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.
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 firstname.lastname@example.org.
Why do so many Chinese woman suffer or even die from domestic violence? Why are women still at a disadvantage in Chinese divorce courts for property and child custody? Why are the personal safety protection orders rarely issued? Why are the laws protecting women’s rights not implemented?
The existing literature has, explicitly or implicitly, attributed this to the following four reasons: incomplete protections of the law, out-of-court gender biases, a lack of gender consciousness on the part of judges, and disparities between the litigation capabilities of men and women. While each of these reasons contributes to the gendered outcomes, they are inadequate at explaining the breadth and depth of women’s bleak situation.
In Divorce in China, Xin He turns to the most unlike suspect—Chinese courts and judges. This new book argues that institutional constraints to which judges are subject, a factor largely ignored by the existing literature, play a crucial role in generating gendered outcomes. Twisting the divorce law practices are the bureaucratic incentives of the court and its political concerns for social stability. The judges are responding to two sets of interrelated institutional constraints: efficiency concerns and stability concerns.
The judiciary trumpets a slogan “to achieve the combination of both legal and social effects.”
Efficiency concerns mean that judges are supposed to handle cases efficiently. The Civil Procedural Law stipulates that cases tried by the Normal Procedure are to be completed within six months, and those using the Simplified Procedure have only three months to finish. Some senior officials managing their courts even shorten the limits to 90 or 20 days, respectively, to allow themselves more room to manoeuvre. The case closure rate, an indication of the effectiveness and efficiency of court operations, appears in every court’s annual work report. By December of each year, many courts stop taking new cases so that they can increase the case closure rate for the year.
Stability concerns mean that the court decision is accepted by the litigation parties and by society at large—it does not foment social instability. This is controlled by the appeal rate, the remand rate, the petition rate, and the number of malicious incidents, including social protests and deaths. The judiciary trumpets a slogan “to achieve the combination of both legal and social effects.” While the legal effects suggest the observations of legal principles and rules, social effects imply that society accepts the decision peacefully. It would be nice if the two were consistent and mutually reinforcing. But when they conflict, legal principles and rules have to make way for social effects. That is, the law is compromised.
Due to these concerns, judges often choose the most efficient, yet safest, way to handle issues in divorce litigation. They have to make sure that cases are finished before the deadline, and this without malicious incidents. They want a balanced decision, acceptable for both parties which does not provoke extreme reactions. This behavior pattern, Xin argues, results in gendered outcomes.
domestic violence confirmed at the trial level is often erased, dismissed, or ignored at the appeal level.
First, many laws protecting women’s interests are not fully implemented. These laws are created to reverse social, cultural, and economic biases against women. They are not necessarily gender neutral; they may favor women, or offer them a hand. Their implementations are crucial for rectifying gender biases and eventually achieving gender equality. Due to judges’ concerns however, domestic violence confirmed at the trial level is often erased, dismissed, or ignored at the appeal level. This occurs because the appeal court needs to strike a balance. The protection order, intended to help the victims of domestic violence before the litigation process ends, has been underutilized, because issuing such orders increases judges’ workloads. Child custody turns into a bargaining chip to soothe the unsatisfied men. Children are taken away from women simply because men are viewed as posing a more imminent threat to social stability.
Second, the judges’ behavior patterns privilege men in litigation outcomes due to their superior economic capabilities. As mentioned, by law, the bidding process is optional. However, out of efficiency concerns, judges encourage litigants to take this option. This is because bidding provides the most efficient way to fix a price for the matrimonial property. As a result, many women lose their homes. Out of stability concerns, judges also often allow an economically superior man to gain an upper hand in highly contested cases. Men with more cash are allowed to buy out women determined not to be divorced. On the other hand, women, with less economic capability, do not enjoy the same luxury when their husbands are equally steadfast against divorce. Women remain ensnared in the marriage shackles, even though they are desperate for their removal.
Finally, the judges do not alleviate cultural biases against women—rather, they perpetuate them. With such an approach, they accept the patriarchal culture, and reinforce gender inequality, turning a blind eye to cultural bias. Because of their concerns for efficiency and stability, they are reluctant to explore women’s sufferings because of their husbands’ impotency, or even rape committed by their husband’s family members. This is not because the judges are unaware that women’s rights are infringed upon. They just do not want to infuriate or even confront the men. For their purposes of disposing of the cases efficiently without lingering effects, to do so would be unnecessary.
judges, catering to institutional concerns, consciously and inadvertently, make decisions detrimental to women.
It is thus inadequate to say that the brunt to women in divorce litigation stems only from the incomplete coverage of women’s rights, or vague definitions of key terms in the legislation. It is also not enough to blame the judges’ lack of gender consciousness, or inequalities and biases outside the court. One fundamental reason is that the judges, catering to institutional concerns, consciously and inadvertently, make decisions detrimental to women. Driven by these concerns, they allow the forces of inequality in social, economic, cultural, and political areas to infiltrate their decisions. It is the institutional reasons that prevent the judges from offering a level playing field for women. Equality can only be invoked and fulfilled when the courts have acted. Thus, the institutional failure to enforce the laws has become a major obstacle to gender justice.
This book is based on extensive fieldwork and interviews Xin He has conducted in various court settings over more than a decade. Obtaining access to Chinese courts is difficult, and has recently become even more so. Few outside researchers have attained this level of access. This book is the only study of Chinese divorce cases based on fieldwork conducted inside Chinese courtrooms. Xin He has observed more than 50 trials, and these observations constitute the foremost part of my data.
This book is timely, given the renewed and heightened focus on the rule of law in the official discourse in China on the one hand, and from the awaking gender consciousness on the other. From a doctrinal standpoint, China exemplars gender equality and the freedom of divorce. Yet, how are the laws implemented? What the Chinese courts actually do, and what the consequences are. From a socio-legal perspective, the book highlights the richness, sophistication, and cutting-edge nature of the underlying research. Divorce in China is as much an account of Chinese courts in action as a social ethnography of China in the midst of momentous social change.
HE Xin is Professor at HKU Law Faculty. A pioneer in studying China’s legal systems from a socio-legal perspective, he is one of the most cited China law scholars. His monograph Embedded Courts: Judicial Decision Making in China with Kwai Hang Ng (Cambridge University Press 2017) won “the Distinguished Book Award” by the Asian Law & Society Association and the runner-up of the book prize by the ICON-S (the International Public Law Association). He was awarded the Humanities and Social Sciences Prestigious Fellowship of Hong Kong in 2019.
Find his second monograph, Divorce in China: Institutional Constraints and Gendered Outcomes, published by NYU Press in 2020, here.
Cross-border dispute resolution is changing as a part of the Belt and Road Initiative (BRI) development. With the BRI, Chinese interest in international commercial arbitration has gained a new dimension as BRI promotes the expansion of Chinese dispute resolution institutions and their international competitiveness. Ulla Liukkunen finds that these developments challenge the current narrative of international arbitration, underlining the connection between the legal regime of arbitration and endeavours by the state. In her recent paper (PDF), she explores private international law as a framework for discussion of noteworthy characteristics of the Chinese legal system and legal culture that are present in international commercial arbitration.
The People’s Republic of China has made initiatives to develop a joint dispute resolution circle for BRI countries so that there would be an area in the BRI sphere which offers effective and foreseeable dispute resolution based on jurisdictions close to the disputing parties. In 2016, upon an order by the State Council, Shanghai pressed forward with the creation of an international commercial arbitration system which has since then developed rapidly: The Shanghai International Arbitration Centre has witnessed an increase in the number of cases, and has launched a series of initiatives to promote the development of arbitration. In 2018, the CCP’s Central Committee and the State Council issued an Opinion calling the Supreme People’s Court to set up international commercial courts, to take the lead in setting up a committee of international commercial experts, and to support a BRI-related international commercial dispute resolution mechanism. The aim is that the BRI dispute resolution mechanism would form a convenient, speedy and low-cost “one-stop” dispute resolution centre to provide high-quality and efficient legal services for parties involved in BRI construction.
In the theory of international commercial arbitration, elaboration of a doctrine based on the claimed autonomous nature of international arbitration exists, resting on views of self-standing transnational legal standards that distance arbitration from state-bound laws as well as a state-bound setting. The growing role of China in international arbitration ‒ and the state interest embedded therein ‒ challenges this picture which has been built within international arbitration doctrine and which has resulted in loosening the scene of the role of state law in arbitration.
A rethink of comparative methodology is proposed in order to promote an understanding of Chinese law in the arbitration process. This article argues for adopting micro-macro comparison as a methodological approach in arbitration. Micro-macro comparison as a process penetrates the decision-making of arbitrators, also governing the conflict-of-law dimension.
Moreover, considerations of the Chinese private international law and arbitration regime speak for a broader comparative research perspective towards international commercial arbitration. In the international commercial arbitration frame under scrutiny, we can see the conception of party autonomy placed in a Chinese context where the state is shaping the still relatively young private international law frame for exercise of that freedom and certain institutional structures are advocated where party autonomy is placed. Chinese development underlines the connection between the legal regime of arbitration and endeavours by the state, thereby requiring assessment of party autonomy from the perspective of the regulatory framework of private international law that expresses the complex dichotomy between private and public interests.
Professor Liukkunen examines international commercial arbitration from the perspective of Chinese developments, noting that, in global terms, the organization of cross-border dispute resolution is changing as a part of the Belt and Road Initiative (BRI) development. With the BRI, Chinese interest in international commercial arbitration has gained a new dimension as BRI promotes the expansion of Chinese dispute resolution institutions and their international competitiveness.
In recent years, digitalization of courts has been explored actively in theory and practice in China. Mostly referring to “smart court” or “intelligent court”, the digitalization of courts means that litigation activities from case-filing, to court trials be carried out online, with the help of modern technology like big data, cloud computing and artificial intelligence. The effects of the COVID-19 pandemic further spurred the need to accelerate the digitalization of the administration of justice and streamline case handling within the sprawling court system in China. Junlin Peng and Wen Xiang ‘s latest paper in the Nordic Journal for Law and Social Research (available here) elaborates the opportunities and challenges associated with digitalization of courts and provides suggestions based on the analysis.
A large number of cases needs to be dealt with by a relatively small number of judges in China: With the rapid development of economy and a growing awareness of rights and obligations, people increasingly resort to law to solve their disputes. The notorious overload of cases and the lack of capacity inevitably affects the quality and efficiency of case-handling. Moreover, traditional ways of collecting, collating and delivering information undermine judicial efficiency. Therefore, the digitalization of courts is expected to contribute to the following: improving judicial efficiency, contributing to judicial transparency, providing convenient services and establishing judicial big data. However, challenges emerge. For instance, how to set the scope of application of technology? Do remote trials violate the Principle of Direct and Verbal Trial? How can electronic services ensure a fair procedure and the litigants’ right to know? This paper shows that some achievements have been made, but court digitalization is still in its infancy in China. It is a phenomenon where practice precedes law, which means there lacks of legislative support and legal theoretical research on informatization of courts. Technological innovations and the scope of their applications require further debate, or else will undermine the legitimacy of digital judiciary.
In particular, the following applications are observed:
According to Article 14 of the Supreme People’s Court’s Rules on Several Issues on Case-filing Registration System, in order to facilitate litigants to exercise litigious rights, courts provide litigation services such as case-filing online systems. So far, many courts in China have actively explored and established an E-filing system, which enables clients to conveniently file a case online. The main concern about E-filing is false litigation. Judges have voiced their concern that they cannot verify the identification of parties and censor the authenticity of litigation materials, leading to an abuse of litigation rights.
Legislation on remote trial is limited. Article 259 of Judicial Interpretation of Civil Procedure Law of People’s Republic of China (hereinafter referred to as Interpretation of Civil Procedure Law) stipulates that for simplified procedures (简易程序), with the consent of both parties and permission of the People’s Court, the audiovisual transmission technology may be used to hold a court session. According to Article 73 of Civil Procedure Law, with the permission of the People’s Court, witnesses may testify through audiovisual transmission technology under the following circumstances: inability to attend court due to health reasons, traffic inconvenience, and force majeure such as natural disasters and other valid causes. However, there is no provision relevant to remote trial in Criminal Procedure Law.
At present, practices of remote trial across the country are pioneering endeavours with little legislative support and theoretical research. Practices of courts in various areas are diverse, we thus observe Jilin Province as an exampl: Jilin e-court is equipped with a cloud conference system which can be used for remote trial in case where litigants, witnesses and appraisers cannot go to the court. Before the beginning of the trial, the litigants are expected to log on to the website of Jilin e-court and enter into the cloud conference system at appointed time. The judge will initiate the cloud conference on the court intranet. There are no strict limits for the types of cases which remote trials may be used for. In practice, it is mainly applied in for simplified procedures (简易程序) and in first instance trials of ordinary and special procedures. In addition, there is no need for both parties to reach an agreement on whether or not to conduct the trial remotely; either party can apply for a remote trial. Thus, one party can participate in court trial through cloud conference system and the other party may go to the court to attend the trial in the traditional way.
In China, 80%-90% of the cases of judicial corruption appear in the field of execution, and 80%-90% of corruption in the field of execution appears in judicial auctions. If the parties waive the right to choose an auction agency, the court has the right to entrust one. Driven by high commission interest, the auction agency may distribute 40% of the commission to the judge in order to be entrusted by the court. Besides, the traditional way of judicial auction leads to a limited range of auction information dissemination, so that only a few people obtain auction information and participate. A small number of people participating in judicial auctions and a relative short auction time results in a low hammer price, which impairs the legitimate interests of the creditor and the executed person. In order to eliminate these drawbacks of traditional judicial auctions, courts in Shanghai, Chongqing and Zhejiang are actively exploring online judicial auction (E-auction).
E-auction refers to a model of judicial auction where courts can handle executable property publicly by means of online auction through an auction platform. Among the three models courts across the country experimented with, the model where courts carry out judicial auctions directly on an Internet auction platform without the participation of an auction agency is most widely used. Since June 2012, more than 1400 courts in 28 provinces have independently conducted judicial auctions online, carrying out 250,000 judicial auctions with the value of the executed property amounting to 150 billion RMB. According to Article 12 of Regulations on Judicial Auction Online, the judicial auction online should be announced in advance: the auction of movable property shall be announced 15 days before the auction and auction of immovable property shall be announced 30 days before the auction. To ensure bidders’ full participation in bidding, the Regulations of the Supreme People‘s Court on Issues Concerning Judicial Auction Online (Herein referred as Regulations on Judicial Auction Online) requires that the bidding time is no less than 24 hours. Judicial auction online not only lets more people participate in bidding but also furthers the transparency and justice of judicial auction. Article 3 of the Regulations on Judicial Auction Online stipulates that the judicial auction online should be open to the public on the Internet auction platform and be subject to social supervision. With the public being able to supervise the entire auction process online, doubts concerning the fairness of the auction can be eliminated to some extent.
Wen Xiang (corresponding author) is an Assistant Professor and S.C.Van Fellow of Chinese Law at iCourts (Centre of Excellence for International Courts), Faculty of Law, University of Copenhagen. Wen Xiang was a guest lecturer at Harvard Kennedy School and a visiting scholar at Duke University School of Law. Contact him on LinkedIn.
Junlin Peng obtained a bachelor degree in law from Beijing Normal University and a master degree in law from University of Copenhagen. She attended summer school of Georgetown University and exchanged to University of Milan and University of Stockholm. Contact her at junlinpeng[at]163.com.
The automation and digitisation of justice (司法信息化 ‘judicial informatisation’) in China has been ongoing for two decades. The latest development is the emergence of “smart courts” (智慧法院), which are part of the Chinese party-state’s efforts to reform and modernise its administration of justice and governance capacity. The advent of Smart Courts is an example of the willingness of the party-state to harness new technologies for its governance reform goals. However, the academic reaction has not been uniformly enthusiastic; there is scepticism about the benefits of increased automation and digitisation. Straton Papagianneas explores the phenomenon in the course of his PhD at Leiden University. In this post he sets out to map the academic reaction to some of the smart courts’ implications among Chinese scholars.
Chinese scholarly work has traditionally been a neglected group in academic discussions, including in the English-language literature on automated and algorithmic justice, whereas the latter is thoroughly cited and discussed by Chinese scholars. However, China is at the vanguard of judicial automatization and digitisation. The implications of its development can certainly be useful for other jurisdictions. Therefore, their academic discussion deserves attention.
A Brief Introduction to Smart Courts
The definition of a “smart court” is difficult to capture, partly because different courts use different technologies. Among the different official definitions, the clearest one, from the 2017 New Generation AI Development Plan (2017 AI Plan, translation here), states that a court can be considered ‘smart’ if it has a:
“[…] courtroom data platform that integrates trials, personnel, data applications, judicial disclosure, and dynamic monitoring, and promotes the application of artificial intelligence in evidence collection, case analysis, legal document reading and analysis; realising a smart court trial system and smart trial capacity.”
A smart court is not necessarily a court where everything is completely automated, with a self-learning ‘robot judge’ adjudicating over cases independently from any human interference. It is a court where judges use software applications to conduct the judicial process in a digital environment. ‘Intelligent legal applications,’ that is, applications that can render expert legal advice or decision making based on big-data analytics and without human interference, are still limited (Sourdin, 2018).
Central to the smart court is the human-computer interaction that results from integrating different technological applications supported by algorithms and big-data analytics into the judicial process. These applications range from systems that can automatically prompt similar cases as a reference for judges, to systems that can process and cross-examine all collected evidence, to ones that can automatically detect contradictions or relevant information for the judge to review (Cui, 2020). Ultimately, it is still the judge that adjudicates, albeit with the aid of technology.
Following the 2017 AI Plan, there are different degrees of smart courts. Some are more ‘intelligent’ than others. For example, there are three types of Internet Court, in Beijing, Guangzhou, and Hangzhou. These courts provide full online dispute resolution for limited types of e-commerce disputes (Xu, 2017). All activities, from the filing of a case through to the enforcement of a judgment, can be conducted online, with litigating parties and the judge all connecting remotely.
It is only later that these Internet Courts progressed to a ‘higher’ level of intelligence. Recently, the Hangzhou Internet Court introduced an AI judge that can take over simple functions during online court trial hearings, thereby assisting human judges, who still monitor the proceedings and make the final decision (Mei, 2019). According to its 2019 White Paper, the Beijing Internet Court developed an intelligent judgment generation system that is able to automatically generate standard instruments, as well as judgments, rulings, and settlements.
The 2017 SPC Opinion on Accelerating the Building of Smart Courts (translation here) explains that the purpose of judicial informatization and smart courts is to achieve the following judicial reform goals of making the judiciary more efficient and improving its transparency, consistency, and even autonomy from unwanted internal and external interference.
Remarkable is that technologies are treated almost like a ‘cheat code’ to bypass genuine, structural reforms, which requires an internalisation of norms and changes in behaviour that take a lot more time and effort. Introducing applications that force behavioural change is easier.
However, Chinese scholars are less confident. Smart courts and judicial informatisation are primarily framed as set to improve judicial efficiency and consistency. The advantages can be considered as evident, yet a review of the literature shows that there are doubts they can help achieve the ultimate aim: namely restoring the faith in and credibility of justice.
Efficiency (more output for less input) is low-hanging fruit and is therefore often mentioned as one of the advantages of these smart systems. Automation and digitisation will make the judicial process run smoother and faster, at a lower cost. In general, the efficiency benefits of judicial informatisation are left unquestioned (Guo 2017; Pan 2017; Qian 2018).
Chen and Sun (2019) show that digitisation has only gone so far, and that many judicial institutions have developed isolated data-silos. Many judicial departments have their own databases, but due to secrecy requirements, this data barely moves around between judicial organs. Additionally, for the data to be useful it still needs to be manually selected, cleaned, interpreted, and then finally labelled; increasing the workload of judicial officers after a case is done.
However, Wang (2019) notes that this efficiency discussion is only relevant for ‘traditional technology’, whereas smart technology driven by algorithms and big-data analytics are aimed to achieve much more, such as more accountability, more consistent adjudication, better monitoring and supervision of cases etc. The implications go far beyond an expedited judicial process.
By equivalating efficiency with “a more just and fairer judiciary”, reform goals of a more abstract level are implicitly achieved despite not being explicitly addressed. Technology is not a ‘magic weapon’ that will suddenly help achieve, for example, judicial credibility and fairness. An efficiently automated judiciary, does not, in and of itself, constitute a credible and just judiciary.
A major issue plaguing the Chinese judiciary has been inconsistent adjudication, caused by the relative vagueness of laws and different interests trying to influence the judicial decision-making process to the detriment of consistent application of law (Ahl, 2019; Ng & He, 2017). Alongside previous judicial reforms (Ahl, 2014; Ahl & Sprick, 2017), smart courts are expected to enhance consistent adjudication or “similar judgments in similar cases” (同案同判).
Judicial databases feed into applications that conduct big-data analyses to provide adjudicating judges relevant references, or warn them that their judgment is deviating too much from the average judgment of previous, similar cases. Consistency is thus achieved, partly through automation, but also through the supervision of adjudication judges by these applications.
This has worried scholars. Technology should not be more authoritative than the human judges themselves (Y. Liu, 2019). Substantive justice is related to considering the unique circumstance of a case. Automated systems cannot maintain this balance between staying consistent while also considering unique factors. This is only something that human judges with sufficient judicial discretion can achieve. ‘Prefab’ judgments via nearly automatized decision-making would severely damage this (Pan, 2018)
Sun (2019) and Wang (2019) foresee the end of judicial discretion by this fully technologically embedded judicial process that minimises human interference. Judges would become screening bureaucrats that only concern themselves with inputting the right information in the automated system and reviewing its output.
The judicial system risks surrendering its power to technology, shifting the nexus of decision-making power to technical expertise. Judicial pluralism will be endangered by an exaggerated focus on uniformity and automation (P. Liu & Chen, 2019).
This can lead to ‘technological alienation’. Litigating parties can become frustrated by rigid automated system deciding over their cases, subverting the reform goals of restoring judicial credibility and faith (Jiang, 2019; Y. Liu, 2019).
Technology is being heralded as the bringer of a modern, efficient, and consistent judiciary. While this might be the case in most instances, a review of the literature shows the other side of the medal: The instrumental gains of judicial informatisation are no guarantee for a fairer and more credible judiciary.
What is clear from the literature is that judicial automation and digitisation needs to be accompanied by genuine reforms. ‘Cheating’ only gets one so far.
Straton Papagianneas explores China’s smart courts in the course of his PhD at Leiden University. Under the supervision of Dr. Rogier Creemers, he is part of the project called “The Smart State: Law, Governance and Technology in China”. Find him on LinkedIn here and follow him on Twitter.
Ahl, B. (2014). Retaining Judicial Professionalism: The New Guiding Cases Mechanism of the Supreme People’s Court. The China Quarterly, 217, 121-139. doi:10.1017/S0305741013001471
Ahl, B. (2019). Judicialization in authoritarian regimes: The expansion of powers of the Chinese Supreme People’s Court. International Journal of Constitutional Law, 17(1), 252-277.
Ahl, B., & Sprick, D. (2017). Towards judicial transparency in China: The new public access database for court decisions. China Information, 32(1), 3-22. doi:10.1177/0920203X17744544
Cui, Y. (2020). Artificial Intelligence and Judicial Modernization. New York: Springer Publishing.
Guo, S. (2017). Informatisation of the Judicial Process – Preliminary Study of Building Courts for the Internet Age (司法过程的信息化应对———互联网时代法院建设的初步研究). Jinan Journal (暨南学报)(10), 25-32.
Jiang, Q. (2019). The Scope and Limits of using AI in Judicial Adjudication ( 论司法裁判人工智能化的空间及限度). Academic Exchange (学 术 交 流)(2), 92-104.
Liu, P., & Chen, L. (2019). The Datafied and Unified Evidence Standard (数据化的统一证据标准). Journal of the National Prosecutors College (国家检察官学院学报)(2), 129-143.
Liu, Y. (2019). The Theory and Practice of Modernization of Trial System and Trial Capacity in the Era of Big Data (大数据时代审判体系和审判能力现代化的理论基础与实践展开). Journal of Anhui University (安徽大学学报)(3), 96-107.
Ng, K. H., & He, X. (2017). Embedded Courts: Judicial Decision-Making in China. Cambridge: Cambridge University Press.
Pan, Y. (2017). The Value and Position of AI Application in the Judicial Field(人工智能介入司法领域的价值与定位). Current Affairs Observations (时事观察)(10), 101-106.
Pan, Y. (2018). Analysis of Integrating AI into the Judicial Field (人工智能介入司法领域路径分析). Eastern Legal Studies (东方法学)(3), 109-118.
Qian, D. (2018). China’s Process of Judicial AI: Function Replacement and Structural Enhancement (司法人工智能的中国进程：功能替代与结构强化). Legal Review (法学评论)(5), 138-152.
Sourdin, T. (2018). Judge v. Robot: Artificial Intelligence and Judicial Decision-Making. UNSWLJ, 41, 1114.
Sun, D. (2019). Knowledge Deconstruction and Corresponding Logic of China’s Criminal Judicial Intelligence (我国刑事司法智能化的知识解构与应对逻辑). Contemporary Law (当代法学)(3), 15-26.
Wang, L. (2019). The Dangers and Ethical Regulation of Using Judicial big data and AI Technology (司法大数据与人工智能技术应用的风险及伦理规制). Law and Business Research(2), 101-112.
Xu, A. (2017). Chinese judicial justice on the cloud: a future call or a Pandora’s box? An analysis of the ‘intelligent court system’of China. Information & Communications Technology Law, 26(1), 59-71.
Although many regard the post-2013 era as a return to unchecked authoritarianism that undermined the law and institutions, the current administration has introduced groundbreaking institutional reforms. Many of them have brought about the somewhat counterintuitive result of increased institutional autonomy.
Björn Ahl has edited a book on Chinese courts and criminal procedure that focuses on the post-2013 era. It 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 edited volume includes the following chapters:
1. Post-2013 Reforms of the Chinese Courts and Criminal Procedure: An Introduction (Björn Ahl) (preliminary version already available on SSRN)
2. The Meandering Path of Judicial Reform with Chinese Characteristics (Yu Xiaohong),
3. Dimensions and Contradictions of Judicial Reforms in China (Fu Yulin),
4. How the Supreme People’s Court Drafts Criminal Procedure Judicial Interpretations (Susan Finder),
5. Judicial (Dis-)Empowerment and Centralization Efforts: Institutional Impacts of China’s New Supervision Commissions (Meng Ye),
6.New Model of Habeas Corpus in China? Procuratorial Necessity Examination of Pre-Trial Custody (Alexandra Kaiser),
7. Live Witness Testimony in the Chinese Criminal Courts (Guo Zhiyuan),
8. Blood Money and Negotiated Justice in China (Kwai Hang Ng and He Xin),
9. Performance Evaluation in the Context of Criminal Justice Reform: A Critical Analysis (Michelle Miao),
10. From Populism to Professionalism: The Media and Criminal Justice in China (Daniel Sprick).
The book will be published by Cambridge University Press in 2021. A version of the introductory chapter is available on SSRN here.
Why is there so much ado about the responsible person of an administrative agency appearing in court? Nina Rotermund set out to look for answers in the latest interpretation of the Supreme People’s Court.
When the government of Zunyi City in Guizhou announced its plan to construct a highway close by, local residents had to fear expropriation. Mr. Ding decided to file a request with the Guizhou Provincial People’s Government for a reconsideration of the construction notice and its revocation. The provincial government rejected his reconsideration request because it considered the notice to be an internal administrative document. It argued that the kind of administrative actions that circulate within administrative organs do not directly affect the rights and obligations of a citizen, legal person or other organization outside the administration. Therefore, it rejected the reconsideration request. So, Mr. Ding filed an administrative lawsuit with the Intermediate People’s Court of Guizhou’s provincial capital Guiyang. During the court trial, the plaintiff presented the reasons and evidence supporting the revocation of the provincial government’s reconsideration decision. Surprisingly, Guizhou’s deputy governor, Mr. Chen, responded to the claims in court in person. The news of him attending the trial went viral. Mr. Chen confirmed that he participated in the trial in person to signal the government’s respect for the people’s rights and interests. He emphasized that the government accepted public and judicial monitoring. Whereas making statements in administrative trials is usually a rather short part, the entire exchange in this trial lasted for an hour.
This example highlights the symbolic meaning that is attached to the presence of the responsible person of an administrative agency in court. People, legal scholars, and politicians all attach great importance to the appearance of the responsible person of an administrative agency in court. But why does it seem to be such a big event at all?
Before the revised Administrative Litigation Law (ALL, with translation here) became effective in 2015, in general, administrative officials usually refused to appear in court and only sent their lawyers as representatives. Besides the regular administrative work, attending administrative trials seemed to be unworthy and a waste of resources. Traditionally, in China, it was common for people not to fight with magistrates (民不与官斗). Rather, magistrates were regarded as taking care for the people like parents for their children (父母官). This conviction still seems to be present somehow.
In 2011, Jiang Bixin, then vice-president of the Supreme People’s Court (SPC), emphasized that the presence of the responsible person of an administrative agency in court was an effective means to resolve the dispute between the people and the government and to understand the mood and emotions of the people. In a similar vein, the State Council had also underlined its support for monitoring the lawful actions of the administration. It indicated that administrative personnel usually lacked legal knowledge, although it was essential to abide by the laws. Attending administrative trials seemed to be an excellent way to learn a lesson.
However, as mentioned before, the enthusiasm about the responsible person of an administrative agency appearing in court was not shared by the administration itself. In its 2015 annual report, the Supreme People’s Court (SPC) reflected on the situation of administrative trial work and found that main problems inhibiting successful adjudication in administrative litigation include leading cadres not treating administrative litigation correctly, not respecting the people’s right to sue, and not supporting courts in accepting administrative cases, as well as officials unwilling to appear in court or to make a statement, or to accept an unsuccessful outcome.
The political and legal proponents truly believed that appearing in court would benefit the resolution of administrative disputes. Eventually, they came to dominate the drafting process of the ALL: The third paragraph of Art. 3 of the Administrative Litigation Law states that the responsible person of an administrative agency, their deputy, or a relevant employee of that agency shall appear in court to respond to the complaint against them. However, the ALL remains vague and does not provide any further details: Who is a responsible person in the administrative agency? In what kind of cases do they have to appear in court? Are there exemptions from that obligation? How does the court handle a situation when the responsible person refuses to appear in court?
The latest Interpretation of the SPC concerning the application of the ALL (2018 SPC Interpretation, with translation here) offers answers. Its Art. 128 defines the “responsible person of an administrative agency” as either the head or their deputy or even a person charged with special responsibilities. According to the second paragraph of Art. 128, besides the responsible person, one or two litigation representatives can respond in court. But the head or their deputy has to appear unless they have a good reason for their absence. In that event, they shall authorize a relevant employee to attend. However, they are not allowed only to send a lawyer to participate in the trial.
Moreover, Art. 129 determines that the people’s court can propose in writing to the agency that the responsible person is to appear in court when the case involves significant public interest, generates enormous publicity, or is likely to cause a mass incident. The people’s court shall indicate that attendance is mandatory in the their notice, according to the second paragraph of Art. 129. Besides, Art. 132 stipulates that the court shall document any misconduct in the ruling and send a recommendation to the relevant agency in case the responsible person or the relevant employee refuse or fail to attend the hearing themselves and only authorize a lawyer to attend.
The SPC’s Provisions were necessary because of various regional differences in the interpretation of the Law. For example, in 2016, Li Huai from the University of Wuhan had looked at normative documents of about 51 local governments that specify in which cases the head of the alleged administrative agency should or must attend the trial. He indicates that local decisions focus on different aspects such as the significance of a case, the year of its filing etc. to determine when the responsible person must appear in court. Unfortunately, Li Huai’s analysis offers no answers whether how many responsible persons actually appear in court. Some statistics of lower-level courts illustrate the impact of the system of responding to court proceedings. But the numbers are not representative for the entire country. For example, the government in Hangzhou presented some results. In 2017, the rate of appearance was still about 37,7% whereas in 2018, it increased to about 69.8% because the Standing Committee of the Hangzhou Municipal People’s Congress introduced supervision mechanisms. Their aim was to foster a change of thinking from “I have to appear in court” towards “I want to appear in court”. In their study about the appearance rate in Mudanjiang City in Heilongjiang, intermediate people’s court judges Liu and Jiang conducted statistics and concluded that the appearance rate reached 100%, but the rate to make a statement was lower. For instance, in 474 administrative cases filed in 2017, the appearance rate was 100%, but only 69 representatives of the administrative agency made a personal statement, which account for 14,6%. They assume that the administrative representatives are afraid of making mistakes when they express their opinion. They do not want to be responsible for negative legal consequences or of losing the lawsuit.
Still, the local differences underline that a nation-wide and uniform system was still lacking. Therefore, since 2018, the Supreme People’s Court conducted pilot work in Beijing, Shanxi, Chongqing, Jilin, Fujian, Hubei, and other places. It also collected opinions of the high courts, and suggestions of some front-line judges of the basic and intermediate people’s courts. Interestingly, it took 12 draft versions of the “Provisions on several issues concerning the responsible person of the administrative agency appearing in court” (Provisions, translated here), that include only 15 articles, until the final Provisions where agreed on.
Why are the Provisions necessary on top of the official 2018 interpretation? Was it not detailed enough? What are the differences between Section Nine of the 2018 SPC Interpretation (Art. 128-132), and the SPC provisions issued in March this year? The obvious answer is that the provisions constitute a special judicial interpretation intending to facilitate legal practice and to improve the application of the ALL (see Zhang 2020). In essence, the Provisions correspond to Section Nine of the 2018 SPC Interpretation, but the ALL and the 2018 SPC Interpretation are not as explicit as the Provisions, which the table below highlights.
Comparison of the 2018 SPC Interpretation and the Provisions:
2018 SPC Interpretation, Section 9
Provisions July 1, 2020
Art. 1 I: The responsible person must appear in court in first, second, and retrial proceedings, according to Art. 3 III of the ALL, exercise litigation rights and perform litigation obligations. II: The responsible person of an internal organization of the administrative agency authorized by the laws, rules, and regulations to exercise administrative power independently, [or the responsible person] of a dispatched agency or other organization shall appear in court. III: If it is added as another defendant and the plaintiff or defendant do not agree, the people’s court shall add the administrative agency as a third party, the responsible person shall appear according to the preceding paragraph.
Art. 128 I: The responsible person of an administrative agency” is either the principal or deputy or another person charged with special responsibilities. II: One or two litigation representatives can attend in addition; a relevant employee shall replace the principal or deputy; a lawyer as the only representative is not allowed.
Art. 2 I: The responsible person includes the principal of the agency or deputy or another person in charge of the enforcement of the alleged administrative action or another responsible person. II: The responsible person of an entrusted organization or the lower-level administrative agency is not the responsible person who must appear in court.
Art. 3 In administrative cases with co-defendants, the administrative agencies can consult to determine the responsible principal who must appear in court, or they can let the court decide.
Art. 129 I: Attendance is mandatory in the cases with a significant public interest, generating enormous publicity, possibly leading to mass incidents. II: The people’s court has to specify if appearance is mandatory in its notice for the agency. III: If the responsible person cannot appear, they have to give a proper reason, and the agency has to submit a statement that is sealed. IV: In case of refusal, the court may offer judicial recommendations.
Art. 4 I: In cases involving significant public interests such as food and drug safety, the protection of the ecological environment and resources and public health safety, or, in cases generating enormous publicity, possibly leading to mass incidents, the people’s court must notify the responsible person to appear in court. II: In one of the following circumstances, the responsible person has to appear in court, the people’s court may notify the responsible person to appear: The alleged administrative action involves significant personal and property rights of the citizen, legal person or other organization,Cases concerning administrative public interest litigation,Normative documents of the higher-level agency require the responsible person of the agency to appear in court,Other circumstances where the people’s court deems it necessary to inform the responsible person to appear in court.
Art. 130 I: The relevant employee is an employee on the national administrative staffing or any other employee fulfilling their duties in accordance with the law. II: Any employee of the legal affairs department of the local people’s government or of the specific department taking the administrative action may be deemed as the relevant employee.
Art. 10 I: The relevant employee specified in Art. 3 III of the ALL refers to staff members with special administrative functions and powers in the agency. II: Employees of organizations or subordinate administrative agencies entrusted by another administrative agency to exercise administrative functions and powers may be regarded as relevant employees. III: The people’s court shall refer to Art. 6 II of these Provisions to examine the identification materials of the relevant employees.
Art. 5 I: The people’s court shall inform the responsible person of the agency about matters like their rights and legal obligations and the related legal consequences. II: When the court notifies the responsible person of an agency to appear in court, it shall send the notification letter three days before the hearing starts. It shall also inform the responsible person of the negative legal consequences if they do not appear in court III: If the agency requests to replace the responsible person that must appear in court before the hearing, the people’s court shall allow it.
Art. 131 I: The administrative agency must to submit materials of identification. II: A relevant employee must submit a power of attorney sealed by the administrative agency.
Art. 6 I: The responsible person that appears in court shall submit their identification documents before the hearing. The identification documents shall explicitly say the name, position, and other necessary information of the responsible person and shall be sealed by the agency. II: The people’s court shall examine the identification documents. If it deems that the conditions are not met, it shall notify the agency to make corrections. If they do not correct or supplement, which can influence the regular opening of the hearing, the people’s court regards this as if the responsible person did not appear.
Art. 7 I: If the same case requires multiple hearings at the same instance of trial, it can be regarded as fulfilling the duty to appear in court when the responsible person appears in the first court hearing unless the court notifies them to appear again. II: If the responsible person appears in court in one trial of the procedure, it does not exempt them from their duty to appear in other hearings.
Art. 8 I: Under one of the following circumstances, the responsible person as prescribed in Art. 3 III of the ALL cannot appear in court: Force majeure,Accidents,They need to perform official duties that others cannot replace,Other legitimate reasons for failing to appear in court.
Art. 9 I: If the responsible person has a proper reason, they have to submit the relevant evidence and seal it with the administrative agency’s stamp or have the principal of the administrative agency sign an approval. II: The people’s court shall examine the reasons and supporting materials explaining why they do not appear in court. III: If the responsible person of the administrative organ fails to appear in court for proper reasons, and the administrative organ applies for postponement of the hearing, the people’s court may allow it; the people’s court may also decide to postpone the hearing by its authority.
Art. 11 I: Litigation participants shall exercise their litigation rights and perform their litigation obligations, abide by court rules, and consciously maintain litigation order according to law. II: The responsible person of the agency or the relevant employee entrusted by the agency shall make a statement, reply, submit evidence, debate, issue a final opinion on the situation of the case, and explain the normative documents on which it is based. III: If a responsible person appears in court, they shall express an opinion on the substantive settlement of the administrative dispute. IV: If the participants in the litigation or others disturb the order of the court by means like an insult, verbal abuse, threats, the people’s court shall stop them and deal with them according to Art. 59 of the ALL.
Art. 132 If the responsible person does not appear in court, or only send a lawyer, the people’s court shall record and specify in adjudicatory instruments the failure to respond and may propose that the relevant agency conduct disposition.
Art. 12 I: In any of the following circumstances, the people’s court shall provide judicial recommendations to the supervisory organ of the administrative organ or the administrative agency at the next higher level of the administrative agency taking the administrative action: The responsible person fails to appear in court and does not explain the reasons or the reasons are unfounded.The administrative agency has proper reasons to request postponement of the hearing. After the people’s court approved it, and the hearing starts, the responsible person fails to appear in court without proper reason.Neither the responsible person nor the relevant employee of the agency appears in court.The responsible person withdrew from court without permission to leave.The people’s court asks the responsible person to explain the relevant issues during the hearing, but the responsible person refuses to respond, resulting in the failure of court proceedings. II: In the event, there is one of the circumstances; the court has to record and specify in the judgment the failure to respond.
Art. 13 I: If a litigation party objects the circumstances of the administrative agency as mentioned in Art. 12 of these Provisions, the people’s court may specify it in the transcript of the court hearing without affecting the regular trial procedure. II: If the plaintiff refuses to appear in court on the ground that the administrative agency acts according to one of the circumstances of the first paragraph in Art. 12 of these Provisions, or withdraws from the hearing without the court’s permission, the people’s court can treat it like withdrawal. III: If the plaintiff clearly refuses to make a statement because the administrative agency has a circumstance of the first paragraph in Art. 12 of these Provisions or refuses otherwise resulting in the failure of trial proceedings and still does not state their opinion after the court has explained the legal consequences, the court can regard this as renouncing the right to make a statement, and they shall bear the corresponding legal consequences.
Art. 14 The people’s court may disclose to the public through an appropriate form the situation of the responsible person appearing in court. II: The people’s court may regularly conduct statistics, analyses, and evaluations of the appearance of the responsible person in court within its administrative jurisdiction and report to the people’s congress at the same level or to the people’s government at the same level.
Art. 15 These provisions shall be in effect as of July 1. 2020.
Translation by Nina Rotermund
At first glance, we can see that the Provisions provide details on the pre-trial and trial procedure concerning the appearance of the responsible person. For instance, the Provisions emphasize that the responsible person has to attend first instance, second instance, and retrial procedures (Art. 1), but it acknowledges that administrative officials have limited time resources. That is why, Art. 7 says that in the same case that requires multiple hearings at the same trial instance, it is acceptable if the responsible person appears in the first hearing. However, it stipulates that the obligation to appear in court affects all cases. Hence, responsible persons cannot excuse themselves if they appeared in one case in the first hearing but fail to appear in the first hearing of another case. The explicit mentioning of the court’s obligation to examine identification documents (Art. 6) reveals that it is not enough to send anyone to court but the right responsible person. In case the actual responsible person cannot appear in court, another relevant employee of the administrative agency can be designated, but their name and identification must be submitted to the court for the examination beforehand (Art. 10).
But besides these specifications, the core answer to initial questions seems to be hidden in the third paragraph of Art. 11: “If a responsible person of an administrative organ appears in court, they shall express an opinion on the substantive settlement (实质性化解) of administrative disputes.” The keywording is a substantive settlement that conveys a political message: The grievances of the people are taken seriously to preserve social order. The responsible person, their deputy or other relevant employees must be committed to genuinely solving the dispute. The trial in court provides the platform to enter into an active dialogue with the people. If the responsible person or any other entrusted person does not appear without proper reason that was announced before the hearing started, the court can sanction the misconduct according to Art. 59 of the ALL. Sanctioning misconduct does not only include internal supervision of the supervisory administrative organ, or the higher-level administrative agency (Art. 12) but public control as well (Art. 14).
To sum up, the ado about the responsible person appearing in court is justified for three reasons: In terms of psychological impact, the appearance in court is a signal of respect for the people and their need. In terms of substantive justice, the Provision guarantees substantive rights by demanding substantive settlement of the dispute. In terms of procedural fairness, the Provisions drew from judicial practice and pilot work to provide the people’s courts with an encompassing catalog about how to deal with the rights and obligations of the litigation parties in the trial.
Nina Rotermund is a PhD Candidate and a lecturer at Cologne University’s Chair for Chinese Legal Culture. Her research focus is the 2015 revised Administrative Procedure Law, she also explores the political system of the People’s Republic. Get in touch with her here or on LinkedIn.
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The Chinese leadership has responded to the growing load of online-shopping related disputes by setting up a special type of court: The Internet Courts (互联网法院) not only specialize in issues brought about through the internet, but also conduct the entire proceedings online.
Since 2017, the Internet Courts in Hangzhou, Guangzhou and Beijing enable litigants to file a claim, attend the hearing, and receive the judgment all without needing to go to a court (check out the pioneer among them, the Hangzhou Internet Court, here). These digital courtrooms may be frequented for certain administrative and civil cases, such as lawsuits regarding sales contracts, including product liability matters, services and loans.
In his recent analysis, Max Planck Institute’s Benjamin Knut Pißler finds the Internet Courts to be a useful new tool in the hands of consumers to secure their rights. This new type of court, which ist likely to be replicated in several other cities in China in the near future, constitute the latest innovation in a rather young field of law in China with surging importance: costumer rights protection. As an addition to the legal mechanisms developed in the past decades, namely the individual actions, representative actions and public interest litigation, the Internet Courts appear to make lawsuits more accessible for the general public, “File a law suit in only 5 minutes”, as the Hangzhou Court advertises on its website.
However, in his analysis recently published in the German Journal of Chinese Law (article in German), Pißler also identifies fundamental problems. “There are some indications that defendants can avoid the proceedings relatively easily,” he points out, as it is unclear what the consequences are if the defendant does not act upon receiving the electronically transmitted notification that he or she has been sued. The relevant regulations laid down by the Supreme People’s Court leave several questions unanswered, and it remains to be seen whether for example a legal duty to regularly check emails and text messages will arise due to the fact that the Internet Courts rely on such communication channels instead of traditional mail.
Further, it is found that the courts are the result of a decision of the Communist Party and a judicial interpretation of the Supreme People’s Court and thus not created in line with the official procedures for founding courts, including a relevant motion on the part of the Standing Committee of the National People’s Congress.
Apart from their regular judicial adjudication work however, the Internet Courts also provide a field for experimentation with new technologies in court proceedings. As innovative institutions outside of the judicial bureaucracy of traditional courts, the Internet Courts could become the arena where the application of artificial intelligence in court decisions, which is vigorously researched in China, may find a testing zone, Pißler indicates.