Guiding Cases AnalyticsTM 指导性案例分析 TM

Dr. Mei Gechlik Founder and Director, China Guiding Cases Project

Jennifer Ingram

Managing Editor, China Guiding Cases Project

China’s Sixteen Criminal Guiding Cases

Issue No. 8 (September 2018)*

* The citation of this piece is: Mei Gechlik and Jennifer Ingram, China’s Sixteen Criminal Guiding Cases, STANFORD LAW SCHOOL CHINA GUIDING CASES PROJECT, Guiding Cases AnalyticsTM, Issue No. 8, Sept. 2018, http://cgc.law.stanford.edu/guiding-cases-analytics.

Guiding Cases AnalyticsTM is a proprietary serial publication of the China Guiding Cases Project that aggregates important information on all Guiding Cases released to date and performs quantitative analyses to identify trends and issues worthy of further study.

In November 2010, the Supreme People’s Court of China (the “SPC”) issued the Provisions of the Supreme People’s Court Concerning Work on Case Guidance (the “Provisions”) to establish a groundbreaking system that is aimed at “summariz[ing] adjudication experiences, unify[ing] the application of law, enhanc[ing] adjudication quality, and safeguard[ing] judicial impartiality”.1 Under this system, the SPC determines and uniformly releases Guiding Cases (“GCs”), “which have guiding effect on adjudication and enforcement work in courts throughout the country”. 2 In particular, according to Article 7 of the Provisions, courts adjudicating subsequent cases similar to GCs “should refer to” GCs. 3 Leading judges of the SPC have explicitly identified GCs as de facto binding precedents.4

Each GC is a summary of the original ruling or judgment from which the GC is derived,

supplemented with a crucial section titled “Main Points of the Adjudication”. The legal rule(s) considered in the case, the facts, the outcomes of legal proceedings, and the reasons for the final ruling/judgment are summarized in the “Related Legal Rule(s)”, “Basic Facts of the Case”, “Results of the Adjudication”, and the “Reasons for the Adjudication” sections, respectively. General principles prepared by the SPC and that it expects all of the courts in China to refer to are presented as short paragraph(s) in the “Main Points of the Adjudication” section. In addition, the original rulings or judgments from which GCs are derived must be those that “have already come into legal effect” and that “are of widespread concern to society”, “[involve] legal provisions [that] are of relatively general nature”, “are of a typical nature”, “are difficult, complicated, or of new types”, or are “other cases which have guiding effect”.5

To date, the SPC has released 96 GCs, of which 16 are criminal GCs. This issue of Guiding Cases AnalyticsTM provides an overview of all of these criminal GCs, covering, inter alia, their types, their sources, and the characteristics pertinent to their application in subsequent similar cases. The analytics provided here will be updated on a regular basis to deepen the understanding of criminal GCs.

I. Number of Criminal Guiding Cases

The first batch of GCs was released in late 2011. Since then, the SPC has issued 18 batches of GCs, bringing the total number of GCs to 96. Like the number of GCs released per batch, the number of criminal GCs released per batch varies. The number of criminal GCs released per quarter also varies (see Charts 1 and 2). Overall, 2016 saw the greatest number of

1 《最高人民法院关于案例指导工作的规定》 (Provisions of the Supreme People’s Court Concerning Work on Case Guidance), Preamble, passed by the Adjudication Committee of the Supreme People’s Court on Nov. 15, 2010, issued on and effective as of Nov. 26, 2010, STANFORD LAW SCHOOL CHINA GUIDING CASES PROJECT, English Guiding Cases Rules, June 12, 2015 Edition, http://cgc.law.stanford.edu/guiding-cases-rules/20101126-english. 2 Id. Article 1. 3 Id. Article 7. 4 See, e.g., Judge GUO Feng, On the Issue of the Application of the Supreme Court’s Guiding Cases, 1 CHINA LAW CONNECT 19, 21 (June 2018), also available at STANFORD LAW SCHOOL CHINA GUIDING CASES PROJECT, June 2018, http://cgc.law.stanford.edu/commentaries/clc-1-201806-23-guo-feng. 5 《最高人民法院关于案例指导工作的规定》 (Provisions of the Supreme People’s Court Concerning Work on Case Guidance), supra note 1, Article 2.

criminal GCs (i.e., 6) released in one calendar year. Batch Nos. 9−12 did not include any GCs related to criminal law, suggesting that the SPC does not place as much emphasis on releasing criminal GCs as it does on other types of GCs, such as civil GCs.6 It is worth exploring why this is the case.

Chart 1: Number of Criminal GCs Released per Batch

Chart 2: Number of Criminal GCs Released per Quarter

6 Mei Gechlik and Jennifer Ingram, China’s Fifty-Seven Civil Guiding Cases, STANFORD LAW SCHOOL CHINA GUIDING CASES PROJECT, Guiding Cases AnalyticsTM, Issue No. 7, Sept. 2018, http://cgc.law.stanford.edu/guiding-cases-analytics.

II. Types of Criminal Guiding Cases All except two of the 16 criminal GCs released to date cover different types of crimes, including bribery, robbery, theft, dangerous driving, and contract fraud, and cite different provisions of the Criminal Law of the People’s Republic of China.7 Two criminal GCs cover intentional homicide (GC Nos. 4 and 12) (see Table 1).

Table 1: Major Types of Criminal Guiding Cases and Legal Rules Cited

GC No.

Released in: Type of Case Legal Rules Cited*

3 2011 Q4 A Bribe-Accepting Case Article 385 Paragraph 1 4 2011 Q4 An Intentional Homicide Case Article 50 Paragraph 2 11 2012 Q3 A Graft Case Article 382 Paragraph 1 12 2012 Q3 An Intentional Homicide Case Article 50 Paragraph 2

13 2013 Q1 An Illegal Trading and Storage of Hazardous Substances Case Article 125 Paragraph 2

14 2013 Q1 A Robbery Case Article 72 Paragraph 2 27 2014 Q2 A Theft and Fraud Case Article 264, Article 266 28 2014 Q2 A Case of a Refusal to Pay Remuneration Article 276A Paragraph 1 32 2014 Q4 A Dangerous Driving Case Article 133A

61 2016 Q2 A Case About Using Nonpublic Information for Trading Article 180

62 2016 Q2 A Contract Fraud Case Article 23

63 2016 Q2 A Case of Compulsory Medical Treatment Article 18 Paragraph 1; Criminal Procedure Law (Article 284)

70 2016 Q4 A Case of Producing and Selling Toxic and Harmful Food Article 144

71 2016 Q4 A Case of Refusing to Carry Out a Judgment or Ruling Article 313

87 2017 Q1 A Case About Counterfeiting a Registered Trademark Article 213

93 2018 Q2 An Intentional Injury Case Article 20 * Unless stated otherwise, all legal rules cited refer to the Criminal Law of the People’s Republic of China.

III. Sources of Criminal Guiding Cases The underlying ruling or judgment of a GC can be rendered by any regular court within China’s four-tier system or by a special court. In China, special courts have jurisdiction to handle specific types of cases, such as military, railroad transportation, maritime, and intellectual property

7 《中华人民共和国刑法》(Criminal Law of the People’s Republic of China), passed on July 1, 1979, issued on July 6, 1979, effective as of Jan. 1, 1980, revised on Mar. 14, 1997, effective as of Oct. 1, 1997, amended ten times, most recently on Nov. 4, 2017, effective as of Nov. 4, 2017, http://www.pkulaw.cn/fulltext_form.aspx?Db=chl&Gid=703dba7964330b85bdfb.

cases. Candidate GCs are submitted level by level through the court system until they are ultimately selected and approved by the Adjudication Committee of the SPC.8

Of the 16 criminal GCs released to date, six are based on rulings/judgments originally rendered by high people’s courts, another six by basic people’s courts, three by intermediate people’s courts, and none by a special court. Only one criminal GC was based on rulings/judgments originally rendered by the SPC itself (see Chart 3).

Chart 3: Number of Rulings/Judgments Rendered by Different Courts

Released as Criminal GCs**

** The first number is the number of rulings/judgments, followed by the percentage.

1. Supreme People’s Court

The only criminal GC that was based on rulings/judgments originally rendered by the SPC itself is GC No. 61, MA Le, A Case About Using Nonpublic Information for Trading.9 The GC was released in June 2016, a few months after the original judgment was rendered by the SPC. This is the first GC that sheds light on a financial crime. The release of this GC was clearly driven by SPC leaders’ concerns about financial crimes, as well as unemployment and social unrest, which these crimes might cause. In their annual reports submitted to the National People’s Congress in March 2016, CAO Jianming, President of the Supreme People’s Procuratorate, and ZHOU Qiang, President of the SPC, vowed to combat financial crimes in the coming year, especially those involving the Internet, so as to “guarantee a healthy development of the capital market”.10

However, GC No. 61 has broader implications. The Main Points of the Adjudication of

GC No. 61, as shown below, cover a significant legal principle that can be applied extensively.

8 《最高人民法院关于案例指导工作的规定》 (Provisions of the Supreme People’s Court Concerning Work on Case Guidance), supra note 1, Articles 3–6. 9 《马乐利用未公开信息交易案》 (MA Le, A Case About Using Nonpublic Information for Trading), STANFORD LAW SCHOOL CHINA GUIDING CASES PROJECT, English Guiding Case (EGC61), May 8, 2018 Edition, http://cgc.law.stanford.edu/guiding-cases/guiding-case-61. 10 China Pledges Greater Effort to Crack Down on Financial Crime, BLOOMBERG NEWS, Mar. 12, 2016, http://www.bloomberg.com/news/articles/2016-03-13/china-pledges-greater-effort-to-crackdown-on-financial-crime.

The citation of statutory sentences for the crime of using nonpublic information for trading provided for in Article 180 Paragraph 4 of the Criminal Law should be [considered as] the citation of all statutory sentences for the crime of insider trading or divulging inside information [provided for] in Paragraph 1. This means that the crime of using nonpublic information for trading should have two types of situationswhere “circumstances are serious” and where “circumstances are particularly serious”and two [corresponding] sentencing levels.

On the significance of GC No. 61, Minghe Liu, Winner of the 2017 China Cases InsightsTM Writing Contest, which was organized by the China Guiding Cases Project of Stanford Law School, observed:

With the rapid development of China’s economy, financial crimes are increasingly serious, and deficiencies in relevant legislation are becoming more apparent. In the retrial judgment of [MA Le], the Supreme People’s Court […] used a flexible method of legal interpretation to interpret the “crime of using nonpublic information for trading” provided for in Article 180 Paragraph 4 of the Criminal Law of the People’s Republic of China […] as including situations in which “circumstances are particularly serious”. The selection of MA Le as Guiding Case No. 61 not only has guiding effect on the adjudication of similar subsequent cases, but also will likely guide courts to use similar methods for interpreting other provisions where statutory sentences are cited.

2. Lower-Level Courts in Different Provinces and Provincial-Level Municipalities

Among those criminal GCs whose underlying rulings/judgments were not originally

rendered by the SPC itself, the SPC has selected relatively more from Zhejiang (four GCs), Jiangsu (three GCs), as well as Sichuan and Shandong (two GCs each) (see Chart 4).

Chart 4: Number of Rulings/Judgments Rendered by the Courts in the Following

Provinces/Provincial-Level Municipalities Released as Criminal GCs**

** The first number is the number of rulings/judgments, followed by the percentage.

For the four criminal GCs whose underlying rulings/judgments were originally rendered by courts in Zhejiang (GC Nos. 11, 13, 27, and 71), the courts involved range from the provincial high court to district courts of different municipalities, the types of crimes covered vary, and the GCs were released in different years. This may suggest that the SPC’s efforts of promoting the submission of candidate GCs have been well-received at different levels of the court system in Zhejiang and the interest has been sustained for a few years (see Table 2).

Table 2: Courts Rendering Original Judgments/Rulings of Criminal Guiding Cases

GC No.

Released in: Type of Case

Original Judgment/Ruling Rendered By:

3 2011 Q4 A Bribe-Accepting Case High People’s Court of Jiangsu Province

4 2011 Q4 An Intentional Homicide Case High People’s Court of Shandong Province

11 2012 Q3 A Graft Case High People’s Court of Zhejiang Province

12 2012 Q3 An Intentional Homicide Case High People’s Court of Heilongjiang Province

13 2013 Q1 An Illegal Trading and Storage of Hazardous Substances Case

Yuecheng District People’s Court of Shaoxing Municipality, Zhejiang Province

14 2013 Q1 A Robbery Case

Xinhua District People’s Court of Pingdingshan Municipality, Henan Province

27 2014 Q2 A Theft and Fraud Case High People’s Court of Zhejiang Province

28 2014 Q2 A Case of a Refusal to Pay Remuneration People’s Court of Shuangliu County, Sichuan Province

32 2014 Q4 A Dangerous Driving Case Shanghai Pudong New Area People's Court

61 2016 Q2 A Case About Using Nonpublic Information for Trading Supreme People’s Court

62 2016 Q2 A Contract Fraud Case No. 1 Intermediate People’s Court of Beijing Municipality

63 2016 Q2 A Case of Compulsory Medical Treatment

Wuhou District People's Court of Chengdu Municipality, Sichuan Province

70 2016 Q4 A Case of Producing and Selling Toxic and Harmful Food

Intermediate People’s Court of Yangzhou Municipality, Jiangsu Province

71 2016 Q4 A Case of Refusing to Carry Out a Judgment or Ruling

Pingyang County People's Court of Wenzhou Municipality, Zhejiang Province

87 2017 Q1 A Case About Counterfeiting a Registered Trademark

Intermediate People’s Court of Suqian Municipality, Jiangsu Province

93 2018 Q2 An Intentional Injury Case High People’s Court of Shandong Province

IV. Facts and Reasons in Criminal Guiding Cases and Implications for Application

As mentioned at the beginning of this piece, judges in China have been instructed that they “should refer to” GCs when adjudicating similar cases. Initially, they were not given any guidance on how to determine whether a case is similar to a GC. In 2015, the Detailed Implementing Rules on the “Provisions of the Supreme People’s Court Concerning Work on Case Guidance” was issued, Article 9 of which provides:11

Where a case being adjudicated is, in terms of the basic facts and application of law, similar to a Guiding Case released by the Supreme People’s Court, the [deciding] people’s court at any level should refer to the “Main Points of the Adjudication” of that relevant Guiding Case to render its ruling or judgment. (emphasis added)

The phrase “in terms of the basic facts and application of law” suggests that the “Basic Facts of the Case” and the “Reasons for the Adjudication” sections of each GC should be examined closely to decide whether a fact of a pending case is distinguishable and whether the legal issues of the pending case involve the application of law as explained in the reasoning part of the GC.

It is, therefore, critical to make sure that each GC has detailed “Basic Facts of the Case” and “Reasons for the Adjudication” sections. Unfortunately, on average, these two sections are quite short in most GCs. Based on the analysis of all 96 GCs released to date, on average, approximately 40% of the total number of Chinese characters in the six main sections of each GC (i.e. “Keywords”, “Main Points of the Adjudication”, “Related Legal Rule(s)”, “Basic Facts of the Case”, “Results of the Adjudication”, and the “Reasons for the Adjudication” sections) are found in the “Basic Facts of the Case” and another 40% in the “Reasons for the Adjudication”.12

A review of criminal GCs shows that the “Basic Facts of the Case” and “Reasons for the

Adjudication” sections in these cases are, in general, even shorter than other GCs. On average, the “Basic Facts of the Case” section of criminal GCs only accounts for approximately 30% of the total number of Chinese characters across the six main sections of each criminal GC, while that of the “Reasons for the Adjudication” section ranges from 30 to 60% (see Chart 5).

11 《〈最高人民法院关于案例指导工作的规定〉实施细则》(Detailed Implementing Rules on the “Provisions of the Supreme People’s Court Concerning Work on Case Guidance”), passed by the Adjudication Committee of the Supreme People’s Court on Apr. 27, 2015, issued on and effective as of May 13, 2015, STANFORD LAW SCHOOL CHINA GUIDING CASES PROJECT, English Guiding Cases Rules, June 12, 2015 Edition, http://cgc.law.stanford.edu/guiding-cases-rules/20150513-english. 12 Mei Gechlik and Jennifer Ingram, China’s Ninety-Six Guiding Cases, STANFORD LAW SCHOOL CHINA GUIDING CASES PROJECT, Guiding Cases AnalyticsTM, Issue No. 6, Sept. 2018, http://cgc.law.stanford.edu/guiding-cases-analytics.

Chart 5: Relative Length of the “Facts” and “Reasons” Sections of Each Criminal GC

Except GC No. 93, an intentional injury case,13 all other criminal GCs are relatively short.

On average, the above-mentioned six main sections of criminal GCs have only about 2,000 Chinese characters (see Chart 6), compared with an average of 3,000 characters found in other types of GCs. This means that, on average, the “Basic Facts of the Case” section of criminal GCs only has about 600 Chinese characters (i.e., approximately 30% of 2,000 characters) and the length of the “Reasons for the Adjudication” section ranges from 600 Chinese characters to 1,200 (i.e., approximately 30−60% of 2,000 characters).

Chart 6: Number of Chinese Characters in Six Main Sections of Each Criminal GC

13 《于欢故意伤害案》 (YU Huan, An Intentional Injury Case), STANFORD LAW SCHOOL CHINA GUIDING CASES PROJECT, English Guiding Case (EGC93), Oct. 30, 2018 Edition, http://cgc.law.stanford.edu/guiding-cases/guiding-case-93 (forthcoming).

One must wonder whether the “Basic Facts” and “Reasons” of issued criminal GCs are detailed enough to facilitate the application of these GCs in subsequent cases. One of the areas in China’s court system that most needs improvement is the explanations for rulings/judgments: courts have generally placed less emphasis on explaining the reasons for their decisions. In the Fourth Five-Year Reform Plan of the People’s Court (2014–2018), 14 the SPC sets the goal to “push forward the reasoning reform of adjudication documents”. This goal can be achieved more effectively if the SPC provides more reasons in criminal GCs, setting a good example for local courts. In addition, having more detailed reasons in criminal GCs, together with detailed descriptions of material facts, provides lawyers and judges with the basic elements for gradually developing the distinguishing technique. This technique is essential to any system that relies on the application of prior cases to ensure uniform application of law.

14 《最高人民法院关于全面深化人民法院改革的意见人民法院第四个五年改革纲要（2014–2018）》(The Opinion of the Supreme People’s Court Concerning Comprehensively Deepening the Reform of the People’s CourtThe Fourth Five-Year Reform Plan of the People’s Court (2014–2018)), issued on Feb. 4, 2015, http://www.court.gov.cn/zixun-xiangqing-13520.html.

APPENDIX: 16 Criminal Guiding Cases

GC No. Case Name (translated by the CGCP)

3 《潘玉梅、陈宁受贿案》(PAN Yumei and CHEN Ning, A Bribe-Accepting Case)

4 《王志才故意杀人案》(WANG Zhicai, An Intentional Homicide Case)

11 《杨延虎等贪污案》(YANG Yanhu et al., A Graft Case)

12 《李飞故意杀人案》(LI Fei, An Intentional Homicide Case)

13 《王召成等非法买卖、储存危险物质案》(WANG Zhaocheng et al., An Illegal Trading and Storage of Hazardous Substances Case)

14 《董某某、宋某某抢劫案》(A certain DONG and a certain SONG, A Robbery Case)

27 《臧进泉等盗窃、诈骗案》(ZANG Jinquan et al., A Theft and Fraud Case)

28 《胡克金拒不支付劳动报酬案》 (HU Kejin, A Case of a Refusal to Pay Remuneration)

32 《张某某、金某危险驾驶案》 (A certain ZHANG and a certain JIN, A Dangerous Driving Case)

61 《马乐利用未公开信息交易案》(MA Le, A Case About Using Nonpublic Information for Trading)

62 《王新明合同诈骗案》 (WANG Xinming, A Contract Fraud Case)

63 《徐加富强制医疗案》 (XU Jiafu, A Case About Compulsory Medical Treatment)

70 《北京阳光一佰生物技术开发有限公司、习文有等生产、销售有毒、有害食品案》(Beijing Sunshine100 Biotechnology Development Co., Ltd., XI Wenyou, et al., A Case of Producing and Selling Toxic and Harmful Food)

71 《毛建文拒不执行判决、裁定案》(MAO Jianwen, A Case of Refusing to Carry Out a Judgment or Ruling)

87 《郭明升、郭明锋、孙淑标假冒注册商标案》(GUO Mingsheng, GUO Mingfeng, and SUN Shubiao, A Case About Counterfeiting a Registered Trademark)

93 《于欢故意伤害案》 (YU Huan, An Intentional Injury Case)