Tag Archives: Case law

How “Case Law” Works in the Chinese Courts

May 29, 2022 Supreme People's Court Monitor Leave a comment

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 3^rd 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 3^rd 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.

_____________________________________________________________________

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.”

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

April 1, 2022 Supreme People's Court Monitor Leave a comment

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.

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.
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.
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.
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.
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.
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.
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.
Several of the circuit courts issue a “case a week” and the SPCIPC does so as well.
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:

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.

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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.

case database, Case law, Communist Party and the Courts, Court Reform, foreign-related cases

Supreme People’s Court’s new guidance on similar case search

July 27, 2020 Supreme People's Court Monitor 6 Comments

Screenshot 2020-07-27 at 8.49.14 PM On 27 July 2020, the Supreme People’s Court (SPC) issued Guiding Opinions Concerning Strengthening Search for Similar Cases to Unify the Application of Law (Guiding Opinions) (关于统一法律适用加强类案检索的指导意见（试行)), effective on 31 July. It is not a judicial interpretation, rather it is guidance intended to make judicial decisions more consistent, an ongoing issue in the Chinese court system. The SPC is approving the practice of judges using principles derived from prior cases to fill in the gaps in legislation and judicial interpretations. The Guiding Opinions codifies many of the practices of the Chinese courts and imposes some new requirements. It does not mean that China has become a common law legal system. As explained further below, although the Guiding Opinions do not address this question, comments by an SPC judge suggest that the special status of cases selected by the SPC by its operational divisions remains in place.

It also illustrates two larger points–that discrete judicial reforms aimed at more consistent judgments continue to be implemented even as the role of Party leadership and oversight continues to be stressed. It is also an illustration of how long it can take judicial reforms to be implemented. in my view, this discrete, technical reform has implications greater than the drafters of the Guiding Opinions realized, including a possible impact on Chinese legal education. It has the potential to make litigation a more predictable process for parties.

Case Search Requirements

What are similar cases?

Article 1 defines that–the cases that are already effective and are similar in their basic facts, disputed points, issues of law, etc. (指与待决案件在基本事实、争议焦点、法律适用问题等方面具有相似性，且已经人民法院裁判生效的案件).

When is similar case search required? (Articles 2 and 7)

When a case is proposed to be submitted to a professional or specialized (presiding) judges meeting (generally all the judges in a division) or the judicial/adjudication committee for discussion;
Relevant judicial principles are unclear or conflicting;
A court president or division head requires it under his or her supervision authority;
Other relevant situations.

That is, similar case search is not required in all cases, only when the relevant “law” is unclear.

Similar case search should be set out in the trial report for the case or in a separate precedent (similar case) report (类案检索报告) and included in the case file. As noted in my earlier blogpost, trial reports are confidential and not accessible to parties or their lawyers. Article 8 requires that the search report must include details on the platform, means of search, etc. and how the search was used.

Who searches and how?

The judge in charge of the case (承办法官) is in charge of undertaking the search and is responsible for doing it accurately and properly, using either the SPC’s database or other case databases, focusing on cases from the last three years, except for guiding cases.

Judges can use methods such as keyword search, legal provision (article of the relevant law), or related case search.

What must be searched?

These rules (in Article 4) are in line with what I have previously written:

SPC guiding cases;
SPC typical (model) cases (典型案例) and judgments or rulings of the SPC;
Reference cases issued by provincial-level higher people’s courts and decisions by those courts;
Higher-level courts in the jurisdiction in question and judgments of that court.

Except for the guiding cases, priority is given to the search of cases or cases in the past three years; if a similar case has been searched in the previous order, no search is required. Article 5 provides that judges can use methods such as keyword, legal article-linked, and case-based searches.

My understanding is that these are general principles, but the specific scope of cases that need to be searched will depend on the specifics. As I have previously written, the SPC Circuit Courts have issued cases that guide the lower courts in their circuits. The special authority of those cases remains in place. Judges reviewing issues related to the enforcement of foreign arbitral awards in China will need to look to a special set of cases (described here), for example.

I had previously written about cases selected by the operational divisions of the SPC providing guidance to the lower courts. Those retain their special authority, as indicated by comments by Senior Judge Yu Tongzhi, an editor of Reference to Criminal Trial (the joint publication of the SPC’s five criminal divisions). He noted in an article published on 31 July, that as far as criminal justice is concerned, without a doubt, the first choice for searching similar cases is to search the guidance cases contained in their publication, setting indices to the guidance cases for the convenience of readers.

Are precedents binding?

Precedents are not binding, but guiding cases should be 参照 “referred to” (the link is to SPC Research Office Deputy Director Judge Guo Feng’s authoritative explanation) unless the case conflicts with subsequently issued law or judicial interpretations. Other types of cases are not binding, but for judges to consider（参考).

How judges must respond

Article 10 imposes a new requirement on courts, if procurators, parties, their representatives (their lawyers) submit guiding cases or other cases in support of their legal position (as I had previously written had been the practice). For guiding cases, courts are required to state in the reasoning section of their judgments whether or not the guiding case was referred to and why.

For all other types of cases, the court can use its power of clarification/explanation and other means (释明等方式) to respond. It is understood that this is meant to give judges flexibility in responding to (non-guiding) judgments provided by parties–so the court may respond in its court’s judgment or in other ways. Those other ways may include: responding to the cases submitted pre-hearing, during a hearing, after a hearing, as the court considers most appropriate. We will need to observe what is done in practice, for example, whether courts respond primarily in their judgments or orally. This will be the way that a party can monitor whether the search accurately reflects prior cases, as neither a party or its counsel has access to the trial report. Other unknowns are how this system will influence administrative proceedings such as those at the Trademark Review and Adjudication Board.

Link to Inconsistent Decision Mechanism

Article 11 contains a link to the inconsistent decision mechanism discussed here, which I described as a microcosm of themes reflecting how the SPC operates, given its high bureaucratic nature.

Why case law reform?

As this blog has discussed, in the New Era, the role of Party leadership and oversight continues to be stressed (see this blogpost, for example). This discrete judicial reform is aimed at more consistent judgments. It is a critical tool that judges are already using because Chinese legislation lags behind the needs of the courts, and judicial interpretations are insufficient as well. Party policy would have an indirect impact on those cases, as would foreign law principles (mentioned here).

“Slow-cooking” judicial reform

The issuance of these rules shows the strength of the case law system and how long it can take a single judicial reform to be implemented. As mentioned in the June, 2019 blogpost, when Professor Hu Yunteng（until recently Justice Hu Yunteng, formerly a full-time member of the SPC’s judicial committee, now retired) recollected the history of the case system with Chinese characteristics, he mentioned that Jiang Huiling, then his colleague at the China Institute for Applied Jurisprudence (now Dean of the Tongji University School of Law) had looked to jurisdictions outside of China to advocate that China establish a case law system. Professor Hu Yunteng doesn’t specify whether Dean Jiang Huiling was looking to case law systems in civil or common law jurisdictions in the “West.”). In his 2016 Harvard Law Review student note, Mark Jia (now clerking on the Supreme Court), cited Li Shichun of the China Law Society to the effect that it was the National People’s Congress that opposed those seeking to establish a Chinese case law precedential system. That opposition has been overcome by widespread professional usage (as described in my 2017 Tsinghua Law Review article). It is unusual in that the practice came first and was not a top-down reform (顶级设计).

Concluding Comments

This discrete, technical reform is an important one for the rules relating to judicial decision-making better harmonized with judicial practice. There are a number of unknowns. One is whether it will result in judges feeling more comfortable in setting out their reasoning, knowing that other judges may look to it. An important question is how the practice of responding to cases will evolve–will judges tend to respond in their judgments, or as I suspect, do it orally. (As to why I think that–it is related to the desire of Chinese judges to reduce their risk under the judicial responsibility system).

In my view, this reform has the potential to make Chinese litigation a more predictable process. It is a bit of evidence of the gradual harmonization of the operations of the Chinese courts with the rest of the world, as current circumstances permit.

CICC, foreign-related cases, intellectual property, international commercial court

The China International Commercial Court & the development of case law with Chinese characteristics

December 31, 2019 Supreme People's Court Monitor 4 Comments

Screen Shot 2019-12-31 at 11.06.28 AM — Article in 30 December edition of People’s Court Daily

On 30 December 2019, I was quoted in an article that appeared in Supreme People’s Court (SPC) media (see the screenshot above).

“中国国际商事法庭的运作时间不长，但从迄今为止的运作中可以清楚看到，其受理案件非常慎重，会选择对中国相关法律发展产生影响的案件。”最高人民法院国际商事专家委员、北京大学国际法学院常驻知名学者Susan Finder表示，从首批案件的裁判文书可以明显看出，中国国际商事法庭的判决和裁定对于下级法院的法官和法律界人士来说，可能是重要的“软先例”，即权威性的裁判。

The CICC has been in operation a short time…What is clear from its operations so far is that it is carefully choosing its cases, only selecting cases that will have an impact on the development of relevant Chinese law. What seems evident from the initial rulings, at least, is that the judgments and rulings of the CICC are likely to be significant for lower court judges and members of the legal community as “soft precedents,” authoritative decisions….

It is an excerpt from a brief article that I am setting out below as I wrote it in English (I have added (Chinalawtranslate.com’s) translation of excerpts from certain documents) and Chinese translation (many thanks to a knowledgeable person who took a break from year-end case closing to do this elegant translation).

I am honored to have this opportunity to comment on some of the first rulings and judgments of the China International Commercial Court (CICC). This brief commentary will address the significance of CICC judgments and rulings and the CICC arbitration-related rulings.

The CICC has been in operation a short time and it is early days to provide a more detailed analysis of its operations. What is clear from its operations so far is that it is carefully choosing its cases, only selecting cases that will have an impact on the development of relevant Chinese law. What seems evident from the initial rulings, at least, is that the judgments and rulings of the CICC are likely to be significant for lower court judges and members of the legal community as “soft precedents,” authoritative decisions that are highly persuasive although not binding on the lower courts. Authoritative commentators in China and abroad have noted that the arbitration rulings fill a gap in Chinese arbitration law. The rulings are also consistent with the position taken by courts in some major jurisdictions that also find that the parties expressed their intent to arbitrate any dispute although their contract was never finalized. In the view of this commentator, they are part of China developing its own case guidance system, highlighted in item #26 of the 5^th Judicial Reform Outline, in particular the phrase “Improve working mechanisms for mandatory searches and reporting of analogous cases and new types of cases” “完善类案和新类型案件强制检索报告工作机制” . It was previously mentioned in Opinions on Putting a Judicial Responsibility System in Place and Improving Mechanisms for Trial Oversight and Management (Provisional) –“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 “最高人民法院关于落实司法责任制完善审判监督管理机制的意见（试行）, (六) 在完善类案参考、裁判指引等工作机制基础上，建立类案及关联案件强制检索机制，确保类案裁判标准统一、法律适用统一 .

Moreover, thus far, five judges formed the members of the collegial panel, all of whom are the Chinese court’s most outstanding specialists on cross-border issues, including the judicial review of arbitration. This indicates the importance to which the Supreme People’s Court attaches to CICC cases.

In this commentator’s view, addition to CICC cases, other cases decided by or selected by the Supreme People’s Court would be classified as such. For example, cases decided by the Supreme People’s Court Intellectual Property Rights Court 最高人民法院知识产权法庭 would also be allocated to the category that I call “Supreme People’s Court soft precedents.” Other Supreme People’s Court soft precedents would include cases in the Supreme People’s Court Gazette 最高人民法院公报案件, cases in the trial guides published by the various operational divisions 各个业务庭发表的审判业务指导丛书选的案件，and cases of the specialized judges committees of the SPC operational divisions 和各个业务庭专业法官会议案件。

In my view, cases decided by the collegial panels of the Supreme People’s Court are also persuasive, but not as persuasive as Supreme People’s Court cases in the categories described above. Supreme People’s Court circuit court cases are very persuasive to the courts within their jurisdiction. This case law is needed to supplement law and judicial interpretations and guide the lower courts correctly, as many new issues come before the courts before the legislative organs have time to amend legislation. I see China evolving its own case law, looking to traditional law and foreign jurisdictions for reference, but settling upon rules that fit China’s special situation, that may include some of the points I mention above. CICC decisions, whether rulings or judgments, will send important signals to the market, and are likely to be significant worldwide, as there is a documented increase in international arbitration cases where either the contract in dispute is governed by Chinese law or Chinese law is relevant in various ways.

The Chinese version:

中国国际商事法庭与有中国特色判例法的发展

我很荣幸有这个机会就中国国际商事法院(CICC)的首批裁定和判决发表意见。本短评将侧重中国国际商事法庭的判决和裁定以及仲裁司法审查裁定的重要性。

中国国际商事法庭的运作时间不长，对其运作进行更详细的分析还为时过早。但从其迄今为止的运作中可以清楚看到的是，中国国际商事法庭选择其受理的案件非常慎重，只选择会对中国相关法律发展产生影响的案件。至少从首批裁定可以明显看出，中国国际商事法庭的判决和裁定对于下级法院的法官和法律界人士来说，可能是重要的“软先例”，即权威性的裁判，虽然对下级法院没有约束力，但具有很强的说服力。国内外权威专家均指出，这批裁定填补了中国仲裁法的一项空白。这些裁定也与一些主要法域法院的立场保持了一致，也即尽管双方当事人的合同并未最后敲定，但双方都表示有意将争议提交仲裁。在本文作者看来，这些裁判构成中国发展自己的案例指导制度的一部分，正如第五个司法改革纲要第26项所强调的，特别是“完善类案和新类型案件强制检索报告工作机制” 。此前，最高人民法院关于落实司法责任制完善审判监督管理机制的意见（试行）曾提及“(六) 在完善类案参考、裁判指引等工作机制基础上，建立类案及关联案件强制检索机制，确保类案裁判标准统一、法律适用统一。”

此外，到目前为止，合议庭均由五名法官组成，全部都是中国法院在跨境问题（包括仲裁司法审查）方面最杰出的专家。由此可见最高人民法院对国际商事法庭案件的重视程度。

本文作者认为，除国际商事法庭案件外，最高人民法院审理或选取的其他案件也将被归入此类案例。例如，最高人民法院知识产权法庭判决的案件，也可归为所说的“最高人民法院软判例”，最高人民法院其他软判例还包括最高人民法院公报案例、各个业务庭发表的审判业务指导丛书选的案例和各个业务庭专业法官会议案例。我认为，最高人民法院合议庭判决的案件也具有说服力，但是没有上述几类案例的说服力强。最高人民法院巡回法庭案例对其辖区内的法院具有很强的说服力。由于立法机关往往来不及修改立法，许多新问题就摆在了法院面前，因此需要以判例来补充法律和司法解释以正确指导下级法院。我看到中国正在发展自己的判例法，参考传统法律和外国司法管辖区的做法，但最终确定适合中国特殊国情的规则，这可能包括上文提到的一些要点。国际商事法庭的裁判，无论是裁定还是判决，都将向市场发出重要信号，而且很可能在全球范围内产生重大影响，因为已有相关文件显示，争议合同适用中国法，或者中国法在不同方面予以适用的国际仲裁案件不断在增加。

Happy New Year!