Chinese courts are paying more attention to the use of precedent in considering how to decide cases. (Two of my fellow bloggers, Mark Cohen and Jeremy Daum, have recently published on this issue, as have I.) One of the many issues remaining to be settled as China constructs its own case law system is a hierarchy of precedent, so that the Chinese legal community, in particular its overworked judges, have clear rules on this issue. (This is one of the questions subsumed under #23 of the Fourth Five Year Court Reform Plan).
We know that the hierarchy of precedent is not settled because two recent authoritative Chinese publications take a similar but not identical approach:
- The first, as cited in an article by Judges Jiang Huiling and Yang Yi of the Supreme People’s Court Center for Applied Jurisprudence, highlight the list set out in “The Beijing IP Court Guiding Case Work Implementation Methods (Draft)” (summarized in Jeremy Daum’s article); and
- The second, an article by Judge Wang Jing, a senior Nanjing Intermediate People’s Court judge, published (and re-published) in a number of prestigious Wechat public accounts, including the account of the Shandong Higher People’s Court. (Wang Jing has frequently published in SPC publications and she published her views on the judicial quota system (on Judge He Fan’s public account).
(As helpfully translated in Jeremy Daum’s article, the Beijing IP court draft regulations list, from most to least persuasive:
- SPC guiding cases
- SPC annual cases
- other SPC cases
- High People’s Court model cases
- High People’s Court reference cases
- Other prior cases from High People’s Courts
- Intermediate People’s Court precedent,
- Basic-level Court precedent,
- Foreign (non-mainland) case precedent.
I’ll focus on Judge Wang Jing’s analysis.
Judge Wang Jing
1.SPC guiding cases
2.Cases published in the monthly SPC Gazette. Those are of two types: selected judgments (裁判文书选登) and cases (案例), generally totalling 20-30. The first type are cases decided by various trial divisions of the SPC and reflect their views on certain issues, while the second model cases submitted by the local courts (through the provincial high courts), which have been reviewed by the various trial divisions of the SPC.
3.Other cases published by journals of the SPC such as Selection of People’s Court Cases(人民法院案例选), (a quarterly publication of the SPC Center for Applied Jurisprudence), China Case Trial Highlights (中国审判案例要览) (an annual publication of the National Judicial College and the Law School of People’s University)、and People’s Justice–Cases (People’s Justice is a biweekly publication,but the Cases section is published monthly). She notes that these cases reflect issues considered difficult and disputed in practice.
4. Trial Guides edited and written by the trial divisions of the SPC (最高法院各审判业务庭编写的审判指导丛书). The People’s Court Press publishes a series entitled China Trial Guide (审判指导丛书), with separate publications by various trial divisions of the SPC, including the case filing, civil, administrative, #2 civil and #4 civil divisions. These publications often contain cases from the lower courts, or in the case of the #4 civil division, cases that have been reported to that division for review under the Prior Reporting system.
5. Case publications by various higher people’s courts (各地高级法院等编辑的案例刊物).
She notes that many provincial higher people’s courts (and some intermediate courts) publish cases, with cases published by the ones that have been in operation the longest and are more influential considered the more persuasive. She mentions the Jiangsu Higher People’s Court Gazette as an example, which has cases decided by that court and model/typical cases from the lower courts. (These are similar to categories 4-6 above).
Although her list does not specifically mention non-guiding (and non-model or typical cases) in her list of authoritative sources, she addresses them in her advice for lawyers providing precedent cases in litigation, with three common sense items of advice: when you provide a case, it should be according to the court hierarchy, and date issued, provide the source, and use cases to provide a mind map for the judge to follow. (A prestigious intermediate people’s court (the Shenzhen Intermediate People’s Court) recently also mentioned litigants (positively) using cases from the SPC’s case database, China Judgements Online, as a reference to judges.)
This is another area in which Chinese law appears to lack firm guidelines about order and terminology (as I wrote about this theme in a series of articles for Practical Law China, ( note that they are behind the company paywall).The SPC and its divisions (and even one of its Circuit Courts) issue collections of model/typical cases (and summaries of such cases) under a variety of titles. Terminology (aside from the guiding cases) is not entirely consistent. The SPC issues notices and replies (generally of divisions of the SPC), acknowledged by Vice President Shen Deyong as a source of law, in an introduction to the book Collection of the Supreme People’s Court’s Judicial Rules (2nd edition)–how do these relate as sources of law vis a vis various types of cases or case summaries? The legal community (domestic and foreign) awaits greater guidance.