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6 - Bureaucratization of Judicial Precedents

Published online by Cambridge University Press:  07 July 2022

Shucheng Wang
Affiliation:
School of Law, City University of Hong Kong
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Summary

This chapter investigates judicial precedents in China’s instrumentalist legal system and finds that judges are generally reluctant to refer to a judicial precedent, including a guiding case, in the process of making a judicial decision. It further reveals that the guiding case system has effectively crystallized a bureaucratic system of judicial precedents with guiding cases at the top of the pyramid. A bureaucratic system of this kind is grounded primarily in the political hierarchy of the courts and a nationwide typical-case-selection movement, in which the lower courts are politically responsible for submitting a certain number of typical cases selected from within their respective jurisdictions to the Supreme People’s Court every year. Finally, it attempts to develop a bureaucratic theory of judicial precedents centred on guiding cases that fits into China’s authoritarian context and that differs substantially from any other type of case law in a liberal context.

Type
Chapter
Information
Law as an Instrument
Sources of Chinese Law for Authoritarian Legality
, pp. 137 - 161
Publisher: Cambridge University Press
Print publication year: 2022

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