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Integrating socialist core values into court judgments

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:

  1. a fusion of law and morality, which is linked to their fusion in traditional legal thought ( 法治与德治相结合); 
  2. 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
  3. the organic unity of legal, political, 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:

  1.  Cases involving national interests, major public interest, and widespread public concern;
  2. 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;
  3. 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;
  4.  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;
  5. 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;
  6. 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:

  1.  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.

 

 

Happy Niu 🐂Year!

 

 

 

 

 

 

 

Happy Niu 🐂Year to all blog followers and readers! Best wishes to all for good health, success in work and study, and all else!

In recent weeks I have been focusing on several longer pieces of writing and am still in “focus mode.”

While most of the Supreme People’s Court  (SPC) has been taking a break, based on previous year’s reports, it is likely that the team of people working on drafting President Zhou Qiang’s speech to the National People’s Congress (NPC) are hard at work.  I surmise that they will draw on January’s Central Political-Legal annual work conference, where responsibilities for implementing this year’s major tasks were allocated, and guidance from President Xi was transmitted. At that time, the Party leadership heard work reports from the SPC’s (and Supreme People’s Procuratorate’s) Party Group, so it seems likely that the report to the NPC will draw on that report as well.

Among the content that I expect to be included in the report is:

  • successful transition to the Civil Code, including review  of old judicial interpretations (and other judicial normative documents), canceling and amending old ones;
  • successes in meeting the challenges that Covid-19 meant for the courts, including the increased use of online proceedings;
  • smart courts and informatization;
  • accomplishments of the Supreme People’s Court’s Intellectual Property Court, including its first anti-suit injunction;
  • the issuance, for the first time, of reports on the judicial review of arbitration in 2019 and judicial assistance in civil and commercial matters between the Mainland and Hong Kong.  The full text of the two reports has not yet been released to the public, so I surmise that they will be released during the NPC meeting;
  • In the area of criminal law, likely the effective use of criminal proceedings in the battle against Covid-19;
  • successes in the saohei (organized crime) campaign;
  • successes in the area of environmental law, such as the recent signing of a framework agreement between the SPC and the leading small group on the protection of the Yellow River and the June, 2020 policy document on providing judicial services and guarantees to the protection and high quality development of the Yellow River;
  • furthering of socialist core values, such as the guiding opinion issued on 18 February on integrating those values into judgments (最高人民法院印发《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) and
  • judicial reforms such as the recently approved establishment of the Beijing Financial Court (the Shanghai Financial Court has been very busy since it was established) and the piloting of reforms to separate simple and complicated cases (the SPC recently submitted a midterm report to the NPC Standing Committee on the pilots).

We’ll see next month how accurate the above guesses are. In the meantime, additions or corrections are welcome.

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The SPC New Year’s greetings are ©the SPC, found in this short video 

Socialist core values & Chinese judicial interpretations

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socialist core values poster in a Shanghai hotel

I write on socialist core values and Chinese judicial interpretations with some trepidation.  Not because I have trouble deciphering socialist core values, but because the two documents core to the analysis are available in summary form only, as at least one source has mentioned that the SPC document is classified. This blogpost is based on those summaries, primarily on the summary provided by Supreme People’s Court (SPC) Research Office (研究室) head Jiang Qibo of its five-year work plan (2018-2023) to incorporate fully socialist core values into judicial interpretations (关于在司法解释中全面贯彻社会主义核心价值观的工作规划(2018-2023).)  in 2015 the SPC had issued a general document on socialist core values.

As explained below, it appears that the SPC is both “serving the greater situation” by implementing in the courts the Party’s plan to integrate socialist core values in plans to legislate and amend legislation(社会主义核心价值观融入法治建设立法修法规划) while at the same time seeking to deal with many of the difficult legal issues that face it.

For those unfamiliar with the SPC’s Research Office, (as I am writing in yet another academic article stuck in the production pipeline),  2007 SPC regulations place it as the gatekeeper for reviewing proposals, examining and coordinating the drafting of judicial interpretations.  It also acts as the liaison when other central institutions forward their draft legislation and judicial interpretations to the SPC for comments, coordinating the SPC’s response with other divisions and offices, with a knowledgeable person noting that “the view of the Research Office prevails.”

The critical language in the Party’s plan for the SPC and its judicial interpretations appears to be: “judicial interpretations should be amended and improved in a timely manner according to the demands of socialist core values” (司法解释,要按照社会主义核心价值观的要求,及时进行修订完善).  This language appears only in the SPC’s summary of its own plan and not in the earlier reports on the original plan.

The SPC’s approach to implementing the Party’s plan was to pull together all the demands on and recommendations to it to draft judicial interpretations–some in Party documents, others in recommendations from the National People’s Congress (NPC) Standing Committee (presumably its Legislative Affairs Commission), proposals from NPC and CPPCC delegates, a collation of proposals concerning judicial interpretations from the lower courts, plus  the needs of the courts (as seen from the SPC), and the SPC’s other drafting commitments.

The areas of law that Jiang Qibo are relevant to a broad range of persons, from commercial lawyers to environmentalists, to those interested in the rights of women and the elderly. Some involve new areas for judicial interpretations while others require expanding old ones.

Jiang Qibo classified the interpretations into five broad categories:

  1. The category of patriotism, dedication, and harmony includes the following (important) judicial interpretations. It appears the #1 Civil Division will take the lead on these, and I trust will engage in public consultation:
  • Amending those on the right to reputation and the right to honor to include better protection for heroes and martyrs (as to be expected and was flagged in a recent blogpost); See some earlier translations here on the SPC’s statements on the earlier heroes and martyrs litigation;
  • amending and improving judicial interpretations related to the Marriage Law and family law, etc.  I recommend this article by Professor Yang Lixin of Renmin University (formerly an SPC judge) for his forthright analysis of the state of Chinese family law and current important issues (children born out of wedlock, same-sex marriage, wills, surrogacy, etc);
  • improving the systems for trying family-related cases (Judge Du Wanhua is overseeing the pilot projects in this area); improve the legal protection of juveniles; prevent and punish school bullying, etc. (the SPC has been doing research on improving juvenile law and preventing school bullying for several years).
  • amending/improving labor dispute judicial interpretations (these fill in the holes in labor legislation)  As has been discussed earlier on this blog, the number of labor cases in the courts has increased.

2. The category of equality, justice, democracy, and rule by law:

  • Improve protection of property, especially non-public property, in criminal law. (See last year’s blogpost on this). Recent developments in China have seen greater use of confiscation procedures, and as this blog highlighted earlier this year, property protections are inadequate.
  • Improve the rules for trying property condemnation cases, to better protect the rights of those whose property is being acquired.
  • A judicial interpretation on hearing disputes over the use of personal information is needed (project approval for this has been given). Also work will start on a judicial interpretation on the protection of wild animals and protected species (see NPC Observer’s article on a related case), and the enforcement judicial interpretation is also to be amended (because of the SPC’s campaign to improve enforcement).

3. In the category of justice, friendship, and cooperation are the following:

  • an interpretation on self-defense (recently in the news in China in several cases, such as the Yu Huan case and a case in Kunshan);
  • also improving the SPC’s2016  policy document on judicial legal assistance (legal aid as arranged by the courts).

4. On setting out further details to the broad principles in the General Part of the Civil Code (also Judge Du Wanhua continues to be involved with this):

  • amending the contract law judicial interpretations;
  • amending the judicial interpretations on the criminal punishment production and sale of fake and shoddy goods;
  • amending the judicial interpretation on food and drug safety crimes;
  • criminal punishment of fraudulent litigation (just released);
  • rules on hearing cases in which the government is a contracting party, and issuing a judicial interpretation at an appropriate time.

5. On prosperity, creativity, and greenness:

  • amending the judicial interpretation relating to villages, to provide services for rural revival;
  • amending real estate related judicial interpretations;
  • amending finance related judicial interpretations, to ensure national financial safety and prevent a financial crisis (the criminal law in this area is quite unclear);
  • amending the judicial interpretations on bankruptcy law;
  • improving judicial interpretations related to intellectual property law (IP law), see more below;
  • amend the judicial interpretations related to environmental protection;
  • amend the judicial interpretations on maritime trade and other maritime matters.

On the intellectual property front:

  • The SPC will look into punitive damages for patent, copyright, and other IP infringement so that in serious cases punitive damages can be imposed and having the infringer responsible for the costs to the rights holder of stopping the infringement;
  • in the next five years, if the legislation is not amended it will work on using market value as a basis for damages;
  • it will work to better coordinate between administrative and judicial enforcement of IP rights;
  • it will work on guidance on civil cases that arise because of monopolistic conduct;
  • protection of plant species;
  • it will look into new issues related to unfair competition cases, also in trade secret  cases, and new issues related to civil trademark disputes;
  • research evidence issues in IP cases, look into having IP technical investigators involved in litigation;
  • research jurisdiction in IP and unfair competition cases;
  • look into preliminary preservative measures in IP cases (mentioned in an earlier blogpost).

The ones listed in the plan will be prioritized in the project approval process for judicial interpretations (see two earlier blogposts on what that is and the topics on that list)