January 20, 2012

Provisions on Work Related to Guiding Cases

Provisions on Work Related to Guiding Cases
Issuing Body: Supreme People's Court
Issuing Date: November 26, 2010
Effective Date: November 26, 2010

Circular on Release of the First Batch of Guiding Cases
Issuing Body: Supreme People's Court
Issuing Date: December 20, 2011
Effective Date: December 20, 2011

In an effort to improve the quality and consistency of trials in China's court system, the Supreme People's Court (SPC) has implemented a potentially far-reaching judicial reform, creating a system of "guiding cases" that lower courts "should refer to." Enacted on November 26, 2010, the Provisions on Work Related to Guiding Cases (Guiding Case Provisions) were issued in response to an SPC directive to establish a guiding case system that dates back to 2005. A year later, on December 20, 2011, the SPC released its first four guiding cases under the title the Circular on Release of the First Batch of Guiding Cases (First Batch Circular). Chosen from hundreds of cases suggested and reported by local courts, the four cases include two civil cases and two criminal cases.

Although the Guiding Case Provisions state only that courts at all levels in China "should refer to" guiding cases, legal observers believe such cases will in fact be followed carefully by courts and thus will carry far more weight than this phrase might suggest. Though such guiding cases will not formally constitute binding precedents as in Western law, they may evolve to have a similar effect.

Guiding Cases Selection Procedures

Under the Guiding Case Provisions, cases chosen to be Guiding Cases must  be concluded and  satisfy one or more of the following conditions:

  • The case received extensive public attention
  • The law applied in the case is of primary importance and can be extensively applied to other cases
  • It is typical in nature
  • The case is complex or new to society
  • It serves some other guiding function

The SPC has established a special office (the Special Office) that is responsible for the selection, review and approval of the selected guiding cases. Different tribunals of the SPC and people's courts at all levels may recommend and report effective cases to the Special Office if they determine the case satisfies one of the above-mentioned conditions. Deputies of the National People's Congress, members of the Chinese People's Political Consultative Conference, legal experts, scholars, lawyers and others who are involved and concerned about the trial practice of courts may also recommend cases to the people's court that tried the case if the case meets the above-mentioned criteria.

After the Special Office reviews cases and makes comments, the SPC's judicial committee (the members of which include the president, vice presidents and chief judges of different SPC tribunals) should hold a meeting to discuss and approve the final cases.

When conducting a trial, the  people's courts at all levels will be expected to "refer to" guiding cases published by the SPC. According to a subsequent explanation by the head of the SPC's research division made available to the public on December 22, 2011, this means judges could cite the guiding cases in their judgments in addition to law and judicial interpretations when trying similar cases.

The SPC's First Batch Circular further clarifies that each higher people's court may also release reference cases to provide guidance to people's courts within its own jurisdiction. To avoid confusion, such reference cases may not be called "guiding cases," and do not have the same legal effect as the SPC's guiding cases.

The First Four Guiding Cases

The key points of the four cases are summarized below.

  • Shanghai Zhongyuan Property Consultants, Ltd. v. Tao Dehua. This case involves a dispute about a brokerage contract between a property buyer and an intermediary. It states that under a brokerage contract, a buyer is prohibited from using information about a property provided by an intermediary and entering into a purchase agreement with the seller without the intermediary. If information about the property is released by several intermediaries, however, and the buyer has gained access to such information by legal means, the buyer shall have the right to select the best intermediary to secure the transaction. This case aims not only to "protect the legal rights of the intermediary service industry, but also to promote fair competition among intermediary companies, improve service quality and protect the legitimate rights of consumers."

  • Wu Mei v. Sichuan Meishan Paper Co., Ltd. This case relates to a sales contract dispute. It was chosen to provide guidance to courts when the parties to a dispute reach a settlement agreement outside litigation after a court has issued a judgment. This guidance states that if the parties reach a settlement and withdraw an appeal while it is in progress, the parties should implement the settlement agreement. If any party fails to fully implement the settlement agreement, the other party may apply to the competent people's court for enforcement of the valid judgment of the trial court. This case aims to "respect the discretion of parties as well as safeguard the authority of judgments of people's courts."

  • People's Procuratorate v. Pan Yumei and Chen Ning. This criminal case discusses how courts should handle bribery involving new or unusual means and methods. In the event a public servant receives a bribe under the guise of co-establishing a business (without actually contributing capital) or another business transaction accepts a bribe while trying to "seek benefits for other parties" but subsequently fails to provide the anticipated or promised benefits, or returns the money to the party that offered the bribe for the purpose of concealing the bribery, such actions will not affect a judge's determination of whether the public servant's actions constitute the crime of accepting bribery. This case provides guidance for trials of cases that involve "taking bribes through new means and methods that occurred in recent years, and clarifies how to punish crimes involving bribery, accepting new case situations and promoting implementation of anti-corruption work."

  •  People's Procuratorate v. Wang Zhicai. This case clarifies the conditions for sentencing a criminal to the death penalty with a reprieve and restriction on commutation of the sentence, a new penalty method introduced in the Amendments to the Criminal Law of the People's Republic of China (VIII) on February 25, 2011. For any extremely severe offense where a death penalty with immediate execution is required, if the accused criminal satisfies conditions for lenient punishment by law, but the victim (or, in the case of murder, the victim's relatives), strongly demands a death penalty with immediate execution, the court may issue a sentence of the death penalty with a reprieve and restriction on commutation of the sentence, provided that this sentence accords with the principle of adapting punishment to fit the crime. This case reflects the government's criminal policy of seeking a balance between punishment and mercy, which not only punishes gross violations of criminal law but also limits application of death penalties.

Conclusion

Publication of these four guiding cases signals an important development for China's judicial system. Now, when a court renders a judgment, it will need to refer not only to statutes and laws enacted by legislative bodies and judicial interpretations issued by the Supreme People's Court, but also to the guiding cases published by the SPC. In effect, the Guiding Case Provisions and the four guiding cases open the door to greater use of, and perhaps reliance on, "case law" in Chinese court cases.

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