On December 20, 2011, the Supreme People’s Court released its first batch of guiding cases, marking the official beginning of China’s Guiding Case system. From the perspective of the Provisions of the Supreme People’s Court Concerning Work on Case Guidance (hereinafter referred to as the Provisions”) released and implemented on November 26, 2010,  the guiding cases released by the Supreme People’s Court are demonstrative, regulatory, and instructive. They aim to help judges accurately understand the spirit of the law, unify standards of applying the law, and regulate judges’ judicial discretionary power. Since 1985, when the Supreme People’s Court Gazette began publishing cases with guiding value, the Selected Cases of the People’s Court and the China Law Reports compiled by the Supreme People’s Court and the adjudication documents released by the Supreme People’s Court have played a significant role in guiding trial judges. But this time, the Provisions apparently transform the case guidance from being “soft reference” to “hard reference”,  and this new legal system will undoubtedly have a profound impact on future adjudication practice. Judges are faced with the immediate question of how to apply and effectively use this new legal system in judicial practice. This article will provide a preliminary discussion of a few questions on how to apply [the guiding cases].
First, what kinds of cases may refer to the guiding cases? Article 7 of the Provisions points out that People’s Courts at all levels should refer to the guiding cases when adjudicating “similar cases.” How are “similar cases” to be identified? Mr. HU Yunteng, Director of the Research Office of the Supreme People’s Court, interpreted the Provisions, suggesting that this question should be determined on the basis of the similarity between the behavior, nature, and disputes of the cases. A guiding case can be referred to only when both the basic facts of the pending case and the guiding case and the legal issues disputed by the parties are similar.  In civil cases, “similar cases” should refer to those which share the same cause of action, similar factual backgrounds, and the same disputed issues; disputed issues should include not only factual disputes but also legal disputes. For instance, Shanghai Centaline Property Consultants Limited v. TAO Dehua, an Intermediation Contract Dispute (Guiding Case No. 1),  aims to resolve disputes between a buyer and an intermediary company arising out of the buyer’s “bypassing” acts during the purchase of second-hand housing. In order to refer to that guiding case, a pending case must also involve a dispute over an intermediation contract, and the issue disputed between the parties is also whether a “bypassing” act exists, leading to a breach of contract. To decide whether or not to refer to Guiding Case No. 1, the court must decide as a factual matter whether the buyer’s acts are similar to the facts in this guiding case such that “the housing information was acquired through legitimate means.”
Next, which part of the case may be referred to? The guiding cases that have been released are composed of six parts, including: Keywords, Main Points of the Adjudication, Related Legal Rule(s), Basic Facts of the Case, Results of the Adjudication, and Reasons for the Adjudication. May the whole case be referred to, or only certain parts of it? In contrast to cases in common law countries, the guiding cases do not release all the facts; instead, facts are summarized and abstracted in a way that furthers the guidance objectives of the case. This is more like a new form of judicial interpretation: one which is more vivid, easier to understand, and very different from the way in which common law countries abstract principles and rules from released cases. From my perspective as a judge of a basic-level court, the “Main Points of the Adjudication” are similar to rules abstracted from released cases by the Supreme People’s Court, and are the key parts to which judges need to refer. Whether they can be referred to by pending cases depends on how the Basic Facts, the Results of the Adjudication, and the Reasons for the Adjudication are compared and distinguished. Furthermore, in referring to the guiding cases, it is important to identify the rules of the adjudication as well as the underlying value judgments, and not merely make mechanical comparisons.
Third, may the guiding cases be cited? According to Article 7 of the Provisions, the court should refer to the guiding cases when adjudicating similar cases. “Refer” should be construed as “consult and follow.”  If the judge does not refer to the relevant guiding case in a similar case, an upper level court can reverse the judgment. But this alone cannot be the reason for citing guiding cases. So far there is no legal authority to support the proposition that guiding cases can directly become a legal source, and their validity cannot be equivalent to that of judicial interpretations. At most, they may be regarded as “quasi-judicial interpretations” and cannot be cited as the basis for deciding a case. However, they should be used as the basis for supporting the reasoning parts of adjudication documents. Additionally, in a judge’s decision, the judge must state his rationale for referring or not referring to a certain guiding case.
Fourth, may judges refer to guiding cases on their own initiative? When one or both parties request that the court refer to a certain guiding case, this should be regarded as the litigant’s opinion as to the application of the law. In such cases, the court must, in the reasoning parts of the adjudication documents, reply and explain whether or not the guiding case is referred to. If neither party requests a reference but the judge believes that the pending case may require reference to a particular guiding case, may he initiate the comparison? I think the answer is yes. In judicial practice, it is often the case that the applicable rules or judicial interpretations put forward by the parties are inaccurate or incomplete. Under such circumstances, the judge may, in the reasoning part of the decision, explain the reason for applying certain legal rules to the case and may directly cite the correct legal provisions. This is based on the judge’s responsibility to apply the law correctly without being limited by the litigation abilities of the parties or by any deviations from their litigation strategies. For the same reason, in the application of the guiding cases, even if neither party requests that the court refer to a certain guiding case, the judge still has an obligation to properly enforce the adjudication rules established through the guiding case system by the Supreme People’s Court.
A related question is: when neither party requests that the court refer to a certain guiding case, may the judge put forward the guiding case on his own initiative in court and let the parties debate it? Since the debate between the parties can strengthen the comparison between the guiding case and the pending case, letting the two parties debate is very conducive to screening for similar cases. However, the problem is that whether or not a guiding case is referred to often affects the adjudication of the case. If the judge takes the initiative to bring up the possibility of referring to a certain case that is of referential value, this can very easily cause him to lose his neutrality. Therefore, I personally believe that if a judge needs to refer to a certain case on his own initiative and also hopes to screen out similar cases through trial proceedings, he can make a list of factual characteristics that are needed for the screening and can verify these facts through the court investigation conducted during the trial of the pending case.
The Guiding Case system is a new type of legal system that provides beneficial supplements to statutory law. As released guiding cases increase, the system can solve many problems in adjudication practice. However, because a guiding case is prepared with an emphasis on abstracting guiding principles, and because of significant regional differences in China, the guiding cases released by the Supreme People’s Court might not be timely and practical enough to meet the needs of local courts. There is still a need for the timely release of some cases that are of referential value as “soft guidance” by individual High People’s Courts. 
* This court has been designated a Court for National Alternative Dispute Resolution Initiatives by the Supreme People’s Court of the People’s Republic of China.
** The citation of this Commentary is: CHEN Kui, How to Apply the Guiding Cases of the Supreme People’s Court in Judicial Practice, China Guiding Cases Project, Apr. 22, 2012, available at https://cgc.law.stanford.edu/commentaries/3-judge-chen. For the Chinese version of the Commentary, see陈葵 (CHEN Kui), 司法实务中如何适用最高法院指导性案例 (How to Apply the Guiding Cases of the Supreme People’s Court in Judicial Practice), 中国指导性案例项目 (China Guiding Cases Project), Apr. 22, 2012, available at https://cgc.law.stanford.edu/commentaries/3-judge-chen.
This English version was primarily prepared by Robin LIN, Jing MA, Joelle TJAHJADI, Mengqi WANG, and Randy WU. The document was reviewed by Dr. Mei GECHLIK, Director of the China Guiding Cases Project and finally approved by the author. Minor editing, such as splitting long paragraphs and adding a few words included in square brackets, was done to make the piece more comprehensible to readers. The following text, otherwise, is a direct translation of the original text and reflects formatting of the Commentary written by CHEN Kui.
 《最高人民法院关于案例指导工作的规定》(Provisions of the Supreme People’s Court Concerning Work on Case Guidance), passed by the Adjudication Committee of the Supreme People’s Court on Nov. 15, 2010, issued on and effective as of Nov. 26, 2010, China Guiding Cases Project, English Guiding Cases Rules, June 12, 2015 Edition, available at https://cgc.law.stanford.edu/guiding-cases-rules/20101126-english. For the original Chinese text, see 《最高人民法院关于案例指导工作的规定》，于2010年11月15日由最高人民法院审判委员会通过，公布日期和施行日期是2010年11月26日，中国指导性案例项目，中文指导性案例规则，2010年11月26日（最终版本），https://cgc.law.stanford.edu/guiding-cases-rules/20101126-chinese.
 Author’s note: In this context, the terms “soft” and “hard” mean “non-compulsory” and “compulsory” respectively.
 See 《“两高”研究室主任详谈“中国特色案例指导制度”的构建》(A Detailed Discussion of the Establishment of the “Guiding Case System with Chinese Characteristics” by the Director of the Research Office of the “Two Supremes”),《法制日报》(Legal Daily), Jan. 5, 2011. Translator’s Note: The term “Two Supremes” refers to the Supreme People's Court and the Supreme People's Procuratorate.
 Shanghai Centaline Property Consultants Limited v. TAO Dehua, An Intermediation Contract Dispute, China Guiding Cases Project, English Guiding Case (EGC1), Jan. 9, 2012, available at https://cgc.law.stanford.edu/guiding-cases/guiding-case-1.
 Translator’s Note: “Refer” (参照) is a composite of the Chinese words for “consult” (参考) and “follow” (遵照).
 Author’s Note: “soft guidance” here means guidance that is supplementary and not overly emphasized.