Though not binding, judicial documents issued by the Supreme People’s Court (SPC) are highly persuasive for Chinese courts nationwide.
I have introduced the SPC’s judicial interpretation in the previous post. Given that the SPC’s power to promulgate judicial interpretation derives from the Legislation Law, the judicial interpretation is legally binding on all the courts in China and can be invoked in the judgment.
However, in addition to the judicial interpretation, the SPC will also issue many other documents. Although these documents are not legally binding, they tend to impose a great impact on judges’ decisions in practice.
These documents generally include “notices”(通知), “opinions”(意见), “meeting minutes”(会议纪要), or speeches or specific articles of the SPC’s leaders published in court journals. Some researchers refer them collectively as judicial documents. [1]
I. Meeting minutes
In practice, “meeting minutes” or “forum minutes”(座谈会纪要) of the SPC are more than plain records of the meeting process. The content of these documents is very similar to laws or judicial interpretation. In fact, these minutes are a conclusion of the meeting on how to hear a particular case, hence they actually play the role of non-official judicial interpretation.
For example, the SPC has convened many “national civil and commercial trial meetings”(全国法院民商事审判工作会议), the ninth of which was held in Sept. 2019. After the meeting, the SPC issued the meeting minutes in Nov. 2019, which was dubbed as “The Ninth Civil Meeting Minutes” by the legal profession. [2]
The SPC required all the courts nationwide to understand and apply the minutes, though at the same time, it also stressed that the minutes were not judicial interpretation, and, therefore, they could not be invoked in the judgment. However, the judges can conduct reasoning based on the minutes. This is a typical example of how the meeting minutes take effect in Chinese courts.
The Ninth Civil Meeting Minutes has 12 sections and 130 clauses, covering most areas of civil and commercial trials such as issues related to company, contract, guarantee, finance, bankruptcy, etc. [3]Therefore, upon its publication, Chinese judges and lawyers rushed to study its content and have produced many articles for the interpretation thereto.
II. Notices and opinions
Judicial documents issued by the SPC with the name of “notices” or “opinions” also have a great influence on courts nationwide. Meeting minutes are the rules for specific legal issues, while “notices” and “opinions” are the principles embodying the SPC’s judicial policy, i.e., the SPC’s tendentious opinions on specific areas in a specific period of time.
These notices and opinions encourage judges to make decisions, or local courts to explore new mechanisms based on their attitudes. The SPC will sometimes formulate official judicial interpretation based on the judicial practice after these documents are published.
For example, in 2015, the SPC promulgated the “Several Opinions on Providing Judicial Services and Safeguards for the Construction of the ‘Belt and Road’ by People’s Courts” (关于人民法院为“一带一路”建设提供司法服务和保障的若干意见), reflecting the SPC’s attitude towards foreign-related civil and commercial litigation. According to the Opinions, the SPC encourages local courts to recognize and enforce foreign judgments. After that, Chinese courts have made many breakthroughs in recognizing and enforcing foreign judgments. As far as we know, the SPC is also drafting judicial interpretation on the same issue.
III. Speeches or articles by the SPC leaders
The speeches at the meeting, the Q&A at the press conference or the articles of the SPC leaders, if published on the SPC’s website or journal, will also become judicial documents with a certain guiding value for courts nationwide.
The leaders mentioned above usually include the SPC’s president and vice presidents, full-time members of the adjudication committee, directors and deputy directors of various trial divisions, etc.
The publications for these judicial documents usually refer to “People’s Judicature” (人民司法), “Journal of Law Application” (法律适用), “People’s Court Daily” (人民法院报), etc. Many of my posts published on CJO have made reference to articles from these publications.
It is worth noting, however, that these speeches or articles have far less influence on judges than minutes, notices and opinions. Therefore, with reasonable grounds, the judges don’t have to adopt the opinions in these speeches or articles.
[1] 黄韬：“最高人民法院的司法文件：现状、问题与前景”，《法学论坛》2012年第4期。
[2] 《全国法院民商事审判工作会议纪要》，https://www.chinacourt.org/law/detail/2019/11/id/149992.shtml
[3] 最高人民法院民二庭负责人就《全国法院民商事审判工作会议纪要》答记者问，https://www.chinacourt.org/article/detail/2019/11/id/4638097.shtml
Photo by Jennifer Chen(https://unsplash.com/@jnnfrchn) on Unsplash
Contributors: Guodong Du 杜国栋
