Friday, September 16, 2016

Which Chinese cases are most persuasive? | Supreme People's Court Monitor

Sometimes I think that the words China and contradiction are synonyms.  The indispensable Susan Finder reports on the regularization of judicial decisionkaming in a system that often says one thing and does another. - gwc
Which Chinese cases are most persuasive? | Supreme People's Court Monitor
by Susan Finder (Peking University Transnational School of Law, Shenzhen, PRC)

Chinese courts are paying more attention to the use of precedent in considering how to decide cases. (Two of my fellow bloggers,Mark Cohen and Jeremy Daum, have recently published on this issue, as have I.) One of the many issues remaining to be settled as China constructs its own case law system is a hierarchy of precedent, so that the Chinese legal community, in particular its overworked judges, have clear rules on this issue. (This is one of the questions subsumed under #23 of the Fourth Five Year Court Reform Plan).

We know that the hierarchy of precedent is not settled because two recent authoritative Chinese publications take a similar but not identical approach:
The first, as cited in an article by Judges Jiang Huiling and Yang Yi of the Supreme People’s Court Center for Applied Jurisprudence, highlight the list set out in “The Beijing IP Court Guiding Case Work Implementation Methods (Draft)” (summarized in Jeremy Daum’s article); and
The second, an article by Judge Wang Jing, a senior Nanjing Intermediate People’s Court judge, published (and re-published) in a number of prestigious Wechat public accounts, including the account of the Shandong Higher People’s Court. (Wang Jing has frequently published in SPC publications and she published her views on the judicial quota system (on Judge He Fan’s public account).

(As helpfully translated in Jeremy Daum’s article, the Beijing IP court draft regulations list, 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.

I’ll focus on Judge Wang Jing’s analysis.

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