Supreme People's Court Research Articles

China's Guiding Case System

The Supreme People's Court and the Supreme People's Procuratorate have each introduced their own “Provisions Concerning Work on Guiding Cases,” marking the official establishment of China's guiding case system. The guiding case system is case law with Chinese characteristics. Its establishment has caused China to create a multivariate legal system—combining law, judicial interpretation, and guiding case rules. This article focuses on the mechanisms of rulemaking, exploring China's traditional “lü—li” case law system, analyzing the mechanisms of rulemaking in ancient China, and determining through concrete analysis whether or not judicial precedent existed at that time. This article also compares the mechanisms of rulemaking under civil law and Anglo-American case law. On this basis, this article discusses the function of China's guiding case system and predicts its role in judicial practice as an alternative rulemaking mechanism to law and judicial interpretation.

Social Harmony at the Cost of Trust Crisis: Goals of Civil Justice in China

This article addresses ‘social harmony’ as the ultimate goal of civil justice in China and its adverse impact on the public's trust in the justice system. The author introduces and analyses this issue in three dimen-sions: statutory law, judicial policy, and comments from scholars. This article attempts to view the situation in the context of the rapid transition China's justice system is undergoing as a result of continuous reforms. As the author indicates, although the law provides diverse and vague purposes of civil procedure, in practice the goal of dispute resolution always takes precedence over right protection, with the ultimate policy goal of ‘social harmony’. The pre-eminence of this fundamental policy goal, coupled with the common use of informal procedures and the tradition of judicial mediation, creates a civil justice with the following main features: (1) emphasis on dispute resolution especially by judicial mediation, while neglecting protection of private rights and justice; (2) overemphasis on speed or efficiency; (3) the dualism of ‘ordinary’ and ‘summary’ procedures; (4) a focus on developing procedures for routine cases and a lack of mechanisms for handing hard cases; (5) the user orientation intended by lawmakers being overridden by judges' broad powers and discounted by some binding opinions of the Supreme People's Court.

Retaining Judicial Professionalism: The New Guiding Cases Mechanism of the Supreme People's Court

AbstractIn 2011 and 2012, the Supreme People's Court (SPC) published its first “guiding cases.” Guiding cases serve as decision-making models that must be taken into account by lower courts when deciding similar cases. This study argues that the establishment of a national formal legal mechanism to improve consistency in adjudication across jurisdictions and geographical boundaries will strengthen judicial professionalism. The guiding cases system provides the SPC with an instrument to steer adjudication in lower courts discreetly, thereby allowing it to exercise significant influence over legal developments. Given the complexity of cases, compared to law set out in statute, non-lawyers may have tremendous difficulty in understanding and assessing the effects of guiding cases; this in turn acts as a protective mechanism against extra-legal interference. The reform is an example of the SPC's delicate manoeuvring in order to retain judicial professionalism in a hostile yet politically conservative environment. It reflects an attempt by the SPC to strengthen its position vis-à-vis other actors of the party-state and to consolidate the judiciary's function as an adjudicative institution that works on the basis of formal legal mechanisms.

The Future of Legal Reforms in China: A Critical Appraisal of the Decision on Comprehensively Deepening Reform

Legal reforms are at a crossroads in China. Liberal reformers hoped that the transition from Hu Jintao to Xi Jinping and the replacement of the much maligned party-system cadre Wang Shengjun by the legally-trained technocrat Zhou Qiang as head of the Supreme People’s Court would lead to a turn toward liberal legality and a new era of liberal legal reforms. This article assesses the future of legal reforms in light of the Central Committee Decision concerning Some Major Issues in Comprehensively Deepening Reform, the Supreme People's Court new five year agenda for court reforms, and recent events. Part I begins with a brief overview of reforms and the major faultlines or challenges for legal reforms to provide context for the Decision. Part II summarizes and critically appraises the Decision. Part III concludes.

Reforming the Criminal Evidence System in China

Since 1997, China has proposed to reform the judicial system. In 2007, China officially set its goal of judicial reform as to “establish a Socialist Judicial System with fairness, efficiency and authority”. Now that the goal of judicial reform has been firmly established, the key question is how to accomplish that goal. One view advocates achieving judicial reform through administrative measures. A different path, which we proposed, is to accomplish the goal of judicial reform through reinforcing the construction of evidence system. Through analyzing the current law and investigating some judicial cases, the study found that the main reason for issues of judicial unfairness and corruption in current China is due to neglect of the construction of evidence system, and the current evidence rules contain too many problems, and the aforementioned problems have become a bottleneck for China's judicial reform and an important reason for China to reconstruct the whole evidence system. Therefore, in the long run, it would be ideal for legislature to promulgate a unified code of evidence law, but it is an extremely difficult task to coordinate the relationship between evidence law and three major procedural laws. In the short term, the most feasible compromise is to have the Supreme People's Court promulgate People's Court provisions on Evidence. After repeated test through the trials, we believe that such a unified People's Court provisions on Evidence will dramatically improve the evidence system and promote judicial fairness and the reform of legal education in China.

Retrial Ruling of the Supreme People's Court Settles the Disputes on the Jurisdiction over Joint Tort Cases - Litigation or Arbitration

A factual pattern forming the basis for a referral to arbitration arising from an appropriately worded arbitration clause may also give rise to tortious claim(s) brought jointly against parties and non-parties to the relevant agreement. In such cases, a recent judgment of the People's Republic of China's Supreme Court, known as the Retrial Decision, suggests that it is possible to circumvent referring the dispute to arbitration by showing prima facie evidence of the existence of the joint tort claim against signatories and non-signatories. The stark implication of the decision is that it raises the risk of disputes being referred to the courts, irrespective of an arbitration clause existing between certain parties to the proceedings. This article considers the background to the decision and its implications, and then undertakes a comparative analysis of the materially different approach to such cases adopted in other jurisdictions; namely, England, Hong Kong, Singapore and Canada. The article concludes by considering the implications of the Retrial Decision, the concerns which it raises, and sets out the authors' thoughts on how parties can address the risks which the judgment raises. It is often the case that commercial parties chose arbitration, as an alternative to litigation, as the preferred dispute resolution mechanism. However, when disputes arise between the parties, one or more of them may pursue litigation in a bid to avoid giving up a ‘home advantage’ in a local court system. This has led to cases where a signatory to an arbitration clause has brought a joint tort claim in the courts against another party to the arbitration clause, in addition to non-signatories. In the People's Republic of China (the ‘PRC’), there has been some uncertainty as to whether the courts have jurisdiction over such composite tort disputes, notwithstanding the arbitration clause. This is partly due to the divergent views presented in the Supreme People's Court judgments considering the issue. Nonetheless, a decision recently handed down by the Supreme People's Court (‘the Retrial Decision’) has given a clear answer to the question. This Article considers the decision, which will undoubtedly impact upon the future judicial practice of the PRC courts, and compares the approach to that adopted in other common law systems; namely, England, Hong Kong, Singapore and Canada.1 The Article concludes by considering the implications of the Retrial Decision and the concerns which it raises.

Comments on the Supreme People’s Court’s Interpretation No. 1 on the Private International Law Act of the PRC

In January 2013 the Supreme People’s Court (SPC) published its first judicial interpretation on the 2010 Private International Law Act (PILA). The main aims of this Interpretation are to clarify the meaning of several rules, to facilitate judicial practice and to enhance legal security in private international law contexts. In order to achieve this, the Interpretation contains rather detailed provisions, often directly addressing certain issues that raised concerns among the courts when applying the PILA. In addition, the SPC went beyond simple explanation and also created a number of rules that could not be found in the Act. These cases mostly concern issues that had been discussed by the legislator and among academia before the enactment of the PILA, but which were finally not included. The article will show that despite several points of critique, the SPC has successfully engaged in finding solutions to existing deficiencies or potential problems in the PILA.

Chinese Travel Law: Pragmatic Protection for Travellers Granted by the Supreme People's Court

Die deutsche Version dieses Artikels finden Sie unter: http://ssrn.com/abstract=2200318On October 26, 2010, the Supreme People's Court (SPC) of the People's Republic of China has promulgated a judicial interpretation regarding travel disputes. The interpretation is titled Provisions on Several Issues Concerning the Application of Law in the Trial of Cases about Travel Disputes. The provisions are effective since November 1, 2010.The Chinese contract law of 1999 does not include any specific regulations concerning travel contracts. The aim of the judicial interpretation is therefore to fill this gap in Chinese civil law. Background for the promulgation of the interpretation is a steady annual rise of travels and travel disputes, which are partly attributed to unfair conduct on the side of travel agencies. During the drafting of the interpretation the SPC therefore was very much concerned with the protection of travellers, which is deemed to be the weaker party in the relationship with travel agencies. This protection of travellers becomes especially apparent in the expansion of the control on general terms of business as well as in duties of notification and warning of the travel agencies towards travellers. Besides the interpretation introduces duties to implement safety precautions, which are modelled after the German Verkehrssicherungspflichten. Also interesting is the stipulation of punitive damages – known from Chinese consumer protection law – against travel agencies for certain conducts. It is expected by the SPC that such claims serve to prevent fraudulent acts against travellers.This paper is the translation of an earlier article (Chinesisches Reiserecht: Undogmatischer Schutz fur Reisende durch das Oberste Volksgericht) which can be found in the author's profile as well.

The Judiciary in Economic and Political Transformation: Quo Vadis Chinese Courts?

The Judiciary in Economic and Political Transformation: Quo Vadis Chinese Courts?

Chinese Practice in Public International Law: 2012

This Survey covers materials reflecting Chinese practice in 2012 relating to: I. Fundamental principles of international law; II. Rule of law at the national and international levels; III. Sources of international law (provisional application of treaties; formation and evidence of customary international law); IV. Recognition of new States and governments (Palestine; Kosovo; the new Libyan government); V. Jurisdiction and immunity (Supreme People's Court's interpretation of the Second Amendment to the 1979 Criminal Procedural Code; Case concerning the 5 October Massacre in Mekong River committed by Sai Naw Kham, Hsang Kham, Yi Lai, Zha Xika, Zha Bo and Zha Tuobo); VI. China's territorial integrity (Taiwan; Tibet; China–India agreement on the establishment of a working mechanism for consultation and co-ordination on India–China border affairs; Diaoyu Island and its affiliated islands; Huangyan Island; Xisha Islands; Nansha Islands; Establishment of Sansha Municipality); VII. Polar regions (Arctic Council); VIII. International Law of the Sea (Baselines of the territorial sea adjacent to Diaoyu Dao and its affiliated islands; Selection, defininition and protection of the Protection Scope of Territorial Sea Base Points; Submission to the Commission on the Limits of the Continental Shelf in part of the East China Sea; Revised Regulations on Administration of Coastal Border Security of Hainan Province; Suyan Rock; Okinotori Reef; Marine environment; Marine biodiversity beyond areas of national jurisdiction; Sustainable fisheries; Commission on the Limits of the Continental Shelf; International Seabed Authority; International Tribunal for the Law of the Sea; Fight against piracy); IX. International law on outer space (Militarization of and arms race in outer space; Space debris; International co-operation in peaceful uses of outer space); X. Aliens (Act on Administration of Exit and Entry; 72-hour visa-free travel to Beijing and Shanghai; Draft articles on expulsion of aliens; Refugees); XI. International human rights law (Human rights and the principle of non-interference of internal affairs; Human rights, politicization and double Standards; Human rights and national conditions; Right to survival and right to development; Human security; Discrimination and racism; Right to self-determination; Rights of indigenous peoples; Initial report under the Convention on the Rights of Persons with Disabilities; The Second Amendment to the 1979 Criminal Procedural Code; Act on Administration of Exit and Entry; Work of UN Secretariat in human rights; Office of the High Commissioner for Human Rights; Human Rights Treaty bodies and their reform); XII. International humanitarian law (protection of civilians in armed conflicts; Fourth Annual Session of Chinese National Committee of International Humanitarian Law; Litigation of Chinese victims against Japan before a court in Chongqing; Legal advisers in Chinese armed forces); XIII. International law on disasters (Strengthening of the co-ordination of humanitarian and disaster relief assistance of the UN, including special economic assistance); XIV. International law on arms control, disarmament and non-proliferation (Nuclear disarmament; Mongolia's nuclear-weapons-free status; Chemical Weapons Convention; Biological Weapons Convention; Amended Protocol II to the Convention on Conventional Weapons (CCW); Ottawa Convention; Anti-vehicle landmines; International humanitarian de-mining assistance; Protocol V to the CCW (ERW); China–Laos Memorandum of Understanding on the Provision of Assistance of China to the Laotian Victims of Cluster Munitions; Arms Trade Treaty; Cyber weapons; Conference on Disarmament); XV. International Criminal Law (International Criminal Court; ICTY and ICTR; Scope and application of universal jurisdiction; UN Comprehensive Convention against Terrorism; UN Convention against Transnational Organized Crime; UN Convention against Corruption; Cyber crime; Trafficking in cultural property); XVI. International environmental law (Joint Declaration of the Moscow Meeting on Inclusion of International Civil Aviation in the EU-ETS; Directive on Prohibition from Participating in EU Carbon Emission System; Protection of atmosphere; Effects of atomic radiation; Use of water resources of cross-border rivers); XVII. Law on diplomatic and consular relations (Vienna Convention on Diplomatic Relations; The CHEN Guangcheng incident; The WANG Lijun case); XVIII. International law on international organizations (The reform of the UNSC; Sanctions imposed by the UNSC; The working methods of the UNSC; UN Peacekeeping operations; Regulation on Participation of People's Liberation Army in UN Peacekeeping Operations (Provisional Application); Inter-mission co-operation of UN peacekeeping operations; Scale of assessments for the apportionment of the expenses of the UN); XIX. International law on settlement of disputes (International Court of Justice; Unilateral sanctions imposed by a State against another State).

China's Death Penalty: The Supreme People's Court, the Suspended Death Sentence and the Politics of Penal Reform

This paper examines the issue of judicial discretion and the role of the Supreme People's Court (SPC) in death penalty reform since 2007. The SPC has been encouraging judges to give 'suspended' death sentences rather than 'immediate execution' for many crimes. This process entails encouraging judges to use their discretion to recognize mitigating circumstances that would allow them to sentence offenders to a suspended death sentence The SPC has used 'guidance' instruments which include 'directives' and other SPC interpretations and a new 'case guidance' system which provides case exemplars to follow. We explore these guidance instruments as a way of deepening our understanding of how law, politics and judicial practice is interwoven to achieve reform goals.

The death penalty in contemporary China

The Death Penalty Contemporary China, by Susan Trevaskes. New York: Palgrave Macmillan, 2012. x + 301 pp. US$138.00/£55.00 (hardcover).In The Death Penalty Contemporary China, Susan Trevaskes presents a thoughtful, nuanced account of the complex political and legal forces behind the use of the death penalty, particularly during the period from 1980 to 2011. This exceptional book goes beyond one-dimensional critiques that only emphasize the large number of executions. Widely recognized reports that China executes more people each year than any other country certainly deserve scrutiny. Yet numbers alone fail to capture the intricate contours of the death penalty debate within China. Trevaskes masterfully makes this debate accessible to an international audience.The book shows how drive law and practice. Trevaskes elegantly explains the shifting use of the death penalty within the broader context of changing criminal justice policy and the Chinese Communist Party's unceasing dominance shaping that policy. In short, in China, the death penalty is a creature of politics (p. 223).Trevaskes elaborates the long-standing dynamic between two death-penalty templates: kill many and kill fewer. She details how savvy efforts by the former president of the Supreme People's Court, Xiao Yang, and other reformers gradually diminished the powerful policy of y anda (or striking hard at crime) and enabled the gentler policy of balancing leniency and severity to take root. Trevaskes further provides insights into why a shift to a less reform-minded agenda by the highest echelons of power nonetheless did not lead to a resurgence of kill many rhetoric following Xiao Yang's retirement 2008. Instead, the number of executions reportedly continues to decline, largely through an expansive use of sihuan (suspended death sentences). Despite the triumph of the kill fewer policy, the book serves as a reminder that the debate China regarding the death penalty has not focused on whether to abolish the death penalty, but rather on how it should be used. Nor does abolition appear feasible the foreseeable future. The death penalty remains a powerful instrument of punishment and, as Trevaskes succinctly cautions, [t]he party is unlikely ever to let go (p. 236).Beyond the overarching political dimensions, Trevaskes includes helpful information on the legal nuts and bolts of how the death penalty is applied. She addresses the crimes for which the death penalty is a prevalent punishment, the impact of weak evidentiary rules on capital cases, and the reasons that ongoing discussions China regarding the creation of national sentencing guidelines have failed to bear fruit. She integrates a wide range of scholarly views from Chinese and foreign authors, as well as case studies to illustrate the challenges and flaws China's capital punishment scheme. In one memorable vignette, an appellate court reduced a woman's sentence for poisoning her husband from immediate execution to a suspended death sentence, based on her argument that her goal was merely to stop her husband from visiting prostitutes by incapacitating him sexually-the instructions for the rat poison that she used explained that it worked by shutting down the rat's sex organs (p. …

Legal framework of online intermediaries' liability in China

PurposeThe paper aims to outline the legal framework with regards to the civil liability of online intermediaries for users' misconduct in China, to analyze the problems in applying the rules related, and to introduce recent efforts from the State Council, the Supreme People's Court and legislature to combat online misconduct.Design/methodology/approachThe paper intends to introduce these rules by studying the legislative history and several important case decisions. Comparisons with European and American approaches have also been made with regard to the self‐regulation issue.FindingsChinese courts have made many inconsistent decisions on the liabilities of online intermediaries in the past, but the legal framework is improving and the situation will become better given more clarifications from the Supreme People's Court. The State proactively promotes industry self‐regulation, together with public supervision in order to ensure the enforcement of rules.Research limitations/implicationsThis paper gives a systematical analysis and thorough introduction to online intermediaries' liability since the first case in 1990s to the latest report, law amendment and provisions before July 2012 in China.Originality/valueCyberspace is an international community, thus, the worldwide harmonisation of cyber law shall be approached. An introduction of the Chinese legal framework and any latest updates from the State would be valuable for foreign policy makers and foreign online service providers to learn the Chinese situation and evaluate the Chinese internet market.

China Supreme People's Court defines the scope of amendment to a patent application

Recently, the Supreme People's Court of the People's Republic of China (SPC) clarified the rules on amendments to claims of a patent application and the role of prosecution history in interpreting claims during the invalidation proceedings. In its decision in EPSON v PRAB, SPC affirmed in part the Beijing Higher People's Court's (BHPC) decision upholding the validity of the Seiko Epson Corporation's (EPSON) invention patent (Patent no. 00131800.4) for ‘Ink Cartridge’ (’800 Patent) and reversing the Beijing Intermediate People's Court's (BIPC) and the Patent Re-examination and Appeal Board's (PRAB’) decisions. The SPC's decision is significant in ruling standards to determine the disclosure scope of the initial description and claims. In addition, the SPC clarifies that prosecution history can be used to interpret the meaning of terms in the description and claims during prosecution.

Chinese Supreme People's Court upholds PRB's standard for support

The Supreme People's Court upholds the PRB'S standard for support that a claim is not supported by the description if a person skilled in the art has to do too much repeated experimentation or too much work to determine whether the technical solutions of the claim can be carried out.

Strengthening Judicial Ethics in China—The New Principles and Regulation: Correspondent's Report from China

On 6 December 2010, the Supreme People's Court of China promulgated a revised version of the Basic Principles of the Professional Ethics of Judges, together with a similar revised version of the Regulation on Judicial Behaviour. These superseded the old versions of 18 October 2001 and 4 November 2005 respectively.

Judicial Disciplinary Systems for Incorrectly Decided Cases: The Imperial Chinese Heritage Lives On

Local Chinese courts commonly use responsibility systems (mubiao guanli zeren zhi, zeren zhuijiu zhi) to evaluate and discipline judges. Judges receive sanctions under these systems for a wide range of behavior, such as illegal or unethical dealings with parties and lawyers, inappropriate courtroom behavior, and neglect of duty.Many local court Chinese responsibility systems also discipline judges for simple legal error. Judges may face sanctions linked to the number of cases that are reversed on appeal, simply because the interpretation of law made by a higher court differs from that of the original trial judge. Sanctions include monetary fines and negative notations in a judge’s career file. Such practices violate Chinese Supreme People’s Court (SPC) judicial interpretations specifically barring the use of responsibility systems to sanction judges for simple legal error. Local Chinese courts, however, have continued to promulgate such systems.Court responsibility systems that discipline judges for simple legal error create a perverse set of incentives for Chinese judges. In order to avoid appellate reversal, lower Chinese judges rely on an ill-defined system of advisory requests (qingshi) to solicit the views of higher courts and judges regarding how to decide pending cases. As Chinese judges themselves note, excessive resort to qingshi practices has many negative effects. It undermines appellate review, since the court or judge who reviews the case on appeal can be the same one who responded to the initial qingshi request regarding how to decide the case in the first place. It creates a relatively passive Chinese judiciary reliant on top-down direction. Last, it contributes to an overload of higher-level judicial authorities forced to handle a myriad of requests for guidance from lower-level courts. Unsurprisingly, the SPC has made qingshi reform a key component of both the 2004–2008 and the 2009–2013 plans for court reform.So what is going on? Why do local Chinese courts continue to use internal disciplinary systems that violate Chinese law and negatively affect daily operations of the judiciary? Historically, the use of disciplinary sanctions to punish judges for cases of simple legal error reversed on appeal is deeply rooted in imperial Chinese legal practices dating back to the Qin dynasty. Politically, the disciplinary sanctions employed by modern Chinese court responsibility systems and their imperial analogues reflect a comprehensive governance strategy employed by generations of centralized, authoritarian Chinese rulers to address pervasive principal–agent problems in a sprawling bureaucracy. However, these policies are generating conflict with rule-of-law norms established in the post-1978 reform period, and incarnated in the 1998 SPC judicial interpretations.Existing literature on the post-1978 Chinese legal system has devoted significant attention to formal legal norms promulgated by central institutions such as the SPC and the National People’s Congress (NPC), but ignore the underlying incentive structures that can drive judicial behavior. Local court responsibility systems and the incentives they create for individual Chinese judges are “terra incognita in terms of published systematic studies.This article presents an overview of Chinese court responsibility systems and their disciplinary treatment of incorrectly decided cases (cuo’an), and analyzes the important practical problems created in the Chinese legal system as a result of official use of responsibility systems to discipline judges for legal error. It also identifies the extent to which the key elements of modern People’s Republic of China (PRC) court responsibility systems are firmly grounded in prior imperial precedent.

China's Legal Response to the Global Financial Crisis: Increasing Certainty in Contractual Disputes to Boost Market Confidence

The recent global financial crisis has compelled China to make significant changes to its legal system, not least in the area of contract law. In 2009, China's Supreme People's Court issued a Judicial Interpretation and Guiding Opinion modifying the uniform contract law passed in 1999. These deal with issues such as the validity, performance and breach of contracts, and were issued in direct response to the economic downturn. This article focuses on the modifications the new Interpretation and Opinion have made to the governance of contractual relations in China, as well as considering what their impact will be for businesses operating in China. By addressing these issues, this article offers a clear overview of the current state of contract law in China and considers whether there will now be more certainty in the outcome of contractual disputes as a result of the recent changes and a consequent rise in market confidence.

A constitution without constitutionalism? The paths of constitutional development in China

This article will focus on the recent constitutional developments in China along two paths. One is the official path initiated by the Supreme Peoples Court’s judicial interpretation for the Qi Yuling case in 2001, which opened up the possibility, met with enormous enthusiasm, for the judicial application of the 1982 Constitution. The other is the unofficial, populist path symbolized by the Sun Zhigang incident in 2003, when the public, for the first time since 1989, expressed strong protest largely via the internet against the mischief of a local government. The article will review the key constitutional developments achieved along both lines and will examine the causes of their successes or failures. Finally, it will point out the inherent limitations in a populist path toward constitutionalism when pursued within an institutional structure where governments at various levels view the Constitution more as a threat to the status quo pertaining to a small minority than as a protection of basic rights for all.

The Judicial Interpretation System of the Supreme People's Court of China

The Judicial Interpretation System of the Supreme People's Court of China