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China & Hong Kong Legal Research Guide: Case Law

 

Supreme People's Court

Image: Supreme People's Court of the Peoples Republic of China, Beijing, China.

Image source: Wikipedia

Chinese Court Structure

China's Court system comprises the Supreme People's Court (SPC), People's courts and People's procuratorates.

The Supreme People's Court is China's highest Court - comprising over 350 judges and composed of different courts - such as civil, criminal, administrative, and economic. More on the SPC from the State Council and the National Congress.

The 1980 Organic Law of the People's Courts of the People's Republic of China established the compositions, functions and the hierarchy of the courts in the People's Republic of China.

The People's Procuratorates are state supervisory authorities that investigate and prosecute potential cases that endanger national or public security. The procuratorate hierarchy comprises the Supreme People's Procuratorate, local people's procuratorates and military procuratorates. The people's procuratorates have four levels: the grassroots, intermediate, higher and supreme people's procuratorates. The Supreme People's Procuratorate (SPP) is the highest procuratorial organ of the state and represents the state in independently implementing the right of prosecution. It is responsible to the Standing Committee of the National People's Congress.

Judicial Interpretation of Legislation

Legislation can be judicially interpreted without a specific case necessarily before the court. These interpretations provide lawyers, judges and researchers with invaluable information on the state of a legal issue or a disputed area of law. English versions of judicial interpretation of legislation is available on:

  • PKU Law (UniMelb staff & student access) for individual pieces of legislation - from the Laws & Regulations menu.
  • Westlaw China (UniMelb staff & student access) - interpretation by the Supreme People's Court and Supreme People's Procuratorate. From the Laws & Regulations tab on the top menu, select Judicial Interpretations. These can be searched or browsed.

About Chinese judicial decisions

As with most civil law jurisdictions, judgments play a minimal role in subsequent judicial proceedings. Decisions are typically short - they list the arguments from each side, factual findings and the judgment. They rarely cite cases, and often do not refer to legislation. Higher courts are, however, more likely to explain their application of the law.

"The current Chinese legal system does not formally recognise cases or judicial precedents as a source of law. However, in practice, cases are often cited as persuasive authority and some courts follow judicial precedents to decide issues when statutes are vague. In particular certain decisions of the Supreme People's Court that can be read as generating legal norms have binding effect on lower courts." (Luo, Wei, Chinese law and legal research (Hein, 2005) 105)

See a useful blog post from the People's Supreme Court Monitor, 'Which Chinese cases are most persuasive?' (Sept 16 2016), which states that as China constructs its own case law system, Chinese courts are paying more attention to the use of precedent in considering how to decide cases, but clear rules on a hierarchy of precedent have yet to be settled. This blog links to other blog posts and articles on the issue. SPC Guiding Cases are highly persuasive - see box below on Guiding Cases.

Guiding Cases

As well as judgments (also called 'court opinions') the Supreme People's Court also provides guiding opinions / cases, which are considered highly persuasive. These opinions provide researchers with invaluable information on the state of a legal issue or a disputed area of law.

The SPC started issuing guiding cases in 2011. These are selected from SPC judgments and other courts throughout the country. As at March 2017, there have been 87 cases designated as guiding. See Stanford Law School China Guiding Cases Project's website for English translations of:

Guiding Cases are published in the monthly SPC Gazette.  They are available on the following databases:

  • the SPC official website - Guidance Case database (open access). This is a completely up to date database - up to Guiding case No. 87.  In Chinese - but simply click 'English' at the top of the page to have the page and cases translated into English. 

  • in English on the Stanford Law School China Guiding Cases Project - Guiding Cases in Perspective (open access). This database is up to Guiding Case No.78, but the database does not include all guiding cases.

  • in English on PKU Law (UniMelb staff & student access). Select Judicial Cases, then Guiding Cases or Model Cases from the menu on the left of the page.This database contains all guiding cases up to No.77.

See also Vai Lo Lo, 'Towards the Rule of Law: Judicial Lawmaking in China' (2016) 28(2) Bond Law Review (open access). The author notes that 'the Supreme People’s Court has adopted the system of guiding cases, to which lower courts should ‘refer’ in adjudging similar cases. The introduction of the system of guiding cases has generated scholarly and professional interest in whether China will have case law as another source of law. This article examines judicial interpretations and the system of guiding cases and assesses the role of judicial lawmaking in China’s efforts to reform its legal system'.

Where to find Chinese judgments

All Chinese courts must post their judgments on the open access Supreme People’s Court (SPC) online platform, China Judgements Online. As of August 29, 2016, 'judgment documents' that the courts must post online include not only criminal, civil, and administrative judgments, but also other judgment documents such as payment orders and state compensation decisions. Judgments muct be uploaded to the site within 7 days. There are millions of judgments on this platform. See more about the Rules of Online Publication of Court Judgments on Global Legal Monitor from the Law Library of Congress.  

China Judgements Online (open access)

  • This site is in Chinese - there are no official English translations of decisions. However, Google Translate can show the site in English, where you can search and browse for judgments. If using Chrome, simply click the 'translate this page' icon in the righthand corner of the top menu bar. This site is completely up to date. Note that for non-Chinese speakers, it is very difficult to search this database - however, browsing is very effective. 

PKU Law (UniMelb staff & student access)

  • The English version of this platform contains legal information intentionally tailored to the needs of foreigners and foreign organisations working in China. It includes;
    • approximately 2000 'representative' decisions that reflect current and predicted future trends in Chinese legal practice.
    • judicial interpretation of legislation. These are linked to from the legislation.
  • The Chinese version is Beida Fabao- Cases Database, which contains civil, criminal and administrative cases.  A two-way hypertext link function links cases to all related laws and regulations, and related cases.

See more about PKU's English and Chinese cases databases.

Westlaw China (UniMelb staff & student access)

  • The English database version has about 4,600 case headnotes cover legal topics such as Anti-unfair Competition, Arbitration, Civil Law, Civil Procedure, Copyright, Trademark. Note that these are headnotes only - not full text judgments. The headnotes link to the full text judgments in Chinese, and to the applicable legal issue in the English Legal Topics tab.
  • The Chinese  database contains almost 2,000,000 full text cases sourced from the Supreme People’s Court and local courts in 31 provinces, municipalities directly under the Central Government and autonomous regions, as well as special courts such as maritime courts. Cases can be browsed or searched.

See more on the cases content on Westlaw China, the comparison of Chinese and English content, and the User Guide on searching Westlaw China.