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The Supreme People’s Court of China, the country’s highest judicial organ, has initiated a new reform by releasing a set of “guiding cases” to help judges make their rulings.
On December 21, 2011, the Supreme People’s Court published the first four guiding cases, including two civil cases and two criminal cases. Judges are required to refer to them while adjudicating.
The cases were selected according to the Provisions of the Supreme People’s Court on Guiding Cases. The provisions, released in November 2010, say that the key principles for adjudication established in these cases should be referred to by judges when hearing similar cases and may be incorporated as a basis for the reasoning in final rulings.
There are two legal systems in the world: the common law system and the civil law system.
Under the common law system, judges are bound to follow the reasoning used in relevant preceding cases. Where no legislative statute or precedent for rulings exist, judges in a precedent-based system have the authority to make law by creating a precedent.
In the civil law system, judges follow a codified body of general principles enacted by the legislature. A judge deciding on a given case has the freedom to interpret the text of a statute independently, but has no authority to act where there is no statute.
But in recent years, the two legal systems have been drawing on each other.
“Though China adopts the civil law system, it has recently begun to give more weight to legal precedents. Nonetheless, the guiding cases are not to make laws but to interpret laws,” said Hu Yuteng, Director of the Research Department of the Supreme People’s Court.
Examples to follow
Courts in China have always attached importance to the role of settled cases in future adjudication, said Wu Guangxia, head of the Case Guidance Office under the Research Department of the Supreme People’s Court. In 1985, the Supreme People’s Court began periodically publishing typical cases for courts at various levels to refer to. Local courts have also published lists of major past cases.
According to Ma Kai, a Beijing-based lawyer, the newly published guiding cases differ from all other cases for reference published before December 21, 2011, because they were selected according to a distinct procedure and, more importantly, they have greater guiding power.
“It is now obligatory for judges to refer to
—Hu Yuteng, Director of the Research Department of the Supreme People’s Court the guiding cases when hearing similar cases and judges failing to do so should present convincing written explanations for their rulings. The cases previously published by courts at various levels didn’t carry such requirements. The guiding cases can also be cited in ruling instruments, while previously published cases cannot,” Ma said.
The first four guiding cases were chosen by the Case Guidance Office of the Supreme People’s Court after a meticulous process.
The office first selected candidate cases from more than 100 cases submitted by courts at various levels, and then it solicited feedback from relevant departments and scholars. The candidate cases were then reported to the Supreme People’s Court’s supervising president or vice presidents, and approved by the court’s Judicial Committee before being published.
The first four published guiding cases respectively involve the violation of a contract between buyer and seller in second-hand home transaction, the breach of a mediation agreement in a civil case, a bribery case, and a case in which a man who was convicted of
unpremeditated murder was given a death sentence with two years of probation.
“Too few cases have been published,”said law professor Xu Xi at the Beijing Institute of Technology. Xu would have preferred to see seven or eight guiding cases published every quarter.
Scholars and legal practitioners are divided as to the value of the guiding cases published so far.
Tang Wen, President of the Administrative Tribunal of Zhuhai City Intermediate People’s Court in south China’s Guangdong Province, said that it is a pity that no published guiding case involved ordinary citizens suing the government, as judges really need precedents to serve as guidelines in these difficult cases.
“Generally speaking, the cases do not involve pressing social issues,” said Li Xuan, Dean of the Law School of the Central University of Finance and Economics in Beijing.
“Most cases cannot serve as guiding cases because they do not meet the criteria for guiding cases or are too controversial,” Hu said.
According to him, guiding cases should contain general legal principles, and cases without broader legal significance should not be chosen no matter how novel they are and how much media attention they receive.
The case involving bribes paid to two civil servants is generally held to be a prime example. But critics said that the case involving a second-hand home transaction is only relevant to a very limited set of occasions. They also pointed out that the case regarding the breach of a mediation agreement is superfluous because it does not concern a disputed area of judicial practice. The murder case is seen as too controversial to be used as a valuable reference for judges.
Consistent standards
Despite different views on the value of the four published guiding cases, many scholars hailed the publication of the guiding cases as a significant step in the reform of China’s legal system.
“Guiding cases are set up to ensure that similar cases are decided according to consistent principles,” said law professor Xu.
A consistent problem with a code-based legal system is that judges may interpret legal statutes differently and make inconsistent court decisions on similar cases. Professor Xu said that some legal statutes in China tend to be very general, abstract and even obscure, which exacerbates this problem. Guiding cases are expected to provide a clearer basis for rulings.
In April 2006, when Xu Ting, a young man in Guangzhou City, Guangdong Province, withdrew money from an ATM machine, he found that after he withdrew 1,000 yuan ($154) from the machine, only 1 yuan($0.15) was deducted from his bank account.
Taking advantage of the machine error, Xu repeated the withdrawal operation 171 times, and obtained 175,000 yuan ($26,923). He then quit his job and fled. A year later Xu was captured, accused of stealing public property. Under the Criminal Law, he was eligible to receive more than 10 years in prison or even a life sentence.
In November, 2007, the Guangzhou Intermediate People’s Court sentenced him to life in prison. His case was widely reported and hotly debated. Under public pressure, the court re-tried the case in March 2008, and repealed the previous sentence and gave him a five-year jail term, a 20,000-yuan ($3,000) fine plus an obligation to return all the money he illegally withdrew.
Xu’s case brought to light a similar case in Yunnan Province. In 2001, He Peng, then a college student, found 1 million yuan($153,846) erroneously appeared in his debit card account, so he withdrew almost half that amount from an ATM. Later that year, he was sentenced to life in prison. Encouraged by the second decision on Xu’s case, He’s parents requested a retrial. In 2009, the Yunnan Higher People’s Court reduced He’s prison term to eight and half years.
In addition to standardizing judges’ discretionary practices, guiding cases can also protect judges from administrative interference.
Some scholars have raised the concern that guiding cases will simply encourage judges to slavishly copy the decisions of similar cases. In response to such concerns, Wu of the Supreme People’s Court’s Research Department said that judges should follow the reasoning behind guiding cases and not simply look at the rulings.
On December 21, 2011, the Supreme People’s Court published the first four guiding cases, including two civil cases and two criminal cases. Judges are required to refer to them while adjudicating.
The cases were selected according to the Provisions of the Supreme People’s Court on Guiding Cases. The provisions, released in November 2010, say that the key principles for adjudication established in these cases should be referred to by judges when hearing similar cases and may be incorporated as a basis for the reasoning in final rulings.
There are two legal systems in the world: the common law system and the civil law system.
Under the common law system, judges are bound to follow the reasoning used in relevant preceding cases. Where no legislative statute or precedent for rulings exist, judges in a precedent-based system have the authority to make law by creating a precedent.
In the civil law system, judges follow a codified body of general principles enacted by the legislature. A judge deciding on a given case has the freedom to interpret the text of a statute independently, but has no authority to act where there is no statute.
But in recent years, the two legal systems have been drawing on each other.
“Though China adopts the civil law system, it has recently begun to give more weight to legal precedents. Nonetheless, the guiding cases are not to make laws but to interpret laws,” said Hu Yuteng, Director of the Research Department of the Supreme People’s Court.
Examples to follow
Courts in China have always attached importance to the role of settled cases in future adjudication, said Wu Guangxia, head of the Case Guidance Office under the Research Department of the Supreme People’s Court. In 1985, the Supreme People’s Court began periodically publishing typical cases for courts at various levels to refer to. Local courts have also published lists of major past cases.
According to Ma Kai, a Beijing-based lawyer, the newly published guiding cases differ from all other cases for reference published before December 21, 2011, because they were selected according to a distinct procedure and, more importantly, they have greater guiding power.
“It is now obligatory for judges to refer to
—Hu Yuteng, Director of the Research Department of the Supreme People’s Court the guiding cases when hearing similar cases and judges failing to do so should present convincing written explanations for their rulings. The cases previously published by courts at various levels didn’t carry such requirements. The guiding cases can also be cited in ruling instruments, while previously published cases cannot,” Ma said.
The first four guiding cases were chosen by the Case Guidance Office of the Supreme People’s Court after a meticulous process.
The office first selected candidate cases from more than 100 cases submitted by courts at various levels, and then it solicited feedback from relevant departments and scholars. The candidate cases were then reported to the Supreme People’s Court’s supervising president or vice presidents, and approved by the court’s Judicial Committee before being published.
The first four published guiding cases respectively involve the violation of a contract between buyer and seller in second-hand home transaction, the breach of a mediation agreement in a civil case, a bribery case, and a case in which a man who was convicted of
unpremeditated murder was given a death sentence with two years of probation.
“Too few cases have been published,”said law professor Xu Xi at the Beijing Institute of Technology. Xu would have preferred to see seven or eight guiding cases published every quarter.
Scholars and legal practitioners are divided as to the value of the guiding cases published so far.
Tang Wen, President of the Administrative Tribunal of Zhuhai City Intermediate People’s Court in south China’s Guangdong Province, said that it is a pity that no published guiding case involved ordinary citizens suing the government, as judges really need precedents to serve as guidelines in these difficult cases.
“Generally speaking, the cases do not involve pressing social issues,” said Li Xuan, Dean of the Law School of the Central University of Finance and Economics in Beijing.
“Most cases cannot serve as guiding cases because they do not meet the criteria for guiding cases or are too controversial,” Hu said.
According to him, guiding cases should contain general legal principles, and cases without broader legal significance should not be chosen no matter how novel they are and how much media attention they receive.
The case involving bribes paid to two civil servants is generally held to be a prime example. But critics said that the case involving a second-hand home transaction is only relevant to a very limited set of occasions. They also pointed out that the case regarding the breach of a mediation agreement is superfluous because it does not concern a disputed area of judicial practice. The murder case is seen as too controversial to be used as a valuable reference for judges.
Consistent standards
Despite different views on the value of the four published guiding cases, many scholars hailed the publication of the guiding cases as a significant step in the reform of China’s legal system.
“Guiding cases are set up to ensure that similar cases are decided according to consistent principles,” said law professor Xu.
A consistent problem with a code-based legal system is that judges may interpret legal statutes differently and make inconsistent court decisions on similar cases. Professor Xu said that some legal statutes in China tend to be very general, abstract and even obscure, which exacerbates this problem. Guiding cases are expected to provide a clearer basis for rulings.
In April 2006, when Xu Ting, a young man in Guangzhou City, Guangdong Province, withdrew money from an ATM machine, he found that after he withdrew 1,000 yuan ($154) from the machine, only 1 yuan($0.15) was deducted from his bank account.
Taking advantage of the machine error, Xu repeated the withdrawal operation 171 times, and obtained 175,000 yuan ($26,923). He then quit his job and fled. A year later Xu was captured, accused of stealing public property. Under the Criminal Law, he was eligible to receive more than 10 years in prison or even a life sentence.
In November, 2007, the Guangzhou Intermediate People’s Court sentenced him to life in prison. His case was widely reported and hotly debated. Under public pressure, the court re-tried the case in March 2008, and repealed the previous sentence and gave him a five-year jail term, a 20,000-yuan ($3,000) fine plus an obligation to return all the money he illegally withdrew.
Xu’s case brought to light a similar case in Yunnan Province. In 2001, He Peng, then a college student, found 1 million yuan($153,846) erroneously appeared in his debit card account, so he withdrew almost half that amount from an ATM. Later that year, he was sentenced to life in prison. Encouraged by the second decision on Xu’s case, He’s parents requested a retrial. In 2009, the Yunnan Higher People’s Court reduced He’s prison term to eight and half years.
In addition to standardizing judges’ discretionary practices, guiding cases can also protect judges from administrative interference.
Some scholars have raised the concern that guiding cases will simply encourage judges to slavishly copy the decisions of similar cases. In response to such concerns, Wu of the Supreme People’s Court’s Research Department said that judges should follow the reasoning behind guiding cases and not simply look at the rulings.