How China's Supreme Court Governs: Chinese judicial documents (1) | Supreme People's Court Monitor

Judicial documents published by the
Supreme Peoples Court

Press commentary on China's legal system in the U.S. focuses on a handful of contentious or problematic issues: such as the growing power of the President Xi Jinping, the Sinicization campaign in Xinjiang, or disputes regarding intellectual property and industrial espionage.  But there is an important but much less attention getting development of the Chinese legal system which can be understood only by a more granular look.  Fortunately we have Susan Finder's Supreme Peoples Court Monitor, and the NPC Observer which follows legislative activity.

In the U.S. we focus on the courts as expositors of statutory developments, and broad principles.  But China's Supreme Court does much of its work via administrative directives and policy statements to effectuate national policy.  There is a wide variety of such documents - interpretations, rules, notices, guiding cases, etc.  These are part of an increasingly transparent system in which thousands of decisions by lower courts can be found online.  None of this should be understood as exercises of the judicial independence to which we aspire (and sometimes get).  Rather they are expressly forms of policy implementation designed to increase the effectiveness of government in an authoritarian rule of law regime. 

Susan Finder discusses some of the mechanisms in this new post. - gwc

Chinese judicial documents (1) | Supreme People's Court Monitor: 
by Susan Finder
I recently participated in an academic conference in which one speaker discussed Chinese judicial documents (other than judicial interpretations).  The speaker’s view was very critical of them…

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It is a fact that the Supreme People’s Court (SPC) issues a broad range of documents that guide the lower courts in addition to its judicial interpretations. The SPC creates and transmits to the lower courts new judicial policy in the form of an “opinion” (意见), which is also a type of Party/government document.  This same term is used for documents jointly issued by the SPC and institutions not authorized to issue judicial interpretations. This blogpost focuses solely on SPC policy documents.

The SPC classifies opinions as “judicial normative documents”  (司法文件 or 司法规范性文件(the title of this Wechat public account) and sometimes judicial policy documents” (司法政策性文件).  As I’ve written before, this fuzzy use of terminology is not unusual. These documents are issued with the identifier “法发” (fafa), indicating that they have been approved by the judicial committee of the SPC or one or more senior SPC leaders.  Transparency is better than before (and the SPC has issued documents encouraging greater transparency) but there is no strict publication requirement, unlike judicial interpretations.

 The FTZ Opinion is an example of how the SPC supports the Party and government by issuing documents to support important initiatives. This is a subject that I have written about on this blog before. These SPC policy documents signal an evolution of judicial policy, establish new legal rules and direct the lower courts. Lower courts implement these measures in various ways, including in their court judgments or rulings and to further implement SPC judicial policy documents.  Local courts may issue implementing guidance, as SPC policy is intended to be a framework under which local courts issue more specific measures to deal with specific local issues.

The FTZ Opinion signals evolving judicial policy to FTZ courts in a number of areas, including on civil and commercial law issues. For example, it states that courts should
support FTZ finance leasing companies and should respect the agreement of cross-border parties regarding jurisdiction and governing law. It states that a finance lease contract shall not be determined to be null and void because relevant procedures had not been performed.

The drafting of these judicial policy documents, such as the FTZ Opinion, follow a drafting process similar to judicial interpretations. The usual practice in drafting judicial interpretations is for the SPC to engage in extensive research and fieldwork, consult with related institutions within the SPC and external institutions when relevant (another academic article stuck in the production pipeline will describe the process in more detail).

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