I.  Introduction

On May 13, 2015, the Supreme People’s Court of China (“SPC”) issued the Detailed Implementing Rules on the “Provisions of the Supreme People’s Court Concerning Work on Case Guidance” (the “Detailed Implementing Rules”). [1] Article 1 of the Detailed Implementing Rules sets forth the purpose of the guidance it contains, and, in the process, reiterates the core tenets behind the system [2] for the selection and re-issuance of certain Chinese court judgments as Guiding Cases (“GCs”) established by the Provisions of the Supreme People’s Court Concerning Work on Case Guidance (the “Provisions”). [3] Article 1 states:

In order to concretely implement the Provisions of the Supreme People’s Court Concerning Work on Case Guidance, to strengthen, standardize, and promote work on case guidance, to [let] the guiding effect of Guiding Cases fully play its role in adjudication work, to unify standards for the application of law, and to safeguard judicial impartiality, [the Supreme People’s Court hereby] formulates this [set of] Detailed Implementing Rules. (emphasis added).

By repeating expressions used in the Preamble of the “Provisions”—namely, “unify the application of law” and “safeguard judicial impartiality”—the SPC emphasizes that judges’ reference to GCs is meant to accomplish these two goals. The SPC then clarifies how judges “should refer to” GCs when they adjudicate similar cases, a requirement first stated in Article 7 of the Provisions. In Article 9 of the Detailed Implementing Rules, the SPC explains:

Where a case being adjudicated is, in terms of the basic facts and application of law, similar to a Guiding Case released by the Supreme People’s Court, the [deciding] people’s court at any level should refer to the “Main Points of the Adjudication” of that relevant Guiding Case to render its ruling or judgment.

The “Main Points of the Adjudication” is one of the six sections in each GC. All GCs are summaries of the full-text judgments or rulings originally rendered by courts of various levels and from different regions of China. In the “Main Points of the Adjudication”, the SPC summarizes the legal principles upon which the adjudication was based into one or a few short paragraphs,[4] in the hopes of providing clear guidance to judges in China, many of whom would otherwise have difficulty deriving these principles from the original judgments because they have received little or no training on how to use cases in this way. [5]

The SPC continues to explain how to refer to GCs in Article 10 of the Detailed Implementing Rules, which provides:

Where a people’s court at any level refers to a Guiding Case when adjudicating a similar case, [it] should quote the Guiding Case as a reason for their adjudication, but not cite it as the basis of their adjudication.

The emphasis placed on quoting the GC as a reason for the adjudication is welcome, as Chinese judges’ discussion of their reasoning has been known to be rather limited in many cases. The assertion that GCs cannot be cited as the basis of the adjudication shows the SPC’s careful avoidance of being seen to make drastic changes to the Chinese legal system, which only allows legislation and the SPC’s judicial interpretations [6] to be cited as the basis of an adjudication.

Along with the requirement to quote GCs in similar, subsequent cases, the SPC vows in Article 13 of the Detailed Implementing Rules to “establish paper archives and an electronic information base for Guiding Cases” so as to “safeguard the reference and application, inquiry, retrieval, and compilation of the Guiding Cases”. This provision is in line with the Provisions of the Supreme People’s Court on the Publication of Adjudication Documents on the Internet by People’s Courts, [7] Article 4 of which requires the publication of all adjudication documents on the Internet unless they are withheld due to exceptional circumstances, such as where the underlying cases “involve state secrets or personal privacy”, “involve the commission of crimes by minors”, or have been “settled by mediation”. Referred by ZHOU Qiang, President of the SPC, as the “openness is the rule, non-openness is the exception” principle,[8] this new approach not only reversed the past practice of holding back judgments or rulings unless they were selected for publication, but also led to the launch of the “China Judgements [sic] Online” website (“中国裁判文书网”; http://www.court.gov.cn/zgcpwsw/) (“CJO website”) in July 2013. As reported by the website, it has published approximately 15 million judgments or rulings rendered by courts of different levels in China to date.

The availability of essentially all judgments and rulings presents an unprecedented opportunity for conducting empirical analysis of court decisions in China. This marks a new stage of Chinese legal research, expanding the tools of researchers who, until recently, had largely been confined to interviews and questionnaires in their effort to reveal Chinese law in practice.[9] With respect to GCs, the SPC has issued 56 GCs since 2011,[10] but how they are used in subsequent cases (“SCs”) is little known. The China Guiding Cases Project (“CGCP”) of Stanford Law School fills this gap by committing the project to tracking, through the official CJO website, all SCs that explicitly refer to the GCs and conducting cumulative analysis of these SCs on a regular basis. This piece represents the beginning of this ambitious and continuous study.

II.  Number of Subsequent Cases Referring to Guiding Cases

By the end of 2015, 181 SCs that explicitly refer to GCs have been published on the CJO website. Table 1 catalogues the number of these SCs that reference each listed GC and its case type. Guiding Case Nos. 46-56 are not included in the table because no SCs were found to refer to these GCs, likely due to the recentness of their release.

Table 1. Subsequent Cases that Explicitly Reference Guiding Case Nos. 1-45

Almost half of the 181 SCs (i.e., 76) explicitly refer to GC No. 24 (“GC24”), RONG Baoying v. WANG Yang and Alltrust Insurance Co., Ltd. Jiangyin Branch, A Motor Vehicle Traffic Accident Liability Dispute, an automobile liability case released by the SPC on January 26, 2014. [11] GC24 presents a motor vehicle traffic accident liability dispute involving the insurance provider of the driver who was found to have caused the accident. The insurance company sought to reduce its liability by claiming that the pre-existing physical condition of the victim, who was not at fault, contributed to the total harm the victim suffered. The local court ruled against the insurance company on grounds subsequently summarized by the SPC as “Main Points of the Adjudication”, which read:

[If] a victim of a traffic accident is not at fault, the effect of his [pre-existing] physical condition on the ramifications of the harm [he suffered] is not a type of legal circumstance that can mitigate a tortfeasor’s liability.

Given the common nature of the legal issue– a traffic accident and corresponding insurance issues– involved in GC24, it is not a surprise that this case has been frequently cited.

For a complete list of SCs that explicitly refer to each of the GCs listed in Table 1, please go to the corresponding webpage of the GC. [12]

III.  Types of Subsequent Cases

Figure 1 shows the geographical distribution of the courts handling the 181 SCs. The wide distribution of these courts shows that the requirement to publish adjudication documents is quite commonly followed.

Figure 1. Geographical Distribution of the Courts Handling Subsequent Cases Referencing Guiding Cases

Most of the 181 SCs were handled by courts located in Shandong (27 SCs), Zhejiang (21 SCs), Guangdong (17 SCs), Henan (16 SCs), and Jiangsu (15 SCs). Shandong (3 GCs), Zhejiang (5 GCs), and Jiangsu (8 GCs) are among the localities with relatively more original judgments upon which GCs were issued.[13] One might argue that the greater number of GCs originated from these localities has increased lawyers’ and judges’ awareness of GCs and these legal actors are, therefore, more ready to use GCs in subsequent, similar cases. Nevertheless, the fact that many SCs are from Guangdong and Henan—two provinces that have each originated only one GC—suggests that there are additional driving forces. This issue is worthy of further research when more SCs are available.

Seventy-six of these 181 SCs are first-instance rulings or judgments, 93 are second-instance rulings or judgments, and two are retrials that were authorized according to Article 199 of the Civil Procedure Law of the People’s Republic of China[14] after the original rulings or judgments had taken effect. The remaining ten SCs include six applications for retrial,[15] two applications for reconsideration of a court decision granting or denying a party’s objection to enforcement,[16] one application for revoking an arbitral award,[17] and one objection to enforcement.[18]

Another way to classify these 181 SCs is to look at the different levels of courts that rendered these rulings/judgments. Of these 181 cases, 74 are rulings/judgments rendered by basic people’s courts, 90 by intermediate people’s courts, 13 by higher people’s courts, two by the SPC itself, and two by special courts (in these instances, railway courts in Shanghai). It makes sense that most SCs were handled by basic people’s courts and intermediate people’s courts, which are the main courts that adjudicate cases in the first-instance and second-instance, respectively.[19] Higher people’s courts and the SPC only adjudicate cases in special circumstances.[20] For example, when a case is of major importance and requires adjudication by an intermediate people’s court as the court of first instance, the case, if appealed, will be handled by a higher people’s court. A case can be so important that it is adjudicated by a higher people’s court as the court of first instance, leaving the SPC to handle the appeal.[21]

More insight can be gained by examining the type of cases that prompt reference to GCs. Among the 181 SCs, 151 are civil cases, while 21, six, and three are administrative, criminal,[22] and enforcement cases, respectively. As shown in Table 2, most GCs are related to civil law matters and it is thus reasonable that the majority of the 181 SCs are also civil cases. Yet, given that nine GCs are criminal cases covering a wide range of areas, including bribery, robbery, theft, intentional homicide, dangerous driving, and the illegal trading and storage of hazardous substances, one would expect to see more SCs reference these GCs. Is this under-citation a reflection of criminal lawyers’ and judges’ inadequate understanding of GCs? Or, does this reflect these legal actors’ skeptical views of the effectiveness of using GCs in a criminal justice system that has already been marred by various limitations? It is too early to draw any conclusion but it is worth noting that in five of the six criminal SCs, parties or their lawyers did not refer to the relevant GC, leaving the deciding courts to fill the gap. In the remaining SC,[23] the party did refer to GC13, but the deciding court failed to explain whether or not the GC was applicable.[24]

Table 2. Related Legal Rules Cited in Guiding Cases

IV.  Time Elapsed Between Date of Adjudication and Date of Release

All 181 SCs were adjudicated between May 2013 and December 2015 (see Figure 2). Forty-five percent of these SCs were published on the official website within 50 days after the judgments or rulings were rendered (see Figure 3). The time elapsed between the date of adjudication and the date of release is decreasing (see Figure 4), indicating that deciding courts are increasingly ready to meet the abovementioned publication requirement.

Figure 2. Comparative Dates of Adjudication for Subsequent Cases Referencing GCs

Figure 3. Number of Days Elapsed Before Subsequent Cases Are Posted Online

Figure 4. Number of Days Elapsed Between Date of Adjudication and Date of Release

V.   Reference to Guiding Cases by Lawyers and Judges

Article 11 of the Detailed Implementing Rules provides:

In the process of handling a case, the personnel handling the case should inquire about relevant Guiding Cases. Where a relevant Guiding Case is quoted in the adjudication document, [the personnel] should, in the part [of the document where they provide] reasons for their adjudication, quote the serial number and the “Main Points of the Adjudication” of the Guiding Case.

Where a public prosecution organ, a party to a case and his [25] defender, [26] or a litigation agent [27] quotes a Guiding Case as a ground [for the] prosecution (litigation) or defense, the personnel handling the case should, in [providing] the reasons for the adjudication, respond [as to] whether [they] referred to the Guiding Case [in the course of their adjudication] and explain their reasons [for doing so].

To encourage judges to refer to GCs, Article 14 of the Detailed Implementing Rules provides:

People’s courts at all levels should, in accordance with [legal] provisions, including the Judges Law of the People’s Republic of China, give rewards to those entities and individuals that have made outstanding achievements in the work on case guidance.

A close examination of the 181 SCs shows the extent to which GCs have been referenced by lawyers and judges.

In 47 of the 181 SCs, GCs were not mentioned by any party involved in the dispute. Thirty-six of these cases were handled with legal representation and 11 were not. Despite the parties’ failure to refer to the relevant GC, the deciding courts took the initiative to mention the GC in 44 of these 47 SCs (in the other three SCs, only the first-instance court mentioned the GC, the second-instance court did not). The presence of legal representation without proper citation to support their client’s argument or mount a defense suggests that in situations where a GC should be considered, quite a few lawyers failed to provide competent legal representation.

In the remaining 134 SCs, at least one party (or their lawyer) mentioned a GC in their arguments. In 38 of these 134 cases, the deciding courts referenced the GC explicitly or implicitly, while in the other 96 cases, the deciding courts did not mention the GC at all, let alone explain in detail whether or not the referenced GC, or any other GC, should be applied.

The judges’ lack of response to parties’ arguments could partly reflect inadequate understanding of GCs among judges, but may also reveal judges’ uncertainty as to whether and how they should explicitly cite GCs in judgments.[28] The release of the Detailed Implementing Rules should help dispel this uncertainty, but their impact needs to be further increased as this study shows that in 49 of all the 181 SCs, the deciding courts did not reference the GC, even though the adjudication of these cases postdated the Detailed Implementing Rules.

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ANNEX 1 

Subsequent Cases as of December 31, 2015