Book contents
- Law as an Instrument
- Law as an Instrument
- Copyright page
- Dedication
- Epigraph
- Contents
- Figures
- Tables
- Preface and Acknowledgements
- Abbreviations
- 1 Introduction
- 2 A Dual Constitution with Illiberal Characteristics
- 3 Judicial Interpretation as a de facto Primary Statute for Adjudication
- 4 The Judicial Document as Informal State Law
- 5 Guiding Cases as a Form of Statutory Interpretation
- 6 Bureaucratization of Judicial Precedents
- 7 Concluding Reflections
- Appendix: Methodology and Data
- Bibliography
- Index
5 - Guiding Cases as a Form of Statutory Interpretation
Published online by Cambridge University Press: 07 July 2022
- Law as an Instrument
- Law as an Instrument
- Copyright page
- Dedication
- Epigraph
- Contents
- Figures
- Tables
- Preface and Acknowledgements
- Abbreviations
- 1 Introduction
- 2 A Dual Constitution with Illiberal Characteristics
- 3 Judicial Interpretation as a de facto Primary Statute for Adjudication
- 4 The Judicial Document as Informal State Law
- 5 Guiding Cases as a Form of Statutory Interpretation
- 6 Bureaucratization of Judicial Precedents
- 7 Concluding Reflections
- Appendix: Methodology and Data
- Bibliography
- Index
Summary
This chapter focuses on the guiding case system, which is distinctive and cannot be simply explained by current case law theories. More specifically, it first explores the distinctiveness of the guiding case system in the specific context of China, as opposed to other types of case law in liberal democracies, then goes on to explain why the Supreme People’s Court (SPC) has been able to expand its judicial lawmaking authority in the sense of being able to interpret the law through guiding cases. Furthermore, it illustrates that the Main Points of Adjudication (caipan yaodian), as a part of a guiding case, has essentially become a form of statutory interpretation that enables the SPC to independently perform a legislative function to a certain extent without routine surveillance by the Standing Committee of the National People’s Congress (NPCSC). This stands in contrast to the previous practice, where the SPC performed the legislative function merely through having it delegated by the NPCSC. It is further suggested that, under China’s authoritarian regime, the effectiveness of the SPC’s lawmaking function through the guiding case system depends largely on the extent to which the courts could be independent in the context of China.
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- Law as an InstrumentSources of Chinese Law for Authoritarian Legality, pp. 109 - 136Publisher: Cambridge University PressPrint publication year: 2022