Further Promoting Judicial Services and Guarantee for the Construction of China (Shanghai) Pilot Free Trade Zone
- Area of Law： Foreign Exchange China (Shanghai) Pilot Free Trade Zone
- Level of Authority： Local Judicial Documents
- Date issued：09-26-2014
- Effective Date：09-26-2014
- Status： Effective
- Issuing Authority： Other Institutions of Shanghai Municipality
Opinions of the People's
Courts of the Pudong New Area of Shanghai Municipality on Further Promoting
Judicial Services and Guarantee for the Construction of China (Shanghai) Pilot
Free Trade Zone
To better serve and ensure the construction of China (Shanghai) Pilot Free Trade Zone (hereinafter referred to as “SHFTZ”), to maximize the functional role of people's courts in resolving disputes, creating a legal environment, and supporting reform and innovation, the following opinions are offered, in light of this court's practice of judiciary services and guarantee in SHFTZ since the recent year, in accordance with the requirements of the Opinions of Shanghai Courts' Services and Guarantee for the Construction of China (Shanghai) Pilot Free Trade Zone and the Guidelines of the No. 1 Intermediate People's Court of Shanghai Municipality on Trial of Cases Involving China (Shanghai) Pilot Free Trade Zone.
I. Strengthening organization and leadership and further strengthening the judicial concepts in line with the requirements on the construction of SHFTZ
1. Strengthening organization and leadership. A leading group of the Court of Pudong for judiciary services and guarantee for the construction of SHFTZ shall be established to be responsible for the overall planning and deployment of the entire court's judiciary services and guarantee for the construction of SHFTZ. The leading group shall be headed by the president of the court, with vice presidents in charge of the court of SHFTZ and the court of Waigaoqiao serving as deputy leaders. Under the leading group, an office of judiciary services and guarantee for SHFTZ shall be established, with a vice president determined by the leading Party group serving as the director to be in charge of the organization, coordination, inspection, supervision and urging of various kinds of work concerning the services and guarantee of the entire court. Daily work of the office shall be assumed by the Research Office.
2. Strengthening the concept of comprehensive services and guarantee. According to the overall goal of the construction of SHFTZ, the new requirements and new tasks raised by the construction of SHFTZ to the work of people's courts shall be comprehensively grasped; the judicial concepts shall be updated, the trial mechanism shall be innovated, the judicial functions shall be maximized, and the judicial effects shall be expanded, to provide comprehensive judicial services and guarantee to the construction of an international, market-oriented, and lawful SHFTZ.
3. Strengthening the concept of fair and efficient trial. By adhering to the basic principles of justice and equity, we shall equally protect the lawful rights and interests of the market participants of SHFTZ, accurately apply laws, international conventions and international practice, gradually form a unified thinking and measurement of judgment for the cases in SHFTZ, constantly improve the efficiency of litigation cases involving SHFTZ, make Chinese and foreign parties feel justice and equity in each judicial case, and effectively enhance people's courts' judicial authority and public confidence in judiciary in the guarantee for the construction of SHFTZ.
4. Strengthening the concept of unifying the “two effects”. We shall give consideration to both the legal and social effects of judgment of cases in SHFTZ, adhere to encouraging combination of experiment and risk control, insist on the criminal trial policy of combining punishment with leniency, promote the diversified dispute resolution mechanism for civil and commercial cases and the coordination and reconciliation mechanism for administrative proceeding cases, and better realize the effects of services and guarantee for the construction of SHFTZ on the basis of judgment according to the law.
5. Strengthening the concept of constant reform and innovation. We shall, in accordance with the general requirements of the regulations on the legal environment of SHFTZ and the deployment of the plan on judicial reform and in combination with the development process of SHFTZ, improve the operational mechanism of judicial authority, strengthen the organizational construction for trial, optimize the configuration of judicial functions and powers, innovate the trial mechanism for cases involving SHFTZ, and make joint efforts to form a new mode of judicial guarantee for SHFTZ which may be copied and promoted.
6. Strengthening the concept of initiatively accepting supervision. We shall further promote the construction of the “three platforms” for judicial publicity, consciously accept supervision of the National People's Congress and its Standing Committee, seriously accept the democratic supervision of the Chinese People's Political Consultative Conference, and comprehensively accept legal supervision of the prosecutorial organs and social supervision of the people; smooth the communication channels, extensively listen to the opinions and suggestions of all sectors of society on judicial services and guarantee for the construction of SHFTZ, and constantly improve the relevant works.
II. Innovating the trial mechanism and further enhancing the level of judicial services and guarantee for the construction of SHFTZ
7. Perfecting the special trial mechanism for cases involving SHFTZ. We shall further strengthen the mechanisms of concentrated hearing of the civil and commercial, financial, intellectual property, and real estate cases involving SHFTZ subject to jurisdiction of this court by the court of SHFTZ; reasonably adjust the scope of accepting cases on the basis of the needs; form an important platform and window of judicial services and guarantee for the construction of SHFTZ; further improve the mechanism of special collegial bench in the criminal tribunal, No. 1 Civil Tribunal, the administrative tribunals and other trial departments, maximize the advantages of special judgment, and ensure the professional level of trial of cases involving SHFTZ.
8. Improving the diversified commercial dispute resolution mechanism connecting litigation and non-litigation involving SHFTZ. We shall highlight the professionalism and efficiency of the diversified dispute resolution mechanism in resolving commercial disputes involving SHFTZ; introduce the commercial mediation organizations, industry associations, chambers of commerce and other professional mediation institutions to the court of SHFTZ; delegate relevant mediation organizations to conduct mediation in advance prior to case filing or entrust mediation in advance to relevant mediation organizations subsequent to case filing, with the legal effectiveness of the mediation agreement to be examined and confirmed by the court in accordance with relevant provisions; strengthen the guidance for commercial affairs mediation organizations and further enrich the register of professional mediation organizations and the register of mediators; perfect the rules on connection of litigation and mediation for commercial disputes involving SHFTZ; and form experiences of diversified commercial dispute resolution mechanism which may be copied and promoted.
9. Introducing an expert jury mechanism to cases involving SHFTZ. By relying on the Multiplication Program of people's assessors, we shall introduce professional wisdom to the trial of cases on finance, investment, trade, intellectual property, labor disputes, real estate and other respects involving SHFTZ, enable expert assessors to participate in trial and fully protect their rights to participate in hearing, and make their respective advantages complementary to each other.
10. Optimizing the joint resolution mechanism for disputes involving SHFTZ. We shall actively contact with the functional government departments, relevant grassroots organizations and other institutions; notify the major difficult and complex cases involving SHFTZ in a timely manner; invite competent departments to jointly resolve the disputes which may cause intensified conflicts, lead to mass disturbance, or affect the harmony and stability of SHFTZ; take initiative to offer guidance to people's mediation committee in mediation; actively participate in the resolution of disputes of other departments involving SHFTZ, and make disputes be duly handled.
11. Intensifying the special investigation and research mechanism for judicial services and guarantee for the construction of SHFTZ. We shall strengthen the prospective thinking for laws and regulations and trial practice concerning the construction of SHFTZ and make scientific planning of courts' services and guarantee; strengthen the investigation and research on application of laws to new types of cases closely related to the construction of SHFTZ to provide intellectual support for fair and efficient trial of related cases; strengthen investigation and research on new conditions and new problems arising from the building of a legal environment in SHFTZ, to actively offer advices and suggestions to the work relating to the construction of SHFTZ; and strengthen the investigation and research on the working mechanism of courts providing services and guarantee for the construction of SHFTZ, to form judicial guarantee experiences which may be copied and promoted.
III. Maximizing the judicial function and further satisfying the judicial needs of the construction of SHFTZ
12. Fully protecting the right to sue of the parties to disputes involving SHFTZ. We shall, in strict accordance with relevant provisions of the Civil Procedure Law, further standardize the standards for the filing of cases involving SHFTZ, accurately exercise the right of jurisdiction, improve and perfect the convenient and efficient working mechanism of case filing, specify various work initiatives of convenience for the people, and adequately protect the right to sue of the parties under the law.
13. Strengthening the functions of preservative measures in protecting the rights and interests of the parties to cases involving SHFTZ. According to the requirements of effectively protecting the lawful rights and interests of various parties, facilitating the trial and enforcement of cases, and giving consideration to both legal and social effects, we shall effectively complete the pre-action preservation, preservation in the legal proceeding, and preservation prior to enforcement for cases involving SHFTZ in a lawful, prudent, timely, and standardized manner; support evidence preservation and property preservation for arbitration cases involving SHFTZ in a timely manner according to law; and intensify efforts of applying pre-arbitration preservation.
14. Strengthening expanded and open judicial guarantee for respects concerning investment in SHFTZ. According to the requirements of SHFTZ on expanding investment fields and reforming the methods of cross-border investment management, we shall meticulously hear investment cases on financial services, shipping services, commerce and trade services, professional services, cultural services, social services, general manufacturing sector, and other fields, accurately apply the decisions of relevant laws and regulations on adjusting implementation, correctly handle the relationship between judicial intervention and self-governance of companies, and protect the interests of Chinese and foreign investors in accordance with the law.
15. Strengthening judicial guarantee for the transformation in trade development mode of SHFTZ. We shall carefully hear cases of commodities trading, international trade settlement, cross-border e-commerce services, and import and export trade, and other trade cases involving SHFTZ, accurately apply the international conventions that China concluded or in which China participated, respect the willingness of parties for self-governance, promote fair competition and innovation of trading mode, and provide services and guarantee to SHFTZ for the effective establishment of a system of trade rules satisfying the international and legal requirements.
16. Strengthening the judicial support for experiments in the innovation of financial systems in SHFTZ. We shall fully support the innovation of financial systems; prudently hear various cases on financial disputes involving financial innovation; protect the lawful rights and interests of financial consumers; protect the security and trading efficiency of the financial markets; carefully hear financial cases involving capital account convertibility, financial market interest rate liberalization, the liberalization of cross-border financing and other matters; and maximize the role of trial in encouraging financial innovation, standardizing the financial order, and preventing financial risks.
17. Strengthening the leading role of judiciary in intellectual property protection in SHFTZ. We shall reduce the costs in protecting the interests and rights of intellectual property involving SHFTZ; increase the cost of infringement; optimize the mechanism of connecting judicial protection and administrative protection for intellectual property; promote the creation, utilization, protection and management of intellectual property; carefully hear cases on intellectual property in the fields such as financial services, trade and investment, cultural transmission, and industry research and development; earnestly enhance protection, conduct classification, and realize moderate severity and leniency; and strive to create a fair, efficient and authoritative judicial protection environment for intellectual property in SHFTZ.
18. Strengthening judicial guarantee for the trade order of real estate in SHFTZ. We shall appropriately handle with cases in SHFTZ on disputes involving registration of enterprise, real estate sales, leasing and other matters, protect the normal operation of enterprises in SHFTZ, support the improvement in the supporting services in SHFTZ, and promote the formation of a standardized and legal business environment.
19. Strengthening judicial guarantee for a sound employment order in SHFTZ. We shall give consideration to the protection of the lawful rights and interests of workers and the decision-making powers for the production and operation of employers in SHFTZ; make enterprises recruit and use employees in a standardized manner; promote the harmony and stability of labor relations; improve the mechanisms of early warning and coordinated disposal for mass labor disputes in SHFTZ; and discover and jointly resolve mass labor disputes as soon as possible by closely contacting and coordinating with labor unions, labor administrative departments and other institutions.
20. Maximizing the functions of criminal trial in maintaining the economic and social order in SHFTZ. We shall implement the criminal policy of combining punishment with leniency; maximize the role of criminal trial in protecting the rights and freedom of entities and individuals participating in economic activities; mainly crack down on smuggling and criminal activities jeopardizing enterprises' corporate management order, undermining the financial management order, endangering tax collection, infringing intellectual property, disturbing the market order, and infringing property; and enhance information communication with prosecutorial organs and public security organs in major criminal cases, to create an economic and social environment which ensures the order of economy, security of finance, harmony and security for the construction of SHFTZ.
21. Maximizing the function of administrative trial in supporting the transformation of government functions according to the law. We shall fairly and efficiently handle with the administrative licensing, publicity of government information, administrative penalties, administrative charging and other administrative disputes arising from the administrative restructuring process in SHFTZ; correctly apply laws; protect the lawful rights and interests of administrative counterparts; support the transformation of government functions and innovation of management mode in SHFTZ; and supervise administrative organs' administration by law.
22. Effectively promoting coordination and reconciliation of administrative litigation cases involving SHFTZ. For administrative disputes entering judicial proceedings and appropriate for reconciliation, we shall actively strive for assistance and cooperation by competent departments, organize negotiation between various parties and relevant departments and individuals, promote parties to reach reconciliation within the scope of authority specified by laws, and appropriately resolve administrative disputes involving SHFTZ according to the law.
23. Intensifying the efforts of implementing the cases involving SHFTZ. By improving the enforcement methods and means and relying on the assisting enforcement working network and joint enforcement inspection and control information platform, we shall improve the dishonesty disciplinary system; comprehensively take measures such as restricting high consumption, restricting operating activities, fines, detention, restricted departure of enforcees, and being held criminally liable; intensify efforts of disciplinary actions against acts of avoiding enforcement; and ensure that the judgments of cases involving SHFTZ are enforced in a timely manner.
IV. Extending judicial functions and further creating a favorable legal environment for the construction of SHFTZ
24. Establishing a collaborative platform for the construction of a legal environment in SHFTZ. We shall communicate with the Management Committee of SHFTZ, mutually notify information on the construction and development of SHFTZ, hearing and enforcement of litigations involving SHFTZ, and other respects, establish a risk early warning and conference or consultation mechanism, and promote the construction of a legal environment in SHFTZ.
25. Further strengthening judicial publicity concerning SHFTZ. According to the requirements of establishing an information disclosure mechanism in compliance with the international rules, we shall release information on trial and typical cases involving SHFTZ in a timely manner, establish a bilingual website for the court of SHFTZ; comprehensively promote internet broadcasting and microblog broadcasting of trial, publication of judgment documents online, and other work; and strive to create a fair, open and transparent legal environment in SHFTZ.
26. Further deepening the people-oriented judicial measures involving SHFTZ. We shall provide seamless online and offline all-dimensional and three-dimensional litigation services to parties to cases involving SHFTZ by relying on the 12368 litigation services platform, litigation service center of the court of SHFTZ, remote access to electronic litigation files, remote filing and other litigation services resources throughout the whole process of litigation, in the direction of enhancing the level of convenience.
27. Further strengthening the work of judicial suggestions involving SHFTZ. We will sort out the overall situation of cases involving SHFTZ, market supervision, industry self-discipline, and other aspects of problems reflected in the cases involving SHFTZ, and issue targeted suggestions on improvement to market players and relevant institutions in a timely manner through comprehensive judicial suggestions, judicial suggestions for individual cases, white papers on trial and other forms, and vigorously participate in reform and innovation of SHFTZ.
28. Further strengthening legal publicity involving SHFTZ. We shall smooth the two channels including traditional media and new media; make full use of newspapers, television, press conferences, websites, microblog, WeChat and other platforms; actively carry out legal publicity on cases involving SHFTZ and our important measures for services and guarantee for SHFTZ; jointly maximize the role of judiciary in evaluation, demonstration, and guidance for investment, trade and other activities; and promote the building of a fair, transparent, and legal business environment in SHFTZ.
29. Further strengthening the building of judges team satisfying the construction needs of SHFTZ. We shall select and cultivate a batch of expert and inter-disciplinary judges proficient in domestic and foreign laws, familiar with the international practices and trade rules, skilled at foreign languages, and abundant in trial experience, with strong capability of judgment, to enrich the forces of the court of SHFTZ and relevant special collegial bench; and effectively assume the responsibilities of hearing cases involving SHFTZ.
30. Further strengthening the education and training of judges satisfying the construction needs of SHFTZ. We shall strengthen professional training of judges for cases involving SHFTZ; implement the multi-post and trans-department learning and practice mechanism for judges; strengthen professional training for judges; master the innovative contents and operation rules on investment, trade, finance, and supervision mode involving SHFTZ; and comprehensively enhance the judicial capacity of judges, to provide manpower support for judiciary services and guarantee for the construction of SHFTZ.
September 26, 2014