SGG: PRC’s Detailed Implementing Rules on the “Provisions on Case Guidance”

SGG

Article 1 | Article 2 | Article 3 | Article 4 | Article 5 | Article 6 | Article 7 | Article 8 | Article 9 | Article 10
Article 11 | Article 12 | Article 13 | Article 14 | Article 15

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Detailed Implementing Rules on the
“Provisions of the Supreme People’s Court Concerning Work on Case Guidance”

(Discussed and Passed by the Adjudication Committee of the Supreme People’s Court on April 27, 2015 and Issued on May 13, 2015)*

 

Article 1

In order to concretely implement the Provisions of the Supreme People’s Court Concerning Work on Case Guidance,1 to strengthen, standardize, and promote work on case guidance, to fully use the guiding effect of Guiding Cases in adjudication work, to unify standards for the application of law,2 and to safeguard judicial impartiality, [the Supreme People’s Court hereby] formulates this [set of] Detailed Implementing Rules.3

Article 2

Guiding Cases should be cases whose rulings or judgments have come into legal effect, [in which] facts are clearly determined, law is correctly applied,4 and reasoning for the adjudication is sufficient, and which [provide] good legal and social outcomes and have universal guiding significance for the adjudication of similar cases.

Article 3

Each Guiding Case is composed of a title, keywords, “Main Points of the Adjudication”, “Related Legal Rule(s)”, “Basic Facts of the Case”, “Results of the Adjudication”, “Reasons for the Adjudication”, and notes that include the names of the adjudication personnel of the effective ruling or judgment.5  Specific requirements for the style of Guiding Cases shall be set forth separately.

Article 4

The Office for the Work on Case Guidance of the Supreme People’s Court (hereinafter referred to as the “Case Guidance Office”) is in charge of various tasks, including the collection, selection, review, release, study, and compilation of Guiding Cases, as well as the coordination and guidance of the work on case guidance [carried out] by courts nationwide.

Each adjudication unit of the Supreme People’s Court is in charge of various tasks, including the recommendation and review of Guiding Cases, and shall designate specific personnel responsible for the liaison work.

Each high people’s court is in charge of various tasks, including the recommendation, investigation, study, and supervision [of the use] of Guiding Cases in its jurisdiction.  Candidate Guiding Cases recommended to the Supreme People’s Court by each high people’s court should [first] be discussed and decided upon by the adjudication committee [of the said high court] or examined and approved by more than half of the members of the adjudication committee.

Intermediate people’s courts and basic people’s courts should recommend candidate Guiding Cases through high people’s courts and designate specific personnel responsible for the work on case guidance.

Article 5

Representatives of people’s congresses, members of committees of the political consultative conference, people’s assessors, experts, scholars, lawyers, and other people from all circles of society who care about the adjudication and enforcement work of people’s courts may recommend any case that meets the Guiding Case requirements to the original people’s court which rendered the effective ruling or judgment and may also make recommendations to the Case Guidance Office.

For cases that meet the Guiding Case requirements, members of the Experts Committee for the Work on Case Guidance may make recommendations to the Case Guidance Office.

Article 6

Each adjudication unit of the Supreme People’s Court and each high people’s court should submit the following materials when they recommend a candidate Guiding Case to the Case Guidance Office:

(1)  the Guiding Case Recommendation Form;

(2)  the text of the case that is written in accordance with the prescribed style and an explanation of the edited and selected text; and

(3)  the related ruling or judgment.

Three paper copies of [each of] the above materials, along with an electronic version, are required.

The recommending court may submit [other materials], including a report on the adjudication of the case, as well as related news reports and research information.

Article 7

For a candidate Guiding Case that the Case Guidance Office considers it necessary to research further, [the Office] may seek opinions from relevant organs and departments of the State, social organizations, members of the Experts Committee for the Work on Case Guidance, and [other] experts and scholars.

Article 8

Candidate Guiding Cases shall be submitted by the Case Guidance Office for examination in accordance with [relevant] procedures.  The Guiding Cases discussed and passed by the Adjudication Committee of the Supreme People’s Court shall be printed for distribution to each high people’s court and issued in the Gazette of the Supreme People’s Court, in the People’s Court Daily, and on the website of the Supreme People’s Court.

Article 9

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,6 the [deciding] people’s court at any level should reference and imitate7 the “Main Points of the Adjudication” of that relevant Guiding Case to render its ruling or judgment.8

Article 10

Where a people’s court at any level references and imitates 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 for its adjudication.

Article 11

In the process of handling a case, the personnel handling the case should inquire about relevant Guiding Cases.  Where a relevant Guiding Case is quoted in the adjudication document, [the personnel] should, in the part [of the document where they provide] reasons for their adjudication, quote the serial number and the “Main Points of the Adjudication” of the Guiding Case.

Where a public prosecution organ, a party to a case or his9 defender,10 or a litigation agent11 quotes a Guiding Case as a ground [for the] prosecution (litigation) or defense, the personnel handling the case should, in the reasons for the adjudication, respond as to whether [they] referenced and imitated the Guiding Case [in the adjudication of the case] and explain their reasons.12

Article 12

A Guiding Case no longer has guiding effect under any of the following circumstances:

(1)  [the Guiding Case] is in conflict with a new law, administrative regulation, or judicial interpretation;13

(2)  [the Guiding Case] is replaced with a new Guiding Case.

Article 13

The Supreme People’s Court shall establish paper archives and an electronic information base for Guiding Cases to safeguard the application by reference and imitation, inquiry about, search for, and compilation of the Guiding Cases.

Article 14

People’s courts at all levels should, in accordance with provisions, including the Judges Law of the People’s Republic of China, give rewards to those units and individuals that have made outstanding achievements in the work on case guidance.

Article 15

This [set of] Detailed Implementing Rules shall be implemented from the date of its printing for distribution.


* The citation of this Stanford CGCP Global Guide is: Detailed Implementing Rules on the “Provisions of the Supreme People’s Court Concerning Work on Case Guidance”, People’s Republic of China, Stanford CGCP Global Guide, Aug. 2020, http://cgc.law.stanford.edu/sgg-on-prc-detailed-implementing-rules-provisions-case-guidance.  For the original, Chinese version of the Detailed Implementing Rules, see 《〈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, http://zxsfy.chinacourt.gov.cn/article/detail/2019/07/id/4988096.shtml.

Unless stated otherwise, all annotations and insights included in this Stanford CGCP Global Guide were written by Dr. Mei Gechlik, Founder and Director of the China Guiding Cases Project.  The information and views set out in this piece are the responsibility of the authors and do not necessarily reflect the work or views of the China Guiding Cases Project.

This English translation of the Detailed Implementing Rules was primarily prepared by Dr. Mei Gechlik; it was finalized by her and Dimitri Phillips.  Minor editing, such as splitting long paragraphs, adding a few words included in square brackets and boldfacing the headings, was done to make the piece more comprehensible to readers.  The translated text is otherwise a direct translation of the original text released by the Supreme People’s Court.  The China Guiding Cases Project thanks Jordan Corrente Beck and Yingdi Qi for helping prepare an earlier version.

1 See Provisions of the Supreme People’s Court Concerning Work on Case Guidance, People’s Republic of China, Stanford CGCP Global Guide, Aug. 2020, http://cgc.law.stanford.edu/sgg-on-prc-provisions-case-guidance.

2 A similar goal (i.e., “unify the application of law”) is stated in the preamble of the Guiding Opinions of the Supreme People’s Court on Unifying the Application of Law and Strengthening the Search for Similar Cases (Trial Implementation)See Guiding Opinions of the Supreme People’s Court on Unifying the Application of Law and Strengthening the Search for Similar Cases (Trial Implementation), People’s Republic of China, Stanford CGCP Global Guide, Aug. 2020, http://cgc.law.stanford.edu/sgg-on-prc-guiding-opinions-search-similar-cases.

3 For a discussion of the importance of Guiding Cases to U.S. legal practitioners, see James McManis, The Importance of Guiding Cases for U. S. Courts in Determining Chinese Law, A Trial Lawyer’s Perspective, 2 China Law Connect 43 (Sept. 2018), also available at Stanford Law School China Guiding Cases Project, Experts Connect, Sept. 2018, http://cgc.law.stanford.edu/commentaries/clc-2-201809-connect-4-james-mcmanis.

4 For a discussion of how a Guiding Case helps clarify the application of legal provisions, see Minghe Liu, Guiding Case No. 61: Clarifying the Sentencing Levels of the “Crime of Using Nonpublic Information for Trading” and Its Significance, 1 China Law Connect 37 (June 2018), also available at Stanford Law School China Guiding Cases Project, China Cases Insights, June 2018, http://cgc.law.stanford.edu/commentaries/clc-1-201806-insights-4-minghe-liu.

5 Earlier Guiding Cases (i.e., the first 52 Guiding Cases) do not include the names of the adjudication personnel.  These names are included beginning from Guiding Case No. 53, which was released in November 2015.

6 For a discussion of how to determine whether a case is similar to a precedent in the United States, see Judge William A. Fletcher, Deciding Cases in the American Case-Based System, 7 China Law Connect 1 (Dec. 2019), also available at Stanford Law School China Guiding Cases Project, Experts Connect, Dec. 2019, http://cgc.law.stanford.edu/commentaries/clc-7-201912-connect-9-william-fletcherSee also Judge Diane P. Wood, Some Observations About Judicial Precedents, 7 China Law Connect 13 (Dec. 2019), also available at Stanford Law School China Guiding Cases Project, Experts Connect, Dec. 2019, http://cgc.law.stanford.edu/commentaries/clc-7-201912-connect-10-diane-wood.

7 The text reads “参照”, which, according to 《汉语大辞典》 (“Chinese Dictionary”), means “参考并仿照” (which is translated in this Stanford CGCP Global Guide as “reference and imitate”) and is usually used in the context of “参考并仿照(方法、经验等)” (“referencing and imitating methods and experiences”).  See 《汉语大辞典》(“Chinese Dictionary”), http://www.hydcd.com/cidian/2885.htm.  For example, the term “参照” is explicitly defined as “参考并仿照” in 《辽宁省高级人民法院关于加强参考性案例工作的意见(试行)》 (Opinions of the High People’s Court of Liaoning Province Concerning the Strengthening of the Work on Reference Cases (Trial Implementation)), passed by the Adjudication Committee of the High People’s Court of Liaoning Province on May 17, 2013, issued on and effective as of May 17, 2013, http://www.dffy.org/ssf/201608/41013.html.  In this document, the High People’s Court of Liaoning Province explains in Chinese: “省法院发布的参考性案例,全省三级法院在审理[…]类似案件时可以参照” (“courts at the three levels in the province may reference and imitate reference cases released by the provincial court when adjudicating […] similar cases”).

See also 胡云腾 (HU Yunteng), 关于参照指导性案例的几个问题 (Several Issues Concerning “Can Zhao” Guiding Cases), 《人民法院报》(People’s Court Daily), Aug. 1, 2018, http://news.sina.com.cn/sf/news/fzrd/2018-08-01/doc-ihhacrce8229615.shtml.  In this article, the author, who served as the Director of the Research Office of the Supreme People’s Court from 2009 to 2014, shared his views about the meaning of “参照” in the context of Guiding Cases.  He wrote that the term should not be understood as “参考、按照”  or “参考、依照” because both “按照” and “依照” mean “according to”, which is not an appropriate term for Guiding Cases as their legal status remains unclear.  The author suggested that “参照” be understood as “参考、比照” (“reference and compare”), which, in the context of Guiding Cases, essentially means that the approach used in a Guiding Case to determine the facts and apply the law should be used in a similar pending case.

It is worth noting that Judge GUO Feng, who oversees the Supreme People’s Court’s work on Guiding Cases, emphasized that Guiding Cases are still important because they are de facto binding.  See Judge GUO Feng, On the Issue of the Application of the Supreme Court’s Guiding Cases, 1 China Law Connect 19 (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.  In the article, Judge Guo Feng explains:

[…] 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. (emphasis added).

8 The China Guiding Cases Project team is committed to conducting empirical research and in-depth analyses to illustrate how Guiding Cases have been used in subsequent cases.  See, e.g., Dr. Mei Gechlik, Li Huang, & Jennifer Ingram, Propagation of a Case Culture in China and Potentially Beyond, 2 China Law Connect 1 (Sept. 2018), also available at Stanford Law School China Guiding Cases Project, Sept. 2018, http://cgc.law.stanford.edu/commentaries/clc-2-201809-24-gechlik-huang-ingram; Dr. Mei Gechlik & David Wei Zhao, Pursuing Legal Certainty under an Uncertain System: How Chinese Lawyers and Judges Use Intellectual Property Guiding Cases, 6 China Law Connect 11 (Sept. 2019), also available at Stanford Law School China Guiding Cases Project, Sept. 2019, http://cgc.law.stanford.edu/commentaries/clc-6-201909-30-gechlik-zhao; Jia Quan, Guiding Case No. 40: Clarifying the Standards for Determining Work-Related Injuries and Its Significance, 4 China Law Connect 25 (Mar. 2019), also available at Stanford Law School China Guiding Cases Project, China Cases Insights, Mar. 2019, http://cgc.law.stanford.edu/commentaries/clc-4-201903-insights-6-jia-quan; Zhaoyi Song, Subsequent Cases Have Added Vitality to Guiding Case No. 33’s Guidelines on “Malicious Collusion”, 7 China Law Connect 35 (Dec. 2019), also available at Stanford Law School China Guiding Cases Project, China Cases Insights, Dec. 2019, http://cgc.law.stanford.edu/commentaries/clc-7-201912-insights-7-zhaoyi-song; Ruoyu Ren, Guiding Case No. 82 and 24 Related Subsequent Judgments/Rulings: How to Coherently Apply the Principle of Good Faith in Trademark Infringement, 8 China Law Connect 1 (Mar. 2020), also available at Stanford Law School China Guiding Cases Project, China Cases Insights, Mar. 2020, http://cgc.law.stanford.edu/commentaries/clc-8-202003-insights-8-ruoyu-ren; Zihao Zhou & Chi Che, Guiding Case No. 8 and 66 Related Subsequent Judgments/Rulings: How to Determine “Whether Serious Difficulty Occurs in the Operation and Management of a Company”, 8 China Law Connect 17 (Mar. 2020), also available at Stanford Law School China Guiding Cases Project, China Cases Insights, Mar. 2020, http://cgc.law.stanford.edu/commentaries/clc-8-202003-insights-9-zhou-che.

9 The terms “he”, “him”, and “his” as used herein are, unless the context indicates otherwise, gender-neutral terms that may refer to “she”, “her”, “it”, and “its”.

10 The text reads “辩护人” (“defender”).  According to Article 33 of the Criminal Procedure Law of the People’s Republic of China, a criminal suspect or defendant may retain one or two defenders.  A defender may be (1) a lawyer (“律师”); (2) a person recommended by a people’s group or the unit [where] a criminal suspect or defendant [works] (“人民团体或者犯罪嫌疑人、被告人所在单位推荐的人”); or (3) a guardian, relative, or friend of a criminal suspect or defendant (“犯罪嫌疑人、被告人的监护人、亲友”).  A person who is serving a criminal sentence or whose personal freedom is deprived or restricted in accordance with law cannot serve as a defender.  See 《中华人民共和国刑事诉讼法》 (Criminal Procedure Law of the People’s Republic of China), passed on July 1, 1979, issued on July 7, 1979, effective as of Jan. 1, 1980, amended three times, most recently on and effective as of Oct. 26, 2018, http://paper.people.com.cn/rmrb/html/2019-01/24/nw.D110000renmrb_20190124_1-13.htm.

11 The text reads “诉讼代理人” (“litigation agent”).  According to Article 58 of the Civil Procedure Law of the People’s Republic of China, a party or a statutory agent (“法定代理人”) may retain one or two persons as litigation agents.  A litigation agent may be (1) a lawyer or legal service worker at the basic level (“律师、基层法律服务工作者”); (2) a close relative or staff member of a party (“当事人的近亲属或者工作人员”); or (3) a citizen recommended by the community [where the party resides], the unit [where the party works], or a relevant social organization (“当事人所在社区、单位以及有关社会团体推荐的公民”).  See 《中华人民共和国民事诉讼法》(Civil Procedure Law of the People’s Republic of China), passed on, issued on, and effective as of Apr. 9, 1991, amended three times, most recently on June 27, 2017, effective as of July 1, 2017, http://www.moj.gov.cn/Department/content/2018-12/25/357_182594.html.

12 For discussions of whether courts handling similar subsequent cases responded to the parties’ references to Guiding Cases, see articles cited in note 8.

13 For a discussion of how Guiding Cases may prompt codification of legal principles, see Katharine A. Bostick & Melody Wang, How Guiding Case No. 49 Prompted Codification of Burden-Shifting Principles to Increase Protection of Trade Secrets, 7 China Law Connect 21 (Dec. 2019), also available at Stanford Law School China Guiding Cases Project, Experts Connect, Dec. 2019, http://cgc.law.stanford.edu/commentaries/clc-7-201912-connect-11-bostick-wang.