The Chinese Case Guidance System (“the CG System”) has been a bizarre creature for western legal professionals since it was established by the Supreme People’s Court of China (“the Supreme Court”) in 2011. Typically in a civil law country like China, judgments are only expected to have binding effect on the parties to the case, rather than work as an independent source of law. Under the CG system, however, it seems that certain type of Chinese judgments might be “blessed” with some special legal effect, the rulings of which have to be followed by courts across the country. In this short review, we will first introduce the legal framework of the CG System (I), and then present and analyze statistics of the System collected over the past 8 years (II). In the last part, we will address the differences between the Chinese Guiding Cases and the common-law precedents (III).
I. What is the CG System?
The Supreme Court has released two sets of rules with respect to the CG system——the Supreme People’s Court’s Provisions concerning Work on Guiding Cases in 2010 (“the Provisions”) and subsequently the Notice of the Supreme People’s Court on Issuing the Rules for Implementation of the Provisions concerning Work on Guiding Cases in 2015 (“the Rules”). The Provisions and the Rules provide for the fundamental legal basis and the detailed procedures for the CG System. To understand the legal framework of the CG System, the following three points are noteworthy:
(1) Chinese judgments are not “born” to be Guiding Cases. They have to be “significant” enough and go through a special procedure before getting their Guiding Case identity. The Provisions set forth four standards for Guiding Cases. If a case meets any of the standards, it may be recommended to the Guiding Case office of the Supreme Court (“the GC Office”). After the GC Office considers the case is “qualified”, it would be submitted to the Judicial Committee of the Supreme Court (“the Judicial Committee”) for discussion and approval. Once approved, the case will be released by the Supreme Court as a Guiding Case.
(2) Guiding Cases have strong legal effect. If the basic facts and legal application of a case bear similarities with those of a Guiding Case, the court hearing the case “shall refer to” the main points of the adjudication of the Guiding Case. Although no law or rule has further explained what “shall-refer-to” means, several Supreme Court judges have, via their papers or talks, conveyed the message that the Guiding Cases have a very strong legal effect. For example, one Supreme Court justice commented in 2011 that “‘shall refer to’ means ‘must refer to’. When hearing a case similar to a Guiding Case, if the judge does not refer to the Guiding Case, he/she must have legitimate reasons; If the judgment neither refers to the Guiding Case nor states any reason, the judgment, being wildly divergent from the Guiding Case, might be obviously against judicial fairness and might be deemed as an unjust judgment, the party shall have the right to appeal or complain.” Another senior officer of the Supreme Court made a more straight-forward observation in February 2019, saying that if a court fails to refer to a Guiding Case, “the judgment so made would be reversed in the second-instance trial or judicial re-hearing procedure.”
(3) The Guiding Cases released by the Supreme Court is not necessarily the original case that was submitted to the GC Office. According to the Provisions and the Rules, the Guiding Case may be revised or even substantially changed by the GC Office. Such revisions or editing might be made to the fact pattern or the reasoning part of the case to make its guiding points clearer. For example, the GC Office may pick one reason out of three reasons in the original judgment and delete the other two in the Guiding Case.
II. How has the CG System being Running So Far?
PKU Law (Also known as Beida Fabao), one of the biggest Chinese law database, released the 2018 Judicial Application Report of the Guiding Cases of the Supreme People’s Court (“the 2018 Report”) in March 2019. The 2018 Report provides a lot of meaningful figures collected from its database.
(1) Starting from 2011 to the end of 2018, the Supreme Court has released 106 Guiding Cases in total. The number of the Guiding Cases released by Supreme Court varies each year. 12 cases on average were released in the past 8 years with the peak of 22 cases in 2014.
(2) In terms of the adjudication level of the 106 cases, 26 cases were directly heard by the Supreme Court, 29 by high courts, 29 by intermediate courts, 21 by local courts and 1 by special court. With respect to the region where the above courts are located, in addition to 26 Supreme Court cases, 14 cases were heard by courts in Jiangsu, 12 by Shanghai courts, 10 by Zhejiang courts, 6 by Beijing courts, 6 by Shandong courts and the rest were heard by courts in other provinces;
(3) Not all the Guiding Cases have been put into use in legal practice. The 2018 Report shows 78 out of 106 cases (74%) are found to have been referred to in 3098 judgments over the past 8 years while the rest 28(26%) are still “inactivated”.
(4) Among 3098 judgments, there are only 1101 cases (36%) where the judges expressly referred to Guiding Cases to support their judgments; In 1736 cases (56%), despite party’s request for referring to the Guiding Cases, the judges did not expressly include or comment on the specific Guiding Cases in the reasoning part.
Based on the above figures, our observations are: first, 106 cases over 8 years is not a big number. That renders the Guiding Case system less powerful than it was designed. It indicates Supreme Court’s attitude that prudent efforts shall be exercised in releasing Guiding Cases because of its strong legal effect. Second, the more developed a region’s economy is, the more likely that judgments made by courts in that region would be selected as Guiding Cases. A large portion of Guiding Cases originally comes from the Yangtze River Delta (i.e. Shanghai, Jiangsu and Zhejiang), the most economically developed region in China. It illustrates that the thriving economy brings high quality judgments. Third, it seems that Chinese judges have not yet got used to the CG System. The 1101(36%) figure shows that judges lack either awareness or intent of referring to the Guiding Cases on its own initiative. It also shows that in promoting the application of Guiding Cases, it is more of a party-driven process than a court-led process.
III. What is the Difference between the China’s Guiding Cases and the Common-law Precedents?
Due to their similarities, it is very likely for western legal professionals to draw comparisons between the China’s Guiding Cases and the common-law precedents and reach the conclusion that the CG System is Chinese version stare decisis. An in-depth look, however, would reveal the substantial differences between two.
(1) Guiding Cases are not an independent source of law. This is the fundamental difference between the Guiding Cases and the common-law precedents. As indicated in the Rules, the Guiding Cases shall only be referred to as a reason for adjudication, rather than as the ruling basis where laws and rules usually are cited. In other words, Guiding Cases only serve as an aid to judicial reasoning, rather than the legal basis per se. In a broader sense, the CG System is not established to radically change China’s civil-law system by creating an internal common-law mechanism. Instead, the major purpose of the CG system, as shown in many judicial documents, is to promote uniformity in legal application, fill statutory lacunae and improve judicial efficiency.
(2) Guiding Cases are not “real” cases. Common law is usually characterized as “judge-made law”, where judges have the right to “enact” laws via deciding individual cases under the principle of stare decisis. The Chinese Guiding Case system is far from that description. While common-law precedents gain their legal effect once it is made by judges, Chinese judgments have to go through a lengthy process to get their Guiding Case identity. Furthermore, even if a Chinese judgment gains the guiding effect, chances are that the released judgment is different from the original judgment because the case has been (heavily) edited by the GC Office.
(3) The legal effect of the Guiding Cases is different from that of common-law precedents. In common law jurisdictions, a precedent is either binding on or persuasive for a court when that court decides subsequent cases with similar issues or facts. Although the legal effect of the Guiding Cases resembles the binding effect (“the de facto binding effect”), the coverage of the “shall-refer-to” effect is different from either the binding effect or the persuasive effect. Once released by the Supreme Court, the Guiding Cases should have the de facto binding effect on courts at all levels, rather than only limited to the lower courts of the original court deciding the case.
Despite the limited number of Guiding Cases, Chinese legal professionals have gradually formed a consensus that the CG System is playing an increasingly indispensable role in adjudication. It is anticipated that the Supreme Court will be more confident in releasing more Guiding Cases in the future, and will endeavor to increase judges’ awareness of checking and using Guiding Cases to ensure the adjudicative consistency.