FAQs on the Supreme People’s Court issued the first “guiding cases”
Q: What is the status of the first “guiding cases”?
A: The guiding cases just ushered in by the SPC is different from the decisions published by the SPC or any of its functional divisions before mainly in that these decisions are actually officially recognized as an authority of law (or source of law) which judges can rely on when interpreting laws (although it’s also very possible that some judges simply rely on these decisions without carefully analyzing their relationship with the existing relevant statutes, as already indicated by the way the first guiding cases are presented by the SPC, as I have mentioned in my very first post.) and are allowed to cite them in the decisions, although only as grounds of reasoning. Sure, non-guiding cases can also be taken into consideration by judges when deciding cases and accordingly have some effect as a source of law, but if not disclosed, such effect is equal to nothing as judges cannot be held accountable for such consideration and such cases cannot obtain a formal authority and be consciously interwoven into the evolving texture of law. When the decisions of the court, especially those really enriching the existing legal system, are not interwoven into the existing law, they can be ignored at will and get lost with the time passing and the law-making process is monopolized and dominated by the legislature or the government or the party. Such artificially made laws cannot be satisfactory and there would be no hope for the judiciary to raise its importance in the government structure, if it cannot obtain sufficient power in shaping the law. The current practice of judicial interpretation in China is a distorted mechanism of judicial law-making, which cannot legitimately, efficiently and sustainably strengthen the position of the Chinese judiciary. Although the guiding case mechanism is cumbersome and defective, and far from efficient at this moment, it’s the first step toward the right direction and can provide an important impetus and chance for the Chinese judiciary to practice working with precedents under its long tradition of written law, or I would rather say, legal positivism, which I would further talk about. And I believe with more experience in this regard accumulated, the defects of the current guiding case mechanism will be more and more clearly exposed and hopefully then a truly reasonable mechanism of judicial law-making can be established in China. This might also provide preconditions for the solution of many other problems in China’s political and legal structure.
Q: Is the conduct of the first “guiding cases” a kind of making law?
A: In China, it’s actually a manifestation of the prevailing existence of legal positivism (Gesetzespositivismus) in daily judicial practice, and one with roots not only in the special political reality of China, but also in the intellectual ignorance (and hence arbitrary and artificial denial) of the inherent and undeniable rule-forming capacity of the judicial process. According to the Constitution, the SPC is not mandated with the power to interpret the law, which is mandated to the Standing Committee of the NPC. When the NPC has delegated the power to interpret the law in judicial process to the SPC, the SPC has since used this power by issuing statute-like judicial interpretations. Both indicate an ignorance of the undeniable power of the individual judges and courts to interpret the law when deciding cases (of course both have their political and historical backgrounds. However, I would argue that no arguments in terms of political or historical reality can justify intentional denial of predetermined objectiveness, or in German terminology, Natur der Sache).
As it’s still a deeply entrenched concept in China that judges shall not make law, it’s required that only officially specified authorities may be applied as grounds of decision, hence the string citation of statute provisions (the disclosure of applied judicial interpretations has been possible only after the end of the 1980s) in the “decision” part of each Chinese court decision. However, the real needs encountered in daily judicial process require the judges to take other elements into consideration, including constitutional provisions, customs, social morals, trade usage, etc. And now the guiding cases are becoming a new entry. I agree with Mike that the reasoning part could provide important leeway for the court to stuff the general provisions of codes and statutes with new ideas, thus breaking the rigid legal positivism to some degree (even the development of a constitutional jurisprudence is imaginable, as Mike opined.). However, this must occur in a disciplined and structured way, especially a way that can be examined and discussed, thus guaranteeing a necessary balance between flexibility, capacity of growth and stability and predictability. This is possible in, say, Germany due to, inter alia, the long tradition of Rechtsdogmatik. But as I have analyzed in my first post, such relationship between the new elements introduced by the guiding cases and the relevant provisions of law is at most only very vaguely understood by the SPC. It’s not a matter of coincidence that in not rare decisions of Chinese courts the reader would be baffled to find that the cited provisions in the decision part are not mentioned in the reasoning part at all and appear only very abruptly in the end of the decision. Using Don’s way of description, the reality is often that, the court may name A, B and C in the reasoning part, but then naming D and E as the grounds of its decision. It would be ok if in the reasoning part the court convincingly explains that A, B and C are the right interpretation of D and E, and one does find such good court decisions in China, but they are rare.