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I. Introduction

The legal system of the People’s Republic of China (China or PRC) is proclaimed by the Constitution as a “socialist legal system.”[1]  The legal system primarily follows the civil law tradition, and the primary source of law is statutory rather than case law. 

As early as 1986, the Supreme People’s Court of China (SPC) circulated a reply providing direction to the lower people’s courts, which was to be followed when citing sources of law in court decisions.[2]  The reply arguably applied to civil and commercial cases only.  Effective November 4, 2009, the SPC formally enacted The Provisions on Citation to Regulatory Legal Documents Including Laws and Regulations in Court Decisions (hereafter, SPC Provisions), in which the sources of law that are allowed to be cited in court decisions are provided.[3] 

According to the SPC Provisions, the following sources of law may be cited in court opinions:  

(1)  Laws and Legal Interpretations; 

(2)   Administrative Regulations;  

(3)   Local Regulations, Autonomous Regulations, and Separate Regulations; and, 

(4)   Judicial Interpretations.[4]

In addition to the sources listed above, the court may also (in administrative lawsuits only) cite interpretations of administrative regulations and administrative rules made by the State Council, and departments and agencies authorized by the State Council.[5]  Other regulatory documents, according to the SPC, may serve as the basis of argument, but may not be directly cited.[6] 

Thus, it appears that neither case law nor foreign law is allowed to be cited in domestic judgments according to the SPC Provisions, although in practice, when encountering new or difficult legal questions, lower court judges often consult with higher courts for instruction.  Scholars have also found that Chinese judges are increasingly looking to other courts to see how they have handled similar issues.[7]  Examples of the impact of foreign law have also been seen (although rarely and implicitly) in the adjudication of domestic cases by Chinese judges. 

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‘Public Person’ Debates in Chinese Defamation Cases

A. Fan Zhiyi Case 

In his article Innovation Through Intimidation: An Empirical Account of Defamation Litigation in China, Professor Benjamin Liebman of Columbia Law School introduced a Chinese defamation case where the concept of “public person” was actually discussed in the court decision.  The case was adjudicated by a district court in Shanghai in 2002.  The article reported:  

Chinese soccer star Fan Zhiyi sued the Shanghai-based Wenhui Xinmin United Publishing group after its Oriental Sports Daily reported on rumors stating that Fan had gambled on games.  The paper contended that its article, which was one of a series reporting on the alleged scandal, had been intended to refute rumors that were widely circulating at the time and to clear Fan of any wrongdoing.  In rejecting Fan’s claim, the court noted that Fan “naturally was a public person” and that the defendant had “the responsibility to carry out its right to public opinion supervision” and report on the rumors.  The court added that the paper should be protected because it was acting in the public interest and satisfying the public’s “right to know” regarding a public person.  As a result, the plaintiff’s reputation “was not just an ordinary matter of one person’s affairs, but rather was a matter of public interest” and thus “certainly” could be a subject of news reporting.[8]

After the decision was published, scholars within and outside of China enthusiastically commended it, particularly the fact that the court specifically included the concept of “public person” in the decision.  The current Chinese defamation law framework, as pointed out by Professor Liebman, does not provide a basis for distinguishing between “public persons” and others.[9]  In their comments on the decision, Chinese scholars have generally referred to the concept of “public person” as a legal concept evolved under the First Amendment law of the United States.[10]  Scholars have advocated that China’s highest court, the Supreme People’s Court, include this decision in its guidelines provided to lower courts in China, thereby making it a judicial precedent binding on similar cases in the future.  “If so, this case will become a milestone in the judicial history of Chinese media,” according to Professor Xiao Han of the China University of Political Law.[11] 

B. Yu Qiuyu Case 

The Fan case was just the beginning of the debates on the concept of “public person” in Chinese courts.  In another defamation case brought to the court in Beijing by the famous writer Yu Qiuyu, the defendant’s attorney asked the court to accept the “public person” concept as it appeared in the Fan case.  In his argument, the attorney specifically cited the defamation law of the United States, in particular the case of New York Times Co. v. Sullivan and the line of cases which followed, in which the “actual malice” standard was established.[12] 

The Beijing court refused to cite to the Fan case, however, stating that China is a civil law country and thus citations to case precedent are “not suitable.”  The court did, nevertheless, find in favor of the defendant.[13]  In his article, Professor Liebman referred to comments made by observers, who argued that despite the court’s statements to the contrary, the “public person” concept and standard played an important role in the outcome of the case.[14] 

Professor Liebman opines that in these two defamation lawsuits and similar cases, Chinese courts have directly or indirectly suggested that famous persons should withstand a higher degree of scrutiny than ordinary persons, despite the absence of any distinction between ordinary persons and “public persons” in the defamation law of China.  These cases, referred to by Professor Liebman as one of the Chinese court’s “judicial innovations,” “demonstrate the court’s willingness to contemplate expanded protection for the media even absent explicit guidance to such effect from either the National People’s Congress or the SPC.”[15]  Some Chinese judges, he claims, have explicitly decided cases by reference to defamation law in other countries.[16] 

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III. Conclusion

As a general rule, Chinese judges rely on statutory law in writing their decisions.  In domestic judgments, it appears that they are not allowed to cite to foreign law or even to domestic case law.  Nevertheless, as shown in the defamation cases discussed in this report, foreign law, in particular United States defamation law, has played an important role in a few domestic judgments of Chinese courts.  

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Prepared by Laney Zhang
Foreign Law Specialist
March 2010

[1] See Article 5 of the Constitution of China, which provides: “The state upholds the uniformity and dignity of the socialist legal system.” Xian fa art. 5 (1982, amended 2004), Fa gui hui bian 4, 8 (2004).  For the purpose of this report, application of foreign law in foreign-related cases is not discussed. 

[2] Zuigao Renmin Fayuan Guanyu Renmin Fayuan Zhizuo Falu Wenshu Ruhe Yinyong Falu Guifanxing Wenjian de Pifu [The SPC Reply on How People’s Courts Should Cite Regulatory Legal Documents in Making Court Documents], (Oct. 28, 1986).  The text of the 1986 Reply in the original Chinese language is available online, at (last visited Mar. 17, 2010). 

[3] Fa Shi [2009] No. 14 (July 13, 2009).  The text in the Chinese original language is available on the SPC website, at (last visited Mar. 17, 2010). 

[4] Id. art. 2.  For definitions of each of the regulatory documents, see Legislation Law of the People’s Republic of China (adopted by the National People’s Congress on Mar. 15, 2000), in The Laws of the People’s Republic of China 5-27 (2000).

[5] Id. art. 5. 

[6] Id. art. 6. 

[7] See, e.g., Benjamin L. Liebman & Timothy Wu, Chinese Network Justice, 8 Chi. J. Int’l L. 257 (2007). 

[8] Benjamin L. Liebman, Innovation Through Intimidation: An Empirical Account of Defamation Litigation in China, 47 Harv. Int’l L.J. 33, 104 (2006).  The text of the court’s decision in Fan is available online in the original Chinese language, at /news/35/2005714110248.htm (last visited Mar. 16, 2010). 

[9] Liebman, supra note 8, at 105-06. 

[10] See, e.g., Xiao Han, Gongzhong Renwu Denglu Panjueshu Ji Peishentuan Zhidu de Mengya [Public Person Boarded Court Decision, and the Jury System Germinates], 3 Qinghua Faxue 345 (2003) (in Chinese).  In this article, Professor Xiao introduced a series of U.S. defamation cases in discussing the evolution of the concept of “public person” in U.S. defamation law. 

[11] Id. at 346. 

[12] Defense attorney’s statement to the court in the case of Yu Qiuyu (citing New York Times Co. v. Sullivan, 376 U.S. 254 (1964)), available at (in Chinese) (last visited Mar. 17, 2010).

[13] Liebman, supra note 8, at 105. 

[14] Id. 

[15] Id. at 106. 

[16] Id.

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Last Updated: 06/09/2015