More on Supreme People’s Court Typical and Major Cases, or How Typical Cases are “Tempered”

Because the Supreme People’s Court (SPC) is now issuing more and more typical cases, likely because General Secretary Xi Jinping has said “one case is better than a dozen documents (习近平总书记强调, “一个案例胜过一打文件”), this blogpost will provide more background on the Supreme People’s Court’s (SPC) typical (典型案例) and major cases (十大案件). It includes a general description of how typical cases are “tempered.”  For those who miss the reference, it’s to the old Russian book “How Steel is Tempered, pictured above. My understanding is that “major cases” are considered a type of “typical case” for the purposes of the SPC’s required search of cases under its 2020 guidance and so I’ll use the term “typical case” to cover both major and typical cases. I have not seen official definitions of either term.

I’ll first summarize how the SPC views the role of  “typical cases” and the legal basis for issuing them, drawing on what I have previously written and a draft article on the long road to publication,  and then explore a topic little explored in English–how the SPC compiles or edits (the Chinese term is 编写) typical cases.  I have not seen a Chinese article that sorts out the various types of typical cases systematically. As readers of this blog know, I have long had an interest in Supreme People’s Court (SPC) typical /model/exemplary cases( 典型案例) and related types of cases such as major cases (大案件).

The Role of Typical Cases

The SPC issues typical cases as part of its function to supervise and guide the lower courts, deriving from Article 10 of the Organic Law of the People’s Courts. The SPC has done so for many years. However typical cases have taken on a greater role in the Xi Jinping New Era, symbolized by the quote above.

Guiding the lower courts

Typical cases are a type of SPC soft law.  They are a tool by which the SPC seeks to unify the judgment (adjudication) standards of the Chinese courts.  As mentioned before, they are a means by which the SPC seeks to harmonize the decisions of the Chinese courts to be consistent with SPC policy (or said another way, strengthen the firm guiding hand of the SPC).

That guidance can relate to substantive or procedural issues, because the issues that come before the Chinese courts far outpace the infrastructure of existing law, including judicial interpretations. Additionally, given the role of the SPC in social governance, typical cases also enable the SPC to do its part to further the latest Party policy. This is more complex than appears. One aspect relates to issues at the intersection between law and morality, such as the second batch of cases in which the people’s courts promote socialist core values.

Guiding the General Public

The SPC issues typical cases to guide the general public to fulfill its obligations under the popularization of law responsibility system established through a 2017 Central Committee State Council document and implemented through an inter-ministerial joint conference on the popularization of law,   Section 6 of that 2017 documents calls for judge, procurators, administrative enforcement personnel, and lawyers to establish a “using cases to explain the law” system.  The document calls on judges, etc. to collect, sort, research, and issue cases and establish a database, using typical cases for the purposes of guidance, standardization,  prevention,  and education. At the end of 2017, the SPC issued its own document to implement the Party-State Council document, 人民法院贯彻落实〈中共中央办公厅 国务院办公厅关于实行国家机关“谁执法谁普法”普法责任制的意见〉的实施意见》(SPC Explaining the Law Opinions), with several articles promoting the use of typical cases to educate the public.  In January of this year, President Zhou Qiang publicized ten cases illustrating the rule of law in the New Era, praising each case as illustrating the vivid practice of Xi Jinping’s rule of law thought in the people’s courts, and the concentrated embodiment of socialist core values ​​and the spirit of the rule of law.

The cases selected and the extent of detail in typical cases intended to guide the general public are different from those intended to guide the lower courts.

How SPC typical cases are “tempered”

I draw on some writings on how to write  (the Chinese term is 编写, closer to compile) a model case, instructions to the lower courts on how to submit a case,  and the “revolutionary experience” (革命经验) of several friends who have been on the editorial side of typical case publishing to explain how SPC typical cases are “tempered.”    Several have been on the drafting side as well as the editorial side.  Judge Guo Feng’s description of compiling guiding cases also provides insights.

Which SPC institutions issue major and typical cases?

Major cases

The SPC and its constituent divisions and institutions (this is meant to include the China Institute of Applied Jurisprudence and the National Judges College) issue typical cases and major cases.  I am not aware of a document that distinguishes major cases from typical cases. I’ve noticed “10 major cases” in the areas of intellectual property, commercial, and drugs crime law ), but those announcements do not distinguish major from typical.  I surmise the notice that the SPC sent to the lower courts soliciting submissions for major and typical cases sheds some light on the difference, but I have not come across such notices.

Annual major intellectual property cases (and annual typical intellectual property cases are issued by the SPC General Office.  It is my understanding that judges from the SPC Intellectual Property Court (SPCIPC) and #3 Civil Division (in charge of intellectual property) recommended the selected cases.

The #2 Civil Division selects the 10 major commercial cases announced annually.  The 10 major typical drugs cases have been selected by relevant departments of the SPC, perhaps meaning the Research Office together with one of the Criminal Divisions.

I surmise that the vice president in charge of the relevant division or matter has approved their release.

Which SPC institutions issue typical cases?

This expanded, but likely incomplete list supplements an earlier blogpost in which I listed SPC institutions that issue typical cases.  I am not aware of rules governing the approval of SPC typical cases and so the process is understood to be flexible.  It is my understanding from discussions with knowledgeable persons (and as I have written before), that customary practice governs the approval process.  It appears to often be the vice president responsible for the division or institution, possibly involving the SPC President himself.

  1. The SPC General Office (办公厅), edits the Supreme People’s Court Gazette (最高人民法院公报). Readers of this blog should note that the web version does not include all content of the Gazette, unlike the Gazette of the State Council. As an aside, it is unclear how publicity to the reading public is promoted if the full version is not available online.  It appears to be generally inconsistent with the practice of other supreme courts.    The cases in the Gazette include selected court documents (裁判文书选登) and cases  (案例), generally totaling 20-30.  The first type is cases decided by various trial divisions of the SPC and reflects their views on certain issues, while the second type is model cases submitted by the local courts (through the provincial high courts), which have been reviewed by the editor of the Gazette, conferring with the various trial divisions of the SPC if needed.  These cases are considered to be more technical within the court system and are widely considered when judges undertake the required similar case search.
  2.   The SPC  General Office issues monthly SPC typical cases (available here).  These are selected by the division or office in charge of the topic involved, so that typical cases involving family law matters would be selected by the #1 Civil Division, while the Belt & Road typical cases would be selected by the #4 Civil Division.  Sometimes typical cases are issued jointly with a relevant ministry, such as those issued in 2021 concerning 996 labor cases, and would reflect the substantive and political concerns of that ministry.  Some of the cases selected may not have legal significance but are selected to harmonize with the leadership’s current policies.
  3. The Judicial Reform Office issues typical judicial reform “cases” after approval by the SPC’s judicial reform leading small group.  These typical cases are not “cases” in the sense of the substantive divisions of the SPC, but rather are focused on various types of judicial reform projects that the Judicial Reform Office considers are useful experiences replicable by lower courts around the country.
  4.  Selection of People’s Court Cases(人民法院案例选),  a quarterly publication of the China Institute of Applied Jurisprudence (discussed previously on this blog). These cases are published in paper version only, but lower courts subscribe to them widely.  These cases are considered more technical.
  5.  The National Judges College and the SPC’s Judicial Case Academy (located at the National Judges College) edit and issue 中国法院【】年度案例, divided into subject matter, edited by the Judicial Case Academy. These cases are considered more technical.
  6. The publications of each substantive division, all of which contain a selection of cases, are also considered typical, as discussed here, and considered by judges in when hearing cases.
  7. Additionally, as mentioned earlier,  typical cases can be found in the People’s Court Daily and People’s Justice (人民司法).  Presumably, the editors of those publications make the final selection, but likely work with the substantive divisions of the SPC when doing so.
  8. Several of the circuit courts issue a “case a week” and the SPCIPC does so as well.
  9. The SPCIPC issues case gists, also considered analogously to “typical cases” to intellectual property judges. Some SPC circuit courts do as well.

Although, as will be further discussed below,  “political correctness” is considered when selecting typical cases, some of the typical or major cases listed above are selected more for policy reasons, while others are considered by those in the inside as more technical.

How does a case in the local courts become an SPC typical case?

The roadmap from a case in the local courts to an SPC typical case can be gleaned from a detailed notice that the China Institute of Applied Jurisprudence (CIAJ) issued in the spring of 2021. The CIAJ issued the notice to courts at the provincial level (including the Xinjiang Construction & Production Corps  Higher People’s Court and the People’s Liberation Army Military Court), seeking contributions to its Selection of People’s Court Cases (人民法院案例选).  These principles apply similarly to SPC Gazette, typical or major cases that the SPC itself issues, although the format of the published case varies.

The higher people’s courts are in charge of reporting them to the SPC–principle three in the notice (the organization reports them 组织报送)—-although authors theoretically can submit directly. That means that local court judges must obtain internal approval to submit their cases level by level.

I surmise that the gatekeepers at the provincial level vary, depending on the area of law. It is likely that the Research Offices of the Higher People’s Courts are responsible for reviewing draft submissions and recommending ones to be submitted to the CIAJ, while the divisions in charge of cross-border commercial matters would compile cross-border commercial cases for submission to the #4 Civil Division.  It is likely to be a collective exercise at the provincial level, with a final sign-off from a person in a leadership position.

The notice also provides details on what the lower courts should report–the case, which should be published on the SPC case database. However, this does not appear always to be the case, as noted by Professor He Haibo of Tsinghua University (and coauthors) in their article on the transparency of court decisions. The case that the lower court submits is to be reported in a specific edited format (the website of the CIAJ has detailed guidance), with the original judgment or rulings attached. Most SPC  typical cases I have seen do not provide the case numbers for the related cases and in certain cases, the cases themselves are not public.  The recent third batch of Belt & Road typical cases is among the exceptions to the general practice.

As for the type of case analysis that is required:

  1. The case analysis provides guidance to judges and others in the legal profession because it supplements legislation, judicial interpretations or judicial policy documents.  To do so the case must be typical, novel, difficult,  and correct.  As to what that means:
      • Typical refers to the legal relationship, law applied, and the usefulness of the case as a reference for others.
      • Novel relates to legal issues arising after the promulgation of new laws and regulations, judicial interpretations or new policies, or although the issues or although the legal relationships are not new,  new circumstances or technology etc. have emerged, which means the case is novel.
      • Difficult often refers to the law being unclear or the case being controversial.
      • Correct means both legal and politically–the case and the analysis adhere to the concept of socialist rule of law with Chinese characteristics, embody socialist core values, and are consistent with Xi Jinping’s legal thought.   The political correctness requirement is not new–it is consistent with what I wrote about SPC Gazette cases in 1993.  Therefore the typical cases involving the Belt and Road will need to be consistent if not further intended to further China’s Belt and Road policies and other policies relating to cross-border dispute resolution.

2. Analytical style

As Hu Changming (previously mentioned on this blog) wrote earlier:

Case evaluation consists of the comment and analysis of the opinions, reasons, and results in the judgment document by the editor. It is not only a simple repetition of the reasons for the judgment, but more whys…. The evaluation and analysis should be discussed in depth in combination with relevant laws and regulations, and even the legal theory and legal spirit behind the law. A case analysis with a profound commentary is often a small paper with a clear and a strong argument.

3. Selection

A small group of judges or other staff at the SPC reviews the typical case submitted from the provincial high courts.  In smaller divisions, a judge and judge’s assistant are responsible for an initial review, while in larger divisions, a small group of judges and judge’s assistants do so.  But the persons who will be involved in the selection will depend on the SPC institution responsible for the selection.  According to the notice, the CIAJ involves prominent academics in the process, but the initial filtering is likely done by a team involving CIAJ post-docs (I surmise).  Those doing the initial review will select more cases than the targeted number. Generally, the professional judges meeting of the division involved will review the selection, with the deputy and head of the division reviewing the selected cases and determining the final selection to be made to SPC leadership. It is likely that a report accompanies the selection of the typical cases so that those in leadership understand the significance of each case.  Having a case selected by the SPC as a typical case is considered prestigious to the individual and the court involved. (For one of many examples, see this notice about a series published by the Shanghai Financial Court, noting that many of their cases had been selected as Gazette or other types of typical cases).

Concluding comments

Typical cases are one of many tools in the SPC guidance toolbox.  Its major use is to guide the lower courts, given dynamic Party policy and statutory law (and possibly judicial interpretations) that leave courts a great deal of discretion. The SPC uses typical cases to guide the lower courts timely to apply the law and judicial interpretations correctly in specific cases, harmonized with current policy, to better unify judgment (adjudication) standards.

Second, the SPC does so to fulfill its obligations under the popularization of law responsibility system to guide and educate the general public.  This, too, is not new, just repurposed for the New Era.

Third, the fact that some typical cases are selected to harmonize more closely with current policy rather than for their legal significance reflects the fact that the Chinese judiciary operates within a system in which political quality  (政治素质) takes the leading role in the assessment of judges, as exemplified in November 2021 SPC guidance.

___________________________________________

Many thanks to several knowledgeable persons for their comments related to typical cases, which will be further incorporated into a later blogpost. Special thanks to an anonymous peer reviewer for insightful and helpful comments on an earlier draft of this blogpost.

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