ZHU Zhigang of the China Team examines the development of case law in Chinese judicial decision-making.
|Supreme People's Court website
The publication of judicial decisions is directly linked to the role of jurisprudence. Ten years ago, if a Chinese lawyer wished to cite a precedent in order to support his case before a People’s Court, the court would refuse and say: “We are not a case law country”.
The term “case law country” refers to Common Law countries – such as the United Kingdom and the United States – where a large part of the law is made by judges.
The judicial practice in China has changed since then, and Chinese courts are paying more and more attention to their past decisions in their judicial decision-making.
Supreme People’s Court
With 3000 courts, some 100,000 judges and 10 million court cases every year, the task of harmonizing decisions, which requires their publication, is challenging. The Supreme People’s Court (SPC) started to pay attention to this issue as early as 1956, and progressively developed the system of selecting cases in order to guide the adjudicating work of the judges. Besides issuing documents called Interpretations, Provisions and Opinions, which contain direct instructions to the courts on how to apply the law in specific situations, the Supreme Court selects and publishes cases for instructive purposes. In 1985, the Court created the Gazette, which was first published quarterly, then bi-monthly and now monthly. In 2013 the SPC issued the “Provisions on the Issuance of Judgments on the Internet by the People’s Courts”, requiring all Chinese courts to disclose their effective judgements from 1 January 1 2014.
According to the “Provisions”, all effective judgements (administrative, civil and criminal), unless they involve state secrets, personal privacy or juvenile delinquency, or are concluded under mediation, must be published within seven working days after they become final. The publication of the full judgment is necessary, but personal information (such as personal domicile address or banking information) or content relating to trade secrets, shall be concealed.
Up to now, more than 100 million judgments have been published on the SPC’s official website, which includes more than 1 million decisions relating to IP.
Provision on Case Guidance
In 2010, the SPC released the “Provision on Case Guidance”, which distinguishes “general cases” from “guiding cases”, which – in a manner similar to “precedents” in the common law systems – are binding on the lower courts. These cases are selected by a panel of officials, and the SPC specifies, in the publication, which parts of the judgment shall be binding. If a lower court decides not to follow a guiding case, it has to explain the reasons in its own judgment.
In 2014, the Beijing IP Court was designated to further explore the use of precedents. The judges, lawyers and parties were encouraged to consult, provide and argue precedents. By the end of 2016, the court had issued over 700 decisions involving precedents, of which some 300 contained a detailed discussion on the influence of the decisions cited.
Based on the Beijing IP Court’s exploration, on 31 July 2020 the SPC released the “Guiding Opinions on Unifying the Application of Laws and Strengthening the Search for Precedent Cases”, which provides more details on the use of precedents.
According to the “Opinions”, a court must make a search on precedents when : 1) the case is being submitted to the plenary meeting of presiding judges or to the judicial committee for discussion; 2) there are no clear or unified adjudication rules for this type of case; 3) the president of the court or the head of the tribunal orders the search; and 4) other cases where a search is needed.
The scope of the precedent search is wide and includes decisions by the SPC, the Provincial High People’s Court’s, People’s Courts at higher level and the adjudicating court itself.
In addition, the “Opinions” reiterated that the SPC’s guiding cases are binding, which means that whenever such a case is cited in the litigant’s arguments, the court must formally indicate whether and to what extent the precedents submitted by the parties are taken as reference and provide relevant reasoning.
The SPC’s continuous attempt to increase the role of precedent case law will make Chinese courts’ decisions more rational and predictable.
Contributed by ZHU Zhigang, a partner and attorney-at-law with Wanhuida Law Firm, and a member of the MARQUES China Team.