Supreme People's Court – European Chinese Law Research Hub

A new paper by Susan Finder

The main entrance of the Supreme People’s Court of China in Beijing ^{Photo by Rneches}

How does the Chinese political-legal system operate in the Xi Jinping era? This article published in the China Law and Society Review provides a detailed discussion of the poorly understood operations of the Supreme People’s Court (SPC) including its intricate interactions with central Party and state institutions, against the background of strengthened Party leadership. It provides insights into specific aspects of the Party’s leadership of the judiciary and its implications, usually unseen functions and operations of the SPC, and the link between Party policy, the judiciary, and the development of Chinese law.

I focus on the roles of the SPC in supporting “foreign-related rule of law” as an example of how the work of China’s highest court has evolved in the Xi Jinping New Era to support more robustly major national strategies. The article examines functions of the SPC little explored previously, because some are only partially transparent. I first summarize developments concerning the strengthening of Party leadership over political-legal institutions, because those have a direct and indirect impact on the SPC’s foreign-related judicial work. I highlight the greater focus on the SPC’s leadership’s fulfillment of political obligations and responsibility to the Party leadership. Providing appropriate judicial support for national strategies is an important way in which the SPC as a political-legal institution fulfills its political obligations to the Party leadership.

The SPC functions identified as most important in developing foreign-related rule of law are, first, policy-making and guidance of the lower courts; second, “law-making;” third, case hearing and selection; and fourth, coordinating and cooperating with central Party and state institutions. The characterization of the functions is original to this article. The non-case hearing functions are linked in some way to hearing cases and are ones the SPC has always performed.

In contrast to most apex courts globally, the work of the SPC in supporting “foreign-related rule of law” is more focused on policy-making and influencing legal and judicial policies; providing guidance to the lower courts, what this article describes as “law-making”; and coordinating and cooperating with other central Party and state institutions, rather than making judicial decisions.

First, part of the SPC’s role is to create, amend, and implement judicial policy in response to or in anticipation of the impact of changes in Party and state policy or other social, economic, or legal changes. One of the principal ways in which the SPC publicizes new or amended judicial policy is by issuing judicial policy documents. These documents guide and inform the lower courts about new or readjusted judicial policy and inform related central Party and state institutions about these developments. They also signal to the Party leadership that their initiative is being implemented. In some areas of law, the SPC leads the legal and judicial policy initiative, while in others, it provides its expertise when other institutions take the lead. The policy documents and any typical cases issued in addition to or in lieu of a policy document contain both political and substantive guidance intended to guide lower court judges both in frontline and leadership roles. These documents may not be cited in court judgments or rulings but may have an impact on judicial thinking.

Second, an important but less-understood part of the role of the SPC in contributing to the development of China’s foreign-related legal system is “law-making.” This characterization is meant to convey the SPC’s contribution to legislation described by the SPC as “actively cooperating with foreign-related legislation” (积极配合涉外立法), not as a formal assertion that the SPC makes law. This contribution takes several forms, not all of them formalized in law. The first type is provided by the Legislation Law which authorizes the SPC to submit legislative bills to the National People’s Congress (NPC), and the NPC Standing Committee. The second type is by drafting and issuing judicial interpretations, as authorized by the Organic Law of the People’s Courts and the Legislation Law. The SPC has the authority to issue meeting minutes (conference summaries) and similar documents which have a less certain formal authority but are highly persuasive in practice.

Two other types lack specific legislative authority but are important ways in which the SPC contributes to legislation, particularly foreign-related legislation: providing support to the NPC and the NPC Standing Committee when it drafts legislation; and providing support to the Ministry of Justice and other Party and state institutions when those institutions draft legislation that is eventually submitted to the NPC or the NPC Standing Committee. These two ways combine the SPCs indirect law-making role with its cooperation role. The extent to which the SPC participates in “law-making” in foreign-related matters is not entirely clear because related documents are made public sparingly.

The people’s courts are a highly political professional institution, and a highly professional political institution (人民法院是政治性很强的业务机关，也是业务性很强的政治机关)

Official SPC media channels

Third, the SPC decides some cases involving foreign-related commercial law and issues some cases as guidance, either as guiding or typical cases. It decides some cases relating to arbitration through an administrative procedure, others through retrial or second instance procedures, and others when certain selected SPC judges sit as panels of the China International Commercial Court. Additionally, the SPC issues cases as guiding, or more often typical cases as a form of guidance. The SPC occasionally issues guiding cases but more often issues typical cases to provide political and substantive guidance for the lower courts, sometimes linked to a policy document.

Fourth, one of the unrecognized functions of the SPC is coordination with other central Party and state organs regarding specific legal issues, based on bureaucratic custom. This work is only partially visible. The SPC has coordinated and cooperated with other central Party and state institutions on a broad variety of legal matters for many years, but it appears to be little discussed in English-language literature. The coordination and cooperation take a variety of forms, and which institutions and departments are relevant depends on the matter under consideration. For example, the SPC provides support to the Ministry of Foreign Affairs or other ministries that lead treaty or convention negotiations, such as the Ministry of Commerce.

The article concludes that the SPC’s foreign-related legal expertise, as shown by the Politburo’s November, 2023 collective study session on foreign-related rule of law, has become significantly more important to China’s political leadership and other central-level Party and state institutions. Its significance to the political leadership is in its work in creating a body of foreign-related law. Given that the Party leadership increasingly stresses political leadership of the courts and political competence of members of the judiciary, carrying out the functions described above requires SPC judges dealing with foreign-related matters to have both a high degree of political consciousness and technical expertise. Why? As the SPC media often say, “the people’s courts are a highly political professional institution, and a highly professional political institution” (人民法院是政治性很强的业务机关，也是业务性很强的政治机关).

Susan Finder is a long-standing observer of the Chinese judicial system with more than 30 years of experience. She is a member of the international commercial expert committee of the China International Commercial Court (CICC) of the Supreme People’s Court and on the committee of the Shanghai International Arbitration Center. The views expressed in this article are her own, not those of either institution. She is a Distinguished Scholar in Residence at the School of Transnational Law of Peking University (Shenzhen), where she teaches about judicial reform in comparative perspective. Her blog, the Supreme People’s Court Monitor, is arguably the most authoritative scholarly resource on developments around the People’s Republic of China’s highest court. Follow her on Twitter @SPCmonitor or get in touch per email at susan.finder[at]outlook.com

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.

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The Silent Influence of Guiding Cases: A Text Reuse Approach

A new paper by Benjamin Minhao Chen, Zhiyu Li, David Cai and Elliott Ash

What are Guiding Cases?

How to measure their influence?

Do they really have little impact？