Thursday, April 2, 2020

Supreme People’s Court’s 2020 judicial interpretation agenda | Supreme People's Court Monitor

Screenshot 2020-04-02 at 2.21.48 PM
China's Supreme People's Court is an administrative agency.  Ultimately answerable to the National People's Congress - the legislature.  It carries out many functions - it writes the rules, instructs, guides, and decides cases it deems important or constitutionally mandated (e.g. capital cases).  An important function is "Interpretations".  These often are detailed instructions to courts on how to apply more general provisions - such as for the trial of traffic accident cases, environmental protections cases, and torts arising from network abuses such as trademark violations.  There is plenty of substantive comment in the court's instructions about burden of proof, etc.
But unlike the NPC the court does not proceed by Notice and Comment.  The legislature not only posts its agenda far in advance, but also posts draft law for public comment.  The SPC however, does not proceed in that way.  So this announcement of the agenda for the coming year or more is a step forward in the transparency department.
The topics include the relationship between existing laws and the presumably overriding general Civil Code being enacted piece by piece.  Thus: 31. Interpretation of Several Issues Related to the Application of the “P.R.C. Civil Code” , and 38. Work on Cleaning up Judicial Interpretations Related to Civil Code.
- GWC
Supreme People’s Court’s 2020 judicial interpretation agenda | Supreme People's Court Monitor
by Susan Finder
On 17 March 2020, the Supreme People’s Court (SPC)’s General Office issued a document setting out a list of 49 judicial interpretation projects for which the SPC judicial committee gave project approval. This document sets out the responsibilities of various divisions and offices of the Supreme People’s Court (SPC) in undertaking an important part of the SPC’s work, promulgating judicial interpretations for 2020. As discussed in two blogposts in 2018 and two blogposts in 2019, the SPC has a yearly plan for drafting judicial interpretations, as set out in its 2007 regulations on judicial interpretation work. The plan is analogous to the legislative plans of the National People’s Congress (NPC) and its Standing Committee.

Judicial interpretations are binding on the SPC itself and the lower courts, and fill in some of the interstices of Chinese law (further explained here). One of my articles in the production pipeline provides more details about the drafting process in one area of law. It is one of the more controversial powers of the SPC, where the gap between the views of the academics, lawyers and those inside the system is particularly large. I have my views on it as well, but that is a topic for another day and perhaps another article.

“Project approval” is an initial procedure used by regulatory authorities of all types, Party and state, to approve projects. For the SPC, it reflects one of the “planned economy” aspects of the way it operates. This is the third year that the SPC has made this list public, and it is a concrete step forward in increasing the SPC’s transparency. I’m grateful to Chinalawtranslate.com for translating the list so quickly. Of those projects, 38 with an end of 2020 deadline and 11 have a deadline set for the first half of 2021. Some brief comments (some longer than others) follow below. Please see my previous blogposts commenting on the 2018 and 2019 agendas. Mark Cohen of Berkeley Law School (and Chinaipr.com) has already commented on the projects in the area of intellectual property law, so for those I will link to his comments.

As I commented previously, close observation reveals that some interpretations were listed previously, indicating that drafts were not ready for approval last year. Some of the reasons for slippage are likely to be:
the issues turn out to be more complicated than anticipated (substantively, procedurally or institutionally);
judges have less time to work on judicial interpretation drafting, with an increased caseload and document study;
many experienced SPC judges have been dispatched to circuit courts, leaving fewer at headquarters to work on judicial interpretations; and
timing may also be a factor. The SPC wants judicial interpretations to be in place for some time, and if the greater environment is not conducive for issuing the interpretation, or additional issues are seen, it will be postponed.

If an SPC division or office is listed as responsible, it means it is on its work agenda for that year. (I surmise) the head (or heads) of the related responsible divisions or offices need to provide an explanation for slippage.
Type 1 (to be completed before the end of 2020)

1. Interpretation of Several Issues on the Application of Law in Cases of Pre-trial Preservation of Assets. Responsibility: Case Filing Division. The deadline for this has been postponed for several years in a row.

1 comment:

  1. Thank you for the link. The SPC is not an administrative agency, in the Chinese sense, but it certainly is a court with many administrative characteristics. But thank you for that introduction

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