Supreme People Research Articles

La construcción jurídica de las nuevas formas de familias en la legislación penal sustantiva cubana actual

Objetivos: Analizar desde la construcción de un nuevo concepto de familia y su edificación como un bien jurídico penal independiente en el ordenamiento jurídico penal cubano los futuros retos que se le presentan a la normativa penal sustantiva cubana debido a los cambios sociales en temas familiares y brindar una protección efectiva ante formas de violencia de género o intrafamiliar que sufren los miembros que la integran.
 Metodología: la investigación se elaboró a partir de un estudio de documentos teóricos y sentencias del Tribunal Supremo Popular de la República de Cuba junto a métodos científicos como el exegético normativo, que busca el análisis de las normas jurídicas; el histórico lógico que extrae la ratio de las instituciones desde su evolución histórica y el jurídicodoctrinal que combina los aspectos teóricos necesarios para entender las categorías que se ponen en discusión en este material. De esta forma se analizó un concepto de familia y sus nuevas tipológicas y la necesidad de protección de estas por el Derecho y en particular por el Derecho Penal para luego exponer la regulación jurídica actual en temas familiares de la norma penal contemporánea en Cuba.
 Resultados: existe en Cuba imperfecciones jurídicas en cuanto a la protección de las nuevas formas de familia, pues si bien preexiste un reconocimiento de la misma como bien jurídico está construido sobre patrones patriarcales y machistas, por lo cual su atemperamiento a las nuevas condiciones sociales requiere de cambios legislativos en algunas materias. 
 Conclusiones: en Cuba la normativa penal sustantiva en materia de familia existe como bien jurídico, sin embargo, está desactualizada en cuanto a la protección de las nuevas formas de familia.

China’s 2017 Reform of Its Arbitration-Related Court Review Mechanism with a Focus on Improving Chinese Courts’ Prior-Reporting System

The Chinese Supreme People’s Court has devoted relentless efforts into reforming China’s arbitration regime, before a formal amendment of the PRC Arbitration Law is put on the National People’s Congress’s legislative agenda. In order to address several outstanding issues including the ‘dual-track review system’ existing in Chinese courts’ review process of domestic and foreign/foreign-related arbitrations, the Supreme People’s Court (SPC) issued several judicial documents including two judicial interpretations in 2017, focusing on regulating and unifying Chinese courts’ review of parties’ applications relating to the validity of arbitration agreements, enforcement and/or set-aside of arbitral awards. This reform further aligns Chinese arbitration with international practices, and sends a strong signal to the international arbitration community about China’s commitment to evolve into an arbitration-friendly environment.

REDISTRIBUSI KEKUASAAN NEGARA DAN HUBUNGAN ANTAR LEMBAGA NEGARA DI INDONESIA

The relationship between state agencies basically can not be separated from the system
 used by the state government itself. Indonesia as a country that adopts a presidential
 government certainly has a pattern of distribution of power, although theoretically the
 presidential government system power state agency separate (separation of power), but
 the relationship between institutions is not a relative. The mechanism of checks and
 balances of power destribusi state institutions. Before the amendment, the agency is the
 State Supreme People's Representative Council (DPR), the President, the Supreme Audit
 Agency CPC, the Supreme Advisory Council (DPA) and the Supreme Court with the
 vertical power distribution. Following the amendment to the state institutions teridir of the
 President, the People's Consultative Assembly (MPR), House of Representatives (DPR),
 the Regional Representatives Council (DPD), the Supreme Audit Agency (BPK), the
 Supreme Court (MA), and the Constitutional Court (MK) with distribution horizontal
 power - functional. The distribution of power still has a problem among others, the
 discontinuity in the distribution of state agencies ranging from the overlapping powers of
 the president in participating deliberating the bill with the House, the confusion related to
 the division between the authority of the Supreme Court and the Constitutional Court in
 the perspective of the state administration, the inconsistency of the parliamentary system
 that it wants to apply and the lack of authority DPD in parliament.

중국의 국내계약에 외국중재를 약정한 중재합의의 효력에 관한 판례 연구

There are cases in which domestic companies in China arrange foreign arbitration because of the problems in credibility and cost of domestic arbitration, the convenience of foreign arbitration, and problems in the application of arbitration procedures and practical laws. Even domestic companies have committed domestic disputes to foreign arbitration during the arbitration agreement. In other words, even though it is a contract between a Chinese company and a Chinese company without any international contract elements, they arrange foreign institutional arbitration or foreign ad hoc arbitration. Chinese current legal and judicial interpretation does not stipulate the effect of any foreign arbitration agreements on contracts without international contract elements. We only can verify the attitude of Chinese court on the foreign arbitration agreement through answering of Supreme People’s Court of China about the request of lower court. This paper examines the attitude of Chinese courts to foreign arbitration agreements for contracts without international contract elements through the actual case. In addition, through case analysis, the study also examined the precautions for Korean investment companies in China in case of that Korean companies arrange foreign arbitration institutions for the arbitration agreement with Chinese companies.

An Empirical Study of Judicial Review of Issues of Arbitration Consent

Voluntary arbitration should have played a more positive role in most regions of mainland China with heavy litigation caseloads in local people’s courts. Such arbitration must be relied upon consent of the parties. The quality of legislation for disputes of arbitral consent and its application by judicial review is very important to improve arbitration. Oversea judicial review of disputes of arbitral consent mainly relies upon common contract law and involves the issues about whether there is an acceptance to the offer for arbitration, the parties have signed an arbitration agreement with minimum content, there exists arbitral intention in multiple modes of dispute settlement agreed by the parties, and so on. The burden of proof in oversea jurisdiction is substantially assumed by the party who makes claims. The standards for establishing arbitral consent vary with jurisdiction, as well as time. Much oversea jurisdiction, however, adopts a friendly position towards arbitration to solve relative issues. In the judicial review practice, the people’s courts at all levels have tended to determine the establishment of arbitral consent in some cases, showing their supportive position towards arbitration. In addition, the Supreme People’s Court also assists arbitration in the manner that, once a lower people’s court finds that foreign-related arbitration agreement is invalid, it will require the latter to report to high people’s courts. However, such a request for reporting is only applied against foreign-related cases, and its own procedure is very prolonged and inefficient. At the same time, in other cases including the nature of foreign-related affairs, there is a very unfriendly attitude towards the determination of arbitral consent, which is mainly manifested in the lack of agreement on arbitration agreement with the selection of two or more arbitration institutions. Such a harsh attitude of judicial review is not conducive to China’s growth into a world-competitive place of arbitration. As one of the world’s arbitration centers, it can bring a lot of benefits such as good reputation, foreign exchange income and a reduction in litigation rate in our country. Our country should adopt the dual measures of amending the corresponding defects of the Arbitration Law and improving the judicial attitude of the people’s courts to achieve this goal, that is to abolish the legislative provisions of the prohibition of ad hoc arbitration, to allow to appeal to the higher-level people’s courts for negative decisions on the issues of arbitral consent. At the same time, the people’s courts in the judicial review of any case stop applying internal reporting procedures when they announce arbitral consent and so on.

중국의 사용자책임에 관한 연구 - 불법행위책임법 제35조를 중심으로

With the development of market economy, it has been a legislative trend to establish a system for vicarious liability of employers. China also established Tort Liability Law of People’s Republic of China in 2009 and ruled responsibility of the employers for the acts for their employees through Art. 35.First, the employer’s right to indemnity to an employee should be recognized, because employer’s superintendence is much weak and economic power is similar between them. Second, an employer should take a responsibility for an unpaid employee as vicarious liability, because the Law did not exclude them from employees. Lastly, in case the Law conflicts with Interpretation of the Supreme People’s Court on Certain Issues Concerning the Application of Law in Trying Cases Involving Compensation for Personal Damage, the Law should be regarded it has priority based on several related Principles. Regarding these matters, this study guides you to an analysis of vicarious liability of employers in China, benefits with a view to the perfection of the vicarious liability regime.

A Review of the Supreme People’s Court in China ruling on the Issue of “Gabriel”

A Review of the Supreme People’s Court in China ruling on the Issue of “Gabriel”

The Supreme People’s Court and the Separation of Powers in China : Rethinking and Reinterpretation

The Supreme People’s Court and the Separation of Powers in China : Rethinking and Reinterpretation

Research on Computer Network Defamation Crime in China

Based on the “Amendment 9 to Chinese Criminal Law” and the relevant judicial interpretations of China’s Supreme People’s Court and the Supreme People’s Procuratorate, this paper studies the subject and objective aspects of the crime of defamation in Chinese computer networks. As for criminal subjects, we have discussed the criminal liability of the forwarders and network service providers of cybercrime. With regard to the objective aspects of crime, we discuss the “fabricated facts” act of “defamation”, the act of “spreading” and the serious circumstances.

The Legal Attribute of Civil Retrial Procuratorial Suggestion and the Perfection of Its System

The civil retrial procuratorial suggestion is legal supervision method officially established by Civil Procedure Law. The main features are same level supervision, case supervision, flexible supervision, etc. As an important supplement to civil protest system, legal effect should be positioned to trigger court. The review procedure of effective referee shall be initiated when original judgment is “indeed wrong”. In judicial practice, number of civil retrial procuratorial suggestions has steadily increased, and it has been compared with number of civil protest cases. But because legislative provisions are very principled，the retrial procuratorial suggestions lack specifications in terms of scope of application, procedures, and styles of instruments, which affect their functions fully use. To improve civil retrial procuratorial suggestion system, we should adhere to modest principle of civil procuratorial supervision, principle of limited retrial and principle of litigation benefit. It is recommended that the two high(the Supreme People's Court and Supreme People's Procuratorate) should issue special judicial interpretation as soon as possible, clarify main disputed legal issues, standardize specific procedures, and strengthen data statistics and judicial disclosure.

Guiding Cases as a Form of Statutory Interpretation

In contrast to case law systems in liberal democracies with independent judiciaries, in an authoritarian context, China’s guiding case system is distinctive and cannot simply be explained by current case law theories. This article first explores the distinctiveness of the guiding case system in the specific context of China, as opposed to other types of case law in liberal democracies, and then explains the reason why the Supreme People’s Court (SPC) has been able to expand its judicial lawmaking authority in the sense that it is able to interpret the law through guiding cases. Furthermore, it illustrates that the Main Points of the Adjudication (MPA), as a part of a guiding case, has essentially become a form of statutory interpretation which enables the SPC to independently perform a legislative function to a certain extent with no routine surveillance by the Standing Committee of the National People’s Congress (NPCSC). This is in contrast to the previous practice where the SPC performed the legislative function merely through having it delegated by the NPCSC. Moreover, it is suggested that under China’s authoritarian regime the effectiveness of the SPC’s lawmaking function through the guiding case system largely depends on the extent to which the courts could be independent in the context of China.

Judicial Review of Government Actions in China

China’s laws and policies on the judicial review of government actions are often used as a bellwether of the government’s attitude towards the rule of law. Accordingly, in gauging the direction of legal reform in the Xi Jinping era, recent media reports have highlighted changes in litigation against government agencies as evidence of positive movement towards the greater rule of law, albeit only contradicted by other evidence of political repression and increasing authoritarianism. We provide a selective review of changes in China’s administrative litigation system in the last few years, giving special attention to (i) the amendment in 2014 of the Administrative Litigation Law (ALL), (ii) a 2018 Supreme People’s Court Interpretation of the same statute, and (iii) dramatic changes in empirical patterns of litigation since 2013. In our view, the question of whether lawsuits might be brought against the government has arguably become less interesting than the question of how courts will decide such lawsuits. And the generic notion of judicial independence itself no longer sheds sufficient light on the range of actual and possible judicial responses. Using the purportedly expanded scope of review of informal policy directives as an example, we show that symbolism-motivated advocacy to improve the administrative litigation in China may come at the expense of protecting the non-symbolic functions of judicial review, and of guaranteeing what judges really care about, i.e. the coherence of law and consistency in the delivery of justice.

On trends of the role transition from expert assistant to expert witness

In the context of Chinese evidence law, the role of the expert assistant is to “offer opinion on the forensic expertise or specialized issues.” This role is multiple-facet, somewhat similar to a lawyer's role, and to some extent similar to that of a forensic expert or a witness. For this simple reason, the views on the legal status of opinions of the expert assistant also vary from “cross-examination method,” “forensic expertise” to “witness testimony.” This confusion regarding the role of the expert assistant often results in difficulties in deciding whether to admit the expert assistant opinion as evidence at trial. The regulation that the expert assistant opinion “can be taken as evidence for determining facts of a case after cross-examination” stipulated in Paragraph 2 of Article 15 of the Supreme People's Court Interpretation of the Law in the Conduct of Environmental Civil Public Interest Litigations promulgated in 2015 could be seen as trends of a transition in the role of the expert assistant towards that of the expert witness. This article attempts to analyze reasons, significance, and prospects of such a transition, and give suggestions to improve the application of examination rules for the expert witness and admissibility rules for scientific evidence.

The Expert Assistant System of Medical Litigation

의료소송에서 가장 문제로 되는 것이 환자가 의료행위에 대한 전문적 지식의 부족으로 인하여 유효한 소송권리의 행사와 의료기관에 대한 실질적 대항을 할 수 없다는데 있다. 이러한 점에서 보면 법관도 의료지식에 관하여 비전문가이기 때문에 전문적 문제에 대하여는 속수무책일 것이다. 우리는 법관의 전능형 인재를 기대할 수 없고, 단지 그들의 재능은 제한적이기 때문에 이와 관현한 전문지식인의 DB를 마련하여 소송에 참여하게 함으로써 원활한 소송이 가능하게 하는 최상의 선택이 될 것이다. 이러한 정책실현의 일환으로 2013년 발효된 중국 《민사소송법(民事&#35785;&#35772;法)》 제79조에서 입법적으로 전문가 보조인제도를 정식으로 확립하였고, 2015년 발효된 최고인민법원 《<민사소송법>의 적용에 관한 해석(&#20851;于适用＜&#20851;于中&#21326;人民共和&#22269;民事&#35785;&#35772;法＞的解&#37322;)》 제 122조와 제 123조의 두 조항에서 전문가 보조인제도를 자세히 규정하고 있다. 하지만 오늘날 중국은 전문가 보조인제도의 제도에 대한 입법은 여전히 원칙성 규정으로 머물러 있어 사법실무에서 당사자와 법원이 이 제도를 어떻게 활용할 것인지에 대해 많은 문제가 발생한다. 그러므로 전문가 보조인의 자격인정, 적용범위, 법정절차, 소송지위의 네 가지 측면에서 중국 의료소송에서의 전문가 보조인제도에 대하여 완비함하여 사법상의 어려움을 해결함으로써 실무에서의 요구를 만족시킬 수 있을 것이다. 자격인정 면에 있어 전체적으로 비교적 광범위한 정책을 하여야 하며, 적용범위면에 있어서는 전문가 보조인제도가 법정심리 전 증거개시와 쟁점정리절차, 감정절차 및 개정 전 조해절차에서 광범위하게 적용되어 법정심리절차에 한정되어서는 안된다. 또한 법정절차 면에 있어, 먼저, 전문가 보조인이 의료소송에 참여하는 것을 불허하는 것을 제한하여야 하며, 둘째, 전문가 보조인이 법정출석에서 구두진술을 하는 것 이외에 전문적 문제에 대하여 서면으로 추측의견을 제시하는 것에 대하여도 규정하여야 한다. 소송지위 면에서는 전문가 보조인의 소송지위는 소송참가인(intervener)로서 이에 상당하는 권리의무를 부담하여야 한다. 在&#21307;&#30103;&#35785;&#35772;中一&#20010;突出的&#38382;&#39064;是, 患方&#24403;事人因&#20026;缺乏&#19987;&#19994;知&#35782;, 无法通&#36807;有效地行使&#35785;&#35772;&#26435;利&#19982;&#21307;方&#24403;事人&#36827;行&#23454;&#36136;性的&#23545;抗。不&#20165;如此, 同&#26679;身&#20026;外行人的法官在面&#23545;&#19987;&#19994;&#38382;&#39064;&#26102;也束手无策。&#23545;此, 我&#20204;不能期待也不&#24212;期待&#23457;判法官是全能型人才, &#35753;具&#22791;相&#20851;&#19987;&#19994;知&#35782;的人&#21442;&#19982;到&#35785;&#35772;活&#21160;中&#26469;, 才符合&#35785;&#35772;&#32463;&#27982;原&#21017;。据此, 2013年生效的《中&#21326;人民共和&#22269;民事&#35785;&#35772;法》第79&#26465;在立法&#23618;面正式&#30830;立&#19987;家&#36741;助人制度, &#24182;在2015年生效的《最高人民法院&#20851;于适用＜&#20851;于中&#21326;人民共和&#22269;民事&#35785;&#35772;法＞的解&#37322;》中用第122&#26465;、第123&#26465;&#20004;&#20010;&#26465;款&#23545;&#19987;家&#36741;助人制度&#36827;一步的&#35268;定。但不得不承&#35748;, 目前中&#22269;&#23545;&#19987;家&#36741;助人制度的立法仍停留在原&#21017;性&#35268;定的&#23618;面, 在司法&#23454;&#36341;中, &#24403;事人及法院&#23545;&#35813;制度如何操作&#20135;生了&#35768;多疑&#38382;。因此, 我&#20204;&#24212;&#24403;&#20174;&#19987;家&#36741;助人的&#36164;格&#35748;定、适用范&#22260;、出庭程序、&#35785;&#35772;地位四&#20010;方面&#23545;中&#22269;&#21307;&#30103;&#35785;&#35772;中的&#19987;家&#36741;助人制度&#36827;行完善, 以求解&#20915;司法困境, 适&#24212;&#23454;&#36341;的要求。在&#36164;格&#35748;定方面, 整&#20307;上&#24212;&#24403;采取&#36739;&#20026;&#23485;松的政策；在适用范&#22260;方面, &#24212;&#24403;&#23558;&#19987;家&#36741;助人制度&#25193;大适用于庭&#23457;前的&#35777;据&#24320;示及&#20105;点整理程序、&#37492;定程序以及庭前&#35843;解程序, 而不局限于庭&#23457;程序；在出庭程序方面, 首先&#24212;限制法院不批准&#19987;家&#36741;助人&#21442;&#19982;&#21307;&#30103;&#35785;&#35772;的情形, 其次&#35268;定&#19987;家&#36741;助人除出庭作出口&#22836;&#38472;述之外, &#36824;可以就&#19987;&#19994;&#38382;&#39064;出具&#20070;面推理意&#35265;。在&#35785;&#35772;地位方面, 明&#30830;&#19987;家&#36741;助人的&#3578A prominent problem in medical litigation is that the patient party cannot substantively confront the medical party by the effective exercise of litigation rights because of lack of professional knowledge. Not only that, but judges who are laymen also are helpless when faced with professional problems. In this regard, we cannot expect and should not expect trial judges to be all-around talents. To give full scope to the talents and turn material resources to good account, it is the best choice meeting the economic principle that people with relevant professional knowledge participate in litigation. Accordingly, article 79 of Civil Procedure Law of the People s Republic of China, which entered into force in 2015, formally established expert assistant system at the legislative level and article 122 and article 123 of the Supreme People s Court on the Interpretation of the Civil Procedure Law of the People s Republic of China, which came into force in 2015, do further provisions. However, we have to admit that at present Chinese legislation on the expert assistant system remains at the level of principle. In the judicial practice, parties and courts have raised many questions about how to operate the system. Therefore, we should improve the expert assistant system of Chinese medical litigation from four aspects: the qualification, the scope of application, the procedure of appearing in court and the position of litigation, in order to solve the judicial predicament and meet the requirements of practice. In terms of qualification, the overall policy should be looser; In the case of the scope of application, the expert assistant system should be expanded to apply for pre-trial evidence discovery and dispute arrangement procedures, identification procedure and pre-trial mediation procedure, not limited to trial procedure; In respect of procedure pf appearing in court, law should first restrict the cases that the court does not approve the expert assistant to participate in the medical litigation, and then stipulate that the expert assistant may issue written reasoning opinions on the professional problems besides oral statements in court; As for the position of litigation, the litigation status of expert assistant is defined as litigant participant, and the corresponding rights and obligations should be undertaken.

Piercing the Veil of Arbitration Reform in China: Promises, Pitfalls, Patterns, Prognoses, and Prospects

The promulgation of the China Arbitration Law in 1994 largely reformed and gave shape to the modern Chinese arbitration regulatory framework. However, since then, there has been little legislative improvement in meeting the changing needs. Instead, judicial efforts by China’s Supreme People’s Court and institutional initiatives by Chinese arbitration commissions have further refined and internationalized the Chinese arbitration system. Recent years have witnessed many changes in the Chinese arbitration landscape, particularly the formation, expansion, and complication of the Chinese arbitration market. This Article first critically examines the current regulatory framework and special features of the Chinese arbitration system, many of which promised in the China Arbitration Law, and often referred to as “arbitration with Chinese characteristics.” It then analyzes comprehensively arbitral developments of the past decade in order to pierce the veil of arbitration reform in China, highlighting the pitfalls, patterns, prognoses, and prospects. Finally, this Article identifies the “essential” and “highly recommended” ingredients in prospective reform proposals and examines the extent to which such proposals can actually transform China into a favorable international arbitration forum.

Towards judicial transparency in China: The new public access database for court decisions

Since 2013 judicial reforms in China have intensified. While recent studies of the Chinese judiciary have focused on structural reforms concerning the jurisdiction of courts and internal court management, it has largely gone unnoticed that the Supreme People’s Court (SPC) has established an open-access database archiving the decisions of every court in China. On the basis of legal documents, secondary literature and interviews with experts, this study investigates the implications of the new database. We find that the database establishes new channels of communication that affect the relationship between the courts and the public, and the position of judges within the judiciary. Further, the open-access database facilitates changes in the structure of communication among legal experts, which in turn promotes legal professionalism. We argue that the SPC made use of the party policy on the direct accountability of the courts towards the people in order to pursue its institutional interest in a professional judiciary.

Chronology of Practice: Chinese Practice in Private International Law in 2016*

This paper is composed of materials reflecting the practice of private international law in China in 2016. First, this paper covers the report of the Supreme People’s Court (SPC) released in 2017, notably the Report on the Work of the SPC in 2016, which contains the statistics of the foreign-related civil or commercial cases accepted and concluded by Chinese courts. Second, the paper covers judicial interpretations that took effect in 2016. The important legal instruments that have been translated include: the Provisions of the SPC on Several Issues concerning the Trials of Independent Guarantee Cases and the Provisions of the SPC on Several Issues concerning the Adjudication of Cases Occurring in the Sea Waters under China’s Jurisdiction (I). Third, this paper focuses on typical cases decided by various Chinese courts during 2016 that dealt with the following issues: agent ad litem; jurisdiction (involving representative office and forum non conveniens); choice of law (classification of legal relationship, gambling debt, loan contract); proof of foreign law; recognition and enforcement of a Singapore judgment; validity of the dispute resolution clause containing both litigation and arbitration; recognition and enforcement of foreign arbitral awards (involving the review at the request of the party or ex officio review by the court, procedure review, qualification of arbitrator, division of arbitration costs, excess of authority and division of an arbitral award, and public policy).

China's Guiding Cases System as the Instrument to Improve China's Case Guidance System, which Includes Both Guiding Cases and Typical Cases

After the Supreme People's Court of China (the “Supreme Court”) issued the Provisions of the Supreme People's Court Concerning Work on Guiding Cases (the “Provisions”), which symbolized the establishment of China's guiding cases system, it attracted worldwide attention. Some institutes, like Stanford, launched programs on China's Guiding Cases. It is of importance to discuss the potential and possibility of establishing China's guiding cases system by promoting the Guiding Cases in the context of ongoing judicial reform. For international practitioners, it is helpful to know the civil jurisdiction where there is case law available as case guidance. Also, China judicial reform has become a keen topic for discussion in U.S.–China relations. “The efficiency and fairness in handling commercial cases and the use of Guiding Cases in the adjudication of commercial [cases]” was one of the key topics discussed during the first dialogue joined by the U.S. Departments of Justice and Commerce.

북한정부 수립 문제와 최고인민회의 선거

북한정부 수립 문제와 최고인민회의 선거

State Policies as a Source of Civil Law

State policies exert a great influence over Chinese civil justice. Article 6 of the General Principles of Civil Law stipulates that state policies are a source of civil law, but the path by which they enter civil justice is not a rational one and may lead to adjudication difficulties with state policies. State policies are integrated with state law, and the laws and legal interpretations formulated by the National People’s Congress and its Standing Committee, judicial interpretations, administrative regulations, autonomous regulations and special regulations, administrative rules and other regulatory documents are forms of expression of state policies. Different rules for adjudication apply depending on the different vehicles of state policy. The Supreme People’s Court can play a role in making public policy and guiding state policy into civil adjudication through “open” and “unseen” channels.