SGG: PRC’s Guiding Opinions Search Similar Cases

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Guiding Opinions of the Supreme People’s Court on
Unifying the Application of Law and
Strengthening the Search for Similar Cases (Trial Implementation)

(Issued on July 27, 2020 and Effective as of July 31, 2020) *

 

In order to unify the application of law1 and enhance judicial credibility, [the Supreme People’s Court], in light of the reality of adjudication work, [hereby] puts forward the following opinions regarding the work of people’s courts on searching for similar cases.

 

1. The [term] “similar case” referred to in this [set of] Opinions means a case that is similar to the pending case in terms of various aspects, including the basic facts, focal points of the dispute, or2 issues regarding the application of law, and that has been adjudicated by a people’s court and has come into effect.

 

2. A people’s court that handles a case under one of the following circumstances should conduct a search for similar cases:

(1)  [The case] is to be submitted to the professional (presiding) judges’ meeting or the adjudication committee for discussion.

(2)  There is a lack of clear adjudication rules, or a unified adjudication rule has not yet been formed.

(3)  The president [of the court] or the chief judge of a division [of the court], based on [his3] authority to supervise and manage adjudication, requires that a search for similar cases be conducted.

(4)  Other [circumstances] under which a search for similar cases needs to be conducted.

 

3. The judge(s) handling [a case] shall conduct a search for similar cases by relying on databases such as China Judgements Online [http://wenshu.court.gov.cn] and Database of Chinese Trial Cases [http://www.chncase.cn/case] and shall be responsible for the authenticity and accuracy of the search.

 

4. The scope of a search for similar cases generally includes:

(1)  Guiding Cases released by the Supreme People’s Court;4

(2)  typical cases released by the Supreme People’s Court,5 and cases that have been adjudicated by [the Supreme People’s Court] and have come into effect;

(3)  reference cases released by the high people’s court of the province (or autonomous region or municipality directly under the Central People’s Government) [where the court conducting the search is located] and cases that have been adjudicated [by said high people’s court] and have come into effect;

(4)  cases that have been adjudicated by a people’s court at the next higher level [above the court conducting the search] or by the court [conducting the search] and have come into effect.

Except for Guiding Cases, searches for [typical and reference] cases of the past three years or [other aforementioned] cases [of the past three years] take priority.6  If a similar case has been retrieved [from a group of cases] ranked higher [in the above order], no further search is required.7

 

5. Searches for similar cases may use various methods, including a keyword search, a search for cases [involving] related legal rules, and a search for related cases.

 

6. The judge(s) handling [a case] should compare the pending case with a search result and identify [their] similarities to determine whether [the search result] is a similar case.

 

7. For a case that, as stated in this [set of] Opinions, a search for similar cases should be conducted, the judge(s) handling [the case] should explain, in the deliberation of the collegial panel, the discussion of the professional (presiding) judges’ meeting, and the adjudication report, details about the search for similar cases, or should prepare a specialized report on the search for similar cases and file it, together with the case, for review.

 

8. The explanation or report of a search for similar cases should be objective, comprehensive, and accurate, covering the subject, time, platform, method(s), and result(s) of the search as well as the main points of the adjudication of any similar case [retrieved], focal points of the dispute of the pending case, and other content. [The explanation or report should] also analyze and explain the use of the [search] result(s), including whether a similar case is referenced and imitated8 or referenced [in adjudicating the pending case].

 

9. Where a similar case that has been retrieved is a Guiding Case, a people’s court should reference and imitate it to render a ruling or judgment, unless [the Guiding Case] is in conflict with a new law, administrative regulation, or judicial interpretation or is replaced with a new Guiding Case.9

Other similar cases that have been retrieved may be used by a people’s court as references for rendering a ruling or judgment.

 

10. Where a public prosecution organ, a party to a case or his defender,10 a litigation agent,11 or the like submits a Guiding Case as a ground [for the] prosecution (litigation) or defense, a people’s court should, in the reasoning of the ruling or judgment, respond as to whether [the court] referenced and imitated the Guiding Case [in the adjudication of the case] and explain [the court’s] reasons.12  Where other similar cases are submitted as prosecution (litigation) or defense grounds, a people’s court may respond by various means, including explanations and clarifications.

 

11. Where there are inconsistencies in the application of law in the similar cases retrieved, a people’s courts may resolve [the situation] by comprehensively [considering] the levels of the courts [adjudicating these similar cases], the times of their adjudications, whether they have been discussed by the adjudication committees, and other factors and by using the mechanism for resolving differences in the application of law in accordance with the Implementing Measures of the Supreme People’s Court on the Establishment of the Mechanism for Resolving Differences in the Application of Law13 and other prescriptive [documents].

 

12. People’s courts at all levels should actively promote the work on searching for similar cases, strengthen the research and development of [related] technology and the training on its application, and increase the levels of [artificial] intelligence and precision of the push [technology] for similar cases.

All high people’s courts should make full use of modern information technology to establish databases of adjudicated cases, laying a solid foundation for the construction of a national, unified, and authoritative database of adjudicated cases.

 

13. Each people’s court at each level should regularly summarize and sort out details about searches for similar cases, publicize [these searches], in a certain form, in the court or [any of] the courts in the [same] jurisdiction for judges’ reference [when] handling cases, and report [these searches] to the adjudication management department of the people’s court at the next higher level for recordation.

 

14. This [set of] Opinions shall be implemented on a trial basis from July 31, 2020.


* The citation of this Stanford CGCP Global Guide is: 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.  For the original, Chinese version of the Guiding Opinions, see 《最高人民法院关于统一法律适用加强类案检索的指导意见(试行)》 (Guiding Opinions of the Supreme People’s Court on Unifying the Application of Law and Strengthening the Search for Similar Cases (Trial Implementation)), issued on July 27, 2020, effective as of July 31, 2020, http://www.court.gov.cn/fabu-xiangqing-243981.html.

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.  For more detailed annotations and insights, see Dr. Mei Gechlik, Guiding Opinions of the Supreme People’s Court on Unifying the Application of Law and Strengthening the Search for Similar Cases (Trial Implementation) and Related Annotations, 10 China Law Connect ___ (Sept. 2020), also available at Stanford Law School China Guiding Cases Project, CLC Spotlight, Sept. 2020, http://cgc.law.stanford.edu/clc-spotlight/clc-10-202009-others-8-mei-gechlik (forthcoming).  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 Guiding Opinions was 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.

1 The same goal is stated in the preamble of the Provisions of the Supreme People’s Court Concerning Work on Case GuidanceSee 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 (hereinafter “Provisions on Case Guidance”).

A similar goal (i.e., to “unify standards for the application of law”) is stated in Article 1 of the Detailed Implementing Rules on the “Provisions of the Supreme People’s Court Concerning Work on Case Guidance”See 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 (hereinafter “Detailed Implementing Rules”).

2 Article 9 of the Detailed Implementing Rules only requires that a pending case be similar to a Guiding Case in terms of “the basic facts and application of law”. In light of this provision, “or” is used here because using “and” would suggest that a pending case needs to be similar to a Guiding Case in terms of other aspects in addition to “basic facts” and “application of law”. See Detailed Implementing Rules, supra note 1, Article 9.

3 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”.

4 For more information about Guiding Cases, see Provisions on Case Guidance, supra note 1; Detailed Implementing Rules, supra note 1.

5 For discussions of two important typical cases, see Alison Lu Xu, Belt & Road Typical Case 13: Towards a Liberal Interpretation of the Reciprocity Principle for Recognition and Enforcement of Foreign Judgments, 1 China Law Connect 26 (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-3-alison-xu; Tereza Gao & Edison Li, Through Siemens v. Golden Landmark, China Reforms Arbitration for Free Trade Zones in Order to Prepare for “Belt & Road”, 1 China Law Connect 48 (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-5-gao-li.

6 The text reads “案例或者案件” (“cases or cases”). Only exemplary cases can be “案例”. Thus, based on the context, the phrase is translated here as “[typical and reference] cases […] or [other aforementioned] cases”.

7 For an example showing how a Chinese judge refers to different cases to analyze intellectual property issues, see Dr. YANG Jing, Squatting on Foreign Trademarks: China’s Trademark Law and Related Judicial Cases, 9 China Law Connect 11 (June 2020), also available at Stanford Law School China Guiding Cases Project, June 2020, http://cgc.law.stanford.edu/commentaries/clc-9-202006-32-yang-jing.

8 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.

9 See Detailed Implementing Rules, supra note 1, Articles 9 and 12.

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 See Detailed Implementing Rules, supra note 1, Article 11.

13《最高人民法院关于建立法律适用分歧解决机制的实施办法》 (Implementing Measures of the Supreme People’s Court on the Establishment of the Mechanism for Resolving Differences in the Application of Law), passed by the Adjudication Committee of the Supreme People’s Court on Sept. 9, 2019, issued on Oct. 11, 2019, effective as of Oct. 28, 2019, http://www.dlhsfy.gov.cn/court/html/2019/flwgcx_1029/1269.html.