Friday, February 7, 2014

A Functional Analysis of China's Guiding Cases by Jinting Deng :: SSRN

The new policy of identifying Guiding Cases is a significant innovation by the Supreme Peoples Court of China.  It obviously draws on the common law tradition of precedent.  But the SPC is a broader administrative body than the U.S. federal system permits our Supreme Court to be.  Beyond appellate review the SPC has a variety of tools: guidances, interpretations, rule-making power, and now Guiding Cases to enhance its ability to govern China's sprawling yet under-developed court system. Jinting Deng, an assistant professor at Renmin (People's) University Law School discusses the development. - GWC
China Guiding Cases Project
The Stanford Project translates
Guiding Cases

A Functional Analysis of China's Guiding Cases by Jinting Deng :: SSRN:
This article starts from the essential differences of the generation and effects of China’s guiding cases from the common law. Then, it takes a factual study of what guiding cases have done in relation to the well-known functions of case law. Based on closed analysis of guiding cases no. 5, 6, 9, 15, 17, 18, 21 and 22, and briefly discussions of other guiding cases, it finds that guiding cases similarly function to adapt law to social needs and strengthen judicial autonomy. After that, it uses a cost-benefit approach to analyze previous differences in relation to the realization of those functions. It finds that the Supreme People's Court of China (SPCC) has reformed several aspects of the case law model in the common law system to realize those equivalent functions in China’s situation, which has resulted in the differences between the two. Finally, as guiding cases are only one thing that SPCC has been pushing, I have also done a holistic study of SPCC’s current reforming activities, concluded that guiding cases shall be understood as one of the many tools of the SPCC in realizing those functions, and warned of the limits of the functions of guiding cases.

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