Case law Chinese style–where is it going?

1343124282_12_dqgeOn 6 January 2015, case law Chinese style (案例指导制度) made the headlines of the People’s Court Daily and the Supreme People’s Court’s (the Court’s) websites, because the Supreme People’s Court president, Zhou Qiang provided an introduction to a book that the Court is publishing on guiding cases. Universities such as Yale, Stanford, and the City University of Hong Kong as well as institutions such as the European Union have held training programs with Court staff on the case method. Numerous academic conferences have been held on the topic in China.  The Communist Party leadership expressed its approval for case law in the 4th Plenum Decision in the following phrase:

  • Strengthen and standardize judicial interpretation and case guidance, and unify standards of applicable law (加强和规范司法解释和案例指导,统一法律适用标准).

As discussed in this blogpost, the Court’s October, 2013 judicial reform plan flagged the importance of case law in this phrase:

  •  “Expand fully the important role of guiding cases and cases for reference”.

This blogpost will look at how the Court leadership understands Chinese “case law” and how it sees case law to be useful to the judiciary.

Waving the flag for case law

President Zhou Qiang’s introduction incorporated both guiding cases, as designated by the Supreme People’s Court under its 2010 regulations, and model/typical cases.

He highlighted the following benefits of case law as:

  • summarizing trial experience;
  • strengthening supervision and guidance [of lower courts by higher courts]
  • unifying the application of law;
  • improving the quality of adjudication,
  • helping establish a judicial system with Chinese characteristics
  • assisting  in resolving the problem of similar cases decided differently;
  • controlling judges’ discretion.

Zhou Qiang did not go into the specifics of the case law system, which Hu Yunteng, the head of the Court’s Research Office,  set out in a January, 2014 article, addressing:

  • distinction between guiding cases and other cases issued by the Court or lower courts;
  • how judges should refer to guiding cases;
  • issues facing the guiding case system.

Judge Hu Yunteng clarifies the point that many other commentators and I have made, that cases selected as guiding or model cases are not the entire judgements, but have been curated and edited.

The distinction between guiding cases and other cases

Judge Hu distinguishes guiding cases (Stanford Law School’s Guiding Case Project translates and comments on them) from model cases published in the Supreme People’s Court Gazette, by the Court itself, and individual tribunals of the Court. (Examples of model cases can be found here and here.)

Judge Hu points out that the title, document number, method of selection and approval, and most importantly, the authority of guiding cases is different.  Guiding cases, unlike model or typical cases issued by the Court or lower courts, must be referred to by all courts in similar cases, and lower courts may refer to guiding cases in the reasoning section of their judgments.

How judges should refer to guiding cases

Chinese judges must focus on the important points of guiding cases, which have been approved by the judicial committee of the Supreme People’s Court, and secures their unifying role in the Chinese court system.They must only be used in similar cases.  Judge Hu distinguishes Chinese guiding cases from Anglo-American precedent, because guiding cases can only be issued by the Supreme People’s Court.  He says that judges may refer to guiding cases in their judgments and distinguish the case before them from a relevant guiding case.

Issues facing the guiding case system

Judge Hu identifies the following issues:

  • The relationship between judicial interpretations and guiding cases, and in which cases guiding cases rather than judicial interpretation should be relied upon is unresolved.
  • Second, the issues in the guiding cases generally are not breakthrough cases and are more “damp squibs.” Judge Hu suggests that the guiding case system address more controversial cases.
  • Third, it is unclear to the lower courts when guiding cases must be used, and the consequences if a lower court fails to use a guiding case on point.
  • Fourth, he admits that too few guiding cases have been issued and suggests that the Court issue an number of guiding cases equal to judicial interpretations.

Comments from the market

An opinion piece in Caixin, reporting on a late December conference at Renmin University on case law, set out comments from some Chinese legal professionals on the case system:

Renmin University Professor Huang Jingping–“very few judges refer to guiding cases”

Peking University Professor Liang Genlin–“the position of guiding cases in the legal system and how they can be distinguished from other cases is chaotic”–clearer rules are needed.

Li Guifang, partner, Deheng Law Office–guiding cases are needed.

Closing comments

It is likely that guiding cases and model/typical cases issued by the Supreme People’s Court will continue to be used to accomplish several goals:

  • Publicize the accomplishments of the lower courts.
  • Distributed as political education or have political purposes.
  •  Convey to the lower courts, lawyers, and the general public the correct position on a substantive issue but also have a political purpose;
  • Provide guidance for judges and lawyers on substantive legal issues;
  • Provide models of correctly decided cases.

Finally, it appears likely that the issue of the authority of guiding cases vs. other types of cases will be set out in regulations at some point.

Open government information litigation in China–an oxymoron?

Individual suing government to release information

Individual suing government to release information

To show that open government information litigation in China is not an oxymoron, and send messages to the lower courts, government, and public,  the Supreme People’s Court (Court)  in a  press conference on 12 September, released statistics and typical open government information cases brought under China’s version of the US’s Freedom of Information Act (and its counterparts elsewhere in world). For the first time, the Court issued 10 typical (model) open government information cases, although it had issued a guiding case earlier.  (The cartoons hint at the difficulties). The underlying issues are relevant to many, including foreign investors and their lawyers.

As others have described, China’s 2007  Open Government Information Regulations give individuals and groups the right to request government information and to challenge the failure to provide it in court. In comparison to the prevalent refusal of government departments to release government information, a small but increasing number of people have dared to take government to court.  In particular (as highlighted by a variety of publications, NGOs, scholars and foundations), China’s environmentalists and environmental groups have been very active in using the regulations and litigating the failure of local government to release environmental impact statements.

(artist Wang Weibin, published here)

Individual suing xxx department for information

 

What are the  “take-aways” from the press conference?

  • Statistics on open government information cases;
  • The rationale for issuing typical/model cases;
  • 10 typical/model cases;
  • Possible rationale for releasing the cases now.

Statistics on open government information cases

The Court revealed that the number of open government information cases are increasing, although the numbers are small in comparison to commercial cases. In 2013, the Chinese courts dealt with almost 5000 open information cases (despite the difficulties of suing government to release information highlighted by the cartoons). These cases account for the greatest proportion of administrative cases. Li Guangyu, deputy head of the Court’s administrative division said that the courts have helped protect the individual’s “right to know.”  In understanding the demands of the Chinese public for more government information (and the frequent refusal of government to provide it and comply with legal requirements when doing), these cases represent the tip of the iceberg. Most people will accept, rather than challenge a government refusal.

Why did the Court issue these cases?

The Court issued these ten government information cases for several reasons:

  • In May, 2014, the Court formally announced it would issue model cases monthly (see the earlier blogpost on the subject).  It has decided that issuing typical/model cases helps to guide the lower courts before judicial practice has settled enough and Court manpower permits issuing a judicial interpretation.
  • The single Guiding Case that the Court issued early addressed a narrow set of issues, and issuing these cases provides guidance on a wider range of issues.
  • The Court is sending a message to government departments, including central government ministries to comply with obligations under the Open Government Information Regulations to set out the legal basis for the decisions and their rationale, or risk having leading officials sitting in the defendant’s  seat in a courtroom.
  • The Court is signaling government to increase government transparency (within the many limitations imposed) and improve their open government information procedures or risk losing court cases. The behavior of government departments, including on the central level, in dealing with open government information requests seen in the cases indicates that educating government officials on compliance with the legislation is needed.
  • The cases are needed guidance to the lower courts.  Because the Open Government Information Regulations are not specific enough, they create difficulties for the lower courts trying to apply them to a large range of cases raising many different legal issues.  The 2011 judicial interpretation does not deal with the principal recurring issues. These cases help unify judicial standards on a range of issues.
  • The cases send a message to the general public that the courts are protecting the interests of the individual against government action (or inaction) and that these disputes can be resolved through litigation rather than petitioning.
  • The cases provide a heads up to companies and their lawyers that members of the public (or competitors) may attempt to access their information submitted to or relating to their transactions with government.

What are the 10 cases?

Li Guangyu, the deputy head of the administrative division of the Court, who was involved in drafting the 2011 judicial interpretation on open government information, highlighted the cases and the issues raised.  As discussed in earlier blogposts,the typical/model cases are not full decisions by the lower courts, but brief summaries.  The important part is the section labeled “significance of the case.” Brief highlights include:

  1. Case one (relates to the release of an environmental impact statement. According to earlier reports, many open government information cases have involved citizen demands for the release of this information.
  2. Case two, Xi Mingqiang v. the Ministry of Public Security. As could be expected, the information requested was classified, and the court refused release.  It is unclear whether the court considered whether the information had been properly classified.
  3. Case three, Wang Zongli v. the Tianjin Heping District Real Estate Administration Bureau (Tianjin Bureau), relating to a major social issue, the expropriation of real property and compensation of owners. The plaintiff demanded the release of the contract signed by the developer with a center under the Bureau for payment of government fees for expropriation (which would reveal the gap between the compensation to owners and the amount paid to government (issues discussed here).  The court determined that the Tianjin Bureau had failed to address whether the information requested by the plaintiff was considered a commercial secret.
  4. Case four,  Wang Zhengquan v. Hecheng [Shandong] Real Estate Administration Bureau, (relates to another major social issue, the allocation of low cost rental housing), involving the conflict between personal privacy (of the persons allocated housing) and the individual’s right to know;
  5. Case five, relates to issues in case three, the expropriation of rural land and the compensation of farmers, and the refusal of local government to release documents related to expropriation of land.  These issues already account for many  “mass incidents” and are likely to becoming even more important with the government’s planned urbanization of the countryside.
  6. Case six: Zhang Hongjun v. Rugao Municipal Price Bureau, in which the plaintiff challenged fees imposed by a township government, raising issues of access to government internal information.
  7. Case eight, a case against a Zhejiang Township government, in which the plaintiff sought details about land use and expropriation of property, raising issues of access to information created before the Government Open Information Regulations became effective.
  8. Case nine, Zhang Liang v. the Shanghai Urban Planning and Land and Natural Resources Bureaus, in which the plaintiff sought access to payment concerning 116 parcels of land granted by the government. It is yet another case relating to access to information about urban land use, and the government refusal to understand and reply flexibly to a request for information by an ordinary citizen.
  9. Case ten: If You Like Marriage Company Ltd. v. the Ministry of Civil Affairs, requesting information concerning the registration of the China Society for the Research of Marriage and Family (under the All Women’s Federation).  It is yet another case in which a government department (this time a central government department), failed to set out the legal basis and rationale for refusing to release government information.

Why now?

The Court may have several reasons for publicizing these cases now.

  • They are related to the ongoing drafting of the overhaul of the Administrative Litigation Law.
  • They are related to greater transparency requirements (affecting business) being rolled out under the Company Law Reforms and set as goals in the Third Plenum Decision
  • Government control of information, the individual’s right to know in the Internet age, and the role of the courts vis a vis government are major issues that may be addressed in the upcoming Fourth Plenum of the 18th Central Committee of the Chinese Communist Party.  That these issues are on the Party agenda is indicated by the fact that a Central Party School official published on these issues earlier this year.

If others would like to contribute further analysis of these cases or further information about any of them, please use the comment function.

A model copyright infringement case–“A Bite of China”

A Bite of China (rts CCTV International)

A Bite of China (© CCTV International)

The blogpost below was kindly provided by a former Chinese judge, Jianwei “Jerry” Fang, who practices with a New York-based law firm in Hong Kong.

The Bite of China case

As announced in a press conference on 30 April 2014, the Supreme People’s Court (the Court) has started to issue model cases(典型案例) on a monthly basis to guide the lower courts. On June 23, 2014, the Court issued five model cases decided by lower courts, which included one criminal, two civil and two administrative cases. Among those, the civil case concerning copyright infringement, CCTV International vs. Shanghai TuDou Network Technology Co., Ltd. (news report linked here and case description here), has been closely watched by and is of particular interest to practitioners, especially  intellectual property lawyers.

Facts:

A Bite of China (舌尖上的中国) is a documentary series on Chinese food produced by China Central Television Station (“CCTV”) that is very famous in China. The series was first broadcast in May 2012 and became a very popular and well-known show in China. CCTV granted the copyright of the documentary series to CCTV International Network Co. Ltd. (“CCTV International”). However, it was found that within a week of the original broadcasting, the show had appeared on the website of TuDou.com, the famous video portal operated by Shanghai TuDou Network Technology Co., Ltd. (“TuDou Network”). After securing the evidence with help from the notary office, CCTV International sued TuDou Network for damages and reasonable costs of RMB 850,000.

Issues:

Is TuDou Network liable for providing storage of the copyrighted video on its site, and if so, how should damages be determined?

Courts:

First instance case heard by Shanghai Minhang District People’s Court; Appeal case heard by Shanghai First Intermediate People’s Court.

Ruling:

The defendant is liable and ordered to pay damages of RMB 240,000 and reasonable costs of RMB 8,000.

Reasoning:

The documentary series is in the category of cinematographic works and works created by a process analogous to cinematography, and is therefore protected by the PRC Copyright Law. The defendant provided an online on-demand link to the show without proper authorization from the copyright owner, which is a typical infringement of copyright though internet broadcasting and therefore he bears liability for infringement. While the defendant argued that the video was uploaded by an internet user, the courts found that the defendant failed to provide evidence to support its argument. The courts reasoned that because that the portal is required to control and manage the information and identity of the uploader, the website has the burden of proof. Since the defendant had deleted the original uploading information on its own, it should bear the adverse legal consequences.

Of note:

This case is a typical copyright infringement through internet sharing. In assessing the damages, the courts considered the copyright type, social recognition of the video, the nature of the infringement action, as well as the internet portal’s operational size, business model and influences, among other factors. The damages of RMB 240,000 can help to compensate the copyright owner, and force internet video portal operators to discipline themselves and manage their business. This case shows the trends of increased protection of intellectual properties, and serves as a warning to other internet video copyright infringers.

Comments:

As the Supreme People’s Court Observer has noted in earlier blogposts, the Court has recently started to publish more systematically model cases as an important supplement to legislation, judicial interpretations and guiding cases (指导案例, but long before this, had been publishing model cases in the Gazette of the Supreme People’s Court (最高人民法院公报).

While model cases are not binding on judges deciding subsequent cases, they will likely influence the decision of judges considering cases of similar type and with similar facts. Most Chinese judges I know would agree with this view. Back in 2006 when I was a junior judge at a trial court in Zhejiang, I wrote an article discussing the possibility of judicial precedent in China in the Chinese academic journal Public Administration & Law (2006-1). In my view, since I left the court to study and to work in private practice, the Chinese judiciary has made a lot of improvement and progress, which I applaud.

More on the Supreme People’s Court and Typical Cases

SPC announces model cases

SPC announces model cases

In a press conference on 30 April, the Supreme People’s Court (the Court) announced that it will more systematically use model (typical) cases (典型案例) to guide the lower courts. The Court is increasingly using model/typical cases.  My recent blogpost  explains what model cases are, which courts issue them and the authority of model cases.

One of the initiatives the Court highlighted in its October 2013 judicial reform plan is “expanding fully the important role of leading cases and cases for reference.” because its leadership considers model cases an important supplement to legislation, judicial interpretations, and “guiding cases” (a special category of cases so designated by the Court).  Mark Cohen, of chinaipr.com, has blogged on the Court’s use of model cases in the area of intellectual property law.

The Court will issue at least five model/typical cases on a monthly basis, selected from cases submitted by the lower courts.  The cases can be accessed through the Court’s Cases in Chinese Courts portal. The ones on the website are currently limited to those issued in 2013 and 2014.  Unfortunately, a search functions appears lacking.  Despite the limitations, it is a further development in the use of case law “with Chinese characteristics.”

 

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

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

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

The Supreme People’s Court’s New Petitioning Measures

Beijing petitioners at SPC (used with permission of Natalie Behring)

Beijing petitioners at SPC (used with permission of Natalie Behring)

In the past two weeks, the Supreme People’s Court (the Court) has taken new measures to resolve the problem of petitioning (ordinary people petitioning higher authorities concerning their grievances).  Court petitioners generally have grievances related to judgments (or the enforcement of judgments) in the lower courts.  Petitioning affects the Court itself.  The current measures are tied with the document released on 27 February 2014 by the General Offices of the Communist Party Central Committee and the State Council on petitioning reform (the Petitioning Reform Document, linked here) and briefly reported here. More measures from the Court are anticipated this year.

Approximately 60,000-70,000 petitioners approach the Court each year, many repeat petitioners. In the Court Reform Decision of November, 2013 and other statements in 2013, Court leadership identified resolving the issues underlying petitioning as a target for action (see previous blogposts in January, 2014, October, 2013, and September, 2013).  It is likely that its current and future initiatives related to petitioning will be mentioned in the Court’s Work Report to the National People’s Congress.

Link to the Petitioning Reform Document

The Petitioning Reform Document is intended for distribution to the court system, as a Party document distributed to “all departments.” It pinpoints measures for the court system to take, some highlighted below.

Several points of the Petitioning Reform Document relate to the new measures taken by the Court.  Point 5 of the document relates calls for pathways for petitioning issues to be heard, including on-line petitioning platforms.  Point 9 of the document calls for greater legalization of petitioning, such as:

  • separating litigation from petitioning;
  • taking petitioning into the courtoom;
  • improving various types of appeal procedures (litigation/arbitration/administrative reconsideration)
  • improving systems within the courts/procuracy/public security/judicial administration to deal with the underlying issues causing petitioning.

The last sentence in Point 9 calls on the strengthening of the capacity of the judicial system, to satisfy the ever increasing demands on the judicial system of the masses (ordinary people), and to make the masses feel that they have received fair justice.

Phrases in the last sentences are frequently used by the Court leadership. The latter phrase is part of a statement made by Xi Jinping in early 2013 is often used by the Supreme People’s Court leadership (discussed here).

Internet petitioning platform

To implement the Petitioning Reform Document, on 28 February, the Court established an electronic platform for petitioners, linked here.  The internet platform can be accessed from the Court’s official website:

网上办事

The platform includes a short video explaining how to use the on-line system, as well as its benefits, linked here.  It is likely intended as a model for the lower courts.

Time will tell how the Court (and the lower courts) will promote the electronic system and resolve the underlying issues.  A related issue is whether the Party anticipates a greater scope for NGOs in dealing with court-related issues.

For example, will a team of Court staff be dispatched to the street with tablet computers to register petitioners’ cases?  Will this mean that NGO representatives will assist petitioners to register their issues with the courts(although this report from Guangzhou anticipates official channels only)?  Most importantly, what will the Court do to resolve the underlying issues?  Will this initiative be successful and result in few petitioner visits to the Court and the lower courts?

7 Model Cases

On 17 February 2014, the Supreme Court (Court) issued 7 model cases (典型案例) on protecting the livelihood of ordinary people. “Protecting the livelihood of ordinary people” is a political rather than legal term, and is described in court press releases as cases affecting the lives and livelihood of ordinary people (for more details, see here).

These model cases (linked here) and explained below, are not precedents but intended to be instructional. The legal reasoning in the cases is not important. The release of these cases sends several messages.

  • It shows the political leadership that the Court has taken the initiative to deal with petitioning related cases.
  • The Court is showing ordinary people that it is implementing Party policy by taking measures to improve how the court system deals with the underlying issues causing petitioning.
  • It is sending a signal to the lower courts that these cases are a political priority.

These cases include:

  1. a dispute seeking compensation for forced demolition of property on village land;
  2. a copyright infringement case in which Yang Jiang, widow of the writer Qian Zhongshu sought an injunction to prevent an auction house from auctioning some of his letters (see a discussion here);
  3. a Sierra Leone ship (with an Albanian captain and Syrian crew) arrested by the Xiamen Maritime Court  (see a press report here);
  4. a judicial review of an administrative decision in an environmental case in which a farmer’s complaint made to the local environmental protection bureau concerning water pollution was ignored;
  5. a celebrated case in which two men sought compensation for wrongfully being incarcerated for 10 years for a crime they did not commit (see a press report here);
  6. a medical malpractice case; and
  7. an unenforced judgment (despite multiple efforts by the court) in a forced demolition of property case brought by a trade union against a real estate development company (the defendant was one of the companies on the first list of judgment debtors issued by the Court).

Cases #2, #3, and #5 were well known either nationally or locally, and case #7 may have come to the Court’s attention when the defendant was named on the judgment debtor’s blacklist, but it is unclear how the rest came to attention of Court officials (possibly when they met with provincial court officials).

Although the Court is promoting the use of cases to guide the lower courts, including its announcement in the October, 2013 the Court Reform Decision, that it would ” fully expand the important role of leading cases and cases for reference.”

充分发挥指导性案例和参考案例的重要作用

these cases are meant as political rather than legal guidance.  The subject matter of these is typical of many “people’s livelihood” cases.

In a November, 2013 blogpost, Mark Cohen (of Chinaipr.com) gave a good overview of model cases, contrasting them with guiding cases.  The case descriptions of the model cases do not contain the original judgments but rather a brief summary of the facts, judgment, and (critically) the importance of the case.  These model cases are not an indication that the Chinese judiciary is borrowing case law from common law system.

It is likely that 2014 will see more initiatives by the Court to deal with some of the issues underlying petitioning, including working with the NPC Legal Work Commission on expanding the jurisdiction of the courts under the Administrative Litigation Law. The Petitioning Reform Document calls for:

  • the establishment and improvement of systems imposing liability for mistaken verdicts and
  • lifetime responsibility (liability) for the quality of cases handled.

The Court is likely to focus on these as well as other issues related to the judiciary raised in the Petitioning Reform Document.