On 18 February 2021, the Supreme People’s Court (SPC) issued the Guiding Opinions on Deeply Promoting the Integration of Socialist Core Values into the Analysis and Reasoning of Adjudicative Instruments (关于深入推进社会主义核心价值观融入裁判文书释法说理的指导意见 the SCV Guiding Opinion). This Guiding Opinion is intended to guide the way SPC and lower court judges write their court judgments and rulings (and any other judicial document issued to the public) to better incorporate the use of socialist core values and for those judgments to be better understood by the general public.
For close observers of the SPC and the Chinese court system, the SCV Guiding Opinion came as no surprise. That this Opinion would be issued was clear from phrases in several Party and SPC documents issued in recent years. The SCV Guiding Opinion is important not only for what it says about the use of socialist core values in judgments and also for its guidance to judges on the analysis and reasoning in court judgments, rulings, and other documents.
This blogpost is not intended as an extended academic analysis of socialist core values and the law, of which there are several excellent ones by Sue Trevaskes and Delia Lin. It will address some more modest questions, such as:
- what it says, including what it requires of SPC and lower court judges;
- the documents linked to the SCV Guiding Opinion
- how the SCV Guiding Opinion should be classified & whether it is binding or persuasive;
- what a quick sampling of judgments containing socialist core values uncovers,
- the vision of the court system portrayed by the SCV Guiding Opinion.
I have italicized my comments.
Summary of the SCV Guiding Opinion
The background for the SCV Guiding Opinion is that it is part of what is required by the Party Center to integrate socialist core values into the legal system and to promote their use in national governance. This has been a theme in writings of Xi Jinping about the law, the Party Plan on Building the Rule of Law in China (2020–2025), previous Party documents, and related SPC documents. Some of those background documents are listed in a later section of this blogpost.
Article 1 provides that the underlying principles of the SCV Guiding Opinion are:
- a fusion of law and morality, which is linked to their fusion in traditional legal thought ( 法治与德治相结合);
- people-oriented (以人民为中心), meaning that judgments should be clear to ordinary people and serve the purpose of educating them; and
- the organic unity of political, legal, and social effectiveness (政治效果、法律效果和社会效果有机统一 ), because by strengthening the guiding role of socialist core values it will enhance the legal, social, and rational recognition of judicial judgment.
The summary below highlights some of the principal points for Chinese judges.
Article 4 specified the types of judgments in which the use of socialist core values should be increased:
- Cases involving national interests, major public interest, and widespread public concern;
- Cases involving epidemic prevention and control, emergency rescue and disaster relief, protection of heroes, brave actions for righteousness, legitimate defense, and other such cases may trigger social moral evaluation;
- Cases involving the protection of vulnerable groups such as the elderly, women, children, and the disabled, as well as groups that have major disputes and may cause widespread concern in the society;
- Cases involving public order and good customs, customs, equality of rights, ethnic religions, etc., where the parties to the litigation have major disputes and may cause widespread concern in the society;
- Cases involving new situations and new issues that require in-depth interpretation of legal provisions, judicial policies, etc., to guide social trends and establish value orientation;
- Other analogous cases.
What this means is that in cases where there is a great deal of public concern, judges should seek to use socialist core values. Some of these, especially with national interest, major public interest, types of cases that attract Party leadership attention, or wide public concern are likely to be those in which the higher levels of the courts, or local political-legal commissions provide their views.
A significant part of the SCV Guiding Opinion contains guidance to lower court judges. I surmise that the guidance is directed towards less experienced and educated judges. My understanding is that more sophisticated judges, who are highly knowledgeable about political matters in addition to being technically highly competent, would consider the guidance unnecessary.
Articles 5-6 address judgment drafting. These provisions relate to the 2018 SPC Guiding Opinions on Strengthening and Standardizing the Analysis and Reasoning in Adjudicative Instruments. Article 5 gives Chinese judges rules of interpretation generally in cases involving socialist core values., directing them to first look to a normative legal document (law or judicial interpretation) as the basis for judgment, the legislative intent, and supplement it with socialist core values. Article 6 gives directions to judges in civil and commercial cases where there is no normative legal document as the direct basis for the judgment. Judges should use socialist core values as the guide and custom and the most similar legal provisions as the basis for the judgment; if there is no most similar legal provision, judges should make judicial decisions in accordance with the spirit of the legislation, legislative purposes, and legal principles, and make full use of the core socialist values in the judgment documents to explain the basis and reasons for the judgment. It is this principle that has attracted dry comments from some of the legal professionals with whom I am acquainted.
Article 7 gives guidance to judges in cases involving multiple socialist core values, directing them to consider the spirit of the legislation, legal principles, provisions, and law and legal provisions to balance and select the relevant principles and values. Article 8 directs judges to respond, if possible, orally in court, to the use of socialist core values by parties in court.
Article 13 directs judges handling cases that fall into one of the Article 4 categories, to emphasize socialist core values, in situations in which cases are discussed in professional judges committees or judicial (adjudication) committees.
Article 14 encourages socialist core values to be included in judicial training, particularly that related to the Civil Code, and Article 16 encourages competitions to find the best judgments that cite socialist core values.
Flagging the SCV Guiding Opinion
Several recent Party and SPC documents flagged the SCV Guiding Opinion. Among them are:
- the April 2020 Opinions of the Supreme People’s Court on Thoroughly Implementing the Spirit of the Fourth Plenum of the 19th Party Congress to Advance the Modernization of the Judicial System and Judicial Capacity– (最高人民法院关于人民法院贯彻落实党的十九届四中全会精神推进审判体系和审判能力现代化的意见)–improve and promote the in-depth integration of socialist core values into the supporting mechanisms for trial and enforcement (完善推动社会主义核心价值观深度融入审判执行工作配套机制). My blogpost on that document briefly mentioned socialist core values;
- the 2020 Plan on Building the Rule of Law in China (2020–2025), mentioned above
- the 2019 5th Five Year Judicial Reform Plan Outline; and
- the 4th Plenum of the 19th Party Congress.
This Guiding Opinion can be considered the progeny of the SPC’s 2015 Opinions on Cultivating and Practising Socialist Core Values at People’s Courts. 最高人民法院关于在人民法院工作中培育和践行社会主义核心价值观的若干意见, after which the SPC issued typical cases, both discussed in Sue Trevaskes’ and Delia Lin’s academic articles linked above. Their articles also discuss other related documents. As I wrote in 2018, the SPC issued a five-year plan, never made public, to incorporate socialist core values into judicial interpretations.
How to Classify the SCV Guiding Opinion
As to which basket of SPC documents the SCV Guiding Opinion should be placed, that relates to the catalog that I set out in a November 2020 blogpost on the SPC’s soft law. I classified a number of the SPC’s documents into different categories. According to my classification, the SCV Guiding Opinion should be classified as Opinion Type 1, although the criteria I mentioned don’t fit perfectly.
As I defined it, that type of Opinion is one issued solely by the SPC, which create and transmit to the lower courts new judicial policy, update previous judicial policy, and establish new legal guidance that may be eventually crystallized in judicial interpretations and direct the lower courts, but cannot be cited in judicial judgments or rulings. They are generally linked to an important Party or state strategy or initiative.
The SCV Guiding Opinion is linked to an important Party and state strategy or initiative, that of promoting socialist core values. As a “guiding opinion,” it is intended to push policy forward. Article 17 of this document directs the SPC itself and lower courts to issue occasionally socialist core value-related model cases. From a quick search of recent lower court model cases, local courts have taken account of this.
Socialist Core Values in Chinese court judgments
Chen Liang, one of my current students, sampled cases from basic level courts in various parts of China as set out in this spreadsheet. He originally found over 6000 cases that used “socialist core values.”In his research, he found three ways that courts invoke socialist core values:
- elaborating a legal standard (such as Case No. 1), a trend that I had found in my own research);
In this case, the defendant (a government branch) rejected the plaintiff’s application to recognize his father, a KMT military officer, as a martyr who died in the Anti-Japanese War, and the plaintiff sued to correct this decision. The Court invoked the SCV to emphasize the importance of the recognition of someone as a martyr, and then affirmed the defendant’s strict scrutiny of the application.
2.invoking socialist core values as a way to allocate liability (such as Case No. 9);
The plaintiff was hit by the defendant, and was in hospital. After 15 days in hospital, the doctor recommended him to leave, but he refused by claiming he had headache. Then, the plaintiff stayed in hospital for 110 days, and sued the defendant for compensation of medical fees of 110 days. When considering the exact duration to be compensated, the Court noted that the plaintiff’s action was wasting public medical resources, which was a violation of the SCV, and then confirmed that the defendant only had to compensate for the medical fees of 15 days in hospital.
3. invoking socialist core values as a way to educate people (or to promote total social welfare) (such as Case 10).
The plaintiff and defendant agreed to jointly operate a restaurant, and they had disputes during the operation. The plaintiff sued for damage. During the trial, the parties insulted with dirty words against each other. Given that, the Court asked the parties to contemplate on their behaviors considering the whole society was promoting SCV.
This use of cases to educate the public, noted in the academic articles mentioned above, also links to a more recent line of documents about which I wrote in July 2020, relating to using cases to explain the law and the popularization of law responsibility system (普法责任制). As mentioned in that blogpost, Sue Trevaskes has also written about the history of the popularization of law (pufa).
In my view, following this document, we are likely to see many more cases mentioning socialist core values, likely falling in all three categories mentioned above.
Vision of the Chinese Court System
This Guiding Opinion can be seen as a part of the “socialist core valueization” of Chinese law and the legal system, and in particular, the judiciary. It is one important piece of how the judiciary is being further transformed in the Xi Jinping era.
Article 1 is part of official legal ideology so that the drafters of this Guiding Opinion (the SPC’s Judicial Reform Office) must incorporate those principles. The Party Center requires this to be done. As Sue Trevaskes and Delia Lin mentioned in their writings, as in the traditional legal state, “morality here is treated in a particular normative sense whereby claims are made about the unified nature of socialist values held by China’s rulers and the ruled.” This long-time observer of Chinese society would question whether the moral values across Chinese society are as unified as this ideal has it.
An aspect the drafters of this document may not have considered is whether this approach to law and court judgments is consistent with China’s desire to promote the use of Chinese law overseas, which the SPC has promoted in its Opinion on Further Providing Judicial Services and Guarantees by the People’s Courts for the Belt and Road Initiative (BRI Opinion #2, discussed in this blogpost). The fusion of law and morality in cases involving multinational commercial parties seems problematic.
These principles see the public as a body to be educated, and that judgments need to further incorporate socialist core values to be better accepted by the public. Writing judgments in language the public can understand–plain language judgments–is a worldwide concern of domestic courts, but incorporating socialist core values may or not be the way to achieve that.
As I mentioned above, a significant part of the SCV Guiding Opinion contains guidance to lower court judges. I surmise that the Judicial Reform Office decided that this guidance was needed for less experienced and educated judges in less developed parts of China. The more experienced judges, with many years of experience and training, both substantive and ideological, are unlikely to need such guidance set out in an SPC document.
The reality of Chinese society that Chinese judges face, particularly at the local level, is not the one that matches the socialist core values ideal. That can be seen from cases discussed in the Chinese professional media (and some cases that have caught Chinese media attention) about some of the difficult issues that they face when needing to incorporate socialist core values. A few of those cases could include:
cases involving the status of children whose parents are not married under the Chinese legal definition of marriage to one another. That may be gay or lesbian couples or one in which a married man fathers a child with a woman with whom he is not married;
Cases involving disputes between a gay or lesbian couple that has split over mutually-owned property;
Cases involving the rights of single women who wish to have children without being married.
The SCV Guiding Opinion can be seen a signal of the direction towards which the Chinese courts are being guided. The more sophisticated judges will know how to balance the above requirements with the need to issue a judgment that parties in cases that involve fundamental personal rights find acceptable.