(Dec. 31, 2013) On November 21, 2013, the Supreme People’s Court (SPC) of the People’s Republic of China announced measures requiring all people’s courts in China to publicize their effective opinions on the website of Judicial Opinions of China, starting on January 1, 2014. (The Supreme People’s Court’s Measures for the People’s Courts to Publish Judicial Opinions on the Internet [in Chinese] [hereinafter 2013 Measures], CHINACOURT.ORG (Nov. 28, 2013); Judicial Opinions of China website [in Chinese] (last visited Dec. 23, 2013).) The 2013 Measures, promulgated by the Trial Committee of the SPC, were designated as one of three bold actions in the move toward greater judicial transparency, the other two being trial openness and online disclosure of the execution of judgments. (Several Opinions of the SPC on Promoting the Construction of Three Main Platforms to Improve Judicial Transparency [in Chinese], CHINACOURT.ORG (Nov. 21, 2013); Cao Yin, Courts Ordered to Make Trials More Transparent, CHINA DAILY (Nov. 28, 2013); China’s Courts Put Live Graft Info Online, XINHUANET (Dec. 4, 2013).)
The SPC has specifically established the Judicial Opinions of China website as the uniform platform to publicize the effective opinions of all the people’s courts. (2013 Measures, art. 2(1).) Published opinions must be in a uniform format and meet certain technical requirements. (Id. arts. 2(2), 6, & 7.) As of November 2013, the Judicial Opinions of China website was connected to the SPC and the 32 Higher People’s Courts. The goal is to eventually include 3,000 courts of various levels. (Chinese Courts Publish Judgment Documents Online, CHINADAILY (Nov. 27, 2013).)
Prior to the adoption of the 2013 Measures, the SPC had issued three sets of measures aimed at making judicial opinions available to the public:
- the 2000 Administrative Measures to Publicize Opinions of the SPC (Measures of the Supreme People’s Court on Issue of Judgment Documents [in Chinese], 2000 SUPREME PEOPLE’S COURT GAZETTE 118 [hereinafter 2000 Measures]);
- the 2010 Measures with Respect to Publicity of People’s Courts’ Opinions on the Internet ([in Chinese] (Nov. 21, 2010), SPC website [hereinafter 2010 Measures]), which will be repealed upon the entry into force of the 2013 Measures; and
- the 2013 Temporary Measures to Publicize SPC Opinions on the Internet [hereinafter 2013 Temporary Measures] (complete text not yet available; for information see, e.g., SPC Officials Respond to Hot Inquiries over Online Publicity of SPC Opinions [in Chinese], XINHUA NEWS (July 2, 2013); Zhang Xianming, The First Time That SPC Collectively Publishes Opinions Online [in Chinese], CHINACOURT.ORG (July 3, 2013).)
Under the 2000 Measures, the SPC could exercise discretion in selecting opinions to publicize. The publication of certain types of opinions was prohibited, including opinions of “insufficient reasoning” and of “defective expression,” as determined by the General Office of the SPC. (2000 Measures, art. 4.)
Selective publicity remained the approach under the 2010 Measures, although the publicity was expanded to include effective opinions issued by any Higher People’s Court. Under the 2010 Measures, only opinions with “guiding effects” were required to be published online. (2010 Measures, art. 2.) As the measures did not define “guiding effects,” judges could apply various criteria in determining whether to publish a decision or not. Judges would potentially be held responsible if publication of a decision caused any severely negative impact. (Id. art. 11.)
The 2013 Temporary Measures, which entered in force in July 2013 and apply only to the SPC, may be viewed as a prototype or trial form of the 2013 Measures, insofar as they disallow the selective publication of judicial opinions. (SPC Officials Respond to Hot Inquiries over Online Publicity of SPC Opinions, supra.) This nondiscriminatory publication requirement is further developed in the 2013 Measures, to be generally applicable across all people’s courts.
As was noted above, according to the 2013 Measures, unless otherwise provided, all effective opinions of people’s courts should now be published online. (2013 Measures, art. 4.) The exceptions include:
1) cases involving state secrets or individual privacy (id.art. 4(1)). The fact that publishing an opinion would disclose a business secret is a valid cause to conceal related content, but not a sufficient cause to withhold the whole opinion (id. art. 7);
2) cases involving juvenile defendants (id. art. 4(2)); or
3) cases settled through mediation (id. art. 4(3)).
There is also a catch-all exemption; an opinion may be withheld in other circumstances where online publication is deemed “inappropriate” (id. art. 4(4)). In this instance, the written request to withhold a decision must be submitted to the vice-president-in-charge of the sitting court, with the hearing judge or collegiate bench having explained in the request the reasons for the decision to be withheld (id. art. 9).
In addition, the 2013 Temporary Measures seem to exempt the results of reviews of capital punishment decisions from the nondiscriminatory publication rule, because only those decisions with “directive interpretations” that “serve to educate the public” and “unify the approach to death penalty adjudication among courts” “should be published online.” (SPC Officials Response to Hot Inquiries with Respect to Online Publicity of SPC Opinions, supra.) However, whether the 2013 Temporary Measures survive the 2013 Measures is not clear.
Under both sets of 2013 Measures, the courts are required to ensure the integrity of published opinions. The 2013 Measures specifically provide that, except in the context of protecting the personal information of the parties, courts may not modify, replace, or remove any of the content of an opinion without good cause. (2013 Measures, arts. 6, 7, 10, & 11.) The decision-making court is deemed to be responsible for the opinion’s quality. (Id. art. 2(2).) The 2013 Measures also provide that opinions must be published in a timely manner, i.e., no later than seven days after an opinion takes effect, and must also be accessible and searchable by the public. (Id. arts. 8 & 12.)
Prepared by Bing Jia, Law Library Intern, under the supervision of Kelly Buchanan, Chief, Foreign, Comparative, and International Law Division I.