Traditional Commentary No. 23

On the Issue of the Application of the Supreme Court’s Guiding Cases

Date of Publication:
2018/06/15
Author(s):
  • Judge GUO Feng, Deputy Director, Research Office of the Supreme People’s Court

Commentary

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Distinguished guests, distinguished Dr. Mei Gechlik, ladies and gentlemen:

Good morning!

On the Issue of the Application of the Supreme Court’s Guiding Cases
Judge GUO Feng

First of all, on behalf of the Research Office of the Supreme People’s Court of China (the “Supreme Court”), I congratulate the China Guiding Case Project of Stanford Law School on the grand opening of the conference hosted in Beijing. I welcome advice and suggestions regarding China’s Guiding Cases from professionals from the United States, Japan, and China, including professors, judges, and lawyers. I thank Dr. Mei Gechlik for inviting me to participate in the conference and for providing opportunities for mutual learning and sharing.

I work for the Supreme Court and my work mainly focuses on Guiding Cases.  Ever since joining the Supreme Court in 2014, I have handled nearly all of the Guiding Cases before their submission to the Adjudication Committee [of the Supreme Court].  I will briefly introduce the application of the Supreme Court’s Guiding Cases as well as some issues and my personal thoughts [on this subject].

The Supreme Court’s Guiding Cases refer to rulings and judgments that have already come into legal effect, that have been confirmed and released by the Supreme Court according to prescribed procedures, and that have universal guiding effect. [1] Guiding Cases, constituting an innovative system developed from China’s rule-of-law system, have enriched and developed the in-depth content of China’s judicial system by their functions of remedying deficiencies in statutory law, unifying the judiciary, regulating adjudication, and promoting an impartial judiciary.  Guiding Cases are of significant importance and value in guiding judges on handling adjudications in accordance with law, unifying judicial standards, and regulating discretionary power.  In China, Guiding Cases, as seen from their nature, are a form of interpreting law [through which] judges interpret law rather than make law, and [a form of] summarizing legal rules and principles rather than creating legal rules and principles.  Unlike binding precedents in Anglo-American legal systems, Guiding Cases are not sources of law.  That said, under the premise of not affecting formulated laws as the major source of law, Guiding Cases have inherited certain precedential elements from traditional Chinese legal culture and, at the same time, have absorbed and borrowed some specific practices from the precedent systems of Western countries.

Ever since the release of the Provisions of the Supreme People’s Court Concerning Work on Case Guidance [2] by the Supreme Court in November 2010 and the release of the first batch of Guiding Cases on December 20, 2011, 17 batches totaling 92 Guiding Cases have been released.  Among these 92 Guiding Cases, there are 56 civil cases (including enforcement cases), accounting for 61% of all Guiding Cases; 15 criminal cases, accounting for 16% of all Guiding Cases; 17 administrative cases, accounting for 19% of all Guiding Cases; and 4 state compensation cases, accounting for 4% of all Guiding Cases.  Among the civil cases, there are 20 intellectual property cases, accounting for 36% of all civil cases, and 8 foreign-related cases (including intellectual property cases), accounting for 14% of all civil cases.

According to statistical analysis by the China Justice Big Data Institute, [3] from January 1, 2012, to July 12, 2017, a total number of 531 cases [adjudicated by] courts at all levels in China referred to and applied Guiding Cases, among which there are 489 civil cases, 35 administrative cases, and 7 criminal cases.  The characteristics regarding the application [of Guiding Cases in these 531 cases] are:

  1. In terms of regions where courts that applied [Guiding Cases] are located, Guangdong, Fujian, Shandong, Zhejiang, and other coastal provinces applied Guiding Cases more often, whereas the central and western regions applied them less often.
  2. In terms of the causes of cases, civil Guiding Cases were more frequently applied, including traffic accident liability disputes (accounting for 27.68%), sale and purchase contract disputes (accounting for 18.08%), and commercial housing pre-sale contract disputes (accounting for 10.92%).
  3. In terms of the level of adjudication, most cases that applied Guiding Cases were second-instance [cases], with second-instance civil cases accounting for 54% of the total number of civil cases [applying Guiding Cases], second-instance administrative cases accounting for 46% of administrative cases [applying Guiding Cases], and second-instance criminal cases accounting for 57% of criminal cases [applying Guiding Cases].
  4. Plaintiffs or appellants were the principal advocates for the application of Guiding Cases.  Of the 232 first-instance cases that referred to and applied Guiding Cases, 120 cases were [cases in which] a plaintiff proposed the application [of Guiding Cases], accounting for just over 52% [of the cases].  The remaining 299 cases that referred to and applied Guiding Cases were second-instance cases, with appellants advocating for the application of Guiding Cases in 200 (i.e., 67%) of these cases.
  5. The proportion of judges who took the initiative to apply Guiding Cases was not high.  Of all the 531 [cases included] in the statistics, the number of [cases in which] a judge took the initiative to apply a Guiding Case is [only] 126, 24% [of the total].  Nevertheless, more than half of the cases in which plaintiffs or defendants advocated for the application of Guiding Cases obtained the support of judges.

According to the Provisions of the Supreme People’s Court Concerning Work on Case Guidance, courts at all levels should refer to the Guiding Cases released by the Supreme Court when adjudicating similar cases. [4]  The term “refer to” includes two points.  First, it is a requirement of the adjudication process.  Where a case is similar to a Guiding Case, it requires the judge to follow, as closely as possible, the train of thought [used] in the adjudication of the Guiding Case and to reflect, as far as possible, consistency with the Guiding Case in the determination of the facts of the [similar] case and in the application of the adjudication bases, especially in the selection, understanding, and application of legal norms.  Second, it is a requirement of the adjudication results, i.e., there should be no obvious difference between the judgment of the similar case and the judgment of the Guiding Case.

The layout of Guiding Cases consists of seven sections: the “Title”, “Keywords”, “Main Points of the Adjudication”, “Related Legal Rule(s)”, “Basic Facts of the Case”, “Results of the Adjudication”, and “Reasons for the Adjudication”.  Of these, the “Main Points of the Adjudication” [section] is the summary of the main points of the Guiding Case.  [The main points of a Guiding Case] are the innovative determination of issues regarding applicable legal rules, adjudication methods, judicial concepts, etc. as well as their solutions, both of which are made by judges in interpreting and applying law during the process of adjudicating a specific case.  The [“Main Points of the Adjudication”] section is the core and essence of a Guiding Case and judges must refer to and apply [the section]. [5]  When adjudicating a similar case, judges should convert their correct understanding of the “Main Points of the Adjudication” of a Guiding Case into judicial determination of issues of legality and reasonableness in the [pending] case.

Considering that Guiding Cases are not sources of law, they should not be cited as legal bases in the holding section of adjudication documents, but they can serve as important reasons that influence judges during adjudication and be quoted in the reasoning part of the adjudication documents. [6] Establishing this kind of a requirement not only can lead judges to refer to Guiding Cases more often in handling cases, enhancing the persuasiveness of judgments and rulings, and fully using the guiding effect of Guiding Cases, but also is conducive to the objective presentation in adjudication documents of the judges’ train of thought during adjudication, increasing the transparency and credibility of adjudication.

The main reasons for the requirement that judges should refer to Guiding Cases when adjudicating similar cases are: first, the Case Guidance System would exist in name only if Guiding Cases were not granted a certain effect.  Because Guiding Cases are granted de facto binding effect, if a judgment or ruling that differs [with a Guiding Case] is rendered in a similar case, the judgment or ruling is subject to the risk of being amended when the upper-level court adjudicates the appeal of the case.  The reason for the amendment is ostensibly that the original judgment or ruling deviates from a Guiding Case, but is in fact that it violates the law on which the Guiding Case is based.  Second, [the selection of] Guiding Cases is confirmed after the Adjudication Committee of the Supreme Court discusses [them]; this reflects Supreme Court judges’ understanding of law and judicial opinions.  Applying the adjudication rules established by Guiding Cases when adjudicating cases similar to Guiding Cases is also [a type of] respect that judges in lower-level courts should have for the judicial opinions of the Supreme Court.

On the Issue of the Application of the Supreme Court’s Guiding Cases 1
Judge GUO Feng speaks at the 2018 Beijing conference organized by the China Guiding Cases Project

“Only in two sets of circumstances can judges not refer to Guiding Cases in rendering judgments and rulings.”

Only in two sets of circumstances can judges not refer to Guiding Cases in rendering judgments and rulings.  The first is where the [pending] case is indeed not similar to [any] Guiding Case.  The second is where, even though the [pending] case is similar to a Guiding Case, judges have sufficient reasons to explain why [they] should not refer [to the Guiding Case].  [In a situation] where judges should refer to a Guiding Case but do not do so, [the judges] must have persuasive reasons for this.  [In a situation] where [the judges] neither refer to [a Guiding Case] nor explain the reasons for [not referring to the Guiding Case], resulting in a judgment being entirely different from the Guiding Case and the loss of judicial impartiality, the judgment is possibly one that is not impartial and the [relevant] party has the right to appeal or petition [for retrial].  Courts, in adjudicating the second instance or the retrial of the case, should correct [the situation] in accordance with law.

When applying Guiding Cases, it is necessary to borrow, from Anglo-American case law, techniques for distinguishing [cases].  As we know, the techniques to distinguish previous precedents consist of three parts: (1) identifying the focal points of dispute in the litigation, (2) analyzing the reasons for the adjudication, and (3) making a choice about the results of the adjudication.  In China, the core of the techniques to distinguish [cases] is a determination of whether the Main Points of the Adjudication of a Guiding Case are applicable to the pending case; that is, a determination of whether [the pending case] is a similar case so as to decide [whether the Guiding Case should be applied].  The Supreme Court requires that courts at all levels, in adjudicating a case in which the basic facts and application of law are similar to those in Guiding Cases released by the Supreme Court, should refer to the relevant Guiding Cases. [7]  Of course, we understand that there are no universally applicable standards for the method of applying Guiding Cases.  [The method] involves various elements, including logic, rules, policy, the evaluation of interests, value judgments, formulated laws, and customary law.  Generally speaking, when utilizing techniques to distinguish [a case], judges should have a comprehensive understanding of the adjudication methods, adjudication rules, legal thinking, judicial concepts, and the spirit of the rule of law used in the Guiding Case.

There are two main opinions regarding the scope of what [in an applicable Guiding Case] should be referred to: one opinion is that the Guiding Case in its entirety should be referred to and applied.  The other opinion is that only the Reasons for the Adjudication and the Main Points of the Adjudication should be referred to.  Looking at precedents in Anglo-American legal systems and civil law systems, the parts of an adjudication document [showing] the process of judges’ reasoning and drawing conclusions as well as their rendering of the judgment or ruling are generally content of the precedent to which special attention needs to be given.  However, Guiding Cases are different from these precedents in that the Main Points of the Adjudication are specifically extracted and these main points are actually “retail” [products] of judicial interpretations. [8]  Therefore, the view of the majority tends to confine the scope of what should be referred to to the Main Points of the Adjudication; and while the entirety of a Guiding Case can serve as a reference for similar cases, it is not within the scope of what should be referred to.

In second-instance and adjudication supervision procedures, the function of Guiding Cases in unifying judicial standards should be emphasized and used.  Like the Supreme Court in any other country, the judgments, rulings, and decisions made by the Supreme Court of China should certainly have binding effect on adjudication in lower-level courts.  Since the Guiding Cases are decided on and released after being discussed by the Adjudication Committee of the Supreme Court, they have binding effect on adjudication in lower-level courts of similar cases.  If adjudications of similar cases conflict with Guiding Cases, they are essentially conflicting with the provisions of laws, regulations, or judicial interpretations on which Guiding Cases are based; therefore, they should be handled correspondingly in accordance with law.  For example, they [should be] amended or remanded for retrial.

Due to China’s vast territory, unbalanced regional economic development, and differences in judicial environments and competence, the work of the courts at all levels in China in recommending candidate Guiding Cases and in referring to and applying Guiding Cases does not develop in a balanced manner.  In general, there are currently three types of inconsistencies in the development of Guiding Cases.  First, the number of Guiding Cases that have been released is inconsistent with the dramatic increase in [the number of] cases in courts nationwide and the growing judicial demands of the people.  Second, the traditional way in which Guiding Cases are primarily recommended hierarchically by the courts and in which they are selected and edited manually and offline are inconsistent with the development and proliferation of information and big data technology.  Third, the reference to and application of Guiding Cases are inconsistent with [the need for] using their valuable functions of resolving [the problem of] adjudicating similar cases differently and unifying judicial adjudication standards.

Guiding Cases are the products of the combination of law and practice and are the crystallization of judicial experience and wisdom.  Therefore, [people engaged in] legal research and legal education cannot lack understanding of Guiding Cases.  The spirit of the law, the concept of the rule of law, judicial logic, and the value orientation contained in Guiding Cases often become important sources of innovation and theoretical development in legal research and are good material for legal education and research.  In addition, the academic community’s interpretation of legal theories in [Guiding] Cases and even criticism of these cases can provide new thinking and perspectives for legislation and judicial interpretations.  We hope to join hands with experts and friends present today to promote the development and progress of China’s Guiding Cases System!

Thank you all!


Author’s Bio

Judge GUO Feng is the Deputy Director of the Research Office of the Supreme People’s Court of China. Serving in this position since 2014, he has been in charge of, among other responsibilities, the development of the Case Guidance System. Prior to this, Judge Guo was the dean of the law school of the Central University of Finance and Economics in Beijing for eight years. As a result of his leadership, the school has become a first-tier law school in China, with particular strengths in such fields as banking law, capital markets, and financial regulation.

Judge Guo founded the China Securities Law Institute (“CSLI”), for which he served as chairman for eight years. CSLI remains China’s most prestigious legal institute in the field of capital markets. As one of a few pioneers to receive a PhD in law in the early 1990s, Judge Guo was appointed as a professor at the reputable law school of Renmin University of China.

Endnotes

*          The citation of this Commentary is: Judge GUO Feng, On the Issue of the Application of the Supreme Court’s Guiding Cases, 19 China Law Connect 1 (June 2018), also available at Stanford Law School China Guiding Cases Project, June 2018, http://cgc.law.stanford.edu/commentaries/clc-1-201806-23-guo-feng.  The original, Chinese version of this Commentary was edited by LI Xuejiao and Dr. Mei Gechlik.  The English version was prepared by Yi Chen, Liam Lambert, LI Xuejiao, Siyi Lin, and Lin Zhu, and was finalized by Sean Webb, Dimitri Phillips, and Dr. Mei Gechlik.  The information and views set out in this Commentary are the responsibility of the author and do not necessarily reflect the work or views of the China Guiding Cases Project.

This is an adapted version of Judge GUO Feng’s speech delivered at the conference titled “China’s Case Guidance System and Belt & Road Initiative: Practical Insights and Prospects” held in the Stanford Center at Peking University on March 30, 2018.  All of the footnotes were added by the editors.

[1]           《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, Stanford Law School China Guiding Cases Project, English Guiding Cases Rules, June 12, 2015 Edition, http://cgc.law.stanford.edu/guiding-cases-rules/20101126-english.  Article 2 provides: “The Guiding Cases referred to in this [set of] Provisions [must be] rulings and judgments that have already come into legal effect and meet” one of the five requirements stated in the provision.  Article 1 explicitly points out, “Guiding Cases, which have guiding effect on adjudication and enforcement work in courts throughout the country, shall be determined and uniformly released by the Supreme People’s Court.”

[2]           Id.

[3]           For an introduction of the China Justice Big Data Institute, see its website at http://data.court.gov.cn.

[4]           《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), supra note 1, Article 7.  The provision states: “People’s courts at all levels should refer to the Guiding Cases released by the Supreme People’s Court when adjudicating similar cases.”

[5]           《〈最高人民法院关于案例指导工作的规定〉实施细则》(Detailed Implementing Rules on the “Provisions of the Supreme People’s Court Concerning Work on Case Guidance”), passed by the Adjudication Committee of the Supreme People’s Court on Apr. 27, 2015, issued on and effective as of May 13, 2015, Stanford Law School China Guiding Cases Project, English Guiding Cases Rules, June 12, 2015 Edition, http://cgc.law.stanford.edu/guiding-cases-rules/20150513-english.  Article 9 provides: “Where a case being adjudicated is, in terms of the basic facts and application of law, similar to a Guiding Case released by the Supreme People’s Court, the [deciding] people’s court at any level should refer to the “Main Points of the Adjudication” of that relevant Guiding Case to render its ruling or judgment.”

[6]           Id. Article 10.  This provision states: “Where a people’s court at any level refers to a Guiding Case when adjudicating a similar case, [it] should quote the Guiding Case as a reason for its adjudication, but not cite [the Guiding Case] as the basis of its adjudication.”

[7]           Id. Article 9.

[8]           The original text reads “实际上是司法解释的“零售”” (“are actually “retail” [products] of judicial interpretations”), which, in effect, contrasts the piecemeal approach used in cases vs. the holistic approach used in judicial interpretations.