Judicial Interpretation and the Socialist Core Values

Jiang Qibo lists the following areas for new or amended judicial interpretations. The categories are:

1 . The category of patriotism, dedication and harmony

• Right to reputation and the right to honor to include better protection for heroes and martyrs. Amending these judicial interpretations had been expected, because the Heroes and Martyrs Protection Law was passed in May this year and special protection has been given to heroes and martyrs in the civil code;

• Amending and improving judicial interpretations related to the Marriage Law and family law. This is an area in which the Chinese society is in transition. The #metoo movement has come into China in its own way and there is greater acceptance of the LGBTQ movement in comparison to 10 or 20 years ago. But it is unclear how the SPC will come out on these issues. For a non-official and insightful update on the state of Chinese law in this area, Professor Yang Lixin of Renmin University (formerly an SPC judge) has succinctly analyzed the historical and current state of Chinese family law and important issues that needs to be addressed, including issues like children born out of wedlock, same-sex marriages wills, surrogacy, etc. Another area related to family law mentioned is improving the systems for trying family-related cases. These reforms are currently being led by Justice Du Wanhua;

• Improving the legal protection of juveniles, especially in cases related school bullying, etc. The SPC has been doing research on improving juvenile law and preventing school bullying for several years;

• Amending/improving labor dispute judicial interpretations. These will fill in the apparent holes in current labor legislation and judicial interpretations, as the courts has seen a significant increase in the number of labor law cases in recent years.

2 . The category of equality, justice, democracy and rule by law:

• Improving judicial interpretation of relevant procedural laws to protect property rights, especially nonpublic property, in criminal law cases. Property protections are inadequate, and recent developments in China have seen greater use of confiscation procedures;

• Improve the rules for trying property condemnation cases, to better safeguard the legitimate rights and interests of property owners;

• Issue judicial interpretations on the applicable legal issues in the trial of personal information disputes and to protect the right to personal information. A judicial interpretation on hearing disputes over the use of personal information which will be linked to civil code is currently being drafted, and this will likely have implications on individuals and entities both domestic and foreign; and

• Improving judicial interpretation of crimes involving wild animals and protected plants.

3 . In the category of justice, friendship and cooperation are the following:

• To introduce standards on the interpretation on self-defense and to encourage legitimate defense and to protect the interest of those who act courageously. This comes in light of several recent cases in China, such as the incident in Kunshan, which has generated public outrage; and Revising and improving the SPC's 2016 policy document on judicial legal assistance on legal aid as arranged by the courts.

4 . On setting out further details to the broad principles in the General Part of the Civil Code

• Revising and improving judicial interpretation of contract law;

• Amending the judicial interpretations on the criminal punishment of the production and sale of fake and inferior goods;

• Amending the judicial interpretation on food and drug safety crimes;

• Judicial interpretation for criminal punishment for fraudulent litigation which was just released; and

• Improving rules on hearing cases in which the government is a contracting party, and issuing a judicial interpretation in a timely manner.

5 . On prosperity, creativity, openness and the environment:

• Amending the judicial interpretation on agriculture related cases and to provide services for rural revival;

• Amending real estate related judicial interpretations;

• Amending judicial interpretations in relation to financial crimes and financial disputes as a measure to safeguard national financial security;

• Amending the judicial interpretations on bankruptcy law;

• Improving judicial interpretations related to intellectual property law (see more below);

• Amending the judicial interpretations related to environmental protection; and

• Amending the judicial interpretations on maritime trade and other maritime matters.

INCORPORATING SOCIALIST CORE VALUES IN INTELLECTUAL PROPERTY LAW JUDICIAL INTERPRETATIONS

Intellectual property rights are an important focus to China as it seeks to become a global technology leader.

The SPC will look into punitive damages for patent, copyright and other IP infringement so that, in serious cases, punitive damages can be imposed and the infringer can be held responsible for the costs to the rights holder. If there is no amendment to the current legislation, they will consider to issue rules so that damages will be based on the market value of the intellectual property.

The judicial interpretations will also improve the coordination between administrative and judicial enforcement of IP rights; it will work on guidance on civil cases that arise because of monopolistic conduct; increased protection of plant species; look into new issues related to unfair competition cases, also in trade-secret cases, and new issues related to civil trademark disputes; research evidence issues in IP cases, look into having IP technical investigators involved in litigation; research jurisdiction in IP and unfair competition cases and look to introduce preliminary preservative measures in IP cases.

HOW TO UNDERSTAND THIS PLAN?

As explained above, it appears that the SPC is both “serving the greater situation” by implementing in the courts the party's plan to integrate socialist core values in plans to legislate and amend legislation while at the same time seeking to deal with many of the difficult legal issues that it faces.

The SPC's approach to implementing the party's plan was to pull together all the demands and recommendations regarding drafting judicial interpretations—some in party documents, others in recommendations from the National People's Congress (NPC) Standing Committee, (presumably its Legislative Affairs Commission), proposals from NPC and CPPCC delegates, a collation of proposals concerning judicial interpretations from the lower courts, plus the needs of the courts (from the SPC's perspective) and the SPC's other drafting commitments.

WILL THE PLAN BE FULLY IMPLEMENTED BY 2023?

According to Jiang Qibo, the plan requires the SPC to draft, review and improve about 100 judicial interpretations over the next five years. The areas listed in the plan will be given priority in the SPC's annual plans for drafting judicial interpretations. He noted that flexibility exists to address critical issues for which the Party and state authorities require judicial interpretation drafting.

WHAT DOES THE PLAN MEAN FOR THE INTERNATIONAL BUSINESS COMMUNITY?

Many of the judicial interpretations listed above have the potential to affect those operating businesses, investing or doing business with China. Among those are the interpretations on intellectual property law, labor law, contract law, real estate law, food and drug safety law, and product quality law. It is also unclear which of these will be released for public comment or sent to chambers of commerce for soft consultation.

Susan Finder is the Distinguished Scholar in Residence at the School of Transnational Law of Peking University (Shenzhen). Susan blogs her observations on the Supreme People's Court at Supreme People's Court Monitor.