Case study has become essential part for lawyering in China
With recent judicial reform, precedents now have become essential part of Chinese legal system.
Not like most people think, China actually has long history in compiling cases for judge’s reference for deciding cases. However, in the past, cases were not necessary to follow even the cases share the same fact pattern. With recent judicial reform, precedents now have become essential part of Chinese legal system. Judge has to study and follow guiding cases published by the Supreme Court so they can apply to “kind” cases in making decisions. In 2010, The Supreme Court of China announced Provisions on Working Guidance of Precedents. This Provisions requires judge apply precedents to the kind of cases so the court decision could be rendered in a more consistent way national wide no matter where the dispute arose and who is deciding the case.
The essential parts of the Provisions are (1) cases are selected strictly from various court levels to make sure the cases are representative; (2) guidance cases have to be reviewed by the Judicial Committee of the Supreme Court before its final publication; (3) after the guiding cases are published, the judge has to cite it in the reasoning part of his decision if the case in question is “kind” one. This is significant development for China’s judicial system. That means in order to practice law in China, case study has become essential part of lawyering. The Provisions indicates that if the decision of a kind of case has different consequence from precedents, the judge has to reason why and the judgment might be thrown by the appellate court if the reasoning is not convincible.
Even though this development, China’s guiding cases still cannot be defined as case law like those in common law system. Some scholars are of the view that China’s guiding cases are more in nature of judicial interpretation instead of case law. Judge can cite it in reasoning part, but can’t cite it as law in decision part.
Since 2010, now every year the Supreme Court of China publishes certain typical cases for guidance. The number of those cases is small by far. It is said the Supreme Court would review past case compilation to select more cases for guidance.
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