According to a report published on the official website of the People’s Court Daily on 11 October 2017, the Supreme People’s Court (“SPC”) issued the Implementing Opinions on the Opinions on the Behaviour of Civil Servants after Resigning from Public Service, with immediate effect.
The Opinions on the Behaviour of Civil Servants after Resigning from Public Service 2017 were jointly issued in May 2017 by the Organisation Department of the Communist Party of China (“CPC”) and various government agencies.
The implementing opinions, which aim to enhance the authority and credibility of the judiciary by regulating the behaviour of judges and other SPC personnel after they leave the judiciary, follow the framework and content of the opinions. Together, the opinions and implementing opinions represent another step in China’s ongoing anti-corruption campaign.
According to the report, the restrictions in the implementing opinions are triggered when personnel of the SPC resign, obtain lawful approval to terminate their employment relationship with the SPC, and become self-employed or employed by an enterprise (other than a state-owned enterprise (“SOE”)).
The implementing opinions divide SPC personnel into two groups according to their respective administrative rank:
- Judges and trial support staff.
- Judicial administrative staff.
Each group is subject to a separate set of restrictions. Specifically:
- Those with an administrative rank of judge or higher may not engage in profit-making activities directly related to their original field of public service for three years.
- Judges and trial support staff are banned for life from litigating on behalf of plaintiffs or defendants in their original court (with minor exceptions).
- Those with a lower administrative rank are restricted from engaging in profit-making activities directly related to their original field of public service for two years.
Personnel are subject to investigation at least once a year during the relevant restricted period. Those found to have violated the provisions of the opinions and implementing opinions will be ordered to cease their illegal behaviour, and may forfeit or be penalised up to five times the amount of any illegal gain. CPC members are subject to discipline under party rules.
Jianwei (Jerry) Fang, Partner, Zhong Lun Law Firm, Shanghai
“The revolving door between public service and the private sector has been a common but controversial phenomenon around the globe. While some restrictions have existed under the Judges Law for years, the implementing opinions further elaborate the restrictions recently imposed on public officials and apply to former SPC judges and personnel amid a wave of judges quitting for private practice in recent years. The implementing opinions have attracted significant attention from the legal community, though many commentators mistakenly believe they apply nationwide, that is, beyond the SPC. As a former judge, I believe it is possible that provincial and lower level courts could follow suit and adopt similar measures, but the practical impact of the implementing opinions remains to be seen.”
General Counsel, as well as counsel in private practice, should be aware of the restrictions on hiring former SPC personnel and keep an eye out for similar developments in the lower level people’s courts.