(Sept. 28, 2020) On July 27, 2020, China’s Supreme People’s Court (SPC) issued guidance requiring courts around the country to conduct a similar-case search in adjudicating certain cases, aiming to make judicial decisions more consistent. (Guiding Opinions on Unifying the Application of Law and Strengthening the Search for Similar Cases (Trial Implementation) (English translation and annotations on the Stanford CGCP Global Guide™; Comments in English on Supreme People’s Court Monitor).) The Guiding Opinions took effect on July 31, 2020.
According to the Guiding Opinions, courts must search for similar previous cases in the following circumstances:
- A proposal has been made to submit the case to the specialized (presiding) judges’ meeting or the adjudication committee for discussion;
- Relevant adjudication principles are unclear or a unified adjudication principle has not yet been formed;
- A court president or division head requires that a search for similar cases be conducted under his or her supervision authority;
- Other relevant circumstances. (Guiding Opinions art. 2.)
“Similar cases” are previous cases whose basic facts, focal points of the dispute, or issues regarding the application of law are similar to those in the pending case. (Art. 1.) The judge in charge of the case is responsible for doing the search and for the authenticity and accuracy of the search results. (Art. 3.)
Specifically, the Guiding Opinions require that the following categories of cases be searched:
- Guiding Cases issued by the SPC;
- Typical (model) cases and judgments issued by the SPC;
- Reference cases and judgments issued by provincial-level higher people’s courts;
- Judgments of the next higher-level court and the court conducting the search itself.
If a similar case has been retrieved in one category, no further search in the other categories is required. Except for SPC Guiding Cases, preference is given to cases from the three previous years. (Art. 4.) When a similar case that has been retrieved is an SPC Guiding Case, the court “should refer to it,” unless the case conflicts with subsequently issued laws or judicial interpretations. Other types of cases are not binding but are open to consideration by judges. (Art. 9.)
The Guiding Opinions further require that courts respond to procurators, parties, and their lawyers when the latter submit SPC Guiding Cases or other previous cases in support of their arguments. If the cases they submit are SPC Guiding Cases, the courts must state in the reasoning section of their judgments whether the guiding cases were referred to and why. For other types of cases, courts may respond by various means, including explanations and clarifications. (Art. 10.)
Inconsistencies found in the application of law in the similar cases retrieved will be resolved through the Inconsistent Decision Mechanism, which was previously established under the Implementing Measures on Establishing a Mechanism for Resolving Differences in the Application of Law issued by the SPC in October 2019. (Art. 11.)
China’s legal system is primarily based on the model of civil law, and precedents in general are not binding. However, courts are required to “refer to” SPC Guiding Cases when adjudicating similar cases. (Provisions of the Supreme People’s Court Concerning Work on Case Guidance (Nov. 26, 2010) art. 7.) The SPC explained that when a court refers to a Guiding Case, it should quote the Guiding Case as a contributing reason for its decision, but not cite it as the basis of the decision. (SPC, Detailed Implementing Rules on the “Provisions of the Supreme People’s Court Concerning Work on Case Guidance” (May 13, 2015) art. 10.)