In August, 2016, I wrote about how non-guiding Chinese cases are guiding the development of Chinese law. I described what I saw as a prevalent practice in the Chinese judiciary that judges search a particular issue to see how other courts have decided a particular issue or the elements to which they have looked when deciding a particular issue. In that blogpost, I questioned whether the Supreme People’s Court (SPC) had noticed this practice. Under a recent SPC policy document that will become effective on 1 May, this prevalent practice will become a required practice. The SPC’s Opinions on Putting a Judicial Responsibility System in Place and Improving Mechanisms for Trial Oversight and Management (Provisional) contains the following phrase:
6. All levels of people’s courts shall give full play to the professional judges’ conferences and adjudication committee’s roles in summarizing trial experience unifying judgment standards; and on the foundation of improving working mechanisms such as consulting similar cases and judgment guidance; a mechanism is to be established requiring the search of similar cases and relevant cases, to ensure a uniform judgment standard for similar cases, and the uniform application of law.
This requires judges to do what many of them have been already doing –searching the case databases for prior cases that raise the same or similar issues and other issues related to the principal one(s). This principle will be applicable to judges hearing all sorts of cases–civil, criminal, administrative, enforcement, and intellectual property. It will not be evident to the reader of a Chinese judgment or ruling that searches have been done because non-guiding cases may not be cited.
Requiring a search of prior and related cases is an important step in the evolution of the Chinese case law system. That system (as I wrote recently), supplements and informs judicial interpretations. Judicial interpretations often take years to be finalized. National legislation (by the National People’s Congress and its Standing Committee) is hopelessly inadequate for the needs of the court system. Case law is needed to fill in the gaps. Judges, who are assuming greater individual responsibility for their decisions, need case law for more specific guidance.
In her remarks in November, 2016 focused on intellectual property, Justice Tao Kaiyuan revealed the thinking of the SPC leadership:
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…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.