What’s on the Supreme People’s Court’s judicial interpretation agenda (II)?

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SPC General office document issuing the 2018 judicial interpretation plan

The Supreme People’s Court (SPC) has a yearly plan for drafting judicial interpretations, as set out in its 2007 regulations on judicial interpretation work , analogous to the National People’s Congress (NPC) and its legislative plans. Judicial interpretations, for those new to this blog, are binding on the SPC itself and the lower courts, and fill in some of the interstices of Chinese law (further explained here).

On 10 July, the SPC’s General Office issued the document above. It sets out a list of 48 judicial interpretation projects for 2018 (with several for 2019) for which the SPC judicial committee’s had given project initiation/approval (立项) designating one or more SPC divisions/offices with primary drafting responsibility (this process to be detailed in a forthcoming article).  It appears to be the first time this type of document was publicly released (please contact me with corrections).  If so, it is a concrete step in increasing the SPC’s transparency (addressed in part in one of my forthcoming academic articles). The projects, deadlines, and some brief comments (some longer than others) follow below.

(“Project initiation”/”project approval” is a procedure well-known to those of us who have been involved in foreign investment projects in China, where it involves approval from the planning authorities, primarily for infrastructure projects, but is an initial procedure used by regulatory authorities of all types, Party and state. For the SPC, it reflects one of the planned economy aspects of the way it operates.

The document classifies the 48 projects into three categories:

  1. 2018 year-end deadline;
  2. 2019 half-year deadline;
  3. 2019 deadline.

This post will discuss the projects in the second and third categories, the ones with deadlines in 2019.

From these we can see which projects are the highest priority and where the SPC sees gaping regulatory holes need to be filled, reflecting its political-legal priorities. Often specific issues have already been on the agenda of the relevant division of the SPC for some time before they have been officially been approved by the SPC’s judicial committee.

As discussed in my previous blogpost, several of the interpretations listed for 2018 have already been issued. It is unclear which other drafts will be made public for comment, as the 2007 regulations do not require it to do so. Making this list known may put some pressure on the SPC to undertake more public consultation.  Few if any interpretations in the area of criminal or criminal procedure law have been issued for public comment.

First half of 2019 deadline

  1. Standardizing the implementation of the death penalty (规范死刑执行).  Apparently this will focus on more setting out more detailed guidelines concerning how the death penalty is implemented, linked to the Criminal Procedure Law and the SPC’s interpretations of the Criminal Procedure Law.

This article on a legal website sets out the steps in implementation and notes that parading of the persons to be executed is prohibited (although this rule seems to be ignored in too many localities).  A recent scholarly article provides some detail (in Chinese). It is possible that 2008 regulations on suspension of the death penalty will be updated. Responsibility of the #1 Criminal Division.  Given the sensitivity of issues related to the death penalty, it is significant that the SPC leadership decided to make this list public, given that this interpretation is on the list.

2. Judicial interpretation on harboring and assisting a criminal.  These provisions occur in various parts of the Criminal Law and are also mentioned in the organized crime opinion discussed in this earlier blogpost.  Drafting responsibility of the #4 Criminal Division.

3.  Interpretation relating to the protection of heroes and martyrs.  With the incorporation of the protection of heroes and martyrs in the Civil Code and the passage of the Heroes and Martyrs Protection Law earlier this year, drafting of a related judicial interpretation was expected.  Responsibility of the #1 Civil Division.

4.Interpretation on technical investigators in litigation.  Responsibility of the #3 Civil Division) (IP Division).  I look forward to Mark Cohen’s further comments on this.

5. Interpretation on the recognition and enforcement of foreign court judgments.  This blog flagged this development last year.  Judge Shen Hongyu of the # 4 Civil Division, who wrote this article on issues related to the recognition and enforcement of foreign court judgments, is likely involved in the drafting.  Drafting responsibility of the #4 Civil Division.

6. Disputes over forestry rights, apparently an area with many disputes.  The Environmental and Natural Resources Division is responsible for drafting.

7.Regulations on responsible persons of administrative authorities responding to law suits, relating to new requirements in the amended Administrative Litigation Law. and the 2018 judicial interpretation of the Administrative Litigation Law. The Administrative Division is in charge of drafting.

8.Regulations on the consolidated review of normative documents in administrative cases.  The Administrative Division is in charge of drafting this.

9. Regulations on the consolidated hearing of administrative and civil disputes, apparently related to item #22 in the previous blogpost. Responsibility of the Administrative Division.

10.  Application of the criminal law to cases involving the organization of cheating on state examinations (linked to Amendment #9 to the Criminal Law). The Research Office is responsible for drafting.

11. Application of the criminal law to crimes involving network use and aiding persons in such crimes (cyber crimes).  This article discusses some of the issues. The Research Office is responsible for drafting this.

End 2019 deadline

  1. Jointly with the Supreme People’s Procuratorate, Interpretation on Certain Issues Related to the Application of Law in Criminal Cases of Dereliction of Duty (II), likely updating interpretation (I) in light of the anti-corruption campaign and the establishment of the National Supervision Commission.
  2. Interpretation on limiting commutation during the period of the suspension of death sentences.  See related research in English and Chinese. The #5 Criminal Division is responsible for this.
  3. Interpretation on the trial of labor disputes (V), likely dealing with some of the most pressing labor law issues facing the courts that are not covered by the preceding four interpretations or relevant legislation.   The #1 Civil Division is in charge of drafting.
  4. Regulations on maritime labor service contracts, likely connected with China’s accession to the 2006 Maritime Labor Convention and a large number of disputes in the maritime courts involving maritime labor service contracts.  The #4 Civil Division is in charge of drafting.
  5. Regulations on the hearing of administrative cases, likely filling in the procedural gaps in the Administrative Litigation Law and its judicial interpretation.  The Administrative Division is responsible for drafting this.
  6.  Personal information rights disputes judicial interpretation, linked to the Civil Code being drafted.  Implications for individuals and entities, domestic and foreign. Responsibility of the Research Office.
  7.  Amending (i.e. updating) the 2001 Provisions of the Supreme People’s Court on Certain Issues Concerning Application of Urging and Supervision Procedure, relating to the enforcement of payment orders by creditors.  Responsibility of the Research Office.

 

 

 

 

What’s on the Supreme People’s Court’s judicial interpretation agenda (I)?

Screen Shot 2018-07-18 at 8.34.32 AM

SPC General office document issuing the 2018 judicial interpretation plan

The Supreme People’s Court (SPC) has a yearly plan for drafting judicial interpretations, as set out in its 2007 regulations on judicial interpretation work  (I have not been able to locate a free translation, unfortunately), analogous to the National People’s Congress (NPC) and its legislative plans.  Judicial interpretations, for those new to this blog, are binding on the SPC itself and the lower courts, and fill in some of the interstices of Chinese law (further explained here).  On 10 July, the SPC’s General Office issued the document above. It sets out a list of 48 judicial interpretation projects for 2018 (with several for 2019).  The document details the projects for which the SPC judicial committee had given project initiation/approval (立项), designating one or more SPC divisions/offices with primary drafting responsibility (this process to be detailed in a forthcoming article).  It appears to be the first time this type of document was publicly released (please contact me with corrections).  If so, it is a concrete step in increasing the SPC’s transparency (addressed in part in one of my forthcoming academic articles). The projects, deadlines, and some brief comments (some longer than others) follow below.

(“Project initiation”/”project approval” is a procedure well-known to those of us who have been involved in foreign investment projects in China, where it involves approval from the planning authorities, primarily for infrastructure projects, but is an initial procedure used by regulatory authorities of all types, Party and state. For the SPC, it reflects one of the “planned economy” aspects of the way it operates.

The document classifies the 48 projects into three categories:

  1. 2018 year-end deadline;
  2. 2019 half-year deadline;
  3. 2019 deadline.

From these we can see which projects are the highest priority and where the SPC sees gaping regulatory holes that need to be filled, reflecting its political-legal priorities. Often specific issues have already been on the agenda of the relevant division of the SPC for some time before they have been officially been approved by the SPC’s judicial committee.

Several of the listed interpretations have already been issued.  The SPC has solicited public opinion at least one of these draft interpretations, and it is unclear which other drafts will be made public for comment, as the 2007 regulations do not require it to do so. Making this list known may put some pressure on the SPC to undertake more public consultation.

This post will discuss the projects in the first category only, with a follow-up post discussing the projects in the second and third categories.

30 projects with a 2018 year-end deadline

  1. Regulations on the jurisdiction of the Shanghai Financial Court.  The NPC Standing Committee decision required the SPC to do so and included some broad brush principles on the new court’s jurisdiction.  As the SPC has announced that the court will be inaugurated at the end of August,  this is likely to be the highest priority project.  The Case Filing Division is in charge.
  2. Regulations on pre-filing property protection provisional measures (关于办理诉前财产保全案件适用法律若干问题的解释 ), a type of pre-filing injunction.  These regulations are for non-intellectual property (IP) cases, as item 18 below addresses provisional measures in IP cases (in which a great deal of interest exists in the intellectual property rights community, as these order can affect a company’s business). The Case Filing Division is in charge.  These regulations could benefit from some market input.
  3. Interpretation with the Supreme People’s Procuratorate on the Handling of Cases of Corruption and Bribery (II), likely updating the 2016 interpretation to reflect the establishment and operation of the National Supervisory Commission and addressing issues that have arisen in practice.  Issues to be covered likely include ones discussed in issued #106 of Reference to Criminal Trial (the journal of the SPC’s five criminal divisions, mentioned here) .  The #3 Criminal Division is in charge of drafting, but it is likely that the supervision commission will be/is one of the institutions providing input.  As I have mentioned earlier, the SPC generally does not solicit public opinion when drafting criminal law judicial interpretations.
  4. Judicial interpretation on the handling of criminal cases of securities and futures market manipulation.  This is linked to the government’s crackdown on abuses in the financial sector (see this report on the increase in regulatory actions) and is linked to last summer’s Financial Work Conference. The #3 Criminal Division is responsible.  It is likely the China Securities Regulatory Commission will provide input during the drafting process.
  5. Judicial interpretation on the handling of cases involving the use of non-public information for trading (Article 180 of the Criminal Law). Guiding case #61 involved  this crime.  It is likely that the principle from the guiding case will be incorporated into this judicial interpretation, as frequently occurs.  Again linked to the crackdown on the financial sector and again, it is a task for the #3 Criminal Division.
  6. Judicial interpretation on the handling of underground banking (地下钱庄) cases.  Large amounts of money are being whisked out of China unofficially.  Linked again to the crackdown on the financial sector as well efforts to slow the outflow of funds from China, and likely the People’s Bank of Chin.  Again, a task for the #3 Criminal Division.
  7. Interpretation on challenges to enforcement procedures in civil cases, related to the campaign to basically resolve enforcement difficulties within two to three years.  Drafting this is a task for the #1 Civil Division.
  8. Interpretation on evidence in civil procedure.  Important for lawyers and litigants, domestic and foreign.  Drafting this is a task for the #1 Civil Division.
  9. Interpretation on civil cases involving food safety. Food safety is an area in which public interest cases are contemplated.  These cases have been politically sensitive.  Drafting this is a task for the #1 Civil Division.
  10. Interpretation on construction contracts (II). The initial interpretation dates back to 2004. These type of disputes generally involve a chain of interlocking contracts and often regulatory and labor issues. Some of the larger cases have been heard by the SPC. Drafting this is a task for the #1 Civil Division.
  11. Interpretation on the designation of bankruptcy administrators.  Issues surrounding bankruptcy administrators have been ongoing in the bankruptcy courts, as has been discussed in earlier blogposts. Drafting this is a task for the #2 Civil Division.
  12. Regulations on the consolidating the bankruptcy of company affiliates, again an area where regulation is insufficient, posing issues for bankruptcy judges (as has been discussed in earlier blogposts). Drafting this is a task for the #2 Civil Division.
  13. Regulations on the civil and commercial cases relating to bank cards.  The drafting of this interpretation has been underway for several years, with a draft issued for public comment in June.  There have been a large number of disputes in the courts involving bank cards.  Drafting this is a task for the #2 Civil Division.
  14. Interpretation on legal provisions relating to financial asset management companies acquiring, managing, and disposing of non-performing assets.  The legal infrastructure related to non-performing assets is inadequate, as has been pointed out by all participants, including judges. The Shenzhen Intermediate Court has run several symposia bringing together leading experts from the market.  Drafting this is a task for the #2 Civil Division.
  15. Interpretation on the trial of internet finance cases (civil aspects), as existing judicial interpretations inadequately address the issues facing the lower courts. Drafting this is a task for the #2 Civil Division.
  16. Judicial interpretation on the statute of limitations in the General Provisions of the Civil Code (just issued), which was the responsibility of the #1 and #2 Civil Divisions as well as the Research Office. The General Provisions changed the length of the statute of limitations.
  17. Judicial interpretation on administrative cases involving patent authorization and confirmation. It appears to be the counterpart in the patent area of a 2017 judicial interpretation relating to trademarks.  I look forward to “brother blogger” Mark Cohen’s further comments on this. Drafting this is a task for the #3 Civil Division.
  18. As mentioned above, pre-filing injunctions in intellectual property cases (知识产权纠纷诉前行为保全案件适用法律若干问题的解释 ), a type of pre-filing injunction.  There is great deal of interest in the intellectual property rights community concerning these injunctions, as these orders can affect a company’s business. I look forward to Mark Cohen’s further comments on this. Drafting this is a task for the #3 Civil Division.
  19. Regulations on issues relating to the International Commercial Court.  Those were the responsibility of the #4 Civil Division and the interpretation was issued at the end of June.  See the previous blogpost for further comments.
  20.  Regulations on the scope of environmental and natural resources cases, with drafting responsibility placed on the Environmental and Natural Resources Division. These relate to current government efforts to improve the environment.  I would anticipate that these would include provisions on cross-regional centralized jurisdiction, so that pressure from local government will be reduced. Several provinces have already introduced such guidelines.
  21. Interpretation on compensation for harm to the environment, also with drafting responsibility placed on the Environmental and Natural Resources Division.  This is related to an end 2017 Central Committee/State Council General Office document on reforming compensation for harm to the environment. Again, Drafting responsibility with the Environmental and Natural Resources Division.
  22. Regulations on the trial of administrative agreements.  There is a tension between the administrative and civil/commercial specialists, as reflected in the area of Public Private Partnerships  (PPPs)(see this earlier blogpost).  This has practical implications for both the domestic and foreign business community, as the government is seeking to expand the use of PPPs and avoid local government abuse of them.  Drafting responsibility with the Administrative Division and the Ministry of Finance is likely to be providing input.
  23. Regulations on administrative compensation cases, drafting responsibility with the Administrative Division.
  24. Interpretation related to agency issues in retrial (再审) cases.  With the many governance problems of Chinese companies, these issues frequently arise.  Drafting responsibility with the Judicial Supervision Division.
  25. Interpretation on the enforcement of notarized debt instruments.  Lenders often use this provision to seek more efficient enforcement.  This is related to the campaign to improve enforcement as well as government policy relating to the financial sector.  This research report by one of Beijing’s intermediate court shows that asset management companies are often the creditors and the large amounts of money are involved. Drafting responsibility with the Enforcement Bureau.
  26. Interpretation relating to the enforcement of cases involving company shareholding.  Given the complexities of shareholding in China, including the frequent use of nominee arrangements, these are difficult issues for judges to deal with.  See a recent presentation by one of the circuit court judges on this issue.  Drafting responsibility with the Enforcement Bureau.
  27.  Regulations on reference pricing when disposing of property.  This too is related to the enforcement campaign as well as efforts to clean up the enforcement divisions of the local courts by requiring more transparent procedures.
  28. Interpretation on the Handling of Cases of Crimes Disturbing the Administration of Credit Cards (II), updating the SPC’s 2009 interpretation, found here. Responsibility of the Research Office, which can coordinate with criminal divisions involved as well as interested authorities such as the China Banking Regulatory Commission.
  29. Interpretation on cases involving both civil and criminal issues.  This is a longstanding issue, and with the crackdown on the private lending sector, this has come to the fore.  Among the many issues include: if the defendant is criminally prosecuted first and assets are confiscated, how can affected borrowers or other parties  be compensated.  Drafting responsibility with the research office, likely involving several civil and criminal divisions.
  30. Regulations on the implementation of the People’s Assessors Law. As the law and the follow up SPC notice are too general for courts to implement, more detailed rules are needed.  The Political Department (it handles personnel related issues) and Research Office are involved in drafting.

See the next blogpost for a discussion of interpretation in the second and third categories.

 

 

 

Why are Chinese prosecutors resigning?

Chinese prosecutors (procurators, this blogpost will use the terms interchangeably, although the functions of the procuratorate are broader than public prosecution) do not receive the international attention that Chinese judges attract. There is no Supreme People’s Procuratorate Monitor to review its reforms, structural and legal issues.

Chinese prosecutors, like judges, are leaving the procuratorate in significant numbers, although recent statistics do not appear to be easily available,According to statistics for 2011-2013, over 6000 prosecutors were resigning annually. Li Bin, a former senior prosecutor who in 2016 worked for the legal media company Itslaw (无讼),(she has since changed companies), published the results of her survey of over 4000 members of her cohort this spring.  The study gives important insights.

Who is leaving?

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Prosecutors resigning, by sex

The two surveys that she did revealed that men were resigning in greater numbers than women, with 70%/30% ratio in the survey done this (2016) spring. This may explain why many of the criminal cases streamed by the courts have an all women team of prosecutors.

Age and education

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Age of resigning prosecutors

Like the judges who are resigning, most are in the 31-40 age bracket, with 45% between the ages of 31-35 and 36% between the ages of 36-40.  About 10% are under 30, 6% between 41-45, and no one over 46 responded to the survey. 59f43639-99a0-47ad-b1d9-a9961f257d37-1

Most (80%) resigning prosecutors have at least 5 years experience, with about 40% with over 10 years experience, and 1/3 with 6-9 years experience.

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Educational background

Most prosecutors who resigned had at least a master’s degree.

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Almost half (45%) the resigning prosecutors had worked at the basic level, with another 20% leaving provincial level procuratorates, and another 20+% leaving municipal level procuratorates.

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Most (70%) had done public prosecution, with about 20% having worked in investigation.

Most (67%) of those who responded had resigned within the past  year, with the remainder having resigned within the past three  years.

Destination

Over 40% of those prosecutors who reisgned became lawyers, while 44% became in-house counsel.  Very few went into teaching or other non-profit professions.

Reasons for leaving

Three-quarters of the resigning prosecutors identified poor benefits (and other treatment) as their reason for leaving. Other  reasons identified by over half the respondents included: insufficient opportunity for promotion, no feeling of accomplishment in their work; overly bureaucratic management, insufficient professional respect, inability to travel abroad.  [One local prosecutor has commented that  junior prosecutors (in his locality, at least) are to travel, although the high ranking ones are more restricted.] Other reasons such as too much work pressure or risk were identified by less than 30%.  Others mentioned chaotic management, lack of opportunity to learn anything.

Procuracy reforms

Prosecutors who had resigned were generally pessimistic about judicial (i.e. including the procuracy) reforms.About half said “it was hard to say anything about the future of the reforms,” while about 1/3 thought that there was no hope, with about 19% having some hope.

Almost 90% of resigning prosecutors thought that raising the salary was the most urgent need, with three-quarters believing that it needed to be doubled or tripled to retain prosecutors, with 70% agreeing that the administrative burden should be reduced, almost 60% agreeing that bureaucratic management should be reduced, and 47% agreeing that prosecutors should have more autonomy concerning their cases.

Social media

Finally, the reasons for resigning identified by the editor of Empire Lawyers (mentioned in my earlier blogpost on judges) likely apply to prosecutors. Social media, particularly Wechat,is likely important to prosecutors too, for the same reasons.  It has given them a new universe of social connections outside the procuratorate. It also gives them easy access to information about the life of former prosecutors similar to themselves. Moreover, through Wechat they can create a circle of friends and connections who can provide moral support when they have made the decision to resign.

Money is a big factor, particularly in major cities with high costs of living. The fact remains that middle-class life in China’s major cities, particularly for couples with a child, is expensive and salaries, tied to civil service rank, are inadequate.

At least judging from this survey, prosecutors are concerned that the judicial reforms will not result in a better quality of work for them personally.

As with judges, there is also the rigidity of the Party/state cadre management system. While law firm partner classmates are posting photos of themselves at Yosemite or in the Grand Tetons on Wechat, prosecutors must obtain permission to leave the country.

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

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.

(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.

Will New Supercommittees Resolve the PLA’s Complicated Legal Problems?

Criminal Division, PLA Military Court

Criminal Division, PLA Military Court

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: Week Ending 21 December 2013

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 from the Supreme People’s Court

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.