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administrative law, Commercial law, court reforms, foreign-related cases, SPC journals

Guide to Finding Supreme People’s Court Materials: Selected Journals of SPC Divisions (Consolidated Version)

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Late last year, some followers asked me to describe some of the principal sources for Supreme People’s Court’s (SPC) research. I’m doing this in several posts, as few (particularly outside of China) seem to be aware of the range of publicly available publications of the SPC and its many affiliated entities–see here and here for earlier posts. This post summarizes the journals (actually periodic publications–each has an ISBN number) edited and written (at least in part) by the trial divisions and other offices of the SPC.   As far as I know, they are only in printed form, although sometimes some parts of the content can be found on WeChat. That means that those outside of China are rarely aware of their existence.  I assume that they are available through Taobao or Jingdong.  

The readers of these publications are judges and practitioners. The publications are specialized, in contrast to the Supreme People’s Court Gazette, and each one contains normative provisions and guidance related to the specific area of law.

A quick guide to the content listed: the judicial interpretations are normative, of course, and the “understanding and application” articles provide further explanation and background about judicial interpretations and sometimes policy documents. “Leaders’ speeches” are a statement of policy, substantive & political; relevant policy documents (such as the SPC/National Intellectual Property Administration policy document of February, 2023 contain policy and related political signals; the research & local documents are all related to current issues in the relevant area of law; and the typical cases/outstanding judgments provide guidance to judges & are useful reference materials for lawyers/in-house counsel because the results in the cases reflect the views of the Supreme People’s Court. The publications flag new issues facing the judiciary in the specialized area involved and sometimes include analysis of foreign laws or regulations or an account of a foreign court visit or symposium.  Each journal has a slightly different format.  It may be possible to find electronic compilations of these journals on WeChat.

These journals are mostly published by the People’s Court Press (人民法院出版社).   Some journals have local correspondents reporting on local developments.  It can be surmised from how frequently a journal is updated how useful the relevant SPC division sees it as a platform for guidance and publicity of their views.  Cases from these journals can often be seen reposted on WeChat. 

TitleSponsoring InstitutionContentPhoto/Other Comments
行政执法与行政审判 Administrative Law Enforcement and Administrative AdjudicationSPC’s Administrative DivisionA section entitled: Authoritative viewpoint” (#96 contained Administrative Division Deputy Head Liang Fengyun on how to implement XJP Legal Thought in the courts’ administrative trial work); Research on Specialized topics; Theory & practice; Case analysis; One of the six-in-one guidance mechanisms mentioned by the head of the SPC Administrative Division, Geng Baojian
执行工作指导 Guidance on Enforcement Work/ Guide to EnforcementSPC’s Enforcement Bureau 最高人民法院执行居The most recent edition is #84, published in July, 2024.  Some issues contain discussion by enforcement bureau chiefs; hot topics; empirical study; report on pilot reform; analysis of SPC case; analysis of local court cases; resolving enforcement cases at source. 
最高人民法院知识产权法庭审判指导与参考 Supreme People’s Court Intellectual Property Tribunal Trial Guidance and ReferenceSPC’s Intellectual Property Tribunal

Volume #3 contains: SPC IP Court Annual Report 2021; judgment digests summary; typical cases; law & judicial interpretations; judicial scholarship; research report; window on the world; SPC IP Court 2021 Major Events

民事审判指导与参考 Reference and Guide to Civil TrialSPC’s #1 Civil Division (w’ local correspondents)Latest volume is from 2023: special section on people’s tribunal work; special section on resolving disputes at source (诉源治理); special section on family disputes trials; frontier theoretical issues; special section on dowry issues; typical cases on food safety punitive damages; special section on wage arrears; typical cases on agriculture; local case analysis; research report; #1 civil division judicial conferences 
涉外商事海事审判指导 Guide on Foreign-Related Commercial and Maritime Trial

 

SPC’s #4 Civil Division

Last volume apparently published in 2020, but dated 2018; sections included leaders’ speeches; judicial documents; requests & responses (per Prior Approval system); case analysis; research report; new informationPreviously mentioned on this blog here
司法研究与指导 Judicial Research and GuidanceSPC’s Research Office, but appears not to have been updated for some time.  Zhang Jun was listed as the editor in one of the early volumesincludes leaders’ speeches (policy & guidance); judicial exchanges/cooperation; theory & practice; cases; investigation & researchperhaps the office is focusing on other matters and this journal is therefore not a priority
环保资源审判指导 Guide on Environment and Resource TrialSPC’s Environmental & Natural Resources DivisionSeems to have been rarely updated, perhaps using reports or white papers to show their accomplishmentsfirst volume published in 2015
商事审判指导 Guide on Commercial TrialSPC’s #2 Civil Divisionlatest volume is #57, this has the index for #53 (2021)perhaps the division is focusing on other methods to provide guidance
审判监督指导 Guide on Adjudication SupervisionSPC’s Adjudication Supervision Division#71 published in April, 2024; special section on property-related issues (i.e. private business); outstanding judgments; case analysis; judges’ conference related issues; outstanding judgments; outstanding research reports 
知识产权审判指导 Guide on Intellectual Property TrialSPC’s #3 Civil Division (Intellectual Property)

Content of #41, 2023,  published at the end of 2023: Trial Policy and Spirit: three speeches by SPC leaders (Tao Kaiyuan and Lin Guanghai): Judicial policy document: a joint document issued by the SPC and State Intellectual Property Administration, on strengthening coordination in intellectual property protection; Intellectual Property Week Specialized Issues; Local experience, with two local court guidelines on the application of punitive damages, and one on the hearing of intellectual property small claims; Research reports, all by local courts, one on the protection of new plant varieties, and the other two on competition law issues in the digital and network economy; Typical cases: republishing the third batch of intellectual property protection for new plant variety, and 2021-22 typical cases of mediation of intellectual property disputes;

 		 
中国少年司法 Chinese Juvenile JusticeSPC’s Office of Juvenile Tribunal Work 最高人民法院少年法庭工作办公室 (under the Research Office)quarterly; #54, labelled #4 2022 published end 2023;leader’s speeches;   judicial normative documents; local documents & work; selection of prize-winning essays from the 7th National Juvenile Justice Work Conference; typical cases; foreign experience 
立案工作指导 Guide on Case FilingSPC’s Case Filing Division (has local correspondents)2014 volume includes leaders’ speeches; work situation; theory & practice (w’ local court experience); investigation & research (local court experience); experience exchange (also w’local court experience); jurisdiction; model case analysis; understanding and application of judicial interpretation; SPC judicial interpretations & normative documents 
刑事审判参考 Reference to Criminal Trialthe SPC’s five criminal divisions, established in 1999guidance cases (指导案例), not to be confused with guiding cases 指导性案例 that have been approved by the SPC’s judicial committee; legislation & judicial norms, including judicial interpretations;multi-institutional policy documents; difficult issues; frontier theoretical issues; experience exchange (local courts); outstanding judgmentssome compilations of typical cases published can be found on Wechat; this journal mentioned on this blog here, here, and here
金融法治前沿 Frontier(s) of Financial LawCollaboration between the courts and the regulators. The principal members of this collaboration are the SPC’s #2 Civil Division (which focuses on domestic commercial law issues), the legal department of the People’s Bank of China (人民银行条法司), the National Financial Regulatory Administration, related departments of the China Securities Regulatory Commission (CSRC), and the Shanghai, Beijing, and Chengdu-Chongqing Financial Courts. One of the related courts takes responsibility for editing each issue.See detailed description here 
TitleSponsoring InstitutionContentPhoto or Comments
Guide on State Compensation & Judicial Assistance国家赔偿与司法求助办案指导collaboration between the following institutions: NPC Legislative Affairs Commission State Law Office, SPC’s Compensation Committee Office; Supreme People’s Procuratorate #10 Procuratorial Office; Ministry of Justice Administrative Enforcement Coordination and Oversight Bureau； Ministry of Justice Legal Division (司法部条法司#26 dated 2022, but published at the end of 2023, contains: judicial interpretations, “understanding and application” of two of the interpretations; a section on theoretical research, with  some outstanding scholars contributing, including  Yang Lixin and Shen Kui; case analysis; outstanding judgmentsProfessor Shen’s article also appeared in the National Judges College journal Application of Law, linked here
Political-legal committee, Uncategorized, Zhengfa reform

Guide to Finding Supreme People’s Court Materials: Selected Journals of SPC Divisions (1)

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Late last year, some followers asked me to describe some of the principal sources for Supreme People’s Court’s (SPC) research. I’ll do this in several posts,  as few (particularly outside of China) seem to be aware of the range of publicly available publications of the SPC and its many affiliated entities.

People’s Court Press Bookshop, Beijing, Zhengyi Lu 正义路#10

 

The first set of publications I’ll introduce are the journals edited and written (at least in part) by the trial divisions and other offices of the SPC.   As far as I know, they are only in printed form. That means that those outside of China are not aware of their existence. The readers of these journals are specialists in the particular field.  Many, but not all of them are published by the People’s Court Press (人民法院出版社), which has a retail bookshop near the SPC (see the photo above). I have a special fondness for that bookshop because I purchased judicial handbooks in its predecessor over thirty years ago, triggering my interest in the SPC.  Editing these publications is one of the (unrecognized) responsibilities of SPC judges and for that reason, the publication schedule seems to vary widely,

Considering the functions of the SPC, these journals should be best classified as a form of lower court guidance. For local judges, participating in editing or having an article included in one of these journals is considered an accomplishment for performance indicator purposes.

The publications flag new issues facing the judiciary in the specialized area involved, typical cases, and sometimes analysis of foreign laws or regulations.  Each journal has a slightly different format.

  1. 金融法治前沿（Frontier(s) of Financial Law)

This publication should be of interest to those who read Professor Mark Jia’s Special Courts, Global China, and are interested in researching the latest developments concerning China’s financial courts and related financial regulatory issues. The domestic readers of this journal are likely to be judges in the three financial courts or in the financial division of other courts,  legal personnel in the financial regulators, interested academics, lawyers focusing on financial law and regulations, as well as in-house counsel in banks and other financial institutions.

Unlike most other journals in this group,  this one is a collaboration between the courts and the regulators. The principal members of this collaboration are the SPC’s #2 Civil Division (which focuses on domestic commercial law issues), the legal department of the People’s Bank of China (人民银行条法司), the National Financial Regulatory Administration, related departments of the China Securities Regulatory Commission (CSRC),  and the Shanghai, Beijing, and Chengdu-Chongqing Financial Courts.  One of the related courts takes responsibility for editing each issue.  When I was last in Beijing, I purchased issue #2, dated April, 2024. The court that took responsibility for editing was the Shanghai Financial Court, The content  includes:

  1. “frontier issues,” with contributions from all the regulators, on such topics as the application of Chinese financial regulations abroad: coordination between the Insurance Law and Civil Code; and internet finance disputes;
  2. Typical cases;
  3.  Discussion of Specialized Questions
  4.  Foreign and Hong Kong [and Macau ] finance law issues.  Issue #2 includes an article comparing EU and Chinese insurance company recovery and resolution issues, the author of which is an official of a provincial-level bureau of the National Financial Regulatory Administration.  The author notes that “the operations of some small and medium-sized insurance are possibly facing difficulties” and the EU and British frameworks provide useful regulatory models for China to consider in designing a recovery and resolution system for insurance companies.

Guidance on the Trial of Duty-Related Crime (职务犯罪审判指导)

This publication should be of interest to those who are interested in legal issues (and the broad range of factual situations) related to bribery and corruption in China. Judging from announcements on WeChat, the readers of this journal appear to include procurators (prosecutors), criminal division judges, criminal defense lawyers, and public security officials.

Although none of the introductory essays have mentioned this, I surmise that this journal was founded because the distinctive issues relating to duty crimes “outgrew” the journal of the five SPC criminal divisions,  Reference to Criminal Trial (刑事审判参考). So far, only two issues have been published, #1, published in 2022, and #2, published in the last month or two.  The SPC’s #2 Criminal Division edits the journal.  The content  of issue #1 includes:

  1. Analysis of the application of law (法律适用分析), providing analysis of typical issues in the determination of facts, acceptance of evidence, application of law and the determination of sentencing, providing insights into the thinking and reasoning of judges.  This WeChat article provides a quick summary of many of the cases in this section in issues #1 and #2, but without the colorful detail, such as the case involving the lovers Mr. and Ms. Wang, one a deputy department head in a Central state-owned enterprise, the other the assistant to the head of a state-controlled bank in city T (presumably Tianjin).
  2. [Professional ] judges meeting summaries. Many SPC divisions  (civil or administrative) have published collections of meeting summaries, but this is the first time I have noticed them being made public on criminal law issues.  The first summary involves a 2021 case in which the local Party discipline/supervision authorities investigated the personnel in the courts,  prison, and procuracy for issues relating to the crime of bending the law for selfish ends or twisting the law for a favor. That involved a case in which a criminal was sentenced in 1992 to 15 years for intentional homicide, but was released in 1996,  after several sentence reductions and but who committed the crime of false accusation in 2019 (no details).  The disputed issue was whether the statute of limitations had lapsed.
  3. Difficult issues in practice–two articles, including one by Judge Wang Xiaodong, the now-retired head of the #2 criminal division on issues related to anti-corruption legislation in the New Era (pointing out problems with the substantive and procedural law);
  4. Exchange of experience–this provides a proposed outline (and explanation) for the courts to hear duty crimes in the first instance (人民法院审理职务犯罪案件刑事第一审普通程序庭审提纲（建议稿）(the link has the text of the outline). The explanation mentions it was issued to provide more consistency in the trial of these cases;
  5. Legal regulation (the Supervision Law and Supervision Law Implementing Regulations);
  6. Criminal policy–summary of a policy document (not full text) and press release issued by the Central Commission for Disciplinary Inspection (CCDI)/Supervision Commission, Central Organization Department, Central United Front Department, the Central Political-Legal Commission, the SPC and the Supreme People’s Procuratorate on Opinions on Further Promoting the Investigation of the Giving and Acceptance of Bribes” (the linked article provides the same content).  The summary mentions the possible establishment of a joint punishment mechanism and the implementation of a “blacklist” system for bribers.
  7. Theoretical disputes
  8. Practical Research
  9. Selected Typical Judgments (the last three sections had no content in issue #1.)

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Many thanks to a knowledgeable person for his perceptive comments on an earlier draft of this blogpost.

financial court

Some quick thoughts on Shanghai’s financial court

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Financial cases (accepted/closed) in the Shanghai courts, 2010-16, 2017 cases totaled 179,000

Recently the Wall Street Journal ran a story on the proposed Shanghai financial court, which was approved on 27 April.  The topic of the Shanghai financial court deserves a greater drill down than media reports are able to provide.  Some quick thoughts follow on the proposal and what it means for Chinese court reform:

  1. Shenzhen was actually the first Chinese court to establish a specialized financial trial institution (a tribunal, 法庭) in December, 2017 at the Qianhai Court, but presumably because the Supreme People’s Court (SPC) has greater flexibility in experimenting with new institutions in Qianhai, the SPC did not need to obtain approval from the National People’s Congress to establish it. The Shanghai financial court will be established as an additional intermediate court in Shanghai and the first financial court.
  2. The concept of a financial court in Shanghai has been mooted in Shanghai for almost 10 years (not two years, as stated in this press report), with Lv Hongbing, chair of the Grandall Law Firm (Deputy
    Director of the All China Lawyers’ Association) Gui Minjie, former chair of the Shanghai Stock Exchange among its proponents.
  3. Although President Zhou Qiang mentioned the need to bolster the international influence of Chinese justice in finance, Belt & Road, and the goal of establishing Shanghai as an international financial center by 2020, a white paper (from which the charts in this post are taken) issued by the Shanghai courts in 2017 indicates that three quarters of Shanghai’s financial cases in 2016 involved bank cards.  According to my informal discussions with lawyers in the market, more sophisticated financial institutions/funds often include arbitration clauses in their contracts, as can be seen from reports on arbitral enforcement actions in China.

Screen Shot 2018-04-29 at 10.44.09 AM
76.51% bank card disputes; 15.27% financial loan disputes;3.14% finance leasing disputes; 2.37% insurance disputes; 1.65% securities/futures disputes; 1.06% others

4.  The proposal is linked to last year’s financial work conference and the SPC policy document (关于进一步加强金融审判工作的若干意见, Some opinions concerning the further strengthening of financial trial work) to implement it, which called for work on establishing specialized financial institutions within the courts (the reporter who wrote it “is unlikely that other parts of China will have specialised financial courts” was likely unaware of this. This is part of the increasing professionalization and specialization of the Chinese courts.  Point 28 of the SPC policy document stated:

28.  According to the special characteristics of financial cases, explore the establishment of specialized financial trial institutions. According to the location of finacial institutions and the numbers of financial cases, in areas where financial cases are relatively concentrated, select some courts to establish financial divisions (tribunals), explore implementing centralized jurisdiction of financial cases.  In other intermediate courts where there are a relatively large number of financial cases, according to the case situation, more specialized financial tribunals or financial collegiate panels may be established.

28 . 根据金融案件特点，探索建立专业化的金融审判机构。根据金融机构分布和金融案件数量情况，在金融案件相对集中的地区选择部分法院设立金融审判庭，探索实行金融案件集中管辖。在其他金融案件较多的中级人民法院，可以根据案件情况设立专业化的金融审判庭或者金融审判合议庭。

5.   Also indicating that the SPC looks to foreign jurisdictions when establishing Chinese institutions, in his statement to the NPC Standing Committee, President Zhou Qiang explicitly mentioned financial dispute resolution in the United States, United Kingdom,  UAE (Dubai), and Kazakhstan (从世界范围来看，英美等发达国家和阿联酋、哈萨克斯坦等新兴市场国家均建立了专门的金融司法体系).

6. The proposal is linked to the SPC’s diversified dispute resolution policies, particularly in strengthening links between stock exchange and other financial institution dispute resolution and the courts.

7. Judges for the court are to be selected from existing judges in Shanghai and possibly from the legal profession.  As I wrote late last year and last month, recruiting lawyers and other legal professionals to the judiciary mentioned as one of the judicial reforms, has proved to be more difficult than it would otherwise appear to an outsider.  It is unclear what the turnover of middle ranking judges with expertise in the financial sector in Shanghai is, although they would fit the profile of judges who leave the judiciary. The court may be able to retain judges with expertise who might have otherwise decided to leave, because there will be additional promotions available as court president, vice president, etc.

8.  In his statement to the NPC Standing Committee, President Zhou Qiang mentions that the new financial court will have centralized jurisdiction over financial disputes (civil, commercial and administrative, not criminal), foreshadowed in the SPC policy document mentioned above and describes the court’s jurisdiction in some detail. The NPC Standing Committee decision states that the SPC will issue a detailed document on the jurisdiction of the Shanghai financial court, that the financial court will hear civil, commercial and administrative financial cases previously heard by the city’s intermediate court and that appeals will be to the Shanghai Higher People’s Court.