Tag Archives: Supreme People’s Court

Court Operations

The Supreme People’s Court and interpreting the law, revisited

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Marriage law judicial opinion
Marriage law judicial opinion

The topic of the Supreme People’s Court and the interpretation of law is one that vexes many, legal practitioners and academics alike.  Although the Chinese constitution vests the power to interpret law with the Standing Committee of the National People’s Congress (NPC SC), the Supreme People’s Court (the Court) and the Supreme People’s Procuratorate (SPP) actively issue interpretations of law. The Court more so than the SPP, because it deals with a broader range of legal issues.  These interpretations of law are critical to the operation of the Chinese legal system because national law tends to set out broad principles that require additional legal infrastructure to be workable and the courts, in particular, need that legal infrastructure to decide cases.

A 1981 decision by the NPC SC delegated to the Court the authority to interpret law relating to questions involving the specific application of laws and decrees in court trials, while the Supreme People’s Procuratorate (SPP) was delegated authority to interpret law relating to questions involving the specific application of laws and decrees in procuratorial work.  The Organic Law of the People’s Courts re-iterates the delegation of authority to interpret law to the Court. Oddly enough, the principle is not in the Organic Law of the People’s Procuratorates. Interpretations by both the SPP and the Court are known as “judicial interpretations.”

In 2015, the Legislation Law, which had previously not addressed interpretation of law by the Court and the SPP, addressed the issue in Article 104.  This article is taken as intended to codify existing practice, because the explanation of the law recognizes the practical necessity of judicial interpretations:

  • “Interpretations on the specific application of law in adjudication or procuratorate work issued by the Supreme People’s Court or Supreme People’s Procuratorate shall primarily target specific articles of laws, and be consistent with the goals, principles and significance of legislation.”
  • It requires the Court (or SPP) in the situation described in the second paragraph of Article 45 of the Legislation Law (where the NPC SC  gives interpretations of national law), to submit a request for a legal interpretation, or a proposal to draft or amend relevant law, to the NPC SC.
  • As 2007 regulations of the Court on judicial interpretations had required, interpretations of law are required to be reported to the NPC SC within 30 days of issuance.
  • Courts and procuratorates other than the Court and the SPP must not make specific interpretations of law. (This sets out in national law what had previously been contained in Court (and SPP regulations.)  The lower courts continue to issue guidelines applicable within their jurisdiction, as discussed  here.

(The explanation of the law  (legislative history) provides further background).

The process for drafting Court interpretations described in the 2007 regulations requires that the views of the relevant special committee or department of the NPC SC be solicited during the drafting process, and there would be pushback from the NPC SC if it was considered that the judicial interpretation had gone ‘too far.’

What types of judicial interpretations are there?

The 2007 Court regulations on judicial interpretations (linked here)  limit judicial interpretations to the following four types:

Those 2007  regulations set out various procedures for drafting and promulgating judicial interpretations, including a requirement that they be approved by the Court’s judicial committee and be made public.  As discussed in earlier blogposts, broad public consultation may be done if it affects the “vital interests of the people or major and difficult issues. These regulations also provide that judges may cite judicial interpretations as the basis for a court decision or ruling. Article 23 of the 4th Five Year Court Reform Plan mentions reform of judicial interpretations:

Improve the Supreme People’s Court’s methods of trial guidance, increase the standardization, timeliness, focus and efficacy of judicial interpretations and other measures of trial guidance. Reform and improve mechanisms for the selection, appraisal and release of guiding cases. Complete and improve working mechanisms for the uniform application of law.

As discussed in earlier blogposts, the Court also issues other documents with normative provisions that do not fit the above definition.  Those will be discussed separately.

Commercial law

The tidal wave of Chinese shadow banking disputes

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the "pyramiding" private lending (potentially crushing the banks)
“Pyramiding” private lending (potentially crushing the banks)

My article in The Diplomat on shadow banking disputes was recently published. It highlights what few outside of China have noticed–that shadow banking/private lending disputes account for a substantial proportion of civil/commercial disputes in Chinese courts, creating a particular burden on the courts.  In some places, the percentage hovers close to 50%!  These disputes raise a range of issues and the law is particularly unclear.  Although some provincial (and municipal) courts have issued guidance in the absence of a more detailed judicial interpretation, the lower courts are looking to the Supreme People’s Court for a more comprehensive national legal framework.

Commercial law, Communist Party and the Courts, Court Operations, Court Reform, environment

Supreme People’s Court president says court reforms in “deep water area”

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566929On 12 March 2015, Zhou Qiang, president of the Supreme People’s Court (Court) delivered his work report to the NPC, putting the best face on where the Chinese courts are and where they’re going. He described court reforms as being in a “deep water area” (深水区)(a high risk area).  This blogpost will highlight issues that other commentators (outside of China) have so far missed:
  • the mismatch between the focus of the work report and the work of the courts;
  • what the work report (on other than criminal cases reveals); and
  • the challenges to the Court leadership in the year ahead.

What is the mismatch?

charts for SPC
© Tiantong & Partners; charts illustrating SPC report
The primary focus of the work report (as always) is law and order, as seen from the perspective of Communist Party leadership, particularly state security related offenses (including terrorism and “splittism”) as well as ordinary crimes.  A big difference in this year’s report is that President Zhou Qiang apologized for previous miscarriages of justice and highlighted efforts to prevent future ones.  Other commentators have already focused on these both of these important developments and and other issues related to the criminal justice system.
2014 cases in chinese courts
bar chart: 2010-2014 increase in cases resolved by courts (in 10K) Pie chart: civil/commercial/IP; admin; re-trial/govt compens/enforcement/; parole; other/criminal

What the work report reveals is that most cases heard in the Chinese courts are not criminal and that the number of cases heard by the courts is rising.

What are cases are the Chinese courts hearing?

The pie chart (distributed as an attachment to President Zhou Qiang’s report at the NPC), illustrates that over 63% of the cases heard in the Chinese courts are civil cases (including commercial, family law and intellectual property cases), not criminal. Criminal cases (including parole related cases) account for something over 10% of cases (as others have discussed, many minor offenses are handled as administrative, rather than criminal offenses).

A closer look at civil cases in the Chinese courts

 A bit of arithmetic reveals (unfortunately the authors of the Report did not set out a corresponding chart), that 34% of civil cases (2,782,000) in 2014 were commercial cases (up 8.5% year on year), while 66% were what classified as civil cases (in the narrow sense, described below).

Commercial cases:

(These cases are illustrated in the chart to the left that has the ¥ sign.)
1. Finance cases (824,000)(a broad category including various types of loans, credit cards, securities, futures, insurance etc.).
2.  Sales contracts disputes (664,000).
3.Intellectual property (110,000, up 10% year on year)(I  the detailed analysis of this can be found here, by my fellow blogger, Mark Cohen, at the ChinaIPR blog);
4. Corporate disputes (12,000) (shareholder, merger and acquisition, creditor initiated bankruptcy);
5. Maritime cases (12,000).
Foreign-related cases (5804), )these, although a focus of foreign law firms alerts and the press, are a tiny drop in the sea of Chinese civil cases.  Many cases involving foreign companies actually involve their China incorporated subsidiaries.
The number of finance cases suggests a large number of disputes relating to loans by financial institutions.

Civil cases

(These cases are illustrated in the chart that has two people standing next to one another and the pie chart below.)
2014 civil cases in the Chinese courts
2014 civil cases in the Chinese courts
In 2014,  5,228,000  civil cases were heard in the Chinese courts (up almost 6% year on year):
1.  Family law cases (1,619,000),(this category includes  contested divorces, inheritance, support cases), accounting for about 30% of civil cases. The chart above 13% year on year increase in inheritance cases (showing an increasing number of people have assets worth fighting in court over, and perhaps also inadequate estate planning).
2.  Loan cases not involving financial institutions (between individuals, company and individual, or two companies) （1,045,600), accounting for almost 20% of civil cases. (The categorization has changed, making a year on year comparison not easily possible).
3. Labor cases (374, 324), accounting for 7.16% of all civil cases.  These include appeals from labor arbitration as well as cases that can be directly brought in the courts).
4.  Environmental tort cases (3331) (up 51% year on year).
5. Product liability cases are up 44%, but the base or total number for 2014 is not set out.
6.  Cases involving rights of rural residents (219,00)(rights to rural residential land, transfer of contracted land) migrant laborers seeking unpaid wages).
7.  Construction disputes are up almost 18% (base or total number for 2014 not set out).
These numbers speak to:
1. changes to the Chinese family;
2. a large number of loans that are under the radar of the financial authorities;
3. employees who are increasingly rights conscious;
4. continued litigation risk for foreign companies doing business in China (including through subsidiaries), because as perceived “deep pockets”, Chinese litigants often target them in product liability cases.

Administrative cases

 First instance administrative cases (companies or individuals suing the government) (131,000) continue to be a tiny number, although up 8.3%, and it remains to be seen whether the amended Administrative Litigation Law (Administrative Procedure Law) will lead to an increase in cases.

 Enforcement cases

Enforcement cases (compulsory enforcement of court judgments or orders, arbitral awards, etc) account for 3,430,000, a 14% increase year on year.  This suggests that fewer people (companies) are complying with dispute resolution voluntarily.
10% increase in cases accepted (will be a challenge to the courts if this trend continues because the intent is to cut the number of judges), amount in dispute is up 15%.

Court reforms already in a “deep water area”

Zhou Qiang highlighted that court reforms are already in a “deep water area” (high risk area) and the courts:
  • need to penetrate interest group barriers;
  • have the courage to move their own “cheese”;
  • need to use “the knife” against itself (presumably to cut out corrupt, poorly or non-performing judges);
  • deal with many deep-seated problems;
  • make progress on a long list of reforms:
    • continue and expand pilot reforms on changing the financing and personnel appointments of the local courts to all provinces/directly administered cities;
    • implement hearing-centered litigation reforms;
    • make progress on case filing reforms (to resolve the long term problem of litigants facing obstacles when they file suit);
    • put in place a system with dealing with assets seized and confiscated by the courts (to avoid violation of property rights and further judicial corruption in this process);
    • implement the prohibition against defendants wearing prisoner’s garb in court;
    • further implement judicial reforms related to petitioning;
    • promote alternative dispute resolution, such as arbitration, people’s mediation, administrative mediation etc.
    • continue work on pilot projects on expedited criminal procedures (for minor matters);
    • improve the people’s assessors system.

All of these reforms create tremendous challenges for the courts.  The number of cases accepted by the courts in 2014 (15,651,000) was up about 10%.  The judicial reforms to petitioning and other reforms will channel more disputes into the court system. Planned personnel reforms are leading to an exodus of young judges.  Many of the planned judicial reforms are intended to the way the courts operate internally and interact with other institutions. The 4th Five Year Court Reform Plan sets out target dates for accomplishing certain major judicial reforms.  The salary gap between what an experienced lawyer in private practice in a major law firm and a counterpart in the judiciary is large, leading many talented people to prefer the greater financial benefits and professional flexibility that comes with being a lawyer.

The political leadership has approved the 4th Five Year Court Reform Plan.  Issuing it raises expectations among ordinary people as well as those in legal profession. The pressure is on for the Court leadership to deliver on the promised judicial reforms.

Domestic violence

Supreme People’s Court +3 attack domestic violence

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Unknown-2On 4 March 2015, the Supreme People’s Court hosted a press conference, attended by officials from the Supreme People’s Procuratorate, Ministry of Public Security, and Ministry of Justice, to announce their jointly drafted and long-awaited policy document (translation  here) on domestic violence, on which the Supreme People’s Court took the lead. (The Domestic Violence Law has not yet been promulgated. The intention is to create an effective anti domestic violence system, incorporating principles common to other jurisdictions as well as international domestic violence legislation. The United Nations, the American Bar Association, the Australian government, and many other international and national institutions and organizations have worked with the Supreme People’s Court and other Chinese institutions for many years on these issues, to assist the Chinese institutions to understand domestic violence law and practice elsewhere in the world.  This blog has highlighted earlier work by the Supreme People’s Court on domestic violence. Some of the highlights include:

  • Domestic violence includes violence between family members and others who live together in relationships, such as guardianship,support, foster care,  cohabitation (it intends heterosexual relationships and may (or may not include homosexual relationships).
  • The authorities need to intervene timely and efficiently, to protect the safety and privacy of victims;
  • Collect evidence of domestic violence in a timely manner, including objects on site, undertakings by the victim, witness statements, as well as from the community obtain medical records, photos, videos, and other evidence.
  • Respect the intention of the victims;
  • Provide special protection to juveniles, the elderly, the disabled, pregnant and nursing mothers, and the severely ill through legal assistance and other measures;
  • Encourage the community to report cases, including friends, neighbors, coworkers, hospitals, schools, kindergartens, and other institutions and entities;
  • The authorities (public security, procuratorate, courts) must protect the privacy of persons making accusations or reporting domestic violence who do not want their identity revealed;
  • The authorities must make arrangements to ensure the health and safety of victims;
  • If the accused aggressor is permitted to be out on bail, the aggressor can be order to stay away from the victim and juvenile children;
  • It sets out principles concerning the abused spouse/partner defense;
  • Cases must be quickly and efficiently investigated, accepted, and transferred (to avoid the “buckpassing” that occurs, to the detriment of victims);
  • In less serious cases, the authorities should make use of undertakings by aggressors not to commit the offense, apologizing to the victims, compensating the victim, and other non-criminal measure;
  • Courts should use measures to protect the safety of victims and other dependents, such as ordering the aggressor to leave the home, forbidding the aggressor from approaching the victim, and other protection orders.

The Supreme People’s Court also issued model/typical five domestic violence cases to illustrate issues such as:

  • domestic violence includes elderly violence;
  • domestic violence includes violence to children;
  • domestic violence includes violence to persons living together who are not married;
  •  domestic violence includes maltreatment to the point of causing the victim to commit suicide.

Comments

Many of the provisions of the opinion address outstanding problems that the Chinese justice system has in dealing with domestic violence–disregarding it as a “family matter,” revealing the identities of those who report it, recognizing beatings,forced  overwork, mental and physical torture as abuse.

This opinion is intended to deal with the many domestic violence issues that have arisen and which have caused a great deal of public controversy.  Implementing it will require a great deal of hard work, including a change in attitude among many in the police, prosecutors, and courts.

Court Reform, Military courts

What does the 4th Plenum mean for military legal reforms (continued)

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Criminal Division, PLA Military Court
Criminal Division, PLA Military Court

In early February, I published an article in The Diplomat, focusing on little understood post 4th Plenum developments on Chinese military law, which (to my surprise) was summarized and translated by Chinese official media.  Professor Zhang Jiantian of China University of Political Science and Law recently published an article in People’s Court Daily on issues affecting the military courts, in which gives the outside world a glimpse of the gated Chinese military legal community and sets out his recommended reforms. My article in the Global Military Justice Reform blog summarizes Professor Zhang’s views and recommendations.

Court Operations

Supreme People’s Court interprets the Civil Procedure Law

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2On 4 February the Supreme People’s Court (Court) issued a comprehensive interpretation of the 2012 Civil Procedure Law, with 552 articles, longer than the 294 articles in the law itself.  It creates a much more sophisticated body of civil procedure law.  The Court has been working on this interpretation for over two years. As is usual, the Court held a press conference to explain its significance. The text of the press conference, in which the Court spokesman and Judges Du  Wanhua and Sun Youhai spoke, is also available on the Court’s website. A few of the highlights of the interpretation:

  • More detailed section on evidence, including recordings, reflecting the longer term work underway to draft an evidence code.
  • A new section on public interest litigation, in relation to environmental, consumer cases and other such cases.  The organization must show prima facie evidence of harm to the public interest. Other organizations and administrative agencies can apply to be joint plaintiffs.
  • Much longer section on foreign related issues, including provisions concerning foreign language evidence (translations should be provided), and if the parties disagree on the translation, they should agree on a third party translation agency.
  • Permission of the court is required to tape, video, or provide live posting on social media.
  • Many provisions relating to divorce of [former] Chinese citizens who have settled outside of China.
  • Section on small claims procedure.

More analysis to follow.

Court Operations, death penalty

Supreme People’s Court: new regulations on legal representation in death penalty review cases

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dscn3764
complex where death penalty review undertaken

On 29 January, the Supreme People’s Court issued regulations on legal representation in death penalty cases, Measures for Considering the Views of Defense Lawyers in Death Penalty Review Cases (最高人民法院关于办理死刑复核案件听取辩护律师意见的办法) (translation available here).  This blog previously flagged that the Court was drafting them and that they were meant to be issued by the end of the year.  They will become effective on February 1.  They  were accompanied by a brief question and answer session with a “responsible person” from the Court’s #1 Criminal Division. presumably the head or deputy head.  These brief regulations provide important protections to those sentenced to death, and are part of the Court’s efforts to minimize mistaken cases.

The regulations permit defense lawyers to review the defendant’s file, provide additional evidence and have a hearing with the judges handling the case, although not a formal court hearing. The Court has created a room for lawyers to use to review death penalty review materials. The transcript of the hearing (as signed off by the defense lawyer) is to be included in the case file.  However, defense counsel has only two weeks to submit its additional opinion in the case.  Presumably this deadline can be extended if counsel provides justification.

The regulations set out the telephone numbers of the Court’s criminal divisions, which review death penalty cases.  This blogpost translated a chart drafted by the Chinese magazine Southern Weekend setting out jurisdiction of the various divisions.

This is an important step forward in protecting the rights of criminal defendants and is the product of many years of law reform efforts.

 

Court Reform, Environmental law

Why the Supreme People’s Court is harnessing the NGO “genie”

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u=3330605769,467553553&fm=15&gp=0
Obstacles to public interest litigation-filing suit & obtaining evidence

Many China observers were surprised to learn that in early January, 2015, the Supreme People’s Court (Court) issued an interpretation on enabling civil society organizations to sue polluters on behalf of the public, when most commentators take the view that those organizations are controlled more tightly than before.  The Court issued it after years of work, analysis, and low numbers of environmental lawsuits (highlighted in my earlier blogpost), particularly public interest ones.

This blogpost explains:

  • what the Interpretation does;
  • what its background is;
  • why the Court is enabling environmental NGOs to file suit; and
  • An assessment of its implications.

This blogpost should be read with Barbara Finamore’s blogpost, How China’s Top Court is Encouraging More Lawsuits Against Polluters.

What the interpretation does

The interpretation, entitled “Interpretation on Several Issues Regarding the Application of Law in Public Interest Environmental Civil Litigation (Interpretation) (Chinese original found here and translated here). The Interpretation (like many other Court interpretations) combines court procedural rules with additional rules on liability and other legal standards to put in place a framework for Chinese environmental NGOs to file public interest environmental cases against polluters. It supplements Article 58 of the Environmental Protection Law (amended in 2014) and the 2012 Civil Procedure Law, because neither law had sufficient legal rules to guide local NGOs in bringing and local courts in accepting, hearing, and deciding these lawsuits.

A draft of the Interpretation had been issued for public comment on 1 October and the final draft reflects comments from the public.  Both domestic and international organizations commented on the draft.

The Interpretation authorizes environmental NGOs with a five year track record that are legally registered with the local NGO regulator, the Ministry of Civil Affairs or its local counterpart, to sue polluters on behalf of the public, and to seek the equivalent of a permanent injunction, compensation, orders to clean up the pollution, or an apology, among other measures. A Ministry of Civil Affairs official recently estimated that about 700 environmental groups met current qualifications.

The highlights:

  • Broad definition of environmental NGOs that can file suit. At the press conference announcing the Interpretation, the Court spokesman said that a broad definition was adopted so that it would be flexible enough to accommodate additional types of approved non-profit groups.  This may be have been done to accommodate contemplated reforms to non-profit institutions;
  • Provisions permitting an NGO to seek a court within a provincial boundary but outside the locality of the polluter to hear the case. Because local courts are locally funded, they are often reluctant to hear or decide cases that cause result in judgments against companies that are often substantial contributors to local tax bases. An NGO is also allowed to sue polluters outside of its own locality. This was also highlighted in the same press conference.
  • The Interpretation enables injured private parties to piggyback on the NGO’s case, also highlighted by the Court spokesman.
  • Several provisions to require court oversight when NGO settles the lawsuit, to guard against intimidation by the polluter, which may be allied with local government.
  • The damages the polluter pays are paid into a pool of money, which is used to compensate those harmed.
  • If the defendant polluter refuses to provide information about pollution discharge, the court can presume that the plaintiff’s assertions have been established.
  • Several provisions are designed to reduce the costs of litigation to the NGO.
  • The litigation must not be profit making for the NGO.

The Court spokesman described these cases as “a new type”, difficult to try and enforce, and ones that attract a great deal of public attention,  but given the high degree of public concern, in January, 2015, China’s People’s Court Daily identified the Court’s environmental legal policies, as being the SPC’s top judicial policy initiative in 2014.

Some background

The Interpretation reflects years of work within China by local legal experts, local environmental NGOs, as well as the technical support of international organizations such as the United Nations Development Program, the Asian Development Bank, and other China-based foreign NGOs, and universities. The structure established by the Interpretation reflects concepts adapted from US law and other foreign legal systems, but reflects Chinese legal, political and societal realities.

The Court worked with the Ministry of Civil Affairs (MCA), which regulates NGOs, and the Ministry of Environmental Protection (MEP) in establishing a policy framework for implementation, which set out in the document issued with the Interpretation, the Notice of the Supreme People’s Court, Ministry of Civil Affairs, and Ministry of Environmental Protection on Implementing the System of Environmental Public-interest Civil Litigation (Chinese original here).

The Third and Fourth Plenum decisions both highlighted establishing compensation systems for those responsible for creating ecological or environmental damage, and the Court’s policy document on environmental issues, issued in June, 2014, signaled the importance to the government of public interest environmental litigation.

Track record of Chinese courts on environmental litigation

About 170 courts have now established environmental divisions, but according to Court studies, most have heard relatively few cases. Public interest environmental litigation was piloted in provinces as diverse as economically developed Jiangsu Province and the less developed southwestern provinces of Yunnan and Guizhou.  These cases have been analyzed  both in Chinese and English.The pilot projects highlighted some of the underlying issues, which include local protectionism, lack of specific provisions on these cases, lack of training, and lack of coordination between the environmental protection authorities and the courts. An additional issue is also the performance indicators (now being reformed) of the courts, which incentivizes judges to avoid taking risks.

From 2000 to 2013, only about 50 environmental public interest lawsuits were heard in China, most of which were filed by government agencies, according to a report by the state-sponsored All-China Environmental Federation. NGOs have attempted to file environmental public interest cases for many years, but have generally been refused by the courts. For example, although the All-China Environmental Federation filed eight lawsuits in 2013, but none were accepted.

Model cases before the Interpretation was issued

In the last few months, several public interest environmental cases have received a great deal of attention, including:

  • A case decided at the end of 2014 involving by a semi-official NGO in Jiangsu Province, where the Taizhou City Environmental Protection Association (the chairman, Tian Jun, is also the head of Taizhou’s environmental protection bureau) against six chemical companies that had polluted local rivers resulting in a 16 milllion RMB compensation against the polluters.
  • A case filed in December, 2014 in a county court in Chongqing by Chongqing Green Volunteers Association against a Hubei mining company.

Rationale for harnessing the NGO “genie”

u=1354040791,1172977602&fm=21&gp=0
[public interest litigation] compensate my losses!
The Chinese government recognizes that the degradation of the environment in China, along with the harm suffered by hundreds of millions of people from air, water, and soil pollution is a social and political problem, and the system, without involving NGOs, was unable to address the problem, and that it is preferable to resolve environmental problems by bringing environmental disputes into the courtroom, rather than having demonstrations against polluters.

The joint policy document issued by the Court, MCA and MEP seeks to overcome local government hostility to environmental NGOs.  Local governments had often been often unfriendly to environmental NGOs. The head of the Chongqing Green Volunteers Association was quoted in 2012 as saying “I annoyed a lot of government officials and businessmen. They hired gangsters to beat me up,” he says of the early days of his work. “After hearing this news, many of my environmental activist friends were too frightened and they left me – one after another. I was feeling very helpless.”

Implications

The predictions in the Chinese legal press are that the Interpretation will eventually lead to more litigation, despite local protectionism and the technical demands on NGOs preparing to bring these lawsuits.

  • On January 1, 2015, the day that the new Environmental Protection Law went into effect, the environmental NGOs Friends of Nature and Fujian Green Home, with the support of lawyers from the environmental law center at China University of Politics and Law, , filed an environmental public interest suit to counter damage to a woodland area by mining activities in Nanping, Fujian province; the case was subsequently officially accepted
  • On January 4, 2015 with the support of funding from the Alibaba Foundation, NRDC’s partner organization Friends of Nature officially launched an “Environmental Public Interest Litigation Support Fund.”
  • On January 13, 2015 the All-China Environmental Federation filed two lawsuits in Shandong’s Dongying Intermediate People’s Court against polluters in Zhejiang and Shandong provinces, which were accepted.
  • Based on my own contacts, other environmental NGOs are reviewing their activities to consider whether they have an appropriate case.

 

 

 

 

 

Court Operations, Court Reform

A new audience for US Supreme Court Chief Justice Roberts’ 2014 Year-end Report

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imgresChief Justice John Roberts of the US Supreme Court may be surprised to learn that (an edited and translated version of ) his year-end report (linked here), is being read by tens of thousands of Chinese judges and lawyers. The reason is a translation by the Institute for Applied Legal Studies, affiliated with the Supreme People’s Court (Court), was published on the Supreme People’s Court website and distributed through its social media channels (Wechat and Weibo), as well by the social media feeds of local Chinese courts.

What relevance does Justice Robert’s report have for the Chinese judiciary?  It reflects how the Court considers foreign legal models as it seeks to reform the Chinese courts. Some of the “take-aways” are highlighted below.

Borrowing foreign legal models

Referring to or “borrowing”  foreign legal models has been a important part of China’s legal modernization, particularly in technical areas of law, but it remains politically sensitive.

The official position on borrowing/referring to foreign legal models is set out in the 4th Plenum Decision: “Draw from the quintessence of Chinese legal culture, learn from beneficial experiences in rule of
law abroad, but we can absolutely not indiscriminately copy foreign rule of law concepts and models.”

Earlier this month, an official of the Communist Party’s Central Political-Legal Committee, writing in the Communist Party’s journal Qiushi (Seeking Truth)  warned:

We want to study and borrow from the world’s best achievements of legal civilization, but studying and borrowing does not mean simply “take-ism (grab-ism)” [this phrase is the title of a 1934 essay by the famous Chinese writer Lu Xun  to mean that China should learn what it needs from Western culture through a process of selection].

 What are the takeaways for the Chinese courts?

The following excerpts from Justice Roberts’ report clearly resonated with the Supreme People’s Court leadership, as they consider court reforms that can be successfully adopted in China’s current political, legal and cultural environment:

  • The courts understandably focus on those innovations that, first and foremost, advance their primary goal of fairly and efficiently adjudicating cases through the application of law.
  • Courts are simply different in important respects when it comes to adopting technology, including information technology. While courts routinely consider evidence and issue decisions concerning the latest technological advances, they have proceeded cautiously when it comes to adopting new technologies in certain aspects of their own operations.
  • For 225 years, since the enactment of the Judiciary Act of 1789, the federal courts in each state have exercised a fair degree of operational independence to ensure that they are responsive to local challenges, capabilities,and needs. The individual courts have had considerable latitude to experiment with new technologies, which has led to some courts initiating local innovations. When the Administrative Office plans a nationwide initiative, such as Next Generation CM/ECF [electronic case filing and case management], it must devote extensive resources to conferring with judges, court executives, and lawyers across the country, examining what has worked on a local basis, and identifying features that should be adopted nationally.
  • The federal courts, however, also face obstacles that arise from their distinct responsibilities and obligations. The judiciary has a special duty to ensure, as a fundamental matter of equal access to justice, that its case filing process is readily accessible to the entire population, from the most techsavvy to the most tech-intimidated. Procedural fairness begins in the clerk’s office.

 

Court Operations

Case law Chinese style–where is it going?

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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 a 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.

Communist Party and the Courts, Court Operations, Court Reform

Supreme People’s Court overhauls judicial performance indicators

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351916247
Jincheng Shanxi court evaluation meeting

The 27 December headline story in the People’s Court Daily and the national court website is the decision by the Party Committee of the Supreme People’s Court (the Court), issued to the entire court system, to:

  • cancel court performance rankings;
  • Except for those targets for resolving cases that according to law are compulsory, the remaining targets should become reference data for analyzing judicial operations.
  • oppose the practice of avoiding accepting cases at year end with the excuse that it would bring down the court’s case resolution index.

This is the result of its own fieldwork, as well as criticism from the lower courts, NPC delegates, academics, and lawyers. Chinese courts avoid accepting new cases close to year end if the case will not be resolved until the next year, because these cases will pull down a court’s performance indicators, even though the rights of litigants can be sacrificed.

Chinese and foreign academics have highlighted the negative consequences of judicial performance performance targets for many years.

He Fan, a Court judge on the staff of the research office, while applauding the change, pointed out in his blog that despite the change of policy by the Court, some lower court judges remain under pressure by local court leadership to work overtime to resolve cases.

What indicators will replace them?

The reports do not link to the underlying Court document and so it remains unclear what performance indicators will replace the ones that have been abolished, or which indicators fall into the second category.  The judicial reforms anticipate having a smaller number of judges handling an increasing number of cases.  If judges find the new performance evaluation system unacceptable, this may lead to an even greater outflow of judges than is already occurring.

Commercial law, Court Operations

Supreme People’s Court, CSRC, SAIC, and PBOC tighten the regulatory net

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e8fade90gw1ek1l57pt9jj2050050t8sOn 19 December 2014, the Supreme People’s Court (Court) and China Securities Regulatory Commission (CSRC) announced that they were linking their blacklists and regulatory systems, following the arrangements the Court has made with other regulators since it established its judgment debtor database in October, 2013.  One of the major issues for the court system in having judgments enforced is interdepartmental regulatory silos that enable judgment debtors to avoid enforcement against their assets.

As of today, the Court’s database includes over 100,000 companies and almost 700,000 individuals. The goal is to tighten the net around non-compliant companies and individuals.  This initiative of the Court and CSRC is related to the State Council policy document issued in February, 2014,  on registered capital reform, in particular, the requirement that government departments improve interdepartmental sharing of information. Additionally, the Court names and shames one corporate and individual judgment debtor each day on social media.

The arrangement with the CSRC will involve the Court linking its system with the CSRC’s database of almost 700,000 entries concerning individuals and companies that have committed securities violations, and to prevent judgment debtors from accessing the capital markets.

Other arrangements the Court has made include:

  • an October, 2014, arrangement with the State Administration of Industry and Commerce (SAIC), which links  the SAIC’s credit information disclosure system (corporate disclosure system), described here, with the Court’s database (and requires SAIC cooperation in enforcing judgements);
  • a November, 2013  arrangement with the People’s Bank of China, directed at preventing judgment debtors from obtaining loans or financing through the banking system.

A search through the Court’s database is useful to a variety of users:

  • Lawyers, financiers and others engaged in due diligence on Chinese companies and individuals;
  • Companies, Chinese or foreign, contemplating doing business with a Chinese company or individual; and
  • Scholars and students researching the local operation of the Chinese economy and court system.
Court Operations, Court Reform, Recently in the Court

Updated with further analysis: What does the 4th Plenum mean for death penalty reviews?

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video interview in a death penalty review case
video interview in a death penalty review case

In a  press report in Southern Weekend last month (summarized in this report), the Supreme People’s Court (the Court) revealed that  an important legal reform related to death penalty reviews is forthcoming–institutionalizing legal representation in death penalty reviews.  This development, and others still in the works, are likely linked to the following provisions in the 4th Plenum Decision:

  • For appeals from dissatisfaction with effective judgments or decisions of judicial organs, gradually implement a system of lawyer representation. Bring appellants unable to hire a lawyer within the scope of legal aid.
  • Advance systemic reform in litigation with trial at the center;
  • complete effective guards against unjust, false and wrongfully decided cases.
  • bring about a system of lifetime responsibility for case quality and wrongful cases accountability system.

The Southern Weekend report has now been more fully summarized by the Duihua Foundation.

(This reform caught my attention because because I raised this issue when conducting an interview at the Supreme People’s Court in the early 1990’s, when researching my 1993 Supreme People’s Court article in the Journal of Chinese Law.)

Some background on death penalty review in the Court

As many others have described, death penalty review is carried out solely within the Court (in contrast to the period that I wrote my article) in an administrative procedure (my article describes the procedure at the time, and other articles describe the current process). The Southern Weekend article describes it as taking place in an unmarked office building away from  Court headquarters, guarded by a member of the Armed Police.

The Court has increased the number of criminal tribunals from two (when I wrote about this procedure 20 years ago in my article) to five tribunals, but the Court has not issued regulations setting out their jurisdiction.  According to the Southern Weekend reporters, four of the tribunals, which review cases based on geography and subject matter, have about 70 staff (both judges and support staff), while one has about 50 staff and reviews cases only on a subject matter basis. According to Southern Weekend, there is some flexibility in the jurisdiction of the criminal tribunals.(See this report for a translation of Southern Weekend’s chart.)

Institutionalizing legal representation in death penalty reviews

The Southern Weekend article reported that a senior member of the one of the criminal tribunals had revealed that the Court has drafted regulations on institutionalizing legal representation in death penalty review and it is hoped that they will be issued before year end.  According to the article, the draft regulations are entitled:

死刑复核案件听取辩护律师意见的若干规定 (Regulations on Considering the Views of Defense Lawyers in Death Penalty Review Cases).

This reform was flagged in Article 240 of the 2012 Criminal Procedure Law:

When the Supreme People’s Court reviews a death case, it should examine the defendant; if the defense attorney requests, it should hear the opinion of the defense attorney.

Article 42 of the 2012 Supreme People’s Court interpretation of the Criminal Procedure Law provides:

When the SPC performs final review of a death penalty case and the defendant has not retained a defender, the legal aid organization shall be notified to appoint a lawyer to provide him a defense.

A statement of principle in an a Court interpretation does not translate immediately into systemic reform.  It is apparent from the Southern Weekend article, a 2013 article on the Court’s website, and other sources that the mechanism for doing so is being considered within the Court and that local justice bureaus are implementing regulatory changes.

In the Southern Weekend article, a Court judge pointed out what the academics and defense lawyers have been saying, that many persons sentenced to death are from the bottom of society and do not have a lawyer defending them. （It appears from this interview with the President of the Zhejiang Higher People’s Court that Zhejiang has been taking the lead in working with the justice authorities to have legal aid provided to criminal defendants.)

In an article earlier this year in the Legal Daily (organ of the Communist Party Central Political Legal Committee), Professor Liu Wenren of the Law Institute, China Academy of Social Sciences emphasized the necessity of involving lawyers in the death penalty review process.  A Chinese lawyer has established a website for death penalty review lawyers, highlighting cases where legal representation has been effective.  Jiangsu province justice department has implemented  regulations on giving defense lawyers rights in death penalty review cases.

It is unclear what provisions will be contained in these regulations, but it is hoped that they include a provision for legal aid as well as rights for lawyers to review the case file.

Changing the form of death penalty review: when will the time come for this reform?

It appears that the Court is considering changing the form of death penalty review to a hearing-centered procedure.  (Dean Zhao Bingzhi of Beijing Normal University, College of Criminal Law Science, Professor Liu Wenren, and  others have been advocating this for some years (see this in this 2012 interview with Professor Zhao in Legal Daily).) Movement on this issue can be seen from the following:

  • In June, 2013, the Court held its first hearing in a death penalty review case, reported here. In July, 2013, Legal Daily published a follow-up article in which it was suggested that more hearings will take place.
  • In 2013, the Court website published an article (written by a Jiangxi judge) on deficiencies in the death penalty review procedure, suggesting that a hearing procedure be adopted.
  • In July, 2014, the China Law Society held a training session for defense lawyers in death penalty cases, at which four of the five criminal tribunal heads spoke.

The Supreme People’s Court Observer understands these developments to be linked to the goal in the 4th Plenum Decision of bringing about a system of lifetime responsibility for case quality and a wrongful cases accountability system. Going to a hearing procedure for death penalty review cases in which defendants have legal representation would go far to “complete effective guards against unjust, false and wrongfully decided cases” and at the same time would better protect the hundreds of Court judges who will bear lifetime responsibility for their decisions in death penalty cases.

If there are errors in the above analysis, please use the comment function.

Those further interested in this important topic can refer to one or more of the many articles, books, and reports in English (and Chinese).  In contrast to the early 90’s, death penalty review in China has now attracted the attention of major scholars and international organizations.

Communist Party and the Courts, Court Operations, Military courts, military law

Supreme People’s Court’s new policy on protecting the rights of the military and military personnel

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Conference on legal assistance to Zhejiang troops
Conference on legal assistance to Zhejiang troops

The details of how the 4th Plenum Decision is being implemented by the Supreme People’s Court are gradually being made known. This blogpost looks at one discrete (and specialized) area, relating to national defense and the military in the civilian courts.

On 31 October, the Supreme People’s Court issued its Opinion on Expanding Capacity in  Safeguarding the Interests of National Defense, Guaranteeing the Rights and Interests of Military Personnel, and Military Dependents (关于进一步发挥职能作用维护国防利益和军人军属合法权益的意见)(The Opinion) (linked here, with comments by a spokesman here).

The sixteen point policy is intended as a comprehensive statement of judicial policy on these issues to be implemented by the lower courts in furtherance of the goals set by the 4th Plenum Decision.

The Opinion draws on some of the documents and addresses some of the social and regulatory issues described in earlier blogposts.

It is intended to implement the following provisions in the 4th Plenum Decision (among others):

  • Safeguard the interests of national defense.
  • Guarantee the lawful rights and interests of soldiers.
  • Strengthen legal services in the area of the people’s livelihood. Perfect legal aid systems, broaden the scope of aid.

Several points from the Opinion are highlighted below,  as well as questions that the Opinion raises (and some of the underlying issues) .

Some Points in the Opinion

1. The Opinion directs the lower courts to improve case filing and jurisdiction in cases related to the military.  The Opinon cites  the three principal judicial interpretations on civil and criminal jurisdiction in military cases, and encourages lower courts to establish special case filing counters for the military.

Why special counters for the military rather than the handicapped, for example, or other disadvantaged groups?

2. The Opinion directs lower courts to provide judicial and legal assistance to military parties.  The Opinion explains that Judicial assistance means exempting or reducing court fees for poor military families in civil cases  known as as “involving the interests of ordinary people” (more about these in an earlier blogpost) such as:

  • support payments (to the elderly);
  • child support;
  • compensation payments (to the disabled or families of the deceased).

The Opinion directs lower courts to take the initiative to assist soldiers and military dependents who qualify in receiving legal aid.  What this means is that courts should reach out to  local justice bureaus.  In some provinces, such as Zhejiang, the provincial judicial bureau has worked with the local military district to establish legal aid centers for military personnel and their dependents, under which local law firms have concluded agreements to provide legal advice (see this report).

How does the provision of legal aid to military personnel and their dependents compare to legal aid provided to other persons in poverty?

3.  Do a better job of trying military cases.  This refers to both criminal and civil cases.

Most of the criminal cases mentioned were detailed in this earlier blogpost.

Among the new principles to be implemented in civil cases are:

  • supporting core military enterprises and military industrial companies. (依法为军队核心产业、军工企业的科学发展提供司法支持).

Government policy seeks to have more private sector involvement in military and military industrial companies.

What does this mean when commercial disputes arise– how will the interests of each party be weighed?

4.  Establish a “green channel” for military related cases (this was mocked earlier this year), by giving priority to military-related cases in docketing, trial and enforcement.  Part of this means directing lower courts to  gather evidence if military parties have difficulty obtaining evidence.

What if it is the non-military party that has that difficulty, either in a commercial or family law case?

5. The Opinion directs the lower courts to work under the united leadership and support of the Party committee and political-legal committee on these issues and to work with other related departments to deal with military related cases.

What does that mean if the approach adopted by the Party committee or political-legal committee favors one party over another?

Other points include:

  • Establishing mechanisms for resolving disputes involving the military.
  • Improving enforcement of military-related orders and decisions.
  • Improving judicial service related to the military
  • Courts should work closely with the military.
  • Explore capturing statistics on military related cases.
  • Incorporating work in military-related cases in judicial performance evaluation.
  • Working with the military courts on military-related cases.

Some of the underlying issues

As identified in earlier blogposts, some of the underlying problems causing an increase in military-related cases in the civilian courts appear to be :

  •  an increase in civil unrest involving civilians and military;
  • unresolved civil disputes involving the military and its personnel
  • criminal cases involving civilians and military that have not been prosecuted because of evidentiary issues.
  • separate operations of the military and civilian justice systems;
  • difficulties in coordinating across bureaucratic systems.
  • performance indicators for officials within the (civilian) legal system, relating to the  percentage of closed cases or other success rates.

The Opinion and the 4th Plenum

What does the Opinion mean for principles in the 4th Plenum such as:

guaranteeing judicial fairness, exercising judicial power independently according law, raising judicial credibility and striving to have the people feel that every judicial case is fair and just?

 

 

 

Communist Party and the Courts, Court Operations, Court Reform

4th Plenum and the Supreme People’s Court

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4th plenum voting
4th plenum voting

According to the Wechat postings of one of its members, the judicial reform office of the Supreme People’s Court has been working overtime for months to prepare for the 4th Plenum.  It appears, at least from the initial 4th Plenum communiqué, that the hard work has paid off.  We will know more about the leadership’s plans for legal reforms when the full decision is released.  Four quick questions about the communique are set out below (to be supplemented as time permits).

Some questions for the Supreme People’s Court and the judiciary:

1.The communique stressed the need for improving the quality of legislation, including incorporating more public consultation and experts.  Will this reduce the need for judicial interpretations? What will this mean for the drafting of judicial interpretations?  Will the Supreme People’s Court require public consultation for its own judicial interpretations?  The release this month of drafts for public comment of the environmental public interest litigation regulations and the trademark validity administrative case rules are a step in the right direction.

2. The communique called for greater judicial transparency, as was highlighted in the Court’s 4th Five Year Reform Plan.  In its press releases to the domestic audience, the Supreme People’s Court has mentioned the visits it has hosted of the foreign press, foreign diplomats, and ordinary citizens, and of analogous events at the local level.  When can we look forward to easier access by all (foreign or domestic) to proceedings in the Chinese courts (at least in non-sensitive cases)?

3.  The communique indicated approval by the leadership of the establishment of circuit courts that cross administrative lines, a concept mentioned in the 4th Five Year Reform Plan (see this earlier blogpost).  It also reflects the use in China of foreign legal concepts or frameworks (as is frequently stressed, a reference and not as a transplant).

4.  It also called for an end to “interference” by leading cadres in specific court cases.  How will this long-standing practice will be curbed?  In recent weeks, articles have appeared in the legal press on changes to the Party Political Legal Committees. Will those changes imply less involvement in actual cases? And what is the distinction between “interference” and “leadership”?

 

 

Uncategorized

Congratulations, Professor Allen!

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Professor Ronald Allen
Professor Ronald Allen

On 30 September John Henry Wigmore Professor of Law Ronald Allen  of Northwestern University School of Law was one of 100 foreign experts to be awarded China’s Friendship Award in the Great Hall of the People for his work with the Academy of Social Sciences, the China University of Political Science and Law and Supreme People’s Court on evidence law and related issues.  The national court website ran a story on Court Vice President Shen Deyong’s meeting with Professor Allen, at which Judge Shen thanked Professor Allen for his work on behalf of the Supreme People’s Court.  Judge Shen commented on the importance of evidence law. He also noted that although China’s court reform must be based on China’s situation, it can draw on foreign law methods and experience, including that of common law systems.  Well done Professor Allen!

Environmental law, Recently in the Court

Comments on China’s model for environmental public interest litigation?

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Public interest litigation--compensate my losses!
Public interest litigation–compensate me!

If you want to review and comment on China’s model for environmental public interest litigation, now you have your chance.  On 1 October the Supreme People’s Court (Court) issued its regulations on environmental public interest litigation for public comment. The Court had highlighted the importance of these regulations in its  July, 2014 policy document on environmental and natural resource tribunals.  The Environmental Protection Law, amended earlier this year, gives the legislative framework for the regulations (a quick summary of the amendments can be found here).

The comment period is 1 month.  The draft was published on the Court’s official website and is linked here.  The notice requests that comments be accompanied by an explanation, and be submitted either on paper or electronically.  The mailing address in Chinese is: 北京市东城区东交民巷27号，最高人民法院环境资源审判庭，邮编100745. The English address is: Environmental and Natural Resources Division, The Supreme People’s Court, No. 27, Dong Jiao Min Xiang, Dongcheng District, Beijing 100745.  The email address for comments is: zgfyhzt@sina.cn.

open government information, Recently in the Court

Open government information litigation in China–an oxymoron?

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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.

Communist Party and the Courts, Court Reform

More on the Supreme People’s Court’s Judicial Reform Plan

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On 16 July the Supreme People’s Court’s (Court’s) newspaper and social media outlets headlined two articles important for observers seeking to understand the judicial reforms:

  • a  report on statements by Meng Jianzhu, Politburo member and chair of the Central Political Legal Committee on the importance of the judicial reforms; and
  • an long explanation by HeXiaorong, the leader of the working group on judicial reform (of the Court’s judicial reform office) on the theory, logic and implementation of the judicial reforms.

    Meng Jianzhu
    Meng Jianzhu

Statement by Meng Jianzhu

The statement by Meng Jianzhu , made after he heard reports on the implementation of judicial reform pilot projects in six areas, stressed that the Central leadership considers the judicial reforms very important and has given a set of policy instructions on the implementation of the reforms. He calls on all involved in various political/legal organs at all levels to implement the reforms.

For anyone who has spent any time in a large organization, his message, although expressed in Chinese political language, will sound familiar:

  • make sure those at the local level are “on message”;
  • don’t impose the same method everywhere (不搞一刀切;
  • ensure enthusiasm about the reforms, otherwise they may fail.

The thinking behind the judicial reforms

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He Xiaorong

A long article by He Xiaorong published on 16 July in the People’s Court Newspaper and other Court media outlets summarizes the thinking behind the judicial reforms (and what must have been the hundreds of pages of policy papers that underly what has been made public).  It is an edited version of a fuller paper, that has been issued on Wechat and perhaps other outlets (and is said to express He’s own thinking).  For those seeking to understand the judicial reforms, it deserves close analysis. A flash analysis will follow when time permits.

intellectual property

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

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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.