The Implementation of the Chinese Guiding Cases System: Experiences of Several Precursors

中國案例指導制度的執行──來自某些先行個案的經驗

Student thesis: Doctoral Thesis

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Author(s)

  • Xuanxi LIU

Related Research Unit(s)

Detail(s)

Awarding Institution
Supervisors/Advisors
  • Xin Frank HE (Supervisor)
  • M Joseph Anthony COORAY (Supervisor)
Award date11 Jan 2016

Abstract

The Chinese Guiding Cases System has drawn a great deal of attention from scholars. Some believe that it will bring about significant changes to the Chinese legal system and reshape the process of judicial decision making, while some others cast doubts on its feasibility. Its introduction to China has also triggered discussions on the rising status of “cases” as a source of (quasi) law in different jurisdictions and plausible convergence of legal systems. But there is little empirical research on its functioning, without which one could not understand its development trajectories and draw any meaningful conclusions.
This dissertation examines the implementation of System and evaluates its effectiveness based on fieldwork investigations in three courts at different levels and locations. It finds that the System did not work well in any of them. In the Trial Court A, it was not used because very few of the judges were aware of the System. In the High Court C, only in a case the judge used two “guiding cases.” However, the success of that case revealed the limits of the System in a backhand way since the reasons for its success are accidental. In addition, the System has little impact in the trial courts of its jurisdiction. In the Trial Court B, where an experimental “Precedent System” had been initiated, the experiment had already been suspended after the court’s president initiating the reform left the post. While the reasons for the failure seem to vary across different investigated courts, one underlying reason in the implementation of this System is the politicization and bureaucratization of Chinese courts.
In explaining this ineffectiveness, I demonstrate that there are significant differences between the roles of trial courts and higher-level courts. These differences have been overlooked in the policymaking of the System due to the hierarchical structure of the Chinese court system. Moreover, I suggest that the “court” should not be regarded as a monolithic professional community. Instead, there is a structured division between the political bureaucrats (court leaders) and the regular judges. On the one hand, both groups have significant roles in policy formation and implementation. On the other hand, they have different identities, interests, and attitudes with respect to judicial reforms. When the System is implemented, judges often hold a pragmatic attitude but bureaucrats try to use it instrumentally. Without paying attention to this structural issue, the policy makers of System may find a huge gap between the expected function and the reality.
Specifically, the System has been designed to enhance the consistency of judicial decisions by providing Guiding Cases for major complex and difficult cases and, at the same time, to enlarge the room for judicial independence. However, for the rank and file judges, two competing mechanisms for handling hard cases exist — the adjudication committee and the Instruction Seeking (請示). They employ them to avoid their responsibilities in deciding cases with the “political effect” and “social effect” in mind. But the Guiding Cases could not serve the function and thus not often used. Meanwhile, for leaders of the courts (bureaucrats), who control most resources (budget, personnel), they are more interested in their own political achievements. Thus the System only receives rhetorical and symbolic commitment.
In general, the System designed by the central level in China differs from those spontaneously formed. Examining its implementation has important policy and theoretical implications. The effectiveness of the System may be viewed from the perspective of legal pluralism: various rules from different sources are competing in the decision making process of the Chinese courts. Moreover, the status of courts and their decisions, the “cases”, should be understood through the politicized role of the judiciary. The bureaucratization and politicization of Chinese courts determines that the implementation of the System inevitably encounters many obstacles. Therefore, the experiences drawn from case law (mechanism) in foreign jurisdictions may not be applicable for China. Consequently, this study not only sheds light on the nature and function of the System, but also suggests that the policy formation and implementation in Chinese judiciary should be understood in a context in which politics, law, and socio-economic conditions are intertwined.