All jurisdictions have laws that are designed to maintain public confidence in the legal system and prevent interference in the administration of justice. In particular, it is important to ensure that the courts function properly, and that their work – and the respect that the community has in their work – is not damaged or undermined, either during the course of court proceedings or outside the context of court proceedings. In common law jurisdictions, the courts have the power to punish persons for refusing to comply with court orders, and for engaging in other conduct that is disrespectful to the courts, or interferes with the administration of justice in some way. The name that is given to such conduct – or the offence that is committed by engaging in such conduct – is contempt of court. This column outlines the laws governing contempt of court in common law jurisdictions and examines the position in mainland China by comparison.
Common law jurisdictions
The English word contempt traces its roots to the Latin word contemnere, meaning “to scorn or despise”. In common law jurisdictions, a distinction was traditionally drawn between civil contempt and criminal contempt. The purpose of civil contempt powers was to enforce compliance with court orders or to prevent frustration of court orders. The purpose of criminal contempt powers, on the other hand, was to punish and deter interference in the administration of justice. As both forms of contempt involve the same procedures and can lead to the same consequences (including imprisonment and fines), the distinction often does not have any real significance. If the contempt is treated as criminal, it must be proven beyond a reasonable doubt in the same way as any other criminal offence.
In civil proceedings in the US, courts distinguish between direct contempt – where a person commits contempt in the presence of the judge – and indirect contempt, where the conduct or of misbehaviour does not occur in the courtroom and includes the situation where a person fails to comply with a court order (this is also sometimes referred to as constructive or consequential contempt).
Contempt of court can take many forms and is governed both by legislation and also common law principles that have been formulated by the courts (for a discussion of judge-made law, see China Business Law Journal volume 3 issue 2: Binding or persuasive?). The three main types of contempt of court are outlined below.
A former partner of Linklaters Shanghai, Andrew Godwin teaches law at Melbourne Law School in Australia, where he is an associate director of its Asian Law Centre. Andrew’s book is a compilation of China Business Law Journal’s popular Lexicon series, entitled China Lexicon: Defining and translating legal terms. The book is published by Vantage Asia and available at law.asia/china-lexicon/.