On 20 June, the Supreme People’s Court issued a report on the past 5 years of judicial assistance with Taiwan, featuring three bar charts, a table and 15 model cases, linked here. Judicial assistance between the mainland and Taiwan in 2013 was the subject of a blogpost earlier this year. The execution of two brothers in Taiwan, on the basis of testimony from witnesses on the mainland who were not made available for cross-examination, illustrate vividly some of the Issues related to judicial assistance, as further described here.
Most of the judicial assistance has been in the form of requests for delivery on the mainland of judicial documents from Taiwan (almost 30,000 in the past 5 years), but has also included recognition and enforcement of Taiwan court judgments (270 in the past 5 years), requests for obtaining evidence on the mainland (610).
The model cases summarize the requests made and the assistance provided, rather than the original judgments or rulings in these cases. (Prior blogposts on the topic of model cases are linked here and Mark Cohen’s analysis is found here).
The statistics reflect the closer interactions between the two sides of the Taiwan straits, including the flood of Taiwan investment into the mainland, and cross-straits personal interactions (including cross-straits marriages and crimes committed by Taiwanese on the mainland). I look forward to comments and further analysis from Taiwan lawyers, scholars and others on the significance of these statistics and other related issues.
On June 11, the 4th Civil Chamber of the Supreme People’s Court (Court) held a public hearing in the case of Sino-Environment Technology Group vs. Thumb Environmental Technology Group (Thumb Env-Tech). Nils Pelzer [seen in the audience in the photo below], research fellow at the Max Planck Institute Luxembourg and visiting scholar at the KoGuan Law School of Shanghai Jiaotong University, attended the hearing. The Supreme People’s Court Observer made it possible. A slightly amended version of his report follows.
The litigious PRC subsidiary
This hearing was the latest of a series of lawsuits between the parties. The earlier blogpost on this case (linked here) concerned a related lawsuit between the parties but the Fujian Higher Court decision in the current case was not available on-line.
Summary of the facts
Thumb Env-Tech is a Chinese wholly-owned subsidiary of Sino-Environment Tech, a company registered in Singapore (now in liquidation). The Singaporean liquidator (the former judicial manager) had dismissed the former management board of Thumb Env-Tech and appointed the insolvency firm’s own managing partner as the new chairman of the board of directors (and legal representative). The liquidator had also decided to reduce the registered capital of Thumb Env-Tech. However, because Thumb Env-Tech’s old management did not comply with the directives of new management, these measures were not registered with the local Administration of Industry and Commerce (AIC) Bureau.
Thumb Env-Tech’s original management – on behalf of Thumb Env-Tech – sued the parent company in the Fujian Higher People’s Court to pay a capital contribution of RMB 45 million (approximately USD 7.23 million), ignoring both their own removal and the order to implement the capital reduction and challenged the right of the judicial manager (later the liquidator), appointed by the Singapore High Court, to remove the original legal representative and directors. Thumb Env-Tech alleged that the judicial manager had no right to remove the directors and legal representative. Thumb’s new legal representative, on the other hand, filed a motion to withdraw the lawsuit. Sino-Environment Tech put forward the argument because of the lack of power of representation, filing the lawsuit was not the “real declaration of intention” of Thumb Env-Tech.
Surprisingly in the first instance, the Fujian Higher People’s Court decided in favor of Thumb, ordering Sino-Environment Tech to pay the full sum of RMB 45 million. The court reasoned that Sino-Environment Tech was unable to prove that the old management board, which was still officially registered and had used the official company stamp, had no power of representation.
The decision of the Court
On appeal by Sino-Environment Tech, the Court (unanimously) rejected this argument in the second and final instance. The Court decided that while the registration with the AIC was sufficient to file a lawsuit on behalf of the company, things have to be treated differently when it comes to the substantial claim of the subsidiary against its parent company. The aim of the AIC registry is to protect third parties acting in good faith, but this does not apply to the internal relationship between a company and its shareholders. There, the real situation overrides the good-faith protection of the registry.
Even more importantly, the Court expressly recognized the power of the Singaporean liquidator to represent the parent company in liquidation. As far as the foreign liquidator’s powers are concerned, the Court ruled that the law of the place of the registered office of the relevant company is applicable.
Evaluation
This outcome had been expected by both Chinese and foreign legal experts. Not only does it clarify that just possessing a chop and an official registration does not always come along with absolute authority, but it is also a step towards to insolvency rules in China consistent with uniform international insolvency rules in China. Further, if the Court had upheld the ruling of the first instance, this would have basically meant that parent companies might completely lose control over their Chinese subsidiaries. From this point of view, the ruling strengthened the investment environment in China.
From a political perspective, this case might mark the beginning of a more open attitude to grant access to court hearings to foreigners. As reported by Chinese newspapers, this was the first hearing of the Court that foreign diplomats were explicitly invited to attend.
Lastly, the similarities of a hearing of the Court and of Western supreme courts were striking (at least in this case). The proceedings were skilfully led by Judge Luo Dongchuan [chief judge of the 4th Civil Chamber], and the quality of the debate between the Court and the lawyers of both parties was generally very high. It is not only for this reason that the 4th Civil Chamber will probably submit the case as a suggestion for a new guiding case.
HEALTH WARNING: PLEASE SEE THIS BLOGPOST FOR THE MOST RECENT DEVELOPMENTS.
On 11 June 2014, the Supreme People’s Court will hear a shareholders dispute. The facts of the case (described below) are familiar to the Hong Kong and Singapore legal and investment community. They touch on the power of overseas insolvency/bankruptcy professionals to take over assets in China.
The parties to the case are Sino-Environment Technology Group Limited (Sino-Environment Tech) (a company originally listed in on the main board in Singapore (but now in liquidation) and one of its wholly owned subsidiaries, Thumb Env-Tech Group (Fujian) Co., Ltd (Thumb Env-Tech).
The case has all the elements of a China deal gone very, very bad.
What we know
The case was originally brought in the Fuzhou Intermediate Court by Thumb Env-Tech (i.e., the original management group). It challenged the right of the judicial manager (later the liquidator) (appointed by the Singapore High Court) to remove the original legal representative and directors. Thumb Env-Tech alleged that the judicial manager had no right to remove the directors and legal representative and it was arbitrarily implementing an order of a Singapore court, violating China’s judicial sovereignty. The Fuzhou Intermediate Court rejected Thumb Env-Tech’s claim, determining that it was not a proper party.Thumb Env-Tech appealed to the Fujian Higher People’s Court. The decision can be found here, on the court’s website. The Fujian Higher People’s Court rejected Thumb Env-Tech’s appeal, stating that the case is not a simple matter of private rights but involves issues of public policy, and that Article 119 of the Civil Procedure Law did not permit Thumb Env-Tech to bring the case. Thumb Env-Tech has brought a petition to have the case reviewed by the Court. (summary from the Fujian Higher Court decision)
Sino-Environment Technology Group Limited was a listed Singapore company that was principally engaged in the provision of environmental protection and waste recovery through its subsidiaries in PRC with over SG$165 million debt. Its liquidators investigated SG$84 million worth of suspicious transactions undertaken by the group, taking steps to secure control over the company’s PRC subsidiaries by removing all existing legal representatives and directors of the PRC subsidiaries and commencing legal proceedings against them, securing the company’s cash held with a PRC bank and assessing and defending legal proceedings. (from the liquidator’s website)
Morgan Stanley sold $US 109 million in Sino-Environment Technology Group Limited convertible bonds. The company defaulted on repayment of the bonds. (from a first press report and a second press report.)
Related litigation in the Hong Kong courts can be found here.
What will the outcome be?
We will wait the outcome of this case in the Court. It is a “typical case” in its own way, because there are many cases in which foreign companies with Chinese subsidiaries, some of them listed, get into financial difficulties. It is part of international insolvency practice that bankruptcy trustees/judicial managers/administrators/liquidators appointed by foreign courts will take over control of subsidiaries in China. Chinese law and practice do not make this an easy process. This a classic example of why Chinese legal experts, as well foreign governments, Taiwan, and Hong Kong need to persuade the Chinese government that it is important for China that it become an active part of the international legal framework governing bankruptcy (insolvency) proceedings.
In late April, the Supreme People’s Court, the Supreme People’s Procuratorate, and three central government agencies issued a document focusing on medical-related disputes and crimes committed within China’s medical system, along with four typical cases(典型案例). (I flagged the importance of the issue of medical disputes and crimes in a post late last year and have discussed typical cases here.) The document：
provides an recent example of the Court issuing policy documents;
shows how the Court implements Party/government policy relating to an important social issue;
illustrates the stresses in the Chinese medical system; and
highlights the inadequacies in medical legislation.
Why was this document issued?
The document was issued to deal with the increasing number of disputes and especially the violence in the Chinese medical system, that have been reported and explained by a variety of sources, including the Lancet, BloombergBusinessweek, and the Atlantic. The Chinese press (also academics outside of China and foreign press) has run many stories on “medical troublemakers” (医闹) –either disgruntled patients or their families or people especially hired to make trouble in a hospital to embarrass the hospital to making a large settlement. Why? As Wan Xin, a member of the Council of the Chinese Medical Law Association is quoted in a Xinhua press release as saying: “if you make little trouble, you get little money, make big trouble, you get big money, if you don’t make trouble, you don’t get money” (小闹小给钱， 大闹给大钱， 不闹不给钱).
Heilongjiang medical workers protestProtest outside one of Kunming’s main hospitals
The Court issues policy documents
The document, clunkily named “Opinion on strictly punishing according to law illegal and criminal acts relating to the medical system and upholding normal medical order” (关于依法惩处涉医违法犯罪维护正常医疗秩序的意见) (the Opinion), was issued by the following government agencies in addition to the Court:
Supreme People’s Procuratorate;
Ministry of Public Security
Ministry of Justice;
State Commission on Health and Family Planning.
The Opinion is what in Chinese is called a normative document（规范性文件). As I discussed in an earlier blogpost, the Court often issues them (and has done so for many years). They contain legal rules and policy statements and have different titles from judicial interpretations, in this case “Opinion”.
This document, for example, does not fit the legal definition of a judicial interpretation because it is issued with three State Council ministries/commissions, that is three agencies not authorized to issue judicial interpretations. The rationale for this practice is that officials of the administrative organ involved will comply only if their administrative organ jointly issues it with the Court and requires compliance of its subordinates, which in this matter includes the hospitals and other parts of the medical system, the police, and the people’s mediation committees. Normative documents also address issues, such as this one, where the law is unsettled and are also on the political agenda.
What the Opinion says and does not say
The substance of the Opinion is in two sections.
Section 2 describes six sets of offenses commonly committed, how they should be punished and what different parts of the justice system should do. Those offenses are:
Attacking or intentionally harming medical personnel and damaging property;
In medical institutions, setting up shrines, funeral wreaths and burning paper money or placing a corpse in public spaces;
Restricting the freedom of medical personnel (e.g. by preventing them from leaving their workplace)
Insulting medical workers,
Bringing weapons, explosives, radioactive materials etc. into medical institutions; and
Instigating others (including family members) to commit crimes against medical personnel.
Section 3 focuses on preventing medical related disputes and improving the way they are resolved. In particular, the health authorities are directed to improve the quality of medical services, their own monitoring of medical institutions, the compliance of medical institutions with medical legislation and medical codes, improve the protection of patient’s right to privacy, right to know, right to choose, and other rights, and push the establishment of better channels of communication with patients. The Opinion calls for a three track system for resolving medical disputes:
medical institutions should establish departments to receive and deal with complaints;
otherwise, medical disputes should be mediated through three party mediation;
if mediation does not work, the courts should deal with the cases in a timely manner.
The Opinion does not call for improving legal rules dealing with medical issues. (But see more about this below.)
The Court implementing Party/government’s policy
Disputes involving the medical system have increased in number and severity in the last few years. Violent crimes committed by patients and/or their families have increased, capturing national attention. In the Third Plenum Decision, the Central Committee called on the government to address the underlying issues:
Reform of the medical and health care system shall be deepened. The comprehensive reform of medical security, medical services, public health, drug supply and regulatory system shall be pushed forward in a coordinated manner…Efforts shall be made to improve the work system linking people’s mediation, administrative mediation and judicial mediation, and set up a comprehensive mechanism for mediating, handling and resolving conflicts and disputes.
Therefore improving medical security and medical dispute resolution have been high on the agenda of the Central Committee Political Legal Committee. The Opinion and related articles were published on the website of the Central Political Legal Committee and the Chairman of the Central Political Legal Committee has been involved in initiatives implementing the Opinion, particularly the mediation of medical disputes.
Protecting medical institutions from troublemakers
Inadequacies in medical legislation and dispute resolution
The Opinion does not address the inadequacies in existing medical malpractice legislation. (This has been the topic of several law review articles in English (also in medical academic literature) and many more articles in Chinese, including on Chinese social media. Although the Tort Liability Law contains basic principles, the law itself and its related judicial interpretation do not have sufficiently detailed rules on issues such as:
cause of action;
liability of different parties;
expert opinion;
determination of causation;
issues of proof; and
determination of damages.
Therefore, these cases drag on in the courts, and Wan Xin noted that a wait of two or three years to resolve these cases is not unusual. A Beijing judge, writing on social media, noted that medical malpractice cases in his district are “many, difficult, and volatile” (多，难， 激).
The lower courts have to cope with the increase in medical malpractice litigation, because patients are increasingly aware that litigation may result in a more favorable settlement than mediation. Some local courts have issued court rules to deal with some of these issues. Some of the outstanding questions are:
when will the Court issue a more detailed judicial interpretation on medical malpractice and how will it strike a balance between the rights of patients and the medical system?
Can a effective dispute resolution system be devised which can put the “medical troublemakers” out of business?
Do foreign medical/legal systems have expertise in medical malpractice that may be suitably transferred to the complex Chinese medical/legal system?
In a press conference on 30 April, the Supreme People’s Court (the Court) announced that it will more systematically use model (typical) cases (典型案例) to guide the lower courts. The Court is increasingly using model/typical cases. My recent blogpost explains what model cases are, which courts issue them and the authority of model cases.
One of the initiatives the Court highlighted in its October 2013 judicial reform plan is “expanding fully the important role of leading cases and cases for reference.” because its leadership considers model cases an important supplement to legislation, judicial interpretations, and “guiding cases” (a special category of cases so designated by the Court). Mark Cohen, of chinaipr.com, has blogged on the Court’s use of model cases in the area of intellectual property law.
The Court will issue at least five model/typical cases on a monthly basis, selected from cases submitted by the lower courts. The cases can be accessed through the Court’s Cases in Chinese Courts portal. The ones on the website are currently limited to those issued in 2013 and 2014. Unfortunately, a search functions appears lacking. Despite the limitations, it is a further development in the use of case law “with Chinese characteristics.”
SPC Releases 7 Typical Cases of Judicial Misbehavior
On 15 April, the Supreme People’s Court (Court) issued its latest model (or in this case, (all too typical cases): 7 typical cases of judicial misbehavior.
It is part of the name and shame campaign of the Communist Party’s Central Disciplinary Inspection Commission (CDIC), that appears to have started in September of last year, in which the CDIC releases typical cases of official corruption or other abuses, in violation of the Communist Party’s Eight Point Regulations (aimed at curbing official abuses). As reported in a recent Wall Street Journal article, the CDIC has accelerated the release of cases on its website from weekly to monthly.
Although cases previously released on the CDIC website have included some cases from the judiciary, this is the first time that the Court has released such cases.
The Court issued a document summarizing the cases to the lower courts and to the CDIC (which often takes the lead in investigating judicial misbehavior, because most judicial officials are Communist Party members).
The Seven Cases
Touring at public expense
Touring at public expense (a group from Kunming (Yunnan Province)’s Panlong District Court used RMB 88,000 in public funds to visit the beach resort of Sanya after participating in a training course in Haikou);
Using public funds for gifts (a Shandong district court court president arranged for the purchase of RMB 23,000 in gift cards at a local supermarket and obtained reimbursement as “offiice supplies.”)
Obtaining reimbursement for foot massages (two Hubei Province Intermediate Court Division heads submitted RMB 2500 in foot massage receipts; they and the Deputy Court President who approved the reimbursement were punished).
Wasteful procurement of office equipment (a Shanxi District Court spent over RMB 200,000 on office equipment ).
Using government vehicles for private use (a Shaanxi Province local Deputy Court President and two judicial policemen toured a scenic spot on the way back from an enforcement action);
Large scale wedding banquets (a Heilongjiang county judge held large wedding banquets for his daughter and accepted RMB 27500 in monetary gifts);
Office misbehavior (a Zhanjiang (Guangdong Province) )District Court division head held a meeting with a litigant wearing slippers and was found to be playing a game on his office computer).
using government vehicles for private purposes
These cases are typical
According to an analysis done by the People’s Daily Overseas Edition, these cases are typical of the cases released by the CDIC. Some of the highlights:
Almost 40% of the CDIC cases released involved improper use of public funds or government vehicles;
Of those, almost 25% involved touring at public expense;
A significant number involved improper reimbursement;
Some other “typical cases” involved officials playing computer games in the office (although there were local variations in this category);
About 12% involved “over-the-top” purchases of office equipment or building construction;
the infractions were relatively minor; and
The cases involved local court judges rather than those in provincial level higher people’s courts or the Court itself.
Why were these cases released?
It appears likely that the Court released these cases because the CDIC issued a document requiring all government departments and SOEs to provide typical cases (although the document does not appear to have been released publicly) and the Court need to show that it was complying with this document.
Other likely reasons would be similar to those for other government officials: scare judicial personnel, especially those in leadership positions, into complying with Party restrictions. As the above graphic shows, it is meant as a bullhorn to those in leadership position in lower courts. The Court leadership realizes that the widespread public impression that judicial officials fiddle the system and do not take their work seriously is a threat to the court system. The typical cases are intended to provide evidence to ordinary people that the government is serious about corruption in the judiciary, and also to encourage people to report abuses. Why these particular seven cases were selected for release is not known.
The cases were released for the political reasons, not the substantive reasons discussed in my recent blogpost.
On 8 April 2014, the Communist Party’s Central Political Legal Committee and the General Political Department of the People’s Liberation Army (PLA) (the PLA’s highest Communist Party organization) jointly issued a document on improving the protection of the rights of the military, military personnel, and military dependents (关于加强维护国防利益和军人军属合法权益工作的意见) (PLA Legal Protection Opinion). The document itself has not been made public, but a summary has been widely distributed the press (including the People’s Court Daily website). The PLA Legal Protection Opinion has drawn caustic comments from some in the Chinese blogosphere for its request that the political legal authorities (the courts, procuratorate etc.) create a “green channel” to resolve military related disputes, by giving those disputes priority at all stages of criminal and civil procedure (from docketing cases to enforcement), and call for “special matters to be handled specially” (特事特办). .
The PLA Protection Opinion provides another glimpse into the interactions of the Communist Party bureaucracy, Chinese military and civilian legal systems, and the social and economic changes in China affecting the PLA. This blogpost describes:
what the distribution list was;
what the problems are;
what the super committees are;
the drafting process; and
why the document was issued.
The Distribution List for the PLA Protection Opinion
The distribution list for the PLA Protection Opinion was not been made public. As a jointly issued document, it presumably was issued to the relevant Communist Party organizations in both the civilian and military bureaucracies. On the civilian side, it included the:
Supreme People’s Court;
Supreme People’s Procuratorate;
Ministry of Public Security;
Ministry of Civil Affairs;
Ministry of Justice;
Ministry of Finance;
Ministry of Human Resources and Social Security;
Ministry of Land and Natural Resources;
National Civil Air Defense Office;
National Leading Group on Double Support (see the following report, on the provincial level).
On the military side, presumably the General Political Department issued it to the military counterparts of many of the above authorities, including the PLA Military Court and PLA Military Procuratorate.
What are the Long Standing Legal Issues?
The long-standing legal issues are those involving both the civilian and military authorities, and include many of the unresolved ones listed in my previous blogpost. They include:
theft and sale of military secrets;
destruction of military facilities;
mass incidents involving military interests;
disputes over military technology;
disputes over military land;
thefts of military supplies;
cases of persons passing themselves off as military personnel to engage in fraud and other criminal activity;
Disputes affecting military personnel, including:
1. divorces and other family disputes;
2. personal injury disputes;
3. land condemnation;
4. disputes over compensation for compulsory land confiscation.
The Supercommittees and a glimpse into the document drafting process
The PLA Legal Protection Opinion calls for the establishment of a national coordination mechanism to support and protect military rights (全国涉军维权协调机制), (Supercommittees) replacing “the leading small groups on supporting and protecting military rights” established nationwide from 2007.
The Supercommittees are led by the Central Political Legal Committee and General Political Department (the top Party committees relating to the civilian and military legal systems), and require the government authorities to whom the document was issued (and their local counterparts at each level) to send liaison personnel. The Supercommittees are to establish counterparts at the provincial, municipal, and county level.
In an article published in the People’s Court and PLA Daily, a “responsible person” of the PLA Military Court described the drafting process, which mirrors the drafting process for Chinese legislation generally.
Staff from the Central Political Legal Committee and the PLA Military Court formed a drafting group and went to Zhejiang, Fujian, Guangdong, and Shaanxi for field research, soliciting the views of local Party Secretaries, local courts, and military district officials, PLA officers and soldiers, including areas where local policies had been drafted to deal with military/civilian issues. A consultation draft was prepared and approved by the leadership of the Central Military Commission, General Political Department, and Central Political Legal Committee for distribution for comment to the relevant central government departments (including the Supreme People’s Court), leaders of major military institutions, and some local level military officials before being finalized.
Enforcing the PLA Legal Protection Opinion
The document seeks to ensure that it is taken seriously by calling for the following enforcement measures:
PLA legal protection matters should be incorporated into local development plans; and
they should be incorporated into performance evaluation for “comprehensive social management work” (performance in controlling social unrest).
Why was the document issued?
The document must have been issued because the previous leading small groups were not effective, and the result has been an increase in civil unrest involving civilians and military, unresolved civil disputes involving the military and its personnel as well as criminal cases involving civilians and military that have not been prosecuted.
The principal reason for these unresolved issues (in my view), is due to the separate operations of the military and civilian systems and the difficulty of coordinating across bureaucratic systems. Moreover, a substantial number of the unresolved cases are likely tied to the performance indicators for officials within the (civilian) legal system. Performance indicators for court and other officials within the legal system are generally tied to their percentage of closed cases or other success rates. For example, a civilian court will be reluctant to accept divorce cases involving a military spouse if orders to transfer property, registered within the military system, will not be enforced and the cases cannot be closed. Civilian public security officials, similarly, will be reluctant to take a case if some of the criminal activity has taken place on military premises, because investigating the crime and collecting evidence will be extremely difficult. The document reveals social and economic changes affecting the military (such as a higher rate of divorce and other family disputes), disputes over land condemnation affecting military personnel, as well as increased social unrest involving the PLA (that seems to be kept out of the press). Finally, it reveals the complex interrelationship between the military and civilian legal and administrative systems, and the use of law (or at least legal policy) in making it operate more smoothly.
The Supreme People’s Court Observer published (by invitation) Using Model Cases to Guide the Chinese Courts on the blog of the China Policy Institute of the University of Nottingham. The post discusses:
what model cases are;
which courts issue them;
the authority of model cases;
recent model cases the Court;
why the Court (and the lower courts) are using them; and
Protect yourself from domestic violence with a civil protection order
Luohu District Court
The Luohu District Court (the Luohu court), which hears cases arising from the primarily urban Luohu administrative district in Shenzhen, in late March posted on its website (and Wechat account) an overview of the 24 domestic violence cases that it has heard in the last 3 years. The court identified four trends and “take-aways”:
there has been a trend towards an increase in the average age of abusers, from 31-45, to over 60;
the educational level and professional background of abusers has shifted to university educated, working in government agencies or foreign invested enterprises;
the type of domestic violence has shifted from simple physical violence to emotional and economic abuse, creating more evidentiary difficulties and analytical issues for the courts; and
the victims have become more aware of their legal rights. Victims are moving away from traditional attitudes of accepting domestic violence as part of family life to using the law to protect themselves, and are calling the police when domestic violence occurs and applying for civil protection orders.
The Luohu court saw the following take-aways:
more psychological support should be provided locally, in residential areas, to prevent domestic violence from occurring;
local institutions for resolving domestic disputes should be strengthened; and
more should be done to make the public aware of domestic violence legislation.
This report from one district court reflects many of the messages about domestic violence being conveyed by the Supreme People’s Court. Further reports on the drafting of the domestic violence interpretation are awaited, to see whether it will involve the procuratorate, public security, and other authorities.
The Supreme People’s Court (the Court) devoted its 27 February 2014 press conference to domestic violence, highlighting:
the seriousness of the problem;
10 model cases;
a forthcoming judicial interpretation on domestic violence.
Judge Xue Shulan, Deputy Head of the #1 Criminal Division, appeared at the press conference. The Court websites have published a number of domestic violence related articles in the past 3 weeks. Some of these articles have been reprinted on the website of the Central Communist Party Political Legal Committee, indicating that the Court initiative has political backing.
This blogpost will briefly explain:
the significance of the 10 model cases
some issues that should be incorporated into the judicial interpretation;
Some statistics about domestic violence in China
At the press conference, Sun Jungong, spokesman for the Supreme People’s Court, released some statistics about domestic violence. He said that domestic violence occurs in approximately 24.7 percent of Chinese families, and almost 10 percent of intentional homicide cases are connected with domestic violence.
The significance of the 10 model cases
Domestic violence graphic from SPC website
These model cases are intended to convey lessons to the lower courts, lawyers, and the general public on how to consider cases involving domestic violence.
Civil protection orders
China has adopted the concept of a civil protection order (commonly used in other jurisdictions) into its legal system (see an academic study on the issue). The amended Civil Procedure Law provides a legal basis for the issuance of these orders (see a summary in the linked article). The Court revealed at the February news conference that over 500 civil protection orders have been issued since 2008.
One model case involved a civil protection ordered issued to protect an elderly man against his abusive child while another case involved a civil protection ordered against the uncle of the minor.
The cases convey the message that the scope of persons to be protected under domestic violence civil protection orders should be expanded to include:
the elderly; and
minors.
These cases signal an expansion of the categories of individuals for whom orders may be issued and an expansion of the definition of relationship between victim and perpetrator. Academic studies suggest a prevalence of domestic violence against the elderly and minors in China. Academic studies have found elder abuse occurring in approximately 35% of the populations surveyed and significant prevalence of child abuse.
Previously, the sole guidance from the Court regarding the issuance of civil protection orders had been limited to issuing them on behalf of one spouse against the other while still married or in the process of seeking a divorce.
Evidence
The Court is providing guidance for judges about what can be considered evidence of domestic violence. Examples of evidence of domestic violence in these cases include the statement of the victim, in writing, medical records, and the diary of a child and/or victim.In the past judges often did not consider the statement of the victim as evidence. Reaffirming the evidentiary value of medical records and contemporaneous notes is also important.
Types of domestic violence
In one case, the description of domestic violence was described as excessive use of house rules. In another example, emotional harm was specifically cited as an injury caused by the violence and a fine was issued. In another case, use of threats to control the other party was cited.
By selecting these cases, the Court is also conveying a message about the types of behavior that can be considered to be domestic violence. The Court is stressing that domestic violence is not just physical, and that it is a specific dynamic where one individual exercises power and control over the other, including using threats of violence even when there is no physical violence and considerable rule making and other methods to intimidate and emotionally and mentally harm the victim.
Consequences of domestic violence
In one case the daughter was injured when she tried to protect the mother against her abusive father so the divorce was granted and the mother given custody. This case conveys the message that a parent who is found to have committed domestic violence against the other parent should not have custody of the child or children who were in that household when the abuse occurred, even if the child was not directly physically targeted or harmed. This represents a sophisticated understanding of the impact of domestic violence on children and the danger of an abusive parent.
Issues for the judicial interpretation
Judge Xue mentioned at the press conference that a draft interpretation had already been prepared, but was subject to further studies and discussions and it was hoped it would be issued in the second half of 2014. Issues to be covered by the interpretation include:
classification of different types of domestic violence;
more specific guidelines on criminal punishment for domestic violence;
evidence in domestic violence cases;
guidelines for imposing punishment on victims of domestic violence who commit crimes against their abusers.
The drafting of the interpretation was preceded by several years of field studies in 73 basic level courts. At the press conference, the head of the Court’s Institute for Applied Jurisprudence stated that the definition of domestic violence will incorporate international practice and that the courts will work with other institutions to promote a unified approach to domestic violence.
Judicial training
After the domestic violence judicial interpretation is issued, widespread judicial training will be needed to ensure that judges can recognize domestic violence and issue civil protection orders to protect women, children, and the elderly. Many press reports (as well as studies by the Institute of Applied Jurisprudence) indicate that part of the problem can be traced to local courts, police and other authorities, who do not take domestic violence seriously.
This training is especially needed in rural courts, where many abuse cases occur, but also in the military courts. Article 33 of the Marriage Law provides that the spouse of a soldier in active service who wants a divorce needs to obtain the soldier’s consent, unless the soldier has made “grave errors” （重大过错, which according to a 2001 interpretation of the Marriage Law, includes domestic violence. This article by a judge from a court outside of Kunming describes some of the issues.
At the latest NPC session, delegates again brought up the delay in progress on domestic violence legislation (described here). Domestic violence is an area that the scholars, NGOs, and the domestic (and international) public has been putting pressure on the courts to address for some years, and it will be significant progress if the domestic violence interpretation is issued this year.
(The case analysis was provided by a contributor who wishes to remain anonymous)
The Supreme People’s Court (the Court) devoted its 27 February 2014 press conference to domestic violence, highlighting:
the seriousness of the problem;
10 model cases;
a forthcoming judicial interpretation on domestic violence.
Judge Xue Shulan, Deputy Head of the #1 Criminal Division, appeared at the press conference. The Court websites have published a number of domestic violence related articles in the past 3 weeks. Some of these articles have been reprinted on the website of the Central Communist Party Political Legal Committee, indicating that the Court initiative has political backing.
This blogpost will briefly explain:
the significance of the 10 model cases
some issues that should be incorporated into the judicial interpretation;
Some statistics about domestic violence in China
At the press conference, Sun Jungong, spokesman for the Supreme People’s Court, released some statistics about domestic violence. He said that domestic violence occurs in approximately 24.7 percent of Chinese families, and almost 10 percent of intentional homicide cases are connected with domestic violence.
The significance of the 10 model cases
Domestic violence graphic from SPC website
These model cases are intended to convey lessons to the lower courts, lawyers, and the general public on how to consider cases involving domestic violence.
Civil protection orders
China has adopted the concept of a civil protection order (commonly used in other jurisdictions) into its legal system (see an academic study on the issue). The amended Civil Procedure Law provides a legal basis for the issuance of these orders (see a summary in the linked article). The Court revealed at the February news conference that over 500 civil protection orders have been issued since 2008.
One model case involved a civil protection ordered issued to protect an elderly man against his abusive child while another case involved a civil protection ordered against the uncle of the minor.
The cases convey the message that the scope of persons to be protected under domestic violence civil protection orders should be expanded to include:
the elderly; and
minors.
These cases signal an expansion of the categories of individuals for whom orders may be issued and an expansion of the definition of relationship between victim and perpetrator. Academic studies suggest a prevalence of domestic violence against the elderly and minors in China. Academic studies have found elder abuse occurring in approximately 35% of the populations surveyed and significant prevalence of child abuse.
Previously, the sole guidance from the Court regarding the issuance of civil protection orders had been limited to issuing them on behalf of one spouse against the other while still married or in the process of seeking a divorce.
Evidence
The Court is providing guidance for judges about what can be considered evidence of domestic violence. Examples of evidence of domestic violence in these cases include the statement of the victim, in writing, medical records, and the diary of a child and/or victim.In the past judges often did not consider the statement of the victim as evidence. Reaffirming the evidentiary value of medical records and contemporaneous notes is also important.
Types of domestic violence
In one case, the description of domestic violence was described as excessive use of house rules. In another example, emotional harm was specifically cited as an injury caused by the violence and a fine was issued. In another case, use of threats to control the other party was cited.
By selecting these cases, the Court is also conveying a message about the types of behavior that can be considered to be domestic violence. The Court is stressing that domestic violence is not just physical, and that it is a specific dynamic where one individual exercises power and control over the other, including using threats of violence even when there is no physical violence and considerable rule making and other methods to intimidate and emotionally and mentally harm the victim.
Consequences of domestic violence
In one case the daughter was injured when she tried to protect the mother against her abusive father so the divorce was granted and the mother given custody. This case conveys the message that a parent who is found to have committed domestic violence against the other parent should not have custody of the child or children who were in that household when the abuse occurred, even if the child was not directly physically targeted or harmed. This represents a sophisticated understanding of the impact of domestic violence on children and the danger of an abusive parent.
Issues for the judicial interpretation
Judge Xue mentioned at the press conference that a draft interpretation had already been prepared, but was subject to further studies and discussions and it was hoped it would be issued in the second half of 2014. Issues to be covered by the interpretation include:
classification of different types of domestic violence;
more specific guidelines on criminal punishment for domestic violence;
evidence in domestic violence cases;
guidelines for imposing punishment on victims of domestic violence who commit crimes against their abusers.
The drafting of the interpretation was preceded by several years of field studies in 73 basic level courts. At the press conference, the head of the Court’s Institute for Applied Jurisprudence stated that the definition of domestic violence will incorporate international practice and that the courts will work with other institutions to promote a unified approach to domestic violence.
Judicial training
After the domestic violence judicial interpretation is issued, widespread judicial training will be needed to ensure that judges can recognize domestic violence and issue civil protection orders to protect women, children, and the elderly. Many press reports (as well as studies by the Institute of Applied Jurisprudence) indicate that part of the problem can be traced to local courts, police and other authorities, who do not take domestic violence seriously.
This training is especially needed in rural courts, where many abuse cases occur, but also in the military courts. Article 33 of the Marriage Law provides that the spouse of a soldier in active service who wants a divorce needs to obtain the soldier’s consent, unless the soldier has made “grave errors” （重大过错, which according to a 2001 interpretation of the Marriage Law, includes domestic violence. This article by a judge from a court outside of Kunming describes some of the issues.
At the latest NPC session, delegates again brought up the delay in progress on domestic violence legislation (described here). Domestic violence is an area that the scholars, NGOs, and the domestic (and international) public has been putting pressure on the courts to address for some years, and it will be significant progress if the domestic violence interpretation is issued this year.
(The case analysis was provided by a contributor who wishes to remain anonymous)
A short notice on the Supreme People’s Court’s websites and Wechat on 2 March (linked here) announced the launch of an 8 month campaign in the military courts to clear out a backlog of major civil disputes. The announcement (and related information) gives the outside world a peek behind the curtain of the almost 100 military courts. Any lawyer involved in due diligence projects in China in the last 15 or more years will have encountered issues related to Chinese military law, particularly land issues, but the issues targeted in the campaign are much broader.
This blogpost will look at:
the military court system;
transparency of the military courts;
judicial reforms in the military courts;
civil jurisdiction of the military courts; and
the clearup campaign.
Military Court System
The Chinese military court system, a system to itself within the Chinese court system, apparently has attracted little attention outside of China (or at least in open sources). The military court system is headed by the PLA Military Court, which is under the Political Department of the Central Military Commission, and under the Supreme People’s Court. Below the PLA Military Court there are courts in the military regions as well as the military services–Navy, Air Force, Armed Police and below those courts, basic level courts within each of these regions, military services, and other units (see this description.
Transparency
Although several articles in the Chinese press suggest that the military courts are more transparent than before, national security concerns apparently mean that the transparency measures being pushed by the Court leadership have not yet extended to the military courts. For example, the judgment debtor database established in the fall of 2013 includes all the courts but the military ones (although some military-linked companies can be found in the database). The Court’s websites link to websites of the provincial-level local courts, but not that of the military courts. However, internet searches (as well as searches of legal databases) will turn up many reports of cases involving both the civilian and military court systems.
Judicial reforms in the military courts
The Third Plenum Decision called for improvement in military legislation, and it is understood to include judicial reforms in the military courts. The head of the PLA Military Court stated that judicial reforms included improving the quality of military justice, including the quality of cases handled. What that involves has not been revealed in the open press, although presumably these are issues for the leadership of the PLA military court. It is likely that increased training of military judicial personnel will be part of the solution,both within the military system and outside it.
Civil jurisdiction of the military courts
Civil, rather than criminal cases, are the focus of the clear up campaign. The military courts have heard over 2500 civil cases, most of which have been settled. The Chinese military courts have civil jurisdiction, most recently under a judicial interpretation in the form of regulations issued by the Supreme People’s Court in 2012, “Provisions on Several Issues Concerning the Jurisdiction of Military Courts in Civil Cases” （Civil Cases Jurisdiction Provisions, linked here) and a previous 2010 notice. The rationale for giving military courts civil jurisdiction is to enable certain types of civil disputes to be resolved more effective, because the local court have encountered difficulties in dealing with them. Difficulties cited range from serving military personnel or military entities, freezing military assets, obtaining evidence held by military entities, having military personnel attend hearings in the civilian courts, and enforcing judgments against military entities.
The Civil Cases Jurisdiction Provisions deserve more discussion than this quick blogpost can provide, and stipulate:
certain civil cases must be exclusively heard in the military courts (including cases in which both parties are military personnel or military entities):
parties have the choice whether or not to file a civil suit in the military courts under certain circumstances:
tort cases in which military personnel or entities are tortfeasors;
family disputes in which one party is in the military;
tort cases that occurred within a military facility; or
military real property disputes with a military individual or entity as party.
civil cases can be transferred to and from the military and local courts, respectively.
Head of Lanzhou Military District Court visiting local intermediate court
The PLA Military Court has issued regulations further specifying the jurisdiction of various levels of military courts, that have been summarized in the press but not made public.
The clear up campaign
The campaign, undertaken with the concurrence of the Political Department of the Central Military Commission, focuses on the following types of cases:
construction of military installations;
ownership of military land;
defense technology (and presumably other intellectual property-related cases);
family law cases involving military personnel;
torts;
condemnation of property; and
labor.
Although reports have not given further details on specific cases, the following is generally known or presumed:
In many cities, PLA entities hold real estate in prime areas and the ownership disputes may involve significant sums of money;
it is likely that military families have not escaped greater social trends of increased rates of divorce, particularly in the major cities, and some of those divorces are likely to involve disputes over valuable real property;
there are likely are disputes over the intellectual property rights held by military personnel and military entities (one reported case involved infringement of copyright (by civilian publishers) of writings by military personnel);
military entities have contract disputes involving construction of military installation as well as military goods and services procured.
Greater engagement with the outside world?
It is unclear whether military exchanges with foreign armed forces have included the military courts, or whether the PLA Military Court (or the Central Military Commission) would welcome further engagement with the outside world. Presumably efforts aimed at increasing the role of law within the military and strengthening the military courts would benefit all.
Beijing petitioners at SPC (used with permission of Natalie Behring)
In the past two weeks, the Supreme People’s Court (the Court) has taken new measures to resolve the problem of petitioning (ordinary people petitioning higher authorities concerning their grievances). Court petitioners generally have grievances related to judgments (or the enforcement of judgments) in the lower courts. Petitioning affects the Court itself. The current measures are tied with the document released on 27 February 2014 by the General Offices of the Communist Party Central Committee and the State Council on petitioning reform (the Petitioning Reform Document, linked here) and briefly reported here. More measures from the Court are anticipated this year.
Approximately 60,000-70,000 petitioners approach the Court each year, many repeat petitioners. In the Court Reform Decision of November, 2013 and other statements in 2013, Court leadership identified resolving the issues underlying petitioning as a target for action (see previous blogposts in January, 2014, October, 2013, and September, 2013). It is likely that its current and future initiatives related to petitioning will be mentioned in the Court’s Work Report to the National People’s Congress.
Link to the Petitioning Reform Document
The Petitioning Reform Document is intended for distribution to the court system, as a Party document distributed to “all departments.” It pinpoints measures for the court system to take, some highlighted below.
Several points of the Petitioning Reform Document relate to the new measures taken by the Court. Point 5 of the document relates calls for pathways for petitioning issues to be heard, including on-line petitioning platforms. Point 9 of the document calls for greater legalization of petitioning, such as:
separating litigation from petitioning;
taking petitioning into the courtoom;
improving various types of appeal procedures (litigation/arbitration/administrative reconsideration)
improving systems within the courts/procuracy/public security/judicial administration to deal with the underlying issues causing petitioning.
The last sentence in Point 9 calls on the strengthening of the capacity of the judicial system, to satisfy the ever increasing demands on the judicial system of the masses (ordinary people), and to make the masses feel that they have received fair justice.
Phrases in the last sentences are frequently used by the Court leadership. The latter phrase is part of a statement made by Xi Jinping in early 2013 is often used by the Supreme People’s Court leadership (discussed here).
Internet petitioning platform
To implement the Petitioning Reform Document, on 28 February, the Court established an electronic platform for petitioners, linked here. The internet platform can be accessed from the Court’s official website:
网上办事
The platform includes a short video explaining how to use the on-line system, as well as its benefits, linked here. It is likely intended as a model for the lower courts.
Time will tell how the Court (and the lower courts) will promote the electronic system and resolve the underlying issues. A related issue is whether the Party anticipates a greater scope for NGOs in dealing with court-related issues.
For example, will a team of Court staff be dispatched to the street with tablet computers to register petitioners’ cases? Will this mean that NGO representatives will assist petitioners to register their issues with the courts（although this report from Guangzhou anticipates official channels only)? Most importantly, what will the Court do to resolve the underlying issues? Will this initiative be successful and result in few petitioner visits to the Court and the lower courts?
7 Model Cases
On 17 February 2014, the Supreme Court (Court) issued 7 model cases (典型案例) on protecting the livelihood of ordinary people. “Protecting the livelihood of ordinary people” is a political rather than legal term, and is described in court press releases as cases affecting the lives and livelihood of ordinary people (for more details, see here).
These model cases (linked here) and explained below, are not precedents but intended to be instructional. The legal reasoning in the cases is not important. The release of these cases sends several messages.
It shows the political leadership that the Court has taken the initiative to deal with petitioning related cases.
The Court is showing ordinary people that it is implementing Party policy by taking measures to improve how the court system deals with the underlying issues causing petitioning.
It is sending a signal to the lower courts that these cases are a political priority.
These cases include:
a dispute seeking compensation for forced demolition of property on village land;
a copyright infringement case in which Yang Jiang, widow of the writer Qian Zhongshu sought an injunction to prevent an auction house from auctioning some of his letters (see a discussion here);
a Sierra Leone ship (with an Albanian captain and Syrian crew) arrested by the Xiamen Maritime Court (see a press report here);
a judicial review of an administrative decision in an environmental case in which a farmer’s complaint made to the local environmental protection bureau concerning water pollution was ignored;
a celebrated case in which two men sought compensation for wrongfully being incarcerated for 10 years for a crime they did not commit (see a press report here);
a medical malpractice case; and
an unenforced judgment (despite multiple efforts by the court) in a forced demolition of property case brought by a trade union against a real estate development company (the defendant was one of the companies on the first list of judgment debtors issued by the Court).
Cases #2, #3, and #5 were well known either nationally or locally, and case #7 may have come to the Court’s attention when the defendant was named on the judgment debtor’s blacklist, but it is unclear how the rest came to attention of Court officials (possibly when they met with provincial court officials).
Although the Court is promoting the use of cases to guide the lower courts, including its announcement in the October, 2013 the Court Reform Decision, that it would ” fully expand the important role of leading cases and cases for reference.”
充分发挥指导性案例和参考案例的重要作用
these cases are meant as political rather than legal guidance. The subject matter of these is typical of many “people’s livelihood” cases.
In a November, 2013 blogpost, Mark Cohen (of Chinaipr.com) gave a good overview of model cases, contrasting them with guiding cases. The case descriptions of the model cases do not contain the original judgments but rather a brief summary of the facts, judgment, and (critically) the importance of the case. These model cases are not an indication that the Chinese judiciary is borrowing case law from common law system.
It is likely that 2014 will see more initiatives by the Court to deal with some of the issues underlying petitioning, including working with the NPC Legal Work Commission on expanding the jurisdiction of the courts under the Administrative Litigation Law. The Petitioning Reform Document calls for:
the establishment and improvement of systems imposing liability for mistaken verdicts and
lifetime responsibility (liability) for the quality of cases handled.
The Court is likely to focus on these as well as other issues related to the judiciary raised in the Petitioning Reform Document.
Beijing petitioners at SPC (used with permission of Natalie Behring)
In the past two weeks, the Supreme People’s Court (the Court) has taken new measures to resolve the problem of petitioning (ordinary people petitioning higher authorities concerning their grievances). Court petitioners generally have grievances related to judgments (or the enforcement of judgments) in the lower courts. Petitioning affects the Court itself. The current measures are tied with the document released on 27 February 2014 by the General Offices of the Communist Party Central Committee and the State Council on petitioning reform (the Petitioning Reform Document, linked here) and briefly reported here. More measures from the Court are anticipated this year.
Approximately 60,000-70,000 petitioners approach the Court each year, many repeat petitioners. In the Court Reform Decision of November, 2013 and other statements in 2013, Court leadership identified resolving the issues underlying petitioning as a target for action (see previous blogposts in January, 2014, October, 2013, and September, 2013). It is likely that its current and future initiatives related to petitioning will be mentioned in the Court’s Work Report to the National People’s Congress.
Link to the Petitioning Reform Document
The Petitioning Reform Document is intended for distribution to the court system, as a Party document distributed to “all departments.” It pinpoints measures for the court system to take, some highlighted below.
Several points of the Petitioning Reform Document relate to the new measures taken by the Court. Point 5 of the document relates calls for pathways for petitioning issues to be heard, including on-line petitioning platforms. Point 9 of the document calls for greater legalization of petitioning, such as:
separating litigation from petitioning;
taking petitioning into the courtoom;
improving various types of appeal procedures (litigation/arbitration/administrative reconsideration)
improving systems within the courts/procuracy/public security/judicial administration to deal with the underlying issues causing petitioning.
The last sentence in Point 9 calls on the strengthening of the capacity of the judicial system, to satisfy the ever-increasing demands on the judicial system of the masses (ordinary people), and to make the masses feel that they have received fair justice.
Phrases in the last sentences are frequently used by the Court leadership. The latter phrase is part of a statement made by Xi Jinping in early 2013 and is often used by the Supreme People’s Court leadership (discussed here).
Internet petitioning platform
To implement the Petitioning Reform Document, on 28 February, the Court established an electronic platform for petitioners, linked here. The internet platform can be accessed from the Court’s official website:
网上办事
The platform includes a short video explaining how to use the on-line system, as well as its benefits, linked here. It is likely intended as a model for the lower courts.
Time will tell how the Court (and the lower courts) will promote the electronic system and resolve the underlying issues. A related issue is whether the Party anticipates a greater scope for NGOs in dealing with court-related issues.
For example, will a team of Court staff be dispatched to the street with tablet computers to register petitioners’ cases? Will this mean that NGO representatives will assist petitioners to register their issues with the courts（although this report from Guangzhou anticipates official channels only)? Most importantly, what will the Court do to resolve the underlying issues? Will this initiative be successful and result in few petitioner visits to the Court and the lower courts?
7 Model Cases
On 17 February 2014, the Supreme Court (Court) issued 7 model cases (典型案例) on protecting the livelihood of ordinary people. “Protecting the livelihood of ordinary people” is a political rather than legal term, and is described in court press releases as cases affecting the lives and livelihood of ordinary people (for more details, see here).
These model cases (linked here) and explained below, are not precedents but intended to be instructional. The legal reasoning in the cases is not important. The release of these cases sends several messages.
It shows the political leadership that the Court has taken the initiative to deal with petitioning related cases.
The Court is showing ordinary people that it is implementing Party policy by taking measures to improve how the court system deals with the underlying issues causing petitioning.
It is sending a signal to the lower courts that these cases are a political priority.
These cases include:
a dispute seeking compensation for forced demolition of property on village land;
a copyright infringement case in which Yang Jiang, widow of the writer Qian Zhongshu sought an injunction to prevent an auction house from auctioning some of his letters (see a discussion here);
a Sierra Leone ship (with an Albanian captain and Syrian crew) arrested by the Xiamen Maritime Court (see a press report here);
a judicial review of an administrative decision in an environmental case in which a farmer’s complaint made to the local environmental protection bureau concerning water pollution was ignored;
a celebrated case in which two men sought compensation for wrongfully being incarcerated for 10 years for a crime they did not commit (see a press report here);
a medical malpractice case; and
an unenforced judgment (despite multiple efforts by the court) in a forced demolition of property case brought by a trade union against a real estate development company (the defendant was one of the companies on the first list of judgment debtors issued by the Court).
Cases #2, #3, and #5 were well known either nationally or locally, and case #7 may have come to the Court’s attention when the defendant was named on the judgment debtor’s blacklist, but it is unclear how the rest came to attention of Court officials (possibly when they met with provincial court officials).
Although the Court is promoting the use of cases to guide the lower courts, including its announcement in the October, 2013 the Court Reform Decision, that it would ” fully expand the important role of leading cases and cases for reference.”
充分发挥指导性案例和参考案例的重要作用
these cases are meant as political rather than legal guidance. The subject matter of these is typical of many “people’s livelihood” cases.
In a November, 2013 blogpost, Mark Cohen (of Chinaipr.com) gave a good overview of model cases, contrasting them with guiding cases. The case descriptions of the model cases do not contain the original judgments but rather a brief summary of the facts, judgment, and (critically) the importance of the case. These model cases are not an indication that the Chinese judiciary is borrowing case law from common law system.
It is likely that 2014 will see more initiatives by the Court to deal with some of the issues underlying petitioning, including working with the NPC Legal Work Commission on expanding the jurisdiction of the courts under the Administrative Litigation Law. The Petitioning Reform Document calls for:
the establishment and improvement of systems imposing liability for mistaken verdicts and
lifetime responsibility (liability) for the quality of cases handled.
The Court is likely to focus on these as well as other issues related to the judiciary raised in the Petitioning Reform Document.
Since the end of Third Plenum in November, senior Supreme People’s Court (Court) officials have been racking up airmiles, traveling all over China to meet with National People’s Congress (NPC) and Chinese People’s Political Consultative Conference (CPPCC) representatives. Over forty meetings have been held over the past year. Although Court officials had met with NPC and CPPCC delegates in previous years, it is apparent that these meetings are taking on special significance this year. This blogpost will explain what occurs at these meetings and the rationale for having them. It also illustrates one of the skills that an effective court president needs in China.
In recent months, senior Court officials, primarily the Court vice presidents, have traveled to the four corners of China, from Gansu to Guangxi and from Jilin to Yunnan. Zhou Qiang has also met with Beijing based delegates.
The stated purpose of these meetings is to “listen” (听取) (and respond) to the views and suggestions of NPC and CCPCC delegates. Court officials have either released to NPC and CPCC delegates a copy of the Court draft work report or summarized the developments in the courts in 2013 and plans for 2014. Some meetings apparently involved more substance than others. The meeting with Shanghai delegates, which included a leading law firm partner as well as the general manager of Shanghai Electric (listed on the Hong Kong Stock Exchange) raised the issues of:
quality of judicial personnel;
increasing judicial independence;
resolving local protectionism;
having more witnesses appear in court; and
cross-examination.
It is apparent from the extensive reports on these meetings that Zhou Qiang is taking a tactical approach to these meetings. As the former governor of Hunan, former Party Secretary of Hunan and director of the Standing Committee of the Hunan People’s Congress, he has extensive experience in dealing with people’s congress and consultative congress deputies.
It appears that the rationale Zhou Qiang (and colleagues) have for these meetings is two-fold. First, it is to diffuse criticism of the Court (and the work of the lower courts) at the upcoming NPC session and incorporate frequently issues into either the final version of the Court Work Report or the 2014 Court agenda. The large number of votes against the 2013 Court Work Report was seen as a loss of face and it is likely that Court leadership wants to avoid that.
The second reason Zhou Qiang has for closely liaising with NPC delegates is to lay the groundwork for implementing court reforms. If the Court is able to obtain support for overhauling the structure for the funding of courts and appointment of judges at the local level (as foreseen by the Third Plenum Decision) this reform will require that the NPC amend the basic statute for the court system, the Organizational Law of the People’s Courts (人民法院组织法) and will require NPC delegates support the reforms in large numbers.
Zhou Qiang listening to Hunan provincial people’s congress delegates, 2011
On the eve of the Chinese New Year, a banner headline was posted on the Supreme People’s Court (Court) websites:
Study the Important Written Instructions of General Party Secretary Xi Jinping
A revised version of that banner has remained on those websites since (the photo above), apparently unobserved by outside commentators, who may have not realized its significance. This blogpost will look at:
what written instructions (批示) are;
the significance of Xi Jinping giving written instructions;
what Xi Jinping’s instructions were;
why the instructions were issued on eve of the New Year; and
why Zhou Qiang, President of the Court called on the lower courts to study diligently Xi Jinping’s instructions.
What are written instructions (批示)?
”Written instructions“ (批示) means notes or comments made by a superior on a written document submitted for approval or comment. It is used in reference to Party/government documents as well as documents within the court system (see the regulations on handling each type of document). The term has been used throughout the history of the PRC as well as in Chinese history. Analysis of Chinese political documents often mentions written instructions.
According to the reports on various Court websites and in the press, Xi Jinping gave his written instructions on 28 January in response to a report submitted by the Supreme People’s Court entitled Situation Concerning the Work of the People’s Courts in 2013 and Proposals for their Work in 2014 (关于2013年人民法院工作情况和2014年工作打算的报告). The report has not been made public.
What were Xi Jinping’s written instructions and what is their significance?
Xi Jinping wrote what to the outside observer appears to be a collection of slogans from the Third Plenum Decision. However appearances can be deceiving.
He wrote that the courts had diligently implemented the Center’s policies and implemented their responsibilities and achieved new results. He expressed his hope that the courts will make persistent efforts, implement the spirit of the 18th Party Congress, Third Plenum etc, uphold the Party’s leadership, promote judicial reform, advance the building of a judicial system that is fair, efficient, and authoritative..provide powerful judicial protection for reform, and continue to promote the building of the rule of law in China.
The significance of the written instructions is not so much in its content as the fact that Xi Jinping issued it to the Supreme People’s Court. It is unusual for a Party General Secretary to have issued them. By doing so, Xi Jinping expresses his support, praise, demands, and hopes for Zhou Qiang and the Court leadership.
Why were the written instructions issued on eve of the New Year?
The written instructions were issued on the eve of the Chinese New Year to approve what Zhou Qiang and the other Court leaders did in 2013, as well as confirm the planned policies of the Court for 2014. The written instructions were issued before the Chinese New Year to enable the Court leadership to be better equipped when dealing with issues at the National People’s Congress (NPC) meeting in early March. Court leaders are likely anticipating that local opposition to judicial reforms under consideration may be expressed at the NPC meeting.
Why are the lower courts requested to study diligently Xi Jinping’s instructions?
Xi Jinping’s instructions summarize in one paragraph the Central Committee’s policy towards the courts and their role in the Third Plenum reforms as well as judicial reforms. The written instructions enable the lower courts to understand the political background against which they work and the political goals for their work in the near and longer term.
The more sophisticated lower court judges understand that the written instructions mean that the Party leadership values the work of the Court leadership, but recognize that this will not resolve their caseload.
Concluding Remarks
To the outside observer:
it illustrates what is meant by Party leadership of the courts at the highest level;
in the political context of China, it is a major coup for Zhou Qiang (and colleagues) and their reform policies for Xi Jinping to have issued those written instructions; and
It means the political leadership is behind those reforms.
At the same time, it places a great deal of pressure on the Court leadership to deliver results (as seen from the political leadership) in the judicial reforms.
It would not be surprising to hear voices opposing some of the reforms at the NPC meeting.
In early September, 2013, the Supreme People’s Court (the Court) issuedthe Notice on Certain Issues Relating to Correct Handling of Judicial Review of Arbitration Matters (最高人民法院关于正确审理仲裁司法审查案件有关问题的通知)(Fa [2013] No. 194) (the Judicial Review Notice). This clunky sounding notice relates to the split between CIETAC and its former sub-commissions, the Shanghai International Economic and Trade Arbitration Commission (the Shanghai International Arbitration Center) and the Shenzhen International Economic and Trade Arbitration Commission (the Shenzhen Court of International Arbitration). It is therefore relevant to the thousands of companies (and their lawyers) that have CIETAC Shanghai or CIETAC Shenzhen/South China arbitration clauses in their contracts.
The Judicial Review Notice dispute was not published on the Court’s official website or the website of the national court system (which it also operates) but the text was distributed by local lawyers associations (one is linked here) and was published by Peking University’s Chinalawinfo service. It became the subject of law firm alerts and other publications in Chinese and English (some English alerts are linkedhere and Chinese alerts are linked here).
The Judicial Review Notice is not a judicial interpretation and is not required to be made public. It is a Court normative document (discussed in an earlier blogpost). Court normative documents address new issues or phenomena where the Court is of the view that the law is not settled enough for judicial interpretations. The Judicial Review Notice, which (as described in the above client alerts) requires certain lower court rulings related to the CIETAC split to be considered by lower court judicial committees and reported up level by level to the Court. On the topic of judicial committee, see my earlier article on the subject–Article on judicial committees and as mentioned in an earlier blogpost, the Court is reconsidering) These new procedures affect the rights of litigants in these cases as well as parties (or potential parties) to arbitration proceedings in the Shanghai International Arbitration Center and Shenzhen Court of International Arbitration. However, relevant regulations do not require that all Court normative documents be made public.
The Court leadership is requiring more transparency of the lower courts. They need also to turn their attention to their own documents and consider where the Court can be more transparent, because that will also be a step forward in (as the Court’s slogan has it) “Vigorously Strengthening a Fair Judiciary and Continuously Increasing Judicial Credibility”.
1. The Chinese government cracks down on medical institution crime. On 21 December, 11 government and Party bodies, including the:
National Health and Family Planning Commission;
Supreme People’s Court;
Ministry of Public Security;
Ministry of Justice; and
Supreme People’s Procuratorate,
initiated 1 year movement to crack down on crime relating to medical institutions. The plan, reported here and linked here , calls for the punishment of offenses related to medical institutions. It also announces the framework for related reforms:
restructuring state-owned medical institutions;
resolving medical disputes with mediation;
improving rural health; and
improving security in medical institutions.
Although the Supreme People’s Court co-issued this document, it is not a judicial opinion. It is a policy document.
2. The Court posted structural reform issues for on-line discussion, although it is unclear what the response has been. On 18 December, the Court posted two court structural reform issues raised by the Third Plenum Decision on the “Everyone Discuss Judicial Reform” Website (linked here) and asked for comments:
local courts and procuratorates–promote uniform administration of personnel, finance, and property at provincial level and below;
the four levels of the courts–clarify their role and position.
Questions raised by the Court concerning the “uniform administration of the local courts”:
what does this mean;
what are its implications,
will it mean further bureaucratization of the courts and procuracy,
what flexibility should there be,
what will it mean for local protectionism.
Questions raised by the Court concerning “clarify the role and position of the functions of the four levels of the courts” concern the implications for:
judicial interpretations,
appeals systems;
internal organization of the courts.
The “Everybody Discuss Judicial Reform” website is a joint project of the national court website, justice website (Supreme People’s Procuratorate), and the China Law Society. It is a forum for eliciting discussion on important issues for which the institutions must already have framework plans.
Pentatonic themes emanate from five articles on the national court website (www.chinacourt.org), which is managed by the Supreme People’s Court (the Court). Although these themes appear dissonant, they reflect where the Court is now and where it may be headed. The five articles (or interfaces) relate to the
Mass line education and practice campaign;
Defense of the new joint interpretation on Internet defamation;
Interview with Court President Zhou Qiang ;
Judicial reform: should the judicial committee be abolished; and
The Enterprise Bankruptcy Law Interpretation (II).
The first two articles are the most political and the last is most technical. The middle one is the most significant, although it inevitably requires some decoding, and the fourth is related to the third.
1. The mass line education and practice campaign
The national court website includes a banner that links to further information about the mass line education and practice campaign. There is likely an internal Party Propaganda department directive directing that this be done. The Supreme People’s Procuratorate website has a similar banner, as do the websites of the lower court websites. Communist Party (Party) leadership of the courts means that the mass line education and practice campaign must be featured and implemented in the courts. This section features articles on themes in the campaign stressed by the Party as well as action by the Court.
2. Justifying the joint interpretation criminalizing the posting of internet rumors
Several articles on the national court website relate to the joint interpretation criminalizing the posting on the internet of false rumors. Many others have examined the joint interpretation, the comments by a “responsible person,” and the related Party documents that preceded (and directed) its issuance, so I will not re-hash those issues. The articles on the national court website justify the joint interpretation (and could not do otherwise), including one stating that “freedom of speech” and criminal punishment of false rumors is not contradictory. It would appear (from the posting of the comments of the responsible person on the judicial interpretation on the website of the Supreme People’s Procuratorate) that the Supreme People’s Court did not take the lead in drafting this interpretation that has drawn derisive comments from the legal community within China.
3. Court reform under Party leadership: Interview with Court President Zhou Qiang published in Seeking Facts
This article, which links to an interview with Court President Zhou Qiang in the magazine Seeking Facts (the journal of the Central Committee of the Communist Party) is important because he identifies (within the constraints of his role and the audience that he is addressing) the major issues facing the court system and his vision of the development of courts, linking it, (as he must), to the Party line as set out by General Secretary Xi Jinping, including the mass line education and practice campaign. He uses as his anchor the statement that Xi Jinping made earlier this year:
“In every single legal case in China, we should work hard to ensure that the mass of the public feel they have received fair justice.”
Among the issues that he raises in the interview, Zhou Qiang identifies the new challenges facing the courts—as he sees it, the demands of the people on the courts are continuously increasing, while the relatively retarded capabilities of the courts are unchanged, manifesting themselves in the following types of cases:
eminent domain,
environmental and
internet cases.
He said these types are cases that are particularly difficult to resolve, and the new media environment means that any case at any stage can become high profile—imposing particular pressure on the courts. He touches on a number of issues that relate to public perception of the courts:
Obstacles to litigation, such as court refusal to accept cases;
Legal aid for the poor;
Interference into court operations;
Localism and bureaucratic nature; and
Wrongful convictions.
On the latter point he says that the criminal justice system should work together to avoid them, and the victims should be compensated and those responsible punished. In a related development, the Party Central Political Legal Committee has issued guidelines on dealing with those cases, although the full text of those guidelines does not seem to have been released.
Zhou Qiang is (inevitably) less specific in suggesting specific solutions to the issues that he has raised.
4. Judicial reform: should the judicial committee be abolished?
Related to the judicial reform issues discussed by Court president Zhou Qiang, an article on the national court website raises the issue of the role of judicial committees in the Chinese courts (). This brief article further links to a website with a project jointly sponsored by the national court website and Qinghua University—designed to rekindle discussions on what should become of the judicial committee (see my 2010 article on judicial committees–Article on judicial committees). Throughout the history of the PRC, court legislation has stated that judicial committees “practice democratic centralism” and that their task is to “sum up judicial experience and to discuss important or difficult cases or other issues relating to judicial work.” Judicial committees operate according to Communist Party principles of leadership to decide cases that are too difficult or important for an individual judge or judicial panel to decide, to ensure the optimal substantive result (as seen from the institutional perspective of the courts.
The pluses and minuses of judicial committees have been debated within China and abroad for 20 or more years.
5. Judicial Interpretation of the Bankruptcy Law (II)
This article is included because it relates to the ongoing technical role of the Court. A second long judicial opinion (but shorter than the first) has been under consideration for some time, and according to reports a third judicial opinion is being drafted. The Court has wisely included practicing lawyers as well as liquidators in discussions on the future draft. A draft version of this second interpretation was released in 2012 for discussion by some lower courts as well as specialists. Comments by the drafters to the press on the interpretation can be found here.
6. Conclusions?
As to the pentatonic themes:
The courts are under the leadership of the Party and must act in accordance with its policy line;
The Chinese courts are facing ever more complicated social issues, requiring greater professional (and political) competence;
The Chinese courts are facing ever more complicated commercial issues, requiring a greater level of technical competence;
Court leadership is exploring more sensitive court reform issues (at a theoretical level);
Court leadership is taking concrete steps concerning less controversial reform issues that will benefit “the masses”, such as legal aid to the poor.
This post that focuses on the Supreme People’s Court’s (Court) authority to interpret law. My intent is to avoid the quicksand of academic discussion on the topic, which has run for over 20 years in Chinese, English, and other languages and focus instead, on what the Court is doing. This topic also gives me an opportunity to provide a historical perspective, because I examined this topic in detail 20 years ago.
This seemingly theoretical topic is relevant to the work of a broad range of people (among others);
• Lawyers reviewing memoranda from their China-based lawyers;
• Journalists;
• Consular officials stationed in China;
• Regulatory officials who are charged with monitoring exports from China; an
• Foreign and international judicial officials charged with international judicial assistance; and
• Arbitrators in cases involving Chinese law.
These posts will explain (with some historical perspective):
• Why Court interpretations are important;
• Important functions of Court interpretations;
• What they look like;
• The Court’s legal basis for issuing them;
• On-going issues (and suggestions for reform).
Why are they important?
Court interpretations are an important source of legal rules in China, particularly for the courts, and have been for most of the history of the PRC. The number of client alerts by major international law firms is testimony to their importance to the international commercial world, but the Court interprets on many other areas of law of critical importance to ordinary Chinese citizens and the domestic economy. In the last 6 months, Court interpretations in the following areas have achieved international prominence include:
• Labor (employment) law;
• Conflicts of law (private international law);
• Civil trademark disputes and
• Criminal bribery.
Many other interpretations have missed the glare of international scrutiny , although they are significant for the substantive or procedural area involved (as well as the persons affected). Some important functions of Court interpretations
Among the important functions of Court interpretations are to:
• supply missing definitions;
• supply missing concepts;
• set out missing procedures;
• embody political policy as relevant to the court system;
• refine the discretion of the lower courts; and
• generally fill in the gaping holes or glitches in Chinese legislation.
The Chinese judiciary and legal system would be unable to function without them.
It is an area of Court operation where the Court has changed what it does, for the better, particularly in comparison to 20 years ago. Subsequent posts will also explain what “better” is but also point out some “areas of concern.”
Supreme People's Court Monitor 
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