[Updated: as of September 30, 2016, Dui Hua has obtained 117 judgments YTD.]
In a bid to increase judicial transparency, including the adjudication of sensitive political cases, China’s Supreme People’s Court (SPC) recently released new regulations that unambiguously assign to courts throughout the country the responsibility for publicly releasing judgments (see translation of the regulations below). The SPC released similar regulations in 2013 and 2010, but the new regulations require courts to release more information, and with greater detail.
Article 1 of the regulations states that “People’s courts should promptly release court judgments online.” The new regulations provide a stronger mechanism for making courts comply with this provision—if the court decides not to release a judgment to the public, it must make public the reasons for not releasing it (Article 6). Courts also have a new deadline for releasing judgments under the new regulations— “Legally effective court judgments should be posted online within seven working days of taking effect” (Article 7).
The Discretion to Keep Secrets
The new regulations provide more detailed guidance to courts when they determine that judgments should not be posted online. Article 4 states that judgments are not to be released if they (1) involve state secrets, (2) involve underage suspects, (3) are resolved by arbitration, (4) concern divorce, or (5) involve custody of underage children. The regulations give unfettered discretion to keep judgments secret if the court determines that a judgment is “unsuitable for online posting.” The meaning of “unsuitable” is not clarified in the regulations.
The language of these regulations provides leeway to courts to restrict the release of court judgments in cases other than prosecutions of state secrets crimes under Article 111 of the PRC Criminal Law. Court cases that are not ostensibly political might be subject to restrictions on posting online, including but not limited to civil cases involving trade secrets (which might also be classified as state secrets), administrative cases of citizens against the government, financial fraud, and disturbing market order. The police or procuratorates, rather than courts, might possess practical authority to decide when certain cases sufficiently “involve” state secrets such that they are withheld from the public.
Regulations Having the Intended Effect?
Although the courts possess authority to block public release of judgments if they “involve” state secrets or are otherwise “unsuitable” for online posting, courts have been much more forthcoming with judgments since the previous set of regulations were issued in 2013. During the three-year period those regulations were in effect, the number of judgments involving endangering state security (ESS) cases that Dui Hua obtained from official websites increased each year: in 2014, 27 judgments were obtained, in 2015, 80 judgments, and, so far in 2016, 117 judgments [updated]. ESS crimes, which include subversion, inciting subversion, splittism, inciting splittism, espionage, and state secrets violations, are the most political in China’s Criminal Law. The decision to publicly release ESS judgments serves as a useful touchstone for assessing judicial transparency.
Considering that the number of ESS trials has declined during the same three-year period, the increase in judgments posted online is all the more surprising. Dui Hua has estimated that Chinese courts concluded more than 500 ESS trials of the first instance in 2015, compared with more than 1,000 ESS trials in 2014 and 893 in 2013. The drop is attributed to judicial authorities trying cases that used to be considered ESS cases as cases of terrorism and disturbing social order.
Restrictions on Redaction
In addition to stipulating which judgments can be released, the new regulations provide some guidance on the content that must be provided in court judgments. Article 8 of the regulations states that courts should redact the names of crime victims, juveniles, and parties to certain types of family cases. Article 10 states that courts should redact certain types of information, primarily personal, private information. The rules also give courts broad authority to redact other information that they deem “inappropriate” for public release.
The regulations’ drafters likely attempted to avoid issues surrounding the redacting of criminal defendants’ and prisoners’ names. In a change from the 2013 version, the new regulations no longer require the redacting of names of people who are not repeat offenders or who have been sentenced to three years in prison or less. Juvenile defendants should have their names redacted in online judgments owing to Article 8’s restriction on publishing juveniles’ names in general. Other than these changes, however, courts receive little guidance on how and when to publish the names of criminal defendants. Although redacting a defendant’s name can mitigate social stigma associated with a conviction, publicly releasing a defendant’s name can also help family and supporters advocate for greater judicial transparency and clemency.
New Opportunities for Tracking Court Transparency
On paper, the new regulations appear to be an improvement over the 2013 version, as they identify courts as the specific institution responsible for releasing judgments and require courts to publicly give reasons for refusing to release judgments. Judging by the increased number of ESS cases released to the public since the previous regulations took effect in 2013, regulations governing the release of judgments also appear to increase court transparency, which hopefully encourages public identification of suspects in most cases—including those involving ESS. Over the next months and years, Dui Hua plans to step up its monitoring of court websites to determine the extent to which courts are exercising their responsibility to release judgments online.
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Regulations of the Supreme People’s Court of China Regarding the Release of Court Judgments Online
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The Supreme People’s Court of China
Legal Interpretation No. 19 [2016]
August 29, 2016
The “Regulations of the Supreme People’s Court of China Regarding the Release of Court Judgments Online” was passed on July 25, 2016 at the Meeting No. 1689 of the SPC Adjudication Committee, and will become effective on October 1, 2016.
These regulations are formulated to implement and carry out the principle of public adjudication, standardize the people’s courts’ online judgment-releasing work, promote judicial fairness, raise the level of judicial credibility, bring together the practical experience of people’s courts, and they are in accordance with relevant regulations including the PRC Criminal Procedure Law, the PRC Civil Procedure Law, and the PRC Administrative Litigation Law.
Article 1: People’s courts should promptly release court judgments online according to law, in a comprehensive manner, and in a standardized fashion.
Article 2: The China Judgments Online website is the nationwide, centralized platform for releasing court judgments. People’s courts at all levels install links to China Judgments Online on their court political affairs websites and judicial transparency platforms.
Article 3: The following types of court judgments should be released online:
- Criminal, civil, and administrative judgments;
- Criminal, civil, and administrative enforcement judgments;
- Payment orders;
- Criminal, civil, administrative, and enforcement notices rejecting petitions for review;
- State compensation decisions;
- Decisions for compulsory medical treatment or decisions rejecting applications for compulsory medical treatment;
- Decisions to enforce or amend criminal penalties;
- Decisions to detain or to issue fines for obstructionist litigation activities and enforcement behavior; decisions for early release from detention; and decisions on applications for reconsideration that have been filed against orders for detentions and fines;
- Administrative mediation decisions and civil public interest litigation mediation decisions;
- Other court judgments in which there is a discontinuation or completion of the litigation process, there is an influence on a party’s material rights and benefits, or there is a major influence on a party’s procedural rights.
Article 4: People’s court judgments displaying one of the following types of characteristics should not be released online:
- Cases involved with state secrets;
- Juvenile crime cases;
- Cases resolved through mediation procedures or verifying the people’s mediatory agreements’ effectiveness, but not including those to protect state interests, the public interest, and other legal interests that need to be made public;
- Cases involved with divorce litigation or those involving the fostering or guardianship of minors;
- Other circumstances which cause people’s courts to believe internet release is not suitable.
Article 5: People’s Courts should, in their notices accepting cases and responses, inform the parties of the scope of release of judgments online and publicly inform people’s courts, via government affairs websites, electronic touchscreens, litigation guides, and other methods, of the relevant regulations for issuing court judgments online.
Article 6: Court judgments that are not released online should release the case number, the adjudicating court, the date of judgment, and the reasons for not releasing the judgment, except when releasing the above-described information could reveal state secrets.
Article 7: Legally effective court judgments should be posted online within seven working days of taking effect. First-instance judgments and judgments which have been appealed, or regarding which a procuratorial protest has been brought according to law, should be released online within seven working days of the second-instance court’s adjudication taking effect.
Article 8: People’s courts, when they release court judgments online, should redact the names of the following types of persons:
- Parties to marriage, family, and inheritance dispute cases, and their legal representatives;
- Crime victims and their legal representatives, collateral civil litigation plaintiffs and their legal representatives, witnesses, and expert witnesses;
- Juveniles and their legal representatives.
Article 9: According to Article 8 of these regulations, the redacting of names in the following circumstances should be handled accordingly:
- When the surname is kept, replace the given name with “X”;
- Regarding the names of ethnic minorities, keep the first character and replace the rest of the name with “X”;
- Regarding foreigners and stateless people, keep the Chinese transliteration for the first character, with the rest of the name replaced by “X”; regarding the English names of foreigners and stateless people, keep the first English letter and eliminate the rest of the name.
For repeat names resulting from redacting, use Arabic numerals after the names to distinguish them.
Article 10: When people’s courts release court judgments online, they should redact the following kinds of information:
- Family addresses, contact information, identification numbers, bank account numbers, health situations, vehicle license plate numbers, movable or immovable property certificate serial numbers, etc., of natural persons;
- Information regarding bank accounts, vehicle license plates, moveable or immovable property certificate serial numbers, etc., of legal persons and other organizations;
- Information involving corporate secrets;
- Private personal information regarding ongoing disputes involving family affairs, individual rights, etc.;
- Information that involves technological investigation measures;
- Other information that a people’s court believes is not appropriate to make public.
According to part (a.) of this Article, if redacted information influences the proper understanding of a court judgment, use the letter “X” as a partial replacement.
Article 11: People’s courts judgments that are released online should contain the following types of information regarding parties, legal representatives, entrusted agents, and defenders:
- Other than the handling of redaction under Article 8 of these regulations, if parties and other legal representatives are natural persons, keep the name, date of birth, sex, district and/or the county of residence; regarding parties and their legal representatives, if they are legal persons or other organizations, keep the name, residential address, organization code, and legal representative or primary responsible persons’ name and occupation;
- If entrusted agents and defenders are lawyers or grassroots legal service workers, then maintain the name, the professional registration number, and law firm or grassroots legal service institution name; for entrusted agents and defenders that are other types of personnel, keep the name, date of birth, sex, county or district of residence, and relationship to the party.
Article 12: If the judge handling the case believes that a court judgment involves circumstances pursuant to Article 4(e) of these regulations rendering inappropriate the release of the judgment online, then the judge should issue such opinion and the grounds for it in writing, and responsible staff from the relevant department, after conducting investigation, report to the managing court’s vice president for approval.
Article 13: The PRC Supreme People’s Court supervises and guides the whole country’s courts in work on releasing court judgments online. High-level and intermediate-level people’s courts supervise and guide district-level people’s courts in their work on releasing court judgments online.
Adjudication management offices of people’s courts at every level, or other institutions undertaking the function of adjudication management, have responsibility for the work of releasing their court’s judgments online and carry out the following duties:
- Organizing and guiding the release of court judgments online;
- Supervising and inspecting the work of releasing court judgments online;
- Coordinating and handling complaints and opinions from the public and society regarding court judgments;
- Coordinating technology departments to provide technological support and safeguarding;
- Other relevant management work.
Article 14: Courts at every level should rely upon information technology to take court judgments and publicly enter them into the procedures for adjudication management, reducing the amount of work in publicizing court judgments, while realizing promptness, comprehensiveness, and streamlining in releasing court judgments.
Article 15: In court judgments released online, other than the handling of technology implementation according to the requirements of these regulations, there should be consistency with the original court judgments.
People’s courts that correct the written errors of court judgments should promptly release the corrected judgment online.
The judge handling the case is responsible for the consistency between the court judgment that is released online and the original judgment, as well as the standardization of the technological processing.
Article 16: Court judgments released online that are inconsistent with the original judgment or that exhibit inappropriate technological processing should be promptly removed and released again after they have been corrected.
For court judgments that have been released online, if inspection reveals circumstances listed in Article 4 of these regulations, they should promptly be removed and then handled according to Article 6.
Article 17: People’s courts information technology service centers are responsible for China Judgments Online’s functional maintenance and upgrading, providing convenience to all of society for the use according to law of this website’s public court judgments.
In the application of different case numbers for different adjudication procedures, China Judgments Online cross-references court judgments with each other.
Article 18: These regulations are effective starting October 1, 2016. The Supreme People’s Court previously issued interpretations and standardizing documents, and in case of inconsistency, these regulations will serve as the authoritative version.
