China's Evolving Case Law System In Practice

• Author: Susan Finder
• Pages: 246-259

246 TSINGHUA CHINA LAW REVIEW [Vol. 9:245

CHINA’S EVOLVING CASE LAW SYSTEM IN PRACTICE

Susan Finder

One of the many judicial reforms designated in the latest round of

judicial reforms is developing China’s case law system. This reform

was among those highlighted in the Central Committee of the

Communist Party Decision concerning Several Major Issues in

Comprehensively Advancing Governance According to Law (4th

Plenum Decision) and Opinion of the Supreme People's Court

(hereinafter the "SPC") on Deepening Reform of the People's Courts

Comprehensively (4th Five-year Court Reform Plan) (further

described below). It further builds on many years of discussions

within the courts, the initiative of Judges Hu Yunteng and Jiang

Huiling and others affiliated with the SPC’s Institute of Applied

Jurisprudence in the middle 2000s 1 as incorporated into previous

judicial reforms.

The conventional wisdom among both foreigners and some

Chinese scholars writing about case law is that with the exception of

a small number of guiding cases approved by the SPC, previous

cases do not have any precedential value. Those closer to the world

of practice in China know that previous cases, or some portion of

them, are indirectly shaping the development of Chinese law. The

guiding and non-guiding cases constitute what is sometimes

described as the case guidance mechanism (案例指导机制).

The non-guiding cases are not directly binding, may not be cited

in court judgments, and do not have precedential value. They can be

used as a source of reference (参考). In practice, however, they form

a type of soft precedent frequently used by Chinese legal

professionals in a variety of ways, with the intellectual property

courts taking the lead. Senior judges involved are careful to

distinguish China’s case law system from the Anglo-American

precedential system.

This article will first describe how Chinese legal professionals are

using cases, other than those approved as guiding cases, as “soft

precedent,” explain why they are doing so, the role of the SPC in this

development, and what this portends for the evolution of China’s

case law system.

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1 Hu Yunteng (胡云腾), Yige Dafaguan yu Anli de 38 N ian Qingyuan (一个大法官与案例的38年情

缘) [A Judge's 38-year Affection for Cases], 20 MINZHU YU FAZHI [民主与法制] (DEMOCR. & LEGAL

SYST.) 13-17 (201 7), available at https://mp.weixin.qq.com/s/JvDzGELr3vueXqkDQnVz1Q. Jiang

Huiling (蒋惠岭), Renzhen Duidai Zuowei “Dongtai Fadian” de Anli (认真对待作为“动态法典”的

案例) [Treat Cases Seriously as a“Dynamic Code”], RENMIN FAYUAN BAO (人民法院报) [PEOPLE’S

CT. DAILY], Aug. 1, 2005.