This blogpost sets out the core of Professor Donald Clarke’s comments on the most recent article published on this blog, Yuan Ye’s HOW “CASE LAW” WORKS IN THE CHINESE COURTS followed by Yuan Ye’s response.
Professor Donald Clarke’s Comments
Professor Donald Clarke, writing on The China Collection blog, had the following comments :
That observation is that the way Yuan describes cases being used looks very much like a bureaucratic machine striving for error reduction. The imperative driving it is different from that which drives the idea of respect for precedent in a common-law system.
For example, cases more than three years old are not considered very important when searching for the “like cases” that should be treated alike. To me that suggests that the main concern is that the machine at any given time produce consistent judgments. The system is seen as a unified whole, and if it’s doing X at the same time that it’s doing not-X, that’s a malfunction that calls the integrity of the whole machine into question. Inconsistent judgments from a long time ago are less of a concern.
The concerns of respect for precedent are different. In a system that values precedent, the fact that you judged a case a certain way before is precisely a good reason for judging a like case the same way now; by contrast, what other judges in other courts are doing at the same moment you are judging is much less important.
Another thing that stands out in this report is the tremendous amount of work done by court personnel in finding and analyzing (what they consider to be) like cases, in contrast to what is reported to be the virtual absence of input on this issue from the parties’ lawyers. We see this a lot in China. Here is work that could theoretically be outsourced to the parties at their own expense; a conscientious court worried about misuse of cases could still spend time reading the cases cited by the parties, and would still save the time spent having to find them. It’s hard to believe that judges and their interns and assistants have the skills to analyze judicial reasoning in cases, but Chinese lawyers do not. The conclusion would seem to be that this kind of input from lawyers is not welcomed. And again, that makes sense if the primary concern is the efficient and consistent functioning of the judicial machine in the eyes of its personnel. Why would they let outsiders tell them how to do their job?
Response by Yuan Ye
Thank you to Prof. Donald C. Clarke for your kind comments and observations on my note: first, researching similar case is a method the SPC, as “a bureaucratic machine”, uses to reduce error and thus keep itself as a whole; second, there is an imbalance between the work on (re)search similar case done by judges (and their assistants) and lawyers.
Both the comments are very insightful. My response is as follows:
I. The purpose of similar case (re)search: maintain the judicial system as whole
Indeed, retaining or asserting internal administrative consistency, rather than following precedent, is arguably the dominating motivation for the SPC to require searches for similar cases.
According to the first sentence of the Guiding Opinions on Unifying the Application of Laws to Strengthen the Retrieval of Similar Cases (for Trial Implementation) (“《关于统一法律适用加强类案检索的指导意见（试行）》”), the purpose and goal of similar case search is to “unify the application of laws and enhance judicial credibility”. 3 months after the publication of this Guiding Opinion, the SPC issued Implementing Measures for the Work of Unifying the Application of Law (最高人民法院统一法律适用工作实施办法), first article of which the SPC explained the meaning and significance of “unifying the application of law” :
Unifying the application of law in judicial work is not only an inherent requirement for building a sound socialist legal system with Chinese characteristics, but also one of the basic responsibilities of the people’s courts in independently and fairly exercising judicial power according to the law. It provides an important means to ensure the unity, dignity and authority of the national legal system, and is indispensable for improving the quality, efficiency and credibility of the judicial system……
From reading these statements, it is clear that the purpose of promoting a unified application of law is principally to enhance the quality and position of the SPC’s (and all lower courts’) judicial work in the context of the “socialist legal system with Chinese characteristics.” Therefore, promoting similar case (re)search helps to unify the application of law and “enhance the credibility of the judicial system” and the legal system as a whole.
From a more practical perspective, due to the varying level of development of courts in different cities, there is a widespread phenomenon called “Different Judgment in the Same Case” (“同案不同判”), which is a concern of the central government and SPC. Such divergence has “ seriously affected the public trust of the judiciary”, and many believe that the absence of “case law” is one of the main reasons. Pushing different Chinese courts to apply the same standards helps the judicial system to operate as a “bureaucratic machine” both internally and externally: first internally, different lower courts maintain consistency with the SPC [note that the editor has previously commented that certain reforms are intended to “strengthen the firm guiding hand of the SPC”); and then second externally, to ensure the judicial system (“法院系统”)’s role in the entire Chinese political-legal system and image before ordinary people.
II. The imbalance between the judge (assistant) and lawyer
Generally speaking, Chinese dispute resolution lawyers are far from professional enough to apply “case law” in their work. Some leading law firms and lawyers have promoted case research in their practice and in the whole legal market. The Tian Tong (“天同”) law firm, was likely the earliest to do so. The firm, which I will join on graduation, has “collected, sorted out and refined the adjudication rules of judicial precedents, forming a 42-million-word “Tiantong Code” series(“天同码”), creating a unique case coding system in China” [1] But many lawyers are still not accustomed to searching for prior cases, leaving it out of their routine work.
The uneven level of (case) law education in different law schools has contributed to that imbalance in legal practice. Under China’s civil law system, cases, even Guiding Cases, are not “law” or binding authorities that can be cited as a “basis” for judgments.[2]
Therefore, traditional Chinese law school education is dominated by teachers’ lectures on legal theory, with rare class participation from students, with rare mentions of case law. In my undergraduate law school, the typical class scene was that the teacher read PowerPoint slides at the front of the class, with the students taking notes on what the teacher said. The main questions on the exams were also discussions of specific legal theories rather than issue spotting.
Things started to change later when some leading law schools had introduced Appraisal Case Analysis (鉴定式案例分析法), a concept borrowed from German law schools, or using other case law teaching methods to enhance the quality of legal education.[3] For example, Peking University Law School [in Beijing] has introduced a series of case law seminars ranging from civil law to criminal law and related procedural law into its teaching.[4] STL is of course also an excellent example of implementing US-style case law education in its daily teaching of Chinese law.[5] However, such new efforts are still limited to a few leading law schools and more time is needed for law school graduates to become experienced lawyers who are capable of using case law in their work.
Courts in developing cities are much less attractive for graduates from leading law schools, and therefore judges in those courts are less familiar with the appropriate way to apply case law than those in developed cities. Therefore, the imbalance is not only between judges and lawyers but also between legal practitioners in different cities.
Another reason behind the imbalance is the “inquisitorial system” adopted by Chinese courts. In contrast to the adversarial system under common law, Chinese courts, when facing parties and their lawyers, have greater authority, having the power to decide the process and results of the judicial process. The lawyers involved are only “necessary” or “useful” when the court believes so. Therefore, lawyers generally lack incentives and confidence to pay more attention to the legal and case (re)search, because there have been many times under which the courts simply ignore the lawyers’ efforts.
[1] http://www.tiantonglaw.com/AboutUs/.
[2] Detailed Rules for the Implementation of the Provisions of the Supreme People’s Court on Case Guidance (《〈最高人民法院关于案例指导工作的规定〉实施细则》) article10: “Where a people’s court at any level refers to a guiding case in the trial of a similar case, it shall quote the guiding case as the judgment’s reasoning, instead of citing it as the basis for the judgment.
[3] See basically Huang Hui, The Basis and Technology of Appraisal Case Analysis, available at https://stl.pku.edu.cn/cn/stl-news/%E9%BB%84%E5%8D%89%E7%BC%96%E8%AF%91%EF%BC%9A%E3%80%8A%E9%89%B4%E5%AE%9A%E5%BC%8F%E6%A1%88%E4%BE%8B%E5%88%86%E6%9E%90%E6%B3%95%E7%9A%84%E5%9F%BA%E7%A1%80%E4%B8%8E%E6%8A%80%E6%9C%AF%E3%80%8B/. For law schools that are promoting Appraisal Case Analysis, see Fudan University Law School at https://law.fudan.edu.cn/74/37/c27189a291895/page.htm, Nankai University Law School at https://law.nankai.edu.cn/2021/0823/c4826a387157/page.htm and Zhongnan University of Economics and Law at http://law.zuel.edu.cn/2021/0623/c3752a274061/page.htm.
Supreme People's Court Monitor 