Academic journal article Harvard Law Review

Chinese Common Law? Guiding Cases and Judicial Reform

Academic journal article Harvard Law Review

Chinese Common Law? Guiding Cases and Judicial Reform

Article excerpt

Half a century ago, writing in this Review, Professor Jerome Cohen traced the "gradual abandonment" of the judicial- independence ideal in the early years of Chinese Communist Party rule. (1) Despite this trend, Cohen suggested, China's leaders may in time "acquire a deeper appreciation of the virtues of functional specialization, professionalization, and judicial autonomy." (2) A half century later, China's judicial reform record is mixed. While the country has made considerable strides in building a more competent and professional judiciary, (3) statist and populist forces have also deeply shaped the trajectory of reform. (4)

This Note assesses a relatively recent innovation in China's judicial reform project: the use of "guiding cases" to achieve greater adjudicative consistency across lower courts. (5) Since 2010, China's highest court has converted fifty-six judicial opinions into what are intended to be de facto binding decisions that courts "at all levels should refer to ... when adjudicating similar cases." (6) Traversing subjects as wide-ranging as securities, land use, homicide, and graft, these guiding cases offer a potentially important new tool for the roughly 200,000 jurists charged with administering China's legal system. (7)

Guiding cases have generated significant discussion among scholars and officials. Some proponents cite their potential to fill statutory lacunae, unify legal standards, improve judicial efficiency, and limit judicial discretion. (8) Others point generally toward returns to judicial flexibility, (9) professionalism, (10) and integrity. (11) Meanwhile, less sanguine commentators have raised doubts as to China's institutional readiness, (12) while others--even supporters--have focused attention on constitutional and political difficulties in the system's design. (13)

Perhaps due to the elevated role of "case law" in many non-Chinese legal systems, analyses of guiding cases have often taken on a distinctly comparative flavor. Some have likened guiding cases to common law precedents, arguing that imbuing cases with "stare decisis-like authority" (14) may bring China's civil law system into closer alignment with the Anglo-American legal tradition. (15) Others have noted civil law analogs (16) or sought to distinguish guiding cases as distinctively local. (17)

This Note aims to accomplish two goals in two parts. The first is to illume a clearer image of guiding cases and their contemplated role within China's distinctive legal and political structure. The emerging portrait is that of a still- nascent system that has struggled to establish itself within China's hierarchy of legal authority. Still, appreciable progress has been made. The second goal is to place guiding cases in comparative context, finding that despite widespread "common law" rhetoric, systems of this sort are hardly foreign to civil law. In fact, unqualified invocations of the common law can mislead more than they inform. The Note ends with parting thoughts on future reform.

I. THE GUIDING CASE SYSTEM

Part 1 begins with a brief overview of the role of cases in modern Chinese legal history and the various constraints facing the Supreme People's Court. It then turns to the history, framework, and impact of guiding cases, with attention to challenges that have shaped, and will likely continue to shape, their development.

A. Forerunners

In its various forms, "case law" has played a longstanding but ancillary role within the Chinese legal tradition, dating back as early as the Western Zhou (eleventh century-711 B.C.). (18) The legal systems of premodern China were primarily code based, and though ancient China boasted a rich array of case compilations, (19) as did Republican China (1912-1949) and its case reporters, (20) legal cases have generally been supplementary under the primacy of legal codes.

The story of modern Chinese case law begins in the early 1980s, shortly after the country began rebuilding its legal system from the rubble of the Cultural Revolution. …

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