April 7, 2014, by Editor
Using Model Cases to Guide the Chinese Courts
Written by Susan Finder.
One of the initiatives of the Supreme People’s Court (hereafter the Court) highlighted in its October 2013 judicial reform plan is “to expand fully the important role of leading cases and cases for reference”. Stanford Law School has a project devoted to translating and analyzing “leading cases”, which are cases so designated by the Court according to standards issued in 2010. Academics have also written articles focused on the politics and significance of leading cases. However, “model” or “typical” cases (典型案例), the term usually used rather than “cases for reference”, have not received their due attention.
In this post, I’ll discuss what model cases are, which courts issue them and the authority of model cases. I will look at the type of model cases the Court (and some of the lower courts) have issued in the past six months and discuss why the Court (and the lower courts) are using them. Finally, I will look at some of the trends in the use of model cases.
What are model cases?
The Court (and certain lower courts) have been designating certain cases as model cases for many years. The Court started in the 1980s, when it started issuing the Supreme People’s Court Gazette. As is so often the case in Chinese law, the term model (typical) case (典型案例) is used by the courts without definition.
The model cases published by the Court and certain lower courts do not set out the original judgments in the cases but rather include:
- a brief description of the facts,
- a summary of the judgment (sometimes at first and second instance), and
- the importance of the case.
Which courts issue model cases?
Because the practice of issuing model cases has not been codified in Court regulations, a description of the legal basis leaves fuzziness along the edges. As mentioned above, the Court has issued model cases for many years, which it does as part of its authority to supervise the lower courts. 2011 Court regulations authorize provincial level higher people’s courts to issue cases for reference (参考性案例). In a recent article published on the Court website (and presumably authoritative), The Jiangsu Higher Court president stated that intermediate and basic level courts have no authority to issue model cases. A quick Internet search reveals that in practice intermediate courts and basic level courts issue model cases.
Model cases distributed by the Court are generally reported to the Court by the higher people’s courts, which have been selected in turn by their research offices. Another route for model cases to reach the Court is through field research that Court teams undertake when preparing judicial interpretations or regulations. The model cases selected by the higher level courts generally have been approved as model cases by their judicial committees (a committee of senior court leaders). Model cases may reach the Court through other routes as well, such as “requests for instructions” from the lower courts.
What is the authority of model cases?
In the absence of regulations on the authority of model cases, an interview with several higher court presidents published on the Court website gives the most official view of how the Court views their significance. Model cases are seen as a supplement to guiding cases, because they are merely persuasive and the courts can refer to them, but they are not binding. They are needed on the provincial level, because of the uneven social, economic and legal development within the country.
Recent model cases issued by the Court
In the past six months, the Court has issued model cases on:
- Intellectual property rights;
- Consumer protection;
- People’s livelihood (two sets);
- Domestic violence;
- child sexual abuse;
- food and drugs.
The Shanghai Higher People’s Court recently issued model cases on financial cases.
Why are the courts using model cases?
Model cases are intended to be educational, but the audience and content of the instruction depends on the type of case. They generally have both a substantive and political purpose.
One important purpose of issuing them is to publicise the accomplishments of the lower courts.
Some model cases, such as the domestic violence cases, are distributed as a supplement to legislation and judicial interpretations.
Some model cases are intended more as political education or have political purposes. For example, the people’s livelihood model cases were intended to convey the following messages to different groups:
- to the political leadership the message that the Court has taken the initiative to deal with petitioning related cases.
- To ordinary people that the Court is implementing Party policy by taking measures to improve how the court system deals with the underlying issues causing petitioning.
- To the lower courts that these cases are a political priority.
Other model cases, such as the domestic violence cases, have more substantive messages to convey to the lower courts, lawyers, and the general public, but also have a political purpose:
- the scope of persons to be protected under domestic violence civil protection orders should be expanded to include the elderly and minors;
- thorough the model cases, the Court is providing guidance for judges about what can be considered evidence of domestic violence;
- guidance about the types of behavior that can be considered to be domestic violence, to clarify that domestic violence goes beyond more physical abuse; and
- courts should consider the impact of domestic violence when making custody or other decisions.
- It is also sending a message to women’s organisations and the general public that the Court is taking domestic violence issues seriously.
Some model cases are used as examples of correctly decided cases. This is particularly true of model cases issued to accompany a new judicial interpretation.
Trends in the use of model cases
A greater use of model cases can be expected, because the Court leadership considers model cases an important supplement to legislation, judicial interpretations, and guiding cases. With the trend of increasing litigation involving more difficult issues, it is likely that model cases will continue to fill the substantive gap that Chinese judges face when deciding cases in the face of inadequate Chinese legislation. However, it does not mean that China is adopting a common law system of precedent, but is still working on its own approach to using case law.
Susan Finder is a former legal academic and practitioner with 20 year’s experience observing the Supreme People’s Court. She maintains the Supreme People’s Court Monitor, the best source of information on the institution.