Tag Archives: judicial interpretations

Supreme People’s Court’s 2022 Pre-“Two Sessions” Accomplishments

In the period between 1 January and today (2 March 2022), the Supreme People’s Court (SPC) issued quite a few judicial interpretations, judicial documents, and typical cases.  This blogpost focuses on one judicial interpretation; several Greater Bay-related interpretations and documents; and several sets of typical cases issued since the beginning of the year.   Apologies to readers that I do not have time to analyze any of this properly-I am doing the first of many major revisions of an academic article,  for submission.

Judicial interpretations: General Part of the Civil Code

In late February, the SPC issued the Interpretation of the General Part of the Civil Code (最高人民法院关于适用《中华人民共和国民法典》总则编若干问题的解释).  I had previously surmised that it would be finalized before the National People’s Congress (NPC) meeting in March.  It went into effect on 1 March 2022.  An SPC press release is found here, with background information on drafting, mentioning that the drafters had completely accepted the views of the Legislative Work Commission (LAC) in the drafting process, for reasons previously discussed.  I surmise in the meeting rooms in which the draft interpretation was discussed, there was a robust exchange of views. A more recent article, published after this blogpost was originally written), that I recommend to those with an interest (Understanding and Application of the General Part), has more detailed information about the drafting.

As discussed earlier, the drafters solicited views within the court system and among some of the leading Beijing law schools.  The press release highlighted the importance of integrating socialist core values into the interpretation. Commentary by a responsible person of the Research Office of the SPC here. That office led the drafting of the General Part, as flagged in this blogpost. The authoritative person (perhaps Judge Guo Feng, but unknown), mentions the integration of socialist core values into the General Part of the Civil Code, as is required by the ongoing SPC plan and a multi-institutional Party document that has not been made public. The “Understanding and Application of the General Part) was written by Judge Guo Feng, Chen Longye (mentioned here), and Liu Ting, a judge’s assistant, whom I surmise was seconded to the Research Office from the Nantong (Jiangsu) Intermediate People’s Court. Therefore I assume that the authoritative person quoted in the earlier press release was in fact Judge Guo.

The article by Judge Guo and colleagues details the many entities that saw the draft of the  interpretation: relevant entities within the SPC; all the higher people’s court; as well as the Central Publicity Department (中宣部), Central Political-Legal Commission (中政委),the office of the Central Governing the Country According to Law Commission (中央依法治国办), the Supreme People’s Procuratorate (最高人民检察院), Ministry of Public Security (公安部)、Ministry of Justice (民政部)、State Administration of Market Regulation (市场监管总局),  China Law Society (中国法学会), China Academy of Social Sciences (presumably the Law Institute), the All-China Federation of Industry and Commerce, and others. They twice sought comments from the LAC in writing(两次书面征求全国人大常委会法工委的意见)–this means through formal institution to institution communications.

As I wrote in an earlier blogpost, 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) [the new plan, entitled  关于建立社会主义核心价值观入法入规协调机制的意见(试行)] while at the same time seeking to deal with many of the difficult legal issues that face it.

The General Part covers the following issues: capacity for civil rights and capacity for civil conduct, guardianship, declaration of disappearance and declaration of death, civil legal acts, agency, civil liability, statute of limitations, and supplementary provisions. Professor Wang Liming’s highly authoritative commentary, posted on an SPC Wechat account, is found here.   Professor Yang Lixin has also published an authoritative article. I recommend this version, with red highlighting by now-former SPC judge Xiao Feng of the important points of Professor Wang, Yang, and Shen Weixing, dean of Tsinghua University Law School and Professor Yu Fei of China University of Political Science and Law.

Greater Bay Area Judicial Assistance and Judicial Policy

The SPC issued several Greater Bay related documents since 1 January, listed below, which relate to SPC policy on developing civil judicial assistance with the Hong Kong and Macau Special Administrative Regions:

1.Mutual Assistance Arrangement between the SPC & the Macau SAR in Arbitration Procedures (最高人民法院关于内地与澳门特别行政区就仲裁程序相互协助保全的安排);

Important background found in the press conference, in which Judge Si Yanli and others involved in negotiating the Arrangement spoke. My earlier blogpost explains why Arrangements are approved as judicial interpretations, although they do not fit the formal jurisdiction of one: “Judge Si mentioned that for the Supplementary Arrangement to be effectively implemented on the mainland, it must be transformed into a judicial interpretation.” Those following legal developments in the two SARs should note the following language in the press conference: “the Outline of the Greater Bay Area and the Hengqin Plan both propose to promote the convergence of rules and coordination of mechanisms in the Greater Bay Area of Guangdong, Hong Kong, and Macao. Inter-regional judicial assistance is an important way to reflect Chinese characteristics, highlight the advantages of “two systems” and achieve convergence of legal rules and mechanisms.  《大湾区纲要》《横琴方案》均提出要推进粤港澳大湾区规则衔接、机制对接。区际司法协助是体现中国特色、彰显“两制”优势,实现法律规则衔接、机制对接的重要途径”。This theme is further developed in two January, 2022 policy documents linked below.

2. Arrangement on Reciprocal Recognition and Enforcement of Civil Judgments in Matrimonial and Family Cases by the Courts of the Mainland and of the Hong Kong Special Administrative Region 最高人民法院关于内地与香港特别行政区法院相互认可和执行婚姻家庭民事案件判决的安排. The SPC and Hong Kong Department of Justice held a useful seminar to explain its provisions, at which Judge Si Yanli spoke, among others.  I expect that the law firms focusing on family law matters will follow up with detailed client alerts.

3. Opinions on Supporting and Guaranteeing the Comprehensive Deepening of the Reform and Opening-up of Qianhai Shenzhen-Hong Kong Modern Service Industry Cooperation Zone 关于支持和保障全面深化前海深港现代服务业合作区改革开放的意见, linked to the Central Committee and State Council’s September, 2021 document on Qianhai/Hong Kong and Opinions on Supporting and Guaranteeing the Construction of Hengqin Guangdong-Macao Deep Cooperation Zone 关于支持和保障横琴粤澳深度合作区建设的意见, linked to the Central Committee & State Council’s September document on Hengqin/Macau.  It is unclear to me whether the SPC solicited the views of the two SARs on these documents. As mentioned above, it mentions national policy to achieve convergence of legal rules and mechanisms in the Greater Bay Area and mentions several aspects of that policy that is relevant to dispute resolution.   Among those are (numbers are from the points in the relevant Opinion):

4. Expanding the jurisdiction of the Qianhai court, including permitting it to take cases when the parties have agreed on the jurisdiction of the Qianhai, but there is no connection to the dispute. This appears to be another piloting (the SPC’s Lingang Opinion has a similar provision) of a possible future amendment of the Civil Procedure Law to abolish the closest connection rule for cross-border jurisdiction (see Professor Vivienne Bath’s research on this issue);

5. Work on (加强) establish an inter-regional judicial assistance system with Chinese characteristics, consider an electronic platform for civil and commercial judicial assistance in the Guangdong-Hong Kong-Macao Greater Bay Area;

8. Explore the establishment of a unified qualification recognition system for Hong Kong and Macao mediators to practice in the Guangdong-Hong Kong-Macao Greater Bay Area.  The lawyer qualification system requires that the lawyer be a Chinese citizen, consistent with Chinese legislation. Query whether the same requirement will be imposed on mediators. This would be disadvantageous for Hong Kong mediators who are not Chinese citizens.  

I highly recommend Judge Si Yanli’s recent academic article on Greater Bay judicial assistance issues for those with an interest in this topic.

It is my hope that someone can undertake further analysis of these documents.

SPC Typical Cases

Perhaps because General Secretary Xi Jinping has said “one case is better than a dozen documents (习近平总书记强调, “一个案例胜过一打文件”),  in the run-up to the “Two Meetings,” the SPC has issued quite a few typical cases. Typical cases are intended to guide the courts and the general public.

  1. Nine typical cases on protecting the rights of juveniles 未成年人权益司法保护典型案例, well worth further analysis, with several involving family education orders to parents and one involving failure of a hotel to verify the identity and contact information of a juvenile couple that checked into a hotel room (where they had sex);
  2. Ten typical cases on solid waste pollution人民法院依法审理固体废物污染环境典型案例, seven criminal cases, two civil cases, and one administrative case. Three involve public interest litigation, two by the procuratorate and one by a civil society organization;
  3. The third set of Belt & Road-related cases 最高法发布第三批涉“一带一路”建设典型案例.  The cases are not necessarily specifically connected with the Belt & Road but involve Chinese cross-border commercial, maritime, and arbitration issues.  One China International Commercial Court (CICC) case is included, a case on an infrastructure payment guarantee, as is the Brentwood case.   The SPC’s comments on the CICC case are consistent with my comments published earlier on this blog about the role of CICC in providing soft precedents for the Chinese courts: “the principle of attribution has an exemplary guiding role for the resolution of similar disputes in the future (该归责原则对今后类似纠纷案件的解决具有示范指导作用).”
  4. Accompanying the release of the General Part judicial interpretation was the first set of  Civil Code typical cases The typical cases are not limited to illustrating the General Part but relate to different parts of the Civil Code, also stressing socialist core values.
  5. A first set of typical cases of the courts providing services and safeguards to the free trade zones 人民法院服务保障自由贸易试验区建设典型案例.  The cases are intended to guide the lower courts and general public, and  as the introduction states illustrate the “achievements of the people’s courts in actively creating a business environment that is ruled by law, internationalized, and convenient.”  For those interested, see my earlier article on the SPC and free trade zones, available on
  6. SSRN
  7. The second batch of cases in which the people’s courts promote socialist core values 第二批人民法院大力弘扬社会主义核心价值观典型民事案例.  These cases are worth further analysis for what they show about the treatment of the elderly, among other social issues.

Supreme People’s Court’s 2021 Year-End Accomplishments

Photo from the “look back meeting” described below

Apologies to readers for the long gap between posts–I have been focusing on yet another academic article and am finding that even so-called “short articles” take much longer than anticipated, especially when the topic reveals more and more complexities than were apparent when I submitted the abstract to the journal months ago.

So instead of any involved analysis, I’ll list some of the year-end (from December) accomplishments of the Supreme People’s Court (SPC) with some brief notes. Another aspect of the SPC being a cross between a Party-state organ and a court is that it needs to meet year-end goals and submit year-end reports. The SPC’s judicial reform leading group recently discussed and approved its year-end report (最高人民法院司法改革领导小组2021年工作总结报告).  The judicial reform leading group is headed by President Zhou Qiang. Other members include Justices He Rong, Ma Shizhong (head of the Political Department), He Xiaorong, and Shen Liang. The Judicial Reform Office presumably drafted by the report. It is likely a constituent part of the SPC’s year-end report to go to the Party leadership, before the annual Central Political-Legal Work Conference.

Another aspect of the SPC being a cross between a Party-state organ and a court is that it is inspected by Party inspection groups and is a focal point of campaigns on the education and rectification of political-legal organs.

Among the SPC’s year-end accomplishments are the following.  For the avoidance of doubt, judicial interpretations, judicial documents, and typical cases are all means by which the SPC guides the lower courts. I will have more to say about this topic in the unfinished academic article mentioned above.

Judicial interpretations

  1. Online Mediation Rules of the People’s Courts (人民法院在线调解规则).  Online mediation is an important focus of the SPC, as could be seen from this white paper on Diversified Dispute Resolution from early 2021 and from other efforts of the SPC to promote resolving disputes at their source, as consistent with the deployment of the Party Center (党中央关于“将非诉讼纠纷解决机制挺在前面”的重大部署要求.  The responsible person of the SPC’s Case Filing Division (presumably the head) pointed out that these rules “had created an online diversified dispute resolution model with Chinese characteristics that differed from ADR or ODR” )形成了有别于ADR和ODR的中国特色在线多元纠纷解决模式). His statement appears designed to be more politically correct than accurate. It is clear that the SPC follows government policy in using “diversified dispute resolution” rather than “alternative dispute resolution,” (ADR)  but the English language abbreviation”ODR,” according to my research, is intended to be a general term to capture all sorts of online dispute resolution and not meant to promote one particular model of online dispute resolution. The underlying implication is that “ODR” reflects a “Western” approach. However other (mainland) Chinese government departments use “ODR” without issue.  Additionally, the Hong Kong government uses the term “ODR” to refer to its online dispute resolution platform, eBRAM.
  2. Interpretation of the Supreme People’s Court and the Supreme People’s Procuratorate (SPP) on Several Issues Concerning the Application of Law in Handling Criminal Cases Endangering Food Safety (最高人民法院 最高人民检察院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). As a joint judicial interpretation, it was approved by the judicial (adjudication) committee of the SPC first and next by the Procuratorial Committee of the SPP.
  3. Several Provisions of the Supreme People’s Court on the Application of Prohibition Order Preservation Measures in Eco-environmental Infringement Cases(最高人民法院关于生态环境侵权案件适用禁止令保全措施的若干规定) –relating to injunctions to stop environmental pollution, either before or after a party has filed suit.  We can expect more and more SPC interpretations and documents related to environmental pollution.
  4. Relevant Provisions of the Supreme People’s Court on Issues concerning Applications for Verification of Arbitration Cases under Judicial Review 最高人民法院关于仲裁司法审查案件报核问题的有关规定. This decision by the SPC updates the 2017 provisions of the same name, adding one article and a clause in another. The new Article 3  requires higher people’s courts to submit draft rulings in judicial review of arbitration matters in domestic arbitration (non-foreign, Hong Kong, Macau or Taiwan-related) if the higher court intends to concur with a lower court ruling that the arbitral award violated social public interest.   The new second clause of Article 4 requires the higher people’s court to submit the matter to the SPC within 15 days.
  5. Several Provisions on the Compulsory Enforcement by People’s Court of Company Shareholding (最高人民法院关于人民法院强制执行股权若干问题的规定). This appeared on the 2019 judicial interpretation agenda, so it has slipped by two years. The provisions apply to enforcing judgments or rulings against shareholder equity in either limited liability companies or companies limited by shares, but not including companies limited by shares that are listed.
  6. Interpretation of the Supreme People’s Court on Several Issues Concerning the Application of Law in the Trial of Disputes over Compensation for Personal Injury in Railway Transport
    最高人民法院关于审理铁路运输人身损害赔偿纠纷案件适用法律若干问题的解释  This interpretation concerns persons injured in railway transport accidents, excluding accidents on passenger trains.

On the “coming attractions” discussed in some earlier blogposts, the SPC’s judicial committee (adjudication committee) spent many hours on 30 December 2021 discussing the draft judicial interpretation of the General Part of the Civil Code.  When I wrote last about the draft of the General Part, I noted that Judge Guo Feng, deputy head of the Research Office,  mentioned that the General Part (1) interpretation is scheduled to be submitted to the SPC’s judicial (adjudication) committee before year-end.  That means that Judge Guo (and likely one or more of the principal drafters) were in the room to discuss the draft article by article.  The judicial committee finally decided to approve the draft “in principle.”  Approval in principle” (原则通过), as discussed here, is not mentioned by the SPC’s 2007 regulations on judicial interpretations but is one of the SPC’s long-established practices. It means that the judicial committee has approved it, subject to some “minor” amendments. Minor amendments are more than typographical errors and relate to specific substantive matters.  So it is likely that after the SPC amends the provisions that the judicial committee  considered needed more work, a quasi-final draft will go back to the National People’s Congress Standing Committee (NPCSC LAC)’s Legislative Affairs Commission  because SPC guidance provides that “liaison with the NPCSC LAC must be timely, and after major revisions to the judicial interpretation draft after consulting with the NPC LAC, the view of the NPCSC LAC  should be solicited again.”  I expect that the draft of the General Part judicial interpretation will be finalized before the National People’s Congress meeting, so that the report can mention this accomplishment.

As I have mentioned many times in the course of 2021, we do not know what was on the SPC’s 2021 judicial interpretation agenda. Those of us outside the System can only hope that the 2022 agenda will be released and that the judicial reform agenda will continue to be released.

Judicial documents (incomplete list)

  1. Provisions of the Supreme People’s Court and the Ministry of Justice on Providing Legal Aid for Defendants in Death Penalty Review Cases 最高人民法院 司法部关于为死刑复核案件被告人依法提供法律援助的规定.  These are joint regulations issued by the two institutions and therefore are classified as “judicial documents,” as discussed here.  These provisions establish a mechanism for the Ministry of Justice to appoint legal aid lawyers to defendants whose cases are being submitted to the SPC for death penalty review.  If a defendant appoints his or her own lawyer), then the legal aid lawyer stops providing services.
  2. Provisions on Judges’ Disciplinary Work Procedures (for Trial Implementation)《法官惩戒工作程序规定(试行).  I will follow up with analysis at some point as I published a book chapter on judicial discipline at the beginning of 2021.  These provisions do not change the conclusion in my chapter.
  3. Opinions on Strengthening the Substantive Trial of Sentence Reduction and Parole Cases (关于加强减刑、假释案件实质化审理的意见).  This is another multiple institution document, intended to tighten up procedures for sentence reduction and parole cases.  They are in part a response to a 2020 tragedy in Beijing, in which a prisoner whose sentence was commuted killed one man and injured two more.  The incident further revealed that the corruption discussed in this 2015 blogpost continues to exist.
  4. Notice of the Supreme People’s Court on Studying and Implementing the “Decision of the Standing Committee of the National People’s Congress on Amending the Civil Procedure Law of the People’s Republic of China.”最高人民法院关于认真学习贯彻《全国人民代表大会常务委员会关于修改〈中华人民共和国民事诉讼法〉的决定》的通知.  This notice and the amended Civil Procedure Law are of practical importance to tens of thousands of Chinese judges and litigants in the Chinese courts, individuals and entities, domestic and foreign.  The notice signals that the SPC is working on amendments to the Civil Procedure Law judicial interpretation (the previous version plus commentary was published in two volumes). This reform relates to the reorienting of four levels of the courts, will increase the number of cases heard with one judge, promotes mediation and smart courts.
  5. and  6. Two Judicial Services and Safeguards Opinions, one on  Providing Judicial Services and Safeguards for Promoting the Development of the West in the New Era and Forming a New Pattern and  Opinions on Providing Judicial Services and Safeguards for Promoting the High-quality Development of the Central Region in the New Era(最高人民法院关于为新时代推进西部大开发形成新格局提供司法服务和保障的意见( and 关于为新时代推动中部地区高质量发展提供司法服务和保障的意见.  Related to these two is a document from November 2021– Conference Summary of the Work Promotion Meeting Serving and Safeguarding Ecological Protection and High-quality Development of the Yellow River Basin.最高人民法院服务保障黄河流域生态保护和高质量发展工作推进会会议纪要.  That document in turn relates to a  2020Judicial Services and Safeguards Opinion. These are part of a large number of documents providing judicial services and safeguards for Party Center strategies and initiatives, particularly related to regional integration.  The article I have temporarily set aside to write this blogpost discusses the purposes and impacts of these documents.  I have previously written about these documents often, such as these quick analyses of their structure and purposes.  Both  Opinions link to Party Center-State Council documents. More analysis to come when I am able to finish the last five pages of the “short academic article” mentioned above.

Reshaping the judiciary

In the fall of 2021, the Party Center launched the second round of the rectification and education of national political-legal organs, with a leading group leading and an office assisting in implementing the campaign. The SPC was one of the focal points (along with other central organs). Just before Christmas, the SPC held a “looking back” meeting to discuss what was revealed and progress made in response.  The SPC established a leading small group and office to handle matters properly.  (For those interested in further details, please see this webpage.) President Zhou Qiang noted in his work report that the SPC has effectively rectified a batch of stubborn diseases (one of the targets of this inspection) and resolutely eliminated a batch of black sheep (literally, a group of horses that harm the masses) (一批害群之马).  The same phrasing is reported from the Ministry of Justice and other political-legal institutions at both the central and local levels. Related to  the rectification and education campaign are several new SPC opinions. Those include one strengthening the judicial responsibility system, and creating a new court team  关于在加快推进司法责任体系改革和建设中进一步加强人民法院队伍建设的意见 and another on enforcement.  The SPC has issued another related opinion found here, on the “four types of cases.”   Perhaps unrelated to stubborn diseases and black sheep is decisions by some SPC judges to continue their careers elsewhere.

Finally

I wish all readers a happy and healthy new year, both “Western” and Chinese.  I also hope that this year brings us, located in and out of mainland China, opportunities to gather together to discuss legal developments in China from different perspectives quietly, without rancor or blame, but with mutual respect.

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I would like to express my appreciation to two anonymous peer reviewers of a previous draft of this blogpost. Special thanks to the person who caught a significant error in the draft.

 

Update on Civil Code Judicial Interpretations

Judge Guo Feng at a workshop at Tsinghua University

Judge Guo Feng, deputy head of the Supreme People’s Court (SPC)’s Research Office, with the ranking of first level inspector (a senior non-leadership position  ( 一级巡视员spoke in late October at the annual meeting of the China Law Society’s Civil Law Research Group, at which he revealed further information about the SPC’s timetable on issuing further interpretations of the Civil Code, as well as senior SPC leadership’s thinking about judicial interpretations.  Please see this recent blogpost if a refresher about judicial interpretations would be helpful. I have italicized my brief comments.

In his remarks, he revealed the methodological thinking behind the drafting of the Civil Code judicial interpretations.  He expresses a principle that I have heard from others at the SPC–that there is a  palpable line between the SPC’s power of judicial interpretation and the NPC’s legislative power and power of legislative interpretation.  For many in the legal world outside of China (and some inside China based on this and several other recent academic articles), it appears to be an invisible red line. As for what should be the focus of judicial interpretations, I believe that internally they will be able to have a sense, from discussions with colleagues in other divisions, lower court judges and from lawyers, if comments are sought from them:

The first is how to grasp the degree, that is, how to achieve an appropriate degree in the design and expression of the specific content, specific system, and specific clauses of judicial interpretation. The core of moderation is how the judiciary can perform its duties and responsibilities in accurately applying the law, and cannot overstep and covet the legislative authority’s legislation and the power of legislative interpretation.

The second is how to achieve a balance of quantity, that is, in the face of the 1,260 legal provisions in the seven parts of the Civil Code, which ones should be judicially interpreted? What should not be judicially interpreted? Which Parts and which chapters should be the focus  for some judicial interpretations? Furthermore, in each separate judicial interpretation,  how much content and complexity should be in each provision?

Interpretation Agenda & Timetable

Judge Guo mentioned that the Civil Code judicial interpretations on the judicial interpretation agenda include one on the General Part and the Contract Parts of the Civil Code. The General Part Judicial Interpretation (1) draft (最高人民法院关于适用<中华人民共和国民法典>总则编的解释(一)》was discussed this spring. The Contract Part interpretation has been discussed at several other academic conferences in Beijing besides the one described in the earlier blogpost.

Judge Guo mentioned that the General Part (1) interpretation is scheduled to be submitted to the SPC’s judicial (adjudication) committee before year-end and the Contract Part Judicial interpretation is scheduled to be submitted to the judicial (adjudication) committee by the end of the first quarter of 2022.  I surmise that Court President Zhou Qiang wants to include the promulgation (or the upcoming promulgation) of the Contract Part of the Civil Code as one of the SPC’s accomplishments in 2021. So I have my doubts that public comments will be sought on the draft. The Tort and Personality Rights judicial interpretation drafts are still at the research stage.  He also mentioned that they do not plan to issue a comprehensive draft of the Personality Rights Part, but instead be guided by practice, and focus on issuing an interpretation on Article  997 (relating to the right of a party to seek an injunction to stop violations of the person’s personality rights). On the Contract Part judicial interpretation, I had previously said “as to whether this judicial interpretation will be issued by the end of this year, I personally have my doubts. “

Issues Going Forward

Judge Guo mentioned that they are facing issues concerning overlapping provisions in different parts of the judicial interpretations of the Civil Code, such as the provisions in judicial interpretation of the General Part of the Civil Code overlapping with provisions in the judicial interpretation of Contract Part, and overlapping provisions between the Personality Rights Part and the Tort Part.  He says that these issues regarding the planning of the interpretations need to be solved by the academic community and the SPC together. I have my doubts, however, that those in the academic community, unless they have spent time at the SPC, will be able to provide useful advice to the drafters on how to harmonize the different provisions in the judicial interpretations of the Civil Code in a user-friendly way, that enables an overworked basic level court judge (or her judge’s assistant or intern) to quickly and easily find the correct rule.

Finally,  Judge Guo mentioned that the SPC’s judicial committee decided that in the future, it will no longer engage in large and comprehensive judicial interpretations, and will no longer engage in excessively lengthy judicial interpretations, and encourage focused judicial interpretations.  My guess is some persons in the political leadership commented on the long judicial interpretations, of which the SPC has issued quite a few in the past few years.  I imagine that this will be the case until the amended Arbitration and Bankruptcy Laws are promulgated.  Then there will be a demand from the lower courts and the Chinese legal community for comprehensive judicial interpretations that consolidate previous interpretations, to the extent relevant, discard irrelevant provisions, and provide further detail to new provisions.  

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Many thanks to certain anonymous readers of an earlier draft of this blogpost. They are not responsible for any errors or “erroneous views.”

China’s Civil Code to have a Contract Part Judicial Interpretation

photo of workshop

Because the Supreme People’s Court (SPC) has not released its judicial interpretation agenda for 2021 (as previously mentioned), the observer seeking to determine what is on that drafting priority list must rely on occasional reports in the professional and academic press.  Last month, several academic Wechat accounts reported on discussions of a draft of a judicial interpretation of the Contract Part of the Civil Code  民法典合同编司法解释(草案). The one I’m relying upon contains the more detailed report on the discussion, including the names of those discussing the draft on behalf of the SPC.  I’ll flag from this article why this discussion was held, what can be learned from the report on the discussion, and a quick preview of the interpretation itself.  But first, a few words about why this interpretation is needed and what it is intended to do.

Background on judicial interpretations

Through judicial interpretations, the SPC is seeking to “unify court judgments,”  to ensure that court decisions throughout the country and at various levels of courts are more consistent.  This principle is set out in the current and previous judicial reform plans. Establishing a Chinese case law system assists in this, but is insufficient.  As seen from the SPC, judicial interpretations are intended to address issues in which statutory law is either ambiguous or contains a gap, causing judges to misunderstand (the law) and issue decisions inconsistent with legislative intent (see more below).  The SPC  identifies those issues through the multiple stages in the judicial interpretation drafting process.

.Judges, particularly at the basic level, need to issue judgments efficiently in commercial cases. They face a combination of a large number of cases and relatively short deadlines in domestic civil procedure.  Recent reforms to the jurisdiction of the courts will require basic level courts to deal with even more cases.   They cannot assume that most cases will settle, as shown by my own research (concerning certain courts) and those of some others  (in certain courts) . The Contract Part of the Civil Code is not detailed enough for judges to rely upon to decide contract cases efficiently and consistently.  A more active National People’s Congress (NPC)  (and its Standing Committee) is not able to fill in the gap.  Therefore the SPC must be the one to do so.

As I have written before in this blog and in my recent book chapter, the SPC and the NPC, and NPC Standing Committee (NPCSC), most often the NPCSC Legislative Affairs Commission (LAC), communicate during the course of judicial interpretation drafting.  SPC rules require that a judicial interpretation draft be submitted to the relevant committees of the NPC or relevant department of the NPCSC to solicit their views before the final draft is submitted to the SPC judicial (adjudication) committee. Additional relevant guidance cited in my chapter reminds drafters that “liaison with the NPCSC LAC must be timely, and after major revisions to the judicial interpretation draft after consulting with the NPC LAC, the view of the NPCSC LAC  should be solicited again.”  Therefore the views of the two institutions are harmonized before the judicial interpretation is finalized by judicial committee approval.

Broad Consultation of Opinions

As I wrote in my recent book chapter, discussions of draft judicial interpretations by specialists are a regular part of the SPC’s judicial interpretation drafting process.  I described this as “broad consultation outside the gated community.”  The reason workshops are organized is to solicit the views of experts on specialized or technical subject matter. Those invited for these meetings tend to be senior academics, either from the country’s major universities or CASS, as was the case here.

The workshop was held at Renmin University, while a second similar workshop was held at CASS.  Participants included experts from the NPC LAC,  Renmin, Peking and Tsinghua Universities, China University of Political Science and Law,  China Academy of Social Sciences, Jilin University, Beijing Institute of Technology, Central University of Finance and Economics, University of International Business and Economics among others.

The normal practice is for SPC drafters to assess the views given by those experts at the workshops and consider whether they should be adopted or further taken into consideration. Professor Wang Liming, who is a member of the China International Commercial Court expert committee, was one of the leaders who spoke.

It can be determined from the workshop report which personnel at the SPC were involved in drafting and what the issues are.  As to personnel, Justice Liu Guixiang spoke at the beginning of the workshop, which means he is the most senior SPC judge responsible for the draft interpretation. Justice Liu is a full-time member of the judicial committee with vice-ministerial rank. Others from the SPC who spoke included Judge Guo Feng, deputy head of the Research Office,  Chen Longye, head of the civil section of the Research Office, Jiang Jiadi, a staff member of the same section, Judge Lin Wenxue, head of the #2 Civil Division (responsible for domestic commercial issues) and Judge Zeng Hongwei, a judge in the #2 Civil Division.  The #2 Civil Division hears appeals and retrials (再审) (and applications for retrial), unlike the Research Office, and therefore sees first hand some of the issues arising in the lower courts.  I surmise that Chen, Jiang and Zeng are the ones who are shouldering the bulk of the drafting work.  Judges Guo and Lin would have many other responsibilities.  The persons primarily involved in drafting discussed their parts of the interpretation.

Preview of the Interpretation

The first chapter of the draft interpretation is “General Provisions,” in which Chen Longye of the Research Office took the lead.  Judge Zeng Hongwei took the lead in discussing the second chapter on contract establishment. Issues included:

  •  contract interpretation;
  • trade practices;
  • application of non-contractual obligations;
  •  contract formation;
  • contract terms;
  • form of the contract; and
  • agency contracts,

Chapters 3 and 4 of the draft relate to the validity of and the performance of contract. Also, the #2 Civil Division took the lead in drafting because Judges Lin Wenxue and  Zeng Hongwei spoke.  From the discussion, it appears that the controversial questions were the oldies but goodies, the ones that occur in practice:

  • contract validity and  the obligation to report for approval;
  • defective contracts;
  • contracts in violation of mandatory provisions;
  • consequences of validity;
  • signing related issues, involving corporate seals and individual fingerprints;
  •  debtor’s right of defense in the transfer of creditor’s rights;
  • repayment of debts, debts by shares, joint debts, indivisible debts;
  • contract performance by a third party or to a third party or repayment by a third party;
  • Repayment by third parties; and
  • changes in circumstances.

Chapters 5 and 6 concern preservation of contract (保全), contract modification and transfer.  Judge Guo Feng and Jiang Jiadi of the  Research Office took the lead.  Issues included:

  • scope of rights,
  • scope of rights exclusive to the debtor
  •  right of subrogation
  • right of cancellation in “contract preservation;”
  • Contract modification and transfer;
  • role of a third party in the litigation of the creditor’s rights and debt transfer disputes,

Chapters 7 and 8 relate to  “Termination of Contract Rights and Obligations, Liability for Breach of Contract”.   Chen Longye took the lead in discussing the following issues, among others:

  • liability for compensation for contractual obligations after the breach;
  •  termination and its consequences;
  • the timing of termination;
  • determination of losses due to breach of contract;
  • liquidated damages, deposits, delay in receipt; and
  • force majeure.

When will the Interpretation be Issued?

As to whether this judicial interpretation will be issued by the end of this year, I personally have my doubts.  I have not found any reports of discussion of this draft in the lower courts or with the NPCSC LAC.  These steps are a usual part of judicial interpretation drafting.  Contract law is fundamental to business.  Those in SPC leadership are unlikely to approve this interpretation unless they think it meets the target of dealing with the unclear issues that lower courts and practitioners frequently encounter in practice.  The scope of consultation is unknown, such as whether some lawyers or companies will be consulted, or whether the entire draft will be issued for public comment. It is also unknown whether selected foreign contract law specialists have or will be approached for their comments.  We have to wait for further developments.

___________________________________________

Many thanks to certain anonymous readers for their insightful comments on earlier versions of this blogpost. They are not responsible for any errors or “erroneous views.”

Update on judicial interpretations

One of the most important functions (职能) of the Supreme People’s Court (SPC) is issuing judicial interpretations (司法解释), which it issues for the most part unconnected with a specific “case or controversy” but rather drawing on many cases that have previously arisen in the lower courts. They are a critically important way that the SPC unifies the application of law. The extent to which SPC judicial interpretations are binding is one of several fundamental uncertainties attaching to this function, as the National People’s Congress (NPC) Standing Committee is authorized to review them and may require amendments to them or more, and it is unclear how much they bind institutions outside the court system.  But what can be said is that they are critically important to the operation of the Chinese legal system, The SPC, particularly its headquarters in Beijing,  focuses on judicial interpretation work for reasons connected with the slow pace and abstract language of Chinese legislation, although Chinese (and foreign) scholars, lawyers and other commentators sometimes criticize the SPC’s expansive reading of laws. 

About one month ago (in June 2021), the SPC updated its 2007 Judicial Interpretation Work Provisions (JI Work Provisions) in this decision  关于修改《最高人民法院关于司法解释工作的规定》的决定).  [See a refresher on the legislative basis of judicial interpretations, if needed.] The JI Work Provisions describe the types of judicial interpretations the SPC can issue, which institutions can propose drafting judicial interpretations, the drafting process, the promulgation process, the filing process, etc. The update was a minimally invasive one, adding to Article 6  a new category of documents, now classified as judicial interpretations–rules (规则). Rules are defined in a new paragraph of Article 6, as follows: “The judicial interpretations regulating the trial practices of people’s courts shall adopt the format of “Rules”–the intention being that when the SPC issues court rules, they should be in the form of 规则. That means that from now on there are five types of judicial interpretations:

The amendments underwhelm this observer, who had read many SPC documents signaling that many changes were needed. Two of those are Article 26 of the 2019 Fifth Five-Year Judicial Reform Plan Outline and Article 2 (3) of the  2020 Opinions of the Supreme People’s Court on Improving the Work Mechanism for Unifying the Standards for Application of Law (Opinion on Improving the Work Mechanism) :

#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….

Article 2 (3) of the Opinion on Improving the Work Mechanism:

Judicial interpretation is an important part of the socialist judicial system with the Chinese characteristics and an important duty of the Supreme People’s Court. For special issues of application of laws in judicial work, especially the unspecific and unclear provisions of the laws which result in difficulty in understanding and enforcement, changes in circumstances which result in different understanding of the basis for handling cases, different standards used for rulings of specific cases in same type and other relevant issues, the Supreme People ’s Court shall strengthen investigation and study and formulate judicial interpretations in a timely manner strictly in accordance with the law. In respect of the judicial interpretations involving the interests of the people or major and complicated issues, public comments shall be solicited openly. It is imperative to further standardize the procedures for formulation of judicial interpretations, improve the mechanism for research, project initiation, draft, argumentation, review, promulgation, clearing and repeal and improve centralized management and record-filing review mechanism.

The question is, why after all this language about providing more details about judicial interpretation procedures, did the SPC leave the rules unchanged, except for adding one new category of judicial interpretations? The SPC’s press conference announcing the 2020 Opinion on Improving the Work Mechanism does not shed any light on this question.   

I surmise that the SPC leadership decided that it was most prudent to leave the regulations unchanged because it is best to leave maximum flexibility in the drafting process. The language in the documents above on improving judicial interpretation procedures remains significant as reminders to the SPC Research Office and others involved in the judicial interpretation drafting process. The Research Office is the gatekeeper for reviewing proposals, as well as 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 SPC liaises with the NPC Legislative Affairs Commission during the judicial interpretation drafting process to harmonize the views of the institutions. In an article published on 21 July 2021 by China University of Political Science and Law Professor Luo Xiang on appraisals by administrative institutions in criminal cases, he compared an article in the Criminal Procedure Law judicial interpretation issued for comment with the final version, noting that “the Office for Criminal Law of the Legislative Affairs Commission of the National People’s Congress clearly held a negative attitude [to the language of the article in the original draft] “(全国人大法工委刑法室则明确持否定态度).

As I understand the language in the two documents quoted above, they serve as further reminders that the Research Office staff should review the package of documents that come before them before the documents are forwarded to the SPC Judicial Committee (Adjudication Committee) for consideration with these factors in mind (among others):

  • is it clear that the divisions (tribunals) involved have done sufficient research and investigation about the issues that arise in practice;
  • is it sufficiently comprehensive, with the right amount of discretion given to the lower courts and accommodate varying judicial competence, economic and social development; and
  • does it incorporate the views of relevant internal and external stakeholders?

On the topic of flexibility in procedures, take the example of public consultation. As I mentioned in January,  the Regulations on JI Work Provisons do not specify a minimum (or maximum) time period for soliciting opinions from the public. 

Reviewing the comment periods for some of the other judicial interpretations and other judicial documents for which comments were solicited in 2020, the deadlines appear to vary significantly.  I surmise that the deadline is set by the team in charge of drafting the judicial interpretation. In November 2020, the SPC solicited public comments on proposed amendments to its judicial interpretations related to the taking of security for 18 days, while comment periods for other judicial interpretations and judicial documents seem to be often one month and sometimes two months

It appears many judicial interpretations do not involve public consultation. Consulting the public is optional, unlike consulting internal and other official stakeholders. Article 17 of the JI Work Provisions requires approval by two SPC leaders–the vice president in charge of that type of issue, plus either the court president or the executive vice president (currently Justice He Rong). As I wrote in my recently published book chapter, a review of SPC judicial interpretation public consultations reveals that few, if any, have been in the area of criminal law or criminal procedure law. One experienced SPC judge gave his view of why that was so:

It’s the SPC’s bureaucratic nature! It thinks that the power to draft interpretations is with it and it is completely within its ability to draft good judicial interpretations. So therefore no democratic procedure has been formed to broadly consult different parts of society during the drafting process. The practice always has been internal consultation, generally consulting gongjianfasi [公检法司] [public security, procuratorate, courts, and administration of justice], and experts, the various divisions and offices of the SPC, and then it is submitted and approved. If timing is rushed, one or two experts will be consulted.

My book chapter, describing what I called “gated community” procedures,  explores other reasons as well.

Another topic mentioned by the documents cited above is project approval or initiation, also discussed in further detail in my book chapter. Since 2018, the SPC has provided the domestic and international professional world with more transparency about its judicial interpretation agenda by making public the document by which the SPC leadership gave project approval (立项) to proposals for drafting judicial interpretations. The SPC has a yearly plan for drafting judicial interpretations, as set out in the JI Work Provisions, analogous to the National People’s Congress (NPC)’s legislative plans. It should be noted that the JI Work Provisions do not require the project approval document to be made public. This year, the judicial interpretation agenda has not [yet] been released. It is unclear whether it is a matter that was overlooked in the flood of other documents issued or for some other reason.

 

Supreme People’s Court’s 2020 Accomplishments in Transitioning to the Civil Code

 

photo of a meeting of the SPC’s judicial committee. I surmise a screen for viewing presentations is not visible.

On 30 and 31 December 2020, the Supreme People’s Court (SPC) delivered  its first batches of documents designed to ensure a seamless transition to the Civil Code on 1 January 2021, about which I wrote last recently and in November, 2020. Several SPC leaders spoke at a press conference on the morning of 30 December 2020 to announce the issuance of these documents, with Justice He Rong taking the lead.  Justice He Rong also gave highlights of items on the SPC’s agenda on the transition to the Civil Code for 2021, but those details will be forthcoming in a subsequent blogpost.

I correctly predicted that the SPC judicial committee would meet one or more times before year-end and we readers of SPC media will see one or more long catalogues of cancelled and amended judicial interpretations and other judicial normative documents published on or before 1 January 2021.

We can  see the results of the long hours of work of unknown numbers of people, particularly within the SPC, the National People’s Congress Legislative Affairs Commission (NPC LAC), and  many “relevant departments” in drafting these judicial interpretations.  Justice He Rong mentioned the timely guidance of the (NPC LAC) (我们得到了全国人大常委会法工委的及时指导),  support and coordination from the Supreme People’s Procuratorate, and support and help from central state organs and academics and the public.  Timely guidance from the NPC LAC signals (as mentioned previously), that SPC staff spent unknown numbers of hours  ensuring that these judicial interpretations were properly harmonized. 

It is unclear to me whether those of us outside the system will ever learn about the amount of work involved. I surmise the responsibility of delivering this timely and properly  depended on the project management skills of the Research Office.  If foreigners could give recommendations to SPC leaders concerning “models of socialist labor (动模范),” I would recommend it to all involved in the transition to the Civil Code. 

Given the very general provisions of the Civil Code, these judicial interpretations (and more to come) are crucial for the operation of the Chinese legal system, despite theoretical questions about their binding nature beyond the court system.

As of 1 January 2021, the following judicial interpretations and other normative documents implementing the Civil Code have been issued (the English titles below are rough translations).  I will link to English translations as they become available. Unless otherwise noted, a document is a judicial interpretation. Among the many aspects of the drafting process, per the SPC’s relevant five year plan, socialist core values have been incorporated into the judicial interpretations.

The judicial interpretations 

Scattered comments are in italics. Where judicial interpretations have numbering , for example (1), it suggests that the drafters anticipate further comprehensive interpretations as the greater situation (大局) evolves:

  1. Decision on invalidating certain judicial interpretations and judicial normative documents (关于废止部分司法解释及相关规范性文件的决定). It canceled 116 of them, some of which I recall reviewing for my 1993 article;
  2. Regulations on timing application  of the Civil Code (

    关于适用《中华人民共和国民法典》时间效力的若干规定).  These rules relate to application of Civil Code for disputes etc. that arose pre-Civil Code. Although the general rule is that the then current law and judicial interpretations will be applied, for some types of cases  the Civil Code will be applied. (If it better protects a party’s rights and interests, upholds social and public order, and promotes socialist core values). Chart with explanation linked here.

  3. Interpretation on the application of the marriage and family part of the Civil Code (1) (最高人民法院关于适用《中华人民共和国民法典》婚姻家庭编的解释(一)). Note article 1 links ongoing domestic violence to the term “abuse” in the Civil Code. Chart with judicial interpretation, Civil Code, and prior judicial interpretation linked here
  4. Interpretation on the application of law to labor disputes (1) 最高人民法院关于审理劳动争议案件适用法律问题的解释(一).  

  5.  Interpretation on the application of law to construction contracts (1)(最高人民法院关于审理建设工程施工合同纠纷案件适用法律问题的解释(一));
  6. Interpretation on the application of law to the property (rights in rem) part of the Civil Code] (1) (最高人民法院关于适用《中华人民共和国民法典》物权编的解释(一)). Rules relate both to immovable (real) and movable property, and authority of both courts and arbitral institutions;
  7. Interpretation on the application of law to the inheritance part of the Civil Code (1) (最高人民法院关于适用《中华人民共和国民法典》继承编的解释(一)). Chart with judicial interpretation, Civil Code, and prior judicial interpretation linked here
  8. Interpretation regarding the system of taking security) ( 关于适用
    《中华人民共和国民法典》有关担保制度的解释). This is a comprehensive interpretation on secured interests (besides mortgages, guarantees, liens, pledges, it also has content concerning factoring, finance leasing, and retention of title, as well as the giving of security by companies. It specifies that independent (demand) guarantees continue to be governed by the 2016 judicial interpretation on that topic. Those latter regulations are crucial to BRI infrastructure projects, as mentioned in this blogpost.
  9. Decision on amending the interpretation on the application of the Trade Union Law and 27 other civil law related judicial interpretations  related to civil-related judicial work (关于修改《最高人民法院关于在民事审判工作中适用〈中华人民共和国工会法〉若干问题的解释》等二十七件民事类司法解释的决定);
  10. Decision on amending the judicial interpretation on the hearing of patent tort disputes and 18 other intellectual property-related judicial interpretations (关于修改《最高人民法院关于审理侵犯专利权纠纷案件应用法律若干问题的解释(二)》等十八件知识产权类司法解释的决定);
  11. Decision on amending the “SPC Provisions on some issues concerning people’s courts seizing goods being shipped by rail” and 18 other enforcement-type judicial interpretations (关于修改
    《最高人民法院关于人民法院扣押铁路运输货物若干问题的规定》等十八件执行类司法解释的决定)。 Comparison chart linked here;
  12. Decision on amending the “Official Reply of the Supreme People’s Court on Whether the Right to Use of Allotted State-Owned Land of a Bankrupt Enterprise Shall Be Classified as Insolvent Property” and 29 other commercial-type judicial interpretations (最高人民法院关于修改《最高人民法院关于破产企业国有划拨土地使用权应否列入破产财产等问题的批复》等二十九件商事类司法解释的决定)
  13. Decision on amending the “Provisions of the Supreme People’s Court about Several Issues Concerning the Civil Mediation Work of the People’s Courts” and 19 other civil procedure-related judicial interpretations (最高人民法院关于修改《最高人民法院关于人民法院民事调解工作若干问题的规定》等十九件民事诉讼类司法解释的决定);
  14. Notice that certain guiding cases are not to be further used for reference (最高人民法院关于部分指导性案例不再参照的通知). This is a judicial normative document, not a judicial interpretation.
  15. SPC issues amended “regulations on civil causes of action” (最高人民法院印发修改后的《民事案件案由规定》).  This is a judicial normative document, not a judicial interpretation. This link contains both the decision itself to amend the causes of action and the amended causes of action. Compensation for sexual harassment is listed (#372), but detailed provisions on the elements have not yet been issued.

As for the review of local level judicial guidance documents for consistency with the Civil Code, mentioned in the November blogpost, the Shanghai Higher People’s Court has reported that it has met its performance goal.  Another blogpost will discuss new SPC guidance(that I  flagged a year and a half ago, in the current judicial reform program) directed towards reining in local court guidance, or as seen another way, strengthening the SPC’s firm guiding hand!

Civil Code & Supreme People’s Court update

Merry Christmas to all blog readers who celebrate!

The Supreme People’s Court media outlets posted a brief article on 23 December updating the court system and legal professionals on progress towards seamless transition to the Civil Code on 1 January, about which I wrote last month, by reporting on a . From that notice, it appears that the staff of the SPC’s Research Office (which coordinates judicial interpretations and is in charge of guiding cases) and other staff members of the SPC’s Leading Small Group for Implementing Civil Code Work 民法典贯彻实施工作领导小组 (Leading Small Group) will have long nights of work until the end of the year.

The notice reported on a recent meeting chaired by Justice He Rong. She is the executive vice president (and deputy Party Secretary of the SPC) and led a meeting of the entire Leading Small Group and the SPC’s judicial committee to review the work of the committee.The decision was to “approve in principle” decisions concerning canceling and amending 591 judicial interpretations and related judicial normative documents (judicial documents) and 139 guiding cases. “Approval in principle” (原则通过), as discussed here, is not mentioned by the SPC’s 2007 regulations on judicial interpretations but is one of the SPC’s long-established practices. It means that the judicial committee has approved it, subject to some “minor” amendments. Minor amendments are more than typographical errors and relate to specific substantive matters.

Justice He reminded meeting participants that the smooth transition to the Civil Code was highly valued by General Secretary Xi Jinping, so that it was part of the SPC’s political responsibility to complete the work properly and timely.   But the focus of this blogpost is again on the practicalities, rather than the political aspects of this project.

Although it was said to be Justice He’s guidance, I surmise that it was the drafters’ thinking to  take this comprehensive cleanup as an opportunity to focus on making the Civil Code easy for users to apply, and strive to build a clear, concise, and highly targeted judicial interpretation system. I read from the language of this notice that the drafters plan to issue more comprehensive judicial interpretations on broad areas of law (such as the one on taking security that is has been issued for comment) rather than ones relating to specific questions of law. 

The judicial committee decided to cancel 116 judicial interpretations and other judicial documents, and approved in principle amendments to 14 other general judicial interpretations and other judicial documents, and another 111 judicial interpretations and judicial documents in the areas of:

  1. civil law (27),
  2. commercial law (29);
  3. intellectual property law (18);
  4. civil procedure law (19); and 
  5. enforcement procedures (18).

So it seems likely the SPC judicial committee will meet one or more times before year end and we readers of SPC media will see one or more long catalogue of cancelled and amended judicial interpretations and other judicial normative documents published on or before 1 January 2021. I hope the hard work of the team involved over many months is properly acknowledged.

Arrangements and the Supreme People’s Court

SPC Press conference following the Supplemental Arrangement signing, Judge Si 2nd from left

On 27 November, the Supreme People’s Court and the Hong Kong SAR Government held a ceremony in Shenzhen at which the two sides signed the Supplemental Arrangement Concerning Mutual Enforcement of Arbitral Awards between the Mainland and the Hong Kong Special Administrative Region” (the Supplemental Arrangement (关于内地与香港特别行政区相互执行仲裁裁决的补充安排). It supplements the original Arrangement Concerning Mutual Enforcement of Arbitral Awards between the Mainland and the HKSAR which was signed on 21 June 1999 and came into effect on 1 February 2000 (1999 Arrangement). The SPC also issued 10 related typical cases (典型案例) in both Chinese and English versions, the first time the SPC has done so for an arrangement.

SPC arrangements with the Hong Kong SAR are considered  judicial assistance documents.  As Hong Kong is part of China (one country-two systems),  the view is that judicial assistance between the Mainland and Hong Kong can be broader and closer (and so differs from international judicial assistance).

After the Supplemental Arrangement becomes fully effective, it will ease the implementation of a number of arbitration-related matters between the Hong Kong SAR and the (mainland) Chinese courts.  Herbert Smith Freehills and other law firms and barristers’ chambers) have published insightful summaries of the Supplemental Arrangement. 

This blogpost discusses some issues related to SPC arrangements (with the Hong Kong and Macao SARs), drawing on the remarks made by Judge Si Yanli, one of the deputy heads of the SPC’s Research Office at the press conference following the ceremony.  The Research Office is a unique institution of the SPC.  It does not directly hear cases, but is often involved in a broad range of issues.  A 1995 SPC document describes it as a  “comprehensive operational department.”

Judge Si is responsible for handling Hong Kong and Macau related matters , who would have headed the team negotiating with the HKSAR Department of Justice on these arrangement Judge Si is well-known to the Hong Kong international arbitration community.  She has spoken at Hong Kong Arbitration Week events in recent years, impressing all who have heard her speak with her insightful presentations.

Legal Framework for Arrangements

The legal framework for this arrangement, and the other previous ones concluded between the two jurisdictions is Article 95 of the Hong Kong Basic Law:

Article 95
The Hong Kong Special Administrative Region may, through consultations and in accordance with law, maintain juridical relations with the judicial organs of other parts of the country, and they may render assistance to each other.

Fitting Arrangements into the Chinese legal landscape

A single sentence in Judge Si’s press conference called attention to a procedure that is rarely discussed, at least in English–fitting arrangements into the Chinese legal landscape.  Judge Si mentioned that for the Supplementary Arrangement to be effectively implemented on the mainland, it must be transformed into a judicial interpretation. Although Judge Si did not set out the reasons that the SPC does so, it is understood that if implemented in this way,  judges in local Chinese courts who need to implement an arrangement can issue rulings or judgments  that cite the relevant provisions of an arrangement that have been transformed into a judicial interpretation.  

The effective implementation of the Supplementary Arrangement in the Mainland needs to be transformed into judicial interpretation, and for its effective implementation in Hong Kong, it needs to be transformed into local legislation. In the Mainland, on November 9, the 1815th meeting of the judicial committee of the SPC passed the “Supplementary Arrangement” and agreed to transform it into a judicial interpretation;补充安排》在内地的生效实施需要转化为司法解释,在香港的生效实施需要转化为本地立法。在内地,11月9日,最高人民法院审判委员第1815次会议已审议通过《补充安排》,并同意将其转化为司法解释;

Drafting 

The drafting of the Supplemental Arrangement involved input from relevant authorities, among them the Legislative Affairs Commission (LAC) of the National People’s Congress.  That is clear from this statement in Judge Si’s press conference. 

The successful signing of the “Supplementary Arrangement” is due to  the strong guidance of the Legislative Affairs Commission, of the Standing Committee of the National People’s Congress, the Hong Kong Basic Law Committee, the Hong Kong and Macao Affairs Office of the State Council and other relevant central authorities, as well as the strong support of the judicial and legal circles in the two places.《补充安排》的成功签署离不开全国人大常委会法制工作委员会、香港基本法委员会,国务院港澳事务办公室等中央有关部门的大力指导以及两地司法法律界的有力支持.

Soliciting views from relevant authorities is usual practice when the SPC drafts judicial interpretations. In this way the judicial interpretation that the SPC issues draws on specialist knowledge in the relevant authorities and enables the judicial interpretation to reflect a harmonized approach.  As to the importance of the SPC consulting the LAC of the National People’s Congress, that institution will review the final version of a judicial interpretation after the judicial committee of the SPC approves it and files it with the Standing Committee of the National People’s Congress. Again, it enables the judicial interpretation to reflect an approach harmonized between the SPC and the LAC.

Further thoughts

As the Chinese court system evolves to become increasingly integrated with international treaties and conventions, we are likely to see aspects of international conventions or bilateral judicial cooperation documents converted into or implemented through judicial interpretations, and the strong guidance of the LAC, the Ministry of Foreign Affairs, and other relevant central authorities making it possible.

Supreme People’s Court’s 2020 judicial interpretation agenda

Screenshot 2020-04-02 at 2.21.48 PM

On 17 March 2020, the Supreme People’s Court (SPC)’s General Office issued a document (English translation here) setting out a list of 49 judicial interpretation projects for which the SPC judicial  committee gave project approval.  This document sets out the responsibilities of various divisions and offices of the Supreme People’s Court (SPC) in undertaking an important part of the SPC’s work, promulgating judicial interpretations for 2020. As discussed in two blogposts in 2018 and two blogposts in 2019, the 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 are binding on the SPC itself and the lower courts, and fill in some of the interstices of Chinese law (further explained here).  One of my articles in the production pipeline provides more details about the drafting process in one area of law.  It is one of the more controversial powers of the SPC, where the gap between the views of the academics, lawyers and those inside the system is particularly large.  I have my views on it as well, but that is a topic for another day and perhaps another article.

“Project approval” is an initial procedure used by regulatory authorities of all types, Party and state, to approve projects. For the SPC, it reflects one of the “planned economy” aspects of the way it operates. This is the third year that the SPC has made this list public, and it is a concrete step forward in increasing the SPC’s transparency. I’m grateful to Chinalawtranslate.com for translating the list so quickly. Of those projects, 38  with an end of 2020 deadline and 11 have a deadline set for the first half of 2021.   Some brief comments (some longer than others) follow below. Please see my previous blogposts commenting on the 2018 and 2019 agendas. Mark Cohen of Berkeley Law School (and Chinaipr.com) has already commented on the projects in the area of intellectual property law, so for those I will link to his comments.

As I commented previously, close observation reveals that some interpretations were listed previously, 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 than anticipated (substantively, procedurally or institutionally);
  • 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. The SPC wants judicial interpretations to be in place for some time, and if the greater environment is not conducive for issuing the interpretation, or additional issues are seen, it will be postponed.

If an SPC division or office is listed as responsible, it means it is on its work agenda for that year.  (I surmise) the head (or heads) of the related responsible divisions or offices need to provide an explanation for slippage.

The 2007 SPC regulations on judicial interpretation work do not require drafts to be made public, but comments may be solicited from society if related to the interests of the general public (masses) or if it is a major difficult issue,  as decided by the executive vice president or president of the SPC, after an initial review by the SPC vice president in charge of that particular area of law (涉及人民群众切身利益或者重大疑难问题的司法解释,经分管院领导审批后报常务副院长或者院长决定,可以向社会公开征求意见). This procedure provides yet another glimpse into the bureaucratic nature (官本位) of the SPC.

Type 1 (to be completed before the end of 2020)

1. Interpretation of Several Issues on the Application of Law in Cases of Pre-trial Preservation of Assets. Responsibility: Case Filing Division. The deadline for this has been postponed for several years in a row. It was included in the 2019 and 2018 lists. This interpretation will provide more detailed rules for pre-filing injunctions, for non-intellectual property (IP) cases.

2. Provisions on Several Issues Relating to Preventing and Punishing Fake, Malicious, and Frivolous 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, Research Office. Again, it previously had a deadline of 2019. The Research Office has been added as a responsible party.  The Research Office is a unique institution at the SPC–further comments on that at some later date.

3. Decision on Revising the “SPC and SPP Interpretation on the Application of Law in Handling Cases of Criminal Endangerment of Food Safety,” Responsibility of the 1st Criminal Division, and similarly previously had a 2018 and 2019 deadline.

4. SPC, SPP Interpretation on Several Issues on the Application of Law in Handling Cases of Criminal Corruption (2). Responsibility of the #2 Criminal Division

5. SPC and SPP Interpretation on Several Issues on the Application of Law in Handling Cases of Criminal Dereliction of Duty (2) Responsibility of the #2 Criminal Division.  Previously with an end of 2019 deadline.  For those wishing to understand some of the issues delaying this interpretation, see this recent article (in Chinese) by Professor He Jiahong of Renmin University Law School.

6. Decision on Revising the “SPC Interpretation on the Specific Application of Law in Criminal Cases of Money Laundering” (New Item) Responsibility of the #3 Criminal Division. I surmise that this is directly linked to the Financial Action Task Force (FATF) mutual evaluation report of China, issued in 2019.

7. Interpretation on Specific Issues on the Application of Law in Handling Criminal Cases of Loan Fraud (New Item). Responsibility: #3 Criminal Division.  This means that lower court judges frequently encounter issues with this.

8. Interpretation on Several Issues Regarding the Application of Law in Handling Criminal Cases of Endangering Tax Collection and Management: Responsibility: #4 Criminal Division

9. Interpretation of Several Issues on the Application of Law in Cases of Administrative Crimes (New Item)

To be handled by: 4th Criminal Division

10. Interpretation of Several Issues on the Application of Law for Restricting Commutation during the Reprieve Period for a Suspended Death Sentence. Responsibility: #5 Criminal Division

11. Interpretation of Several Issues on the Application of Law in Hearing Cases of Objections to Enforcement: Responsibility: #1 Civil Division.

12. Decision to Revise the “SPC Provisions on Several Issues on the Application of Law in Hearing Civil Cases of Private Lending (New Item) Responsibility: 1st Civil Division. Likely this needs to be amended to incorporate new policies regarding “professional” lenders(see the related SPC policy document Opinions on Several Issues Regarding the Handling of Criminal Cases of Illegal Lending translated here on Chinalawtranslate.com).

13. Interpretation on Several Issues on the Application of Law in Handling Cases of the Acquisition, Management and Disposition of Non-performing Assets by Financial Asset Management Companies

To be handled by: 2nd Civil Division

14. Provisions on Transformation of Preservation Measures for Debtors’ Assets after Acceptance of Bankruptcy Applications (New Item) Responsibility: 2nd Civil Division. Likely linked to the policy of encouraging certain enforcement cases to be transferred to the bankruptcy division before all assets are dissipated, mentioned in this blogpost.

15. Interpretation on Several Issues of Applicable Law in Hearing Cases of Disputes Over Security (New Item) Responsibility: 2nd Civil Division. This refers to disputes over guarantees, pledges, mortgages, and other types of security over assets, likely incorporating new principles (this article discusses the draft) set out in the SPC’s 2019 Conference Summary on Civil and Commercial Work.

16. Provisions on Evidence in Intellectual Property Rights Proceedings Responsibility: #3rd Civil Division, #1 Civil Division, Research Office, Intellectual Property Court.  Mark Cohen’s comments seen here.

17. Interpretation of Several Issues on the Application of Law in Patent Authorization Confirmation Cases Responsibility: 3rd Civil Division, Intellectual Property Court. Mark Cohen’s comments seen here.

18. Interpretation of Several Questions on the Application of Law in Hearing Cases of Disputes regarding Infringement of Trade Secrets: #3 Civil Division, #1 Criminal Division, Intellectual Property Court. Mark Cohen’s comments seen here.

19. Provisions on Several Issues on the Application of Law in Cases of Disputes over Pharmaceutical Patent Linkage(New Item) be handled by: 3rd Civil Division, Case Filing Division, Intellectual Property Court. Mark Cohen’s comments seen here.

20. Interpretation on Several Issues Regarding the Application of Law in Hearing Disputes over Ship Crews’ Labor Service Contracts Responsibility: #4 Civil Division

21. Interpretation on Several Issues Regarding the Application of Law in Hearing Cases of Disputes over Forestry Rights. Responsibility: Environmental Division

22. Interpretation on Several Issues Regarding the Application of Law in Hearing Environmental Tort Disputes (2)(New Item)  Responsibility: Environmental Division

23. Provisions on Several Issues Regarding the Application of Law in Hearing Administrative Cases of Compensation for Rural Collective Land Expropriation (New Item) Responsibility: Administrative Division.  There are many cases on this.

24. Provisions on Several Issues Regarding the Application of Law in Hearing Cases of Administrative Compensation. Responsibility: Administrative Division

25. Provisions on Several Issues on the Application of Law in Cases of Hearing Civil Controversies during Administrative Litigation.Responsibility: Administrative Division

26. Interpretation on Several Issues Regarding the Application of Law in Hearing Retrials of Cases Involving Disputes over Apparent Agency. Responsibility: Trial Supervision Division

27. Interpretation on Several Issues Concerning the Application of Law in Handling Cases of Share Equity Enforcement. Responsibility: Enforcement Bureau

28. Decision on Amending the “Supreme People’s Court’s Several Provisions on Publishing the List of Information on Judgment Defaulters”(New Item) Responsibility: Enforcement Bureau.  I surmise that some of the issues published in responses to Zhou Qiang’s mailbox will be incorporated.  Jeremy Daum is likely to have further comments on this draft interpretation.

29. Decision on Amending the “SPC’s Several Provisions on Restricting High Consumption and Related Consumption of Persons Subject to Enforcement”(New Item) Responsibility: Enforcement Bureau. Jeremy Daum is likely to have further comments on this draft interpretation.

30. Interpretation of Several Issues on the Application of Law in Handling Cases Connecting Civil and Criminal Matters

To be handled by: Research Office

31. Interpretation of Several Issues Related to the Application of the “P.R.C. Civil Code” (1) (New Item) Responsibility: Research Office. I surmise this will be a major project of the SPC.

32. Interpretation on the Application of the “P.R.C. Criminal Procedure Law”. Responsibility of the Research Office. Subject of my forthcoming article.

33. Decision Regarding Several Issues on Judicial Technology Work. Responsibility: Research Office, Trial Management Office, Judicial Equipment Administration Bureau

34. Provisions on Several Issues Regarding the People’s Courts’ Forensic Evaluations. Responsibility: Research Office, Trial Management Office, Judicial Equipment Administration Bureau

35. Interpretation on Several Issues Regarding the Application of Law in Labor Dispute Cases Involving Hong Kong, Macao and Taiwan Compatriots (New Item) Responsibility: Research Office. The Research Office has departments focusing on Hong Kong and Macao and Taiwan related issues. I surmise the #1 Civil Division will also be involved, as one of their responsibilities is labor issues.

36. Provisions on Several Issues Concerning the People’s Court’s Disclosure of Trial Processes Online。 Responsibility: Trial Management Office

37. Provisions on the Application of Law in Hearing Cases of Civil Disputes Arising from Monopolistic Conduct (2)(New Item)

To be handled by: Intellectual Property Court, #3 Civil Division

38. Work on Cleaning up Judicial Interpretations Related to Civil Code Responsibility: Research Office and Relevant Divisions. Likely to be a big task, determining which existing judicial interpretations having provisions inconsistent with the Civil Code (and the principles in the forthcoming judicial interpretation).

Type 2 (To be completed in the first half of 2021)

1. Provisions on Several Issues Regarding the Specific Application of Law in Hearing Cases of National Defense Patent Disputes (New Item) Responsibility: #3 Civil Division, Intellectual Property Court.  Likely to be because of the policies related to Civil and Military Integration (Chinese article here), English analysis of related issues, seen here. I surmise the Legal Department of the Central Military Commission

2. Interpretation of Several Issues Regarding the Application of Law on Punitive Damages for Intellectual Property Infringements: Responsibility: 3# Civil Division, Intellectual Property Court.

3. Interpretation of Several Issues Regarding the Application of Law in Hearing Civil Cases of Unfair Competition(New Item)

To be handled by: 3rd Civil Division, Intellectual Property Court. Mark Cohen’s comments seen here.

4. Provisions Regarding Several Issues in the Trial Procedures for Administrative Cases. Responsibility: Administrative Division

5. Provisions on Several Issues Regarding the Review of Normative Documents below the Rules Level as Part of Administrative Litigation. Responsibility: Administrative Division.

6. Provisions on Several Issues Regarding the Application of Law in Hearing Administrative Cases Involving Higher Education(New Item) Responsibility: Administrative Division.  There are many cases in this area.

7. Provisions on Standards for Changing Judgments in Retrial of Criminal Cases(New Item) Responsibility: Trial Supervision Division. Related research has been undertaken for some time, as described in my forthcoming article.

8. Interpretation on How to Determine “Heinous Circumstances” as Used in the First Paragraph of Article 50 of the Criminal Law [Involving limits on commutation of suspended death sentences](New Item).Responsibility: Trial Supervision Division

9. Provisions on Several Issues Regarding the Application of Law in Hearing Cases of Third Party Opposition. Responsibility: Research Office

10. Interpretation on Several Issues Regarding the Application of Law in Hearing Disputes over Personal Information Rights. Responsibility: Research Office

11. Provisions on Issues of the Specific Application of Law in Hearing Cases of Disputes over the Rights in New Varieties of Plants(New Item) To be handled by: Intellectual Property Court, 3rd Civil Division. Mark Cohen’s comments seen here.

 

 

 

 

 

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

20180307_082132
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

Screen Shot 2018-04-08 at 8.35.58 PM
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”?