Many thanks to Susan Finder of the Supreme People’s Court Monitor blog for posting a fascinating piece by her student, Yuan Ye, on the use of cases by Chinese courts. The post is based on Yuan’s experience as an intern in three of the four levels of Chinese courts in three cities, so that’s pretty broad.
The piece is called “How ‘Case Law’ Works in Chinese Courts,” the quotation marks indicating that maybe the author is not sure the term should apply. I agree with that approach: let’s just talk about how cases are used instead of prejudging the question by calling it case law or precedent.
You should of course read the piece yourself if interested–it’s not very long–and I just want to make one observation here. That observation is that the way Yuan describes cases being used looks very much like a bureaucratic machine striving for error reduction. The imperative driving it is different from that which drives the idea of respect for precedent in a common-law system.
For example, cases more than three years old are not considered very important when searching for the “like cases” that should be treated alike. To me that suggests that the main concern is that the machine at any given time produce consistent judgments. The system is seen as a unified whole, and if it’s doing X at the same time that it’s doing not-X, that’s a malfunction that calls the integrity of the whole machine into question. Inconsistent judgments from a long time ago are less of a concern.
The concerns of respect for precedent are different. In a system that values precedent, the fact that you judged a case a certain way before is precisely a good reason for judging a like case the same way now; by contrast, what other judges in other courts are doing at the same moment you are judging is much less important.
Another thing that stands out in this report is the tremendous amount of work done by court personnel in finding and analyzing (what they consider to be) like cases, in contrast to what is reported to be the virtual absence of input on this issue from the parties’ lawyers. We see this a lot in China. Here is work that could theoretically be outsourced to the parties at their own expense; a conscientious court worried about misuse of cases could still spend time reading the cases cited by the parties, and would still save the time spent having to find them. It’s hard to believe that judges and their interns and assistants have the skills to analyze judicial reasoning in cases, but Chinese lawyers do not. The conclusion would seem to be that this kind of input from lawyers is not welcomed. And again, that makes sense if the primary concern is the efficient and consistent functioning of the judicial machine in the eyes of its personnel. Why would they let outsiders tell them how to do their job?
[June 11, 2022 update: Here’s a response from Yuan Ye.]