Notes on SPC research topics

Of all the language in the list of research topics, this item is the most likely to get noticed in the English-speaking world. It doesn’t help that it is the very first item, placed even above Coronavirus related topics.

The language is needlessly confrontational in its mention and express opposition to ‘Western’ ideas.

None of this is new.

While rejecting ‘judicial independence’, the Chinese courts are generally described as ‘independently exercising the adjudication (trial) power’ that is “not to be interfered with by any administrative organs, social groups or individuals.” You can hurt yourself trying to wrap your head around that paradox, but there are a few ways to understand it.

One is that the adjudication power that the courts exercise is limited to hearing cases, including determining the facts and rendering verdicts; and that other acts of courts, such as interpretation of the law, judicial discipline, etc. are closely constrained by government and Party. Another way to understand the difference, is that in China the independence is in the courts, not the individual judges- so that adjudication (judicial) committees, court presidents, and higher courts are able to give guidance on cases as part of the independent court system.

In practice, China has recently published a series of documents meant to limit outside interference on case-handling, from both within and without the court system. You can read more about them here.

The situation is similar for the language rejecting ‘separation of powers’ where the alternative is often described as a relationship of ‘mutual cooperation and restraint between government organs. The vision is of a system of inter-branch checks to stop abuse, but under a unified leadership of the Party and NPC rather than co-equal branches.

The real question is why there is such a strong insistence that this is a ‘non-western’ model and emphasis on the ‘socialist’ aspects of the system. Rather than reflecting increasing confidence in local governance, it comes across as insecure in the ability of the system’s results to speak for themselves.

Likely linked to last November's Fourth Plenum and last month's SPC Opinion on modernizing the judicial system and judicial capacity, and related documents, including a 2019 Party document that likely frames the Fifth Five-Year Judicial Reform Plan Outline, "Implementing Opinions on Comprehensively Deepening Reform in the Political-Legal Field” mentioned  https://supremepeoplescourtmonitor.com/2020/05/04/supreme-peoples-courts-new-vision-for-the-chinese-courts/.

The courts have been active during the epidemic, creating systems for online litigation, petitioning, and prosecuting of crimes that obstruct disease prevention work. You can find more on our coronavirus research page and select the law and enforcement category.

Of particular note are:

	Guiding Opinions on Several Issues Related to Lawfully Improving Handling of Civil Enforcement Cases Involving Covid-19	05/13/20
	Guiding Opinion on the Proper Handling of Civil Cases Involving the Novel Coronavirus Outbreak in Accordance with the Law (1)	04/16/20
	Opinions on Further Strengthening Border Health and Quarantine Efforts and Lawfully Punishing Violations and Crimes that Threaten Border Health and Quarantines	3/16/2020
	SPC Notice on Strengthening Online Litigation Work During the Period of Novel Coronavirus Pneumonia Epidemic Prevention and Control	02/14/2020
	Opinions on Strictly Punishing Violations and Crimes that Obstruct the Prevention and Control of the Novel Coronavirus Pneumonia Epidemic in Accordance with Law	02/06/2020
	Notification on Ensuring the Safety of Medical Personnel and Preserving a Positive Medical Order During the Period of Epidemic Prevention and Control	02/07/2020
	Announcement on Litigation Services and Complaint Petitions Work During the Period for Prevention and Control of the Novel Coronavirus Epidemic	01/30/20

Largely self-explanatory. The work on ‘family law matters’ and left-behind children been a major cross-departmental governmental projects, see e.g.:

关于建立家事审判方式和工作机制改革联席会议制度的意见  Opinions on the Establishment of a Joint Conference System on the Reform of Methods and Working Mechanisms for Trial of Family Matters

国务院关于加强农村留守儿童关爱保护工作的意见 State Council Opinions on Efforts to Strengthen Care and Protection of Rural Left-Behind Children

Justice Du Wanhua, who recently retired, has been involved with family trial reforms, and this may be intended to restart those reforms.  Several years ago, 100 local courts piloted family court reforms.  The divorce rate continues to rise, the number of elderly continues to increase, and related legal issues are increasingly difficult.

Adjudication or judicial committees exist within each court to discuss complex cases and legal issues and are comprised of  higher-ranking judges of the court. Because the committees can be directly involved in reaching the verdict in some cases,  they have often been criticized for allowing people who did not hear the case to decide it. This is especially problematic in that their deliberations are not public and defense attorneys are not included. Recent reform trends have tried to preserve the value of having experienced leadership weigh in on cases while ensuring that the judges who actually preside over the case make the key decisions.

The 'Guiding Cases System' mentioned in the final bullet is a system of quasi-precedent used by the Chinese courts in which a small number of cases have been selected by the Supreme People's Court for use as legal authority. Some see great value in this system's use of cases to illustrate the application of law, but the cases are rarely relied upon in practice.

This is related to some of the tasks mentioned in the 5th Five-Year Judicial Reform Plan, as discussed in this blogpost and judicial committee reforms. The intent appears to be for the SPC to issue more detailed procedural rules that implement last fall's policy document.  The specialized or professional judges meetings are mentioned in various SPC documents and some related analysis can be found here.  The decisions of the committee are not binding on the judges who are hearing the case, unlike a judicial committee's decision. On local court guidance, this is related to the long-standing practice of local high courts issuing guiding rules applicable within their jurisdictions. Article 104 of the Legislation Law forbids adjudication and procuratorate organs other than the

‘Crimes endangering national security’ refers to a chapter of the Chinese Criminal Law, (formerly known as counter-revolutionary crimes) and includes such crimes as treason, espionage, subversion of state power, separatism, etc. , many of which are eligible for the death penalty when serious. As happens with terrorism investigations in some jurisdictions, the invocation of crimes endangering national security can limit the procedural rights of the accused, making it especially important.

Trial by absentia here refers to new procedures added in 2018 which allow for trials to be conducted despite the accused being outside of China, usually so that assets can be seized. The procedures are limited to serious cases of corruption, terrorism, and crimes endangering national security.

The plea leniency system, known also as 'the system of leniency for those who admit guilt and accept punishment' is a reform measure standardizing the long-standing policy of leniency for those who confess and express remorse. The system is co-evolving with procedures for simplifying trial procedures to create something similar to the U.S. plea bargaining system, with a waiver of trial rights for defendants who concede all facts. The idea of the system in part is to leave the courts sufficient resources to hear contentious cases more fully, but so far the development of more robust trial procedures has lagged behind the plea leniency system's simplification.

Although the exact number of death sentences carried out in China is a state secret, the number is believed to have decreased substantially since 2007 when the SPC took up its authority to review all death sentences. China has also been gradually reducing the number of offenses that are eligible for the death penalty.

Chinese criminal law has long had a defense of insanity, allowing that those who could not control or appreciate the nature of their criminal conduct should not be punished. In 2013, 'compulsory treatment', generally interpreted as mandatory in-patient psychiatric care, was authorized for those who remain dangerous despite their lack of criminal responsibility.

In China's system, defendants cannot officially argue that they lack criminal responsibility but must be found to lack it by an official forensic psychiatric evaluation initiated by the police, prosecutors, or judges. Those found to have reduced capacity by the evaluation are generally given a lighter sentence, raising questions as to the application of the death penalty.

'Capacity to be Executed' is also an issue in some jurisdictions, and concerns to the defendant's mental state not at the time of the offense, but at the time of the execution.  The idea is that it is fundamentally unjust to execute someone who cannot understand what is happening to them. China currently has no relevant law, but might consider exploring it as a visible rights protection that is unlikely to be a drain on resources as it is infrequently used.

Not much to add except that as with all aspects of our lives, crime is also increasingly moving online. This includes online fraud, bullying of kids,  porn， and content restrictions, to highlight just a few.

This relates to the forthcoming promulgation of the Civil Code (民法典)—for which the SPC has provided support—with 6 chapters which will replace major laws—Marriage, Inheritance, Contract (Guarantee) Law, Property Law (Pledge, Mortgage), Tort Law, and have new chapter on Personality Rights (SPC will support legislation by issuing transitional arrangements & judicial interpretations.  Over the years, the SPC has been issuing judicial interpretations and other documents relating to the areas of law that will form the Civil Code, particularly in the area of personality rights (Portraiture, Personal Information, Privacy, Genetic Information rights etc.) , an area where legislation has been lacking. So work will be needed to review the previous documents in a big "housecleaning exercise".  The articles on personal information, privacy, etc. are not very detailed, although they are important to individual people.  Then the question is here, what protections will be provided by forthcoming judicial interpretation(s). This will fill in some of the abstract statements in the Civil Code.