With Notice no. 289, in force since December 1st, 2021, the Supreme People’s Court of China adopted important measures to introduce in China the “Doctrine of Precedent”, or “Stare Decisis” (called as 类案同判) in judgments. The “Doctrine of precedent”, typical of common law systems, acknowledges that awards issued by Courts act as “source of law”, so that following awards on the same matter must follow the precedents of earlier cases and issue the judgement according to them. It is not a mere “persuasive authority” which is findable also in Civil Law Systems, because the Court judging the following case must not take a different decision on the case where the earlier case has similar circumstances.
Article no. 9 of the Notice no. 289 states that an awarded case, similar in terms of basic facts and applicable laws, is able to be deemed as “Guiding Case” and to bind the decision of a following case, which must be judged by the Court according to the principles of the “Guiding Case”. However, article no. 9 states also that the guiding case must not act as “basis” (依据) of the decision, but it can act as “ground” (理由) for the award.
The impact of the reform will be significant. In its history, China never granted any binding or persuasive force to judgments issued by the Courts. Chinese Law System is considered – and it is, indeed – a Civil Law System. Moreover, by the introduction of the Chinese Civil Code (in force since January 1st, 2021), China strengthened a “Civil Law approach” in its system of sources of law, where only laws, regulations and administrative measures duly approved by competent legislative and administrative bodies has the power to regulate society and people’s life.
In fact, the introduction of the “Doctrine of Precedent” in China is an implementation of the “Rule of Law” expressly mentioned by Chinese Constitution as basis for the whole Chinese legal system. In other words, the scope of the reform is to standardize the application of the law, by avoiding different judgments for similar circumstances, though the Courts has the power (and the duty) to make an award adherent to the specific circumstances of the case, where the precedent will act as “ground” to explain the decision and may not only refer to the precedent as “basis” of its decision.
The new regulation will strengthen current provisions on standardization of judgments in China. Thus, article no. 6 of the Notice no. 289 clarifies when the Court must handle a similarity search while handling a case: amongst them, the article no. 6, paragraph no. 8 states that where any party of the trial (the public prosecution organs, parties, and their counselors) submit a Guiding Case or the Supreme People’s Court’s effective similar judgment supporting their claims, the Court must consider whether there is “similarity” and must furnish the reason of its evaluation. Failing of explain reasons of the similarity evaluation is considered as ground for appeal the judgment. However, it is stated that a “Similar Case” search may only looked for within Guiding Cases issued by the Supreme People’s Court and effective judgments of the Supreme People’s Court.
