As my fellow blogger, Jeremy Daum and I have written, China’s guiding case system has captured the attention of the world outside of China, likely due to a combination of the special status accorded guiding cases by the Supreme People’s Court (SPC) and the impressive efforts of Stanford Law School’s China Guiding Cases Project. One of the ways that the SPC supervises and guides the lower courts is by publishing handbooks to aid the lower courts in quickly determining the applicable legal rules in a system in which a comprehensive legal code is the ideal but not the reality. One of those handbooks is the set of books pictured above, the Collection of the Supreme People’s Court’s Judicial Rules (Collection of Judicial Rules) (最高人民法院司法观点集成), published by the People’s Court Press, now in its 2nd edition. A closer look at the Collection of Judicial Rules provides insights into sources of law used by the SPC, and China’s evolving case law system, including the place of guiding cases
As described by Judge Liu Dequan, the general editor, the sources include;
- Judicial interpretations;
- the spirit of judicial policy (from the speeches of the SPC president and vice presidents responsible for the substantive area);
- responses (答复) issued by the various divisions of the SPC;
- opinions (意见), answers, (解答)，trial case handling guidance (审判办案指南) research opinions of the research office (研究意见) and other guidance issued by the various divisions of the SPC and speeches given by the heads of those divisions at national court conferences (these blogposts summarized the takeaways from some court conferences);
- guiding cases, SPC cases, SPC bulletin cases.
- Supplemented by the principal views of SPC judges and writings of SPC judges.
Below are samples from one of the volumes on administrative law:
A party that disputes compulsory measures imposed by the family planing authorities to freeze property, limit personal freedom etc. can file administrative litigation (#22)
The response cites a 1996 judicial interpretation, supplemented by a selection from a book by Judge Jiang Bixin and Liang Fengyun, that confirms that the courts may accept such cases.
The act of issuing a transcript and diploma by a higher education institution is within the scope of administrative litigation (#42)
The editors cite the 2014 administrative litigation trial case handling guidance and several SPC bulletin cases. The case guidance provides that when higher education institutions issue transcripts, diplomas, and expel students, they are acting under authority delegated by law, and so those are administrative acts which a party may challenge under administrative litigation law.
The editors then set out the bright line rule (要旨) set out in several SPC Bulletin cases: Tian Yong v. Beijing Science & Technology University (1999) (re-issued as guiding case #38) and Yang Baoxi v. Tianjin Clothing Technical School (2005);
Then they cite several administrative trial guiding cases, including Wu Huayu v. Central China Agricultural University.
If there is a conflict between laws, the hearing of the case must be suspended while a response to request for instructions is received from the SPC (#351)
The editors set out a 1996 response of the SPC (made after consultation with the State Council Legislative Affairs Office) to the Fujian Higher People’s Court concerning the exploitation of geothermal water resources.
The editors then set out a SPC Bulletin case, Fujian Hydropower Design Institute disputes an administrative penalty decision by the Provincial Land & Mining Department, summarizing the bright line rule (as above). The editors then supplement the cases with an excerpt from the publication by Judges Jiang Bixin and Liang Fengyun mentioned above.
The sources used by the SPC judges in compiling the handbook may (or may not) be surprising to a foreign observer–such as the speeches by court leaders and various types of responses by SPC divisions that have no publication requirement. These sources appear to reflect SPC practice and do not seem to be consolidated into some type of legal rules. While the SPC’s transparency is far greater than before (especially for a person with historical perspective), there are still significant gaps that face lawyers, litigants, not to mention researchers.
The SPC sees its case law system (still evolving) as a supplement to judicial interpretations. The drafting process for judicial interpretations is a slow one (take the example of the demand guarantee judicial interpretation). It can easily take several years for an interpretation to be finalized, particularly in the area of civil and commercial law, because SPC judges working on these interpretations must take into account comments from a large variety of interested parties. The rules set out in judicial interpretations must be able to stand the test of time and adjustments to government policies. Case law is seen as filling in the gaps. But as can be seen from the excerpt from the handbook above, and recent comments by SPC Vice President Tao Kaiyuan, the 77 guiding cases, while having an anointed place in that case law system, are one part. Justice Tao Kaiyuan’s comments also reveal that case law, including guiding cases, is seen as being useful for the drafting of judicial interpretations:
The construction of the case guidance system [Chinese case law] is not to create a new legal source, but to…uncover the broader consensus of the industry, to further refine legal rules and to provide better law for society. It is also expected to lay the foundation for the drafting of judicial interpretations.
Tao Kaiyuan pointed out that the Supreme People’s Court Intellectual Property Case Guidance Research (Beijing) base is creating a guidance system for intellectual property cases with SPC Guiding Cases, cases published in the SPC Bulletin and cases published by the SPC’s Case Research Institute [under the auspices of the National Judicial College], and issued model (typical) cases, are an interactive mutually complimentary whole (是相辅相成、互为补充、互联互动的整体). The function of the intellectual property case guidance system is to enhance the predictability of the judiciary by establishing an intellectual property case guidance system to promote the unity of judicial standards.
Year end 2016 judicial statistics that will be issued in President Zhou Qiang’s report to the National People’s Congress will document that the number of cases, particularly civil and commercial cases, in the Chinese courts continues to rise at a rate that far exceeds China’s GDP. Case law, including guiding cases, is one source of legal rules that Chinese judges consider when dealing with those cases, whether deciding whether a case should be accepted, seeking to mediate a case, deciding a case, or enforcing a court judgment or ruling.