Friday, October 21, 2005
The October 20, 2005 issue of Legal System Daily (法制日报) has an interesting report of an experiment with case precedent that has been going on since August 2002 in a basic-level people's court in Zhongyuan District in Zhengzhou.
The perceived need for the system arose when a consumer sought to take advantage of a provision of China's consumer protection law providing for double damages against sellers of fake products by deliberately buying identical fake medicine in three separate jurisdictions and then bringing suit in each. The suit was rejected in each case, but on different grounds each time, despite having identical facts, pleadings, and evidence. The results of this natural experiment struck many as indicative of a problem that should be solved.
According to the report, the court's adjudication committee selects particular cases it wants to serve as precedents (先例). The details of these cases are made available on an electronic touch-screen in the courthouse building. Visitors can then see whether the court has dealt with cases similar to their own and assess their chances of winning should they decide to file suit.
The influence of the selected precedents on judicial decisionmaking is ambiguously put (in my view, deliberately so, given the sensitivity of the issue): precedents are to have "a certain guiding significance" (一定指导意义) and have "a certain binding force" (一定的约束力) on judges hearing similar cases. A judge hearing a similar case who proposes not to follow the precedent must report to the adjudication committee, and failure to follow a precedent without a proper reason will, where the judgment is later deemed wrong, result in disciplinary measures for the judge.
The system is praised for having contributed to judicial efficiency and predictability and for having reduced corruption (by making the law more certain). Not everyone thinks it's a good idea, however: He Weifang of Peking University's Faculty of Law criticises the system because in requiring the judges in one court to follow that court's previous rulings, whatever is happening elsewhere in the country, it creates a local consistency at the expense of the larger national consistency he sees as more necessary.