Saturday, April 1, 2017

China: Circuit Court’s case guidance on administrative cases | Supreme People's Court Monitor

China's legal system continues to develop in a way counter-intuitive to us - Western liberal democrats.  Repression of dissident lawyers persists, and the censors, armed with electronic search tools, effect censorship pervasively.  Yet the legal system continues to advance in the transparency of the courts, the competence of the courts, and the degree of guidance offered to judges to make justice more consistent.

Susan Finder reports that the Supreme People's Court's 2d Circuit unit has issued a guidance document.  It selects and summarizes illustrative cases, presumably a step toward a more comprehensive document to follow.  Although the system does not embrace "precedent" in the way we understand it, the selection of cases as illustrative puts the SPC stamp of approval on them.  Judges will doubtless be guided as intended in their deliberations and decision-making.  And lawyers will key their arguments in the same way. - gwc

#2 Circuit Court’s case guidance on administrative cases | Supreme People's Court Monitor
by Susan Finder

On August, 2016, the Supreme People’s Court (SPC) #2 Circuit Court issued a set of 30 case summaries (literally important points, 案例要旨)on administrative cases, selected from the many administrative cases heard in the first year and a half of operation. The #2 Circuit Court hailed it as a new type of case guidance (审判新指南) in March, 2017. This type of case guidance is mentioned in my forthcoming article in the Tsinghua China Law Review. Although this document does not have any formal status (at least yet) in the universe of SPC case guidance, it has been approved at a conference of administrative judges in Liaoning, Heilongjiang, and Jilin, and the rules it sets out should be considered highly persuasive to courts in those three provinces.

It is likely that these cases will provide background material for a more comprehensive judicial interpretation of the Administrative Procedure (Litigation) Law than the one issued shortly after the amended law was promulgated. Some of these cases have also been incorporated into the SPC’s 10 model #2 Circuit Court cross-administrative region commercial and administrative cases. The document does not include a summary of the underlying facts, but some of the full case reports are found elsewhere. Each case (most relate to land disputes) provides a glimpse into the behavior of local government vis a vis ordinary Chinese citizens and companies, the (limited) scope for review of administrative action under Chinese law, and the unusual legal issues in the review of administrative action. Brief commentary follows each case summary restatement. on 1 April, Wang Cailiang, the deputy chair of the All China Lawyers Association, published Wechat commentary on administrative litigation and judicial reform. Highlights of some of his comments follows the case summaries.

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