China's is a civil law system, and one important consequence
is that decisions made by one Chinese court are not binding on
other Chinese courts. Nonetheless, precedent can be a strong factor
when arguing cases, especially so in a society where courts want to
avoid being proved wrong. One major challenge for lawyers, so far,
has been to find relevant precedent cases. While technically
public, there has been no public database to search judgments. This
has also made it more difficult to critique courts for judgments
where the legal basis is not so strong.
The Provisions on People's Courts Release of Judgments
on the Internet, issued by the Supreme People's Court on
21 November 2013, promises to change this as of 1 January 2013.
Replacing earlier rules that were clearly not very effective, the
Provisions instruct all courts to appoint special organizations to
which they should pass their judgments within 7 days from their
becoming effective. These organizations are then responsible to
place the judgments on the China Judgment Opinion Network, which is
to "provide easily operated systems for searching and reading,
facilitating the public's searching and reading of judgment
Some exceptions are still made. Judgments that touch upon state
secrets or personal privacy and cases involving juveniles should be
excluded, as should all cases concluded by court mediation. Also,
the Provisions exclude judgments which in a catch-all phrase are
"not suited for release on the internet", but only
subject to written arguments and upon approval.
The judgments should be put online in their final form, with
real information – again with some exceptions such as parties
in marriage and family cases, and inheritance disputes; victims,
witnesses and expert evaluators in criminal cases; and defendants
in criminal cases, where sentences are three years or less and they
are not habitual offenders. Other information that should be
deleted from published judgments includes certain types of private
information, commercial secrets, and "other content not
suitable for disclosure".
The Provisions, once implemented, should give litigants an extra
tool to argue cases. But more important, some observers see the
Provisions as a direct sign of the country's attempt under Mr.
Xi Jinping to make the judicial system more independent. If
judgments become open to the public, it will be easier to critique
courts where they make unsound decisions, whether for lack of
expertise of because of undue influence. As a result, courts may
become more careful when issuing their judgments and thus less
susceptible to external pressures, while judges could get more
freedom to conclude their cases without reference to opinions of
their leaders. While it remains to be seen how quickly the
Provisions will be implemented and how easily the China Judgment
Opinion Network will become easily searchable, more transparency is
a key factor to build a stronger judicial system.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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