Stare decisis in China? The newly enacted Guiding Case System
China is a civil law country. This is a true statement, but apart from its truth, it says very little. Like many other aspects of its economy and society, China’s legal system represents a rich tapestry (or tangled web, depending on your point of view) of institutions and concepts, claiming complex origins both in China’s own cultural past and its more ecumenical present, defying curt generalization and standard nomenclature. A quick survey of the “standard” civil law components shows the hybridized nature of China’s legal system. Civil law criminal justice systems tend to be inquisitorial, but China incorporates many aspects of an adversarial system, all the while retaining a much closer relationship between judge and procuratorate (a term of Soviet origin) than one would normally see in a common law jurisdiction. The jury—and its common-sensical wisdom—is far more prevalent in common law jurisdictions, but China has its own people’s jurors, whose common sense is supposed to inform the otherwise cold logic of the civil law judge. And yet, surely—the skeptical reductionist might claim—at least in terms of the fundamental distinguishing element between the two systems, its source of law, China is clearly a civil law country: its laws and regulations are determined by its legislative and administrative branches, and do not originate with judges and judicial decisions over time.
Even on this fundamental issue, China’s system defies easy explanation. An in-depth look at both dynastic Chinese jurisprudence as well as modern judicial custom and practice will evidence a far less rigid line between formal (legislative) and informal (judicial) sources of law, especially at the decision-making stage. In many instances, the informal swallows the formal, and the secondary source the primary. Despite this, throughout the history of the People’s Republic of China, its legal system has kept up the external auspices of a traditional civil law system. This rather simplistic definition has become much more difficult to maintain with the recent introduction of the Guiding Case System by the Supreme People’s Court and the Supreme People’s Procuratorate, a move that may finally force the Supreme People’s Court to concede that it does indeed engage in judicial rule-making (SPC Rules on the Work of the Guiding Cases 2010). In fact, the formal establishment of the system may be a not-so-implicit recognition of that fact, and certainly bears consequences for Chinese judicial training, legal practice and praxis.
The Supreme People’s Court’s Guiding Case System, while ostensibly quite new, has deep historical roots in Chinese jurisprudence, as any brief examination of Chinese legal history reveals. As early as the Han Dynasty, the central governing authorities began to use previously decided cases to supplement the written law. In the absence of apropos formal law, government officials charged with deciding a case were required to enter a judgment by referencing a recorded, representative case (bi) (Cheng 1927: 113).1 During the Northern Song Dynasty, case law compilation became an important means to supplement formal legislation, especially after the Northern Song defeat at the hands of the Jin Dynasty and the concomitant retreat of the imperial court to the Southern Song capital of Hangzhou. Thereafter, the remaining local officials had to rely heavily on earlier Northern Song case compilations. But it is the Qing government that represents the apogee of the imperial case compilation system. Qing officials compiled thousands of cases to enable magistrates to enforce the kingdom’s many and varied laws. This recording and referencing of past cases played a key role in dynastic Chinese jurisprudence, operating as a less-acknowledged source of law.
The representative cases would normally be generated in the following way: the emperor would issue a decree that extant legal codes were too general. Bureaucrats would then be instructed to scour the realm’s annals, gathering case results from recent years as well as cases reaching back generations, using these search results to illustrate how similar-situated cases should be decided going forward. These compilations did not merely include points of law, but also detailed the stories behind the cases.
In the early dynasties, the legal rules expounded in these texts were intertwined with moral norms, mostly derived from the Confucian classics. For instance, Dong Zhongshu compiled a collection of cases law titled “Guiding Cases Modeling the Spring and Autumn Annals (chunqiu jueshi bi)” that became an authoritative legal textbook, if not law itself, for the Han governments of many generations. The stories from the Confucian canon served as inspired examples to government magistrates and were woven throughout these ancient “guiding cases.”
Oftentimes the stories themselves would be quite simple, but outline a greater moral principle. An illustrative example is the case of Xu Zhi (Cheng 1927: 164). Xu Zhi’s father was ill, and he tried to nurse his father back to health. Unfortunately, the medicine he administered poisoned, rather than healed, his father. According to the law and filial piety, the dominant Confucian ideal, actions of a son resulting in the death of his father would normally be capital offenses. Nevertheless, the Spring and Autumn Annals believed that competing moral norms governed Xu Zhi’s actions. As his original purpose was to cure his father’s illness, he was eventually exonerated. This sophisticated reasoning from over two millennia ago intimates modern criminal legal code notions of criminal intent. The Xu Zhi case was widely cited during the ensuing two thousand years.
Throughout the dynastic period, the Chinese bureaucracy would often undergo the systematic compilation of these types of legal cases and anecdotes, adding official interpretations and commentary to them, with perhaps the best examples coming from the Song and Qing Dynasties. According to some scholars, more than two thousand cases were compiled for the purpose of guiding officials in every manner of case. This process was cumulative, and continued throughout the dynasties, each successive dynasty would mine the annals of the old for case examples that fit their needs, with Qing Dynasty officials the most reliant on case-illustrated rules to supplement their legal code and regulations.
Legal reform in the late Qing and Republic of China eras
After the battering to state and psyche wrought by the Opium Wars and the Qing defeat in the Sino-Japanese war, the Qing Dynasty began a comprehensive modernization campaign—a sweeping program that also included significant legal reform. China dispatched high-ranking officials across the globe to study the Japanese, American, and Continental European legal systems, among others, eventually settling upon the Japanese model, itself a derivation of the German civil law system. The reasons for this decision were many, and some no doubt involved China and Japan’s familiarity and proximity, in both actual and cultural terms. One key reason was that Japan represented a communitarian society—a former protégé of China, no less—that had successfully assimilated modern Western legal infrastructure. The Qing admired Japan’s success in this arena, especially that Japan had rid itself of the extraterritoriality imposed by western powers through its modernization.
Under the newly adopted system, China’s legal scholars generally claimed that China had no case law; that its laws comprised only its recently imported legal code and other written laws. But even during this era, case law was still extant in China: it had staked a claim in the British and American Concessions that dotted the Chinese coast and extended somewhat into the hinterlands. Concessions in Shanghai and Wuhan, et al, held court employing a mixture of both the civil and common law systems, and accumulated large amounts of case law for the purpose of trying future cases within the Concessions. These common law practices also influenced life without the Concessions as well, particularly in the field of legal education. A number of China’s top law schools had Anglo-American roots and were staffed by common-law-trained instructors, thereby educating a cadre of Chinese legal scholars in the logic and reasoning of the common law lawyer (Connor 1994).2
Continuing this amalgam of civil law with common law characteristics, the Republic of China in Taiwan, again, partially influenced by Japan, developed its own version of a case law system. The Taiwanese Supreme Court has enacted a case law system that, while not strictly common law, serves as supplementary legal source for judges.3 This system bears great similarity to the Japanese case law permutation and evidences direct influence from the American system as well. This American influence sprang from the United States’ intimate relationship with Taiwan after its detachment from China in 1949, after the People’s Republic was established.
Judge-made law in the PRC? Case law in the Chinese mainland
After the Chinese Communist Party (“CCP”) took power in 1949, its first announcement was the abolition of the Six Codes (liufa quanshu), the legal codes that the Republic of China had adopted from Qing Dynasty and borrowed from Japan. With the Six Codes’ abolition, the PRC entered an era of a near-complete legal vacuum. Outside of the 1950 Marriage Law and the various policies governing counter-revolutionary behavior, few other legal documents existed, with the Constitution remaining unpublished until 1954.
It was not until 1979 that the PRC formally established the basic elements of its legal code, promulgating the Criminal Law, the Criminal Procedure Law, and the Joint Venture Law, among others.4 It’s not a little ironic that during the preceding 30 years, there were virtually no laws, save for the oft-revised Constitution, extent in a country that was said be a Civil Law country. And yet the courts continued to hear civil and criminal cases during those years. How did they manage? Belying its “civil law” moniker, the Supreme People’s Court (“SPC”) enacted numerous judicial interpretations and various rules that provided guidance to lower courts. Additionally, the SPC publicized what it called “exemplary cases,” predecessors of guiding cases, which eventually held the force of law for courts of all levels. It was then that model cases (dianxing anli) really filled the legal vacuum, providing much-needed guidance to courts of all levels in their day-to-day operations.
The general rules issued by the SPC also came from various draft laws, such as the draft Criminal Code, which, while not promulgated until 1979, had been in draft form already in 1950. This proved to be a great aid to the SPC in issuing its opinions, as it drew numerous lessons from the time-consuming, tortuous drafting process. By the time the Criminal Code was codified, it had undergone over 35 major revisions. During this period, the model cases played a significant role in guiding judicial practice in criminal cases as well as in civil matters. One example is that during May–June, 1955, the SPC issued a collection of various cases on the rape of minors, providing guidance on how to deal with such cases in the future. Those cases served model rules for local courts decades before the Criminal Law was enacted (Shen 2009: 3).
But even after the passage of the Criminal Code and Criminal Procedure Law, China still relied heavily on model cases, just as it had in the three decades prior, since both laws, like many Chinese laws, were composed of only the most general and loosely-defined terms, leaving expansive space for interpretation and elaboration. In order to avoid discrepancies in application, the SPC had to step in to provide guidance for lower courts: SPC case publication and dissemination became critical to that end.
Poor general legal training also necessitated these Guiding Case System precursors. Concern about court staff and judicial competence was a major reason for the SPC’s more micro-managed guidance on legal code interpretation. In 1977, just two years prior to the “Seven Important Laws,” China had just begun rehabilitating its legal education system, effectively shuttered during the Cultural Revolution. It was not until 1978–79 that legal education resumed in full force. So, as freshmen and sophomores in college filled college classrooms absent upper-classmen, court officers and judges comprising mostly retired military staff sought to unpack the newly passed criminal and civil laws. As one might expect, these newly-christened judges were often overwhelmed, and lacked the requisite skills for sophisticated legal exegesis.
While the lack of competence pervasive among China’s judiciary was the primary reason for the continued relevance of the model cases, there were other reasons as well. The SPC wanted to ensure the law’s unified application and practice across China’s many and varied regions, and often released model cases with an eye to unifying disjointed practice across provinces. Additionally, the new codes were not adept at addressing the emergent matters that occurred with rapid succession during the Reform and Opening period, particularly in the field of economic crimes, which had been less of a concern under the fully planned economy of the early PRC. Economic crimes received short shrift in the codes, creating problems of both under- and over-criminalization in the days of the nascent Chinese market economy.
For instance, in the 1979 Criminal Law, the crime of speculation (touji daobao) was so broadly defined as to be nearly bereft of meaning (Criminal Law 1979: Art. 117).5 If an official government organ deemed a particular practice illegal, any commercial activity that generated profit could be regarded as speculation under the Criminal Law. Another example is the crime of hooliganism (liumang zui), another crime that suffered from ambiguity—virtually any act of “disturbing social order,” so-called, could be viewed as an act of hooliganism (Criminal Law 1979: Art. 160).6 The above two crimes were described by Chinese scholars as “bag crimes,” referring to their metaphorical “grab-bag” convenience, for nearly anything that irked a local official could be tossed into the speculation or hooligan “bag.” Fortunately these two bag crimes have themselves been sacked, eliminated in the 1997 Criminal Law, and relieving the courts (and defendants) of such unwieldy legal concepts. At the same time, the fact that it took nearly 20 years for the SPC to do away with laws that were almost immediately defunct highlights a characteristic of legislation in the Reform and Opening Era: legislation has rarely been able to keep pace with development.
The SPC, through the continuous issuance of new model cases, did its best to mold the almost-immediately outdated laws to fit new crimes, not-so-discreetly playing the role of legislator other branches of government could not or would not play. Starting in 1985, the SPC formally instituted the publication of exemplary cases in its official publication, the SPC Gazette. More than six hundred cases comprising every manner of law have been published since then, including civil, criminal, and administrative law cases. These cases have played an important role in standardizing judicial practice, and perhaps more importantly, in guiding lower courts on new legal issues, whether poorly-defined in the law or lacking exposition altogether. In some circumstances, the SPC will issue a judicial interpretation, itself accompanied with a few representative cases.
The SPC used just this type of interpretive tidal wave to combat drunk driving a few years ago. In September 2009, the SPC issued its Notice on Handling Drunk Driving Cases that Result in Death, a widely publicized notice aimed at stemming the very palpable public outcry at a spate of incidents in which drunk drivers had killed pedestrians. These traffic accidents could conceivably be prosecuted under two separate crimes: a traffic statute that seemed more on point but capped the maximum punishment at seven years, and another statute concerning the “endangering of public safety” that was as broad as the name suggests, and carried the threat of capital punishment. In order to illustrate how to differentiate between a normal negligent homicide resulting from a traffic accident from a ruthless type of driving resulting in death (perhaps something like “depraved heart murder”), the SPC attached two representative cases to its Notice. In those two cases, the defendants were convicted of the crime carrying the heavier penalty, that of endangering public safety through drunk driving (SPC Opinions: 2009).
The sources of model cases in the early Reform and Opening period
In addition to the SPC Gazette, there are other, less official, channels of model case publication.
The first source arose from SPC case compilations drawn from courts of all different levels, from local-level court decisions all the way to SPC decisions in Beijing. These compilations served myriad purposes, but were mostly for internal use, for judicial training and education. In addition to the SPC’s work of case compilation, the courts of all levels periodically compile cases for similar educational purpose.