The judicial system in China recently started using legal precedents—known as guiding cases—as a new legal source to eliminate adjudicative inconsistency. Guiding cases (“GCs”) present the current judicial reasoning to some extent and can be used to predict the future of judicial reasoning in China. What are GCs? What legal issues do GCs address? How do they address legal issues? How do GCs affect the legal system and adjudication in China? This Article answers these questions with empirical evidence and comparisons to judicial reasoning in the United States. It is the first empirical research providing a systematic review of all the GCs published by November 2019.
GCs are de facto binding and treated as legal precedents by Chinese judges, even though the literature used to heavily debate whether they are “common-law precedents.” This Article’s research rejects the dichotomy between civil law and common law in the modern age. Instead, after reviewing the development and history of law in China, this Article argues that the Chinese legal system is in fact a dynamic mix between the civil and common law systems. The empirical design revisits American jurisprudential criteria to decode judicial reasoning in China. Even though these jurisprudential criteria are debatable by themselves, the hypotheses and the coding strategy rely on their overlaps and conflicts – a public or private interest-concentrated perspective: How do Chinese courts treat the public and private interests under the various degrees of government intervention?
The empirical analyses in this Article suggest that Chinese courts are on the path towards pragmatism and that there are common characteristics of the judicial reasoning in China shared by the U.S. Supreme Court. On the one hand, judges in China are state agents and follow state policies. They address social concerns and the public interest, which do not necessarily harm private interests or suggest conflicts with private interests. On the other hand, the Chinese courts are independent from administrative agencies, even though they defer to government interpretations of law to a greater extent than the U.S. Supreme Court.
Decoding Judicial Reasoning in China: A Comparative Empirical Analysis of Guiding Cases,
68 Clev. St. L. Rev.
available at https://engagedscholarship.csuohio.edu/clevstlrev/vol68/iss3/8