Tag Archives: Case law

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.

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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.

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

Screenshot 2020-07-27 at 8.49.14 PMOn 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)

  1. 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;
  2. Relevant judicial principles are unclear or conflicting;
  3. A court president or division head requires it under his or her supervision authority;
  4. 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:

  1.  SPC guiding cases;
  2. SPC typical (model) cases (典型案例) and judgments or rulings of the SPC;
  3.  Reference cases issued by provincial-level higher people’s courts  and decisions by those courts;
  4.  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.

 

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

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 5th 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!