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China – Supreme People’s Court Announces Mandatory Publication Of Court Decisions.

9 January, 2014

 

For decades, the reasoning applied by Chinese judges in reaching their decisions has been a mystery to many. Historically, Chinese court judgments and rulings were not routinely published, with the result that only a limited number have been publicly accessible.  This situation, however, may soon change. 


On 21 November 2013, the Supreme People’s Court of China (“SPC“) issued theRegulation Concerning the Publication of People’s Courts’ Judgements and Rulings on the Internet (“2013 Regulation“).  The 2013 Regulation repeals a previous SPC regulation on the same subject issued in November 2010 (“2010 Regulation“) and came into force on 1 January 2014. 


Under the 2013 Regulation, people’s courts at all levels throughout China must submit their judgments and rulings for publication on a central website, established and maintained by the SPC (www.court.gov.cn/zgcpwsw).  


The judge in charge of the case (or other personnel, as assigned by the relevant court) are required to redact the judgments (e.g. by removing personal information and sensitive information such as bank account details or commercial secrets) and submit them for publication on the above website within seven calendar days after the effective date of the judgment or ruling.  Each people’s court is responsible for the quality of the decisions it submits for publication. 


Judgments and rulings involving national secrets or personal privacy, relating to juvenile crimes, resulting from cases settled through conciliation or otherwise unsuitable for publication are exempt from the requirement to publish.  Under the last “catch-all” criterion, should the presiding judge or tribunal believe the decision is unsuitable for publication, he or she must submit a reasoned written opinion, first to the relevant department head for review and then to the Deputy President of the people’s court for approval.


Compared with the 2010 Regulation, the 2013 Regulation is arguably a “great leap forward”.  Under the 2010 Regulation, the people’s courts were encouraged to publish decisions, but not required to do so.  Moreover, decisions could be withheld from publication at the request of the parties, so long as the request was reasoned and the decision did not involve public interest.  In practice, this may have effectively withheld a large number of judgments and rulings from publication.  Finally, under the 2010 Regulation, people’s courts could publish decisions on their own websites, rather than a central website, and the deadline for publication was 30 days from the date the decision became effective.  By requiring publication on a central website and significantly shortening the deadline for publication, the 2013 Regulation has fundamentally improved public access to Chinese jurisprudence.


The 2013 Regulation represents the SPC’s latest effort to improve judicial transparency.  As such, it is by no means a stand-alone event.  Rather, it is one further step in the Chinese government’s recent campaign for judicial reform. 


In August 2012, when the PRC Civil Procedure Law was last amended, its new Article 156 attracted significant attention as it expressly guarantees the public the right to check and review effective civil judgments and rulings, except for those involving state and commercial secrets and personal privacy. 


In addition, on the same date as the 2013 Regulation was promulgated, the SPC circulated the Notice on Several Opinions about Pushing Forward the Building of Three Major Platforms of Judicial Transparency (“Notice“) to people’s courts across China.  The “three major platforms of judicial transparency” are: publication of trial procedure, publication of judgments and rulings, and publication of enforcement information.  The Notice states clearly that people’s courts throughout China must strictly follow the requirements and procedures stipulated in the 2013 Regulation to ensure that judgments and rulings can be properly and timely published on the internet.  It also emphasises that publication of judgments and rulings shall be the default position; non-publication can be accepted only in exceptional circumstances. 


The 2013 Regulation is to be welcomed by both the legal profession and the general public.  A central, comprehensive and free database of people’s court decisions should improve not only judicial transparency in China, but also the quality of future decisions, by providing judges with a benchmark when considering their own rulings.  Judges may also exercise extra caution in their drafting and reasoning when faced with public scrutiny of their decisions.  Scholars and legal practitioners, in turn, should benefit from a richer source of judicial precedents that show how judges interpret the law in practice. 


It remains to be seen how the 2013 Regulation will be implemented by individual people’s courts, particularly in cases involving local government interests.  However, the Regulation is a significant improvement on the previous position and an undoubtedly positive development. 


As U.S. Supreme Court Justice Louis Brandeis once said, “sunlight is the best disinfectant.”

 

herbert smith Freehills

 

For further information, please contact:

 

Jessica Fei, Partner, Herbert Smith Freehills

[email protected]

 

May Tai, Partner, Herbert Smith Freehills

[email protected]

 

Brenda Horrigan, Partner, Herbert Smith Freehills

[email protected]

 

Arthur Ma, Herbert Smith Freehills

[email protected]

 

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