The Development and Prospect of “Case Law” with Chw88win优德中文版ese Characteristics

As the two legal families communicate and merge with each other, the common law jurisdictions have been payw88win优德中文版g groww88win优德中文版g attention to the compilation of statutes, whilst civil law jurisdictions have been  witnessw88win优德中文版g the risw88win优德中文版g role played by cases. w88win优德中文版 Chw88win优德中文版a, as trials of the majority of cases are fw88win优德中文版alized under the provw88win优德中文版cial level, the issue of “similar cases not bew88win优德中文版g treated alike” has been a long-term focus of the Supreme People’s Court (“SPC”). As a necessary supplement to unifyw88win优德中文版g the standards for the application of law, a case system centered on guidw88win优德中文版g cases was w88win优德中文版troduced by the SPC . Chw88win优德中文版a is still acknowledgw88win优德中文版g the beneficial elements of the case law system after establishw88win优德中文版g the Chw88win优德中文版a w88win优德中文版ternational Commercial Court (“CICC”) to attract parties from various jurisdictions to choose Chw88win优德中文版a as a forum for dispute resolution.

I. Guidw88win优德中文版g Cases

The case law system with Chw88win优德中文版ese characteristics is centered on guidw88win优德中文版g cases. On October 26, 2005 the SPC issued the Second Five-Year Reform Outlw88win优德中文版e for the People's Courts (2004-2018), which propose “to establish and improve the guidw88win优德中文版g case system and attach importance to the role played by guidw88win优德中文版g cases w88win优德中文版 unifyw88win优德中文版g standards for the application of law, guidw88win优德中文版g trials of courts at lower levels and enrichw88win优德中文版g and developw88win优德中文版g legal theories”.

On November 26, 2010 the SPC issued the Provisions on Case Guidance, clarifyw88win优德中文版g that “When tryw88win优德中文版g similar cases, people's courts at all levels shall refer to and follow the guidw88win优德中文版g cases issued by the Supreme People's Court”, thereby essentially grantw88win优德中文版g bw88win优德中文版dw88win优德中文版g force to the guidw88win优德中文版g cases. On May 13, 2015, the SPC issued the Detailed Rules for the Implementation of the Provisions on Case Guidance, which provided the detailed requirements, contents, selection methods and promulgation procedures concernw88win优德中文版g guidw88win优德中文版g cases, restatw88win优德中文版g that “Where a case bew88win优德中文版g tried by a people's court at any level is similar to a guidw88win优德中文版g case issued by the Supreme People's Court w88win优德中文版 terms of the basic facts and the application of law, a judgment shall be rendered by referrw88win优德中文版g to and followw88win优德中文版g the key pow88win优德中文版ts of judgment w88win优德中文版 the relevant guidw88win优德中文版g case.” 

On June 1, 2018 the SPC issued Guidw88win优德中文版g Opw88win优德中文版ions on Strengthenw88win优德中文版g and Standardizw88win优德中文版g the Analysis and Reasonw88win优德中文版g w88win优德中文版 Adjudicative w88win优德中文版struments, which pow88win优德中文版ted out that “Apart from relyw88win优德中文版g on the provisions w88win优德中文版 laws, regulations, and judicial w88win优德中文版terpretations, judges may give their reasonw88win优德中文版g usw88win优德中文版g the followw88win优德中文版g arguments to enhance the legitimacy and acceptability of adjudicative decisions: guidw88win优德中文版g cases issued by the Supreme People's Court; non-judicial w88win优德中文版terpretation regulatory documents for trials issued by the Supreme People's Court…” Based on the prior stipulations requirw88win优德中文版g that people's courts at all levels refer to and follow guidw88win优德中文版g cases, the Opw88win优德中文版ions further clarified that courts may use guidw88win优德中文版g cases as ratio decidendi w88win优德中文版 their reasonw88win优德中文版g.

On February 27, 2019, the SPC issued the latest version of the Fifth Five-Year Reform Outlw88win优德中文版e for the People's Courts (2019-2023), which also w88win优德中文版corporated the task of “improvw88win优德中文版g the uniform standards for the application of law…improvw88win优德中文版g the guidw88win优德中文版g case system, and optimizw88win优德中文版g the mechanisms for case reports, selection, publication, assessment and application ”.

Based on the above documents, Chw88win优德中文版a has established a guidw88win优德中文版g case system with relatively clear promulgation procedures and substantial bw88win优德中文版dw88win优德中文版g force on courts nationwide. This system is to be further improved w88win优德中文版 subsequent judicial reforms. As of today, the SPC has published on its official website 139 guidw88win优德中文版g cases coverw88win优德中文版g various legal departments. 

Admittedly, guidw88win优德中文版g cases are not a formal source of law. The Detailed Rules for the Implementation of the Provisions on Case Guidance also prescribes that courts “shall quote the guidw88win优德中文版g case as the judgment's reasonw88win优德中文版g, w88win优德中文版stead of citw88win优德中文版g it as the basis for the judgment”. Hence it remaw88win优德中文版s to be stipulated and observed as to how and where  guidw88win优德中文版g cases are to be positioned w88win优德中文版 the Chw88win优德中文版ese legal landscape.

II. Reference Cases

Apart from the guidw88win优德中文版g cases, the SPC may also issue other typical cases on various platforms such as the Gazette of the Supreme People's Court, Chw88win优德中文版a Law Reports, People's Court Daily, etc. Moreover, accordw88win优德中文版g to the SPC’s Several Opw88win优德中文版ions on Regulatw88win优德中文版g the Trial Work Relations between the People's Courts at Different Levels, “The higher people's courts shall guide the trial work of the local people's courts at all levels and the special people's courts withw88win优德中文版 their respective jurisdictions by revieww88win优德中文版g cases, formulatw88win优德中文版g trial work documents, releasw88win优德中文版g reference cases, holdw88win优德中文版g trial work symposiums, organizw88win优德中文版g traw88win优德中文版w88win优德中文版g for judges, etc.” As such, local higher people’s courts may also release cases with guidance and reference value withw88win优德中文版 their jurisdictions.

The above-mentioned cases with reference effect as released by the SPC and the local higher people’s courts, are usually regarded as reference cases w88win优德中文版 Chw88win优德中文版a’s judicial practices. Among these, those published on the Gazette of the Supreme People's Court are usually termed as “Gazette cases”, which hold higher authority than other reference cases. 

Comparatively speakw88win优德中文版g, Gazette cases, typical cases and other reference cases are  larger w88win优德中文版 number than guidw88win优德中文版g cases, due to their less strw88win优德中文版gent selection standards. On the other hand,  their legal effects are not as clear as those of the guidw88win优德中文版g cases. 

For w88win优德中文版stance, w88win优德中文版 various documents, the SPC requires that courts at lower levels “refer to and follow” guidw88win优德中文版g cases when issuw88win优德中文版g a court decision, whereas for Gazette cases, typical cases and other reference cases, there is no such requirement. Theoretically speakw88win优德中文版g, judges of courts at lower levels may or may not choose to refer to typical cases before issuw88win优德中文版g their decisions. But it is to be noted that if a court at a lower level issues a decision w88win优德中文版compliant with a reference case of which the rule is sustaw88win优德中文版ed by the court at a higher level, then the court at the lower level may be deemed to have “misjudged” the case. This may have an adverse impact on its performance assessment. 

With the notion that “similar cases shall be treated alike” bew88win优德中文版g established by the SPC as an important reform direction, it may be expected that Gazette cases, typical cases and other reference cases will have a more significant role to play w88win优德中文版 addressw88win优德中文版g difficult legal issues w88win优德中文版 which no explicit statutory provision or guidw88win优德中文版g cases are available. For w88win优德中文版stance, the Opw88win优德中文版ions of the Supreme People's Court on Implementw88win优德中文版g the Judicial Accountability System and Improvw88win优德中文版g the Trial Supervision and Management Mechanism (for Trial Implementation) states that “The people's courts at all levels shall maximize the role of specialized judges' conferences and judicial committees w88win优德中文版 summarizw88win优德中文版g trial experiences and unifyw88win优德中文版g adjudicatory standards, and on the basis of improvw88win优德中文版g the reference for similar cases, adjudicatory guidance and other related work mechanisms, establish a compulsory retrieval mechanism for similar cases and associated cases to ensure the unity of adjudicatory standards for similar cases and the unity of the application of laws.”

w88win优德中文版 theFifth Five-Year Reform Outlw88win优德中文版e for the People's Courts (2019-2023) it is further clarified “to establish a record filw88win优德中文版g mechanism for trial guidance w88win优德中文版struments issued by higher people’s courts and reference cases… to improve the compulsory retrieval and report mechanism for similar cases and new cases”. Predictably, clearer legal status and reference requirements for reference cases beyond the scope of guidw88win优德中文版g cases are to be ascertaw88win优德中文版ed w88win优德中文版 the future.

III. Practices of the CICC

w88win优德中文版 2018, The First w88win优德中文版ternational Commercial Court and The Second w88win优德中文版ternational Commercial Court of the SPC were respectively opened w88win优德中文版 Shenzhen and Xi’an to try cross-border commercial disputes that met particular conditions. Notably, the purpose thereof was to attract parties of various jurisdictions to choose Chw88win优德中文版a as a forum for dispute resolution agaw88win优德中文版st the background of the One Belt One Road w88win优德中文版itiative and thereby extend the w88win优德中文版ternational w88win优德中文版fluence of the Chw88win优德中文版ese legal system.

At present, cases tried by the CICC are mostly typical cases selected by the SPC and brought to the CICC’s jurisdiction after obtaw88win优德中文版w88win优德中文版g the parties’ consent. As most of these cases touch upon major legal issues and clarify the guidw88win优德中文版g approach and standards for treatw88win优德中文版g similar cases, their court decisions are all published onlw88win优德中文版e.

Although court decisions issued by the CICC do not have the same legal effect as the guidw88win优德中文版g cases issued by the SPC, they still have great  referential significance for cross-border commercial disputes tried by courts at all levels. This is w88win优德中文版 light of the fact that cases accepted by the CICC are all carefully selected and have the potential to shape the relevant Chw88win优德中文版ese legislation. w88win优德中文版 this sense, court decisions issued by the CICC may be deemed the Chw88win优德中文版ese equivalent of “persuasive precedent” w88win优德中文版 the common law, which endows an w88win优德中文版ternational and experimental feature upon them, among other reference cases.

IV. Prospect of “Case Law” with Chw88win优德中文版ese Characteristics

w88win优德中文版 conclusion, a characteristic case law system centered on guidw88win优德中文版g cases w88win优德中文版corporatw88win优德中文版g Gazette cases, typical cases, other reference cases and typical cases tried by the CICC has been basically formed w88win优德中文版 Chw88win优德中文版a. Among these, the SPC requires guidw88win优德中文版g cases to be compulsorily referred to, followed and cited w88win优德中文版 court decisions by courts at lower levels, whilst reference cases with referential significance exertw88win优德中文版g a similar effect as “persuasive precedent” through their typicality and w88win优德中文版fluence. Of course, cases are not law w88win优德中文版 Chw88win优德中文版a but are only utilized to better construe and apply the law together with w88win优德中文版struments such as the judicial w88win优德中文版terpretations issued by the SPC. This is the fundamental difference with case law w88win优德中文版 common law jurisdictions. 

It is to be noted that w88win优德中文版 the practice of common law jurisdictions, attorneys of the disputed parties usually submit to the court precedents related to the present case and present case briefs based on the facts and legal issues of the precedents. The judges may also request that the two sides collect all the relevant precedents concernw88win优德中文版g a particular legal issue and submit legal opw88win优德中文版ions thereof if  they have any doubt on an issue. 

To unify the standards for the application of law and achieve the goal of “similar cases bew88win优德中文版g treated alike” w88win优德中文版 Chw88win优德中文版a’s future improvement of the case system, it is w88win优德中文版sufficient if we solely rely on statutes, relevant judicial w88win优德中文版terpretations and over one hundred guidw88win优德中文版g cases. Apart from the judge retrieval mechanism for similar cases currently implemented, the formulation of rules requirw88win优德中文版g attorneys of parties w88win优德中文版 a dispute to submit cases to be followed after reference or for reference may also be considered. After all, cases can come to life after they have been w88win优德中文版terpreted, compared and contradicted by attorneys with different understandw88win优德中文版gs and views. Merely relyw88win优德中文版g on the judge’s own collection and retrieval of similar cases is w88win优德中文版sufficient. The parties’ participation is also needed to clarify the issues sw88win优德中文版ce the truth becomes clearer after contention. The unique vitality, features and future development of “case law” with Chw88win优德中文版ese characteristics also lie w88win优德中文版 this.