Dr. Mei Gechlik on Advances in Chinese Judicial Reform: Guiding Cases

Training Chinese Officials on Open Government

We know that the metaphor of China as a sleeping tiger is outdated, at least in terms of the country’s sheer market force. But it is still a country in transition—and for anyone doing business or practicing law in China, the legal system can be opaque. Work being done here at Stanford Law School is shedding light on a key area of judicial reform in China, and is sure to have an equally profound impact on the country’s legal development and its global business market.

Stanford Law School’s China Guiding Cases Project (“CGCP”) was created in response to the landmark 2010 decision of the Supreme People’s Court (“SPC”) of China to release important Chinese court judgments as de facto binding “Guiding Cases”. Celebrating its 5th anniversary this year, the CGCP is a growing repository of translations and analyses of China’s key judicial decisions and related scholarship. With support from an advisory board of experts including justices from the U.S. Supreme Court and the SPC, the CGCP’s international team of law students, lawyers, and translation professionals helps advance the understanding of GC-related Chinese law as it aims to support the development of a more transparent and accountable Chinese judiciary. The project’s online knowledge-base is gaining traction too, with over 15,000 unique users. More about the CGCP, including its mission and knowledge-base, can be found on its website.

In the interview that follows, CGCP Founding Director Dr. Mei Gechlik, formerly a law professor in Hong Kong and a visiting professor of Peking University, discusses the project and recent presentations of the CGCP’s work at high-level international conferences. For a quick overview of the CGCP, please watch this video that was just released by the project: https://cgc.law.stanford.edu/.

1. You’ve come a long way since the CGCP was established, most notably your creation of a database housing English translations of almost all of the 56 Guiding Cases released to date and related analyses. Can you first explain what “Guiding Cases” are?

“Guiding Cases” (指导性案例) (“GCs”) are cases that have been adjudicated in local Chinese courts and reissued as representative cases by the SPC with the aim of guiding the adjudication of subsequent similar cases and ensuring the uniform application of law across the country. They mark the first time that the judiciary of China, a civil law jurisdiction, has embraced anything similar to case law, making the GCs system one of the most significant reforms for increasing the transparency of Chinese law to date.

It all began with the SPC’s adoption of the Provisions of the Supreme People’s Court Concerning Work on Case Guidance, establishing the GCs system in November 2010. While this rule stated only that courts at all levels in China “should refer to” (应当参照) GCs, informal discussions between senior judges and me suggested that GCs would be de facto binding and that not following them would lead to serious repercussions. This reading was given further weight with the issuance in May 2015 of the Detailed Implementing Rules on the “Provisions of the Supreme People’s Court Concerning Work on Case Guidance”.[1] Instructing judges on how to cite GCs in subsequent, similar cases, these rules have ushered in a new era, with an increasing number of subsequent cases referring explicitly to GCs in their judgments (nearly 200 as of December 2015).

The adjudication committee of the SPC is in charge of selecting GCs from original judgments rendered by courts in different localities. Each GC includes the same six components: (1) keywords, (2) main points of the adjudication, (3) related legal rule(s), (4) basic facts of the case, (5) results of the adjudication, and (6) reasons for the adjudication. They cover a wide range of legal issues, from criminal law to contract and intellectual property disputes, to the enforcement of arbitral awards, among many others. Analyses of the geographic distribution and types of cases covered by the GCs released thus far are regularly updated and published as part of our Guiding Cases AnalyticsTM publication, available through the CGCP’s website.

2. Why are these cases important? Why should American lawyers be interested in them?

GCs are important as they are prepared by the SPC to serve as guides for the adjudication of subsequent similar cases and thereby ensure the uniform application of law in China. The “main points of the adjudication” of each GC contain model interpretations of a wide range of laws and legal issues that are endorsed by the SPC. Judges handling subsequent, similar cases are expected to quote these main points in their judgments. With the steady increase in the number of both GCs released by the SPC and subsequent cases citing GCs, it is clear that the impact of the system is growing.

American lawyers may be especially interested in two developments that the CGCP has been tracking: (1) the increasing number of GCs covering intellectual property and unfair competition law, and (2) the increasing number of GCs involving foreign parties. In addition, those representing clients who are concerned about dispute resolution options may also be interested in GCs 33 and 37, which deal with arbitral awards. A breakdown of these cases and the other types of law that GCs have covered thus far are also available in the latest issue of Guiding Cases AnalyticsTM at https://cgc.law.stanford.edu/guiding-cases-analytics/.

3. Can you talk a bit about the rule of law in China, and how it has been developing over the last few years?

The SPC’s 2010 decision establishing the GC system was significant and important, as it marked the beginning of a de facto binding case system in a country that traditionally emphasized legislation only. Since then, China’s leadership has continued to issue decisions strengthening this important area in the development of the rule of law.

For instance, in its Fourth Plenum Decision, Chinese leaders noted the need to: “accelerate the construction of a rule of law government”, “guarantee judicial fairness”, and “strengthen and standardize [the system of] case guidance to unify the applicable standards in law”. [2] Also, in its Fourth Five-Year Court Reform Plan (2014-2018), the SPC pledged to, among other objectives, “improve the mechanism for unifying the application of law [by] . . . reforming and improving the mechanism for selecting, assessing, and releasing Guiding Cases”, and “establish ‘under sunshine’ a judicial mechanism that is open, dynamic, transparent, and convenient to citizens”. [3]

4. How important is your work to the continued economic development of China?

GCs released by the SPC increase transparency into the functioning (or lack thereof) of Chinese legal safeguards that are essential to the continued economic development of the country. The CGCP’s quality English translations and Guiding Cases in PerspectiveTM series, combined with its supplementary commentaries, Guiding Cases AnalyticsTM and Guiding Cases SurveysTM, all work together to keep international investors and actors informed of the latest developments in the Chinese judicial system. The particular clarifications certain GCs provide in the case of intellectual property and competition law, as well as interpretations of the country’s Company Law and Anti-Unfair Competition Law, among others, provide a new level of insight into Chinese law relevant to business. Armed with more knowledge, international investors and businesses will have more confidence working both within China and with Chinese counterparties, which will in turn continue to fuel the country’s economic development.

5. You participated in the World Bank Group’s Law, Justice and Development Week 2015 in November. Can you share with us highlights from that?

We were extremely excited when we heard that we had been selected to design a panel for the World Bank’s Law, Justice and Development Week in Washington D.C. The CGCP’s interactive panel on November 17, 2015 was titled “The Role of ‘Precedents’/Guiding Cases in the Effective Application, Interpretation, and Implementation of Law: Comparative Experiences from China, Japan, Kenya, and the United States”. It focused on the varied use of precedents in common and civil law jurisdictions to shed further insight into recent Chinese judicial reform and related debates.

I felt honored to moderate a discussion involving so many distinguished speakers: Judge Toshiaki Iimura (Former Chief Judge, Intellectual Property High Court of Japan), James McManis (fellow of the International Academy of Trial Lawyers (IATL) and Co-Chair of the IATL China Program), Hon. Lady Justice Njoki S. Ndungu (Judge of the Supreme Court of Kenya) and Judge John M. Walker, Jr. (United States Circuit Judge of the United States Court of Appeals for the Second Circuit). All of them shared their perspective on the role of precedents in their home jurisdictions, with a view toward demonstrating the import of their experiences to China’s developing GCs. The very different perspectives provided not only meaningful insight to consider as China’s judicial reform continues, but also made clear the importance of case law in developing a predictable and transparent legal system, regardless of whether that system is part of the civil or common law tradition. A summary of the event has been made available to the public for free on the CGCP website at https://cgc.law.stanford.edu/event/20151117-world-bank-law-justice-and-development-week/.

The event’s success and positive feedback from the legal team at the World Bank really showed how much the CGCP has grown over the last five years. I am also pleased to report that all panelists have since joined the CGCP as honorary advisers or advisers.

6. Why do you think that the World Bank is taking notice of your work?

The World Bank’s Global Forum on Law, Justice and Development accepts that strong legal and judicial institutions are an important cornerstone of sustainable economic and social development. As an example of its focus, the 2015 Law, Justice and Development Week explored the role of governance and the law in national social and economic advancement.

With this background in mind, it is clear why the World Bank has been taking notice of the CGCP’s work. Our translations and other products play a significant role in carrying forward the SPC’s work with GCs, which in turn are increasing the transparency of, and thereby strengthening, Chinese legal and judicial institutions. Economic advancement within China and involving Chinese actors must follow the clear legal guidelines provided within GCs such as those discussed above, while other GCs addressing criminal and other social issues reveal the Chinese judiciary’s perspective on issues related to social developments now taking place in China. We are at the center of a cutting edge development in Chinese jurisprudence that has the potential to shift the way we think about Chinese law, and we are happy that the World Bank sees this and is following the developments of this system closely.

7. You also participated in the 2015 Open Government Partnership Global Summit. Can you share highlights from that?

Long interested in open government, both myself—from my earlier experience as leader of the China e-Government Development Index, a project evaluating local Chinese e-government initiatives implemented in collaboration with the Hangzhou Municipal Government, Zhejiang Province—and the CGCP team were particularly excited about this event. We were proud when we heard that the Open Government Partnership had selected our proposal—a panel entitled “Providing Access to Justice for All through Open Judiciary: Comparative Experiences from the United States, Latin America, and China”—from among more than 350 applications from around the world to be presented at the summit.

I was happy to be able to discuss the case of China, alongside Philip R. Malone (Professor of Law, Director, Juelsgaard Intellectual Property and Innovation Clinic, Stanford Law School), who discussed the United States, and Rodrigo Sandoval-Almazan (Professor, Political and Social Sciences School of the Autonomous University of the State of Mexico), who spoke on Latin America. Carlos E. Jiménez-Gómez (Open & Smart Government Specialist, Institute of Electrical and Electronics Engineers (IEEE) e-Government Chair, IEEE Cyber Ethics & Cyber Peace Initiative) did a great job moderating the discussion as it moved from the role of an “open judiciary” in developed, developing, and closed societies in turn. A summary of the event has been made available to the public for free on the CGCP website at <https://cgc.law.stanford.edu/event/20151028-open-government-partnership-global-summit/>.

A highlight of this event was the initial presentation of a trilingual (Chinese, English and Spanish) survey designed to identify those factors the public believes are most critical to achieving an open judiciary. The survey was afterwards circulated throughout the CGCP’s global network for ten weeks, and the results have been attached as an appendix to the event summary mentioned above and incorporated into a book chapter on open judiciary to be published later this year. They will also be included in an action plan to be shared with the Open Government Partnership, policymakers, scholars, legal actors, and other interested parties.

8. Is there anything new happening at CGCP? How can interested scholars, lawyers, and individuals stay connected with the latest GC-related legal developments?

There is always something new happening at the CGCP, as our work is continually trailing the heels of each new batch of GCs release by the SPC. The timely production of high-quality translations of GCs is the core of the CGCP’s work. These English translations, together with the original Chinese text, are available for free on the new CGCP website.

We are continuing to develop our Guiding Cases in Perspective™ series, which is a unique serial publication that identifies the original judgments selected by the SPC, examines their transformation into GCs, and explores the treatment of GCs in subsequent cases. Our work on this has picked up significantly following the increasing number of subsequent cases citing GCs after the issuance of the Detailed Implementing Rules on the “Provisions of the Supreme People’s Court Concerning Work on Case Guidance” discussed above. Those interested should keep on the look out for the lists of subsequent cases that we will be releasing as part of Guiding Cases in PerspectiveTM materials.

As for other products, there is the book chapter mentioned above, which is titled “Open Judiciary in a Closed Society: A Paradox in China?”. It will be included in a seminal book on “open judiciary” and “open justice” titled Achieving Open Justice through Citizen Participation and Transparency that will be published and distributed globally by IGI Global later this year.

We just published a new issue of Guiding Cases SurveysTM to provide some quantitative and qualitative analyses of approximately 200 subsequent cases referring to GCs. This issue of Guiding Cases SurveysTM can be found on the CGCP website at https://cgc.law.stanford.edu/guiding-cases-surveys/.

We will also continue to release new commentaries by legal experts on issues related to GCs. An additional three commentaries are currently being reviewed and finalized for publication in the beginning of 2016. The authors include Judge John M. Walker, Jr. (United States Circuit Judge of the United States Court of Appeals for the Second Circuit), Judge LÜ Tailang (President of Taiwan’s National Judges Academy), and James McManis (fellow of the International Academy of Trial Lawyers (IATL) and Co-Chair of the IATL China Program). A wide range of commentaries published to date are available at http://cgc.law.stanford.edu/commentaries/.

Those familiar with the CGCP’s work will surely have noticed that our website was recently overhauled to allow for easier access to GCs and related materials as well as improved search functionality. Visitors to the CGCP website can now organize search results by various criteria, including date of release, keywords, and area of law.

We encourage those interested in our work to connect with us on social media, including Twitter and Facebook.  We have our own LinkedIn group account and you can also follow my LinkedIn profile, where I post announcements and articles highlighting issues illuminated by GCs. You can also find us on WeChat, one of the most popular messaging platforms in China we are using to spread awareness among the Chinese public of GCs and the increasing number of subsequent cases citing them. We hope you’ll get and stay connected with us to keep abreast of all of the exciting developments we have planned for this coming year!

[1]《〈最高人民法院关于案例指导工作的规定〉实施细则》(Detailed Implementing Rules on the “Provisions of the Supreme People’s Court Concerning Work on Case Guidance”), passed by the Adjudication Committee of the Supreme People’s Court on Apr. 27, 2015, issued on and effective as of May 13, 2015, China Guiding Cases Project, English Guiding Cases Rules, June 12, 2015 Edition, available at http://cgc.law.stanford.edu/guiding-cases-rules/20150513-english/.

[2]《中共中央关于全面推进依法治国若干重大问题的决定》(Decision of the Central Committee of the Chinese Communist Party on Several Major Issues Concerning Comprehensively Moving Forward “Governing the Country According to Law”), passed during the fourth plenary session of the 18th Central Committee of the Chinese Communist Party on Oct. 23, 2014, available at http://paper.people.com.cn/rmrb/html/2014-10/29/nw.D110000renmrb_20141029_2-01.htm.

[3]《最高人民法院关于全面深化人民法院改革的意见¾¾人民法院第四个五年改革纲要(2014-2018)》(The Opinion of the Supreme People’s Court Concerning Comprehensively Deepening the Reform of the People’s Court¾¾The Fourth Five-Year Reform Plan of the People’s Court (2014-2018)), issued by the Supreme People’s Court on Feb. 4, 2015, available at http://www.court.gov.cn/zixun-xiangqing-13520.html.

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