Translation: Supreme People’s Court Guiding Opinions on Unifying the Application of Laws and on Strengthening Searches for Similar Cases (for Trial Implementation)
Effective July 31, 2020
Original Chinese available at: http://www.court.gov.cn/fabu-xiangqing-243981.html
In order to unify the application of the law, improve judicial credibility and integrate actual trial experience, the following opinions are put forward with regard to the work by People’s Courts in searching for Similar Cases.
- The “Similar Cases” mentioned in this opinion refer to cases where the judgment of a People’s Court has already taken effect, which are similar to pending cases in terms of basic facts, the focus points of dispute, questions of legal application, etc.
- Where a People’s Court handles a case featuring one of the following circumstances, it should conduct a search for Similar Cases:
- The case is intended to be submitted for discussion to a professional (presiding) judge meeting or to an adjudication committee;
- There is a lack of clear judging rules or uniform judging rules have not been formed;
- The president of the Court or the head of the division has requested a search for Similar Cases in accordance with its powers of trial supervision and management;
- Other circumstances where Similar Cases need to be searched.
- Where a case-handling judge relies on China Judgments Online / the Database of Chinese Trial Cases to search for Similar Cases, the judge is responsible for the authenticity and accuracy of the search.
- The scope of Similar Case searches will generally include the following:
- Guiding Cases published by the Supreme People’s Court;
- Typical Cases published by the Supreme People’s Court, and judgments of the Supreme People’s Court that have entered into effect;
- Reference Cases issued by the Higher People’s Courts of the same Province (Autonomous Regions, Municipalities Directly Under the Control of the Central Government) as the pending case, and judgments of this Higher People’s Court that have entered into effect;
- Cases of People’s Courts at the next higher level and cases of the same People’s Court [as the pending case] where those judgments have entered into effect.
In addition to Guiding Cases, priority shall be given to searching for cases within the past three years; where a Similar Case has already been retrieved from the next level in the case hierarchy[i], no further search is required.
- When searching for Similar Cases, it is permitted to use methods such as keyword searches, case law related searches, case related searches, etc.
- The case-handling judge should assess similarities and compare the pending case against the search results to determine whether they are Similar Cases.
- For cases where this Opinion provides that Similar Cases should be searched, the case-handling judge shall describe circumstances of the Similar Case search during the deliberations of the collegiate panel, during the discussions of the professional (presiding) judge meeting and in the hearing report, or the judge shall prepare a special Similar Case search report, which shall be filed in the case archives for reference.
- The description or report on the Similar Case search should be objective, comprehensive and accurate, including contents such as the subject, time, platform, method and results of the search, the key points in the judgment of the Similar Case and the focus points under dispute in the pending case, etc. It should also analyse and explain the application of the results, including whether the Similar Case has been followed or referred to.
- If the Similar Case that has been retrieved is a Guiding Case, a People’s Court should follow it when issuing its judgment, except where it conflicts with new laws, administrative regulations or judicial interpretations, or where it has been replaced by a new Guiding Case.
Where other Similar Cases are retrieved, a People’s Court can refer to them when issuing its judgment.
- Where a public prosecution agency, parties to a case and their counsel, agents ad litem, etc., submit Guiding Cases as grounds for prosecution / a claim, the People’s Court should respond whether it followed them and why in the reasoning section of the judgment document. Where other types of Similar Case are submitted as grounds for prosecution / a plea, the People’s Court may respond by means such as a clarification, etc.
- Where there are inconsistencies in the application of law in the retrieved Similar Cases, a People’s Court may consider factors such as the level of the court, the time of the judgment, whether it has been discussed by the adjudication committee, etc., and reach a resolution through a dispute resolution mechanism on the application of law, in accordance with provisions such as the Implementing Measures of the Supreme People’s Court on the Establishment of a Disagreement Resolution Mechanism for the Application of Law, etc.
- People’s Courts at all levels should actively promote the work of searching for Similar Cases, they should strengthen technical research and development and application training, and they should improve levels of intelligence and precision in pushing Similar Cases.
All Higher People’s Courts should make full use of modern information technology to establish trial case databases, laying a solid foundation for the construction of a unified and authoritative trial case database nationwide.
- People’s Courts at all levels should regularly summarize and organize information on Similar Case searches, publishing it in a fixed format in their own Court or in the Courts of their jurisdiction, providing it to judges as a reference in handling cases, and submitting it for the record to the trial management department of the People’s Court at the next higher level.
- These opinions will be implemented on a trial basis from July 31, 2020.
Translation by SIPS.
[i] Translator’s note: the “hierarchy” of cases referred to here has Guiding Cases of the Supreme People’s Court at the top, followed by Typical Cases of the Supreme People’s Court and other cases of the Supreme People’s Court whose judgments have entered into effect, then cases of the Higher People’s Courts, etc., in descending order.