Superme courts in transition in china and the west

TheStanding Committee of the National People’s Congress exercises the power to electand remove from office the President of the Supreme People’s Court Chapter III,Section 1, Article 63, a

Ius Gentium: Comparative Perspectives on Law and Justice 59

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Ius Gentium: Comparative

Perspectives on Law and Justice

Volume 59

Series editors

Mortimer Sellers, University of Baltimore

James Maxeiner, University of Baltimore

Board of Editors

Myroslava Antonovych, Kyiv-Mohyla Academy

Nadia de Araújo, Pontifical Catholic University of Rio de JaneiroJasna Bakšic-Muftic, University of Sarajevo

David L Carey Miller, University of Aberdeen

Loussia P Musse Félix, University of Brasilia

Emanuel Gross, University of Haifa

James E Hickey Jr., Hofstra University

Jan Klabbers, University of Helsinki

Cláudia Lima Marques, Federal University of Rio Grande do SulAniceto Masferrer, University of Valencia

Eric Millard, West Paris University

Gabriël A Moens, Curtin University

Raul C Pangalangan, University of the Philippines

Ricardo Leite Pinto, Lusíada University of Lisbon

Mizanur Rahman, University of Dhaka

Keita Sato, Chuo University

Poonam Saxena, University of Delhi

Gerry Simpson, London School of Economics

Eduard Somers, University of Ghent

Xinqiang Sun, Shandong University

Tadeusz Tomaszewski, Warsaw University

Jaap de Zwaan, Erasmus University Rotterdam

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Cornelis Hendrik (Remco) van Rhee

Yulin Fu

Editors

Supreme Courts in Transition

in China and the West

Adjudication at the Service of Public Goals

123

ISSN 1534-6781 ISSN 2214-9902 (electronic)

Ius Gentium: Comparative Perspectives on Law and Justice

ISBN 978-3-319-52343-9 ISBN 978-3-319-52344-6 (eBook)

DOI 10.1007/978-3-319-52344-6

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Introduction 1C.H (Remco) van Rhee and Yulin Fu

The Chinese Supreme People’s Court in Transition 13Yulin Fu

The Supreme Court of the United Kingdom: A Selective Tribunal

with the Final Say on Most Matters 37Neil Andrews

From Courts of Appeal to Courts of Precedent—Access

to the Highest Courts in the Nordic Countries 53

Jørn Øyrehagen Sunde

The Supreme Cassation Court of the Netherlands:

Efficient Engineer for the Unity and Development of the Law 77R.R Verkerk and C.H (Remco) van Rhee

Civil Cassation in Spain: Past, Present, and Future 97Marco de Benito

Squaring the Circle: Individual Rights and the General

Interest Before the Supreme Courts of the German-Speaking

Countries 131Tanja Domej

The End of Cassation in Chile? Recourse to the Chilean

Supreme Court in Civil Matters 149Pablo Bravo-Hurtado

The French Court of Cassation: On the Threshold

of a Quiet Revolution? 175

Frédérique Ferrand

v

Changing Faces of Post-socialist Supreme Courts: Croatia

and Slovenia Compared 207

A Uzelac and Aleš Galič

The Italian Supreme Court of Cassation: Of Misnomers

and Unaccomplished Missions 229Elisabetta Silvestri

C.H (Remco) van Rhee and Yulin Fu

Abstract When can a court be classified as a supreme court? This question is rarelyasked in discussions about supreme courts, which is surprising Very often it isassumed that courts high up in the judicial hierarchy that produce influential case lawcan be classified as such, but obviously more is needed if one uses the notion

‘supreme’ This introduction discusses some of the additional requirements that need

to be met in order to classify a court as‘supreme’ as well as the access filters thathave been introduced in various jurisdictions in order to allow supreme courts toconcentrate on their main tasks The starting point of the discussion is the ChineseSupreme People's Court in relation to a selection of Western supreme courts

1 The Definition of a Supreme Court

When can a court be classified as a supreme court? This question is rarely asked indiscussions about supreme courts, which is surprising see however Yessiou-Faltsi(1998) Very often it is assumed that courts high up in the judicial hierarchy thatproduce influential case law can be classified as such, but obviously more is needed

if one uses the notion‘supreme’ For the purposes of the present volume, a courtcan be described as a‘supreme court’ if:

1 its main task is deciding individual cases according to rules of procedure by way

of a judgment;

2 its judgments are not subject to reconsideration by another court of law oranother authority, i.e if its decisions are final and cannot be attacked or sub-mitted to be reconsidered elsewhere;

C.H (Remco) van Rhee ( &)

Faculty of Law, Maastricht University, Bouillonstraat 1, 6211 LH Maastricht, Netherlands e-mail: remco.vanrhee@maastrichtuniversity.nl

Y Fu

Peking University School of Law, 5 Yiheyuanlu, Haidian District, Beijing 100871, China e-mail: fuyulin65@126.com

© Springer International Publishing AG 2017

C.H (Remco) van Rhee and Y Fu (eds.), Supreme Courts in Transition

in China and the West, Ius Gentium: Comparative Perspectives

on Law and Justice 59, DOI 10.1007/978-3-319-52344-6_1

1

3 its judgments are highly authoritative in the sense that they are not only aimed atproviding justice in an individual case but interpret and/or clarify the law,provide for the unity of the law and/or shape the development of the law.

1.1 Deciding Individual Cases

Thefirst element of the definition concentrates on the characterization of an tution as a court of law A court of law decides cases by way of a judgment(adjudication) and in order to do so follows an established procedure If we take thiselement of the definition into consideration, we must conclude that all of the supremecourts discussed in this volume are indeed courts of law since they decide individualcases according to a set procedure However, the additional tasks of supreme courtsare sometimes considerable The Supreme People’s Court of China is a goodexample Apart from administering justice both atfirst instance and on appeal (as asecond instance), examples of the additional tasks of the court are as follows

insti-1 Together with the Standing Committee of the National People’s Congress andthe Supreme People’s Procuratorate, the Supreme People’s Court is responsiblefor issuing binding interpretations of the law These can be issued in individualcases (in which event they are called, in a manner which brings to mind Romanlaw,‘reply’) or have a more general character Nearly every Chinese statute has

a corresponding general judicial interpretation issued by the Supreme People’sCourt Although the hierarchy of a judicial interpretation is lower than that oflaw, in practice it is almost as effective as law Here we have a task of theSupreme People’s Court outside the area of the adjudication of individual cases

2 The Supreme People’s Court supervises the lower courts As is stated in thechapter on China,‘As a political organ and for the administration of justice, theSupreme People’s Court strongly influences the lower courts through its regu-lations in respect of policy relating to the justice system, the assessment of courts,and judicial reforms.… The Court applies the laws and implements the policiesand orders issued by the National People’s Congress.’ Obviously, this task is notsituated in the area of adjudication It can be qualified as a political task

3 Where the court handles petitions and letters of complaint about the publicauthorities relative to litigation (she su xin fang), this cannot be qualified asadjudication in the strict sense either

4 The court is responsible for the selection and publication of so-called ‘guidingcases’, a task that is also situated outside the area of adjudication in individual cases.These guiding cases can be cases that have been decided by the Supreme People’sCourt itself or by lower courts Guiding cases are very significant since courts at alllevels of the Chinese judicial hierarchy should refer to these cases when they aretrying similar cases The system has been characterized as a‘precedent system withChinese character’ but it is obviously different from a system in which the rulings ofthe supreme court themselves serve as (binding) precedents

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To what extent is the Supreme People’s Court where it concerns the first definingelement different from the supreme courts that follow Western models (the simi-larities with the supreme courts of the Socialist Federal Republic of Yugoslavia asdescribed in the chapter on Croatia and Slovenia in this volume should be noted)? Itseems that the difference does not so much concern the additional tasks performed

by the Chinese court, but the type and number of the additional tasks the courtperforms For example, due to a strict separation of powers in Western countries,supreme courts are not allowed to act as political organs (at least, not in theory).Politics is often kept at a distance, which also appears where in various Westerncountries traditional tasks of the Ministry of Justice have been transferred toCouncils for the Judiciary These stand between the ministries and the courts andare in charge of, e.g., finances, court staff, court administration and court infras-tructure (sometimes the Council for the Judiciary is only responsible for the lowercourts, as in the Netherlands, or there is no such Council, as in Chile, where thesupreme court exercises these powers, although not as a political organ) TheseCouncils are conceived as non-political bodies Furthermore, the number of tasksoutside the domain of strict adjudication seems to be rather extended at the SupremePeople’s Court Most of the Western supreme courts have a less extensive number

of tasks outside the sphere of adjudication and this allows them to concentrate onthe uniform interpretation and development of the law through case law sensustricto It should be mentioned here, however, that some Western supreme courts(e.g in France and the Netherlands) have been given the task to answer preliminarylegal questions of lower courts and in this way they also influence the uniforminterpretation and development of the law outside the sphere of strict adjudication

1.2 Final Judgments

The second element of the definition of a supreme court implies that the court issuesthe last and binding decision on the matters in dispute If we take this element intoconsideration, none of the courts discussed in the present volume can be classified

as‘supreme’

Let usfirst consider the Supreme People’s Court From a Western perspective,the classification of this court as a supreme court is problematic First of all, thecourt is answerable to the National People’s Congress and its Standing Committee.This means that the court does not act autonomously, but is subject to politicalbodies or powers Obviously this is not problematic from a Chinese perspective,since a separation of powers in the Western sense is absent and this is in line withthe leading political ideas of the country

Another reason why the Supreme People’s Court’s (ordinary) judgments are notreallyfinal is the existence of the judicial supervision procedure by which cases thathave been decided by way of afinal judgment and have become res judicata can bereopened This procedure seems to be related to the procedure of Nadzor thatexisted in the Soviet Union and remnants of which can still be found in the Russian

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Federation and some former Eastern Bloc states Nadzor is found to be problematic

by the European Court of Human Rights (Ryabykh v Russia, Application no.52854/99, 24 July 2003) In China, the judicial supervision procedure can be started

on request of the parties, on the basis of an order of the adjudication committee ofthe court that made theflawed decision, and by way of a complaint of the SupremePeople’s Procuratorate (see in this context also the chapter on Croatia and Slovenia

in the present volume where the Soviet-style supervisory review пpoтecтпpoкypopa в пopядкe нaдзopa is discussed), and its outcome directly binds theoriginal parties to the action During the last decade or so, the Supreme People’sCourt has concentrated on judicial revision proceedings, something that is facili-tated by the fact that the Court has succeeded in reducing the number of ordinaryappeals that are brought before it In these cases, of course, it can be claimed thatthe court has the last say in matters, but its ordinary decisions are never completelyfinal due to the existence of the judicial supervision procedure

Finality is also a problem at the Western supreme courts discussed in this volume.This is not so much the result of the fact that in some jurisdictions the public prose-cutor may initiate cassation in the interest of the uniform application of the law Afterall, the outcome of such proceedings does not affect the original parties to the actionand is only relevant for future cases It is more the result of the fact that for manyWestern jurisdictions discussed in this volume there is the possibility tofile a con-stitutional complaint against the rulings of the supreme court with the national con-stitutional court The situation is different in the Netherlands and the United Kingdom,which do not know constitutional review nor a constitutional court It may also bedifferent in Switzerland and the Scandinavian jurisdictions discussed here, sinceconstitutional review in these jurisdictions is not the domain of a separate court but isone of the tasks of the supreme court itself However, even for these jurisdictions there

is the European Court of Human Rights in Strasbourg (Council of Europe MemberStates) and the European Court of Justice (European Union Member States) Althoughthese courts cannot rule on all aspects of the cases brought before them (the formerbeing limited to human rights complaints based on the European Convention onHuman Rights and the latter to issues of EU law and answering preliminary questions),the mere possibility of some kind of scrutiny of a ruling of the national supreme court

by a different court renders the epithet‘supreme’ problematic

1.3 Authoritative Judgments

The last defining element in the definition of a supreme court is that it issuesjudgments that are highly authoritative These judgments are meant to guard theunity of the law and to shape the development of the law This element of the

definition is also problematic for several supreme courts discussed in this volume

As can be read in the chapter on China, in many cases the Supreme People’sCourt may function as an ordinary court in the sense that it may hear cases atfirstinstance (which never happens) and on appeal, and in both instances it is not limited

to a consideration of points of law: it is also a court of facts On appeal it needs tofully review the factual and legal issues of the action and it may accept newevidence including the interrogation of new witnesses Even though the SupremePeople’s Court has jurisdiction over cases that have a major impact on the wholecountry and cases that the court deems it should adjudicate itself, its case law is notmore authoritative than the case law of lower courts It seems that at least in the area

of adjudication the court concentrates on providing justice in individual cases,whereas the interpretation and/or clarification of the law, the unity of the law andthe development of the law takes place outside the area of strict adjudication.The supreme courts according to the Western models perform their tasks inrespect of the interpretation and/or clarification, unity and development of the lawtraditionally in the area of adjudication For some of the Western courts, however,serious difficulties arise due to their extraordinary caseload (the Italian Court ofCassation is the most extreme example) which hinders these courts in concentrating

on the interpretation and/or clarification, unity and development of the law.Overburdened supreme courts usually only succeed in providing justice to indi-vidual litigants (with considerable delays), and the large number of cases means theodds are not very high that their judgments will become leading The sheer size ofthe workload of the courts even has the effect that their case law is sometimescontradictory It is this aspect of supreme courts that merits attention, and in fact inall of the jurisdictions discussed in this volume (even in Italy, but without muchsuccess) measures have been taken to make the workload of the court more man-ageable in order to allow it time and resources to produce authoritative case lawaimed at the interpretation and/or clarification of the law, the unity of the law andthe development of the law These measures will be the subject of the next section

of this introduction

2 Access to the Supreme Court

2.1 Tasks of the Supreme Court

The supreme courts discussed in the present volume are, roughly speaking, allottedtwo tasks In thefirst place they offer legal protection to individual litigants; and inthe second place they have a more public function where the interpretation and/orclarification of the law, the unity of the law and the development of the law isconcerned In some jurisdictions, for example Italy and Croatia, thefirst task seems

to prevail, whereas in other jurisdictions (the UK is the best example) the secondtask prevails In some jurisdictions a choice between the two tasks seems to beproblematic, for example in the German-speaking territories In Mainland China thesituation is rather diffuse, and it seems that in adjudication it is the task of the court

to provide justice in individual cases, whereas especially in its non-adjudicatorytasks the Supreme People’s Court seems to concentrate on interpretation and/orclarification of the law, the unity of the law and the development of the law

2.2 United Kingdom

Supreme courts that are restrictive in the issues or cases that they accept forscrutiny usually issue judgments that are authoritative and significant beyond thecase at stake These courts cannot be viewed as just another instance for individuallitigants to obtain justice The champion in this respect is the youngest court that isdiscussed in this volume, the Supreme Court of the United Kingdom, a court thatstarted its work in 2009 and that currently serves a population of ca 64 millionpeople Even though the court is young, it has a long tradition since it replaced and

in many respects copied the role of the Appellate Committee of the House ofLords The UK Supreme Court is not restricted to points of law: it may deal withboth factual and legal questions It has a total of twelve judges (including thePresident) who usually sit in panels of different numbers of judges according to theimportance of the case The court controls its caseload with the help of a system ofleave to appeal This system originated in 1934 and is currently known as ‘per-mission to appeal’ As appears from the contribution on the UK Supreme Court inthis volume, permission to appeal is only granted if the case ‘raises an issue ofpublic or other special importance’ When permission to appeal is refused ‘for-mulaic’ reasons suffice, and this allows the court to concentrate its time and energy

on the small number of cases that pass the accessfilter (ca 60 cases per year; themajority of these are civil cases) The judgments of the court form bindingprecedents, although the court may overrule itself The judgments themselves arelengthy, something which is also the result of the fact that dissenting and con-curring opinions are included

The other courts discussed in the present volume deal with considerably largernumbers of cases This is due to the fact that these courts often have weaker accessfilters than the selection mechanism used at the Supreme Court of the UnitedKingdom Apart from systems of leave to appeal and the possibility to dismissmotions for leave without giving reasons or with only providing‘formulaic’ rea-sons, we will encounter a variety of other methods of keeping the caseload of thesupreme court under control Sometimes access filters do not work or are evenabsent due to constitutional constraints, and what happens in these cases is illus-trated foremost by Italy and its supreme cassation court

Let usfirst have a look at some supreme courts that just like the UK SupremeCourt are able to control their caseloads well In this volume the obvious examplesare the supreme courts of the Nordic countries and the Netherlands These supremecourts are followed by a selection of other supreme courts, roughly in an orderwhich is based on an impression as to how well these courts are able to managetheir caseload, provide uniformity in the law and guide the development of the law

It is clear that Italy should be placed at the bottom of this list

2.3 Nordic Countries

The supreme courts of the Nordic countries all deal with both factual and legalquestions (they are not courts of cassation or revision) The countries concerned areIceland (9 judges on the Supreme Court; the country has ca 323,000 people),Sweden (16 judges; ca 10 million people), Denmark (19 judges; ca 6 millionpeople), Finland (19 judges; ca 6 million people) and Norway (20 judges; ca

5 million people) The relatively small number of judges (perhaps with theexception of Iceland when compared with the size of the population; this is mostlikely a result of the fact that for historical reasons the Icelandic Supreme Court isactually a court of appeal dealing with cases at second instance) is due to thesuccessful accessfilters which have been put in place at these courts These filtersallow the judges to concentrate on issues that matter Only the Icelandic SupremeCourt uses a quantitative criterion (the value of the disputed object is decisive),whereas the Swedish, Finnish, Danish and Norwegian supreme courts use a qual-itative criterion The central question is whether the case can serve as a precedentfor future cases In Sweden, whether or not a case passes the accessfilter is decided

by one or 3 judges, in Finland by 2 or 3 judges, in Norway by 3 judges and inDenmark there is a special board of 7 members assisted by 15 clerks who decide onthe matter The resulting number of civil cases decided by the supreme courts of theNordic countries on a yearly basis is as follows: Sweden 29, Finland 75, Norway

79, Iceland 205 and Denmark 224

2.4 Netherlands

In the Netherlands, a medium-sized European country of ca 17 million people, thesupreme cassation court has 36 judges who sit in panels of 5 or 3 judges The civildivision has 11 judges and these judges handle ca 500 civil cases per year Since

1986 cases that do not qualify as complicated are decided by a panel of threejudges Although judgments are given by the panel, the legal questions at stake can

be discussed by all members of the division, either in writing or orally eachThursday In this way divergence between the panels can be prevented The courtgets independent advice in each case from the Procurator-General and hisAdvocates-General, and this guarantees that the various aspects of the case are wellresearched There is a legal research bureau attached to the court which assists thejudges, the Procurator-General and the Advocates-General Cases can be remitted

as was usual practice in the French cassation model, but they can also be decided bythe court itself, which may be more efficient in several cases Although there is noleave requirement, access filters are: (1) dismissing a case which is obviouslyunfounded without a reasoned judgment and (2) the selection of cases at the gate Inthe latter case, cassation appeals that are not fit for cassation are identified andsubsequently dismissed by a panel of three judges Otherfilters are a specialized

supreme court bar advising on the suitability of a case for cassation and the liminary rulings on legal questions posed by the lower courts that the DutchSupreme Court may provide.

pre-2.5 Spain

The number of cassation appeals decided on the merits in Spain, a country of ca

47 million people, is ca 800 per year Real accessfilters did not exist until 2001.Since that date there is a threshold of 600,000 euros above which cassation appealsare granted as of right Cassation appeals are also granted as of right where theseproceedings concern the protection of constitutional rights Apart from these cases,appeal in cassation is only available in proceedings when the case exhibits what iscalled ‘cassational interest’ Such interest only exists if the judgment a quo(1) contradicts the Supreme Court’s case law, (2) rules on points on which the caselaw from the provincial courts is contradictory, and (3) applies a recent statute Theintroduction of this access filter has reduced the number of cases at the SpanishSupreme Court considerably, allowing the court to concentrate on cases that have apublic interest The so-called Technical Cabinet, a collegial body of judges andother jurists assisting the Court in granting or denying leave to appeal, also helpsthe Court to function very efficiently

2.6 German-Speaking Countries

The German and Austrian supreme courts are courts of revision (Germany has ca

80 million people; Austria has ca 9 million) The German Supreme Court has 92judges for civil matters In Austria, 41 judges hear civil matters The Swiss FederalCourt (Switzerland has ca 8 million people) is smaller, it only has 11 full-timejudges and 5 part-time judges Both the German and the Swiss supreme courts have

a significant number of additional staff members who contribute to the judicial work

by preparing and drafting decisions Such additional staff is not present to a largeextent in Austria All of the courts deal with several thousands of cases per year Allthree courts have accessfilters In Switzerland, the value in dispute is relevant andabove that value the litigants have access to the court as of right Below the relevantvalue litigants only have access where a fundamental question of law is at stake orwhere the case concerns the violation of constitutional rights In Austria, there is aminimum value under which no appeal is allowed For higher amounts permission

to appeal is necessary, and above a certain value appeal as of right exists However,there is always the additional requirement that there should be a question of lawinvolved and that question should be of significant importance In Germany, themonetary thresholds have been abolished Access to the supreme court will begranted if there is a question of law of fundamental importance involved or if a

decision is called for in the interests of the development of the law or to ensure theuniformity of case law All courts are to some degree formally bound by their owndecisions; a bigger panel of judges is required where a court wants to depart from itsown case law.

2.7 Chile

Chile has ca 18 million people The Supreme Court of Chile is a cassation court.Currently, the court has 21 judges who sit in panels of 5 judges Beginning in the1970s the court witnessed an enormous increase in its caseload (up to that time thenumber of cases was ca 2‚000 on an annual basis) and in reaction the judges of thecourt started to interpret the admissibility criteria for cases in a very strict manner

In the 1990s two new access filters were proposed: cassation appeals should beexcluded when the case was manifestly unfounded and cases should not beadmitted when they were irrelevant for the proper interpretation and application ofthe law However, the latter access filter was declared unconstitutional by theConstitutional Court, because it was of the opinion that due to this accessfilter theequality of litigants before the law would not be safeguarded anymore Althoughsubsequently in criminal law and in labour law new access filters have beenintroduced, this is not the case in the area of civil law Currently, reforms are underdiscussion that would restrict access to the supreme court to cases of general interest(only cases which can serve as precedent or in which violations of constitutionalrights are at issue) When a cassation appeal is declared to be inadmissible, the courtissues a brief decision written by court assistants, and this obviously is an efficientway of dealing with such cases At the court a plenum is convened when a con-tradiction in the case law is argued

2.8 France

The French Cour de cassation has a total of ca 200 judges for a population of ca

66 million people and mainly renders decisions in civil matters (70 per cent of alldecisions) It has a workload of circa 25,000 civil cassation appeals per year, which

is perhaps not alarming but rather high when compared with some of the othersupreme courts in this volume Although there is no system of leave to appeal, thecourt can work rather efficiently for a number of reasons For example, panels ofonly three judges decide that a case is clear or that it is not based on serious groundsfor quashing the challenged decision When the panel of three judges decides thatcassation appeal is not admissible, no reasons for this decision need to be given inthe judgment The parties only receive a report drafted by a judge and on this basisthey may ask that the case be heard by the court There are also other features thatallow the court to work efficiently Amongst them are the continuing legal

education of lower judges so as to make them aware of the cassation technique, thepossibility for lower courts to ask preliminary legal questions of the Cour decassation, and a special cassation bar with cassation lawyers who can adequatelyadvise clients on the merits of their case Cases are decided by a chambre mixte orthe plenary assembly to resolve possible divergences in the case law of the differentdivisions of the court.

2.9 Croatia and Slovenia

The civil divisions of the supreme courts of Croatia (ca 4 million people) andSlovenia (ca 2 million) differ considerably as regards the number of judges: 8judges in the civil division in Slovenia and 28 judges in the civil division in Croatia.This reflects the relative success of measures to reduce the caseload of the SupremeCourt of Slovenia, and the failure of measures to do so at the Croatian SupremeCourt

The history of the courts of the two countries is rooted in the history of theadministration of justice at the highest level in the former Socialist Federal Republic

of Yugoslavia, to which both countries belonged until they declared their pendence in 1991 Before 1991, the role of the supreme courts in Yugoslavia can, to

inde-a certinde-ain extent, be compinde-ared to the role of the Supreme People’s Court in China inthat‘the public function of the supreme courts was … constitutionally linked only

to an activity that was closer to (quasi)legislation than to adjudication Generalopinions of the supreme courts, binding for all judges who participated in theirpassing, were issued in an abstract manner, at departmental or plenary sessionsdifferent from the panels that had jurisdiction to rule in the concrete case.’ Theconstitutional changes introduced after the countries gained their independenceincluded‘the abandoning of the doctrine of unity of state power and (re)embracingthe doctrine of separation of powers, according to which judicial power forms aseparate branch of government, headed by the supreme court’

The supreme courts of Croatia and Slovenia are courts of revision (revizija),understood asfinal appeal on points of law and aimed at the uniform application ofthe law A system of leave to appeal without the need to state reasons for thedismissal of a motion for leave was considered to be the solution for the heavycaseload at the supreme courts of both countries The system of leave has indeedresulted in fundamental improvements in Slovenia, but in Croatia the ConstitutionalCourt declared that the absence of reasons in dismissals of motions for leave isunconstitutional As a result, considerable problems continue to exist at the supremecourt level in Croatia This is not the case in Slovenia, where the court is now

‘released from the obligation to state reasons for the rejection of motions for leave

to appeal’ The result is that the court can better concentrate on its public function asregards the uniform application of the law and the development of the law with arelatively small number of judges in the civil division of the court

2.10 Italy

The Italian Court of Cassation (Italy has ca 60 million people) deserves to bementioned as the last court in this introduction because it should not serve as amodel for any other supreme court It is a court that has a staggering 359 judgesplus 378 judges who, according to the author of the chapter on Italy, act as USSupreme Court clerks The court sits in panels offive judges There is a cassationbar of 60,000 (sic) attorneys Accessfilters do not exist, which is due to the fact thatthe Italian Constitution provides that litigants have access to the court as of right.This is based on the fact that the uniform interpretation of the law is a basiccondition to ensure the equality of citizens Ironically, however, due to its large sizethe Italian cassation court can hardly be called a court that guarantees the uniforminterpretation of the law, although it knows a so-called Sezioni Unite of nine judges

to decide cases if the case law of the court is not consistent Cases are declaredinadmissible when the judgment under review decided issues of law in accordancewith the Court of Cassation’s case law and it contains no elements to overrule, or ifthe ground for review is the Italian due process guarantee if such ground is man-ifestly unfounded

3 Final Remarks

This introduction has highlighted some of the differences and similarities betweenthe Supreme People’s Court of China and supreme courts that follow the Westernmodels of supreme courts, as well as the differences and similarities between aselection of Western supreme courts A major theme argued for all of these courts isthat they should be well equipped to give guidance to the development of the law(by way of precedents or by way of case law that is authoritative in another manner)and to provide for the unity of the law However, as regards how this should bedone, there is no unanimity

For China it is argued that there should be selection mechanisms where theprocedure of reopening cases (i.e the judicial supervision procedure) is concerned(a major task of the Supreme People’s Court at this moment, not to be comparedwith ordinary adjudication atfirst instance and on appeal) When selecting thesecases, the public aims of the administration of justice such as uniformity in theapplication of the law should be leading and not the aim of providing justice in theindividual case

The authors of the chapters on the Western-style supreme courts argue alongsimilar lines, although obviously not in regard to the procedure of reopening cases,

a technique that is considered to be problematic from the perspective of thefinality

of the administration of justice, as is demonstrated by the case Ryabykh v Russia ofthe European Court of Human Rights All of these authors discuss measures thathave been taken to allow the supreme court to deal with its existing caseload,

to reduce this caseload and to avoid divergences in the case law of the court(obviously, some measures may serve multiple goals).

Examples of measures to deal with the existing caseload are:

• smaller panels of judges to deal with certain subject matter;

• independent legal advice to the court from the ministère public or comparablebodies;

• assistance of support staff in legal research or in writing court decisions (e.g.legal research bureau in the Netherlands, Technical Cabinet in Spain);

• dismissing cases which are manifestly unfounded without a reasoned judgment.Examples of measures to reduce the caseload of the supreme court are:

• selection criteria based on public interest beyond the individual interests of thelitigants;

• applying existing selection criteria narrowly;

• increasing value-based thresholds (not preferred, since value does not reflectlegal importance);

• a specialized supreme court bar advising clients on the feasibility of their case;

• preliminary rulings on legal questions;

• continuing legal education of lower judges in order to prevent mistakes at lowercourts giving rise to appeal before the supreme court

Finally, divergences in case law at the supreme courts are avoided either byconvening all members or a bigger panel of the court to deal with problematicissues (Chambre mixte, Assemblée plénière, Sezioni Unite, plenum) or by a lessformal, weekly meeting for a discussion of legal questions with all the judges of adivision, either in writing or orally (Netherlands)

It is hoped that the present volume will provide ideas that will assist supremecourts in both the East and the West to remove unmanageable caseloads and, as aresult, they will be better able to assist in the interpretation and/or clarification ofthe law, to provide for unity of the law and to give guidance to the development ofthe law After all, it is these tasks which a real supreme court, especially but notonly if it serves as a third instance in the judicial hierarchy, should perform

Reference

P Yessiou-Faltsi (ed.), The Role of the Supreme Courts at the National and International Level, Thessaloniki: Sakkoulas, 1998, and especially the general report by J A Jolowicz, pp 37 –63

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The Chinese Supreme People’s Court

in Transition

Yulin Fu

Abstract In China, the court system consists of four-level ordinary courts that lie

at the core of the system, special courts and military courts The next higher court tothe first instance court has appellate jurisdiction as the second instance, and thedecision by this court isfinal and cannot be appealed a second time, which explainsthe so-called‘two-instance trial system’ in China The Supreme People’s Court sits

at the apex of the court system pyramid Its functions fundamentally focus on trying

influential cases, formulating interpretations of the law and regulatory documentswithin the scope of its official duties as well as supervising lower levels of courts Inrespect of adjudication, the Supreme People’s Court specifically concentrates onscreening petitions for reopening proceedings and on trying such proceedings Thereopening proceedings aim to correct substantial and significant procedural flaws ofjudicial decisions With regard to its interpretive function, the Court interprets thelaw and its‘judicial interpretations’ have binding effect for all courts throughoutthe country From the political perspective, with regard to its supervisory function,the Supreme People’s Court strongly influences the lower courts through its reg-ulations in respect of policy related to the justice system and judicial reform, so as

to achieve a better administration of justice

1 Overview

1.1 The Four-Level and Two-Instance

Court System in China

The Chinese court system consists of ordinary courts, special courts, and militarycourts (as shown in Fig.1) At the core of the structure of the Chinese court systemare the ordinary courts, which exist at four different levels: the basic people’s

Y Fu ( &)

Peking University School of Law, 5 Yiheyuanlu,

Haidian District, Beijing 100871, China

e-mail: fuyulin65@126.com

© Springer International Publishing AG 2017

C.H (Remco) van Rhee and Y Fu (eds.), Supreme Courts in Transition

in China and the West, Ius Gentium: Comparative Perspectives

on Law and Justice 59, DOI 10.1007/978-3-319-52344-6_2

13

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Fig 1 The Chinese court system

courts, the intermediate people’s courts, the high people’s courts, and the SupremePeople’s Court The ordinary courts sit, respectively, in county-level administrativeregions, municipal administrative regions, provincial administrative regions, and inthe capital Beijing The courts at each level have jurisdiction over criminal cases,civil cases, and administrative cases as court offirst instance The ‘jurisdiction bylevel of courts’, meaning a specific level of courts has original jurisdiction in acertain kind of case, depends on (in non-criminal cases) the amount of the claim andthe importance of the case The next higher court to the first instance court hasappellate jurisdiction as the second instance The decision made by this secondinstance court isfinal and cannot be appealed Thus, appeals are handled within twolevels of the court hierarchy, which is why the court system in China is referred to

as a‘two-instance court system’

The special courts are intermediate courts specialized in certain kinds of cases.Their establishment is generally authorized by the Supreme People’s Court inaccordance with civil procedural law At present, the special courts comprisemaritime courts, intellectual property courts, and railway transportation courts.These special courts are not established in every administrative region; instead, theyhave trans-regional jurisdiction over cases Their decisions may be appealed to thehigh court in the province where the special court sits As an ordinary court, thehigh court usually assigns cases from special courts to the adjudication divisionsthat are responsible for civil cases

Military courts are distinct from ordinary courts and have their own court system.The military court system has its own basic court (basic military court), intermediatecourt (military court of a certain military region or armed services branch), and highcourt (military court of the PLA (People’s Liberation Army))

In addition to the two-instance court system, China has a special procedureagainst legally effective decisions, which is called‘judicial supervision procedure’

or reopening of proceedings The high courts and the Supreme People’s Court hearmost cases of retrial and some appeals, while the basic courts and the intermediatecourts hear most of the cases atfirst instance

1.2 The Constitutional Position of the Supreme

People ’s Court

The Chinese Constitution establishes the Supreme People’s Court and the courtsystem It states,‘The people’s courts of the People’s Republic of China are thejudicial organs of the state’ (Chapter III, Section 7, Article 123); it describes thebasic structure of the judicial system (Article 124); it upholds the principle that allcases brought before the people’s courts are heard in public (Article 125); and itconfirms the independence of the people’s courts in the exercise of their judicialauthority (Article 126)

The Constitution declares that the Supreme People’s Court is the highest judicialorgan The Supreme People’s Court supervises the administration of justice by thepeople’s courts at various local levels and by the special people’s courts People’scourts at higher levels supervise the administration of justice by courts at lowerlevels (Chapter III, Section 7, Article 127) The Supreme People’s Court isresponsible to the National People’s Congress and its Standing Committee Localpeople’s courts at various levels are responsible to the organs of state authority thatcreated them (Article 128) The term of the President of the Supreme People’sCourt is the same as that of the President of the National People’s Congress ThePresident shall serve no more than two consecutive terms (Article 124) TheStanding Committee of the National People’s Congress exercises the power to electand remove from office the President of the Supreme People’s Court (Chapter III,Section 1, Article 63), appoint or remove from office, at the recommendation of thePresident of the Supreme People’s Court, the Vice-Presidents and judges of theSupreme People’s Court and members of its Judicial Committee (Article 67).Accordingly, the Supreme People’s Court is responsible to and supervised by theNational People’s Congress Thus the Court applies the laws and implements thepolicies and orders issued by the National People’s Congress In performing itsfunction of interpreting the law the Court cannot contradict any of these Since theConstitution does not confer on the Court the power to review constitutionality, ithas no authority to review any laws made by the National People’s Congress(Chapter III, Section 7, Article 128)

Just as the Supreme People’s Court is the highest judicial organ of the state so isthe Supreme People’s Procuratorate the highest prosecutorial organ of the state.Like the Court, but separately from it, the Supreme People’s Procuratorate isresponsible to and supervised by the National People’s Congress Both supremeorgans of the state legal system have the right to interpret the law, that is, to make

judicial interpretations; the interpretations made by the Supreme People’s Court arenot superior to those made by the Supreme People’s Procuratorate As the supremestate organ for legal supervision, the Supreme People’s Procuratorate has theauthority to lodge a protest with the Supreme People’s Court in accordance with theprocedures of legal supervision if it finds a definite error in a legally effectivedecision or order made by a people’s court at any level, including the SupremePeople’s Court The Supreme People’s Court is required to reopen the proceedingsafter receiving the protest from the Supreme People’s Procuratorate.

1.3 The Fundamental Function of the Supreme

People ’s Court

As the highest judicial organ of the state, the Supreme People’s Court supervisesthe administration of justice by the local people’s courts at various levels and by thespecial people’s courts It also formulates interpretations of the law and regulatorydocuments within the scope of its official duties

Cases that fall within the Court’s jurisdiction are as follows: (a) cases assigned

by laws and decrees to its jurisdiction and those which the Court itself considers itshould try as the court offirst instance; (b) cases of appeals and of protests lodgedagainst judgments and orders of high people’s courts and special people’s courts;(c) cases of protests lodged by the Supreme People’s Procuratorate in accordancewith the procedures of legal supervision; (d) examination and approval of all deathpenalty sentences, apart from those that should be adjudicated by the Courtaccording to law; (e) cases of state compensation that require the Court to make acompensation decision; and (f) penalties which are below the legally prescribedpunishment and thus need to be approved In addition to its trial responsibilities, theSupreme People’s Court oversees the uniform operations of all the courts in China.The Executive Board of the Supreme People’s Court manages, supervises, andcoordinates the massive number of enforcement cases throughout the country.Furthermore, as a political organ and for the administration of justice, theSupreme People’s Court strongly influences the lower courts through its regulations

in respect of policy relating to the justice system, the assessment of courts, andjudicial reforms

1.4 The Inner Structure/Departments of the Supreme

People ’s Court

The departments of the Supreme People’s Court include a docketing division, fivecriminal divisions, four civil divisions, one administrative division, one environ-mental resources division, one judicial supervision division, two circuit tribunals

(circuit divisions), as well as the office of compensation (for compensation to bepaid by the State), the executive board, the general office, the political department,the research department, the supervisory bureau, the bureau of foreign affairs, theinformation bureau, the bureau of judicial executive equipment, the party com-mittee, and the bureau of retired personnel There is a single president and 9vice-presidents, 13 presiding judges, 41 vice-presiding judges, and 179 ordinaryjudges (54 of them in the civil divisions).1

1.4.1 The Docketing Division

The functions of the Docketing Division are many and include the following:accepting and reviewing petitions and letters of complaint about the publicauthorities (‘ SHE SU XIN FANG’); hearing appeals against the decision of a court

to refuse to accept a case and against a decision that a court lacks jurisdiction; tryingcases that involve a dispute over jurisdiction;filing all the cases that the SupremePeople’s Court accepts; providing judicial aid; conducting case management of allcases before the Supreme People’s Court; organizing the court police; guiding thelower level courts in thefields of case filing, case acceptance, jurisdiction, settle-ment in the docketing stage, and case management; reviewing all the applications ofjudicial supervision against legally effective decisions or orders and transferringthem to the lower courts when the reopening of proceedings is needed; guiding thereview of the reopening of proceedings in the lower courts; and participating in theformulation of the Court’s interpretations of the law

1.4.2 The Criminal Divisions

The first, third, fourth, and fifth criminal divisions try cases involving crimes ofendangering public security; infringing on the rights of the person and the demo-cratic rights of citizens; infringing on property rights; encroaching on property;disrupting public order; and endangering the interests of national defense Thesecond criminal division tries cases involving the crimes of endangering nationalsecurity; undermining the order of the socialist market economy; graft and bribery;dereliction of duty; violation of duty by military personnel; and also crimesinvolving foreign affairs, Hong Kong, Macao, Taiwan, and overseas Chinese citi-zens Review of the death sentence is assigned to different criminal divisionsaccording to territorial jurisdiction

1 Website of the Supreme People ’s Court of the People’s Republic of China, Personnel in the Inner Departments of the Supreme People ’s Court (中华人民共和国最高人民法院网站, 最高人民法 院内设机构主要人员), available at: < www.court.gov.cn/jigou-fayuanbumen.htm l> (in Chinese) (last accessed on 2 May 2016).

1.4.3 The Civil Divisions

Thefirst civil division tries cases involving marriage and family, labour disputes,unjust enrichment, negotiorum gestio, real estate, neighbour relations, easement,rural land contract, contract and tort involving natural persons; it sets aside revo-cation of arbitration; and it guides the work of the divisions The second divisiontries cases involving contract and tort disputes between legal persons, and betweenlegal persons and other organizations; security; future goods; bills; companies;domestic bankruptcy; and applications for the setting aside of domestic arbitrationawards The third division tries intellectual property cases involving copyright(including that of computer software), trademark, patent, technical contract, unfaircompetition, right of scientific and technological achievements, and reconsideration

of intellectual property rights applications The fourth division tries cases involvingmaritime litigation; Hong Kong, Macao, Taiwan and related affairs that includecontract and infringement disputes between natural persons, and between legalpersons and other organizations; it reviews applications for setting aside, accepting,and enforcing international arbitration awards and judgments; and it reviews theeffect of arbitration clauses related to foreign matters

1.4.4 The Administrative Division

The Administrative Division tries administrative cases and administrative pensation cases; and it reviews the application of enforcement of administrativeorgans

com-1.4.5 The Judicial Supervision Division

The Judicial Supervision Division retries cases reopened in a supervision procedure(this does not include intellectual property and maritime cases)

1.4.6 The Trial Management Office

The trial management office was established on 23 November 2010 and its mainfunction is coordinating the entire trial management system and providing data andanalysis reports.2

2 < www.news.cn >, ‘The Supreme People’s Court Sets Up an Office of Trial Management’, 23 November 2010 ( 新华网, ’最高人民法院成立审判管理办公室’,2010年11月23日), available at:

< http://news.xinhuanet.com/2010-11/23/c_13619132.htm > (in Chinese) (last accessed on 2 May 2016).

1.5 The Judicial Committee of the Supreme People ’s Court

In accordance with the Organic Law of the People’s Courts of the People’sRepublic of China of 1954, the task of the Judicial Committee is to make use ofjudicial experience and discuss important or difficult cases and other issues relating

to the work of the judiciary Having experienced four amendments in 1979, 1983,

1986, and 2006, the Organic Law of the People’s Courts continues to confer on theJudicial Committee the fundamental status of a court and establishes democraticcentralism as the functioning mechanism of the committee As the only judicialorganization of its kind in China, the Judicial Committee has experienced criticismand reform since its establishment After continual reforms since 1990, the latestregulation affecting the committee is The Implementation Opinions on Reformingand Improving the Judicial Committee System of the People’s Court issued inJanuary 2010 by the Supreme People’s Court Article 4 of the regulation providesthat the Judicial Committee of the Supreme People’s Court shall perform the duties

of reviewing cases and supervising, administering, and guiding the judicial work,including: (1) deliberating on difficult, complicated, and important cases; (2) con-firming existing practice; (3) formulating interpretations of law and regulatorydocuments; (4) listening to work reports of the trial departments; (5) deliberating onand determining typical cases that have exemplary significance for the judicialwork; and (6) deliberating on other important issues concerning judicial work

1.6 The Judges of the Supreme People ’s Court

The current Chief Justice of the Supreme People’s Court is Zhou Qiang and theGrand Justice of the first rank is Shen Deyong, who is also the executivevice-president of the Supreme People’s Court There are 14 grand justices of thesecond rank The Organic Law of the People’s Courts of the People’s Republic ofChina provides that the Supreme People’s Court is composed of a president,vice-presidents, chief judges and associate chief judges of the divisions, and judges(Article 31) The Judges Law of the People’s Republic of China, issued in 1995 andamended in 2001, lists the qualifications of the judges of the Supreme People’sCourt (Article 9), which are the following: to have engaged in thefield of legalwork for at least two years in the case of graduates with law degrees from colleges

or universities, or graduates with degrees other than in law from colleges or versities but possessing professional knowledge of the law, and among whom those

uni-to assume the posts of judges of superior People’s Courts and of the SupremePeople’s Court shall have engaged in the field of legal work for at least three years;

or to have engaged in thefield of legal work for at least two years in the case ofthose who have master’s degrees or PhDs in law, or those who have master’sdegrees or PhDs other than in law but possess professional knowledge of the law.Additionally, the assistant judges of the people’s courts shall be appointed or

removed by the presidents of the courts where they work On average, there are

20–30 judges in every trial division In order to enhance the prestige of the Court inthe eyes of the public and increase the social influence of the Court, beginning in

1999 entrance examinations for judges were instituted After institutional turing, the administrative staff of the Supreme People’s Court declined by 10%,from 606 to 546 personnel; of this number 62.9%, or 340, are trial judges andassistant judges

restruc-1.7 History and Political Function

According to the official website of the Supreme People’s Court,

As the highest judicial organ of the People ’s Republic of China, the Supreme People’s Court takes safeguarding the Constitution as its task, insists on the principle of justice for the people, devotes itself to the foundation of society which the rule of law is, and conducts the judicial system with justice, ef ficiency, and authority The Supreme People’s Court has always been the loyal guardian of the Constitution through its respect for justice, its judicial interpretation function, its heedfulness of society, and its activities for enriching the prin- ciple of the rule of law.3

The Supreme People’s Court of the People’s Republic of China was established

on 22 October 1949 The court system at that time was designed for the majorpolitical tasks of the early years of the founding of the new China This initiated thetradition of considering major national political tasks as core tasks for the SupremePeople’s Court From that time on, the Court took up the work of reporting to thesupreme organ of state authority after hearing the reports from courts of all levelsand collecting trial data

Some legal scholars state, based on the annual work reports of the SupremePeople’s Court from 1950 to 2004, that the political function of the Court includesthree aspects: to serve the‘central work (tasks)’ of the Party; to realize the orga-nization of the national judges; and to promote the organization of the state andsociety.4The political function of‘to serve the central work’ is realized mainly bythe Court through the exercise of its powers of trial and judicial interpretation, butalso through its responsibility to report to the National People’s Congress and itsStanding Committee The shift in the central tasks of the Party has been reflected atthe Court by the shift in the centre of gravity of the trial and judicial policy.For example, from 1960 to 1976 the political task of the Supreme People’s Courtdid not only concern the trial of cases, but also the‘class struggle’ and the massmovement, which actually weakened and even destroyed the trial function of the

3 Website of the Supreme People ’s Court of the People’s Republic of China, Introduction to the

at: < http://www.court.gov.cn/jigou.html > (in Chinese) (last accessed on 15 June 2014).

4 See Yu ( 2006 ), Ji ( 2006 , pp 19 –20), Fu ( 2010 , pp 329 –332).

court.5In 1978, when the central tasks of the Party shifted to economic ment and a more open policy, the political task of the Court was adjusted andshifted to the trial of criminal, civil, and economic cases in order to maintain theregulation and stability of society and nurture theflowering of the economy At thesame time, attempts were undertaken to build up the uniform trial system by means

develop-of interpretation develop-of the law and the guiding case institution (see Sect.3.4).The Supreme People’s Court emphasizes and realizes its function with respect tothe organization of national judges and the promotion of the state and society in twoways, both of which are non-judicial The first is by the routine administrativemanagement of judicial work, such as the assessment of the achievement of thecourts, the evaluation of cases, and the professional training of judges Thus, theSupreme People’s Court has to be effective in the supervision and management ofthe lower courts For example, one typical model of administrative management ofjustice is the so-called traceability of case hearing processes This model divides theproceedings into several stages and points, sets relative targets based on the deadlinefor trials provided by law, the requirement of details, and the contents of proceduraloperations, and monitors, records, pushes forward, and tracks the entire process.The second is by judicial reforms, that is, by the so-called‘contingent gover-nance of relations’ Especially starting from the 1990s, the Supreme People’s Courthas published four‘Essentials of Reform of the People’s Courts for Five Years’ toreform the national courts, including itself, stressing the constitutional position ofthe Supreme People’s Court, its leadership status, and its powers of direction andsupervision so as to strengthen its role in monitoring the national courts and judicialunification At the same time, this reform movement has impacted the establishedstructure, making what one might call creative chaos.6All the same, by a series ofreforms, the Court has promoted the basic construction of the national courts andthe specialization of the judges, has strengthened the position of the court systemvis-à-vis the entire political structure and within social life, and has strengthened itsown leadership position in the court system

2 The Civil Adjudicative Function of the Supreme

People’s Court

The Supreme People’s Court has authority to try civil cases as a court of firstinstance, an appellate court, and a court for judicial supervision proceedings.According to legislation, the jurisdiction of the Supreme People’s Court is not

different from that of the high people’s courts, intermediate people’s courts, andeven basic people’s courts The civil adjudicative function of the Court can beunderstood by analysing the jurisdiction of each level of ordinary courts According

to the Civil Procedure Law, the basic people’s court shall have original jurisdictionover cases that are not within the jurisdiction of people’s courts at other levels; theintermediate people’s court shall have original jurisdiction over major casesinvolving foreign elements, and cases that have a major impact in the area of itsjurisdiction; the high people’s court shall have original jurisdiction over cases thathave a major impact in the areas of its jurisdiction; and the Supreme People’s Courtshall have jurisdiction over cases that have a major impact on the whole country,and cases that the Supreme People’s Court deems it should adjudicate itself(Table1)

2.1 Appeals Tried by the Supreme People ’s Court

As the basic system of Chinese civil procedure, the two-instance system means that

a case can only be tried by courts at two levels As the appellate court of the highpeople’s courts, the Supreme People’s Court tries all cases appealed from the highpeople’s courts The Supreme People’s Court does not have discretionary juris-diction over these appeals The appellate procedure applied by the Court is the same

as that applied by high people’s courts and intermediate people’s courts The scope

of adjudication includes factual and legal issues, the means of adjudication includeadjudication through trial (when there is new evidence that needs to be examined orwhen there are new facts that need to be found) and through a written hearing(when the appeal does not concern factual issues), and the result of adjudicationincludes mediation, judgment (upholding the original judgment or changing it), andorders (to remand the case for retrial or to grant the withdrawal of the case).Theoretically, appellate proceedings have two functions: supervision and providing

a remedy Therefore, the appeal to the Supreme People’s Court also has twofunctions The Court supervises the lower courts by examining whether theirfact-finding and application of the law are correct Such supervision not onlyencompasses the examination of the law that has been applied and its interpretation,and fact-finding of the lower court, but also the examination of the application ofthe law based on new fact-finding made by the Court itself Therefore, the SupremePeople’s Court needs to fully review the factual and legal issues in the appellatecase It can even accept new evidence and interrogate new witnesses forfact-finding

Table 1 Proceedings initiated and terminated by the supreme people’s court, 2010–2014

Such appellate proceedings cost so much time and effort that the SupremePeople’s Court is seriously distracted from its duty to resolve major legal disputesand unify interpretations of the law Furthermore, the changeability of facts makesthe Court’s fact-finding so uncertain that final judgments from the Court are oftenchallenged through judicial supervision proceedings, harming the finality andauthority of the judgments of the Court and adding more to the burden of reopeningproceedings From the start of this century, the overburdened Supreme People’sCourt has constantly tried to ease its caseload by changing the standard of itsoriginal jurisdiction For example, the Court increased the claim amount limits ofthe basic people’s courts and the intermediate people’s courts to allow them to trymore cases and thereby the high people’s courts to try fewer cases, hencedecreasing the number of appeals to the Supreme People’s Court However, whenmore important cases are pushed down to the basic courts where judges are lessprofessional and more easily influenced by local government, judicial quality is put

at risk More appeals and judicial supervision proceedings are initiated, addingmore burden to the courts In addition, using claim amount limits to control thenumber of cases tried by the Supreme People’s Court is not helpful in realizing itsspecial function of unifying interpretations of the law Cases concerning largeamounts of money will not necessarily be cases concerning complicated, important,difficult, or new legal issues, nor will they necessarily be cases concerning disputesover judgments

Therefore, after multiple attempts at adjusting the original jurisdiction of thebasic people’s courts and the intermediate people’s courts to control the number ofcases tried first by the high people’s courts and the number of appeals at theSupreme People’s Court, especially after the amendments of the Civil ProcedureLaw in 2007 and in 2012, the civil adjudicative function of the Supreme People’sCourt was used for the screening of petitions for reopening proceedings and on thetrial of such proceedings—and as a result, the number of second instance cases hasdecreased dramatically

2.2 Reopening Cases by Way of the Judicial

Supervision Procedure7

Legislation characterises the judicial supervision proceedings as an exceptional andspecial remedy against judicial decisions that have become legally effective If thedecision has a substantialflaw regulated in law, the proceedings for reopening thecase are conducted to effect a correction There are three kinds of motion forjudicial supervision proceedings: a petition from the parties, a protest from thepeople’s procuratorate, and an order from the adjudication committee of the court

7 See Fu ( 2003 , pp 591 –593) (傅郁林:’论最高法院的职能’, 《中外法学》, 2003年第5期,第

591 –593页).

that made the flawed decision The committee will decide whether to order thereopening of the case after it receives an application from the president of the courtthat made theflawed decision or the president of the higher court Although judicialsupervision proceedings only provide a special remedy, these proceedings are usedquite commonly due to their broad application, loose scrutiny, and the large number

of reasons for which the proceedings may be reopened Article 200 of the CivilProcedure Law provides 13 kinds of reopening reasons, including and not limited tothe forging of evidence,flaws in the collection of evidence, errors in fact-finding,errors in the application of the law,flaws in the composition of the bench, notifi-cation flaws in default judgments, awards that are larger than claimed for and ajudge’s corruption during adjudication Faced with the present situation that theChinese judiciary lacks authority in the political framework and credibility insociety, parties are even more inclined to challenge legally effective decisionsthrough judicial supervision proceedings than to challenge decisions made by thecourt of first instance through appeal.8

So far, the Supreme People’s Court’sheaviest work has been choosing judicial decisions that truly containflaws regu-lated in law from among the great number of petitions for reopening proceedings.Once the Court decides to grant the petition for reopening proceedings, it eitherorders a lower court or orders a relevant adjudication division of the SupremePeople’s Court itself to conduct the judicial supervision proceedings If the legallyeffective decision that is being reviewed is made in appellate proceedings, thereopening proceedings will be the same as appellate proceedings During reopeningproceedings the judge can attempt mediation, sustain the original decision, changethe original decision, or remand the case to the lower court for retrial If the case isremanded for retrial and the parties are not satisfied with the new decision, they canstill appeal to the next higher court following the ordinary appeal procedure.Generally speaking, the dispute resolution function of the Supreme People’sCourt is one that provides a judicial remedy in individual cases The Court carriesout such function by providing a judgment on the factual and legal issues of thecase, by way of fact-finding and the examination of evidence The Court responds

to the plaintiff’s claim and provides remedies for violated rights and infringed legalrelations In this sense, the Supreme People’s Court fulfils its dispute resolutionfunction both in appellate proceedings and in judicial supervision proceedings Inappellate proceedings, although the formal object of adjudication is the decisionmade by the court of first instance, the real object of adjudication may be thesubstantive dispute between the parties when the Court conducts mediation orchanges the original decision Even in appellate proceedings where the Court

8 Only a few legally effective decisions reviewed in judicial supervision proceedings are decisions made by a court of first instance without being appealed The investigation of such decisions follows strict rules to ensure that failure to appeal cannot be attributed to the petitioner or his agent

ad litem Therefore, the number of this kind of decisions is so small that it can be ignored ( 只有极 少数生效裁判是一审裁判未提起上诉而发生法律效力的而且对于放弃上诉权而申请再审的 案件采取严格审查标准(即未能行使上诉权并非当事人或其代理人方面的原因所致), 因此这 类再审案件在数量上可以忽略不计).

decides to uphold the original decision, due to the fact that factual issues and legalissues are not separated in China, the Court cannot only make a legal evaluation ofthe original decision, but must also make an overall evaluation after hearing thesubstantive issues of the case In judicial supervision proceedings, the evaluation(including factual and legal evaluation) of the original decision is made during theinvestigation of the petition for judicial supervision After ruling for the reopening

of proceedings, the case will be retried (but the scope of retrial will be restricted toflaws in the original decision that need to be corrected through judicial supervision).The object of adjudication in reopening proceedings is the original claim (includingfactual and legal issues in it) rather than theflawed decision itself To conclude, injudicial supervision proceedings, the function of the Supreme People’s Court duringthe investigation of the petition is judicial supervision, while the function during thereopening trial is providing a remedy

Considering the function of unifying the application of the law, the SupremePeople’s Court should put more energy into legal problems It should have theauthority to choose to try cases that contain errors in the application of the law andthat are meaningful for judicial policies The Supreme People’s Court shouldtransform itself from a court that corrects factual and legal errors (a court forreopening proceedings), to a court that unifies the application and interpretation ofthe law (a court of third instance) Such a transformation may provide opportunitiesfor the Court to scrutinize and resolve judicial conflicts in the application of the lawbetween lower courts by establishing precedents Such a development has beendiscussed by legal scholars for a long time The judicial reform in progress is alsoseeking new solutions to adjust the functions of the Supreme People’s Court and thecourt system

3 The Interpretive Function of the Supreme

People’s Court9

The Supreme People’s Court has the unique function of interpreting the law, i.e.legal interpretation, understood in China as‘judicial interpretation’ The nature ofthis judicial interpretation right derives from the judicial authority of the SupremePeople’s Court Interpretations are commonly binding for all courts throughout thecountry Judicial interpretation can be divided into normative interpretation andindividual interpretation Normative interpretations are abstract, general normativelegal instruments In their heading they mention‘Interpretation on X’, ‘Provision on

X’, or ‘Opinion on X’ with an instrument number preceded by ‘LegalInterpretation’ (法释) Individual interpretations, on the other hand, are short legalopinions made upon the request of lower courts to guide the trial in individualcases Such interpretations are called‘reply’

9 Cf Jiang ( 2014 ).

3.1 The Legal Basis of the Right of Judicial Interpretation

of the Supreme People ’s Court

Article 32 of the Organic Law of the People’s Courts of the People’s Republic ofChina (2006 amendment) provides that‘the Supreme People’s Court gives inter-pretation on questions concerning specific application of laws and decrees injudicial proceedings.’ The Resolution of the Standing Committee of the NationalPeople’s Congress Providing an Improved Interpretation of the Law issued on 10June 1981 states that‘in cases where the limits of articles of laws and decrees need

to be further defined or additional stipulations need to be made, the StandingCommittee of the National People’s Congress shall provide interpretations or makestipulations by means of decrees’ This provision is further clarified in theLegislation Law of the People’s Republic of China (2015 amendment), withinwhich Article 45 provides that

the power to interpret a national law shall be vested in the Standing Committee of the National People ’s Congress The Standing Committee of the National People’s Congress shall provide an interpretation of a national law in any of the following circumstances: (1) the speci fic meaning of a provision of such legislation requires further clarification; (2) a new situation arises after enactment of such legislation, thereby requiring clari fication of the basis of its application.

Article 104 provides that

Interpretations issued by the Supreme People ’s Court or by the Supreme People’s Procuratorate on the speci fic application of law in adjudication or in the work of the Procuratorate shall primarily be restricted to the interpretation of speci fic Articles and shall

be consistent with the goals, principles, and original intention of the legislation.

Interpretations shall also be ‘reported to the Standing Committee of the NationalPeople’s Congress for recording within 30 days of their being released’

3.2 How the Supreme People ’s Court Implements

Its Judicial Interpretation Authority

According to Article 6 of the Provisions of the Supreme People’s Court on JudicialInterpretation Work issued in 2007, judicial interpretation may take four forms,namely, ‘interpretation’, ‘provision’, ‘reply’, and ‘decision’ From a generalviewpoint, these four forms can be placed under two categories: normative inter-pretation, made through general normative legal instruments; and individualinterpretation, made in the form of a‘reply’ to answer legal questions that emerge inspecific cases before lower courts As Professor Shen Kui has stated, unlike theprecedent system in the common law, the decisions made by the Supreme People’sCourt of China are not binding for later cases It is the judicial interpretation made

in the form of a normative legal instrument or reply to a specific case that is binding

and commonly applied in judicial practice by courts of all levels Although thehierarchy of a judicial interpretation is lower than that of law, in practice it is almost

as effective as law Judicial interpretations of the law are made based upon facts andlegal issues that emerge in judicial practice, among which the normative interpre-tations derive from specific cases but have effect on all later cases.10

3.2.1 Abstract Interpretations Analogous to Law

Normative judicial interpretation is analogous to a legal code It aims at providingspecific, comprehensive, and detailed rules supplementing substantive or procedurallaws enacted by the legislature to offer judges a unified legal basis for trial Themost common type of normative interpretation is the comprehensive interpretation

of statutes Nearly every statute (criminal law aside) enacted by the legislature—including statutes such as general rules of civil law, contract law, company law,marriage law, and procedural statutes such as criminal procedural law andadministrative procedural law—has a corresponding judicial interpretation issued

by the Supreme People’s Court These comprehensive interpretations have theirown style and structure They are not a legal analysis of the statute, but a law codeper se For instance, the Interpretation of the Civil Procedure Law issued in 2015has 23 chapters, 552 articles, and 61,000 words The current Civil Procedure Law(amended in 2012), however, has 27 chapters, 284 articles, and 45,000 words.Another type of normative interpretation is the particular regulation for a certainlegal issue or a certain kind of case that is not addressed by current laws so as tofill

in for the lack of legislation For example, the Provisions of the Supreme People’sCourt on Evidence in Civil Procedure have 83 articles They specify regulations onthe distribution of the burden of proof and the examination of evidence, and theyhave become a legal basis for judicial practice The Provisions of the SupremePeople’s Court on the Application of Summary Procedures in the Trial of CivilCases issued in 2003 and Provisions of the Supreme People’s Court on SeveralIssues Concerning the Civil Mediation Work of the People’s Court issued in 2004also belong to this type of normative interpretation.11

During the historical period when Chinese legislation left many legal mattersunaddressed, with poorly written regulations, and with legal chaos and conflict, andespecially during the time when Chinese society experienced the transformation to

a socialist market economy and a more open political policy, with legislation

学》, 2008年第1期,第104页).

11 Although criminal law does not know a corresponding comprehensive interpretation, it knows many single interpretations for certain kinds of criminal cases E.g Interpretation of the Supreme People ’s Court on Several Issues concerning the Specific Application of Law in Trying Criminal

件审判也有为数不少的专项司法解释, 比如《最高人民法院关于审理交通肇事刑事案件具 体应用法律若干问题的解释》(法释〔2000〕33号)).

lagging behind and legislative interpretation being nominal, judicial interpretationplayed an important role in unifying judicial practice, formulating judicial policiesand developing the law (including new legislation and amendment of the law) byspecifying, clarifying, and supplementing theflawed statutes Therefore, its exis-tence has a historical rationality It is now commonly relied upon by judges, widelyaccepted by society, and has become an important legal resource that cannot beignored by legal scholars However, there are legal scholars who question whetherthe exercise of the judicial interpretation right by the Supreme People’s Court hasexceeded judicial authorization, although the belief is common that such excessshould be forgiven or defended The essential problem is that many judicialinterpretations are unrelated to or even inimical to the statute under review,resulting in conflicts between statutes and interpretations, or between differentinterpretations This is contrary to the Court’s function of unifying the application

of the law and the development of the law Therefore, the justification, propriety,and validity of this type of judicial interpretation are in doubt In civil law systems,the purpose of judicial interpretation, the justification for the judicial interpretationright, and the foundation of society’s respect towards judicial interpretation is tounify the application of the law, develop the law, and results in the formation ofsocial policy under the premise of abiding by legislation

3.2.2 Reply for Specific Cases

‘Reply’ is an opinion given by the Supreme People’s Court when a high people’scourt or a military court asks the Supreme People’s Court for instructions on issuesthat exist in specific cases The reply is issued in the form of an official documentand is commonly binding for every ordinary and special court It can be cited inlegal instruments as the legal basis of a judgment or an order Reply is differentfrom precedent It is not attached to or based on any specific facts It even does notcite any supportive legal provisions This explains why it shares little similaritywith precedent In effect, reply also belongs to abstract judicial interpretation.Reply has a strong executive nature When a lower court finds an important,difficult, or enlightening question and cannot find any clear answers in current laws,

or when it encounters a legal matter that is implicated in judicial policy, it shouldreport to the high people’s court if it is unsure how to deal with the question ormatter validly and properly The high people’s court will ask the relevant division

of the Supreme People’s Court for instructions in written form, raising questionsand requesting an explicit reply from the Court The division receiving the requestwill study the question If it decides the question is worth replying to, it will draft areply opinion and refer it to the Adjudication Committee of the Supreme People’sCourt for discussion If the Adjudication Committee deems it worthy to reply andagrees with the reply (if necessary after amendment), it will, in the name of theSupreme People’s Court, issue an official reply with a reference number beginningwith‘Legal Interpretation (法释)’ to the high people’s court that raised the question(see the example below) This reply will not only be binding as an authoritative

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basis for trial in respect of the case that generated the question, but will also beeffective in all later cases after it has been published as a legal instrument.

Reply of the Supreme People ’s Court on Priority Payments for Construction Projects (Approved by the 1225th session of the Adjudication Committee of the Supreme People ’s Court on 11 June 2002; issued by the Supreme People ’s Court on 20 June 2002; imple- mented since 27 June 2002)

Legal Interpretation 〔2002〕 No 16

The High People ’s Court of Shanghai:

The “Consultation on understanding and application of Article 286 of the Contract Law” (Lu High Court 〔2001〕 No 14) sent by your court has been received After discussion, our reply is as follows:

a When adjudicating cases on real estate disputes and cases on execution disputes, the people ’s courts shall, in accordance with Article 286 of the Contract Law, identify the payment for the contractor of the construction project as prior to that for mortgage and other debts.

b When the buyer of commercial real estate has completed all or part of the payment, the priority payment for the contractor of the construction project of that commercial real estate cannot violate the buyer ’s rights.

c The payment for the construction project includes remuneration that the contractor shall pay for workers and the costs actually expended for materials, etc It does not include any loss the contractor may suffer caused by the employer ’s breach of contract.

d The time period for the contractor of the construction project to claim priority shall be

6 months from the completion of the construction project or as stipulated in the contract.

e Articles 1-3 of this reply shall come into force upon the publication of this reply, while Article 4 shall come into force 6 months following publication.

For reply.

This type of judicial interpretation has at least the following defects Firstly,although replies are made for specific cases, they are not made based on the facts ofthe case They do not contain any facts and therefore cannot be applied as guidancefor the same kind of cases Although the title of a reply will clearly refer to a certainkind of case, its content may not always be concerned with the case mentioned inthe title It may only be concerned with a certain legal issue or a certain type ofquestion The biggest problem is that, since the reply never introduces details of thecase, or even mentions any information at all about the case, the interpretation made

in the reply is never grounded by giving reasons and cannot be justified as aninterpretation based on facts Isolated from facts, replies are no different fromnormative interpretations As a consequence, judges will still have trouble indeciding whether in the case they are hearing they can apply a particular reply andwhether they need a judicial interpretation for this (form of)‘judicial interpretation.’

To resolve this dilemma, the abstract reply should be transformed into a specificreply containing detailed facts of the case

Secondly, requesting a reply from the Supreme People’s Court during theadjudication of a case prior to judgment is against the principle of independent

adjudication This opens the door for a lower court to ask a higher court fordirections on how to adjudicate the case in an irregular and non-transparent way.Due to the fact that there are no regulations restricting lower courts from choosingcases for reply under strict procedure, both lower courts and the Supreme People’sCourt handle requests for reply randomly In a two-instance court system where theappellate proceedings directly influence the parties’ substantive rights, the appellatecourt’s asking for direction and the Supreme People’s Court’s reply may be socomplicated that the trial will be extended, making resolution of the case moredifficult.

3.3 Reforms of Judicial Interpretation of the Supreme

People ’s Court

In light of the confirmation of the Supreme People’s Court’s right to issue judicialinterpretations and the criticism of the way this right is implemented, legal scholarsoffer a variety of suggestions on reforming judicial interpretation of the Court as itcurrently exists This chapter recommends the following specific improvements.Firstly, the comprehensive interpretation of statutes ought to be correlated withthe interpreted statute or attached to the specific provisions it aims to interpret Thecurrent structure of comprehensive interpretation independent of the interpretedstatute needs to be changed to preserve respect towards legislation and ensure unityand consistency between the interpretation and the statute As to special interpre-tation for specific problems, the structure can be more flexible, but the constitu-tional clauses and/or legal provisions upon which the interpretation is based should

be quoted (so far these clauses are only mentioned at the beginning of the pretation in the form of‘according to relevant regulations in Law X’) In principle,the interpretation ought not to expand the court’s authority or restrict the parties’procedural rights bestowed by law

inter-Secondly, the procedure of judicial interpretation ought to be open and broadlyparticipatory The legislative nature of judicial interpretation makes it influentialand of interest to the public, to society, represented by the parties to the litigation,and to the Court itself The Supreme People’s Court can be the organizer, drafter, orcoordinator of judicial interpretation, but it ought not to be the single maker of it.The Supreme People’s Court can initiate the procedure of providing judicialinterpretations, but the proceedings should have to be conducted openly and withthe participation of a certain proportion of the public (societal representation), inaccordance with an explicit regulation If the Court intends to interpret the lawthrough legislative instruments, it ought to ensure that the interpretation is madeafter all parties involved have fully argued their standpoint Otherwise the justifi-cation for isolating the interpretation from the specific facts of the case and making

it abstract will not be tenable Different from interpretations for specific cases,comprehensive interpretation ought not to be based on the views of individual

parties but on the position of contrasting interest groups In accordance with thebasic spirit of the law, the Court should neutrally reflect on the opinions of differentinterest groups in its judicial interpretation.

Thirdly, not only the form, procedure, and content, but also the drafter of judicialinterpretations needs to be the same Up to now, judicial interpretations and repliesare all issued in the name of the Supreme People’s Court after being discussed bythe Adjudication Committee, but they are drafted by different divisions or depart-ments The number is so large, the content is so multifarious, and the drafters are sovaried that the judicial interpretations often conflict with each other

Fourthly, the reply in its current form ought to be replaced by a judgmentconfirmation procedure The lower court ought to turn to the Supreme People’sCourt for confirmation after having independently tried the case The confirmationought to be restricted to legal matters, and the enforcement of appellate judgmentsought not to be influenced during the confirmation period, unless the party subject

to enforcement provides guarantees during suspension of enforcement Comparedwith reply, the judgment confirmation procedure can be more formal, more prudent,and more stable The judgment confirmation procedure can also avoid impactingthe current two-instance court system and lay a foundation for the construction ofthe proceedings at third instance The potential risk that wrong judgments may beoverthrown by judicial supervision proceedings will become an internal drivingforce for lower courts to take the initiative and turn to the Supreme People’s Courtfor judgment confirmation In Chinese criminal procedure, a similar proceeding—the review procedure for death penalty sentences—already exists

Nevertheless, most legal scholars believe that all judicial interpretations, whetherthey are normative interpretations or individual interpretations, ought to eventually

be replaced by precedents established by the Supreme People’s Court Suchreplacement would be the most thorough reform of judicial interpretation of theSupreme People’s Court The Supreme People’s Court is working on this reform.One sign of progress is the guiding case institution established in 2010

3.4 The Guiding Case Institution

In 2011, the Supreme People’s Court issued Provisions on Case Guidance, lishing the guiding case mechanism The Provisions clarify the effect of these cases,and the manner in which these cases come into being

estab-The way such guiding cases come into being is regulated by Article 2 of theProvisions:

[T]he term ‘guiding cases’ as mentioned in these Provisions means cases that have come into force and that satisfy the following conditions: 1 they attract wide attention from society; 2 the law applied is principled; 3 the case is typical; 4 the case is complicated or

is new; 5 the case has other guiding functions.

The publisher of guiding cases is specified in Article 1: ‘The Supreme People’sCourt shall determine and uniformly publish guiding cases that have a guidingfunction for trial and enforcement by people’s courts throughout the country.’ Theissuing agency, according to the Provisions, is the Case Guidance Office of theSupreme People’s Court, which selects cases from lower courts or requests mem-bers of the National People’s Congress, the Chinese People’s ConsultativeConference, legal scholars, lawyers, and the public to recommend cases to theSupreme People’s Court.

As to the effect of guiding cases, Articles 1 and 7 provide, respectively, thatguiding cases have a‘guiding function’ for trial and enforcement by people’s courtsthroughout the country and that courts at all levels ‘shall refer to guiding cases’when they are trying similar cases However, since the guiding cases are notexclusively cases tried by the Supreme People’s Court, but cases selected mostlyfrom lower courts, this is regarded more as judicial guidance than as judicialinterpretation of the Supreme People’s Court Article 8 of the Opinions of theSupreme People’s Court on Regulating the Trial Work Relations between thePeople’s Courts at Different Levels provides that

the Supreme People ’s Court offers guidance to local people’s courts at all levels and special people ’s courts by trying cases, issuing judicial interpretations or normative instruments, publishing guiding cases, convening meetings on judicial work, and organizing the training

of judges.

Guiding cases cannot take the place of the current judicial interpretations bybecoming so-called‘actual binding’ cases unless they are substantially reformed tobecome decisions of the authorized court, binding in its jurisdiction, and relied upon

by the judicial hierarchy

However, legal scholars share drastically different opinions on how to evaluatethe function and the effect of guiding cases For example, Professor Chen Xingliangthinks that the guiding case institution is a precedent system with a Chinesecharacter Its establishment helps form the Chinese multi-type regulation systemconsisting of statutes, judicial interpretations, and guiding cases The statutesenacted by legislation serve as the core of the Chinese legal system, constituting thebasic framework of Chinese jurisprudence, and the judicial interpretations serve as

a supplement However, the existence of statutes and judicial interpretations maystill fail to satisfy the judicial need for regulation The guiding case institution willnot only influence jurisprudence, but also influence the judges’ judicial thinking.12

Yet, guiding cases are not the same as precedents They are not cases decided by theSupreme People’s Court Their existence does not rely on trial proceedings orjudicial hierarchy Most guiding cases are selected from the lower courts’ legallyeffective decisions by the Guiding Case Offices of the High People’s Courts andwill be reported to the Supreme People’s Court for re-edition Therefore, theirmechanism and effect are no different from the Supreme People’s Court’s case

2012 年第3期, 第76-78页).

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compilation mechanism already implemented for some time The presumed ‘defacto binding force’ of guiding cases is hard to be realized due to the lack ofinstitutional support Neither can the functions of unifying adjudication andfillinglegislative omissions pursued by precedent systems be properly implemented by theguiding case institution Of course, the establishment of the guiding case institutionhas not been without benefit It has helped to promote judicial quality, and developthe law and the legal community by requiring the Supreme People’s Court to screencases under a rigid procedure and issue decisions with uniform serial numbers,providing a communication platform for legal professionals to discuss the samecases or the same kind of cases Precisely speaking, however, the function that theguiding case institution undertakes is only a function of judicial guidance Withoutundergoing a substantial reform to make guiding cases binding in the area that fallsunder the jurisdiction of the trial court, relying on the authority of the trial court andthe guarantees of the judicial hierarchy, guiding cases cannot become precedentswith‘de facto binding force’, let alone replace the present judicial interpretations

4 Conclusion

In recent years, Chinese legal scholars have discussed the functional reform of theSupreme People’s Court, presenting multiple ideas Some representative ideas havegained consensus, and they include: (1) the Supreme People’s Court should unifythe law through the administration of justice This necessitates a change in thejurisdiction and judicial hierarchy in order to keep the Supreme People’s Courtaway from the adjudication of factual disputes as a general court The SupremePeople’s Court should only try cases that are meaningful for legal unification;(2) judicial interpretations in specific cases should be avoided As a replacement,the Supreme People’s Court should interpret the law through trying specific casesand giving its judgments (i.e precedents) mandatory binding force on a nationalscale; (3) both the number of cases and the number of judges of the SupremePeople’s Court should be strictly controlled However, the reasoning within thisconsensus may not be uniform For example, Ji Weidong focuses on the politicalfunction of the Supreme People’s Court, and He Weifang especially emphasizes thesymbolic function of the Supreme People’s Court:

It [referring to the Supreme People ’s Court] is the symbol of the national legal order, the embodiment of justice, and the most powerful yet most terminative guardian of civil rights.

To play these roles, the election and appointment of judges of the Supreme People ’s Court shall be different from those of other courts These judges shall be professionals both in judicial practice and in legal theory Meanwhile, the Supreme People ’s Court per se shall be bound by the judicial interpretations it makes to establish the predictability of these interpretations, 13

13 See He ( 2002 ) ( 贺卫方:’论最高法院’, 《人民法院报》, 2002年8月23日).

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