GUIDING CASES AND BUREAUCRATIZATION OF JUDICIAL PRECEDENTS IN CHINA

Although China’s socialist legal system largely follows the civil law tradition, the Supreme People’s Court (SPC) nevertheless established a novel guiding case system in 2010. According to the SPC’s specific rules, all courts should refer to a guiding case in the reasoning part of a judgment if it is similar to the case at hand, with the proviso that under no circumstances can a guiding case be treated as a legal basis for judicial decision-making. In the literature, much attention has been paid to the guiding case system, particularly to its similarities with precedential case systems in both common law and civil law traditions. However, primarily based on my extensive fieldwork in China’s courts through in-depth interviews with judges, this article finds that guiding cases hardly perform the function of a type of case law. Moreover, judges are generally reluctant to refer to a judicial precedent, including a guiding case, in the process of making a judicial decision owing to the fact that China follows a collective model of judicial decision making and judges are discouraged from making clear and independent statements of the rule of law from cases that come before them. In addition, this article reveals that a guiding case system has effectively crystallized a bureaucratic system of judicial precedents in which guiding cases are at the top of the pyramid. Such a bureaucratic system is mainly grounded on the political hierarchy of the courts and a nationwide typical-case-selection movement in which the lower courts are politically responsible for submitting a certain number of typical cases selected from within their respective jurisdictions to the SPC annually. Finally, this article establishes a bureaucratic theory of judicial precedents centered on guiding cases which clearly fits into China’s authoritarian context and is substantially different from any other type of case law in a liberal context.