Suggestions of Shanghai Court on Serving and Guaranteeing the Construction of China (Shanghai) Pilot Free Trade Zone
In accordance with the decision-making deployment of the third plenary session of the 18th Central Committee of CPC on deepening reform in all-round way and the overall objective and requirement of China (Shanghai) Pilot Free Trade Zone (hereinafter referred to as the PFTZ, for the purpose of giving full play to the role of trial functions, better serving and guaranteeing the general situation of the construction and in line with the working actuality of Shanghai Court, the following suggestions are put forward:
I. Comprehend profoundly the strategic meaning of the PFTZ construction and strengthen the general sense and obligation consciousness of providing strong judicial guarantee therefore
1. Realize the full strategic meaning of the PFTZ construction. Carry out in depth the essence of the third plenary session of the 18th Central Committee of CPC o, tightly focus on the state strategy, comprehensively grasp new requirement and new task brought by the PFTZ construction to work of the people’s court, endeavor to provide strong judicial guarantee and quality, efficient law service for building the PFTZ up to the international level.
2. Earnestly enhance progressive consciousness, and sense of opportunity and responsibility. As required for taking the lead in establishing the cross-border investment and trade regulation system in line with international practice and rule of law and for vigorously cultivating international and legalized business environment, give full play to the role of judicial functions. Strengthen prospective thinking, actively make initiative study of new situation and new problem arising from adjusting laws, regulations and policies relating to the PFTZ, amplify and perfect every item of working mechanism to meet demands for serving and guaranteeing the PFTZ construction, so as to let every party at home and abroad feel fairness and justice in every judiciary case.
II. Update judiciary philosophy, actively and accurately meet the judiciary demand of the legalized and internationalized business environment of the PFTZ.
3. Further enhance the legal concept. Based on the law-governing idea of administration by law, independent judgment, openness and transparency, proper procedure, equal protection and just judgment, make clear the market trading rule, maintain according to law the trading act effectiveness, normalize the market trading order, guide the market anticipation, promote honesty and credibility and give play to the appraisal, demonstration and guiding role of judicature to investment, trade and such other activities.
4. Further expand the international vision. Draw lessons from international useful experience, intensify the guarantee of investment and trade rights and interests, and promote fair competition among various market subjects. Exercise according to law the judicial jurisdiction of foreign-related cases, accurately apply laws, international treaties concluded or participated in by our country, and international commercial trading conventions, and make efforts to provide quality law guarantee for the internationalized business environment.
5. Further respect market law. Deepen the understanding of market economic law, resolutely maintain the decisive role of market in the resources’ allocation, fully respect the autonomy of market subject idea, commercial trade conventions and rules, guarantee trade freedom and safety, and support market innovation. Supervise according to law and support administrative organs in strengthening market supervision by means of legal thinking and rule of law, and advance innovation in society governing.
III. Deepen judiciary reform, explore and accumulate reproducible and propagable judiciary guarantee experience
6. Advance the reform of judiciary system in an active and stable manner. Strengthen the building of judicial organs in the PFTZ, study and practice the concentrated jurisdiction mechanism for cases of investment, trade, finance and intellectual property right relating to the PFTZ, raise the level of litigation facilitation and constantly perfect the rapid response of execution and link-up mechanism so as to ensure the settlement of relevant disputes in a fair, professional and efficient manner.
7. Explore the reform of executive mechanism of adjudicative power. Scientifically set up trial organizations, further optimize the allocation of judicial authority, rationally determine the terms of reference of various trial organizations; perfect the case handling responsibility system of presiding judges and collegial panels to let inquisitors make judgment and judges take responsibility; improve the professional trial mechanism, exercise special control over cases relating to the PFTZ, and establish systems of case information report analysis and multi-level guide and supervision so as to vigorously improve the professional level of judgment.
8. Push forward judicial openness in an all-round way. Strengthen in an all-round way the building of informatization platform for trial work in the PFTZ, make open in a timely manner the full trial procedure, judicial documents and execution information, so as to improve the public’s understanding of, trust in and supervision over trial work in the PFTZ through live broadcast of Internet court hearing, release of typical case information and other modes.
9. Constantly expand judicial functions. Strengthen judicial statistics analysis of PFTZ-related cases, establish a mechanism of relevant dispute trends and early risk warning, and actively offer advice and suggestions for industrial development, institutional innovation, government decision-making and perfect legislation in the PFTZ by use of white paper of trial, judicial proposals and other modes.
10. Vigorously drive the mechanism for settling disputes in the PFTZ getting strengthened and perfected. Strengthen and improve the judicial review of commercial arbitration award, safeguard according to law and encourage innovation in the PFTZ commercial arbitration system, and advance the institution of commercial arbitration system with international standard and public confidence; strengthen link-up in mediation with trade associations, commerce chambers, and other legal commercial mediation organizations, and strive to make PFTZ-related disputes settled in an efficient, convenient and economical manner.
11. Consciously and actively accept supervision. Consciously accept supervision by the people’s congress and its standing committee, earnestly accept the democratic supervision by the people’s political consultative conference, solicit the opinions of a wide cross-section of society, and constantly improve relevant trial work.
IV. Give full play to the role of trial functions, and provide judicial guarantee and service in order to accelerate the transformation of governmental functions and promote the development of trade and investment in the PFTZ
12. Guarantee according to law and promote the enlarged open-up of investment field. As required by the negative list administration mode, commercial registration system and reform of overseas investment management mode, make intensive study of law applicability relating to civil commercial disputes in the enlarged opening-up of fields such as financial service, shipping service, commercial and trade service, professional service, cultural service and social service, accurately apply laws, regulations and decisions on adjusted implementation of relevant laws and regulations, so as to safeguard the legitimate rights and interests of domestic and foreign investors.
13. Ensure according to law and promote a change in the trade development mode. Attach great importance to hearing cases relating to service trade, international bulk goods, resources trading, foreign cultural trade, cross-border e-commerce, outsourcing business, off-shore business and international trade settlement, strengthen study of legal issues relating to new business modes, support innovation development, promote fair competition, work hard to create a good legal environment in order to push forward trade transformation and upgrading, and elevate our country’s position in the global trade value chain.
14. Ensure according to law and promote the opening-up and innovation in the financial field. Make every effort to support innovation in the financial system, enhance the financial service function. Strengthen judicial protection for regulation-abiding business activities of various financial institutions at home and abroad, safeguard according to law the regulation-abiding cross-border financial trade activity. Hear in a proper manner various financial dispute cases relating to financial innovation, support and encourage the prior try and make effective precaution against any financial risk.
15. Ensure and promote according to law the elevation of international shipping capacity. Give full play to the advantages of maritime professional trial system, and earnestly enhance the sense of service and the perspective of work in maritime trial. Strengthen survey of law applicability in the course of innovation development of shipping services such as shipping finance, international marine transportation, international ship administration, international shipping brokerage, shipping freight index derivative exchange, shipping register and international air transportation, support and ensure the functional building of shipping hub in the PFTZ by making fair and efficient adjudication and normalizing shipping market activities.
16. Give play to the dominant role of judicial protection for intellectual property right (IP). Utilize according to law the civil, administrative and criminal judicial protection measures, make more efforts to protect IP, lower the cost in safeguarding rights and raise the cost in tort. Give full protection to the legitimate rights and interests of IP owners, give play to the important role of incentive innovation in IP, arouse the innovative vitality, form a good market environment of respect for knowledge, innovation advocacy, credibility and law observance, and fair competition, and promote the innovation driving development, economic transformation and upgrading.
17. Give legal support to quicken the shift of governmental functions. By discharging administrative trial duties according to law, support the PFTZ in deepening the reform of administrative management system so as to accelerate the shift of governmental functions, reform and innovate in the government administration mode, advance the institution of an administration system compatible with international high-standard investment and trade rule system. By the fair hearing of various administrative cases relating to administrative examination mode change, information opening, and market supervision and law enforcement, supervise and support law-based administration by administrative organs, give play to the overall link-up role of administrative judgment with civil and commercial trial, make efforts to provide judicial guarantee for the building of a law-based administration environment in line with the requirements of the PFTZ construction.
18. Attach importance to the functional role of criminal justice maintaining market economy order. Strictly punish according to law the criminal activities of producing and selling counterfeit or inferior quality goods, commercial bribes, and infringement upon IP or property. According to legal provisions regarding the PFTZ deepening reforms and opening up wider, cautiously handle criminal cases relating to money laundry, smuggling, destroying financial administration order, jeopardizing company and enterprise management order and disturbing market order. Enhance communication and cooperation with relevant function departments, and pay attention to maintenance of economic order and social stability in the PFTZ.
V. Strengthen the building of contingents, make efforts to build a contingent of judges that meets the requirements of the construction of the internationalized and law-based PFTZ
19. Strengthen talent cultivation and optimize talent structure. Push forward the construction of a standardized, vocational and professional contingent, select and cultivate a batch of specialist and composite-type judges proficient in domestic and foreign laws and familiar with economy and prevailing investment and trade rules and conventions, and possessed of international vision, rich trial experience and strong trail ability to let them assume effectively the judicial responsibility of the PFTZ.
20. Enhance study and training to improve judicial ability. Optimize the structure of knowledge, explore the mechanism of judges taking exercise on multi-post and cross-department study, strengthen training on economic and financial knowledge including the State’s macro-economic policy and international investment and trade, and improve study of knowledge regarding international commercial trade conventions and new trading modes so as to cultivate trial talent meeting the judicial demands of the PFTZ.