Constitutionalism in Asia in the Early Twenty-First Century

(Greg DeLong) #1

cases were released on 20 December 2011 , and the second round of another four cases


came out on 13 April 2012. It seems to us that the Supreme People’s Court has been


cautious about ‘canonising’ any case decided by the court itself or others at lower


levels. Second, there is no rule of recognition in China providing for guiding cases’


ratio decidendibeing accepted as part of the source of law. In refereeing guiding cases


in their judgments, lower courts of justice are expected to rely on guiding cases to


clarify vague provisions in parliamentary Acts. However, guiding cases’ratiois, most


optimistically, an authoritative interpretation of law, which cannot be applied in


judgment without relevant legislative texts.


An example of the eight guiding cases released illustrates what they actually are.


TheWang Zhicaicase, an intentional homicide case, is the fourth released by the


Supreme Court. The defendant, Mr Wang Zhicai, and the victim had been in a


relationship before the tragedy. The victim tried to end this relationship and


enraged the defendant, who ruthlessly murdered her after she refused the defend-


ant’s offer of marriage. A provincial court initially sentenced the defendant to death.


However, all death sentences should be reviewed and approved by the Supreme


People’s Court before execution, and in this case, the Supreme People’s Court


showed mercy. After being requested to re-examine the case, the provincial court


awarded the defendant a death penalty reprieve, given that he was in a moment of


passion when the killing was undertaken, and also that he had gone all out to


compensate the victim’s family. A death penalty reprieve can sometimes be justified


by victims’ forgiveness. Yet in theWang Zhicaicase the victim’s family could not


forgive the defendant’s fierce violence, and they insisted on severe punishment.


Taking the victim’s family’s demand into account, the provincial court finally


decided that the defendant’s ‘life imprisonment’, which is a minimum tariff of


twenty years, should not be commuted. The Supreme People’s Court praised this


judgment for its prudent balance, but this guiding case essentially did not lend


anything to Chinese criminal law. There is no new rule that the defendant’s or


the victim’s emotion in a case of intentional homicide shall be a determinative


factor in the future. That is why the guiding caseratioitself is not ‘law’ in China.


Article 4 of the Provisions of the Supreme People’s Court Concerning Work on


Guiding Cases reads:


Any adjudication unit of the Supreme People’s Court may recommend


to the Guiding Cases Work Office any ruling or judgment that is made


by the Supreme People’s Court or local people’s courts at any level and


that has taken legal effect, so long as such ruling or judgment is


deemed by the said unit to meet the requirements set out in Article 2


of this set of Provisions.^51


(^51) ‘Article 2 of the provisions ordains guiding cases shall be (i) widely concerned by society;
(ii) concerning legal provisions of a relatively general nature; (iii) of a typical nature; (iv)
difficult, complicated or cases of new types; and need to (v) have a guiding effect.


138 Wang and Tu

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