Monday, July 17, 2017

China’s Evolving Case Law System In Practice | Supreme People's Court Monitor

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In a new article in the Tsinghua China Law Review Susan Finder, a leading student of the Supreme People's Court, demonstrates the transformation under way in how case law is used by judges in the People's Courts.

Unlike our Supreme Court - whose principal tools are Rules, and case by case analysis, the SPC has a wide range of tools at its disposal.  Guiding cases, model cases, interpretations, responses to inquiries, guidances, etc.
This is not as declaration of judicial independence. Rather it should be understood as a consolidation of power - means for the SPC to bring consistency and improvement to China's massive legal system.  Use of case law is an inevitable product of the increasing transparency  of judicial decisions.  It is best understood as neither a common law system nor a civil law system - despite the civil law roots of China's legal system.

The evolving approach is the product of borrowing but also recognition that the power of the internet is transformative. Directed to post all decisions, the imperative drive to treat like cases alike produces mechanisms that draw on the huge accumulating body of decision-making.  - gwc

China’s Evolving Case Law System In Practice | Supreme People's Court Monitor//
by Susan Finder
***The SPC, carrying out its function to supervise and guide the lower courts, unify the application of law, and improve the quality of justice, selects and publicizes certain of its own cases and those of lower courts in a variety of forms. Guiding cases, about which there is a rich literature in Chinese and English, rank first. As noted above, this article focuses on the role of non-guiding cases and therefore the principal forms through which the SPC makes known non-guiding cases are listed below.
• Cases published in the monthly SPC Gazette (最高人民法院 公报), which take two forms: selected judgments (裁判文书选登) and cases (案例), generally totaling 20-30 annually. The first type are cases decided by various trial divisions of the SPC and reflect their views on certain issues, while the second are model cases submitted by the local courts (through the provincial high courts), which have been reviewed by various divisions of the SPC. The cases, which have been edited, contain a summary of the important points of the case (裁判摘要). However, there are no formal publicly-available criteria for selection. These cases are now accessible on the SPC’s website.

• Cases published by publications of the SPC such as:
* Selection of People's Court Cases (人民法院案例 选), a monthly publication of the China Institute for Applied Jurisprudence, affiliated with the SPC;
* China Case Trial Highlights (中国审判案例要 览 ), an annual publication of the National Judicial College and the Renmin University of China Law School.

• China Court Annual Cases (中国法院[2016]年度案例), a publication of the National Judicial College’s Case Development Research Center, now with an online platform. The cases that the editorial team from the National Judicial College selected for publication in China Court Annual Cases are also edited and contain an added section called “important points (要旨) following the theory that readers would prefer something easy to read and useful” . • People's Justice: Cases (人民司法——案例). People's Justice is a biweekly publication affiliated with the People’s Court Daily (人 民法院报), but the Cases section is published monthly. The cases published in the Selection of People’s Court Cases are edited and contain a summary of the “important points (要点)” of the case.

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