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Guiding Case System (指导性案例制度) and Similar Case Retrieval System (类案检索制度) are established to unify the application of law and restrict the discretion of judges.
After China’s Supreme People's Court (SPC) established the Guiding Case System in 2010 and the Similar Case Retrieval System in 2020, the judges involved in designing the system have written articles to introduce its background. from which we can understand why China needs to establish these systems.
I. Why to establish the Guiding Case System?
The SPC Justices(Second Rank) Hu Yunteng (胡云腾) and Luo Dongchuan (罗东川) (then Vice President of the SPC) published an article, together with others, in “People's Judicature” (人民司法) (No. 3, 2011) to explain why China should establish the Guiding Case System. [1]
Below is a summary of their viewpoints.
1. Promoting the uniformity in application of law
Given the differences in the level of economic and social development and the judicial capacity of judges throughout China, as well as the potential interference of local authorities in the judiciary, similar cases sometimes have different results, which has weakened the uniformity and credibility of justice. To solve this problem, the SPC has issued Guiding Cases to guide local courts and restrict the discretion of judges.
2. Strengthening the trial guidance
The SPC has been guiding the trials of local courts in various forms, such as formulating judicial interpretations and other judicial documents, and supervising local courts through second instance and adjudication supervision procedures. Guiding Cases have become a new guiding method of the SPC, which can make up for the deficiencies of statutory laws and disclose the court’s views on specific issues to the public.
3. Summarizing the trial experience
The SPC summarizes the trial experience by selecting and compiling Guiding Cases. That is, by standardizing and promoting the reasoning and the application of law from typical cases, the trial experience can be passed on and shared within the court system. In other words, the personal experience of judges, parties, and lawyers in individual cases has been transformed into public experience in the judicial system.
4. Improving the quality of case trial by the courts
With the rapid development of Chinese society, the courts need new means to deal with new problems quickly. Usually, there are two ways for the SPC to respond to social needs: to issue judicial interpretations with quite a slow process, which is relatively rapid compared with legislation though; and to make an official reply to the questions of certain cases from local courts, which relies on the request for replies from local courts.
Compared with these methods, Guiding Cases enable the SPC to take the initiative to express its views on specific issues reflected in individual cases, thus providing timely guidance to judges nationwide, which not only helps judges improve their efficiency and save judicial costs, but also restricts the discretion of judges.
5. Enhancing judicial transparency and fairness
Guiding Cases help the SPC to clarify the abstract norms of statutory laws into the rules of application of law in specific situations and make such rules public.
This is conducive to greater judicial transparency, so as to achieve judicial fairness.
II. Why to establish the Similar Case Retrieval System?
When it comes to the need for instituting the Similar Case Retrieval System, the SPC judges Liu Shude (刘树德) and Hu Jixian (胡继先) have shared their views in a recent article published in People's Judicature (No. 25, 2020).[2]
1.Promoting the uniformity in application of law
The lack of a uniform standard in application of law when hearing cases has made the public complain about “different judgments for the same case” (同案不同判) and "different judgments for similar cases" (类案不同判).
According to Chinese courts, the reasons for the above phenomenon are:
(1) The law is abstract, general and broad;
(2) The law itself is incomprehensive, vague and lagging;
(3) Judges' different understanding and knowledge of the law;
(4) The failure to effectively restrict the discretion of judges due to inadequate supervision and management mechanisms;
(5) The professional level of judges needs to be raised, etc.
The inconsistent application of law has become one of the most prominent problems that plague Chinese courts, which is also believed to have affected the credibility of the judiciary to some extent.
To solve this problem, Chinese courts have been exploring the Similar Case Reference System and Similar Case Retrieval System since 2015, and have formally established the system in 2020.
2. Promoting the supervision on judges
In the past, Chinese courts supervised judges mainly by the bureaucracy within the courts, that is, the supervisors (leaders) of courts directly reviewed the judgments being made by judges. However, this had definitely interfered with the independence of judges.
Since the judicial reform initiated in 2014, Chinese courts have gradually restricted the power of supervisors to directly intervene in the trial of judges. However, new worries of leaving judges completely unrestricted have arisen.
As a result, the SPC has introduced “Similar Judgments for Similar Cases” (类案同判), requiring judges to refer to similar cases to make a judgment.
[1] 胡云腾、罗东川、王艳彬、刘少阳：“《关于案例指导工作的规定》的理解与适用”, 载《人民司法》2011年第3期。
[2] 刘树德、胡继先：“《关于统一法律适用加强类案检索的指导意见（试行）》的理解与适用”，载《人民司法》2020年第25期。
Photo by Steven Qian (https://unsplash.com/@stevenqian) on Unsplash
Contributors: Guodong Du 杜国栋 , Meng Yu 余萌
