Guiding Cases Analytics TM

Transcription

1 Guiding Cases Analytics TM TM 指导性案例分析 Dr. Mei Gechlik Founder and Director, China Guiding Cases Project Issue No. 2 (July 2014) Guiding Cases Analytics TM analyzes trends in the Guiding Cases selected and released by China s Supreme People s Court and identifies important issues for further study. Expected to be an essential supplement to the qualitative analysis of cases, Guiding Cases Analytics TM will help deepen our understanding of China s court system and case law. TM 指导性案例分析对中国最高人民法院所挑选 公布的指导性案例的发展趋势作出分析, TM 并确定值得进一步研究的重要课题 指导性案例分析有望成为案件定性分析的重要补充, 有助于加深我们对中国法院系统和案例法的理解 * * * Article 1 of the Provisions of the Supreme People s Court Concerning Work on Guiding Cases (the Provisions ), promulgated on November 26, 2010, provides: The Supreme People s Court shall determine and uniformly release as Guiding Cases those cases that have the effect of guiding adjudication and enforcement work in courts throughout the country. Article 2 of the Provisions lists the following requirements: The Guiding Cases referred to in this set of Provisions mean the rulings and judgments that have taken legal effect and which are cases that meet the following conditions: (i) are of widespread concern in society; (ii) legal provisions are of relatively general nature; (iii) are of a typical nature; (iv) are difficult, complicated, or of new types; [or] (v) other cases having a guiding effect.

2 2 Number of Guiding Cases Since 2011, the Supreme People s Court ( SPC ) has issued seven batches of Guiding Cases ( GCs ). The fifth and seventh batches have six and five GCs, respectively, while all of the other batches have four. In 2012, the SPC released eight GCs in total, followed by ten in 2013 and nine in the first two quarters of 2014 (see Chart 1). The growing trend shows the SPC s interest in using GCs as a tool to provide more guidance on adjudication. Chart 1: Number of GCs Issued per Quarter Areas of Law Covered by Guiding Cases Eight GCs cover criminal law, while four and three GCs cover company law and civil procedure law, respectively. Other areas of law listed in Chart 2 are covered by one or two GCs. Given that even Zhou Qiang, President of the SPC, admitted in his report to the national legislature that some courts had delivered wrong verdicts and that the credibility of the court system had been undermined, 1 the SPC s release of more GCs to provide lower level courts with better guidance on the application of criminal rules is welcome. It took a while for the SPC to release GCs covering areas that particularly capture foreign businesses attention. The first GC on patent law was not released until 2013 Q4 (Guiding Case No. 20) and the first two GCs on anti-unfair competition law were not released until 2014 Q2 (Guiding Case Nos. 29 and 30) (see Chart 2). Will the next release include a GC covering antimonopoly law? There are certainly good candidates. For example, Renren v. Baidu (2009), the first private lawsuit under China s Anti-Monopoly Law, and Rainbow Medical Equipment & Supplies v. Johnson & Johnson (2013), in which the Shanghai Higher People s Court had to exceptionally go through three hearings to handle the appeal case. What is interesting is that the two anti-unfair competition GCs Guiding Case Nos. 29 and 1 See, e.g., China s Chief Justice Warns of Weakness in Court System, available at

3 3 30 were released on June 26, 2014, three days after the release of the other three cases in the seventh batch. In each of the first six batches, all GCs that are in the same batch were released on the same day. Does this unusual arrangement reflect that the two anti-unfair competition GCs presented unique challenges to the SPC s Adjudication Committee and that it took the SPC a few more days to resolve them? It is worth noting that Guiding Case No. 30 is the longest GC released so far (see below). Chart 2: Number of GCs by Laws/Regulations Covered Related Legal Rules GC No(s). Total # of GCs Administrative Licensing Law 5 1 Administrative Litigation Law 5, 22 2 Administrative Penalties Law 5, 6 2 Anti-Unfair Competition Law 29, 30 2 Civil Air Defense Law 21 1 Civil Procedure Law 2, 7, 25 3 Company Law 8, 9, 10, 15 4 Contract Law 1 1 Criminal Law 3, 4, 11-14, 27, 28 8 Food Safety Law 23 1 General Principles of the Civil Law 15, 29 2 Insurance Law 25 1 Labor Contract Law 18 1 Law on Protection of Consumer Rights and Interests 17 1 Legislation Law 5 1 Maritime Law 16, 31 2 Patent Law 20 1 Regulation on Open Government Information 26 1 Road Traffic Safety Law 19, 24 2 Special Procedure Law on Maritime Litigation 16 1 Tort Liability Law 19, 24 2 Sources of Guiding Cases Article 4 of the Provisions provides: Any adjudication unit of the Supreme People s Court may recommend to the Guiding Cases Work Office any ruling or judgment that is made by the Supreme People s Court or local people s courts at any level and that has taken legal effect,

4 4 so long as such ruling or judgment is deemed by the said unit to meet the requirements set out in Article 2 of this set of Provisions. Any Higher People s Court or the Military Court of the People s Liberation Army may, following discussion and decision by the adjudication committee of the said court, recommend to the Guiding Cases Work Office of the Supreme People s Court any ruling or judgment that is made by the said court or by a people s court in its jurisdiction and that has taken legal effect, so long as such ruling or judgment is deemed by the said court to meet the requirements set out in Article 2 of this set of Provisions. Any Intermediate People s Court or Basic People s Court may, following discussion and decision by the adjudication committee of the said court, report to the Higher People s court level by level and suggest that the Higher People s Court recommend to the Guiding Cases Work Office of the Supreme People s Court any ruling or judgment that is made by the said court and that has taken legal effect, so long as such ruling or judgment is deemed by the said court to meet the requirements set out in Article 2 of this set of Provisions. Each GC is a summary prepared by the SPC to report the original ruling/judgment rendered by a court that can be from any level of China s four-tier system of regular courts or from China s special courts, which have jurisdiction to specifically handle military, railroad transportation, and maritime cases. Of the 31 GCs, 11 are based on rulings/judgments originally rendered by higher people s courts, nine by intermediate people s courts, eight by basic people s courts, two by the SPC itself (Guiding Case Nos. 7 and 20), and one by a maritime court (Guiding Case No. 31) (see Chart 3). Chart 3: Number of Rulings/Judgments Rendered by Different Courts Released as GCs The SPC has chosen relatively more rulings/judgments from Shanghai and Jiangsu (6 GCs each) for release as GCs. Following these two places are Zhejiang (4 GCs), Sichuan (3 GCs), Tianjin (2 GCs), Beijing (2 GCs), and the SPC itself (2 GCs) (see Chart 4 and Map 1).

5 5 Chart 4: Number of Rulings/Judgments Rendered by the Courts in the Following Provinces/Provincial-Level Municipalities Released as GCs Map 1: Number of Rulings/Judgments Rendered by the Courts in the Following Provinces/Provincial-Level Municipalities Released as GCs Does this distribution show that courts in these places, especially Shanghai and Jiangsu, display a higher level of competence and thus their rulings/judgments are more likely to be selected? If the answer is affirmative, it will not be a surprise. Chinese courts located in more developed areas can generally offer better recruitment packages to attract the best talent in the country and can provide current judges with better training. Five of the above-mentioned places have high GDP per capita in China (see Chart 5). Though economically lagging behind these five places, Sichuan is a prosperous province in Western China. The SPC may have purposefully chosen some cases from Sichuan to diversify sources of GCs.

6 6 Chart 5: GDP per capita and Number of GCs Provinces / Provincial-Level Municipalities GDP per capita (yuan)* Total # of GCs Tianjin 101,699 2 Beijing 94,253 2 Shanghai 90,765 6 Jiangsu 74,699 6 Zhejiang 68,594 4 Inner Mongolia 67,470 1 Liaoning 61,745 0 Guangdong 58,678 1 Fujian 58,058 0 Shandong 56,789 1 Jilin 47,207 0 Chongqing 42,978 0 Shaanxi 42,752 0 Hubei 42,686 0 Ningxia 40,185 0 Hebei 38,832 0 Heilongjiang 38,602 1 Xinjiang 38,110 0 Hunan 36,906 0 Qinghai 36,667 0 Hainan 35,468 0 Shanxi 34,899 0 Henan 34,187 1 Sichuan 32,517 3 Jiangxi 31,836 0 Anhui 31,795 1 Guangxi 30,218 0 Tibet 26,039 0 Yunnan 25,158 0 Gansu 24,438 0 Guizhou 22,982 0 * Source:

7 7 Facts and Reasons in Guiding Cases The SPC has consistently used the format of dividing each GC into six parts: (i) Keywords (to list keywords that indicate the nature of the dispute etc.); (ii) Main Points of the Adjudication (to include general principles prepared by the SPC that it expects other courts to refer to); (iii) Related Legal Rule(s) (to list the legal rule(s) considered in the GC); (iv) Basic Facts of the Case (to summarize the most important facts of the GC); (v) Results of the Adjudication (to report the outcomes of legal proceedings); and (vi) Reasons for the Adjudication (to summarize the reasons for the final ruling/judgment). Chart 6: Number of Chinese Characters per GC

8 8 Chart 7: Relative Length of Each of the Six Parts of GCs On average, a GC has approximately 1,500 Chinese characters (see Chart 6), 40% of which are found in the Basic Facts of the Case part, with another 40% in the Reasons for the Adjudication part (see Chart 7). The SPC s efforts to provide more facts and reasons should be praised. Detailed facts allow judges to better distinguish cases. More reasons provided in GCs will encourage other courts to follow the SPC s practice. One of the areas in China s court system that most needs improvement is the explanations for rulings/judgments: courts have generally placed less emphasis on explaining the reasons for their decisions. Guiding Case No. 30, a trademark infringement and unfair competition dispute, is the longest GC. It has 6,888 Chinese characters. This is one of the first two unfair competition GCs and is the first GC on trademark infringement. In this case, the Reasons part accounts for 53% of the length of the entire piece, and the Basic Facts part accounts for 33%. Apparently, the significance of the two topics demands a more detailed report of the case and, in particular, the Reasons for the Adjudication. Of all the GCs, Guiding Case No. 20 and Guiding Case No. 23 provide the most detailed reasons. The Reasons for the Adjudication part in Guiding Case No. 20 accounts for approximately 65% of the total number of characters found in that case, and the corresponding percentage is 75% for Guiding Case No. 23. These two GCs are, respectively, China s first on patent law and first on food safety law. Is the provision of more detailed reasons related to China s focus on improving the patent system to promote the implementation of its innovation policy and on the population s concern about food safety?

9 9 Time Elapsed Chart 8: Time Elapsed Between Original Rulings/Judgments and GCs Most cases selected for release as GCs are about two years old, but the SPC selected two cases that were about five years old (see Chart 8). These two cases are Guiding Case No. 6 and Guiding Case No. 17. Were these two cases chosen because their Main Points of the Adjudication are of special importance? Guiding Case No. 6: HUANG Zefu, HE Boqiong, and HE Yi v. The Jintang Administration for Industry and Commerce of Chengdu Municipality, Sichuan Province, An Administrative Penalty Case When an administrative organ, in making an administrative penalty decision to confiscate a relatively large amount of property involved in a case, fails to inform the parties involved of their rights to request a hearing, or fails to hold a hearing in accordance with law, the people s court should, in accordance with law, decide that the administrative penalty violates legally established procedure. Guiding Case No. 17: ZHANG Li v. Beijing Heli Huatong Automobile Service Co., Ltd., A Sale and Purchase Contract Dispute 1. Where cars are purchased [to meet] consumption needs in family life, fraud disputes occurring in [these purchases] may be handled pursuant to the Law of the People s Republic of China on Protection of Consumer Rights and Interests.

10 10 2. [If] a car seller promises to sell a new car that has not been used or repaired to a consumer, [but] after purchase, the consumer discovers that the car has been used or repaired, [and] the seller cannot prove that he 2 has performed his duty of disclosure and that [the performance] has been acknowledged by the consumer, [this] constitutes sales fraud. [If] the consumer demands that the seller compensate his losses in accordance with the Law on Protection of Consumer Rights and Interests, the people s court should offer support. 2 Translators note: he and his as used herein are, unless the context indicates otherwise, gender-neutral terms that may refer to she, her, and it.