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by Jeremy Daum with additional research by Jacob Clark
For the past several years, the Chinese courts have been experimenting with ways to incorporate consideration of prior decisions into their trial work. Of these, the Supreme People’s Court’s guiding cases system (GCS), launched in 2010, is probably the best known outside of China, thanks in large part to the tireless efforts of the Stanford China Guiding Cases Project. The GCS allows that certain judgments with particular value for explaining the law are to be selected, edited, and published as guiding cases, which may then be quoted by judges, but never cited as the legal basis for a ruling.[i]
Unfortunately, the impact of the GCS has been quite limited so far. In the nearly six years since its official inception, only 64 guiding cases have been released covering all areas of law, and guiding cases were only referenced 181 times in the first five years of the system’s implementation. [ii] By way of providing a frame of reference, the SPC reports that Chinese courts handled just shy of 11 million cases in the first 9 months of 2014 alone.[iii]
The value of looking to similar past cases is fairly intuitive even outside of a common-law jurisdictions where past decisions have binding force on lower courts and later decisions. While not every judge will agree with other courts’ handling of similar situations or legal issues, consulting other’s opinions is bound to be useful in framing one’s own thoughts. It would be inefficient and counter-intuitive to not first check what others have done before reinventing the wheel. More importantly, refusing to consult similar cases would inevitably lead to even greater disparities in the application of the law.
It’s no surprise then that Chinese legal professionals do look to past cases for guidance in practice. Susan Finder has recently written on how non-guiding cases are used as ‘persuasive authority’ by China’s lawyers and courts, even though they cannot be quoted in official judicial opinions. Practitioners regularly draw upon other types of cases, such as ‘model cases’, ‘consultation cases’, or the literally millions of cases now put on line through the SPC’s uniform case disclosure database.
A number of frailties in the GCS explain why it is so rarely invoked. First, the small number of cases means that even where an on-point guiding case exists, it is a single data point and new cases are easily distinguished, diminishing its value. In common law countries, where prior cases have binding effect, their utility comes from the gradual refinement of legal rules through their application to countless cases, incrementally forming a coherent theory of how the law should be applied to myriad fact patterns. With only one or two cases on a given point of law, the guiding cases are more relevant as signposts for a bright line rule, than as nuanced summaries of conventions in legal practice. Moreover, as guiding cases cannot be cited as true legal authority, they are only slightly more persuasive than any other decisions of higher courts, giving little incentive for judges to invoke them.
Still, the interpretive value of Guiding Cases, given that they are after all singled-out by the SPC for special status, should be very influential. It is important to remember, however, that the SPC is actually empowered to interpret the law outside of any active case or controversy. Judicial interpretations, which do have binding effect on the lower courts, are regularly issued and cited under a variety of names, allowing the Court to directly clarify how the law should be applied in different situations.
Sometimes, of course, the concrete example of a specific case is the best way to teach and explain how the law should be applied in practice. This is why the Chinese judicial departments have begun emphasizing using individual cases as teachable moments to explain the law. It is also why the people’s procuratorate has its own set of guiding cases , comprised not of court opinions, but of actual examples of how procurator powers should be exercised. This pedagogic value, however, could probably be accomplished without the creation of a special class of cases.
Enter the IP Court Experiment
For some time now, with the support and guidance of the SPC, the Beijing Intellectual Property Court (BJIPC) has been experimenting with re-working guiding cases into a more practical system, allowing a broader and more organic reliance on a broader range of case law. Because of the BJIPC’s unique position as one of the first and busiest IP courts in China, its research and case handling has been on the forefront of development for Chinese IP law. While IP judges from all three levels of Beijing’s courts may all have a role in the reform project, the BJIPC has been designated as a base for IP guiding cases, and is working together with academic and professional research institutions, lawyers associations, IP firms and specialists, and IP administrative agencies and others to further Guiding Case work in their field.
The key legal document governing this experiment is not yet publicly available[iv], but considerable insight can be gleaned from practitioners and public sources. A recent article by Jiang Huiling（蒋慧玲）and Yang Yi (杨奕) of the SPC’s Center for Applied Jurisprudence, for example, has recently detailed some of the considerations in the Beijng IP Court’s extended project that is poised to expand the utility of guiding cases in the IP context nationally, and is summarized below.
The Goals of the IP Precedent System include emphasizing:
1) Theory: Making the BJIPC the National IP Guiding Case Theory Research Center.
2) Standardization: Making the BJIPC a Center for the Identification and Distinction of IP Guiding Cases,
3) Informatization: Making the BJIPC a Center on Intelligent Information Gathering for IP Guiding Cases- with a relevant database of information systems connecting the three IP courts.
4) Openness: Making the BJIPC a National Comprehensive Service Center on IP Guiding Cases- facilitating access to information for all those in IP trial work, and the broader society.
Timeframe for the project:
The reform implementation plan drafted with SPC guidance allows 3-5 years to accomplish these goals:
2015: In the first part of 2015, the IP case research base was established, and the remainder of the year was filled with preparation work such as establishing internal bodies and mechanisms, expert committees, methods for selecting cases, hearings, personnel hiring, and so forth.
2016-2017, the Beijing IP Court will:
- create a case database and put it online
- explore how to shape thinking about guiding cases in practice, and on the structure of the guiding case system.
- Construct preliminary mechanisms and software systems for the IP Guiding Case System: making the database richer, and continuing to improve search functions, filtering and other operations.
- Establish the Center for the Identification and Distinction IP Guiding Cases’ and the Center for Intelligent Information Gathering .
- With the help of the SPC, extend the implementation of IP Guiding Case System within the scope of China
- Link the Chinese system to databases of international IP cases.
- Establish the IP Guiding Case Theory Research Center and National Comprehensive Service Center for IP Guiding Cases.
The basic princples of the IP Guiding case system can be divided into 3 parts:
- The status and priority of “Guiding Cases/Case Precedent.”
China is a civil law nation where precedent is not expressly binding. Judge Jiang Huiling explains that while the phrase ‘precedent’ is sometimes used in discussing the reforms, this is not meant to invoke common-law jurisdiction notions of case-law, but only refers to prior decisions. In the system, reliance on cases can only supplement statutory law as a tool to explain the law where it is unclear, fill gaps left by the law, harmonize conflicts in the law, and establish rules where the law offers none.
Judge Jiang agrees that while judges are not required to consider case precedent, they can’t help but do so in practice. Prior cases have de facto binding force because if two cases are of the same type, a clear conflict between the judgments might become the grounds for a party’s appeal, for sending the case to the to be decided by the adjudication committee, or even for having a retrial.
- The effect of “Guiding Cases/Case Precedent.”
Regardless of formal legal force, in practice, the higher the level of a court, the more authoritative its opinions are, because lower courts run the risk of being overturned if they don’t accord. Jiang Huiling urges that all IP courts should respect the precedent within a court as well as that of higher courts, and says that later decisions should follow those made before. Different courts of the same level should respect each other’s precedent.
Article 7 of “The Beijing IP Court Guiding Work Implementation Methods (Draft)” [Not yet publicly available] actually divides precedent into 9 levels, seemingly allowing that all may be used, and clarifying the precedential value of different decision types in a way that is likely to have impact even beyond the IP context.
From most to least persuasive:
- SPC guiding cases
- SPC annual cases
- other SPC cases
- High People’s Court model cases
- High People’s Court reference cases
- Other prior cases from High People’s Courts
- Intermediate People’s Court precedent,
- Basic-level Court precedent,
- Foreign (non-mainland) case precedent.
III. Specific Implementation mechanisms :
Judge Jiang also provided specific guidance on 4 areas for further implementation of the system, paraphrased below:
- Revising Judicial Opinions.
To increase the utility of case precedent, the legal reasoning section of judgment documents must be expanded and clarified. Judge Jiang suggests requiring judgments to distinguish the instant case from prior decisions on the basis of the facts relied on in the explanation section. Careful analysis should be made of logical connections between
- The facts as verified by the court and as advocated by the parties
- The legal facts and the legal elements as well as application of law.
- The verification of facts and application of law and the judgments responsiveness to the parties demands.
- Cultivating judges’ thinking on case precedent.
Judge Jiang recognizes that judicial precedent is not drafted, but gradually takes form. It reflects theories for judgments gradually formed through the convergence of the legal community’s thinking and technical models. The authority or force of judgments is not bestowed or strengthened, but is the force of deference. It is the conscious or habitual deference of specific judges handling specific cases to theories that have already become the consensus opinion of legal professionals. Awareness of precedent needs to be injected into judge’s trial practice, so that every judge and lawyer is conscious of following precedent, and is conscious of making precedent. This includes allowing lawyers to cite precedent when arguing at court, and allowing them to request that judges cite and explain precedent in their opinions.
- Establishing a unified database of case law for use by scholars, lawyers, judges, and the general public. The database would be promptly updated and be searchable by legal authority, legal principle, court, judges, lawyers involved, judgment date, and so forth.
- Stare Decisis: Judge Jiang advocates that a system should be devised to determine when case precedent should be overturned. Since case precedent must be stable and unified, it should only be overturned after prudent consideration, and there must be a screening mechanisms and ample reason for overturning case precedent.
When precedent is to be overturned, there might be a system by which case is submitted to a higher court for review, decision and issuance a public ruling, which would contain clear reasoning explaining the new precedent.
It is clear that the work of the BJIPC has the potential to be meaningful far beyond the IP context, and might revolutionize how case law is used in China generally. Already, it seems that the expanded use of precedent has naturally led more judges to cite prior cases in their opinions, with available data indicating that in 2015, the IP court judges had 15 cases citing precedent, including 26 separate citations,[v] out of its some 5000, cases accepted that year.
It is too early to tell what the ultimate impact of the IP courts’ hard work, it seems clear that it has potential to formalize the reliance on cases, and increase judges awareness of the potential impact of decisions they make even beyond the cases they are currently hearing.
[i]《〈最高人民法院关于案例指导工作的规定〉实施细则》(Detailed Implementing Rules on the “Provisions of the Supreme People’s Court Concerning Work on Case Guidance”), Article 10; passed by the Adjudication Committee of the Supreme People’s Court on Apr. 27, 2015, issued on and effective as of May 13, 2015, China Guiding Cases Project, English Guiding Cases Rules, June 12, 2015 Edition, available at http://cgc.law.stanford.edu/guiding-cases-rules/20150513-english/
[ii] Mei Gechlik, China’s Guiding Cases System: Review and Recommendations, Stanford Law School China Guiding Cases Project, Guiding Cases Analytics™, Issue No. 5, August 2016, http://cgc.law.stanford.edu/guiding-cases-analytics/ [The Stanford Guiding Cases Project has completed translations of the first 52 of the 64 cases, which are available free of charge here: https://cgc.law.stanford.edu/guiding-cases/ ]
[iv]北京知识产权法院案例指导工作实行办法（草案）[Beijing IP Court Case Guidance Work Implementation Measures]
[v] Adapted from presentation by Christopher Shen, Vice President, Group Head of Legal Group, NTD Patent & Trademark Agency Ltd.