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Guiding Cases Surveys 指导性案例调查 TM Cumulative Analysis of All

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Guiding Cases Surveys 指导性案例调查 TM Cumulative Analysis of All Guiding Cases SurveysTM 指导性案例 调查 TM Dr. Mei Gechlik Founder and Director, China Guiding Cases Project Minmin Zhang Associate Managing Editor, China Guiding Cases Project Liyi Ye Editor, China Guiding Cases Project Cumulative Analysis of All Subsequent Cases Referring to Guiding Cases in China (2014 Q1 -2015 Q4) Issue No. 2 (January 2016)* * The citation of this survey is: Mei Gechlik, Minmin Zhang, and Liyi Ye, Cumulative Analysis of All Subsequent Cases Referring to Guiding Cases in China (2014 Q1 -2015 Q4) , STANFORD LAW SCHOOL CHINA GUIDING CASES PROJECT , Guiding Cases Surveys ™, Issue No. 2, Jan. 2016, http://cgc.law.stanford.edu/guiding - cases -surveys/. The authors thank Jordan Corrente Beck for providing editorial assistance. This piece was inspired by discussion of related topics included in the book chapter: Mei Gechlik, DAI Di, Jordan Corrente Beck et al., Open Judiciary in a Closed Society: A Paradox in China , in ACHIEVING OPEN JUSTICE THROUGH CITIZEN PARTICIPATION AND TRANSPARENCY (forthcoming Dec. 2016). A complete table of subsequent cases that refer to Guiding Cases is appended as Annex 1. Guiding Cases SurveysTM is a publication of empirical data collected by the China Guiding Cases Project through its first -hand surveys of Chinese legal actors and analyses of subsequent cases referring to the Guiding Cases to illustrate how Guiding Cases are perceived and used. Copyright 2016 by Stanford University 2 Final Edition Table of Contents I. Introduction ................................................................................................ 3 II. Number of Subsequent Cases Referring to Guiding Cases ........................ 5 III. Types of Subsequent Cases ....................................................................... 8 IV. Time Elapsed Between Date of Adjudication and Date of Release ......... 12 V. References to Guiding Cases by Lawyers and Judges ............................. 13 Copyright 2016 by Stanford University 3 Final Edition I. Introduction On May 13, 2015, the Supreme People’s Court of China (“SPC”) issued the Detailed Implementing Rules on the “Provisions of the Supreme People’s Court Concerning Work on Case Guidance” (the “Detailed Implementing Rules ”).1 Article 1 of the Detailed Implementing Rules sets forth the purpose of the guidance it contains, and, in the process, reiterates the core tenets behind the system 2 for the selection and re -issuance of certain Chinese court judgments as Guiding Cases (“GCs”) established by the Provisions of the Supreme People’s Court Concerning Work on Case Guidance (the “Provisions ”).3 Article 1 states: In order to concretely implement the Provisions of the Supreme People’s Court Concerning Work on Case Guidance , to strengthen, standardize, and promote work on case guidance, to [let] the guiding effect of Guiding Cases fully play its role in adjudication work, to unify standards for the application of law, and to safeguard judicial impartiality , [the Supreme People’s Court hereby] formulates this [set of] Detailed Implementing Rules. (emphasis added). By repeating expressions used in the Preamble of the “Provisions” —namely, “unify the application of law” and “safeguard judicial impartiality” —the SPC emphasizes that judges’ reference to GCs is meant to accomplish these two goals. The SPC then clarifies how judges “should refer to” GCs when they adjudicate similar cases, a requirement first stated in Article 7 of the Provisions . In Article 9 of the Detailed Implementing Rules , the SPC explains: Where a case being adjudicated is, in terms of the basic facts and application of law, similar to a Guiding Case released by the Supreme People’s Court, the [deciding] people’s court at any level should refer to the “Main Points of the Adjudication” of that relevant Guiding Case to render its ruling or judgment. 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 , STANFORD LAW SCHOOL CHINA GUIDING CASES PROJECT , English Guiding Cases Rules, June 12, 2015 Edition , http://cgc.law.stanford.edu/guiding -cases -rules/20150513 -english/. 2 This system has been officially named “ 案 例 指 导 制 度 ” (literally translated as “case guidance system”). The term “ 案例指导制度 ” could lead to confusion, as it has been used for many years to refer to any case system that has guiding significance. See 王立峰 (WANG Lifeng), 中国案例指导制度的必要性和功能 (The Necessity and Function of China’s Guiding Cases System ), 斯坦福法学院中国指导性案例项目 (STANFORD LAW SCHOOL CHINA GUIDING CASES PROJECT ), Oct. 15, 2013 , http://cgc.law.stanford.edu/commentary/9 -professor -wang . 3 《最高人民法院关于案例指导工作的规定》 (Provisions of the Supreme People’s Court Concerning Work on Case Guidance ), Article 7, passed by the Adjudication Committee of the Supreme People’s Court on Nov. 15, 2010, issued on and effective as of Nov. 26, 2010, STANFORD LAW SCHOOL CHINA GUIDING CASES PROJECT , English Guiding Cases Rules, June 12, 2015 Edition, http://cgc.law.stanford.edu/guiding -cases -rules/20101126 - english/. Copyright 2016 by Stanford University 4 Final Edition The “Main Points of the Adjudication” is one of the six sections in each GC. All GCs are summaries of the full -text judgments or rulings originally rendered by courts of various levels and from different regions of China. In the “Main Points of the Adjudication”, the SPC summarizes the legal principles upon which the adjudication was based into one or a few short paragraphs,4 in the hopes of providing clear guidance to judges in China, many of whom would otherwise have difficulty deriving these principles from the original judgments because they have received little or no training on how to use cases in this way.5 The SPC continues to explain how to refer to GCs in Article 10 of the Detailed Implementing Rules , which provides: Where a people’s court at any level refers to a Guiding Case when adjudicating a similar case, [it] should quote the Guiding Case as a reason for their adjudication, but not cite it as the basis of their adjudication. The emphasis placed on quoting the GC as a reason for the adjudication is welcome, as Chinese judges’ discussion of their reasoning has been known to be rather limited in many cases. The assertion that GCs cannot be cited as the basis of the adjudication shows the SPC’s careful avoidance of being seen to make drastic changes to the Chinese legal system, which only allows legislation and the SPC’s judicial interpretations 6 to be cited as the basis of an adjudication. Along with the requirement to quote GCs in similar, subsequent cases, the SPC vows in Article 13 of the Detailed Implementing Rules to “establish paper archives and an electronic information base for Guiding Cases” so as to “safeguard the reference and application, inquiry, retrieval, and compilation of the Guiding Cases”. This provision is in line with the Provisions of the Supreme People’s Court on the Publication of Adjudication Documents on the Internet by People’s Courts ,7 Article 4 of which requires the publication of all adjudication documents on 4 For detailed analysis of the first 52 Guiding Cases, see Mei Gechlik, Analytics of 52 Guiding Cases Selected by the Supreme People’s Court of the People's Republic of China , STANFORD LAW SCHOOL CHINA GUIDING CASES PROJECT , Guiding Cases Analytics ™, Issue No. 4, May 2015, http://cgc.law.stanford.edu/guiding -cases - analytics/. 5 Interview by Mei Gechlik with judges (anonymous) of the Supreme People’s Court, in Beijing, China (Nov. 21, 2014). The judges interviewed are in charge of preparing Guiding Cases for publication; at their request, they remain anonymous. 6 With respect to the legal status of judicial interpretations, see 《关于加强法律解释工作的决议》 (Resolution on Strengthening Work on Legal Interpretation ), Paragraph 2, passed by the Standing Committee of the National People’s Congress, issued on, and effective as of June 10, 1981, http://www.npc.gov.cn/wxzl/gongbao/2000 -12/06/content_5004401.htm. 7 《最高人民法院关于人民法院在互联网公布裁判文书的规定》 (Provisions of the Supreme People’s Court on the Publication of Adjudication Documents on the Internet by People’s Courts ), passed by the Adjudication Committee of the Supreme People’s Court on Nov . 13 , 201 3, issued on Nov. 21, 2013, effective as of Jan. 1, 2014, http://www.chinacourt.org/law/detail/2013/11/id/147242.shtml. Copyright 2016 by Stanford University 5 Final Edition the Internet unless they are withheld due to exceptional circumstances, such as where the underlying cases “involve state secrets or personal privacy”, “involve the commission of crimes by minors”, or have been “settled by mediation”. Referred by ZHOU Qiang, President of the SPC, as the “openness is the rule, non -openness is the exception” principle,8 this new approach not only reversed the past practice of holding back judgments or rulings unless they were selected for publication, but also led to the launch of the “China Judgements [sic] Online” website (“ 中国裁判文书网 ”; http://www.court.gov.cn/zgcpwsw/) (“CJO website”) in July 2013. As reported by the website, it has published approximately 15 million judgments or rulings rendered by courts of different levels in China to date. The availability of essentially all judgments and rulings presents an unprecedented opportunity for conducting empirical analysis of court decisions in China. This marks a new stage of Chinese legal research, expanding the tools of researchers who, until recently, had largely been confined to interviews and questionnaires in their effort to reveal Chinese law in practice.9 With respect to GCs, the SPC has issued 56 GCs since 2011,10 but how they are used in subsequent cases (“SCs”) is little known. The China Guiding Cases Project (“CGCP”) of Stanford Law School fills this gap by committing the project to tracking, through the official CJO website, all SCs that explicitly refer to the GCs and conducting cumulative analysis of these SCs on a regular basis.
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