Some Opinions of the Supreme People’s Court
on Providing Judicial Safeguards to Improve the Business Environment
SPC Document no. 23 (2017)
‘Some Opinions of the Supreme People’s Court on Providing Judicial Safeguards to Improve the Business Environment’
To High People’s Courts in all provinces, autonomous regions, municipalities directly controlled by the central government, the PLA military courts, the Production and Construction Corps Division of the Xinjiang Uygur Autonomous Region High People’s Court: Supreme People’s Court ‘Some Opinions of the Supreme People’s Court on Providing Judicial Safeguards to Improve the Business Environment’ are hereby issued to you, please implement them conscientiously.
7 August 2017
Some Opinions of the Supreme People’s Court on Providing Judicial Safeguards to Improve the Business Environment
The present opinions are formulated in order to improve the investment and market environment, to create a stable, fair and transparent, predictable business environment, to speed up the provision of even more powerful judicial services and guarantees to the construction of an open new economic system, in combination with the people’s Court actual work of enforcing judgments.
I. Protect all categories of market subjects according to the law, and promote the perfection of the legal system of the socialist market economy.
1. Uphold the principle of equal protection, and fully protect the legitimate rights and interests of all categories of market subjects.Fully implement the principle of equal protection of market subjects of different ownership, market subjects in different regions, and the work requirements of stakeholders in different industries, uphold the equal legal status of all categories of market subjects, the principle of equal rights protection and equal development opportunities, solve all kind of disputes according to the law, promote the formation of a rule-of-law business environment that is orderly, and full of vitality.Strictly implement the ‘Some Opinions of the Supreme People’s Court on the equal protection according to the law of the non-public economy to promote the healthy development of the non-public economy’, and provide a good judicial environment for the healthy development of the non-public economy.
2. Further improve the regulatory system on legal persons according to stipulations in the General Provisions on Civil Law. Focus on partial changes in the system on legal persons in the General Provisions on Civil Law, and promptly summarize problems existing in the process of its concrete application, distinguish situations, intensify research to solve them, and promote the further perfection of the legal persons systems of the socialist market economy.
3. Strengthen the protection of minority shareholders and promote improvements in corporate governance structure.Introduce, in due course, judicial interpretations relevant to the Company Law, and correctly deal with the validity of resolutions, shareholder right to know, right to dividends, preemptive rights, and shareholder representative litigation and other disputes. Strengthen the protection of shareholder rights according to the law, promote the standardization of corporate governance, enhance our international imagine in protecting the rights and interests of minority shareholders, and the enthusiasm of social investment.
II. Accurately grasp the market access standards, and the construction of an open services economic system.
4. Do a good job of combining this with the business system reform and promote the formation of a business environment that is more conducive to mass enterpreneurship, and to mass innovation. Properly deal with the influence of the reform of the commercial registration system on adjudication work, and resolutely promote a solution to problems in the application of law following the reform of the registered capital system.Use big data and modern information technology, and actively promote the establishment of a national unified registration platform for all types of property rights, and a registration platform for financial transactions, to make market transactions more convenient and transparent.
5. Accurately grasp the foreign investment negative list system, and promote the effective use of foreign capital.In dealing with disputes involving foreign-invested enterprises, implement each decision in the reform of the foreign investment management system in accordance with the law, accurately grasp the contents of the negative list system of foreign investment and changes in the list, and properly deal with problems in the application of law related to restrictions for foreign investments, and restriction for equity that arise during the gradual opening-up of the field of foreign investments.
6. Hear all kinds of foreign-related commercial maritime cases according to the law, provide service to and guarantee the implementation of major national strategies such as the “One Belt One Road”.Give full play to the role of the adjudication function, to the exercise of jurisdiction according to the law, to the fair and highly efficient heading of all types of foreign-related commercial maritime cases, to the equal protection of the procedural rights and the substantive rights and interests of Chinese and foreign parties. Strengthen international judicial assistance along the perimeter of the ‘One Belt One Road’, improve relevant work mechanisms, solve disputes in a timely fashion, and create a good legal environment for the construction of the ‘One Belt One Road’ according to the ‘Opinions of the Supreme People’s Court on Providing Judicial Service and Safeguards to the Construction of the ‘One Belt One Road’.
7. Strengthen civil and commercial adjudication in the Pilot Free Trade Zone, and provide judicial safeguards for the construction of a new open economic system. Implement the ‘Opinion of the Supreme People’s Court on Providing Judicial Safeguards for the Construction of the Pilot Free Trade Zone’, actively cooperate with the transformation in government function in the Pilot Free Trade Zone, open the investments field, change the mode of trade development, open innovation in fields such as finance an in all reform measures, hear all kinds of cases in the Pilot Free Trade Zone fairly and in a highly efficient way, guarantee systemic innovation in the construction of the Pilot Free Trade Zone. In the course of case hearings, where systemic defects related to the market rules in the Pilot Free Trade Zone are found, promptly put forward judicial put forward the judicial proposals, and continue to promote the construction of the rule of law in the Pilot Free Trade Zone.
8. Propose legislative motions, amendments and formulate, revise judicial interpretations in due course, to provide a good legal protection for foreign investments. Clean up judicial interpretations and policy documents related to foreign investment, and promptly revise or abolish judicial interpretations and policy documents which are inconsistent with the basic policies and principles of the opening-up to the outside.Where there is a need to enact and formulate laws and regulations relevant to the solution of problems, promptly propose legislative motions, amendments. Where there is a need to issue judicial interpretations to solve problems, promptly issue judicial interpretations.
III. Ensure fair and impartial market transactions, and earnestly protect the legitimate rights and interests of market subjects.
9. Strengthen the protection of property rights, and consolidate the systemic foundation of a good business environment.Strictly implement the ‘Opinion of the CPC Central Committee and the State Council on Improving the System to Protect of Property Rights, and Protecting Property Rights According to the Law’ and the ‘Opinion of the Supreme People’s Court on Fully Bringing into Play the Function of Adjuciation and Resolutely Strengthening Property Rights Protection’, improve all types of rules and regulations on market transactions, appropriately handle the cases of property rights protection, and promote the establishment of a legal system mechanism to protect property rights. Deeply study and reasonably protect new types of rights, scientifically define the boundary of property right protection, properly mediate the conflict of rights, and conscientiously realize the legalization of property right protection.
10. Hear various types of contract cases according to the law, respect the freedom of contract, and maintain contractual justice.Respect and protect the autonomy of market subjects, reasonably judge the effectiveness of contracts on all types of transaction models and on innovation in all kinds of transaction structures, promote the market to play a decisive role in the allocation of resources, and promote the vitality of the market economy.Determine the validity, effectiveness, revocability, rescindability of contracts in strict accordance with the law and with the provisions of judicial interpretations, and maintain contractual justice. Proclaim fair rules and regulations on the exercise of rights, and the legal consequences for violating obligations to all kinds of market subjects through such means as the adjudication of cases, and through the issuance of guiding cases in due course. Strengthen the awareness of contracts, the awareness of rules and regulations, and the sense of responsibility among market subjects. Properly deal with the intersection of civil actions and civil punishments, clarify the applicable boundary of law, establish corresponding mechanisms, and accurately grasp the yardstick of adjudication.
11. Properly handle all kinds of financial cases and provide financial and judicial support to optimize the business environment.Hear cases about financial loans, guarantees, bills, securities, futures, insurance, trusts, private loans and other cases in accordance with the law, protect legal transactions, balance the interests of all parties.Guide and standardize all types of financial behaviors with the goal to serve the real economy. Carefully examine various types of financial innovation trading patterns, contract effectiveness, speed up the study of corresponding judicial interpretations and judicial policies.Severely strike at all kinds of financial crimes and maintain financial order.Strengthen the protection of consumers of financial products, and conscientiously safeguard their legitimate rights and interests.Strengthen the construction of specialized institutions and troops for financial adjudication, and continuously improve the professional level of financial adjudication.
12. Hear all types of intellectual property cases according to the law, increase the protection of intellectual property rights, enhance the level of protection of intellectual property.Strictly implement the ‘Outline on the Judicial Protection of Intellectual Property Rights in China (2016 – 2020), and continue to promote the work of adjudication of intellectual property rights.Strengthen research on legal issues of the protection of intellectual property rights in emerging fields and industries, introduce judicial interpretation and judicial policies in due course, and promote the perfection of laws, regulations and systems on intellectual property protection.Strengthen the construction of the court system on intellectual property rights, give full play to the institutional advantages of the specialization of judicial organs, full-time adjudication personnel and the specialization of trial work.Further exert the judicial supervision function on intellectual property rights, augment the depth and breadth of judicial review on the administrative authorization and determination of intellectual property rights, promote improvements in review mechanisms of the effectiveness of rights in intellectual property rights litigation, reasonably strengthen the guiding role of civil litigation in the settlement of cross dispute on civil actions under specific circumstances, and promote the substantive resolution of administrative disputes on intellectual property rights.Comprehensively use civil, administrative and criminal means to severely punish all kinds of infringement of intellectual property rights, and misconducts, and let the infriger pay the corresponding costs according to the law.
13. Promote the establishment of a unified and open socialist market system to promote orderly market competition.Regulate all kinds of monopolistic behavior and unfair competition strictly and in accordance with relevant laws and regulations on competition, properly deal with cases that destroy the rules of market competition, and give full play to the role of judicial judgments in guiding and maintaining a fair environment for market competition.Further standardize administrative institutions’ act of examination and approval of licences, and break up departmental monopolies and local protectionism through such methods as the construction and the improvement of a system of jurisdiction appropriate to the separation in administrative divisions. Promote the formation of clear and effective, fair and impartial, transparent and efficient, legal protections of the market supervision layout, in order to provide judicial safeguards to the maintenance of a fair and orderly market competition environment.
14. Strengthen enforcement, fully guarantee the realization of the winning party’s legitimate rights and interests.Overall construct comprehensive governance to carry out difficult work deployments, and improve the regulatory system to enforce law, strengthen the informatization of enforcement, increase the degree of enforcement, regulate enforcement actions according to the demands of the ‘Outline on the Work of Implementing the Using Two or Three Years of Time to Basically Solve the Problem of Enforcement’, to conscientiously enhance the deterrent effect of enforcement and optimize the effects of enforcement. Prosecute the criminal liability, according to the law, of parties who refuse to enforce judgments and rulings by the People’s Courts, assist executors and guarantors, strictly according to stipulations in the criminal law and judicial interpretations.
IV. Strengthen the construction of systems and mechanisms for bankruptcy, improve mechanisms to rescue and withdraw subjects in the socialist market.
15. Improve starting mechanism of bankruptcy procedures and mechanisms to identify bankrupt enterprises, and conscientiously solve the problem of filing bankruptcy cases.In accordance with relevant legal provisions and judicial interpretation, promptly accept bankruptcy cases that conform with the conditions to file a cases. No conditions additional to statutory conditions shall be set. Fully promote the work of transfering enforcement cases for bankruptcy review work, to achieve the good work deployment of “enforce according to the law where enforcement is possible, and declare bankruptcy according to the law where the entire enforcement procedure does not meet the statutory conditions for bankruptcy”. Actively explore simplified channels according to the difficulty degree of bankruptcy cases, promote the establishment of a simple and efficient fast trial mechanism. Attempt to include part of the cases where some of the facts are clear, the relationships between creditors’ rights and debtors is distinct, or are ‘no asset procedure cases’ in the scope of fast trial.
16. Promote the improvement of a bankruptcy reorganization and reconciliation system and push forward the regeneration of valuable enterprises.Guide parties to insolvency proceedings to fully understand the major role of the bankruptcy reorganization, reconciliation system in rescuing enterprises in a critical condition.Uphold market-oriented guidance to carry out the work of bankruptcy reorganization, pay more attention to business integration and asset reorganization, use the rights of compulsory approval strictly according to the law, to achieve the core values and systemic objectives of the reorganization system. Actively promote the construction of a mutual cohesion mechanism between out-of-court merger and reorganization and in-court bankruptcy procedure, and strengthen exploration and research on the pre-reorganization system.Study and formulate judicial interpretations on bankruptcy reorganization.
17. Severely strike at all kinds of acts avoiding the repayment of debts, and conscientiously safeguard the legitimate rights and interests of market subjects.Severely strike at the malicious avoidance of the repayment of debts, use such means in bankruptcy procedure as the consolidated bankruptcy of affiliated enterprises, bankruptcy revocation and the right to return to ding and recover debtor property. Increase criminal punishments for such criminal offenses as the concealment, deliberate destruction of accounting vouchers, accounting books, and financial accounting reports.
18. Coordinate and improve matching systems in bankruptcy to promove the relevant level of rule of law.Promote the establishment of a special fund for bankruptcy expenses to support expenditures in ‘no asset procedure’ cases.Bankruptcy trials should be integrated into the construction of the Social Credit system, and punishment should be increased on subjects who breach trust.Promote the enactment of laws and regulations on preferential taxation for the exemption of debts and property disposal for bankrupt enterprises, and effectively reduce the tax burden on bankrupt enterprises.Coordinate to solve the problem of restoring the credit of enterprise that have been successful in reorganization or reconciliation, and promote their return to the market. Promote the unified coordination mechanism of joint work on bankruptcy by governments and courts, and promote professional coordination, the provision of information, and the maintenance of stability in bankruptcy proceedings. Actively coordinate the government’s use of award funds to supplement funds or set up special funds to properly handle the problem of employee placement and benefit protection.
19. Strengthen the organization of bankruptcy adjudication, and the construction professional troops to manage bankruptcy, and promote the continuous development of the level of overall work on bankruptcy adjudication. Promote the establishment and construction of a bankruptcy tribunal, and raise the professional level of bankruptcy adjudication organization and personnel.Research and enact judicial interpretations on bankruptcy managers, accelerate the construction of professional bankruptcy managers. Improve support mechanisms relevant to performance in bankruptcy trials, and improve the efficiency of the work of bankruptcy adjudication.
V. Promote the construction of a social credit system and provide credit safeguard for the a sustained improvement in the business environment.
20. Fully use information technology to promote the continuous improvement in the construction of a social credit system.Explore the deep fusion of the paths of constructing a social credit system and adjudication and enforcement by People’s Courts, promote the establishment of a mechanism to collect, share, and use big data by judicial organs, which are related to credit information on market subjects, strengthen the force of the work of joint incentives to those who maintain trust and of joint punishment of those who breach trust.
21. Severely punish frivolous litigation and promote the construction of integrity in litigation.Prosecute criminal responsibility for the perpetrators of such conducts as filing false lawsuits and interfering with testimony severely and in accordance with stipulations of the lawIntroduce relevant judicial interpretations in due course, specify conviction and sentencing guidelines for the crime of filing false lawsuits.Improve regulatory mechanisms on the provision of false evidence, deliberately failing to meet deadlines in offering evidence, and other dishonest conducts in litigation, and severely punish breaches of trust in litigation.
22. Strengthen the credit punishment for parties who have breached trust, and promote improvements in the mechanism to punish breaches of trust.Continue to improve the disclosure of information on the list of persons subject to enforcement for breaching trust, systemic regulation to limit high-end consumption by persons subject to enforcement, and severely punish persons subject to enforcement for breaching trust according with the requests posed by the CPC Central Committee and the State Council ‘Opinion on Accelerating the Construction of a Supervision, Warning, and Punishment System for Persons Subject to Enforcement’. Promote the improvement of the credit punishment deployment where by subjects who breach trust ‘breach trust in one field, and are limited in any other field’, promote the construction of social integrity, and achieve long-term governance.
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