Assessing the Populist Turn of Judicial Reform

Over the past two decades, courts have developed into specialized legal institutions that are staffed by legally trained judges. In line with the global trend towards judicialization, Chinese courts have expanded their jurisdiction and their caseloads have proliferated significantly.Footnote ⁸ Rather than existing as mere tools of the party-state, courts more closely resemble neutral fora for dispute resolution. Under SPC president Xiao Yang 肖扬, reform measures envisaged in the five-year plans of 1999 and 2005 were designed to improve the competence, fairness and efficiency of the judiciary. Reforms focused on trial procedures, rules of evidence, the requirements for retrial, simplified trial procedures, internal court management and enforcement of judgments, and the legal training and performance assessment of judges.Footnote ⁹ The introduction of a national judicial exam in 2002 has unequivocally contributed to the improved level of education among the members of the judiciary, who are now required to possess bachelor degrees prior to sitting the judicial exam.Footnote ¹⁰ Greater competence of judges has led to well-reasoned judgments and to the development of a professional identity. However, it has been noted that reforms have been less successful in certain areas, such as the enforcement of judgments, where the problems lie beyond the reach of the courts. With their enlarged role in society, considerable pressure has been exerted upon the courts by populist demands for justice from the media, petitions and protests.Footnote ¹¹

Following the 17th Party Congress in 2007 and changes in the leadership amongst the higher echelons of the SPC in 2008 which placed Central Political-Legal Committee member, Wang Shengjun 王胜俊, at the head of the court, the direction of the previous court reforms changed. The Central Political-Legal Committee adopted a new document on judicial reform that set the tone for the third Five-Year Reform Plan of the Judiciary.Footnote ¹² The plan emphasizes a “balanced development” of judicial institutions (public security organs, the procuratorate and the courts) and criminal justice policy. Rhetorically, all reform steps are tied to the “needs of the masses” in order to stress the judiciary's responsiveness to popular demands. Emphasis on Party leadership and the political mobilization of judges manifests itself in the “three supremes” doctrine, according to which the supremacy of the CCP, the supremacy of the interests of the people and the supremacy of the constitution and law should be upheld. Judges are reminded of the need to consider the social and political consequences of their judgments. To achieve a “harmonious society” and social stability, mediation is regarded as a more suitable tool than litigation. In practice, this “mediation first” policy is implemented by an incentive-based system that puts judges under pressure to resolve disputes via mediation. However, courts have found ways to undermine the mediation policy by manipulating case statistics.Footnote ¹³

Despite its turn towards populism, the SPC did not abandon the goal of achieving “efficiency and fairness.” Different layers of reformation with competing goals, such as populism and professionalism, make an assessment of the reform shift difficult. Some critics regard it as a “turn against law” which rejects the judicial reforms of the past and attempts to replace formal law and court adjudication with Maoist-style mediation practices. Pursuant to this view, the SPC strictly implements Party orders, which are driven by social stability concerns.Footnote ¹⁴ Others concede that under the conditions of a single-party state, reliance on ideology and strong Party leadership can generate significant results in areas where legal professionalization alone cannot instigate change.Footnote ¹⁵

It is more convincing to see the SPC's shift towards populism not as the result of genuine ideological commitment, but rather as a change in official rhetoric that helps the court to avoid criticism by other party-state actors. Adhering to mass-line rhetoric allows the SPC to pursue reform measures in other areas that serve its institutional self-interest.Footnote ¹⁶ Renewed emphasis on mediation and the social effects of law is in line with revolutionary and pre-revolutionary traditions. However, the use of revolutionary language has more to do with strengthening the SPC's legitimacy with the Party and the public than with the true revival of Maoist practices.Footnote ¹⁷

Development of Guiding Cases

Judicial reform in China is predominantly carried out in a top-down manner. In designing the development of judicial reform in five-year plans, the SPC follows CCP guidelines, which are determined for the field of law by the Central Political-Legal Committee. The Second Five-Year Plan of 2005 provided for the establishment of a guiding cases system. According to the plan, cases with guiding attributes serve as a standard of unified legal application and offer guidance to lower courts in the course of adjudication. It is further stipulated that the SPC is primarily responsible for adopting normative documents to establish a system of guiding cases and the standards and procedures for selecting and editing such cases.Footnote ¹⁸ As early as in 2005, the SPC research department (Zuigao renmin fayuan yanjiushi 最高人民法院研究室) began to conduct surveys on guiding cases. The first draft of guiding cases regulations were published in April 2006 and circulated among judges and law professors. Since the end of 2007, drafts have also been submitted to the National People's Congress Standing Committee in order to solicit views.Footnote ¹⁹ The SPC finally adopted the Guiding Cases Provisions in November 2010.

Although ancient Chinese law is generally associated with codified law, adjudicators in imperial China also considered previous decisions. For example, Qing dynasty collections of penal cases, which consisted mostly of cases decided at the central level by the Imperial Board of Punishments, were used in legal reasoning but did not evolve into binding precedents, since it was considered that their binding force would have restricted imperial authority.Footnote ²⁰

When the SPC started to publish its official Gazette (Zuigao renmin fayuan gongbao 最高人民法院公报) in 1985, it also included “typical cases” (dianxing anli 典型案例) to guide lower courts' adjudication. Before 1985, the SPC handed down cases to lower level courts in the form of documents with red letterheads (hongtou wenjian 红头文件), which were not published. It is argued that typical cases already constituted a kind of case guidance mechanism.Footnote ²¹ However, the contents of typical cases are often substantially changed and adapted to suit the educational needs of inexperienced judges, and, in general, the publication of typical cases is not intended to be for the purpose of interpreting the law.Footnote ²² Even if judges base their judgment on such cases, typical cases are not cited in court decisions.Footnote ²³ Judges retain discretion over whether to follow typical cases when they decide cases that raise the same issues of law.Footnote ²⁴

From 2002, guiding cases systems were already beginning to be put in place by various local courts, including the Higher People's Court of Tianjin (2002), the Zhongyuan District People's Court of Zhengzhou (2002), the Intermediate People's Court of Zhengzhou (2003), the Intermediate People's Court of Chengdu (2003), the Higher People's Court of Jiangsu (2003) and the Higher People's Court of Sichuan (2004).Footnote ²⁵ The Zhongyuan District People's Court issued its Regulations on the Realization of the Precedent Decision System, which were to be applied in the adjudicative work of all judges within that court. Pursuant to Article 4 of these regulations, judges who decide similar cases have to make their decisions by “consulting precedent decisions.” If a judge is of the view that a precedent decision should not be consulted, the judge must submit the issue to the adjudication committee for decision. If ignoring a precedent decision without legitimate reason causes an incorrect decision, the behaviour of the judge will be sanctioned.Footnote ²⁶ Similar regulations issued by the Tianjin Higher People's Court provide that precedents (panli 判例) have a “guiding” rather than “regulating” character. Judges at all levels are required to consult precedents thoroughly when adjudicating civil or commercial cases, but they may not cite precedents as the basis of their decision in the judgment.Footnote ²⁷ This experimentation with guiding cases in local courts is an example of horizontal interaction between judges and courts that in turn leads to bottom-up innovation and adds a new dimension to the guidance provided to lower courts by the SPC.Footnote ²⁸ It is not clear whether the SPC has actively encouraged these local experiments from the outset or has simply just tolerated them. Ultimately, in the SPC's “Opinion on the relationship between higher and lower courts” of 2010, it is stated that higher people's courts can, within their jurisdiction, publish “reference cases” (cankaoxing anli 参考性案例) for lower courts.Footnote ²⁹ The Guiding Cases Provisions do not recognize guiding cases adopted by courts other than the SPC. However, the 2011 SPC “Notice on the first set of guiding cases” clarified that higher people's courts are permitted to provide guidance on the trial work of the courts within their respective jurisdictions by issuing “reference cases” or guidance in another form.Footnote ³⁰ The SPC accepts that higher people's courts do take measures towards consistent adjudication within their jurisdiction. At the same time, the SPC intends to establish a hierarchy between national “guiding cases” and local “reference cases.”

In order to adopt the Guiding Cases Provisions and the first set of guiding cases, the SPC was forced to overcome a certain amount of resistance from within the Party leadership and other state organs. The five years that passed between the reference to guiding cases in the Second Five-Year Reform Plan for the Judiciary of 2005 and the adoption of the Provisions by the end of 2010 indicate that the plan was shelved during the first years of the Wang Shengjun presidency. Eventually, the guiding cases mechanism was not only established within the court system, but also in the Supreme People's Procuratorate and the Ministry of Public Security.Footnote ³¹ It is difficult to imagine how guiding cases work outside the courts. Indeed, the decision to introduce guiding cases in all three branches of the judicial system reflects the reform principle of “balanced development,” which requires the development of their institutional authority as a group and synchronicity under CCP leadership.Footnote ³² It was reported that the first set of cases to be adopted as guiding cases by the SPC Adjudication Committee was submitted in February 2011.Footnote ³³ Yet, it took the SPC until December 2011 to publish the first four guiding cases. The slow process of selecting and deciding on the cases indicates that the SPC again encountered resistance to its reform project. It was pointed out that members of the National People's Congress (NPC) procrastinated because they feared that the power of the SPC to select and publish guiding cases would interfere with the law-making power of the legislature.Footnote ³⁴ Compared to the Guiding Cases Provisions, the language of the Notice to which the first set of guiding cases was attached is more politicized: it refers to a guiding cases system with “Chinese characteristics,” emphasizing the “unity of legal and social effects of court decisions,” and refers to “social stability and harmony.” This politicized tone appears to be intended to appease the critics of the case guidance mechanism. The difficulties that the SPC was forced to overcome in establishing the guiding cases system indicate that the Court had to manoeuvre considerably in order to acquire the political support for this reform initiative.

Scope of Authority of Guiding Cases

The core feature of guiding cases is their “effect” or “scope of authority.” The SPC can only achieve its goal of consistent interpretation of law throughout the court system if it vests guiding cases with binding authority, irrespective of whether they become legally or factually binding in lower courts. Without binding authority, guiding cases would not be any different from “typical cases” and the effort of introducing a new mechanism would be in vain. However, the SPC faces great difficulty in attaching binding authority to guiding cases, which is why their authoritative function is still unclear.

The Guiding Cases Provisions provide in Article 7 that “people's courts at all levels shall consult guiding cases issued by the SPC when hearing similar cases.” To “consult” (canzhao 参照) appears to indicate a lesser degree of authority than that of a legally binding precedent. Such a conclusion can be drawn by analysing this term in other statutory contexts. For example, the Administrative Litigation Law uses this term in Article 53(1).Footnote ³⁵ The provision states that courts shall consult administrative rules (xingzheng guizhang 行政规章) when trying administrative cases. In contrast, courts shall apply laws, administrative regulations and local regulations as a basis in administrative cases.Footnote ³⁶ In Article 53(1), the term “consult” connotes that courts are not strictly bound by administrative rules in the sense that they may examine whether the relevant administrative rules conform to higher ranking legislation. Courts may apply administrative rules as a legal basis only if the legality of an administrative rule is confirmed.Footnote ³⁷ “Apply” does not empower courts with that option. In the context of the Administrative Litigation Law, “consult” is contrasted with “apply” and indicates the lesser authority of administrative rules. Although the context of the Guiding Cases Provisions is quite different, applying the specific terminology indicates that guiding cases are not legally binding.

Most legal scholars endorse the official terminology of “cases with guiding character.” Some do this simply for the reason that the term “guiding case” is “safe” because it is easily accepted by decision makers and fits “Chinese circumstances” (guoqing 国情).Footnote ³⁸ However, some authors criticize the use of the term “case” (anli 案例) for being too wide, and prefer instead the notion of “precedent” (panli 判例), which specifically relates to a legal dispute decided by a court.Footnote ³⁹ The term “precedent” is normally associated with binding precedents as applied in common law legal systems, where cases are sources of law and can be directly referred to as a legal basis for a court decision. Hence, the particular adoption of the term “case” clarifies that the SPC does not intend to establish a system of binding precedents in that sense. The use of the adjective “guiding” is intended to connote that guiding cases belong to the realm of application of law and not to law-making.Footnote ⁴⁰ The aim of establishing a Chinese guiding cases system is to “learn from useful elements of the binding precedent system in order to complement the existing system of statutory law” and to concord with the continental legal tradition.Footnote ⁴¹ The opposing view postulates that guiding cases can be applied as the legal basis of a decision. It is argued that the legal principle embedded in a “guiding case” (caipan guize 裁判规则) must be observed by judges. Judges of higher ranking courts can either change the decision or remit it for retrial if judges make decisions without taking into account the relevant guiding case.Footnote ⁴²

The majority view among legal scholars is that guiding cases are not legally binding on lower courts because they do not constitute a source of law. However, this does not exclude the possibility that guiding cases are factually binding on lower courts, i.e. court decisions will be overturned by a higher level court if decisions do not properly take into account guiding cases. Court decisions can only be quashed on appeal or retrial due to ignoring or to misinterpreting guiding cases if judges are required to indicate, at least in the reasoning part of the judgment,Footnote ⁴³ why they followed or did not follow a certain interpretation of the law.Footnote ⁴⁴ Citing guiding cases in the decision part of a judgment would indicate that it should be treated like a source of law; to cite it in the reasoning part does not make this implication.

The imperative question is whether judges are actually permitted to cite guiding cases in the reasoning part of judgments. In general, Chinese courts do not cite court decisions or scholarly writings in their judgments. In 2009, the SPC issued Regulations on the Citation of Legal Documents in Judgments.Footnote ⁴⁵ Neither the Regulations on the Citation of Legal Documents nor the Guiding Cases Provisions provide an express rule on this issue. The Regulations on the Citation of Legal Documents contain a catch-all clause that applies to “normative documents” other than those mentioned in the regulations. Such “normative documents” can be taken as a basis for reasoning in a ruling according to the specific needs of the trial and in circumstances where the court affirms that the relevant normative documents comply with higher ranking legislation.Footnote ⁴⁶ However, “normative documents” denote abstract rules and exclude individual decisions by courts. The court is either required to construct “normative documents” broadly in order that they encompass guiding cases or otherwise the SPC adopts a clarifying notice that obligates courts to cite guiding cases in the reasoning part of their decisions.

Official statements from the SPC send conflicting signals. To illustrate further, in 2007 the director of the SPC research department, Shao Wenhong 邵文红, affirmed that guiding cases are not binding precedents and judges are not allowed to cite them in their judgments,Footnote ⁴⁷ whereas a representative of the SPC research department explained in an interview in December 2011 that judges are allowed to cite guiding cases in the reasoning part of judgments.Footnote ⁴⁸ However, it is not sufficient to allow lower courts to cite guiding cases in order to achieve consistent adjudication within the judiciary; there must be an express obligation to do so.

There are various reasons why the SPC is reluctant to take an unambiguous stance on the scope of authority of guiding cases. First, there is the expectation of cultural conservatism that requires that legal reforms be presented as innovations that build on Chinese legal traditions and which forbids portraying reforms as legal transplants originating in the West. This makes it very difficult for the SPC to insist on the specific effects of guiding cases. Any clearly binding authority of guiding cases would imply a development towards common law systems and indicate an “Americanization” or “Westernization” of Chinese law. Second, the SPC has so far been very careful to avoid appearing as an advocate of judicial activism. In 2001, the SPC attempted to judicialize the constitution in the Qi Yuling 齐玉苓 case.Footnote ⁴⁹ Although the SPC had not claimed the power to conduct constitutional review of legislation, one SPC judge publicly compared the decision with the American case of Marbury v. Madison of 1803.Footnote ⁵⁰ The SPC decision in the form of a “reply” to a higher people's court was repealed in 2008. The SPC's experimentation with the judicial application of the constitution eventually failed because it was regarded as a threat to the power of the NPC and the supremacy of the CCP.Footnote ⁵¹ If the SPC insisted on the binding authority of guiding cases, it may easily be regarded as a usurpation of the NPC's law-making power and an attempt to change the constitutional power structure.

Adoption and Form of Guiding Cases

According to the Guiding Cases Provisions, the following broad criteria apply when the SPC selects a guiding case: it must be a court decision that has taken legal effect, and (1) is of general concern in society, (2) the legal provisions must be rather general, (3) is of a typical nature, (4) involves complex and difficult or new types of issues, or (5) other cases which should have a guiding function.Footnote ⁵² It is deemed sufficient that a case fulfils one of the five listed conditions in order to qualify.

The guiding cases office (Anli zhidao gongzuo bangongshi 案例指导工作办公室) of the SPC is responsible for the selection, examination and reporting of guiding cases.Footnote ⁵³ Guiding cases are adopted by the SPC Adjudication Committee and are then published in the Gazette of the SPC, on the SPC website and in the People's Court Daily.Footnote ⁵⁴ The trial divisions of the SPC may recommend their own decisions or the decisions of local courts at various levels to the guiding cases office. Higher people's courts may also make recommendations of their own decisions or the decisions of the local courts within their respective jurisdiction.Footnote ⁵⁵ Intermediate courts may only recommend decisions via higher level courts, and basic level courts may do so only through intermediate courts and higher courts.Footnote ⁵⁶ The specific group of people qualified to recommend cases includes those from all levels of society who are interested in the adjudication and enforcement work of courts. The judicial interpretation lists as examples members of people's congresses and people's political consultative conferences, legal scholars and lawyers. However, those people may only submit their recommendation to the particular court that actually issued the relevant decision.Footnote ⁵⁷

The SPC published the first guiding cases as an annex to the Notice of December 2011. A second batch of four guiding cases was adopted in April 2012.Footnote ⁵⁸ The Notice contains a preamble, a first part entitled “Accurately understanding the spirit of guiding cases,” a second part on “effectively using guiding cases,” and an annex with the four edited cases. The preamble points out that the guiding cases system implements the reform measures of the CCP Central Committee and that it has “Chinese characteristics.” The first part gives a brief introduction to the four guiding cases. Within the introduction to each case, the first sentence sets out the facts of the case. The second sentence commences with “as affirmed in this case” and lays down the principle of law that has been applied to the facts. The introduction concludes with a brief reasoning part that defines the objectives of the principle of law that has been affirmed in the case.Footnote ⁵⁹ The second part instructs courts of all levels to organize the study of guiding cases by judges. Although the Notice requires judges to apply “scientific trial methods” and to “refer strictly to guiding cases” when trying similar cases, it does not elaborate on the specific methodology that judges should apply when referring to guiding cases. Pursuant to academic literature, courts are not required to refer to guiding cases if there is an applicable rule that is clear. However, if there is no rule that can be applied, if there are various rules that contradict each other, or if the rule is unclear, guiding cases shall be used as a legal basis or as a reference. The next step consists of identifying an applicable guiding case and requires a judge to determine whether the cases are similar. In the final step, the rule contained in the guiding case must be determined and applied to the case at hand.Footnote ⁶⁰

Guiding cases are published according to the date of adoption by the SPC Adjudication Committee. They list keywords, key points of the judgment, relevant legal provisions, basic facts, the result of the decision and the reasoning of the judgment. The texts of the guiding cases are not identical with the original judgments, but are heavily edited and shortened by the SPC in order to fit the standard format of guiding cases and to clarify the key points of the judgment.

The small number of eight guiding cases adopted so far, in addition to the nature of cases that have been selected, is a clear indication that the SPC proceeds with utmost caution. The first set of guiding cases encompasses two issues of civil law and procedure (disputes on contracts with multiple property agencies and the relation between enforcement of judgments and settlement agreements), and two criminal law cases, which deal with the crime of accepting bribes and the restriction of commutation of sentence in a death penalty case. The second batch of guiding cases includes two cases on administrative penalties, one case on a construction project contract and one on a corporate dissolution dispute. The choice of cases is balanced in terms of the outcomes of the cases and the areas of law they were selected from. There is also no obvious connection to populist justice in the sense that the law is interpreted in response to the “needs of the masses.”

Guiding cases are drafted in technical legal language, have complex structures and substantial contents, all of which makes them quite different from policy directives or statutory rules. Guiding cases can only be properly understood and applied by legally trained professionals; they are a means of communication between legal professionals, which excludes non-lawyers. There is no doubt that working with guiding cases on a daily basis will improve the professional capacity of judges in lower level courts and will, in particular, strengthen analytical and argumentation skills.

The Problem of Deciding Similar Cases Differently

The central narrative justifying the adoption of guiding cases is that they prevent similar cases being decided differently (tong an butong pan 同案不同判). The requirement of a “unified judiciary,” the consistent application of law by courts, is derived from the precept that everyone is equal before the law.Footnote ⁶¹ Inconsistent application of law is seen as the main reason for popular dissatisfaction with the judiciary and has led to the perception that court decisions are arbitrary and unfair.Footnote ⁶² In late 2009, CCP Politburo Standing Committee member Zhou Yongkang 周永康, the leader of the political-legal system (zhengfa tixi 政法体系), said that the guiding cases system should be established for such cases in which the “enforcement of law is inconsistent” and to which the “reaction of the masses is relatively strong.”Footnote ⁶³

According to the media and legal scholars, the following cases represent examples of inconsistent decision making. In 2002, the Intermediate People's Court of Qujing 曲靖 sentenced He Peng 何鹏 to life imprisonment for theft after he withdrew a total of 429,700 yuan from an ATM even though he had only deposited ten yuan in his bank account. The Higher People's Court of Yunnan Province upheld the judgment on appeal. In 2007, the Intermediate People's Court of Guangzhou sentenced Xu Ting 许霆 also to life imprisonment for theft. He had taken advantage of an ATM technical fault, which meant that only one yuan was taken from his account for every 1,000 yuan that he withdrew from the machines. In total, he withdrew 175,000 yuan from a number of ATMs. The Higher People's Court of Guangdong Province quashed the judgment on appeal and remitted the case. The Intermediate Court gave Xu Ting a five-year prison sentence.Footnote ⁶⁴ Another group of cases is concerned with tort law, and particularly the calculation of compensation for personal injury and death. There has also been severe criticism of decisions that have held that the amount of compensation that surviving dependants can receive for the death of a family member depends on the household registration (hukou 户口) of the victim. A court in Beijing's Chaoyang 朝阳 district awarded compensation in a judgment of 13 April 2006 to the family members of two victims of a car accident. The family of the victim with a permanent registration in the countryside received 170,000 yuan, whereas the family of the victim who was permanently registered in the city received 410,000 yuan.Footnote ⁶⁵

On closer scrutiny of the cases, it appears questionable that the perceived unjust outcomes are owing to the incorrect interpretation and application of law. The circumstances in the two theft cases are indeed different, which may justify differing sentences, although the difference between five years and life appears to be too extreme to be justified by those circumstances. It must be noted that sentencing has been inconsistent across different geographical regions and has varied owing to policies such as the “strike hard” campaigns.Footnote ⁶⁶ The SPC, together with the higher people's courts of the relevant provinces, has adopted sentencing guidelines for theft that stipulate different sentences according to the damage caused and the relevant geographical region.Footnote ⁶⁷ The regional differences in sentencing are intended and appear to be justified, given different stages of economic development throughout the country. In the cases where the decisions have discriminated according to different household registrations, the legal basis for awarding different amounts of compensation is Article 29 of the Compensation for Personal Injury Interpretation.Footnote ⁶⁸ The provision stipulates that “compensation for death shall be calculated for 20 years in light of the per capita disposable income of the urban residents or the per capita net income of the rural residents at the locality of the case-accepting court of the last year.” It is clear from this provision that the judges in the relevant cases simply applied substantive rules that are, as such, discriminatory.

It can be argued with some plausibility that the courts decided the cases in precisely the same way that the law and the relevant instructions of higher courts intended. Consequently, the introduction of a system of guiding cases will hardly improve the popular perception of these unfair court judgments.Footnote ⁶⁹ In the cases discussed above, it is the judiciary that assumes the blame for unjust outcomes caused by the lawmakers who designed the rules in a way that produces these unjust outcomes. The judiciary would only be able to mitigate unjust results and correct policy decisions taken elsewhere in the system if courts acquired a more proactive and powerful role within the constitutional system. However, such “judicial activism” is exactly what the political leadership wants to avoid. This example demonstrates that the SPC uses the rhetoric of responding to the “needs of the masses” and the perceived inconsistent application of the law, where in fact guiding cases may not be able to guarantee just outcomes. However, it is not suggested that inconsistent adjudication is not a problem and that guiding cases will not lead to more consistent decisions. Yet, improvements in consistency are expected to take place on a doctrinal or technical legal level, which will hardly result in sensible application in the eyes of the general public. Thus, guiding cases are not the best suited instruments to respond to public feeling. As a formal legal mechanism that is embedded in a complex statutory and doctrinal context, the guiding cases mechanism also lacks the flexibility that is required by a populist justice approach of adjudication.

The Impact of Guiding Cases on the Judiciary

The court reforms of the Xiao Yang era were largely technical in nature and proved most successful where the professional competence of judges was concerned. However, judges' improved knowledge of law implies a certain increase in the autonomy and authority of courts. While reforms did not fundamentally change the judiciary's power vis-à-vis other state actors, courts were better positioned to resist certain forms of external pressureFootnote ⁷⁰ and court work became less politicized.Footnote ⁷¹ As a formal legal mechanism, guiding cases do not possess the flexibility needed to respond swiftly to day-to-day developments and policy changes, i.e. they cannot, and are not, intended to replace the courts' control with extra-legal measures. On the contrary, they can shield against extra-legal influence. Organs of the CCP, the procuratorate, the relevant higher level court, the people's congresses and government organs of the relevant administrative levels can all influence the decisions of lower courts.Footnote ⁷² The judicial disciplinary system, criteria for assessment of court performance and other aspects of the bureaucratic environment can also have an important impact on adjudication.Footnote ⁷³ Although there are informal channels through which interested actors can influence adjudication, such channels are not exclusively available to the SPC for guidance towards consistent decision making, but are open to accommodate different kinds of local interests, which often contradict the aim of consistent adjudication. Guiding cases would create a new channel of steering lower court adjudication that would be exclusively open to the SPC.

The guiding cases mechanism is also fundamentally distinct from the other formal instruments that the SPC has at its disposal, such as abstract judicial interpretations or “replies” (pifu 批复) to high court requests relating to the application of law to specific cases.Footnote ⁷⁴ Judicial interpretations and replies are legally binding on lower courts.Footnote ⁷⁵ Judicial interpretations fill gaps in statutory legislation and provide detailed rules that clarify and often go beyond the wording of statutes. Through the extensive practice of adopting judicial interpretations, the SPC has acquired a powerful quasi-legislative function. Against this background, it is difficult to understand the concerns of NPC delegates that guiding cases will interfere with the NPC's legislative powers. Yet, judicial interpretations may be acceptable for the NPC provided that its members are formally involved in the drafting procedure.Footnote ⁷⁶ Although NPC delegates can propose cases to be adopted as guiding cases,Footnote ⁷⁷ the Provisions do not provide for further participation of the legislature. Eventually, the legislature and other actors of the party-state will have less formal control over the adoption of guiding cases than over the enactment of judicial interpretations.

Under the Judicial Interpretation Regulations, delegates of the NPC can submit drafts of judicial interpretations directly to the SPC;Footnote ⁷⁸ pursuant to the Guiding Cases Provisions, even representatives of other state organs cannot recommend certain cases directly to the SPC but are required to turn to the court that issued the relevant decision. A representative of the SPC has explained that the objective of this provision is to put the SPC in a position where it can receive full information on the background of the case and its effects on society, which can only be achieved if the court that actually made the judgment submits the case to the SPC.Footnote ⁷⁹ Since the SPC could always request such information directly from a lower court, it appears to be a pre-textual argument. In fact, this provision is aimed at taking pressure off the SPC and strengthening the authority of the SPC and the judicial system as a whole in relation to other actors of the party-state.

Whereas judicial interpretations are enacted in a lengthy procedure that normally includes consultation with other state organs,Footnote ⁸⁰ the procedure for selecting guiding cases is far more flexible. The SPC does not need to draft legal texts from scratch and take into account – similar to a legislator – the interests of all concerned parties. The court can simply select from the rich material of decided cases and promote any court decision to the rank of a guiding case. This puts the SPC in a position to react promptly to legal developments with a formal instrument that is more suitable for solving complex legal problems than judicial interpretations. Moreover, guiding cases allow the SPC to promote discretely legal developments that follow its own long-term institutional interests rather than the frequently changing policies of the Party. Given the complex contents of guiding cases, it will be very difficult for non-lawyers to understand and assess their effects. Therefore, the mechanism will be relatively well protected against extra-legal control. The guiding cases mechanism will strengthen the SPC, improve its status at the national level, serve as a tool to expand control over lower court adjudication, and promote the centralization of the judiciary. Given the historical experiences of Japan, Korea and Taiwan, where the development of the judiciary into independent institutions was linked to their functioning as unified national bureaucracies,Footnote ⁸¹ guiding cases may facilitate a similar development in China. Strengthened supervision over lower courts by the SPC in turn will promote judicial professionalism in so far as it reduces the influence of other bodies that are not staffed by legally trained personnel.