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.