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China’s Evolving Case Law System In Practice
By Susan Finder | Opinion | 9 Tsinghua China L. Rev. 245 (2017) | Download Full Article PDF

One of the many judicial reforms designated in the latest round of judicial reforms is developing China’s case law system. This reform was among those highlighted in the Central Committee of the Communist Party Decision concerning Several Major Issues in Comprehensively Advancing Governance According to Law (4th Plenum Decision) and Opinion of the Supreme People's Court (hereinafter the "SPC") on Deepening Reform of the People's Courts Comprehensively (4th Five-year Court Reform Plan) (further described below). It further builds on many years of discussions within the courts, the initiative of Judges Hu Yunteng and Jiang Huiling and others affiliated with the SPC’s Institute of Applied Jurisprudence in the middle 2000s as incorporated into previous judicial reforms.

The conventional wisdom among both foreigners and some Chinese scholars writing about case law is that with the exception of a small number of guiding cases approved by the SPC, previous cases do not have any precedential value. Those closer to the world of practice in China know that previous cases, or some portion of them, are indirectly shaping the development of Chinese law. The guiding and non-guiding cases constitute what is sometimes described as the case guidance mechanism (案例指导机制).

The non-guiding cases are not directly binding, may not be cited in court judgments, and do not have precedential value. They can be used as a source of reference (参考). In practice, however, they form a type of soft precedent frequently used by Chinese legal professionals in a variety of ways, with the intellectual property courts taking the lead. Senior judges involved are careful to distinguish China’s case law system from the Anglo-American precedential system.

This article will first describe how Chinese legal professionals are using cases, other than those approved as guiding cases, as “soft precedent,” explain why they are doing so, the role of the SPC in this development, and what this portends for the evolution of China’s case law system.  
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