Part II of China's law experts' online judgement publication discussion
Leading legal scholars in China warned of a "perilous path" down the regression in judicial confidence, economic rankings, and legal education.
China Judgements Online (CJO), the world's most extensive and ambitious judicial transparency initiative, stands as a pivotal platform in China for accessing court judgements across all judicial levels.
However, according to Supreme People's Court's (SPC) Friday disclosure, the annual number of online judgements has decreased from 19.2 million cases in 2020, to 14.9 million cases in 2021, and further down to 10.4 million cases in 2022. From January 2023 until the present, there have only been 5.11 million judgements uploaded. Moreover, the SPC claims that "public disclosure" of judgements, which is required by Chinese law, and online "publication" of judgments are not synonymous and that judicial transparency does not imply that all judicial information must be posted on the Internet.
The SPC's long-awaited response, which finally acknowledges slashing the publication of judgments online, is unlikely to alleviate the negative effects that the Chinese academic community have feared. Chinese scholars are worried about how these recent changes could tarnish China's international reputation, economic prospects, judicial confidence, and legal education.
These issues were thoroughly discussed in a live-streamed event on November 26, hosted by 王涌 Wang Yong, Director of 洪范法律与经济研究所 Hongfan Institute of Legal and Economic Studies and law professor at China University of Political Science and Law. The event featured a presentation by Prof. 何海波 He Haibo, of Tsinghua University, followed by a panel discussion which also entailed Prof. 傅郁林 Fu Yulin from Peking University Law School and Prof. 吴宏耀 Wu Hongyao from China University of Political Science and Law.
Part I and Part II of Prof. He's presentation have already been published by Pekingnology, which features another piece on SPC's Friday disclosure. The East is Read has also published Part I of the panel discussion:
This newsletter will feature the remaining Part II of the panel discussion, marked by candid opinions from multiple perspective. I have omitted the more informal and colloquial parts of their conversation for conciseness, and added chapter titles for the convenience of readers.
— Jia Yuxuan
Repercussions of slashing judgements online:
Impairs China's judicial integrity
Director Wang Yong:
I would like to pose a few more questions to the professors concerning the large-scale withdrawal and future reduction in the number of public judgements. What are the potential negative impacts this might have on China's judicial environment? I was thinking, firstly, it might affect key judicial reforms initiated by the Supreme People's Court (SPC), such as the case registration search system and the obligation for courts to reference past records in their judgements. Part of these reforms involves the need for courts to explain any significant deviations from past rulings, which is vital for transparency and fairness. If judgements are no longer made publicly available online, could this undermine the reforms aimed at curbing judicial discretion and enhancing accountability?
Professor He Haibo:
Firstly, it risks damaging both domestic and international perceptions of judicial transparency. The online publicatin of judgements was previously a highlight of China's judicial reforms. It was lauded internationally and contributed positively to assessments of the business environment, including those by the World Bank. Its discontinuation could not only raise concerns among Chinese citizens but also lead to a deterioration in global perceptions of China's judicial system.
Secondly, it would impact the uniform application of law. I've heard that the SPC is planning to increase in publishing full-process cases internally. However, this cannot replace the broad accessibility and diversity of public cases. The guiding cases system in China, despite its intentions, has been limited in scope and often outdated; the efforts were tremendous yet the achievements are few. China, with its vast territory and courts encountering numerous new types of cases, cannot be effectively guided by these official cases. The SPC is too cautious and lose their edge. Even if hundreds or thousands of cases are recommended annually, is insufficient for the diverse legal scenarios in China.
Lastly, there is the issue of legal supervision. Relying on internal networks rather than external public scrutiny could render supervision ineffective. Mao Zedong's emphasis on relying on the people for supervision to break the historical cycle of rise and fall highlights the importance of public access and scrutiny in maintaining a robust and accountable legal system.
Undermines China's economic standings
Director Wang Yong:
I’ll continue with a few more questions. In the context of China's participation in the World Bank's Ease of Doing Business rank, is the openness of judicial documents and judicial data an important indicator? Over the past decade or more, the SPC has placed considerable emphasis and made extensive work on enhancing the country's judicial environment and its related indices, recognizing its impact on these rankings. For example, when the Provisions (V) on Several Issues concerning the Application of the Company Law [regulation pomulgated in 2019 aimed at safeguarding shareholders' interests] was issued, it was done urgently before the business environment evaluation to gain extra points. Every time there's an evaluation, leading court officials from all over the country gather in Beijing for discussions, showing the urgency and importance attributed to these rankings.
The withdrawal of online judgements could certainly affect China's position in upcoming World Bank business environment evaluations. Does this mean the SPC no longer cares about this? A shift in the immediate priorities? It's like the SPC is saying, given China's significant rise in these rankings, there is less emphasis now on actively pursuing further improvements in this area, so you do your part, we'll do ours. Is the SPC's action indicative of a first step in a broader disengagement from these evaluations?
Professsor He Haibo:
The CJO should be undergoing reform, rather than being shut down.
Professor Wu Hongyao:
With such a significant investment made, it's most likely that improvements are being sought. The goal is to enhance its effectiveness and address any issues that might have existed previously.
Casts long-term impact on legal communities and next-generation legal professionals
Professor Fu Yulin:
I believe there is still room for effort. Indeed, detailed and timely action is required. One of the key issues is the handling of sensitive topics intertwined with various interests, which are difficult to discuss. However, there are rapid methods available that could be employed effectively. Drawing a parallel with the Cyberspace Administration of China's approach to sensitive words, where content is blocked as soon as it's detected, a similar strategy could be applied to online judgements.
As for restrictions on foreigners accessing the judicial document website, there have already been a range of effective measures, such as those underpinned in the Law of the People's Republic of China on Guarding State Secrets. While it's understood that certain information may be restricted to domestic users only, the approach to managing this doesn't necessitate a complete shutdown. Such a blunt method seems overly simplistic and not entirely justifiable.
The excuses previously provided for these restrictions are quite untenable, but why did it receive a swift, positive response? It's because the courts themselves lack initiative, using external factors as convenient excuses to shirk responsibility.
Addressing your initial question about the impact on the courts, the online publication of judgements has significantly heightened legal awareness among students, who are the next generation of legal professionals. For instance, my students often begin their research papers by searching for specific types of cases. Researchers used to have varying opinions due to lack of data. The CJO has indeed made the research process much more straightforward.
Director Wang Yong:
After judgements were made public, I noticed that some controversial legal issues were effectively addressed through accessible searches, fostering a consensus within the legal community. Judges and lawyers agreed on how cases should be adjudicated, reducing grey areas and material for judges.
Despite persistent efforts to combat judicial corruption, grey areas and corrupt practices have not been completely eradicated and, in some cases, appear to be on the rise. If judgements were no longer accessible to the public, the previously established transparent guidelines would vanish, leaving judges to formulate their own rules, which could pave the way for corrupt practices. The repercussions of such a scenario would be profound, resulting in a profound deterioration of China's judicial landscape and a free fall in judicial fairness.
Any move to curtail the online publication of judgements would constitute a grievous historical transgression. It is unlikely that this decision originates from the Poliburo but rather stems from a confluence of unforeseen circumstances. It is imperative that we voice our concerns to articulate the expectations of both the legal community and the general public.
Professor He Haibo:
Just as Professor Fu said, I believe the cessation of CJO will have a less significant immediate impact on the courts compared to its repercussions in the long term, particularly among external stakeholders like lawyers. And crucially, the impact on the development of legal education in China would be lethal.
As Professor Fu aptly pointed out, currently enables our students to engage in virant discussions using local cases as study material, whereas previously, we only had foreign cases. Should CJO be shut down, it would be nothing short of a catastrophe for China's legal education. It would undermine President Xi Jinping's directive to "把论文写在祖国的大地上 embed our studies firmly within China's soil," severing the law students from the realities of China's legal landscape. Therefore, I firmly believe that CJO holds not just profound but also essential significance for China's legal education.
Affects China's appeal for foreign investment
Director Wang Yong:
I wonder, if judgements were to become entirely inaccessible to the public, what impact would this have on foreign direct investment (FDI) in China? President Xi Jinping recently met with President Biden to improve China-U.S. relations. Last week, the Ministry of Foreign Affairs announced visa exemptions for six countries, which is essentially aimed at attracting FDI.
In light of the substantial efforts the central government has invested in promoting FDI at such a critical moment, what signal would it send if the SPC significantly restricts or closes judgement access? It seems contradictory to the central government's spirit. What's your comment? Please be bold to speak your candid thoughts.
Professor Wu Hongyao:
Generally speaking, over the past 40 years, most observers without a bias against China would acknowledge the significant progress and development in China's legal system. However, in the last two or three years, I've heard increasingly negative opinions. For instance, the number of students from Western countries, especially the United States, studying in China has significantly decreased, particularly in law.
When I asked my American colleagues about this decline in interest, they pointed to two primary reasons. First, the substantial withdrawal of foreign capital from China has had a ripple effect on legal services, as the legal industry often closely follows capital flows. American students who come to study in China typically have expectations of working in the Chinese market in the future. With foreign capital exiting the country, job prospects for these students diminish.
Secondly, some recent events have sent less positive signals about China's legal system. There was a previous perception that China's legal system was steadily improving, with optimistic expectations for the future. However, if the cessation of CJO were to occur, it would an extremely negative impact on the evaluation of China's legal system and indirectly influence foreign investment decisions in China.
Director Wang Yong:
In economics, there is a concept known as "Signalling," which suggests that major initiatives and decisions send crucial signals to the market, and these signals can have a lasting impact, even if their consequences are not immediately apparent.
From an economic perspective, confidence has been a central topic of discussion among economists at recent financial conferences. While issues like the debt crisis, GDP growth rate, and employment are undoubtedly important, confidence plays a pivotal role. It signifies to the market that all levels of government, including judicial authorities, are committed to sending positive signals to revive the economy, which is crucial for economic recovery. That is why the cessation of CJO would carry a profound negative signal that could undermine confidence in the judiciary and erode the confidence necessary for economic stability and growth.
If the drop in the number of judgements persists, or if there is any intention to abolish the CJO, it would indeed run counter to the vision of national leaders who aim to ensure that "the people feel justice has been served in each and every judicial case." It would also contradict recent calls from these leaders to actively attract foreign investment. Such a move would be politically undesirable.
Therefore, why should we continue to move in this direction and tread down a perilous path? Well, thank you to all three professors for joining our discussion. The online publication of judgements is a gravely important matter. We hope it continues; this is not only our expectation but also that of the public and represents a hope for the revitalization of China's economy.