This article provides the readers with an update on the recent provisional guidance issued by the Supreme People’s Court of the PRC (“SPC”) titled Guiding Opinion Concerning Strengthening Search for Similar Cases to Unify the Application of Law (for Trial Implementation) (“SPC New Guidance”).
The People’s Republic of China (PRC) has a civil law system that is largely based on statutory law rather than case law, under which the courts are not usually bound by judicial precedents. Still, it is noteworthy that the PRC has also been implementing a series of efforts to reform its judicial system, and that the use of case precedents has been emphasised in the legal reform.
On 27 July 2020, the SPC issued the SPC New Guidance, which has taken effect from 31 July 2020. As such, judges will have to carry out relevant research and follow the judicial precedents if the conditions are met. It is expected that the judicial precedents will play an increasingly important role in the PRC’s future legal practices.
Overview of the SPC New Guidance and its Practical Implications
Above all, it should be stressed that the issuance of the SPC New Guidance does not mean that the PRC has become a “case law” jurisdiction.
1. Definition of “similar cases” and required circumstances (Articles 1 and 2)
“Similar cases” may only be referred to in significant, difficult, or complex cases. There are four situations in which a search for and/or reference to a similar case is required:
a. When a case is proposed to be submitted to a judges’ meeting or adjudication committee for discussion
b. When the relevant judicial principles or rules are unclear or conflicting
c. When the court president or division head requires such a search under his supervision
d. When another relevant situation requires such a search
2. Search methods and responsible individuals (Articles 3, 5, 6, 7, 8)
The judge presiding over the pending case is responsible for conducting the search for similar cases and should ensure that such a search is done accurately and properly by using either the SPC’s database or another case database. To improve the case search system, the New SPC Guidance also requires the presiding judge to (a) discuss the relevant circumstances of the similar case search in the judges’ meetings or adjudication committee, or (b) prepare a report of the similar case search for future use.
3. Search range and priority (Article 4)
Generally speaking, the similar case search shall be carried out in the following sequence, which shows priority in the application or reference:
a. SPC guiding cases (最高院指导性案例)
b. SPC typical cases (典型案例) and judgments or rulings of the SPC
c. Reference cases issued by the Higher People’s Court and decisions by those courts
d. Higher level courts and judgments of the same level court
Except for the SPC guiding cases, the priority should be given to those cases laid down in the preceding three years. If a similar case can be identified using the above order, it is not necessary to carry out further searches.
4. The legal consequences of similar case searches (Articles 9, 10 and 11)
As aforementioned, the similar cases will not have the legal binding force under the current PRC law regime. However, given that similar cases will be referred or considered by judges, such cases may be de facto binding in practice.
a. According to Article 9 of the New SPC Guidance, the SPC guiding cases shall be referred to (参照) or followed in the pending case unless such guiding cases conflict with the subsequently enacted law or issued judicial interpretation. Other types of case precedents are not binding and are only relevant for the presiding judge to consider.
b. Article 10 provides that if the procurators, parties or their representatives submit SPC guiding cases in support of their legal position, the relevant court shall state whether such SPC guiding cases are to be followed in the pending case and give reasons for their applicability. For other types of cases, the relevant court retains the discretion to simply clarify or explain whether such similar cases should be followed.
c. Article 11 deals with situation in which the similar cases identified are inconsistent with the application of law and provides for such inconsistency to be resolved by the relevant mechanism provided under the PRC law.
In addition, Articles 12 and 13 propose ways to develop the similar case search system in the PRC courts.
We trust that the New SPC Guidance will make case results more predictable and encourage practitioners to use similar cases and assist judges and arbitration tribunals in making more consistent judgments.
This article is substantively based on a recent Reed Smith Clients Alert written by the authors.
*Disclaimer: the purpose of this article is to provide information on, and developments in, the law. It does not contain a full analysis of the law and does not constitute an opinion of Reed Smith Richards Butler on the points of law discussed. You must take specific legal advice on any particular matter which concerns you.
The authors would like to take this opportunity to thank their colleagues for their contribution and assistance, in particular Leah Lei and Arthur Lam.
– Lianjun Li, Partner
– Cheryl Yu, Counsel,
Registered Foreign Lawyer (PRC)
Reed Smith Richards Butler
Editorial Note: This is a summary of the article “New Guiding Opinion from the Supreme People’s Court of the PRC: Judicial Precedents to Play a More Important Role in the PRC’s Future Legal Practices” which was circulated via Hong Kong Lawyer eNewsletter and posted on Hong Kong Lawyer website in September 2020.