By (袁野) Yuan Ye, 4L student, Peking University School of Transnational Law, edited by Susan Finder
As a JD/JM student at the School of Transnational Law (STL) of Peking University, and an LLB student at Xiamen University School of Law, I have had the opportunity to intern in courts at three of the four levels of the Chinese courts in three different cities. One of the tasks that I have often undertaken for the judge to whom I was assigned is searching for similar cases. Most often, my work was first submitted to the judge’s assistant, who thoroughly reviewed my work before he (or more often she) forwarded it to the judge. Similar case search is required by applicable legislation and SPC policy. The search and application of similar cases(“类案”) are now required to ensure the “uniform and proper implementation of laws” during the case hearing (adjudication) process (审判过程) in Chinese courts. ”) Under that cited guidance, the SPC defines the “unified application of the law” to include “various work for promoting the unified and correct application of the law, such as drafting and enacting judicial interpretations and other normative documents, releasing [typical and guiding] cases, implementing a retrieval system for similar cases, and holding professional judges meetings to discuss cases.”
My description of a typical search, research, discussion, and application of similar cases is based on my own experience and that of some of my STL classmates.
I. The (re)search of similar cases
A. Why (re)search similar cases?
During my internship at the Third (#3) Circuit Court of the SPC in 2018, the search of similar cases, at least in my observation, had not yet become required by SPC regulations. [Note that the editor had mentioned that SPC judges (and their assistants) were searching for similar cases in her 2017 article in the Tsinghua China Law Review.] However, some judges and judge assistants, whom I discovered were much more professional than I thought, had already (re)searched and applied analogous “similar” cases to cases under consideration.
For example, in a review report (“审查报告”) [explained in the linked article] of a complicated retrial case handled by my trial team, the judge’s assistant cited several cases that raised the same issues as authority to support her proposed holding. One case that she cited was decided by the 1st Circuit Court, which is opposite to the assistant’s position; and others were from High Courts, supporting her position. The assistant also analyzed in detail the reasoning behind the 1st Circuit case and refuted it, point by point. The whole process of applying “similar cases” was very thorough and professional.
Another good example was that in dealing with a cutting-edge case, a judge in charge (承办法官) asked all interns in the court to search for similar cases from the United States, because he knew, as an SPC judge, that there was no precedent for reference in China. The SPC regulation requiring a search of similar cases was not published until 2020, so why, in 2018, had the judge and his assistant started the search and application of similar cases—even US cases? In my mind, the motivations were quite simple and straightforward: they knew case law is practically useful and even indispensable in adjudication. (The fiduciary duty of asset managers provides a good example.)
Also, an SPC judge and judge’s assistant enjoy a great deal of freedom and discretionary power in deciding cases, so they felt comfortable applying case law in their work. At that time, the ordinary legal community (law schools and students, lawyers, scholars, etc.) was still unfamiliar with case law, not to mention (re)search and use of cases in legal education and research. [Note that in 2016, the editor wrote that lawyers and some judges used case law.] So, when I read that review report, I felt it a great pity, thinking how wonderful it would be if such an excellent application of case law could appear in the final judgment. Because it was the SPC, its judgment applying similar cases would be a good example and strong signal for the legal community: it is time to use case law.
In 2019, during a talk with an SPC judge in the 3rd Circuit, I heard that a leader in SPC, who was a vice president of the 3rd Circuit, required that all judges and their assistants attach a list of similar cases at the end of their retrial review report, to show the results of their case search. I think it is a good illustration of how certain SPC regulations come into being: first some judges engaged in a practice, then more judges joined and created a consensus, and finally leaders approved and made it a formal rule. I believe this is how (re)search of similar cases become a legally required obligation.
As of now, searching for similar cases has become a legal obligation and the scope of cases requiring the search is nearly unlimited. In practice. Few will question the necessity and legality of case research. In other words, as long as making a judgment of the case requires something more than a direct application of statutes, the research of similar cases is then a necessity of legal research rather than a simple internal procedural requirement. Such awareness has become a consensus of many judges and judge’s assistants in Chinese courts, especially those working in developed cities.
B. What is a similar case?
According to Article 4 of Guiding Opinions on Unifying the Application of Laws to Strengthen the Retrieval of Similar Cases published by the SPC in 2020, 7 sets of cases can be searched and used: guiding cases, typical/model cases issued by the SPC, other SPC cases, reference cases issued by High Courts, other High Courts cases, any cases from higher courts and previous cases decided by the court in question[1] These cases form a pyramid of guiding effect, with the Guiding Cases that all courts must follow at the top, and previous cases of a local court at the bottom. It can be derived from this article that, two types of logic apply to the pyramid: one is the logic of administrative levels, from the SPC to district courts; the second is time: cases from more than three years ago are less worth reviewing.
The practice I experienced was similar to the rules encapsulated in Article 4. When searching cases, it is rare to find a similar Guiding Case because there are only 173 Guiding Cases, as of the end of 2021. Then other SPC cases are always first searched. If none are found, people would turn to higher people’s court cases. The search for cases from Intermediate Court or even District Courts is only persuasive when the court is of the same level or lower level. For example, during my internship in the Shenzhen Futian District Court, I felt comfortable looking at cases decided by Shenzhen Nanshan District Court. I would be much less confident to do so if I were in the 3rd Circuit.
Under Article 4, almost all cases judged by Chinese courts may be regarded as “similar” cases, as long as they are “similar” to the one at hand. How should similarity be determined? The legal definition is far from clear.[2] Based on my experience, the similarities can be reflected by a wide variety of factors, including:
- The same or similar factual factors. E.g., parties involved, type of transaction, markets, and regulations under which the transactions occurred
- The same or similar legal issues. The analogy may be based not only on specific legal reasoning but more often on the applicable legal theory under the Chinese civil law system. For example, a commissioning contract (“委托合同”) is a type of typical statutory contract under the Chinese Civil Code.[3] The search of similar cases to determine the duties of the commissioned party when managing the commissioning party’s assets is conducted under the category of commissioning contract, although the legal reasoning behind is probably fiduciary duty under trust law.
- The same or similar procedural factors, such as the same courts, higher courts of this court, courts in the same position, or similar cities (such as the comparison of cases between Beijing Financial Court and Shanghai Financial Court).
I believe that leaving the definition of similarity vague is actually a good choice for Chinese courts to apply similar cases. Not all judges, especially those from lower courts, are familiar with the process of case analogy or distinguishing one case from another. Given this situation, leaving the discretionary power to determine whether a case is similar to the one under consideration would lower the barriers to applying case law.
C. How to (re)search similar cases
The judge in charge of handling the case is called the “承办人”, who bears the legal obligation to search similar cases.[4] But in practice, the search is conducted by the judge’s assistant. If the judge’s assistant has a law student intern, typically, the intern will first do the search for similar cases to consider how best to decide the legal issues that are disputed in the case.
The China Judgments Online (www.wenshu.court.gov.cn) is the recommended database for similar case search, but no one would really care or question which database a similar case comes from. Different people may use different databases. For me, I used China Judgments Online in the 3rd Circuit Court of the SPC most. But later, the connection to this website has gradually become unstable, so I turned to the commercial databases Wolters Kluwer and Beida Fabao (“北大法宝”). To check the original version of a case, I searched China Judgments Online because it is the only official database published by the SPC, from which all other databases crawl data.
The SPC also required that “courts at all levels” increase the efficiency of case search by using AI technology[5] and “all high people’s courts shall…establish a trial case database”[6] Under the ideal scenario, the AI system will “push” similar cases to the judge (assistant) handling the case. For example, Shanghai courts have adopted a “Shanghai court data system for trial assistance” and which has become “a necessary assistant for the judge.”[7] During my internship, I only tried that system a few times and did not rely on it much, because the similar case pushed on the screen is often insufficient or not as accurate as it is supposed to be. And the push of similar cases can only be done on specific computers connected to court’s intranet, which is not always easy and convenient. However, my experience is limited to the courts in which I have interned and the use of AI in similar case searches may become more widespread and convenient.[8]
Several factors are often used as filters when searching cases in a database. In my experience, the one used most often is “案由”， [cause of action] which signals the basic legal relationship between the parties involved. Keywords expressing legal issues under Chinese civil law theory are also very useful, for example, the fiduciary duty is generally expressed as “勤勉尽责” in Chinese civil law, so this word should be used as a keyword.
It is important to note that the structure of Chinese court judgments (and rulings) is basically the same, with each part starting with the same fixed words, making the search of cases easy. For example, the holding’s reasoning always starts with “本院认为”(“this court holds that”), so it is very convenient to check whether a case is useful by locating this keyword first.
II. The use and application of similar cases
The first step after finding similar cases is for the person handling the case to analyze and apply the reasoning of similar cases (if any) to the issues of the case under consideration, or distinguish them. If any party involved has cited a Guiding Case or another similar case previously decided by the SPC in their arguments, the review report or trial report (both the review report and trial report (审理报告) are types of bench memorandum used in the Chinese courts) must then include a response to the cases cited and an explanation of whether to follow the cited case or not. The collegial panel also discusses whether the cases cited by the parties are applicable during their meeting. [9]
If the collegial panel finds that the case under consideration is analogous to a guiding case, the collegial panel is under a legal obligation to apply the guiding case reasoning to the current one.[10] If the judges take the view that the current case should be distinguished from the guiding case, the draft judgment must be submitted to the Professional Judges Meeting (“专业法官会议”) or on some occasions, directly to the judicial (adjudication) committee(“审委会”) to determine (or decide) whether the collegial panel has properly distinguished the guiding case or SPC case.[11]
In my experience, it is rare to see parties citing useful cases as authority to support their position. In my view, lawyers who are capable of using case law account for a small portion of the entire legal market. There’s still a great deal of work to be done to promote the application of case law, both for lawyers and judges.
III. The report, discussion and archiving of similar cases
For almost all cases,[12] it is required that similar cases be listed and explained in the trial report (审理报告 or review report) compiled as a separate report and attached to the case file. In most cases, similar cases are demonstrated by a copy of its full text or by a brief summary or an excerpt of its facts. Usually, the reasoning of similar cases will be fully copied there, but without further analysis of its applicability. In other words, the list or report of similar cases is usually very simple and straightforward. Readers will find it hard to grasp the link to the current case without any explanation from the person handling it.
Later, the list or report is submitted to all meetings at which the case is discussed, such as meetings of the: collegial panel (“合议庭”), professional judges committee (“专业法官会议”), state compensation committee, or the judicial (adjudication) committee (“审委会”).[13] During the oral report of the case, the person handling the case will introduce the similar cases found, either briefly or thoroughly (depending on the case). The introduction is not just to determine the merits of the case, but also for the judges to be aware of the possible political or social implications of the draft holding. For example, if the judge in charge of the case or the collegial panel proposes distinguishing similar SPC cases found or guiding cases, the professional judges committee or other court committees will generally be very cautious in supporting such proposal.
Once similar cases are attached to the case file in the form of an independent report, the report is incorporated into the case auxiliary (secondary) file (附卷, discussed here). As a constituent part of the case file, the similar cases and related report are forwarded wherever the case file goes (appeal or retrial), and ultimately archived. Part of SPC policy is to move to electronic files and electronic archiving of files (now being piloted). Because the similar cases and trial or review report are part of the auxiliary or supplementary file, it means the parties involved have no access to them.
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Yuan Ye worked as intern judge’s assistant at the Third Circuit Court of the SPC from February to August 2018; at Shenzhen Futian District Court from May to June 2021, and at Shanghai Financial Court from March to May 2022.
[1] “The retrieval scope of similar cases generally includes: 1. guiding cases issued by the SPC; 2. model cases issued by the SPC and cases in which the judgments made by the SPC have taken effect; 3. reference cases issued by the higher people’s courts of the provinces (autonomous regions or municipalities directly under the Central Government) and cases in which the judgments made by such courts have taken effect; and 4. cases in which the judgments made by the people’s court at the next higher level or this people’s court have taken effect. In addition to guiding cases, priority shall be given to cases in the past three years; and where similar cases have been retrieved already in the previous order of precedence, the people’s courts are not required to retrieve more cases.”
[2] Ibid, Article 6: “A judge handing a case shall identify and compare the similarity between the pending case and the retrieval result to determine whether it belongs to a similar case.” No other legal definition of similar cases is provided by laws.
[3] Article 919 of China Civil Code: “A commission contract of mandate is a contract whereby the commissioning party and the commissioned party agree that the commissioned party handles the affairs of the commissioning part.”
[4] Notice by the Supreme People’s Court on the Guiding Opinions on Unifying the Application of Laws to Strengthen the Retrieval of Similar Cases (for Trial Implementation) (“最高人民法院印发《关于统一法律适用加强类案检索的指导意见（试行）》的通知)” Article 3: “A judge handling the case shall retrieve similar cases based on the China Judgments Online (www.wenshu.court.gov.cn), the trial case database, etc., and be responsible for the veracity and accuracy of the retrieval.”
[5] The use of AI has been regarded as a key step to create Smart Courts (“智慧法院”), see Opinions of the Supreme People’s Court on Accelerating the Construction of Smart Courts（最高人民法院关于加快建设智慧法院的意见）art.14 to art.18.
[6] Circular of the Supreme People’s Court on Issuing the Guiding Opinions on Unifying the Application of Law and Strengthening the Retrieval of Similar Cases (for Trial Implementation) (“最高人民法院印发《关于统一法律适用加强类案检索的指导意见(试行)》的通知”) article 12: “People’s courts at all levels shall actively promote the retrieval of similar cases, strengthen technology research and development and application training, and enhance the intelligence and precision of similar case push. All high people’s courts shall make full use of modern information technology to establish a trial case database and pave the way for the development of a unified and authoritative trial case database nationwide.”
[7] See Artificial Intelligence Makes Judicature More Just, Efficient and Authoritative–the Theoretical Analysis and Practical Exploration of Artificial Intelligence in Judicial Field (“人工智能让司法更加公正高效——人工智能在司法领域应用的理论分析与实践探索”), Cui Yadong(崔亚东), ChinaTrial(中国审判), 2017, available with translation at https://law.stanford.edu/china-law-and-policy-association-clpa/articles/. The author is the President and Chief Justice of Shanghai High People`s Court.
[8] More provinces have adopted an AI similar case push system, such as Liaoning and Inner Mongolia: see http://ln.people.com.cn/n2/2020/0803/c378317-34200689.html and https://mp.weixin.qq.com/s/toKUtOcSv2Ai-THiQwlKiQ respectively.
[9] Implementing Measures of the Supreme People’s Court on Harmonization of the Application of Laws (Fa [2021] No.289) (“《最高人民法院统一法律适用工作实施办法》”,(法〔2021〕289号))”, Article 8: “For the cases for which similar cases shall be retrieved as provided in Article 6 hereof, the collegial panel shall include the harmonized standards for the application of law for the cases in the content of deliberation. During the trial, where the public prosecution organ, the parties concerned and their defenders or agents ad litem submit the guiding cases or the effective judgments of the Supreme People’s Court of similar cases in support of their claims, the collegial panel shall include whether the submitted cases or the effective judgments and pending cases belong to the similar cases in the content of deliberation.”
[10] Implementing Measures of the Supreme People’s Court on Harmonization of the Application of Laws (Fa [2021] No.289) (“《最高人民法院统一法律适用工作实施办法》”,(法〔2021〕289号))”, Article 9: “If a pending case is similar to the guiding case retrieved in terms of basic merits and legal application, the collegial panel shall make a judgment with reference to the main points (裁判要点) of the guiding case. In the judgment with reference to a guiding case, the guiding case shall be cited as the reason for judgment, but shall not be cited as the basis for judgment. If a guiding case is cited in the reason for judgment, the number of the guiding case shall be indicated.”
[11] Implementing Measures of the Supreme People’s Court on Harmonization of the Application of Laws (Fa [2021] No.289) (“《最高人民法院统一法律适用工作实施办法》”,(法〔2021〕289号)), Article 10: “ Where the proposed judgment results of a pending case are inconsistent with the application of law standards for guiding cases and the judgments of the Supreme People’s Court for similar cases, or the proposed judgment results will form new standards for the application of law, the collegial panel shall suggest submitting the case to the departmental professional judges session for discussion; if the president or chief judge finds that a pending case has any of the aforesaid circumstances, the departmental specialized judges session shall be convened as required to discuss the case. Where it is inappropriate to submit the cases specified in the preceding paragraph to the professional judges session for discussion due to confidentiality and other reasons, they shall be reported to the leader in charge of the People’s Court level by level for approval, and may be directly submitted to the Judicial (Adjudication) Committee for discussion.”
[12] Implementing Measures of the Supreme People’s Court on Harmonization of the Application of Laws (Fa [2021] No.289) (“《最高人民法院统一法律适用工作实施办法》（法〔2021〕289号）”) Article 6: “If a case in handling has any of the following circumstances, the responsible judge shall retrieve similar cases: (1) The case is proposed to be submitted to the judicial committee or the specialized judges session for discussion; (2) The case lacks specific judgment rules, or has not yet reached unified judgment rules; (3) The case is major, difficult, complex and sensitive; (4) The case involves group disputes or raises widespread social attention, which may affect social stability; (5) The case may conflict with judgments of the Supreme People’s Court on similar cases; (6) Relevant entities or individuals allege that the judge has conducted the trial in violation of the law; (7) The Supreme People’s Procuratorate has protested; (8) During the trial, the public prosecution, the parties and their defenders, or agents ad litem submit guiding cases or the effective judgments of the Supreme People’s Court on similar cases to support their claims; and (9) The president or chief judge retrieves similar cases in accordance with the authority for trial supervision and administration. For the retrieval of similar cases, it is allowed to retrieve only the guiding cases released by the Supreme People’s Court and the effective judgments of the Supreme People’s Court.
[13] Implementing Measures of the Supreme People’s Court on Harmonization of the Application of Laws (Fa [2021] No.289) (“《最高人民法院统一法律适用工作实施办法》（法〔2021〕289号）”) Article 7: “For cases for which similar cases shall be retrieved pursuant to the provisions of Article 6 hereof, the responsible judge shall provide an explanation on the retrieval of such cases in the trial report, or prepare a special retrieval report for such cases. The retrieval explanation or report for similar cases shall reflect the retrieval results of such cases objectively, comprehensively, and accurately, and shall be submitted together with the collegiate bench for deliberation or the specialized judges session, the compensation committee, the judicial relief committee, and the adjudication committee for discussion. The retrieval report for similar cases shall be incorporated into the auxiliary file together with the case.”
Supreme People's Court Monitor 