PRC Supreme Court issues Guiding Opinion on using 'Precedents'

On 27 July 2020, the Supreme People’s Court of the People’s Republic of China (“SPC”) issued the Guiding Opinions on Unifying the Application of Laws through the Strengthened Retrieval of Similar Cases (for Trial Implementation) (“Guiding Opinions”).

SPC guiding opinions are important judicial ruling criteria which normally have binding effect in practice for all levels of the People’s Courts in the PRC (“People’s Courts”) although such opinions are not law in a technical sense.

This is not the first time that the SPC puts forward the concept of “similar-case checks” for the People’s Courts to follow when hearing a case. For instance, back in 2015 the SPC issued the Several Opinions on Perfecting the System of Judicial Responsibility of the People’s Courts which, inter alia, require in a few simple words that the People’s Courts shall unify adjudication standards through reference to similar cases and case studies. Such requirement was further detailed by the SPC in the following years until the SPC promulgated on 27 February 2019 the Outline of the Fifth Five-Year Reform of the People’s Courts (2019 – 2023) (“5-Year Plan”) and qualified therein the similar-case check system as one of the major tasks of the People’s Courts during the mentioned time period. Now, the Guiding Opinions, which will take effect on 31 July 2020, have been released likely to follow the 5-Year Plan and to specifically regulate the similar-case check system for the purpose of “unifying the application of laws and enhancing the public credibility of the judiciary”. According to a spokesman of the SPC, the similar-case check system as stipulated in the Guiding Opinions should become “the concrete system with Chinese characteristics under the continental-law system”.

The Guiding Opinions contain 14 articles, which specify circumstances where the People’s Courts shall perform similar-case searches, determine the types of cases that shall be included in the search scope, the types of cases that the People’s Courts shall and may refer to, and decide how to deal with the inconsistent application of laws in the retrieved cases.

Definition of “similar cases”

“Similar cases” under the Guiding Opinions are precedent cases which have similarities to the case to be ruled or judged in terms of basic facts, focuses of dispute, questions of law application, etc. and which have become effective upon ruling or judgment by a People’s Court.

Circumstances where the court shall perform a similar-case search

According to the Guiding Opinions, while hearing a case, the People’s Courts shall perform a similar-case check under the following circumstances using platforms such as China Judgments Online (i.e. http://wenshu.court.gov.cn/) and trial cases databases:

• the case is to be submitted to the professional (presiding) judges’ committee or the trial committee for discussion;
• the case lacks clear judgement rules, or unified judgement rules have not been formed;
• the president of the court or the head of the division conducts searches for similar cases according to the requirements of the jurisdiction of trial supervision and administration; or
• other circumstances arise where a similar-case search is needed.

The judge in charge of the case shall be responsible for the authenticity and preciseness of the search.

Cases included in the search scope

According to the Guiding Opinions, four levels of similar cases are to be included in the search scope:

1. guiding cases issued by the SPC (“Guiding Cases”);
2. typical cases issued by the SPC and cases decided by SPC in which judgments have taken effect;
3. reference cases issued by the Higher People’s Courts of the respective provinces, autonomous regions, or province-level municipalities and cases decided by the Higher People’s Courts in which judgments have taken effect; and
4. cases decided by the People’s Courts at the higher level and by the respective People’s Courts themselves in which judgements have taken effect.

Except for Guiding Cases, priority should be given to example-setting cases or cases in which a decision was set down over the past three years. If a similar case of the preceding order has already been found, retrieving more cases of the latter orders is unnecessary.

The above quoted provisions literally are not entirely clear concerning the priority order of the cases to be searched for and referred to. However, according to the implication of the text and the PRC judicial hierarchy, we understand that the priority order should be from a) to d), i.e. Guiding Cases, regardless of when they were issued, shall always have the first priority to be searched for and referred to (if any are found), while cases under b) to d) shall each prevail over the latter.

Mandatory and optional reference

According to the Guiding Opinions, if the retrieved similar case is a Guiding Case, the People’s Court shall, i.e. it will be obliged to make a judgment by referring to that Guiding Case, unless the retrieved case is in conflict with newly passed laws, administrative regulations, judicial interpretations, or is replaced by new Guiding Cases. If the retrieved similar case belongs to other types (i.e. any case under the above item b), c) or d)), the People’s Court may, i.e. it will not be obliged to make a judgement by referring to that retrieved similar case.

Where (in a criminal prosecution) a prosecutor, a party in the case and its defending counsel, or a litigation agent submits a Guiding Case as the grounds for prosecution or defence, the People’s Court shall, i.e. it will be obliged to explain whether and why it has referred or has not referred to that Guiding Case in the reasoning portion of the ruling or judgement document. Otherwise, if cases of other types are referred to as the grounds for the prosecution or defence, the People’s Court may reply by way of clarification or other means, i.e. it will not be obliged to make any explanation in the ruling or judgment document.

How to deal with inconsistent applications of laws

If the judgements in the retrieved cases applied different laws, the People’s Court may apply the mechanism for resolving differences in the application of laws contained in the provisions such as the Implementing Measures for Establishing the Mechanism for Resolving Law Application Differences (promulgated by the SPC on 11 October 2019). During this process of applying the mechanism, the People’s Court may consider the factors such as the levels of the courts, the dates the judgements were made, and whether the judgements have been discussed by a trial committee.

Miscellaneous

Under the Guiding Opinions, the SPC further requires the People’s Courts to strengthen technical R&D and trainings for similar-case checks, establish case databases and regularly summarize the status of similar-case checks for court reference and for recordal at the higher level of the People’s Courts.

Our comments

The Guiding Opinions contain the most detailed provisions up till now on the system of similar-case checks. They may be regarded as a concrete step forward by the SPC to implement such system according to the 5-Year Plan. Similar-case check is not a typical feature of the continental-law system which PRC law has in principal adopted. However, it has the obvious advantage of judicial credibility and legal certainty. On the other hand, a well-functioning system of similar-case checks would require judges, but also other legal practitioners like prosecutors and attorneys to have a wider range of legal knowledge and studies so that they are able to identify, analyse and correctly adopt (or not adopt) any found precedents.

From the perspective of procedural justice, it would not be fair that the People’s Courts and public prosecutors are provided complete case databases, while private parties and attorneys are not given full access or resources so that they are disadvantaged in preparing their arguments or strategies. The SPC and competent governmental departments should endeavour to build up and constantly maintain complete and publicly accessible case databases and other required infrastructure to enable a fair judicial environment.

Therefore, the efficient and thorough implementation of the Guiding Opinions appears a long-term task.

Link to the Guiding Opinions.

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