Case-Law adopted by China?


On the 26th of November 2011, the Supreme People’s Court of China (SPCC) announced the first set of ‘guiding cases’: two civil law cases and two criminal cases. This marks the establishment of the guiding cases system in China. What is a guiding case? A guiding case is a judgement selected by the SPCC from judgments already handed down by courts – both lower level courts and the SPCC itself. Once the judgment has been selected by the SPCC as guiding case, the lower courts in the Chinese legal system are then required to take account of it. This introduces something comparable to, but distinct from, the Common Law doctrine of precedent into the Chinese system, and may lead to a profound shift from previous practice. Generally speaking, China has adopted the model of a civil law legal system, without a doctrine of precedent. This is because, in part, the primacy of the National People’s Congress, the principle legislative body in China, is taken to exclude a doctrine of precedent. Only the National People’s Congress can create law. If the Courts can make law in their judgments through the interpretation of legislation, such interpretation would encroach upon the sovereignty of the NPC. As this note will explain, the solution of the ‘guiding case’ attempts to preserve this feature of the Chinese Constitution, whilst giving some power to shape the law to the judicial branch.

Art. 2 of the Work Rules in Regard to Guiding Cases (Work Rules) provides a definition of the type of case that may be chosen by the SPCC as part of the guiding case system ...

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