Page 196 - 2021 White Paper
P. 196
1 White Paper on the Business Environment in China
Adoption Law, the Guarantee Law, the Contract Law, Code the relevant laws and be unified with the
the Law of Property Rights, the Tort Liability Law and standards for application of civil law.6 Therefore,
the General Provisions of the Civil Law, have been the Supreme People’s Court has launched a
incorporated into the Civil Code. Therefore, these comprehensive “cleaning-up” of the 591 judicial
nine laws will cease to be in effect when the Civil interpretations in force and 139 guidance cases
Code takes effect. The other 23 laws will remain and public cases, and promoted the formulation
effective, with the Civil Code. of new judicial interpretations, which will ensure
the unified and correct implementation of the
2. Judicial Interpretations Civil Code.
China, as a country with a civil law system, The Supreme People’s Court provided basic
depends largely on codified law. Nevertheless, principles for “cleaning up” judicial interpretations:
aside from the laws and regulations of the “First, the interpretations that shall be revoked
national legislative organs, the judicial authorities will be subject to a revocation list to be published
issue judicial interpretations and explanation upon the review of the Judicial Committee
of the law4 and specify leading cases5. The of the Supreme People's Court. Second, the
actions of the judicial institution, particularly interpretations that require simple revision will
the Supreme People’s Court’s, is binding on the be submitted to the Judicial Committee of the
courts just as if it was legislation from the National Supreme People's Court, and after review of
People's Congress. Therefore, China has a mixed the Judicial Committee of the Supreme People's
system of codes and statutes; together with Court, they will be published and implemented
judicial interpretations and leading cases, which as of 1st January 2021. There are mainly two
comprehensively encompass the law in China. types of revisions: (1) revisions on quoted legal
names, article numbers, specific characters; and
a. Problems of Harmonizing Codes, Statutes (2) revisions on expressions of certain articles,
and Judicial Interpretations or removal of certain articles. Third, for the
interpretations that require material modifications,
Recently, Xi Jinping, China’s Chairman, required not only their names will be changed, but also
that relevant civil judicial interpretations be their articles will undergo massive modifications,
promptly improved to be consistent with the Civil or they will be incorporated in several judicial
interpretations under the same category, such
4 The Right of Judicial Interpretation of the Supreme Peo- as the judicial interpretations of the Property
ple’s Court can be dated back to the Article 33 of the Law Law, Contract Law, Guarantee Law and Marriage
on the Organization of the People's Courts published on Law. These judicial interpretations shall be put in
5th July 1979, which provided that “the Supreme People's the agenda of revision after the “cleaning up” is
Court gives interpretation on questions concerning specific complete, and will be revised on schedule. Fourth,
application of laws and decrees in judicial proceedings.” the interpretations that shall remain, namely
Later, the Resolution of the Standing Committee of the those that do not conflict with the Civil Code,
National People's Congress Providing an Improved Inter- will continue to be effective and applicable. For
pretation of the Law (passed on 10th June 1981). Article 2 example, the Interpretation of the Supreme People’s
reads, “Interpretation of questions involving the specific Court on Issues of Application of the Contract Law (II),
application of laws and decrees in court trials shall be Article 28, provides that “where a party requests
provided by the Supreme People's Court. Interpretation the people’s court to increase liquidated damages
of questions involving the specific application of laws and pursuant to the Contract Law, Article 114(2), the
decrees in the procuratorial work of the procuratorates increased liquidated damages shall not exceed the
shall be provided by the Supreme People's Procuratorate. amount of actual losses. If a party makes another
If the interpretations provided by the Supreme People's request to the other party for compensation
Court and the Supreme People's Procuratorate have for losses after liquidated damages have been
discrepancies in principle, they shall be submitted to the increased, the people’s court will not sustain
Standing Committee of the National People's Congress for this second request.” The Civil Code, Article 585,
interpretation or decision.”
5 The Law on the Organization of the People's Courts 6 Speech on 20th collective study session of the 19th CPC
(amended on 26th October 2018), Article 18 provides Central Committee's Political Bureau on 29th May 2020
that “The Supreme People’s Court may provide interpre-
tations on specific application of law related to trials. The
Supreme People’s Court may issue leading cases.”This
provision defines the leading cases.
196
Adoption Law, the Guarantee Law, the Contract Law, Code the relevant laws and be unified with the
the Law of Property Rights, the Tort Liability Law and standards for application of civil law.6 Therefore,
the General Provisions of the Civil Law, have been the Supreme People’s Court has launched a
incorporated into the Civil Code. Therefore, these comprehensive “cleaning-up” of the 591 judicial
nine laws will cease to be in effect when the Civil interpretations in force and 139 guidance cases
Code takes effect. The other 23 laws will remain and public cases, and promoted the formulation
effective, with the Civil Code. of new judicial interpretations, which will ensure
the unified and correct implementation of the
2. Judicial Interpretations Civil Code.
China, as a country with a civil law system, The Supreme People’s Court provided basic
depends largely on codified law. Nevertheless, principles for “cleaning up” judicial interpretations:
aside from the laws and regulations of the “First, the interpretations that shall be revoked
national legislative organs, the judicial authorities will be subject to a revocation list to be published
issue judicial interpretations and explanation upon the review of the Judicial Committee
of the law4 and specify leading cases5. The of the Supreme People's Court. Second, the
actions of the judicial institution, particularly interpretations that require simple revision will
the Supreme People’s Court’s, is binding on the be submitted to the Judicial Committee of the
courts just as if it was legislation from the National Supreme People's Court, and after review of
People's Congress. Therefore, China has a mixed the Judicial Committee of the Supreme People's
system of codes and statutes; together with Court, they will be published and implemented
judicial interpretations and leading cases, which as of 1st January 2021. There are mainly two
comprehensively encompass the law in China. types of revisions: (1) revisions on quoted legal
names, article numbers, specific characters; and
a. Problems of Harmonizing Codes, Statutes (2) revisions on expressions of certain articles,
and Judicial Interpretations or removal of certain articles. Third, for the
interpretations that require material modifications,
Recently, Xi Jinping, China’s Chairman, required not only their names will be changed, but also
that relevant civil judicial interpretations be their articles will undergo massive modifications,
promptly improved to be consistent with the Civil or they will be incorporated in several judicial
interpretations under the same category, such
4 The Right of Judicial Interpretation of the Supreme Peo- as the judicial interpretations of the Property
ple’s Court can be dated back to the Article 33 of the Law Law, Contract Law, Guarantee Law and Marriage
on the Organization of the People's Courts published on Law. These judicial interpretations shall be put in
5th July 1979, which provided that “the Supreme People's the agenda of revision after the “cleaning up” is
Court gives interpretation on questions concerning specific complete, and will be revised on schedule. Fourth,
application of laws and decrees in judicial proceedings.” the interpretations that shall remain, namely
Later, the Resolution of the Standing Committee of the those that do not conflict with the Civil Code,
National People's Congress Providing an Improved Inter- will continue to be effective and applicable. For
pretation of the Law (passed on 10th June 1981). Article 2 example, the Interpretation of the Supreme People’s
reads, “Interpretation of questions involving the specific Court on Issues of Application of the Contract Law (II),
application of laws and decrees in court trials shall be Article 28, provides that “where a party requests
provided by the Supreme People's Court. Interpretation the people’s court to increase liquidated damages
of questions involving the specific application of laws and pursuant to the Contract Law, Article 114(2), the
decrees in the procuratorial work of the procuratorates increased liquidated damages shall not exceed the
shall be provided by the Supreme People's Procuratorate. amount of actual losses. If a party makes another
If the interpretations provided by the Supreme People's request to the other party for compensation
Court and the Supreme People's Procuratorate have for losses after liquidated damages have been
discrepancies in principle, they shall be submitted to the increased, the people’s court will not sustain
Standing Committee of the National People's Congress for this second request.” The Civil Code, Article 585,
interpretation or decision.”
5 The Law on the Organization of the People's Courts 6 Speech on 20th collective study session of the 19th CPC
(amended on 26th October 2018), Article 18 provides Central Committee's Political Bureau on 29th May 2020
that “The Supreme People’s Court may provide interpre-
tations on specific application of law related to trials. The
Supreme People’s Court may issue leading cases.”This
provision defines the leading cases.
196
