The “Soft Law” of the Supreme People’s Court | Supreme People's Court Monitor

We are accustomed in the U.S. to see judicial power in a rather narrow frame: decisions and Rules of Court.  But the Supreme People's Court of China has many tools in addition to decisions.  Susan Finder reviews  and explains them.

Most of the coverage of China's legal system goes, unsurprisingly, to the repressive measures: the national security law in Hong Kong, arrests and detentions of dissenters, etc.  But China is a land of contradictions - its highly competent management of the covid19 pandemic after early stumbles, economic management, and - little recognized - is the steady growth in the competency of its judiciary.

Susan Finder - an American lawyer living in Hong Kong - for the past three decades has been paying close attention to the Supreme People's Court.  Our nine-member high court commands a modest bureaucracy overseeing  the federal courts.  A broadly diverse set of state courts manages the rest of the system.  But the SPC can be better understood as a unitary department of the national government which oversees and directs the provincial and local courts.

The SPC of course decides cases, but it exercises its leadership by way of a wide range of tools.  In addition to decisions in individual cases it issues, Opinions which Finder describings Guiding, model decision, normative, harmonizing, and managerial.

So the SPC issues Conference summaries, professional judges meeting summaries, Replies to requests for instructions, Notices, Rules, Memoranda of Understanding with other departments such as procurators.  The SPC also selects case and decisions for special attention.  Among the most significant are Guiding Opinions, Model Case, reference cases.  Of particular note are decisions of the SPC Circuit Courts such as the specialized intellectual property courses. - GWC

The “Soft Law” of the Supreme People’s Court | Supreme People's Court Monitor

by Susan Finder (Peking University School of Transnational Law - Shenzhen)

I am very honored to have this opportunity to publish some of my observations about the developments of the Supreme People’s Court (SPC) with TianTong Litigation Circle. I have been observing developments of the SPC for almost 30 years, and am honored to have been included in the first batch of members of the international expert committee of the China International Commercial Court. The views expressed in this article are my own and should not be attributed to the committee, the China International Commercial Court, or the SPC.
One of the many special features of the SPC, as an important supreme court in the world, that it allocates a great deal of effort to different types of “soft law.” Soft law is a concept that the late Professor Luo Haocai, formerly vice president of the SPC, introduced and developed in China, so discussing the “soft law” of SPC is particularly appropriate. For those who are not aware of this academic concept, it means norms that affect the behavior of related stakeholders, even though the norms do not have the status of formal law.
This article gives my thoughts on two aspects of SPC soft law—its judicial policy documents and cases that it has specially selected.

I. Judicial documents

I have a special interest in judicial documents, because they drew me into researching the SPC in the early 1990s.
The seven categories of documents below are classified as judicial documents or “judicial normative documents” (“司法文件” or “司法规范性文件”) and sometimes judicial policy documents” (“司法政策性文件”). The SPC’s website lists some of them. An attentive reader can discover from reviewing the documents on the website that my description is not comprehensive. The SPC issues many other documents as well, covering personnel and administrative matters, but this article focuses on those with normative provisions.
SPC judicial documents are partially governed by 2012 regulations on the handling of SPC official documents (“人民法院公文处理办法”), which leave much unsaid and unexplained. It seems likely that additional guidance exists, whether in the form of bureaucratic custom or internal guidelines. Many, but not all, are the SPC’s special versions of Party/government documents.

1. Categories of judicial documents***KEEP READING