process).  Comments about the role of case law are found below.

#26 mentions the following:

  • improving judicial interpretations;
  • improving the guiding case system;
  • establishing a system for higher people’s courts to record with the SPC their guiding-type documents and reference cases;
  • improving China’s case law system.

Judicial interpretations

The SPC regulations on judicial interpretation work date from 2007. Some later guidance on that topic was issued several years ago, but that guidance has not been made broadly available. So it appears that one signal that this provision is sending is that the 2007 regulations need to be updated. It appears likely that the SPC will harmonize the language in its rules with the 2015 Legislation Law. Other provisions are unclear. One guess (based on the SPC document on incorporating socialist core values into judicial interpretations) is that language about socialist core values will be incorporated into any amended rules on judicial interpretation work. The Supreme People’s Procuratorate (SPP) revised its rules on judicial interpretation work earlier this year, and it is possible that the SPC will harmonize some of the language in its rules with those of the SPP.

Another guess is that those rules will codify existing practices on drafting, discussions, etc.. As my blogpost (and recently published article) on the SPC’s Pilot Free Trade Zone Opinion details, the drafting process for judicial interpretations (and similar types of guidance) operates on the basis of long-standing practices. (My forthcoming article stuck in the academic publishing process has many more details on the drafting process for criminal procedure law interpretations).

This provision appears to be aimed at the SPC’s Research Office, which takes the lead in managing the judicial interpretation process and deals with ongoing criticism that the SPC allows inconsistent judicial interpretations to be issued. It is unclear whether the improvements mentioned will involve more public consultation than previously.

Guiding cases

I will leave detailed comments on how the guiding case system will be improved to others, as research by others (see Jeremy Daum’s article) tends to show that guiding cases are rarely cited. I surmise that the intent of the provision is to speed up the selection and approval process for guiding cases, as well as the use rate.

Local High Court Guidance

This language codifies the long-standing practice of local high courts issuing guiding rules applicable within their jurisdictions. As discussed in my article on judicial transparency, published earlier this year, senior legal scholar Li Buyun raised questions about the validity of local court guidance in his letter to the Legislative Affairs Commission of the National People’s Congress last year (2018). Article 104 of the Legislation Law forbids adjudication and procuratorate organs other than the
Supreme People’s Court and the Supreme People’s Procuratorate from making specific interpretations on the application of law. 2010 SPC guidance had normalized the long-term practice of higher people’s courts (and their equivalent in the specialized courts) in issuing documents, characterized as ‘”trial work documents” (审判业务文件) and issuing reference-type cases (参考性案例).

Evidence of the importance of the practice can be seen by the fact that leading law firms publish client alerts about important local court guidance. This provision calls for a filing for the record system (with the SPC) of higher court guidance and reference cases to be established. It is not clear whether this system (apparently intended to enable the SPC to monitor local guidance and reference cases better) will result in a system that provides greater transparency to these rules. I had noted varying transparency requirements for local court guidance in my article. The Gazette of the Jiangsu Higher People’s Court (pictured above) publishes its court guidance under the section “judicial documents” (司法文件). That Gazette also includes local reference cases, entitled reference cases (参考案例)。 Terminology for local reference cases is not consistent, with the Shanghai Higher People’s Court issuing cases with a referential nature (参考性案例).

Improving China’s Case Law System

I wrote about in greater length in this short academic article published in the Tsinghua China Law Review two years ago (and in this blogpost three years ago) on how non-guiding cases guide. This part of the #26 consolidates some of the provisions of previous judicial reform documents and signals that the SPC’s judicial reform office is focusing on how to provide better guidance to the lower courts on using non-guiding cases and other forms of guidance documents that are not judicial interpretations. One issue not specifically mentioned is the relative authority of guidance documents and judgments/rulings by courts. It is assumed that SPC decisions are more authoritative than lower court ones.

The first sentence addresses the use of other forms of case guidance and transforming this case guidance into written documents. The titles, authority, etc. of these guidance documents are likely to be settled over time. One type that I have observed is the specialized judges conference (专业法官会议)(mentioned in at least two 2017 SPC documents: Opinions on Putting a Judicial Responsibility System in Place and Improving Mechanisms for Trial Oversight and Management ;(Provisional) and the SPC’s Judicial Responsibility implementing opinion (最高人民法院司法责任制实施意见(试行)(Implementing Opinion), In these conferences, difficult issues are discussed and provided to the collegial panel involved, but the panel members are not bound by the views of the conferences. This academic study notes that it is a uniquely Chinese institution and has arisen because of judicial caution about deciding cases independently (可以说,专业法官会议是中国特色的法院内部向办案法官提供咨询意见的专门机构,是在走向审判独立的特殊过程中,对法官自由办案能力担心而产生的一种特殊组织), likely in the face of extensive and long term accountability for decisions.

Some portion of SPC specialized judges conference discussions has been consolidated in the form of documents, such as in the form of a conference/meeting summary (会议纪要).  The SPC’s #2 Civil Division (focusing on commercial issues) seems to be leading the way in publishing these meeting summaries–some of the summaries have been published in book form, also with updates published on the internet/Wechat–see this example.

The last sentence of #26 addresses the case law system. The increasing importance of non-guiding cases shows the strength of the case law system that the authorities rejected about 10 years ago. It is clear from Justice Hu Yunteng(currently president of the National Judicial College)’s recollections of the history of the case system with Chinese characteristics, that Judge Jiang Huiling, then his colleague at the China Institute for Applied Jurisprudence (and currently vice president of the National Judges College) had looked to jurisdictions outside of China to advocate that China establish a case law system (Justice Hu doesn’t specify whether Judge Jiang was looking to case law systems in civil or common law jurisdictions in the “West.”). Mark Jia (of Harvard Law School), in his 2016 article, cites Li Shichun of the Chinese Academy of Social Sciences to the effect that it was the NPC that opposed those seeking to establish a Chinese case law precedential system.
My understanding that the last sentence is intended requires judges handling a case to engage in similar case searches and to report on the results of those searches in certain circumstances (for example, to report on their search before the case is discussed in the specialized judges conference). My earlier blogpost discusses the 2018 document requiring prior case search.–the specific rules for prior case search are not yet in place. What should be searched is not entirely clear.  One knowledgeable person described prior case search as a tool for “catching valuable cases in the sea of cases.” My own understanding is that it will depend on the area of law.  It can be seen from the last blogpost the type of cases considered authoritive in criminal law, but the types of persuasive cases will differ in other areas of law. Prior case search is meant as a tool for the courts to apply the law more consistently (and consistent with the views of the SPC) (an ongoing goal of the SPC). It is also likely that new legal rules evolved in cases will eventually be crystalized in other forms of documentary guidance, be it local court guidance, an SPC policy document, or an SPC judicial interpretation.

On the topic of precedent, as I noted in my 2017 blogpost on the SPC’s implementing opinion on its judicial responsibility system, special approval within the SPC is required if a ruling in a case will be inconsistent with prior SPC rulings on the issue. It means that the SPC is seeking to improve the consistency of its judgments internally.

So it appears that we will be seeing further evolution over the next few years in the tools used by the Chinese courts to provide legal rules: judicial interpretations, guiding cases, local high court guidance and reference cases, other guiding documents, and prior cases, with many of these intended to strengthen the firm guiding hand of the SPC.

 

Socialist core values & Chinese judicial interpretations

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socialist core values poster in a Shanghai hotel

I write on socialist core values and Chinese judicial interpretations with some trepidation.  Not because I have trouble deciphering socialist core values, but because the two documents core to the analysis are available in summary form only, as at least one source has mentioned that the SPC document is classified. This blogpost is based on those summaries, primarily on the summary provided by Supreme People’s Court (SPC) Research Office (研究室) head Jiang Qibo of its five-year work plan (2018-2023) to incorporate fully socialist core values into judicial interpretations (关于在司法解释中全面贯彻社会主义核心价值观的工作规划(2018-2023).)  in 2015 the SPC had issued a general document on socialist core values.

As explained below, it appears that the SPC is both “serving the greater situation” by implementing in the courts the Party’s plan to integrate socialist core values in plans to legislate and amend legislation(社会主义核心价值观融入法治建设立法修法规划) while at the same time seeking to deal with many of the difficult legal issues that face it.

For those unfamiliar with the SPC’s Research Office, (as I am writing in yet another academic article stuck in the production pipeline),  2007 SPC regulations place it as the gatekeeper for reviewing proposals, examining and coordinating the drafting of judicial interpretations.  It also acts as the liaison when other central institutions forward their draft legislation and judicial interpretations to the SPC for comments, coordinating the SPC’s response with other divisions and offices, with a knowledgeable person noting that “the view of the Research Office prevails.”

The critical language in the Party’s plan for the SPC and its judicial interpretations appears to be: “judicial interpretations should be amended and improved in a timely manner according to the demands of socialist core values” (司法解释,要按照社会主义核心价值观的要求,及时进行修订完善).  This language appears only in the SPC’s summary of its own plan and not in the earlier reports on the original plan.

The SPC’s approach to implementing the Party’s plan was to pull together all the demands on and recommendations to it to draft judicial interpretations–some in Party documents, others in recommendations from the National People’s Congress (NPC) Standing Committee (presumably its Legislative Affairs Commission), proposals from NPC and CPPCC delegates, a collation of proposals concerning judicial interpretations from the lower courts, plus  the needs of the courts (as seen from the SPC), and the SPC’s other drafting commitments.

The areas of law that Jiang Qibo are relevant to a broad range of persons, from commercial lawyers to environmentalists, to those interested in the rights of women and the elderly. Some involve new areas for judicial interpretations while others require expanding old ones.

Jiang Qibo classified the interpretations into five broad categories:

  1. The category of patriotism, dedication, and harmony includes the following (important) judicial interpretations. It appears the #1 Civil Division will take the lead on these, and I trust will engage in public consultation:
  • Amending those on the right to reputation and the right to honor to include better protection for heroes and martyrs (as to be expected and was flagged in a recent blogpost); See some earlier translations here on the SPC’s statements on the earlier heroes and martyrs litigation;
  • amending and improving judicial interpretations related to the Marriage Law and family law, etc.  I recommend this article by Professor Yang Lixin of Renmin University (formerly an SPC judge) for his forthright analysis of the state of Chinese family law and current important issues (children born out of wedlock, same-sex marriage, wills, surrogacy, etc);
  • improving the systems for trying family-related cases (Judge Du Wanhua is overseeing the pilot projects in this area); improve the legal protection of juveniles; prevent and punish school bullying, etc. (the SPC has been doing research on improving juvenile law and preventing school bullying for several years).
  • amending/improving labor dispute judicial interpretations (these fill in the holes in labor legislation)  As has been discussed earlier on this blog, the number of labor cases in the courts has increased.

2. The category of equality, justice, democracy, and rule by law:

  • Improve protection of property, especially non-public property, in criminal law. (See last year’s blogpost on this). Recent developments in China have seen greater use of confiscation procedures, and as this blog highlighted earlier this year, property protections are inadequate.
  • Improve the rules for trying property condemnation cases, to better protect the rights of those whose property is being acquired.
  • A judicial interpretation on hearing disputes over the use of personal information is needed (project approval for this has been given). Also work will start on a judicial interpretation on the protection of wild animals and protected species (see NPC Observer’s article on a related case), and the enforcement judicial interpretation is also to be amended (because of the SPC’s campaign to improve enforcement).

3. In the category of justice, friendship, and cooperation are the following:

  • an interpretation on self-defense (recently in the news in China in several cases, such as the Yu Huan case and a case in Kunshan);
  • also improving the SPC’s2016  policy document on judicial legal assistance (legal aid as arranged by the courts).

4. On setting out further details to the broad principles in the General Part of the Civil Code (also Judge Du Wanhua continues to be involved with this):

  • amending the contract law judicial interpretations;
  • amending the judicial interpretations on the criminal punishment production and sale of fake and shoddy goods;
  • amending the judicial interpretation on food and drug safety crimes;
  • criminal punishment of fraudulent litigation (just released);
  • rules on hearing cases in which the government is a contracting party, and issuing a judicial interpretation at an appropriate time.

5. On prosperity, creativity, and greenness:

  • amending the judicial interpretation relating to villages, to provide services for rural revival;
  • amending real estate related judicial interpretations;
  • amending finance related judicial interpretations, to ensure national financial safety and prevent a financial crisis (the criminal law in this area is quite unclear);
  • amending the judicial interpretations on bankruptcy law;
  • improving judicial interpretations related to intellectual property law (IP law), see more below;
  • amend the judicial interpretations related to environmental protection;
  • amend the judicial interpretations on maritime trade and other maritime matters.

On the intellectual property front:

  • The SPC will look into punitive damages for patent, copyright, and other IP infringement so that in serious cases punitive damages can be imposed and having the infringer responsible for the costs to the rights holder of stopping the infringement;
  • in the next five years, if the legislation is not amended it will work on using market value as a basis for damages;
  • it will work to better coordinate between administrative and judicial enforcement of IP rights;
  • it will work on guidance on civil cases that arise because of monopolistic conduct;
  • protection of plant species;
  • it will look into new issues related to unfair competition cases, also in trade secret  cases, and new issues related to civil trademark disputes;
  • research evidence issues in IP cases, look into having IP technical investigators involved in litigation;
  • research jurisdiction in IP and unfair competition cases;
  • look into preliminary preservative measures in IP cases (mentioned in an earlier blogpost).

The ones listed in the plan will be prioritized in the project approval process for judicial interpretations (see two earlier blogposts on what that is and the topics on that list)

 

Judicial interpretations & arbitration

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partial screenshot from SPC website of the most recently issued judicial interpretations

While Supreme People’s Court (SPC) judicial interpretations are unquestionably binding on the lower courts, one of the many questions that Chinese legislation does not answer clearly is the broader extent to which they are binding.  [2007 SPC regulations state that “the judicial interpretations issued by the Supreme People’s Court have the force of law (具有法律效力).  The issue poses both theoretical and practical questions and is one that I had been exploring earlier this week offline with several blog followers (and some others in the Chinese legal community), in relation to Chinese law governed arbitration.

Coincidentally on 5 April Wang Jun, former dean of the Law School of the University of International Business and Economics and senior consultant to Cyan Law (采安律师事务所) posted his analysis of a recent Chinese court case on the firm’s Wechat account that raises the issue of whether judicial interpretations are binding in a Chinese law governed arbitration (court cases, of course lack binding precedential value, as I wrote in my Tsinghua China Law Review last year).

The court case was a ruling in response to an application to cancel (set aside) an arbitral award of the Shangrao [Jiangxi] Arbitration Commission, one of the 250 or so domestic arbitration commissions, in a private lending dispute. The parties that applied to cancel  the award alleged that the arbitral tribunal’s failure to apply the cap on interest in the Supreme People’s Court 2015 interpretation on private lending evidenced that the arbitral tribunal had twisted the law in arbitration.

The court ruled:

the arbitral award is the result of the independent judgment of the arbitration tribunal. If it finally determines that there is a gap between the principal and interest of the loan owed by …[the debtor] and the judicial interpretation, that is within the scope of the arbitral tribunal’s understanding and application of law, not an act of twisting the law in arbitration. Moreover…[the applicants] did not provide this Court with evidence that the arbitrators had sought or accepted bribes, committed malpractices for personal benefits or perverted the law in the arbitration. Therefore, [the applicants] application ton cancel the arbitral award lacks a factual and legal basis. This Court does not support it according to law.

 Wang Jun (and his team) commented:

Whether the judicial interpretations of the Supreme People’s Court as a matter of course apply to arbitration cases has always been a controversial matter. We believe that judicial interpretations are what the Supreme People’s Court has promulgated regarding how specifically to apply the laws in the courts’ trial [adjudication] work. It is limited to court trials [adjudication] and does not necessarily apply in arbitration cases. And Article 7 of the Arbitration Law expressly provides that arbitration should be based on facts, in line with the law, fair and reasonable settlement of disputes. Therefore, it can be argued that arbitral tribunals do not necessarily have to be bound by the judicial interpretation of the Supreme People’s Court when hearing cases.

On the issue of applying judicial interpretations in arbitration

The initial response to my question of whether judicial interpretations are binding was that views differ among (Chinese) arbitrators, but that it is an issue arbitrators keep in mind because of the power of courts to review arbitral awards. A number of senior Chinese arbitrators, who have heard cases both inside and outside China, further shared their views with me.  One commented that because judicial interpretations in China serve as an important source of interpretation of law, as more detailed and convincing guidance on how Chinese legislation should be applied, that he usually followed (applied) judicial interpretations of Chinese substantive law in arbitration. He distinguished the rare case where he might think that the judicial interpretation was wrong.  Another arbitrator commented that in his experience in Chinese law governed arbitrations, judicial interpretations were considered binding.  A third prominent arbitrator sought to distinguish domestic arbitrations from foreign-related and international arbitrations, where the standards of review were different.

Is practice any different when non-Chinese arbitrators are sitting as arbitrators? Does it make a difference if the arbitration is seated outside of [mainland] China, or does it depend?  Those with further information, please share what you know through the comment function or by Wechat or email.

 

 

 

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.