Friday, April 21, 2017

China's top court: Judges should look to precedent | Supreme People's Court Monitor

This is a placemarker for a future discussion of a remarkable development in the Chinese courts.  Chinese scholars have been fascinated by the common law tradition of judge made law.  But in a system which generally seeks to track the European codes, in a political system designed to be unitary, in which the highest court is - effectively - the cumbersome national People's Congress - how was such a thing to happen in China?
The Supreme People's Court has slowly moved to solve the problem.  First it designated a growing list of Guiding Cases by which courts should be, well, guided.  Then it mandated that all judgments be posted online - creating an enormous database for lawyers - and judges - to mine.  And now the Court has broken the firewall.   Susan Finder reports.
Supreme People’s Court to require prior case search | Supreme People's Court Monitor
by Susan Finder

The SPC’s Opinions on Putting a Judicial Responsibility System in Place and Improving Mechanisms for Trial Oversight and Management (Provisional) contains the following phrase:

6. All levels of people’s courts shall give full play to the professional judges’ conferences and adjudication committee’s roles in summarizing trial experience unifying judgment standards; and on the foundation of improving working mechanisms such as consulting similar cases and judgment guidance; a mechanism is to be established requiring the search of similar cases and relevant cases, to ensure a uniform judgment standard for similar cases, and the uniform application of law.

This requires judges to do what many of them have been already doing –searching the case databases for prior cases that raise the same or similar issues and other issues related to the principal one(s).

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