The Supreme People's Court issued the Guiding Opinions Concerning Strengthening Searches for Similar Cases to Unify the Application of Law (Guiding Opinions) (关于统一法律适用加强类案检索的指导意见(试行)), effective on July 31, 2020)

On 27 July 2020, the Supreme People's Court (SPC) issued the Guiding Opinions concerning Strengthening Searches for Similar Cases to Unify the Application of Law (Guiding Opinions), effective on 31 July. The Guiding Opinions are intended to resolve inconsistencies in courts' judgments. The SPC affirms the practice of judges using rules derived from prior similar cases to fill in the gaps in legislation and judicial interpretations.

Background

The Guiding Opinions are formulated to deepen the legal reforms in China to ensure uniform application of law and promote judicial justice. With the mechanism for searches for similar cases, the precedents can be referred to or considered by judges in making judgments. The SPC and some local courts have developed their own mechanisms for conducting searches for similar cases in recent years. The judges have conducted searches for similar cases when hearing cases in order to provide references for the necessary considerations by the collegial panels, professional (presiding) judges meetings, and adjudication committees in their discussions of a case. The searches have helped judges to make consistent judgments but the search practice needs to be unified, regulated and improved due to the lack of explicit, specific and uniform provisions on the searches in terms of scope, platforms and application of the search results of the similar cases. The SPC, therefore, formulated the Guiding Opinions after summarizing the experience and practice of courts at all levels, conducting adequate investigations, and soliciting comments widely from the public.

Noteworthy Rules in Guiding Opinions

1. Specific circumstances to conduct searches for similar cases

Conducting searches for similar cases is a way to help judges make consistent judicial judgments. In case of disputes on application of law or lack of clear or uniform rules for judgment, judges need to study the application of law more meticulously and make more cautious judgments based on searches for similar cases. To unify and regulate the exercise of judicial discretion and promote the uniform application of law, the Guiding Opinions provide that searches for similar cases be conducted in either of the following four circumstances:

  1. The case will be submitted to a professional (presiding) judges meeting or the adjudication committee for discussion;
  2. Clear rules for judgment are lacking or the uniform rules for judgment have not yet been formulated;
  3. The court president or presiding judge requests searches for similar cases under his/her oversight authority;
  4. Other circumstances that requires searches for similar cases.

II. Scope of searches for similar cases

Conducting searches for similar cases is, in a sense, a process of studying the application of law. To ensure the adequate searches for similar cases and promote the uniform application of the law, the Guiding Opinions have specified the scope of the searches as follows:

  1. Guiding cases published by the SPC;
  2. Typical cases published and cases with effective judgments issued by the SPC;
  3. Reference cases published and cases with effective judgments issued by the higher people's courts in the province (autonomous region and municipality directly under the Central Government);
  4. Cases with effective judgments issued by the people's courts at a higher level or the courts in question.

In the meantime, based on the actual trials, the Guiding Opinions stipulate that except for the guiding cases, priority shall be given to the searches of typical cases or reference cases etc. in the past three years.

III. Participants in a lawsuit can submit search reports on similar cases to the court


The integration and development of judicial process and information technology have made searches for similar cases possible in recent years. In judicial practice, some parties, lawyers and other participants in a lawsuit have conducted searches for similar cases and submitted search reports to the court to support their claims or defenses. Accordingly, the Guiding Opinions have made two arrangements in the system design: Public prosecutors, parties and their defense lawyers, attorneys or representatives can submit search reports on similar cases to be considered by judges in their judgment. When public prosecutors, parties and their defense lawyers, attorneys or representatives submit guiding cases in support of their legal position or defense, the people's courts shall respond and explain in the reasoning section of their judgments whether such cases should be referred to and why. When other cases are submitted, the people's courts may respond by elucidation and other means.

IV. Specific impacts of guiding or typical cases identified in searches for similar cases

According to the existing legal system of China, not all the searched cases are legally binding. The searched cases which are not legally binding are binding only to a certain extent and for judges to consider. The guiding cases issued by the SPC are clearly binding, meaning that the people's court shall consider the searched cases in making judgments if such cases are guiding cases, in accordance with the Organic Law of the People's Courts of the People's Republic of China and the Provisions of the Supreme People's Court concerning Work on Case Guidance. Typical case or reference cases etc. other than the guiding cases are worthy of consideration and the people's courts may consider such searched cases in their judgments, even though they are not legally binding.

V. How to handle the inconsistency in the application of law in the searches for similar cases

China follows statutory law, so the people's courts shall rule on a case according to law, while conducting searches for similar cases is simply a working mechanism that assists judges to handle cases. The similar cases are referred to or considered by the judges when they rule on a case. In case of the inconsistencies in the application of law in the similar cases, judges shall make prudential judgments based on their understanding of law and may solve the disputes on application of law through relevant mechanisms. Accordingly, the Guiding Opinions provide that in case of any inconsistencies in application of law in the similar cases, the people's court may consider factors including the level of the court, time of the judgment, and whether such cases are discussed by the adjudication committee so as to resolve the discrepancies in application of law through mechanisms for resolving differences pursuant to provisions including the Notice by the Supreme People's Court of Issuing the Implementation Measures for Establishing the Mechanism for Resolving Differences in the Application of Laws.

Public Comments on Guiding Opinions

"Justice must not only be done, but must be done visibly. This is the value of the rules on searches for similar cases".

"With the clarification of the search method, the scope of searches for similar cases is more precise and the search results are of greater reference value. More importantly, it would help to eliminate the technical barriers in the judicial databases in various regions and lay a solid foundation for the establishment of a unified national case database".

"To submit reports on searches for similar cases to the court would become regular practice of the lawyer; Article 10 of the Guiding Opinions request that judges "shall" rather than "can" respond to the guiding cases in the reasoning section in the judgement, therefore we shall strengthen the study on the guiding cases; The search report on similar cases should not be just a pile of cases but should be the "rules of decision/the main thrust of the decision" carefully extracted from the similar cases. The "case distinguishing skills and practice" in British and American case law would become more and more important; In three or five years or even ten years later, this Guiding Opinions may become a "Chinese case law" landmark document;

"Further application of the Guiding Opinions needs extensive reform of law school teaching and training of judges and lawyers. This is a long-term project, involving lifelong education of the entire legal community".

"The effective implementation of the searches for similar cases system is a major project in the judicial process in China to achieve "like cases like verdicts" and requires the establishment and improvement of many infrastructures".

Conclusion

The issuance and adoption of the Guiding Opinions are legal reforms which are bound to improve the trial system in China and better protect the interests of the parties in litigation. The law practitioners in China need to master and hone the skills in conducting searches for similar cases as well as in analyzing and distinguishing the cases searched by the courts and/or submitted to the courts so as to offer adequate and professional legal services to best advocate for the clients and protect the client'' rights and interests throughout the legal proceedings.

Appendix

Supreme People's Court Guiding Opinions concerning Strengthening Searches for Similar Cases to Unify the Application of Law (Guiding Opinions), effective on July 31, 2020

The following opinions concerning the efforts of the people's courts to searches similar cases are put forward to ensure uniform application of law and enhance judicial credibility based on actual trials.

I. "Similar Cases" as set forth herein refers to cases that have already been effectively ruled upon by the people's courts that are similar to the pending case in terms of the basic facts, points of contention, application of law, and other areas.

II. The people's courts that are hearing cases shall searches for similar cases in the event that:

1. The case will be submitted to a professional (presiding) judges meeting or the adjudication committee for discussion;

2. Clear rules for judgment are lacking or the uniform rules for judgment have not yet been formulated;

3. The court president or presiding judge requests a searches for similar cases under his/her oversight authority;

4. Other circumstances that requires a searches for similar cases.

III. The judge shall searches for similar cases from the China Judgments Online and the Database of Chinese Trial Cases and shall be held liable for the authenticity and accuracy of the searches.

IV. The scope of searches for similar cases typically includes:

1. Guiding cases published by the SPC;

2. Typical cases and cases with effective judgments published by the SPC;

3. Reference cases and cases with effective judgments published by the higher people's courts in the province (autonomous region and municipality directly under the Central Government);

4. Cases with effective judgments published by the people's courts at a higher level or the courts in question.

Except for the guiding cases, priority shall be given to the searches of case examples or cases in the past three years; where a similar case has been searched in the previous order, no more searches in the following order is required.

V. Similar cases may be searched by keyword searches, legal provision-based searches, and case-based searches, etc.

VI. The judge shall compare the pending case and the searches results to determine whether they are similar cases.

VII. Regarding a case for which similar cases shall be searched as provided herein, the judge shall specify the results of such searches in the deliberations of collegial panels, the discussions at the professional (presiding) judges' meeting, and the trial report, or draft a special report on such searches, and file it for future reference along with the case file.

VIII. Explanations or reports on searches for similar cases shall be objective, comprehensive, and accurate, and include details such as the searches subject, time, platform, means and results, the key points of the similar cases, and the points of contention in the pending case, and an analysis and explanation of whether the cases are referred to or considered or how they are applied.

IX. Where similar cases are found as guiding cases, the people's courts shall make a judgment by referring to them, except when such cases conflict with new laws, administrative regulations, or judicial interpretations, or they have been replaced by new guiding cases.

Where other similar cases are found, the people's courts may consider them in future judgments.

X. Where public prosecutors, parties and their defenders or attorneys submit guiding cases as the grounds for prosecution or defense, the people's courts shall respond and explain in the reasoning section of their judgments whether such cases should be referred to and why. Where other cases are submitted as the grounds for the prosecution or defense, the people's courts may respond by elucidation and other means.

XI. In case of any inconsistency with similar cases searched in application of law, the people's courts may consider factors including the level of the court, time of the judgment, and whether such cases are discussed by the adjudication committee, and resolve the discrepancy in application of law through mechanisms for resolving differences pursuant to the provisions such as the Notice by the Supreme People's Court of Issuing the Implementation Measures for Establishing the Mechanism for Resolving Differences in the Application of Laws.

XII. People's courts at all levels shall make active efforts to advance searches for similar cases, enhance technical researches and training in application, and render the push of similar cases more intelligent and precise.

All higher people's courts shall make full use of modern information technology and create databases of trial cases to lay a solid groundwork for the establishment of a national uniform and authoritative database of trial cases.

XIII.People's courts at all levels shall summarize and sort out searches for similar cases on a regular basis, publish such cases in the courts in question or the courts within their jurisdiction in a certain form for the consideration by judges, and submit such cases to the trial management department of people's courts at a higher level for recording.

XIV.The Guiding Opinions shall come into force as of on July 31, 2020.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.