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)

 

What’s on the Supreme People’s Court’s judicial interpretation agenda (II)?

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SPC General office document issuing the 2018 judicial interpretation plan

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 , analogous to the National People’s Congress (NPC) and its legislative plans. 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 10 July, the SPC’s General Office issued the document above. It sets out a list of 48 judicial interpretation projects for 2018 (with several for 2019) for which the SPC judicial committee’s 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 first time this type of document was publicly released (please contact me with corrections).  If so, it is a concrete step in increasing the SPC’s transparency (addressed in part in one of my forthcoming academic articles). 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.

The document classifies the 48 projects into three categories:

  1. 2018 year-end deadline;
  2. 2019 half-year deadline;
  3. 2019 deadline.

This post will discuss the projects in the second and third categories, the ones with deadlines in 2019.

From these we can see which projects are the highest priority and where the SPC sees gaping regulatory holes need to be filled, reflecting its political-legal priorities. Often specific issues have already been on the agenda of the relevant division of the SPC for some time before they have been officially been approved by the SPC’s judicial committee.

As discussed in my previous blogpost, several of the interpretations listed for 2018 have already been issued. It is unclear which other drafts will be made public for comment, as the 2007 regulations do not require it to do so. Making this list known may put some pressure on the SPC to undertake more public consultation.  Few if any interpretations in the area of criminal or criminal procedure law have been issued for public comment.

First half of 2019 deadline

  1. Standardizing the implementation of the death penalty (规范死刑执行).  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.

This article on a legal website sets out the steps in implementation and notes that parading of the persons to be executed is prohibited (although this rule seems to be ignored in too many localities).  A recent scholarly article provides some detail (in Chinese). It is possible that 2008 regulations on suspension of the death penalty will be updated. Responsibility of the #1 Criminal Division.  Given the sensitivity of issues related to the death penalty, it is significant that the SPC leadership decided to make this list public, given that this interpretation is on the list.

2. Judicial interpretation on harboring and assisting a criminal.  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.

3.  Interpretation relating to the protection of heroes and martyrs.  With the incorporation of the protection of heroes and martyrs in the Civil Code and the passage of the Heroes and Martyrs Protection Law earlier this year, drafting of a related judicial interpretation was expected.  Responsibility of the #1 Civil Division.

4.Interpretation on technical investigators in litigation.  Responsibility of the #3 Civil Division) (IP Division).  I look forward to Mark Cohen’s further comments on this.

5. Interpretation on the recognition and enforcement of foreign court judgments.  This blog flagged this development last year.  Judge Shen Hongyu of the # 4 Civil Division, who wrote this article on issues related to the recognition and enforcement of foreign court judgments, is likely involved in the drafting.  Drafting responsibility of the #4 Civil Division.

6. Disputes over forestry rights, apparently an area with many disputes.  The Environmental and Natural Resources Division is responsible for drafting.

7.Regulations on responsible persons of administrative authorities responding to law suits, relating to new requirements in the amended Administrative Litigation Law. and the 2018 judicial interpretation of the Administrative Litigation Law. The Administrative Division is in charge of drafting.

8.Regulations on the consolidated review of normative documents in administrative cases.  The Administrative Division is in charge of drafting this.

9. Regulations on the consolidated hearing of administrative and civil disputes, apparently related to item #22 in the previous blogpost. Responsibility of the Administrative Division.

10.  Application of the criminal law to cases involving the organization of cheating on state examinations (linked to Amendment #9 to the Criminal Law). The Research Office is responsible for drafting.

11. Application of the criminal law to crimes involving network use and aiding persons in such crimes (cyber crimes).  This article discusses some of the issues. The Research Office is responsible for drafting this.

End 2019 deadline

  1. Jointly with the Supreme People’s Procuratorate, Interpretation on Certain Issues Related to the Application of Law in Criminal Cases of Dereliction of Duty (II), likely updating interpretation (I) in light of the anti-corruption campaign and the establishment of the National Supervision Commission.
  2. 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.
  3. Interpretation on the trial of labor disputes (V), 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.
  4. Regulations on maritime labor service contracts, 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 #4 Civil Division is in charge of drafting.
  5. Regulations on the hearing of administrative cases, likely filling in the procedural gaps in the Administrative Litigation Law and its judicial interpretation.  The Administrative Division is responsible for drafting this.
  6.  Personal information rights disputes judicial interpretation, linked to the Civil Code being drafted.  Implications for individuals and entities, domestic and foreign. Responsibility of the Research Office.
  7.  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.

 

 

 

 

What’s on the Supreme People’s Court’s judicial interpretation agenda (I)?

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SPC General office document issuing the 2018 judicial interpretation plan

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  (I have not been able to locate a free translation, unfortunately), analogous to the National People’s Congress (NPC) and its legislative plans.  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 10 July, the SPC’s General Office issued the document above. It sets out a list of 48 judicial interpretation projects for 2018 (with several for 2019).  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 first time this type of document was publicly released (please contact me with corrections).  If so, it is a concrete step in increasing the SPC’s transparency (addressed in part in one of my forthcoming academic articles). 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.

The document classifies the 48 projects into three categories:

  1. 2018 year-end deadline;
  2. 2019 half-year deadline;
  3. 2019 deadline.

From these we can see which projects are the highest priority and where the SPC sees gaping regulatory holes that need to be filled, reflecting its political-legal priorities. Often specific issues have already been on the agenda of the relevant division of the SPC for some time before they have been officially been approved by the SPC’s judicial committee.

Several of the listed interpretations have already been issued.  The SPC has solicited public opinion at least one of these draft interpretations, and it is unclear which other drafts will be made public for comment, as the 2007 regulations do not require it to do so. Making this list known may put some pressure on the SPC to undertake more public consultation.

This post will discuss the projects in the first category only, with a follow-up post discussing the projects in the second and third categories.

30 projects with a 2018 year-end deadline

  1. Regulations on the jurisdiction of the Shanghai Financial Court.  The NPC Standing Committee decision required the SPC to do so and included some broad brush principles on the new court’s jurisdiction.  As the SPC has announced that the court will be inaugurated at the end of August,  this is likely to be the highest priority project.  The Case Filing Division is in charge.
  2. 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, as item 18 below addresses provisional measures in IP cases (in which a great deal of interest exists in the intellectual property rights community, as these order can affect a company’s business). The Case Filing Division is in charge.  These regulations could benefit from some market input.
  3. Interpretation with the Supreme People’s Procuratorate on the Handling of Cases of Corruption and Bribery (II), likely updating 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 (the journal of the SPC’s five criminal divisions, mentioned here) .  The #3 Criminal Division is in charge of drafting, but it is likely that the supervision commission will be/is one of the institutions providing input.  As I have mentioned earlier, the SPC generally does not solicit public opinion when drafting criminal law judicial interpretations.
  4. Judicial interpretation on the handling of criminal cases of securities and futures market manipulation.  This is linked to the government’s crackdown on abuses in the financial sector (see this report on the increase in regulatory actions) and is linked to last summer’s Financial Work Conference. The #3 Criminal Division is responsible.  It is likely the China Securities Regulatory Commission will provide input during the drafting process.
  5. Judicial interpretation on the handling of cases involving the use of non-public information for trading (Article 180 of the Criminal Law). Guiding case #61 involved  this crime.  It is likely that the principle from the guiding case will be incorporated into this judicial interpretation, as frequently occurs.  Again linked to the crackdown on the financial sector and again, it is a task for the #3 Criminal Division.
  6. Judicial interpretation on the handling of underground banking (地下钱庄) cases.  Large amounts of money are being whisked out of China unofficially.  Linked again to the crackdown on the financial sector as well efforts to slow the outflow of funds from China, and likely the People’s Bank of Chin.  Again, a task for the #3 Criminal Division.
  7. Interpretation on challenges to enforcement procedures in civil cases, related to the campaign to basically resolve enforcement difficulties within two to three years.  Drafting this is a task for the #1 Civil Division.
  8. Interpretation on evidence in civil procedure.  Important for lawyers and litigants, domestic and foreign.  Drafting this is a task for the #1 Civil Division.
  9. Interpretation on civil cases involving food safety. Food safety is an area in which public interest cases are contemplated.  These cases have been politically sensitive.  Drafting this is a task for the #1 Civil Division.
  10. Interpretation on construction contracts (II). The initial interpretation dates back to 2004. These type of disputes generally involve a chain of interlocking contracts and often regulatory and labor issues. Some of the larger cases have been heard by the SPC. Drafting this is a task for the #1 Civil Division.
  11. Interpretation on the designation of bankruptcy administrators.  Issues surrounding bankruptcy administrators have been ongoing in the bankruptcy courts, as has been discussed in earlier blogposts. Drafting this is a task for the #2 Civil Division.
  12. Regulations on the consolidating the bankruptcy of company affiliates, again an area where regulation is insufficient, posing issues for bankruptcy judges (as has been discussed in earlier blogposts). Drafting this is a task for the #2 Civil Division.
  13. Regulations on the civil and commercial cases relating to bank cards.  The drafting of this interpretation has been underway for several years, with a draft issued for public comment in June.  There have been a large number of disputes in the courts involving bank cards.  Drafting this is a task for the #2 Civil Division.
  14. Interpretation on legal provisions relating to financial asset management companies acquiring, managing, and disposing of non-performing assets.  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.  Drafting this is a task for the #2 Civil Division.
  15. Interpretation on the trial of internet finance cases (civil aspects), as existing judicial interpretations inadequately address the issues facing the lower courts. Drafting this is a task for the #2 Civil Division.
  16. Judicial interpretation on the statute of limitations in the General Provisions of the Civil Code (just issued), which was the responsibility of the #1 and #2 Civil Divisions as well as the Research Office. The General Provisions changed the length of the statute of limitations.
  17. Judicial interpretation on administrative cases involving patent authorization and confirmation. It appears to be the counterpart in the patent area of a 2017 judicial interpretation relating to trademarks.  I look forward to “brother blogger” Mark Cohen’s further comments on this. Drafting this is a task for the #3 Civil Division.
  18. As mentioned above, pre-filing injunctions in intellectual property cases (知识产权纠纷诉前行为保全案件适用法律若干问题的解释 ), a type of pre-filing injunction.  There is great deal of interest in the intellectual property rights community concerning these injunctions, as these orders can affect a company’s business. I look forward to Mark Cohen’s further comments on this. Drafting this is a task for the #3 Civil Division.
  19. Regulations on issues relating to the International Commercial Court.  Those were the responsibility of the #4 Civil Division and the interpretation was issued at the end of June.  See the previous blogpost for further comments.
  20.  Regulations on the scope of environmental and natural resources cases, with drafting responsibility placed on the Environmental and Natural Resources Division. These relate to current government efforts to improve the environment.  I would anticipate that these would include provisions on cross-regional centralized jurisdiction, so that pressure from local government will be reduced. Several provinces have already introduced such guidelines.
  21. Interpretation on compensation for harm to the environment, also with drafting responsibility placed on the Environmental and Natural Resources Division.  This is related to an end 2017 Central Committee/State Council General Office document on reforming compensation for harm to the environment. Again, Drafting responsibility with the Environmental and Natural Resources Division.
  22. Regulations on the trial of administrative agreements.  There is a tension between the administrative and civil/commercial specialists, as reflected in the area of Public Private Partnerships  (PPPs)(see this earlier blogpost).  This has practical implications for both the domestic and foreign business community, as the government is seeking to expand the use of PPPs and avoid local government abuse of them.  Drafting responsibility with the Administrative Division and the Ministry of Finance is likely to be providing input.
  23. Regulations on administrative compensation cases, drafting responsibility with the Administrative Division.
  24. 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.
  25. Interpretation on the enforcement of notarized debt instruments.  Lenders often use this provision to seek more efficient enforcement.  This is related to the campaign to improve enforcement as well as government policy relating to the financial sector.  This research report by one of Beijing’s intermediate court shows that asset management companies are often the creditors and the large amounts of money are involved. Drafting responsibility with the Enforcement Bureau.
  26. 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 recent presentation by one of the circuit court judges on this issue.  Drafting responsibility with the Enforcement Bureau.
  27.  Regulations on reference pricing when disposing of property.  This too is related to the enforcement campaign as well as efforts to clean up the enforcement divisions of the local courts by requiring more transparent procedures.
  28. Interpretation on the Handling of Cases of Crimes Disturbing the Administration of Credit Cards (II), updating the SPC’s 2009 interpretation, found here. Responsibility of the Research Office, which can coordinate with criminal divisions involved as well as interested authorities such as the China Banking Regulatory Commission.
  29. Interpretation on cases involving both civil and criminal issues.  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.  Drafting responsibility with the research office, likely involving several civil and criminal divisions.
  30. Regulations on the implementation of the People’s Assessors Law. As the law and the follow up SPC notice are too general for courts to implement, more detailed rules are needed.  The Political Department (it handles personnel related issues) and Research Office are involved in drafting.

See the next blogpost for a discussion of interpretation in the second and third categories.

 

 

 

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.

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”?