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.

This chapter examines Supreme People’s Court (SPC)’s judicial interpretation, which has been formally legalized as a source of law for adjudication, as well as its relationship with various other statutes in China’s legislative system. It points out that the inner logic of China’s legislation with different hierarchical status, as distinct from those of democratically elected parliamentary systems, is determined by the de facto distribution of legislative power within its authoritarian regime, where the SPC has become a significant player in exercising legislative power in a way that has largely evolved beyond its constitutional settings. In particular, it investigates the unique inner logic of SPC’s judicial interpretations, which have become a de facto primary source of law for adjudication in practice.

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.

Drawing on research into the substance of and process by which the Supreme People’s Court drafts judicial interpretations in the area of criminal procedure law, this chapter argues that the drafting process proceeds in a ‘gated community’ of representatives from the relevant authorities. The process creates legal rules that are politically acceptable, legally sound and practicable in the Chinese legal environment. The drafting reflects the quasi-administrative way in which the Supreme People’s Court operates: professional yet politically attuned. Although discrete efforts are being made to strengthen human rights protections and procedural protections (e.g. increasing ‘trial-centred procedures’) in the course of criminal procedure reforms, those efforts will be restricted to the confines of what is permitted by the political authorities.