12 August 2020
On 27 July 2020, the Supreme People’s Court of the People’s Republic of China (SPC) issued the new Guiding Opinion Concerning Strengthening Search for Similar Cases to Unify the Application of Law (Provisional) (最高人民法院关于统一法律适用加强类案检索的指导意见（试行）) (Guiding Opinion), which took effect on 31 July 2020. With the new Guiding Opinion in place, it is now mandatory for judges to conduct similar case searches for certain important and complex cases. It deepens the practice of searching for and applying previous case law as an example or a guide to be considered in other similar circumstances, similar to the precedent system in common law jurisdictions.
The PRC operates under a civil law system which historically has placed less emphasis on precedents in comparison to the reliance on written statutes and other legal codes that are regularly updated. It is important to note that the new Guiding Opinion does not make the practice of law in the PRC parallel to that of a common law system. It simply plugs a much-needed gap between statutes/legal codes and a myriad of judicial applications by judges, in order to unify the application of law by the courts. With the new guidance in place, the SPC envisages consistent judgments on similar facts and legal points in order to improve public confidence in PRC courts.
Under the Guiding Opinion, judges are required to conduct searches for similar cases in certain important and complex cases from the “guiding cases” and “typical cases” published by the SPC, as well as from the judgments or rulings in force of the same court or higher in the province. If either party relies on a similar case, the people’s court has to explain to the parties orally whether or not it has considered the similar case before delivering the judgment. If the similar case submitted is a “guiding case”, such explanation has to be included in the judgment.
The “guiding cases” (指导性案例) are selected and published by the SPC on its official website, Gazette and official newspaper People’s Court Daily pursuant to its Rules Concerning Work on Providing Guidance by Cases (最高人民法院关于案例指导工作的规定) dated 26 November 2020. They include judgments and rulings made by different levels of people’s courts in the PRC covering a wide range of matters, from general civil and commercial matters to specific intellectual property rights and administrative matters. To date, the SPC has published 24 batches of “guiding cases”, totalling 139 cases. The “guiding cases” have the most reference value and the people’s courts are required to consider the “guiding cases” when judging a case with similar fact and legal issues.
The “typical cases” (典型性案例) are regularly published in the SPC Gazette. These “typical cases” have less reference value than the “guiding cases” because the people’s courts are not required to consider them when delivering a judgment. That being said, they are still an important source of precedents for Chinese legal practitioners in preparing for similar cases.
With the new Guiding Opinion in force, searches for precedents are going to be an important part of a Chinese litigator’s practice going forward. Clients should expect Chinese practitioners to test case strategies by conducting similar case searches. Similar case searches may also help construct arguments for claims and provide an additional factor for a plaintiff to consider which court to commence litigation when he/she has a choice, taking into account the defendant’s domicile, the location of the assets and/or the subject matter of the dispute, and the practice of courts in different provinces.
The new Guiding Opinion is a step towards improving the judicial system in China. Rulings in China are now expected to be made as consistent as reasonably possible with previous judicial decisions on the same subject or similar circumstances, in particular the “guiding cases”. This will ultimately reshape the legal practice in China and help improve the quality of judicial decisions.
For further information, please contact:
Helen Tang, Partner, Herbert Smith Freehills
helen.tang@hsf.com
