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【Journal Name】 China Law
【Title】 There are seven major issues concerning establishment and improvement of the system of case guidance
【Author】 Zhou Daoluan【Area of Law】 Justice
【Year】 In 2009【Issue】 3
【ESummary】 100
【Full text】 2013/1/24 15:29:21
【Remark】 1510090321
【Reference】   
  As far as the first issue is concerned, I think while talking about the system of case guidance, we should ascertain what is the system of case guidance, namely what is the concept of the system of case guidance As cases or legal precedents are very much mentioned, then, what a system is the system of case guidance mentioned in our “second five-year reform program”? As far as what I can personally understand, the definition of cases or legal precedents by the “second five-year reform program” refers to judgments given by People's Courts that are recognized by the Supreme People's Court, that have been published in the Supreme People's Court Gazette, that are of a reference value to the adjudication of similar cases, and that have taken legal effect. The concept I have just mentioned is in exclusion of the cases promulgated by local People's Courts at all levels, the relevant cases promulgated by the Supreme People’s Court, and, as what we are mentioning here, the cases referred to by China National Judges College as well as some publications, such as the People’s Justice, and also legal research groups. These cases do not belong to the legal precedents defined by the “second five-year reform program”.

Is the role of case guidance on earth important? As I see, some specialized publications, some articles and the speeches given here today have made different comments on it.|think that the legal precedents promulgated by the Supreme People's Court are of important reference value to the work of adjudication by courts at lower levels. Why should I say so? Although China is not a country applying the case-law system, and legal precedents are of no legal binding force in China, legal precedents are typical, authentic, impartial and authoritative and are of other characteristics, and are also specific, visual and directly sensible, as they are selected from among large numbers of cases, as they are typical examples of judgment in criminal, civil and other cases tried by law or judicial interpretations, and as they are of profound legal significance. Therefore, legal precedents are well received by all courts.

The second issue I would like to talk about here is: What questions in terms of understanding should we manage to solve in establishing the system of case guidance? I think a first question to this effect is the question of whether we should establish a system of case guidance or a system of guidance of legal precedents. As what was mentioned just now, what are legal precedents? Speaking from the perspective of traditions, legal precedents are one of the origins of common law. Moreover, the stare decisis doctrine is an established principle. The so-called stare decisis, as I can understand, means that the legal principles or rules contained in judgments given by courts at higher levels or by any court will be of legal binding force to future work of adjudication by courts at lower levels or by the same court.

Presently, the two leading law families in the world-the Anglo-American law system and the Continental law system-are in a trend of mutual integration. Therefore, some countries applying the Continental law system are also developing their own systems of precedents today. For China, it is generally a country applying the Continental law system. But for Taiwan as part of China, it created its own system of precedents during the rule of the Northern Warlords (1912-1927).Moreover, the 1910 Organic Law of Courts expressly provided that all court verdicts of decisions would be of legal binding force. In ensuing years, a democratic government was established in China, and it also developed a system of precedents. For Macao also as part of China, it has also developed many forms of jurisprudncia, or judicial opinions. So, although it is a region applying the Continental law system, Macao has also developed its own system of precedents. What is questionable is that whether China can develop a system of precedents. I do not necessary mean that since China is generally a country applying the Continental law system, it is not in a position to develop a system of precedents. I think for China, the No. 1barrier to the establishment of a system of precedents lies in the law. Namely, the absence of the relevant legal grounds is the biggest barrier to it. The community of jurisprudential theory is of such an opinion that it is advisable for the Supreme People's Court to establish a system of precedents as an unofficial origin of law. However, under the current judicial system, it is impossible for the Supreme People's Court to enact new legal norms to enable this system to have legal binding force, and to enable it to be quoted as legal basis for adjudication in judgments. The Standing Committees of People's Congresses are responsible for supervision over the work of courts. Both People's Congresses and their Standing Committees have the authority to enact WS.

A second question to this effect is that as a result of historical and systemic causes and other causes in many respects, the overall professional quality of Chinese judges is generally not high. Therefore, given their existing proficiency and capabilities of justice, they are notable enough to assume the task of systemic creation and exploration.

The third issue I would like to talk about here is that the judicial environment in China is not favorable either. In the adjudication of cases, People’s Courts are often subject to interference by local governments and departments, and the significance of impartiality of courts is not high enough.

In think that in order to maintain the authoritativeness of judicial interpretations and unity of application of law, judicial interpretations can only be made by a single authority, not by many authorities. I am supportive of the opinions on this issue expressed by other participants in this symposium. Namely, legal precedents in the form of judicial interpretations can only be officially promulgated by the Supreme People’s Court.

So, only with legal precedents promulgated by the Supreme People's Court, can we determine the criteria or standards for selecting precedents and determine the origin of precedents. As far as I know, the Supreme People’s Court does not have ready standards for the selection of legal precedents. With the successful experience over the past more than 20 years, it will be feasible to determine a set of principled standards for selecting legal precedents and compiling them into a collection.

I believe that the standards for selecting precedents can include the following contents: Firstly, the legal precedents selectable must be those that have taken legal effect. Secondly, they must be typical and somewhat representative precedents. Thirdly, they must be new cases emerging in the process of reform and opening up in which the application of law is relatively difficult. Fourthly, they must be cases in which the application of both law and judicial interpretations is correct. And fifthly, they must be precedents with a reference value, in accordance with the spirit of legislation and the intent of law, and also in exposure of deficiency of law.

I personally consider that the trial by intermediate courts is very important.

The fourth issue I would like to talk about here is the designation of institutions and personnel for the selection of precedents. I hereby propose that it is advisable to establish a precedents editing board under the Adjudicative Committee of the Supreme People’s Court, which should particularly take charge of the work of selecting and compiling cases, promulgating precedents, repealing existing ones, doing editing, etc.

The fifth issue would like to talk about here is the procedure for selecting and compiling precedents. It is advisable for editing units or the gazette to recommend typical cases. After recommendation, the cases chosen should be submitted to the precedents editing board for review and discussion. If the cases are considered to be incompliance with the requirement, they can be submitted to the authorities in charge for approval. Specifically, the cases of different natures can be separately referred to different authorities-the Supreme People's Court and its subordinate specialized committees for civil or administrative affairs, etc.-for deliberation. Where there occur different opinions on the cases, the cases in question can then be referred to a plenary session for final review and affirmation.

The sixth issue I would like to talk about here is the form of promulgation. The legal precedents selected can be promulgated in the form of bulletins, with carrier still being the Supreme People’s Court Gazette

The seventh or final issue would like to talk about here is the compilation and publication of collections of guiding precedents. From the perspective of the countries applying the Anglo-American law system, an important external condition for compliance with legal precedents in common-law countries is the existence of collections of legal precedents in large quantities. Judicial precedents will be able to play their roles only after they are compiled and published in collections. When laws visiting some countries applying the Anglo-American law system, such as Britain and Brazil, I saw that their bookshelves were filled with two types of books-firstly, laws, and secondly collections of legal precedents in large quantities.

In Taiwan, the “supreme court “has essentials of judgments while the “administrative court” has precedents of judgments
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