On July 27, 2020, the Supreme People’s Court of China (“SPC”) issued the “Guiding Opinions on Unifying the Application of Laws and on Strengthening Searches for Similar Cases (Trial Implementation) (关于统一法律适用加强类案检索的指导意见(试行))” (“Guiding Opinion”), which took effect on July 31, 2020. The Guiding Opinion mainly codifies but also expands upon recent initiatives by judicial authorities to encourage future courts to consider prior case decisions when reaching their conclusions.
As China’s legal system is based on Civil Law principles, Chinese judges have traditionally relied almost exclusively on laws, and to a lesser extent formal judicial opinions and other documents that function like implementing regulations. While non-binding, such opinions are normally highly persuasive to local courts. But they typically address only a limited range of issues, thereby leaving many questions of law unsettled.
To ensure more consistent handling of cases involving similar facts, particularly in relation to IP matters, the SPC has for a number of years encouraged lawyers and judges to insert citations to earlier influential decisions. Legally speaking, these prior decisions have not been deemed binding on future cases, and they have only been considered as a “reference”. But the new Guiding Opinion departs from prior practice by encouraging local judges to both search for relevant case decisions and refer to them when issuing their judgment.
The Guiding Opinion distinguishes between cases that local courts are required to follow and those they are not. For now, the only cases deemed as binding are so-called “Guiding Cases” (指导性案例) published by the SPC. Such cases may be drafted and issued by the SPC, or they may be issued by local courts and designated as binding by the SPC following review.
Starting 2011, the SPC has issued 139 “Guiding Cases” in 24 instalments. Among them, 25 directly concern intellectual property protection. The Guiding Opinion provides that Chinese courts should follow Guiding Cases when issuing their judgment, except in cases where the Guiding Case in question conflicts with new laws, administrative regulations or judicial interpretations, or where it has been replaced by a new Guiding Case.
Courts are otherwise encouraged, but not required, to follow other types of cases, which the SPC categorizes as follows:
- SPC judgements on specific cases;
- “Typical Cases” (典型案例) selected and so-designated by the SPC;
- Decisions issued by People’s Courts at the provincial level in the same jurisdiction where a dispute arises; and
- Decisions issued by People’s Courts at the next higher level, and prior decisions of the same People’s Court as the pending case.
To the extent a court wishes to deviate from prior decisions, the Guiding Opinion encourages it to explain its reasoning in its decision.
Finally, the Guiding Opinion recognizes two separate online databases of decisions as authoritative:
- China Judgments Online (中国裁判文书) and
- the Database of Chinese Trial Cases (审判案例数据库).
A translation of the Guiding Opinions prepared by SIPS is available here.