The CGCP proudly publishes two new commentaries.
The Supreme People’s Court of China’s (“SPC”) recent issuance of new rules on how to cite Guiding Cases (“GCs”), de facto binding precedents, in subsequent judgments was a milestone in the Chinese legal history. It has helped dispel some doubts about whether GCs should be explicitly referenced in judgments rendered by courts for cases similar to GCs. However, there are still some critical questions, as the following commentaries explore:
Commentary: The Binding Nature of Court Decisions in Japan’s Civil Law System.
Despite the release of new rules mandating that GCs be explicitly referred to in subsequent cases, doubts linger. Many commentators have argued that China, a civil law country, must not follow the principle of stare decisis (i.e., the notion that court decisions should be guided by precedent). However, the experience of quite a few other civil law jurisdictions shows the important role of precedent (see, e.g., the CGCP commentary on precedent in Taiwan). Using the civil law tradition of Japan as their focus, Toshiaki Iimura, Former Chief Judge of Japan’s Intellectual Property High Court, and two other scholars explain in their commentary entitled The Binding Nature of Court Decisions in Japan’s Civil Law System how the principle of stare decisis is often perceived as “even more pronounced in Japan than in common law countries”.
Commentary: Guiding Case No. 5, Monopoly in China’s Salt Industry and Amendments to the Legislation Law and the Administrative Litigation Law
The new rules on citing GCs require Chinese judges to quote “Main Points of the Adjudication” of relevant GCs in subsequent cases. This requirement prompts one to wonder how these main points are prepared and what their scope of coverage should be. In the commentary entitled Guiding Case No. 5, Monopoly in China’s Salt Industry, and Amendments to the Legislation Law and the Administrative Litigation Law, Dr. Mei Gechlik, CGCP Director, and DAI Di, an attorney in China, observe that the “Main Points of the Adjudication” of GC5 are broader than the scope allowed by the facts. Why did the SPC take this step? How is this related to its keen interest in abolishing the monopoly in China’s salt industry? Have these main points been incorporated into the recent amendments to the Legislation Law and the Administrative Litigation Law? This commentary seeks to answer these questions.
New English translation of GC No. 5 is released. The recent commentary on GC No. 5 led to new insights and an improved English translation of the case. A revised translation is available here.
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