Opinions of the Supreme People's Court on Provision of Judicial Services and Guarantee by the People's Courts for the Construction of China (Shanghai) Pilot Free Trade Zone Lin-Gang Special Area
In order to implement the spirit of the 19th CPC National Congress and the Second, Third and Fourth Plenary Sessions of the 19th CPC Central Committee, implement the major strategic deployments of the central government for construction of China (Shanghai) Pilot Free Trade Zone Lin-Gang Special Area (hereinafter referred to as Lin-Gang Special Area), give full play to the role of judicial function, and promote the construction of Lin-Gang Special Area, the following opinions are developed according to the Master Plan for China (Shanghai) Pilot Free Trade Zone Lin-Gang Special Area (hereinafter referred to as the Master Plan).
I. Improving consciousnesses and effectively enhancing the sense of mission of providing judicial services and guarantee for Lin-Gang Special Area
1. Deeply understanding the significance of construction of Lin-Gang Special Area. As a major strategic deployment of the CPC Central Committee with Comrade Xi Jinping as the core for further expanding opening up by providing overall leadership and making scientific decisions, the construction of Lin-Gang Special Area is an important move to demonstrate Chinas clear-cut stand to adhere to all-around opening up and actively lead the sound development of economic globalization in the new era. The peoples courts shall accurately understand the historical opportunities and challenges brought about by economic globalization, effectively enhance the sense of responsibility and mission, insist on the general theme of reform and innovation, specify the job positioning, more effectively serve the overall strategic layout of opening up from higher positions, at higher levels, and in wider fields, promote the liberalization and facilitation of trade and investment, and advance the construction of high-standard global-oriented free trade zones.
2. Accurately grasping the work direction of judicial services and guarantee for Lin-Gang Special Area. By insisting on the Partys leadership and closely focusing on major tasks assigned to Lin-Gang Special Area by the Central Government, the advantages of the differentiated and innovative system of Lin-Gang Special Area shall be fully maximized; by insisting on the leadership of rule of law and accurately identifying the combination and focus of the work of the peoples courts and the construction of Lin-Gang Special Area, an international first-class business environment characterized by rule of law shall be created in Lin-Gang Special Area; by insisting on reform and innovation and highlighting perspectiveness, exploration shall be made for innovation on judicial service and guarantee measures and the trial mechanism and methods, the business environment shall be optimized, and judicial support shall be provided for the establishment of a system of investment and trade liberalization; and by insisting on problem-orientation and focusing on the new situations and problems in the innovative development of Lin-Gang Special Area, experience in judicial practice shall be accumulated for the construction of modern new cities.
3. Institutional innovation to ensure the construction of Lin-Gang Special Area according to the law. The peoples courts shall focus on the strategic objective of building Lin-Gang Special Area as a special economic function district and modern new city, fully understand the requirements of Lin-Gang Special Area for increasing pressure test of open economic risks, maximize the judicial functions, effectively protect the lawful rights and interests of domestic and overseas enterprises, follow the highest international standards, promote the realization of convenient investment and business operation, free movement of goods, convenient flow of funds, highly open transportation, free practicing of personnel, and fast information connection between Lin-Gang Special Area and overseas regions, and build a modern new city that is open and innovative, intelligent and eco-friendly, with industries integrated into the city, and suitable for business and living.
II. Intensifying reform and innovation and promoting the improvement of a diversified dispute resolution system in Lin-Gang Special Area
4. Strengthening the construction of an international commercial trial organization in Lin-Gang Special Area. The special needs of Lin-Gang Special Area for the construction of an institutional system of investment and trade liberalization shall be me; the basic advantages of the peoples courts in resolving international commercial disputes shall be fully maximized; the construction of an international commercial trial organization in Lin-Gang Special Area shall be strengthened; judicial jurisdiction shall be exercised over cross-border transactions, offshore transactions, and other international commercial transactions relating to Lin-Gang Special Area according to the law; and the parties shall be encouraged to choose the jurisdiction of the international commercial trial organization in Lin-Gang Special Area by agreement.
5. Innovating on the international commercial trial operating mechanism. In Lin-Gang Special Area, exploration shall be made for allowing people from Hong Kong, Macao and Taiwan to serve as peoples jurors and maximize the mediation functions; exploration shall be made for allowing foreign parties to participate in litigation activities in English; Chinese and foreign laws, international treaties, and international practices shall be accurately applied, and internationally accepted trade rules shall be respected; the establishment of a mechanism under which expert committees participate in diversified resolution of international commercial disputes shall be encouraged; the role of experts shall be maximized during the process of identifying extraterritorial laws; the establishment and introduction of an internationally renowned third-party authentication mechanism shall be promoted; the autonomy of will of parties shall be respected on a larger scale; and lawyers shall be supported in providing high-quality legal services for innovative development of Lin-Gang Special Area.
6. Supporting the building of Shanghai as an arbitration center in Asia-Pacific Region. The reform and innovation of arbitration system in Lin-Gang Special Area shall be supported; and overseas arbitration institutions registered for the record shall be encouraged to conduct arbitration for civil and commercial disputes in such fields as international business, maritime affairs and investment in Lin-Gang Special Area. Chinese and foreign parties application for and implementation of property preservation, evidence perpetuation, behavior protection and other interim measures before and during arbitration shall be supported and guaranteed according to law; judicial review shall be carried out for arbitration award according to law; and support shall be provided for building Shanghai as an arbitration center in Asia-Pacific Region. Enterprises registered in Lin-Gang Special Area shall be encouraged to reach an agreement that specific personnel will conduct arbitration for relevant disputes at a specific location in accordance with specific arbitration rules. Exploration shall be made on the ways to judicially support the international investment dispute resolution mechanism.
7. Positively promoting the improvement of diversified dispute resolution mechanism in Lin-Gang Special Area. The priority shall be given to non-lawsuit dispute resolution mechanism all the time; Chinese and foreign parties rights to choose dispute resolution approaches shall be fully respected; and the innovation of mediation system in Lin-Gang Special Area shall be promoted with great efforts. Commercial mediation institutions shall be encouraged to mediate international commercial, maritime, investment, intellectual property and other disputes; online mediation shall be used more; efficient, convenient and low-cost dispute resolution channels shall be provided for Chinese and foreign parties; and a diversified dispute resolution mechanism integrating mediation, arbitration and lawsuit shall be established to provide legal services for liberalization and facilitation of high-standard trade and investment .
III. Enhancing judicial function and ensure the institutional system centralized on investment and trade liberalization in Lin-Gang Special Area according to law
8. Strengthening criminal trials and creating a safe and steady social environment for Lin-Gang Special Area The hearing of criminal cases shall be carried out properly in fields such as international investment, international trade, international finance, network, ecological environment, cultural security, entry and exit, anti-terrorist, anti-secession and public order; various criminal offences damaging and hindering the construction of Lin-Gang Special Area shall be prevented and combated; and the principle of legally prescribed punishment for a specified crime, the strict case handling procedures and accurately applicable criminal laws all shall be observed to maintain a good economic and social order in Lin-Gang Special Area.
9. Strengthening administrative trials and supporting the supervision over key fields in Lin-Gang Special Area according to law. By focusing on investment, trade, finance, network, ecological environment, cultural security, entry and exit, public order and other key fields in Lin-Gang Special Area, efforts shall be made to support the reform of separation of business license from operation permit and the improvement of foreign investment safety review, anti-monopoly review, industry management, user authentification, behavior auditing and other management measures according to law, ensure the implementation of strict, targeted and effective supervision and regulation in Lin-Gang Special Area, and protect lawful interests and rights of citizens, legal persons and other organizations, so as to form a comprehensive supervision and regulation system that integrates market main body self-discipline, industry self-governance, social supervision and government supervision.
10. Properly resolving international financial disputes and creating a healthy and orderly financial market environment for Lin-Gang Special Area. The financial trial system and mechanism shall be improved; and Shanghai courts, especially Shanghai Financial Court, shall be supported in actively meeting judicial needs for financial reform and opening-up in Lin-Gang Special Area and properly resolving various international financial disputes, to ensure the enhanced facilitation of cross-border financial services and the smooth implementation of various financial innovation initiatives in Lin-Gang Special Area. The communication and coordination with financial regulators shall be strengthened; and an efficient unified financial management system shall be established in Lin-Gang Special Area to provide judicial safeguard, optimize the business environment, effectively prevent from financial risks and maintain national financial security.
11. Strengthening protection of intellectual property rights and data and maintaining cross-border digital security of internet in Lin-Gang Special Area. The enhanced judicial protection shall be made for patents, copyrights, business secrets and other rights and data; active participation in exchange and cooperation about global digital economy shall be supported; and the application of next-generation information technologies shall be promoted, such as 5G, block chain, cloud computing, the Internet of things, and the Internet of vehicles. A data security management system shall be established and the pilot cross-border flow of data shall be judicially guaranteed in Lin-Gang Special Area. Close attention shall be paid to building Lin-Gang Special Area as a supply chain management center in Asia-Pacific Region. Judicial adjudication shall be utilized to promote the development of cross-border digital trade and support the rise of new businesses like establishment of an overseas warehouse for cross-border e-commerce.
12. Maximizing maritime judicial function and promoting high-level opening-up of Lin-Gang Special Area. The hearing of port construction, shipping finance, maritime cargo transport, and marine ecological protection and other maritime affair and business cases shall be carried out properly according to law, to promote the building of China as a maritime power. The function of Shanghai as a global hub port shall be improved and expanded. In terms of the reform of coastal piggybacking, international ship registration, opening-up of international shipping rights and other systems, judicial safeguard shall be strengthened and Shanghai’s ability to gather and allocate international shipping routes and cargo resources shall be improved. The linkage between Lin-Gang Special Area and any special Customs supervision area and any economic and technological development zone shall be supported, and the radiation effect of Lin-Gang Special Area shall be brought forth to promote a new round of reform and opening-up in the Yangtze River Delta.
13. Strengthening the execution of cases and improving the relief and withdrawal mechanism for market players in Lin-Gang Special Area. The property control and enforcement shall be intensified to ensure that creditors rights and interests as wining parties in lawsuits are paid in a timely manner. Judicial auctions shall be strengthened, the cost of exercising creditors’ rights shall be reduced largely, and the auction sale rate shall be improved effectively, to promote enterprise restructuring and market restoration. The cases concerning cross-border bankruptcy of enterprises shall be dealt with in a proper manner and a judicial environment shall be built in favor of a new system for open economy.
IV. Strengthening the coordinated control and maximizing the role of judicial prevention and response to risk pressures
14. Establishing a special management mechanism for major and sensitive cases to adapt to the risk stress test function of Lin-Gang Special Area. The support shall be provided in establishing an accurate risk detection mechanism in special areas such as quarantine, origin of goods, intellectual property rights and cross-border capital and implementing real-time monitoring and dynamic early-warning management of risks in the whole process in Lin-Gang Special Area. A management mechanism for major and sensitive cases involving Lin-Gang Special Area shall be established, and the cases with strong policies, high public attention, and possible judgment results with large influence shall be included in special management. In the construction of Lin-Gang Special Area, the types of frequent disputes, common features, risky links and other relevant matters shall be summarized up timely and researched and judged deeply, and timely judicial suggestions shall be given to relevant departments to provide reference for the formulation, implementation and adjustment of policies in Lin-Gang Special Area.
15. Building a social credit system fit for Lin-Gang Special Area. The needs of social credit evaluation and management shall be met in an active manner; the information on the list of dishonest persons subject to enforcement shall include into the social credit system in real time; the establishment and improvement of a collection, sharing and use mechanism for judicial big data about credit of market players shall be promoted; and the joint incentives for honest market players and joint punishments for dishonest market players shall be intensified. The stricter credit deterrence shall be made against enterprises that seriously violate laws or break their promises; the market environment shall be purified to the greatest extent; systemic risks shall be prevented; and the safety of investment and trade shall be improved in Lin-Gang Special Area.
16. Strengthening information construction and improving the facilitation of dispute resolution in Lin-Gang Special Area. The innovation-driven initiatives shall be continued, the deep integration of information technology with judicial work, openness and convenience shall be advanced, the internationally recognized business environment evaluation indicators shall be adopted and observed, and the construction of smart courts and digital courts shall be promoted in an innovation manner. By insisting on combination of online and offline services, litigation service centers shall be further transformed and upgraded to provide the parties with high-standard one-stop litigation services, so as to shorten dispute resolution time, reduce dispute resolution costs, and improve the quality of judicial dispute resolution.
17. Strengthening case guidance and judicial interpretation and optimizing the rule of law environment in Lin-Gang Special Area. The guidance system for international commercial trial cases shall be explored and the authority and credibility of effective judgments shall be maintained. Judicial interpretations and policy documents that are inconsistent with the basic policies and principles of opening up in Lin-Gang Special Area shall be revised or abolished in a timely manner, and if necessary, new judicial interpretations shall be issued. For the issues to be resolved through formulation or modification of laws and regulations, timely advice shall be given to relevant departments.
18. Expanding international judicial exchange mechanism and establishing a learning exchange and talent training mechanism in line with international standards. The intensified communication, exchanges and collaboration shall be made with the judicial trial institutions in world-renowned free trade zones and free trade ports. The channels of international judicial exchange shall be further broadened, international judicial forums and other exchange activities shall be carried out well, and the related issues in the construction of Lin-Gang Special Area shall be discussed and addressed, to allow the international community to further understand Chinese justice. The professional training of foreign-related commercial and maritime judicial officers shall be increased; international commercial judges shall be encouraged and supported to participate in and promote the formulation of international rules in related fields; a leading role shall be kept in the development of theories and practices of international law all the time; and foreign-related commercial and maritime trial teams with an international perspective shall be developed.
Supreme People’s Court
December 13, 2019