In China, court conference summary, though not binding, can serve as guidance to the judges in their trials. In essence, it is more of a consensus of the majority of judges, similar to “prevailing opinion” (herrschende Meinung).
The Chinese courts will issue conference summaries from time to time, which can serve as guidance to the judges in their trials. However, the conference summary is not a binding normative document as the judicial interpretation, but only represents the consensus of the majority of judges, which is similar to the prevailing opinion.
See an earlier post for a detailed discussion on judicial interpretations in China.
Under such circumstances, some important conference summaries issued by the Supreme People's Court (the SPC) may even have a direct impact on legal practice and business. Professor of Renmin University of China, Hou Meng (侯猛) recently published the article titled “How Conference Summary Affects the Trial -- A Focus on the Nature of the Conference Summary of the Court” (紀(jì)要如何影響審判——以人民法院紀(jì)要的性質(zhì)為切入點(diǎn)) in the Social Sciences Journal of Jilin University (吉林大學(xué)社會(huì)科學(xué)學(xué)報(bào), No. 6, 2020), which can help us better understand court conference summaries.
I. Starting from the Jiu Min Summary
On 8 Nov. 2019, the SPC issued the Summary of the National Civil and Commercial Trial Work Conference of Courts (全國法院民商事審判工作會(huì)議紀(jì)要). As the summary of the Ninth National Civil and Commercial Trial Work Conference, it is dubbed as ‘Jiu Min Summary’(九民紀(jì)要) by the legal profession.
The Jiu Min Summary is concerned with 11 types of cases involving disputes over companies, contracts, guarantees, financial consumer rights protection, securities, business trust, property insurance contracts, instruments, bankruptcy, relief for persons other than involved in the case, and cases combining civil and criminal factors. And its rules are more detailed than laws and judicial interpretations. Therefore, it is handy, when needed, for the judge to refer to the Jiu Min Summary to render a judgment during the trial.
The issuance of the Jiu Min Summary has attracted great attention of lawyers in the aforementioned fields, and relevant companies also adjust their business models and compliance management systems accordingly.
Although the SPC has clearly pointed out that “Conference summaries are not judicial interpretations and cannot be cited as the basis for judgment”, the actual impact of the Jiu Min Summary shows that the significant role of the Conference Summary cannot be ignored.
The question is: why is this happening?
II. What is the conference summary?
Conference summaries refer to documents used to record the significant information and agreed matters at the conference.
In practice, there are usually three types of conferences in the courts that will issue conference summaries, which have different authoritativeness.
In accordance with the descending order of the authoritativeness, the three types of conferences are: (1) conferences held by the adjudication committee; (2) conferences held by a specialized adjudicatory committee set up within the adjudication committee; and (3) conferences held by specialized judges conferences of each judicial division.
Jiu Min Summary is issued by the Civil and Administrative Specialized Committee of the Judicial Committee of the SPC, the second kind mentioned above.
In practice, conference summaries are regarded as important guiding documents by the courts. For example, the Summary of the Symposium on the Trial of Drug-related Criminal Cases by the SPC(全國部分法院審理毒品犯罪案件工作座談會(huì)紀(jì)要) is clearly considered by the SPC’s judges as important guidance for the trial of drug-related criminal cases for the courts at present and in the future.[1]
Conference summaries of the court are discussed and determined by the judges. Therefore, the specific provisions of conference summaries represent the consensus of judges, and even the consensus of law practitioners and jurists.
From this perspective, the concept of conference summaries are more like the prevailing opinion(Herrschende Meinung) in German jurisprudence, i.e., the academic and judicial opinions on the application of a particular law in the existing legal framework are gradually generated after a period of time, which may represent the views on the interpretation and application of laws and other normative documents held by the majority of law practitioners and jurists.
The same is true of the issuance of Jiu Min Summary. The head of the Second Civil Division of the SPC stated at a press conference that it took more than eight months to formulate the Summary, during which they solicited opinions from experts, scholars, relevant authorities and entities, as well as opinions from the public.
III. Why the conference summary is formulated?
It is noteworthy that the conference summary is not legally binding. The SPC, in contrast, may issue judicial interpretations, which are legally binding. The function of the two is similar in some way, i.e. to provide clear guidance to judges on the application of law.
See an earlier post for a detailed discussion on judicial interpretations in China.
So why do Chinese courts need conference summaries aside from judicial interpretations?
1. Responding to social needs more promptly
Conference summaries are actually a form of judicial policy that explores effective solutions. Before a judicial interpretation is promulgated, the court can issue a conference summary, in order to put forward a temporary solution to an urgent issue.
In contrast, the formulation of the judicial interpretation is rather complicated, which needs the record-filing to the National People's Congress. In comparison, the formulation and issuance of conference summaries are simpler and speedier.
2. Covering more fields
Conference summaries can not only clarify the Court's working principles and internal management mechanism, but also provide guidance for the court on hearing relevant cases. However, judicial interpretations can only be applicable to the interpretation and application of laws.
For example, in 2018, the SPC issued the Conference Summary of the National Court Work Conference on Bankruptcy Trials (全國法院破產(chǎn)審判工作會(huì)議紀(jì)要), which not only deals with the application of law issues relating to the administrator system, bankruptcy reorganization, cross-border bankruptcy, but also with the development of the internal bankruptcy case information management system and the training of judges hearing bankruptcy cases, covering far more fields than judicial interpretations.
3. Filling the gaps in judicial interpretation
The main function of judicial interpretation is to provide judges with uniform standards for the application of law. In the absence of clear provisions in the judicial interpretation, the judge can directly refer to the conference summary to render a judgment.
Therefore, conference summaries play a significant role in unifying the law application standards in the absence of judicial interpretation. In fact, the contents of many conference summaries are eventually incorporated into the judicial interpretation promulgated later.
III. Our comment
We have been observing and introducing how Chinese courts work, such as the court working mechanism and informal legal sources that the court applies.
To learn more about judicial documents as informal legal sources in China, please click here.
Knowing over 200 laws in China, or one step further, knowing judicial interpretations, is still far from truly understanding how Chinese courts apply the law in practice.
Therefore, one also needs to learn about the informal legal sources, and the conference summary is one of which. The article written by Professor Hou Meng (侯猛) gives us a clearer picture of how the conference summary works.
[1] 《全國部分法院審理毒品犯罪案件工作座談會(huì)紀(jì)要》的理解與適用。
Contributors: Guodong Du 杜國棟
