04 June 2013

问题: Guiding Cases - Selected Wisdom from the Supreme People’s Court

As I have discussed before, China is primarily a civil law country. The law is a body of codified, written rules not determined by judges. However, China is also special. Due to the legal kick-start the country went through in 1979, the laws are patchy and lacking comprehensiveness. Furthermore, broad changes have taken place in China’s social and economic spheres (and are still taking place today) – the system needs an internal mechanism to make up for the fact that laws cannot cover all the new developing social and economic relations.

Xi Jinping, General Secretary of the Communist Party of China Central Committee, for one, is concerned with the efficiency and authority of the judicial system. The list of aspirations is long: efficiency, judicial transparency, judicial justice, improved access to justice…en bref, he wants a China ruled by law. What the system needs is judicial reform and innovation.

Part of the solution: guiding cases. Two questions immediately arise.

One, what are ‘guiding’ cases? They cannot be referenced or cited, nor are they binding on the courts. A head-turner for us disciples of the common law, who live by precedent and incorporate cases into our music in our spare time. These are not common law cases: they are more like a hovering notion for the judges to keep in mind. An advisory opinion that is not an advisory opinion. 

Two, why have guiding cases? Can these really meet Xi Jinping’s lofty goals? In the opinion of Professor Wu Shuchen of Shandong University, yes: “the effect of the guiding cases system…first, significantly limits the discretionary power of judges and effectively avoids the defect of different verdicts for similar cases; second, it significantly reduces the uncertainty and unpredictability of the law.” 

So far, the guiding cases have served to cover particularly prickly areas of the law – they provide general provision for cases that happen frequently enough to warrant guidance but not to such an extent that they rank high on the list of priorities for the NPC. With a heavily backed up legislative, the guiding cases act as a steam-valve. For example: of the four guiding cases released upon the SPC’s initiation of the system in 2001, Shanghai Centaline Property v Tao DeHua addressed disputes arising from “private transactions by passing intermediary” between buyers and the intermediaries in second-hand property transactions. Intermediaries were not allowed to pursue damages for use of information if the buyer could have accessed this information through other legal means. A niche area of the law that the NPC would not be able to prioritize but which needed resolution, as intermediary companies are the de facto way to purchase urban property in China. 

The younger generations of legal scholars are open to this quasi-common law addition to the legal system. After all, the Constitution gives the SPC the power to issue advisory cases. Furthermore, most of these up-and-coming legal scholars have served educational terms in common law countries; the efficiency and dynamic adaptability of using case-law is not lost on them. An active judiciary is not that bad of an idea. 

Sixteen cases have been released so far, and no large legal opposition has formed (apart from a few furrowed eyebrows in the legal literature from the legal purists). Hopefully, at least, guiding cases will promote an environment where the rule of law is victorious and people can settle all their problems by legal means. 

Interested? Check out the catalogue of guiding cases with commentary and legal analysis (yes, in English): https://cgc.law.stanford.edu/

KEYWORDS: Supreme People’s Court, Guiding Cases, Judicial Interpretation, Shanghai Centaline Property v Tao DeHua, NPC

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