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Tag: Guiding Cases

The Silent Influence of Guiding Cases: A Text Reuse Approach

1
12. September 2023
A new paper by Benjamin Minhao Chen, Zhiyu Li, David Cai and Elliott Ash
Guiding Cases no. 19 and no. 24 both concern traffic accident liability disputes and are among those most often referred to.

What are Guiding Cases?

As a matter of doctrine, cases are not a source of law in socialist legal systems. In the People’s Republic of China, judges are generally not required to adhere to or cite prior judicial decisions. These principles have, however, been qualified—some say violated—by the Supreme People’s Court’s designation of Guiding Cases to be followed by all courts when adjudicating similar disputes.

The Guiding Case (指导性案例) system was introduced in 2011 “[i]n order to summarize adjudication experiences, unify the application of law, enhance adjudication quality, and safeguard judicial impartiality” (Provisions of the Supreme People’s Court Concerning Work on Case Guidance, 2010, English here). Guiding Cases are based on judgements selected from courts nationwide and address a wide variety of legal topics ranging from breach of contract to homicide to unfair competition to liability for traffic accidents. A Guiding Case consists of seven key sections, namely “Title”, “Keywords”, “Main Points of the Adjudication”, “Related Legal Rules”, “Basic Facts of the Case”, “Results of the Adjudication”, and “Reasons for the Adjudication”. Beginning in 2015, the “Main Points of the Adjudication” of Guiding Cases – abstract rules distilled by the adjudication committee of the SPC from the original judgments – must be referred to (参照) by courts at all levels when adjudicating similar cases (Detailed Rules for the Implementation of the ‘Provisions of the Supreme People’s Court Concerning Work on Case Guidance’, 2015, English here).

Guiding Cases have therefore been characterized by some as “a new source of ‘judge-made law’ in China” (Liu 2021) and ‘the remarkable terminus a quo’ of the trend ‘toward embracing case law’ (Wang 2020). The true impact of Guiding Cases on judicial practice has however been called into question by many legal scholars and commentators. Previous studies almost uniformly find that citations to Guiding Cases are sparse, and many Guiding Cases are not cited at all (Daum 2017; Zhang 2018). The ‘extremely low’ incidence of citations is taken as symptomatic of ‘the dysfunction of the [G]uiding [C]ase system as a type of case law’ (Wang 2019) and as proof of the incongruity of case-based adjudication in China (Ahl 2014; Zuo & Chen 2015; Finder 2017; Jia 2016).

How to measure their influence?

However, citations might not be an accurate measure of the influence of cases, especially in jurisdictions that do not recognize judicial decisions as a source of law. In our study, we re-evaluate the impact of Guiding Cases on adjudicatory outcomes by searching for instances of text reuse between the Main Points of Adjudication of Guiding Cases and the legal rationales given by lower courts.

Our premise is that reuse of text uniquely ascribable to the Main Points of Adjudication is a strong indicium of the influence of Guiding Cases on judicial decision-making. This idea is implemented by running the Basic Local Alignment Search Tool (or BLAST) algorithm to search for text reuse in approximately 3 million judgments of Shanghai and Beijing courts from January 1970 to September 2021. Matches returned by the BLAST algorithm are validated by legally qualified human coders. To make human validation of the machine-generated results feasible, our analysis is limited to two Guiding Cases identified by prior research as being among the most cited (Zhang 2020; Guo & Sun 2018): Guiding Cases 24 and 60.

To summarize, we find more instances of unattributed text reuse than citations for the Guiding Cases studied. For Guiding Case 24, the number of local court decisions that engaged in validated, unattributed text reuse is approximately four to six times the number of decisions citing the Guiding Case. Moreover, between 3.4 and 14.6% of local judgments that could have applied Guiding Case 60 cited it and between 9.5 and 11.7% of them recited language from Guiding Case 60 without acknowledging so.

A close reading of local court decisions reveals that it is not uncommon for them to cite statutory or regulatory instruments for propositions reproduced from a Guiding Case (“statutory ventriloquy”). In addition, rather than quote the Main Points of Adjudication as directed by the Supreme People’s Court’s Detailed Rules, many judgments simply repeated the various legal arguments adduced in the Guiding Case (“jurisprudential retracing”).

It appears that despite applying the Guiding Cases, local judges practice statutory ventriloquy or jurisprudential retracing to avoid citing them as a source of legal authority. Both techniques serve to maintain the dogma of legislative supremacy even as statutory law is being supplemented—and sometimes modified—through judicial initiative.

Do they really have little impact?

To conclude, previous studies report that Guiding Cases are rarely cited in judicial decisions, suggesting that their practical effect is negligible. The anemic impact of Guiding Cases has sometimes been taken as demonstrating the fundamental incompatibility between socialist legality and judicial precedent.

We demonstrate, however, that Guiding Cases are more influential than conventionally thought. The influence of Guiding Cases is not only manifested through citations; it can also be detected through the reuse of text uniquely traceable to them. By uncovering how the Guiding Cases are referred to other than by name, we not only illuminate the operation of Chinese law but also inform debates about legal traditions, cultures, and transplants.

The paper The Silent Influence of Chinese Guiding Cases: A Text Reuse Approach was published in Artificial Intelligence and Law in May 2023. The authors will present the paper at the Annual ECLS Conference in Helsinki on September 22nd. The work described in this post was substantially supported by a grant from the Research Grants Council of the Hong Kong Special Administrative Region, China (Project No. HKU
27603721).

Benjamin M. Chen is associate professor of law at the University of Hong Kong. He applies interdisciplinary methods to the study of administrative and judicial processes and institutions.

Zhiyu Li is an assistant professor in law and policy and a fellow at the Research Methods Centre at Durham University, UK. She studies the interplay between courts, technology, and politics through comparative and interdisciplinary approaches.

David Cai is a MRes/PhD student in the Economics and Management program at the LSE. He uses econometric and machine learning techniques on applied social scientific questions.

Elliott Ash is Assistant Professor of Law, Economics, and Data Science at ETH Zurich’s Center for Law & Economics, Switzerland. His research and teaching focus on empirical analysis of the law and legal system using techniques from econometrics, natural language processing, and machine learning.

General Adjudication, Guiding Cases, Supreme People's Court

Transforming the Culture of Chinese Prosecutors through Guiding Cases

26. May 2022
A new paper by Colin Hawes
Inside a meeting room of the Supreme People’s Procuratorate: seat of Zhang Jun 张军, Prosecutor-General and former Minister of Justice. Photo by Charlie Qi

Much attention has been paid to the Guiding Cases issued by China’s Supreme People’s Court. The Supreme People’s Procuratorate, China’s top prosecutor, likewise issues guiding cases. In his recent paper, Colin Hawes finds that these cases in recent years indicate a significant turn in prosecution work in China, which is characterized by close cooperation between police, local governments and courts (see Grace Mou’s work).

My interest in guiding cases came through my previous research on the growing use of case precedents by Chinese judges, especially focusing on corporate law cases.1 With the huge increase in publication of Chinese court judgments on freely available online databases – over one hundred million judgments have now been published in the past ten years – it is possible to trace how the law is being applied at a very granular level, whether in individual Chinese regions/cities or specific levels of court, in all types of legal cases except those involving sensitive political interests (which remain unpublished).

China is a civil/continental law jurisdiction, so prior Chinese court judgments are officially not binding on subsequent cases; but in practice, I found that both judges and lawyers would refer to previous judgments, especially those from higher courts, to support their opinions and maintain consistency. However, while they do routinely refer to prior judgments during court hearings, judges are still not permitted to openly cite those precedents in their written judgments. The only exception is a very small number of “guiding cases” (指导性案例) that have been selected by the Supreme People’s Court (SPC) and given official approval to be cited and effectively binding on all courts in China, when dealing with similar legal issues.

The problem is, the selection process for these SPC Guiding Cases is so slow, and the legal issues that they deal with are mostly so narrow, that it is very rare for lawyers and judges to find a relevant guiding case to assist their legal arguments. As compared with over one hundred million published judgments online dealing with all manner of legal issues, at the time of writing there were less than two hundred guiding cases available.2 Not surprisingly, therefore, lawyers and judges continue to make use of the larger database of online judgments as an informal case precedent system.

Not only the SPC, also China’s public prosecutor, the Supreme People’s Procuratorate (SPP) had started publishing its own SPP Guiding Cases. Though also relatively few in number, these cases are likely to have a much greater impact on the administration of justice in China, both in criminal law cases and environmental protection cases.

The reasons are, firstly, that several of the SPP Guiding Cases focus on aspects of the death penalty, so if followed by all procurators as they are supposed to, they will literally have a life-or-death impact on criminal suspects.

Secondly, the SPP Guiding Cases make it clear that a key role of procurators is to uphold the public interest against abuse by powerful officials or corporate interests. Many of the SPP Guiding Cases deal with prosecution of government officials or state representatives working at agencies such as the environmental protection and food safety bureaus as well as urban control officers and police officers, The most common charges are corruption and criminal negligence. The eighth set of cases focuses entirely on People’s Procurators bringing civil public interest lawsuits and administrative lawsuits against environmental polluters and government officials who fail to prevent pollution. This pilot project has resulted in a huge increase in the number of successful environmental pollution lawsuits in China, now numbering in the tens of thousands.

Finally, several SPP Guiding Cases go beyond narrow and specific points of law to cover broad procedural issues that are generally applicable over a wide range of criminal cases. For example, one of the most significant issues is the exclusion of illegally obtained evidence, especially evidence obtained through torture or beating of suspects, which is clearly addressed in SPP Guiding Case 27. The rule in this case can be applied to any criminal prosecution. If it is followed consistently by local branches of the People’s Procuracy, it should reduce the number of wrongful convictions, and in the longer term, remove the incentive for police to mistreat criminal suspects in custody which, according to international human rights groups, commonly occurs.

To be sure, these SPP Guiding Cases are only one part of a broader reform effort in the sphere of criminal procedure and regulation of procurators. Others include a comprehensive revision of the Criminal Procedure Law in 2012, regulations issued by the SPP in relation to public interest lawsuits in 2016, and an amended Procurators Law in 2017. There is also some ambiguity about the legal status and weight of SPP Guiding Cases in relation to these more formal legal sources, an issue discussed further in the concluding sections of my article.

Even so, the SPP Guiding Cases clearly demonstrate to people’s procurators throughout China how the revised laws and regulations should be applied in practice. They provide local procurators with precedents endorsed at the highest levels of the SPP to support battles against criminal activity and environmental pollution at the local government levels. And perhaps most importantly, both the content of the Guiding Cases and the fact that they were issued at all reveals an unprecedented cultural change within the people’s procuracy itself from a body that was essentially an extension of the police or local power interests to one that sees itself as a professional and relatively independent institution with a focus on protecting individual rights and the public interest.

Having said this, criminal defence lawyers and civil society groups are still severely restricted and often persecuted in China. And due to the continued Communist Party interference in the Chinese legal system, demonstrated in more detail in the paper, it is too early to say whether the greater respect for basic legal rights revealed by these Guiding Cases is a step towards increased liberalization of the Chinese legal order and political system.

Find the paper, published with the New Criminal Law Review, here. Dr. Colin Hawes is an associate professor in the Faculty of Law, University of Technology Sydney, Australia. He has an LL.B. and a Ph.D. in Chinese studies from the University of British Columbia, Canada, and a B.A. Hons. from the University of Durham, UK. He also studied Chinese language at People’s University in Beijing and Wuhan University. He has published widely on Chinese corporations, law, and culture, including three books, the latest of which is The Chinese Corporate Ecosystem (Cambridge University Press, forthcoming July 2022). 


1 Colin Hawes, “How Chinese Judges Deal with Ambiguity in Corporate Law: Suggestions for Improving the Chinese Case Precedent System,” Australian Journal of Asian Law Vol 19 No 1 (August 2018): 1-22; and Colin Hawes, Alex K L Lau and Angus Young, “Lifting the Corporate Veil in China: Statutory Vagueness, Shareholder Ignorance, and Case Precedents in a Civil Law System,” Journal of Corporate Law Studies vol.15.2 (2015): 341-376. Both papers are available at https://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=503318.

2 Currently there are 165 SPC Guiding Cases: see full Chinese texts at https://anli.court.gov.cn/static/web/index.html#/zdal.

3 SPP Chief Procurator Zhang Jun stated that 84,000 environmental public interest cases were brought by procurators in 2020 alone: Zhang Jun, “Zuigao Renmin Jianchayuan Gongzuo Baogao, 2020 Nian” [SPP Work Report 2020], National People’s Congress, 8 March 2021, section 2, http://www.gov.cn/xinwen/2021-03/15/content_5593016.htm.

General Criminal Law, Guiding Cases, Public Prosecution, Supreme People's Procuratorate

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