The Authority of Court Decisions in China: An Empirical Survey
The current state of Chinese court decisions is unclear. Whilst China followed the civilian tradition in jurisdictions such as former USSR, Taiwan and Germany in constructing its modern legal system, and hence did not recognise court decisions as a formal binding source of law, at least some of these decisions are gaining influence through the adoption by the Supreme People’s Court (SPC, the highest court in China) of a new Guiding Cases system and, more generally, due to the enhanced visibility given to a greater number of decisions of courts at different levels in recent years.
This paper proceeds from a previous study on the making of contract law by Chinese courts and sets out a study plan for ascertaining the extent to which Chinese courts/judges are guided or influenced by prior court decisions on the basis of empirical data to be collected from interviews and surveys with Chinese judges. It will explore the possible difficulties in collecting and analysing such data, suggest solutions for them and identify options for conducting the empirical study. It will also draw comparatively the doctrine of precedent in common law countries to address the following enquiries:
- first, whether, despite the current legal status and presentational style of Chinese court decisions, they are starting to develop a line of ratio (partly as a consequence of an increased level of interaction with scholarly works), from which new principles of law can be distilled;
- second, in which ways a prior court decision may, if at all, influence a lower court in deciding a similar point of law and what is the way ahead for the Guiding Cases system to evolve into a more consistent and more stable system of precedents that suits the Chinese soil.
This lunchtime seminar is open to all and registration is not required in advance.
Speaker: invited Dr Qiao Liu (Charles), TC Beirne Law School, University of Queensland
School of Law
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