SGG: PRC’s Provisions on Case Guidance

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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 November 15, 2010 and
Issued on November 26, 2010)*

 

In order to summarize adjudication experiences, unify the application of law,1 enhance adjudication quality, and safeguard judicial impartiality, [the Supreme People’s Court], pursuant to legal provisions, including the Organic Law of the People’s Courts of the People’s Republic of China, [hereby] formulates this [set of] Provisions to carry out work on case guidance.

Article 1

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.

Article 2

The [term] “Guiding Cases” referred to in this [set of] Provisions means rulings and judgments that have come into legal effect and meet the following requirements:

(1)  are of widespread concern to society;

(2)  [involve] legal provisions that are of relatively general nature;

(3)  are of a typical nature;

(4)  are difficult, complicated, or of new types; [or]

(5)  other cases which have guiding effect.

Article 3

The Supreme People’s Court shall establish the Office for the Work on Case Guidance, which shall be in charge of such work as the selection, review, and submission for approval of Guiding Cases.

Article 4

Each adjudication unit of the Supreme People’s Court may recommend to the Office for the Work on Case Guidance any ruling or judgment of the [Supreme People’s] Court, or of any local people’s court at any level, [provided the said ruling or judgment] has come into legal effect and is deemed [by the said unit] to meet the requirements set out in Article 2 of this [set of] Provisions.

Each high people’s court and each military court of the People’s Liberation Army may, following discussion and a decision by the adjudication committee of the said court, recommend to the Office for the Work on Case Guidance of the Supreme People’s Court any ruling or judgment of the said court, or of any people’s court in its jurisdiction, [provided the said ruling or judgment] has come into legal effect and is deemed [by the recommending court] to meet the requirements set out in Article 2 of this [set of] Provisions.

[Each] intermediate people’s court and [each] basic people’s court may, following discussion and a decision by the adjudication committee of the said court, report to the high people’s court [of its jurisdiction] level by level and suggest that [the high people’s court] recommend to the Office for the Work on Case Guidance of the Supreme People’s Court a ruling or judgment of the said court that has come into legal effect and is deemed [by the said court] to meet the requirements set out in Article 2 of this [set of] Provisions.

Article 5

Representatives of people’s congresses, members of committees of the political consultative conference, 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 ruling or judgment of any people’s court that has come into legal effect and is deemed [by the recommender] to meet the requirements set out in Article 2 of this [set of] Provisions to the original people’s court which rendered such effective ruling or judgment.

Article 6

The Office for the Work on Case Guidance should promptly put forward [its] review opinions on recommended cases.  Where [a case] meets the requirements set out in Article 2 of this [set of] Provisions, [the Office] should report to the President or the Vice President–in-Charge and request that [he or she] submit [the case] to the Adjudication Committee of the Supreme People’s Court for discussion and a decision.

The Guiding Cases discussed and decided upon by the Adjudication Committee of the Supreme People’s Court shall be uniformly released in the form of announcements in the Gazette of the Supreme People’s Court, on the website of the Supreme People’s Court, and in the People’s Court Daily.

Article 7

People’s courts at all levels should reference and imitate2 the Guiding Cases released by the Supreme People’s Court when adjudicating similar cases.

Article 8

The Office for the Work on Case Guidance of the Supreme People’s Court shall carry out the compilation of Guiding Cases annually.

Article 9

Those cases that have significance in guiding the adjudication and enforcement work of courts nationwide and that have been released by the Supreme People’s Court prior to the implementation of this [set of] Provisions shall be sorted and compiled in accordance with this [set of] Provisions and then issued as Guiding Cases.

Article 10

This [set of] Provisions shall be implemented from the date of issuance.


* The citation of this Stanford CGCP Global Guide is: 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.  For the original, Chinese version of the Provisions, see 《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, 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 Provisions 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 Garret Anderson, Jordan Corrente Beck, Yingdi Qi, and Brain Timm-Brock for helping prepare earlier versions.

1 This goal is also 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.

2 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 of 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).