Guohua Hu (left) being interviewed after filing the first-ever patent in China on April 1st 1985, the first day the patent law went into force.
Recently, Chinese courts have played an increasingly significant role in global patent litigation, particularly in disputes involving standard essential patents (SEPs). Standard essential patents are patents on technologies that are essential to the implementation of a particular industry standard. This trend has been marked by the issuance of anti-suit injunctions, a legal mechanism that has become an important tool for preventing parties from initiating or continuing litigation in other jurisdictions. The Supreme People’s Court’s (SPC) decision in Huawei v. Conversant marked the first SEP-related anti-suit injunction in China and set the stage for lower courts to follow suit, especially in the fields of information and communication technology.
In China, the concept of anti-suit injunction has been integrated into the legal framework through “act preservation measures.” In the Chinese context, anti-suit injunctions have been applied under various legal provisions, including the Patent Law and the Civil Procedure Law. These laws enable courts to issue “act preservation measures” 行为保全措施 to halt alleged IP infringements until relevant disputes are resolved. In its 2018 guidance, the SPC outlined several factors courts should consider when handling requests for “act preservation measures”, including balancing potential damages to the applicant and the public interest.
The study reveals significant differences between the Chinese approach to anti-suit injunctions and that of common law jurisdictions. In common law systems like the US and the UK, anti-suit injunctions primarily aim at protecting the forum and preventing vexatious or oppressive litigation. In these jurisdictions, the courts are expected to evaluate the necessity of issuing an anti-suit injunction based on factors such as the suitability of forum and international comity considerations. In contrast, Chinese courts focus on the legitimacy of the applicant’s claims and the potential harm to parties’ rights and interests. This approach, while aiming to provide protection for applicants, might overlook broader considerations like preventing conflicting judgments or ensuring consistency in cross-border legal procedures.
The issuance of anti-suit injunctions by Chinese courts has evolved from initial restraint to a more assertive stance, reflecting China’s ambitions in the global IP landscape. Notably, the SPC’s decision in Huawei v. Conversant and subsequent cases have expanded the scope of anti-suit injunctions, both geographically and materially. For example, in Oppo v. Sharp, the court prohibited Sharp from initiating any new lawsuits or requesting injunctions in other jurisdictions against Oppo while proceedings in China were pending. This represents a significant expansion from suspending the enforcement of specific judgments to preventing future litigation across multiple jurisdictions. The evolution of anti-suit injunctions in China is also marked by vague procedural safeguards and criteria for issuance. In Huawei v. Conversant, the SPC introduced conditions for issuing anti-suit injunctions, such as the potential obstruction of domestic proceedings, irreparable harm to the applicant, and the balance of parties’ interests. These conditions have been further refined in the subsequent cases Xiaomi v. InterDigitaland Samsung v. Ericsson.
The study further explores potential restraints on the issuance of anti-suit injunctions by Chinese courts, including international comity and public interest. In the Huawei v. Conversant decision, the SPC highlighted three key factors for comity consideration: the sequence in which cases are accepted, the suitability of the reviewing court’s jurisdiction, and the effect on foreign legal proceedings. Generally, the Civil Procedure Law, which addresses both domestic and foreign jurisdictional conflicts, allows for parallel litigation. In the Oppo v. Sharp case, the SPC indicated that the sequence of case acceptance would likely not prevent the issuance of anti-suit injunctions in China. Besides, the SPC established broad jurisdiction in SEP disputes, making it difficult to deny anti-suit injunctions based on forum non conveniens (the common law legal doctrine through which a court acknowledges that another forum is a more appropriate venue for a legal case, and transfers the case). Meeting the six cumulative conditions required for forum non conveniens is challenging, especially in cases involving Chinese companies. The court decisions following Huawei v. Conversant frequently omit references to the impact on foreign proceedings in the comity assessment, focusing instead on the relationship between the dispute and foreign jurisdiction to argue against undue interference.
The study reveals a shift in Chinese courts’ approach to anti-suit injunctions, moving from tolerating anti-suit injunctions issued by foreign courts to proactively using them to assert their own jurisdiction in SEP disputes. Despite acknowledging “international comity” and “public interest” as potential constraints, Chinese courts’ interpretations of these factors are often formalistic and narrow. There are inconsistencies between judicial practice and statutory rules, broad discretion given to the judiciary, and a lack of clear legal basis for comity considerations given the specifics of global SEP licensing.
The main entrance of the Supreme People’s Court of China in Beijing Photo by Rneches
How does the Chinese political-legal system operate in the Xi Jinping era? This article published in the China Law and Society Review provides a detailed discussion of the poorly understood operations of the Supreme People’s Court (SPC) including its intricate interactions with central Party and state institutions, against the background of strengthened Party leadership. It provides insights into specific aspects of the Party’s leadership of the judiciary and its implications, usually unseen functions and operations of the SPC, and the link between Party policy, the judiciary, and the development of Chinese law.
I focus on the roles of the SPC in supporting “foreign-related rule of law” as an example of how the work of China’s highest court has evolved in the Xi Jinping New Era to support more robustly major national strategies. The article examines functions of the SPC little explored previously, because some are only partially transparent. I first summarize developments concerning the strengthening of Party leadership over political-legal institutions, because those have a direct and indirect impact on the SPC’s foreign-related judicial work. I highlight the greater focus on the SPC’s leadership’s fulfillment of political obligations and responsibility to the Party leadership. Providing appropriate judicial support for national strategies is an important way in which the SPC as a political-legal institution fulfills its political obligations to the Party leadership.
The SPC functions identified as most important in developing foreign-related rule of law are, first, policy-making and guidance of the lower courts; second, “law-making;” third, case hearing and selection; and fourth, coordinating and cooperating with central Party and state institutions. The characterization of the functions is original to this article. The non-case hearing functions are linked in some way to hearing cases and are ones the SPC has always performed.
In contrast to most apex courts globally, the work of the SPC in supporting “foreign-related rule of law” is more focused on policy-making and influencing legal and judicial policies; providing guidance to the lower courts, what this article describes as “law-making”; and coordinating and cooperating with other central Party and state institutions, rather than making judicial decisions.
First, part of the SPC’s role is to create, amend, and implement judicial policy in response to or in anticipation of the impact of changes in Party and state policy or other social, economic, or legal changes. One of the principal ways in which the SPC publicizes new or amended judicial policy is by issuing judicial policy documents. These documents guide and inform the lower courts about new or readjusted judicial policy and inform related central Party and state institutions about these developments. They also signal to the Party leadership that their initiative is being implemented. In some areas of law, the SPC leads the legal and judicial policy initiative, while in others, it provides its expertise when other institutions take the lead. The policy documents and any typical cases issued in addition to or in lieu of a policy document contain both political and substantive guidance intended to guide lower court judges both in frontline and leadership roles. These documents may not be cited in court judgments or rulings but may have an impact on judicial thinking.
Second, an important but less-understood part of the role of the SPC in contributing to the development of China’s foreign-related legal system is “law-making.” This characterization is meant to convey the SPC’s contribution to legislation described by the SPC as “actively cooperating with foreign-related legislation” (积极配合涉外立法), not as a formal assertion that the SPC makes law. This contribution takes several forms, not all of them formalized in law. The first type is provided by the Legislation Law which authorizes the SPC to submit legislative bills to the National People’s Congress (NPC), and the NPC Standing Committee. The second type is by drafting and issuing judicial interpretations, as authorized by the Organic Law of the People’s Courts and the Legislation Law. The SPC has the authority to issue meeting minutes (conference summaries) and similar documents which have a less certain formal authority but are highly persuasive in practice.
Two other types lack specific legislative authority but are important ways in which the SPC contributes to legislation, particularly foreign-related legislation: providing support to the NPC and the NPC Standing Committee when it drafts legislation; and providing support to the Ministry of Justice and other Party and state institutions when those institutions draft legislation that is eventually submitted to the NPC or the NPC Standing Committee. These two ways combine the SPCs indirect law-making role with its cooperation role. The extent to which the SPC participates in “law-making” in foreign-related matters is not entirely clear because related documents are made public sparingly.
The people’s courts are a highly political professional institution, and a highly professional political institution (人民法院是政治性很强的业务机关，也是业务性很强的政治机关)
Official SPC media channels
Third, the SPC decides some cases involving foreign-related commercial law and issues some cases as guidance, either as guiding or typical cases. It decides some cases relating to arbitration through an administrative procedure, others through retrial or second instance procedures, and others when certain selected SPC judges sit as panels of the China International Commercial Court. Additionally, the SPC issues cases as guiding, or more often typical cases as a form of guidance. The SPC occasionally issues guiding cases but more often issues typical cases to provide political and substantive guidance for the lower courts, sometimes linked to a policy document.
Fourth, one of the unrecognized functions of the SPC is coordination with other central Party and state organs regarding specific legal issues, based on bureaucratic custom. This work is only partially visible. The SPC has coordinated and cooperated with other central Party and state institutions on a broad variety of legal matters for many years, but it appears to be little discussed in English-language literature. The coordination and cooperation take a variety of forms, and which institutions and departments are relevant depends on the matter under consideration. For example, the SPC provides support to the Ministry of Foreign Affairs or other ministries that lead treaty or convention negotiations, such as the Ministry of Commerce.
The article concludes that the SPC’s foreign-related legal expertise, as shown by the Politburo’s November, 2023 collective study session on foreign-related rule of law, has become significantly more important to China’s political leadership and other central-level Party and state institutions. Its significance to the political leadership is in its work in creating a body of foreign-related law. Given that the Party leadership increasingly stresses political leadership of the courts and political competence of members of the judiciary, carrying out the functions described above requires SPC judges dealing with foreign-related matters to have both a high degree of political consciousness and technical expertise. Why? As the SPC media often say, “the people’s courts are a highly political professional institution, and a highly professional political institution” (人民法院是政治性很强的业务机关，也是业务性很强的政治机关).
Susan Finder is a long-standing observer of the Chinese judicial system with more than 30 years of experience. She is a member of the international commercial expert committee of the China International Commercial Court (CICC) of the Supreme People’s Court and on the committee of the Shanghai International Arbitration Center. The views expressed in this article are her own, not those of either institution. She is a Distinguished Scholar in Residence at the School of Transnational Law of Peking University (Shenzhen), where she teaches about judicial reform in comparative perspective. Her blog, the Supreme People’s Court Monitor, is arguably the most authoritative scholarly resource on developments around the People’s Republic of China’s highest court. Follow her on Twitter @SPCmonitor or get in touch per email at susan.finder[at]outlook.com
A new paper by Tianhao Chen, Wei Xu and Xiaohong Yu
In 2015, the revision of China’s Administrative Litigation Law introduced the Chief Officials’ Appearance System (COAS). The system requires agency leaders themselves, rather than their legal counsel, to appear in court and defend their administrative actions. Unlike other post-2014 legal reforms aimed at empowering the judicial system and fending off local protectionism, the COAS uniquely enhance the engagement of political officials in the judiciary process. This approach is based on the belief that increased participation will help officials to gain a better understanding of public concerns and improve administrative litigation quality. The detailed workings of the COAS were laid out in this previous blogpost by Nina Rotermund.
In this comprehensive study, we set out to assess how and whether the optimistic goals set for the COAS were achieved. Through an empirical analysis of 1551 administrative litigation cases in a Beijing local court and extensive field research across 12 other provinces, the study uncovers unexpected outcomes that merit a closer examination.
Contrary to official expectations, we find that the COAS reproduces the administrative grievances that it is tasked to resolve. Data from Beijing revealed that plaintiffs were 5.08 times more likely to appeal or file a new suit over the same issue when chief officials made court appearances. This tendency was attributed to a mismatch between the plaintiffs’ expectations for meaningful engagement and the often-detached demeanour of the officials, who sometimes resorted to reading from prepared statements without genuinely addressing the plaintiffs’ concerns. This lack of meaningful interaction left plaintiffs dissatisfied, propelling them to pursue further legal avenues.
Moreover, the number of administrative cases overall and the rates of the government losing cases before district leaders’ court attendances in Beijing’s 16 districts were not significantly higher than after they appeared in courts, indicating that lawful governance did not improve. This issue is related to the officials’ generally apathetic approach to court appearances. Statistics indicate that 73.6% of officials planned to conduct the required court visits only in the fourth quarter, when the annual cadre evaluation was underway. This figure is disproportionately higher than the proportions in the other three quarters. Further, the amount of officials’ appearances in court barely surpassed the number of appearances required to fulfil the performance evaluation criteria. This indicates that officials’ appearances are more about fulfilling administrative assessment requirements rather than genuinely improving lawful administration.
“[…] plaintiffs were the so-called nail households (dingzihu 钉子户), ones who refused to relocate and came to court only to claim better compensation. They wouldn’t be pleased by simply meeting the officials in person. Instead, sometimes they even interrogated the officials and we had to interrupt and stop them.”
Judge in Qinghai, August 2022
Despite this, the study also observed surprisingly impartial and even strategic responses from the court. Statistical analysis of Beijing data shows that the involvement of district leaders in court did not skew judicial outcomes in favour of the government. This is partly due to the strategic appointment of high-ranking judges in cases involving chief officials, ensuring a balance of authority in the courtroom. Moreover, the analysis reveals a nuanced trend wherein courts are more likely to rule against government officials who are nearing the end of their term, suggesting a strategic consideration of future relations with the administrative agencies.
Expanding the study nationwide revealed similar trends across China, albeit with regional variations. Through the “China Judicial Politics Database,” which includes 70% of publicly available cases, we identified 28,805 instances of official court appearances. Of these, a mere 146 involved officials at the bureau and deputy bureau levels, noting that the overall frequency of government leaders appearing in court remains low nationwide. Interviews conducted with judges, lawyers, and government officials from 12 provinces, including Zhejiang, Henan, Guizhou, Jiangsu, Guangdong, Sichuan, Qinghai, Shaanxi, Tianjin, Liaoning, Hebei, and Xinjiang, presented a complex but consistent picture. Similar to Beijing, official court appearances were rare and typically motivated by assessment requirements, leading to tense courtroom dynamics between disinterested officials and pragmatic plaintiffs. Courts employed diverse strategies to manage their interactions with the government, sometimes using the theatrical nature of appearances to exert pressure.
“[…] sometimes I would intentionally tolerate plaintiffs’ emotional expressions to exert extra pressure on administrative agencies.”
Judge in Zhejiang, April 2022
In sum, the study reveals that, contrary to what the creators of COAS had expected, the COAS has not significantly ameliorated administrative dispute resolution. Instead, it has resulted in a renewed triad of administrative litigation: apathetic state agencies, increasingly agitated plaintiffs and strategically empowered courts.
The unintended impacts of the COAS carry certain implications. Despite previous views of administrative litigation in China as no more than a “frail weapon” due to political constraints, the courts appear somewhat empowered, benefiting from the cumulative effects of several reform measures implemented over the last four decades and the strategic behaviours of judges. Additionally, plaintiffs’ willingness to pursue further legal action, fuelled by an increased legal awareness and desire for justice, challenges the notion that official appearances alone would placate citizens. Still water runs deep, and the perverse impact of the COAS implies that the rule-based approach to dispute resolution would be a more desirable and effective route than the paternalistic approach.
The paper ‘Administrative Litigation in China: Assessing the Chief Officials’ Appearance System’ was published in The China Quarterly (free draft available here). Tianhao Chen is an associate professor at the School of Public Policy and Management at Tsinghua University. His research focuses on administrative law, administrative agreements, judicial governance and technology ethics. His work has been published in Chinese Journal of Law, China Legal Science and Law Science.
Wei XU is a PhD candidate studying at the School of Public Policy and Management at Tsinghua University. Her research focuses on platform antitrust, judicial reform, public administration and law.
Xiaohong Yu (corresponding author) is an associate professor in the department of political science at Tsinghua University. Her research focuses on Chinese politics, judicial politics and empirical legal studies. Her work has been published in Journal of Empirical Legal Studies, The China Review and Tsinghua University Law Journal.She can be contacted at xyu[at]tsinghua.edu.cn.
China runs the largest online program for publicizing judicial decisions in the world. The mass publicity of court decisions in China, this article (draft here) argues, is part of the broader trend of the Chinese judiciary becoming increasingly centralized. The mass publication of court decisions in China seems puzzling: Disclosure of government information is often linked to an aspiration for political participation, which contributes to accountability and creates an obligation for responsive government. As a style of governance, transparency is usually associated with democracies, and few authoritarian states show much interest in government transparency.
In this article, the authors explain the reform towards greater transparency of the Chinese judiciary in a principal-agent theoretical framework and contextualize it within strategic moves of the central and the local governments in this setting. Previous studies of the political system in China have documented a deeply rooted agency problem between the central government (the principal) and local courts (provincial courts and courts at the lower levels – the agents), often discussed as “local protectionism”: The primary goal of the Supreme People’s Court is that centrally stipulated laws are applied in a unified way for the entire country, however, such application may conflict with local interests and social stability in local communities. Hence, in practice, courts often function as a local apparatus that protects local interests. This tension between the central government and the SPC on the one hand and local governments and respective courts on the other is a result of the structure of the Chinese political system. For example, local courts’ finance and personnel are controlled by local governments. While it is on the reform agenda to make the high court at the provincial level control and manage the finances of all courts in the province, control over personnel remains with the local governments. More importantly, information asymmetry embedded in the multiple-layered government structure and thereby the inability for the centre to monitor the local.
Responding to this dilemma, the Supreme People’s Court carries out a reform towards transparency. The mass publicity of court decisions, this article contends, is a top-down effort to address the principal-agent problem. By means of establishing a centralized judicial data collection system, the Supreme People’s Court can more directly control the information reporting process within the judicial hierarchy and reduce information asymmetry. By making mass local court decisions publicly available on a centralized venue, it attempts to curb wrongdoing and improve decision consistency and quality in local courts through public oversight. Together, the transparency reform helps the centre (i.e., the SPC) rein in local courts.
As in most principal-agent settings, agents, here local courts, responded strategically, by disclosing fewer decisions than required. After the Supreme People’s Court mandated judicial decision disclosure for courts in 2014, disclosure rates remained low, at 39.4%, 44.5%, and 47.9% in 2014, 2015, and 2016, respectively, with strong regional variations. For example, the disclosure rate of Tianjin in 2016 was about 71%, while that of Hainan was only 16%.
In the existing personnel arrangement, local governments control the appointment and promotion of judges. Yet an increasing number of provincial high courts are now presided over by judges or officials who have work experience at the SPC or other agencies of the central government. Our data shows that judicial decision disclosure rates increased at courts that were headed by cadres with work experience in the central government. We find that the presence of these cadres is associated with more than a 10 percent higher disclosure rate of judicial decisions by the respective court. This finding suggests that the dispatched judicial cadres were quite successful in promoting transparency of the courts in their jurisdictions according to central policy – just as they are in promoting other central policies.
The transparency reform is to be contextualized within other reforms toward a more centralized judicial sector in China. Local protectionism of courts, that is, courts serving local interests rather than following the law, is well documented in the literature. The requirement that all judgements be uploaded to the centralized website enables the SPC to supervise local courts’ behaviour not only through public oversight but also through steering legal development in a certain direction, and aligning local judicial decisions with its own policy goals. For example, the SPC can easily search for local judgements and check whether their decisions are consistent with judicial interpretations and guiding cases.
Lei Chen is Chair of International Arbitration and Chinese Law at Durham Law School, UK. He has been elected as a Titular Member of the International Academy of Comparative Law and a Fellow of the European Law Institute.
Zhuang Liu is an Associate Professor of Law at the University of Hong Kong. His research interests include the role of the courts and judicial behaviour, as well as law and development. His work has appeared in several leading academic journals specialising in law, economics, and China studies.
Yingmao Tang is an Associate Professor at Peking University Law School. His research interests include international finance regulation, investment law and the Chinese judicial system. His recent work focuses on opening China’s capital markets, online judicial transparency and big data & computational legal studies.
Haikou Intermediate People’s Court. Photo by Anna Frodesiak
From the year 2014 a new round of judicial reform was launched in Chinese courts all over the country. For Chinese judges, the most significant change is the “quota reform”(员额制改革). The quota reform aims to professionalize the ranks of adjudicators: by edging out a given percentage of judges, only the better qualified judges would be re-appointed. The background of the quota reform is the plan to reduce the level and the intensity of both political and bureaucratic control over judges in adjudication and to decentralize judicial power to the rank and file judges only, restoring individualized judging while enhancing judicial accountability.
A keen interest in the details of the quota reform drew the author (Ying Sun) to conducting interviews and observations in Guangdong province, Henan province and other places. She gained first-hand insights into how the quota reform is implemented and how the judges saw it.
Before the reform, the number of judges in Chinese courts were calculated in three groups:
the overall size of the judiciary, including judges, but also political and managerial staff and supporting personnel;
the number of judges, i.e. those with proper judicial qualification and, importantly, the percentage of judges in the overall established judicial size; and
the number of so-called “frontline judges” (yixian faguan一线法官), i.e. judges who actually adjudicate cases as judges and their percentage among judges excluding judges holding management positions who are assigned to non-judicial posts.
In 2002, nationwide, there were approximately 210,000 judges and 150,000 of them were frontliners. [1] The number and percentage of the frontline judges had remained stable (211,990 judges in 2014) prior to the reforms. A remaining three types of judges did little or no judging. The first group involved judges in management positions, including presidents, vice presidents and chief judges in professional chambers and their deputies; the second, judges who had transferred from professional chambers to political and administrative departments within the courts; the third, judges whose sole responsibility was to execute judgments. The long term objective of quota reform was to limit judgeship to judges whose principal job was to judge.
The reform caused a significant shake-up in the overall profile of the judiciary, with a large number of former judges ceasing to be judges. The court at hand however was able to absorb and neutralize the reform impact throughout its implementation.
First, the quota reform’s ambition to separate judges from administrators forced judges holding political and administrative offices to make a choice. And their choices were clear: the majority of them decided to stay in the administrative departments, while predictably few were willing to give up their status and ranking, especially those holding key positions.
Second, the quota reform unintentionally gave rise to a renewed exodus of middle career judges who left for law firms or other private sector employment. The trend of able judges leaving the judiciary for other careers was well-known, and the quota reform was intended to reign in the problem. However, by reducing the size of the judiciary and creating uncertainty among judges, the reform triggered another miniature exodus – judges, fearful of being left out and worried about the future prospect in an uncertain environment, seized the opportunity to leave the judiciary.
Third, the quota reform posed a significant challenge to courts as they had to contend with a sizeable group of judges who participated in the quota selection but failed and as a result were demoted to the rank of judicial assistants. They did so by offering a transition period, or grace period, during which some of the disqualified judges were allowed, de facto, to adjudicate as judges.
The centre-piece of judge quota reform was to free frontline judges from bureaucratic control in judicial decision that they used to be subjected to, and to abolish the vetting system that required judges to submit their draft opinions to leaders for approval, all to facilitate and promote individualised judging. And indeed, gradually, judging started to shift away from a collective endeavour with decisions subject to multiple layers of vetting and approval. The quota system was successful in placing individualised judging and accountability at the centre of adjudication in the vast majority of cases and in shifting the focus of judicial decisions from a fixation on the social impact of a decision to emphasis on its internal legal quality within an increasingly self-referencing judicial universe. With the new focus on the court-centric and rules-based dimension of judging, as the reforms require, judges do increasingly look for legal guidance to craft a decision. On the other hand, while the rise of individualised judging has created space for judges to deliberate individual cases, it does not reduce judicial accountability. Rather, it created an opportunity for reconfiguration of the control system. Riding on the tide of standardisation, a higher court is filling the gap that the reforms created at the local level and exercising real leadership.
Notwithstanding the fanfare, self-contradictions and tensions, the reforms have been muddled through to create a more identifiable, distinct judiciary. It is now well established that judges are those who judge, excluding political and administrative officers from holding the title of judgeship. The quota reform reflects the contradictions of judicial reform in a party-state. As the quota reform story testifies, the judiciary within a political system can explore spaces for its professionalization project – judges can judge on their own most of the time and in most of the cases. In that process, the Party could be both a helping and a restraining hand, and the bureaucratic system in which the court is an integral part creates both positive and negative incentives for the reform.
Ying Sun and Hualing Fu’s paper was published with The China Quarterly, find it here.
Dr. Ying Sun is an associate professor at the School of Law, Sun Yat-sen University, China. She teaches constitutional law and comparative legislatures. Her research interests include election process, the Chinese people’s congress system, judicial reform and law-making politics in China. Hualing Fu is the dean and the Warren Chan professor in human rights and responsibilities at the Faculty of Law of the University of Hong Kong. He specializes in public law and criminal law, with a focus on China, and cross-border legal relations in the Greater China region. His other research areas include the constitutional status of Hong Kong, in particular central–local relationships in the Hong Kong context and national security legislation.
Lottery Kiosk at Xuzhou Station. Under Chinese law, lotteries are considered gambling and thus illegal -with two major exceptions: the China Welfare Lottery and the China Sports Lottery. Photo by MNXANL licensed under Creative CommonsAttribution-Share Alike 4.0 International.
In the past, Chinese courts tended to directly invalidate illegal contracts, thus possibly tolerate opportunistic behaviour sometimes. Article 52(5) of the 1999 Contract Law provides that a contract is void if it violates a mandatory rule prescribed by law or administrative regulation. Empirical research shows that by April 2014, in 355 of 453 cases concerning Article 52(5) of the Contract Law, the contract was ruled void.[1]
This practice underwent a change with the compilation of the Civil Code, where Chinese scholars sought to establish better coordination between the nature of private law and its attached public or regulatory facet. Building on a 2009 judicial interpretation that introduced a classification of mandatory rules, Article 153 of the new Civil Code stipulates a doctrine of defining mandatory rules with different levels of restrictions, with the aim of relieving the state’s restraint on the transition of economy. In result, a violation of mandatory rules may now render the contract involved void ab initio, voidable or still valid, depending on the significance of illegality defined by the law.
This change of jurisprudence successfully reversed the courts’ strong stance on the invalidation of contracts, giving them much more discretion in deciding the nature of mandatory rules and the effect on contracts. The reform also aligns the treatment of illegal contracts with the general trend in other jurisdictions. Nevertheless, we argue that across jurisdictions, this doctrine is merely targeted at the connotation of mandatory rules and the theoretical effects on contracts. Scholars and judges fail to equally emphasise the enforcement of the law against the contractors after upholding the validity of their illegal contracts. In other words, they end the debate within the realm of private law and simply assume that thereafter competent regulatory agencies would duly resolve the harm of illegality.
In our paper, we look into the case of the regulation of the lottery tickets sales on credit. As per Article 18 of China’s Lottery Regulation, no lottery may sell lottery tickets on open account or credit. Such a deed may result in imposed suspension, confiscation plus fines, and punishment on the person in charge as per Article 39. Armed with the new jurisprudence that not all kinds of illegality shall render contracts void and null, Chinese civil courts tend to uphold the validity of lottery sales on credit. Though this saves the innocent party from the loss because of the invalidation of the contract, the problem is, without the following actions of administrative organs, justice stops at the decision in court and the mandatory rules are not equipped with administrative enforcement power.
We find that the major obstacle is information asymmetry between courts and regulatory agencies: not only would the contracting parties not expose the illegal deal in fear of punishment or losing their interest. Also, the courts fail to actively transmit such information to the responsible departments, despite the Supreme People’s Court of China formally encouraging local courts to issue judicial proposals to regulatory agencies.
Empirical studies show that judges seldom issue judicial proposals about their cases to regulatory agencies due to their heavy workload, worries of engaging in improper judicial interference and a lack of rewarding incentives. As it encourages contracts and prevents opportunistic behaviour, we suggest to uphold the current jurisprudence about illegality, and further propose to establish a better systematic interplay among courts and regulatory agencies. This might be achieved through institutional reforms and technological solutions that help forward information of illegal transactions so it can serve the ultimate objective of enforcing the law.
[1] Ye Mingyi 叶名怡 (2015) Empirical Research of Invalidation of Illegal Contracts in China (我国违法合同无效制度的实证研究), Science of Law (法律科学) 6, 120.
Bingwan Xiong is Associate Professor at School of Law, Renmin University of China. He is also Senior Research Fellow at Renmin University Center for Civil and Commercial Law. He obtained his PhD degree from Renmin University and LLM degree Harvard University. Email: bxiong@ruc.edu.cn.
Mateja Durovic is a Reader in Contract and Commercial Law, having joined The Dickson Poon School of Law in July 2017. Prior to joining King’s, he was Assistant Professor (2015‐2017) at the School of Law, City University of Hong Kong. He holds a PhD and LLM degrees from the European University Institute; LLM degree from the University of Cambridge; and an LLB degree from the University of Belgrade. Email: mateja.durovic@kcl.ac.uk
The People’s Republic’s criminal justice system has come a long way since the Gang of Four were brought to trial in 1980, just one year after the Criminal Law was passed
To start off: What drove your interest in criminal justice in China?
My research interests in Chinese criminal justice came from my experience when I first observed a criminal trial as a teenager. The crime scene, as described at the beginning of my book, was strange to me: I was expecting some form of cross-examination, just like those commonly seen in television court dramas. The trial, however, had no drama and did not make much sense to me at the time. The prosecutor read out the case dossier in an aggressive manner. The defence lawyer, whose response was not addressing the issues raised by the prosecutor, sheepishly read her pre-prepared defence statement. The trial was by no means exciting – it was a boring presentation of the criminal case dossier. Sitting in the audience, I was at a loss to understand what they were talking about. The case dossier apparently was a critical instrument, which was passed on from the prosecutor to the judge to decide the guilt or innocence of the defendant. This encounter of criminal justice prompted me to think about the way in which criminal justice is conducted in China; but differing from the criminal justice literature which focuses on why witnesses are absent, the question that piqued my curiosity was – if case dossiers play such an important role, determining the outcome of the case, how are they created? Are they truly reliable? Have the criminal procedures provided sufficient safeguards to ensure that the convictions made on the basis of the dossier are really safe? These questions motivated me to think about criminal justice from a different perspective.
Your book is extraordinarily rich in empirical data on a field that is very hard for scholars, and non-Chinese scholars in particular, to observe. Can you also tell us a little bit about the data collection process?
I was lucky enough to access the field site at a time when criminal justice institutions (the procuratorate and the courts in particular) were still open to researchers. The data gathering process was a mixed experience. After staying at the prosecutor’s office for a period of time, it was relatively easy to strike-up a conversation with different people who came to the procuratorate on business. I had lots of conversations with police officers, defence lawyers and sometimes victims in the prosecutor’s offices. Those conversations were extremely informative in revealing various aspects of the criminal justice process. My understanding of how criminal cases were constructed, for example, was initially described to me by some police officers and prosecutors during an informal conversation. Surprisingly, I found it more difficult to set up formal interviews with defence lawyers. I approached a number of defence lawyers after I finished my observation in the prosecutor’s office in 2012. But quite a few defence lawyers declined the interview request (some of them declined in the last minute), expressing their concerns about the topic and how it could affect them in a deleterious way.
The most frequently mentioned fact about the PRC’s criminal justice system is probably the extremely high rate of convictions – over 99.9%. What explanations have you found?
The exceptionally high conviction rates can serve as a useful indicator of the functions of the criminal justice institutions. With the high conviction rates, we can say with confidence that acquittal is not a commonly accepted result of court decisions. For this we must question the function of the courts and their truth-finding mechanism. A lot of questions will inevitably follow. Are judges allowed to acquit criminal cases? If not, why? What are the implications of an acquittal? Are the overwhelmingly majority of prosecution cases strong enough to convict? To answer these questions, we have to understand the pre-trial process, especially the role of the prosecutor and how the criminal cases are constructed. For example if the courts are divested of the power of acquittal (apart from exceptional cases), how are weak cases filtered out of the system? What role do the prosecutors play? How do they scrutinise the police evidence and evaluate the persuasiveness of the case? Since the courts rarely exercise the power of acquittal, the defence lawyers need to engage earlier in the process with the true decision-maker in order to make an effective impact. What are the relationships between the prosecutor and the defence lawyer like? Can the defence lawyer positively influence the prosecutorial decision-making? To answer all these questions, we need to comprehensively assess the pre-trial process and understand the practices on the ground. These areas are featured in Chapters three, four and five of my book, which depicts a depressing picture of the ways in which criminal justice operates on the ground.
Your book addresses the complex question of how the police makes out the facts of the case, the truth of what happened – or as they call it, create the ‘official version of truth’. How is diverging evidence treated and how is the police’s account treated in court? Has the practice of ‘aligning later evidence’ become common practice?
To begin with, introducing new evidence to challenge the police/prosecution case at trial is extremely difficult in China. It is well documented that defence lawyers who tried to contact the witnesses to verify the prosecution case in the past were arrested and prosecuted for perjury contrary to Article 306 of the Criminal Law. Defence lawyers may expose themselves to various professional hazards in the course of collecting evidence in favour of their clients. Due to such constraints, it is challenging to present an alternative version of the facts at trial. There are a very small number of cases in which defence lawyers have managed to creatively construct a defence case to contradict the prosecution case (without sacrificing their own safety) and have then secured an acquittal. But these cases are very rare. Of course, the courts may decide not to admit the defence evidence which contradicts the prosecution evidence and to reject the alternative version if they are not convinced with the story of the defence.
Why do police officers try to align evidence? What incentives does the police have – and how do they work together with the prosecutor?
The reason why the police construct their case in such a way is because few witnesses come to the court to testify and the court relies on the case dossier to determine the guilt or innocence of the accused. According to Article 200 of the Criminal Procedure Law, convictions should be based on a chain of evidence that points to the same guilty facts without reasonable doubt. Therefore, in order to formulate a persuasive narrative against the accused, the police have to ensure that different accounts from witnesses, the victims and the accused corroborate each other, or at the very least they do not contradict each other in order to prove the guilt of the suspect. It would be very difficult for judges to make a decision if the items of evidence contradict one another. This is also necessary as the evidence contained in case dossiers are a manifestation of the objective facts, which are treated as ‘objective’ in the sense that whoever reads the dossier will come to the same conclusion that the accused is guilty. This is also a protecting mechanism for judges, as the facts presented in the case dossier can be repeatedly reviewed, by their leaders and the higher court. To achieve this result, police and prosecutors have to make sure that the facts are well supported by the evidence.
What role does the guilty plea play in China? Since 2019, if a suspect admits the crime and accepts the penalty, the punishment may be reduced – 认罪认罚. Is this procedure a step towards improving the criminal justice system?
The guilty plea system has a profound impact on criminal justice in China. In a chapter that I recently completed on Leniency for Pleading Guilty and Acceptance of Punishment (LPGAP, 认罪认罚), I have argued that the guilty plea system under the principle of LPGAP has paved a route to miscarriages of justice en masse. This is very much due to the fact that the system has significantly empowered the prosecutor, who has taken on the roles of a policymaker, case manager, adjudicator and sentencer. Judges have retreated from the substantive decision-making process (including sentencing). The rights of the accused are further eroded and safeguards diminished. The guilty plea system is largely dominated by the procuratorate and has largely replaced the traditional criminal justice system.
To effectively defend their cases (especially to the effect that their clients receive a reduced sentence), defence lawyers need to learn how to adapt to the system without exposing themselves to great dangers. […] A successful defence in China requires much more courage, experience, commitment and sometimes even luck, compared to their peers in Western countries.
Given the high conviction rate, how powerful are defence lawyers? Which strategies do they adopt and what are their limits?
Defence lawyers have never been powerful in Chinese criminal justice. They are marginalised by the criminal justice system, which is dominated by the Iron Triangle – the police, the procuratorate and the courts. As mentioned in my answer to Q4, defence lawyers are subject to various obstacles, which include (and are not limited to) criminalisation pursuant to Article 306 of Criminal Law when they engage in the proactive construction of defence cases, difficulties in meeting their clients in detention centres and in accessing the case dossier in a timely manner. To effectively defend their cases (especially to the effect that their clients receive a reduced sentence), defence lawyers need to learn how to adapt to the system without exposing themselves to great dangers. In Chapter five of my book, I described that a defence lawyer did successfully challenge the prosecution case and secure an acquittal through creatively using Google’s satellite map and the weather report. A successful defence in China requires much more courage, experience, commitment and sometimes even luck, compared to their peers in Western countries.
What problems have officials in charge of improving the criminal justice system identified, which suggestions do they make and which ones do you think are promising?
The main problem of the way criminal justice operates in China is miscarriages of justice. Since 2014, a series of reforms have been carried out to re-shape criminal justice in China. For example, a quota system (员额制) was introduced in 2017 to classify the working staff within the procuratorate and the courts into three categories, namely quota prosecutors/judges, auxiliary prosecutors/judicial staff and administrative staff. Only a fixed, small number of quota prosecutors/ judges now count as professionally recognised judicial staff, who are expected to lead criminal prosecutions or adjudicate criminal cases. There was also a devolution within the procuratorate and the judiciary to de-bureaucratise the internal approval process. For example, in 2019, the departments within the procuratorate formerly in charge of various facets of criminal procedures, that is the Department of Public Prosecution and the Department of Investigative Supervision in particular, were merged (捕诉合一), with prosecutors being re-grouped into new cohorts and dedicated to handling specific types of cases from investigation to trial. Apart from a small categories of cases which are still required to be signed off by the Chief Prosecutor and/or discussed by the prosecutorial committee, the internal hierarchical reviews appear to be relaxed and prosecutors are accorded more autonomy in the vast majority of instances. More significantly, a lifelong accountability reform was introduced to tie judges’ and prosecutors’ reputation and career perspectives to the quality of the cases regardless of their employment status. Realising the crucial role that prosecutors play in the criminal process, the Procurators Law from 2019 has required prosecutors to be bound by the facts and law and adhere to an objective and just position (秉持客观公正的立场) in performing their functions. In my article on prosecutorial accountability, I have argued that the building of judicial and prosecutorial professionalism would be a welcome advance to improve the criminal justice system. However, as we have seen in practice, aside from restructuring the institutions, little has been done in practice to cultivate professional integrity, which lies at the heart of minimising miscarriages of justice. Hitherto no systematic review of criminal justice took place. Judging from the on-going criminal justice reform, eliminating institutional vulnerabilities has not been the chosen route in those reforms. With the mass implementation of the guilty plea system under the principle of LPGAP, wrongful convictions are likely to remain numerous but more difficult to detect.
In fact, almost all criminal justice reforms within the last decade are focused on preventing and minimising miscarriages of justice. However, no comprehensive official report has been produced to identify the systematic risks that are likely to lead to wrongful convictions.
Your illustration of day to day criminal justice in China offers rather bleak prospects. Do the problems you identify not undermine the judiciary’s legitimacy and more broadly, that of the government or Party?
Miscarriages of justice can certainly undermine the legitimacy of the judiciary and that of the rule of the Party. For example, the wrongful conviction of Zhang Yuhuan reported in August 2020 had long-lasting repercussions on public trust in the criminal justice system. The criminal justice institutions, including the courts, are fully aware of the damaging effect. In 2014, the Supreme People’s Court announced that miscarriages of justice had a damaging effect on public trust in the judicial system and said that to resolutely combat the problem, “systematic pitfalls must be tackled at the institutional level.” In fact, almost all criminal justice reforms within the last decade are focused on preventing and minimising miscarriages of justice. However, no comprehensive official report has been produced to identify the systematic risks that are likely to lead to wrongful convictions. The current reforms appear to be on an ad hoc basis and lack in creating an overarching principle or guidance.
Based on your findings, what do you think the judicial reforms in the next years hold for the criminal justice system?
Although the judicial reforms may enhance the awareness of the problem of miscarriages of justice and curtail wrongful conviction to a certain degree, the effort can be easily offset against political agendas, according to which the criminal justice system should first and foremost be perceived as the ‘dagger’ (刀把子) in maintaining the social security of the Party-state regime. Alongside the judicial reforms, there has been a backlash that prioritises procedural economy at the expense of suspects’ rights as well as political pressures to reinforce the punitive nature of the public prosecution crime control in the last two years. For example, the trial centred reform initiated in 2018 which attempted to introduce cross-examination to the trial proceedings came to a halt recently. There are a lot of uncertainties as to how the system will evolve in the future. Although I hope that the reform gradually improves the system, it will be very difficult to implement in practice and may take much longer than most people expect.
Hong Kong’s Court of Final Appeal (CFA) typically sits as a five-member panel composed of the Chief Justice, three ‘permanent’ judges, and a fifth member that may be drawn from one of two panels. The non-permanent ‘local’ panel is composed of retired members of the CFA or of the Court of Appeal. The non-permanent ‘overseas’ panel is composed of senior jurists drawn from other common law jurisdictions, in practice primarily but not exclusively from the United Kingdom and Australia.
The possibility of inviting judges from overseas to serve on the CFA was agreed to in the Sino-British Joint Declaration governing the transition of sovereignty over Hong Kong, and is codified in Hong Kong’s quasi-constitution, the Basic Law. The Basic Law, however, provides only that the CFA “may as required” invite such overseas members to serve, with no further specifics.
Hong Kong’s first Chief Justice, Andrew Li, chose to draw the fifth member from the overseas panel to join whenever possible, rather than alternating between the two non-permanent panels. This in essence became a constitutional convention and for the first twenty years of the CFA’s existence nearly every substantive case was heard by a panel that included an overseas member. They serve on renewable three-year contracts, but are not actually present in Hong Kong for that entire period – they typically fly in for a month each year to hear the cases to which they have been assigned (during COVID they have continued to participate remotely via video conference).
It is unusual that a wealthy, well-developed jurisdiction continues to import judges from overseas. While importing judges remains common in the microstates of the South Pacific, Hong Kong in no way lacks local legal talent in the same way that might justify a need to import judges. While Singapore also invites overseas judges to serve, it limits them to sitting only on a commercial court. In contrast, Hong Kong places no restrictions on the roles that the overseas judges take – when sitting they are treated as a full member of the bench.
The system is thus not without controversy. It is fair to argue that judges who make critical decisions about a community or society ought to be drawn from that society, absent good reason – yet there can be no more of an outsider than a well-paid judge flown in for one month each year. The overseas model also has an uncomfortable colonial echo to it – the judges have primarily been drawn from Hong Kong’s former colonial ruler, all have been white, and all but two have been men. There are also fair questions regarding sovereignty that may be raised – though China did agree to the system in the Joint Declaration, the historical context and China’s experience during the 19th and 20th centuries necessarily will make the role a sensitive one.
But despite these issues, for many years the overseas judges have all been regarded as jurists of the highest quality and they have contributed significantly to the CFA’s output. Previous academic work found that in the Court’s first decade they wrote roughly one-quarter of the lead opinions coming out of the CFA. These opinions dealt with an unrestricted range of matters, including some key developments in local constitutional jurisprudence.
My paper updates this research and shows that the role has shifted in the years since, with the overseas judges now accounting for little over 15% of the Court’s output annually. Moreover, they no longer appear to write decisions related to fundamental rights or inter-jurisdictional questions related to the relationship between Hong Kong and the rest of China. I argue that this is a strategic decision by the CFA as a political actor in its own right, in an effort to preserve its institutional role. The paper suggests that the CFA perceives threats to its ability to serve as a check on an executive branch that is becoming more deeply entwined with policy initiatives that come directly from the central government.
I propose that one way in which the CFA is responding to this change is to reduce the prominence of the overseas judges whilst continuing to invite them to serve. The goal appears to be retention of the benefits they bring (in particular the idea that their presence indicates to both the international and local community that Hong Kong’s judicial independence remains intact) whilst minimizing the chance that politically sensitive decisions could be delegitimized through direct association with an overseas member. The CFA may be concerned that such delegitimization may serve to ground subsequent arguments that the concept of judicial neutrality itself is so suspect that ‘judicial independence’ should not extend to anything more than the resolution of disputes between private parties.
It is true that the neutrality or objectivity of judges is often overstated – they are all humans who are the product of cultures, upbringings, educations, environments, and so on. But this is an argument for increasing the diversity of the bench at all levels rather than an argument for curtailing the role of the courts as traditionally understood in Hong Kong. Of course, whether or not reducing the prominence of the overseas members will in fact help preserve the scope of the CFA’s role is an open question. It is unlikely to be enough on its own.
Find Stuart Hargreaves’ paper “Canaries or Colonials? The Reduced Prominence of the ‘Overseas Judges’ on Hong Kong’s Court of Final Appeal”, published in the Asian Journal of Comparative Law, here.
Prof. Hargreaves is an Associate Professor in the Faculty of Law of the Chinese University of Hong Kong, with a research focus on privacy law and constitutional law. He has law degrees from Osgoode Hall Law School (JD), the University of Oxford (BCL), and the University of Toronto (SJD), and qualified as a solicitor and barrister with the Law Society of Ontario.
In a nutshell: With its observations of a range of topics, what does this book tell us about the trajectory of criminal justice in China?
One of the main achievements of the book is to bring together contributions that look at Chinese court reforms and criminal procedure law reforms. Moreover, the book combines a wide range of analytical perspectives and themes in order to investigate questions that link institutional changes within the court system and legal environment with developments in criminal procedure law. The common denominator in the broad array of topics discussed in this volume is the multitude of forces attempting to influence the trajectory of judicial reform and criminal justice in China. The complex dynamics, and particular interests, of the numerous agents and subjects involved in the process intermingle with any undertaking to effective systemic change in the Chinese judiciary. These dynamics may play out in different ways. They may, for example, be mutually reinforcing, as in the case of the intra-court personnel reforms, heightened transparency, resilience against media influence and reform of the adjudication committees, all of which may result, to use the words of Fu Yulin, the author of chapter 2 of the book, in the by-product of a more independent judiciary. However, parallel reform projects can also interfere with one another, impeding the intended effects of each, as evidenced by the difficult position of the procuratorates in the criminal justice reforms, given that the envisioned trial-centred proceedings mandate the more prolific and active use of live witness testimony.
Judicial Reform is an ongoing endeavour since reform and opening. (How) has the direction changed under the Xi Jinping administration?
Due to far-reaching limitations of civil and political rights, increased repression of political dissent and mass internment in Xinjiang, legal developments in the Xi Jinping era are generally perceived outside China as subject to unrestricted authoritarian rule that has largely side-lined legal institutions, including the Chinese courts. However, the court reforms of the post-2013 period have provided judges and courts with more autonomy in the adjudication of cases. Under Xi Jinping, court reforms have returned to the idea of rule-based governance, brought the court system back to the centre of dispute resolution, and emphasised professionalism, autonomous decision-making, the transparency and accountability of judges, and centralisation of the judiciary. The Decision on Governing the Country According to Law of the 4th Plenum, attempts at the normative regulation of inner-party affairs by strengthening rule-based governance and the October 2018 amendment of the People’s Court Organisation Law all underscore the regime’s efforts to formalise legal procedures and strengthen legality. Court reforms have taken a more radical turn than those passed under preceding administrations, as a vast range of measures have been introduced to render judges and the courts less susceptible to local government interference and increase the efficiency of the judiciary. The strengthening of the courts as professional, autonomous arbitrators of legal disputes was effected through both a centralised judicial authority and controlled experimental reform measures at the local level.
Xi Jinping’s leadership has amended the Constitution three years back, among others lifting the term limits for his own rule. Among the changes made, which are most consequential for criminal procedure in China?
Apart from abolishing the term limits of the state president, the 2018 constitutional amendment established the National Supervision Commission as a new state organ that merged the anti-corruption agencies of the party and the state. Supervision commissions were also introduced at the local levels. The National Supervision Commission has now been afforded an independent constitutional status that allows it to exercise both administrative and criminal supervisory powers in supervising, investigating, disciplining and sanctioning public officials. Rather than constituting an independent state institution, the supervision commissions have absorbed state functions that are now directly controlled by Party disciplinary inspection commissions at the various administrative levels, the members of which simultaneously hold positions in the state’s supervision commissions. The supervision commissions are not subject to the legal constraints on investigative powers stipulated in the Criminal Procedure Law, although they enjoy de facto power to conduct criminal investigations and gather evidence that is admissible in criminal trials. The Supervision Law’s coverage has been extended to all public employees who exercise public power rather than being restricted to Party members alone, as under the previous scope of investigation by the disciplinary inspection commissions. Meng Ye in chapter 5 of the book provides an in-depth analysis of the supervision commissions.
The volume zooms in on a number of themes in the reform of criminal procedure. What do the observations have to offer in response to the claim that the rule of law is a lost cause in China?
The answer to this question depends on how you define the rule of law. If we take the term in its liberal sense and require that the law effectively constrains all levels of government and comprehensively controls the political process, then the overall direction of procedural and institutional reforms during the post-2013 era is disappointing. In general, the dominance of the party over the law has been re-emphasised on the ideological and institutional levels. It is stressed that the effectiveness of the law hinges on permanent affirmation and supervision by the party. The reforms do not directly aim at improving the protection of rights of the individuals involved in criminal procedures. However, improvements in terms of the protection of rights may occur as by-products of some reform measures. Many court reforms are part of a general centralisation dynamic and aim at insulating courts from improper horizontal influence of local actors, while strengthening vertical control over the court system. What this change from ‘improper influence’ to ‘proper influence’ means for the development of a ‘socialist rule of law’ is difficult to measure. The court and criminal procedure law reforms are oriented towards unified application of the law, they rely on technology and data-driven innovations that reduce human discretion, they have enhanced professionalisation, transparency and vertical control of courts as well as given individual judges and panels of judges greater autonomy in adjudication. However, criminal procedure reforms aim at enhancing Party-state governance effectively control crime and political dissent in order to maintain Party supremacy and social stability. To sum up, the reforms have strengthened the instrumentalist aspects of law and formal legality but not necessarily due process or human rights protection.
How can the role of the Supreme People’s Court be described in criminal procedure developments?
This issue is addressed in detail by Susan Finder in her chapter on how the SPC adopts judicial interpretations of the criminal procedure law. The SPC is the most important institutional actor linking court reform and criminal procedure reform, with the dynamics of both grounded in the administrative and legislative functions of the SPC. Those functions are distinct characteristics of China’s highest court that are not shared by the apex courts of other jurisdictions. Although the SPC has an important adjudicative function as an appeal court, its legislative function has elevated it to the role of a legislator. The SPC wields these powers through judicial interpretations that are often more relevant to adjudicative practice in procedural law than the laws passed by the NPC or its Standing Committee. Further, the SPC exercises administrative powers over the entire court system, including the design and implementation of court reforms in cooperation with the relevant party organs. The SPC’s judicial interpretation drafting process is an example of secluded, bureaucratic law-making in which the political interests of the CPC and the institutional interests of the SPC and the judiciary as a whole dominate.
What are other actors exerting influence in the development of criminal justice and courts in China?
The book focuses on the Supreme People’s Court as a major actor of initiating and implementing institutional and procedural reforms. Yet we should not underestimate the role of the academia in the development of criminal procedure law and court reforms. Many of the reform measures were proposed by legal scholars and have been discussed for some time before they were taken up by the party-state leadership. Of course, legal scholars have no power to determine reform priorities or to take decisions about what kind of reform models shall be adopted, but Chinese legal scholarship is the most important intellectual resource from which decisionmakers draw.
Developments in Chinese law have been informed by systems and laws in other countries. Does criminal procedure reform look to other countries for reference?
All major Chinese legal reforms in the last decades were preceded by comparative studies of legislation, scholarship and judicial practice of foreign jurisdictions. Apart from foreign jurisdictions, international human rights treaties that set standards for criminal trials have been a central reference point of academic discussions. However, nowadays debates about foreign legal models and their suitability for China only take place in the background. In contrast to earlier periods of the reform and opening period, official documents refrain from references to foreign or international law and place the indigenous Chinese experience at the centre. The widespread use of the terms ‘Chinese characteristics’ and ‘selective adaptation’ of foreign models indicate legal reform relies on indigenous resources and technology and data-driven innovations rather than on the adoption of ‘Western’ law. Indeed, Chinese legal institutions and procedural laws are quite distinct from those of liberal rule of law systems as the Chinese authoritarian system has certain features that determine the shape and operation of legal institutions and the law. For example, the supremacy of the Communist Party requires channels of ‘proper interference’ with judicial decision-making processes in order to effectuate its comprehensive overview of the implementation of law.
Contributors to the volume ‘Chinese Courts and Criminal Procedure‘, published with Cambridge University Press, include Xiaohong Yu, Yulin Fu, Susan Finder, Ye Meng, Alexandra Kaiser, Zhiyuan Guo, Kwai Hang Ng, Xin He, Michelle Miao, and Daniel Sprick. The editor Björn Ahl is Professor and Chair of Chinese Legal Culture, Cologne University and President of the European China Law Studies Association.
Appointment of the First Batch of CICC International Commercial ExpertsCommittee
In June 2018, the China International Commercial Court (CICC) was established within China’s Supreme People’s Court. It is a top-down capacity-building effort in establishing dispute resolution infrastructure and represents the ambition to create a lex mercatoria in the context of the Belt and Road Initiative (BRI). This blogpost highlights some salient features of the CICC and sheds light on its significance in China’s Law and Development.
First, CICC installed an International Commercial Experts Committee (ICEC) to make up for the lack of non-Mainland Chinese judges among its personnel. It draws on experts from both civil law and common law jurisdictions with diverse backgrounds (Eastern, Western and African legal culture). Members of the ICEC will provide foreign legal expertise to engage in the CICC mediation work, the outcome of which could be turned into a CICC judgement equivalent to “semi adjudication.” The ICEC has two main functions: first, presiding over mediation proceedings of international commercial cases which can be converted into a CICC judgement; second, providing advisory opinions on proof of foreign law and on international treaties, international commercial rules. The ICEC is argued as emblematic of the “paradigm shift” of the Beijing Consensus which traditionally emphasises soft law in international legal ordering such as what has happened in the Belt and Road context. Scholars have argued about a rising new Chinese economic legal order that is characterized by China’s decentralized mode of trade governance through a pragmatic, incremental development policy grounded in soft law and norm-based networks (Shaffer & Gao 2020). This is shown in China’s approach toward the BRI (yidaiyilu 一带一路) as China largely relies on memoranda of understanding and soft law agreements. There is no stringent cross-border legal framework or rigid regulatory structure in China’s approach toward the BRI. The advent of the ICEC however points to a new focus on institution-building which is somewhat a departure of the previous soft-law approach. Apart from that, the ICEC also showcases a breakthrough in the Chinese legal system in light of the existing statutory impediments found in, for example, China’s Judges Law, which allows only Mainland Chinese nationals to sit on the Chinese judicial benches. It reflects a more proactive, experimental, and innovative mentality adopted by the Chinese government and judiciary in seeking to incorporate overseas judicial expertise so as to compete in the global dispute resolution market.
The CICC signifies China’s major step towards a dual-track model which places equal emphasis on both soft-law instruments and hard-law capacity-building of legal infrastructure. Second, the CICC brands itself as a “one-stop shop” for diversified dispute resolution, incorporating alternative dispute resolutions (ADRs) into conventional litigation. Under this vision, international commercial litigation, arbitration and mediation are blended and integrated to facilitate the resolution of international commercial disputes brought before the CICC. The CICC also links with China’s five most market-driven arbitration institutions – China International Economic and Trade Arbitration (CIETAC), Beijing Arbitration Commission (BAC), Shenzhen Court of International Arbitration (SCIA), Shanghai International Arbitration Centre (SHIAC), China Maritime Arbitration Commission (CMAC), and two leading commercial mediation institutions – China Council for the Promotion of International Trade (CCPIT) Mediation Center and Shanghai Commercial Mediation Centre (SCMC). If disputing parties have reached a mediation settlement agreement before the CCPIT Mediation Center or SCMC, the CICC may also make a CICC judgment based on the mediation agreement if it is requested by the parties. This conversion of the institutional mediation settlement agreement into a CICC judgment is an unprecedented arrangement, evidencing the experimental and law-positive nature of China’s approach to the BRI and the new Beijing Consensus.
From the Law and Development perspective, the establishment of the CICC exemplifies a turning point in the Beijing Consensus to move away from the heavy reliance on norm-based instruments in international legal ordering.
Third, the CICC has a guaranteed caseload. Structurally, the CICC is within the hierarchy of the Chinese domestic judiciary. It forms part of China’s Supreme People’s Court of which both the first CICC in Shenzhen and the second CICC in Xi’an are permanent branches. Flowing from this structure, it is ensured that the CICC continuously has a high caseload as the Supreme People’s Court in Beijing directly refers cases to them. In fact, the case flow under the CICC Provisions includes “other international commercial cases that the Supreme People’s Court considers appropriate to be tried by the CICC.” (Provisions of the Supreme People’s Court on Several Issues Regarding the Establishment of the International Commercial Court, Article 2(5), English here). Comparative studies show that the feature of “rooting” the international commercial courts within the domestic judicial system is similarly found in other jurisdictions, such as the Singapore International Commercial Court and the Chamber for International Commercial Disputes of the Frankfurt Regional Court in Germany.
The establishment of the CICC arguably represents a paradigm shift of the “Beijing Consensus”, which traditionally placed emphasis on informal alternatives to law (i.e. a soft-law and norm-based approach). The CICC signifies China’s major step towards a dual-track model which places equal emphasis on both soft-law instruments and hard-law capacity-building of legal infrastructure. From the Law and Development perspective, the establishment of the CICC exemplifies a turning point in the Beijing Consensus to move away from the heavy reliance on norm-based instruments in international legal ordering (such as Memorandum of Understandings, Memorandum of Agreements, Joint Statements etc. involved in the BRI) to hard-law institutional infrastructure capacity-building.
For details, please find Weixia Gu’s forthcoming article regarding the CICC and Law and Development Study at Harvard International Law Journalhere. Please also find her recent monograph, Dispute Resolution in China: Litigation, Arbitration, Mediation and Their Interactions published by Routledge in 2021 here.
Weixia Gu is Associate Professor at the Faculty of Law, University of Hong Kong and immediate past Co-Chair of the American Society of International Law (ASIL) Asia-Pacific Interest Group. Her research focuses on arbitration, dispute resolution, private international law and cross-border legal issues. Her scholarship is published by leading comparative and international law journals and cited by leading judiciaries in the world. She is the recipient of University of Hong Kong’s Outstanding Young Researcher Award and three times the awardee of China Society of Private International Law Best Research Output Prize. Her recent books include The Developing World of Arbitration (Hart, 2018); Dispute Resolution in China (Routledge, 2021); Multi-tiered Approaches to the Resolution of International Disputes (CUP, 2021). Contact her at guweixia@hku.hk.
