Sunday, June 12, 2016

Chinese Common Law? Guiding Cases and Judicial Reform - Chinese Common Law? Guiding Cases and Judicial Reform

Chinese Common Law? Guiding Cases and Judicial Reform - Chinese Common Law? Guiding Cases and Judicial Reform 129 Harv. L. Rev. 2213 (2016)
by Mark Jia

Half a century ago, writing in this Review, Professor Jerome Cohen traced the “gradual abandonment” of the judicial-independence ideal in the early years of Chinese Communist Partyrule.1×1. Jerome Alan Cohen,The Chinese Communist Party and “Judicial Independence”: 1949–1959, 82 Harv. L. Rev. 967, 967 (1969). Despite this trend, Cohen suggested, China’s leaders may in time “acquire a deeper appreciation of the virtues of functional specialization, professionalization, and judicial autonomy.”2×2. Id. at 1006. A half century later, China’s judicial reform record is mixed. While the country has made considerable strides in building a more competent and professional judiciary,3×3. See Stanley B. Lubman, Bird in a Cage: Legal Reform in China After Mao 251–97 (1999) (summarizing how China’s “judicial system has been extensively rebuilt since 1979,” id. at 251); see also Xin He,The Judiciary Pushes Back: Law, Power, and Politics in Chinese Courtsin Judicial Independence in China180 (Randall Peerenboom ed., 2010) (describing courts resisting party pressure); Benjamin L. Liebman, China’s Courts: Restricted Reform, 191 China Q. 620, 620 (2007) (pointing to areas of increased autonomy for Chinese courts). statist and populist forces have also deeply shaped the trajectory of reform.4×4. See generallyBenjamin L. Liebman, A Return to Populist Legality? Historical Legacies and Legal Reformin Mao’s Invisible Hand: The Political Foundations of Adaptive Governance in China165 (Sebastian Heilmann & Elizabeth J. Perry eds., 2011); Carl F. Minzner, China’s Turn Against Law, 59 Am. J. Comp. L. 935 (2011). Recent developments have further highlighted how China’s judicial (and legal) reforms have evinced a blend of professionalist, populist, and statist influences. While the Communist Party of China recently announced such “professionalist” reforms as reducing local interference with local courts, the Party has continued to emphasize its leading role in supervising the judiciary under a “socialist rule of law.”See Yang Yi, Highlights of Communique of 4th Plenary Session of CPC Central Committee,Xinhua (Oct. 23, 2014),[].
This Note assesses a relatively recent innovation in China’s judicial reform project: the use of “guiding cases” to achieve greater adjudicative consistency across lower courts.5×5. See infra Part I. Since 2010, China’s highest court has converted fifty-six judicial opinions into what are intended to be de facto binding decisions that courts “at all levels should refer to . . . when adjudicating similar cases.”6×6. Zuigao Renmin Fayuan Guanyu Anli Zhidao Gongzuo de Guiding (最高人民法院关于案例指导工作的规定) [Provisions of the Supreme People’s Court Concerning Work on Case Guidance] (promulgated by the Adjudication Comm. of the Sup. People’s Ct., Nov. 15, 2010, issued Nov. 26, 2010) Beida Falü Xinxi Wang (北大法律信息网) [Chinalawinfo],[], translated inStanford Law Sch., China Guiding Cases Project (2015),[] [hereinafter Provisions]. Figure is current as of May 8, 2016. Traversing subjects as wide-ranging as securities, land use, homicide, and graft, these guiding cases offer a potentially important new tool for the roughly 200,000 jurists charged with administering China’s legalsystem.7×7. Cao Yin, Courts Court ChangeChina Daily(Aug. 13, 2014, 7:24 AM),[]. Consistent with prevailing rules of citation, a Chinese author’s surname will appear in the order in which it appeared in the text of the publication.
Guiding cases have generated significant discussion among scholars and officials. Some proponents cite their potential to fill statutory lacunae, unify legal standards, improve judicial efficiency, and limit judicial discretion.8×8. See Li Shichun (李仕春), Zhongguo Anli Zhidao Zhidu Kunju yu Chulu (中国案例指导制度困局与出路) [China’s Guiding Cases System: Dilemmas and Solutions], Zhongguo Renmin Daxue “Minshang Fa Qianyan” Luntan Yanjiang (中国人民大学“民商法前沿”论坛演讲) [Speech at the “Frontiers of Civil and Commercial Law” Forum at China’s Renmin University] (Mar. 5, 2009),[]. Others point generally toward returns to judicial flexibility,9×9. See, e.g., Jinting Deng, A Functional Analysis of China’s Guiding Cases, 14China: Int’l J. (forthcoming Aug. 2016) (manuscript at 3),[] (arguing that “the guiding case system has equivalent functions to the Common Law in adapting law to social needs”). professionalism,10×10. See, e.g., Björn Ahl,Retaining Judicial Professionalism: The New Guiding Cases Mechanism of the Supreme People’s Court, 217 China Q. 121, 123 (2014). and integrity.11×11. See, e.g., Zhang Guangming (张光明), Zuigao Renmin Fayuan Fabu Disanpi Zhidaoxing Anli (最高人民法院发布第三批指导性案例) [The Supreme People’s Court Announced Third Batch of Guiding Cases], Zhongguo Fayuan Wang (中国法院网) [China Court] (Sept. 26, 2012, 9:22 AM),[] (pointing to the role guiding cases can play in “raising judicial integrity”).Meanwhile, less sanguine commentators have raised doubts as to China’s institutional readiness,12×12. See Li Shichun,supra note 8 (summarizing the argument of Peking University Professor Fu Yulin). while others — even supporters — have focused attention on constitutional and political difficulties in the system’s design.13×13. See infra text accompanying notes 53–60, 118–125.
Perhaps due to the elevated role of “case law” in many non-Chinese legal systems, analyses of guiding cases have often taken on a distinctly comparative flavor. Some have likened guiding cases to common law precedents, arguing that imbuing cases with “stare decisis–like authority”14×14. Taisu Zhang, The Pragmatic Court: Reinterpreting the Supreme People’s Court of China, 25 Colum. J. Asian L. 1, 8 (2012). Professor Zhang himself does not make any claims of convergence, but his use of the term “stare decisis–like authority” is consonant with much of the rhetoric surrounding guiding cases. may bring China’s civil law system into closer alignment with the Anglo-American legal tradition.15×15. See, e.g., Jinting Deng, The Guiding Case System in Mainland China, 10 Frontiers L. China 1, 1 (2015) (writing that “the current guiding case system and common law system have the tendency to become more and more similar systems in reality”); Seth Gurgel & Ping Yu, Stare Decisis in China? The Newly Enacted Guiding Case SysteminReading the Legal Case: Cross-Currents Between Law and the Humanities 142, 156 (Marco Wan ed., 2012) (describing how the possible incorporation of case study into Chinese judicial education “would seem to presage increasing levels of formal common law–type jurisprudence in a system that already appears to have quite a bit of the informal variety”); cf. Jocelyn E.H. Limmer, China’s New “Common Law”: Using China’s Guiding Cases to Understand How to Do Business in the People’s Republic of China, 21 Willamette J. Int’l L. & Disp. Resol. 96, 133 (2013) (pointing to the “recognition of Chinese legal precedent”). Others have noted civil law analogs16×16. See, e.g., Ninon ColnericChina Guiding Cases Project, Guiding by Cases in a Legal System Without Binding Precedent: The German Example 7 (2013),[]. or sought to distinguish guiding cases as distinctively local.17×17. See, e.g., Fang Wencui (房文翠), Jiejin Zhengyi Xunqiu Hexie: Anli Zhidao Zhidu de Fazhexue Zhiwei (接近正义寻求和谐: 案例指导制度的法哲学之维) [Approaching Justice Through Seeking Harmony: The Philosophical Dimension of the Guiding Cases System], Fazhi yu Shehui Fazhan(法治与社会发展) [The Rule of Law and Societal Development], no. 3, 2007, at 46, 46 (noting that guiding cases should not be wholly characterized as continental or common law “precedents”).
This Note aims to accomplish two goals in two parts. The first is to illume a clearer image of guiding cases and their contemplated role within China’s distinctive legal and political structure. The emerging portrait is that of a still-nascent system that has struggled to establish itself within China’s hierarchy of legal authority. Still, appreciable progress has been made. The second goal is to place guiding cases in comparative context, finding that despite widespread “common law” rhetoric, systems of this sort are hardly foreign to civil law. In fact, unqualified invocations of the common law can mislead more than they inform. The Note ends with parting thoughts on future reform.

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