Pushing the Envelope: Application of Guiding Cases in Chinese Courts and Development of Case Law in China

The modern Chinese legal system has at least two notable features. First, bearing the civil law tradition, Chinese courts do not follow precedent. Second, under the people’s congress system, the Chinese judiciary has no power to make law. In recent years, however, the Supreme People’s Court of China began building a guiding case system in the Chinese judiciary. The application of guiding cases implicates (a) an expansion of the power of the Chinese judiciary into the field of law-making; and (b) development of case law in China. Chinese guiding cases differ from the common law cases in many aspects, and their legal role and status is still to be addressed and tested. The key issue is whether the compulsory reference imposed by the Supreme People’s Court on the application of guiding cases would make the guiding cases a source of law. Behind the issue is the question of whether the Chinese judiciary should have any role to play in the law-making arena. No matter what the answer may be, the establishment of the guiding case system will inevitably result in changes for the Chinese legal landscape