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    Ordering the Courts: Understanding China’s Big Precedent Push

    China wants its jurists to look for “similar cases” before issuing rulings, but that’s not always as simple as it seems.
    Aug 17, 2020#law & justice

    Last month, a prominent Chinese legal blogger made a stunning accusation: Since 2016, no fewer than 20 courts nationwide had cited a Supreme People’s Court (SPC) opinion that didn’t exist.

    In the wake of a recent “judicial informatization” push, China is awash in online judicial platforms. There are public platforms and private platforms; national databases and local indexes; sites for academics and sites for lawyers. The SPC alone runs two. The first, China Judgments Online, is mainly used to publicize and compile judicial documents — 98.9 million so far. The second,, is geared toward case analysis and related case searches.

    Both can be called authoritative, but they’re also relatively new. A few references to the phantom opinion predate their creation. And in some cases, the citations may have been the result of overworked or inexperienced lower court judges turning instead to search engines like Baidu — more convenient, but also more likely to direct them to unreliable or unvetted sources.

    Yet judicial informatization is just one part of a larger paradigm shift. China has been trying for years to strengthen the role of legal precedents in its judicial process. In July, the SPC issued a long-gestating draft “Guiding Opinion on Strengthening Searches for Similar Cases to Unify the Application of Law.” Put simply, the goal is to encourage — and in some instances, require — judges to check for and reference “similar cases” before making decisions, a move that could also help lawyers by letting them point to precedents which support their argument. As the above snafu suggests, however, without clear rules and procedures, let alone an improved case search system, the SPC will be hard-pressed to realize its vision.

    It is worth noting this is all still in the trial stage. China’s judicial system, like that of Germany or France, is based in civil law. That is to say, it relies mainly on a comprehensive system of statutes and ordinances, usually codified. Unlike in common law systems like the U.S. or England, precedents typically play a limited role in the civil law judicial process.

    Limited doesn’t always mean nonexistent. Precedents are useful, even in civil law systems. Civil codes and sentencing rules can be interpreted differently by different judges, so looking back on how past cases were adjudicated can inject a bit of certainty to the process. They also save judges time: Instead of having to start from scratch at the beginning of each case, judges can turn to similar cases for guidance.

    With this in mind, since 2011, the SPC has selected and issued 24 batches of “guiding cases.” In theory, these offer legally binding precedents for subsequent similar cases, though they remain rarely cited by judges in their rulings.

    By making similar-case searches a procedural obligation for judges, the “Guiding Opinion” marks another step in the right direction. Yet obstacles remain. One of the biggest is simply determining what, exactly, constitutes “similarity.” Two previous documents released by the SPC, one in 2017 and the other in 2018, both failed to clearly define the term — effectively pushing the responsibility onto judges. The result was a divided judiciary.

    Article 1 of the “Guiding Opinions” offers a fix, defining “similar cases” as “cases that have already been effectively ruled upon by the people's courts (and) that are similar to the pending case in terms of the basic facts, points of contention, issues of application of law, and other areas.” This is a clear attempt to resolve the confusion among judges. However, even this wording remains relatively vague and could easily generate controversy when put into practice, especially in difficult cases.

    Just as important, Article 4 of the “Guiding Opinions” tries to clarify the relative importance of different precedents. Guiding cases published by the SPC are to be given first priority, followed by less binding “example cases” and judgments published by the SPC, then so-called reference cases and rulings by the High People’s Court of a given province, and finally judgments from any higher-ranking court or the presiding court itself. Cases from the preceding three years are also given priority over older rulings.

    Unfortunately, confusion persists over how these two hierarchies interact. For example: Which would take precedence, a High People’s Court judgment from four years ago or a more recent intermediate people’s court ruling?

    Courts at the lowest rung of the judicial hierarchy may be tempted to follow the opinions of intermediate courts, even if they are often written less clearly and argued less effectively than those of higher courts, because the intermediate court is typically the court of final appeal in its jurisdiction. Unless these issues are addressed, they will reduce the uniformity of judicial standards and negate the point of the case search system.

    Then there’s the search process itself. Since case searches depend on good database construction, their utility will inevitably be determined by the quality of the data and its analysis. There is a well-known saying in the field of big data: “Garbage in, garbage out.” If overburdened lower and intermediate courts aren’t careful when uploading their judgments, they could introduce errors into case law, just as their inattention in the case-search process inadvertently conjured into being a nonexistent SPC document. Considering the huge amount of judicial documentation and its complexity, this won’t be easy. Those responsible for designing and implementing the system must therefore remain vigilant and establish a corresponding mechanism for cleaning and auditing the data.

    The late United States Supreme Court Justice Oliver Wendell Holmes, Jr. once wrote: “The prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by the law.” In other words: A citizen’s ability to predict a court’s future decisions based on its past rulings — and to base their actions on these predictions — is what determines whether a court system meets the required standards of rule of law.

    The advantages of requiring judges to check precedent are obvious. Doing so can unify judgment criteria, help judges adjudicate tough cases, limit space for arbitrary rulings, increase the transparency and efficiency of China’s judiciary, and provide relatively stable expectations for citizens and society. But in a huge and unevenly developed nation accustomed to traditional civil law, there remains much to be done.

    Translator: David Ball; editors: Cai Yineng and Kilian O’Donnell; portrait artist: Wang Zhenhao.

    (Header image: Aitor Diago/Moment/People Visual)