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Compartmentalized Law and Judicial Restraint: An Inductive View of Some Jurisdictional Barriers to Reform

  • Anthony R. Dicks

Extract

Among the various classes of legal documents which have become publicly available in China in recent years, few are more interesting than the growing body of reported decisions by courts and other institutions. Usually resulting, directly or indirectly, from litigation or some similar process, these interpretative rulings and decided cases have appeared in increasing numbers in the nine years following the first publication of the Supreme People's Court's own gazette. Since then a number of general collections of judicial interpretations and abstracts of court decisions have been brought out, some of which pre-date the Cultural Revolution. The Supreme People's Court now supplements its gazette with periodical collections of reports of cases, and more specialized collections of interpretations and cases have been published to meet various specific needs, academic and professional.

Access to material of this kind on a larger scale than hitherto sheds light on various aspects of the Chinese legal system itself which for foreign observers were previously obscure. Moreover, although most of the cases and decisions which are published emanate from the higher levels of the legal hierarchy, they bring the reader closer both to the practical workings of the legal system and to the thought processes which guide it.

The question which inevitably arises is whether these newly available materials should be regarded as providing more than just a heightened awareness of the dynamics of Chinese society and its legal system. Outside China, the study of Chinese law is increasingly regarded not merely as a discipline for the description and analysis of a specialized category of Chinese institutions, but more importantly as a source of detailed prescriptive norms of the kind expected from legal systems in the world as a whole.

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1. Zhonghua Renmin Gongheguo Zuigao Renmin Fayuan gongbao (Gazette of the Supreme People's Court of the People's Republic of China, hereafter SPC Gazette).

2. In 1992 the Institute for Study of the Essential Laws of China of the Supreme Court started to publish a series of reports of decided cases with the explicit intention, in the words of the principal editor's introduction, that they function not only as “an important form of guidance for the adjudication work of the people's courts” but can also “serve as reference materials for the work of judicial interpretation and can become sources of law”; Zhun, Liu, “An important work of professional construction on the part of the people's courts,” in Liu, Zhun (pr. ed.), Renmin fayuan anli xuan (Selected Cases of the People's Courts) (Beijing: People's Courts Publishing House, 1992), Vol. 1, pp. 12 at p. 1. Thus far six volumes of this work are known to have appeared.

3. Liu, Nanping, “ ‘Legal precedents’ with Chinese characteristics: published cases in the Gazette of the Supreme People's Court,” Journal of Chinese Law, Vol. 5 (1991), pp. 107140.

4. That this practice was far from novel, as noted below, is one of a number of reasons for which Liu's somewhat jejune summary of developments in the People's Republic before 1978 could be usefully supplemented.

5. It is to problems of this kind, it seems, that Nanping Liu refers in the somewhat gnomic remark at the conclusion of his discussion of judicial precedent that “the true power distribution among these entities” (the Party and government) “certainly undercuts severely the extent to which the Court can assert the force of precedent in the published cases in the Gazette”: “ ‘Legal precedents’ with Chinese characteristics,” p. 129.

6. See in particular K. Lipstein, “The doctrine of precedent in continental law with special reference to French and German law,” Journal of Society of Comparative Legislation, Vol. 28, pp. 34–44.

7. Even in a unitary system there are frequently conflicts of law and jurisdiction. In France, to take an example from the civil law tradition, long after the codification of the early 19th century special machinery had to be developed to resolve inter-departmental conflicts of jurisdiction between the ordinary courts administering the general law and the separate hierarchy of administrative courts under the Conseil d'Etat. In England, the complex relationship of the substantive rules of law and equity is a living reminder of how serious was the inter-departmental problem of jurisdictional diversity which existed before 1873.

8. Law of Civil Procedure of the People's Republic of China, adopted by the Fourth Session of the Seventh National People's Congress, (NPC), 9 April 1991 (text in [1991] Zhonghua Renmin Gongheguofagui huibian (Collected Laws and Regulations of the People's Republic of China - hereafter FGHB), pp. 3–65). See Arts. 18–39.

9. Although documents so entitled are sometimes encountered, most interpretations appear in documents with names such as “official response” (pifu), “responsive letter” (fuhan) or “notice” (tongbao).

10. The preponderance of civil and economic, rather than criminal, cases perhaps inevitably reflects the research interests of the writer, but it is believed that the selection, limited by considerations of space, is reasonably representative of the kinds of decision likely to be found throughout the system.

11. Keller, P., “Legislation in the People's Republic of China,” University of British Columbia Law Review, No. 23 (1989), pp. 653687. See also Chen, Albert H. Y., An Introduction to the Legal System of the People's Republic of China (Singapore: Butterworths Asia, 1991), pp. 7795. Both writers cite numerous Chinese sources in which these issues are discussed. See also Murray Scot Tanner's article in this issue.

12. E.g. Keller, Ibid. pp. 666–69,679–680 and 683–85; Chen, Ibid. pp. 95–102. Like most of their Chinese counterparts, however, neither of these writers has sought to deal with the period before 1978.

13. Resolution Regarding the Reinforcement of the Work of Interpretation of the Law(s), adopted at the 19th Session of the Standing Committee of the Fifth NPC, 10 June 1981 (the Interpretation Resolution 1981) (Textin [1981] FGHB, pp. 27–28; trans, in (1979–82) 1 Laws of the People's Republic of China (hereafter LPRC), pp. 251–52).

14. It should be pointed out that the recently developed jurisdiction of the courts to review the executive acts of administrative bodies does not affect the power of the latter to interpret their own departmental legislation. For a brief survey of judicial review, which is beyond the scope of the present study, see Chen, Introduction to the Legal System of the PRC, pp. 176–184.

15. The doctrine of separation of powers was adopted, at least in principle, by the various Republican regimes which succeeded each other after 1911 and, as elaborated into a five-fold division by Sun Yat Sen, became the basis of Nationalist constitutional law, but it is very doubtful if it was even understood in China as a whole by the time the People's Republic was established in 1949. For a sceptical view of the influence of the Republican legislation (“… even in the brief heyday of the Nationalist Government its writ scarcely functioned beyond the Yangtze Valley…”), see McAleavy, H., “Some aspects of marriage and divorce in Communist China,” in Anderson, J. N. D. (ed.), Family Law in Asia and Africa (London: Allen & Unwin, 1968), pp. 7389 at pp. 74–76.

16. They consisted of the Shibu (Board of Civil Office), Hubu (Board of Revenue), Libu (Board of Rites), Wubu (Board of War), Xingbu (Board of Punishments) and Gongbu (Board of Works). Other more specialized agencies existed from time to time, and the realities of administration within the Six Boards were not immutable, but this hardly detracts from the astonishing durability of the six functional categories: Maspero, H. and Balazs, E., Histoire et Institutions de la Chine Ancienne (Annales du Musee Guimet, Bibliotheque d'Etudes, Tome LXXIII) (Paris: Presses Universitaires de France, 1967), pp. 117–18.

17. See Bodde, D. and Morris, C., Law in Imperial China (Cambridge, MA: Harvard University Press, 1967), pp. 144151.

18. See Meijer, M. J., “The Autumn Assizes in Ch'ing law,” T'oung Pao, Vol. LXX (1984), pp. 117.

19. An easily accessible example of an important decision of the Board of Revenue in the field of family law may be found in Boulais, G., Manuel du Code Chinois (Shanghai: Imprimerie de la Mission Catholique, 1924), pp. 194–96. Unlike criminal cases, however, decisions of this kind, of which there must have been many, do not appear to have been collected contemporaneously for commercial publication. A large corpus of jurisprudence in the field of administrative discipline of officials can be found in the records of the Board of Civil Office (Metzger, S., The Internal Organization of the Ch ‘ing Bureaucracy (Cambridge, MA: Harvard University Press, 1973), passim) and similar bodies of cases no doubt could be found in the records of the other boards and offices of the old regime.

20. Organic Law of the Central People's Government of the People's Republic of China, adopted by the First Plenary Session of the Chinese People's Political Consultative Congress, 27 September 1949 (text in Zhongyang Renmin Zhengfu fating huibian (Collected Laws and Decrees of the Central People's Government - hereafter FLHB), Vol. 1 (1949–50) (Beijing: People's Publishing House, 1952), pp. 1–8 at p. 2; English text in A. Blaustein (ed.), Fundamental Legal Documents of Communist China (South Hackensack, NJ: Fred. B. Rothman, 1962), pp. 104–114), Art. 7, Para. (1); see also Art. 31, providing that the right of interpretation of the Organic Law itself was also vested in the Central People's Government Council. The position was scarcely changed after the adoption of the first constitution: see Constitution of the People's Republic of China, adopted and promulgated at the First Session of the First NPC, 20 September 1954 (hereafter ”the Constitution 1954”) (text in (1954–55) 1 FGHB, pp. 4—31; trans, in Blaustein, Fundamental Legal Documents, pp. 3–33). See in particular Art. 31, Para. (3), which vests interpretative powers in the Standing Committee of the NPC.

21. Prior to September 1954 many interpretations and judgments emanated from the ”branch courts” of the Supreme People's Court in the six large administrative regions into which China was then divided. Among the procedural arrangements that had to be made as a result of the abolition of the six large administrative regions on the adoption of the Constitution 1954 and the consequent closure of the six regional branch courts was a provision that the ”reports requesting instructions” (qishi baogao), whereby interpretations and rulings on questions of law were sought by lower courts, were to be sent directly to the Supreme People's Court: Several Provisions Regarding the Abolition of the Various Branch Courts of the Supreme People's Court and their Judicial Administration Organizations, issued by the Supreme People's Court and the Ministry of Justice, (54)Si-ji-zi, No. 28, 14 September 1954 (text in Zhonghua Renmin Gongheguo sifa xingzheng lishi wenjian huibian (1950–1985) (Collected Documents on the History of the Judicial Administration of the People's Republic of China (1950–1985)) (Beijing: Legal Publishing House, 1987), pp. 28–29).

22. The Government Administration Council (equivalent before 1954 of the State Council) and its subordinate commissions, ministries and other agencies were given powers to “issue decisions and orders and verify their implementation,” which enabled them to promulgate lengthy and comprehensive measures with the force of law: Organic Law of the Central People's Government.

23. As early as 1950 a number of administrative agencies made a practice of inserting into the regulations which they issued provisions which expressly reserved to themselves or some other body the power to interpret the legislation in question; see e.g. the Implementing Regulations for the Ordinance on the Central Treasury, promulgated by the Ministry of Finance, October 1950 (text in [ 1949–1952]Jinrongfagui huibian (Collected Monetary Laws and Regulations - hereafter JRFGHB), p. 51 at p. 65). Provisions of this kind were also common in the legislation of local governments in the 1950s. Practice was far from uniform, however.

24. Resolution Regarding the Question of the Interpretation of Laws, adopted by the 17th Session of the Standing Committee of the First NPC. 23 June 1955 (text in (1954–55) 1 FGHB, p. 163) (hereafter the Interpretation Resolution 1955). The text, which does not appear to be available in English, is as follows: ”1. Wherever the text of any law or decree itself necessitates further clarification of its scope or supplementation of its provisions, a specific interpretation shall be provided, or by means of a decree [supplementary] provisions shall be added, by the Standing Committee of the National People's Congress. 2. Wherever in the course of judicial proceedings a question arises as to how to apply a law or decree to the concrete circumstances [of the case], an interpretation shall be provided by the Judicial Committee of the Supreme People's Court.” While reserving its general power of interpretation, the Standing Committee thus defined the circumstances in which an interpretation could be given, not simply by the Supreme People's Court, but specifically by the Judicial Committee of the Court, membership of which, pursuant to Art. 10 of the Organic Law of the People's Courts 1954, was almost entirely under the direct control of the Standing Committee, and which was thus in reality, though not in legal theory, an organ of the latter rather than of the Court. Notwithstanding this provision, which vanished in 1981, interpretations continued to be issued in the name of the Court as a whole.

25. Department of Civil Law, Faculty of Law, Central Political-Legal Cadres’ School, Zhonghua Renmin Gongheguo minfa jiben wenti (Fundamental Questions of the Civil Law of the People's Republic of China) (Beijing: Legal Publishing House, 1958), pp. 43–47, where there is a valuable discussion of both “legislative” interpretation (i.e. by the Standing Committee) and “judicial” interpretation and the nature of judicial precedent. This work has been translated as Basic Problems of the Civil Law of the People's Republic of China (Washington D.C.: Joint Publications Research Service, No. 4879, 1961): see pp. 49–51.

26. See, for example, Meijer, M. J., Marriage Law and Policy of the Chinese People's Republic (Hong Kong: Hong Kong University Press, 1967), where numerous interpretations by the Supreme Court, Ministry of Justice and other departments are referred to. See also Van Der Valk, M. H.: “Succession law of China,” Law in Eastern Europe, Vol. VII (Leiden: Sijthoff, 1964).

27. It may be noted in this context that in many instances the meaning of the expression “interpretation” (Jieshi) is looser than might be expected by lawyers versed in other systems, where the expression is more or less synonymous with “construction”; in China it may involve finding a legal rule in the absence of any statutory text to construe.

28. Some of these suggest a degree of doctrinal continuity not usually associated with legal administration in this period. See for example the Supreme People's Court's Responsive Letter Regarding the Interpretation to be Placed on Birth of Children out of Wedlock, dated 17 May 1974, confirming the opinion of the Superior People's Court of Shanxi in proceedings originating in the Intermediate People's Court of Taiyuan as to the application of Certain Interpretative Answers Regarding Questions Arising from the Marriage Law, issued by the Legislative Affairs Commission of the Central People’ s Government on 19 March 1953 (text in Xin, Ru and Lu, Chen (pr. eds.), Zhonghua Renmin Gongheguo falii Ufa sifa jieshi anli daquan (Encyclopaedia of Legislative and Judicial Interpretations and Cases on the Laws of the People's Republic of China) (Shijiazhuang: Hebei People's Publishing House, 1991), pp. 479480.

29. An investigation of this question is beyond the scope of this article, but it may be mentioned that in 1973 the Supreme People's Court was sufficiently concerned about the volume of requests for its opinions to insist on the observance of the long-established bureaucratic discipline whereby a request (or other document) had to be channelled upwards and downwards through the hierarchy of courts without bypassing any stage. Supreme People's Court Notice on Requesting Instructions Through Each Successive Level, (1973) No. 4 (7 November 1973) (Xin Ru and Lu Chen, Encyclopaedia, n. 87, p. 1769), referred to as still in force in Supreme People's Court, Notice Regarding the Reports in which Requests for Instructions as to Questions Arising in Civil Cases are Transmitted, 28 March 1985 (Liang Guoqing (pr. ed.), Xin Zhongguo sifa jieshi daquan (Collected Judicial Interpretations of New China (Supplementary Volume) (Beijing: Chinese Procuracy Publishing House, 1993), p. 772). The text of the 1973 Notice refers in tum to an earlier Notice dated 11 September 1964 (Xin Ru and Lu Chen, Encyclopaedia, p. 1768), again emphasizing the continuity to be found in matters of this sort.

30. Adopted by the Fourth Session of the Fifth NPC and promulgated 13 December 1981; entered into force 1 July 1982 (Economic Contract Law 1981); (text in [1981]FGHB, pp. 1–20; trans, in (1979–82) 1 LPRC, pp. 215–236); as amended by the Resolution for the Amendment of the Law on Economic Contracts of the People's Republic of China, adopted by the Third Session of the Standing Committee of the Eighth National People's Congress and promulgated 2 September 1993 (Economic Contract Law 1993). All further references in this paper are to the Economic Contract Law 1981.

31. Yidi tuoshou chengfu jiesuan (often shortened to tuoshou chengfu, referred to hereafter as ”collection and acceptance”), since 1953 by far the most important form of inter-local payment for the planned trade of the state enterprise sector, has shown remarkable powers of survival in the post-planning era, its abolition in 1989 following the revival of bills of exchange a few years earlier being reversed with effect from 1 April 1990. The existence of a contract has also been regarded as essential for the use of the domestic letter of credit (abolished in 1989) and the simple collection mandate, and it is now an essential pre-requisite for the use of bills of exchange.

32. See e.g. Instruction Regarding the Strengthening of Settlement Work, Head Office of the People's Bank of China, (63)Yinkuai Qiaozi, No. 927 (30 September 1963) ([1963] JRFGHB, p. 168 at p. 169), Art. 1).

33. Not least because of the ease with which purchasing units can refuse payment on the grounds either of the complete absence of a contract or of some lesser informality in the contractual nexus between the parties.

34. See e.g. the Procedures for Settlements of the People's Bank of China, issued by the Head Office, 6 November 1977, in force 1 January 1978 (Settlement Procedures 1977), Art. 8, II. This formula was derived with only slight changes from a definition incorporated in the Bank's own interpretation of earlier settlement legislation: see n. 32. 35. Promulgated by the State Council and entered into force, 23 January 1984 (text in [1984]FGHB, pp. 269–287; trans, in Cohen, J. A., Chan, Yvonne Y. F. and Ho, Yuk Ming (eds.), Contract Laws of the People's Republic of China (Hong Kong: Longman, 1988), pp. 6982.

36. At first sight, it might be thought that the State Council's power to interpret the Economic Contract Law 1981 would depend solely on the Interpretation Resolution 1981, Art. 3, but the legislative powers expressly conferred on the State Council by Art. 57 of that law were no doubt sufficient to amount to a specific delegation of this power by the NPC.

37. Art. 4 (emphasis supplied).

38. Notice Regarding Settlement by Mandate for the Collection of Accepted Payments in Reliance on Allocation and Delivery Documents Issued by Higher Levels and Orders Issued by Higher Levels, issued by the Accounting and Audit Department, People's Bank of China, 15January 1984 (textin Jingji shenpan shouce (Economic Judicial Handbook), Vol. 1 (1987), pp. 517–18). The Notice, which allowed six months for banks to “educate” the enterprises to change their ways, was issued before promulgation of the Ordinance to which it referred.

39. Procedures for Interlocal Settlements by Mandate for Collection of Accepted Payments, promulgated by the People's Bank of China, 27 December 1983, entered into force 1 January 1984 (text in Jingji shenpan shouce, Vol. 1 (1987), pp. 505–516) (Collection and Acceptance Procedures 1983) Art. 3, Para. 1.

40. It is clear from the description that these documents would not have satisfied the requirements of the Bank based on the State Council Ordinance quoted above.

41. See above.

42. Official Response Regarding the Question of Collection of Stamp Tax on Various Types of Documents for Ordering Goods, issued by the State Bureau of Taxation, No. 994 (13 August 1990)(Zhongguo shuiwu (Taxation of China) No. 11 (1990), pp. 48^19), Para. 1. The ruling was based on the relevant stamp duty legislation, the Provisional Ordinance on Stamp Tax of the People's Republic of China, adopted by the State Council, 24 June 1988, promulgated 6 August 1988, entered into force 1 October 1988 (text in [1988]FGHB, pp. 254—269), Art. 2, Para. (1), and Regulations for the Implementation of the Provisional Ordinance on Stamp Tax of the People's Republic of China, promulgated by the Ministry of Finance, 29 September 1988 (text in [1988]FGHB, pp. 284–291), Art. 4. While the Bureau had an express power to interpret the Regulations (ibid. Art. 44) it had no power to interpret the Ordinance.

43. The fact that no example of such an anomaly has yet come to light among the cases now being published in no way diminishes the probability that such cases have already occurred, having regard to the prevalence of rejections of payment under collection and acceptance arrangements on almost any pretext throughout the country in recent years.

44. In theory, if the tax authority had made a decision against the protests of the seller, it would be possible to challenge that decision under the administrative litigation procedure, in the unlikely event that the seller, relying on the putative contract to obtain payment from the buyer, would at the same time try to deny its validity to avoid stamp tax. In such proceedings the court would not be able to correct the interpretation of the General Bureau of Taxation even in the light of the Regulations of the Ministry of Finance, but it could probably disregard the former altogether using the technique identified in the editorial introduction to Epstein, E. J. (ed.), “Legal documents and materials on administrative detentions in the People's Republic of China,” Chinese Law and Government, Vol. 27, pt. 5, (September-October 1994).

45. In the United Kingdom the significance and even nomenclature of documents for purposes of stamp duty is sometimes quite different from their significance in the general law. In the words of Lord Evershed, M. R..“… it is of course, notorious that stamp duty legislation does sometimes produce anomalies…” (Ridge Nominees Ltd. v. Inland Revenue Commissioners [1962] Ch. 376 (C.A.) at p. 396.

46. However, the recently formalized powers of the Legislative Bureau of the State Council in relation to conflicts of this kind may make this process easier to accomplish; see below.

47. Although it appears to have been little researched, joint action in such circumstances is an institution of considerable antiquity, dating back at least to the mid-Qing period. Examples of joint memorials to the throne by the Boards of Civil Office and War can be found in Metzger, Internal Organization, p. 389. The Autumn Assize itself appears to have been a permanent example of joint action, involving in addition to the Board of Punishments (which was responsible for the bulk of the work involved), the Censorate and the Court of Revision (Dalisi) together known as Sanfasi, the “three departments concerned with law”: see Meijer, “The Autumn Assizes,” at pp. 3–5.

48. See for example the joint interpretation by the Ministry of Finance and the State Audit referred to below.

49. Cf. Keller, “Legislation in the PRC,” p. 671, n. 85.

50. It was also formerly not uncommon for documents (usually notices, tongbao, or instructions, jieshi) to be issued jointly by the Central Committee of the Party and the State Council, usually in relation to subjects (such as collectivized agriculture) which were not directly under state administration.

51. This may be regarded at one level as an institutional expression of the traditional virtue of rang, yielding, which has always been considered an important ingredient in the process of conciliating disputes between individuals.

52. In connection with one of the cases discussed below, it is suggested that although the Supreme People's Court deferred to the Party authorities it did so tactically in order to strengthen its case against a ministry which represented a challenge to the Court's authority; see below.

53. The prevention of conflicts through informal liaison of this kind was discussed by an unnamed official of the Supreme People's Court with Keller, ”Legislation in the PRC,” pp. 657, n. 14, 668–69 (with the Legislative Affairs Commission of the NPC and the Supreme People's Procuratorate) and 678 (with the State Council and other administrative departments). See also Murray Scot Tanner's article in this issue.

54. Of course there are other reasons for which a court may decline to accept a case on jurisdictional grounds, in particular those associated with venue, but these are not relevant to the present discussion.

55. Art. 5.

56. The political deference of the whole court system to the Party has no formal basis in (state) constitutional law equivalent to the legally prescribed subordination of these sectors to the NPC. Indeed, it does not rest on any express provision of the Constitution 1982 beyond those which require the governance of the state as a whole to be conducted in accordance with principles which, in the light of the Preamble, place it firmly under the leadership of the Party. It may be assumed that the influence of the Party would in normal circumstances be strong in an institution such as the courts which are at the very centre of the state system. Party influence in the courts has been discussed in Western literature both in the context of judicial independence and the role of the judicial committees within the court structure, and also in connection with the implications of the Party nomenklatura system; this should not obscure its significance in the fragmentation of the legal system.

57. It is probably safe to assume that the rejection of actions which are intended to call in question acts or policies of the Party would be a matter of routine in most cases so that the rare instances in which a ruling by the Supreme People's Court on such a question has been published may well represent only the tip of an iceberg.

58. Official Response Regarding the Question Whether the Case of a Dispute over the Proprietary Rights to a Building Between the Fourteenth Construction Bureau of the Ministry of Aquatic Products and Hydro-Electric Power and the Yunnan Provincial Mechano-Elec- tronic Supplies Company Falls Within the Jurisdiction of the People's Courts, 3 January 1989 (Liang Guoqing (pr. ed.), Xin Zhongguo sifa jieshi daquan, p. 442).

59. Official Response Regarding [the Question] Whether a People's Court Can Entertain Proceedings for Civil Compensation in Respect of the Gold and Pearl Jewellery of Zou Shuwen of Which the Whereabouts Became Unclear in the ”Cultural Revolution,” Supreme People's Court, 6 November 1987 (text in Huaina, Wang, Gu, Ming, Liu, Zhun and Sun, Wangzhong (eds.), Zhonghua Renmin Gongheguo falii quanshu (Collection of Laws of the People's Republic of China) (Changchun: Jilin People's Publishing House, 1989), p. 439.

60. This may be a reference to one of the unsuccessful factions in the politics of the Cultural Revolution. The present writer has not yet had the opportunity to investigate either the historical context of the case, initiated by one Li Fengchun, or its factual aspects, which are largely concealed by the laconic style of Supreme Court documents of this kind, but a reference to the “enemy and puppet archives” (meaning those of the Kuomintang regime) suggests that old as well as current political scores were being settled, and it is possible that the “committees” themselves were institutions which dated back to Kuomintang days.

61. Letter of Response Regarding the Question of the Limits of the Policy for Characterization and Disposal of Falsely So-called “Committees for Mobilization of the Suppression of Disorder and Construction of the Nation,” Supreme People's Court, 24 Feburary 1974 (text in Xin Ru and Lu Chen, Encyclopaedia, p. 1769).

62. An interesting aspect of cases in which the courts, recuse themselves from the decision-making process in favour of Party organizations is the doubt which they appear to cast on the effectiveness of the judicial committees of the people's courts, which generally are assumed by outsiders to provide an efficient mechanism to ensure that the views of the Party have a decisive influence on the courts. If this assumption is correct, it is difficult to explain the necessity for a decision such as that just described unless the true position was, as the reader may suspect, that neither the provincial Party committee nor the courts wanted to take the responsibility of deciding a case which was a political hot potato. Even in that event, if the judicial committee functioned precisely according to the assumption, why does it not result in a decision by the court that the court, rather than the reluctant Party committee, should dispose of the case?

63. Notice of the Supreme People's Court and the Supreme People's Procuratorate Transmitting for Circulation Document Zheng-fa-han (83) No. 6 of the Political-Legal Commission of the Central Committee of the Chinese Communist Party, 20 August 1983 (text in Xin Ru and Lu Chen, Encyclopaedia, p. 580).

64. The latter, which form part of the bureaucracy under the Ministry of Communications, for many years had wide jurisdictional powers (approximately parallel to those of the courts) in relation to the resolution of maritime disputes under the Regulations for the Conduct of Marine Casualties, promulgated by the State Council in 1959 (text in (1958) 10 FGHB, p. 331) which in practice gave them a virtual monopoly for many years over disputes involving foreign vessels except in cases where the parties agreed to arbitration by the Maritime Arbitration Commission of the China Council for the Promotion of International Trade in Beijing. See Dicks, A. R.: “Some aspects of maritime law and practice,” in Li, Victor H. (ed.), Law and Politics in China's Foreign Trade (Seattle: University of Washington Press, 1977), pp. 249269 at 265-^8.

65. This expression has been translated literally but it probably is intended to refer to a customary rule of international law.

66. Response to a Report and Request for Instructions as to the Law and Procedure Regarding the Arrest of Ships, (81) No. 3 (24 October 1981), Renmin fayuan J988nianjian (Yearbook of the People's Courts 1988) (Beijing: People's Courts Publishing House, 1991), p. 388. Words in square brackets added by the writer.

67. In addition to representing an institutionally gratifying exercise of power for the Ministry this jurisdiction was no doubt quite profitable as a source of foreign exchange.

68. This type of reference from one specialist division of the courts to its equivalent at the next level does not often occur in the accounts of interpretations published thus far, and the precise significance of it (if any) is not known to the present writer.

69. Promulgated by the State Council, 23 January 1984 (text in [1984]FGHB, pp. 288–298; trans, in Cohen, Chan and Ho, Contract Laws of the PRC, pp. 61–68).

70. Official Letter Regarding the Questions of the Distinctions Between Industrial and Mineral Products and Agricultural Sideline Products and Between Industrial and Mineral Products for General Use and Those for Special Use, issued by the Economic Chamber of the Supreme People's Court, (1987), No. 30, 9 December 1987 (Liang, Guoqing (pr. ed.), Xin Zhongguo sifa jieshi daquan (Collected Judicial Interpretations of New China) (Beijing: China Procuracy Publishing House, 1990), p. 527).

71. Opinion Regarding the Differentiation of Industrial and Mineral Products from Agricultural Sideline Products and of Goods for General Use and Goods for Special Use, appended to the Responsive Letter Regarding the Question of Interpretation of the Ordinances for Purchase and Sale Contracts, Bureau of Legislative Affairs of the State Council, (1987) No. 025 (24 October 1987) (ibid. pp. 527–28).

72. Official Letter.

73. Cf. Keller, “Legislation in the PRC,” pp. 679–680.

74. Notice Regarding the Transmission of the Letter of Response of the Ministry of Finance, issued by the Supreme People's Court, (81) No. 55 (4 September 1981)(Renmin sifa xuanji, 1981 (Selectionsfrom “People's Judicature ” 1981) (Beijing: Legal Publishing House, 1983), pp. 19–20).

75. Official Letter to the Effect that the Punishment for Alteration or Debasement of the National Currency Should be in Accordance with that for Forgery of the National Currency, issued by the People's Bank of China, 21 August 1982 (Wang Huaina et al.. Collection of Laws, p. 176).

76. Adopted by the Second Session of the Fifth NPC, 1 July 1979, entered into force, 1 January 1980. The text of Art. 122 is as follows: “Whoever counterfeits national currency or trafficks in counterfeit national currency is to be sentenced to not less than three years and not more than seven years of fixed-term imprisonment, and may in addition be sentenced to a fine or confiscation of property. In the case of a ringleader in committing the crime… or in especially serious circumstances, the sentence is to be not less than seven years of fixed-term imprisonment or life imprisonment, and the offender may in addition be sentenced to confiscation of property.”

77. The use of the term “political and legal departments,” which is wide enough to encompass not only the courts and procuracy and the public security and justice systems, but also the Party committees which run these institutions, suggests that it may be the latter which actually take the initiative to request such rulings. Some support for this possibility comes from a case in which the Head Office of the People's Bank was asked directly by the Committee on Politics and Law of the Qidong county (Jiangsu) Committee of the Party for a ruling: see Responsive Letter Regarding the Questions of the Construction of and Payment Against Instruments on which the Sums expressed in Large and Small Figures Do not Correspond, issued by the People's Bank, 2 December 1981 (Chen Xiaoyun, Li Jianguo and Liu Huilan (eds.), Jinrongfalii shiwu shouce (Handbook of the Functioning of Monetary Law) (Beijing: Legal Publishing House, 1992), p. 465).

78. This was not the first occasion on which the Head Office of the People's Bank found itself making decisions in the field of criminal law. Almost 20 years earlier it was asked by the Provincial Branch of Jilin province whether its sub-branch in Shulan county should allow the local people's court to retain in its custody as evidence in a criminal case 159 spoiled bank notes with a face value of 400 yuan when its statutory duty was to withdraw such notes from circulation and destroy them. After consulting the Supreme People's Court the Bank replied that “in order to prevent the criminal reversing the case at a later stage” the court could retain “one or two” notes. Responsive Letter Regarding the Question Whether the Whole of [a Quantity] of Spoiled Renminbi Notes Can be Retained by a Court as Criminal Evidence, 24 December 1963 (text in Wang Huaina et ai. Collection of Laws, p. 252).

79. Notice of the Ministry of Finance and the State Audit on Certain Questions and Explanatory Answers Regarding the Implementation of the “Interim Provisions of the State Council Regarding the Imposition of Penalties for Violations of Financial Laws and Regulations” and of the “Implementing Rules,” (88) No. 7 (22 February 1988)(Caizheng (Finance), No. 4 (1988), pp. 44–46).

80. Ibid. The expresion “monetary laws and regulations” (jinrongfagui) invariably refers to legislation relating to the banking system regulated by the People's Bank of China, as opposed to caizhengfagui, which refers to the financial system under the aegis of the Ministry of Finance.

81. An interpretative document issued by the Ministry of Communications affords a further illustration of the care which has to be taken to respect limits of departmental authority at a subordinate level under the general authority of the Ministry. After stating its opinion regarding the application in rural areas of the Ordinance on the Administration of Safety of Communications on Inland Waterways of the People's Republic of China and another document issued by the State Council for the application of which it was responsible, the Ministry pointed out to the Sichuan Provincial Department of Communications that the specific question of the liability of a particular township government in a particular case depended on the application of a “general notice” (tonggao) issued by the provincial government “which is to be interpreted by the government of your province.” See the Responsive Letter Regarding a Question Relating to the Extent of the Powers of Rural Governments to Control Safety of Communications by Water, issued by the Ministry of Communications, (1992) No. 58 (February 1992) (text in Zhonghua Renmin Gongheguo jiaotong fagui huibian 1992 (Collected Laws and Regulations on Communications of the People's Republic of China 1992) (Beijing: People's Communications Publishing House, 1994) p. 460). Cf. Keller “Legislation of the PRC,” p. 673, n. 94.

82. Rehearing of the Case Regarding Compensation for Invasion of Rights Between Dingbian County Plastic Products Factory and the Business Department of the Xianyang City Sub-Branch of the Industrial and Commercial Bank of China, Superior People's Court of Shaanxi Province, 30 March 1991 (SPC Gazette, No. 1 (1992), pp. 28–30).

83. The facts giving rise to the case occurred before the Settlement Procedures 1977 were replaced by new legislation in 1989: see below.

84. This expression occurs in the relevant provision of Art. 10, Para. 2 of the Settlement Procedures 1977, which reads in part: “Where an employee of the remitting unit is to draw the remittance from the bank at which the remittance is to be received, the words ‘To be retained by the bank until called for’ may be noted on the remittance mandate.”

85. The district court relied on Art. 10, Para. 6 of the Settlement Procedures 1977 which reads (in part): “The bank receiving an incoming remittance of purchasing funds…, shall open a purchasing account in the name of the unit making the remittance for payment under the supervision of the bank…. Apart from small sums which may be drawn in cash for the travelling and living expenses of the purchasing staff, they shall in every case be transferred into an [enterprise] account.”

86. The department of the Head Office which is in charge, among other areas, of settlements.

87. Rehearing of the Case, n. 82, at p. 29.

88. It seems quite possible that this was the case, but it should be said that it has thus far proved impossible to find either the text of the interpretation or any reference to it in such collections of banking regulations and interpretations as are available to the present writer.

89. This expression seems to exclude the possibility that it was the court which sought the ruling from the People's Bank, though it is possible that it suggested informally that a ruling be obtained.

90. The consideration (which would loom large in a common law setting) that the wording in question formed part of, and should be construed as, a contract between the bank and its customer, the remitting party, does not appear to have been entertained at any stage. It may be noted that damages were claimed on a delictual basis (“violation of rights”) rather than for breach of any contract.

91. Chunxie, Bo and Qiang, Fu, “The status of administrative statutes in the adjudication of administrative cases,” Faxue zazhi (Law Magazine), No. 8 (1990), p. 9.

92. The statutory powers of the Bank in relation to settlements were formerly complicated to the point of obscurity, although they can be traced back to 1950. They have more recently been specified in Art. 5 of the Provisional Ordinance of the People's Republic of China for the Control of Banking, promulgated by the State Council, 7 January 1986 (Zhonghua Renmin Gongheguo Guowuyuan Gongbao (Gazette of the State Council of the People's Republic of China, hereafter SC Gazette), No. 1 (1986), p. 3).

93. See, however, Haibo, Liu, “Our country's legislation on payment instruments should be in a harmonious relationship with the existing procedures for bank settlements,” Zhengzhi yufalu (Politics and Law), No. 5 (1992), p. 41.

94. This expression is often translated as “negotiable instruments” but it has for so long been used indiscriminately of instruments which are not in any view negotiable, or not fully negotiable, that it seems premature in present circumstances to use that term.

95. Promulgated by the People's Bank of China, 19 December 1988, entered into force 1 April 1989 (text in Fagui xinxi (Information on Legislation), No. 1 (1989), pp. 29–46) (Settlement Procedures 1988) effectively replacing the Settlement Procedures 1977. The instruments in question had been introduced experimentally at various dates in the preceding six years.

96. Feng, Guo, “Several problems to be noted in the trial of disputes over payment instruments in the courts,” Part 3 (“The economic legal system,” No. 286), Fazhi ribao (Legal System Daily), 26 May 1992.

97. Art. 11 reads in part: “The function of the judicial committee shall be to sum up judicial experience and to discuss important or difficult cases and other issues relating to judicial work.”

98. Yuexin, Pan, “Several problems in the adjudication of cases on bank acceptance bills,” Faxueyanjiu (Legal Research), No. 5 (1992), pp. 3439 at pp. 38–39. The author of this article is a legal practitioner who has acted in several cases on bank acceptance bills of exchange.

99. Hanjian: this expression seems to include the People's Bank's own interpretative documents, circulars containing supplementary regulations, etc.

100. Guo Feng, “Several problems.”

101. Resolution Regarding the Strengthening of Government Legislative Work, adopted by the State Council, 9 October 1993 (SC Gazette, No. 23 (1993), pp. 1079–1083 at p. 1081), Art. 5.

102. Ibid. It is believed that this places on a more formal footing functions which the Bureau had been discharging for many years.

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Compartmentalized Law and Judicial Restraint: An Inductive View of Some Jurisdictional Barriers to Reform

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