On 26 September 2023, a hybrid seminar titled “The Evolving Case Law System in China” was jointly hosted by the Finnish China Law Center and GENIAL. The event featured Qiao Liu, Professor and Deputy Director of the Centre for Chinese and Comparative Law, School of Law, City University of Hong Kong as the speaker, and Jaakko Husa, Full Professor in Law and Globalisation at the Faculty of Law, University of Helsinki presided as the chair of the seminar.
Professor Qiao Liu at the Faculty of Law, University of Helsinki, 26 September 2023
Professor Liu described judges making law as an inevitable trend in China which arises from the abstractness of the provisions of laws, the imperative to to maintain consistency in judicial decisions as well as the vertical control exercised by the Supreme People’s Court (SPC) over lower courts.
Professor Liu elaborated that the SPC is empowered to select, edit and re-write its own judgments and cases from lower levels and publish them as guiding cases. All guiding cases are approved by the SPC Judicial Committee and adopt a defined structure and style. People’s courts of all levels should canzhao [参照,] guiding cases when deciding similar cases. He emphasized that this entails that the people’s courts should not only consider but also follow these guiding cases. The guiding cases, however, function differently from precedents in common law systems. While the people’s courts may cite guiding cases in the legal reasoning section of judgment, only essential points/rules section of a guiding case should be canzhaoed. The application of guiding cases is increasing, yet judges frequently refrain from expressly citing them within their judgments.
In addition, cases and SPC judgments published on the SPC Gazette, although lacking legal binding, can have influence in judicial practice. The extent of this influence varies depending on specific circumstances. Not only the cases published in the SPC Gazette, but judgments decided by higher-level or specialized courts also carry weight. These cases may assume special significance within a field of law. For instance, an earlier decision of a High People’s Court may directly impact the decision of an Intermediate People’s Court below, or a decision of a specialized court may be viewed as persuasive authority on legal issues falling within its area of expertise.
Professor Qiao Liu and Professor Jaakko Husa at the Faculty of Law, University of Helsinki, 26 September 2023
On 25 October 2021, the Finnish China Law Center held an online mini seminar on the topic of ‘Smart Courts and the Informatization of China’s Judicial System’. The event is part of the Center’s new mini seminar series on topical issues of Chinese law.
Professor Johanna Niemi, 25 October 2021
The seminar was chaired by Johanna Niemi, Professor of Procedural Law at University of Turku and Board Member of the Finnish China Law Center.
The seminar began with a presentation by Björn Ahl, Professor and Chair of Chinese Legal Culture at the University of Cologne on ‘The Development of Chinese Smart Courts within the Broader Context of Judicial Reform’. He remarked that as China is currently at the forefront of technical and digital development, its experience in smart courts and judicial reform would be a good subject for comparative study.
Professor Björn Ahl, 25 October 2021
Professor Ahl started with an introduction on the description of smart courts. In a smart court, litigation activities are carried out online with limited human interference. Software applications, algorithms and big-data analytics are used to support the judicial process. He noted that the smart courts form a small part of the overall policy toward judicial informalization. The objective of judicial informatization and smart courts is to create a more just and fairer judiciary, more consistent adjudication and better monitoring and supervision of cases. Professor Ahl also gave some examples of the applications utilized in smart courts including systems that can automatically draw analogy between similar cases to provide in-depth materials and guidance in decision-making for judges to review and those that to systems that can process and cross-examine case texts and parties’ information to determine if there are any overlapping procedures.
Professor Wen Xiang, 25 October 2021
The second presentation titled ‘The Rise of Smart Courts in China: A Pathway to E-justice in the Digital Age?’ was given by Wen Xiang, Associate Professor at the Faculty of Law of the University of Copenhagen. He explained that the reason behind the need for smart courts in China is the sharp increase of cases which places heavy burden on judges. Since 2013, China has initiated the informatization of courts. Internet courts were established in Hangzhou (2017), Beijing (2018) and Guangzhou (2018). Professor Xiang then gave a brief introduction of four of the techniques that have been employed in smart courts including electronic case-filing, remote trial, online mediation platform and electronic delivery system. He stated that smart courts have the potential to promote quality of justice, improve judicial efficiency, provide convenience for the people, and build judicial big data system.
In their presentations, both Professors expressed concerns regarding potential bias in algorithms in smart courts, possible inaccuracy in algorithm-based and data-based decision-making mechanisms, uncertainties about the influence of private developers on the deliver of justice, lack of guideline on data security and protection of privacy, and unequal access to technology.
The China Law Center is pleased to announce the launch of a new mini seminar series on topical issues of Chinese law. The series gathers esteemed scholars to present and discuss current issues, trends and challenges in different topics of Chinese law and legal culture.
The series aims to deepen knowledge on specific topics of Chinese law and legal culture and provide a chance for discussion with experts from the field. It also seeks to encourage students and young scholars with passion for Chinese law and legal culture to further learn about the latest information related to the their subject of interest and research.
The events are free of charge and open for anyone with an interest in Chinese law and legal culture.
The first three seminars will address different aspects of Chinese smart courts and judicial system (October 2021), labour law (November 2021) and IP law (Spring 2022). The IP law seminar will be organized in cooperation with IPR University Center.
The programmes of the events will soon be published on the Center’s web page and social media.
Chair of the session, Professor Jukka Mähönen, 23 October 2020
The China Law Week 2020 closed with a session on “Reform and Emerging issues in Chinese Private Law and the Court System”. It was chaired by Jukka Mähönen, Professor of Cooperative Law at the University of Helsinki and Professor of Law at the University of Oslo.
Professor Jin Haijun speaking on “Legal Reform and the New Chinese Civil Code: An Introduction”, 23 October 2020
In the first presentation, Professor Jin Haijun from Renmin University gave a brief insight into the Chinese newly made civil law codification. The new Chinese Civil Code was adopted in May 2020 and will be effective from the beginning of next year. Even though the Civil Code is new, Professor Haijun emphasized that most parts of its legislation are not new. For instance, already existing corporative law was basically incorporated in the new civil code. According to Professor Haijun, intellectual property rules were a hot topic during the drafting of the code. Professor Juha Karhu from the University of Lapland commented on the presentation by mentioning for example the way that the code was built putting together different pieces.
Professor Juha Karhu speaking on “Nordic Perspective on the New Chinese Civil Code”, 23 October 2020
Professor Karhu then proceeded with his presentation on the Nordic perspective on the new Chinese Civil Code. Some civil codes of the modern time were discussed, and their economic, political, and cultural background were explored to see why and how the codes were born. The presenter talked about the French Civil Code, the German “Bürgerliches Gesetzbuch”, the situation in the US, and the Chinese Civil Code 2020. Notably, the Chinese Civil Code is based on the economic rise with the opening-up policy and the socialist market economy. The Code also shows Chinese characteristics. It is inspired by various legal systems, but the systematic nature is based on the endemic questions in China.
Dr. Kangle Zhang speaking on “Emerging Issues in Chinese Finance & Business Law”, 23 October 2020
The third presentation was given by Dr. Kangle Zhang from Peking University Law School about emerging issues in Chinese finance & business law. In Dr. Zhang’s opinion, China is moving towards financial liberalization. There is a trend of providing necessary capital and offering the customers better returns than bank deposits. The establishment of Shanghai pilot free trade zone helps ease legal burden for trading and financial purposes.
Dr. Wei Qian speaking on “Do Positive Disability Policies Promote Social Inclusion of the Disabilities in China?”, 23 October 2020
The fourth presentation was held by Dr. Wei Qian from the China University of Labour Relations, School of Labour Relations and Human Resources. The pandemic raised a number of issues where the group of disabled elderly people were particularly affected. Local governments in China were fast to enact new policy, and set disabled people, as well as children and elderly people as priority groups that will receive special attention in any big crisis. Dr. Qian talked about how disability policies in China promote the social inclusion of disabled people and how the policies changed under the current Covid-19 situation.
Professor Björn Ahl speaking on “Chinese Court Reforms and their Impact on Decision Making”, 23 October 2020
The last presentation of the day and the China Law Week was held by Björn Ahl, Professor and Chair of Chinese Legal Culture at the University of Cologne. He outlined the Chinese court reforms and their impact on decision making. According to Professor Ahl, there has been a contradiction in the reform dynamics between law and the political context within the judicial reform in China. This reform can be seen from a political context where there has been an enhanced dominant party state with violations of human rights. On the other hand, reform of the legal institutions has taken place where judges enjoy more autonomy in decision making to an extent that they never have been.
With 19 chairs and speakers from 7 countries and over 70 participants from 15 countries, the China Law Week 2020 had connected people with interest in Chinese law and legal culture from all over the world. Offering presentations and discussions on a broad spectrum of topics, the event had provided a valuable opportunity to learn more about the latest developments in the world of Chinese law.
The Finnish China Law Center would like to thanks the chairs, speakers, and participants conference for having made the China Law Week 2020 a resounding success. We hope to see you again in the Nordic China Law Week 2021!
The Center would like to thank our interns, Elias Jakala, Anwar Al-Hamidi, Anqi Xiang, Annette Rapo, and Johanna Fähnrich for contributing text for this article.
For further questions and inquiries, please contact Le Bao Ngoc Pham, the Center’s Coordinator, at ngoc.pham@helsinki.fi.
China Law Week’s speakers. First row (from left to right): Associate Professor Chen Yifeng (Peking University), Assistant Professor Yan Tian (Assistant Dean, Peking University), Associate Professor Joanna Grzybek (Polish Centre for Law and Economy of China), Professor Pia Letto-Vanamo (Dean of the Faculty of Law, University of Helsinki), Professor Ronald C. Brown (University of Hawai’i Law School). Second row (from left to right): Professor Kimmo Nuotio (University of Helsinki), Dr. Kangle Zhang (University of Helsinki), Dr. Wei Qian (China University of Labour Relations, School of Labour Relations and Human Resources), Professor Sean Cooney (University of Melbourne), Professor Yan Dong (Beijing Foreign Studies University School of Law). Third row (from left to right): Professor Alan C Neal (University of Warwick), Professor Ulla Liukkunen (University of Helsinki, Director of the Finnish China Center), Professor Julie Yu-Wen Chen (University of Helsinki, Director of the Confucius Institute), and Professor Jin Haijun (Renmin University). Last row (from left to right): Professor Juha Karhu (University of Lapland), Professor Björn Ahl ( University of Cologne, President of the European China Law Studies Association), Professor Matti Nojonen (University of Lapland), and Professor Johanna Niemi (University of Turku).
On 29 November 2019, Björn Ahl, Professor from University of Cologne and President of the European China Law Studies Association, gave a guest lecture at the Finnish China Law Center. The topic of his presentation was ‘Judicialization in Authoritarian Regimes: The Expansion of Powers of the Chinese Supreme People’s Court’.
Professor Björn Ahl aimed to demonstrate how the Chinese constitutional system works and what the position and function of the Supreme People’s Court (SPC) are through this lecture. He firstly introduced the global phenomenon of the 20th-century judicialization, under which, judicialization can be distinguished into two forms: expansion of the courts’ scope of action at the expense of politics, and the absorption of methods of judicial decision-making by other executive and legislative state organs.
The development of judicialization has been seen in three layers. First, legal discourses, legal terminology, legal rules, and procedures diffuse into processes of judicial decision-making. Then, courts expand their competence and increase their influence over the outcomes of political possesses. And finally, courts decide important political questions. These can be reflected from the development of the Chinese legal system. While some scholars stated that there was no judicialization in the authoritarian legal system, Professor Ahl contended that the strengthened rule of law in China can also be observed in the development of other constitutional systems.
Professor Björn Ahl, Faculty of Law of the University of Helsinki, 29 November 2019
As a One-party system concentrates powers of decision-making in the organs of the Chinese Communist Party (CCP) and in the executive organs of the state, Chinese courts, particularly the SPC become an integral part of the party-state structure and political institutions. This, as Professor Ahl presented, has led to some special feature of a limited and reversible judicialization in China as dynamics have been seen as intrinsically local’ and courts rely on party support and active engagement of administrative agencies under administrative litigation.
As for the SPC, Professor Ahl said that motivated by institutional self-interest, it was now less influenced by party leadership or legal reform ideologies and had transformed into a relatively autonomous policy-making organization. He then analyzed from four aspects of SPC: Fundamental rights in courts, self-empowerment through judicial interpretations, guiding cases mechanism, and mandatory death penalty review power, in which Professor Ahl emphasized the last three aspects and how they worked under the current special constitutional structure in China as a reflection of the strengthening of the SPC’s power.
Professor Björn Ahl finally concluded that Chinese judicialization bore significant differences from the judicialization in liberal constitutional systems. According to this opinion, judicialization in China has its own characteristics. The SPC still operates as an ‘active lawmaker’ even though it possessed parallel law-making powers, and has no ultimate power of decision-making on critical problems in society. As SPC’s power increasing, political decision-making of other actors of the party-state would not be changed into more rule-based judicial forms of decision making.
The text is contributed by the Center’s intern, Ms. Xiaodan Zhang who is completing her Masters in International and Comparative Law (International Business Law) at the University of Helsinki.
University of Helsinki
In addition, cases and SPC judgments published on the SPC Gazette, although lacking legal binding, can have influence in judicial practice. The extent of this influence varies depending on specific circumstances. Not only the cases published in the SPC Gazette, but judgments decided by higher-level or specialized courts also carry weight. These cases may assume special significance within a field of law. For instance, an earlier decision of a High People’s Court may directly impact the decision of an Intermediate People’s Court below, or a decision of a specialized court may be viewed as persuasive authority on legal issues falling within its area of expertise.
